Nevada Reports 1925-1926 (49 Nev.).pdf

49 Nev. 1, 1 (1925)

REPORTS OF CASES

DETERMINED BY

THE SUPREME COURT

OF THE

STATE OF NEVADA

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1925-1926

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��49 Nev. 1, 1 (1925) Riek v. Messenger��

RIEK v. MESSENGER

No. 2674

March 18, 1925. 234 P. 30.

1. Appeal and Error—Failure to Formally Assign Errors Waived where No Objection Made. Failure to formally assign errors will be considered as waived in absence of objection.

2. Mines and Minerals—Work Done for Benefit of One Mining Claim Held Not to

Constitute Annual Labor for Entire Group.

Work on one claim is not sufficient to constitute the required annual labor for a group of claims,

unless it tends to develop the entire group, and is done in good faith for that purpose.

3. Mines and Minerals—Coowner's Interest in Group of Claims Cannot Be Forfeited for

Nonpayment of Assessment Work Done for Benefit of but One Claim. The interest of a coowner of a group of mining claims cannot be forfeited for nonpayment of his share

of expense of annual representation work, where bulk of work was driving tunnel on one claim in

direction opposite to other claims of group, and which could not possibly benefit such other claims.

4. Mines and Minerals—Proof of Failure of Proper Publication Held to Defeat Forfeiture

Under Statute and Improperly Refused in Suit to Quiet Title. Under Rev. St. U.S. Sec. 2324 (U.S. Comp. St. sec. 4620), authorizing forfeiture of coowner's interest

in mining claims for nonpayment of his proportion of annual work by publication of notice at least once a

week, for 90 days, proof that newspaper containing notice was not published for one or more weeks

during required period will defeat forfeiture, and in action to quiet title it was error to reject such

evidence.

See (1) 3 C.J. sec. 1481, p. 1341, n. 76; (2, 3, 4) 27 Cyc. p. 592, n. 72; p. 594, n. 97; p. 656, n. 65 (new).

Appeal from Seventh Judicial District Court, Mineral County; J. Emmett Walsh, Judge.

Action to quiet title to mining claims by Carl S. Riek against Ed. V. Messenger. Judgment

for defendant, and plaintiff appeals. Reversed.

I. S. Thompson, for Appellant:

Partner cannot forfeit his copartner's interest in mining claims, because he has adequate

remedy by accounting. Each partner is liable for full amount of ��


indebtedness, not merely for pro rata share. Lindley on Mines, 1007; Stuart v. Adams, 89 Cal.

367.

Notice of forfeiture which does not specify amount money spent on each claim nor facts

which might excuse expenditure, is fatally defective. Haynes v. Briscoe, 67 P. 156.

Affidavit of publication which sets forth first and last publication, but not date of each

insertion, is defective. Notice must be inserted in newspaper published nearest claims; proof

must show this. The court erred in rejecting offered testimony that during period of

publication newspaper was not published for three weeks. U.S. Rev. Stats. 2324; 15

Morrison, 146.

C. C. Ward, for Respondent:

Dictum in 2 Lindley, sec. 630, that work performed must manifestly tend to develop all

claims in group has been considered, criticized and rejected in Love v. Mt. Oddie U.M. Co.,

43 Nev. 67. Court there adopts contrary view expressed in Smelting Co. v. Kemp, 104 U.S.

635.

Alleged defect in printed notice was mere indistinct imprint of final stroke of letter “r” in

plaintiff's name, not misleading or prejudicial. Plaintiff's admission of verbal notice makes

any typographical error in printed notice immaterial.

In action to quiet title plaintiff must establish his title regardless of whether defendant's

title is valid or not. Schroder v. Aden G.M. Co., 144 Cal. 628.

Annual assessment work must be for development of claim and to facilitate extraction of

minerals it may contain. Hough v. Hunt, 138 Cal. 142. Labor and improvements may be on

ground which originally constituted only one claim. Smelting Co. v. Kemp, supra; Love v.

Mt. Oddie U.M. Co., supra.

Findings of trial court on conflicting evidence are conclusive. Lombardi v. Lombardi, 44

Nev. 341.

Question whom burden of proof rests on is determined by ascertaining which party, without

evidence, would be compelled to submit to adverse judgment. Coffman v. Pub. Co., 65 Wash.

1.


OPINION

By the Court, Coleman, C. J.:

This is an action to quiet title to an undivided half interest in a group of 16 mining claims

known as Red Wing, Red Wing Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, Red Wing Extension,

Mollie Hogan, Bobbie and Dollie, and for an accounting. The appeal is from a judgment in

favor of the defendant and from an order denying a motion for a new trial.

The mining claims in question were located in 1917 in the names of the plaintiff and the

defendant. In the summer of 1921 the defendant, claiming that he had done $1,600 worth of

work upon the claims at his own expense for the year 1920, and that the plaintiff had failed to

do one-half of the annual labor for said year, or to contribute to the defendant one-half of the

amount expended by him, to wit, $800, advertised in a certain newspaper a notice of

forfeiture directed, as it is alleged by the defendant, to this plaintiff. Further facts will appeal

from the opinion.

1. No errors have been formally assigned, but since no point is made of that fact, we will

consider the failure so to do as waived.

2, 3. One of the points discussed by counsel for the appellant is that, since no work

whatever was actually done upon several of the claims in question, and since it was admitted

by the defendant upon the witness stand that the bulk of the work done by him could not tend

to develop certain of the claims, the work done could not constitute annual labor for the entire

group. He was asked:

“Q. Now, this tunnel started on No. 11 could never reach any of these properties, could it?

A. That was not the intention of the tunnel.”

The question was read again and he answered, “No.”

“Q. That tunnel that you refer to on No. 11, in which direction is it drifting? A. The

general direction is south.

“Q. So that it is not being driven in the direction of the other claims at all? A. No, sir.”


According to his own testimony he did not do in all for the year 1920 to exceed 310 days'

work, of which he testified 214 were done on Red Wing No. 11, in a tunnel running in a

direction opposite to the other claims. On nine of the claims no work whatever was actually

done, taking his own testimony for it. Hence on one claim 214 days' work was performed, and

between six others 90 shifts were performed in open cuts. That such work cannot be applied

as annual labor upon a group of 16 claims is too clear for serious doubt. In the case of Love v.

Mt. Oddie United Mines Co., on rehearing 43 Nev. 61, 184 P. 921, we laid down the law,

stating what is necessary to constitute the annual labor for a group of claims when the work is

not done on each claim. The test as to whether work done upon one claim for a group of

claims will constitute the annual labor for the group is whether it is done in a manner tending

to develop the entire group and for the purpose of so developing the entire group, in the

honest belief that it so tends to develop them.

It is not even asserted that the bulk of the work claimed to have been done could tend to

develop any claim except the one on which the work was done. The other work was scattering

and done in open cuts. No such work can count as annual labor for the entire group of claims,

and for this reason alone the judgment is erroneous.

3. It is also contended that the trial court erred in rejecting an offer of testimony made by

the plaintiff to show that, during the period of publication of the notice of forfeiture relied

upon by the defendant, the newspaper in which said notice was printed was not printed and

published for one or more weeks.

Section 2324, Rev. St. of the United States (U.S. Comp. St. sec. 4620), provides that upon

the failure of one or more coowners to contribute his proportion of expenditure incurred by

another coowner in doing annual labor upon mining claims, the coowner who has performed

the labor, at the expiration of the year, may give such delinquent coowners notice in writing

or by ��


publication in the newspaper nearest the claim for at least once a week for 90 days, etc. Under

this provision, if the plaintiff could show that the notice was not published one week during

the 90 days, there could have been no judgment such as here rendered. The court erred in

rejecting the offer.

Other errors are discussed, but we do not deem it necessary to consider them.

For the reason given, it is ordered that the judgment be reversed.

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��49 Nev. 5, 5 (1925) Didier v. Webster Mines Corporation��

DIDIER v. WEBSTER MINES CORPORATION

No. 2670

April 3, 1925. 234 P. 520.

1. Mines and Minerals—Miner Employed in Improving Mine by Lessee Held Not UnderParticular Section Entitled to Lien.

Provisions of Rev. Laws, sec. 2213, giving miners liens for work in improving mine whether at

instance of owner or agent, and that contractor, subcontractor, or other having control of claim or part

thereof shall be held agent, does not apply to persons employed by lessee of mine.

2. Mines and Minerals—Lessee's Employees Held Entitled to Lien, Where Owner's Notice of

Nonliability was Not Posted on “Conspicuous Place.” Miners employed by lessee of mine, which employment was known to owner, held entitled to liens

under Rev. Laws, sec. 2221, though notice of nonliability was posted, where posting was on building

used by lessee as home and office, which was not reasonably calculated to impart information, and was

therefore not “conspicuous place” within statute.

3. Mines and Minerals—Lessee of Mine Held Not Necessary Party to Suit by His Employees

to Enforce Lien. In suit by miners, employed by lessee of mine, to foreclose lien under Rev. Laws, sec. 2221, because

of owner's failure to post nonliability notice in conspicuous place, though it knew work was being done,

lessee held under facts of case not necessary party defendant; complete remedy being against property.

4. Mines and Minerals—Wages of Cook and Helper Held Not Lienable. In suit to enforce lien against mine owner, claims for wages of cook and his helper held not lienable,

in view of theory expressed in Rev. Laws, sec. 2213, that liens are given for enhancement of value of

property.


5. Mines and Minerals—Personal Judgment Against Owner for Nonlienable Claims Against

Lessee Held Erroneous. In suit to foreclose lien for labor performed in mine by employees of B., where property was

chargeable for owner's failure to post nonliability notice as required by Rev. Laws, sec. 2221, held

erroneous to render personal judgment against owner for nonlienable claims, where there was no

evidence that B. was agent in fact of owner.

See 19 C.J. p. 1255, n. 16; 27 Cyc. p. 17, n. 6; p. 56, n. 30; p. 770, n. 27; p. 774, n. 43 (new), 44; p. 779, n. 86

(new); p. 781, n. 4; p. 783, n. 16; 36 Cyc. p. 1119, n. 36.

Appeal from Fifth Judicial District Court, Nye County; Frank T. Dunn, Judge.

Suit by Matt Didier against the Webster Mines Corporation. From a judgment and decree

for plaintiff, defendant appeals. Affirmed in part, and reversed in part. Rehearing denied.

Hoyt, Norcross, Thatcher & Woodburn, and Wm. Forman, for Appellant:

Lessees were indispensable parties without whom no judgment could be entered

determining issues. The debt is principal thing and must be established; the foreclosure of lien

is but collateral. Rosina v. Trowbridge, 20 Nev. 112; Orr v. Ulyatt, 23 Nev. 134; Missoula

Mer. Co. v. O'Donnell, 60 Pac. 597.

Notice of nonliability having been posted in conspicuous place, filed and recorded, there

can be no claim of lien against defendant. Stats. 1917, 435. “Conspicuous” means easily

discernible. Williams v. C.R. Co., 88 N.Y. Sup. 434; Ogglesby Co. v. Lindsay, 72 S.E. 672.

This case is distinguished from Verdi Co. v. Bartlett, 40 Nev. 317, since in that case

material was furnished to contractor and used on premises. Bray does not come within class

of “other persons having charge or control” in lien law. Ejusdem generis, 19 Cyc. 1255.

Corresponding statute of California makes lessee agent. Kerr, C.C.P. sec. 1183. Posting

notice will relieve against claim or lien for improvement made by one not acting in capacity

of agent. Belnap v. Condon, 23 L.R.A. (N.S.) 601; Rosina v. Trowbridge, supra.


What is purpose of section 9 if owner cannot be relieved? If lessee is agent of owner, why

did not legislature say so?

Claims of cook and cook's helper are not lienable. Their employment by lessees is not

shown to have been authorized by defendant.

Jos. D. Murphy and Ryland G. Taylor, for Respondent:

Defense that property was leased to lessees is without merit, since defendant had

knowledge that work was performed and improvements made. Rev. Laws, 2213; Gould v.

Wise, 18 Nev. 256; Phillips v. Snowden, 40 Nev. 66.

Lease gave lessors supervision and control of workings and right to direct expenditures of

money. Under such conditions lessees were agents. Rev. Laws, 2213.

Defendant knowingly received benefits of work and improvements. It is unjust to say that

if service could not be had on agent owner could escape payment for benefits because it could

not be sued except jointly with agent. Lamb v. Lucky Boy Mng. Co., 37 Nev. 9.

Foreclosure of lien is action in rem. Statute does not require joinder of parties. Party legally

liable must pay if summoned. Rev. Laws, 2227, 5243, 5031.

Even in California practice of joining contractor is only commended, not held mandatory.

Giant Powder Co. v. Flume Co., 78 Cal. 193, cited in Kerr, C.C.P. sec. 1183, n. 89. In this

case, Bray was duly authorized agent, not contractor. We do not claim he is personally liable,

as contractor or otherwise. However, while contractor is proper, he is not necessary party.

Defendant should have moved for joinder, if he so desired. Fresno etc. Co. v. Manning, 130

P. 196; Yancy v. Morton, 29 P. 1111. It is not necessary that personal judgment be had

against contractor. Russ Co. v. Garrettson, 25 P. 747. Materialman is not required to sue

contractor jointly with owner. Wilder's Sons v. Walker, 25 S.E. 571.

Where no judgment is demanded against principal contractor in such proceeding he is not

necessary party.


Hubbard v. Moore, 31 N.E. 534; McDonald v. Backus, 45 Cal. 262.

Owner's property is liable for materials furnished for erection of house at instance of his

statutory agent. Verdi Lumber Co. v. Bartlett, 40 Nev. 317.

Objection to nonjoinder should have been raised by demurrer. By going to trial and

concluding case without such objection by demurrer, defendant is now estopped. Rev. Laws,

5040; Yancy v. Morton, supra.

Notice of nonliability must be posted within three days after owner has notice of

commencement of work, and in conspicuous place, which was not done in this case. Owner

must bring himself squarely within provisions of statute. Rosina v. Trowbridge, 20 Nev. 106;

Evans v. Judson, 52 P. 585. Blam Mechanics' Liens, 445; Phillips v. Snowden, 40 Nev. 66.

OPINION

By the Court, Ducker, J.:

Respondent instituted this action in his own behalf and as assignee of several others to

foreclose liens for labor performed by them upon the mining property of appellant, situated in

Nye County, while the said property was under the charge of one Elmer M. Bray. The mining

property belonging to respondent, together with the mill and equipment contained therein,

situated on said property, all of which is sought to be charged with the several liens, the

operation of the same by said Bray for and on behalf of the appellant as its agent, the work

done upon the property by the several lien claimants by agreement with Bray and the value

thereof, the filing and recording of their liens as required by law, the expense incident to

making, verifying, filing, and recording the liens, and the assignment of the liens of the other

lien claimants to respondent prior to the commencement of the suit, are all formally alleged in

the amended complaint. It is also alleged that the appellant did not post notices that it would

not be responsible for said labor at some conspicuous place on the property, as ��


required by law. The sum of $1,500 is claimed as a reasonable attorney fee in the prosecution

of the suit.

All of the material allegations of the amended complaint are denied in the answer, except

the ownership of the property sought to be charged with the liens, and the filing and recording

of the liens.

For a first and separate defense it is alleged that appellant, on the 5th day of April, 1921,

leased the property to said Elmer M. Bray and one Jay A. Carpenter; that thereafter, on or

about the 23d day of November, 1921, a supplemental lease was entered into by appellant,

Bray, and one B.F. Miller, Jr., by the terms of which Miller succeeded to the interest of

Carpenter in the original lease; that at all times subsequent thereto said Bray and Miller were

in the possession of the property and operating the same under and by virtue of said lease and

agreement. A copy of both agreements are attached to and made a part of this defense. It is

further alleged in this defense that, if any labor was performed on the property by the several

lien claimants, it was under contract with and at the instance and request of Bray and Miller

as lessees of the premises, and not for or on behalf of appellant, or its agents; that neither said

Bray nor Miller were at any time the agent or agents of the appellant, or authorized to contract

for any of the alleged labor on its behalf.

It is also alleged that, on the 14th day of September, 1922, appellant posted a nonliability

notice in a conspicuous place upon the property, and within five days thereafter filed a

duplicate original of the same with the county recorder, together with the affidavit attached

showing such posting.

As a further, second, and separate defense it is alleged that said Bray and Miller are and

each of them is the party primarily responsible for the contract of employment and the

performance of labor alleged, and should have been made parties to the action; that under and

by virtue of the laws of the State of Nevada actions for the foreclosure of liens by mechanics

and others must be commenced within six months after the filing of the � �� !��


claims of lien; that more than six months have expired since the filing of the claims in the

action, and that no action can now be maintained for the foreclosure of the liens against Bray

and Miller; and that by reason of the failure to join said Bray and Miller as parties defendants

this action cannot be maintained.

On the trial of the case, as substantially stated by the district judge in his written decision,

evidence was offered in support of all the lien claims, showing the time the work, was

performed, where it was performed, the amounts due on each claim; that all of the lien

claimants were employed by Bray; that Miller was not known to any of them, and that, so far

as they knew, he had nothing to do with the property; that no notice of nonliability was posted

as required by law. The defendant offered no evidence to disprove any of these facts, except

that Bray and Miller were lessees, and offered the lease in evidence to support this

contention; also that a nonliability notice was posted in one place upon the property, to wit,

the office or residence building occupied by Bray and his family.

Judgment was entered in favor of respondent for the amount of eight of the claims,

together with cost of preparing, filing, and recording the liens therefor, and for attorney's fee

and foreclosure decreed against the property. Personal judgment was rendered for two of the

claims held not lienable. This appeal is taken from the judgment and decree, and from the

order denying a motion for a new trial.

Many errors are assigned, but in their brief and argument counsel for appellant have

confined their discussion of errors to four contentions. It is contended: (1) That Bray and

Miller were necessary and indispensable parties, without whom no judgment or decree could

be entered determining the issues of the cause; (2) that, notice of nonliability having been

posted in a conspicuous place and property filed and recorded, there can be no claim of lien

against the defendant; (3) that there is no evidence that Bray was an agent of the defendant

corporation; and (4) that the court erred in �� !��


entering personal judgment against the defendant on the sixth and eighth causes of action.

A section of the lien laws involved reads:

“* * * And all miners, laborers and others who work or labor to the amount of five (5)

dollars or more in or upon any mine, or upon any shaft, tunnel, adit, or other excavation,

designed or used for the purpose of prospecting, draining or working any such mine; and all

persons who shall furnish any timber or other material, of the value of five (5) dollars or

more, to be used in or about any such mine, whether done or furnished at the instance of the

owner of such mine or his agent, shall have, and may each respectively claim and hold, a lien

upon such mine for the amount and value of the work or labor so performed, or material

furnished; and every contractor, subcontractor, architect, builder, or other persons, having

charge or control of any mining claim, or any part thereof, or of the construction, alteration or

repair, either in whole or in part, of any building or other improvement, as aforesaid, shall be

held to be the agent of the owner, for the purposes of this chapter.” Section 2213, Rev. Laws,

1912.

1. It may be stated as a general rule that a lessee contracting for the improvements upon

demised premises does not merely, by virtue of his relation as lessee, contract as the agent of

the lessor so as to subject the property to mechanics' liens therefor. 20 Am. & Eng. Ency. of

Law, p. 319, and cases cited in note 1, p. 318. The statute quoted above does not make any

innovation in this rule by either expressly or indirectly making a lessee the agent of the

owner. The words “other persons” employed in the statute following the specific naming of

classes of persons who are to be deemed agents of the owner for the purposes of the lien

chapter must, under the well-known rule of “ejusdem generis,” be held to refer to persons of a

class analogous to those specified, and, so construed, cannot be held to include lessees. In

fact, the clause of the statute specifying the persons who are to be held the agents of the

owner has been construed by this court as not including a lessee.


Gould v. Wise, 18 Nev. 253, 3. P. 30. In that case one Torrey, who was in the possession of a

written lease of reduction works and the land upon which they were situated, belonging to a

corporation, was furnished materials and labor which were used in repairing and carrying on

the mill. The question was whether Torrey, the lessee, could create a lien upon the premises

that would affect the estate of the lessor. In deciding this question the court, after quoting

portions of section 1 of the lien laws, including the clause under consideration, said:

“It may be conceded for the purposes of this case, that to authorize a lien there must be an

employment by the owner of the building, or his authorized agent, and that an employment by

a lessee does not constitute the employment contemplated by the statute; and, further, that to

constitute the contractor, subcontractor, architect, builder, or other person the statutory agent

of the owner, such person must have been employed, directly or indirectly, at the instance of

the owner, or his conventional agent.”

So far as the opinion in the foregoing case discloses, Torrey was a mere lessee without any

other contractual relations with the owner of the reduction works. And it is to be observed

that the court, in holding that an employment by the lessee does not constitute the

employment contemplated by the statute, confined its statement of the law strictly to the facts

of the case.

2. In the instant case the evidence discloses that Bray's relations to the appellant bore other

characteristics than those of a mere lessee. The evidence in this regard consists mainly of the

instrument denominated a lease and agreement, referred to and made a part of appellant's

answer and introduced in evidence in its defense. But we do not deem it necessary to

determine whether this instrument, in addition to being a lease of the property, was also, in

effect, such a contract concerning it as to make Bray the statutory agent of the appellant

within the contemplation of section 2213, for the reason that we have reached the conclusion

that ��


there was no nonliability notice posted upon the property as required by law. Such being the

case, the property became subject to the liens for work done upon it contracted for by Bray by

virtue of section 9 of the lien laws, as amended Stats. 1917, c. 232, sec. 1, even if in

contracting for such work he was not appellant's agent in fact or its statutory agent. Gould v.

Wise, supra; Rosina v. Trowbridge, 20 Nev. 105, 17 P. 751; Lamb v. Lucky Boy M. Co., 37

Nev. 9, 138 P. 902. This section reads:

“Every building or other improvement mentioned in section 1 of this act, constructed upon

any lands with the knowledge of the owner or the person having or claiming any interest

therein, shall be held to have been constructed at the instance of such owner or person having

or claiming any interest therein, and the interest owned or claimed shall be subject to any lien

filed in accordance with the provisions of this chapter, unless such owner or person having or

claiming an interest therein shall, within three days after he shall have obtained knowledge of

the construction, alteration or repair, * * * give notice that he will not be responsible for the

same, by posting a notice in writing to that effect in some conspicuous place upon said land,

or upon the building or other improvement situate thereon, and also shall, within five days

after such posting, file a duplicate original of such posted notice with the recorder of the

county where said land or building is situated, together with an affidavit attached thereto

showing such posting of the original notice. Such filing shall be prima facie evidence of said

posting.”

In the cases cited no notice was posted. In the instant case a nonliability notice was posted

by the appellant upon its property where the mining operations were carried on by Bray, but

not in the place contemplated by the statute. The obvious purpose of the requirement is to

give actual notice to workmen or materialmen that the owner of the property disclaims

responsibility for liens upon it for their services or supplies (Phillips v. Snowden Placer Co.,

40 Nev. 66-85, 160 P. 786), and, ��


unless the place where such notice is posted is one reasonably calculated to impart such

information to them, it cannot be said to be conspicuous within the meaning and purpose of

the statute.

Mr. Wicks, an agent of the appellant, testified that he posted a nonliability notice on its

property on September 14, 1922; that the notice was posted on the building used by Bray as a

home and office, and at the side of the main entrance; that he left the property on the

following day, and did not visit it again until January 28, 1923, when he went to the office

and found that the notice he had posted in September still remained posted. It was also proved

by Mr. Wicks that he filed a copy of the notice with the county recorder. The evidence shows

that this notice did not come to the attention of any of the lien claimants. This, however, was

not essential, providing the place of posting was reasonably adapted to accomplish that effect.

The evidence shows that the building on which the notice was posted was used by Bray as

an office and was also his home. He resided there with his wife and children. It was situated

about 40 feet from the nearest trail traveled by the workmen in going from the bunkhouses to

their places of work, and to the boarding house, and in returning. The nearest bunkhouse was

about 100 yards from the office, and the nearest places of work—the main tunnel and the

blacksmith shop—were several hundred yards from the office. The mill was twice that

distance, and the boarding house still further away. It is conceded that no notice of

nonliability was posted at the bunkhouses, boarding house, mill, tunnel, blacksmith shop, or

other place where men worked; appellant relying upon the notice posted at the office as a

sufficient compliance with the statute.

Several of the lien claimants saw a semimonthly pay day notice at the mouth of the tunnel,

but none of them saw a nonliability notice at any place. It appears that the employees had no

occasion to go to the office to get their pay; that Bray gave them their checks either at the

bunkhouse or where they were working.


It appears from the testimony of respondent's witnesses that one of them went to the office

building three times; twice after dark, when he and his wife were invited to spend the

evening, and once in the daytime, when Bray called him to talk over some business; that one

of the witnesses and his wife visited there on several evenings; and that another of the

witnesses was there three times, once in the night and twice in the daytime. Other than in

these instances, so far as the record discloses, none of the lien claimants were at the house or

any nearer than the trail leading by it. That the notice could not be readily seen from the trail

leading by the house by one who did not know it was there is fairly deducible from the

evidence. That it could not be read by one standing in the trail was established by the

evidence.

The court found that the notice was not posted in a conspicuous place, and we are of the

opinion that the evidence would admit of no other finding. A place where workmen had no

business to go, and where otherwise they would be unlikely to go on account of the place

being the home of the family, cannot, in the absence of evidence showing that they did

nevertheless frequent the place, be held to be a conspicuous spot for giving notice to them.

The location was ideal for giving notice to Bray, but was unlikely to impart notice to his

employees.

As the nonliability notice was not posted in a conspicuous place on the mining property,

within the meaning of the law, it follows that, under the provisions of section 2221, if the

appellant had knowledge that the work was being done, it must be held to have been

performed at the instance of the owner of the property. Gould v. Wise, supra. See, also,

Rosina v. Trowbridge, 20 Nev. 105, 17 P. 751.

The evidence discloses that appellant had such knowledge, and appellant makes no

contention to the contrary.

3. Appellant complains that Bray, who contracted for the employment of the lien

claimants, was not made a party defendant to the action, and asserts that he was ��


a proper necessary, and indispensable party. We see no real ground for this contention. The

lien laws of this state do not, as in some states, either expressly or by necessary implication,

require the contractor to be made a party defendant. The laborer or materialman is given the

right to sue the owner of the property directly to enforce his lien if the contractor or other

person named is the statutory agent of the owner, or, not being the agent of the owner, the

work was done or material furnished with his knowledge, and no nonliability notice was

published as required by law. The action was brought against appellant under the provisions

of the statute to enforce the liens against its property, and no personal judgment is sought

against Bray. The law applicable to the facts of this case regards the services of the lien

claimants as having been furnished at the instance of the owner. How, then, can appellant's

right be said to be affected by the nonjoinder of Bray, or even that he is a necessary party to a

complete determination of the action?

It is urged that Bray contracted for the work and is the debtor, and that the existence of the

debt is the principal issue, and cannot be determined without the presence of the debtor as a

party defendant. Authority is cited to this rule, but we do not see the logic of it when a

complete remedy is given to the lien claimants against the property of the owner, and when,

as in this case, such remedy has been exclusively sought, and the evidence establishes without

conflict the amount and value of the services of the various lien claimants. True, the debt

must be established, else the lien claimant would fail to establish his right to have his lien

enforced, but why the contractor must be made a party to ascertain it in all cases is not

discernible. If there is any reason existing why, in any case, a contractor should be made a

party, he may be made a party under the general rules of practice. Hubbard v. Moore, 132 Ind.

178, 31 N.E. 534.

We hold that, under the facts of this case, Bray was not a necessary party defendant. On

the question of ��"� �� !��


whether, in an action to enforce a mechanic's lien, the contractor is a necessary party the

authorities are not harmonious, which is due in a large measure to the variant statutes on the

subject. Among the cases holding that the contractor is not a necessary party are Green v.

Clifford, 94 Cal. 49, 29 P. 331; Yancy v. Morton, 94 Cal. 558, 29 P. 1111; Wood v. Oakland,

etc., Transit Co., 107 Cal. 500, 40 P. 806; Hubbard v. Moore, supra; Burgi v. Rudgers, 20

S.D. 646, 108 N.W. 253; Wilder's Sons Co. v. Walker, 98 Ga. 508, 25 S.E. 571.

4. Among the causes of action set out in the amended complaint are one for services as a

cook, and one for services for a cook's helper. The trial court held that these claims were not

lienable, but gave a personal judgment for them against the appellant. The claims are not such

as to entitle the claimants to a lien against the appellant's property. Holtzman v. Bennett

(Nev.) 229 P. 1095. The general theory upon which liens to laborers, mechanics, and

materialmen are given is that by the labor, or use of the material, the property has been

enhanced in value. This theory finds expression in section 2213, supra. The services

performed by the cook and the cook's helper are not of the nature of those embraced in the

statute.

5. It was error, however, for the court to render a personal judgment against the appellant

for these services. There is no evidence to show that in contracting for their services Bray was

acting as the agent in fact for the appellant, thus rendering it personally liable upon the

general principles of law. If he was the statutory agent, the effect of his acts in employing

labor could only operate to charge appellant's property with a lien for such services as were of

a lienable character, and could not charge appellant with any personal liability.

As to these two last-mentioned causes of action the judgment is reversed, and it is affirmed

in all other respects.

On Petition for Rehearing

September 12, 1925.

Per Curiam:

Rehearing denied.

____________

��49 Nev. 18, 18 (1925) Confer v. District Court��

CONFER v. DISTRICT COURT

No. 2688

April 6, 1925. 234 P. 688.

1. Process—To Obtain Legal Service by Publication, Complaint Must State Good Cause of

Action.

Under Civil Practice Act, sec. 84, as amended by Stats. 1923, c. 158, to obtain legal service by

publication against nonresident, complaint must state good cause of action to satisfaction of court.

2. Divorce—Attack on Decree for Want of Jurisdiction Too Late, where Petitioner Knew all

the Facts Before Decree. Where defendant in divorce action denied jurisdiction only on information and belief that necessary

residence of plaintiff had not been established, attack on decree on those grounds held too late, where all

facts were known before decree.

3. Divorce—Decree May Be Annulled Only for Fraud which is Extrinsic or Collateral. Decree of divorce may be annulled only for fraud which is extrinsic or collateral to matter tried by

court, and not fraud in matter on which judgment was rendered.

4. Divorce—Fraud as to Residence, being Jurisdictional Fact, Not Available to Annul

Decree. Fraud in alleging or establishing required residence in divorce action, being a jurisdictional fact, held

not available to annul decree.

See (1) 32 Cyc. p. 475, n. 3, p. 477, n. 13; (2, 3, 4) 19 C.J. sec. 415, p. 166, n. 28; sec. 438, p. 176, n. 75; 34 C.J.

sec. 496, p. 280, n. 96.

Original proceeding in mandamus by Emma E. Confer against the Second Judicial District

Court of the State of Nevada, in and for county of Washoe, and George A. Bartlett, Judge of

said court, to show cause why he should not be compelled to grant order directing service of

summons on verified complaint. Proceeding dismissed. Rehearing denied.

Frame & Raffetto, for Relator:

In action for divorce, being proceeding in rem, and res of action being status of parties, in

order to transfer res to jurisdiction other than matrimonial domicile it is necessary that there

be abandonment of that domicile with concurrence of act and intention in establishment of

actual, bona fide, and permanent domicile in foreign !��


jurisdiction. Presson v. Presson, 38 Nev. 203; Aspinwall v. Aspinwall, 40 Nev. 55.

Where jurisdiction is lacking by reason of want of domicile of at least one of parties in

foreign jurisdiction decree is nullity, and jurisdiction will always be inquired into, even in

collateral proceedings, as such decree is void ab initio. Andrews v. Andrews, 188 U.S. 187;

Haddock v. Haddock, 201 U.S. 562; Atherton v. Atherton, 181 U.S. 155; Sneed v. Sneed, 123

Pac. 212.

Jurisdiction can never be conferred by consent, waiver, estoppel, or laches. Ex Parte

Gardner, 22 Nev. 281; Andrews v. Andrews, supra.

Appearance of party in foreign jurisdiction does not operate to confer jurisdiction over

subject matter. Cases cited supra.

Judgment may in proper cases be set aside for fraud, inadvertence, where judgment was

improvidently rendered, by court of its own motion, by proper motion, and by independent

action. People ex. rel. Swartz v. Temple, 37 P. 415; Stimson v. District Court, 47 Nev. 156.

It is duty of court, on suggestion of fraud, to investigate and purge record of judgment, if

fraudulent. Pringle v. Pringle, 104 P. 135; Cottrell v. Cottrell, 23 P. 531.

It must be borne in mind that there is a distinction between judgments which are void

because of lack of jurisdiction of subject matter, and those in which court does not possess

jurisdiction over the subject matter or parties and which may be set aside on ground of

extrinsic or collateral fraud. In latter class, want of jurisdiction over subject matter invalidates

judgment.

S.W. Belford, Samuel Platt, and E.F. Lunsford, for Respondents:

Whole case may be reduced to one question, may decree be impeached for fraud appearing

de hors the record by showing prevailing party testified falsely to material facts establishing

residence?

This court has repeatedly held that the question of ��


residence of plaintiff in divorce action is one of fact to be determined by trial court. Fleming

v. Fleming, 36 Nev. 135; Presson v. Presson, 38 Nev. 203; Blakeslee v. Blakeslee, 41 Nev.

235. It follows that before court could have entered decree in favor of plaintiff it must have

found as fact contrary to allegation of complaint in instant proceeding. Court having so found,

question then arises whether or not same matter may be again investigated. Complaint

nowhere alleges that any facts were concealed by plaintiff in divorce action, but it is simply

alleged generally that his divorce complaint contained false allegations as to residence and

that he gave false testimony thereof. Neither is it anywhere alleged that defendant in divorce

action was imposed upon or prevented from showing facts now alleged, with but one

exception, that plaintiff left jurisdiction immediately after decree was entered and never

returned. This is not newly discovered evidence which would affect material issues of case

but could be considered only as impeachment by inference. Whise v. Whise, 36 Nev. 16.

Allegation of departure after decree is not sufficient to vitiate decree, but argues only falsity

of residence.

Motion to set aside divorce based on finding of residence supported by evidence cannot

prevail on ground that plaintiff departed immediately after decree was rendered, thereby

indicating testimony as to residence was false. Reeves v. Reeves, 123 N.W. 869.

It follows that matters now set up are not extrinsic or collateral to matters determined by

trial court, and such matters are now res adjudicata as to parties. 19 C.J. 167.

To vitiate decree, fraud must be actual, and extrinsic or collateral as distinguished from

judgment obtained on false evidence. Reeves v. Reeves, supra; Lieber v. Lieber, 143 S.W.

458; Orr v. Orr, 146 Pac. 964; U.S. v. Throckmorton, 98 U.S. 61; Friese v. Hemmel, 37 Pac.

458; Greene v. Greene, 2 Gray, 361; Graves v. Graves, 10 L.R.A. (N.S.) 216.

To entitle party to relief in equity perjury or fraud ��


must consist of extrinsic facts not examined in former action. Moor v. Moor, 63 S.W. 347.

To contention that there was entire absence of animus manendi on part of plaintiff and for

that reason court was without jurisdiction, it is sufficient answer that question of domicile

was before court for determination as question of fact and involved consideration of animus

manendi as element of domicile. Reeves v. Reeves, supra; Bishop on Divorce, sec. 1577.

OPINION

By the Court, Sanders, J.:

An alternative writ of mandamus was issued out of this court at the instance of Emma E.

Confer, directed to the respondent court and to Hon. George A. Bartlett, as judge thereof,

commanding him to show cause before this court at the time specified in the writ why he

should not be compelled to grant an order directing that service of a summons issued upon a

verified complaint on file in said respondent court be made by the publication thereof.

1. To obtain legal service by publication of a summons against a nonresident, it must

appear by affidavit to the satisfaction of the court or judge, not only the defendant is a

nonresident, but also, either by affidavit or by a verified complaint on file, that a cause of

action exists against the defendant in respect to whom the service is to be made. Section 84,

civil practice act (section 5026, Revised Laws), as amended by Statutes 1923, p. 275. This

provision has been interpreted to mean that the probative facts set out in the affidavit or

complaint must be sufficient to justify the court in being satisfied that the ultimate facts

required by the statute exist. Victor M. & M. Co. v. Justice Court, 18 Nev. 21, 1 P. 831. That

is to say, in this instance, the complaint on file must state a valid cause of action in equity to

entitle the plaintiff (petitioner herein) to have summons issued and served by publication. The

undisputed facts, in brief, are as follows: #�$��%�&&�'��(�


In October, 1922, Nathan A. Confer commenced an action in the district court for Washoe

County against Emma E. Confer for a divorce on the ground of cruelty, alleging residence in

Washoe County for six months before the filing of the complaint. Process and a copy of the

complaint were served personally on the defendant at her place of residence in the State of

Pennsylvania. She came to Nevada, appeared, and put in an answer, in which she denied,

upon her information and belief, the allegation respecting plaintiff's residence, and denied all

charges against her, and in her answer, by way of cross-complaint, set up the desertion of her

by the plaintiff, and demanded judgment for divorce against him upon the ground of

desertion, and asked for suit money and attorney's fees. The plaintiff filed an answer to the

cross-allegation, and, after a full hearing upon the pleadings and evidence, the court, George

A. Bartlett, judge presiding, found all the allegations of the complaint, including that of

residence, to be true, and on the 18th day of July, 1923, rendered a decree of divorce in favor

of the plaintiff and against the defendant. The divorce proceedings are perfectly regular and

valid upon their face.

On the 30th day of October, 1924, Emma E. Confer filed a complaint in the same court

against Nathan A. Confer, claiming that the court was without jurisdiction, for want of

residence on the part of Nathan A. Confer, to render the decree of divorce, in this: That

Nathan A. Confer left the marital domicile of the parties in the State of Pennsylvania and

came to the city of Reno, Washoe County, Nevada, for the sole purpose of obtaining a

divorce, and without any intention of making that place his bona fide home and domicile, and

for the purpose of inducing said district court to assume jurisdiction of his action for a

divorce he falsely represented in his verified complaint that he was a bona fide resident of

Washoe County, and had been for six months prior to the filing of his complaint, and to

obtain a divorce he falsely testified as a witness in his own behalf upon the trial that he came

to Reno, Washoe )��'�� *��)��


County, Nevada, with the intention of making that place his bona fide home and domicile,

when in truth and in fact his residence in Washoe County was merely colorable, and was

assumed for the sole purpose of procuring a divorce. In this connection it is alleged that the

plaintiff, on coming to Nevada, left all his personal and real property, including money in

banks, intact in the State of Pennsylvania, and brought with him only such personal effects as

were necessary to satisfy his immediate wants during his temporary sojourn in Nevada; that

during his stay in the city of Reno he lived at a hotel in company with his married daughter,

who came with him from Pennsylvania to Nevada; that the plaintiff was 78 years of age; that

upon obtaining his decree of divorce he immediately returned to his home domicile and

residence in Pennsylvania, which he never abandoned, and had no intention of abandoning

when he came to Reno for the purpose of obtaining a divorce, and where he now resides.

The plaintiff further alleged that as a part of the judgment for divorce it was adjudged that

there was no community property, and that by virtue thereof the plaintiff was deprived of her

dower interest in property of Nathan A. Confer, of the approximate value of $100,000. The

complaint alleges that by reason of the false and fraudulent representations and the perjured

testimony of the plaintiff the district court was without jurisdiction, for want of residence, to

render the decree of divorce of July 18, 1923, and the plaintiff prayed judgment that said

decree be vacated and annulled. Upon the filing of her complaint the plaintiff applied to the

respondent court for an order that the service of the summons thereon be made by

publication. The court refused to grant the order; hence this proceeding in mandamus.

2. Nathan A. Confer may have practiced a fraud upon the law and the court, but certainly

not upon Emma E. Confer. She was not deceived by the allegation of residence, neither was

she an innocent party. The plaintiff alleged the required residence to give the ��!��!��


court jurisdiction of the subject matter of the action. 9 California Jurisprudence, 694. The

allegation of residence was denied by the defendant (petitioner), upon her information and

belief. No one, except the plaintiff, knew better that the defendant, petitioner herein, whether

the allegation was true or not. The obligation devolved upon her to give the court all the

information which she now shows she possessed concerning the fact of the plaintiff's

residence. Her present solicitude for the protection of the court's jurisdiction in the divorce

action comes too late. The petitioner not being an innocent party, that numerous class of cases

cited by her counsel wherein innocent parties, against whom courts without jurisdiction, for

want of residence, have rendered decrees of divorce, were granted relief in both direct and

collateral proceedings, are not in point.

It is argued on the part of petitioner that, where a judgment for divorce is obtained by fraud

practiced upon the law and the court, it is the duty of the judge rendering the decree to

promptly make such inquiry and finding as to the allegations of fraud as will protect and

preserve the integrity of his decree, and this without reference to the relative rights of the

parties. This is indeed a high-minded position to take, but, unfortunately, the fraud of which

the petitioner complains was that practiced upon the court in an action to which she was a

party and an actor.

3. The power of a court of equity to grant relief from a judgment obtained by fraud is

inherent, but not every fraud committed in the course of a judicial determination will furnish

ground for such relief. The acts for which a judgment or decree may be set aside or annulled

have reference only to fraud which is extrinsic or collateral to the matter tried by the court,

and not to fraud in the matter on which the judgment was rendered. 15 R.C.L. 762. The rule

applies to a divorce action to the same extent, at least, as to any other judgment or decree.

Clark v. Clark, 64 Mont. 386, 210 P. 93, and cases cited.

4. Assuming for the sake of the argument, and the �� ) ��) �� "�� !�� !��


argument only, as was done by the court in the case of Clark v. Clark, supra, that the

allegation in the complaint for divorce respecting residence was untrue, and that the plaintiff's

testimony in support of it was false, we are confronted with the question whether the

judgment for divorce should be set aside upon the sole ground that an allegation in the

complaint necessary to support the judgment was proved by false testimony. We are of the

opinion that the fraud being in respect to the very matter on which the judgment for divorce

was rendered the judgment under the rule stated cannot be set aside. Clark v. Clark, supra;

Orr v. Orr, 144 P. 753, 146 P. 964. The required residence of the plaintiff in a divorce action

is a jurisdictional fact, and must appear to warrant a divorce. The allegation of residence

stands upon the same footing as any other allegation of fact showing the right to a divorce.

Walker v. Walker, 45 Nev. 105, 198 P. 433; Blakeslee v. Blakeslee, 41 Nev. 243, 168 P. 950;

Dahne v. Superior Court, 31 Cal. App. 664, 161 P. 280. The case of McKim v. District Court,

33 Nev. 44, 110 P. 4, is authority for the proposition that a question as to the sufficiency of

the evidence to establish residence upon the part of the complainant in a divorce proceeding

must be taken by appeal, and not by original proceeding.

We think that by the plainest principles of equity the petitioner is, under all the

circumstances, precluded from maintaining her action to annul the decree of divorce upon the

sole ground that the allegation in the complaint necessary to support the judgment was proved

by false testimony. Her complaint does not, therefore, state a valid cause of action in equity,

and for this reason we decline to compel the respondent judge to make an order directing that

the summons issued upon such complaint be made by the publication thereof.

The proceeding is dismissed.



June 18, 1925. 236 P. 1097.

1. Divorce—Decree Granted Plaintiff, Residing in State for Six Months, Not Annulled for

Fraud on Court's Jurisdiction.

Divorce decree obtained by plaintiff after six months' residence in state, as required

by statute, will not be annulled for fraud on jurisdiction of court, at suit of defendant

who appeared in the action and had knowledge as to facts of residence before decree.

2. Divorce—Findings as to Plaintiff's Residence Conclusive.

Findings as to plaintiff's residence, which is jurisdictional fact in divorce action, are

as conclusive as on any other fact issue in case.

3. Divorce—Plaintiff's Return to State of Former Residence after Obtaining Divorce Not

Ground for Annulment.

Statute requiring six months' residence to obtain a divorce does not require that bona

fide resident for such period before filing complaint reside in state for any specified

time, and mere showing that he returned to state of former residence after obtaining

divorce does not warrant annulment of decree, but is material only on question of

intention to become resident of county in which suit was brought.

See 19 C.J. sec. 414, p. 166, n. 20 (new); sec. 415, p. 167, n. 31 (new); sec. 436, p. 175, n. 66.

On petition for rehearing. Rehearing denied.

OPINION


We shall supplement the statement of the facts in order that there may be no

misunderstanding of the questions of law presented in argument for a rehearing.

In October, 1922, Nathan A. Confer commenced an action in the district court for Washoe

County against Emma E. Confer for a divorce, upon the ground of extreme cruelty, alleging

residence in that county for a period of six months before the filing of his complaint.

Summons and copy of the complaint were served personally on the defendant at her place of

residence in Pennsylvania. She came to Reno, Washoe County, Nevada, in response to said

summons, appeared in the action, and filed an answer to the complaint.


Subsequently she filed an amended answer, in which she alleged, in paragraph II thereof, as

follows:

“Answering the allegations contained in paragraph II of plaintiff's complaint, defendant

alleges that she has no knowledge of the matters and things in said paragraph alleged, and

denies the same upon information and belief, and in this connection defendant avers that

plaintiff, on or about the 18th day of April, 1922, without any cause or provocation upon her

part, and without informing defendant of his purpose, suddenly and mysteriously left the

home of plaintiff and defendant in the borough of Hamburg, county of Berks, State of

Pennsylvania, and that plaintiff's whereabouts remained unknown to defendant until service

of process in the above-entitled action was made upon her in the State of Pennsylvania, on or

about the 31st day of October, 1922.”

Paragraph II of the complaint reads as follows:

“That the plaintiff is now, was, and has been an actual resident of the city of Reno, county

of Washoe, State of Nevada, for the period of more than six months immediately preceding

the commencement of this action.”

In her answer, the defendant admitted and denied portions of the complaint, and for further

and separate defense, and by way of cross-complaint, alleged, in substance, that the plaintiff,

on or about the 18th day of April, 1922, without justifiable cause, willfully and without the

consent of the defendant, and against her will, deserted the defendant. She alleged that

plaintiff was the owner of property, consisting of real estate in the States of Pennsylvania and

New Jersey, of the approximate value of $95,000, and was the owner of personal property of

the approximate value of $25,000. She alleged that she was without any means of support,

excepting the sum of $1,500 invested in Liberty bonds, and had no income excepting the

interest received from said bonds; that the sum of $250 was a reasonable sum to be allowed

and paid monthly by the plaintiff to the defendant for her permanent support and

maintenance. The defendant prayed judgment that the plaintiff take ��

��!�� +&,�� !��


nothing by his action, and that the defendant have judgment against the plaintiff for the sum

of $250 per month as and for her separate maintenance and support, and for such other and

further equitable relief as might be just and equitable in the premises. The plaintiff made

reply to the answer and cross-complaint. After a hearing upon the pleadings and evidence, the

trial court found, among other of its findings, as follows:

“The court further finds that plaintiff is now, was, and has been an actual resident of the

city of Reno, county of Washoe, State of Nevada, for a period of more than six months

immediately preceding the commencement of this action, and that plaintiff for more than six

months next before filing his complaint, and before the commencement of said action, was

physically and corporeally present in Washoe County, Nevada, in which county he had his

only home, place of residence, and domicile.”

Upon its findings of fact and conclusions of law, the court, on the 18th day of July, 1923,

rendered judgment in favor of the plaintiff for divorce, and adjudged and decreed that the

plaintiff pay to the defendant the sum of $50 per month for her permanent support and

maintenance and as alimony; the court reserving the right to increase or decrease said sum

upon proper application of either party.

In the answer of respondents, it is alleged and not denied that the said sum of $50 per

month has been paid to the defendant and accepted by her as permanent alimony in

accordance with said judgment and decree.

On the 30th day of October, 1924, Emma E. Confer filed suit against Nathan A. Confer in

the district court for Washoe County, to have the decree of divorce granted Nathan A. Confer

vacated and annulled. Upon her verified complaint and affidavit, setting forth the

nonresidence of the defendant, the plaintiff made application to the Honorable George A.

Bartlett, judge of said court, for an order for service of the summons by its publication. The

court declined to grant the order. Thereupon Emma E. Confer applied to this court ��


for and obtained an alternative writ of mandamus commanding the respondent court to make

said order, or show cause before this court why it had not done so.

In our former opinion, the action of the respondent, in refusing to grant the order, was

upheld, and the petition for the writ denied, upon the ground that the complaint of Emma E.

Confer did not state a valid cause of action in equity to annul said decree of divorce. The

question now presented for decision is, was our decision right or was it wrong? We shall not

reiterate the facts stated in the complaint to have the decree annulled, but refer to our opinion,

filed on April 6, 1925, and reported in 234 P. 688.

1. The substance of the argument in the petition for rehearing is that this court, in declining

it issue the writ of mandamus, has, in effect, decided that a nonresident who could not obtain

a divorce in the state of his real residence can establish a temporary residence in Nevada for

the period of six months and obtain a divorce against his nonresident wife. It is contended

that public policy and the vindication of the law of this state demand that our former decision

be righted, if for no other reason than to preserve the integrity of our courts, and thus suppress

the evil of granting divorces to those who come into this jurisdiction from all parts of the

glove for the sole purpose of obtaining them.

If there were anything in our former opinion, or in any prior opinion of this court, holding

or intimating that it is permissible under the law of this state for a person who could not

obtain a divorce in the state or country of his or her real residence to establish a temporary

residence in Nevada and obtain a divorce, we should gladly overrule the decision.

The object of the legislature in requiring a residence of six months in this state before a

divorce can be obtained is apparent. Its purpose it to prevent a fraud upon the law of the state

by nonresidents, and is in aid of restricting the dissolution of the marriage status except at the

suit of a resident of this state. Hiner v. Hiner, 153 Cal. 256, 94 P. 1044. Six months' residence��


stands upon the same footing in law as residence for any longer period required for divorce.

Residence within the meaning of the statute is discussed and defined in the following cases:

Fleming v. Fleming, 36 Nev. 135, 134 P. 445; Worthington v. District Court, 37 Nev. 214,

142 P. 230, L.R.A. 1916a, 696, Ann. Cas. 1916e, 1097; Presson v. Presson, 38 Nev. 203, 147

P. 1081; Aspinwall v. Aspinwall, 40 Nev. 55, 184 P. 810; Blakeslee v. Blakeslee, 41 Nev.

243, 168 P. 950; Walker v. Walker, 45 Nev. 105, 198 P. 433.

It is pointed out in argument that it is the duty of this court, in view of the decisions cited,

to construe the statute in respect to residence in divorce actions according to its own light,

and not be controlled by the decisions of other courts, criticizing in this connection the cases

cited in our opinion. Clark v. Clark, 64 Mont. 386, 210 P. 93, and Orr v. Orr, 75 Or. 137, 144

P. 753, 146 P. 964. We attribute the argument to counsels' misconception of the statute and

the point decided in our former opinion, namely, that fraud in alleging or establishing

required residence in a divorce action, being a jurisdictional fact, is not available to annul the

decree.

It is strenuously insisted that where residence constitutes the basis of jurisdiction, and

divorce is obtained by the commission of fraud upon the jurisdiction of the court, it is the

duty of the court to vindicate the statute in respect to residence in divorce actions as construed

and interpreted in the Nevada cases upon that subject. In answer to this proposition, it is

enough to say that the respondent court, in granting a divorce to Nathan A. Confer, actually

found that it had jurisdiction of the parties and the subject matter. While the evidence upon

which this finding was made is not before us, Nathan A. Confer must have satisfied the court

that he was a resident of Washoe County, and we cannot presume that the court failed of its

duty in respect to the facts pertaining to that issue.

2. In our former opinion it is pointed out that the allegations in the complaint for divorce in

regard to residence stand upon the same footing as any other � ��


allegation of facts showing the right to a divorce. 9 Cal. Jur. sec. 61, p. 695. Mrs. Confer

appeared in said action and contested her husband's right to a divorce, and sought affirmative

relief. More than a year after the entering of the decree, and after having presumably accepted

its benefits, she seeks to have the same annulled, upon the ground of fraud perpetrated by her

husband upon the jurisdiction of the court. We are of opinion that the authorities are

decidedly against the proposition, and that the courts cannot be used in that way. Residence

being a jurisdictional fact, the findings thereon are just as conclusive as findings upon any

other issue of fact in the case.

In the case of Crane v. Deacon (Mo. Sup.) 253 S.W. 1068, the court said:

“The finding of such facts is res adjudicata unless there is a difference between the finding

of jurisdictional facts and any other facts necessary to make out a case. The rule, to which we

can find no exception, is that, where it is necessary for a court to find certain facts in pais

which give it jurisdiction, the finding of such facts is res adjudicata between the parties, the

same as any other facts constituting a cause of action. The courts of this state, in a collateral

attack upon a judgment, have made no difference between the facts which confer jurisdiction

and any other facts to be determined in the case [citing cases]. Likewise there is no difference

in a direct attack upon a judgment between jurisdictional facts and other facts necessary to be

proven in support of the cause of action”—citing Bigelow on Estoppel (6th ed.) p. 177; 2

Black on Judgments, sec. 615.

Continuing, the court said:

“This court has applied that doctrine to decrees for divorce. In the case of Richardson v.

Stowe, 102 Mo. 33, 14 S.W. 810, a suit to set aside a decree of divorce, it was held that, if the

cause of action was vitiated by fraud, it is a defense which must be interposed, and, unless its

interposition is prevented by fraud, it cannot be asserted to avoid the judgment. This court in

that ��-.../0�� "1


case said: * * * ‘The decree of divorce was a final determination of every fact set out in the

petition in this case as a cause for its vacation, and was a complete answer to it.'”

Continuing, the court said:

“The alleged facts as to jurisdiction were in issue in the divorce case involved here. The

defendant was served with a copy of the petition; he appeared in court when the case was

tried; he employed an attorney to represent him; the facts were adjudicated by the court as

conclusively as any other facts in any case where issue is joined and determined by the court.”

The Supreme Court of Missouri has thus emphasized the conclusiveness of the finding of

the jurisdictional facts where the party affected had an opportunity to contest them at the trial.

The decision is in accord with our former opinion herein in respect to the decree being

vitiated by fraud.

It is argued, on the part of Mrs. Confer, that she alleged in her complaint to have the

decree annulled that she was without knowledge of the character of her husband's residence at

the time of trial; that she was ignorant of his bona fide intentions as to residence; that the

facts showing the falsity of the averment in his complaint as to residence were not known to

her at the time of trial—yet this court in the face of such averments, erroneously imputed to

Mrs. Confer knowledge of such facts, and, in effect, held that she was an actor in the fraud

perpetrated upon the court. We stated in the opinion that:

“The allegation of residence was denied by the defendant (petitioner), upon her

information and belief. No one, except the plaintiff, knew better than the defendant, petitioner

herein, whether the allegation was true or not. The obligation devolved upon her to give the

court all the information which she now shows she possessed concerning the fact of the

plaintiff's residence.”

It is not within the range of reason to assume that when Mrs. Confer denied the fact of

plaintiff's residence �� !��


upon information and belief she was not advised of what constituted residence, and that

residence was a jurisdictional fact to be established by clear and convincing proof. It certainly

devolved upon her to at least give the court the benefit of her information, and also the

grounds for her belief that Mr. Confer was not a resident of Washoe County. We adhere to

the statement made in our former opinion.

3. It is insisted that the demurrer to the petition for the writ of mandamus admits that

Nathan A. Confer came to Reno, Nevada, for the express purpose of obtaining a divorce, and

that, after establishing a temporary residence in a hotel in the city of Reno for the period of

six months, and after obtaining his decree of divorce, he immediately left Nevada and

returned to his real residence in the State of Pennsylvania. Hence it is argued that the doctrine

of extrinsic fraud has no application. The statute which prescribes six months' residence to

obtain a divorce does not require that the plaintiff reside in this state for any specified length

of time if he be a bona fide resident for the required period of six months prior to the filing of

the complaint. Nathan A. Confer had a legal right, in good faith, to change his place of

residence, and the mere showing that he returned to Pennsylvania instead of going to some

other state is, in view of his former residence in Pennsylvania, material only as tending to

throw light upon his intentions at the time he claimed to have become a resident of Washoe

County.

The court, in Holmes v. Holmes, 189 Iowa, 256, 176 N.W. 691, in commenting upon a

similar situation, said:

“The court passed upon the question of the good faith of her intentions in the divorce suit,

and held that she was a bona fide resident thereof. That she returned to Minneapolis and

resumed her former position, shortly after the decree was entered, may tend, to some extent,

to indicate that the purpose of her coming to Iowa was to obtain a divorce, but is wholly

insufficient alone to justify the court in setting aside the judgment for want �!��1


of jurisdiction to enter the same, or upon the ground of fraud.”

In Whise v. Whise, 36 Nev. 16, 131 P. 967, 44 L.R.A. (N.S.) 689, the court uses the

following language:

“The fact, if it be a fact, that Whise moved from the State of Nevada after the rendition of

a judgment and the filing of the decree, could not, we think, be considered as newly

discovered evidence that would affect the material issues of the case. Residence is a matter of

intention, and has been generally so held. Both parties to this action had submitted

themselves to the jurisdiction of the trial court, in which court there had been a trial and

determination of all the issues, and at the conclusion of the controversy either party had the

right to go wherever he or she saw fit.”

The facts stated in the petitioner's complaint impel us to the conclusion that the complaint

fails to state a cause of action to annul the decree of divorce for want of jurisdiction to enter

the same, or upon the ground of fraud.

We therefore deny the petition for rehearing, and adhere to our former opinion and

decision.

____________

��49 Nev. 35, 35 (1925) Robison v. Mathis��

ROBISON v. MATHIS

No. 2656

April 6, 1925. 234 P. 690.

1. Pleading—Demurrer for Uncertainty Waived by Answering. Right to rely on demurrer to complaint on ground of uncertainty is waived by answering, on demurrer

being overruled.

2. Waters and Water Courses—Complaint, Alleging Ultimate Facts Showing Ownership of

Water Right and Unlawful Interference, Sufficient. Complaint to establish right to use of certain quantity of water for watering sheep, and to enjoin

interference therewith, need allege only ultimate facts showing plaintiffs' ownership of such right and

unlawful interference therewith; and allegations of how plaintiffs appropriated the waters, and the nature

and size of their means of appropriation, are unnecessary.

3. Waters and Water Courses—Complaint Held to State Ultimate Facts Showing Ownership

of Water Right. The allegations of complaint of a valid appropriation by plaintiffs' predecessors in interest, namely, of

waters subject to appropriation, application of such waters to a beneficial use, the watering of

approximately 2,500 head of sheep, and a continuation of such use between May and November of each

year from before 1905 to 1921, when their right to the use was conveyed to plaintiffs, are not legal

conclusions, but statements of ultimate facts showing ownership in plaintiffs of the use of the described

waters.

4. Waters and Water Courses—Complaint Need Not Set Out Water Right by Standard of

Measurement. In the absence of statute requiring plaintiffs' claimed water right to be set out in the complaint by a

certain standard of measurement, such an allegation is unnecessary.

5. Pleading—Objection to Complaint for Uncertainty Waived by Answering. Any objection for uncertainty to the description, in the complaint, of plaintiffs' water right as

sufficient to water approximately 2,500 sheep, was waived when defendant answered on demurrer to

complaint being overruled.

6. Waters and Water Courses—Risk of Permanent Loss of Right to Use Waters Authorizing

Injunction Held to Appear from Complaint. Risk of permanent loss by plaintiffs of their right to use of the waters, authorizing injunction, held to

appear from complaint, in view of alleged interference with right and threat to continue it, and

defendant's use of the water, inferably under claim of right, which could by lapse of time become the

foundation of an adverse right in defendant.

7. Appeal and Error—Point Not Discussed in Brief, Other Than to Allege Error, Deemed

Waived. Claimed errors in rulings on pleadings not being supported by argument or discussed in brief, further

than the mere statement of error, will be deemed waived.


8. Appeal and Error—Assigned Error in Striking Out Portion of Answer Disregarded, Notice of Motion to

Strike Not Appearing in Bill of Exceptions.

Assigned error in striking out portion of answer must be disregarded; notice of motion to strike,

enabling the appellate court to know what portion of the answer was stricken, not being before it in a bill

of exceptions.

9. Appeal and Error—Notice among Papers Constituting Judgment Roll, but Not Properly Part of it,

Disregarded.

Notice of motion to strike portion of answer, though appearing among the papers constituting the

judgment roll, not being properly a part of it, must be disregarded.

10. Waters and Water Courses—Judgment Establishing Water Right Held Sufficiently

Certain as to Quantity. Judgment decreeing plaintiffs to be the owners of the right to the use of the waters of a certain spring

to water, at plaintiffs' troughs and reservoir near there, 2,500 head of sheep at all times between certain

months of each year, held sufficiently certain as to the quantity of water to which plaintiffs were entitled,

where defendant made no claim to the water adverse to plaintiffs, and did not set up a right to use it and

ask to have the right defined, but merely denied plaintiffs' claim, and so is unaffected by any uncertainty.

11. Appeal and Error—Every Intendment To Be Drawn in Favor of Judgment, on Appeal on

Judgment Roll. Appeal being on the judgment roll, so that the evidence is not before the court, every intendment is to

be drawn in favor of the judgment.

12. Appeal and Error—In Absence of Evidence to Contrary, Method of Using AppropriatedWater Set Out in Complaint and Judgment Must Be Deemed Sufficiently Economical.

Plaintiffs' means of utilizing their right by appropriation to the use of the waters of a spring to a

certain amount, being set out in the complaint and judgment for plaintiffs in action to quiet title to the

right, must, in absence of evidence to the contrary, be deemed a sufficiently economical method to

accomplish that purpose and leave any surplus available for appropriation by others.

See (1, 5) 31 Cyc. p. 719, n. 78; p. 727, n. 38; (2, 3, 4, 6, 10) 40 Cyc. p. 732, n. 14, 18; p. 733, n. 21 (new); p.

736, n. 54; p. 739, n. 80; (7, 8, 9, 11, 12) 3 C.J. sec. 1591, p. 1428, n. 50, 53; 4 C.J. sec. 1828, p. 226, n.

59; sec. 2363, p. 554, n. 37; sec. 2665, p. 735, n. 27; sec. 2677, p. 745, n. 71.

Appeal from Ninth Judicial District Court, White Pine County; C.J. McFadden, Judge.

Action by James F. Robison and others against Thomas Mathis. Judgment for plaintiffs,

and defendant appeals. Affirmed.


J.M. Lockhart and C.A. Eddy, for Appellant:

To establish alleged water rights complaint should state fully all facts concerning

appropriation, means, and amount of water appropriated in some standard measurement.

Stats. 1913, 193; Ramelli v. Sorge, 38 Nev. 552; Town of Sterling v. Ditch Co., 94 P. 339.

Facts and not legal conclusions should be stated in order to determine whether valid

appropriation was made. Farmers etc. Co. v. Southworth, 21 P. 1028; Rev. Laws, 5038.

Claim that plaintiff is entitled to all water in creek during dry season is too indefinite.

Porter v. Pettengill, 110 P. 393.

It is not sufficient to allege mere priority of right. This is legal conclusion. One must aver

all substantive facts constituting such priority. Church v. Stillwell, 54 P. 395.

Complaint for injunction is bad if it does not state how irreparable injury will be done.

Willie v. Lauridson, 118 P. 530; Thorn v. Sweeney, 12 Nev. 256; Mechanics Foundry Co. v.

Ryall, 17 P. 703.

Public domain is used for pasture at sufferance of federal government and not through any

rights granted to anyone. Sifers v. Johnson, 65 P. 710.

Statute allows plea of several defenses. Rev. Laws, 5050.

New matter constituting defense, no matter how named, may be pleaded. Rev. Laws, 5050,

5046; Yori v. Phenix, 38 Nev. 277.

Chandler & Quayle, for Respondents:

Any error in overruling demurrer is waived by pleading over, except only as to lack of

jurisdiction and question as to failure to state cause of action or defense. Lonkey v. Wells, 16

Nev. 271; Harden v. Emmons, 24 Nev. 329.

Assuming there was uncertainty in statement of quantity of water diverted, there was attempt

made to state it and not total failure of allegation, and any lack of definiteness should have

been reached by demurrer.


Amount of land which could be irrigated is not too indefinite a description. Church v.

Stillwell, 54 P. 395; Roeder v. Stein, 23 Nev. 92.

Right to use water is real property. In action to quiet title to real property it is not necessary

that steps by which title was secured be stated, but it is sufficient to allege ultimate facts

showing ownership, leaving deraignment to be established by evidence. Wiel on Water

Rights in Western States (3d ed.), 694; Town of Sterling v. Ditch Co., 94 P. 339.

Although decree was erroneous in allowing respondents all water in their ditch,

irrespective of season's necessity, and it had to be modified by eliminating all directions

touching any fixed quantity of water to be taken, yet error did not affect verdict and would not

necessitate reversal. Gotelli v. Cardelli, 26 Nev. 382.

Were it not for Ramelli v. Sorgi, 38 Nev. 352, our decisions would strongly preponderate

against proposition that judgment should specify precise quantity of water to be awarded for

irrigating purposes, since Walsh v. Wallace, 26 Nev. 290, was apparently repudiated by later

case of Gotelli v. Cardelli, supra.

OPINION


This is an action to quiet title to the right of the use of the waters of a certain spring, for

the purpose of watering 2,500 head of sheep. The spring is known as “Watkins Spring” and is

situated in White Pine County, Nevada. Judgment was rendered for plaintiffs. The appeal is

taken from the judgment. We will refer to the parties as plaintiffs and defendant.

Plaintiffs' statement in the brief of the substance of the complaint is concise, and, for

convenience, is adopted. It is alleged in the complaint that Watkins Spring is a natural source

and spring of water from which, in its natural state, a small stream of water flows in a

well-defined channel; that prior to the year 1905, and a time when the waters of the spring

were �� "�� &�,�� 2��(�� '�� %�&%��

�� &�,�� "�� 3� �&,�%�&%�� &�,�� "�� "�� !�� "�� "�� 2��*��4��


unappropriated, plaintiffs' predecessors in interest appropriated, diverted, and used the said

waters for watering approximately 2,500 head of sheep; that to the end of so beneficially

using the waters of said spring, they constructed near said spring impounding facilities

suitable for watering of said sheep, and diverted the water of said spring into said impounding

facilities, and used the said water for watering said sheep, and continued to so water said

sheep from the waters of said spring during the grazing season, that is, between April and

November of each year, since the appropriation and diversion were so made until the year

1921, when they conveyed their right to plaintiffs, and the plaintiffs ever since have been and

are now the owners of the right to use sufficient water of and from said spring to water 2,500

head of sheep; that defendant has wrongfully inclosed the spring and plaintiffs' impounding

facilities by fence, and refuses to permit plaintiffs to water their sheep therefrom and is using

it for his own benefit for the irrigation of certain lands, and threatens to continue to do so; that

on July 25, 1921, plaintiffs attempted to so water not exceeding 2,500 head of sheep, but

defendant wrongfully closed and locked the gate in said fence and refused to open it,

personally took a position near plaintiffs' water troughs, and forbade plaintiffs to open the

gate or to water the sheep from said water troughs or from the waters of the spring, and

wrongfully prevented plaintiffs from doing so, and informed plaintiffs that he would not

permit them to so water any sheep in the future; that defendant threatens to prevent such

watering by the use of violence if necessary; that if defendant persists in so preventing such

watering of plaintiffs' sheep as he threatens to do unless enjoined by the court, plaintiffs' right

to the use of the water will be permanently lost and plaintiffs will be compelled to abandon a

large and valuable sheep range surrounding the spring and used for many years by plaintiffs'

predecessors, and which plaintiffs have the right to use, but which can only be utilized by

watering the sheep at Watkins Spring; that �� !��

��


by the loss of the right to use the waters of the spring, plaintiffs will suffer irreparable injury;

that plaintiffs have no plain, speedy, or adequate remedy at law. Plaintiffs prayed that their

title to the right to use the water be quieted, for an injunction, temporary and permanent, for

costs, and general relief.

Defendant demurred to the complaint for insufficiency of facts to state a cause of action,

and also on the ground that it is ambiguous, unintelligible, and uncertain in these respects, to

wit: That it failed to specify the amount of water flowing from the spring; the amount

necessary to water 2,500 head of sheep; the amount used therefor; whether all was necessary

all of the time or any part of the time; or whether or not there is a surplus of water flowing

from the spring more than is necessary to water 2,500 head of sheep; that it does not specify

the character of plaintiffs' watering facilities, or the nature of plaintiffs' right to the sheep

range, claimed in the complaint.

The demurrer was overruled, and defendant filed an answer in which the material

allegations of the complaint are denied. The answer contains an affirmative defense in which

it is alleged that Watkins Spring is located on land comprising a United States homestead

entry made by the defendant in November, 1920; that defendant entered upon the land on or

about July 1, 1918, when it was unsurveyed public domain of the United States, and then and

there established his home thereon, and ever since said date has continuously resided thereon

with his family; that the Watkins Spring is an artificial well fed by the percolating waters

under the homestead premises, collected by means of artificial channels, and does not flow

off or from the homestead premises; and that the waters thereof are the property of defendant,

and belong to the soil of defendant's homestead. The answer also contains what is called a

cross-complaint, setting up two causes of action against plaintiffs, in the first of which it was

sought to recover damages from plaintiffs on account of the alleged herding and grazing of

their sheep within ��5�� "��6��(��%�&��


the one-mile limit of defendant's said home on or about the 3d day of August, 1920, and on

numerous occasions thereafter. In the second cause of action alleged in said cross-complaint,

it was sought to recover damages from the plaintiffs for trespass in herding and grazing their

sheep on the said land of defendant in the month of August, 1920, and on numerous

occasions thereafter.

Plaintiffs demurred to the affirmative defense on the ground that it failed to state a cause

of action, and demurred to the alleged causes of action in the cross-complaint on the ground

that they were not pleadable as counterclaims in this action. Plaintiffs also made a motion to

strike a portion of the answer. The demurrers to the answer were sustained, and the motions

to strike granted. Whereupon, defendant filed an amended answer, in which the material

allegations of the complaint are specifically denied. The defendant demanded a jury trial,

which was denied by the court. Thereafter the case was tried by the court, which made its

findings of fact and conclusions of law in favor of plaintiffs, and entered judgment and decree

in their favor decreeing that they are the owners of the right to use sufficient waters of

Watkins Spring to water at plaintiffs' watering troughs, and at the reservoir near said spring,

2,500 head of sheep, at any and all times between the months of April and November of each

year, and that defendant has no right, title, or interest in said waters adverse to the said rights

of plaintiffs. It was also adjudged and decreed that plaintiffs' said right had vested and

accrued in plaintiffs' predecessors in interest prior to the year 1905 and prior to the homestead

entry, and that said homestead right of defendant is subject to said vested and accrued water

right of plaintiffs, and subject to the right of plaintiffs to maintain said watering troughs and

reservoirs thereon, and to have access thereto at all times between the months of April and

November of each year for the purpose of watering 2,500 head of sheep. It was also adjudged:

“That in order to enable plaintiffs to exercise said watering right and their said right of

access without �� %��(�� %�&7��5�� "�� "�� 1


undue friction between plaintiffs and defendant, and with as little damage to defendant as

practicable, the defendant shall, on or before the 1st day of April, 1924, construct, and

thereafter maintain in good repair and condition, a sheep-proof fence along certain specified

lines and courses inclosing a small tract of land over which plaintiffs' sheep might enter for

watering, and leave without damage to defendant's premises; and that on the failure of

defendant to construct such a fence the plaintiffs could, at their option, build and construct the

same.”

Defendant was permanently enjoined from interfering with the right decreed to plaintiff.

1, 2. Error is assigned in the overruling of the demurrer to the complaint. As heretofore

specified in the statement of facts, the demurrer sets out several deficiencies of the complaint

wherein it is alleged that it is ambiguous, unintelligible, and uncertain. If the complaint is

merely uncertain as to these matters, the defendant waived his right to rely upon his

demurrers on this ground by answering. Lonkey v. Wells, 16 Nev. 271; Hardin v. Elkus, 24

Nev. 329, 53 P. 854. But these matters are not asserted against the sufficiency of the

complaint. It is insisted that the complaint is fatally defective in not alleging all of the facts as

to how plaintiffs' predecessors in interest appropriated the waters claimed, the nature and size

of their means of appropriation, and quantity of water appropriated according to the standard

of measurement prescribed by the legislature of the state. It is not necessary to state these

matters in the complaint.

The action was instituted for the purpose of obtaining a decree establishing plaintiffs' right

to the use of a certain quantity of water for watering sheep, and for an injunction restraining

defendant from interfering with that right. Only allegations of ultimate facts showing the

ownership of such right by plaintiffs, and the unlawful interference therewith, were essential,

and these appear in the complaint.

3. It alleges a valid appropriation by plaintiffs' �� !��#�� 2�� &�,��(�� '��%��,�� %�&%��


predecessors in interest, namely, an appropriation by them of waters subject to appropriation.

It alleges the application of such waters to be a beneficial use, viz., for the watering of

approximately 2,500 head of sheep, and a continuation of such use between the months of

April and November of each year from a time prior to the year 1905 until the year 1921, when

their right to the use was conveyed to plaintiffs. These are not legal conclusions, but the

statements of ultimate facts showing ownershiip of the right to the use of the waters described

in the complaint in plaintiffs. The additional matters held essential in the Colorado cases cited

by counsel for defendant are probative only. Wiel on Water Rights in Western States. See,

also, Hague v. Nephi etc., Co., 16 Utah, 421, 52 P. 765, 41 L.R.A. 311, 67 Am. St. Rep. 634;

Reach v. Spokane R.W. Co., 25 Mont. 379, 65 P. 111.

4, 5. The complaint is not deficient in not stating the quantity of water to which plaintiffs

have the right. The quantity is stated as sufficient to water approximately 2,500 head of

sheep. In the absence of a statute requiring a plaintiff's claimed water right to be set out in the

complaint by a certain standard of measurement, such an allegation is unnecessary. Whatever

objection there may have been to the description of the water right as sufficient to water

approximately 2,500 head of sheep, for uncertainty, was waived when the defendant

answered.

6. There is no merit in the claim that the complaint does not warrant an injunction, because

it fails to show that the plaintiffs will be irreparably injured unless the defendant is restrained

from interfering with the alleged water right. Defendant's interference with plaintiffs' right to

the use of the waters of the spring, his threat to continue such interference, and his use of said

waters for his own benefit for the irrigation of lands, which are alleged in the complaint, and

which, it is inferable, were under a claim of right, could become, by the lapse of time, the

foundation for an adverse right in the defendant. The risk of a permanent loss by �� 2��!��


the plaintiffs of their right to the use of the waters, therefore, appeared from the complaint

and authorized the injunction.

7. In the opening brief filed by counsel for defendant appears the statement that the court

erred in striking from defendant's answer his separate and affirmative defense. An

examination of the record reveals that this statement is not correct. The court did not strike

said defense, but sustained plaintiffs' demurrer to it. However, further than the mere statement

of error, and the assertion that the matter stated constituted a legal defense, the point is not

discussed either in the opening or closing brief, and must therefore be deemed waived. State

v. King, 35 Nev. 154, 126 P. 880; in Re Hegarty's Estate, 45 Nev. 145, 199 P. 81. This court

will not be concerned with alleged errors which counsel do not consider worthy of discussion.

The errors alleged to have been committed by the court in striking the cross-complaint from

the defendant's answer, and in sustaining plaintiffs' motion to strike out a portion of the

original answer, are also unsupported by any argument in the briefs; counsel contenting

themselves with the mere statements of error. Hence they are deemed waived. The court did

not strike the so-called cross-complaint, but sustained plaintiffs' demurrer to the case of

action stated in it.

8, 9. We must also disregard the error assigned in the court's ruling in striking out a

portion of the original answer for another reason. The notice of motion to strike, enabling us

to know what portion of the answer was stricken, is not before us in a bill of exceptions.

True, it appears among the papers constituting the judgment roll in this case; but as it is not

properly a part of the judgment roll, it must be disregarded.

10-12. It is asserted that the judgment is so indefinite that it is null and void and cannot be

enforced. The judgment decreed that plaintiffs are the owners of the right to use sufficient of

the waters of Watkins Spring to water, at plaintiffs' watering troughs and at the ��&�,�� (�� '��


reservoir near said springs, 2,500 head of sheep at any and all times between the months of

April and November of each year. Uncertainty as to the quantity of water to which plaintiffs

are entitled is the ground of the objection. In support of this contention, former cases in this

court touching upon the necessity of certainty of the quantity of water decreed to the claimant

are cited by defendant. These cases were decided upon a different state of facts. They are all

cases in which the defendant was affirmatively asserting certain rights to the use of waters of

a stream as against the plaintiff. In such a case, it is essential that the right or rights found be

defined in quantity with as much certainty as possible, to the end that future litigation in

regard thereto be avoided. Without intimating whether, in a case of that character, the decree

before us would be sufficiently certain as to the quantity of water awarded, we are of the

opinion that it is not objectionable in this regard under the facts of this case. Here the

defendant makes no claim to the waters of the spring adverse to the plaintiffs. In his amended

answer he did not set up a right to the use of the water and ask to have such right defined and

awarded, but contented himself with denying plaintiff's claim. He is therefore unaffected by

the uncertainty which he alleges against the judgment. Moreover, as this appeal is on the

judgment roll, the evidence is not before us, and every intendment must be drawn in favor of

the judgment. Plaintiffs' means of utilizing their right to the use of the waters of the spring are

set out in the complaint and judgment, and must, in the absence of evidence to the contrary,

be deemed a sufficiently economical method to accomplish that purpose and leave any

surplus available for appropriation and use by the defendant, or others.

Under the circumstances of this case it is not essential to the validity of the judgment that

plaintiffs' right be measured by the legal standard for measurement of water in this state.

Defendant assigns as error the means prescribed in ��!��


the judgment for securing to plaintiffs a passage for their sheep to and from their troughs and

reservoir; but as the alleged error is not discussed in the briefs it must be deemed waived.

The judgment is affirmed.

____________

��49 Nev. 46, 46 (1925) Pittsburg Silver Peak Gold Mining Co. v. Tax Commission��

PITTSBURG SILVER PEAK GOLD MINING CO. v. TAX COMMISSION

No. 2628

April 30, 1925. 235 P. 643.

1. Taxation—Statute Authorizes Presumption, in Absence of Evidence to Contrary, that TaxOfficials Faithfully and Properly Performed their Official Duties.

Stats. 1913, c. 134 sec. 6, held legislative declaration of general rule that it is presumed, in absence of

evidence to the contrary, that tax officials faithfully and legally performed their official duties, and that in

making an assessment they proceeded upon sufficient and competent evidence to justify their action.

2. Taxation—Valuations Placed on Property for Taxation Will Be Presumed To Be

Reasonable. Valuations placed on property for taxation will be presumed to be reasonable.

3. Taxation—Clear and Convincing Proof is Necessary to Overcome Presumption of

Reasonableness of Valuations of Property for Taxation Purposes. Clear and convincing proof is necessary to overcome presumption of reasonableness of valuations of

property for taxation purposes.

4. Taxation—Depreciation of Mine by Exhaustion of Body of Ore Held Not Proper

Deduction in Determining Net Proceeds for Assessable Purposes. Depreciation of mine by exhaustion of body of ore held not proper item for deduction, under Stats.

1913, c. 134, sec. 9, unaffected by Stats. 1917, c. 177, being 3 Rev. Laws, p. 3195, by tax commission, in

determining net proceeds for assessable purposes.

5. Taxation—Mere Increase in Assessment Over Last Assessment Does Not of Itself Prove

Subsequent Assessment as Illegal and Excessive. Mere increase in assessment over last assessment does not of itself prove subsequent assessment

illegal and excessive.


6. Taxation—Valuations, Established and Equalized by State Tax Commission, Held Not

Excessive. Valuations of mining property and railroad, established and equalized by the state tax commission

pursuant to Act March 20, 1913 (Stats. 1913, c. 134), sec. 6, held not so excessive as to give rise to

implication of fraud or mala fides.

See 37 Cyc. p. 876, n. 99; p. 1030, n. 69; p. 1189, n. 11; p. 1190, n. 15 (new).

Appeal from First Judicial District Court, Ormsby County; Frank P. Langan, Judge.

Suit by the Pittsburg Silver Peak Gold Mining Company and another against the State Tax

Commission and others. From an order overruling their motion for new trial, defendants

appeal. Reversed and Remanded.

(Coleman, C.J., dissenting.)

M.A. Diskin, Attorney-General, and Thos. E. Powell, Deputy Attorney-General, for

Appellants:

Rule in this class of cases is that judgment of state board empowered to fix valuation for

taxation cannot be set aside by testimony of witnesses that valuation was other than that

fixed, where there is no evidence of fraud or gross error. R.R. Co. v. Backus, 154 U.S. 421;

W.U. Tel. Co. v. Trapp, 186 Fed. 114; Adams Exp. Co. v. Ohio, 165 U.S. 194; C.B.& Q. v.

Babcock, 204 U.S. 585.

Board's judgment is not open to collateral attack. State v. W.F. & Co., 38 Nev. 515; Marsh

v. Arizona, 41 L. Ed. 567.

In McLeod v. Receveur, 71 Fed. 455, court gave same faith and credit to judgment of

board as it would to one of court, citing Stanley v. Supervisors, 121 U.S. 535, to effect that

such judgment can be impeached only by direct proceeding.

Mere allegation that valuation was fraudulent without more specific allegation of fact is

insufficient. Missouri v. Dockery, 48 L. Ed. 133.

Where evidence showed party was taxed upon his own figures and according to statute,

and no fraud ��


appears, party cannot be heard to complain that tax was disproportionate to others. R.R. Co.

v. Middlekamp, 65 L Ed. 905.

Burden is upon complainant to show that valuation is unjust and inequitable. Stats. 1913,

180.

Fact is that valuation as fixed by lower court is unjust to state. Respondents stated before

commission that value was $540,000; that 60% of that amount, $324,000, would be fair

valuation for taxing purposes, yet lower court fixed $200,000; respondents' report to

commission showed value to be $800,000, with annual depreciation of $250,000; in latter

part of 1912 and 1913 it produced $700,000, but paid only $527 bullion tax and had net

earning of over $200,000. Judgment should be reversed.

Platt & Sanford, for Respondents:

Complaint need not prove fraud, but only that valuation is unjust or inequitable. Stats.

1913, 180.

Since legislature has provided that court has right to reduce valuation it follows obviously

that it has right to review findings of commission, which is not court of last report.

Statute provides property shall be assessed at full cash value. In State ex rel. C.P. Co., 21

Nev. 179, court quoted statute with approval and issued writ directing commission to hear

proofs regarding valuation and fix it accordingly. State v. Miller, 38 Nev. 494.

Fact of matter is that respondents were cited by commission to show cause why assessment

for 1913 should not be $680,000. After hearing, commission accepted on recommendations

of representatives of company $540,620 as principal basis for assessed valuation, and took

60% or $324,000 for that year instead of $680,000, conceding position of respondents in

present complaint regarding assessment for 1914, when there was no doubt that companies

were on last legs and ready to be dismantled. Instead of adopting substantially same means

for reaching assessed valuation for 1914, commission raised levy from $33,250 in 1913 to

$61,250 and ordered auditor to place assessed valuation on mining property ��+7&��+%��%�%6��


at $420,000, $100,000 more than for 1913, without considering railroad at all. Not content

with that, commission raised railroad from $61,000 to $102,000, making combined valuation

$490,000; not content with that, and at very last moment, another raise was ordered for

combined properties to $592,000. Can any just argument explain why commission placed

valuation of $324,000 for 1913 and, knowing properties were depleted and being worked out,

increased valuation to almost double in 1914?

It is idle to argue about bullion taxes or profits of milling; these matters were adjusted in

conference. Respondents' allegations are supported by evidence and no member of

commission appeared to explain or contradict them. No other testimony, except reports, was

given, and none other is available to this court. Order should be affirmed.

OPINION


This is a tax suit of long standing. A decade has elapsed sense it was begun. We refer to

this in no spirit of criticism, but we feel that, when the validity of a tax is involved, the

public, as well as the private taxpayer, is interested in the speedy determination of the

question. A lengthy complaint was filed in March, 1915, in the district court for Ormsby

County, against the Nevada tax commission and the then tax officials of Esmeralda County,

the county in which the taxes were assessed. The case was tried in 1916, decided in 1918, and

brought to this court on appeal from an order entered in July, 1923, overruling the defendants'

motion for a new trial.

The Nevada tax commission was created under a special act of the legislature, approved

March 20, 1913. Stats. 1913, p. 175. The act represents the most recent step in the direction

of centralized control over the revenues of the state, taken with the view to more uniform

assessments and higher valuations. The act �� -


was evidently experimental, because it was expressly provided in its last section that:

“This act shall expire by limitation on February 15, 1917, unless revived by act of future

legislature.”

The act was revived in 1917. Stats. 1917, p. 328; 3 Rev. Laws, p. 3195. The act of 1917,

however, is in no accurate sense involved in this case as the applicable law is found in the act

of 1913. For this reason we shall not discuss a number of interesting questions suggested in

the briefs with respect to practice and procedure under the present tax commission law.

The facts from which the controversy arose are not in dispute. They are substantially as

follows:

Prior to January, 1916, and since 1907, the Pittsburg Silver Peak Gold Mining Company

and its subsidiary companies, including the Silver Peak Railroad Company, operated certain

gold and silver mines in Esmeralda County of large value, and in connection therewith

operated a quartz mill and reduction works and a local railroad, known as the Silver Peak

Railroad, with a trackage of 19 miles wholly within Esmeralda County. The railroad was

constructed to serve the mines, but was operated as a public utility. The mill and reduction

works were operated in the name of the Pittsburg Silver Peak Gold Mining Company. We are

not concerned with the manner of the operations of the combined companies. While they

were all under the management and control of the Pittsburg Silver Peak Gold Mining

Company, and for purposes of assessment for taxation were considered as a unit, the Silver

Peak Railroad, because of its character as a public utility, was separately assessed. The

separate valuations of the combined property create some confusion in the record, but, when

it is considered that the combined companies were engaged in the one business of extraction,

transportation, reduction, and sale of ores, the confusion may be brushed aside.

In the year 1914 the tax officials of Esmeralda County, acting under the general law,

placed a valuation upon the mine improvements and mill for assessable pur��+&7,��,6�


poses for that year of $245,953. The tax commission, acting in pursuance of section 6 of the

Act of 1913, for purposes of state equalization, raised the valuation to $480,000. The

commission, acting under its original power of assessment of railroads, fixed the valuation of

the Silver Peak Railroad, for purposes of taxation for the year, at $102,000, making the

assessment covering mine improvements, railroad, and mill total $592,000. If these

valuations have been permitted to stand, they would have yielded a state and county tax for

the year 1914 of $13,740.72. The Pittsburg Silver Peak Gold Mining Company and the Silver

Peak Railroad Company, being dissatisfied with the valuations, paid the December

installment of the taxes under protest. In March, 1915, they brought this suit in equity,

claiming that the valuations were illegal, excessive, and the manner of making them so

unreasonable that the complainants were entitled to protection against the taxes, and sought

judgment that the taxes in excess of 60 per centum of the true cash value of the combined

property be adjudged null and void, and that the court determine the true value of the property

to be that alleged in the complaint, and that it determine the fair and equitable tax to be paid

thereon and order the excess tax paid under protest refunded. There was a full hearing upon

pleadings and evidence. The court made no findings, but it is judgment recited that the

valuations established by the tax commission were illegal, unjust, and inequitable, and fixed

the value of the property for assessable purposes at $200,801.72, and adjudged and decreed

the tax to be paid thereon to be the sum of $5,156.25, and ordered that the then treasurer of

Esmeralda County forthwith repay to the plaintiff mining company $3,499.33, and to the

plaintiff railroad company $792.90.

This brings us to the question upon which the decision of the case finally depends: Were

the valuations established and equalized by the tax commission, under the evidence, unjust

and inequitable? In determining this question, we are guided solely by the statute of 1913.


In the case of Nevada-California Power Co. v. Hamilton, 235 F. 341, citing State v. C.P.R.

Co., 21 Nev. 179, 26 P. 225, 1109, it is held that the decisions of the Nevada tax commission,

if rendered in accordance with law, as to matter within its jurisdiction, are conclusive, in the

absence of fraud, save as otherwise provided by statute. Section 6 of the statute of 1913

confers upon the tax commission the power to raise or lower, for the purpose of state

equalization, the valuations established by county assessors and county boards of

equalization. The section contains this provision:

“Said Nevada tax commission, in that name, may sue and be sued, and shall be so named

as defendant in any action at law brought under the provisions of this section, and the

attorney-general shall defend the same, but the burden of proof shall be upon the complainant

to show by clear and satisfactory evidence that any valuations established or equalized by said

commission is unjust and inequitable.”

1-3. We regard this excerpt from the section as being a legislative declaration of the

general rule that it is presumed, in the absence of evidence to the contrary, that tax officials

faithfully and legally performed their official duties, and that in making the assessments they

proceeded upon sufficient and competent evidence to justify their action. State v. W.U. Tel.

Co., 96 Minn. 13, 104 N.W. 567; Judson on Taxation (2d ed.), sec. 645. As stated by other

authorities, the rule is that valuations placed on property for purpose of taxation will be

presumed to be reasonable, and such presumption can be overcome only by proof that is clear

and convincing. Washington Union Coal Co. v. Thurston County, 105 Wash. 208, 177 P.

774, 2 A.L.R. 1546.

To overcome the presumption recognized by the statute in favor of the valuations of the

tax commission, the plaintiffs relied upon the testimony of W.A. Bradley, who was the

general manager of all the operating properties, and B.A. Rives, who was the cashier of the

plaintiff mining company and secretary of the plaintiff railroad company.


The witness Bradley testified in detail as to the facts which he considered should enter into

the consideration of the question of the value of the property. The witness testified in a

manner to carry conviction. The trial court adopted the opinions and estimates of the witness

as to values, and reduced the valuation of the property fixed by the tax commission at

$592,000 to $200,801.72.

4. The attorney-general invokes the rule that, when the valuation of property for taxation is

intrusted by statute to the judgment of a tax commission, its decisions or findings raise more

than a presumption of fact, and cannot be overcome by mere differences of opinions or

theories as to values. State v. W.U. Tel. Co., supra; Judson on Taxation, sec. 551, and cases

cited. The attorneys for the Pittsburg Silver Peak Gold Mining Company find no fault with

the doctrine established by these authorities, but insist that, when the undisputed facts leave

no room for a difference of opinion as to values, the rule has no application. It is argued that

the uncontradicted proof is that on the dates the valuations were made it was known to the tax

commission that the ore bodies would be entirely worked out and the mines exhausted within

one year from that date, to wit, January 1, 1916, and this in fact happened; hence to increase

the valuations of the mine plant, reduction works, and railroad, considered as constituent

parts of the operating mines, resulted in a flagrant and palpable injustice to the owners. The

section of the statute pertinent to the valuation of operating mines is section 9, which we

quote in its entirety:

“In pursuance of the general supervision and control over the revenue system of the state,

said commission is hereby empowered to investigate and determine the net proceeds of all

operating mines. In pursuance whereof, said commission, in each instance, shall investigate

and determine from all obtainable data, evidence and reports, the gross value of the bullion

actually extracted from the reduction of the ores and the proceeds from the sale of ores, of any

mine, mining claim or patented mine, and to deduct therefrom � ��

��!�� !�� !�� 1


only such actual cost of extraction, transportation, reduction or sale of ores, as shall be

deemed by said commission to be just, proper and reasonable, and not introduced to deprive

or defraud the state of any portion of it just revenue; and in any suit at law arising under the

provisions of this section, the burden of proof shall be upon the owner of such mine, mining

claim or patented mine to establish that any item of cost disallowed by said commission, is,

nevertheless, just, proper and reasonable, and not entered to defraud the state.”

We do not think the legislature intended to cover the necessary depreciation of a mine by

exhaustion of the ores, in determining the net proceeds for assessable purposes, by including

such exhaustion within the deductions allowable for costs of extraction, transportation,

reduction, or sale of ores. It is true the value of a mine is lessened from the partial exhaustion

of the property. But in no accurate sense can such exhaustion of the body of the ore be

deemed depreciation. Lynch v. Alworth-Stephens Co., 45 S. Ct. 274, 69 L. Ed. —.

5, 6. It is argued on the part of the mining companies that the proof shows that the tax

commission assessed the value of the combined property in 1913 at $324,000, and that the

commission, in the face of the known fact that the mines would be exhausted within a year,

raised the valuations in 1914 to $592,000, which act, it is insisted, was one of the most

flagrant usurpations of power in the history of taxation in Nevada. Our answer, in short, to

this broad assertion, it that, while the increase in the assessments was very great, still it must

be borne in mind that a mere increase in the assessment does not prove that the last

assessment is wrong. Something more is necessary before it can be adjudged that the

assessment is illegal and excessive. Louisville & N.R. Co., v. Bosworth (D.C.), 209 F. 380;

Pittsburg, etc., Ry. Co. v. Backus, 154 U.S. 421, 14 S. Ct. 1114, 38 L. Ed. 1031. Under our

statute the burden was upon complainants to show by clear and satisfactory evidence that the

assessments were unjust and ��


inequitable. We cannot say from the testimony that the tax commission, in making the

assessments, applied a fundamentally wrong principle or refused to exercise its best

judgment, or that the assessments as made were so excessive as to give rise to an implication

of fraud or mala fides.

We therefore reverse the order overruling the motion of the tax commission for a new trial,

and remand the cause back to the lower court, for such further proceedings as the parties may

be advised.

It is so ordered.

Ducker J.: I concur.

Coleman, C. J.: I dissent.

____________

��49 Nev. 55, 55 (1925) Cooney v. Pedroli��

COONEY v. PEDROLI

No. 2659

May 5, 1925. 235 p. 637.

1. Equity—Delay, Together with Circumstances Causing a Disadvantage, Constitutes“Laches.”

While lapse of time is one of the elements of “laches,” another and very important one is that the

delay works some disadvantage to the one who interposes laches as a defense, and the circumstances

which may work a disadvantage depend on facts in each case.

2. Equity—Death Is A Circumstance To Be Considered in Connection with Delay in

Determining Whether Claim is Barred by Laches. Death of a party, who could have explained a transaction, is a material circumstance to be considered

in connection with lapse of time in determining whether a claim is barred by laches.

3. Trusts—Action against Administratrix to Establish Trust Is Barred by Laches, where

Intestate Held Property as Sole Owner for 22 Years. Where intestate had continuously managed and disposed of property inherited by plaintiffs and

intestate, as if he were the sole owner for 22 years, reinvested the rents and profits without objection from

plaintiffs, and had not accounted during this entire period, held that suit against intestate's administratix

seeking to establish a trust in the property inherited, and accumulations is barred by laches.

See (1, 2) 21 C.J. sec. 219, p. 233, n. 30; sec. 230, p. 237, n. 10; (3) 39 Cyc. p. 601, n. 27.


Appeal from Sixth Judicial District Court, Humboldt County; James A. Callahan, Judge.

Suit by Mary E. Cooney and another against Louise Pedroli, administratix of the estate of

Charles Pedroli, and another. From a judgment for plaintiffs, and an order denying a new

trial, defendants appeal. Reversed, with directions to enter judgment for defendants.

Rehearing denied. (Sanders, J., dissenting.)

L.O. Hawkins, Prince A. Hawkins, and Price & Hawkins, for Appellants:

Defense of laches and equitable estoppel should have been upheld. Stale demands will not

be aided where claimant has slept upon his rights for so long and under such circumstances as

to make it inequitable to enter upon inquiry as to validity thereof. Kleinclaus v. Dutard, 81 P.

516; Cook v. Ceas, 82 P. 370; Wadleigh v. Phelps, 87 P. 93.

Where relation of trust is no longer admitted to exist or time and long acquiescence have

obscured character of trust, or acts of parties or other circumstances give rise to presumptions

unfavorable to its continuance, courts of equity will refuse relief upon ground of lapse of time

and inability to do complete justice. Cahill v. Superior Court, 78 P. 467; Story Eq. Jur. 1520a.

Equity will not aid party whose claim is destitute of conscience, good faith, and reasonable

diligence. Mackall v. Casilear, 137 U.S. 556.

No issue of partnership is made by pleadings, but where it exists, partner who manages

farm for benefit of himself and copartner is entitled to reasonable compensation. Duley v.

Duley, 226 P. 40; Emerson v. Durand, 24 N.W. 129; Griggs v. Clark, 23 Cal. 427.

After lapse of many years evidence to establish resulting trust must be clear, strong, and

unmistakable, since doctrine of laches is applicable. 13 Enc. Ev. 144-146.

Thos. A Brandon, for Respondent:

In Miller v. Walser, 42 Nev. 497, court said that statute of limitations had not run and by

reason ��


thereof strong circumstances must exist to require application of doctrine of laches. Burden is

on respondents to show from suitable averments in complaint that such circumstances exist.

Relationship of parties, recognition of debt or other circumstances may repel presumption

of laches. Same evidence prevents presumption of laches and defense of statute of limitations.

Vaughn v. Tate, 36 S.W. 748; Hovey v. Bradbury, 44 P. 1077; 10 R.C.L. 936.

Lapse of time is permitted in equity to defeat only acknowledged right of claimant to avoid

evidence of presumption that right has been abandoned. It never prevails when presumption is

outweighed by facts. Nelson v. Carrington, 6 Am. Dec. 519; 10 R.C.L. 402.

Where one of several heirs enters into or holds possession of land on death of ancestor his

possession will in general be considered as possession of his coheirs for their benefit. In order

to render his possession adverse, there must be decisive acts on his part amounting to ouster

or disseizin. No mere act of ownership will render his possession adverse. 1 Cyc. 1080; 39

Cyc. 36.

When business is bequeathed to two persons who continue it, they become partners

without any formal agreement and property is partnership property. 30 Cyc. 368.

OPINION


This is a suit in equity brought by the respondents to obtain a decree establishing that they

are the owners of an undivided two-thirds interest in all the property possessed by Charles

Pedroli at the time of his death. The respondents are a brother and a sister of the deceased

Charles Pedroli. The appellant is the administratix of his estate. A demurrer to the amended

complaint was overruled and appellant answered. Most of the allegations in the amended

complaint are denied in the amended answer, and in addition eight separate defenses are

interposed. Judgment was rendered in ��


favor of respondents and a motion for a new trial was denied. From the judgment and order

denying the motion for a new trial this appeal is taken.

As we reached the conclusion that the demurrer should have been sustained, it will be

necessary to set out in this opinion substantially the allegations of the amended complaint.

The appellant, Louise Pedroli, was appointed and qualified as the administratrix of the

estate of Charles Pedroli, deceased, on March 30, 1920, and is now such administratrix. On or

about the 29th day of September, 1896, Celeste Pedroli died intestate in the county of

Humboldt in this state and left estate therein consisting of horses, cattle, farming equipment,

and about 400 acres of land, together with improvements on said land and water rights

appurtenant thereto, all of which was community property, and situated in said Humboldt

County. He left surviving him a widow, Felecitia Pedroli, and three children, Charles Pedroli,

then aged 29 years, and now deceased Julius Pedroli, a son, then aged 24 years, and Mary E.

Pedroli, a daughter, aged 20 years. Thereafter, Felecitia Pedroli was appointed and qualified

as the administratrix of the estate of Celeste Pedroli, and after due and legal proceedings the

estate hereinafter described, together with the sum of $3,681, also belonging to the estate, was

by decree of court distributed as follows: An undivided one-half thereof to the surviving

widow, and one-sixth to each of said surviving children.

On the death of the father, Charles Pedroli, without objection on the part of his brother and

sister, now Mary Cooney, the respondents herein, assumed and entered into the exclusive

management and control of the property. (It is alleged that such property was by the said

brother and sister left in the care, custody, and control of Charles Pedroli.) Continuously

thereafter and until the time of the death of Charles Pedroli he managed and controlled the

property and exercised dominion over it, and handled, traded, sold, and other�� !��


wise disposed of the same, and the rents, issues, and profits and increase thereof, in his own

name and in like manner as though he were the sole owner thereof, but always, it is also

alleged, subject to the rights of his brother and sister, and as their agent and trustee in so far

as their rights and interests were affected thereby, and for their use and benefit.

Felecitia Pedroli died intestate on or about the 6th day of September, 1911, at Bodio,

Republic of Switzerland, leaving estate of her undivided one-half interest in the property left

by her deceased husband, and in the increase to the personal property and additions to the real

estate. Her surviving heirs were the said children. Charles Pedroli was appointed and

qualified as administrator of her estate on or about the 19th day of February, 1912, and

entering upon the duties of his trust as such took possession of all the real and personal

property belonging to the estate, remained and continued to remain in possession from the

time of his appointment until his death on the 12th day of January, 1919.

On the 9th day of July, 1912, at the request and prayer of Charles Pedroli as administrator,

the estate of Felecitia Pedroli was by decree of court distributed as follows, to wit: An

undivided one-third thereof to each of said children, which decree provided in part that, upon

the production of satisfactory vouchers by the administrator that he had paid all of the sums

of money due from him, and delivered all the property of the estate to the parties entitled, he

be discharged from his said trust and that he and his sureties be released from all liability

therefrom thereafter to be incurred on account of the administration of this estate. Charles

Pedroli never paid or delivered the property described in the decree to his brother and sister

and was never discharged from his trust, and without objection on their part retained

possession and control of all thereof, together with the rents, issues, and profits thereof from

the time of his appointment to the time of his death.


It is alleged that during the time from the date of the death of his father to the death of

Charles Pedroli in January, 1919, the latter received and had said property in his possession

and under his control and management together with rents, issues, profits, and increase

thereof, and possessed, controlled, sold, and disposed of the same without objection on the

part of his brother and sister, as their agent and trustee, as though the same were his sole and

separate property, but not adversely to their interests therein or in derogation of their rights

thereto, but that all times he admitted and recognized their right as the owners of an

undivided two-thirds interest in the property and the rents, issues, profits, and increase

thereof, that all of the property was either the original property belonging to the estate of

Celeste Pedroli and the estate of Felecitia Pedroli, or was acquired by Charles Pedroli out of

the rents, issues, profits, and increase of the property of those estates while he was acting as

the agent and trustee of his brother and sister; that an undivided two-thirds interest of the

same is the property of the brother and sister.

It is alleged that Charles Pedroli never at anytime accounted to the brother and sister

concerning his management, control, and disposition of their interest in the property; that they

permitted him to act as their agent and trustee with the full faith and confidence in his

business management and integrity in the bona fide belief that he was more competent in that

respect than either of them to manage the same to the best advantage and greatest profit to

himself and them; that they believed that he would account fully and honestly to them at any

time they or either of them made on him a demand therefor; that for these reasons they never

made a demand on him for an accounting and were always willing to leave the control,

management, and disposition of the property in his hands with full faith and confidence in his

judgment and integrity.

It is alleged that the defendant, Louise Pedroli (appellant here), as administratrix of the

estate of Charles 8�� 5�� 5��


Pedroli, deceased, and personally, claims some right, title, or interest in and to said two-thirds

of the property belonging to his brother and sister, which claim is adverse to them and is

without foundation in law or equity; that she has no right, title, or interest in and to the

two-thirds of the property belonging to them. It is alleged that since the death of Charles

Pedroli all of the two-thirds of the property belonging to them has come into the hands of said

administratrix of his estate, who is now holding, managing, and controlling the same, together

with the rents, issues, profits, and increase thereof, as trustee for said Julius Pedroli and Mary

Cooney for their use and benefit.

Among the grounds stated in the demurrer to the amended complaint are: (1) That the

amended complaint does not state facts sufficient to constitute a cause of action against the

defendants or either of them; (2) that it appears upon the face of the amended complaint that

the cause of action therein set forth, if any ever existed, was barred at the time of the

commencement of the action, by the laches of the plaintiffs, and under the doctrine of

equitable estoppel.

The nature of this suit is purely equitable. The substance of the claim as averred in the

complaint is that during all of the years that Charles Pedroli was in possession, management,

and control of the property from the death of his father until his own death, he was acting as a

trustee for his brother and sister, the respondents, as to their interest in the property and in the

increase and profits thereof. A decree is demanded to that effect, and that the respondents be

declared the owners of said interests, their title to such quieted against appellant, and for an

accounting from her for her control and management of such interest from the time of the

death of Charles Pedroli.

1. The doctrine of laches has been universally accepted in courts of equity. In an early

English case Lord Camden declared:

“A court of equity, which is never active in relief against conscience, or public

convenience, has always ��


refused its aid to stale demands, where the party has slept upon his right, and acquiesced for a

great length of time. Nothing can call forth this court into activity, but conscience, good faith,

and reasonable diligence; when these are wanting the court is passive and does nothing.

Laches and neglect are always discountenanced, and therefore, from the beginning of this

jurisdiction, there was always a limitation to suits in this court.” Smith v. Clay, 2 Ambler's

Reports, 645; 3 Browne's Reports, p. 639 in note.

The principle thus announced that mere lapse of time may constitute laches has not been

recognized generally by modern courts of equity as embracing the only element of that

defense. It appears from the cases, with few exceptions, that, while lapse of time is one of the

elements, another and very important one is that the delay has worked some disadvantage to

the one who interposes the defense of laches. A concise and accurate statement of the

doctrine of laches, and one which has been often quoted with approval, was made in Chase v.

Chase, 20 R.I. 202, 37 A. 804, in which the court said:

“Laches, in legal significance, is not mere delay, but delay that works a disadvantage to

another. So long as parties are in the same condition, it matters little whether one presses a

right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes

no steps to enforce them until the condition of the other party has, in good faith, become so

changed that he cannot be restored to his former state, if the right be then enforced, delay

becomes inequitable and operates as an estoppel against the assertion of the right. The

disadvantage may come from loss of evidence, change of title, intervention of equities and

other causes, but when a court sees negligence on one side and injury therefrom on the other,

it is a ground for denial of relief.”

It would be difficult, it not impossible, to state the various circumstances which in

conjunction with the lapse of time may constitute laches. Every case must depend upon its

own circumstances. Whenever the passage of time has brought in its train anything that��


works to the disadvantage of a party and makes it doubtful if equity can be done, relief will be

denied.

“Several conditions may combine to render a claim or demand stale in equity. If by the

laches and delay of the complainant it has become doubtful whether the adverse parties can

command the evidence necessary to a fair presentation of the case on their part, as, for

instance, where parties interested and the witnesses have died in interim, or if it appears that

they have been deprived of any advantage they might have had if the claim had been

seasonably insisted on, or if they be subjected to any hardship that might have been avoided

by reasonably prompt proceedings, a court of equity will not interfere to give relief, but will

remain passive; and this, although the full time may not have elapsed which would be

required to bar a remedy at law.” 10 R.C.L. p. 400.

Considering the defense of laches in Miller v. Walser, 42 Nev. 497, 518, 181 P. 437, 444,

this court said:

“Any circumstances tending to obscure the truth of the matter, as the loss of witnesses

through efflux of time, may prompt a court of equity to apply the doctrine of laches. In fact, if

it appears that the adverse party has lost any advantage he might have retained if the claim

had been asserted with reasonable promptness, or exposed to any injury through inexcusable

delay, a court of equity will not interfere to give relief to the dilatory claimant. Every case

must depend upon its own peculiar circumstances.”

2. It is a very material circumstance to be considered in connection with the lapse of time

that death of those who could have explained the transaction has intervened before the claim

is made. Hinchman v. Kelley, 54 F. 63, 4 C.C.A. 189; Rives v. Morris et. al., 108 Ala. 527,

18 So. 743; Taylor v. Slater, 21 R.I. 104, 41 A. 1001; Kleinclaus v. Dutard, 147 Cal. 245, 81

P. 516; Pomeroy's Eq. Rem. p. 44. In the last work cited the author says:

“It is settled in this state by the two California cases last cited that the defense of laches

may be raised by demurrer, the defense being in substance, as said in �� 1


one of the cases, that the bill does not show equity, or, in the language of our statute, that the

complaint does not state facts sufficient to constitute a cause of action.”

3. An examination of the complaint in view of these principles clearly reveals its lack of

equity. The complaint shows a great lapse of time, 22 years, from the creation of the alleged

trust. During all of this time Charles Pedroli was in possession of the property openly and

notoriously exercising dominion over it as though it were his sole and separate property. He

managed, controlled, and disposed of it, and acquired and invested the profits from it in his

own name. From the profits he acquired other property to the extent that at the time of his

death the original property belonging to the estate of his father had been increased in amount

from 400 acres of land and 100 head of stock cattle, and 20 tons of hay, to 880 acres, 300

head of cattle, 75 head of calves, 200 tons of hay. In addition thereto he acquired 15 bonds of

Lovelock Drainage District; 12 shares of the stock of the Bank of Italy, San Francisco,

California; Liberty bonds of the par value of $3,600; a promissory note with accrued interest

thereon; and a life insurance policy on the life of the deceased for the sum of $5,000 payable

to his estate as the beneficiary thereof, and cash in the amount of $12,000.

Beyond the bare statement in the complaint that Charles Pedroli was the trustee of his

brother and sister, and that he at all times admitted and recognized their right, there is nothing

in the complaint to support the claimed trust relation. All of his acts alleged have a contrary

significance. He did everything in his own name and managed the property and the increase

as if it were his own. No act of recognition is alleged. He invested the profits in other

property and took the same in his own name without consulting the respondents. During the

entire period of 22 years he paid nothing to the respondents. He rendered no account of his

management of the property to them, nor was any accounting demanded of him by either of

them. No reason is alleged in the complaint for respondents' long �� )�� 8�� "��!��)�� 8��

��


delay in making any claim to the property or asserting any interest as to Charles Pedroli's

management of their share of it or desire to enjoy any of the profits from it, except that

Charles Pedroli was more competent to manage it for the best interests of himself and them,

and that he was honest and upright in all his business affairs, and that they believed he would

account fully and honestly as to his management and control and disposition of the property

to respondents at any time they made a demand on him.

It seems incredible, however, that in all of these years and when the property was being

managed profitably by Charles Pedroli that respondents should have no desire to share in any

portion of the profits. Any fraud on the part of Charles Pedroli is entirely negatived by the

complaint. All of his acts were open and notorious and consistent with the absolute

ownership. These facts, together with the prolonged silence of the respondents during the

lifetime of Charles Pedroli concerning their alleged interest in the property, present a case of

grave doubt as to the existence of the trust claimed. His death places his administratrix at a

disadvantage so obvious as to call for the application of the doctrine of laches against the

respondents, who have slept on their alleged rights for a period of 22 years. Even if the trust

relation were admitted the futility of entering on an investigation after such a lapse of time

when the trustee is dead, to determine equitably what portion belonged to his estate and what

portion belonged to respondents, is apparent. A court of equity would be unable, under the

circumstances, to do justice to the parties. The injustice, if any, must fall upon the negligent.

As said in Kleinclaus v. Dutard, supra:

“The circumstances of this case are such as to make it apparent that a court could not hope

to do justice between these parties, were the trust relation clearly shown, and this constitutes

another ground for the application of the doctrine of laches, for the difficulty is due entirely to

the inexcusable delay.”


The facts in the Dutard case are strikingly parallel to the case at bar. It was held that the

merits of a claim of the existence of an express trust under which a son carried on his father's

business for the benefit of the family would not be considered after an unexplained lapse of

35 years, when the son was dead, and where the son had conducted the business during the

period without recognizing the interest of the alleged beneficiaries, or rendering an account or

paying any money to them, except in the support of his mother, and by his personal efforts

and diligence had accumulated a large fortune from the small capital invested in the business

by his father, and it would be impossible for the court to do justice between the parties, even

if the claim should be established. A demurrer on the ground of laches was sustained. The

complaint in the instant case shows a stronger case for the application of the defense of laches

than the Dutard case.

For the reasons given, the judgment is reversed, and the lower court is directed to sustain

the demurrer and enter judgment for the appellant.

Sanders, J., dissenting.

Louise Pedroli in her individual and representative capacities interposed a demurrer to the

complaint, and for demurrer alleged, first, that the complaint did not state facts sufficient to

constitute a cause of action; second, that the cause of action, if any ever existed, was barred

by the laches of the plaintiffs and under the doctrine of equitable estoppel; third, that the

cause of action, if any ever existed, was barred by the statutes of limitations; fourth, that the

cause of action was void under the statute of frauds. The principal contention in connection

with the demurrer is that the same should have been sustained upon the ground of laches and

under the doctrine of equitable estoppel.

Counsel for appellants assert that the trial court after argument filed no written opinion

upon the overruling of the demurrer, but concede that the trial judge did say, from the bench,

in overruling the demurrer “The question of the statute of limitations and also the question � �� 1


of laches can better be presented at the trial of this matter of merits.” It is argued that such

may have been the reason for overruling the demurrer, but that it is no legal reason and does

not excuse or justify the order overruling it. In this counsel are mistaken. A court in disposing

of a demurrer to a bill in equity has a certain amount of judicial discretion to be exercised in

furtherance of justice, and where the nature of the case is such as to make it probably more

conducive to the cause of justice to decide such case only after answer and proof, it is within

the discretion of the court to refuse to determine it on demurrer, though the demurrer may

appear to be technically well taken. 10 R.C.L. 475.

It is well settled that a demurrer to a bill may be overruled with liberty to the defendant to

insist upon the same defense by answer, if the allegations of the bill are such that the case

ought not to be decided without answer being put in. Kansas v. Colorado, 185 U.S. 125, 22 S.

Ct. 552, 46 L. Ed. 838. The trial court was evidently of the opinion that the case made by the

complaint was a proper one for overruling the demurrer upon the ground of laches with

liberty to the defendants to insist upon the same defense by answer. Sabre v. United Traction,

etc., Co. (C.C.) 156 F. 79. Since the defendants set up laches as a defense and a trial was had,

I am of the opinion that this court should at least look to the evidence before determining

whether the court abused its judicial discretion in refusing to determine the case on demurrer.

Be this as it may, my associates take the view that conceding the charges of the complaint to

be true, it is an absolute, certain and clear proposition that the complaint does not show

equity, or, in other words, does not state facts sufficient to constitute a cause of action. I

dissent from this conclusion.

It is contented that the demurrer should have been sustained and the action dismissed,

under all authorities, and especially so under the decision in Kleinclaus v. Dutard, 147 Cal.

245, 81 P. 516, claiming that no two cases so nearly parallel in point of facts and law can be

found in the books. In this I am unable to agree.


Conceding the correctness of the decision and the elementary principles of equity applied to

the facts in the Dutard case, I make the same distinction in the two cases as was made by

Justice Kerrigan in the case of Fleming v. Shay, 19 Cal. App. 276, 125 P. 761. The learned

justice pointed out that the authorities lay down the rule that when positive evidence exists,

which proves that the defendant has all along recognized the plaintiff's rights, delay on the

part of plaintiff in bringing the suit will be excused. 18 Am. & Eng. Ency. of Law, 111. “The

continued acknowledgment,” reads 16 Cyc. 174, “by the defendant of plaintiff's right is

generally sufficient to account for delay by plaintiff in bringing suit to enforce it.”

The plaintiffs allege in their complaint in this case that Charles Pedroli, deceased,

possessed, controlled, and managed the property described without objection of plaintiffs as

agent and trustee, as though the same were the sole and separate property of Charles Pedroli,

but not adversely to their interest therein or in derogation of their rights thereto, but at all

times the said Charles Pedroli admitted and recognized the right of plaintiffs, and each of

them, as such owners of said undivided interests in and to the property and the rents, issues,

profits, and increase thereof.

Justice Kerrigan points out in Fleming v. Shay, supra:

“In the case of Peebles v. Reading, 8 Serg. & R. (Pa.) 484, 494, it was held that fourteen

years would not be a reasonable time to enforce a trust, unless the trust was kept up by

declarations from time to time.

“A similar declaration to the one here was considered in the case of Kleinclaus v. Dutard

* * * ; but, there it appeared that Dutard for thirty-five years had ‘dealt with all the property

acquired as absolutely his own. He carried on a produce and commission business in his own

name. He invested and reinvested the profits thereof in this own name in all kinds of property,

in several different states, accumulating a great fortune. He never recognized any other person

as having any interest therein.' For those and other reasons stated in the opinion, the court said

that the complaint, taken �� /�� "�� !�� 9��1


as a whole, presented a case ‘where every act of the alleged trustee was openly and

notoriously hostile to the claim of plaintiff'; that consequently no such relation between the

parties was evidenced by the complaint as justified the plaintiff in disregarding those acts and

relying upon any declaration of Dutard.”

The distinction between the present complaint and the Dutard case is made plain when it is

considered that the court in that case pointed out that the complaint taken as a whole,

presented a case where every act of the alleged trustee was openly and notoriously hostile to

the claim of plaintiff, whereas in the present complaint it is alleged and the demurrer admits

that Charles Pedroli at all times admitted and recognized the rights of plaintiffs as owners of

an undivided interest in and to the property and the rents, issues, profits, and increase thereof.

If this allegation be true his representative after his death is bound by his admissions. Hovey

v. Bradbury, 112 Cal. 620, 44 P. 1077.

I concede the force in the argument that the plaintiffs' delay in commencing action, and

particularly until after the death of Charles Pedroli, when much important evidence might be

lost to defendants, is indicative of bad faith and renders the claim stale and inequitable. In

view, however, that there is nothing in the present complaint inconsistent with the alleged

acknowledgment by Charles Pedroli of plaintiffs' right and interest in the property at all times,

and of the fact that the parties were brothers and sister and that plaintiffs reposed confidence

and trust in Charles Pedroli (10 R.C.L. 402), I cannot agree that it clearly and affirmatively

appears upon the face of the complaint that the cause of action is barred by laches.

I am of opinion that the demurrer was properly overruled.


June 17, 1925.

Per Curiam:

Rehearing denied.

Sanders, J., I dissent.

____________

��49 Nev. 70, 70 (1925) Wheeler v. Hurley��

WHEELER v. HURLEY

No. 2683

June 5, 1925. 236 P. 559.

1. Pleading—”Material Allegation” Defined. Material allegation is one essential to claim or defense which could not be stricken from pleading

without leaving it insufficient, and which plaintiff must prove to maintain action.

2. Sheriffs and Constables—Measure of Damages for Failure to Return Execution Stated. Measure of damages for sheriff's failure to return execution, as required by Rev. Laws, sec. 1650, is

actual loss sustained, which is prima facie amount of execution.

3. Pleading—Plaintiff Not Entitled to Judgment for Full Amount of Execution Not Returned

Because of Defendant's Failure to Deny Allegations as to Value of Property. To recover damages from sheriff for failure to return execution, plaintiff need not allege value of

property or that such value exceeded amount of judgment, and hence is not entitled to judgment for full

amount of execution because of defendant's failure to deny such allegations, under civil practice act, sec.

133, as amended by Stats. 1915, c. 158, sec. 4, requiring that each “material allegation of complaint not

controverted by answer be taken as true.”

4. Appeal and Error—Plaintiff, Trying Action against Sheriff for Failure to Return Execution

on Theory that Value of Property was in Issue, Cannot Invoke for First Time in

Supreme Court Rule that Uncontroverted Material Allegations of Complaint Must Be

Taken as True. Plaintiff, trying case against sheriff for damages from failure to return execution on theory that value

of property was in issue, cannot invoke for first time in supreme court rule of civil practice act, sec. 133,

as amended by Stats. 1915, c. 158, sec. 4, that each material allegation of complaint not controverted by

answer be taken as true, for reversal of judgment for less than amount of execution.

See (1, 3) 39 C.J. sec. 3, p. 1387, n. 86; 31 Cyc. p. 209, n. 87; p. 210, n. 93; (2) 35 Cyc. p. 1727, n. 84; (4) 3 C.J.

sec. 621, p. 725, n. 84.

Appeal from First Judicial District Court, Storey County; J.A. Ballard, Judge.

Action by Carl Wheeler against Thomas J. Hurley, as Sheriff of Storey County, and

another. From a judgment for plaintiff in an unsatisfactory amount, he appeals. Affirmed.

Mack & Green, for Appellant:

Each material allegation of complaint, not controverted ��


by answer must, for purposes of action, be taken as true. Stats. 1915, 193.

Denial that property is worth exact sum alleged in complaint is negative pregnant, and

court can, upon such pleadings, in absence of further proof, find for any sum less than amount

stated. If error thereby occurs it is of that infinitesimal character which can be of no injury.

Blackie v. Cooney, 8 Nev. 45.

Party is entitled to benefit of admission in adversary's pleading and may without proof accept

it as basis for judgment. Carlyon v. Lannan, 4 Nev. 160; Hixon v. Pixley, 15 Nev. 483.

Contrary finding would not prevail against admission. Nosler v. Haynes, 2 Nev. 56.

Proof is not necessary of fact alleged in complaint not controverted in answer. Escondido Co.

v. Baldwin, 84 P. 285; Henry v. Henry, 107 N.W. 790.

Allegation of value of property was essential to fixing of any damage. Had plaintiff not

alleged value of property attached how could court determine how much was loss sustained

by plaintiff through sheriff's allowing other people to take away property? If counsel's

contention that value of property levied upon need not be alleged, then court should have

given judgment for full amount of claim and costs. 3 Sutherland, 2443; Johnson v. Vance, 24

P. 862; 17 C.J. 998; 5 Enc. Pl. & Pr. 703.

William S. Boyle, for Respondents:

Appellant lost right to appeal owing to respondents' objection upon motion for new trial

set forth in bill of exceptions in which appellant did not present respondents with

memorandum, containing verified statement of errors excepted to, after service of notice of

new trial and within ten days. Rev. Laws, 5320, 5321, 5323.

Averment of value of property is not material. Sutherland Code Pl., 2443. Amount of

damage need not be denied. Idem, 263.

Appellant alleged six tanks and one pump were worth $2,400. Only tanks were levied

upon, and since pump �� +&�7��


would constitute part of entire value of property, entire damage could not be $2,400. Court

found value to be $175.

Where plaintiff alleges conversion of personal property and prays for double damages he is

entitled to them only if proof sustains allegations. Jahns v. Nolting, 29 Cal. 507.

Defendant did not have to deny value of tanks as their value was immaterial. Van Santv.

Pl. 249.

If it were matter of contract for wages due at fixed rate per day denial of wages due would not

be wise but fatal. Denial of damages is different. Stats. 1915, 123; Smith v. Lee, 10 Nev. 210.

OPINION


Carl Wheeler, a judgment creditor, sued Thomas J. Hurley, sheriff of Storey County, and

the Fidelity and Deposit Company of Maryland, the surety on his official bond, to recover the

sum of $1,351.32 as damages for the failure of said Thomas J. Hurley as sheriff of Storey

County to return an execution issued upon a judgment in the case of Carl Wheeler, plaintiff,

v. Comstock Eldorado Mining and Milling Company, a corporation, defendant. The case was

tried to the court without a jury. The court found for the plaintiff and rendered judgment in

his favor for the sum of $175. The plaintiff, being dissatisfied with the amount of the

judgment, appeals.

It is claimed in argument that under the pleadings the trial court was without power or

authority to render judgment for a less sum that the full amount of the execution, to wit,

$1,351.32. In support of this contention counsel for appellant state in their opening brief that

the appeal is taken for the reason that the decision of the lower court is contrary to and against

the law as laid down in section 133 of the civil practice act as amended by the Statutes of

1915, p. 193, which provides that:

“Each material allegation of the complaint not ��...��1


controverted by the answer * * * must, for the purposes of the action, be taken as true.”

Paragraph 7 of the complaint reads as follows:

“That the property levied upon, under and by virtue of said writ of execution and thereby

directed to be sold by said sheriff to satisfy the said plaintiff's judgment, was of the value of

$2,400, and in excess of the value specified in said writ of execution and directed to be made

thereby.”

Paragraph 9 of the complaint reads as follows:

“That, although more than 60 days have elapsed after delivery of said execution to the

defendant and before the commencement of this action, yet he, the said Thomas J. Hurley,

sheriff of Storey County, State of Nevada, as aforesaid, in violation of his duty as such sheriff

failed to return the same to the damage of the plaintiff in the sum of $1,351.32, together with

interest on the sum of $1,000 at the rate of 8 per cent per annum from the 26th day of

January, 1923, until paid.”

1-3. It is contended that the failure of the defendant to deny the allegations of paragraphs 7

and 9 of the complaint left the value of the property at $2,400; and that plaintiff was entitled

to judgment on the pleading for the full amount of his debt. The question turns upon whether

the allegation of paragraph 7 of the complaint is a material allegation within the meaning of

the statute. A “material allegation” in a pleading is one essential to the claim or defense, and

which could not be stricken from the pleading without leaving it insufficient; an allegation

which the plaintiff must prove on the trial in order to maintain his action. Gillson v. Price, 18

Nev. 117, 1 P. 459. The writer is of opinion that paragraph 7 of the complaint could be

stricken and yet leave the pleading sufficient to state a cause of action for damages for the

defendant's failure to return the execution, as alleged in paragraph 8, within the time

prescribed. As shown by paragraph 8, damages for the failure of the defendant to return the

execution is the gravamen of the complaint, and not damages for the loss of property.

It is well settled that, where a sheriff fails to comply ��


with the mandate of a writ of execution there is not only a breach of duty, but the

presumption arises that the plaintiff has been damaged the amount of the debt. The rule is

that, for failure to return an execution, the measure of damages is the actual loss sustained,

which is a prima facie the amount of the execution. Sedgwick on Damages (9th ed.) sec. 556;

Freeman on Executions (3d ed.), 368; 35 Cyc. 1727. Section 1650, Revised Laws, makes it

mandatory upon a sheriff to whom any writ of execution shall be delivered to execute the

same with diligence, according to its command, and to return it without delay to the proper

court, with his certificate endorsed thereon of the manner of its service or execution, or, it not

served or executed, the reasons of his failure. For a failure so to do, he shall be liable to the

party aggrieved for all damages sustained by him on account of such neglect. Since the

measure of damages is the actual loss sustained, which is prima facie the amount of the

execution, we do not understand that in an action for damages for failure to return an

execution it is essential for the plaintiff in order to maintain his action to allege the value of

the property or that the value exceeded the amount of the judgment. We are therefore of

opinion that the point raised is not well taken.

4. Furthermore, the plaintiff pleaded that the property levied upon was the value of $2,400

and in excess of the execution, and upon that question the plaintiff at the trial voluntarily took

the burden of proof. The plaintiff gave evidence of the value of the property, and the

defendant also gave evidence of its value. The cause having been tried on the part of plaintiff

upon the theory that the value of the property was in issue, it is too late to invoke the rule of

pleading relied upon for reversal of the judgment for the first time in this court.

Our conclusion is that the judgment must be affirmed, and it is so ordered.

Coleman, C. J., and Ducker, J.: We concur in the order of affirmance for the reason last

stated.

____________

��49 Nev. 75, 75 (1925) State v. Olivieri��

STATE v. OLIVIERI

No. 2680

June 17, 1925. 236 P. 1100.

1. Criminal Law—Opening Statements by Counsel for State and for Defendant Permissibleunder Criminal Practice Act.

Under criminal practice act of Nevada, both district attorney and defendant or his attorney may

outline testimony to be offered, to end that jury may more clearly sift and digest evidence.

2. Criminal Law—Opening Statements Not Evidence nor Binding as an Admission. Opening statements of counsel are not evidence of any character, and cannot be so considered by jury,

and are not binding as an admission of any fact.

3. Criminal Law—Violation by Prosecuting Attorney of Rule Requiring Opening Statement

To Be Fairly Made Not of Itself Evidence of Bad Faith and Reversible Error. It is duty of counsel, in making an opening statement, to state facts fairly, and refrain from stating

facts which he cannot or will not be permitted to prove, but a mere violation of such rule by prosecuting

attorney is not of itself evidence that he acted in bad faith and reversible error.

4. Criminal Law—Opening Statement of Prosecuting Attorney, Going Beyond Facts Proven,

Held Not Reversible Error, where Not Made with Intent to Influence Jury, and in View

of Conviction of Lesser Crime. In prosecution for assault with intent to kill, statement by prosecuting attorney in his opening

statement, which was not supported by subsequent proof, held not reversible error, where not made with

intentional disregard of truth, or intent to influence jury, and in view of verdict for lesser offense than that

charged.

5. Homicide—Admission of Testimony that Defendant Seen Pointing Revolver Held Not

Prejudicial Error, in View of Conviction of Lesser Offense. In prosecution for assault with intent to kill, admission of testimony that, within a few hours before

defendant shot prosecuting witness, defendant was seen in saloon handling and pointing a revolver, held

not prejudicial error, where defendant was found guilty of a lesser offense.

6. Criminal Law—Defendant Cannot Complain of Statements of Prosecuting Attorney or

Testimony which Reacted in His Favor. Defendant is in no position to complain of statements of prosecuting attorney or admission of

testimony reacting in his favor.

See 16 C.J. sec. 2225, p. 889, n. 32; sec. 2226, p. 889, n. 40, 42; p. 890, n. 45, 46; sec. 2227, p. 891, n. 67, 69;

17 C.J. sec. 3638, p. 298, n. 23; p. 300, n. 37; sec. 3662, p. 317, n. 10; sec. 3723, p. 358, n. 46.


Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

Paladino Olivieri was convicted of an assault with a deadly weapon, and appeals.

Affirmed.

James T. Boyd and Peter Breen, for Appellant:

Statements of district attorney in opening address were uncalled for, did not throw light on

crime charged, were unsupported by evidence, and constitute reversible error. State v. Scott,

37 Nev. 432.

Character cannot be shown by specific acts, but only by reputation in community in which

one lives, nor can one's character for peace and quiet be attacked until he offers evidence of

his good character. State v. Sella, 41 Nev. 134; Underhill on Crim. Ev. sec. 82.

It is prosecutor's duty to be unprejudiced, impartial, to be bent only on seeing justice done

and law vindicated. Mere objection of counsel and admonition by court may not be sufficient

to remove prejudice caused by unwarranted remarks of prosecutor. State v. Rodriguez, 31

Nev. 346.

Antecedent and subsequent acts of person accused of crime are admissible only for purpose

of throwing light on crime, or motive of defendant in crime for which he is being tried, 30

C.J. 195.

Prosecutor accused defendant of being vicious, intoxicated, having killing propensities.

Evidence did not support statement. It was prejudicial error. Williams v. State, 114 P. 1114.

M.A. Diskin, Attorney-General; Thos. E. Powell, Deputy Attorney-General; L.D.

Summerfield, District Attorney, and Harland L. Heward, Assistant District Attorney, for the

State:

Evidence of conduct of defendant shortly before homicide indicating he was in reckless

humor and desired trouble is admissible, and prosecutor may also show he was armed at time

of such conduct. 30 C.J. 195; Wysong v. State, 146 S.W. 941.

Prosecutor's opening address is statement of what he ��


expects to prove. If made in good faith it cannot constitute error. Anyway, jury is sworn to try

case on evidence adduced.

OPINION


The information in this case was for “an assault with intent to kill.” The defendant was

convicted of “an assault with a deadly weapon, with intent to inflict upon the person of

another a bodily injury, where no considerable provocation appears.” The defendant having

been convicted, and a motion for a new trial denied, has appealed from the judgment

sentencing him to imprisonment in the state prison for the term of not less than one year nor

more than two years. Upon the certificate of the trial judge of probable cause for appeal, the

execution of the sentence was stayed pending its final determination.

The appellant, herein referred to as the defendant, seeks reversal of the judgment upon the

ground of the alleged misconduct of the assistant district attorney in making the opening

statement of the facts the state expected to prove, claiming that said attorney was permitted,

over the defendant's objection, to state facts which he could not, or would not, be permitted to

prove upon the trial. The statement complained of was, in effect, that the defendant, shortly

before shooting the prosecuting witness, was intoxicated and in a reckless or vicious humor,

desired trouble, and was armed. The proof on the part of the state did not measure up to the

statement made by its attorney.

1-3. It is permissible under our Criminal Practice Act (Rev. Laws, secs. 6851-7529), after

the reading of the indictment or information by the clerk to the jury and stating the

defendant's plea, for both the district attorney and the defendant or his attorney to outline the

testimony to be offered, to the end that the jury may more clearly sift and digest the evidence.

People v. Weber, 149 Cal. 325, 86 P. 671. Opening statements of �� !��


counsel, however, are not evidence of any character or of anything, and cannot be so

considered by the jury. As to the prosecution or defense, the statement of either is not binding

as an admission of any fact, nor available against either. People v. Stoll, 143 Cal. 689, 77 P.

818. It is the duty of counsel making a statement to state the facts fairly, and to refrain from

stating facts which he cannot, or will not, be permitted to prove. People v. Stoll, supra. Yet

the mere violation of this rule by a prosecuting attorney is not of itself evidence that he acted

in bad faith, and reversible error. People v. Wong Hing, 176 Cal. 699, 169 P. 357; People v.

Davis, 26 Cal. App. 647, 147 P. 1184. Usually such an overstatement reacts upon the party

making it. People v. Gleason, 127 Cal. 323, 59 P. 592; 8 Cal. Jur. Sec. 323.

4. The experienced attorney for the defendant concedes in argument that, where the

defendant is accused of an assault with intent to kill, evidence of the conduct of the defendant

shortly before the shooting, indicating that the defendant was in a reckless or vicious humor

and desired trouble, is admissible upon the question of intent, but contends that where, as in

this case, there is no evidence to support the statement, which could only have been made for

the purpose of inflaming the minds of the jurors against the defendant, such a statement

constitutes reversible error. We find nothing in the record to indicate either an intentional

disregard of truth, or an intent on the part of the assistant district attorney to influence the jury

by a false statement of the facts he expected to prove. The verdict itself furnishes a sufficient

answer to the argument that the jurors were influenced against the defendant by the statement

made by the assistant district attorney in opening the cause for the state.

There is nothing in the case of State v. Fronhofer, 38 Nev. 448, 150 P. 846, in conflict with

what is said by the California authorities cited concerning opening statements. In fact, in State

v. Fronhofer the court said the district attorney may state what he expects to prove without

encroaching upon defendant's rights ��


or taking chances upon committing reversible error. The court said, however, that, as the case

must be reversed, upon other grounds, it need not determine whether the statement

complained of should be regarded as prejudicial error.

5. It is contended that the trial court erred in permitting a witness for the state to testify to

the effect that, within a couple of hours before the defendant committed the act of firing the

shot into the body of the complaining witness, he was seen in the Tip saloon handling and

pointing a revolver. We do not understand, in view of the verdict, how the defendant can

justly claim that the testimony was prejudicial. The jury found that the defendant was guilty

of an assault with a deadly weapon, with intent to inflict upon the person of another a bodily

injury, where no considerable provocation appeared.

6. It is argued that, unless the jury were influenced by the statements of the assistant

district attorney, and the testimony pertaining to the defendant's conduct prior to the shooting,

there would have been no cause for the jury to find the defendant guilty of a much less crime

than that charged in the information. Certainly the defendant is in no position to complain of

statements or testimony which reacted in his favor.


____________

��49 Nev. 80, 80 (1925) Brockbank v. Mining Company��

BROCKBANK v. MINING COMPANY

No. 2692

June 18, 1925. 237 P. 337.

1. Appeal and Error—No Reversal for Erroneous Admission of Evidence Without whichThere is Sufficient Competent Evidence to Support Findings.

Judgment will not be reversed for error not prejudicing losing party, such as admission of improper

evidence, without which there is sufficient competent evidence to support court's findings.

2. Corporations—Agreement of Controlling Stockholders, that Stock of Another Company

Issued to them and Minority Stockholder for Transfer of All Property Should Not Be

Placed on Market Until Issuing Company Was Fully Financed, Held Binding on

Minority Stockholder. Agreement by stockholders, contributing entire capital of and absolutely controlling corporation, that

stock agreed to be issued to them and minority stockholder by another corporation, for transfer of all

property rights of former corporation should not be placed on market until issuing company was fully

financed, held binding on transferor company and minority stockholder, though it did not affirmatively

appear that he was informed of such agreement in respect to his stock.

3. Principal and Agent—Agent's Acts Cannot Be Nullified by Subsequent Revocation of

Power of Attorney. Power of attorney cannot be revoked, so as to nullify attorney's acts before revocation.

4. Damages—“General Damages” and “Special Damages” Distinguished. Damages necessarily resulting from wrongful act are general, and need not be specially pleaded,

while damages which are natural, but not necessary, consequences of such act are special, and must be

specially pleaded.

5. Corporations—Reversal of Judgment for Damages from Depreciation in Value of Stock

before Delivery Not Justified in Absence of Allegations and Evidence that Plaintiff

Contemplated Selling Stock. Mere failure to promptly deliver stock certificates held not to justify reversal of judgment in

stockholder's action denying damages from depreciation in value during time stock was withheld in

absence of allegations, evidence, or findings that plaintiff contemplated selling his stock, though it was

corporation's duty to deliver stock without demand under Rev. Laws, sec. 1157; no special damage being

pleaded.

6. Costs—Plaintiff Held Entitled to Only General Damages in Nominal Sum, and Hence Not

to Costs. Plaintiff having received stock certificates, for depreciation in value of which before delivery he sued,

without alleging or ��


proving that he contemplated selling stock, could recover only general damages in nominal sum, and

hence was not entitled to costs.

See (1) 4 C.J. sec. 2952, p. 971, n. 58; (2, 5) 14 C.J. sec. 720, p. 488, n. 79; 14a C.J. Sec. 3640, p. 1060, n. 98;

(3) 2 C.J. sec. 197, p. 555, n. 23; (4) 17 C.J. sec. 305, p. 1002, n. 72; sec. 306, p. 1002, n. 78; (6) 15 C.J.

sec. 46, p. 44, n. 45.


Action by G. M. Brockbank against the Reorganized Silver King Divide Mining

Company. From a judgment for defendant, and an order denying new trial, plaintiff appeals.

Affirmed.

Cooke, French & Stoddard, for Appellant:

Every stockholder is entitled to delivery of certificate evidencing ownership. Rev. Laws,

1157.

Evidence conclusively shows defendant would have refused to deliver stock because of

alleged pool. Such being case, it cannot allege legal insufficiency of demand. Robinson M.

Co. v. Riepe, 37 Nev. 31.

McLean v. Medicine Co., 56 N.W. 68, cannot apply because this is not action for conversion,

but action on the case for damages specially alleged and proven. In that case plaintiff had

possession of duly endorsed certificates and sued because company refused to enter transfer

upon its books. He neither alleged nor proved special damages, and court held he could not

recover with such plea and proof. In instant case Brockbank never had certificates nor any

evidence of ownership because respondent refused delivery, and he could not sell without

having certificates. 2 Cook on Corporations, sec. 575, holds squarely that action on the case

lies against corporation for wrongful denial to stockholder of certificate, and in such action

one may recover nominal damages only, “unless he proves special damages.” Also, 11 C.J. 2.

5 Fletcher Corp., sec. 3453, does not hold where plaintiff has been damnified by wrongful

refusal to deliver, wrongdoer can absolve himself by simply returning stock after damage has

been ��


inflicted. Nominal damage is confined to cases where plaintiff sustained no actual damages

by refusal to deliver, citing Owen v. Williams, 89 Pac. 778. That was suit for conversion to

recover value of certificates alleged to have been converted. After issues joined, defendant

offered and plaintiff accepted certificates and trial court allowed plaintiff only nominal

damage. The cause of action being extinguished by acceptance, plaintiff could not recover

value and have stock also. Instant case is not for stock or value of it, but for damages suffered

by wrongful refusal to deliver. Only remedy is payment of damages. It takes no great legal

acumen to distinguish between action on conversion where no special damages are claimed,

and action where damages constitute cause of action.

Wm. McKnight, for Respondent:

Plaintiff could not speculate with market price of stock and repudiate if market fell. He

could not remain silent and await vicissitudes of fluctuating market. Meyer v. Morgan, 24

Am. Rep. 621.

Assuming for sake of argument only that D.E. and L.T. Brockbank had no express

authority to act as agents of plaintiff, he is still bound by doctrine of acquiescence. Curry v.

Hale, 15 W. Va. 875; King v. Rea, 21 P. 1084.

Corporation is not bound to carry stock to owner. He must make demand on company or

its officers. Teeple v. Hawkeye Co., 137 Iowa, 206.

Revocation of authority must be in unequivocal language, and will not be inferred if

principal's conduct is not inconsistent with continuance of agency. Fuller v. Brady, 22 Ill.

App. 174; Rawlings v. Nash, 83 Atl. 646.

Plaintiff's letter to defendant, even if it were revocation, could not operate retroactively

and did not affect previous pooling of stock by agent. Meisher v. Cleveland Dryer Co., 11 Ill.

App. 227.

Outstanding weakness of plaintiff's case is his own inaction. Action for specific delivery

would have afforded speedy relief. Jessup v. R.R. Co., 188 Fed. 931.


Transfer of title on stock books is sufficient delivery and it is incumbent on plaintiff to

make demands. Ellis v. Essex B. Co., 2 Pick. 243; Bank v. Richards, 74 Mo. 77.

Actual delivery is not essential to pass title. Certificate is mere evidence of title and not

stock itself. State v. Pettinelli, 10 Nev. 147; State v. Leete, 16 Nev. 250.

To put corporation in default for nondelivery where corporation has not denied right thereto,

demand for issuance of certificate is necessary. Teeple v. Hawkeye, supra; Lipscomb v.

Condon, 56 W. Va. 416.

Without demand, which is refused, money judgment based on market value cannot be

recovered. Teeple v. Hawkeye, supra.

Acceptance of delivery extinguished claim for damage. Collins v. Lowry, 47 N.W. 612;

Owen v. Williams, 89 Pac. 778.

Action, whether “conversion” or “case” relates to form of proceeding, i.e., to remedy, and

not to principle involved.

If there were any conversion it was of unendorsed certificates only, not shown to have

value, and not of stock itself. Daggett v. Davis, 53 Mich. 35.

Special damages are not implied. They must be set forth with particularity. Treadwell v.

Whittier, 22 P. 266; Buckley v. Buckley, 12 Nev. 435.

OPINION


This action was brought to recover damages alleged to have been sustained by reason of

the refusal of the defendant to promptly deliver to the plaintiff certificates for 10,000 shares

of stock in the defendant company, to which the plaintiff claims he was entitled. From a

judgment in favor of the defendant, and an order denying a motion for a new trial, an appeal

was taken. The parties will be referred to as in the lower court.

It is contended that in October, 1922, the plaintiff and numerous others were the owners

and holders of stock in the Homestake Mines Company, a Nevada corporation, �� :��)�� :��)��:��)��


which held options on certain mining claims; that it, about the date mentioned, entered into

an agreement with the defendant company whereby it agreed to transfer to the defendant

company the options so held, in consideration of the payment of its debts, and the issuance of

each of the stockholders of the Homestake Company its own stock, in an amount equal to that

held in the Homestake Company; that the debts of the Homestake Company were paid and

the options mentioned were transferred to the defendant company. Plaintiff further contends

that shortly after the consummation of the deal, and in October, 1922, he sent his 10

certificates in the Homestake Company, aggregating 10,000 shares, to the defendant

company, demanding that it issue and send to him a like number of certificates of 1,000

shares each in the defendant company; that it did issue to him such certificates, but that it

refused to deliver them until some time in June, 1923; and that, by reason of the depreciation

of the market value of the stock between the dates of his demand and the delivery, he was

damaged in the sum alleged.

The trial court made detailed findings of fact in favor of the theory of the case as urged by

the defendant company, and rendered judgment accordingly.

We will state such findings as are deemed necessary. It found that on October 17, 1922, an

agreement was entered into between the Homestake Mines Company and the defendant,

whereby, in consideration of the issuance of the Homestake Company of stock by the

defendant company its stock to the amount of 200,000 shares, and the assuming and the

payment of an indebtedness of not to exceed $5,000, the Homestake Company would transfer

all of its property rights to the defendant company. The court further found:

“That it was not further, or at all, stipulated or agreed in and by said agreement or

otherwise, or at all, that the then outstanding shares of stock of the said Homestake Mines

Company of Nevada might be surrendered by the owners thereof, for cancellation or�� :�� )��'�� :�� )��'��&�� 1


exchange by reissuance or delivery to such stockholders for shares of the stock of the

defendant, at the ratio of share for share, or otherwise, or at all, or that whereupon, or at all,

the defendant would, on demand or otherwise, or at all, issue or deliver shares of its stock to

such stockholder or stockholders of said Homestake Mines Company of Nevada, at the ratio

of share for share, otherwise or at all, or deduct the amount of its said stock, so delivered, or

otherwise, or at all, to former shareholders of said Homestake Mines Company of Nevada,

from the said 200,000 shares, so or at all agreed upon, between the said corporations, as a part

of the consideration for said assignment or transfer of said options or agreements.”

It was further found that the defendant issued and delivered its certificates of stock to the

Homestake Company for 200,000 shares, and paid the indebtedness assumed; that at the time

of the making of the agreement mentioned the Homestake Company had caused to be issued

to the plaintiff certificates for 10,000 shares of its stock; that it was agreed between D.E.

Brockbank and L.T. Brockbank that they would furnish a list of the names of all persons to

whom the 200,000 shares of stock to be issued to the Homestake Company should be

reissued, and that all of the stock so to be issued to the members of the Brockbank family

should be held in pool until such time as the defendant company was properly financed, and

that the plaintiff is a member of the Brockbank family; that on or about November 11, 1922,

the defendant issued certificates of stock to the plaintiff for 10,000 shares of its stock, but that

the same was not delivered because of the pool agreement. The court further found that on

May 6, 1923, there was a meeting held at Reno, Nevada, attended, among others, by D.E.

Brockbank, who held a power of attorney from the plaintiff which authorized the said

attorney in fact to enter into a pool agreement in behalf of plaintiff for a further period of six

months, and that such pool agreement was entered into, and that in pursuance thereto a�� '��;��


telegram was sent to certain parties in New York with a view of interesting them, wherein it

was stated that such further pool agreement had been made.

It is further found that the plaintiff made no demand of the defendant for the delivery to

him of stock certificates until May 16, 1923, that his certificates were delivered to the

plaintiff on June 21, 1923, but that the plaintiff did not sell the same until the month of

August. It is further found that at the time of the delivery of the stock to the plaintiff no

assessment by the defendant upon its stock was contemplated. It is further found that the

defendant at no time wrongfully withheld stock from the plaintiff.

If these findings are justified by the evidence, the order and judgment must be affirmed.

1. Many errors are assigned but we will not consider them in detail. It is said that the court

erred in many instances in admitting in evidence much irrelevant and immaterial evidence. It

is true, as contended, that much improper evidence is admitted, but eliminating it from

consideration, there is sufficient competent evidence to support the findings of the court, and

no judgment will be reversed because of error which does not prejudice the losing party.

2. The undisputed evidence in the case is to the effect that D.E. Brockbank and L.T.

Brockbank, brothers of the plaintiff, contributed all of the money which went into the

Homestake Company, and that they absolutely controlled it. So far as appears from the record

in the case, no meeting of either the directors or the stockholders of the Homestake Company

was ever held to ratify the contract made by D.E. and L.T. Brockbank in its behalf with the

defendant company.

The testimony of R.L. Colburn of the defendant company as to the negotiations for the

deal, which resulted in the issuance of the 200,000 shares of stock by the defendant to the

Homestake Company, is that D.E. Brockbank and L.T. Brockbank went to San Francisco,

where all of the negotiations were had, and that, after the terms of the agreement were

reached, ��"��


the parties went to an attorney's office, where the minutes of the defendant company

approving the deal were prepared. He also testified that the understanding was that none of

the stock to be issued by the defendant company going to the Brockbanks should be placed

upon the market until the property was fully financed.

Though it does not appear affirmatively that the plaintiff was informed that it was agreed

that his stock should not be placed on the market, the agreement was nevertheless binding

upon the Homestake Company, and upon him as a stockholder in that company. While the

evidence is somewhat contradictory, we think all of the circumstances warrant the conclusion

reached by the court.

3. Had there been no agreement in the first instance as to the selling of the Brockbanks

stock, we think there is enough in the case to necessitate an affirmance. The plaintiff never

demanded his stock until May 16. On May 6 the meeting was held in Reno at which time the

plaintiff was represented by his attorney in fact, and, as found by the court, an agreement to

further pool the stock until the company was financed was made. The evidence as to this too

is contradictory, but we cannot say that the court was not justified in its finding. Counsel for

plaintiff says, however, that the principal is greater than the agent, and can revoke a power of

attorney at any time, and that his demand for the stock on May 16 was, in effect, a revocation

of such power of attorney. We are in accord with the contention as to the power of revocation

with one qualification, which is that a power of attorney cannot be revoked so as to nullify the

acts of an attorney if done prior to the revocation, and in this instance, the attorney having

acted on May 6, the attempted revocation on May 16 did not affect what had been done prior

thereto.

4-6. Counsel for the plaintiff says that pursuant to section 1157, Rev. Laws, it was the duty

of the defendant to deliver the stock without a demand. Assuming, for the purpose of this

case, without so deciding, that such is the law, we think the case of McLean v. Charles*�� )��


Wright Medicine Co., 96 Mich. 479, 55 N.W. 68, cited by counsel for respondent, controls

this case. Counsel for plaintiff concedes that the case mentioned would be an authority

justifying an affirmance of the judgment, but for the fact that the complaint pleads special

damages. We cannot agree with the assertion that the complaint pleads special damages.

Damages which necessarily result from a wrongful act are general damages, and need not be

specially pleaded, while damages which are the natural, but not the necessary consequences

of a wrongful act, are special in their nature, and must specially pleaded. Buckley v. Buckley,

12 Nev. 423, 435. Assuming, then, that the defendant was guilty of a wrongful act in not

promptly delivering the certificates of stock to the plaintiff, and as a result he is entitled to

recover general damages in a nominal sum, what facts are alleged in the complaint charging

any damages which are the natural but not the necessary consequences of the nondelivery of

the stock certificates to the plaintiff? Surely the mere failure of the defendant to deliver the

stock certificates to the plaintiff did not naturally result in damaging the plaintiff, other than

nominal damages, even though the stock did depreciate in value during the period of

nondelivery. So far as appears from the pleadings, the evidence, or the findings, the plaintiff

did not desire or contemplate selling his stock. If he had no desire to sell the stock, but to hold

it in the belief that the property would make a mine, and that the stock would ultimately, as a

result, attain great value, surely the mere fact that he did not have possession of the stock

certificates (his ownership to the stock, and rights as a stockholder being in no way

questioned), no matter what reason therefor was given, would result in no natural damage to

the plaintiff. As we view the complaint, no special damage is pleaded. In this view of the

case, the plaintiff having received his stock certificates, he can recover only general damages

in a nominal sum which would not entitle him to costs under our statute.

Other questions are discussed, but, in the view we take of the case, it is not necessary to

consider them.


Counsel for plaintiff, in his oral argument, dealt very harshly with the defendant company,

attributing ulterior motives to it, and contending for the existence of certain facts reflecting

upon the honesty of purpose of the defendant. We think these statements are answered by the

findings of the court, which are fully justified by the record. In fact, this suit by the plaintiff

seems to be the result of deferred consideration. He received his stock in June, and held it

until August, six or seven weeks. Reading the entire record, we are impressed with the idea

that the plaintiff did not desire to sell his stock, but contemplated holding it with the hope that

the property owned by the defendant company would make a mine.

No prejudicial error appearing, it is ordered that the judgment and order appealed from be

affirmed, respondent to recover its costs.

____________

��49 Nev. 90, 90 (1925) McNee v. McNee��

McNEE v. McNEE

No. 2689

July 6, 1925. 237 P. 534.

1. Appeal and Error—Final Determination of All Questions of Conflicting Evidence within

Trial Court's Province, and Supreme Court Limited to Ascertaining if There is Evidence

on which Conclusions Could Reasonably Be Formed. In suit under Rev. Laws, sec. 2355, to annul a marriage for want of understanding due to intoxication,

it was within province of trial court to finally determine all questions of conflicting evidence, and duty of

supreme court is merely to ascertain if there is evidence upon which lower court could have reasonably

formed its conclusion.

2. Appeal and Error—Evidence—Trial Court May Base Its Judgment on Testimony of One

Witness against that of Several, and Appellate Court without Power to Enforce

Contrary Opinion by Reversal. A trial court may base its judgment on testimony of one witness against that of several, if it is of

sufficient weight to force conviction of truth to reasonable minds, and appellate court is without power to

enforce a contrary opinion by reversing judgment.

3. Marriage—Evidence Held to Sustain Finding that Plaintiff, for Want of Understanding

Due to Intoxication, Was Incapable of Assenting to Marriage Contract. In suit under Rev. Laws, sec. 2355, to annul marriage, evidence held to sustain finding that plaintiff,

for want of understanding due to intoxication, was incapable of assenting to marriage contract, warranting

annulment of marriage.

4. Marriage—Burden on Plaintiff to Prove by Satisfactory Evidence that He Was So Far

Intoxicated as to Have Been Incapable of Giving Rational Assent. In suit under Rev. Laws, sec. 2355, to annul marriage for want of understanding due to intoxication,

burden was on plaintiff to prove by clear and satisfactory evidence that he was so far intoxicated as to

have been incapable of giving rational assent to obligations imposed.

5. Evidence—Plaintiff's Brothers and Business Associates Held Qualified to Express

Opinion as to Mental Capacity to Understand Seriousness of Marriage Contract. In suit to annul marriage for want of understanding due to intoxication, plaintiff's brothers and

business associates, held qualified to give their opinions as to whether plaintiff had mental capacity to

understand seriousness of marriage contract.

See. (1, 2) 4 C.J. Sec. 2855, p. 883, n. 33; p. 885, n. 39; (3, 4) 38 C.J. sec. 131, p. 1354, n. 27; p. 1355, n. 29;

(5) 22 C.J. sec. 766, p. 678, n. 18.

Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.

��49 Nev. 90, 91 (1925) McNee v. McNee��

Action by Frederick A. McNee against Sadie G. McNee to obtain annulment of marriage.

From a judgment annulling marriage and order denying new trial, defendant appeals.

Affirmed. (Sanders, J., dissenting.)

Cooke, French & Stoddard, for Appellant:

Unsoundness of mind which will invalidate contract must exist at very time contract is

made, regardless of condition before or after. Rev. Laws, 2355; Dunphy v. Dunphy, 119 P.

512.

Opinions of nonexperts as to drunkenness several hours after ceremony, without facts

stated upon which opinions are based is no proof at all. Baughman v. Baughman, 4 P. 1006.

Burden of proof is on plaintiff to prove extent of incapacity. 29 Cyc. 913. Presumption is

for legality of contract. Evidence to repel must be satisfactory. 18 R.C.L. 427, Waughop v.

Waughop, 143 P. 444. Presumption of legality of marriage is the strongest presumption in the

law. 18 R.C.L. 416.

Mere weakness of mind or partial intoxication is not enough to annul marriage. Party must

be incapable of assent. Rev. Laws, 2355; 19 C.J. 814; Party must be “deprived of reason.” 26

Cyc. 844; Prine v. Prine, 34 L.R.A. 91.

Hoyt, Norcross, Cheney & Hoyt, for Respondent:

We have no serious controversy with counsel in respect to law governing cases of this

kind, but no two cases are precisely alike and it is province of trial court to consider all facts

to determine whether party was in possession of sufficient mentality to enter into solemn and

binding obligation. Our statute specifies as degree of incapacity, “want of understanding.”

Rev. Laws, 2355.

Trial court may conclude from all facts that party was incapable, though his demeanor at

time of ceremony did not so indicate to witnesses. True test is whether party was capable of

understanding obligations assumed by marriage. Findings of trial court are overthrown on

appeal only when they totally lack support of substantial ��

��49 Nev. 90, 92 (1925) McNee v. McNee��

evidence. Conflicts of testimony are deemed to be resolved in court below. Dunphy v.

Dunphy, 119 P. 512.

OPINION


This is an appeal from an action instituted to obtain an annulment of marriage. The

complaint states two causes of action. In the first it is alleged: That the plaintiff and

defendant, on or about the 21st day of April, 1921, at the town of Ingersoll, Province of

Ontario, Dominion of Canada, entered into a form of marriage, and were by reason of said

form declared to be husband and wife; that at the time of entering into said form of marriage

the plaintiff, by reason of want of understanding, occasioned by intoxication, was incapable

of assenting thereto. In the second cause of action it is alleged: That at the time of entering

into said form of marriage and immediately prior thereto, the defendant, taking advantage of

the plaintiff's condition and want of understanding, did then and there fraudulently persuade

plaintiff to enter into said form of marriage for the purpose of obtaining from plaintiff or his

family a pecuniary advantage. It is alleged that there has been no subsequent cohabitation of

plaintiff and defendant since entering into said form of marriage.

The allegations set forth in the complaint as grounds for annulment, with the exception of

the fact of no cohabitation, are denied in the answer specifically and by the statement of facts,

which, in effect constitute denials.

The action was tried before the court without a jury. Plaintiff prevailed, and a judgment

was rendered on the 20th day of September, 1924, annulling the marriage, and declaring it to

be wholly void from the date of judgment. Defendant has appealed from the judgment and the

order denying the motion for a new trial.

The section of our statute which authorizes an action of this kind reads:

“When either of the parties to a marriage, for want of age or understanding, shall be

incapable of assenting �� 1

��49 Nev. 90, 93 (1925) McNee v. McNee��

thereto, or when fraud shall have been proved, and there shall have been no subsequent

voluntary cohabitation of the parties, the marriage shall be void from the time its nullity shall

be declared by a court of competent authority.” Section 2355, Rev. Laws, vol. 1.

No evidence was introduced in support of the cause of action based on fraudulent

persuasion, the plaintiff confining his proof to his alleged state of intoxication at the time of

the marriage. Upon this phase of the case the court found as follows:

“That at the time of entering into said form of marriage plaintiff, by reason of want of

understanding occasioned by intoxication, was incapable of assenting thereto.”

The court further found:

“That since the entering into said form of marriage there has been no subsequent

cohabitation of plaintiff and defendant.”

Upon the latter finding there is no conflict of evidence whatever. It was conclusively

proven that there was no cohabitation after the marriage. But as to the former finding the

evidence is conflicting. Counsel for appellant contend that there is no substantial evidence to

support the finding of the court. This is the only question presented for determination. We

need not undertake to define the degree of intoxication of a party to a marriage which will

authorize a judgment annulling it. The test appears in the statute, which declares:

“When either of the parties to a marriage, for want of * * * understanding, shall be

incapable of assenting thereto. * * *”

We assume that the trial judge applied this test to the evidence before him in reaching the

conclusion that the marriage was void by reason of the degree of plaintiff's intoxication at the

time the ceremony was performed.

1. We have carefully considered all of the evidence bearing upon the issue presented, and

are of the opinion that there is substantial evidence to justify the court in making the finding

and rendering the judgment annulling the marriage. There is evidence which would have!��

��49 Nev. 90, 94 (1925) McNee v. McNee��

justified a contrary conclusion, but it was within the province of the lower court to finally

determine all questions of conflicting evidence. Our duty goes no further than to ascertain if

there is evidence upon which the lower court could have reasonably formed the conclusion

that the plaintiff, for want of understanding due to intoxication, was incapable of assenting to

the marriage contract. As stated in Dunphy v. Dunphy, 161 Cal. 380, 119 P. 512, 38 L.R.A.

(N.S.) 818, Ann. Cas. 1913b, 1230:

“We are not empowered to determine, as an original question, whether the plaintiff was or

was not of unsound mind. Our duty begins and ends with the inquiry whether the trial court

had before it evidence upon which an unprejudiced mind might reasonably have reached the

conclusion which was reached. Conflicts of testimony are deemed to have been finally

resolved in the court below.”

Our own decisions are in accord with that statement.

We deem it unnecessary to state more than a brief summary of the evidence, which we

regard as sufficient basis for the judgment of annulment. To state the testimony of defendant

would prolong this opinion and serve no useful purpose, for it is conceded that it supports her

defense that plaintiff was not intoxicated at the time of marriage. It is not, however, as we

have already indicated, of such strength to weaken plaintiff's evidence to the extent that the

trial court was not entitled to reasonably consider it worthy of belief, and to base its judgment

upon it.

The parties resided in London, Ontario, and had been keeping company for several months

prior to their marriage. On the night before their marriage they were together at the London

Hunt Club near London until about 1:30 a.m., April 22, 1921, when they returned to London,

and thence to the town of Ingersoll, where they were married at about noon of that day.

Ingersoll is about 18 miles from London. They went in an automobile from London to

Ingersoll and back to London after the marriage, the plaintiff driving the car going ��

��49 Nev. 90, 95 (1925) McNee v. McNee��

and returning. On the same day, after a conference with his brothers and an attorney, plaintiff

left London for New York in company with one of his brothers. The plaintiff and defendant

did not meet again until in the courtroom at Reno at the time of the trial. Plaintiff had been

employed by his brothers as a bookkeeper for some time prior to the marriage. Plaintiff's

version of his recollection of the marriage, and the incidents prior thereto, is substantially as

follows: From the time he first met defendant until the day of his marriage, he was drinking

every night, except on three occasions. Practically every night he became completely

intoxicated in her company. On the evening of the 21st of April they went to the London

Hunt Club in an auto and sat in the driveway of the club and drank a bottle of Scotch whisky.

They both became intoxicated, and plaintiff remembered little more until after his marriage.

He had a very dim recollection of going through a marriage ceremony. He had no intention of

getting married, and had never asked defendant to marry him. On cross-examination he

testified that he had no recollection of incidents on the night before the marriage after about

half past 10 o'clock; that he had no recollection of how he happened to go to Ingersoll, or who

suggested it; and had no recollection of how he found the minister's house or when he left

there. He could not remember getting the marriage license.

According to the deposition of the steward of the London Hunt and Country Club, he saw

the plaintiff and defendant at the club on the night of the 21st of April, 1921, and drove them

to London. The steward testified:

“He (plaintiff) was drunk. He acted foolish. He was asleep and woke up dazed and stupid.

The defendant asked me to drive them to town. She said if I didn't she wasn't going to ride

with him. I drove them into town, and left them at a corner of Adelaide and King streets about

1:30 a.m. the 22d of April, 1921. He was still under the influence. A day or so afterwards I

saw the paper, and the defendant called me up and asked me ��#�� #��

��49 Nev. 90, 96 (1925) McNee v. McNee��

if I remembered the date, and could I say the plaintiff was not drunk. I said I would say he

was tight.”

In reply to cross-interrogatories, the steward said:

“He was very drunk early when I got in at 12:30 a.m. He appeared stupid and dazed, and

he was still under the influence at 1:30 a.m. when I left him. He smelt strongly of liquor.”

In addition to the deposition of the steward, plaintiff introduced in evidence the

depositions of his three brothers, James A. McNee, Ernest D. McNee, and Elmer W. McNee,

the deposition of John Wesley Cunningham, an accountant for the McNee brothers, and the

deposition of Newenham Parke Graydon, a solicitor. Each of the witnesses saw the plaintiff

on the day of the marriage shortly thereafter. In part, James McNee testified:

“He (plaintiff) came into my office in London, 381 Clarence street, about 12:30 noon. His

appearance indicated he had been drinking heavily. He looked stupid, and smelt strongly of

liquor. At periods he drank heavily. Took it occasionally and at times to excess, and acted

very foolish when under its influence. I don't think he was in a condition to realize the

seriousness of the contract he entered into. He went home, 370 Queens Avenue, London, and

from there took train in a few hours for New York. My brother Elmer accompanied him. I

didn't think he was in a fit state to travel alone.”

Asked on cross-examination to state the facts on which he based his opinion that plaintiff

was not in a mental condition to comprehend a matter of the seriousness of entering into a

marriage contract, the witness replied: “Had silly expression, acted as if stupid, and reeked

with liquor.” The witness gave his opinion that the plaintiff had been under the influence of

liquor for several hours.

Ernest D. McNee saw the plaintiff at about 12:30 p.m. on the day of the marriage. In

substance he testified:

“He (plaintiff) was simply intoxicated to the extent of not knowing what he was doing. He

smelt strongly of liquor and was stupid. At periods he drank to excess ��

��49 Nev. 90, 97 (1925) McNee v. McNee��

for a long time back, drank to excess at intervals. He was in a condition in which he could not

comprehend the seriousness of this contract or any other. Elmer McNee accompanied my

brother, the plaintiff, to New York, because he was in no condition to travel alone. The

plaintiff never indicated any intention of marrying to any one, and made absolutely no

preparations for same, nor did he have the necessary equipment by way of wearing apparel.”

On cross-examination the witness was asked to state the facts upon which he based his

opinion that his brother was not in a mental condition to comprehend the seriousness of

entering into marriage, and replied:

“I did not consider he was in a mental condition to understand or comprehend what he was

doing because he was stupid from drink.”

The witness testified further:

“I saw him the day before his marriage some time during the day. From his condition when

I saw him after his marriage he must have been intoxicated at the time of the marriage.”

Elmer McNee saw the plaintiff on the day of the marriage at about 1:30 p.m. In substance,

he testified:

“He was in a drunken condition for several hours, by his appearance. He drank to excess,

and became uncontrollable at intervals. He went to New York on the train leaving London at

5 p.m. I accompanied him, as he was unable to look after himself. He proceeded under legal

advise. From his condition at the time I saw him I would judge he had been in that state for

some time, including the marriage. He never intimated to me or any one that (he)

contemplated marriage, and made no preparations for same, nor did not have clothes or even

any bag suitable for that purpose.”

He was asked if, in his opinion, the plaintiff was in such mental condition as to be unable

to comprehend the seriousness of entering into a marriage contract, and answered:

“He would not know what he was doing or understand the seriousness of any contract.”

During the cross-examination the witness said: <8��

��49 Nev. 90, 98 (1925) McNee v. McNee��

“Periodically he drank to excess. He was stupid and dopey, and reeked of liquor. He did

not seem to know what he was doing. I went with him to New York. I was not present at the

marriage ceremony. The plaintiff was apparently under the influence of liquor when he

separated personally from the defendant.”

Newenham Parke Graydon had known the plaintiff for ten years. He saw him at 370

Queens Avenue, London, on the 22d day of April, 1921, at about 2 p.m., where he had been

called for an interview. Concerning plaintiff's condition, the witness testified:

“He was considerably under the influence of liquor—was stupid and smelt strongly of

liquor, and had the appearance of having been on a spree and in that condition for some time

previously. In my opinion at that time he was not in a condition to comprehend the

seriousness of a marriage ceremony.”

The witness also stated:

“He went to New York about 5 p.m., accompanied by his brother Elmer.”

In reply to the question whether, in his opinion, the plaintiff was in a condition to safely

travel alone, the witness said:

“No; I advised him to go, and one of the family to go with him to look after him in his

condition.”

On cross-examination, when asked to state the facts upon which he based his opinion that

the plaintiff was not in a condition to travel safely alone, the witness said:

“He was under the influence of liquor then—was stupid—smelt strongly of liquor, and did

not seem capable of looking after himself. He was steeped in liquor.”

John Wesley Cunningham had known the plaintiff for 23 years. He saw him at about 12:30

p.m. on the 22d. The witness stated:

“He was plainly intoxicated—stupid and silly; he appeared as if he had been in that

condition for some time. He said: ‘Mr. Cunningham, I am married.' I replied: ‘Fred you are

silly; you don't know what you are talking about.'” (�� -

��49 Nev. 90, 99 (1925) McNee v. McNee��

Asked to state his opinion as to the condition of plaintiff when he saw him the witness

replied:

“The usual condition of a man who had been drinking heavily for some time. He did not

seem to have full possession of his faculties; seemed to be confused in what he was saying

and doing.”

On cross-examination the witness was asked to state the facts upon which he had based his

opinion, and replied:

“From his stupid, befuddled appearance, and he reeked of liquor. Quite different from his

appearance and conduct on ordinary occasions; from his appearance; from the smell of liquor

on him, and from the stupid manner in which he acted.”

2, 3. Such, in substance, constitutes plaintiff's evidence. According to his testimony he was

so far gone in drunkenness at the wedding as to have no rational conception of what he was

doing. He had, he said, a very dim recollection of going through a marriage ceremony. It was

just a haze. If his testimony was true, he did not have the understanding required by law to

enter into a valid marriage. Whether it was true or not was for the trial court to determine

after a fair and candid consideration of all the evidence bearing on the point. A trial court may

base its judgment upon the testimony of one witness against the testimony of a number of

witnesses, if it is of sufficient weight to force a conviction of truth to a reasonable mind, and

the appellate court is without power to enforce a contrary opinion by reversing the judgment.

Aside from plaintiff's testimony, which also disclosed an almost constant drinking to

excess during the time he was keeping company with the defendant, there is the evidence of

his witnesses, which the trial court could properly consider, that he was very drunk during the

night preceding the day of the marriage and very soon after it. The minister stated that the

marriage ceremony was performed about noon of the 22d. About an hour afterwards he was

seen by the brothers, the accountant, and, a little later, by the solicitor. If their testimony is

worthy of belief, he was then in a drunken, ��

��49 Nev. 90, 100 (1925) McNee v. McNee��

stupid condition, and smelt strongly of liquor. The steward of the London Hunt Club, who

may be regarded as a disinterested witness, testified that he was in the same condition when

he, at defendant's request, drove them from the club to London, and left them there at 1:30

a.m. “He was stupid and dazed,” the steward said, “and was still under the influence at 1:30

a.m. when I left him. He smelt strongly of liquor.” Defendant's counsel contend that this

evidence is too remote from the time of the marriage to be of any consequence. They argue

that he could have been very drunk on these occasions and perfectly sober at the marriage.

The inference is, of course, a legitimate one, but a contrary inference may also be indulged.

4, 5. It is true that such evidence standing alone would have been insufficient to sustain the

action of the trial court, the burden being on plaintiff to prove by clear and satisfactory

evidence that he was so far intoxicated when he went through the marriage ceremony as to

have been incapable of giving a rational assent to the obligations imposed. But it does not

follow that evidence of extreme drunkenness shortly before and shortly after the marriage was

not material to be considered by the trial court in connection with the evidence of intoxication

at the time. We have no means of knowing what, if any, weight the trial court gave to the

statements of plaintiff's witnesses to the effect that in their opinions he did not have the

mental capacity to understand the seriousness of the marriage contract. But we are not

prepared to say as a matter of law that they should have been rejected, especially the opinions

of the three brothers. Their close relation to him and business connection with him, their

knowledge of his periodical drinking excesses, their observation of his mental condition

shortly after the marriage, qualified them to give their opinions on the subject, which the trial

judge could accord such weight as he thought they deserved, having due regard, of course, for

the relationship existing between them and plaintiff, which might predispose them in his

favor.

��49 Nev. 90, 101 (1925) McNee v. McNee��

We do not consider it necessary to comment on the many unfavorable inferences argued by

counsel from plaintiff's evidence. These were conclusively resolved against defendant by the

judgment of the trial court, which we hold is supported by substantial evidence.


Coleman, C. J.: I concur.

Sanders, J.: I dissent.

____________

��49 Nev. 101, 101 (1925) Cornell v. Gobin��

CORNELL v. GOBIN

No. 2675

August 5, 1925. 238 P. 344.

1. Appeal and Error—Statute of Frauds Cannot Be Raised for First Time on Appeal. Statute of frauds cannot be raised for first time on appeal.

2. Ejectment—Evidence Held Not to Show that Party through Whom Plaintiffs Claimed Had

Surrendered Land to Defendant. In action in ejectment to recover possession of unsurveyed government land, evidence held not to

show that company through whom plaintiffs claimed had surrendered land to defendant.

3. Evidence—Where Trustee in Bankruptcy Had Sold Property Under Order of Court, there

Is a Presumption that Bankrupt Listed Property Among Its Assets. Where trustee in bankruptcy has sold property under order of court, there is a presumption that

bankrupt listed property among its assets.

4. Ejectment—Evidence Held Not to Show that Company through Whom Plaintiffs Claimed

Land Had Abandoned It. In action in ejectment to recover possession of unsurveyed government lands, evidence held not to

show that company through whom plaintiffs claimed had abandoned land.

5. Ejectment—Plaintiffs Held Entitled to Judgment for Possession of Land, where Party

through Whom They Claimed Had Been in Actual Possession of Property at Time of

Defendant's Entry. Where, in action in ejectment to recover possession of unsurveyed government land, party through

whom plaintiff claimed had been in actual possession at time of defendant's entry, and there was no

showing that transfer of right to possession was made to defendant, held plaintiff was entitled to judgment

for possession of premises.


6. Ejectment—Where No Legal Title Is Shown in Either Party, One Showing Prior

Possession in Himself Has Better Right. Where no legal title is shown in either of adverse claimants to land, the one showing prior possession

in himself or those through whom he claims has the better right.

7. Ejectment—Prima Facie Case Is Established in Action in Ejectment, when Plaintiff Proves

Prior Possession in Some One of His Grantors in His Chain of Title. Prima facie case is established in action in ejectment, when plaintiff proves prior possession in some

one of his grantors in his chain of title.

8. Public Lands—Government Only Can Raise Question whether Corporation Can Take and

Hold Possession of Land, Title to Which Is in United States. In action in ejectment to recover possession of unsurveyed government land, whether corporation

could take or hold possession of land, title of which was in the United States government, held to be

question which government alone could raise.

See (1) 3 C.J. sec. 593, p. 701, n. 87; (2, 4, 5, 6, 7) 19 C.J. sec. 25, p. 1048, n. 92; sec. 33, p. 1056, n. 4; sec.

249, p. 1178, n. 30; sec. 251, p. 1180, n. 54; 1 C.J. sec. 8, p. 7, n. 36; (3) 22 C.J. sec. 68, p. 128, n. 83;

sec. 82, p. 146, n. 51; (8) 32 Cyc. p. 821, n. 76; p. 823, n. 82.

Appeal from Third Judicial District Court, Lander County; W.R. Reynolds, Judge.

Action by E.B. Cornell and another against Percy B. Gobin. From a judgment for

defendant, and an order denying plaintiff's motion for a new trial, the latter appeal. Judgment

reversed, and cause remanded.

A.L. Haight, for Appellants:

Defendant is not entitled to affirmative relief where no such relief is asked for by way of

cross-complaint or counterclaim. Powers v. Van Dyke, 117 P. 797.

Where no legal title is shown in either party, one showing prior possession in himself or

grantors has better right. Plaintiff in ejectment may recover against defendant having no better

right and who relies solely on later possession or entry. 15 Cyc. 30; Staininger v. Andrews, 4

Nev. 59.

Possession of grantors inures to successor. Southerland, Pl. & Pr. 6301.


Right to government land cannot be initiated by trespass. Short v. Read, 30 Nev. 373;

Nash v. McNamara, 30 Nev. 114.

What is necessary to constitute actual possession varied with localities and circumstances.

Courtney v. Turner, 12 Nev. 345.

Surrender must be in writing. Rev. Laws, 1069.

Actual residence is not necessary on possessory claim; use and dominion are notice to

world. Tidwell v. Cattle Co., 53 P. 192.

Jumper cannot oust squatter. Nickals v. Winn, 30 P. 435.

Morley Griswold, for Respondent:

Counsel for appellants correctly state law, but our contention is that Porter, Ryan, et al., up

to and including Frank Company, were in actual possession; that it surrendered its possession

to defendant; that he has been in possession ever since; that his possession is therefore lawful;

that defendant did not eject or oust plaintiffs, and trial court so found, and finding is

supported by uncontradicted evidence. Fallon Company, through which plaintiffs claim,

never claimed or had possession, but recognized possession of defendant. Sankey v. Noyes, 1

Nev. 58.

Party may surrender right to property when it is dependant upon possession only. 1 C.J. 10;

Gluckeuf v. Reed, 22 Cal. 369.

Supreme court will not disturb finding if supported by substantial evidence. Turley v.

Thomas, 31 Nev. 181.

OPINION


This is an action in ejectment to recover possession of 80 acres of unsurveyed government

land situated in the county of Lander, and damages for withholding possession. The trial was

had before the court without a jury. Judgment was rendered in favor of defendant. Plaintiffs

appeal from the judgment and order denying ��


their motion for a new trial. Plaintiffs never had possession of the land, but base their right of

possession and to recover upon the following facts established by the evidence: The land was

occupied from 1871 to 1876 by a man named Porter. In the fall of the latter year he sold it to

one Dinsmore, who shortly afterwards transferred it to James Ryan. From 1876 to 1917 it was

occupied every summer by Ryan and his family, and was known as the Ryan possessory

claim. In 1917 the Ryans conveyed it by deed to the Frank Ranch and Cattle Company. On

the 19th of December, 1921, the Frank Ranch and Cattle Company was duly adjudged a

bankrupt. After due proceedings in the bankruptcy court, the land and improvements thereon

were, by deed dated May 2, 1922, conveyed by the trustee in bankruptcy to the Fallon Land

and Stock Company, a corporation. By deed dated July 11, 1923, the Fallon Land and Stock

Company conveyed the property to plaintiffs herein. On or about August 2, 1923, E.B.

Cornell, one of the plaintiffs, made demand of defendants for the possession of the premises,

which was refused. The various acts of dominion over the land showed actual possession of it

by Porter, Ryan, and Frank Ranch and Cattle Company.

1. Counsel for defendant concedes that they were respectively in actual possession of the

land, but contends that, prior to the Frank Ranch and Cattle Company's being adjudged a

bankrupt, it surrendered possession to defendant, and that he ever since has been in the lawful

possession as found by the court. It is claimed that the uncontradicted evidence supports this

contention. The evidence relied on is furnished by the testimony of the defendant, his wife,

and his brother, H.D. Gobin. It is not contended that the Frank Ranch and Cattle Company

made the surrender in writing. The defendant testified that he received no deed for the

property from the Frank Ranch and Cattle Company. In this connection counsel for plaintiffs

seeks to raise the question of the statute of frauds, and insists that we �� !��


should on this ground reverse the case and direct the lower court to enter a judgment for

plaintiffs. But, so far as the record discloses, the plaintiffs made no objection on this ground

to the evidence of the defendant touching the manner in which he claims to have acquired the

property from the Frank Ranch and Cattle Company. The statute of frauds cannot be raised

for the first time on appeal. The objection must first be taken in some appropriate way in the

court below; otherwise it will be deemed to have been waived. 25 R.C.L. p. 743, and cases

cited in note 17; Bommer v. American S.B.H. Mfg. Co., 81 N.Y. 468. We are of the opinion,

however, that the evidence does not establish a parol surrender of the property by the Frank

Ranch and Cattle Company to the defendant, or any abandonment, as is also claimed.

Substantially stated, the evidence of the defendant in the regard is as follows: H.D. Gobin

was foreman of the Frank Ranch and Cattle Company, and as such had supervision of its

several ranches, including the land in question, from December, 1917, to November, 1920.

Defendant, who entered the employ of the company as a ranch hand in February, 1919,

succeeded his brother as foreman when the latter resigned in December, 1920. He continued

to act as such foreman for the company and for the trustee in bankruptcy until the 15th or

16th of January, 1922. He moved onto the land in February, 1922. In his testimony he says

that some time in the summer of 1920 he went to the office of Louis Cohn in Reno and filed

on the land; that one Sam Frank went with him and was present when he filed on the land;

that the latter advised him to file on it. A short time afterwards, when the defendant went to

the Fallon ranch belonging to the company, Frank had a surveyor there for him, and his

brother took defendant and the surveyor to the place and waited while it was surveyed. This

was done with the consent and approval of Frank. Later, when the defendant was going to

Fallon for a bunch of cattle, he met Frank on the road. Frank had ��"��


defendant's filing paper and leave of absence for him to sign. Defendant signed them, and

Frank took them to a place called Ione and mailed them. Defendant's brother, H.D. Gobin,

testified that he had had a talk with Frank concerning the place, and that Frank wanted him to

file on the land and take it up. He said he did not want it. He had talked with Frank about his

brother taking the place, and knew of his own knowledge that he was there with Frank's

consent. He heard the latter say that he had turned all of the company's interest to the

defendant. He testified that his brother started in to reside on the place in February, 1922. The

defendant's wife testified that they established their residence on the place in February, 1922.

“He had a chance to make a home there,” she said, “and get a homestead, and Sam Frank said

he could have it, and why not take it?” She testified that she heard a conversation over the

telephone between her husband and Frank, in which the former said he could not stay very

much longer because his leave of absence was up, and if Frank wanted him to run his cattle

for him he would have to put a man over there for him in his place. Frank agreed to put a man

there and pay his wages. In this connection, the defendant testified that the company put a

man on the place by the name of Snell, and paid his wages, with the understanding that the

company was to get the hay and use of the pasture for the pay of the man. Defendant paid

Snell his wages by check, which he wrote for the company. It appears from the testimony of

Snell, who was a witness for the plaintiff, that defendant, as foreman, employed him to work

for the company. “Percy [defendant] employed me and paid me with a Frank Ranch and

Cattle Company check; this is as far as I know,” he said. Snell went to work on the land in

question on the 6th day of February, 1921, and remained there until October or November of

the same year. His work consisted of fixing fences, irrigating, and putting up hay. According

to defendant's version, while Snell was paid by him with company checks, he was working

for him on the place, under the arrangements previously stated.


2. It is apparent that the defendant's claim of a surrender by the Frank Ranch and Cattle

Company is based entirely on transactions with Sam Frank, to the effect that defendant filed

on it and assumed possession of it in his own right, with the consent and approval of Frank.

On cross-examination, he stated: “Mr. Frank told me that he couldn't hold it any longer, and

to file on it, and he would give me his interest; that is, the company's interest.” The evidence

does not show any surrender by the company. The most it shows is an attempt on the part of

Frank to surrender the company's possession and right of possession to the defendant. But

there is no evidence to show that Frank had any authority to bind the company in a

transaction which would divest it of its possessory right to the land in question, and vest it in

another. It is not disclosed what connection Frank had with the company. Nor is there any

evidence to show that the company, with knowledge of the facts, ratified the transaction.

In this regard the defendant testified that Mr. Turritin, who, it is stated, was manager or

president of the company, wrote him a letter in July, 1921, to the following effect: “He said

that he had come over to see how me and my homestead was getting along.” There is nothing

in the contents of the letter to indicate that Turritin sanctioned Frank's acts or recognized

defendant's claim to the land. That he had come over to see about it is about all that can be

extracted from the statement attributed to him.

3. The Frank Ranch and Cattle Company having become a voluntary bankrupt, and the

trustee in bankruptcy having sold the property to the Fallon Land and Stock Company under

an order of court, we must presume that the Frank Ranch and Cattle Company listed the

property among its assets. This presumption bears strongly against the claim that Sam Frank

was authorized by the Frank Ranch and Cattle Company to surrender the property to

defendant.

The defendant also claims that the land was abandoned by the company. What we have

said as to the failure of proof as to a surrender by the company to the ��

��


defendant applies equally to the claim of abandonment. As stated in Mallet v. Uncle Sam

Mining Co., 1 Nev. 188, 90 Am. Dec. 484:

“In determining whether one has abandoned his property or rights, the intention is the first

and paramount object of the inquiry; for there can be no strict abandonment of property

without the intention to do so.”

See, also, Goldfield Con. v. O.S.A. Co., 38 Nev. 426, 150 P. 313.

4. There is no evidence in this case tending to show that the company intended to abandon

the land.

It appears from the testimony that one Dodge, foreman for the Fallon Land and Stock

Company, loaned defendant a team and wagon to move his belongings to the land and also

offered to purchase the land from him, and it is urged that recognition of defendant's claim of

ownership is thus shown. We do not see how the acts of the foreman could amount to a

recognition by the company of the lawfulness of defendant's possession, or affect in any way

the Fallon Company's right of possession. The loaning of the team and wagon is of no

consequence, and the offer to buy does not appear to have proceeded from any authority given

to the foreman by the corporation.

5-7. The evidence shows that the Frank Ranch and Cattle Company was in the actual

possession of the property at the time of defendant's entry, and it does not appear that any

transfer of the right of possession was made to him by the company. Defendant's possession

was therefore, so far as the record shows, unlawful against the company and its successor in

interest, including the plaintiffs. The plaintiffs, having proved their right of possession

through the chain of title stated, were, under the facts, entitled to a judgment for the

possession of the premises. Where no legal title is shown in either party, the party showing

prior possession in himself or those through whom he claims will be held to have the better

right. 15 Cyc. 30; 9 R.C.L. 850. The fact that the plaintiff's immediate grantor, the Fallon

Land and Stock Company, was never in the actual possession of the land, does not affect their

right to ��


recover in this action. In an action in ejectment, a prima facie case is established by plaintiff

when he proves prior possession in some one of his grantors in his chain of title. 19 C.J. pp.

1055, 1056; Florida Southern R. Co. v. Loring, 51 F. 932, 2 C.C.A. 546. The plaintiffs

proved prior possession in the Frank Ranch and Cattle Company and its successor in interest,

the trustee in bankruptcy, from whom they deraign title through the Fallon Land and Stock

Company.

8. Counsel for defendant contends also that the Fallon Land and Stock Company, being a

corporation, could not take or hold possession of land, the title of which was in the United

States government, and therefore could convey no right of possession to plaintiffs. This is a

question which the defendant could not raise. It is open only to the government. Tidwell v.

Chiricahua Cattle Co., 5 Ariz. 352, 53 P. 192, and cases cited.

The judgment is reversed, and the case remanded.


Sanders, J. (concurring):

This court, the court below, and counsel on both sides characterize this controversy as

being an action in ejectment. The action is a possessory one to recover the possession of 80

acres of public land, but it is not and cannot be an action in ejectment under our practice.

While it is usual to speak of the action to recover the possession of real property as an action

of ejectment, yet technically and substantially there is no action of ejectment in Nevada. In

Alford v. Dewin, 1 Nev. 207, decided in 1865, it is said, “We have in our practice no action

of ejectment,” and in the course of the opinion the court stated:

“Our action is one which may be brought merely to establish the right of possession as

against defendant, or it may be one in which the ultimate right to the property is to be

determined, therefore all the old common law rules are inapplicable.”

Since we have in our practice no action of ejectment, I cannot say that plaintiffs were not

prejudiced by the court's applying to their cause of action rules applicable ��!��


in an action of ejectment. As for example, the court was of opinion that the plaintiffs had not

established their cause of action, because they were not in the actual possession of the

property, and ignored their proof tending to show right to possession which was the vital

point to be determined. Whatever be the nature of the action, the plaintiffs' deed and title

papers in evidence showed from whence they derived their right of possession and their

ownership of the improvements and water right appurtenant to the land. Brown v. Killabrew,

21 Nev. 437, 33 P. 865.

I shall not comment upon the defendant's evidence, but I apprehend that the defendant

under the circumstances will have difficulty in curing the defect in his evidence pointed out in

the opinion of Justice Ducker for which a new trial is granted.

____________

��49 Nev. 110, 110 (1925) Ex Parte Taylor��

EX PARTE TAYLOR

No. 2703

September 12, 1925. 238 P. 998.

1. Larceny—Information Held Insufficient to Charge “Grand Larceny.” An information, charging the larceny of two checks in the sum of $100 and $30 in cash, does not

properly state the offense of grand larceny, as defined by Rev. Laws, sec. 6638, notwithstanding the

provisions of section 6645, not being a sufficient allegation of value.

2. Habeas Corpus—Petitioner Will Be Discharged on Habeas Corpus, where Petition Shows

Lack of Jurisdiction of Court. The law is more liberal in sustaining pleadings after judgment, than when they are attacked by

demurrer before judgment, but where petition shows lack of jurisdiction in the trial court to render

judgment, the petition will be discharged on habeas corpus.

See (1) 36 C.J. sec. 301, p. 826, n. 80 (new); sec. 304, p. 827, n. 12; 31 C.J. sec. 238, p. 693, n. 16; (2) 29 C.J.

sec. 34, p. 41, n. 29; p. 43, n. 38.

Application of Ryland G. Taylor for a writ of habeas corpus for Torevio Matillas Arbaya,

alias Torevio �� 9��4�


Matillas, to be directed to Denver S. Dickerson, Warden of the State Penitentiary. Petitioner

discharged.

Ryland G. Taylor, for Petitioner:

Information fails to allege value of property was over fifty dollars; fails to allege

ownership, or that property was not that of defendant, all necessary allegations to charge

grand larceny. 17 R.C.L. 59; 22 Cyc. 353.

Indictment must allege necessary facts affirmatively, not by implication. State v. Dooley,

64 Mo. 146.

Kind, quality, number, or value of property must be alleged when they enter into nature of

offense. People v. Highbee, 66 Bard. 131.

Indictment must identify offense so as to inform defendant and support plea of jeopardy.

Merwin v. People, 12 Am. Rep. 314.

Bank bills or notes should be described as money. Jackson v. State, 29 S.W. 265.

M.A. Diskin, Attorney-General, and Thos. E. Powell, Deputy Attorney-General, for

Respondent:

It is not necessary in charging larceny of checks to allege actual value, but it is necessary

only to allege amount that might be collected thereon. Rev. Laws, 6645.

In indictment for larceny of valuable paper it is sufficient to allege larceny of bank notes,

valuable securities, etc., without specifying the coin, number, denomination or kind thereof.

Rev. Laws, 7068; State v. Bogris, 144 p. 791.

Many technicalities of criminal pleading which exist in other states are abolished by Rev.

Laws 7050 and 7059, providing if offense is set out with sufficient clearness to enable person

of common understanding to know what is intended, it is sufficient. Defendant understood

and entered plea of guilty. He could have withdrawn plea any time before judgment and

demurred to complaint. After judgment, law is much more liberal in sustaining pleadings.

Judgment is presumed to be correct until reversed and cannot be attacked collaterally. Ex

Parte Winston, 9 Nev. 71; Ex Parte Edington, 10 Nev. 217; Knewel v. Egan, U.S. (May 25,

1925).


OPINION


This is an application for a writ of habeas corpus. It is claimed that petitioner is unlawfully

imprisoned, detained, confined, and restrained of his liberty by Denver S. Dickerson, the

warden of the Nevada state penitentiary. He shows in his petition that on the 5th day of

March the district attorney of Nye County, State of Nevada, filed an information against him

in the district court of Nye County; that thereafter and before judgment was pronounced

against him he moved the court to arrest judgment in the said cause; but on the 19th day of

March, 1925, the said motion was denied, and the petitioner was sentenced to a term of from

2 to 14 years in the state penitentiary.

It is alleged that the judgment and sentence are null and void and beyond the jurisdiction

of the court for the reason that the information does not state facts sufficient to support the

judgment pronounced, or any judgment at all. A copy of the information is annexed to the

petition, the charging part of which is as follows:

“That he, the said Torevio Arbaya, alias Torevio Matillas, on or about the 28th day of

February, 1925, and before the filing of this information, did then and there in the town of

Tonopah, Nye County, State of Nevada, unlawfully, willfully, knowingly, and feloniously

steal, take, and carry away two checks in the sum of one hundred ($100) dollars, and thirty

($30) dollars in cash from one Simon Valenzuelo, in whose possession the said checks and

money had been placed and who had the lawful possession and custody of the said money on

the said 28th day of February, 1925; that he, the said Torevio Arbaya, alias Torevio Matillas,

did take, steal, and carry away the same with the intent then and there to deprive the lawful

owner of the possession and use of said checks and money, and to appropriate the same to his

own use and benefit.”

1. The reasons stated in the opinion why the information does not support the judgment,

are: First, that �� +,��


it does not state facts sufficient to constitute the offense of grand larceny, in that the value of

the property is not alleged to be over $50; and, second, that it does not allege the ownership

of the property, or that the property did not belong to the petitioner. We think the information

fails to state the offense of grand larceny as claimed by the petitioner. Section 6638 of the

Revised Laws provides in part as follows:

“Every person who shall feloniously steal, take, and carry away, lead or drive away, the

personal goods or property of another, of the value of $50 or more, shall be deemed guilty of

grand larceny. * * *”

By the force of this statute the value of the property as being $50 or more constitutes an

essential element of grand larceny. An information which omits an essential element of the

offense sought to be charged is fatally defective. It is not alleged in the information shown

above that the checks mentioned are of any value, nor is there any language therein from

which their value appears as a necessary implication. The information simply states that the

defendant “did steal, take, and carry away two checks in the sum of one hundred ($100)

dollars.” The state's attorneys refer us to section 6645 of the Revised Laws and contend that

by force of that statute it is not necessary in charging the larceny of checks to allege the actual

value of the checks, but it is only necessary to allege the amount of the checks, the money due

thereon, or which in any event or contingency might be collected thereon. Omitting most of

the instruments named, the statute reads:

“* * * Checks, * * * shall be considered personal goods, of which larceny may be

committed, and the money due thereon, or secured thereby and remaining unsatisfied, or

which, in any event or contingency, might be collected thereon, or the value of the property

transferred or affected thereby as the case may be, shall be deemed the value of the article

stolen.” Section 6645, Rev. Laws.

This statute, which is common to a number of states, simply designates certain instruments

as the subjects � ��


of larceny and establishes a rule of evidence, whereby the value of the check or other

instrument stolen may be determined on the trial of the case. It constitutes no part of the

description of the offense of larceny, and does not dispense with the necessity of alleging the

value of the property stolen.

It has been held under a similar statute that where an indictment charges the larceny of

bank notes in a certain sum secured and payable by and upon the said bank notes, being then

and there due and unsatisfied, that such an allegation constitutes its value, and a separate

averment of value need not be made. Adams v. Commonwealth, 23 Grat. (64 Va.) 949.

In the information before us, none of the means of proof of value prescribed by the statute

are alleged. Merely the amount of the checks is stated. A description of the checks, as being

of a certain amount, is not tantamount to an averment of value. Wilson v. State, 1 Port. (Ala.)

118. So far as appears from the information the checks may have been spurious, paid, or had

never acquired validity.

2. It is urged that the law is more liberal in sustaining pleadings in criminal cases after

judgment than if the pleading has been attacked by demurrer before judgment. This is true,

but where, as in this case, the petition shows a want of jurisdiction in the court to render the

judgment, the petitioner will be discharged on habeas corpus.

It is so ordered.

____________

��49 Nev. 115, 115 (1925) Northern Nevada Loan Ass'n v. Cazier��

NORTHERN NEVADA LOAN ASSOCIATION v.

CAZIER

No. 2708

October 5, 1925. 239 P. 395.

On Motion To Dismiss Appeal

1. Appeal and Error—Court's Order, Directing payment of Sums Out of Estate in Receiver'sHands, Held Appealable.

A court order, directing payment by receiver of funds out of estate in his hands, held not subject to

further action of court, either by decree or subsequent order, and therefore appealable under Rev. Laws,

secs. 5327, and 5329 as amended by Stats. 1913, c. 91.

2. Appeal and Error—Receiver Entitled to Appeal from Order of Court, where Proceeding

Adversary, in which Receiver Was Representative of Creditors and All Persons Having

Interest in Property. Where persons intervened in case to obtain relief against receiver not obtainable in any other form,

and issues raised by pleadings made proceeding an adversary one, in which receiver was representative of

creditor and all persons having interest in property, receiver was entitled to appeal from order of court

made in such proceeding.

3. Appeal and Error—Receiver May Appeal from Any Order Affecting Proper Duties or

Personal Rights, or where Estate as Whole Is Interested. Receiver may appeal from any order affecting proper duties or personal rights, or where estate as

whole is interested.

See 3 C.J. sec. 413, p. 579, n. 76; sec. 522, p. 654, n. 10 (new), 13, 23 (new).

Appeal from Fourth Judicial District Court, Elko County; J.M. McNamara, Judge.

Action by the War Finance Corporation and others against the John H. Cazier & Sons

Company and another, wherein the Northern Nevada Loan Association was substituted as

party plaintiff for the Finance Corporation. From orders directing H.J. Lorentzen, as receiver,

to pay each of defendants out of funds in his hands sums specified, and order denying

plaintiffs' motion for new trial, plaintiffs appeal. On motion to dismiss appeal. Motion

denied. Appeal dismissed by stipulation.

Badt & Dysart, for Respondents, movants herein:

If order directing receiver to pay bills is not appealable order, it cannot be made such by

moving for new ��


trial, to end that appeal may be taken from order denying such motion. If order is appealable,

appeal must be taken from it and not from subsequent order refusing to vacate that order.

Harper v. Hildreth, 33 P. 1103.

Orders made in district court are not appealable unless expressly made so by statute. Peters

v. Jones, 66 P. (Nev.) 745; Rev. Laws, 5329, as amended, 3 Rev. Laws, 3340.

We frankly submit our motion to dismiss appeal under authority of Title Ins. & Tr. Co. v.

California Development Co., 114 P. 838, holding that question involved was one partly of

convenience and policy; that receivership property is best protected by permitting trial court,

pending final hearing, to direct receiver in disposition of funds, without being hampered by

successive appeals from separate orders; that interlocutory orders in equity are subject to

direct appeal only when such appeal is authorized by statute; and, where original judgment or

order is not reviewable on appeal it cannot be made reviewable by device of moving to set it

aside and appealing from order denying motion.

Thatcher & Woodburn and Thos. H. Brandon, for Appellant:

Title Ins. & Tr. Co. case is not controlling as decision clearly points out. In that case motion

was made to vacate order appointing receiver, which was denied, and appeal was taken.

Original order was purely interlocutory and not in any sense final. In this case respondents

appeal from decision refusing petition in foreclosure proceeding for order requiring payment

of bills which receiver had refused to pay, which petition respondents filed instead of

commencing suit against receiver. In case cited court said that where order required payment

of money by party complaining, or doing of act by or against him, order is final as against him

and is appealable, but if order be such as to be subject before enforcement to further action of

court, either by decree or subsequent order, it is not final. State v. District Court, 72 P. 612;

Martin v. Kirby, 34 Nev. 205. 8��


Proceeding here was collateral ancillary matter. Order is not unappealable because of

pendency of undetermined matters, whether ancillary or collateral. Mica Co. v. Mining Co.,

157 Fed. 92.

Orders allowing compensation and expenses of receiver, if interlocutory, are not

appealable, but where final and direct payment of funds in hands of receiver, they are

appealable. 3 C.J. 580.

OPINION


This is a motion to dismiss the appeals taken from two orders of the court below. The two

appeals are embraced in the one notice. One is from an order directing H. J. Lorentzen as

receiver to pay to each respondent out of any funds in his hands the sums specified therein,

which aggregate $7,202.49; the other is from an order denying appellants' motion for new

trial.

The motion came on for hearing on September 8, 1925, and on that date was orally argued

and submitted for decision upon briefs. In the notice of motion it is stated that the motion will

be made and based on the various papers, files, documents, and pleadings appearing in the

bill of exceptions or record on appeal, and upon the ground that the order directing the

receiver to pay the sums specified is not an appealable order, nor is the order denying a new

trial appealable.

1. It is argued on behalf of respondents that, if the court's order directing the receiver to

pay the sums specified out of any funds in his hands is not an appealable order, it cannot be

made so by an attempt to appeal from a subsequent order denying the motion for new trial.

This contention narrows the question for determination to whether an order made in a

proceeding against a receiver is appealable under Revised Laws, section 5327, and section

5329 as amended by statute 1913, chapter 91. Section 5327 provides that any party aggrieved

may appeal in the cases prescribed in the title. Section 5329 provides, in part, that an appeal

may �� !�� !��!��


be taken from a final judgment in an action or special proceeding commenced in the court in

which the judgment is rendered, within six months after the rendition of the judgment.

We are relieved of the necessity of construing the provisions contained in these sections,

because of the fact that counsel for respondents frankly state that their motion to dismiss rests

entirely upon the authority of the case of Title Insurance and Trust Co. v. California

Development Co., 159 Cal. 484, 114 P. 838. If that decision is to be considered controlling

upon this court, then we are of the opinion that the order here complained of is a final order.

In the syllabus of the case, it is stated:

“If an order complained of either directs the immediate payment of money by the

complaining party or orders acts to be done directly by or against him, it is appealable; but if

the order be such in its nature as to be subject to the further action of the court either by

decree or subsequent order, the order complained of is not final, and review must be sought

by appeal from such decree or order subsequently entered.”

It is manifest from the order here under review that it directs the immediate payment of

money out of funds of the estate in the hands of the receiver, and it is not subject to the

further action of the court either by decree or subsequent order, and under the very authority

upon which counsel base their motion to dismiss it is a final order and, therefore, appealable

under the statute.

2. While it is true that the receiver is an arm of the court in the administration of the

property, yet, where persons intervene, as did the respondents in this case, to obtain relief

against him, not obtainable in any other forum, the issues raised by the joint answer of

appellants to the respondents' petition made the proceeding an adversary one, in which the

receiver was the representative of creditors and all persons having an interest in the property.

If, as such representative, he felt aggrieved by the order made in an adversary proceeding of

this character, it is difficult to see why he should ��


not be permitted to have the order reviewed by this tribunal to which respondents may have

resorted in the event the order had been adverse to them. Felton v. Ackerman, 61 F. 226, 9

C.C.A. 457. We take it that the very purpose of the prayer of respondents' petition for an

order of the court that the receiver show cause why the prayer of the petition should not be

granted was to bring the receiver before the court as a party defendant that he might urge any

defensive matter to the petition which the creditors or other persons interested could urge, if

themselves made parties defendant. Kahn v. Hollis, 124 Ga. 537, 53 S.E. 95.

3. If the receiver had an appealable interest in the subject of the order, a question not

involved on this motion, it was his duty to appeal from the adverse judgment rendered in a

judicial proceeding tried as an ordinary adverse civil action. A receiver may appeal from any

order affecting his proper duties or personal rights, or where the estate as a whole is

interested. Esmeralda County v. Wildes, 36 Nev. 526, 137 P. 400.

It is suggested in argument that a receiver cannot appeal from purely administrative orders

which the court, in the exercise of its discretion, may make in the cause for the proper care

and preservation of the property in its custody. Ordinarily this is true, but the order here

complained of is not made to rest on the court's discretion and, therefore, is not within the

rule invoked.

Without reviewing the facts or discussing the merits of the appeals, or intimating any

opinion thereon, we conclude that the orders entered in the court below are appealable and the

motion to dismiss the appeals therefrom is, therefore, denied.

January 4, 1926.

Appeal dismissed by stipulation.

____________

��49 Nev. 120, 120 (1925) Siebert v. Smith��

SIEBERT v. SMITH

No. 2671

October 5, 1925. 239 P. 396.

1. Courts—Recovery on Quantum Meruit Not Precluded by Sustaining Demurrer to Cause ofAction for Breach of Contract.

That sustaining of demurrer to cause of action for breach of employment contract established as law

of case that contract was too indefinite and uncertain to be enforced did not preclude recovery on second

cause of action for services rendered thereunder on quantum meruit, and court erred in excluding

evidence of value of such services.

See 15 C.J. sec. 359, p. 962, n. 39; 40 Cyc. p. 2825, n. 14.


Action by Fred J. Siebert against E.C. Smith. Judgment for defendant and plaintiff appeals.

Reversed. Rehearing denied.

John D. Hoyt, for Appellant:

Though contract be unenforceable for indefiniteness, either party furnishing goods or

money, or performing services under such contract, may recover reasonable value thereof.

Promise to pay reasonable value is implied. 1 Page on Contracts, 155; Washington Co. v.

Moss, 96 Atl. 273; 6 R.C.L. 590.

Wm. M. Kearney, for Respondent:

Plaintiff cannot hope to win on quantum meruit when he already agreed upon value of his

alleged services. Failure to obtain what he claims he agreed to take was due entirely to his

lack of diligence. Having failed to obtain stock on demand prior to three years from date of

alleged contract he now seeks to have court make new contract for him and fasten new

liability on defendant. One cannot recover on quantum meruit when he declares on express

contract. Rubino v. Scott, 22 N.E. 1103; Swarthout v. Lucas, 60 N.W. 306.

It is error to admit evidence of value of services shown to have been furnished under

contract. Flading v. Dawson, 43 P. 1107.


If proof shows special contract for stipulated price, action on implied contract to recover

reasonable value shows fatal variance. Bradley v. Harter, 60 N.E. 139.

If agreement is to be carried out by defendant in some other way than by payment of

money, general rule is that it must be declared on specially. Nubent v. Teachout, 35 N.W.

254.

OPINION


This is an action to recover judgment in the sum of $650. The complaint contains two

causes of action. The first cause of action is upon an alleged breach of contract. The second

cause of action is on quantum meruit for services rendered. The defendant demurred to the

two causes of action separately and to the complaint as a whole, urging as to the first cause of

action that the contract alleged was too indefinite and uncertain to be enforceable, and hence

it failed to state facts sufficient to constitute a cause of action.

The court sustained the demurrer to the first cause of action, but overruled it as to the

second cause of action and to the complaint as a whole.

The case was tried to the court upon the second cause of action. Upon the trial the plaintiff

gave testimony establishing the agreement pleaded in the first cause of action, supplementing

such testimony with testimony showing that he had rendered the services alleged to have been

agreed upon to be performed by him. Plaintiff then offered testimony to establish the value of

the services claimed to have been rendered. This line of testimony was objected to by counsel

for the defendant upon the ground that the plaintiff had by his evidence established a contract

and that he could not recover upon the quantum meruit. The court sustained the objection,

whereupon the plaintiff rested his case. The defendant moved for a nonsuit, which was

granted, and judgment was entered thereupon in favor of defendant. Plaintiff has appealed.


It being the law of the case, pursuant to the ruling on the demurrer, that the contract was

too indefinite and uncertain to be enforceable, we think the court erred in sustaining the

objection to the tendered testimony offered to prove the value of the services. Under the

evidence given the defendant had received the benefit of the services of the plaintiff as a

mining engineer. The mere fact that the contract is too indefinite and uncertain to be enforced

should not preclude a recovery upon quantum meruit. Upon what theory of law, ethics,

morality, or good conscience should the defendant be permitted to receive the services of the

plaintiff under an enforceable contract, and then say that merely because the contract is too

indefinite to be enforced that he can reap the benefit of plaintiff's labor without paying for it?

We cannot give our approval to such a contention.

In the case of Washington, B. & A.R. Co. v. Moss, 127 Md. 12, 96 A. 273, where this

question was before the court, it was said:

“Although we have found it necessary to declare the contract sued upon invalid for the

purpose of sustaining an action, yet, nevertheless, we are strongly of the opinion that, if the

facts are as testified to by the appellee and his witnesses, the appellee is not without a remedy.

If he were, it would be a sad reproach upon the law. Still, of course, assuming the truth of the

facts as established by the appellee, we have on one hand a man giving his efforts and time in

securing a thing of value for another in addition to giving up that which may have had value

to him, with the expectation of full compensation for his efforts and sacrifices, and, on the

other hand, a party, freely accepting and enjoying these, but unwilling to pay therefor.”

The rule is stated in 6 R.C.L. 590, as follows:

“The mere fact that the parties have attempted to make an express contract but have not

succeeded in making it enforceable with respect to some of its terms does not prevent the

implication of a promise to pay for benefits conferred thereunder. The generally recognized��


doctrine is that it does not follow from the fact that a contract is invalid because the minds of

the parties did not meet as to some of the essential terms thereof, either because of a mutual

mistake or uncertainty therein, that a party thereto who furnishes material or renders services

to the other party, relying upon the terms as he understood them, is without a remedy. In such

case a promise to pay the reasonable value of the materials or services is implied.”

In Lapham v. Osborne, 20 Nev. 168, 18 P. 881, it is said:

“It is well settled that for labor and services performed under a contract declared void by

the statute of frauds recovery on quantum meruit may be had.”

See, also, Harwood v. Carter, 47 Nev. 334, 222 P. 280.

The rule stated is approved by an overwhelming weight of authority. Clark on Contracts

(3d ed.), p. 650; 1 Page on Contracts, sec. 107; Vickery v. Ritchie, 202 Mass. 247, 88 N.E.

835, 26 L.R.A. (N.S.) 810, and extensive notes.

For the error pointed out, it is ordered that the judgment be reversed.

____________

��49 Nev. 124, 124 (1925) Su Lee v. Peck��

SU LEE v. PECK

No. 2686

November 5, 1925. 240 P. 435.

1. Witness—Testimony of Members of Chinese Society as to Statements of Deceased Donor

of Property in Question Held Admissible.

In action to quiet title, brought on behalf of a Chinese religious society, where members of society

testified as to statements made by deceased donor of property to society, held that witnesses' interest was

not of a nature rendering them incompetent at common law, and hence were not within purview of

exception in Rev. Laws, sec. 5419, that no persons shall be allowed to testify when other party to

transaction is dead.

2. Witnesses—Parties Suing on Behalf of Society to which They Belonged Not Liable for

Costs, and Not Incompetent Under Statute to Testify as to Deceased's Statements. In an action to quiet title, brought by plaintiffs on behalf of Chinese religious society, under Rev.

Laws, sec. 5001, held that Chinese society was real party in interest, and plaintiffs were nominal parties

only, were not liable for costs in view of section 5385, and hence having no interest in action were not

incompetent under section 5419 to testify as to alleged statements made by deceased donor as to property

in question.

3. Gifts—Evidence of Witnesses Sufficient to Prove Gift of Property to Chinese Religious

Society. In an action to quiet title, where plaintiffs bringing action on behalf of Chinese religious society

claimed property by reason of gift from former owner, held evidence of Chinese witnesses was sufficient

to prove such gift of property to the society.

4. Gifts—Payment of Taxes by Record Owner Did Not Conclusively Refute Plaintiffs' Claim

of Gift to Property, or Overthrow Clear and Satisfactory Proof Thereof. In an action to quiet title, brought on behalf of Chinese religious society, where plaintiffs claimed

property in question had been given to them by former owner, held payment of taxes by record owner did

not conclusively refute plaintiffs' claim of gift or overthrow clear and satisfactory proof of such gift.

5. Gifts—Chinese Religious Society Not Required to Pay Taxes on Property Used for

Religious Worship, and Nonpayment Thereof Did Not Militate against Their Claim of

Gift. In an action to quiet title brought on behalf of Chinese religious society, the fact that such society did

not pay taxes did not militate against their claim that property had been given to them by gift, inasmuch

as under Rev. Laws, sec. 3621, the property was exempt from taxation.

6. Gifts—Gift Cannot Be Proved by Evidence of Equivocal Nature, but Such Evidence Must

Be Clear and Convincing. The gift of property cannot be proved by evidence of an equivocal nature, but such evidence must be

clear and convincing.

��49 Nev. 124, 125 (1925) Su Lee v. Peck��

7. Gifts—Evidence Held Insufficient to Show Gift to Donee by Cotenant of Donor.

In an action to quiet title, brought on behalf of Chinese society, where plaintiff claimed property by

reason of gift from one M., held that evidence, though sufficient to show gift of entire premises from M.,

was insufficient to show gift from M.'s cotenant to plaintiff.

8. Adverse Possession—Tenancy in Common—Donee of Land, Entering Into Possession under Gift from One

Cotenant Claiming Entire Property, Held to Have Acquired Title by Adverse Possession.

Where Chinese society entered into possession of property under gift of entire plot from one cotenant

and claimed property as its own, openly and notoriously, this amounted to a disseizin of the other

cotenant, and constituted an adverse holding, ripening into title by adverse possession on expiration of

statutory period.

9. Adverse Possession—Cotenant Out of Possession, Aware of Possession by Stranger Making Improvements

Thereon, Charged with Notice of Hostile Intent of Such Possession.

Where cotenant out of possession was aware that stranger was in actual and exclusive possession of

entire premises, making valuable improvement thereon, held that was sufficient notice to put him on

inquiry, and he was charged with notice of hostile intent of such possessor, inasmuch as he would have

discovered such possession was one under claim of right under gift from other cotenant if he had

inquired.

10. Adverse Possession—Payment of Taxes by Adverse Claimant Not Essential Element of

Adverse Possession where Claimant a Religious Corporation, and Payment of Taxes

Had Not Become a Statutory Requirement. Payment of taxes by an adverse claimant held not an essential element of adverse possession where

property was used for religious purposes, and, at the time the disseizin took place, the statutory

requirement of payment of taxes had not become an element of adverse possession.

See (1, 2) 40 Cyc. p. 2245, n. 96; p. 2249, n. 18; p. 2277, n. 39, 41; p. 2281, n. 70; p. 2282, n. 77; p. 2291, n. 32;

(3, 4, 5, 6, 7) 28 C.J. sec. 19, p. 627, n. 34; p. 628, n. 35; sec. 82, p. 676, n. 33; sec. 84, p. 680, n. 70, 82;

(8) 38 Cyc. p. 34, n. 16; p. 35, n. 17; p. 77, n. 71; 37 Cyc. p. 940, n. 85; p. 942, n. 94; 2 C.J. sec. 59, p.

77, n. 71; sec. 355, p. 185, n. 50; sec. 417, p. 205, n. 23 (new).

Appeal from Second Judicial District Court, Washoe County; Geo A. Barlett, Judge.

Action to quiet title by Su Lee and Charlie Bi Yen, suing for themselves and others, as

members and on behalf of the Lin Hing Gungsha, or Joss House Society, �=��'��>�3�8��

��49 Nev. 124, 126 (1925) Su Lee v. Peck��

of Reno, Nevada, against F. J. Peck and others. From a judgment for plaintiffs, defendants

appeal. Affirmed. Rehearing denied.

Cooke, French & Stoddard, for Appellants:

Evidence of unmistakable intention of donor to make gift is essential requisite of gift inter

vivos. 28 C.J. 625, 627, 628, 676, 678.

Ordinarily neither tenant in common can bind other unless his act is previously authorized

or subsequently ratified. 38 Cyc. 101; 7 R.C.L. 879.

Individual Chinese being liable for costs, were personally interested with other members

of Joss House Society in result of this action. Counsel's contention in trial court that at

common law they are not incompetent as witnesses is exactly contrary to authorities. 40 Cyc.

2244; 12 Enc. Ev. 779.

Actions should be prosecuted in name of real party in interest, except as otherwise

provided. Rev. Laws, 4986.

No party shall be allowed to testify where other party to transaction is dead. Rev. Laws,

5419.

Agent who arranges contract for his principal is party to transaction. Bright v. Water Co.

(D.C. Nev.), 254 Fed. 175.

If interest disqualifies, members or stockholders of corporation are disqualified. 12 Enc.

Ev. 787; Ashbury v. Hicklin, 81 S.W. 390.

Objection is timely, if made as soon as ground therefor is apparent, though made after

testimony is given. Sharon v. Minnock, 6 Nev. 377.

Possession under permission of owner, in absence of act of disseizin, does not ripen into title,

however long continued. To be adverse, possession must be such as to give notice to owner

that it is held under claim of right. McDonald v. Fox, 20 Nev. 364; 2 C.J. 264.

Case having been remanded for new trial, we are entitled to bring in new evidence and

urge legal questions not before presented. On retrial after reversal, ��

��49 Nev. 124, 127 (1925) Su Lee v. Peck��

former record is no part of later record, unless offered. Rev. Laws 5319; 4 C.J. 1240; Landis

v. Ry. Co., 154 N.W. 607.

Deposition of witness as to what owner told him about transaction years after it happened,

did not open door to evidence as to what owner told party at transaction, especially when

neither was present at conversation of owner with other. Rev. Laws, 5419; 40 Cyc. 2339.

Harwood & Tippett, for Respondents:

Plaintiff is religious society, and individual Chinese, though members of it, are not

interested parties within meaning of statute, Rev. Laws, 5419. There is some conflict as to

agent or stockholder of commercial concern, but authorities are practically without dissent

that interest of member of religious or charitable society is too uncertain and remote to

disqualify him. Crosby v. Presbyterian Church, 99 S.W. 584; Shortz v. Unagast (Pa.), 3 Watts

& S. 45; Sorg v. Congregation, 63 Pa. St. 156.

If, with full knowledge of incompetency of witness, counsel allows him to testify, he takes

risk of adverse evidence and waives right to have it excluded. Sharon v. Minnock, 6 Nev.

377; King v. Haney, 46 Cal. 560.

Objection to competency of witnesses was waived not only by cross examination, but also

by calling witness to rebut. Wigmore on Evidence, par. 19.

Objections not urged on first trial cannot be put forward on subsequent trial. Points

necessarily involved cannot be used to string out litigation indefinitely. Wigmore, 318.

Haskell, coowner with Manning, was present at transaction, assisted in staking out lot, was

fully informed, and was bound just as Manning was. 7 R.C.L. 882; 38 Cyc. 111.

Individual Chinese sued in representative capacity. Property was given “to Chinese boys

for Joss House.” It is only when suit is vexatiously brought that such �� &?=�)�@�7A7�3��B��C6��D��

��49 Nev. 124, 128 (1925) Su Lee v. Peck��

representative is liable for costs. 28 R.C.L. 474; Jones on Evidence (3d ed.), par. 775.

Payment of taxes has no significance, as religious society's property is exempt.

Society claimed under color of title, followed by improvements and possession since 1878.

Title by such possession and limitation was clearly established, and is as effectual as if by

deed. 3 Abbott's Trial Evi. 1878; Ricard v. Williams, 7 Wheat. (U.S.) 49, 105; 13 Enc. Ev.

536, 606, 617, 618.

OPINION


This is an action to quiet title to two lots and the Chinese Joss House thereon, situated in

Chinatown in the city of Reno. Judgment was rendered in favor of plaintiffs. The plaintiffs as

indicated above are suing for themselves and others on behalf of the Lin Hing Gungsha

Society, or Joss House Society, of Reno.

The plaintiffs claim title by gift to the society in 1878 from A.H. Manning and D.H.

Haskell. The defendants claim title through mesne conveyances from the same source.

Plaintiffs also claim title by adverse possession. Plaintiffs' case rests principally upon the

testimony of Chinese witnesses. Their testimony as to title relates to statements made to them

by Manning, which plaintiffs claim evidence a gift of the lots to the society. One of the

witnesses also testifies to certain acts of Manning and his coowner, Haskell, which are also

claimed to be evidence of such gift. After the first Chinese witness, one Hi Wah, had testified

to a statement of Manning's in this regard, and had been examined on direct cross, redirect

and recross, and another witness having been called and sworn, counsel for defendants,

having first obtained an admission from counsel for plaintiffs that Manning was dead and had

been for some years, moved to strike out all of Hi Wah's testimony relating to statements

claimed to have been made by Manning to him as to the gift of the property on the ground

that the ��,7%��=��@��

��49 Nev. 124, 129 (1925) Su Lee v. Peck��

witness was incompetent to testify by reason of section 5419 of Rev. Laws. The motion was

denied by the court, and its action is assigned as error. Thereafter seasonable objections were

made to the testimony of the other Chinese, Su Lee and Charlie Bi Yen, concerning

Manning's statements, on the same ground, which were overruled by the court. These rulings

are also assigned as error. Section 5419 of the Revised Laws, invoked by defendant, reads as

follows:

“All persons, without exception, otherwise than as specified in this chapter, who, having

organs of sense, can perceive, and perceiving can make known their perceptions to others,

may be witnesses in any action or proceeding in any court of the state. Facts which, by the

common law, would cause the exclusion of witnesses, may still be shown for the purpose of

affecting their credibility. No person shall be allowed to testify:

“1. When the other party to the transaction is dead.

“2. When the opposite party to the action, or the person for whose immediate benefit the

action or proceeding is prosecuted or defended, is the representative of the deceased person,

when the facts to be proven transpired before the death of such deceased person; provided,

that when such deceased person was represented in the transaction in question by an agent

who is living, and who testifies as a witness in favor of the representative of such deceased

person, or, when persons other than the parties to the transaction, claiming to have been

present when the transaction took place, testify as witnesses in favor of the representative of

such deceased person, in such case the other party may also testify in relation to such

transaction. * * *”

Do the facts in this case show that the witnesses are persons disqualified to testify by

reason of the first prohibition of the statute: Admittedly Manning was dead when they gave

their testimony, and the transaction involved was his alleged gift to the plaintiffs. It appears

that Chinatown in Reno was destroyed by fire in 1878. After the fire, according to the

testimony of Hi Wah and Su Lee, Manning wanted the Chinamen to ��)�� 3��:��

��49 Nev. 124, 130 (1925) Su Lee v. Peck��

move where Chinatown is now located, and in substance told the witnesses that he would

give them a piece of ground to build their Joss House on if they would move. In addition, Su

Lee testified that he and Manning and Haskell went to the ground and staked off the present

site of the Joss House. Charlie Bi Yen testified that about 30 years ago Manning told him that

he gave the property to the China boys for a Joss House. It appears that Hi Wah and Charlie

Bi Yen are members of the Joss House Society.

It is obvious that the objections to the testimony of the witnesses, if good, are so by reason

of the first exception in the statute, for the second class of exceptions made have no

application to the facts. The defendants are not the representatives of the deceased Manning.

The witnesses, as members of the society in whose behalf the action is prosecuted are all

interested in the result of the action. While the exception does not expressly state that no

interested party shall be allowed to testify when the other party to the transaction is dead, yet

such, we think, was the clear intention of the legislature. This is apparent from the purpose of

the statute, which was to remove the common law rule disqualifying parties and interested

persons as witnesses, with the exceptions mentioned. To construe the exception literally,

without reference to the general object sought to be attained by the statute, would create a

condition which, as stated in Bright v. Virginia and Gold Hill Water Co. (D.C.) 254 F. 175,

would practically make it impossible to prove a claim against a dead man. In Burgess v.

Helm, 24 Nev. 242, 51 P. 1025, this provision of the statute was construed to mean that no

person who had a direct interest in the result of the action shall testify when the other party to

the transaction is dead. The language of the provision is broad enough to include all persons

interested in the result of the action whether they are parties to it or not. But the evidence

discloses that the Joss House Society is an unincorporated religious society, and it was so

held to be in a former decision of this court. Su Lee v. Peck, 40 '��&��%E�8�%?�)��

��49 Nev. 124, 131 (1925) Su Lee v. Peck��

Nev. 20, 160 P. 18. Counsel for plaintiffs therefore contend that, as members of a religious

society, the witnesses had no such interest in the result of the action as brought them within

the class of persons intended to be excluded by the provision of the statute. This was the

ground on which the trial court based its action permitting the testimony, and in accepting it

as ample proof of the gift. This seems to have been the common law rule as to members of

such associations. On this phase of the common law, Mr. Jones, in his work on Evidence,

says:

“Members of charitable, educational and religious corporations had not such pecuniary

interest as to be disqualified as witnesses. Hence, the members and officers of churches,

school districts, private educational institutions and the like were competent to testify at

common law.” Jones on Evidence (2d ed.), sec. 732.

In this regard Prof. Greenleaf says:

“Yet the members of charitable and religious societies, having no personal and private

interest in the property holden by the corporation, are competent witnesses in any suit in

which the corporation is a party.” 1 Greenleaf on Evidence (16th ed.), p. 864.

See Hershy v. Clarksville Institute, 15 Ark. 128; Davies v. Morris, 17 Pa. 205; Matter of

Kip, 1 Paige (N.Y.), 601; Hill v. School Dist. No. 2 in Millburn, 17 Me. 316; Cooper v.

Sisters of Providence, 16 Ind. 164; Sorg v. German Congregation, 63 Pa. 156.

1. We are of the opinion that the legislature, in removing the common law disability of

witnesses as to parties and interested persons, and in excluding certain persons from the

operation of the act, intended to exclude such only as would have been excluded by common

law rules. In other words, where the other party to the transaction is dead, the person whose

testimony is offered stands exactly as he would have stood if section 5419 had never been

enacted. Applying these principles, Hi Wah, Su Lee, and Charlie Bi Yen were not

disqualified as witnesses. Their interest as members of the religious society in whose behalf

the action is ��

��49 Nev. 124, 132 (1925) Su Lee v. Peck��

prosecuted is not of the direct legal nature as would have rendered them incompetent at

common law, and is not therefore within the purview of the exception to the statute.

2. Counsel for appellants contend that whatever may be the rule as to Hi Wah in this

particular, it cannot apply to Su Lee and Charlie Bi Yen, who are parties to the action. It is

insisted that, as parties to an action were incompetent witnesses at common law, Su Lee and

Charlie Bi Yen are rendered incompetent by the exception to the statute. The general rule at

common law as to parties is as above stated, and there is some authority holding that all

parties to the record, nominal or otherwise, regardless of interest, were incompetent to testify

at common law; but by the greater weight of authority, as we deem it, an exception existed as

to nominal parties with no real interest in the action. 40 Cyc. 2245, and cases cited in note 96.

Taking this view, the court in Barker v. Ayers, 5 Md. 202, 209, 210, said:

“There can be no doubt that the authorities establish it as a general proposition that a party

to the suit is not a competent witness; but it is equally true, they declare the reason of the rule

to be, that he has an interest either in the object of the suit or in the costs. As, therefore, the

law is said to be founded in reason, and what is not reason is not law, it would seem to

follow, necessarily, that when the reason of a legal rule ceases to exist the rule does not apply.

That the mere fact of being a party does not render him incompetent to testify, is most

unequivocally announced in Lizardi et al. v. Cohen et al., 3 Gill [Md.] 430, and the reason for

excluding him is, as explicitly stated to be, his interest in the result, either in regard to the

claim or the costs. On page 435, the opinion of Judge Washington, in Willings and Francis v.

Consequa, Pet. C.C. 307 [Fed. Cas. No. 17, 767] is referred to, in which he speaks of a party

being excluded as a witness, and states that the interest he has in the event of the suit, as to

costs and the subject in dispute, ‘lies at the foundation of the rule, and when that interest is

removed the objection ceases to exist.' The court also refer to the decision pronounced ��)��3��0�� *�� 3��A��

��49 Nev. 124, 133 (1925) Su Lee v. Peck��

by Chief Justice Tindal, in Worrall v. Jones, 7 Bing. 395, as maintaining the true and sound

doctrine on this subject. The opinions of several other distinguished jurists are noticed, and

the court says: ‘When it appears that the party proposed to be examined is not responsible for

the costs of the suit, and has no interest in the subject in dispute, and is willing to be sworn,

he is not within the operation of the general rule.'”

In Paine v. Tilden, 20 Vt. 554, the court said:

“The mere objection, that the witness is a party to the record, when he has no interest in

the event of the suit, or is called to testify against his interest, has been too often decided by

this court to be of no force to be again brought in question. The very point now in judgment

was expressly decided in Caledonia County in the case of Pierce et al. v. Lyman et al., and

virtually in Sargeant v. Sargeant et al., 18 Vt. 371. The language of Chief Justice Tindal, in

Worrall v. Jones, 20 E.C.L. 180, expresses the true state of the English law upon the subject.

He says: ‘No case has been cited, nor can any be found, in which a witness has been refused,

upon the objection in the abstract, that he was a party to the record; on the contrary many

have been brought forward, in which parties to the suit, who have suffered judgment by

default, have been admitted as witnesses, against their own interest; and the only inquiry

seems to have been, in a majority of cases, whether the party called was interested in the

event of the suit, or not; and the admission or rejection of the witness has depended upon the

result of this inquiry.' After such a declaration from so distinguished a judge in Westminster

Hall, it would seem captious, not to say frivolous, to doubt the state of the English law upon

this subject.”

It is true that, in the leading English case quoted from in the foregoing opinion, the court

decided the case upon the principle that a party to a suit, who has suffered judgment by

default, and consents to be examined, and who is called against his own interest, is

competent, but the court unequivocally states that a party to the suit, not interested in the

event of the suit, was not incompetent.

��49 Nev. 124, 134 (1925) Su Lee v. Peck��

Any interest in the result of a trial, if it was only a liability for costs, would render a party

an incompetent witness at common law. As stated by Prof. Greenleaf:

“The rule, excluding parties from being witnesses, applies to all cases where the party has

any interest at stake in the suit, although it be only a liability to costs.” 1 Greenleaf on

Evidence (16th ed.), p. 865.

In this regard counsel for appellants contends that Su Lee and Charlie Bi Yen, being

parties to the suit, are liable for the costs, and are therefore within the exception of the statute.

We take a different view. While they are parties plaintiff to the suit, it is plain that they are

such only in a representative character. The society is the real party in interest. Their authority

to sue is given by section 5001 of the Revised Laws, which, in the stated cases, gives one or

more persons authority to sue or defend for all. The section reads;

“Of the parties to the action, those who are united in interest shall be joined as plaintiffs or

defendants; but if the consent of any one, who should have been joined as plaintiff, cannot be

obtained, he may be made a defendant, the reason thereof being stated in the complaint; and

when the question is one of a common or general interest of many persons, or when the

parties are numerous, and it is impraticable to bring them all before the court, one or more

may sue or defend for the benefit of all. Tenants in common, joint tenants, or coparceners, or

any number less than all, may jointly or severally bring or defend or continue the prosecution

or defense of any action for the enforcement of the rights of such person or persons.”

In Branson v. Industrial Workers of the World, 30 Nev. 270, 95 P. 354, it was held that in

the above section the legislature intended to make the equity rule as to joinder of parties,

where the parties are numerous and it is impracticable to bring them all before the court, of

permitting one or more to sue or defend for the benefit of all, available in an action at law;

and that in such an action against voluntary, unincorporated associations, it is proper to sue

the associations as such and join ��

��49 Nev. 124, 135 (1925) Su Lee v. Peck��

a few natural persons, members of the association, to represent all the members.

The action in the present case was obviously brought under this statute. It is alleged as a

reason for not joining other Chinese persons residing in Reno, Nevada, also members of the

said society, that said other Chinese persons are too numerous to be joined as plaintiffs.

Consequently Su Lee and Charlie Bi Yen are not liable for the cost, unless they were guilty of

mismanagement or bad faith, which does not appear. They are persons expressly authorized

to sue by section 5385 of the Revised Laws, and by the terms of the statute relieved from

liability for costs. The section reads:

“In an action prosecuted or defended by an executor, administrator, trustee of express trust,

or a person expressly authorized by statute, costs may be recovered as in an action by and

against a person prosecuting and defending in his own right; but such costs shall, by the

judgment, be made chargeable only upon the estate, fund, or party represented, unless the

court shall direct the same to be paid by the plaintiff or defendant, personally, for

mismanagement or bad faith in the action or defense.”

The party represented, which in this case is a voluntary, unincorporated association, the

Joss House Society, is expressly made liable for the costs. Having held that the witnesses

were competent, it becomes unnecessary to determine plaintiffs' contention that the objection

to Hi Wah's testimony came too late.

3-5. The testimony of the Chinese witnesses, a summary of which has been stated, is

sufficient to prove a gift of the property in question from Manning to the Joss House Society.

In fact, on appeal from a former trial of this case, their evidence, which was practically the

same as in this case, was held sufficient to show a gift. Su Lee v. Peck, supra. We deem it

unnecessary to again analyze and state their testimony in detail. On the trial of the case it was

proved by defendants that the assessment roll of Washoe County disclosed that from 1879 to

1914, inclusive, all taxes on the lots in ��

��49 Nev. 124, 136 (1925) Su Lee v. Peck��

question had been paid by the owners of the record title. While the payment of taxes on the

lot was a circumstance tending to refute the claim of a gift, yet it was not conclusive.

Carleton-Ferguson Dry Goods Co. v. McFarland (Tex. Civ. App.), 230 S.W. 208, 214. It is

certainly not of sufficient weight to overthrow the clear and satisfactory proof of a gift inter

vivos. The circumstance is, in fact, of little evidential value when considered in connection

with the circumstances that from 1879 to 1907, on which last date the defendants Peck &

Quinn obtained their deed, the lots were, for the purposes of assessment, valued together with

31 other contiguous lots at a low valuation. The amount of taxes paid during that period

ranged from about $1 to $3 on each lot. The fact that the society paid no taxes on the property

does not militate against the evidence showing a gift, for the Joss House, being used for

religious worship, was exempt from taxation. Its furniture and equipment and the lot of

ground on which it stood were also exempt. Section 3621, Rev. Laws.

6, 7. It is insisted that there is no evidence to show a gift from Haskell to the society.

Haskell, according to the testimony of Su Lee, went with the witness and Manning and

participated with the latter in staking off the lots by setting a post on each corner. When the

witness was being examined, the court and counsel and court officials went with the witness

to the premises, at which place the following testimony was given, to wit:

“The Court: Q. Where did Mr. Manning put stakes? A. Manning and Doc Haskell he put

stakes down here.

“Mr. Harwood: Q. Go with your cane and show him where he put stake. A. (Witness

indicated.)

“Q. They put one stake here? A. Yes, 25 feet away.

“The Court: Q. Now show us where he put another stake. A. Twenty-five feet wide

(indicating).

“Q. Do you remember about where it was? A. He says about 25 feet wide from that point

to that point (indicating).

“Q. But where the other stake there? A. Put a stake over there and one here.

��49 Nev. 124, 137 (1925) Su Lee v. Peck��

“Q. Where did he put the other stakes? A. Way down the river.”

On resuming the examination in court the following took place:

“Q. And who did you say went with you when you put down stakes? A. Manning and Doc.

“Q. Doc Haskell? A. Yes.

“Mr. Harwood: Q. What did Mr. Manning say when you went down there and put stakes

on lot? A. Manning say, ‘You like this lot?' I say, ‘Yes, I like this lot.' ‘All right; I come put a

stake on each corner of house.'

“Q. Anything else? Anything more? A. He put stake every corner, ‘You have this lot for

Joss House,' you know.”

This evidence is not sufficient to show a gift from Haskell of his interest in the premises.

The evidence clearly shows that Manning gave the entire premises, but it does not appear that

any of his statements in this regard were made in the presence of Haskell, and no statement of

Haskell's concerning the transaction appears in the record. A gift cannot be proved by

evidence of an equivocal character. To sustain a gift the evidence must be clear, convincing

the unequivocal:

“A clear and unmistakable intention on the part of the donor to make a gift of his property

is an essential requisite of a gift inter vivos. And this intention must be inconsistent with any

other theory.” 28 C.J. 627, 628.

8. While the evidence does not sustain a gift from Haskell, it does show that the society

acquired title to his interest by adverse possession. Haskell's cotenant, Manning, did not give

his undivided one-half interest in the property, but, on the contrary, gave the entire premises.

The society entered into the possession of the whole, building its Joss House thereon,

claiming the entire property as its own, peaceably, openly and notoriously. This, under the

principle which we think must prevail, amounted to a disseizin of the cotenant, Haskell, and

constituted an adverse holding, which, on the expiration of the time prescribed by statute,

ripened into title by adverse possession.

��49 Nev. 124, 138 (1925) Su Lee v. Peck��

This is certainly the law where the tenant in common conveys the entire title by deed to a

stranger, and it is not apparent why a different principle should prevail in case of a gift. In 7

R.C.L. sec. 49, p. 854, the principle is thus stated:

“A conveyance to a stranger to the title, by one cotenant, by an instrument purporting to

pass the entire title in severalty, and not merely such cotenant's individual interest, followed

by an entry into actual, open and exclusive possession by such stranger under claim of

ownership in severalty, amounts to a disseizin of the other cotenants, which if continued for

the statutory period will ripen into good title by adverse possession.”

In 1 Am. & Eng. Ency. of Law (2d ed.), p. 806, the law is stated as follows:

“A conveyance by one cotenant of the entire estate gives color of title, and if possession is

taken under it, the grantee claiming title to the whole, it amounts to an ouster of the cotenants,

and the possession of the grantee is adverse as to them.”

The principle stated in the foregoing text is sustained by the great weight of authority. See

cases cited in note 2 Am. & Eng. Ency. of Law, supra. Abernathie v. Con. Virginia Min. Co.,

16 Nev. 260; Bogardus v. Trinity Church, 4 Paige (N.Y.), 178; Jackson v. Cole, 146 Ark.

565, 226, S.W. 513, 1064.

9. Haskell was aware that a stranger was in the actual and exclusive possession of the

entire premises and had made valuable improvements thereon. This of itself was notice

sufficient to put him on inquiry. If he had inquired he would have discovered that the society

was in possession under a claim of right to the entire premises by gift from Manning. As said

in Winterburn v. Chambers, 91 Cal. 170, 27 P. 658:

“A cotenant out of possession, in order to avail himself of the presumption attending the

acts of a stranger in possession, must show that such stranger is his cotenant. There is no

presumption of such contenancy, and in the absence of such showing, he is chargeable with

notice of the real character of his claim.”

��49 Nev. 124, 139 (1925) Su Lee v. Peck��

10. The payment of taxes by the adverse claimant is not an essential element of adverse

possession in this case. As previously stated, the Joss House was a building used for religious

worship, and, as such, was exempt from taxation. On the other hand, the disseizin took place

in 1878, and the period of five years required by statute had elapsed before the payment of

taxes was made a statutory element of adverse possession.


March 8, 1926.

Per Curiam:

Rehearing denied.

____________

��49 Nev. 139, 139 (1925) Coleman v. Moore & McIntosh��

COLEMAN v. MOORE & McINTOSH

No. 2723

December 3, 1925. 241 P. 217.

1. Appeal and Error—Announcement of Court on Certain Date of Its Decision, Entered in

Minutes of Court, Constituted “Rendition of Judgment.” The announcement by the court on a certain date of its decision, entered in the minutes of the court,

constituted the “rendition of a judgment,” within Rev. Laws, sec. 5329, notwithstanding there was no

judgment signed at that time, and, upon the death of the judge entering the decision, the succeeding judge

later signed the judgment pursuant to amendment to practice act, sec. 547, found in Stats. 1925, c. 77.

2. Appeal and Error—Amendment to Statute Applicable to Judgment Held Not to Apply to

Judgment Rendered Before Enactment of Amendment. Amendment to practice act, sec. 547, found in Stats. 1925, c. 77, which is applicable to judgments,

held not to apply to a judgment rendered before the enactment of such amendment.

See 3 C.J. sec. 1034, p. 1042, n. 19; sec. 1054, p. 1055, n. 34; p. 1057, n. 37; sec. 1074, p. 1067, n. 28.

Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.

Action by Catherine Coleman individually and as executrix of the estate of Denis Hegarty,

deceased, against Moore & McIntosh and two others. Judgment for defendants, and, from an

order sustaining defendants, ��


motion to strike notice of intention to move for a new trial, and the undertaking thereon,

plaintiff appeals. Appeal dismissed.

M.B. Moore and Wm. McKnight, for Movant:

Judgment became effective from time it was rendered and time for all later proceedings began

to run from that date, February 6, 1925. On September 14, 1925, another judge signed and

had filed written judgment, dating it February 6, 1925. We contend time began to run from

earlier date. If correct, motion should be granted. Tel. Co. v. Patterson, 1 Nev. 150; Nelson v.

Smith, 42 Nev. 302; Clark v. Turner, 42 Nev. 450.

A. Grant Miller, for Appellant:

There was no authority in law of this state for another judge to sign findings, decision or

judgment rendered by deceased judge until March 16, 1925, when Stats. 1925, 115, was

approved. Plaintiffs took premature appeal, which was dismissed. No findings have ever been

signed, but Judge Bartlett signed paper now entitled “judgment” on September 14, 1925,

dating it February 6, 1925. On September 24 appellants duly signed, within time, notice of

intention to move for new trial. Respondents filed motion to strike, which was granted. From

that action this appeal is taken.

Appellants have been denied constitutional rights and deprived of due process of law and

of their day in court.

OPINION


This is a motion to dismiss an appeal. A statement of the facts upon which the motion is

based follows: On the 5th day of February, 1925, this action came on regularly for trial in the

district court of Washoe County, Judge J.A. Callahan presiding. Counsel for respondents,

who were defendants there, objected to any testimony being taken on the part of plaintiffs.

The objection was sustained, except as to parts of certain ��


paragraphs of the complaint. Evidence was stipulated in support of said paragraphs, and the

case submitted. On the 6th day of February, 1925, the court rendered its decision, which was

entered in the minutes of the court, that plaintiff take nothing by her complaint, and that

defendants have judgment for costs. Plaintiffs moved for a new trial, which was denied on

March 16, 1925. On the 26th day of March, 1925, plaintiffs filed a notice of appeal from the

judgment entered on the 6th day of February. No appeal was taken from the order denying the

motion for a new trial.

Plaintiffs applied to the lower court on the 1st day of May, 1925, for an order directing

defendants to prepare and present to the judge thereof findings of fact and conclusions of law

and judgment in the action, or at the pleasure of the court, for an order directing the clerk of

said court to prepare such judgment, and also applying to the court to have the judge thereof

sign such judgment. The application was based upon the fact that Judge Callahan died before

any judgment was presented to him for his signature. It was alleged in the notice of the

application that no judgment had been signed, made, or entered in said action; that the

legislature, since the death of Judge Callahan, had passed an act authorizing succeeding

judges to sign judgments where the acting judge is dead, and that plaintiffs desired to appeal

from said judgment and could not do so until it was entered. On the 14th day of September,

1925, Judge George A. Bartlett, one of the judges of the lower court, signed the following

judgment:

“This cause coming on for trial on the 5th day of February before the court, without a jury,

and the court having heard said matter, and the argument of counsel therein arising upon the

objections of the defendants to the taking of any testimony under the complaint, and the

matter having been submitted for decision, the court being fully advised in the premises, it is

ordered and adjudged that the defendants' objection to the taking of any testimony in said

cause be sustained, and that plaintiffs take nothing by their complaint and action, and the��!��


defendants have judgment for their costs. Execution stayed for a period of ten days upon

stipulation of counsel.

“Dated this 6th day of February, 1925.”

Thereafter, on the 23d of September, 1925, on motion to dismiss the appeal and upon

filing in the supreme court a certificate of the clerk of the lower court showing that

defendants failed to file, within 30 days after their appeal had been perfected, a transcript of

the record or bill of exceptions, said appeal was dismissed. On the 24th day of September

plaintiffs filed a notice of intention to move for a new trial in the court below, and on the 25th

day of September defendants filed notice of motion to strike said notice of intention to move

for a new trial and the undertaking thereon. After a hearing on the motion to strike, the court

on the 29th day of September, 1925, sustained it. From the order sustaining this motion, the

plaintiffs appealed on the following day. It is this appeal that defendants now seek to have

dismissed.

1. As we have stated, the appeal in this case is from the judgment only. An appeal may be

taken from a final judgment within six months after the rendition of judgment. Section 5329,

Rev. Laws. If judgment was rendered on the 6th day of February, 1925, the appeal must be

dismissed, for it was not taken until nearly eight months thereafter, on the 30th day of

September, 1925.

Plaintiffs assert that the former appeal was premature and taken merely as a precautionary

measure, and contend that their time within which to take an appeal did not begin to run until

the formal judgment was signed and entered on the 14th day of September, 1925. The

contention cannot be sustained. The announcement of the court on the 6th day of February,

1925, of its decision, which was entered in the minutes of the court, was the rendition of final

judgment.

The same contention was made in Central T. Co. v. Holmes M. Co., 30 Nev. 437, 97 P.

390, in respect to which the court said: <#�� !��


“It is contended by counsel for appellants that the statutes of limitations in respect to the

filing of an appeal do not begin to run until the entry of the judgment. In this contention we

disagree with counsel. In some jurisdictions, notably in California, pursuant to the provisions

of statute, the time for taking an appeal does not begin to run until the entry of the judgment,

and if an appeal be taken before such entry it will be dismissed as being premature. An

examination of the decisions in such jurisdictions will readily show that the statutes

regulating appeals have always been rigidly followed; and upon a parity of reasoning this

court in a repeated line of decisions has followed the sections of the Compiled Laws defining

the procedure to be taken on appeal. Where the statute refers to the rendition of judgment, it

means the formal announcement by the court, and does not mean the entry of the same by the

clerk.”

It is true that in the foregoing case a written decision was filed at the time judgment was

ordered, but in the course of its opinion the court said:

“It is evident therefore, that when the district court on the 7th day of June, 1906, made its

oral decision and ordered that judgment be entered accordingly, that act constituted the

rendition of judgment referred to in the statutes, regulating the time from which appellants'

right to appeal began to run; and, as it appears that appellants did not avail themselves of their

right of appeal within the time allowed by law, this court has no jurisdiction to proceed to

determine the merits of this appeal.”

Decisions of this court to the same effect are cited and reviewed in the opinion.

In Cal. State Tel. Co. v. Patterson, 1 Nev. 155, the court said:

“The judgment is a judicial act of the court, the entry is the ministerial act of the clerk. The

judgment is as final when pronounced by the court as when it is entered and recorded by the

clerk, as required by statute.”


An again:

“The right of appeal under our practice does not depend upon the entry or perfection of the

judgment of the lower court, but upon the rendition of it.” Id.

“An appeal taken more than six months after the rendition of judgment will be dismissed.”

Nelson v. Smith, 42 Nev. 302, 176 P. 261, 178 P. 625; Clark v. Turner, 42 Nev. 450, 180 P.

908.

It is contended that the time in which plaintiffs had to appeal from the judgment is

governed by the amendment to section 547 of the practice act found in Stats. 1925 at pages

114, 115, and that by virtue thereof the time did not begin to run until the judgment was

signed and entered on the 14th day of September. The amendment reads as follows:

“In case of the death of a district judge after he has rendered and filed a decision or

opinion or caused the same to be entered in the minutes of the court and before the filing of

findings, or the entry of judgment, the succeeding judge of the court in which such cause was

tried shall make an examination of the decision or opinion, the minutes of such cause, the

pleadings, the record and reporter's notes taken therein, if any, and shall sign and settle the

findings, and cause judgment to be entered in the same manner as if such succeeding judge

had presided at the trial of the cause.”

“Sec. 2. This act shall become effective immediately after its passage. * * *”

2. The contention is not tenable. The amendment simply provides how a succeeding judge

may perfect a judgment rendered by a predecessor, since deceased, and cause it to be entered.

It in no manner affects the time in which an appeal may be taken after the rendition of

judgment. Moreover, final judgment was entered in this case on February 6, 1925, and the

amendment was not approved until March 16, 1925. For this reason also the amendment has

no application in this case.

The appeal is dismissed. It is so ordered.

____________

��49 Nev. 145, 145 (1925) Ex Rel. Nenzel v. District Court��

EX REL NENZEL v. DISTRICT COURT

No. 2720

December 4, 1925. 241 P. 317.

1. Receivers—Court Cannot Direct Receiver to Take, from Possession of Sheriff, PropertyAttached by Creditor.

The superior court has no authority to order a receiver appointed under Rev. Laws, sec. 5193, as

amended by Stats. 1923, c. 22, sec. 1, and not under Rev. Laws, sec. 1195, or Stats. 1925, c. 177, sec. 47,

to take from the possession of a sheriff property of a corporation levied upon by him under attachment by

a creditor.

2. Receivers—Sheriff May Refuse to Deliver Property Lawfully Attached to One Claiming

as Receiver under Void Appointment. A sheriff, having come into possession of property by a lawful attachment and being in peaceable

possession thereof, may refuse to deliver it to a receiver even if attachment has been discharged, where

appointment of receiver was null and void.

3. Estoppel—Receiver Estopped from Questioning Attachment by Sheriff. Where court appointed a receiver to whom sheriff refused to deliver property of corporation which he

had attached in behalf of creditor, receiver held estopped, by his allegation in a contempt affidavit filed

against the sheriff alleging that latter held the property under attachment, from subsequently questioning

the attachment.

4. Attachment—Failure to File Attachment Bond on Date Required, Cured. Where attaching creditor was required by court to file an additional bond and such bond was not

approved until several days after date set for its filing, attachment lien held not discharged, but defect was

cured under district court rule 20, allowing amendments.

5. Receivers—Appointment of Receiver Held Unauthorized in Absence of Action Pending. An appointment of a receiver under Rev. Laws, sec. 5193, is unauthorized in the absence of an action

pending in which the application was made.

6. Receivers—Appointment of Receiver in a Separate Proceeding, after Judgment in Action

to Recover on a Money Demand, Not Authorized under Statute. The appointment of a receiver in a separate proceeding for that purpose, after a judgment in an action

at law to recover on a money demand, is not authorized under Rev. Laws, sec. 5193, subds. 3 and 4.

7. Corporations—Appointment of Receiver Not Authorized because of Mere Insolvency. Appointment of receiver of a corporation, merely because the corporation is insolvent, is not

authorized by Rev. Laws, sec. 5193, subd. 5.


8. Receivers—Court Held Not Entitled to Appoint Receiver under Equity Powers Conferred

by Statute. The court had no jurisdiction to appoint a receiver to take over and manage and operate corporate

property under its general equity powers as conferred by Rev. Laws, sec. 5193, subd. 6, where plaintiff, a

creditor, had an adequate remedy at law and no irreparable damage would be sustained.

See (1, 2, 4, 5, 6, 8) 34 Cyc. p. 23, n. 50; p. 29, n. 77; p. 65, n. 28; p. 229, n. 43; 6 C.J. sec. 312, p. 173, n. 73

(new); (3) 21 C.J. sec. 23, p. 1066, n. 75; (7) 14a C.J. sec. 3161, p. 947, n. 10; sec. 3178, p. 958, n. 13.

Prohibition by the State of Nevada, on the relation of Joseph Nenzel and others, against

the Second Judicial District Court of the State of Nevada in and for Washoe County, and

George A. Bartlett, as Judge of said court. Writ made permanent. Rehearing denied.

Thos. E. Powell, M. B. Moore, George F. Snyder and Wm. McKnight, for Petitioners:

Receiver cannot be appointed or take over all assets except in dissolution action brought

according to law. Havemeyer v. Court, 24 P. 121; French Bank Case, 53 Cal. 495; Rev. Laws,

1195; Stats. 1923, 20.

Prohibition is proper remedy to prevent punishment as for contempt for alleged violation

of void order. Main v. Luce, 215 P. 399. Also to prevent court from taking possession by

receiver when order of appointment is void. Murray v. Court, 62 P. 191.

Supreme court is not precluded from determining jurisdiction where its want is apparent

from pleadings, because no plea to jurisdiction was entered in lower court. High on

Extraordinary Legal Remedies, sec. 744; State v. Court, 200 P. 92.

Court has no authority to direct receiver to take possession of property previously attached.

High, sec. 440; State ex rel. v. Court, 34 P. 430.

Not having objected to bond or attachment, respondents cannot urge objection here. 6 C.J.

175; Moresi v. Swift, 15 Nev. 215.

Complaint fails to show corporation is insolvent; that there was no complete remedy at law,

but it does ��


show there was remedy by execution on property not covered by attachment; it was filed in

one county and property is situated in another; it contains only legal conclusions, and shows

collusion. State ex rel. Krich v. Court, 78 P. 461; Heavilon v. Bank, 81 Ind. 249; 34 Cyc. 107,

111; Smith on Receivers (2d ed.), 692.

Prince A. Hawkins, Price & Hawkins, and Cooke & Stoddard, for Respondent:

In Von Roun v. Court, 58 Cal. 358, under nearly similar circumstances court held question

one of jurisdiction solely.

Every material question in this petition has been held without merit upon prohibition.

Irving National Bank v. Court, 47 Nev. 86; State ex rel. Cameron v. Court, 48 Nev. 198.

Reinhart Co. v. Mng. Co., 48 Nev. 32.

Prohibition will never issue except in cases of usurpation or abuse of power, and then only

when other remedies are inadequate. Walcott v. Wells, 21 Nev. 47; Agissiz v. Court, 27 P.

49.

Petitioners could have appeared, and it was their duty to appear in receivership court by

intervention, with rights of appeal secured. Irving Bank Case, supra.

Appeal is proper and adequate remedy to prevent appointment of receiver and sale by him

of property; prohibition will not issue though order is in excess of jurisdiction. White v.

Court, 42 P. 472.

Insolvency for receivership purposes and insolvency for bankrupt purposes are

distinguished. Insolvency imports present inability to pay; future contingencies do not affect

matter. In Re Wells, 29 Fed. 637; 7 R.C.L. 745.

Receivers are quite universally appointed where corporations, though not insolvent, are

temporarily embarrassed financially if receivership facts are set forth in petition, where such

course will protect creditors and stockholders and preserve assets. 1 Tardy's Smith on

Receivers (2d ed.), 691; Ry. Co. v. Steel Co., 75 Fed. 54; Booth v. Mng. Co., 104 P. 207; 8

Fletcher Cyc. Corp., sec. 5215, criticizing doctrine in French Bank Case.


Attachment was discharged as to property affected when additional bond required was not

filed.

Is not most important question whether going concern, operating at full capacity, may be

closed down and virtually destroyed by one attaching creditor, to irreparable injury of other

creditors and of company itself?

OPINION


This is an original proceeding in prohibition. The petition alleges that Hon. George A.

Bartlett at all times therein mentioned was and now is one of the judges of the Second judicial

district court of the State of Nevada, in and for the county of Washoe, presiding in department

2 thereof; that the petitioner Jurgensen at all times mentioned was and now is the duly

elected, qualified, and acting sheriff of Pershing County, Nevada; and that petitioner Thomas

E. Powell is and at all times mentioned in the petition was the duly appointed, qualified, and

acting district attorney of said Pershing County; that on the 31st day of July, 1925, there was

commenced in the Sixth judicial district court of Nevada, in and for Pershing County, a

certain action by A.R. McRae, as trustee in bankruptcy, and Joseph F. Nenzel, against the

Rochester Silver Corporation, a corporation, to recover judgment in the sum of $1,025,000;

that thereafter a writ of attachment was issued in said suit pursuant to which said Jurgensen,

as sheriff, attached certain real and personal property belonging to said company, which has

ever since remained in the possession of said sheriff pursuant to said writ of attachment; that

thereafter the said Sixth judicial district court made an order requiring the plaintiffs in said

suit to file an additional bond on attachment in the sum of $17,500, on or before September

18, 1925; and that said order was complied with.

It is further alleged in said petition that on the 19th day of September, 1925, the Nevada

Valleys Power Company, a corporation, as plaintiff, commenced a certain ��=��4� ��)��C��<)�1D��

��'��F� ��8��)�� 5��!��)�0�4��=��4� ��)�� !�� 5��4��


proceeding against the Rochester Silver Corporation, as defendant (hereinafter referred to as

“Co.”), a copy of the complaint in which proceeding is annexed to and made a part of the

petition herein; that thereupon the said Nevada Valleys Power Company caused to be filed in

said last-mentioned proceeding a notice of motion for the appointment of a receiver and for

an injunction, a copy of which is annexed to and made a part of the petition herein; that

thereafter, and on the same day, the court, in said proceeding, appointed C.T. Stevenson as

receiver of the Rochester Silver Corporation and also issued an injunction therein, a copy of

which is annexed to and made a part of the petition herein; and that on said last-mentioned

day the said Stevenson duly qualified as such receiver.

It is further averred: That on September 21, 1925, said Stevenson, as such receiver,

demanded that the petitioner Jurgensen, as sheriff as aforesaid, deliver to said Stevenson, as

such receiver, all of the property which had come into his hands as such sheriff pursuant to

the attachment proceedings aforesaid, but that said sheriff refused and still refuses to deliver

over the same, and that the petitioner Powell, as district attorney, advised him to so refuse.

That thereafter and on the 8th day of October, 1925, the said receiver filed in the office of the

clerk of the said Second judicial district court an affidavit of facts on application for citation

for contempt, a copy of which is annexed to the petition and made a part thereof. That

thereupon the respondent issued, made, and entered an order in criminal contempt directed to

the petitioners Jurgensen and Powell, citing them to appear before the respondent court and

show cause why they should not be adjudged guilty of contempt for violating said order

appointing said receiver and issuing said injunction, a copy of which is annexed to and made

a part of the petition. It is further averred that the respondent threatened to, and unless

restrained will, adjudged petitioners Jurgensen and Powell guilty of contempt of court, and

will imprison the said Jurgensen until he shall deliver the property mentioned to said receiver.


Upon the filing and presentation of the petition herein, it was ordered that an alternative

writ of prohibition issue.

Respondent filed a demurrer to the petition and also an answer and return to the writ. In

the answer and return the respondent denies that the additional bond in the sum of $17,500

was filed in conformity with the order of the court, and avers that in addition to requiring said

additional bond, the order provided that the property attached “be, and the same hereby are,

released from said writ of attachment—unless such additional bond or undertaking on

attachment, so conditioned, and in the sum of $17,500, be furnished and filed in the

above-entitled action and court on or before September 18, 1925.” It is further averred that

said bond was not approved until the 22d day of September, 1925.

The complaint in the proceeding for the appointment of a receiver alleges:

“That plaintiff had theretofore obtained a judgment against the Co. in the sum of

$1,939.56, and that in addition to said judgment debt “various other persons are making

claims against said defendant for money claimed to be due from said defendant, and several

suits have been commenced, and are now pending in different courts of the State of Nevada,

and in some of said actions, writs of attachment have been issued and portions of the assets

and property of said defendant have been attached, including the mill and machinery therein,

and the attaching officer has closed down said mill; that, according to information and belief,

none of the claims involved in said actions have been adjudicated or determined, but are

being contested by said defendant.

“That, while the aggregate of the property and assets of defendant company at a fair

valuation is more than sufficient in amount to pay the debts of said defendant company,

unless a receiver is appointed and injunction granted as prayed herein, other suits will be

commenced against said defendant company, and the property and assets of said defendant

company will be seized by writs of attachment or execution or other process, and thereby�� !�� !��


dissipated, lost, removed, or materially injured, and the business and enterprise of defendant

company will be disrupted, broken, dissipated, and destroyed, and the value of the property

and assets of said defendant company greatly diminished, to the great and irreparable injury

of plaintiff and of other creditors of defendant company and of the defendant company. That

the appointment of a receiver as prayed for is necessary in order to prevent serious loss and

irreparable injury to the plaintiff, as a judgment creditor of the defendant, and other parties

interested, as herein set forth. That said judgment debtor refuses to apply any of its property

in satisfaction of plaintiff's said judgment. That, according to information and belief, the

amounts claimed to be due from defendant to the parties instituting suits, and in which writs

of attachment have been issued as herein set forth, are unreasonable and fictitious, and are not

bona fide claims of indebtedness of defendant company herein.

“That, according to information and belief, the principal property and assets of said

defendant company are: Certain lode mining claims, some 40 or 50 claims, situated in

Rochester mining district, Pershing County, Nevada, all of which constitute a group of

mining claims; a 10-stamp (1,550 pounds each) cyanide mill, and reduction works, including

all machinery and apparatus used in the operation of said 10-stamp cyanide mill, said mill

having a daily capacity of approximately 160 tons, boarding house, storerooms, mining cars,

drills, picks, shovels, pipes, blacksmith's shop and equipment, assay office and supplies,

powder cyanide, and much other personal property and machinery used by said defendant

company in the working of said mining claims and operating said mill.”

It is further alleged in the complaint in said receivership suit that through some

arrangement E.R. Bennett and W.G. Emminger had been working certain of the mining

claims owned by the Co. and operating its said mill until August 31, 1925, when the mill was

shut down by virtue of the writ of attachment mentioned, and that ��)�� #�� )�� )�� 2��)�� )�� !��)�


the Co. was unable to execute a sufficient bond to procure its release. It is further alleged in

said complaint, on information and belief, that unless the property and assets of the Co. are

taken under possession and control of the court, other persons claiming to be creditors of the

Co. will commence suits and seize by writs of attachment and execution the property and

assets, or portions thereof, of the Co., and thereby prevent, hinder, and delay the operation of

the mine and mill of the Co., and that there is great danger that its property and assets will

will be lost, removed, and materially injured, and the business and enterprise of the Co. will

be disrupted, broken, and destroyed, and the value of such property greatly diminished. It is

also alleged that the appointment of a receiver to take possession of the assets of the Co. and

to continue the operation of its business and its mines and mill was necessary.

The complaint concludes with the prayer, among other things, that the court appoint a

receiver to take possession of all of the assets of the Co. and that he be authorized and

directed to carry on and conduct the mining and milling operations and business of said Co.

On the day on which said complaint was filed, notice of motion for the appointment of a

receiver for the Co. was accepted by one designating himself as its assistant secretary, who

stipulated that the hearing might be had at the time stated in the notice, though no notice of

such application was given to the attaching creditors of the petitioner sheriff.

Upon the presentation of said matter to the respondent court, it appointed C. T. Stevenson

receiver of the Co. with authority to carry on, manage, conduct, and operate the mines and

mill and the business of said defendant Co., according to the usual course of business of like

character. Several reasons are urged why the alternative writ should be made permanent.

1. At the threshold of this matter, we may say that there are three statutes in this state

authorizing the appointment of receivers of corporations, each intended to apply to a

particular situation, namely: Section 5193, Revised Laws; section 1195, Revised Laws, as

amended ��%�&6C4��


in 1923 (Stats. 1923, p. 20, c. 22); and Stats. 1925, p. 307, sec. 47 (c. 177).

In behalf of counsel for respondent, it is contended that the court in appointing the receiver

for the Co. proceeded under provision of the first-mentioned section. Such is clearly the fact.

It is said that even if the court had jurisdiction to appoint a receiver of the Co., the writ

must be made permanent because of the fact that the property was in possession of the

petitioner sheriff, pursuant to a levy under a writ of attachment. In opposition to this

contention, and to nearly every other point made in behalf of the petitioner, the Irving

National Bank Case, 47 Nev. 86, 217 P. 962, is very strenuously urged upon us. Just how that

case can be an authority in the instant matter is more than we can understand. In the first

place, the appointment of the receiver in the matter there under consideration was pursuant to

the act of 1923, supra, and the jurisdiction of the court to make the appointment was not

questioned. But the fact which distinguishes that matter from this, as appears from the

statement of the facts of the case, is that the receiver of the Como Consolidated Mines

Company had taken the property from the possession of the sheriff; while in the instant

matter the receiver is endeavoring to have the sheriff punished for refusing to surrender the

possession of the property to the receiver.

The Irving Bank Case will exemplify the force of the rule recognized in Jensen v. Pradere,

39 Nev. 466, 159 P. 54, to the effect that every opinion must be read as applicable to only the

particular facts of the case in which the opinion is rendered. The rule which we think controls

in this case is stated in State ex rel. J.M. Arthur Mach. Co. v. Superior Court, 7 Wash. 77, 34

P. 430. That was a proceeding in prohibition, as here. The Arthur Co. had caused certain

property of one of its debtors to be attached, as here. Thereafter the court appointed a receiver

of the debtor, whereupon the receiver sought to take the attached property from the sheriff. In

disposing of the prohibition proceeding, the court said: <*�� !��


“When a creditor lawfully obtains an attachment against property by levy of the writ by the

sheriff, the law gives him not only the right to have his debt paid out of the proceeds of that

property, but it also gives him the absolute right to have that property retained intact in the

hands of the sheriff until such time as he may obtain judgment and issue execution. * * *

And, although the superior court has general jurisdiction to appoint all receivers which the

statute or the common law authorizes, it has no jurisdiction to direct a receiver, appointed in

the manner in which this particular receiver was appointed, to take from the possession of the

sheriff the property levied upon by him under the attachment of relator. Therefore, to the

extent of prohibiting the respondents from interfering with the property in the hands of the

sheriff, the writ will be issued.”

This is a clear exposition of the law sustained by all of the authorities. The only case cited

sustaining a contrary rule is Irving National Bank Case, supra, where, as pointed out, the

sheriff had lost possession of the property when the writ was applied for.

While in the case of State ex rel. Hunt et al. v. Superior Court, 8 Wash. 210, 35 P. 1087,

25 L.R.A. 354, it is said, “There are many cases which hold that a receiver once in possession

[as in Irving National Bank Case] of property cannot be disturbed in such possession, even by

one who has a superior lien thereon,” it is in accord with the rule enunciated in the

Washington case previously quoted from. In Pease, Sheriff, v. Smith, 63 Ill. App. 411, it is

said:

“The levies not only gave the plaintiff in the executions, and the plaintiffs in the

attachments, if they maintained them, a prior right to the proceeds of the property, but they

gave to the sheriff the prior right to the possession of the personal property levied upon.

Enough cases are cited in High on Receivers, sec. 440, to establish that proposition.”

In People v. Finch, 19 Colo. App. 512, 76 P. 1123, the court points out, as in the Illinois

case, that the maintenance of the attachment lien by holding the possession ��


of the property by the sheriff gives him a superior right to that of the receiver. Other

authorities sustaining the rule are Sanders v. Main, 9 Wash. 46, 36 P. 1049; Cherry et al. v.

Western Wash, etc., 11 Wash. 586, 40 P. 136; Ward v. Healy, 114 Cal. 191, 45 P. 1065;

Reynaud v. Walton, 136 La. 88, 66 So. 549; Elwell v. Goodnow, 71 Minn. 390, 73 N.W.

1095; Prentiss Co. v. Whitman & Barnes, 88 Md. 240, 41 A. 49; First Natl. Bank v. Cook, 12

Wyo. 492, 76 P. 674, 78 P. 1083, 2 L.R.A. (N.S.) 1012; Wiswall v. Sampson, 14 How. 52, 14

L. Ed. 322; Walling v. Miller, 108 N.Y. 173, 15 N.E. 65, 2 Am. St. Rep. 400.

2, 3. But it is said on behalf of respondent that the petitioner Nenzel failed to give the

additional bond within the time ordered by the court, and therefore the attachment was

discharged; hence petitioner cannot resist the efforts of the receiver to get possession of the

property. The sheriff having come into possession of the property lawfully and being in the

peaceable possession of it at the time the receiver made the demand for its delivery to him, he

had a right to refuse it to the receiver, even if the attachment had been discharged, since the

appointment of the receiver was null and void, as hereinafter shown. Furthermore, it having

been alleged in the affidavit of contempt filed against Jurgensen and Powell in the district

court that Jurgensen held the property under attachment, we are of the opinion that the

respondent should be estopped from now questioning that allegation.

4. We are not prepared to say, however, that the attachment lien had been discharged. Our

district court rule No. 20 allows amendments, and the defect complained of was cured. See,

also, 6 C.J. 173.

5. Was the respondent without jurisdiction to make the order of appointment which it did?

In this state the appointment of receivers is controlled by statute. As we have pointed out,

there are three statutes authorizing the appointment of receivers. The one under which it is

contended Mr. Stevenson was appointed is section 5193, Revised Laws, which reads: <(

��!��-


“A receiver may be appointed by the court in which an action is pending, or by the judge

thereof:

“1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to

subject any property or fund to his claim, or between partners or others jointly owning or

interested in any property or fund, on application of the plaintiff, or of any party whose right

to or interest in the property or fund, or the proceeds thereof, is probable, and where it is

shown that the property or fund is in danger of being lost, removed, or materially injured.

“2. In an action by a mortgagee for the foreclosure of his mortgage and sale of the

mortgaged property, where it appears that mortgaged property is in danger of being lost,

removed, or materially injured, or that the condition of the mortgage has not been performed,

and that the property is probably insufficient to discharge the mortgage debt.

“3. After judgment, to carry the judgment into effect.

“4. After judgment, to dispose of the property according to the judgment, or to preserve it

during the pendency of an appeal, or in proceedings in aid of execution, when an execution

has been returned unsatisfied, or when the judgment debtor refuses to apply his property in

satisfaction of the judgment.

“5. In the cases when a corporation has been dissolved, or is insolvent, or in imminent

danger of insolvency, or has forfeited its corporate rights.

“6. In all other cases where receivers have heretofore been appointed by the usages of the

courts of equity.”

The statute just mentioned is taken from the California statute (Kerr's Cyclopedic Code

Civ. Proc. [1907 ed.] c. 5, sec. 564), and has been often construed by the court of that state,

and naturally such interpretations are of great weight with us. That court has repeatedly held

that at least two things are essential to the appointment of a receiver under the statute

mentioned: First, there must be an action pending in which the application �� !��


is made; and, secondly, the petition must state sufficient facts under one of the subdivisions

of the statute mentioned to justify such action. If there is no action pending in which the

application for the appointment of a receiver is made, the court should not inquire further.

In the French Bank Case, 53 Cal. 495, 553, speaking of the statute in question, it is said:

“There is, of course, no such thing as an action brought distinctively for the mere

appointment of a receiver. Such an appointment, when made, is ancillary to or in aid of the

action brought. Its purpose is to preserve the property pending the litigation so that the relief

awarded by the judgment, if any, may be effective. The authority conferred upon the court to

make the appointment necessarily presupposes that an action is pending before it, instituted

by some one authorized by law to commence it.”

The views thus expressed have been repeatedly approved by the Supreme Court of

California (Murray v. Superior Court, 129 Cal. 628, 62 P. 191), and such is the settled law of

that state. Such is not only the rule in California, but in every court where a statute such as

ours exists.

In Nebraska, where the statute provides that a receiver may be appointed in a “suit actually

commenced and pending,” the supreme court, in the case of Vila v. Grand Island, etc., Co., 68

Neb. 222, 94 N.W. 136, 97 N.W. 613, 63 L.R.A. 791, 110 Am. St. Rep. 400, 4 Ann. Cas. 59,

after reviewing many authorities, held in a proceeding merely for the appointment of a

receiver, as in the instant matter, that the court had no jurisdiction to make the appointment.

It would serve no useful purpose to prolong this opinion by reviewing the cases sustaining

the view taken. A long list of authorities sustaining the rule may be found in a note to the

last-mentioned case in 4 Ann. Cas. p. 67.

But it is said that the case of State ex rel. Cameron v. District Court, 48 Nev. 198, 228 P.

617, and Reinhart Co. v. Oklahoma Gold M. Co., 48 Nev. 32, 233 P. 842, are opposed to

such conclusion. In the first case the �� !��


court simply held that since the court had jurisdiction of the receivership matter, any error

appearing must be corrected on appeal. In the instant matter, we hold the court was without

jurisdiction. Nor is there anything in the other case mentioned in conflict with what has been

said in this matter. In that case the appointment of the receiver was not questioned, nor were

the other points disposed of in the instant matter urged.

It is self-evident from the facts stated that no ground for the appointment of a receiver

existed under paragraphs 1 and 2 of the statute quoted. Indeed, one of the counsel for

respondent relies solely upon paragraph 6 of the statute as authority to sustain such

appointment, while the other counsel relies upon the paragraphs 3, 4, and 5.

6. It is said in behalf of respondent that paragraphs 3 and 4 contemplate just such a

proceeding as was pursued in the receivership matter in question; that is, a separate

proceeding after judgment in an action at law to recover on a money demand merely to obtain

the appointment of a receiver. Such is clearly not the case as is pointed out by the Supreme

Court of California in at least two opinions. That court, in Kreling v. Kreling, 118 Cal. 421,

50 P. 549, said:

“A receiver is an officer or representative of the court, appointed to take the charge and

management of property which is the subject of litigation before it, for the purpose of its

preservation and ultimate disposition according to the final judgment therein. * * * If he had

not been appointed until after judgment has been rendered, as in the present case, his

functions are limited to the property described in the judgment, either for the purpose of

carrying the judgment into effect, or for its preservation until the judgment shall be

executed.”

The said court, in White v. White, 130 Cal. 597, 62 P. 1062, 80 Am. St. Rep. 150, said:

“The power, under subdivision 3 (a new provision of the code), to appoint a receiver ‘after

judgment to carry the judgment into effect,' applies only to cases where the judgment affects

specific property. * * * The �� !��


provision has no application to a simply money judgment. In such case the writ of execution

furnishes an ample sufficient remedy, and is the only means provided.”

See, also, Davis v. Flagstaff, etc., 2 Utah, 74, 93.

7. It is contended that the court had authority pursuant to paragraph 5 of the section

quoted. The supreme court of California had this paragraph under consideration in the French

Bank Case, supra, where it was held that mere insolvency did not give the court jurisdiction

to appoint a receiver over the property of a corporation; the court saying:

“But there is no statute in this state, none to which we have been pointed, which

undertakes to confer upon a private person, either as stockholder or creditor, the right to

maintain an action to dissolve a corporation upon the ground that it is insolvent, or to obtain

relief by seizing its property out of the hands of its constituted management, and placing it in

the hands of a receiver.”

Such has been the uniform holding, for many years, as pointed out in the case of Murray v.

Superior Court, supra, and since the paragraph in question was incorporated in our act by the

revision of 1911, and taken from California (as appears from note to section 5193, Revised

Laws), long after the decision in the French Case and the Murray Case, and many others,

construing the section as stated, we feel bound by them.

8. As to the contention that pursuant to paragraph 6 the court was authorized to make the

appointment under its general equity jurisdiction, we need only say that where it does not

appear, as in this case, that the plaintiff has no adequate remedy at law, a court of equity

acquires no jurisdiction. The general rule on this point is stated in Tardy's Smith on Receivers

(2d ed.), in section 9, as follows:

“Following the principles appertaining to equity jurisdiction, it is a fundamental rule that a

receiver will not be appointed if the plaintiff has a full and adequate remedy at law in respect

to his alleged rights.”

See, also, 14a C.J. 947; 8 Fletcher's Cyc. Corp. par. 5262; High on Receivers (4th ed.), sec.

399.


Even the case of Merrifield v. Burrows, 153 Ill. App. 523, so much relied on by the

respondent, recognizes this rule. The case just mentioned is dissimilar in its facts from the

instant case and throws no light upon the situation before us. There is no allegation in the

complaint in the receivership matter of fraud, collusion, mismanagement, or any other

allegation going to show that the board of directors of the company are incapable, unwilling,

or neglectful in the performance of their duties, or that the Co. has suffered, or is about to

suffer, through any neglect or oversight on their part.

We think it affirmatively appears from the complaint in the receivership matter that the

plaintiff has an adequate remedy at law. There is no allegation of facts charging the

insolvency of the Co., and if there were, mere insolvency is no ground for the appointment of

a receiver under the statute in question. On the other hand, it is alleged in the complaint that

the claims upon which the attachments were issued are fictitious, and in addition to this, it is

alleged that the property and assets of the Co. are such that enough money can be realized

from them, without the necessity of sale, if properly managed, to discharge all of the

liabilities of the Co. The complaint itself shows that the Co. has a valuable property, against

which no valid lien is asserted, yet the plaintiff has made no effort to levy upon the property,

or any part of it under an execution. How, in the face of this, can it be said that a court of

equity ever acquired jurisdiction to appoint a receiver?

It seems that the real purpose of the receivership is to take over and manage and operate

the property. How can a court, under its general equity jurisdiction, take over the property of a

corporation, manage and operate it when there is no intimation of the incapacity, neglect,

unwillingness, or other fact charging that the business of the company would suffer in the

hands of its officers? The theory is, of course, that the Co. cannot operate the mill while it is

in the custody of the sheriff. But neither can the receiver. It appears from the complaint that

the officers of the Co. are defending the attachment suit, ��


and if it is fictitious, as charged, the attachment will be discharged in due time. A receiver

could do no more, except incur large expense. Nor is there any foundation for the allegation

that there will be great loss to the Co. The mineral in the ground will not dissolve or

evaporate, and it is not claimed that any of the personal property is perishable, and the sheriff

is liable on his bond for its safe-keeping. From no standpoint can we see that the court was

justified in appointing a receiver.

The court was without jurisdiction to appoint a receiver, and all proceedings therein are

null and void, including the order requiring the petitioners, Powell and Jurgensen, to show

cause why they should not be punished for contempt; hence the alternative writ is made

permanent.

April 8, 1926.

Per Curiam:

Rehearing denied.

____________

��49 Nev. 161, 161 (1925) Martin v. Dixon��

MARTIN v. DIXON

No. 2685

December 5, 1925. 241 P. 213.

1. Action—Suit Held One in Equity to Compel Transfer of Stock or in Alternative forDamages.

Complaint, alleging that defendant, who had been plaintiff's attorney, obtain certain corporation stock,

and concealed such fact from plaintiff, and placed shares of such stock to his own credit, and asking for

judgment for return of stock, or, in lieu thereof, for its value, and for damages, and for general equitable

relief, held one in equity to compel transfer of stock or in the alternative for damages for conversion and

detention thereof.

2. Corporations—That Person Suing to Compel Transfer of Stock Failed to Establish

Damages Held Not to Preclude Court from Compelling Transfer of Stock. That plaintiff suing to compel transfer of stock to him did not establish damages did not preclude

court from compelling transfer of stock if facts warranted, and decree therefor was not in excess of court's

jurisdiction.

3. Evidence—Admission of Documents in Another Case as Admission against Interest Held

Proper. In suit against plaintiff's former attorney to compel transfer of corporation's stock, where complaint

showed contractual ��


relation between plaintiff and defendant, and that such stock was affected with trust in favor of plaintiff,

admitting documents in another case in which present defendant was codefendant with plaintiff as

admission against interest of present defendant held proper.

4. Attorney and Client—Attorney Buying Stock to which Client Had Right Not Entitled to

Claim that Client Should Reimburse Him for Money Paid for It. In suit by client against his former attorney to compel transfer of stock which was affected with trust

in plaintiff's favor, defendant was not entitled to claim that plaintiff should reimburse him for money

which he paid out to acquire stock, and hold it adversely to plaintiff.

5. Attorney and Client—Attorney Cannot Allow Personal Interest To Be Antagonistic to

Client. Attorney cannot allow personal interest to be antagonistic to interests of client.

6. Attorney and Client—Attorney Purchasing or Acquiring Interest in Property Subject to

Litigation Holds as Trustee for Client. Whether during time attorney is acting as such or after such relations have ceased, and whether with

client's money or his own money he purchases or acquires subject of litigation, equity will decree that he

holds such interest as trustee for client.

7. Attorney and Client—Burden of Showing Nonexistence of Fiduciary Relation Held to

Rest on Attorney who Purchased Stock in which Client Had Interest. Where attorney purchased stock, subject of litigation, in suit by client to compel transfer of stock to

him, burden of severing his fiduciary relation from transaction in which he had personal interest was on

attorney.

8. Attorney and Client—Proof of Purchase of Stock, Subject of Litigation, by Attorney Held

to Entitle Client to Transfer Thereof without Proof of Actual Fraud. On evidence showing that attorney purchased stock, subject of litigation, for his own advantage, client

was entitled to return thereof without proof of actual fraud.

9. Attorney and Client—Judgment Requiring Attorney to Return Stock, Subject of

Litigation, Purchased by Him, to Client Held Proper. In suit by client to compel return of stock, subject of litigation, purchased by attorney, where attorney

failed to sustain burden of showing that purchase by him was fair and honest, and that client was fully

apprised of his rights, and effect and consequence of his acts, judgment requiring transfer of stock to

client was proper.

See (1) 1 C.J. sec. 174, p. 1044, n. 44; (2) 21 C.J. sec. 138, p. 157, n. 52 (new); (3) 22 C.J. sec. 370, p. 329, n.

55; (4, 5, 6, 7, 8, 9) 6 C.J. sec. 208, p. 682, n. 88 (new), 90, 91; sec. 213, p. 689, n. 40; sec. 214, p. 689,

n. 44; sec. 259, p. 710, n. 17 (new).


Appeal from Second Judicial District Court, Washoe County; James A. Callahan, Judge.

Suit by Joseph Martin against J.B. Dixon. Judgment for plaintiff, and defendant appeals.

Affirmed.

Sardis Summerfield, for Appellant:

Allegations of complaint are all characteristic of trover for conversion. Rule stated in

Dixon v. S.P. Co., 42 Nev. 81, and earlier cases, is carefully set out, but later paragraphs

make claim for special damages as stated in Ward v. Carson etc. Co., 13 Nev. 62. Plaintiff did

not avail himself of special provisions of Rev. Laws, 5124 to 5135, for obtaining converted

property. He cannot now claim delivery and rely on measure of damages for conversion.

There being no evidence on which damages could be calculated, judgment ought to have been

for defendant, or merely nominal damages for plaintiff. Dixon v. S.P. Co., supra.

By many decisions proper remedy for conversion lies in trover.

Allowance of damages is only remedy our courts have power or jurisdiction to grant.

Judgment is in excess of jurisdiction. Cases supra; 26 R.C.L. 1105.

Courts should authorize amendments to make case as intended originally, but not to insert

new or distinct cause of action or defense. Nevada Mng. Co. v. Rae, 47 Nev. 173.

Fraud must be proved as alleged; court cannot permit substantial variance. Fraud is never

presumed. Gruber v. Baker, 20 Nev. 476.

Client's right to attorney's purchase must be exercised within reasonable time or is waived,

particularly where there is no moral turpitude on attorney's part, because delay may affect

parties to transaction or value of property. By dealing with attorney as owner, client may

ratify act and estop himself. 6 C.J. 682, 685.

John S. Sinai, for Respondent:

Relation of attorney and client is one of highest trust ��


and confidence. If good faith of attorney is attacked by client, burden shifts and it is

incumbent on attorney to prove perfect good faith. Attorney must give client all information

and advise which it would be his duty to give if uninterested. Client has right to treat all acts

of attorney concerning interests entrusted to him as being for client's benefit. Attorney must

not receive any benefit from subject matter at expense of client even if there is no actual

fraud. Attorney cannot use for his own benefit, as against client, information acquired in

professional capacity. He cannot represent conflicting interests. His business transactions

with client are scrutinized with jealous care. Exception to general rule that knowledge of

attorney is knowledge of client exists where attorney is acting in his own interest as opposed

to client's. Purchase by attorney without consent of client, of interest in thing in controversy,

is usually forbidden. 6 C.J. 682, 686; 2 R.C.L. 966; 1 Page on Contracts, 685; Gibson v.

Gayes, 6 Ves. 278; Baker v. Humphreys (U.S.), 25 L. Ed. 1067; 4 A.L.R. 1618.

Where bill if filed to set aside contract or deed between parties standing in confidential

relation, defense of laches is not regarded with favor. 2 R.C.L. 970.

Where it is plain from answer that if demand had been made it would have been refused, it

does not lie in mouth of defendant to object that no demand was made. Cox. v. Dalmas, 33

Pac. 836.

Stock sued for is not in certificate form but is intermingled with other shares and cannot be

described as required by Rev. Laws, 5124-5135. Action in conversion and in claim and

delivery can be filed in one suit, particularly under direct allegation of fraud in conversion,

but action in claim and delivery is not proper to recover intermingled property. Ashton v.

Haydenfeldt, 56 P. 624.

OPINION


This is a controversy between Joseph Martin, respondent, plaintiff below, and J.B. Dixon,

appellant, defendant �� *�� )��<B�� 1


below, over certain shares of the capital stock of the Wedekind Mines Company, a

corporation, which shares of stock are referred to in the case as the “Englander stock.” The

case was tried without a jury. The court found in favor of the plaintiff and against the

defendant, and ordered the defendant to transfer to the plaintiff 142,166 2/3 shares of the

capital stock of said corporation standing in his name upon its books, and ordered the

defendant to pay to the plaintiff the sum of $1 nominal damages. The case is here upon the

defendant's appeal from said judgment or order, and also from an order denying the

defendant's motion for new trial.

The principal assignments of errors make it necessary to review the complaint and the

court's findings of facts at length.

1. We do not take seriously the contention that the court erred in permitting the plaintiff

upon the close of his case to amend his complaint to conform to the evidence. The complaint,

as amended, shows that in May, 1909, the plaintiff employed the defendant, an attorney at

law, to bring actions and collect wages from Sparks Mining Company and Desert King

Mining Company on contingent fees of 50 per cent on the recoveries, plaintiff to pay all

disbursements under written contract, which contract is made a part of the complaint; that in

May, 1910, the defendant obtained judgments in plaintiff's favor in the federal court of this

district against said debtor companies, aggregating in amounts the sum of $5,395; executions

issued on these judgments, and on July 2, 1910, the plaintiff acquired full title to all the

properties by a Marshal's deed. The complaint shows that, prior to the acquirement of title,

upon the advise of the defendant, it was deemed for the best interests of the parties to

organize a corporation to take over the properties of the debtor companies in contemplation

of their becoming purchasers thereof at said execution sales. On June 29, 1910, the Wedekind

Mines Company was organized under the laws of this state, with a capital stock of 1,000,000

shares, of the par value of $1 each. On July 2, 1910, all the properties so purchased �� 9��


were conveyed to the corporation in consideration of the issuance to Martin and Dixon of its

entire capital stock. On July 2, 1910, by a verbal agreement and understanding between the

parties, 149,000 shares of the capital stock of the corporation were placed to the credit of its

treasury, and the remaining 851,000 shares were distributed as follows: 566,666 2/3 shares

were issued to one H. M. Englander under a written agreement between Englander and the

parties, and 283,333 1/3 shares were issued to Martin and Dixon jointly. The said Englander

agreement is referred to in the complaint as an option, for which Englander paid the parties a

cash consideration of $2,000. One of the considerations for said option was that within 12

months from its date Englander should sell the holdings of the corporation for $250,000,

which sum, in the event of sale, was to be divided between the parties in proportion to their

stock holdings. The option further provided that, if the property of the corporation was not

unwatered or sold within 12 months from the date of the contract, Martin had the right to

repurchase the Englander stock upon payment of the costs and expenses incurred by

Englander in connection with the corporation. Upon information and belief the complaint

alleges that the Englander contract at the time of suit was in the possession of the defendant.

It further alleges that the option was not exercised by Englander, and that the property was

not sold, and that by reason of the failure of Englander to exercise the option and to comply

with its terms and conditions the stock issued to Englander reverted to the parties in

accordance with the terms and conditions of the option. It alleges that the defendant obtained

the Englander stock, concealed the fact from the plaintiff and placed the full number of shares

of said stock to his own credit, under his own name and to his own use, benefit, and

advantage, and against the use, benefit, and advantage of the plaintiff; that by reason of the

conversion of said stock and the withholding thereof from the plaintiff the defendant had

unlawfully and fraudulently assumed con�� 5��


trol of the affairs of the corporation against the interests of the plaintiff, elected himself

president and general-manager of the corporation, and conducted its business, and held

meetings of its directors without notice to the plaintiff. The complaint shows that in April,

1917, the defendant gave plaintiff a certificate for 283,333 1/3 shares of the capital stock of

the corporation, which shares of stock were less than one-third of the outstanding stock of the

corporation, and refused upon demand to give to plaintiff any part or portion of the Englander

stock. It alleges that plaintiff at the time of the conversion of said stock was and is now the

owner thereof and entitled to its rightful possession and use, and that the reasonable value of

said 142,166 2/3 shares was $40,000. The complaint charges that by reason of the defendant's

wrongful use of said stock the Wedekind Mines Company brought an action against the

plaintiff and ousted him from the possession and occupancy of the premises of the

corporation, to his damage in the sum of $7,000, and that by reason of the wrongful, illegal,

and fraudulent conversion and detention of said stock the plaintiff was damaged in the sum of

$20,000. The complaint asks judgment of the court for the return of the stock in controversy

or, in lieu thereof, its alleged value, and demands judgment for the damages alleged in the

complaint, and for general equitable relief.

The question for determination is, what is the nature of the action? The defendant contends

that in form the cause of action stated in the complaint is in trover, and, there being no proof

of damages, the court below exceeded its jurisdiction in compelling the defendant to return to

the plaintiff the shares of stock in controversy. It is true the complaint contains allegations

that may make it good as an action in trover, but, if we treat the case as in trover, then the

very foundation of the complaint, in so far as it asks for the return of the stock, is, destroyed.

If the action is to be treated as one in trover, all the allegations of the complaint setting forth

the contractual relation of the parties to each other and �� !��


their relation to the subject matter of the suit must be regarded as surplusage.

2. We are convinced that the proceeding was one in equity to compel the transfer of certain

shares of stock to the plaintiff; and, if said stock could not be transferred, then asking a decree

for compensation and damages for the wrongful use made by the defendant of the stock, and

for its conversion and detention. The fact that the plaintiff failed to establish damages did not

preclude the court from exercising its equitable power and jurisdiction to compel the return of

the stock to plaintiff, if the facts warranted. The court's verdict was that the plaintiff was the

owner, and rightfully entitled to the possession and use of the stock in controversy, but was

not entitled to damages. Since the proof shows the defendant to be in position to make return

of the stock, whatever the action may be called, the court did not exceed its jurisdiction in

rendering the decree it did.

We shall now advert to the court's finding. The arguments advanced in opposition to them

are that they are based largely upon evidence foreign to the cause of action stated in the

complaint, and upon evidence that changed completely the nature of the cause of action, and

that the evidence does not support the findings. We deem it unnecessary to review the

evidence. It is sufficient to say that, if it were such as to be admissible under the averments of

the complaint, it supports the findings.

3. The argument is advanced that the court below erred in admitting in evidence the

pleadings, files, and exhibits in a former action referred to herein as the “Englander case,”

wherein the Wedekind Mines Company, H.M. Englander, and C.S. Denson were plaintiffs,

and J.B. Dixon and Joseph Martin were defendants. It is contended that the purpose and the

legal effect of this documentary evidence was to change, and did change, the nature of the

cause of action.

This contention can be attributed only to the view urged by counsel that the complaint in

form is solely in trover, which view we have declined to accept. The record discloses that the

admission of the documents �� -0�� B�� "��B�� B��


complained of came about in this way: The complainant had alleged that the Englander

contract at the time of suit was in the defendant's possession; that the defendant obtained the

Englander stock covered by the Englander option contract, and concealed the fact from the

plaintiff. It developed on the trial that the Englander stock was made the subject matter of the

“Englander case”; that in that case Dixon acted as attorney for himself and his codefendant

Martin, and filed on behalf of Martin his answer and counterclaim, in which he set up the

Englander contract, and alleged its breach, and demanded the return to Dixon and Martin of

all the Englander stock upon Martin's offer to do equity in accordance with its terms and

conditions. In the Englander case Dixon, in addition to his separate answer, filed therein his

own affidavit, in which he deposed that all the averments contained in Martin's answer and

counterclaim were true of his own knowledge. It developed on the trial of this case that, while

the Englander case was at issue, Dixon entered into negotiations with Englander's attorney for

the purchase of the Englander stock, and in January, 1914, purchased said stock by paying

therefor $4,400 of his own money, and that upon its purchase Englander and his coplaintiff

filed a retraxit, and Martin and Dixon, filed a release to Englander and his coplaintiff, and the

Englander case was dismissed. The record discloses that the documents were admitted in

evidence, for the reason that, when Dixon obtained the Englander stock, the relation of

attorney and client subsisted between Dixon and Martin, and that the documents contained

admissions against Dixon's interests in this action. While the complaint does not aver that

Dixon obtained the Englander stock in violation of the relationship of attorney and client, it

does sufficiently appear that the contractual relation between the parties and their relation to

the Englander stock was impressed with a trust, and we are of opinion that the documents,

instead of changing the nature of the action, furnished a further and higher ground for the

court to compel Dixon to return to ��B��


Martin his part or portion of the Englander stock. The documents were properly admitted in

evidence.

4, 5. It is argued on the part of defendant that in any view of the evidence the plaintiff

should have been required to reimburse the defendant for one-half the cost of the Englander

stock. An attorney cannot allow his personal interests to be antagonistic to those of his client.

Counsel for the defendant stresses the fact that Martin testified that Dixon told him he held

the Englander stock and intended to do as he pleased with it. We do not see that this

statement affected in the least Martin's right to the stock. The statement of Dixon evinced his

intention to hold Martin's interest within his grasp and make use of his power to his own

advantage and to Martin's detriment. If the purchase of the Englander stock was not under the

circumstances intended as fraud, it had that effect on Martin. Dixon paid $4,400 for the

Englander stock, not for Martin, but to acquire absolute title for himself, and to hold it

adversely to Martin. Convicted of these acts by the court's verdict, he is in no position to say

the court erred in not compelling Martin to reimburse him for money which he used in an

effort to overreach and defraud his client. Courts of conscience will do no such thing. Henyan

v. Trevino (Tex. Civ. App.), 137 S.W. 458.

6-9. It is contended, however, that the relation of attorney and client had ceased, and that

the court found that Dixon's contract of employment as attorney was completed, and therefore

the court erred in basing its findings largely upon the ethical phases of the case made by the

proof and not shown by the complaint. The authorities are uniform in holding that, whether

during the time an attorney is acting as such or after such relations have ceased, and whether

with his client's money or with his own money he purchases or acquires an interest in the

property, in any way the subject of litigation, a court of equity will decree that he holds such

interest as trustee for the client. Stanwood v. Wishard (C.C.), 128 F. 502; Thornton on

Attorneys at Law, sec. 169. It is true the complainant did not ask ��B��

��


that the Englander stock be impressed with a trust in his favor, but the rule which requires the

utmost fairness and good faith in dealings between attorney and client must be applied as

long as the influence arising from the relationship exists, although this may extend beyond

the continuance of the relationship itself. 6 Corpus Juris, p. 689. The burden of severing his

fiduciary relationship from the Englander transaction in which he had a personal interest was

cast upon Dixon. Youngquist v. Hunter, 227 Ill. App. 152. The evidence in this case shows

that Dixon purchased the stock for his own advantage and to the disadvantage of Martin,

which entitled Martin to the return of the stock, without proof of actual fraud. Thornton on

Attorneys at Law, sec. 156. Dixon having failed, in the judgment of the trial court, to sustain

the burden cast upon him to show that the transaction was fair and honest, and that Martin

was fully apprised of his rights, and the effect and consequences of his acts, we conclude

upon the whole case that the trial court discharged its full duty in requiring Dixon to transfer

to the plaintiff the shares of stock in controversy, and we shall best discharge our duty by

affirming its judgment.

It is so ordered.

____________

��49 Nev. 172, 172 (1926) Water Co. v. Belmont Dev. Co.��

WATER CO. v. BELMONT DEV. CO.

No. 2714

January 5, 1926. 241 P. 1079.

On Motion to Strike

1. Exceptions, Bill of—Settlement of Proposed Amendment to Bill of Exceptions NotAuthorized after Time Has Expired, Nor Can It Be Allowed as Amendment to Transcript, where It

Corrects No Error in Transcript.

A proposed amendment to bill of exceptions, containing principally proceedings on motion for new

trial, cannot be settled and allowed as a bill of exceptions under Stats. 1923, c. 97, secs. 1, 5, after time

for such settlement has expired, nor can it be allowed as an amendment to the transcript of testimony filed

in lieu of bill of exceptions, where matter contained therein would not correct any error in transcript.

2. Appeal and Error—Proceedings Regarding Motions for New Trial Have No Place in

Transcript. Proceedings regarding motions is for new trial held long after trial, and after transcript had been made

and certified by reporter, are not part of transcript, and hence cannot be held to have been erroneously

omitted therefrom; court reporters, under Stats. 1920—1921, c. 57, being under no duty to transcribe

instructions given and refused and proceedings on motions for new trial in a civil action.

3. Exceptions, Bill of—Order Granting Leave to Amend Bill of Exceptions Held Not to

Extend Time for Filing Amendment or Addition to Bill. Order of court granting leave to amend bill of exceptions does not operate as an extension of time in

which to serve and file an amendment or addition to the bill of exceptions, where order was made after

time for filing bill of exceptions had expired, under Stats. 1923, c. 97, sec. 1.

4. Exceptions, Bill of—No extension of Time Necessary for Correction of Error in

Transcript. Under Stats. 1923, c. 97, sec. 1, no extension of time is necessary for correction of an error in

transcript, which may be ordered at any time by trial court on motion duly noticed, while matter is under

its control.

5. Appeal and Error—Certification of Amendment to Bill of Exceptions, Not Filed in Time,

and Containing Matter Not Properly Part of Transcript, Will Not Be Ordered. Under Stats. 1923, c. 97, secs. 1, 5, supreme court is not authorized to order trial court to certify

proposed amendment to bill of exceptions which was filed after time for filing bill of exceptions had

expired, and which contained proceedings on motion for new trial not properly part of transcript.

6. Appeal and Error—Amendment to Bill of Exceptions Not Considered Part of Record

without Certification. Proposed amendment to bill of exceptions cannot be considered as part of record on appeal without a

certificate by trial court, required by Stats. 1923, c. 97, sec. 5.


7. Appeal and Error—Amendment to Bill of Exceptions Containing Proceedings on Motion for New Trial

Cannot Be Considered as Correction of Record on Appeal.

Where record on appeal is complete, proposed amendment to bill of exceptions containing

proceedings on motion for new trial cannot be considered as a correction of record on appeal, since

supreme court is not empowered under Stats. 1923, c. 97, sec. 5, to add or detract from record; purpose

of sec. 5 being mandatory.

8. Exceptions, Bill of—Admission of Service on Amendment to Bill of Exceptions Held Not to Operate as a

Waiver of Delay in Filing It.

Where proposed amendment to bill of exceptions constituting in reality an addition to bill was served

after time for filing bill of exceptions had expired, so that trial court was without jurisdiction to allow it,

admission of service thereon without reserving objections did not operate as a waiver of delay in serving

and filing it.

9. Appeal and Error—Act Completely Revising Previous Enactment Held to Repeal It.

Stats. 1915, c. 142, secs. 11, 12, prescribing contents of record on appeal, constituting a complete

revision of civil practice act, sec. 414, in some respects conflicting therewith, in effect repeals sec. 414,

though such section is not one of the sections expressly repealed by Stats. 1915, sec. 15.

10. Appeal and Error—Order Denying Motion for New Trial Not Stricken, though Contained

in Improper Amendment to Bill of Exceptions. Though proposed amendment to bill of exceptions cannot be considered on appeal, a copy of an order

denying motion for new trial contained therein should not be stricken, since such order is properly a part

of record on appeal by virtue of Stats. 1915, c. 142, sec. 11.

See 4 C.J. sec. 1698, p. 95, n. 71; sec. 1880, p. 269, n. 13; sec. 1882, p. 271, n. 32; sec. 1892, p. 282, n. 16; sec.

2130, p. 426, n. 89; sec. 2239, p. 492, n. 68; sec. 2241, p. 494, n. 79; 36 Cyc. p. 1079, n. 46.


Action by the Water Company of Tonopah against the Tonopah Belmont Development

Company. Judgment for plaintiff, and defendant appeals. On respondent's motion to strike a

purported amendment to appellant's bill of exceptions. Motion denied in part, and granted

in part.

Forman & Forman, for Movant:

Rev. Laws 5366 was repealed in toto by Stats. 1915, ��


c. 142, which was amended by Stats. 1923, c. 97. By latter act legislature intended to

simplify practice and make bill of exceptions only method, as held by unbroken line of

decisions to effect that when appeal is from order overruling motion for new trial and there is

no bill of exceptions or statement on appeal there is nothing to review. Some kind of

settlement of disputed questions must be presented, and opposing party must have chance to

amend. Ward v. Silver Peak, 39 Nev. 90; State v. Eberhart Co., 6 Nev. 186.

Practice act of 1911, as amended by Stats. 1915 and 1923, did away with statements on

appeal. Ward v. Silver Peak, supra. This left only two methods, and 5356 was not alternative

method from order overruling motion for new trial. This court held in Mexican etc. Co. v.

Schultz, 45 Nev. 260, that prior to supplementary act of 1915 and subsequent to act of 1911 it

is held adversely to contention that no statement or bill was required for lower court to decide

motion for new trial, and if appellant had furnished certified copies of papers used, appeal

from order must be considered on merits.

Even if court holds 5356 is not repealed, motion should be granted as papers sought to be

stricken have no place in record because only motion for new trial and memorandum of errors

were presented to court.

Act of 1915 repealed all provisions of law in conflict therewith.

Brown & Rowson, for Appellants (Respondents herein):

Practice act of 1911 covered whole field of civil practice except proceedings in probate,

etc. Act of 1915 amended act of 1911 in certain limited particulars—only nine of the

thirty-nine sections relating to appeals were repealed. If it intended to repeal Rev. Laws 5356

it would have said so. Sole object of section 11 of act of 1915 was to repeal section 396 of act

of 1911, which calls for bill of exceptions and order, while former calls for statement, or bill

of exceptions, order, affidavit, pleadings used, all other papers on motion, written ��


opinion on motion and notice of appeal, and provides if they are not furnished appeal must be

dismissed. There must be positive repugnancy to effect repeal by implication. 52 R.C.L. 921.

Rev. Laws, 5356, is not repealed by Stats. 1923, c. 97, but is in full force. Raine v. Ennor,

39 Nev. 72. It provides alternative method with latter statute.

Judge's certificate to his own order giving leave to amend is mere surplusage. Clerk

certifies documents. Statute does not say amendment must be certified.

Right to object is waived by admitting service. Delay may be waived. Jurisdiction does not

depend on prompt service of bill of exceptions. Mellan v. Messenger, 48 Nev. 235.

OPINION


This is a motion on the part of respondent to strike what purports to be an amendment to

the bill of exceptions. The document attacked was filed together with a transcript of

testimony and proceedings and the judgment roll on August 4, 1925, and contains the

following papers: Charge to jury; refused instructions; notice of intention to move for new

trial; affidavit in support of motion for a new trial; memorandum of errors in motion for a

new trial; ruling on motion for a new trial; order denying motion for a new trial and refusing

to grant new trial; motion to amend transcript proceedings; certificate of clerk; stipulation of

counsel; certificate of clerk as to no objection; admission by counsel of service. The motion is

made upon the following grounds: (1) That the amendment to bill of exceptions is not

certified in any manner as required by law; (2) that is was not served or filed within the time

within which a bill of exceptions may by law be served and filed; (3) that it is not an

amendment of the original bill of exceptions filed in said cause, and the certificate to original

bill of exceptions does not purport to cover the matter contained in said amendment; (4) that

the filing of said amendment did not correct any error in ��


the original bill of exceptions, but relates only to matters not included therein and matters

subsequent to the certification of the said original bill of exceptions.

In opposition to the motion to strike, counsel for appellant filed his affidavit, showing,

among other matters, that a motion for a new trial was made and the motion denied May 8,

1925; that on May 25, 1925, appellant served and filed in the trial court the bill of exceptions

comprising a transcript of the testimony and proceedings given and had at the trial of the case,

duly certified by the court reporter; that on June 15, 1925, appellant served and filed in the

trial court a motion and notice of motion to amend said bill of exceptions in certain

particulars therein specified; that on July 1, 1925, the trial court made and filed an order

granting leave to amend; that on July 2, 1925, the appellant served and filed in the trial court

the proposed amendment to the bill of exceptions duly certified by the clerk of the court, and

on July 7, 1925, appellant served and filed in the trial court its notice of appeal and

undertaking on appeal, and for stay of proceedings. The affidavit further shows that on July 9,

1925, counsel for appellant presented to the trial judge a certificate to be attached to said

amendment to bill of exceptions in the form prescribed by the statute for certifying to bills of

exceptions, and requested the said judge to sign said certificate, which the judge refused to

sign; that thereafter, on July 20, 1925, counsel for appellant requested said judge to sign a

certificate, which was in the following form, to wit:

“Judge's Certificate to Amendments to Bill of Exceptions.

“I, Frank T. Dunn, judge of the district court of the Fifth judicial district of the State of

Nevada, in and for the county of Nye, do hereby certify that the above and foregoing

amendments to the bill of exceptions or transcript of proceedings herein, consisting of the

various documents mentioned in the index preceding page 1 hereof, be and the same are

hereby settled and � �� #��!�� &,�� %�&,��


allowed as amendments to said bill of exceptions or transcripts of proceedings, and I further

certify that said amendments are correct, and, conjunctively with said transcript of

proceedings filed herein on the 25th day of May, 1925, contain the substance of the

proceedings relating to the point or points involved, and fully and accurately state the

proceedings under consideration. Done this 20th day of July, 1925, nunc pro tunc as of July 9,

1925.”

—and that the said judge declined to sign the same, stating that he had no power to extend

time for that purpose; that thereafter, on diverse dates to and including July 29, 1925, counsel

for appellant requested said judge to sign said certificate and also a certificate to the record on

appeal, which the trial judge declined to do.

The transcript of the testimony and proceedings certified by the court reporter, the

judgment roll certified by the clerk, and the proposed amendment to the bill of exceptions,

also certified by the clerk, are marked, respectively, volumes 1, 2, and 3.

Counsel for appellant contends that it was the duty of the judge of the lower court to

certify as requested, and that this court is authorized to compel him to do so, or may consider

volume 2 a proper amendment without such certification. These contentions are based on

sections 1 and 5 of an act regulating proceedings on motions for new trials and on appeals in

civil actions, found on pages 163 and 164 of the Statutes of 1923, and which read:

“Section 1. At anytime after the filing of the complaint and not later than twenty (20) days

after the final judgment, or if a motion be made for a new trial, then within twenty (20) days

after the decision upon such motion, any party to an action or special proceeding may serve

and file a bill of exceptions to such judgment or any ruling, decision, order, or action of the

court, which bill of exceptions shall be settled and allowed by the judge or court, or by

stipulation of the parties, by attaching thereto or inserting therein a ��


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, and when such bill of exceptions has been so settled and allowed it shall become a

part of the record in such action or special proceeding. A transcript of the proceedings

certified by the court reporter to be 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.”

“Sec. 5. If at any time before final judgment of the supreme court it shall be made to

appear to the court that the record on appeal does not accurately or fully state the proceedings

under consideration before the court, the court may take such steps and issue such orders,

including orders to the lower court or the clerk thereof, for the certification to the supreme

court of additional records or proceedings as shall be necessary or proper to correct or

complete the record on appeal.”

1, 2. As to the contention that it was the duty of the trial judge to certify to volume 2, the

appellant is clearly in error. The trial judge had no power to settle and allow it as a bill of

exceptions, for the time for such settlement had expired. He could not settle and allow it as an

amendment to the transcript of the testimony and proceedings filed in lieu of the bill of

exceptions, and which under the statute constitutes the bill of exceptions in this case, for the

reason that the matter contained in it would not correct any error in the transcript. The

correction by appropriate amendment of error in a transcript which has become the bill of

exceptions is the sole office of the proviso. Under its terms such an amendment may be made

at any time. The proceedings in regard to the motion for a new trial had properly no place in

the transcript, and cannot therefore be held to have been erroneously omitted.


These proceedings were had long after the trial and after the transcript had been made and

certified by the reporter. By the terms of section 1 of an act providing for the appointment of

court reporters in district courts, found in the statutes of 1920—1921, at page 96, the duties of

such a reporter are defined:

“* * * Such reporter, or any of one of them, where there are two or more, must, at the

request of either party, or of the court in a civil action or proceeding, and on the order of the

court, the district attorney or the attorney for the defendant in a criminal action or proceeding,

take down in shorthand all the testimony, the objections made, the rulings of the court, the

exceptions taken, all arraignments, pleas and sentences of defendants in criminal cases, and

all statements and remarks made by the district attorney or judge, and all oral instructions

given by the judge; and if directed by the court, or requested by either party, must, within

such reasonable time after the trial of such case as may be designated by law, or, in the

absence of any law relating thereto, by the court, write out the same, or such specific portions

thereof as may be requested, in plain and legible longhand, or by typewriter or other printing

machine, and certify to the same as being correctly reported, and transcribed, and, when

directed by the law or court, file the same with the clerk of the court.”

It is thus seen that it is no part of the duty of the court reporter to take down in shorthand

or otherwise report and transcribe and certify the instructions given and refused and the

proceedings on motions for a new trial in a civil action.

3, 4. Appellant contends that the order of the court grating leave to amend, made on July 1,

1925, operated as an extension of time in which to serve and file an amendment to the bill of

exceptions. As previously pointed out, no extension of time is necessary for the correction of

an error in a transcript. It may be ordered at anytime by the trial court on motion duly noticed

while the matter is under its control. If it be meant that � ��&��


volume 2 should be considered as a bill of exceptions separate from the transcript of the

testimony and proceedings, and that the order for the amendment operated as an extension of

time in which to serve and file such additional bill of exceptions, then we say that the order

could not possibly have such effect, for the reason alone that it was made after the time had

expired for serving and filing such bill of exceptions. Under the provisions of the statute

heretofore quoted, this must be done not later than 20 days after final judgment, or within 20

days after a motion for a new trial has been decided. The motion for a new trial was denied in

this case on May 8, 1925, and the order for leave to amend was not made until June 15, 1925,

which was 38 days after the new trial had been denied.

5-7. For the reasons already given, the court is not authorized to order the lower court to

sign a certificate, nor can it consider volume 2 as a part of the record on appeal without such

certificate under the provisions of section 5 of the statute, as claimed by appellant. The

argument in this respect is that, as this section empowers this court, when the record on

appeal does not accurately or fully state the proceedings under consideration, to order the

lower court or clerk to certify to this court such additional records or proceedings as shall be

necessary or proper to correct or complete the record on appeal, and that, as volume 2 is

already certified by the clerk, this court may dispense with an order for that purpose, and

should consider volume 2 as a correction or completion of the record on appeal. Without

deciding whether in a proper case this could be done, it is sufficient to say that volume 2 can

in no sense be considered as a correction of the record on appeal. The record on appeal in this

case, as made in the lower court, is complete. It fully and accurately states the proceedings

under consideration before this court. This court is not empowered under section 5, or any

other section of the act, to add to or detract from it. The obvious purpose of section 5 is

amendatory, and ��


to that end should be liberally construed. It does not, however, contemplate the making of a

new record or the bringing up of matters not properly a part of the record on appeal in the first

instance.

8. Appellant contends that respondent, by admitting service of the proposed amendment

without reserving any right to object, and without making any objections to it as shown by the

clerk's certificate to volume 2, waived any delay to the serving or filing of it. Considered as

an amendment to the original bill of exceptions, there was no delay to waive. But it was not

an amendment, and the failure to object to it certainly could not under any stretch of liberality

make it an amendment. Considered as an additional bill of exceptions, the time for filing and

serving it, as we have previously stated, had expired, and the lower court was therefore

without jurisdiction to settle and allow it. For that reason alone the acknowledgement of

service without reserving objections could not operate as a waiver of the delay in serving and

filing it.

9. It is contended, that, if volume 2 is not properly an amendment to the bill of exceptions,

it nevertheless constitutes a part of the record on appeal by virtue of section 414 of the civil

practice act. This section reads:

“On an appeal from a final judgment, the appellant shall furnish the court with a transcript

of the notice of appeal, and the statement, if there be one, certified by the respective attorneys

of the parties to the appeal, or by the clerk of the court. On an appeal from an order, the

appellant shall furnish the court with a copy of the notice of appeal, the order appealed from,

and a copy of the papers used on the hearing in the court below, and a statement if there be

one, such copies to be certified in like manner to be correct. If any written opinion be placed

on file in rendering judgment or making the order in the court below, a copy shall be

furnished, certified in like manner. If the appellant fails to furnish the requisite papers, the

appeal may be dismissed.” Rev. Laws, sec. 5356.


We are satisfied that section 414 is repealed by sections 11 and 12 of the act of 1915.

Section 11 provides as follows:

“Sec. 11. The original bills of exceptions herein provided for, together with a notice of

appeal and the undertaking on appeal, shall be annexed to a copy of the judgment roll,

certified by the clerk or by the parties, if the appeal be from the judgment; if the appeal be

from an order, such original bill shall be annexed to such order, and the same shall be and

become the record on appeal when filed in the supreme court. A party may appeal from the

judgment roll alone, in which case only such errors can be considered as appear upon the face

of the judgment roll.” Stats. 1915, p. 166.

By section 15 of this act certain specific sections of the practice act of 1911 and all

provisions of law in conflict with the act of 1915 are repealed.

Section 414 is not one of the sections expressly repealed, but it will be seen in comparison

with section 15 that the latter section is not only a complete revision of the former section,

but is in conflict with it in some respects. For instance, by section 414, on appeal from a final

judgment, a transcript of the notice of appeal is required, whereas by section 11 the original

notice of appeal and the undertaking on appeal is required. A record on appeal from a final

judgment, furnished in compliance with section 414, would be insufficient when measured

with the requirements of section 11. Again, section 11, after declaring what shall be annexed

to a copy of the judgment roll or the order appealed from, states that the same shall become

the record on appeal when filed in the supreme court. This language excludes all papers

which, by the provisions of section 414, when properly certified, together with the order

appealed from, became a part of the record on appeal from an order. Force is given to this

conclusion by the language of section 12 of the act of 1915, which reads:

“The provisions of the last preceding section shall not apply to appeals taken from an order

made upon affidavits, but certified copy of such affidavits and counter �� 1


affidavits, if any, shall be annexed to the order in place of the bill of exceptions mentioned in

the last section.”

In other words, when the papers used in the hearing consists of affidavits, they need not be

incorporated in a bill of exceptions, as they otherwise would. The sections we have referred

to in the act of 1915 constitute a revision of the subject matter of section 414, and are

manifestly intended as a substitute for it. Under such circumstances a repeal is effected. Gill

v. Goldfield Con. Min. Co., 43 Nev. 1, 176 P. 784, 184 P. 309, and cases cited.

10. But it does not follow from what we have said that the whole of volume 2 should be

stricken. Among the papers contained in it, certified by the clerk to be true and correct copies,

is a copy of the order denying the motion for a new trial. This we think, should not be

stricken. The order is properly a part of the record on appeal by virtue of section 11 of the act

of 1915.

The motion as to this order is denied, and granted as to all other papers contained in

volume 2.

It is so ordered.

____________

��49 Nev. 184, 184 (1926) State v. Acosta��

STATE v. ACOSTA

No. 2706

January 12, 1926. 242 P. 316.

1. Homicide—Evidence Held to Authorize Finding that Defendant Knew that Deceased Wasan Officer.

In prosecution for murder of a police officer when arresting defendant, evidence held to authorize

finding that defendant knew that deceased was an officer.

2. Homicide—Charge, Stating Elements Necessary to Convict Defendant of “Murder in First

Degree,” Held Not Misleading. Charge that to convict defendant of “murder in first degree” killing of deceased must have been

willful, deliberate, and premeditated, and that such design to kill was formed at or before time of killing,

held not misleading, since jury must have understood that design to kill must have been formed as result

of deliberation and premeditation.

3. Homicide—On Resistance of Arrest, Instruction, Based on Statute, Held Not Erroneous,

Irrespective of Constitutionality. In prosecution for murder of police officer when arresting defendant, instruction, based on Stats.

1923, c. 165, sec. 1, making it unlawful for any person to loiter in any public place, while under influence

of liquor, held not erroneous, irrespective of whether such statute is unconstitutional, since an officer has

right to presume that a statute is valid, and it being duty of one arrested to submit and raise

constitutionality of statute pursuant to which he is arrested in a tribunal organized to determine such

question, and not to constitute himself a court to settle question.

4. Homicide—Court Not Required to Instruct that Defendant Knew, or Had Sufficient

Reason to Believe, that Deceased Was an Officer. In prosecution for murder of police officer when arresting defendant while in act of committing an

offense, court held not required to instruct that defendant knew, or had sufficient reason to believe, that

deceased was an officer, in view of Rev. Laws, secs. 6953, 6954, 6958, since arresting officer did not

have to make his authority known.

5. Homicide—Instruction Not Erroneous as Taking from Jury Question whether Defendant,

in Killing Deceased, Acted in Necessary Self-Defense. Instruction on duty of person to submit to arrest, and that if defendant, while legally under arrest, and

in an attempt to resist arrest or confinement in jail, shot and killed deceased officer, he would be guilty of

murder, held not erroneous as taking question from jury whether defendant in killing deceased acted in

necessary self-defense.

6. Criminal Law—Duty of Defendant to Request Desired Instruction. It was the duty of defendant, if he desired an instruction whether, in killing a police officer, he acted

in necessary self-defense, to request it.


7. Homicide—Failure to Instruct whether Defendant, in Killing Deceased, Acted in

Self-Defense, Held Not Prejudicial Under Evidence. In prosecution for murder of police officer, failure to instruct whether defendant, in killing deceased,

acted in necessary self-defense, held not prejudicial under evidence.

8. Homicide—Whether Defendant Animated by Malice in Killing Police Officer Held forJury.

In prosecution for murder of police officer while making arrest, whether defendant was animated by

malice held for jury.

See (1, 2, 3, 4, 5, 6, 8) 29 C.J. sec. 72, p. 1098, n. 74; sec. 79, p. 1104, n. 39; 30 C.J. sec. 257, p.

77, n. 42; p. 78, n. 57; sec. 556, p. 308, n. 19; sec. 559, p. 312, n. 42; sec. 574, p. 326, n. 88; sec.

601, p. 348, n. 2; sec. 617, p. 366, n. 5; sec. 618, p. 368, n. 19; sec. 628, p. 383, n. 3; sec. 646, p.

402, n. 78; sec. 718, p. 451, n. 21; (7) 16 C.J. sec. 2499, p. 1058, n. 29; 17 C.J. sec. 3593, p. 255,

n. 53.

Appeal from Fourth Judicial District Court, ELko County; J.M. McNamara, Judge.

Gaudalupe Acosta was convicted of murder in the first degree, and he appeals. Affirmed.

Rehearing denied.

E. P. Carville, for Appellant:

As malice was not shown, appellant should not be convicted of greater crime than

manslaughter. Peace officer, even when arresting person who commits crime in his presence,

should state official character and authority on demand after person has submitted. Where

person sought to be arrested acts in good faith in demanding authority and resists arrest upon

refusal of arresting person to give it, honestly believing other is making unauthorized assault,

and arresting person makes demonstration with deadly weapon, killing is justifiable. Malice

and passion may coexist, but express malice and irresistible passion cannot. State v. Salgado,

150 P. 764; 3 Cyc. 889.

It is impossible for premeditation to be formed at instant act was committed; premeditation

implied design formed prior to act, though interval be brief. State v. Salgado, supra.

Instruction that it is unlawful to loiter in any public place while under influence of liquor

(Stats. 1923, 281) in unconstitutional for uncertainty as to degree of ��!�� !��


intoxication, and prejudicial as leading jury to believe appellant was drunk to extent of being

nuisance.

Instruction that where person has right to arrest, other has no right to resist as two rights

cannot coexist is incomplete. It took from jury right to consider questions as to whether

appellant knew officer's character or authority, whether there was premeditation and

deliberation, and hence what was degree of offense, if any, and as to whether circumstances

of killing showed justifiable self-defense.

M. A. Diskin, Attorney-General, and W.T. Mathews, District Attorney, for the State:

Defendant knew deceased's official character. It was unnecessary for officer to state it.

Rev. Laws, 6958; Clark Crim. Pro. (2d ed.) 58.

Malice was circumstantially proved. It is implied where circumstances show abandoned

and malignant heart. Brill Crim. Law, sec. 631; State v. Salgado, 38 Nev. 64, 413.

Conviction of first degree murder does not depend alone on showing of malice. It is

inadequate to justify killing or reduce it to manslaughter that officer does not show authority

or arrest is apparently illegal. People v. Stirgios, 136 P. 955; People v. Gillman, 190 P. 205.

Trend of decisions from early English times to present is that killing peace officer while

exercising powers incident to his office under circumstances indicating felonious killing is

murder, irrespective of whether malice is shown. If in resisting, more force than is necessary

is used, or if deadly weapon is unnecessarily used in first instance, prisoner is aggressor and

killing is murder. State v. Taylor, 67 A.S.R. 648; 13 R.C.L. 869.

Length of time for deliberation is not essential element in murder in first degree. State v.

Millian, 3 Nev. 409; Ah Mook, 12 Nev. 369.

Omission of essential element in one instruction is not fatal if given in another. 6 Nev. 265;

12 R.C.L. 817.

Public drunkenness is nuisance at common law and ��


by statute. 2 Brill Crim. Law, sec. 1743. Officer had right to enforce statute, even though

unconstitutional. Neither officer nor defendant can decide that question. Keady v. People, 74

P. 892.

Resistance to rightful arrest is crime. Killing officer then is homicide. Self-defense does

not arise therein. 13 R.C.L. 866.

OPINION


The defendant was convicted of murder in the first degree and appeals from a judgment

inflicting the death penalty.

The first point urged is that the defendant could not, under the evidence, be legally

convicted of a crime greater than manslaughter, even though the jury might have concluded

that he did not act in self-defense. This contention is based upon the rule stated in 13 R.C.L.

p. 872, reading:

“Within the rule that one who kills an officer, while the latter is lawfully attempting to

effect his arrest, is guilty of murder, it is true, generally speaking, that to constitute the acts of

the officer lawful he must disclose his official character and the authority under which he

assumes to make the arrest. * * * Where a person sought to be arrested acts in good faith in

demanding the authority of the person attempting the arrest, and in resisting the arrest upon

refusal to state it, honestly believing the other person is making a totally unauthorized assault

upon him, and the other makes the first demonstration with a deadly weapon, thus putting

him in danger of life and limb, the killing of him may be justifiable.”

On the evening of March 2, 1925, about 9 o'clock, the defendant, who had been employed

on the Western Pacific Railroad, arrived in Elko and went to the West Hotel, where he

engaged a room, and thereafter went to a cafe to get something to eat. After leaving the cafe,

he was seen loitering on the sidewalk by the officers Capriola and Lewis, in a drunken

condition, and ��


indulging in profanity, which is an offense under our statute. Officer Capriola spoke to and

told defendant to go to bed. The officers continued up the street and were overtaken by the

defendant, who walked between them for a short distance, still under the influence of liquor

and indulging in profanity. Officer Capriola again ordered the defendant to go to his room

and go to bed. The defendant then replied, “To hell with you fellows.” Officer Lewis

thereupon spoke for the first time, saying, “Well, if you don't want to go to bed, we will put

you to bed,” and took the defendant by the arm and started to the county jail with him. The

defendant was first warned about midway the block in which is the post office, on the main

street of Elko, and the arrest took place at the Henderson Bank corner, one of the most

prominent points in the city. Officer Lewis, in taking the defendant toward the jail, crossed

the street diagonally, reaching the opposite side at about the intersection of Fifth Street, and

then proceeded up the center of Fifth Street for a distance, angling toward the east side of the

street as he approached the next street, on which is the jail. It was near the intersection of the

next street at which officer Lewis was shot by the defendant; three bullets having penetrated

his body. The theory of the defense is that defendant did not know that Lewis was an officer,

and that he was under arrest, and that he thought Lewis was taking him to a dark place to rob

him, and that, when they reached the point where the shooting took place, Lewis assaulted

him, and that he shot in self-defense.

While officer Capriola did not testify that either of the officers told the defendant, in his

presence, that they were officers, or that he was under arrest, he testified that Lewis wore an

officer's star, which could be easily seen, of which there is ample evidence; that he had seen

the defendant in Elko numerous times; and that on at least one occasion the defendant was

present when he had ordered several Mexicans to mend their ways. There is also in evidence

a statement of the defendant, made the morning after the shooting, in which he said that

Lewis told him he was a policeman.


1. We would be amply justified in saying that, though the defendant denied on the stand

knowing that Lewis was an officer or making the statement in evidence, and testified that he

was assaulted without provocation, and, as he thought, with the view of robbery, the jury

having heard all of the evidence, and there being ample evidence to support the verdict, we

would simply let the matter rest upon such verdict without comment. Since, however, this is a

capital case, we may say we cannot see how the jury could have reached any other conclusion

than that the defendant knew that Lewis was an officer. He was arrested about 10 o'clock.

Prior to his arrest he was ordered twice to go to his room by one of the two officers. This

alone was enough to indicate to his mind that they were officers, or at least not set upon

robbery, for, if they had designed robbery, they would have given no such orders. Could he

reasonably have inferred that Lewis, who took him by the arm and marched him across the

street at 10 o'clock at night, at the main street of the town had conceived the idea of robbery

after leaving Capriola? If the defendant had such an idea, he could have appealed to the

witness McCulloch, who crossed Fifth Street within a few feet of the defendant and Lewis;

but, instead of doing so, according to McCulloch, the defendant was “talking rough.” If he

had thought he was in the hands of a highwayman, the most natural thing for the defendant to

have done would be to appeal to McCulloch. He did not do this. We are satisfied that the jury

reached the right conclusion in rejecting the contention of the defendant.

It is next contended that the court erred in giving instruction No. 19, which reads:

“The court instructs you that while the law requires that the killing, in order to constitute

murder in the first degree, shall be willful, premeditated, and deliberate, still it does not

require that the willful 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 design to kill, distinctly formed in the mind at any moment before or at the time the shot

was fired. And in this ��!�� !�� !�� 1


case, if the jury believe from the evidence, beyond a reasonable doubt, that the defendant shot

and killed deceased, as charged, and that at the time or before the shot was fired the defendant

had formed in his mind, a willful, 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 portion of the instruction particularly complained of is the emphasized words in the

following:

“It is sufficient that there was a determination and design to kill distinctly formed in the

mind at any moment before, or at the time the shot was fired,” with special stress upon the

words emphasized.

The objection urged to the language in question is that—

“It would be a physical impossibility for premeditation to be formed in the mind at the

instant the shot was fired, because premeditation necessarily means that a design must have

been formed at some time prior to the time the shot was fired, even though it be short.”

2. Our statute provides that the willful, deliberate, and premeditated killing of a human

being with malice aforethought shall be murder in the first degree. By the instruction the

court charged the jury that in order to convict the defendant of murder in the first degree, they

must find that the killing of the deceased was willful, deliberate, and premeditated, and that

such design to kill was formed at or before the killing. We do not think the instruction was

misleading or confusing. The jury must have understood from the entire instruction that the

design to kill must have been formed as the result of deliberation and premeditation. This is

all that the law contemplates. The language complained of was used in an instruction given in

the case of State v. Ah Mook, 12 Nev. 369, and is often given. It met with approval in 2

Brickwood Sackett on Instructions (3d ed.), p. 1884. The defendant was in no way prejudiced.


3. It is next contended that the court erred in giving instruction No. 23, which reads:

“You are instructed that, under the laws of this state, it is unlawful for any person to loiter

in any public place, or on any public sidewalk, street, road, or highway, while under the

influence of liquor.”

This instruction is based upon section 1, c. 165, p. 281, Stats. 1923. It is said that the

statute is unconstitutional. Our attention is not directed to any provision of the constitution of

which it is said the statute is violative, and we can see no theory upon which the contention

can be sustained. But, if the statute were unconstitutional, the defendant could not profit

thereby. An officer has a right to presume that a statute is valid and it is the duty of one when

being arrested or when under arrest to submit, and raise the constitutionality of the statute

pursuant to which he is arrested in a tribunal organized to determine such a question, and not

to constitute himself a court to settle the question. Keady v. People, 32 Colo. 57, 74 P. 892,

66 L.R.A. 353.

It is next contended that the court erred in giving the following instruction:

“Every person is bound to submit to the ordinary course of justice, and, while an officer in

making a lawful arrest, should use no unnecessary violence, it is his duty to make the arrest,

and the law clothes him with power to accomplish that result and imposes upon him the duty

to overcome all resistance; the means being coextensive with the duty, except to take life

itself where the arrest is for a misdemeanor.

“Every case where one person has a right to arrest or restrain another, the other can have

no right to resist, since the two rights cannot coexist; and, where a person having the right to

arrest another is killed by the latter, in the resistance of such arrest, the resistance is a crime,

and the killing is a homicide in the commission of an unlawful act. No right of self-defense

can arise out of such circumstances.

“If, therefore, you find from the evidence, beyond a reasonable doubt, that deceased was

an officer, and that �� !�� !��

�� 1


defendant while legally under arrest and while being taken by deceased to the county jail, in

an attempt to resist arrest or confinement in jail, shot and killed deceased, then you are

instructed that defendant would be guilty of murder.”

4. It is said that this instruction was prejudicial because it took from the jury the right to

determine whether the defendant acted in necessary self-defense, and also eliminated the

question whether the defendant knew or had sufficient reason to know that the deceased was

an officer. Section 6953, Rev. Laws, provides that a peace officer may make an arrest,

without a warrant, for a public offense committed in his presence. Section 6954 provides that

a private person may make an arrest for a public offense committed in his presence, and

section 6958 provides that the person making the arrest must inform the person to be arrested

of his intention to arrest him, of the cause of the arrest, and the authority to make it, except

where the person to be arrested is actually engaged in the commission of or an attempt to

commit an offense. In the instant case the defendant was arrested while in the act of

committing the offense; hence the arresting officer did not have to make his authority known.

In view of this situation, there was no occasion for an instruction that the jury find that the

defendant knew or had sufficient reason to believe that the deceased was an officer, though

there is ample evidence to justify the conclusion that he knew that Lewis was an officer and

that he was under arrest as we have pointed out.

5-7. As to the first contention, we do not think the instruction took from the jury the

question whether the defendant, in killing the deceased, acted in necessary self-defense. It is

true the court did not instruct on that point, but it was the duty of the defendant, if he desired

such an instruction, to request it. This was not done. In this connection we may say that, from

a reading of the entire testimony, we are clearly of the opinion that the defendant was in no

way prejudiced because of the failure to instruct on the point made.


8. It is next said that, to justify the verdict, it was necessary for the state to prove that

malice existed in the mind of the defendant at the time of the shooting, and that there is no

evidence in the record to sustain such a finding. In support of the contention that no malice

was shown, it is said that the defendant did not know the officers, and naturally could have

had no malice or feeling against them. It is also said that the fact that the defendant walked

along the street with the officers tends to show that he entertained no feeling or malice toward

the officers. We have no reason to believe that the defendant had any feeling whatever toward

the officers prior to his arrest, but that is no sign that he may not have been prompted by

malice at the moment of the killing. The undisputed testimony of the witness McCulloch is

that the defendant was “talking rough” to Lewis when they were crossing the street, and it is

more probable than otherwise that he became more enraged as he neared the jail. However,

our statute provides that malice shall be implied when no considerable provocation appears,

or when all the circumstances of the killing show an abandoned and malignant heart. The jury

was properly instructed, and it was their peculiar province to determine if the defendant was

animated by malice. We think there is ample evidence to sustain the verdict.

Finding no prejudicial error in the record, the judgment and order appealed from are

affirmed, and the district court is directed to make the proper order for the carrying into effect

by the warden of the state prison the judgment rendered.


March 15, 1926.

Per Curiam:

Rehearing denied.

____________

��49 Nev. 194, 194 (1926) State v. Oschoa��

STATE v. OSCHOA

No. 2717

January 12, 1926. 242 P. 582.

1. Criminal Law—When Alibi Is Complete, Stated. Alibi is not complete unless it reasonably appears therefrom that defendant could not have been at

place of crime.

2. Criminal Law—Peculiarities of Expression Held Not Sufficient to Warrant Disregard of

Testimony. Contradictory statements of illiterate Indian woman, which were seemingly characteristic and mere

peculiarities of expression, held not sufficient alone to warrant jury in disregarding testimony.

3. Homicide—Evidence Held Sufficient to Establish Killing by Accused. Evidence held sufficient to justify jury in conclusion that accused, charged with murder, killed

deceased.

4. Criminal Law—Shirt Held Material Evidence if Rents in it Correspond to Accused's Scar. Where defendant told witness that deceased cut his arm, and evidence pointed to struggle,

blood-stained shirt held material as tending to identify accused as guilty person if scar on accused's arm

corresponded to rent in shirt.

5. Criminal Law—Weight as Evidence of Shirt Found at Scene of Crime Question for Jury. Where shirt found at scene of killing was introduced in evidence and accused forced to put it on in

effort to establish connection between scar on his arm and rent in shirt, weight of such evidence was for

jury.

6. Criminal Law—Evidence of Shirt Found at Scene of Killing Held Harmless Error. Where defendant charged with murder was forced to put on shirt found at scene of killing in effort to

establish connection between scar on his arm and rent in shirt, admission of shirt in evidence was error,

but harmless if there was no correspondence.

7. Indictment and Information—One Charged with Murder May Be Found Guilty of

Involuntary Manslaughter. In view of criminal practice act, sec. 369, as amended by Stats. 1919, c. 232, sec. 65, providing

defendant may be found guilty of any offense included in that charged, one charged with murder may be

found guilty of involuntary manslaughter.

8. Homicide—Accused Cannot Complain of Conviction of Manslaughter on Evidence

Warranting Conviction for Murder. Where defendant charged with murder conceded that killing amounted at least to second degree

murder, and that circumstances would aggravate rather than mitigate offense, he could not be heard to

complain because jury found him guilty of involuntary manslaughter.

9. Homicide—Instruction as to All Grades of Homicide Held Proper where Murder Was

Charged. Where, in prosecution for murder, deceased was found dead, having been shot twice, and there was

evidence of hard struggle �� !��


with slayer, but no eyewitness, court properly instructed jury as to all grades of homicide.

10. Criminal Law—Compelling Accused to Don Shirt Found at Scene of Killing Held Proper. Compelling defendant, accused of murder, to remove shirt to exhibit scars and to don shirt found at

scene of crime and submit to inspection by jury, was not improper as tending to humiliate, degrade, or

prejudice him, and did not violate constitutional privilege against being witness against himself.

11. Witnesses—Question on Cross-Examination in Prosecution for Homicide Held Properly

Excluded. On cross-examination in prosecution for homicide, objection to the question, “Did any other person

ever come to your door before this time?” was properly sustained because unlimited as to time, and court

was empowered to keep such examination within proper limits.

12. Criminal Law—Instructing Jury to Draw Own Conclusion from Inspection of Shirt

Rendered Harmless any Error in Other Evidence. Any error in allowing sheriff to testify that shirt found at scene of homicide fitted defendant, and that

hole in sleeve corresponded to scars on defendant's arm, was rendered harmless when jurors saw shirt on

defendant and were instructed to draw their own conclusions.

See (1, 2, 4, 5, 6, 10, 12) 16 C.J. sec. 1100, p. 568, n. 15; sec. 1104, p. 569, n. 48 (new); sec. 1227, p. 620, n. 54,

55, 56; sec. 1588, p. 777, n. 86; sec. 2281, p. 924, n. 36; sec. 2290, p. 929, n. 86; sec. 2291, p. 931, n. 98;

17 C.J. sec. 3662, p. 317, n. 10; sec. 3664, p. 321, n. 47; sec. 3732, p. 362, n. 94; (3, 8, 9) 30 C.J. sec.

540, p. 296, n. 19; sec. 641, p. 397, n. 29, 30; sec. 722, p. 452, n. 38, 40; (7) 31 C.J. sec. 484, p. 855, n.

53; sec. 493, p. 857, n. 86, 858, n. 93; (11) 40 Cyc. p. 2517, n. 74.


Carlos Oschoa was convicted of involuntary manslaughter, and he appeals. Affirmed.

Rehearing denied.

Frame & Raffetto, for Appellant:

That shirt found in cabin was worn by appellant and discarded after killing was merely

theoretical assumption of prosecution. Evidence showed impossibility of telling how rents in

garment were caused. Rents and scars on appellant's arm did not correspond. There is no

proof that deceased used knife in affray.

Only evidence connecting appellant with crime it that of three witnesses—Indians and

Mexican—who saw him ��:� �� "�� !��


hours before and after crime; of Hillhouse, that garment fitted and that rents in shirt and scars

on appellant's arm corresponded; and that obtained by compelling appellant to put on shirt in

presence of jury for their inspection. Alibi was sustained by six witnesses and appellant.

Court erred in sustaining objection to cross-examination of Indian Peggy Parrott, as to her

certainty of identification of appellant; in admitting testimony of Hillhouse, which consisted

of conclusions, it is providence of jury alone to draw; and in violating constitutional

guarantee by compelling appellant to be witness against himself. Inspection of physical

features is proper for identification, not to fasten crime on accused. State v. Ah Chuey, 14

Nev. 79.

No evidence was offered in mitigation of crime. Manslaughter was not issue in case.

Instructions should be applicable to issues. Kirk v. Territory (Okl.), —- P. —-. Evidence

showed deliberate killing. Appellant could not be guilty of crime of which he was convicted.

M. A. Diskin, Attorney-General; L.D. Summerfield, District Attorney, for the State.

Jury, being exclusive judge of evidence, may disbelieve unsatisfactory testimony. No alibi

was established. 16 C.J. 93.

Though objection was sustained to question unlimited as to time asked of Peggy Parrott,

appellant received answer to similar one properly limited.

Witness may state known or observed facts, though answer involves element of inference.

22 C.J. 527. Jury made inspection also, and drew its own conclusions.

In homicide case where there is no eyewitness, jury is entitled to bring in any included

verdict from second degree murder, down. First degree could not be established and was not

asked for. 30 C.J. 142-149.

Constitutional guarantee against defendant being made witness against himself relates

exclusively to communications and statements by him, not demonstration of physical facts.

16 C.J. 568; State v. Petty, 32 Nev. 384. *��!��


When jury could have returned greater, appellant cannot complain of lesser included

verdict. Gibson v. Somers, 31 Nev. 531; 17 C.J. 362.

OPINION


Appellant was charged with murder and convicted of involuntary manslaughter. The

appeal is from the judgment and from an order overruling appellant's motion for a new trial.

The appellant was convicted on circumstantial evidence. It is claimed that the evidence is not

sufficient to support the verdict. On the morning of December 29, 1924, at about 9 o'clock,

one Nick Gaerdoges, a Greek, was found dead in his cabin on Monkey Island in Reno,

Nevada. Death had been caused by a bullet wound in the head. There was also a bullet wound

in the chest, and the body was considerably bruised and lacerated. The body, fully dressed,

was found lying on the floor of the cabin. On the floor near the body were found three

revolver shells, a pair of overalls, and two shirts. The lock on the door of the cabin was

sprung, apparently from the outside. According to the testimony of one Jennings, a witness

for the prosecution, who was living in a house situated about 25 or 30 feet from the cabin of

the deceased, he was awakened from his sleep on the night of the 28th of December by a

noise or scuffle in the latter place. The scuffle did not last but a second or more, and then he

heard some one say, “Don't! Oh, don't! Don't!” The last exclamation was in a loud tone of

voice; very loud, the witness said. The witness was unable to state what time of the night it

was when he heard the scuffle and exclamations. Appellant's presence in Reno near the time

of the killing was sworn to by three witnesses. According to testimony of Manuel Atyde, he

saw appellant on the night of the killing in company with Gaerdoges. He saw them talking to

each other on the sidewalk in front of the Reno Garage on Second Street in Reno, as he

passed by, but was unable to say what ��


time it was. He exchanged greetings with them as he passed. He was acquainted with Nick

Gaerdoges, and had seen appellant before about town.

Peggy Parrott testified as follows: She lived in Reno and knew the appellant. When her

boy was sick in the hospital, appellant was there also and she came to know him in that way.

She had seen him also on the streets of Reno a number of times before the killing. On the

morning of December 29, 1924, appellant came to her house in Reno and knocked on the

screen door. She opened the door and talked to appellant. He wanted a place to sleep. She

told him she had no blankets for him. He said “All right,” and turned around and walked

away. He was there two or three minutes and stood within two feet of her. He talked to her in

English. Mary Skimmerhorn testified at the preliminary examination. Her presence at the trial

could not be obtained, and after a proper showing in this regard her deposition taken at that

examination was introduced in evidence. In substance her testimony is as follows: She lived

in Reno and knew Nick Gaerdoges, called “Nick the Greek.” She heard of his death and saw

appellant the next morning in Chinatown in Reno at about 8 o'clock and talked with him. She

had seen him and talked with him before. On this occasion he had a rag around his arm. She

saw blood stains on his coat and pants. She asked him what was the matter with his arm, and

he told her that Nick the Greek cut his arm. He also told her that he was going to get out of

town.

The sheriff, who found one of the shirts in the cabin on the morning of the discovery of the

homicide, testified in regard to it and to certain scars on the appellant's body as follows: After

the appellant had been apprehended, he, the sheriff, had him put the shirt on. He said that it

fitted him very well, and that there were two holes in the left sleeve of the shirt; that the scars

on appellant's left arm and left shoulder were in range of these holes; that there was also a

scar on appellant's chest.

At the request of the district attorney and over the �!�� !��


objection of counsel for appellant, the latter was required by the court to remove his coat and

shirt and permit the jury to see the scars on his body. He was also required to put on the shirt

in question and submit to a view by the jury. The shirt was introduced in evidence and handed

to the jury for inspection.

Jose Salazar, a witness for appellant, testified substantially as follows: He lived in

Westwood, Calif., and had known appellant for nine years. They were brothers-in-law.

Appellant came to his house in Westwood on November 11, 1924, and lived there until he

was arrested and brought to Reno on the present charge. He slept at the home of the witness

every night from Christmas during December and January. They slept in the same bed. The

marks on appellant's body were there when he came to Westwood on November 11. He had

two marks on his body when he came to Westwood after leaving the hospital. The other

marks had been on his body for a long time. The scar on the left arm had been there for nine

years. In rebuttal of this testimony concerning the scars on the left arm, the state placed

Charles R. Hillhouse on the stand. He testified as follows: He was clerk of the identification

bureau of the city of Reno police department. His duties consisted of photographing finger

prints and taking a description of all prisoners. On November 10, 1924, he examined

appellant's arms and face for scars and distinguishing marks. The appellant was required by

the court to exhibit his left arm to the witness, and his attention was called to a scar about an

inch in length on the outer side of the left arm. The witness testified that the scar was not

there when he made the former examination.

The appellant interposed the defense of an alibi. He was a witness in his own behalf. He

testified in substance that after being ordered out of town by the chief of police he left Reno,

going to Westwood, Calif., and was at the latter place when the homicide was committed.

1. Six other witnesses also testified in support of this alibi. Aside from the appellant, the

testimony of � ��5��5 ��3��4� �2��


only one of these witnesses, that of his brother-in-law, Jose Salazar, if true, made it

impossible for the appellant to have committed the offense. It appears from the evidence that

it is about a four hours' drive by automobile between the two places. The appellant could have

killed the deceased and have been seen in Westwood at the times as related by the witnesses.

In other words, their testimony, if true, did not establish a complete alibi. An alibi is not

complete unless it reasonably appears therefrom that the defendant could not have been at the

place where the crime was committed. On cross-examination two of these witnesses admitted

having told the sheriff that it was on a date other than the 28th or 29th of September that they

saw the appellant in Westwood. Another of these witnesses on cross-examination claimed to

have seen appellant in Westwood at times when he was admittedly in Reno. The weight of

the evidence in support of the defense of alibi was, of course, for the jury, whose verdict

shows that it was not established to its satisfaction.

As said in Bast v. Commonwealth, 124 Ky. 747, 99 S.W. 978:

“An alibi is the strongest possible defense when thoroughly established, but it becomes, at

once, the most dangerous and weakest of all defenses that could be set up, when it is not

thoroughly established.”

2. The evidence on the part of the prosecution showed that appellant was in Reno on the

night of the killing. He was abroad in the early morning hours looking for a place to sleep, as

testified to by the Indian woman, Peggy Parrott. He was last seen that night in company with

the man who was killed. The most damaging testimony against him was that given by the

Indian woman, Mary Skimmerhorn, who talked with him the next morning, and whom he

told that Nick the Greek had cut his arm and that he intended to get out of town. True, there

are statements in this testimony, brought out on cross-examination, such as: “He didn't say

nothing to me.” “He didn't tell me anything,” which counsel for appellant detach from the

whole testimony ��


and argue that they render it unworthy of belief. The testimony ought not to be considered in

this way. The witness was evidently an illiterate Indian woman whose ability to express

herself clearly in English was extremely limited. Statements apparently contradictory seemed

to be characteristic of her speech. For instance, she said: “I didn't say nothing. I say, ‘What's

the matter with your arm?' I say that to him.” Another answer was as follows: “I didn't say

nothing. I go away, and I never spoke good to him. I ask a little bit.” And again: “He didn't

say nothing, only, ‘I'm going to get out of town.'” These were merely peculiarities of

expression and were not sufficient alone to warrant the jury in disregarding her testimony. If

the jury believed her testimony, it connected the appellant directly with the commission of the

crime. Appellant's attempt to account for the scar on his left arm by the testimony of his

brother-in-law, which was rebutted by the state, was, if the jury believed the latter testimony,

a circumstance against him.

3-6. It is difficult to tell what, if any, inferences the jury may have drawn from the

inspection of the shirt with reference to the appellant's body; but aside from this, the other

evidence was sufficient to justify the jury in concluding the appellant killed the deceased.

There were blood stains on the skirt and rents in it, one of which in the left shoulder appeared

to have been made with a knife or sharp instrument. The evidence points to a desperate

struggle between the deceased and his slayer. The Indian, Mary Skimmerhorn, testified that

appellant told her Nick the Greek cut his arm. The shirt was found at the scene of the killing,

evidently discarded by the slayer. Under these circumstances, if the rent in the shirt made by

the knife corresponded with a scar on the appellant's are, the shirt was material as tending,

however slight may have been the tendency, to identify the accused with the person who

committed the crime. Its weight was for the jury. On the other hand, if there was no

correspondence in this regard, the shirt was immaterial and its admission in ��


evidence was error. But certainly in this event it was harmless error, for the condition of the

shirt would support an inference that it was worn by some one else during the struggle.

7. It is contended that the verdict of involuntary manslaughter is inconsistent with the

facts, and as there is no evidence tending to show involuntary manslaughter, this grade of

felonious homicide was not in the case and therefore cannot stand. In conformity with the

common-law rule and the great weight of authority, this court has held that one indicted for

murder may be found guilty of involuntary manslaughter. In Re Somers, 31 Nev. 531, 103 P.

1073, 24 L.R.A. (N.S.) 504, 135 Am. St. Rep. 700. Section 369 of the criminal practice act

(Rev. Laws, sec. 7219), as amended by Statutes of 1919, at page 430, sec. 65, precludes any

other view. It reads:

“In all cases the defendant may be found guilty of any offense, the commission of which is

necessarily included in that with which he is charged, or may be found guilty of an attempt to

commit the offense charged.”

Manslaughter, whether intentional or unintentional, is necessarily included in a charge of

murder. The application of the rule of the statute is not affected by the fact that the crime

under the law and facts ought to be fixed at a higher grade or degree. 13 R.C.L. 757; State v.

Lindsey, 19 Nev. 47, 5 P. 822, 3 Am. St. Rep. 776. In State v. Lindsey the appellant was

indicted for the crime of murder, alleged to have been committed by administering poison.

The jury found her guilty of murder of the second degree. The judgment was affirmed.

Murder by means of poison is, under the statute, murder of the first degree. The court said:

“But suppose the jury, in charity for the faults and weakness of the human race, sympathy

for the prison, or any other mistaken view of the law or the facts, lessens the offense to

murder in the second degree, is the prisoner to go free? Does not the case stand precisely

upon the same plane as a verdict of murder in the second degree in any case not enumerated

in the statute, where there is a willful, deliberate, and premeditated �� G


killing? Is it not as much the duty of the jury in such a case to find the prisoner guilty of

murder in the first degree as in the cases specially enumerated in the statute? Suppose the jury

in such a case, where the evidence is positive, clear, plain, and satisfactory beyond a

reasonable doubt, regardless of all the testimony, and in violation of the well-settled

principles of law, should find the prisoner guilty of murder in the second degree, would the

prisoner be entitled to a new trial upon the ground that the verdict is against the evidence? Is

it not a fact that juries frequently render just such verdicts, and the result cannot be accounted

for upon any theory other than that of a compromise of opinion? Why should such verdicts be

allowed to stand? * * * The reason is, that the statute leaves the question of degree to be

settled by the verdict of the jury.”

It may be said with equal reason that the statute quoted above also leaves it to the jury to

find any grade of homicide embraced within the crime charged.

In Indiana, the statutes empowering the jury to fix the degree of a crime and to convict of

any offense, the commission of which is necessarily included in the crime charged, are similar

to ours, and murder by means of poison is murder of the first degree. In Hasenfuss v. State,

156 Ind. 246, 59 N.E. 463, the defendant was charged with murder of the first degree by

administering the poison, and convicted of voluntary manslaughter. The judgment was

affirmed, the court holding that it was without power to disturb the verdict. Referring to that

case, the court in Gipe v. State, 165 Ind. 433, 75 N.E. 881, 1 L.R.A. (N.S.) 419, 112 Am. St.

Rep. 238, said:

“It must not be forgotten that a charge of murder in the first degree comprehends every

grade of felonious homicide, and that a finding of involuntary manslaughter cannot be

disturbed on appeal because the evidence shows that the defendant was guilty of murder.”

It was held in Commonwealth v. McPike, 3 Cush. (Mass.) 181, 50 Am. Dec. 727, that one

convicted of manslaughter has no reasonable ground of complaint when the evidence proves

murder. In Moore v. People, 26 Colo. 213, 57 P. 857, the court said: <$��H��I�� 1J��4��@��%�'��7A


“On the other hand, if they were satisfied that he [defendant] sought the combat with a

felonious intent, they might have found him guilty of murder; in which event, he could not be

heard to say that a conviction for manslaughter is erroneous” — citing State v. Lindsey, 19

Nev. 47, 5 P. 822, 3 Am. St. Rep. 776.

Mr. Wharton, in his work on criminal law (volume 2, sec. 932), says:

“It is no defense to an indictment for manslaughter, that the homicide therein alleged

appears by the evidence to have been committed with malice aforethought, and was,

therefore, murder; but the defendant, in such case, may notwithstanding be properly convicted

of the offense of manslaughter.”

Where the indictment charges a higher degree of felonious homicide and the verdict is for

a lesser degree or grade included within the higher, the general rule is thus stated in 13 R.C.L.

pp. 757, 758:

“It is deemed to be wholly within the province of the jury to fix the punishment; and even

though the evidence may fully disclose that the defendant was guilty of a higher degree than

that found against him, still the verdict cannot be disturbed for that reason. The courts

recognize that it is not an uncommon thing for a jury, out of sympathy, or what they conceive

to be extenuating circumstances, to find the defendant guilty of a lower degree or grade of

offense than that of which the evidence clearly convicts him; but the fact that they do so is not

a ground of reversal of the verdict and judgment.”

The following statement of the rule is found in 17 C.J. p. 362:

“Defendant cannot complain of error in finding him guilty of a lower degree of crime than

the one shown by the evidence.”

See cases cited in note 94.

8. Appellant, in the opening brief, concedes that the undisputed evidence clearly

establishes a voluntary killing under circumstances amounting at least to murder in the

second degree, and concedes that if the attending ��


circumstances be considered at all, they were in aggravation of the offense rather than in

mitigation. If this concession is admitted, then, under the rule stated, the appellant cannot be

heard to complain because the jury by its verdict extended to him the grace of lesser

punishment than the facts warranted.

9. But the verdict of involuntary manslaughter was not improper in this case for another

reason. There were no eyewitnesses to the killing. Presumptively, every killing is murder, and

while the physical facts in this case indicate a voluntary killing, yet involuntary manslaughter,

or even justifiable homicide, were not outside the range of possibility. The circumstances do

not preclude murder, nor do they exclude any other lower grade of the offense. Under such

circumstances it was proper for the court to instruct as to all grades of the offense, and it was

for the jury to infer from all the circumstances the degree of guilt. 30 C.J. 397. The general

rule in such cases is thus stated in the authority last cited as follows:

“Where there were no eyewitnesses to the killing and the evidence is purely circumstantial,

the court should instruct the jury as to the different grades of homicide, * * * unless it is

evident from the whole proof that defendant is either guilty of murder, or innocent.”

The facts of this case do not bring it within the exception above stated, for,

notwithstanding appellant concedes a case of murder, the evidence does not show it to be

such. While the fact that deceased was shot twice, once in the body and once in the head,

indicating a voluntary killing which could have been either murder, voluntary manslaughter,

or a justifiable homicide, still it could have been an unintentional killing in the course of an

assault with a deadly weapon. As previously stated, evidence discloses that there was a hard

struggle between the deceased and his slayer. Under such circumstances it was not for the

court to say that an unintentional killing was precluded by the facts.

In Hasenfuss v. State, supra, in which the indictment charged murder by administering

poison, and the verdict �� !�� !�� !��


for voluntary manslaughter was found by the jury and upheld by the court, the court said that

it was difficult to conjecture a case where the crime of manslaughter can be said to be

committed by means of administering poison, but that the jury discovered such a case,

notwithstanding the assertion of counsel that none under any circumstances could be

imagined.

The defendant in the case of State v. Crockett, 39 Or. 76, 65 P. 447, cited in respondent's

brief, was indicted for murder in the first, and convicted of murder in the second, degree for

killing her husband. Proof of the manner and circumstances of the killing, and the defendant's

connection therewith, was entirely circumstantial. The court in the course of its opinion

affirming the judgment said:

“The deceased was shot while in bed, some time during the night. At the time the only

persons in the house were the defendant, the deceased, and their three small children, the

latter of whom were asleep. The defendant denied any participation in the killing, and

claimed that it was a case of suicide. The question, therefore, as to when and by whom the

killing was done—whether by the deceased himself or by the defendant, and, if by the

defendant, whether purposely and of deliberate and premeditated malice, or purposely and

maliciously, but without deliberation and premeditation, or in a sudden heat of passion—was

a mere matter of inference from the testimony; and therefore the degree of the defendant's

guilt, if guilty at all, was for the jury to determine from the entire circumstances of the case,

and not the court.”

See, also, Stanley and Nix v. Commonwealth, 184 Ky. 237, 211 S.W. 577.

10. Error is assigned as to the action of the court in requiring appellant to remove his coat

and shirt and permit the jury to see the scars on his body; and to don the shirt introduced in

evidence, and submit to an inspection by the jury. It is contended that his constitutional

privilege from being a witness against himself in a criminal case was violated by this

proceeding.


The contention has been resolved against appellant by a former decision of this court in the

case of State v. Ah Cheuy, 14 Nev. 79, 33 Am. Rep. 530, in which case the trial court

compelled defendant, against his objection, to exhibit his arm so as to show certain tatoo

marks thereon to the jury. With that decision we are in entire accord. We are satisfied that the

constitutional provision invoked by appellant relates solely to testimonial compulsion. Holt v.

United States, 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138; State v. Barela

et al., 23 N. M. 395, 168 P. 545, L.R.A. 1918b, 844; Wigmore on Evidence, vol. 4, secs. 2263

and 2265.

As in the case of State v. Ah Cheuy, there was nothing in the proceeding complained of in

this case which tended to humiliate or degrade appellant or otherwise prejudice him before

the jury.

11. The court sustained an objection to the following question asked on cross-examination

of Peggy Parrott: “Q. Did any other person ever come to your door before this time?” There

was no limit as to time in this question. While a wide latitude of cross-examination should be

allowed in a criminal case, the court is empowered to keep such examination within proper

limits. Counsel reframed the question in the following manner: “Q. Did any Mexican other

than this man come to your house about that time?” The witness was permitted to answer.

There was no error in the ruling complained of.

The ruling of the court in permitting the sheriff to testify that the shirt found in the cabin of

the deceased on the morning of the discovery of the body fitted the appellant, and that the cut

and hole in the left sleeve corresponded with scars on defendant's body, is assigned as error. If

it were error to allow the witness to state these conclusions, it was rendered harmless by the

fact that the jurors were permitted to see the shirt on the appellant's body and instructed to

draw their own conclusions. In this regard, at appellant's request, the jury was correctly

instructed as follows:

“The court instructs the jury that it is the law that �� !�� !�� 1


when a witness has testified to certain physical facts based upon his inspection of the same,

and the jurors have had an equal opportunity of inspecting the same physical facts, it is the

duty of the jurors to draw their own conclusions from their own inspection of such physical

facts.”

There being no prejudicial error in the record, the judgment is affirmed.

May 11, 1926.

Per Curiam:

Rehearing denied.

____________

��49 Nev. 208, 208 (1926) Ex Parte Anderson��

EX PARTE ANDERSON

No. 2709

January 12, 1926. 242 P. 587.

1. Automobiles—Constitutional Law—Statute Requiring Licensing of Motor Carriers HeldConstitutional.

Stats. 1925, c. 162, requiring motor carriers operating over highways of the first class to procure

license, held not violative of due process of law or equal protection of laws.

2. Statutes—Statutes Not Void for Uncertainty if Any Practical or Sensible Effect May Be

Given It. A statute will not be held void for uncertainty if any practical or sensible effect may be given it, and

mere difficulty in ascertaining its meaning or fact it is susceptible of interpretations will not render it

nugatory.

3. Statutes—A law, Imperfect in Details, Not Void Unless Execution Thereof Impossible. A law, though imperfect in its details, is not void unless it is so imperfect as to make it utterly

impossible to execute it.

4. Statutes—Statute Licensing of Motor Carriers Operating on First-Class Highways Not

Void for Uncertainty. Stats. 1925, c. 162, requiring license for the operation of common carrier motor vehicles, held not

void for uncertainty, as applied to operator of motor carrier operating on route consisting only partially of

first-class highways as defined in section 2, and not void because it will render business unprofitable.

See (1) 28 Cyc. p. 33, n. 72; (2, 3, 4) 36 Cyc. p. 968, n. 88; p. 969, n. 91.

Original application by Lucian Neal Anderson for a writ of habeas corpus. Proceeding

dismissed, and petitioner remanded to custody. Rehearing denied. (McNamara, District

Judge, dissenting.)


Harwood & Tippett and Chandler & Quayle, for Petitioner:

Stats. 1925, c. 162, upon which complaint is based, is illegal and void because it is so

conflicting as to be unintelligible. Section 1 requires annual license; section 2 requires

semiannual license based upon gross receipts; no provision is made for applying for license

by one who has not previously been in business; section 1 applies to those who may hereafter

be permitted to use highways for hire; section 2 applies to each operator on first-class

highways for hire. In Re Hendricks, 57 P. 965; People v. Sweitzer, 107 N.E. 902.

Act is in violation of section 21 of article 4 of state constitution because those subject

thereto are same as are permitted to use highways for hire, who are also subject to act of

1919, c. 109, as amended, which exempts taxicabs and other vehicles which are often

operated on first-class public roads, especially out of Reno.

Act discriminates against petitioner in whose routes of about 63 miles only 1 1/2 miles are

concrete and balance common dirt, by requiring as large a tax as if he used first-class highway

on entire route.

Classification of highways is not based on any natural or reasonable basis. 5 Cal. Jur. pars.

188 to 214; 37 C.J. 198; 6 R.C.L. 403; Gulf etc. Ry. v. Ellis, 165 U.S. 150.

Act is in violation of article 14 of amendments to constitution of United States in that it

denies equal protection of laws.

M. A. Diskin, Attorney-General, and Thos. E. Powell, Deputy Attorney-General, for

Respondent:

Public service commission law and Stats. 1925, c. 162, in so far as they relate to motor

carriages for hire, apply only to common carriers.

Classification into private and common carriers is everywhere recognized.

On call operators must procure certificates of public necessity, same as if they operated

between fixed termini.

Taxicabs are exempted only when they operate within ��<$�1��<��1�� <�� 4��'��18�� <�1��<��1�� &@��"4�� 4��)��C&��D�A,A�8�� =��66'�B�?7E�

4�� F�K0�


limits of cities. “Or” may be read “and” in clause, “or engaged in the transportation of

persons or property for hire exclusively within the limits of a city or town of the State of

Nevada.” Popular use of words “or” and “and” is loose; when used in statute they are

convertible as sense may require. 2 Lewis' Sutherland Statutory Construction (2d ed.), 757;

People v. Rice, 33 N.E. 846.

Statute should receive, if possible, construction which makes it constitutional. V. & T.

R.R. Co. v. Hinry, 8 Nev. 165; State v. Martin, 32 Nev. 198.

Where procedure gives reasonable notice and fair opportunity to be heard, due process

clauses are not violated. Hallinger v. Davis, 146 U.S. 320; U.S. v. Crukshank, 92 U.S. 542.

Legislature has right to classify for purposes of legislation, exercises wide discretion in

that regard, and its acts can be overthrown only when unreasonable and arbitrary. Matter of

Stephens, 148 P. 196; Lindsley v. Gas Co., 220 U.S. 61.

Classification of highways is based on relative cost.

Tax applies equally to all persons who operate common carriers over first-class highways.

Right of equal protection is not denied where same law applies to all similarly situated.

Tinsley v. Anderson, 171 U.S. 106; Denver v. N.Y. Trust Co., 229 U.S. 123.

All parts of act should be considered together, not each part by itself. Verdi L. Co. v. Bartlett,

40 Nev. 317.

OPINION


This is an original proceeding on habeas corpus. The chief justice being temporarily absent

and the parties having requested that the matter be heard and determined by a full court, the

governor appointed Hon. J.M. McNamara, judge of the Fourth judicial district, as judge pro

tem. of this court for this particular case.

The question involved relate to the interpretation and constitutionality of an act approved

March 21, 1925, ��%E&�4��%�&,�� <(�� 5�� 1


chapter 162, Statutes 1925, entitled “An act providing for a license for the operation of

common-carrier motors and vehicles, and other matters relating thereto.”

Omitting its lengthy preamble, the act reads as follows:

“Section 1. Every person, company, association and corporation who is now or who may

hereafter be permitted to use the public highways of this state for the transportation of

property or passengers for hire in any established common-carrier truck or passenger line

must procure annually a license therefor from the public service commission of Nevada, and

make payment for such license as hereinafter provided.

“Sec. 2. Each operator of a motor vehicle or vehicles within this state who transports or

desires to transport persons or property for hire or compensation over any public highway

designated as first-class highways within this state shall file with the public service

commission of Nevada on a form to be provided by said commission on or before July 1,

1925, and each semiannual period thereafter an application for a license which shall state the

gross earnings from operation derived by the applicant operator from the operation of said

motor vehicle or vehicles within the state for the semiannual period prior to the date of such

application.

“Classes of Highways Defined—Any highway of Portland cement concrete, bituminous

concrete, asphalt, or other hard surface, shall be considered a highway of the first-class. Any

highway with a surface of gravel, crushed rock, or shale shall be considered a highway of the

second-class. Any public earth, gravel, or rock road not included in the foregoing two classes

is to be considered a highway of the third-class.

“Sec. 3. Such license shall be issued by said public service commission of Nevada to any

operator of motor vehicles for hire who may have been granted, or who is granted a certificate

of public convenience and necessity, upon payment of 4% of said operator's gross earnings

derived from the operation of such motor vehicles ��CED�� 7L��


during the preceding six (6) months, and said license shall be payable semiannually;

provided, that there shall be deducted from said 4% of gross earnings the amount of any plate

or registration license.

“Sec. 4. All moneys collected for licenses under the provisions of this act shall be turned

over by the said public service commission to the state treasurer of the State of Nevada, who

shall annually distribute the said funds to the counties proportionate to the length of roads

used and licenses affecting each county of the state, and said funds shall go into the road fund

of such county.

“Sec. 5. Any person, company, association or corporation who shall engage in the business

of transportation of property or passengers in any established common-carrier truck or

passenger line within the State of Nevada, without having procured a license therefor as

prescribed by this act, shall be deemed guilty of a misdemeanor and upon conviction thereof

shall be punished by a fine of not less than fifty ($50) dollars nor more than two hundred and

fifty ($250) dollars; provided, that each day's operation shall be considered a separate offense.

“Sec. 6. This act shall be in full force, effect and virtue on and after July 1, 1925.”

1. After giving due weight to the argument of counsel, we are unable to reach the

conclusion that the statute is void for repugnancy to the constitution, in that it is violative of

due process of law and denies the equal protection of the laws. Huddy on Automobiles (5th

ed.) sec. 61; The Law Applied to Motor Vehicles, Babbitt (3d ed.), secs. 95 and 96.

The argument is advanced that the statute is void for uncertainty. This contention is

argumentative, and in order to make the petitioner's position clear it is necessary to give a

brief statement of the admitted facts. The petitioner was arrested on the 3d day of July, 1925,

upon a warrant of arrest issued out of the justice's court of East Fork Township in and for

Douglas County, upon a complaint charging him with the crime of “transporting persons and

property for hire by motor vehicle in an established common carrier, truck and passenger ��5� �� '�� 1


line over a first-class highway, without having procured from the public service commission

of Nevada a license so to do.” It is conceded that the petitioner when arrested was engaged in

transporting persons and property for hire by motor vehicle over the public highway between

fixed termini, to wit, between Minden in Douglas County and Fredericks Ranch in Mineral

County. In transporting persons and property for hire in his established line he traveled over a

first-class highway as defined by the statute between fixed termini, to wit, Minden and

Gardnerville in Douglas County. It is conceded that this particular first-class highway was

constructed or improved with federal, state, and county aid and is under the control of the

state highway department.

2-4. The question for determination is whether the transportation by the petitioner of

persons and property for hire over this particular first-class highway is within the meaning of

the statute. Section 2 of the act is a legislative declaration to the petitioner that in order for

him to operate over any first-class highway he must procure the license in the manner

provided in the section. The fact that the petitioner's established line extends beyond the

termini of the first-class highway traveled is no argument against the validity of the statute. A

statute will not be held void for uncertainty if any sort of practical or sensible effect may be

given it. Mere difficulty in ascertaining its meaning, or the fact that it is susceptible of

interpretations, will not render it nugatory. State v. State board of Examiners (Mont.) 238 P.

316; Adams v. Greene, 182 Ky. 504, 206 S.W. 759. The statute under consideration may not

accomplish its purposes as fully as the legislature designed, but that does not render it void.

Though a law is imperfect in its details, it is not void, unless it is so imperfect as to make it

utterly impossible to execute it. Gordon v. State, 46 Ohio St. 607, 23 N.E. 63, 6 L.R.A. 752;

36 Cyc. 968. In so far as the statute under review relates to any first-class highway, it is a

complete law and enforceable. Its enforcement in this particular case may result in loss of

profits and render the petitioner's business unprofitable, but this is no argument against the��


validity of the statute. In such a case the petitioner's remedy lies with the legislature and not

with the courts. In order that the statute may be given any sort of practical or sensible effect, it

must be interpreted to mean what section 2 of the act announces: That each operator of a

motor vehicle who transports or desires to transport persons or property for hire over any

public highway designated as first-class highway must make application for the license in the

manner provided in the section. To give the statute any other interpretation would defeat its

purpose to impose a license tax upon those who transport persons or property for hire over

any first-class highway and render it nugatory.

We have considered the other objections urged against the validity of the act, but find

them to be untenable. We therefore order that this proceeding be dismissed, and the petitioner

remanded to the custody of the constable of East Fork Township for Douglas County, to be

dealt with by the State of Nevada as it may be advised by the attorney-general.

Ducker, J.: I concur.

McNamara, District Judge, dissenting:

I am compelled to dissent from some of the views and the conclusions reached by my

learned associates as expressed in the majority opinion in this proceeding.

Petitioner contends that the act in question is so indefinite and uncertain that it is

impossible to ascertain the intent of the legislature at the time of the enactment of the statute,

and that the same is therefore inoperative and void.

It is a well-established rule of law that—

“Where an act of the legislature is so vague, indefinite and uncertain that the courts are

unable to determine with any reasonable degree of certainty what the legislature intended, or

is so incomplete or is so conflicting and inconsistent in its provisions that it cannot be

executed, it will be declared to be inoperative and void.”

See 25 R.C.L. 810, art. 62, and note.

Section 1 of the act seems to require of every operator �� 4��'��


of motor vehicles who operate for hire over any of the public highways of the State of

Nevada, regardless of the classification of such highways, to procure a license for such

operation in accordance with the later provisions of the act itself. The second provision of the

act seems to require only that those operators who operate over first-class highways shall

procure a license and pay the tax.

My learned associates, in construing and interpreting the act, construe the same to mean

that every operator of motor vehicles, who operates as a common carrier for hire of persons or

property over any of the highways of the state, is subject to the provisions of the act with

reference to the procurement of a license and the payment of the tax. If this is the proper

construction of the act, I am at a loss to understand why it was necessary to make any

classification of highways whatsoever as is done in paragraph 2 of section 2 of said act.

Further, if such is the proper interpretation of the act, I am at a loss to understand why it was

necessary to incorporate in said act any part of section 2.

It is apparent from the act, by a reference to the preamble, that it was the intent of the

legislature to in some manner tax operators of motor vehicles who operate as common

carriers over public highways of the State of Nevada. If it was the intention of the legislature

to tax operators regardless of the class of highways over which they operated, certainly they

could have used language which would have made this intention clear, and it would not have

been necessary to incorporate in said act section 2 thereof. If it was the intention of the

legislature to tax only those operators who operate over first-class highways, likewise the

legislature could have employed language which would have made such intention plain and it

would not have been necessary to include in the act section 1 thereof.

The fact that the legislature saw fit to incorporate into the act section 2 thereof seems to

indicate that they intended to make a further classification with reference to the application of

the tax; that is, it seems to me to be plain that the legislature intended to classify operators��


operating over the various classes of highways, with reference to the application of the tax,

and that this classification in some way was left out of the act. What their intention was in

this regard certainly cannot be ascertained from the act itself by any rule of statutory

construction that I am aware of. If the legislative intent cannot be determined from the act, the

court is not at liberty to supply one by legislating itself; the court's function in this regard

being that of interpretation and construction, and not legislation.

After a very careful study of the act, I am unable to ascertain whether or not the legislature

intended to tax operators who operated over any class of highways, or only those who

operated over first-class highways.

It is stated in State v. Partlow, 91 N.C. 550, 49 Am. Rep. 652, that, “if no judicial certainty

can be settled upon as to the meaning of the statute,” the courts are not at liberty to supply

one. It “must be capable of construction and interpretation; otherwise, it will be inoperative

and void.”

Since I have been unable to place any interpretation or construction upon the act in

question from which a judicial certainty can be determined upon as to the meaning of the

statute, or the intent of the legislature, therefore, in the light of the above rule, I feel that I am

compelled to conclude that the statute is void, and, in so doing, I am very mindful of the rule

that it is the duty of courts, if reasonably possible, to so construe a statute as to give it effect.

With reference to the other grounds urged by petitioner, upon which he declares the statute

to be unconstitutional and void, I am inclined to agree with my associates as to their

reasoning and conclusions.

In view of the reasons asserted above, I am of the opinion that petitioner should be

discharged.


July 19, 1926.

Rehearing denied. (McNamara, District Judge, dissenting.)

____________

��49 Nev. 217, 217 (1926) State v. Jukich��

STATE v. JUKICH

No. 2702

January 12, 1926. 242 P. 590.

1. Homicide—Evidence Held to Support Conviction of Murder in First Degree. Evidence held sufficient to support conviction of murder in first degree.

2. Homicide—Whether Accused's Testimony that He Was So Intoxicated as To Be

Unconscious of what He Was Doing Was True Held Fact for Jury. In prosecution for murder, whether accused's testimony that he was so intoxicated as to be

unconscious of what he was doing was true was question for jury.

3. Criminal Law—New Trial Should Not Be Granted For Incompetency or Neglect of

Accused's Counsel, Unless Accused Is Prejudiced and Deprived of Fair Trial. New trial should not be ordered by appellate court because of incompetency or neglect of accused's

counsel, unless it is such that accused was prejudiced and thereby deprived of fair trial.

4. Criminal Law—Failure of Accused's Counsel to Move for Change of Venue Held Not

Such Incompetency or Neglect as Warrants Reversal of Conviction. In prosecution for murder, failure of counsel to move for change of venue held not such negligence

and incompetency as warrants reversal of conviction.

5. Criminal Law—Examination of Juror on Voir Dire Held Not to Disclose Such Negligence

and Incompetence of Counsel as to Require Reversal. Examination of jurors on voir dire by counsel for defendant in murder trial held not to show

negligence and incompetence of counsel as to warrant reversal of conviction.

6. Criminal Law—Failure of Accused's Counsel to Object to Immaterial Evidence Held Not

to Show Such Incompetency as Would Warrant Reversal of Conviction. In prosecution for murder, failure of accused's attorney to object to admission of immaterial evidence

held not to indicate such neglect and incompetency as would warrant reversal of conviction.

7. Criminal Law—Failure of Accused's Counsel to Examine Nine-Year-Old Witness for

State as to Competency Held Not Such Neglect and Incompetency as Would Warrant

Reversal of Conviction. In prosecution for murder, failure of accused's counsel to examine child witness as to her competency,

in view of her testimony, held not to show such neglect and incompetency by accused's counsel as would

warrant reversal of conviction, since court is primarily charged with duty of determining competency in

such cases.


8. Criminal Law—On Appeal It Will Be Presumed that Court Found Child Witness Competent.

On appeal it will be presumed that court was convinced that child witness was competent.

9. Criminal Law—Testimony Showing Motive Elicited from Accused by His Attorney Held Not to Show Such

Incompetency as to Warrant Reversal of Conviction.

In prosecution for murder, testimony of accused elicited by his counsel, although harmful, as

disclosing motive, in view of fact that state had introduced accused's statements to same effect, was not

prejudicial, and did not show such incompetency of accused's counsel as would warrant reversal of

conviction.

10. Criminal Law—Fact that Accused's Counsel Defended on Ground of Extreme

Drunkenness and Lack of Intent Held Not to Show Such Incompetency as to Warrant

Reversal of Conviction. In prosecution for murder, fact that accused's counsel defended on wrong theory of extreme

drunkenness and lack of intent, in absence of showing that accused had any other defense, was not such

incompetency as to warrant reversal of conviction.

11. Criminal Law—In Absence of Objections, Errors in Admitting Evidence Are Not

Reviewable even in Capital Cases. The rule that errors in admission of improper evidence are not reviewable unless objected to on trial

applies to capital cases.

12. Criminal Law—Instruction Defining Murder in First Degree Held Not to Indicate

Opinion, in View of Other instructions. Instruction on kinds of first degree murder, though somewhat ambiguous, held not misleading, as

indicating court's view that facts showed premeditation and deliberation, in view of other instruction

requiring proof of such elements beyond reasonable doubt.

13. Criminal Law—Instruction as to Effect of Drunkenness on Liability for Killing Held

Proper. In prosecution for murder, instructions that evidence of drunkenness must be received with caution,

and as to effect of drunkenness on liability for offense and as affecting degree thereof, held proper.

14. Homicide—Evidence of Drunkenness Should Be Received with Caution. As general rule, in cases of homicide evidence of drunkenness should be received with caution.

15. Criminal Law—If Evidence Is of Such Character that Its Weight May Be Easily

Misjudged, Court May Properly Advise that it Should Be “Received with Great

Caution.” When evidence is of such character that its weight may be easily misjudged, it is proper for court to

advise that it should be received with great caution, which does not mean that it is ��


not entitled to credit even if believed, but merely that it should be weighed with care.

See (1, 2, 14) 29 C.J. sec. 21, p. 1061, n. 23; 30 C.J. sec. 559, p. 312, n. 42; sec. 585, p. 333, n. 44; sec. 590, p.

336, n. 79; sec. 614, p. 361, n. 40, p. 362, n. 51; sec. 646, p. 402, n. 78; (3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15) 16

C.J. sec. 2642, p. 1145; n. 37, 39, 40, 41 (new), 42; 17 C.J. sec. 3331, p. 56, n. 16; sec. 3569, p. 223, n. 37; sec.

3754, p. 369, n. 26, p. 595, n. 26.

Appeal from Ninth Judicial District Court, White Pine County; C.J. McFadden, Judge.

Stanko Jukich was convicted of murder in the first degree, and he appeals. Affirmed, with

directions. Rehearing denied.

King & Schulder and C.E. Handwright, for Appellant:

Defendant was deprived of constitutional right in not having had testimony interpreted to

him in language he understood.

There is no evidence of premeditation and deliberation, the very essence of first degree

murder. It is incumbent on state to show defendant was of sound mind and disposing memory

to justify that degree. One so intoxicated as to be incapable of rational thinking cannot

premeditate or deliberate. 13 R.C.L. 710; Utah v. Anselmo, 148 P. 1079.

Negligence or incompetence of defendant's counsel which prevents fair trial warrants

reversal. State v. Swayze, 30 La. Ann. 1323; State v. Jones, 12 Mo. App. 93.

Appellate courts, especially in capital cases, will examine into and correct errors, though

not properly assigned, which affect substantial rights of defendant. This exception to general

rule. 17 C.J. 50; Fritz v. State, 128 P. 170; Wiborg v. U.S., 163 U.S. 632; Anthony v. State,

159 P. 934.

M. A. Diskin, Attorney-General, and H. W. Edwards, District Attorney, for the State:

Defendant understood and spoke English. It was his duty, if he did not understand

testimony, to call court's ��


attention to fact. He cannot remain silent and in case of unfavorable verdict ask for second

trial with interpreter. State v. Cabodi, 138 P. 262; State v. Rusos, 219 P. 843.

Evidence was that defendant was not intoxicated. No insane, irresistible impulse was

shown. Instruction on insanity was properly refused. Court is bound to instruct on defendant's

theory only when facts warrant it. 13 R.C.L. 933; 30 C.J. 359.

Defendant received as good defense as crime afforded. Only conclusion possible to

unbiased mind is that only error committed was that of defendant in shooting to death little

fifteen-year-old girl.

OPINION


Appellant was convicted of the crime of murder of the first degree, and the penalty of

death was imposed. He appeals from the judgment and order denying his motion for a new

trial. The grounds urged on this appeal for a reversal of the judgment may be grouped under

three heads, namely, insufficiency of the evidence to support the verdict of murder of the first

degree; incompetency of counsel who represented appellant in the court below; and

misdirection of the jury by the court. These will be considered in the order stated.

On the 14th day of February, 1925, at the home of her parents in Ruth, White Pine County,

Nevada, appellant shot and killed Jennie Madek, a young girl between 15 and 16 years of age.

The parents of the deceased and the appellant are natives of Jugo-Slavia. The appellant is 28

years of age, and had lived in White Pine County for about 11 years before the killing. For

about two months immediately prior thereto he had been at Gold Hill, Nevada, and returned

to Ruth the day before the homicide. He had boarded with the parents of the deceased for

about 18 months prior to his leaving Ruth for Gold Hill. The circumstances immediately

surrounding the killing are as follows:

Appellant came to the house where the girl lived at ��6"� ��


about 3 o'clock in the afternoon and remained there until he killed her four or five hours later.

Besides the appellant there were four eyewitnesses to the shooting—the mother and a sister of

the deceased, Mrs. Madek and Katie Madek, a girl 9 years of age, and two Americans whose

names are Alfred Le Prowse and W.C. Mosher. Le Prowse and Mosher came to the Madek

house five or ten minutes before the shooting took place. They came there to get a drink of

wine, and found the persons named present, including an infant child of the Madeks. They

had two drinks of wine. Appellant joined them in the last drink, and drank about a fourth of a

glass. There is little difference in their testimony. Appellant was standing about four feet from

Jennie when he suddenly pulled his gun and shot her. Prior to the shooting they did not hear

appellant say anything to Jennie, but Le Prowse testified he had heard appellant talking to

Mrs. Madek in a foreign language. Both witnesses testified that they saw no signs of anger on

the part of the appellant or the others. Mosher testified that appellant appeared to be normal

and that he saw no evidence of his being badly intoxicated. Both witnesses left the house

immediately after the shot was fired, and Mosher testified that he heard the report of a second

shot just as they were leaving the house. Katie Madek in her testimony gave the following

version of the circumstances of the shooting:

“I was in my father's house the night that Jennie was shot. My mother and two Americans

and Stanko and my little brother were there. Brother is a baby 2 1/2 years old. My sister was

standing by two doors wiping my father's bucket. Stanko was sitting on a chair, and he got up

and stood by the stove. He put his foot on the chair, and his left hand was in his left coat

pocket. He was taking when two Americans came in. They asked Stanko if he had any wine,

and he said, ‘Just a glass of water.' My mother gave the two men a glass of wine. They drank

just one glass, and my mother said, ‘I forgot Stanko,' and gave him a glass of wine. He drank

just three drops. He did not act like he was ��


mad at any one and did not use any bad language at any time. He did not say anything to

Jennie. Stanko pulled his left hand out of his pocket and shot her in the breast. Jennie fell

down. She tried to get up two times but couldn't. My mother took his arm, and he shot in the

roof. Two times he shot. My mother held his hand, and when he shot he opened the door and

ran out, and—well, he was going to shoot me and the gun wouldn't shoot, and then he hit me

and skinned by nose. He came back again to see if Jennie was dead. When he came back to

Jennie the second time he shot at her, and the gun wouldn't work, and he kicked Jennie in the

head and went out.”

Mrs. Madek, the mother of the deceased, testified substantially as follows: Appellant

started to board with her on the 25th day of June, 1923, and left her boarding place on the

26th day of December, 1924. He came to the house on the afternoon of the 14th of February,

1925, with one Mike Smilanick, at about 3 o'clock in the afternoon. The latter remained until

her husband got home from work. He stayed there all the time until he shot Jennie. He did not

quarrel with anybody in the house and showed no sign of being angry about anything. Just

before the shooting he was sitting on a chair and got up and stood in front of the door. He

made one step towards Jennie and shot her. Mrs. Madek jumped at him and appellant said,

“You are finished also.” She grabbed him by the hand, and the bullet went straight into the

ceiling. Finding that she could not do anything with him she ran out of the house calling for

help. After he fired the second shot he was pulling at the trigger. He held the gun in his left

hand. The second shot hit the witness on the little finger. Before he shot Jennie he had been

talking of his marriage. He said that a fellow in Virginia City was his best man, and his wife

was there. Before the shooting he had been talking to Jennie in a nice way, and she asked him

why he did not bring his wife out. He replied that he could not until he had a house and a job.

The witness gave appellant three drinks of wine. She stated that he was not drunk.


After the shooting the appellant went to the house of one Tartan, and said he had killed

that girl. He gave the gun to Tartan, and was shortly afterwards taken into custody by a

deputy sheriff. The officer asked him what he had done, and he said he had killed a girl.

Asked why he did it, he said she would not marry him, and he was ready to go too. The

officer put him in a car and took him to jail. While on the way there the officer said he asked

appellant whey he killed the girl, and he replied, “If I couldn't have her nobody else could,”

and kept saying, “Goodbye, sweetheart.”

Questioned concerning his condition, the officer testified that he appeared to be normal;

that he would judge he had been drinking a little, but was sober and normal and did not

appear to be excited. Another deputy sheriff, who was present when appellant was taken into

custody and who went in the car with him to the jail, testified that appellant did not seem to

be drunk, and that he did not smell any liquor on him. Concerning statements made to him at

the time by the appellant, the following questions were asked and answers made:

“Q. What did he say to you? A. * * * We went into the house and sat down, and I says,

‘Why did you kill the girl?' He says, ‘They promised me the girl—we had a written

agreement'—and then began rambling.

“Q. Did he say written agreement? A. Yes; he said the parents of the girl and him signed

the agreement that he was to marry the girl when she became a little older.

“Q. Did he exhibit any remorse over his action? A. None.

“Q. What did he assign for his reason for killing her? Did he say anything about ‘If I can't

have her no one else can?' A. He mentioned that as we came down; I believed he said that

coming down in the car—it appears to me, but I am not quite positive. But he mentioned that

anyway that evening.”

The appellant was taken to jail, and later in the evening was taken by a deputy sheriff to

the office of the district attorney, where he made a statement which was taken down by a

stenographer. The statement was ��


transcribed by the stenographer and the transcript introduced in evidence. It is as follows:

“Statement of Sam Jukich:

“Mr. Edwards: Sam, you know who I am, of course? A. I know who you are; I'll tell you

everything.

“Q. You don't have to tell me anything if you don't want to. I am investigating this trouble

you had up at Ruth. If you want to tell me anything you can; but anything that you do tell me

will be used against you. A. Yes, sir; I tell you everything.

“Q. What was the girl's name? A. Jennie Madek.

“Q. Just tell me how this thing happened. A. Well, it was a little over two years ago, and I

came to her mother, and her mother had a little house to fix, and it wasn't in good shape, and

they were going to fix it a little; I was going to fix that house, and we was talking about it,

and so after a while she was going to promise to give me her daughter. And her daughter was

in the front room and everything was O. K. Her mother said, ‘Which one do you want?' and I

said, ‘The one this is the first to get married.'

“Q. You wanted the oldest one? A. Yes. Her godfather was in the front room, and her

mother and her went in the front room, and I don't know what they said, and she came out and

said, ‘I am going to be your wife any time from now; as soon as I get big enough to get

married.' And I got her godfather to witness it. Something like two or three months ago her

mother and father sent her to Washington; just wanted to bluff me because I spent all my

money, and I was supporting her with clothes and everything else, and as soon as she got a

little bigger, she went to Washington, and then I went away and as soon as I left her mother

went after her to bring her back.

“Morris Roberts: You came in from Gold Hill last night, didn't you? A. Yes, I came back

from Gold Hill last night, and I was talking to her about her promise, and she said, ‘I don't

know.' I said, ‘Tell me what has happened; don't you remember when you promised to be

mine?' And I said, ‘What has happened that you ��G"(��/#��"��"0��#��#��


refuse me?' And she said, ‘I don't know.' Then I got excited and I shoot.

“Q. Did you shoot her because she said she didn't know? A. But she did know.

“Q. Was there any one there at the time? A. Two American fellows; I don't know their

names.

“Q. Just the two American fellows and the girl and some other children and her mother

was there? A. Yes; they were there.

“Q. How many times did you shoot her? A. Once.

“Q. Is the girl dead?

“Morris Roberts; Yes, she is dead.

“Q. Where did this happen?

“Morris Roberts: In the Madek house in Ruth.

“Q. You wasn't drinking, was you? A. Yes; we were drinking.

“Q. You were not drunk? A. Well; I was drinking.

“Q. You are sober now; did you know what you were talking about? A. Yes, sir.

“Q. What did you do with the gun after you shot the girl? A. After I shot her I went

outside, and I threw it away about 20 yards from the house.

“Q. What kind of a gun was it? A. A 25 automatic.

“Q. What you just told me, Sam, you told of your own free will? You told it to me without

me making you tell anything, is that it? A. I don't understand.

“Morris Roberts: You wanted to tell the district attorney what you told? You wanted to tell

him the truth? A. Yes; it's the truth; I just tell the truth.”

The appellant was a witness in his own behalf, and testified at length. His testimony covers

43 pages of the record. A large part of it is devoted to a marriage agreement which he claims

was made with him by the girl and her parents by which he was to have her in marriage; how

in pursuance of this agreement he bought all of the girl's clothes and gave her money; how he

furnished the material to build another room to the Madek home in which they were to live

after the marriage until they could get another room; and to the breaking of the agreement by

the girl and her parents.


He testified that he had no ill will towards the girl for breaking the engagement, and told her

that he did not care and would get another girl. He asked her who would return to him the

money he had expended on her. He also asked the girl's mother to return the money. He

declared that he had expended all of his money for her except the money he needed for his

board. He testified that after he left Ruth and went to Gold Hill he became engaged to a girl at

the latter place and married her; that he was unable to get a marriage license; that he tried to

get one at Virginia City and at Carson City, and was told that a license could not be obtained

because the girl was under age; that he considered himself married to the girl. He told her he

was going to Ruth and that when he got a house and a job he would send her a ticket to come

to him, and she said, “All right.” He told her he was going to Ely to get a marriage license.

Concerning the incidents on the night of the shooting and the afternoon preceding, he gave

substantially the following version: He was going to work in the morning and was going to

Mrs. Madek's house to get his lunch bucket, which he left there before he went to Gold Hill.

Mike Smilanick went with him. He asked Mrs. Madek for his lunch bucket, and she said, “All

right.” She asked him is he was married; he told her that he was and started to leave. She

asked him to have a drink, and brought in a half gallon of moonshine. Appellant, Smilanick,

and one Luchich drank all of it and paid for it. Another half gallon of moonshine was brought

in. They drank some of it, but appellant could not remember whether all of it was consumed

or not. His bucket was on the table and he picked it up and was going when Mrs. Madek said:

“Stay a little longer; you have plenty of time to go.” As far as he knew he drank no wine at

the house that day. The last event appellant could remember was the Madek family having

supper shortly after the second gallon of moonshine was brought out. His attention was called

to the testimony of the witness Le Prowse and Mosher, and he was asked if they were in the

house that day. He replied, “I don't ��1


know.” He remembered nothing of the shooting, or of being taken to jail, or of making any

statements concerning the shooting. He was sober when he reached the house and had a gun

in his right-hand pants pocket. It was customary with him to carry a gun. On redirect

examination he testified that Mrs. Madek ran a bootleg joint in her home, and that he and

others had bought moonshine whisky there on other occasions. He also testified that it was

customary for people of his nationality to make agreements to marry the oldest daughter, and

that such agreements were generally considered binding.

No witnesses testified in behalf of appellant concerning the circumstances of the shooting.

Smilanick, who went with appellant to the house, was a witness in his behalf, and said that he

stayed there for half and hour or so; that they had some kind of liquor to drink which looked

and tasted like moonshine. He saw the appellant take one drink. Neither he nor the appellant

paid for the drinks. George Jukich testified that he had been to Mrs. Madek's house about two

years before the trial a number of times when appellant was present and drank moonshine

whisky on those occasions.

Tom Zupin testified to having been at the house three or four different times, and to

drinking wine and moonshine whisky. He paid Mrs. Madek two bits a drink for it. The last

time he had liquor there was about two months before the trial.

Mrs. Mike Delich, another of appellant's witnesses, testified that she lived next door to

Mrs. Madek; that appellant came to her house on the 14th of February last, and stayed

somewhere near a half or three quarters of an hour; that he drank a bottle of wine while there;

that he did not talk about the Madek family and did not seem to be angry; and that when he

left there he told her that he was going to Mrs. Madek's to get his bucket, as he was going to

work in the morning. The witness also said that Jennie was a well dressed girl compared to

other girls in Ruth; and that she was the best dressed girl.

Vide Mommich, a witness for appellant, corroborated �� 3��


him as to the marriage agreement, and also said that he heard Jennie asking him for money to

buy dresses. A witness by the name of Joe Miller testified to statements made to him by Mrs.

Madek to the effect that she had detained appellant by talking to him when he came to the

house for the lunch bucket.

Another witness, also named Joe Miller, testified that on the night of the 13th of February

appellant asked him for a job. He told appellant that there was a vacant place, and he would

speak to the foreman for him.

In rebuttal for the state, Mrs. C.L. Grier testified that she had charge of a department in the

J.C. Penny Company. She was acquainted with Mrs. Madek and Jennie Madek. They came

into her department last graduation time. The latter bought a dress, and the mother paid for it.

The selling price was $19.19.

Pete Lukich, in rebuttal, said that he was in the Madek house on the 14th of February from

2 o'clock to about 10 minutes after 5. He drank no whisky in that house on that day. He had a

glass of wine. He saw no whisky in the house that afternoon. Mrs. Madek was also called in

rebuttal. She said that appellant did not give her the money to buy Jennie's graduation dress.

She bought it for Jennie and paid $20 for it. She denied that appellant had ever demanded

$500 from her for clothes he had bought for Jennie. She denied that appellant ever bought her

daughter as much as nine dresses in two years, or fifteen pairs of stockings that cost $2.50 a

pair. She also denied having signed any written agreement that Jennie was to marry appellant

as he had stated in his testimony. She also denied that she had brought out the half gallon of

whisky as he had claimed. Formerly, on her cross-examination, she testified that she never

promised Jennie to appellant, and that he never bought her any clothes or anything of the

kind. She also testified on cross-examination that appellant spent no money in her house on

the 14th of February, and that he had wine to drink.

Some of the testimony we have set out has no bearing on the guilt or innocence of the

appellant, and has been ��


stated in view of another assignment of error which we will next discuss.

1. There is ample evidence to support the verdict of murder in the first degree. The killing

of the girl by appellant was established and not denied by him. He simply said that he did not

know that he killed the girl or what he did or said on the afternoon or night from the time he

drank a certain quantity of liquor. Consequently the circumstances of the killing and his

statements concerning it as detailed by the witnesses for the prosecution were in nowise

contradicted. The appellant, as the evidence shows, came to the house armed with a deadly

weapon concealed upon his person. Without provocation he used it with fatal effect upon an

innocent young girl. He attempted to kill the mother and a younger sister. According to the

testimony of the latter he struck her and kicked the prostrate form of the girl he had shot and

killed. He told the arresting officers that he killed her because she would not marry him and

to keep any one else from having her. He told the district attorney shortly after the shooting

that she had previously promised to marry him; that her mother had promised her to him, and

he had spent all of his money on her; and that on the night of the killing when he reproached

her for breaking her promise and she told him she did not know why she refused him, he got

excited and commenced to shoot. His statements disclosed a motive of revenge, and from all

of the circumstances the jury was warranted in concluding that the killing was done with

malice and deliberation.

2. Whether appellant's testimony to the effect that he was so intoxicated as to be

unconscious of what he was doing was true or not was for the jury to determine, and was

resolved against him by the verdict.

Counsel for the appellant in this court did not represent him at the trial of the case, and

they contend that his counsel in the court below handled the case so negligently and

unskillfully as to deprive him of the fair and impartial trial guaranteed by law and the

constitution. In support of this contention they point out that no ��

�� !�� !�� !�� !�� !�� "�� 5��5 �� !��


motion for a change of venue was made, and insist that the record discloses that there was no

proper examination of the jurors on their voir dire to ascertain their qualifications and state of

mind towards the appellant; that no challenges were interposed by him to any of the jurors

finally sworn to try the case; that the jury was obtained hurriedly and the trial finished with

unusual expedition; that no objections were interposed to leading and other questions by the

district attorney which elicited testimony and evidence inadmissible and prejudicial to

appellant; that appellant's counsel did not question the nine-year-old daughter of the Madeks

to test her capacity to testify as a witness; and that he defended the case upon the wrong

theory and drew from the appellant and other witnesses in his behalf testimony prejudicial to

him. Upon these alleged shortcomings counsel here make a strong appeal for the reversal of

the judgment. Whether appellant would have fared better under the guidance of other counsel

is, of course, entirely speculative, but, in view of the evidence upon which the jury found him

guilty, it is safe to say that he might have been convicted even if counsel of great skill had

defended him in the court below.

3. Ordinarily, the negligence or unskillfulness of counsel for a defendant in a criminal case

is no ground for a reversal. State v. Dreher, 137 Mo. 11, 38 S.W. 567; Sayre v.

Commonwealth, 194 Ky. 338, 238 S.W. 737, 24 A.L.R. 1017; Commonwealth v. Dascalakis,

246 Mass. 12, 140 N.E. 470; State v. Benge, 61 Iowa, 658, 17 N.W. 100; State v. Dangelo,

182 Iowa, 1253, 166 N.W. 587; Husdon v. State, 76 Ga. 727; Darby v. State, 79 Ga. 63, 3

S.E. 663. The contrary has been rarely held. It was so held in State v. Jones, 12 Mo. App. 93,

but the Supreme Court of Missouri in State v. Dreher, 137 Mo. 11, 38 S.W. 567, refused to

sanction the ruling, notwithstanding, as it admitted, the record in the former case presented “a

most lamentable example of ignorance and incompetency, and that the trial court should have

afforded the remedy by setting aside the ��1


verdict and appointing a competent attorney for the prisoner.”

We had occasion to say in State v. Clarke, 228 P. 582, that a case might be presented in

which an appellate court would probably feel that it was its duty to set aside a conviction for

errors committed by the trial court resulting in an unfair trial of the defendant, although no

objection or exception was made or taken to the improper admission or exclusion of evidence

because of the mistake or misconduct, neglect or incompetency of his counsel. We had in

view, of course an extreme case. In such a case this court would not feel bound by rules of

procedure to permit a palpable miscarriage of justice. The common dictates of humanity

would prescribe such a course, especially where human life is involved. It is to be noted that

in State v. Dreher, supra, which was a capital case, the court reviewed the record, and said:

“* * * We think that the effort to obtain a new trial on account of the insufficiency of the

counsel who defended in the criminal court is without any just basis.”

In Sayre v. Commonwealth, supra, also a capital case, the record was reviewed, and it was

held that there was no error of such seriousness or prejudice to the legal rights of the

defendant as to warrant a reversal. The court said:

“Without overriding the general rule of law applied by this court and others of this

country, we cannot reverse the judgment and grant appellant a new trial on the grounds of the

incompetency and unskillfulness of appellant's lawyer, for it cannot be said that he has not

received a fair and impartial trial.”

In State v. Bethune, 93 S.C. 195, 75 S.E. 281, the court, in deciding against the objection

of counsel's prejudicial mismanagement of the case, said:

“The mental condition of the appellant's former attorney is not ground for a new trial,

because it has not been made to appear that it caused prejudice to his case.


It does not appear that he did or left undone anything which would probably have affected the

result.”

The Supreme Court, in State v. Dangelo, 182 Iowa, 1253, 166 N.W. 587, in denying a new

trial, urged on account of the incompetency of counsel, said:

“We do not say that the rights of the accused may not be so flagrantly disregarded by

counsel of his own choosing, and, as a consequence, justice so manifestly miscarry, as that a

new trial should be ordered.”

In an earlier case the same court, upholding a judgment of conviction where a reversal was

urged on the grounds of incompetency of counsel, after stating that the rule was an almost

invariable one in civil cases, said:

“In criminal cases, and especially in cases involving the life of the defendant, the court

would probably be justified in adhering to the rule somewhat less strictly. State v. Jones, St.

Louis Court of Appeals, May No., 1882, Western Jurist, 322. But in any case, to justify a

reversal upon this ground, there should be a strong showing both of incompetency and

prejudice.” State v. Benge, 61 Iowa, 658, 17 N.W. 100.

We think that the rule deducible from these cases is that a new trial should not be granted

by an appellate court in a criminal case on account of the incompetency or neglect of counsel

unless it is so great that the defendant is prejudiced and thereby deprived of a fair trial. 16

C.J. 1145.

4. There is nothing in the record to disclose such a situation. Counsel in the lower court is

criticized for not having made a motion for a change of venue. The crime was indeed a brutal

one, but there is nothing to indicate that a fair and impartial jury could not have been

obtained, or that any public feeling existed in the community against the accused, or that any

hostile feeling had been manifested against him at all. So far as appears, such a motion, if

made, would have been properly denied. Counsel was not required to make idle motions.


5. We find nothing in the claim that the examination of the jurors on the part of appellant

revealed inefficiency on the part of his counsel. True, one of the jurors finally sworn to try the

case said, during the course of his examination, that he “thought the appellant should be

punished in some manner,” and was not challenged by counsel. The juror had previously

stated that he had no opinion as to the guilt or innocence of the accused. The juror had never

served in a criminal case before, and we think his entire examination discloses that he had

neither formed nor expressed an unqualified opinion that the accused was guilty of the

offense charged, and that he would be guided solely by the evidence and the law as given him

by the court. The examination of the other jurors finally sworn to try the case shows that none

of them had an opinion as to the guilt or innocence of the accused. It further shows they were

not prejudiced against him in any way, and were fair and impartial jurors. Those who on their

voir dire stated that they had opinion were promptly challenged by appellant's counsel and

excused by the court. Two were peremptorily challenged by him.

Appellant's counsel asked two of the jurors on their voir dire if they had heard or read

anything in the papers regarding the case that would give them the opinion that the judge of

the court had expressed an opinion as to the guilt or innocence of the accused. When the

question was asked of the second juror the judge interposed and prevented counsel from

continuing this line of interrogation, and stated that he had expressed no opinion. Counsel

said: “This is only asked in all fairness; I don't for a moment think that your honor has

expressed an opinion.” It is claimed that counsel's conduct in this respect, evoking a

reprimand from the court, had a tendency to prejudice appellant's case. We fail to see how it

could have had any such tendency, or how counsel's examination in this regard can be said to

show incompetency.

6. The argument of appellant's counsel on this appeal �� !�� !��


to the effect that the failure of his counsel in the court below to object to many questions

asked by the district attorney which it is claimed elicited testimony of a prejudicial nature,

and evidence of a similar nature introduced in defense, indicated incompetency, takes a very

wide range. We do not propose to follow it and discuss in detail the various questions and

responses thereto stressed by counsel. We have examined the entire record in this regard, and

do not find anything worthy of serious consideration as sustaining the claim of neglect and

incompetency. An attorney's ability cannot be measured by the number of objections he

makes. Attorneys of little ability are sometimes prolific in this respect. There is immaterial

evidence in the record, but there are few records in criminal cases that are free from this

objection. It would probably not have been admitted in the presence of proper objections. We

cannot know counsel's reasons for not objecting to some of the questions complained of, but

we are not prepared at this distance from the atmosphere of the trial to charge him with

neglect or incompetency for not doing so. As said in Commonwealth v. Dascalakis, supra:

“Doubtless evidence was admitted in the examination of witnesses by the counsel for the

defendant which could not have been introduced against his objection. That by itself alone is

a matter of slight consequence. It is a not infrequent occurrence in the trial of causes, and

even happens in criminal cases, that incompetent, immaterial and irrelevant evidence goes in

without objection. Various motives may induce such conduct by trial counsel. In the main it

is done for the supposed advantage of the client to obtain evidence which directly or

indirectly may operate in his behalf. Disappointment in the substance of the evidence thus

elicited, or misapprehension in its expected effect, is neither error in law nor incompetence or

negligence in fact. It is difficult to reproduce on a printed page the atmosphere of a trial. The

situation confronting an attorney during the examination of a witness, including information

conveyed in advance from various sources, anticipation ��!��


concerning answers to be given, and judgment as to results likely to follow, is generally

fraught with difficulty. Methods differ. There are divergent theories as to the wisdom of

insistent conformity to every technical rule of evidence. Even tenable objections sometimes

are not taken in the belief that an ultimate favorable verdict is more likely without them. * * *

Experience, capacity, industry, alertness, faithfulness, learning, and character make great

differences in the efficiency of different members of the bar in the trial of cases. Perfection

cannot be demanded even if a standard of perfection could be formulated. All cannot be held

to the same degree of excellence. Criticism after an adverse event is easy.”

7, 8. The fact that counsel did not question Katie Madek to ascertain whether she was

competent as a witness or not on account of her age is charged as a dereliction of duty on his

part. We do not so consider it. The witness was 9 years of age, but if she was capable of

receiving just impressions of the facts concerning which she testified and of relating them

truly, she was competent under our statute. That she was competent in these respects seems to

be indicated by the testimony of the three adult eyewitnesses to the tragedy, who received

similar impressions and related them in a similar manner. If counsel was satisfied from his

observations of the witness that she was competent, no duty rested upon him to object to her

testifying, or to undertake an examination to test her competency. Moreover, the duty of

ascertaining the capacity of a witness of tender years to testify rests primarily with the court,

and if the court in this instance was satisfied from the age of the witness, her appearance on

the stand and manner of testifying, that she was competent, a special examination for this

purpose was unnecessary. We must presume that the court was convinced that the witness

was competent.

9, 10. The testimony of the appellant elicited by the questioning of his counsel as to the

marriage agreement, the amount of money he had spent on the girl and her ��


refusal to marry him certainly cannot be said to have helped his case, as its tendency was to

disclose a motive for the deed. But as the state had already introduced in evidence his

statements to the officers to the same effect, which were not denied by him, it is difficult to

see how his relation of these matters to the jury could have prejudiced his case. It is urged that

his defense of extreme drunkenness and lack of intent in consequence thereof was a wrong

theory; that some other defense was a proper one. But there is no showing that appellant had

any other defense. Cases of murder without any real defense are not uncommon. If appellant

had no other defense, should his counsel be charged for the failure of the only one available

to him? Certainly not. Moreover, defending on a wrong theory is not evidence of

incompetency. Sayre v. Commonwealth, supra. If appellant had any true defense it was his

duty to disclose it to his counsel, and if the latter was unwilling to present it, to appeal to the

court to assign him counsel who would. He cannot wait until after his conviction and expect

to have another trial on another theory of defense by shifting the blame for the one which

failed upon his counsel. Sayre v. Commonwealth, supra. While counsel for appellant may not

have been as skillful in the examination of witnesses and in the presentation of his defense as

some other attorney may have been, it does not appear from a careful examination of the

entire record that his management resulted in an unfair trial. There is nothing in the record to

indicate that the jury was obtained, or the trial concluded, with undue haste.

11. As previously stated, it appears from the record that no objections were taken on the

trial of the case to questions which elicited evidence now claimed to have been improper and

prejudicial. The question of the admissibility of such evidence is therefore not before us on

this appeal. This court has so held in a number of cases, civil as well as criminal. Sharon v.

Minnock, 6 Nev. 377; State v. Jones, 7 Nev. 408; State v. Murphy, �'��6�7


9 Nev. 394; State v. C.V.M. Co., 13 Nev. 194; State v. Lawrence, 28 Nev. 440, 82 P. 614;

Karns v. State Bank & T. Co., 31 Nev. 170, 101 P. 564; State v. Williams, 31 Nev. 360, 102

P. 974; State v. Mangana, 33 Nev. 511, 112 P. 693; State v. Clarke (Nev.) 228 P. 582.

Stress is placed upon the fact that it is a capital case. The rule we have stated of not

considering objections to the admissibility of evidence made for the first time on appeal has

been uniformly adhered to in capital cases by this court. State v. Murphy, supra; State v.

Williams, supra; State v. Mangana, supra. It is a necessary rule of procedure. Not only would

it be unfair to the trial court to reverse for errors not called to its attention by a proper

objection, but it would also deprive the opposite party of an opportunity to obviate the

objection. Sharon v. Minnock, supra. We see no reason for a departure from the rule in this

case.

12. Objection is taken to instruction No. 5 given to the jury. The instruction reads:

“There are certain kinds of murder which carry with them evidence of premeditation and

deliberation. These the legislature has enumerated in the statute, and has taken upon itself the

responsibility of saying that they shall be deemed and held to be murder in the first degree.

These cases are of two classes: First, where the killing is perpetrated by means of poison, or

lying in wait, or torture, or any other kind of willful, deliberate and premeditated killing, and

here the means used is held to be evidence of premeditation and deliberation.”

It is urged that the words, “and here the means used is held to be evidence of

premeditation and deliberation,” could have been susceptible of but one meaning to the jurors

which was that the court was referring to the case on trial, and meant to tell them that the

pistol used by appellant was evidence of premeditation and deliberation. We do not think that

it was misleading in this respect. The court was not talking about the evidence in the case but

was attempting to classify certain kinds of murder of the first degree, and the word “here”

was ��


used to refer to the class stated. The classification, however, is not clearly drawn, for two

different classes of murder of the first degree are really stated as one. But this ambiguity,

occurring as it does in an abstract instruction, could not have been harmful, even if appellant's

contention of its meaning to the jury were conceded. The means used in this case did tend to

show deliberation and premeditation, but the jury was correctly instructed, in another

instruction directly referring to the case, that deliberation and premeditation must be proven

beyond all reasonable doubt before the defendant could be convicted of murder in the first

degree. In regard to the evidence of drunkenness the court instructed as follows:

Instruction No. 29. “You are instructed that in order to find the defendant guilty of murder

in the first degree, you must find from the evidence, beyond all reasonable doubt, that the

murder was perpetrated by willful, deliberate and premeditated killing. This ingredient of

deliberate premeditated killing must be clearly shown and proven beyond all reasonable

doubt. It is not sufficient that you think that the killing was deliberate and premeditated, the

evidence must convince you of that fact to an abiding certainty and beyond all reasonable

doubt. The evidence of deliberation and premeditation must be such as to convince you that

the deliberate premeditated design and purpose to murder was knowingly and intentionally

formed and considered in the mind of the defendant and meditated upon before the fatal shot

was fired; and, in considering whether such a design was formed in the mind of the

defendant, you should consider the evidence, if any, of drunkenness. If the defendant was

drunk at the time, and was too much intoxicated to form such a deliberate and premeditated

purpose, he cannot be found guilty of murder in the first degree. It is true that drunkenness is

no excuse for the commission of an offense, but nevertheless the jury must consider the

evidence of drunkenness and determine whether it was sufficient to so cloud the mind of the��


defendant as to interfere with the formation of deliberate and premeditated purpose to kill. If

the drunkenness was sufficient to create a reasonable doubt in your minds as to the existence

of such a deliberate premeditated purpose, you cannot find the defendant guilty of murder in

the first degree.”

Instruction No. 30. “You are instructed that it is a well settled rule of law that drunkenness

is no excuse for the commission of a crime. Temporary insanity, produced by intoxication,

does not destroy responsibility, when the party, when sane and responsible made himself

voluntarily intoxicated; and drunkenness forms no defense whatever to the fact of guilt, for,

when a crime, committed by a party while in a fit of intoxication, the law will not allow him

to avail himself of his own gross vice, and misconduct to shelter himself from the legal

consequences of such crimes, evidence of drunkenness can only be considered by the jury for

the purpose of determining the degree of the crime, and for this purpose, must be received

with great caution, you should discriminate between the conditions of mind merely excited by

intoxicating drink yet capable of forming a specific and deliberate intent to take life, and such

a prostration of the faculties as renders a man incapable of forming intent or of deliberation or

premeditation. If an intoxicated person has the capacity to form the intent to take life, and

conceives and executes such intent, it is no ground for reducing the degree of his crime that

he was intoxicated to conceive it, or to conceive it more suddenly by reason of his

intoxication.”

13. Exception is taken to instruction No. 30, wherein the court said that evidence of

drunkenness “must be received with great caution.” The two instructions together correctly

state the law on this phase of the case. In the case of State v. Johnny, 29 Nev. 203, 87 P. 3,

practically the same instructions were given and approved by this court, in which the jury was

twice told that evidence of drunkenness should be received with great caution. See, also, State

v. Thompson, 12 '��%7��-<B�� !��1

%7�#��


Nev. 140, in which an instruction was approved which stated that:

“Evidence of drunkenness can only be considered by the jury for the purpose of

determining the degree of the crime, and for this purpose it must be received with caution.”

14. It is a general rule that in cases of homicide evidence of drunkenness should be

received with caution. 29 C.J. p. 1061; State v. Hawkins, 23 Wash, 289, 63 P. 258; People v.

Vincent, 95 Cal. 425, 30 P. 581; People v. Calton, 5 Utah, 451, 16 P. 902; U.S. v. Meagher

(C.C.) 37 F. 875.

15. When evidence is of such character that its weight may be easily misjudged it is proper

for the court to advise that it should be received with great caution. State v. Streeter, 20 Nev.

403, 22 P. 758. This does not mean that it is not entitled to credit even if believed, but merely

that it should be weighed with care.

Counsel for appellant in the court below filed an opening brief, in which he assigned

certain errors, which we have considered and find to be without merit. Counsel who have

displaced him on this appeal concede that his contentions are untenable.

As there is no prejudicial error in the record, the judgment and order appealed from are

affirmed, and the district court is directed to make the proper order for the carrying into effect

by the warden of the state prison the judgment rendered.


April 7, 1926.

Per Curiam:

Rehearing denied.

____________

��49 Nev. 241, 241 (1926) State v. Randolph��

STATE v. RANDOLPH

No. 2719

January 22, 1926. 242 P. 697.

1. Homicide—Evidence Held to Show Willful, Deliberate, and Premeditated Design to Kill. Evidence held to show a willful, deliberate, and premeditated design to kill, warranting conviction of

first degree murder under Stats. 1919, c. 248.

2. Homicide—Instruction Distinguishing First and Second Degree Murder Held Not

Erroneous. Instruction as to distinction between first and second degree murder held not erroneous.

3. Homicide—Rule of Ejusdem Generis Held Not Applicable under Statute Enumerating

Acts Constituting First Degree Murder. That Stats. 1919, c. 248, provides that all murders perpetrated by means of poison, lying in wait,

torture, or any other kind of willful, deliberate, and premeditated killing, shall constitute first degree

murder, does not require application of doctrine of ejusdem generis so as to render applicable only to acts

of same general nature or class as those enumerated.

4. Homicide—New Trial for Newly Discovered Cumulative Evidence Properly Refused. New trial for newly discovered evidence as to defendant's mental condition before assault on

deceased held properly refused, where last person to see defendant before assault testified as to his

condition.

See 29 C.J. sec. 79, p. 1105, n. 41; 30 C.J. sec. 538, p. 294, n. 95; sec. 641, p. 396, n. 23; sec. 687, p. 435, n. 22.


John H. Randolph was convicted of murder in the first degree, and he appeals. Affirmed

with direction. Rehearing denied. (Sanders, J., dissenting.)

A. Grant Miller, for Appellant:

Express malice was not proved. If malice can be implied, killing is murder; if not,

manslaughter. When homicide is proved, presumption is that it is in second degree. If state

would elevate it to first degree it must show characteristics of that degree; if defendant would

reduce it to manslaughter, burden is on him. State v. Melvern, 72 P. 489.


Malice aforethought and premeditation have often been confused. Intention may be

instantaneous as successive thoughts of mind, but premeditation implies reflection for some

appreciable time, else how does it differ from sudden heat of passion, which is characteristic

of manslaughter? Malice may be presumed, intention may be inferred, but deliberate design

must be proved. Cases holding malice and premeditation may be presumed from class of

weapons used are not applicable here. Henning v. State, 55 Am. Rep. 756; 13 R.C.L. 742.

Murder in second degree has all elements of murder in first degree except deliberation.

State v. Darling, 97 S.W. 592.

To constitute first degree, killing must be deliberate and premeditated. State v. Hunt, 47

S.E. 49.

Long period of habitual intoxication or narcotic stupefication may extenuate. Instant

condition to such degree that nonresponsibility can be predicated will preclude any

presumption of premeditated design. It was error to deny application for new trial on ground

of newly discovered evidence showing such condition. People v. Gerdvine, 104 N.E. 129;

Cooke v. State, 35 S. 665; Rev. Laws, 6282; Roberts v. People, 19 Mich. 423.

There is grave doubt as to exact cause of death. Most likely cause is blood clot on brain

caused by fall to floor, not blow of fist.

M. A. Diskin, Attorney-General; L.D. Summerfield, District Attorney, and H.L. Heward,

Assistant District Attorney, for state:

Express malice was clearly proved. Defendant said, “I will kill you. I will kill you,” while

beating his prostrate mother.

In this state, premeditation and deliberation do not have separate meanings, but are

synonymous. State v. Lopez, 15 Nev. 407. They may be inferred from circumstances of crime

where facts show, as matter of logic, deliberate intent. Decision on question is peculiarly��!��%*��)�� @��C%%��D��


within province of jury. 1 Wharton Criminal Law (11th ed.), sec. 507; 30 C.J. 142; 13

R.C.L. 768; State v. Millian, 3 Nev. 409.

“Any other kind of willful, deliberate and premeditated killing” is totally separate

classification from “all murder which shall be perpetrated by means of poison, etc.,” and

principle of ejusdem generis does not apply. 29 C.J. 1105; People v. Vinunzo, 180 N.W. 502.

Applications for new trials on ground of newly discovered evidence are viewed with

suspicion. Such applications are not granted as matter of right, but lie in sound discretion of

court. Such evidence must in fact be new, not merely cumulative or impeaching. Due

diligence must be shown. State v. Wilberg, 45 Nev. 192; Stats. 1917, 423; 16 C.J. 1182.

To render slayer guiltless of higher degree, intoxication must have made him utterly

incapable of forming intent. If person has any intent or does any premeditating, he is guilty of

higher degree. Case of People v. Leonardi, 38 N.E. 372, holding there need not be entire lack

of intent represents minority view. How can there be a fractional part of intent? Condition of

mind merely excited by intoxicating drink yet capable of forming specific intent is

distinguished from such prostration of faculties as renders forming of intent impossible. State

v. Johnny, 29 Nev. 203; 16 C.J. 108; 29 C.J. 1060.

Insanity in this state is affirmative defense to be proved by defendant by preponderance of

evidence. State v. Lewis, 20 Nev. 333. Burden of proving mitigation is on defendant. Rev.

Laws, 6399.

OPINION


John H. Randolph was convicted of murder in the first degree. A motion for a new trial

having been denied, he has appealed from the sentence inflicting the death penalty and from

the order denying his motion for a new trial.

Three points have been made to support the contention ��!�� 2�-


that the judgment and order should be reversed, viz.: First, that the trial court erred in

instructing the jury as to the distinction between first and second degree murder; second, that

the verdict is contrary to the evidence; and third, that a new trial should have been granted

because of newly discovered evidence.

The evidence shows that the defendant is a man about 45 years of age; that he had long

been addicted to the use of drugs, and on two or three occasions had been committed for

treatment for the habit. It further appears from the testimony that on or about the night of June

30, 1925, he was residing with his mother in Reno, Nevada, and about 1:30 a.m. went home

in an intoxicated condition and was helped into the house by one Gaffney; that he found his

way into his mother's room where she was in bed; that he requested her to get up and make

him a cup of coffee, and was told that she was sick and could not do it. He then requested her

to get up and help him undress for bed, to which she replied that she was too sick, but she

finally started to get out of bed to help him, at a moment when he began to use vile language

toward her, whereupon she threw a glass of water in his face. He then assaulted her, knocking

her down. He then jumped on her and caught her by the throat and was in the act of choking

her, declaring, “I will kill you; I will kill you,” when roomers in the house came in and pulled

him off. His mother was a woman weighing about 350 pounds and was between 70 and 75

years of age. At the request of the mother, the police were called. When they arrived, he went

to his mother and asked her to tell them it was all a mistake. She replied, “Not this time.” She

was removed to a hospital, where she died three days later, the autopsy showing several

bruises about the head and body. It appears he had kicked her in the abdomen. The immediate

cause of death was the injuries received on the head.

The only evidence introduced in behalf of the defendant was that going to show his years

of dissipation and the effect thereof upon his physical and mental ��


condition. There was no evidence to the effect that he was, or had ever been, insane.

1. We will first consider the second contention. Our statute defines murder to be 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 it may be occasioned.

Express malice is that deliberate intention unlawfully to take away the life of a fellow

creature which is manifested by external circumstances capable of proof. In 1919 the

legislature enacted:

“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.” 1919 Stats. p. 468.

Counsel for defendant concedes that malice might have been implied by the jury but

contends, as we understand him, that it must have been proven that the killing was willful,

deliberate, and premeditated before the jury could have been justified in bringing in a verdict

of murder of the first degree, and that there was no such proof. Just how counsel thinks

deliberation and premeditation should be proven is not made clear. One thing is evident,

however, and that is, if we accept his theory, proof of deliberation and premeditation could

never be made in a case depending entirely upon circumstantial evidence. But it does not

seem that it should be necessary to determine his contention, for it seems there is positive

evidence in this case of a willful, deliberate, and premeditated design to kill. Defendant

assaulted his mother, kicking her in the abdomen and knocking her down, got upon her, and

while in the act of choking her, said, “I will kill you; I will kill you.”


This utterance, we must presume, was the expression of his real design. His mother died three

days later as the result of his misconduct. To us it seems that no clearer case of willful,

deliberate, and premeditated design to kill can be conceived. It is true that the immediate

cause of death was the blows on the head, but the assault continued up to the moment the

defendant was pulled off of the deceased, and his utterances during the making of the assault

showed the state of mind of the defendant.

2. We will now take up the contention that the court erred in giving instruction No. 2,

which reads:

“The court instructs the jury that, in dividing murder into two degrees, the legislature

intended to assign to the first, as deserving of greater punishment, all murders of a cruel and

aggravated character, and to the second all other kinds of murder, which are murder at

common law, and to establish a test by which the degree of every case of murder may be

readily ascertained. That test may be thus stated: Is the killing willful (that is to say,

intentional), deliberate, and premeditated? If it is, the case falls within the first, and, if not,

within the second, degree. There are certain kinds of murder in which the legislature makes

the malice which is implied from the circumstances of the killing, whether voluntary or not,

to stand in the place of that express malice—the deliberate intention unlawfully to take away

the life of a fellow creature—which is, in all other cases, essential to the crime of murder in

the first degree; these the legislature has enumerated in the statute, and has taken upon itself

the responsibility of saying that they shall be deemed and held to be murder of the first

degree. These cases are of two classes: First, where the killing is perpetrated by means of

poison, etc.; the second is where the killing is done in the perpetration, or attempt to

perpetrate, some one of the enumerated felonies. Where the case comes within either of these

classes, the test question, ‘Is the killing willful, deliberate, and premeditated?' is answered by

the statute itself, and the jury have no option but to find the prisoner ��


guilty in the first degree. Hence, so far as these two cases are concerned, all difficulty as to

the question of degree is removed by the statute. But there is another and much larger class of

cases included in the definition of murder in the first degree, which are of equal cruelty and

aggravation with those enumerated, and which, owing to the different and countless forms

which murder assumes, it is impossible to describe in the statute. In this class the legislature

leaves the jury to determine, from all the evidence before them, the degree of the crime, but

prescribes for the government of their deliberation the same tests which have been used by

itself in determining the degree of the other two classes, to wit, the deliberate and

preconceived intent to kill. It is only in the latter class of cases that any difficulty is

experienced in drawing the distinction between murder of the first and murder of the second

degree, and this difficulty is more apparent than real. The unlawful killing must be

accompanied with a deliberate and clear intent to take life in order to constitute murder of the

first degree. The intent to kill must be the result of deliberate premeditation. It must be

formed upon a preexisting reflection, and not upon a sudden heat of passion sufficient to

preclude the idea of deliberation. There need be no appreciable space of time between the

intention to kill and the act of killing; they may be as instantaneous as successive thoughts of

the mind. It is only necessary that the act of killing be preceded by a concurrence of will,

deliberation, and premeditation on the part of the slayer; and, if such is the case, the killing is

murder in the first degree, no matter how rapidly these acts of the mind may succeed each

other, or how quickly they may be followed by the act of killing.”

3. In the case of State v. Harris, 12 Nev. 414, a very similar instruction was given, and,

though a portion of it was criticized, it was not held erroneous. The instruction in the instant

case was drawn to meet the criticism in the Harris Case. The instruction was again assailed in

State v. Hymer, 15 Nev. 49, and in State v. Gee Jon, 7E'��7%?


46 Nev. 418, 211 P. 676, 217 P. 587, 30 A.L.R. 1443, in each of which it was held that the

instruction was not prejudicial. It is settled in this state that such an instruction is not

erroneous, and we decline to consider the matter further. In this connection we may state that,

though it does not seem to be made as a real ground for reversal of the judgment, something

is said to the effect that, under the rule of ejusdem generis, the portion of the statute which

provides, “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,” is limited to murder

committed by means of poison, lying in wait, or torture. Such is not the law. The correct rule

is stated in 29 C.J. 1105, as follows:

“The fact that the statute provides that all murders which shall be perpetrated by means of

poison or lying in wait or any other kind of willful, deliberate, and premeditated killing shall

constitute murder of the first degree does not require the application of the doctrine of

ejusdem generis so that it shall be construed as applicable only to acts of the same general

nature or class as those enumerated.”

See, also, People v. Vinunzo, 212 Mich. 472, 180 N.W. 502; People v. Bealoba, 17 Cal.

389; Com. v. Jones, 1 Leigh (28 Va.), 598.

4. Did the court err in refusing to grant a new trial upon the ground of newly discovered

evidence? We think not. The evidence sought to be introduced goes simply to the mental

condition of the defendant some time prior to the assault, ranging from two hours and a half

to a few minutes. At most this evidence could be only cumulative, since the witness Gaffney

was the last person to see the defendant prior to the making of the assault and he testified to

the condition of the defendant when he helped him into the house. The ruling of the trial court

was right.

No error appearing, it is ordered that the judgment and order appealed from be affirmed,

and that the district court make the proper order for carrying into ��!��


execution by the warden of the state prison the judgment rendered.


Sanders, J., dissenting:

This homicide was unusual, because of the relations of the parties and the character of the

deed. It was matricide; i.e., the murder of a mother. The defendant did not deny the killing,

but interposed and sought to establish the defense of toxic insanity, brought about by the long

continued use of morphine and alcoholic stimulants, combined with a chronic case of

syphilis.

The jury having found the defendant mentally responsible for his act, the only question for

their determination was the degree of the crime; yet I observe from this record that, when the

jury retired to consider the case, they were given 27 instructions and 7 forms of verdicts; why,

I do not understand. A more ragged record in a capital case has never reached this court.

Bare proof of an unlawful killing does, it is true, establish prima facie a case of murder,

but only murder in the second degree. If the state demands a verdict of murder of the first

degree, the burden is upon it to prove beyond a reasonable doubt some facts or circumstances

from which it may be rationally inferred that there was on the part of the defendant a

deliberate purpose to take the life of the deceased. The question of the degree of the crime is

exclusively for the jury, and their determination will not be disturbed when there is any

evidence to support it. I shall therefore, confine myself to a discussion of the single question

of the sufficiency of the evidence to establish murder of the first degree.

In a case of homicide, the relations existing between the parties are worthy of much

consideration. Undoubtedly where the party slain is a parent (particularly a mother), or some

near friend or relative, and no particular cause for the act is assigned, it raises a fair

presumption that it was due to insane impulse or misadventure. Dean's Medical

Jurisprudence, 577; Wharton's Crim. Law (11th ed.), sec. 158. “The mere �� 1


motiveless destruction of life can with difficulty be regarded as the act of a sane mind.” We

look in vain for a motive on the part of this defendant to take the life of his mother. The jury,

in finding the defendant guilty of murder in the first degree, obviously ignored the relations of

the parties, and apparently were not influenced by the fair presumption that his act was the

result of an insane impulse, but, on the contrary, must have inferred from his violence, taken

in connection with his exclamation, “I will kill you; I will kill you,” that he designed to effect

the death of his mother. Such I concede might be the natural inference in the absence of

surrounding circumstances repelling the idea.

The relations between the parties were such that they occupied the same room in the

lodging or rooming house owned and conducted by the deceased in Reno, Nevada. The

defendant was unfit for any employment, and was supported by his mother. The evidence

tends to show that he was a physical wreck. We know nothing of their mode of living, but the

inference is that the defendant was, in fact, a man child. He came home in the early morning

hours of June 30, 1925, in such an intoxicated condition that he had to be assisted into the

house and to his room, where he was left on a couch. His mother refused to get up and make

him a cup of coffee and to undress him for bed, and, because of his abusive epithets, threw a

glass of water upon him; she then started to call for help. The defendant in a temper struck

her a blow on the head with his fist that knocked her to the floor. He then beat and kicked her.

Neighboring roomers hearing a noise emanating from the room entered and found the

defendant with his knees upon his mother's stomach and his hands to her throat, exclaiming,

“I will kill you; I will kill you.” The mother died on the 2d of July, 1925.

Assuming this account as given by the deceased to a third party of the assault made upon

her by the defendant was true, and that it was properly admitted in evidence, a question upon

which I express no opinion, the ��


inference is irresistible that the killing was the result of an insane impulse or of the unusual

and unnatural excitement under which the defendant labored. The defendant used no weapon;

all he did to the deceased was with his fists and feet. Undoubtedly the act was cruel and

malignant, but, in my opinion, there is absolutely no evidence from which it can rationally be

inferred that there was any deliberate intention on the part of the defendant to take the life of

his mother. The testimony of the autopsy surgeon shows that death was caused from a

hemorrhage on the brain produced by some blunt force which caused a shaking of the brain,

enough to tear one of the blood vessels. There was no fracture of the skull and no marks on

the head. There were, however, a number of blue spots on the body, and both lids of the left

eye were discolored.

It is argued that the blow with the fist followed by beating and kicking, taken in

connection with the exclamation, “I will kill you; I will kill you,” warranted the jury in

finding the existence of deliberation. I am of opinion that under the circumstances this

exclamation, instead of being indicative of deliberation, accentuates the fact that the

defendant was laboring under a frenzy produced by anger.

I concede that “uncontrollable or irresistible impulse,” beginning on the eve of the

criminal act and ending with its consummation, has no legal standing as a defense to crime;

but it should be remembered that, while “irresistible impulse,” the mind being sane, is no

defense to crime, yet violent passion is to be taken into account as a mitigating element, since

the law treats assaults committed in hot blood as of a lower grade than those committed

deliberately. Wharton & Stille's Med. Jur. (5th ed.), vol. 1, sec. 194. Evidence of

circumstances of provocation, as tending to arouse passion, is admissible in mitigation of the

crime under certain conditions as to disprove premeditation. This is especially so where it is

not certain whether accused designed to effect the death of deceased and his act was not one ��


likely to cause death. 30 Corpus Juris, 224, sec. 456. I concede that there was no provocation

in this case sufficient to excite a rational or sane person to do an unlawful act; but, however

trivial the provocation may have been, the defendant in a frenzy of anger made a cruel and

malignant assault upon his mother, whom it was his duty to shield and protect. Every fact and

circumstance attending the killing, in my opinion, refutes the state's position that the law may

infer deliberation from the peculiar cruelty of the deed, and takes this case without the rule

established by those extreme cases cited by Wharton in support of the text that the killing

under circumstances of great atrocity warrants an inference of malice, premeditation, and

deliberation. Wharton on Homicide (3d ed.), sec. 151. Under a statute which divides murder

into two degrees I have been unable to find a case like the present where the accused was

convicted of murder in the first degree.

There is another view which may, and I think should, be taken of this case. The

defendant's life from childhood was before the jury. I shall not review it. Suffice to say that

from youth on the defendant wandered through life in both “moral and intellectual darkness,”

making his own path. For twenty years prior to the homicide he was a confirmed morphine

fiend. He had been twice committed to the Nevada State Hospital for Mental Diseases for

having narcotic drugs in his possession, once in 1922 and once in 1924. It is conceded that for

three for four years prior to the homicide he was an habitual user of intoxicating liquors,

ostensibly of bootleg manufacture, commonly conceded to be a predisposing cause of toxic

insanity. For the past ten years the defendant had been treated intermittently for syphilis. It is

true the state, in rebuttal, produced evidence tending to show that the defendant at the time of

the homicide was mentally responsible for his act, but the fact that he was so responsible did

not make the killing murder of the first degree. Morphine, alcohol, and syphilis have much to

do with the genisis of all ��


forms of mental disease. True, the mere use of morphine or alcohol is no excuse for crime,

but it must be conceded that the long-continued use thereof produces serious disturbances of

the central nervous system. Mental derangement is a common effect of the long-continued

use of these poisons, and crime is its unfortunate accompaniment. See discussion of “toxic

insanities” in “A System of Legal Medicine” (Hamilton and Others), vol. 2, 205.

If it be conceded that one afflicted as the defendant was never loses the power to

distinguish between right and wrong, and is at all times master of himself and may control his

actions, still his mind may be enfeebled, and the power of his will weakened, so that he will

readily yield to the influence of the least and most trivial provocation without that willful,

deliberate, and premeditated malice which is essential to constitute murder in the first degree.

Anderson v. State, 43 Conn. 526, 21 Am. Rep. 669. Conceding that this defendant could

distinguish between right and wrong, still the best evidence that his mind was enfeebled and

his will weakened by disease is that, without any sufficient provocation, justification, or

excuse, he committed an act of violence upon his mother which resulted in her death. If there

is no mental disease, one who commits a homicide in a frenzy produced by anger, although

he may be unable to control himself, is fully responsible for the homicide. 29 Corpus Juris,

secs. 16, 1056. But, in a case like the present, where the accused is shown to be afflicted with

disease which leads to a degeneration of the entire nervous system and to mental imbecility,

the jury, in fixing the degree of the crime, should make allowance for his enfeebled mind and

weakened will.

Upon a careful consideration of all the evidence, I am of opinion that it did not warrant the

jury in finding the existence of the deliberation and premeditation necessary to constitute the

highest degree of felonious homicide. I therefore register my dissent from the order directing

the court below to make the proper order ��!��


for carrying into effect the judgment sentencing the defendant to the lethal chamber.


March 2, 1926.

Per Curiam:

Rehearing denied. (Sanders, J., dissenting.)

____________

��49 Nev. 254, 254 (1926) Sweet v. Sweet��

SWEET v. SWEET

No. 2695

March 10, 1926. 243 P. 817.

1. Divorce. Where husband is forced to leave wife on account of her cruelty, she is chargeable with “desertion”

within meaning of divorce statutes.

2. Appeal and Error—On Appeal from Judgment, Court Can Determine whether There Is

Any Evidence to Support It. On appeal from judgment, sufficiency of evidence cannot be considered, in view of Rev. Laws, 5328,

but court can determine whether there is any evidence to support judgment.

3. Divorce—Adverse Decree in Suit for Divorce for Cruelty, in which Desertion Was Not

Pleaded, Held No Bar to Suit for Desertion. Adverse decree in suit for divorce for cruelty, in which desertion was not pleaded, held no bar to later

suit for desertion, where it appeared that cause of action for desertion had not ripened when prior action

was commenced, since it is only where complainant fails to plead existing cause for divorce of which he

has knowledge that decree denying it will bar subsequent suit.

4. Judgment. One pleading former judgment as bar to present action must assume burden of proving subject matter

of two suits identical, unless such fact appears from record.

See (1, 3) 19 C.J. secs. 116-117, p. 61, n. 92, 99; sec. 439, p. 178, n. 96 (new); (2) 4 C.J. sec. 2558, p. 666, n.

17; (4) 34 C.J. sec. 1225, p. 802, n. 6; sec. 1338, p. 935, n. 30; sec. 1509, p. 1067, n. 79.


Action by William N. Sweet against Grace A. Sweet. Judgment for plaintiff, and defendant

appeals. Affirmed.

��49 Nev. 254, 255 (1926) Sweet v. Sweet��

Ayers & Gardiner, for Appellant:

In suit between same parties on same cause judgment is conclusive of all issues presented

and every other matter within issues, whether considered or not. 15 R.C.L. 962-964.

This suit upon constructive desertion is not different from Connecticut suit upon cruelty.

Constructive desertion is really legal fiction. It arose in state where cruelty is ground for

separation, desertion for absolute divorce, and has no place here, where both causes are

grounds for absolute divorce. To constitute constructive desertion, conduct must be of such

gravity as to be ground for divorce. 19 C.J. 61, n. 98; Van Dyke v. Van Dyke, 19 A. 1061;

Vickers v. Vickers, 45 Nev. 274.

Full year's desertion must be shown. Time action is pending is not counted. Hurning v.

Hurning, 83 N.W. 343; Gruner v. Gruner, 165 S.W. 865.

Refusal of sexual intercourse is not desertion but merely one element if it causes mental

anguish and impairs health. Black v. Black, 47 Nev. 346; Kelly v. Kelly, 18 Nev. 49.

It is not necessary to appeal from order denying new trial. We do not ask new trial. Only

requirement is that motion be made and determined. Rev. Laws, 5328; Gill v. Mng. Co., 43

Nev. 1. It would be strange requirement if litigant desiring only to reverse judgment and does

not want new trial could get relief only by appealing from order denying motion for new trial.

Our motion for new trial was not based on Rev. Laws, 5322, subdivision 7, but on Rev.

Laws, 5320, subdivision 6—insufficiency of evidence and that judgment is against law. As

matter of fact, a brief argument was made, though common practice is not to make argument

if to do so seems useless.

Of what use is statutory right to bill of exceptions upon appeal from judgment. (Stats.

1923, 163) if it cannot be used at all? We did not offer it to disclose errors, but to present

testimony to show its insufficiency and contrarity of judgment to law.

��49 Nev. 254, 256 (1926) Sweet v. Sweet��

Contradictory statements in various sworn complaints cannot be excused because of

change of counsel.

Opposed to Lister v. Lister, 111 Mass. 327, weight of authority is that misconduct causing

separation is sufficient, after lapse of sufficient time, to charge offending spouse with

desertion, where it constitutes ground for divorce. 19 C.J. 61; Van Dyke v. Van Dyke, supra.

Respondent's “much cited case directly in point,” Rand v. Rand, does indeed support his

contention, and is only case which does, but it is not mentioned in Shepherd's Citations,

Keezer, or Bishop, but is sporadic case entirely ignored by later decisions.

Platt & Sanford, for Respondent:

By stipulation appeal from order denying motion for new trial was dismissed. However,

so-called transcript on appeal, including testimony, was filed subject to be stricken.

Appellant's failure to file memorandum of errors prevents this court from considering

them. Rev. Laws, 5322.

Very purpose of motion for new trial, to give court opportunity to correct errors, is

nullified when movant submits mere pro forma motion without argument or attempt to

convince court. Such motions are always summarily overruled.

Connecticut judgment is not bar. This suit is based on desertion, not cruelty. Cause did not

and could not arise in Connecticut.

Black v. Black should be reversed, but nothing in it should preclude this court, in

accordance with very respectable authority from holding that denial of intercourse by wife in

good health, coupled with utter failure to perform household duties, which caused husband to

leave home, constitutes constructive desertion.

Justifiable desertion may be based upon cruelty which would not warrant divorce. Keezer,

Marriage and Divorce, 252; 9 R.C.L. 364.

Desertion may exist though both parties live under ��

��49 Nev. 254, 257 (1926) Sweet v. Sweet��

same roof. Baker v. Baker, 195 P. 347. Party who intends to end cohabitation commits

desertion regardless of who leaves home. Hudson v. Hudson, 51 S. 857.

Pendency of Connecticut proceedings did not interfere with running of statute. 9 R.C.L.

361; Easter v. Easter, 73 A. 30.

Former decree is not conclusive of matters not involved therein. Wulke v. Wulke, 183

N.W. 349.

Burbank v. Rivers, 20 Nev. 51, is conclusive that because appeal is from judgment only

this court has no jurisdiction to consider alleged errors, and it outlines procedure invariably

followed. It shows purpose of motion for new trial. Without appeal from order denying

motion for new trial, order becomes final. That appellant does not want new trial does not

justify him in departing from statutory method of taking appeal.

Effinger v. Effinger, 48 Nev. 208, settles question whether Burbank v. Rivers is sui

generis, holding when right of trial by jury is given in divorce actions verdict is conclusive as

in action at law and can be set aside only by granting new trial.

Findings support judgment. Judgment should be affirmed.

OPINION


1. This was an action for divorce brought by the husband upon the ground of wilfull

desertion based upon alleged acts and conduct of the defendant damaging to the plaintiff's

health, and which rendered cohabitation intolerable and unsafe. We shall not particularize the

charges made in the complaint against the defendant. Suffice it to say that, after a hearing

upon the pleadings and evidence, judgment was rendered in favor of the plaintiff because of

the defendant's constructive desertion; that is to say, the acts and conduct of the defendant

were such as to justify the plaintiff in leaving the home of the parties, and to confer upon

plaintiff the right to obtain a divorce, upon the well-recognized principle that, where the

husband or wife is forced to leave ��

��49 Nev. 254, 258 (1926) Sweet v. Sweet��

the other on account of his or her cruelty, the offending spouse is chargeable with desertion

within the meaning of the divorce statutes. 9 R.C.L. sec. 149, p. 362.

The defendant moved for a new trial upon the ground of the insufficiency of the evidence

to justify the decision and that the decision was against law. The motion was overruled. The

defendant gave notice of appeal from the order overruling said motion for new trial, but did

not perfect her appeal. The case is here upon the defendant's appeal from the judgment.

2. The first question presented is one of practice. The bill of exceptions, duly certified and

made a part of the record, is a transcript of the proceedings in the court below. Relying upon

the provisions contained in section 386 of the practice act (section 5328, Revised Laws),

counsel for appellant insist that this court may upon an appeal from a judgment review the

evidence to determine whether it supports the judgment. Counsel for respondent object to our

reviewing the evidence for this or any purpose, and insist that, the appeal having been taken

from the judgment, we cannot pass upon the sufficiency of the evidence, and, unless the

invalidity of the judgment appears upon the face of the judgment roll, the judgment must be

affirmed. We agree with counsel for respondent to this extent—that we cannot consider the

sufficiency of the evidence, because the appeal is from the judgment, and not from the order

overruling the defendant's motion for a new trial. We are of opinion, however, that, upon

exceptions to a judgment, and upon appeal therefrom, we can examine the evidence to

determine the legal question whether there is any evidence to support the judgment.

3. Upon an examination of the evidence we conclude that there is but one question with

respect to the alleged invalidity of the judgment that is worthy of discussion. It appears from

the answer of the defendant that the marital domicile of the parties was in the state of

Connecticut; that the plaintiff brought a suit in that jurisdiction against the defendant for a

divorce, upon the ��<�� 1

��49 Nev. 254, 259 (1926) Sweet v. Sweet��

ground of “intolerable cruelty.” The suit was decided adversely to the plaintiff by the

Supreme Court of Connecticut, and was dismissed pursuant to its order. Sweet v. Sweet, 118

A. 36, 97 Conn. 693. The plaintiff then left Connecticut, and came to Reno, Washoe County,

Nevada. After residing there for the statutory period of six months, he commenced this action

for a divorce upon the ground of willful desertion based upon alleged cruelties of the

defendant of such nature as to compel the plaintiff to leave the defendant. The defendant

denied the allegations of the complaint, and for a defense set up in her answer the former

judgment as a bar or estoppel of the plaintiff's right to maintain this action for desertion.

The court's finding with respect to the issue of res judicata is as follows:

“That the right of plaintiff to a decree of divorce from the defendant on the ground of

desertion cannot be barred by the Connecticut court action upon the ground that the cause of

action alleged in the second amended complaint herein had accrued under the laws of Nevada

prior to the commencement of the Connecticut action for ‘intolerable cruelty'; the desertion

cause not having ripened under the Connecticut laws at the time of instituting the latter

proceeding.”

The court's conclusion of law from this finding is as follows:

“That said Connecticut judgment is not a plea in bar and defense to the complaint of the

plaintiff herein, or to the alleged cause of action for desertion set out in plaintiff's second

amended complaint herein, nor a final or other adjudication of said cause of action herein.”

4. It is held in numerous cases that the party pleading a former judgment as a bar to the

present action must assume the burden of proving, if the fact does not appear from the record,

that the subject matter or cause of action in the former suit was identical with that now in suit.

23 Cyc. 1534.

It is obvious that there is no identity between a cause ��

��49 Nev. 254, 260 (1926) Sweet v. Sweet��

of action for a divorce for cruelty and a cause of action for divorce for desertion. They form

separate and distinct issues governed and controlled by different rules of evidence, and each

constitutes a separate and distinct statutory ground for divorce under the laws of both

Connecticut and Nevada. The fact that the plaintiff's former suit for intolerable cruelty was

dismissed for insufficiency of proof is no bar to the present action for desertion, even though

the defendant's acts and conduct were of such nature as to cause the separation.

It is only where several causes of divorce exist to the knowledge of the complainant and a

divorce is sought upon one ground only that a decree on the merits denying the petition is

held a bar to a subsequent petition based on another of such existing causes. 9 R.C.L. sec.

165, p. 375. And so, when the plaintiff's original action for intolerable cruelty was dismissed

for insufficiency of proof, the plaintiff could not maintain this action for desertion, if known

to him when the first suit was brought, without showing a sufficient reason for its

nonallegation in such suit. 9 R.C.L. sec. 165, p. 375. But it appears affirmatively from the

pleadings, supported by the findings in this case, that the plaintiff's action for desertion had

not ripened when the prior action was commenced. Consequently, the former judgment is no

bar to this action either upon the ground that the causes of action are identical or that the

causes of action existed and were known to the plaintiff when the original suit was brought.

We have examined the evidence to determine whether there is any legal evidence to

support the judgment, and, being of the opinion that there is, the judgment is affirmed.

____________

��49 Nev. 261, 261 (1926) Nicora v. Cerveri��

NICORA v. CERVERI

No. 2705

April 5, 1926. 244 P. 897.

1. Automobiles—Evidence Held to Support Finding of Negligence in Driving AutomobileAround Curve, Causing Injury to Passenger.

Where defendant's automobile approached curve at excessive speed, and, in rounding it, skidded and

struck guy wire six feet from road, injuring a guest passenger, evidence supported finding that defendant

was negligent, and that his negligence was proximate cause of the injuries.

2. Appeal and Error. Credibility of witnesses is for the trial court.

3. Automobiles. Invited automobile guest must exercise ordinary care for own safety.

4. Automobiles. Ordinary care by guest in automobile depends on facts.

5. Automobiles—Evidence Held to Support Finding Guest in Automobile Skidding on Curve

was Free from Contributory Negligence. Where a guest passenger, riding in rear seat of defendant's car, was injured when car, in rounding a

curve, skidded on to a guy wire near edge of road, evidence supported finding that passenger was free

from contributory negligence.

6. Negligence—Negligence of Automobile Driver Held Not Imputable to Passenger. Where an invited passenger, riding in defendant's car, was injured on a pleasure trip, held that

defendant's negligence was not imputable to her on theory of joint enterprise, since she did not have equal

right to direct route and manner of going.

7. Damages. Award of $3,600 to married woman for injured finger, causing permanent stiffness, and fractured

pelvis, causing shortening of leg and permanent lameness, held not excessive.

See (1, 3, 4, 5) 28 Cyc. p. 41, n. 46 (new); p. 47, n. 20; p. 48, n. 28; (2) 4 C.J. sec. 2833, p. 484, n. 36; (6) 29

Cyc. p. 543, n. 9; p. 549, n. 50; p. 550, n. 55; (7) 17 C.J. sec. 408, p. 1091, n. 85.


Action by Lazzaro Cerveri and Teresa Cerveri against A. Nicora. From a judgment for

plaintiffs, defendant appeals. Affirmed.


W. M. Kearney, for Appellant:

Where driver heeds request of guest to go fast, management of car is concurrent act of

driver and guest, they are engaged in joint enterprise, negligence of driver is imputed to guest,

and he cannot recover damages if injury results. Langley v. S.R. Co., 101 S.E. 286; Routledge

v. Auto Co., 95 S.W. 749.

Where guests knows danger but remains silent and makes no effort to reduce it, he is

guilty of contributory negligence. Bauer v. Tougaw, 224 P. 20; Hardie v. Barrett, 101 A. 75.

Law frowns upon one who laughs in face of danger but, after being injured, seeks to blame

creator of such danger. City v. Thuis, 63 N.E. 315; Bush v. R.R. Co., 64 P. 624.

Guest in car driven at excessive speed should caution driver of danger; protest against it,

and unless delivered from it, should quit car, if that may be done with safety, or direct vehicle

to be stopped, and when stopped, get out. Clark v. Traver, 200 N.Y.S. 52; Jepson v. C.S. Ry.,

129 N.Y.S. 233.

Findings of trial court are not necessarily binding on court of review, but may be set aside

when clearly against weight of evidence if productive of injustice. Thuringer v. Traston, 144

P. 866; Burch v. S.P. Co., 32 Nev. 75.

Res ipsa loquitur cannot apply when facts are observed and testified to. Then there is no

occasion for inference. Baldwin v. Smitherman, 88 S.E. 854; Hennekes v. Beetz, 217 S.W.

533.

S. H. Rosenthal and L.D. Summerfield, for Respondents:

Being successful in lower court, we should have evidence considered as proved, under

elemental rule that where evidence conflicts, findings will not be disturbed.

Driver is liable for negligence causing injury to guest. Huddy on Automobiles (6th ed.),

sec. 678; Babbitt, Motor Vehicles (3d ed.), sec. 1598.


Unreasonable speed is in itself negligence. Huddy, sec. 305; Babbitt, sec. 1308.

Losing control through excessive speed on curve shows negligence. Huddy, sec. 326;

Berry (4th ed.), sec. 160.

Res ipsa loquitur has been applied in similar situation. Lawrence v. Pickwich Stages, 229

P. 885.

Decisions are not consistent as to when passenger has any control. In many cases mere

quest has no such control as to charge him with negligence at failure to protest against driver's

acts. Better authority relieves guest from stricter obligation. Drivers resent interference;

guests feel great reluctance to protest. Being invited he sits back and leaves driving to driver.

Any duty imposed on passenger should be confined to warning of danger unseen by driver, or

protesting when driving is so reckless no sane person would risk remaining in car. Babbitt,

sec. 1622.

OPINION


The court in this case awarded the respondents the sum of $3,600 as compensatory

damages suffered by the respondent Teresa Cerveri as the result of an automobile driven by

appellant, with whom she was riding as a guest, striking the guy wire of a telephone pole. The

court found that appellant was negligent, in that he was driving at an unreasonable and

excessive rate of speed around a right angle turn of the county highway in an effort to escape

from a police officer who had signaled him to stop.

The parties reside in the city of Reno. On Sunday afternoon, June 1, 1924, they went for a

ride in appellant's automobile. Appellant drove the machine, and on the front seat with him

were his younger daughter and Jose Sessano, a guest of the former. Appellant's wife, Mrs.

Cerveri, and her little daughter occupied the rear seat. They left Reno, going to Bowers

Mansion, and, ��=��4��


returning to Reno, passed through this city, and went to the city of Sparks. Here Sessano left

the automobile, and appellant started to drive back to Reno. He reached Fifteenth Street in

Sparks, and continued to where Fifteenth Street connects by a right angle turn with the county

highway leading west to Reno. There was a telephone pole about six feet north of the point

where the northern line of the county highway meets the curve. A guy wire extended from the

pole to the ground at a point the same distance north of the highway. Appellant drove around

the turn, and the right side of the automobile struck the guy wire. The impact stopped the

machine, but did not overturn it. None of the occupants were thrown from their seats, and

none were hurt, except Mrs. Cerveri, who sustained severe injuries. She was unable to get out

of the automobile, and was removed and taken to a physician in Reno. It was disclosed that

the third finger of her right hand was torn down deeply into the bone, and her pelvis was

fractured. She suffered considerable pain. She remained in the hospital for over a month, and

at the time of the trial was still being treated by a doctor. By reason of the injury to her finger

it will be permanently stiff. As a result of the fractured pelvis there is a shortening of

three-quarters of an inch or an inch of the right leg. She will always walk lame, and may

probably require the use of a cane for the rest of her life.

1. Appellant contends that the accidence was unavoidable. He testified that at no time on

his return from the place in Sparks where Sessano left the automobile to the curve on

Fifteenth Street was he traveling in excess of 25 miles an hour. Before he reached the curve

he saw two automoblies coming towards him almost abreast on the county highway about 25

feet from the curve. To avoid a collision, he was obliged to make a wide turn. He slowed

down to about 18 or 20 miles an hour, applied the brakes, and the automobile skidded striking

the guy wire.

Mrs. Nicora, the wife of the appellant, was a witness in his behalf. She did not testify as to

speed of the �� 4��


automobile in Sparks, except to say that Mrs. Cerveri was urging appellant to go faster, and

that sometimes he would go faster at her request, but slowed down on the curves.

Appellant was driving a 1923 model Buick car. Two witnesses connected with the

Heidtman Buick Agency, who had had considerable experience in driving automobiles,

testified to demonstrations made by them in driving a Buick car of the same model as

appellant's around the curve. In substance, their testimony in part was to the effect that, on

account of a certain peculiarity of the curve, an expert driver could not drive around it at a

great speed that 20 miles an hour and remain on the pavement, or faster than 25 miles an hour

without danger of overturning, and that one who was not a good driver could not hold the car

on the pavement at 20 miles an hour. One of these witnesses also testified that one could not

drive an automobile safely around the corner from C Street into Fifteenth Street at 25 miles

an hour. He said also that the tendency of an automobile making this turn would be to slide

sideways and throw up a lot of dust and dirt. This witness was the manager of the Heidtman

Buick Agency, and had sold the automobile to appellant. He testified that it had traveled

50,000 miles before it was purchased by appellant, and that a Buick car of that type, used to

that extent, could not, in his opinion, run at a greater rate of speed than about 40 miles an

hour.

Respondents contend that their evidence established the appellant's negligence, and that

they are therefore entitled to the benefit of the general rule that, where there is a conflict of

evidence, the findings of the lower court cannot be disturbed. Besides Mrs. Cerveri, four

witnesses testified on the part of respondents as to the speed with which appellant's

automobile was traveling through Sparks shortly before the accident happened. According to

them, he went up C Street and turned into Fifteenth Street. When he was about five blocks

distant from Fifteenth Street, a traffic officer whistled for him to stop and, on this failing to

obey the signal, the ��


former mounted his motorcycle and pursued him. The traffic officer testified that when he

whistled appellant was traveling about 35 miles an hour going west on C Street. When he

whistled appellant looked squarely at him and increased his speed. The officer estimated the

speed of the automobile when it reached Fifteenth Street to be between 40 and 50 miles an

hour. The officer was then about a block behind him, and was traveling between 50 and 60

miles an hour. When the officer turned into Fifteenth Street, he saw appellant's automobile at

the point where it struck the wire. This point is distant from the corner of C Street and

Fifteenth Street the length of two blocks and the width of two streets. The blocks are about

300 feet long.

Another witness for respondents, a locomotive engineer, testified that he was on the front

porch of his residence on C Street when appellant drove by. The witness saw the officer, and

heard him whistle. He estimated that appellant was traveling about 40 miles an hour. He

increased his speed when the officer whistled, and increased it as he proceeded up C Street.

He turned into Fifteenth Street. The witness judged that appellant was driving 60 miles an

hour when he turned into Fifteenth Street.

Two other witnesses saw appellant driving on Fifteenth Street. One of them testified that

the automobile was traveling between 35 and 40 miles an hour when the officer whistled. The

other said it was traveling between 40 and 45 miles an hour when he saw it, and was

increasing in speed.

The sheriff of Washoe County was a witness on behalf of respondents. He had driven from

Reno to Sparks, and was driving south on Fifteenth Street. He had nearly reached the corner

of C Street when he observed the appellant coming out of the street. He testified further that,

when appellant turned from C Street into Fifteenth Street, his car threw up a lot of dust and

came near to turning over. He judged that appellant's car was going between 35 and 40 miles

an hour when it ��


passed him and seemed to be picking up it speed as it approached him. He also saw the traffic

officer in pursuit. About 10 minutes later the sheriff returned and went to the scene of the

accident. In regard to his observations there he testified that appellant's car was right side up.

He thought that all four wheels were off the pavement, and observed no damage to the car,

except a broken windshield. “I could see,” he said, “where the car slid on the pavement for 30

or 40 feet. It looked like the same car where it slid on the pavement.”

In substance, Mrs. Cerveri testified that, after appellant let Sessano out at Sparks, he drove

very fast; that she looked at the speedometer several times, and saw it registered 55 miles;

that the automobile was traveling 55 miles an hour when it went into the ditch. She further

testified that she heard the traffic officer whistle and saw him coming behind. She testified

also that she told appellant that the police officer was right behind him and to stop; and the

appellant replied: “I know the police officer is coming up, and I want to go faster, so I won't

pay no fine.” She said that he did go faster. Clearly, the foregoing summary presents a

conflict of evidence with substantial evidence supporting the finding of the court on the issue

of appellant's negligence.

No witness testified as to how rapidly the automobile was running on or near the curve

where the accident happened, except Mrs. Cerveri and appellant, and their evidence is in

sharp conflict. If the speed of the automobile there was 55 miles an hour, or approximately

that, the trial court was justified in concluding, as it did, that such fast driving amounted to

negligence on the part of the appellant, and was the proximate cause of the injuries sustained

by respondent. The highway is a well-traveled one. This may be inferred from the fact that it

connects the cities of Reno and Sparks, and from the facts that at the time the accident

happened there were at least four automobiles traveling on the highway at Fifteenth Street

near the curve, and a large number of cars collected at the scene of the accident ��


shortly afterwards. This was a right angle turn, and, according to two expert drivers who

made demonstration there, a skillful driver could not drive around it safely at a greater speed

than 20 miles an hour. One of these witnesses testified that an ordinary driver could probably

hold his car on the road at about 15 miles an hour. Appellant was a driver of little experience.

To use his own expression, the automobile he was driving was the first he had his hands on,

and it appears he had only been driving that during the four months he owned it prior to the

accident.

The testimony of respondent's witnesses tends to show that appellant drove at a fast rate of

speed through C Street and down Fifteenth Street. Their estimates range from 35 to 60 miles

an hour. The manager of the Buick agency, as we have previously stated, was of the opinion

that the turn from C Street into Fifteenth Street could not be made safely by an automobile

going 25 miles an hour. The sheriff's testimony tends to show that appellant made this turn

recklessly; that his automobile came near to turning over at the turn, and immediately

afterwards was going between 35 and 40 miles an hour, and was increasing its speed. During

all of this course appellant was pursued by a traffic officer on a motorcycle, and, according to

Mrs. Cerveri, had knowledge of the pursuit, and was endeavoring to escape.

These circumstances tended to show that, when the accident occurred, appellant was not

exercising ordinary care in managing his automobile. An inexperienced autoist, driving

through a city at a high rate of speed, pursued by a traffic officer from whom he is

endeavoring to escape, suddenly confronted on a sharp turn by two automobiles coming

abreast, does not inspire confidence of that mental poise essential to the exercise of

reasonable care. The undisputed testimony of the two expert drivers to the effect that a

skillful driver could not drive an automobile around the curve and keep it on the pavement at

a higher rate of speed than 20 miles an hour is not sufficient to disprove negligence. The car

was off, ��


or almost off, the pavement when it stopped. What effect the striking of the guy wire may

have had in preventing it from going further off the pavement, or of turning over, no one can

tell. Moreover, conceding the fact, which their testimony and appellant's testimony tends to

prove, that he was traveling 18 or 20 miles an hour when the accident happened, the fact,

which the testimony of the other witnesses tends to establish, that he was going at a high rate

of speed just before he reached the curve would have a tendency to show his inability to

suddenly slow down when confronted with an emergency with the same care that he

otherwise might have exercised had he been proceeding at a moderate gait. This is especially

true of an inexperienced driver. The sheriff was of the opinion that appellant's car slid on the

pavement for 30 or 40 feet.

The trial court found that there was no contributory negligence on the part of respondent

Mrs. Cerveri. This finding is also sustained by substantial evidence. Appellant disputes this. It

is contended that the testimony of appellant and his wife shows that during the entire trip

Mrs. Cerveri repeatedly urged appellant to drive faster, and that her insistence on fast driving

amounts to contributory negligence. While the record discloses that this testimony was not

denied by Mrs. Cerveri in detail, it shows that it was denied by her generally. She was asked

the question: “On June 1, 1924, at any time, did you tell Mr. Nicora what to do while you

were riding with him?” The answer was: “No.” She also declared that she asked appellant to

permit her to get out three different times as they were passing through Reno on the way to

Sparks, and assigned as a reason for the request that he was driving too fast. She testified

further that he would not stop and permit her to get out and walk home as she requested him

to do. She also testified, as we have previously stated, that on the return from Sparks, when

she heard the traffic officer whistle, she told appellant to stop—that the police officer was

right behind. So on the whole of her testimony we do not think that the claim that her��


insistence on fast driving was not substantially denied, is sustained. What would be a correct

conclusion of law under the facts of this case, if it appeared without contradiction that Mrs.

Cerveri was urging appellant to drive fast at or near the scene of the accident, it is

unnecessary to state. Such a case is not presented by the evidence. Consequently we need not

comment on the authorities presented on this theory.

2-5. On the question of contributory negligence as well as on appellant's negligence,

appellant insists that Mrs. Cerveri's testimony is so contradictory and so refuted by other

testimony as to render it unworthy of belief, and that it does not therefore amount to

substantial evidence in support of either of the findings. We do not share this view. The

circumstances in this regard pointed out by counsel in his argument went to the credibility of

the witness, and were for the trial court. Mrs. Cerveri had an opportunity to leave the

automobile when it stopped in Sparks, and it is contended that by her failure to do so she

acquiesced in appellant's fast driving, and cannot recover. Stated in general terms, the duty

imposed by law upon Mrs. Cerveri as a guest in the automobile was the exercise of ordinary

care for her own safety. What constitutes such ordinary care on the part of an invited guest in

an automobile is dependent upon the facts and circumstances of each case. We are not

prepared to say that the evidence up to the point of stoppage of the car in Sparks is sufficient

to charge her with negligence in not leaving the automobile. Up to this point there is no

evidence of excessively fast driving or reckless driving. True, Mrs. Cerveri said she wished to

get out in Reno because he was driving too fast, but she did not say how fast, or testify to any

fact from which excessive speed under the circumstances could be inferred. As to the speed

of the automobile on the return from Bowers Mansion to Reno, the appellant testified as

follows:

“And anybody coming I slow down to 20, 25 miles like ��


that. Any time nobody in the road I go a little faster, about, 30, 35 miles.”

This testimony is not contradicted. Thirty or thirty-five miles on a clear highway may have

been too fast to suit Mrs. Cerveri, but it does not follow that because she did not get out at the

first opportunity thereafter she acquiesced in the kind of driving that the evidence of

respondent's witnesses tends to show appellant exhibited on the return from Sparks.

Moreover, according to her testimony, she did all she could to prevent it. She did more than

make a mild protest. She called on the appellant to stop in obedience to the command of the

traffic officer.

6. It is contended that appellant's negligence is imputable to Mrs. Cerveri, for the reason

that they were engaged in a joint enterprise; namely, a pleasure trip for the mutual benefit of

each. This contention is resolved against appellant by the findings of the trial court. The court

found that there is evidence to sustain the finding that Mrs. Cerveri was an invited guest. The

automobile belonged to appellant. Mrs. Cerveri had no proprietary interest in it, and

consequently no right of control over the driver who owned it. But it is claimed that she

assumed control over the appellant by directing him to drive faster. This phase of the

evidence was rejected by the trial court when it found that she at all times and under all

circumstances leading up to and surrounding said accident exercised due care and caution.

But, conceding that she did, as claimed, direct the driver to drive faster, said action would not

show that she was engaged in a joint enterprise with appellant. While the decisions are not

harmonious as to what constitutes a joint enterprise within the rule of imputable negligence,

we think the true rule is stated in 20 R.C.L. p. 150:

“Parties cannot be said to be engaged in a joint enterprise, within the meaning of the law

of negligence, unless there be a community of interests in the objects or purposes of the

undertaking, and an equal right to direct ��


and govern the movements and conduct of each other with respect thereto. Each must have

some voice and right to be heard in its control and management.”

Appellant and Mrs. Cerveri, as well as the other occupants, had the common purpose of

the pleasure trip, but the other elements required by the rule to constitute a joint enterprise,

that is, an equal right on the part of Mrs. Cerveri to direct the route to be traveled and the

manner of going, was entirely lacking. Appellant had the exclusive right in this regard. The

foregoing rule was adopted in Pope v. Halpern, 223 P. 470, 193 Cal. 168.

The facts of that case disclosed that the plaintiff's minor son was killed while riding on the

rear fender of a motorcycle operated by a friend when the motorcycle collided with an

automobile. It was contended that the negligence of the driver of the motorcycle was

imputable to plaintiff's son. The court held that they were not engaged in such a joint

enterprise as to bring the decedent within the rule of imputable negligence. The court said:

“The circumstances of this case do not show that the decedent and Garns together had such

control and direction over the motorcycle as to be practically in the joint or common

possession of it. If the decedent did participate in the selection of the route, or the regulation

of the speed of the motorcycle, he did so apparently as a guest, and not as one entitled as of

right to be heard in such matters.”

And again:

“* * * it is not sufficient merely that the passenger of the machine indicate the route, or

that both parties have certain plans in common, such as a ‘joy ride,' but the community of

interest must be such that the passenger is entitled to be heard in the control and management

of the vehicle.”

This is a well-reasoned case, and, in our opinion, correctly states the law as to the

imputation of negligence on account of a joint enterprise. The ruling of the court in

Wentworth v. Town of Waterbury, 96 A. 334, 90 Vt. 60, cited by appellant on this question,

is ��8��:� �� #�M� ��:��0��4��C)� �4��D�&7&8�


repudiated by Pope v. Halpern, supra, and also by a former decision of that court. In Kelly v.

Hodge Transportation System (Cal. Sup.), 242 P. 76, the same doctrine is approved.

7. We have examined the evidence as to the damages sustained by Mrs. Cerveri, and are of

the opinion that the amount awarded by the court is not excessive.


____________

��49 Nev. 273, 273 (1926) Twilegar v. Stevens��

TWILEGAR v. STEVENS (DONOVAN, Intervener)

No. 2704

April 5, 1926. 244 P. 986.

On Motion to Dismiss Appeal

1. Appeal and Error—Undertaking Filed More Than Five Days After Notice of Appeal HeldNot Within Time Limit (Rev. Laws, 5330, 5346, 5358).

Where notice of appeal was filed April 23, undertaking filed on May 5, was not within the five-day

limit of Rev. Laws, secs. 5330, 5346; tendering of sufficient bond, in view of section 5358, and showing

excusable neglect, on receipt of notice to dismiss and before hearing thereon, not being sufficient.

2. Appeal and Error.Filing appeal bond, under Rev. Laws, 5330, 5346, is jurisdictional.

See 3 C.J. sec. 1141, p. 1107, n. 57; sec. 1253, p. 1180, n. 80.

Appeal from the Seventh Judicial District Court, Esmeralda County; Wm. E. Orr, Judge.

Action by A.J. Twilegar and others against Theron Stevens, trustee, and another. Judgment

for plaintiffs, and intervener, James Donovan, appeals. Appeal dismissed.

James G. Pfanstiel and John F. Kunz, for Movants:

Appeal must be taken within six months after rendition of final judgment. Rev. Laws, sec.

5329, as amended 3 Rev. Laws, p. 3340.

Appeal is taken by filing and serving notice within six months from date of final judgment,

and filing undertaking within five days after filing notice of appeal. Rev.


Laws, 5330, 5346; Lambert v. Moore, 1 Nev. 345; Peran v. Monroe, 1 Nev. 486; Stafford

v. White River Co., 24 Nev. 184.

Sustaining demurrer without leave to amend pleading is final judgment. 23 Cyc. 671; 2

Freeman on Judgments, 1567.

Rev. Laws, 5358 provides for insufficiency, not entire lack of undertaking. Pedroli v. Scott,

44 Nev. 266.

James Donovan (Intervener), in pro per.:

To constitute sufficient judgment on demurrer there should be formal adjudication thereon,

such as, “It is therefore adjudged that demurrer be overruled” or “sustained.” 23 Cyc. 669, n.

16.

Statute does not authorize appeal from mere sustaining or overruling of demurrer. Keyser

v. Taylor, 4 Nev. 435.

Action on demurrer can be reviewed only on appeal from final judgment entered in action or

special proceeding. Hanke v. McLaughlin, 20 Cal. App. 204; Ashley v. Olmstead, 54 Cal.

516; Hadsall v. Case, 15 Cal. App. 541. In all these cases demurrers were sustained without

leave to amend.

Rule in Peran v. Monroe 1, Nev. 484, is subject to modification. Appeal should not be

dismissed if party brings himself within Rev. Laws, 5358. Reese M. Co. v. Rye Patch M. Co.,

15 Nev. 341. We therefore ask court to approve new bond tendered herewith and hear case on

merits.

OPINION


1. This case is before the court on respondent's motion to dismiss the appeal. Respondent

moves to dismiss upon two grounds, namely, that more than six months elapsed from the date

of the rendition of the final judgment and the filing of the notice of appeal and the

undertaking before the appeal was taken, and because more than five days elapsed between

the filing of the notice of appeal and the filing of the undertaking ��


on appeal. Since the motion must be sustained upon the latter ground, we do not deem it

necessary to consider the former.

Section 5330, Rev. Laws, reads:

“An appeal is taken by filing with the clerk of the court in which the judgment or order

appealed from is entered, a notice stating the appeal from the same or some specific part

thereof, and within three days thereafter serving a similar notice or copy thereof on the

adverse party or his attorney. * * * The order of service is immaterial, but the appeal is

ineffectual for any purpose unless within five days after service of the notice of appeal an

undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or

the undertaking be waived by the adverse party in writing.”

Section 5346, Rev. Laws, reads:

“To render an appeal effectual for any purpose, * * * a written undertaking shall be

executed on the part of the appellant * * * to the effect that the appellant will pay all damages

and costs which may be awarded against him on the appeal, not exceeding three hundred

dollars; or that sum shall be deposited with the clerk with whom the judgment or order was

entered, to abide the event of the appeal. Such undertaking shall be filed, or such deposit

made with the clerk, within five days after the notice of appeal is filed. * * *”

The notice of appeal was filed on April 23, 1925, and the undertaking was filed on May 5,

1925, twelve days later; hence the bond was not filed within the time limit.

Appellant claims, however, that in view of section 5358, Rev. Laws, and the showing of

excusable neglect, he should be relieved from the failure to file the undertaking within the

five days after the notice of appeal was filed, since he promptly tendered a good and

sufficient bond upon the receipt of notice to dismiss, and before the hearing thereon, in

compliance, as he contends, with section 5358, which reads:

“No appeal shall be dismissed for insufficiency of the �� !��!��


notice of appeal or undertaking thereon; provided, that a good and sufficient undertaking

approved by the justices of the supreme court or a majority thereof, be filed in the supreme

court before the hearing upon the motion to dismiss the appeal; provided, that the respondent

shall not be delayed, but may move when the cause is regularly called, for the disposition of

the same, if such undertaking be not given. An appeal shall not be dismissed for any

irregularity not affecting the jurisdiction of the court to hear and determine the appeal or

affecting the substantial rights of the parties and where any defect or irregularity can be cured

by amendment, such amendment shall be allowed on proper application upon such terms as

the supreme court shall deem just.”

In support of his contention appellant says that as soon as the notice of appeal is filed and

served this court acquires jurisdiction of the case, and that the filing of the undertaking is not

jurisdictional, hence the motion to dismiss should be denied.

2. We think the contention that the filing of the undertaking is not jurisdictional is not well

founded. This seems to be settled by the last sentence of section 5330, Rev. Laws, quoted

above, which provides that the appeal is ineffectual for any purpose unless within five days

after service of the notice of appeal an undertaking be filed, or deposit made, or unless the

undertaking or deposit be waived. This is an unequivocal requirement. Substantially the same

provision is found in section 5346.

The question presented is not a new one. In fact, the law may be said to be settled in this

state as to the point made. In Lambert v. Moore, 1 Nev. 347, construing the language

mentioned, the court said:

“The language of this section is explicit, and it has been held in California, under the

section of their act, from which ours is copied, that if more than five days intervened between

the notice and bond or undertaking, the whole proceeding is void, and no appeal is perfected.”

In Peran v. Monroe, 1 Nev. 484, where the question was presented, the court said: <0��


“The appeal is taken by filing and serving the notice, and the appeal so taken becomes

effectual or complete only by the filing of an undertaking within five days after such notice.

The failure to file such undertaking within five days renders the filing of the notice nugatory,

but if filed within that time the last act relates back to the first, and the appeal becomes

complete.”

See, also, Spafford v. White River Valley L. &. L. Co., 51 P. 115, 24 Nev. 184; Shute v.

Big Meadow Inv. Co., 170 P. 1049, 41 Nev. 361.

It is contended that in view of section 5358, Rev. Laws, we should deny the motion. As

quoted above, this section provides that no appeal shall be dismissed for insufficiency of the

undertaking on appeal, provided that a good and sufficient one, approved by a majority of the

justices of this court, be filed before the hearing on the motion to dismiss. Appellant tendered

such an undertaking, which was approved, subject to the disposition of the motion. In

opposition to the contention it is said that the statute in question does not authorize the filing

of a bond after the expiration of the five days, where none has been filed, but merely the filing

of a bond to cure any insufficiency in an undertaking which was filed within the time limit.

On the other hand, it is said that we held to the contrary in Shute v. Big Meadow Co., supra.

We do not think the case supports the contention. It appears from the opinion that the

question here raised was not considered or determined by the court. While there was in the

record an instrument in the form of an undertaking, which was filed 2 1/2 months after the

filing of the record on appeal, it also appears that the instrument was not tendered for

approval or approved, nor does it appear what would have been done had it been tendered for

approval. Nor do we think the statute open to the construction now contended for. It provides

that no appeal shall be dismissed for “insufficiency” of the undertaking. There is a wide

difference between insufficiency of an undertaking and the total lack of an undertaking. The

statute does not say that when there ��


is a failure to file an undertaking relief may be had in the manner stated. We think the

question is disposed of in the case of Ward v. Pittsburg Silver Peak G.M. Co., 153 P. 434,

436, 39 Nev. 80, 101, where we said:

“We are mindful of that section of our Code (Rev. Laws, 5358) which provides ‘* * * An

appeal shall not be dismissed for any irregularity not affecting the jurisdiction of the court to

hear and determine the appeal or affecting the substantial rights of the parties and where any

defect or irregularity can be cured by an amendment,' etc. The matter with which we are

confronted in the case at bar is one of jurisdiction. As has been stated by this court in

numerous decisions, the right of appeal is one regulated by statute; and, where there is a

failure on the part of the appellant to at least substantially comply with the provisions of the

statute, this court can do naught else than dismiss the matter.”

The court acquired no jurisdiction over the subject matter as a result of the motion to

dismiss.

It is ordered that the appeal be dismissed.

____________

��49 Nev. 278, 278 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.��

TRUCKEE-CARSON IRRIGATION DISTRICT ads.

McLEAN

TRUCKEE-CARSON IRRIGATION DISTRICT ads.

CENTRAL PACIFIC RAILWAY CO.

No. 2596

April 5, 1926. 245 P. 285.

1. Water. Irrigation Act of 1919 (Stats. 1919. c. 64) held constitutional.

2. Water. In so far as proceedings for organization of irrigation district are concerned, irrigation laws should be

liberally construed.

3. Water—Court Held Not to Have Exceeded Jurisdiction in Finding Irrigation District Duly

Organized. The trial court held not to have exceeded its jurisdiction in adjudging and finding that an irrigation

district had been duly organized and constituted, where no interested person was deprived of a single

substantial right in matter of organization.

4. Water—Proposed Contract of Irrigation District with United States for Construction by

Government of Drainage System for District Held Valid. Proposed contract between irrigation district, created and authorized under Act Cong. June 17, 1902

(U.S. Comp. Stats. sec. 4700 et seq.), and organized under Rev. Laws Nev. secs.


4723-4791, amended by Stats. 1915, c. 278, and by Stats. 1917, c. 150, with later proceedings in

attempted compliance with substitute act of 1919 (Stats. 1919, c. 64), and the United States, for

construction by the government of a drainage system for the district, carried by two-thirds majority vote

of qualified electors of the district in accordance with sections 15 and 56 of the act of 1919, held valid

under sections 54-65, inclusive, and under Act Cong. Feb. 21, 1911, sec. 2 (U.S. Comp. Stats. sec. 4739),

and Act Cong. Aug. 13, 1914 (U.S. Comp. Stats. secs. 4713a et seq.).

5. Appeal and Error—Supreme Court Is Not Concerned with Question as to Construction of Proposed

Contract, or Its Enforceability when Questioned in Lower Court as to Validity.

The supreme court on appeal is not concerned with question as to construction of proposed contract

of irrigation district with the government, or its enforceability, where question put to lower court was as

to validity of contract.

6. Water—Legislature Held to Have Power to Provide for Assessing Benefits for Construction of Drainage

Works in Irrigation District To Be Apportioned to Higher Lands Not Then Actually Requiring Drainage.

Legislature held to have power to provide under Stats. 1919, c. 64, sec. 17, for assessment of benefits

for construction of drainage works to be apportioned to higher lands not then actually requiring drainage

because contribution of water by their irrigation must be carried off from lower lands.

7. Water.

Assessment for drainage of irrigation district, based on flat rate, and not on actual benefits accruing to

land, is invalid.

8. Water.

Where benefits derived by drainage are equal, the assessment may be the same.

9. Water.

Under Stats. 1919, c. 64, sec. 54, irrigation district may be used for drainage purposes to forestall, or

remedy, unfortunate conditions.

10. Water. Stipulation between attorneys for irrigation district and railway company, excluding right of way from

district, held properly confirmed by lower court decree.

11. Constitutional Law—Apportionment of Assessment Benefits for Drainage, Reduced after

Investigation by Irrigation District Directors, Held not Denial of Equal Protection of

Law or Deprivation of Due Process of Law. Apportionment of assessment benefits for drainage purposes, reduced after investigation by directors

of irrigation district, held not denial of equal protection of law or deprivation of due process of law.

12. Water. Owner of irrigable land within irrigation district must respond to assessments, where water is made

available for his use, though not used.


13. Water. Question of whether land is susceptible of irrigation is one of fact, involving question of benefits.

14. Water.Assessment for drainage project must be based on benefits derived from it, and not on benefits derived

from irrigation.

15. Water—Assessment for Drainage Project Must Be Based on Benefits Immediately

Accruing, or which Will Accrue, from Construction. An assessment for drainage project, basing on benefits, must be based on benefits immediately

accruing, or which will clearly accrue, from construction of the work.

16. Appeal and Error—Supreme Court Will Not Disturb Trial Court's Findings on

Conflicting Evidence as to Benefits from Drainage Project Accruing to Land within

Irrigation District, where No Principles were Misapplied in Arriving at Confirmation of

Apportionment of Benefits. Trial court was exclusive judge of question of benefits from drainage project to lands within irrigation

district, and supreme court will not disturb its findings on conflicting evidence, where no principles were

misapplied in arriving at confirmation of apportionment of benefits.

See 40 Cyc. p. 817, n. 85 (new), 86; p. 819, n. 95 (new); p. 820, n. 11; p. 821, n. 23 (new); p. 824, n. 51, 56; (5,

16) 3 C.J. sec. 580, p. 689, n. 41; sec. 618, p. 718, n. 50; 4 C.J. sec. 2855, p. 883, n. 33.

Appeal from the Eighth Judicial District Court, Churchill County; C.J. McFadden, Judge.

Special proceeding on petition of the Truckee-Carson Irrigation District, opposed by Annie

McLean and others and the Central Pacific Railway Company. Decree was rendered,

confirming the organization of the district and annexation of certain land, and confirming and

approving a proposed contract of the district with the United States government to construct a

drainage system, and apportionment of benefits to accrue thereunder, and adjudging said

contract valid. From orders denying the respective motions for a new trial, Annie McLean and

others and the Central Pacific Railway Company separately appeal. Affirmed. Rehearing

denied.

W. M. Kearney and McCarran & Mashburn, for McLean; Brown & Belford and W.M.

Kennedy, for Central Pacific Railway Co., Appellants: 0��:��*� ��=��#��9��77'��6&%


This court said in Hendrich v. Walker River Irrigation District, 44 Nev. 321, that it was

plan of assessment of benefits required to be carefully ascertained and fairly apportioned that

commended it as wise public policy. Benefits charged are presumed to be returned in

enhanced value of land.

If these are not treated as original proceedings in district court, sec. 6 of art. 6 of

constitution is violated. Ormsby Co. v. Kearney, 37 Nev. 314; Knox v. Kearney, 44 Nev. 393.

Not all constitutional questions were settled in Hendrich case, supra. Courts hold opposing

views of law when different phases are presented. Compare Pitt v. Scrugham, 44 Nev. 418,

with Vineyard etc. Co. v. District Court, 42 Nev. 1.

Hendrich case, supra, holds affairs of district should be left to those affected, yet act excludes

noncitizen and small land owners from even voice in election, and subjects them to

assessments, thereby violating electoral privilege and due process clauses. It also held that

district is not municipal corporation. State v. Preble, 18 Nev. 251; 5 R.C.L. 580.

Act violates local and special laws clause.

Neither United States nor other mortgagee holding lien on individual pieces of land can

contract with district to take other lands in district for security. Art. 4, secs. 20 and 21.

Legislative power to specify what district board may do cannot be delegated to Congress,

much less to bureaus or departments. Clark v. Mobile Port, 67 Ala. 217.

Act attempts to confer sort of appellate power on district court to ratify administrative

proceedings. If this were possible appeal to supreme court would not be authorized. Scossa v.

Church, 43 Nev. 403.

Lands on east side of river should not be taxed to drain lands on west side. River is natural

drain. Eastern lands should be drained, if necessary, by local assessment. Stats. 1919, sec. 49.


Liability of obligations must be assumed voluntarily. Board of Directors v. Collins, 46

Nebr. 425.

Assessments are void where no benefits accrue. High lands not needing drainage should

not be assessed. K.C.S. Ry. Co. v. District, 256 U.S. 658.

Mere fact that certain land is within district does not necessarily mean that it is capable of

receiving benefits from irrigation or drainage. N.P. Ry. Co. v. Walla Walla Co., 200 P. 585.

Why should objectors disprove allegations of petition when petitioners have not proven

them? Failure to prove facts required compels court to deny petition. Fallbrook Irrigation

District v. Alila, 39 P. 793.

Public lands cannot be included or taxed if district is formed for purpose other than that

recognized in congressional act. United States v. Rickey etc. Co., 164 Fed. 496.

Unless and until electors authorize bond issue for definite sum, board has no power to

apportion benefits. Board's failure to examine each tract makes assessment void. Procedure is

statutory and must be complied with. Hendrich case, supra. Swamp etc. v. Gwynn, 12 P. 462.

Board has no power to stipulate to exclude railroad land. Statute provides method.

Medford Irrigation District v. Hill, 190 P. 857.

Obligation of contract cannot be impaired. Dartmouth College case, 4 L. Ed. 629.

If we follow Bond case, 69 L. Ed. 473, all project lands must be assessed. If we follow act,

cost of drains must be apportioned according to benefits received.

Levy proportioned to quantity of land is unconstitutional. Benjamin v. Bog etc., 68 N.J.L.

197.

Extent of watershed is not proper basis. Amount of surface water for which drainage is

required is. Blue v. Wentz, 43 N.E. 493.

Same principles govern in contracts between corporation and United States as between

individuals. Reading etc. Co. v. United States, 69 L. Ed. 538.


Cooke, French & Stoddard, for Respondent:

Similar irrigation acts have been attacked from every possible point, but uniformly upheld.

In Re Auxiliary etc. District, 207 P. 615; 3 Kinney on Irrigation (2d ed.), sec. 1045; Hendrich

v. Walker River etc., 44 Nev. 321.

Every irrigation district state has held irrigation district to be quasi public corporation, and

not municipal corporation. Cases supra; Randolph v. Stanislaus Co. 186 P. 627.

Notice of an opportunity to test correctness of levy were given. Due process clause was not

violated. Fallbrook case, 41 L. Ed. 369; Gallup v. Schmidt, 46 L. Ed. 207.

Ownership, citizenship and residence requirements have been upheld in all irrigation

states. Board etc. v. Collins, 64 S.W. 1087; Anderson v. District, 85 P. 316, and cases supra.

Appellants did not contend in trial court that they were alien bona fide residents of state,

holding property within district and do not now. Person questioning constitutionality of act

has no standing unless he belongs to class sought to be protected. 6 R.C.L. 91.

Alien owners have same privilege of being heard as citizens, hence are not deprived of

property without due process. Collins and Anderson cases, supra.

Irrigation district laws are not special or local. Walker River case, supra.

If there be any unwise provision in act, legislature and not court should remedy it.

Higher lands do or may contribute water to lower lands which must be drained.

If district duties are obnoxious to county officers, remedy is with legislature, not court.

We admit burden was on plaintiffs, and district as petitioner did establish prima facie case.

Appellants should have rebutted this, not sit idly by and claimed objectors were not required

to make any proof in confirmation proceeding.

Commissioners erroneously included certain railroad ��


right of way land, and lower court properly excluded it. Stats. 1917, 256; Stats. 1919, 102.

Apportionment was not made on flat rate per acre, but varies with different tracts.

OPINION


The Truckee-Carson irrigation district was formed on a federal reclamation project, known

as, and called, “Newlands Project,” which was among those first selected and authorized

under the act of Congress of June 17, 1902, commonly known as “the Reclamation Act,” and

frequently referred to as the Newlands act, because sponsored by the late United States

Senator Newlands of Nevada. 32 Stat. L. 388 (U.S. Comp. Stat. sec. 4700 et seq.).

The Truckee-Carson irrigation district includes within its boundaries about 66,000 acres of

irrigable land lying under the Newlands project, approximately 45,000 acres of which are

now under irrigation from the government's irrigation works—the Truckee canal and the

Lahontan reservoir.

This is a special proceeding brought on petition of the Truckee-Carson irrigation district,

seeking the examination, approval, and confirmation of the proceedings for the organization

of said district; also for the confirmation and approval of its proceedings relative to the

annexation of certain lands to the district; also for the confirmation and approval of the

proceedings relative to a proposed contract by the district with the government of the United

States for the construction by the government of a general drainage system within the district;

and also for the confirmation and approval of apportionment of benefits to accrue from the

construction of said drainage works.

The immense record involves two appeals: One, the appeal of Annie McLean and others;

the other, that of the Central Pacific Railway Company, a corporation. The appeals involve

the same proceedings. They were ��


argued together and submitted for decision, with the request from the attorneys for the district

for a speedy decision because of the great public importance of the case and the vast

pecuniary interest dependent upon the result. The importance of the case, both with reference

to the interesting legal questions and principles involved, and the vast economic and

pecuniary interest dependent upon the result, demand the most mature and deliberate

consideration of this court. The writer feels that the sensible minded will understand and

appreciate that he has been unable to keep abreast with the business of the court and render an

opinion within the time deemed reasonable by some of the interested parties. Furthermore,

the court is burdened with a record consisting of more than 3,000 pages of testimony, expert

and nonexpert, and much documentary evidence, all involving research, study, and careful

investigation. There is based upon the record a separate volume of 470 assignments of errors,

which refer to the record in such way as necessitated a review of practically all the evidence.

There have been injected into the case the long-standing differences and animosities between

the water users under the Newlands project and the United States reclamation service, which

do not concern this court in the least, but which seem to have been brought into the case to

emphasize the position taken by certain protestants that the assessment against their lands is

illegal, unfair, and without equity.

On or before the date fixed for the hearing of the petition for confirmation at least 145

interested persons answered the petition, and by their answers sought to have their lands

excluded from the district and to enjoin the district from making any apportionment of

benefits or assessments of costs affecting their property for the construction of a general

drainage system under a proposed contract between the district and the government of the

United States. After a full hearing upon the pleadings and evidence, the trial judge, Hon. C.J.

McFadden of the Ninth district, rendered a decree, which decree confirms respectively: (1)

The organization of ��0��5)��)�� @��)��'��C&D��%&�EA&�E�� '�� !��C6D�� N��4��+A��C7D�� C,D��!�� 2��


the Truckee-Carson irrigation district in Churchill and Lyon Counties, Nevada; (2) the

annexation to said district of 12,672.6 acres of land lying under the Newlands project; (3) the

confirmation and approval of a proposed contract of the district with the United States

government to construct a drainage system for the district at a cost not to exceed $700,000;

(4) the confirmation and approval of the apportionment of benefits to accrue to each tract or

legal subdivision of irrigable land within the district from the construction of said proposed

drainage system; and (5) adjudging said proposed contract to be valid and such as the board

of directors of the district were authorized to enter into. The two appeals are prosecuted from

orders denying the respective motions of protestants for a new trial based upon the grounds of

the insufficiency of the evidence to support the decision of the court, and that the decision is

against law.

We shall consider first the appeal of Annie McLean and others, and dispose of the appeal

of the Central Pacific Railway Company in the concluding portion of this necessarily lengthy

opinion.

The applicable state law is to be found in the Revised Laws of Nevada, 1912 (sections

4723 to 4791, inclusive). This was amended by Act 1915, c. 278, p. 434, and by Act 1917, c.

150, p. 255. In 1919 the legislature enacted a complete substitute irrigation district law in

chapter 64, pp. 84 to 115. This act made many changes in the previous law, most of which,

however, are of a minor character.

The Truckee-Carson irrigation district was organized in November, 1918, under the

provisions of the prior law and amendments, but the district did not take steps to have its

organization confirmed by court order, as required by the statute. Aside from the proceedings

had for the formation of the district, all its acts and proceedings here involved were had in

attempted compliance with the provisions contained in the substituted act of 1919.


The applicable federal law is to be found in the reclamation act, supra; the act of Congress

of February 21, 1911, known as the “Warren Act” (36 Stat. L. 925, sec. 2 [U.S. Comp. St.

sec. 4739]), and the act of Congress of August 13, 1914, known as the “Reclamation

Extension Act” (38 Stat. L. 686 [U.S. Comp. St. sec. 4713a et seq.]).

To avoid prolixity, we have assembled the 470 assignments of error under the main

headings: (1) The power of the state and the United States to contract for purposes of

cooperation under the state and federal laws for drainage construction; (2) the legality of the

assessment, and the fairness and equity in the apportionment of benefits to accrue to

protestants' lands from the construction of the proposed drainage system; (3) the jurisdiction

of the district court to entertain the proceeding for confirmation of the organization of said

district and other matters in connection therewith.

1. Appellants in their answer assert that the court below was without jurisdiction of the

subject matter, because the Nevada irrigation district act of 1919 is unconstitutional. Courts

now dispose of this question with the statement that the constitutionality of irrigation district

laws has been so thoroughly and universally established that the subject need not be

elaborated. The several portions of the act here attacked were upheld as being constitutional.

In Re Walker River Irrigation District, 195 P. 327, 44 Nev. 321. Counsel deplore that as a

result of that decision Nevada stands alone in holding that an irrigation district is not a

municipal corporation in a strict sense, but a public corporation for municipal purposes;

thereby doing violence to our constitutional provisions relative to elections and property

qualifications of voters in irrigation districts. It is probable that Idaho, and not Nevada, stands

alone among the irrigation district states as to the applicability of constitutional provisions

relative to elections held by irrigation districts. For counsels' information we take the liberty

of citing Handbook of #��9��@��CM��K��D��&��*��

'��%�%��


Irrigation District Laws (King & Burr), p. 20. We again declare the Nevada irrigation district

act of 1919 unconstitutional.

2, 3. It is contended that the court below exceeded its jurisdiction in adjudging the

Truckee-Carson irrigation district to be a legally organized and constituted irrigation district

because the proceedings for its formation were not had in compliance with the statute. We

have reviewed the 30 alleged defects in the organization proceedings, and conclude with the

trial court that the proceedings were in all respects in substantial compliance with the statute.

Therefore, we see no necessity for incumbering this opinion with answers to extended

technical arguments which in many respects misconstrue the applicable law. In one of the

cases cited by counsel it is declared that, in so far as proceedings for the organization are

concerned, a reasonably liberal rule of construction should be adopted to carry out the wise

purpose of the law. People v. Cardiff Irr. Dist., 197 P. 387, 51 Cal. App. 307. Applying this

rule to the organization under review, we are satisfied that no interested person was deprived

of a single substantial right in the matter of organization, and the trial court did not exceed its

jurisdiction in adjudging and finding the Truckee-Carson irrigation district to be a duly

organized and constituted irrigation district.

The petitioner sought the examination, approval, and confirmation of the proposed

contract between the district and the United States for the construction by the government of

a drainage system for the district. The statute of 1919 provides that a proposal to enter into

such a contract with the United States shall be voted upon and carried by a two-thirds

majority vote of the qualified electors (sections 15 and 56). The proposed contract contains

the provision that the government of the United States will not proceed with the construction

of the drainage work until the contract has been approved by the voters of the district and the

organization of the district confirmed as provided by the statute. An election was called

pursuant to the statute by the ��E��(�� %�&��-


board of directors of the district for the 6th day of April, 1920, to vote upon this question:

“Shall the Truckee-Carson irrigation district enter into a contract with the United States of

America for the construction by the United States of America of a general drainage system

within the said irrigation district, at a cost of not to exceed the sum of $700,000.00 without

interest; repayment of the moneys expended by the United States of America in said

construction, to be made by the Truckee-Carson irrigation district in forty (40) semiannual

installments, the first of which shall become due and payable on January 1st of the second

calendar year following the calendar year in which the Secretary of the Interior shall

announce that said expenditure has been made by the United States of America.”

The contract was carried by the necessary two-thirds majority vote of the qualified

electors, to wit, 244 votes in favor of the contract and 87 votes against. The main question for

decision is: Is the contract valid and such as the board of directors of the district are

authorized to enter into. The consideration of the question calls for a review of both the state

and federal statutes.

The original act of Congress of June 17, 1902, the “Reclamation Act,” seems to

contemplate reclamation projects, each of which shall be complete in itself and served by

irrigation works constructed for it alone, the cost to be charged against the irrigable land

included in the project. No provision is made, and no authority is given, to connect with

private or other nongovernmental irrigation projects, or to furnish them with water or enter

into cooperative arrangements with them. Some years of experience, however, developed the

possibilities of enlarged usefulness in this direction, and Congress later made provision

therefor. This was done by the act of February 21, 1911, the “Warren Act.” 32 Op. Attys.

Gen. p. 43. This act comprises three sections, the second of which provides:

“That in carrying out the provisions of said Reclamation Act and acts amendatory thereof

or supplementary ��4��#��2��


thereto, the Secretary of the Interior is authorized, upon such terms as may be agreed upon, to

cooperate with irrigation districts, water users associations, corporations, entrymen or water

users for the construction or use of such reservoirs, canals, or ditches as may be

advantageously used by the government and irrigation districts, water users associations,

corporations, entrymen or water users for impounding, delivering and carrying water for

irrigation purposes. * * *” U.S. Comp. St. sec. 4739.

The legal foundation and authority for the government to enter into the contract in

question must be sought in this legislation. Since the enactment of the Warren act, the policy

has been pursued by the reclamation service of securing amendments to state irrigation laws

providing for contractual relations between irrigation districts and the United States. The

result has been that practically all of the states that have irrigation district laws have

authorized districts to cooperate with the United States, and that districts have been organized

on many of the federal reclamation projects. Such projects are to be found in Idaho, Nebraska,

New Mexico, North Dakota, Oregon, Texas, Utah, Washington, and Newlands

(Truckee-Carson), Nevada. The project lands organized as irrigation districts were formed

largely with the motive of facilitating cooperation with the United States in drainage

construction.

The provisions for cooperation with the United States are taken from the individual

sections in the previous law, and are combined in consecutive sections in the Statutes of

1919, sections 54 to 65, inclusive. Section 54 of the act provides as follows:

“In addition to the powers with which irrigation districts are or may be vested under the

laws of the state, irrigation districts shall have the following powers: To cooperate and

contract with the United States under the federal reclamation act of June 17, 1902, and all

acts amendatory thereof or supplementary thereto, or any ��)��2��4��'��...�� N��4�� N��4�� 1


other act of Congress heretofore or hereafter enacted authorizing or permitting such

cooperation, and to cooperate and contract with the State of Nevada, * * * or for the

assumption as principal or guarantor of indebtedness to the United States on account of

district lands or for the collection of moneys due to the United States as fiscal agents or

otherwise.”

The sections following make provisions for the carrying out of the enlarged powers

conferred upon the board of directors of the district by section 54. The legal foundation and

authority for the contract in question, in so far as the State of Nevada is concerned, must be

sought in section 54. The clause of the section, “or for the assumption as principal or

guarantor of indebtedness to the United States on account of district lands,” is the clause

under which irrigation districts formed upon federal projects have made contracts.

The Supreme Court of Idaho has held in several cases that boards of directors of irrigation

districts are authorized, upon compliance with sections 2396-2401, Revised Codes, to

contract with the United States for the construction, conjunctively, of a drainage system for

the purpose of properly draining water-logged land within the jurisdiction of such districts,

and that the secretary of the interior, under the acts of Congress above referred to, is

authorized to contract with such districts for the joint construction of a proper drainage

system. Nampa & Meridian Irr. Dist. v. Petrie, 153 P. 425, 28 Idaho, 227; Hillcrest Irr. Dist.

v. Brose, 133 P. 663, 24 Idaho, 376; Pioneer Irr. Dist. v. Stone, 130 P. 382, 23 Idaho, 344. We

note that the provisions of the Idaho Codes have practically been incorporated in the Nevada

statutes.

4. We find nothing in either the state or federal statutes to prevent the making of contracts

for cooperation with the United States under the reclamation and Warren acts, and our

conclusion is that the proposed contract between the Truckee-Carson irrigation district and

the United States is validated both by the state ��


and federal laws. In our preliminary examination into the law of this case we were concerned

as to whether the “Warren Act” was sufficiently elastic to permit without additional

legislation an irrigation district to be formed at the instance of the reclamation service on a

federal project for the purpose of drainage construction, but upon further research we have

found that the most prominent relations between irrigation districts and the federal

government have been with the reclamation service. Districts which have had such dealings

seem to be subdivided into two classes: First, districts which have contracted with the United

States, under the provisions of the Warren act, for the construction of irrigation or drainage

works or both; second, districts formed at the instance of the reclamation service on

reclamation projects, as substitutes for water users associations, “for the assumption as

principal or guarantor of indebtedness” of project lands to the United States with or without

bond. Section 54, c. 64, Statutes of Nevada 1919; U.S. Department of Agriculture, Bulletin

No. 1177, date September 22, 1923.

5. We are not concerned with the question raised as to the construction of the proposed

contract or its enforceability in its present form. The question put to the lower court was

whether the contract was valid and such as the board of directors of the district were

authorized to enter into.

The next question for determination is whether or not the apportionment for benefits and

assessments can be sustained. Protestants contend that their lands are not in need of drainage,

and that their irrigation does not contribute water which must be carried off or away from the

lower lands; that the lands owned and held by protestants are by natural and physical

conditions so located and situated as to preclude the possibility of benefits from the

construction of the proposed drainage system.

Section 17 of the statute contains this declaration:

“Where drainage works are to be constructed benefits �� 1


may be apportioned to higher lands not then actually requiring drainage by reason of the fact

that their irrigation contributes water which must be carried off or away from the lower

lands.”

6. A similar provision is to be found in the statute of Idaho, as amended (Laws 1915, c. 42,

p. 123). The Supreme Court of Idaho has upheld the provision. In Re Drainage District No. 1,

161 P. 321, 29 Idaho, 393; Burt et al. v. Farmers' Co-op. Irr. Co., 168 P. 1078, 30 Idaho, 752.

The language of our statute is a sufficient basis for a declaration from this court in harmony

with the Idaho case, which holds:

“We have no doubt of the power of the legislature to provide that lands which by reason of

artificial irrigation contribute by seepage and saturation to the swampy condition of lower

lands shall contribute their just proportion of the cost of the construction of drainage works

for the reclamation of such lower lands.”

The legislative declaration that highlands may be assessed for drainage of lowlands shows

that the lawmaking body considered that the principle of assessments based on benefits called

for the recognition of the physical unity of the drainage area, and the partial responsibility of

the owners of higher lands for the drainage difficulties.

It is practically conceded that the lands irrigated by the Truckee canal laterals are the

highlands and the lands irrigated by the Lahontan reservoir are the lowlands. Undoubtedly the

proof shows that the irrigable lands in the district are in urgent need of drainage. The voters

of the district have said so by their votes; the reclamation service has so declared through its

drainage engineers; expert drainage engineers have so testified; and the secretary of the

interior has approved as to form a contract for the expenditure of $700,000 of public moneys,

subject to the appropriation by Congress, for the construction of a drainage system for the

district. In this situation it would be the height of judicial usurpation—the worst kind of

usurpation—��


for this court to say that the district is not in need of drainage. We have carefully considered

the testimony of protestants who protest their unwillingness to have their project lands under

the guise of an irrigation district organization held responsible for an indebtedness created at

the instance of the reclamation service solely for the benefit of the Newlands reclamation

project, and not contemplated by their original settlement under the project. These farmers are

of recognized intelligence, industry, and integrity, and they gave such testimony with respect

to the use of water upon their lands as makes it appear that they fully appreciate the menace

of the rise of ground water, and their own counsel concede that the question of drainage is

one which calls for expert testimony. Speaking generally, the problems of seepage and

percolating waters, and the concomitant evil, alkali, are among the most difficult in

engineering and local operations, as well as in law, on account of the lack of exact knowledge

of the causes and effects which influence the course of water beneath the surface of the

ground. Handbook of Irrigation District Laws, p. 32. The evidence does not show that

protestants' lands are now actually in need of drainage, but, in view of seepage, alkali, the

rapid rise of ground water, and the urgent necessity of drainage for the district, it may be that

the time is not far distant when they will be in need of drainage. Where large areas are being

irrigated, and where the ground water must travel for a considerable distance through sand,

clay, silt, gravel, or mixtures of these, before finding any natural outlet, a general rise in the

water plane must occur. Field investigations and studies of the rise of ground water in the

case at bar lead to the conclusion that the need for drainage is due to the subsoil formation of

more or less impervious material on which irrigation water accumulates or which hinders the

movement of underground waters. Report of Bernard A. Etcheverry, drainage engineer, a

witness in this case. The rapid rise of ground water is shown in the crop reports made ��


to the reclamation service. In the year 1917 there were 2,166 acres under the Newlands

project rendered unfit for cultivation by seepage; in 1918, 2,248 acres; in 1919, 2,847 acres;

in 1920; 3,411 acres. Mr. Etcheverry testified that in 1919 the seepage from the main Truckee

canal and laterals and from the north and south Carson river divisions totaled 175,992 acre

feet, which, expressed otherwise, in cubic contents, signifies 175,000 acres of land covered

with water one foot deep. This estimate does not include 26,950 acre feet of seepage from the

Lahontan reservoir in the year 1919 or the seepage incident to 134,000 acre feet of water

applied to the irrigation of 44,324 acres of land in 1919. The testimony of the expert

witnesses, taken in connection with the reports of drainage examinations, shows that the

irrigation of protestants' land does contribute water which must be carried off or away from

the lower land of the district. The actual condition of the other lands of the district refutes the

theory of counsel for protestants that the natural and physical condition of protestants' lands

precludes the possibility of benefits from the construction of the drainage system.

7, 8. It is contended that the assessment for drainage in this case is a flat rate of $10.15 per

acre on all irrigable lands in the district contrary to the sections of the statute governing the

apportionment of benefits and assessments which provide that the assessment must be made

in accordance with the benefits which will accrue to each of the tracts or subdivisions of land

from the construction of the drainage system. We agree with counsel that an assessment for

drainage, based on a flat rate, and not upon actual benefits accruing to the land, is invalid.

Nampa & Meridian Irr. Dist. v. Petrie, 223 P. 531, 38 Idaho, 529. But on rehearing in that

case the court states:

“So, also, if the benefits derived by different tracts from the construction of irrigation or

drainage works are equal, the assessment may be the same.”

We are of the opinion that the board of directors of the ��


district in apportioning the benefits considered that the benefits derived by the irrigable lands

from the construction of the drainage system were equal.

9. It is contended that the Truckee-Carson irrigation district was organized as an irrigation

district; therefore this court has no authority to make a drainage district out of an irrigation

district. Our answer to this contention is found in the section of the statute which provides

that drainage works may be covered by contract with the United States upon such projects as

are assisted or undertaken by the federal government. Section 54 of the statute is equivalent to

a legislative determination that an irrigation district should and may be used for drainage

purposes to forestall or remedy unfortunate conditions; in other words, to protect the

irrigation project from suicide or natural death.

10. It is contended that the court erred in confirming by its decree a stipulation entered into

at bar between the attorneys for the irrigation district and the Central Pacific Railway

Company excluding the company's right of way lands from the district. We do not think the

court exceeded its jurisdiction, power, or authority in confirming the stipulation.

This brings us to the consideration of the separate appeal of the Central Pacific Railway

Company. Pending the organization proceedings before the board of county commissioners of

Churchill County the Central Pacific Railway Company petitioned to have included in the

district 1,587 acres of its contiguous land. As other lands in the district, the soil and

topographic conditions have been and are limiting factors in the improvement of these lands.

They are low-lying lands, containing a high percentage of alkali, and, like other areas in the

district, are sandy, porous, of varying composition, rough, and easily wind blown. The

roughness and irregularity make leveling for irrigation expensive and the lands hard to

subdue. A statute designed to assist the irrigation farmers under the Newlands project in

leveling their lands was once before this court for ��


review. State v. Churchill County, 185 P. 459, 43 Nev. 290.

11. In this instance the board of directors of the district levied an assessment of from $10.15

per acre down to $4.91 per acre against the lands in question to pay the cost of the proposed

drainage system. The company protested the assessment and the board appointed a committee

to make an investigation of the lands, and subsequently, by resolution, reduced the prior

apportionment of benefits to $4.29 per acre. The company now contends that the entire

acreage, except 126 acres, is not susceptible of irrigation, because of the high alkali content

and exceeding roughness, and that the lands cannot with profit be subdued, and any

assessment of benefits to accrue from the construction of a drainage system cannot possibly

result in benefit to the lands. Furthermore, it is contended that the board of directors applied a

different rule of assessment to the company's lands from that applied to other lands, and that

the assessment is arbitrary and discriminatory, and, also, that the lands are without a water

right. We do not understand upon what theory it can be successfully asserted that the

apportionment of benefits denies the company the equal protection of the laws or deprives it

of due process of law.

12-16. Counsel insist that the proof shows that the lands, with the exception of 126 acres

thereof, are not susceptible of irrigation, and in support of this contention rely upon the

testimony of the company's engineer and the testimony of one of the protestants in this case.

We concede that, if we were dealing with a question of the cost and maintenance of an

irrigation system, and the company's lands were charged with an assessment for its

maintenance and protection, when in fact the land was not, and could not be, benefited by

irrigation, we should decide that a legal fraud would result from the assessment. Northern

Pacific Railway Company v. Walla Walla County, 116 Wash. 684, 200 P. 586. But, on the

other hand, the owner of irrigable land within ��


an irrigation district must respond to assessments where water is made available for his use,

though the water is not used. Otis Orchards Co. v. Otis Orchards Irr. Dist. No. 1 et. al., 215 P.

23, 124 Wash, 510. It is conceded or must be conceded, that the question of whether land is

susceptible of irrigation or not is one of fact, and likewise is a question of benefits. We might

dispose of counsels' argument by saying that the evidence bearing upon the question of the

irrigability of the land in question was submitted to the trial court upon evidence in which

there is substantial conflict, and that under the rule we are in no position to disturb the

assessment. But, as pointed out in the opinion on rehearing in Nampa & Meridian Irr. Dist. v.

Petrie, 223 P. 531, 38 Idaho, 529, where the assessment is for the drainage project, it must be

based on benefits derived from it, and not on benefits derived from irrigation. Therefore,

whether the land in question was susceptible of irrigation or not is not controlling. We are not

called upon in this case to determine just what may be considered in determining whether or

not land benefits from the consideration of a drainage project. The rule is that an assessment

for a drainage project based upon benefits must, like an assessment for any other public

improvement, be based upon benefits, immediately accruing, or which will clearly accrue,

from the construction of the work. As a general rule, the benefit contemplated by the statute

does result in an increase in the value of the land. There may be some cases where there is an

actual benefit, though it is not possible to prove an actual increase in value. It is sufficient if

an actual benefit accrues. Nampa & Meridian Irr. Dist. v. Petrie, supra, on rehearing. As to

the question of benefits the trial court was the exclusive judge, and, not having misapplied

any principle in arriving at the confirmation of the apportionment of benefits to accrue to the

company's land from the construction of the drainage system, upon conflicting evidence we

are not in position to disturb the court's findings and grant the company a new trial.


The respective orders denying protestants' motions for a new trial are affirmed.


July 30, 1926.

Per Curiam:

Rehearing denied.

____________

��49 Nev. 299, 299 (1926) Jones v. Edwards��

JONES v. EDWARDS

No. 2707

April 7, 1926. 245 P. 292.

1. Husband and Wife—Husband Held Authorized to Apply Amount Due Wife from Boarder

as Payment on Note Made by Him, where Income Was Community Property.

Amount due from plaintiff for board and lodging to defendant's wife, who owned house, which was

also home of husband and children, and did all work, held community property, which husband could

have applied as payment on note made by him, since Rev. Laws, secs. 2167, 2168, and 2169, as amended

by Stats. 1917, c. 77, limiting husband's power over such property, are inapplicable, and there was no

evidence of gift as contemplated by Rev. Laws, sec. 2169.

2. Husband and Wife. Loan to husband after marriage is presumed to be loan to community.

3. Husband and Wife. All property acquired after marriage is presumed to be community property and burden of proof is on

person claiming to contrary.

4. Husband and Wife—Court Held Not Required by Statute to Order that Wife Be Made

Party to Action against Husband on Note, where Board Bill Due Her, which Was

Community Property, Had Been Applied as Payment Thereon. Where payee of note showed that amount he owed maker's wife for board and lodging was applied as

payment thereon, court held not required, under Rev. Laws, sec. 5008, to order that she be made party to

action on note, where amount due from plaintiff was shown to be community property, since wife is in

legal effect party to every action involving community property.

5. Husband and Wife. Husband is deemed sole owner of community property, under statute, for purposes of defending

action involving it.


6. Interest. Judgment on note bearing interest at 5 1/2 per cent, cannot bear higher rate, in view of 3 Rev. Laws,

sec. 2500.

See 31 C.J. sec. 1107, p. 27, n. 2; sec. 1142, p. 49, n. 3; p. 50, n. 11; sec. 1144, p. 53, n. 47; sec. 1175, p. 82, n.

63; sec. 1233, p. 148, n. 86 (new); sec. 1234, p. 148, n. 87; sec. 1246, p. 152, n. 9, 10; sec. 1247, p. 153,

n. 38 (new); sec. 1261, p. 156, n. 36; 4 C.J. sec. 2855, p. 883, n. 33; (6) 33 C.J. sec. 114, p. 229, n. 93,

94; sec. 137, p. 1205, n. 61.

Appeal from Second Judicial District Court, Washoe County; Geo A. Bartlett, Judge.

Action by Robert Jones against Albert W. Edwards. Judgment for plaintiff, and defendant

appeals. Modified and affirmed. Rehearing denied.

Mack & Green and A.F. Lasher, for Appellant:

Court erred in failing to order wife to be made party when it appeared she claimed money

due for services as separate property. Rev. Laws, 5008, which is mandatory. Robinson v.

Kind, 23 Nev. 330; Bliss v. Grayson, 24 Nev. 422.

Judgment is binding only on parties to action or those in privity with them. Ahlers v. Thomas,

24 Nev. 407; Vickers v. Vickers, 45 Nev. 274.

Wife is not in privity with husband as to rights acquired before institution of suit against him.

34 C.J. 1020.

It was impossible for lower court to find for plaintiff without passing on claim of wife who

was not party to action.

In absence of wife's agreement her separate property will not as rule be liable for

community debts. 31 C.J. 116.

Mrs. Edwards was not shown to have performed services for charity. Law implies promise

to pay where one allows another to work for him under circumstances in which no reasonable

person would expect it was to be done for nothing. 13 C.J. 274.

Huskey & Souter, for Respondent:

Defendant filed four answers. In first, second and third, he admitted nothing had been paid

on note. In ��+66��


fourth he denied that no part had been paid except $330. In first and second answers

defendant set up counterclaim, admitted he had furnished board and lodging and sought to

recover, not $10 but $40 per week therefor. In third and fourth answers he omitted

counterclaim and plead statute of limitations.

At trial another case, that of wife and husband against plaintiff, was introduced in

evidence, wherein they jointly sought to recover $50 per week for same services. Court

wisely preferred to believe plaintiff.

When case was tried by court without jury, judgment shall not be reversed for want of or

defective finding, unless, etc. Rev. Laws, 5345.

Failure to pay interest as provided terminated, stated rate and legal rate became thenceforth

operative. 3 Rev. Laws, p. 2855.

Judgment extinguished instrument by merger. 8 C.J. 621.

Assumptions necessary to bring case within Rev. Laws 5008—that wife was not party in

court below and that it appeared she had material outstanding interest in subject matter

recognized by law and which would be affected by judgment, are lacking.

Husband is proper party in suit upon chose in action which is common property. Wife is

not necessary party. Crow v. Vansickle, 6 Nev. 146.

It is not necessary to prove property acquired during coverture is community. Burden is on

opposite party. If acquired entirely by efforts of husband, though wife does not lift finger in

aid or though she is burden and detriment, still property is common. Lake v. Bender, 18 Nev.

361. Same rule applies to wife.

In Youngworth v. Jewell, 15 Nev. 45, where wife actually complied with sole traders' act,

but husband intermingled his skill and industry with hers without agreement for

compensation, Hawley, J., held property paid for with funds so raised was common and liable

for husband's debts.

In jurisdictions where wife is not necessary party in actions against husband affecting

community real ��!��


property, judgment against husband is binding against him, wife, and community estate. 31

C.J. 160.

OPINION


Action on a promissory note. The note, a copy of which is set out in the complaint, was

executed by appellant in favor of respondent on March 1, 1917, for the principal sum of

$1,000. It is alleged in the complaint that no part of the note, either principal or interest, has

been paid, except $330, which was paid on account of said note as follows: March 1, 1920,

$10; November 1, 1920, to June 5, 1921, at the rate of $10 each and every week, $320; and

that said sums so paid have been credited on account of the principal and interest of said note.

In the third amended answer the execution and delivery of the note were admitted and all

other allegations of the complaint denied. For a separate answer and defense the statue of

limitations was pleaded. The trial court found said allegations of the complaint to be true, and

rendered judgment for respondent.

This appeal is from the judgment and order denying appellant's motion for a new trial.

In order to maintain the action against the alleged bar of the statute of limitations, it was

necessary for respondent to prove the payments made on the note as alleged in his complaint.

It appeared from the evidence that respondent had boarded and roomed at appellant's home in

Reno for a week beginning March 1, 1920, and also from November 1, 1920, to June 5, 1921.

In regard to the payments respondent testified that some time in May, 1921, at appellant's

home, the latter agreed with him that his board and lodging during the times mentioned was

to be charged for at the rate of $10 per week, and to be credited on the note. Appellant denied

that any such agreement was made, and contends that the evidence shows that the amount due

for respondent's board was the earnings of appellant's wife, and, as such, is her separate

property. He contends that, �� "��B�� O ��B�� !��


when this appeared in evidence, it became the duty of the court on its own motion to order

appellant's wife, Emily Gladys Edwards, to be made a party, and that the failure of the court

to do so constitutes jurisdictional error. Briefly summarized, the testimony and evidence

bearing on this claim is as follows: Respondent roomed and boarded at the home of appellant

and his wife for for several years before the times mentioned, and had always paid his bill for

the same to Mrs. Edwards; never to appellant. Respondent applied to her to be received as a

roomer and boarder. The home where respondent boarded and lodged was the property of

Mrs. Edwards. Respondent was ill during the time in question, and Mrs. Edwards took care of

him. She cooked his food. She had his washing done with her own, and attended to the

mending of his clothes. She attended to his room, except at times when she had a maid.

Appellant wanted respondent to be removed to a hospital, but Mrs. Edwards would not permit

it.

On the trial of the case, which commenced December 3, 1924, respondent introduced in

evidence a complaint filed November 28, 1924, in which appellant and his wife, Emily

Gladys Edwards, are plaintiffs, and respondent is defendant. In that complaint the claim

which respondent seeks in the instant action to apply as credits on the promissory note is set

forth, including claims for care and nursing as a cause of action in favor or Mrs. Edwards

against respondent, and judgment is prayed for her by her against him.

Respondent also introduced in evidence appellant's answer, and the first amended answer

in the instant case verified by him, in each of which a counterclaim is set forth by appellant

and his wife against respondent for board and lodging, nursing and care, at appellant's house

from the 1st day of November, 1920, to and including June 5, 1921.

Explanatory of his position taken in the counterclaims of the answer and first amended

answer that the respondent's board and lodging constituted a debt due to him, appellant

testified as follows:

“A. I presumed that I was entitled to the same as ��


Mrs. Edwards. Whatever Mrs. Edwards done was for me, but she took the opposite stand, and

considered it for herself, not for me.

“Q. Your idea that everything that belonged to the wife belonged to you? A. Yes.

“Q. You felt that way? A. Yes, certainly.

“Q. Until you— A. Until I found out different.”

He testified also that during the time in question he had no business of any kind or

character with respondent with reference to his board and lodging. He testified, further, that

the place where respondent boarded and roomed belonged to Mrs. Edwards, but admitted that

it was his home, where he had lived for a number of years, and the place from which he

registered for the purpose of voting.

The claim that the evidence disclosed such an interest in the amounts owed by respondent

sought to be applied as payments on the note as made it mandatory upon the court to make

her a party is made under section 5008 of the Revised Laws of Nevada, which in part reads:

“The court may determine any controversy between parties before it, when it can be done

without prejudice to the rights of others, or by saving their rights; but when a complete

determination of the controversy cannot be had without the presence of other parties, the

court must then order them to be brought in. * * *”

1. Did the court err in not making Mrs. Edwards a party? The determination of the

question is dependent upon whether the property concerning which the agreement was made

between respondent and appellant was community property or the separate property of the

wife, and, if community property, whether it was subject to any exceptions to the provisions

of law giving the husband the absolute power of disposition thereof. That such an agreement

was actually made is settled by the finding of the court on the conflicting testimony of

respondent and appellant. Section 2160 of the Revised Laws, as amended by Stats. 1917, p.

121, reads:

“The husband shall have the entire management and control of the community property,

with the like absolute power of disposition thereof, except as hereinafter �� 1


provided, as of his own separate estate; provided, that no deed of conveyance or mortgage of

a homestead as now defined by law, regardless of whether a declaration thereof has been filed

or not, shall be valid for any purpose whatever unless both the husband and wife execute and

acknowledge the same as now provided by law for the conveyance of real estate; provided

further, that the wife shall have the entire management and control of the earnings and

accumulation of herself and her minor children living with her, with the like absolute power

of disposition thereof, when said earnings and accumulations are used for the care and

maintenance of the family.”

The first proviso of the foregoing section is obviously inapplicable in his case, and there is

no evidence tending to show that the property sought to be applied as payments on the note

was subject to the sole disposition of the wife as contemplated by the second proviso. Section

2167 of the Revised Laws provides:

“The earnings of the wife are not liable for the debts of the husband.”

2. This section is likewise inapplicable. If it were conceded that the amount due for

respondent's board and lodging was the earnings of the wife, there is nothing to show that it

was applied to the payment of the debt of the husband. The loan evidenced by the note was

made after marriage, and, nothing appearing to the contrary, it must be presumed to be a loan

to the community. 5 R.C.L. 857, 858. Was the property then community property subject to

the disposition of the husband? As is seen from the evidence stated, respondent's board and

lodging was furnished after appellant's marriage. Under the existing statutory law all property,

with certain exceptions, acquired after marriage is community property. Property acquired

afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is

among the exceptions. It is the separate property of the spouse so acquiring it. The other

exceptions are as follows:

“The earnings and accumulations of the wife and of �� 1


her minor children, living with her, or in her custody, while she is living separate from her

husband, are the separate property of the wife.” Section 2168, Rev. Laws.

“When the husband has allowed the wife to appropriate to her own use her earnings, the

same, with the issue and profits thereof, is deemed a gift from him to her, and is, with such

issues and profits, her separate property.” Section 2169, Rev. Laws.

3. Appellant and his wife and their children were living together during all of the times

mentioned; consequently section 2168 has no application. All property acquired after

marriage is presumed to be community property, and the burden of proof is upon the person

claiming to the contrary. Lake v. Bender, 4 P. 711, 7 P. 74, 18 Nev. 361; State v. Langan, 105

P. 568, 32 Nev. 176. As said in the first case above cited:

“It is conceded that property acquired during coverture presumably belongs to the

community. The burden is on the defendant in this case to overthrow this presumption, by

proof sufficiently clear and satisfactory to convince the court and jury of the correctness of his

claim, as in other cases.”

Applying this rule to the evidence, the claim of a gift from appellant to his wife is not

sustained. In fact, there is no evidence of a gift as contemplated by section 2169. No

agreement of this kind appears in the record. True, respondent formerly paid his bills to Mrs.

Edwards, but it is nowhere indicated that the moneys so received by her were appropriated to

her use. It also appears that she did all the work in connection with the care and maintenance

of respondent as a boarder and roomer, except at times when a maid was employed, and also

cared for him in his sickness, but this, standing alone, has no bearing on the question of a gift.

And, further, the counterclaims in the answers, and appellant's explanation thereof as

heretofore stated, furnish strong evidence of the fact that there was no intention on his part of

allowing his wife to appropriate the amount to be ��


paid by respondent for his board and lodgings to her own use.

4. Stress is laid on the fact that the house where respondent boarded and roomed belonged

to Mrs. Edwards, having been acquired by her before marriage. This would not help

appellant, unless it also appeared that the moneys due for respondent's board and lodging

were the rents, issues of such separate property, which under the statute would also become

her separate property. We do not think this is established under the evidence. Mrs. Edwards

was not running a hotel on her own account and using the profits for such purpose. The house

was the home of appellant and his wife and their children, and the keeping of respondent was

merely incidental. Its ordinary use was as a home, and, in the absence of evidence to the

contrary, it must be presumed, under the rule heretofore stated, that the necessaries for the

main and incidental purpose were supplied from the community funds. Any profits flowing

therefrom would belong to the community. Our opinion, therefore, is that the lower court was

justified in concluding from the evidence that respondent's indebtedness for board and

lodging was community property, which appellant had the right, under the statute, to have

applied as payment on the note. Being community property, it was not incumbent on the court

under section 5008 to have made an order that Mrs. Edwards be brought in as a party to the

action.

5. As the suit involved community property, her husband was, under our statute, deemed

the sole owner of such property for purposes of defending such action. Referring to the

provision of our law which gives the husband the entire management and control of the

community property, with the like absolute power of disposition as of his own separate estate,

this court, in Crow v. Van Sickle, 6 Nev. 146, said:

“By virtue of it, the husband is—for the purpose of bringing suits upon choses in action

which are common property, and so far as the disposition of such property ��J�� 1


is concerned—the sole owner, and he alone is the proper party to bring actions upon them.”

If he is the proper party to bring actions upon community property, he is certainly the

proper party to defend actions involving it.

In Malmstrom v. People's Ditch Co., 107 P. 98, 32 Nev. 246, this court held that, where

title to land purchased with money earned after marriage is taken in the name of the wife, the

land is community property under the husband's control, so that an action for injury thereto

may be maintained by him alone.

In Jordan v. Moore, 65 Tex. 366, the court said:

“The husband, as the representative of the community, under the statute, may alone sue for

and collect any claim due to the community, and a judgment in his favor, or against him, will

bind the wife, as to such estate, as fully as she could be bound were she a party to the action.”

In Ballenger on Community Property, in section 176, the author states what we conceive to

be the true rule deducible from the cases under a statute making the husband the

representative of the community:

“In suits involving community interests, the husband, as the representative of the

community, may alone sue for and collect claims due the community, and a judgment in his

favor or against him will bind the wife as to such estate as fully as she could be bound were

she a party to the action, unless in cases in which the right of the wife to assert claims to

community property is recognized for her own protection. The wife is, however, in legal

effect a party to every action involving the community, and a judgment against the husband

alone, touching community property, is conclusive as to the title to the property upon both

husband and wife. The authorities are uniform in holding that, in actions involving the rights

and liabilities of the common property, the husband is the proper person to prosecute and

defend the interests of the marital partnership, and that she is neither a necessary nor a proper

party thereto.”

We have no quarrel with the authorities cited by �� ,��?��


appellant to the effect that, under the provisions of section 5008, when it appears that one not

a party is a necessary party, it is the duty of the court of its own accord to order such a one to

be brought in. But by virtue of the rule involved it appears from the evidence that Mrs.

Edwards was in legal effect a party to the action, and no duty was imposed upon the court by

that section. Moreover, had the court ultimately concluded that the compensation due was her

separate property, her presence as a party would not have been necessary to a complete

determination of the controversy. The plaintiff would simply have failed in his action.

6. The court entered judgment in favor of respondent for the unpaid principal and interest,

with interest thereon at 7 per cent per annum, and this is assigned as error. It is claimed that,

as the note bore interest at 5 1/2 per cent per annum, the judgment thereon must bear the same

rate of interest. This contention is well taken. Section 2500 of 3 Rev. Laws in part provides:

“Parties may agree for the payment of any rate of interest on money due, or to become due,

on any contract, not exceeding, however, the rate of twelve per cent (12%) per annum. Any

judgment rendered on any such contract shall conform thereto, and shall bear the interest

agreed upon by the parties, and which shall be specified in the judgment.”

By virtue of this plain provision the judgment rendered should bear interest at the rate of 5

1/2 per cent per annum, the rate of interest expressly agreed upon in the note. To this extent

the judgment is ordered modified, and in all other respects affirmed.


July 30, 1926.

Per Curiam:

Rehearing denied.

____________


SIEBERT v. SMITH

No. 2671

April 12, 1926. 244 P. 1012.


1. Appeal and Error—Defendant, on Appeal, May Not Make a Contention Opposite to thatMade by Him on Demurrer in the Lower Court and Sustained by It.

Defendant, having demurred to the first cause of action on the ground that it did not plead a valid

contract, and demurrer having been sustained, may not, on appeal from judgment for plaintiff on the

second cause of action, on quantum meruit, shift his position and claim that plaintiff had a valid contract.

See 4 C.J. sec. 2609, p. 701, n. 49.

On petition for rehearing. Rehearing denied.

For opinion on merits, see 49 Nev. 120.

William M. Kearney, for Petitioner:

Recovery cannot be had on quantum meruit where express contract exists. Perkins v. Hart,

11 Wheat. 463.

Party must perform contract unless performance is made impossible through no fault of

his. Himld v. Jones (U.S.), 17 L. Ed. 762.

If claim is on quantum meruit and proof shows express contract, there is fatal variance.

Edinger v. Sigwart, 110 P. 521.

Plaintiff must recover on cause alleged and not upon some other developed in proof.

Mondran v. Goux, 51 Cal. 151.

If agreement is to be carried out in some way other than by payment of money, general rule

is it must be declared on specially. Eastland v. Sparks, 22 Ala. 607.

Proposition of law once decided by appellate court is not open to reconsideration upon

subsequent appeal or writ of error. Bouvier's Law Dictionary, “The Law of the Case”;

Messinger v. Anderson (U.S.), 56 L. Ed. 1152.

Ruling on demurrer is not such final adjudication that court may not reconsider its action

and enter contrary order. Dowie v. Priddle, 75 N.E. 243.


John D. Hoyt, for Appellant:

Petitioner urges this court to place construction upon pleadings and facts diametrically

opposite to his position in court below. He seeks to establish premise, which neither facts nor

law of case as established by ruling on demurrer justifies, that appellant proved valid express

contract and that court below recognized it as such, ignoring fact that lower court held it not

valid and express, but indefinite, uncertain and unenforceable. Whether right or wrong, court

should and did adhere to ruling and follow it to logical conclusion.

OPINION

Per Curiam:

Counsel for respondent, in his petition for a rehearing, says:

“In the case at bar, if I am not mistaken, Mr. Siebert, the appellant, had a valid contract by

which he could have received the stock which, according to his complaint, was to be

delivered to him upon the fulfillment of the conditions specified in the alleged contract.”

The first cause of action pleaded in the complaint was upon the alleged contract. This

cause of action was demurred to by respondent upon the ground that it did not state facts

sufficient to constitute a cause of action, in that it did not plead a binding contract. The

demurrer was sustained. It seems that respondent seeks to shift his position, in that he now

says the plaintiff “had a valid contract.” This he cannot do. This court, in State ex rel. v.

Commissioners of Lander County, 35 P. 300, 22 Nev. 71, quoted from Bigelow on Estoppel,

as follows:

“It may accordingly be laid down as a broad proposition that one who has taken a

particular position in the course of a litigation must, while that position remains unretracted,

act consistently with it.”

See Wheeler v. Hurley, 49 Nev. 70.

After a careful consideration of the petition, we fail to find any justification for the granting

of a rehearing.

Petition for a rehearing is hereby denied.


On Costs

May 19, 1926. 246 P. 1.

1. Costs.

Cost bill, filed within time limit after filing of order denying petition for rehearing, is

in due time.

2. Costs—Verified Bill Stating Costs are Correct and Necessarily Incurred Is Sufficient

(Supreme Court Rule 6).

Under supreme court rule 6, requiring that one seeking to recover costs file bill

stating “actual” costs, a bill stating that costs listed are “correct” and “necessarily

incurred” is sufficient.

See 15 C.J. sec. 655, p. 262, n. 24, 28 (new); 3 C.J. sec. 1589, p. 1420, n. 31; 4 C.J. sec.

2528, p. 641, n. 9.

From a ruling of the clerk of court, overruling objections to cost bill of plaintiff, defendant

appeals. Ruling sustained.

OPINION


The respondent filed objections to the cost bill of the appellant, the grounds of objection

being:

“(1) That the said cost bill is not in conformity with the rule of the supreme court with

reference to cost bills, particularly rule VI of the supreme court.

“(2) That rule VI has not been complied with in showing the actual cost of typing and

printing.

“(3) That said cost bill was not filed within the time allowed by law or the rule of court in

that the said decision and opinion was published in the year 1925.”

The clerk of the court overruled the objection and allowed costs as claimed in the cost bill.

Respondent has appealed from the ruling of the clerk.

1. There is no merit in the objection. As to the last point made, it appears that the cost bill

was filed within the time limit after the order denying respondent's petition was filed. This is

within time. Ramelli v. Sorgi, 40 Nev. 281, 161 P. 717.

2. As to the second ground of objection, it may be said that the proof of the claim was

identical to that in the case of Sorge v. Sierra Auto Supply Co. et al., 48 Nev. 60, 227 P. 320;

hence it is sufficient.


The first objection is very general, and does not point out wherein the cost bill is not in

conformity with the rules of the court. Counsel does not refer to it in his brief, and hence

evidently waives the point. An inspection of the cost bill shows, however, that it is sufficient.

The ruling of the clerk is sustained.

____________

��49 Nev. 313, 313 (1926) Segale v. Pagni��

SEGALE v. PAGNI, Et Al. (PAGNI, Et Al., Interveners).

No. 2724

April 13, 1926. 244 P. 1010.

On Motion to Dismiss Appeal

1. Appeal and Error. Absence of bill of exceptions in record, settled and allowed by the court or stipulation of parties, is

not ground for dismissal, as judgment may be reversed for errors appearing on face of judgment roll

alone.

2. Appeal and Error. Appellant, failing to file properly prepared and certified transcript of record, will be given opportunity

to prepare and file it in compliance with Stats. 1923, c. 97, and supreme court rule 4.

3. Appeal and Error—Under Stats. 1923, c. 97, Sec. 1, Transcript of Record Properly

Certified becomes Bill of Exceptions (Stats. 1915, c. 142, Sec. 3); “In Lieu Of.” Under Stats. 1923, c. 97, sec 1, transcript of testimony, certified by court to be full, true, and correct,

becomes bill of exceptions, notwithstanding Stats. 1915, c. 142, sec. 3; “in lieu of,” as used in Stats.

1923, meaning in place of, or instead of.

See 4 C.J. sec. 1808, p. 209, n. 21; sec. 1811, p. 213, n. 48; sec. 2380, p. 572, n. 31 (new); sec. 2399, p. 588, n.

87 (new); 37 C.J. p. 347, n. 1.

Appeal from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge.

Action by Eugene Segale, as administrator of the estate of Mike Moroni, deceased, against

Sabatino Pagni and others, in which Antoinetta Pagni and another intervened. From the

judgment, interveners appeal. On motion to dismiss appeal and affirm judgment. Motions

denied with directions.


William M. Kearney, for Movant:

There can be no bill of exceptions without five days service and notice that it was filed as

such. There was no service in this case of any bill of exceptions. Proposed record on appeal

only, was served. Stats. 1915, 142; Stats. 1923, c 97; Stats. 1915, c. 142. If appellants claim

they served bill of exceptions, they then served no record on appeal. Transcript is bill of

exceptions only when filed, allowed, settled and certified to as such. Stats. 1915, c. 142.

Court must settle bill of exceptions, if within five days objections are made thereto. Stats.

1923, c. 97; Capurro v. Christensen, 46 Nev. 249; Scossa v. Church, 43 Nev. 407.

Document designated “notice of appeal” which was not attached to and made part of record,

nor certified to, and no showing made that it was served has no place in files on appeal.

Reinhart Co. v. Oklahoma Co., 48 Nev. 32.

It is apparent that there is no means of settling or correcting bill of exceptions because it is

too late to serve bill to correct lack of service, jurisdiction has escaped lower court, and this

court cannot now take jurisdiction. 3 C.J. par. 1252, 1366; Baker v. Borello, 63 P. 914.

Frame & Raffetto, for Appellants:

Reporter's certified transcript was served November 2, 1925, not as purported bill of

exceptions but as complete transcript of proceedings. Within two or three days judgment roll

was also served. Movant attempts to make obsolete statue apply to later provisions of Stats.

1923, c. 97, which provides new method for preserving record in addition to that heretofore

provided, including Stats. 1915, and says filing of full and complete transcript certified by

reporter shall stand as bill of exceptions. Transcript becomes bill of exceptions upon signing

and certifying. It would be idle to contend for necessity of settling it by judge when it is

expressly provided it need not be so settled. It may be corrected at any time on written

application.


OPINION


This case is before the court on respondent's motion to dismiss the appeal and for an order

affirming the judgment.

1. The first three grounds of the motion are based upon the proposition that there is no bill

of exceptions in the record settled and allowed by the court or judge or by stipulation of the

parties. There is a pretended bill of exceptions in the record, certified and sworn to by the

court stenographer, but, if not effort had been made to embody a bill of exceptions in the

record, the motions should be denied so far as the first three grounds are concerned, for the

reason that we cannot, at this stage of the proceedings, assume that appellants may not

contend that, for errors appearing upon the face of the judgment roll alone, the judgment

should be reversed.

2. The fourth ground of the motion is that appellants did not serve and file, as provided by

law, a completed record on appeal, and that no certificate of the clerk of the trial court was

served upon respondent prior to December 2, 1925. There is not such a transcript on file as

the law contemplates, but, as we said in Shirk v. Palmer, 232, P. 1083, 48 Nev. 449:

“While there is not in the record in this case a properly prepared and certified transcript of the

record, we would not feel justified in dismissing this appeal, without giving the appellant an

opportunity to prepare and file such a transcript, in compliance with rule 4 of this court and

the statutes pertaining to such matters. Such is the spirit of the act of 1923.”

See, also, E. Reinhart Co. v. Oklahoma Gold Mining Co., 226 P. 902, 48 Nev. 32.

In this connection we may say that, in the recent case of Water Co. v. Tonopah Belmont

Development Co. (Nev.), 241 P. 1079, we made certain rulings relative to the requirements in

bringing up a record on appeal.

It is next contended that the so-called record on appeal was not filed within 30 days after

the appeal was ��


perfected. There is an undisputed affidavit in the record showing that the notice and

undertaking on appeal were served upon respondent on October 23, 1925. The so-called

record on appeal was filed with the clerk of this court on November 6, 1925. It seems to have

been filed within 30 days from the taking and perfecting of the appeal.

As to the motion to strike the so-called record on appeal, and that the judgment be

affirmed because of failure to comply in various ways with paragraphs 1, 3, and 4, of rule IV

of this court, we may say that, in view of the act of 1923, as construed and applied in Shirk v.

Palmer, supra, we do not see how we can consistently make an order to strike and dismiss

except on condition that appellants be first given an opportunity to comply with the rule.

In passing on the first three grounds of the motion, we have not deemed it necessary to

refer to the nature of the attack upon the bill of exceptions.

3. Since the motions in this case were orally argued, and, after a tentative opinion had been

prepared, counsel for respondent filed herein a further memorandum of points and authorities

in support of the motions. The point therein made is that section 1 of chapter 97, Stats. 1923,

relative to the settling of a bill of exceptions is inpari materia with section 3, c. 142, Stats.

1915, and that, since the statute of 1915 allowed five days within which a respondent might

take steps to correct such so-called bill of exceptions, and since said so-called bill of

exceptions was transmitted by the clerk of the trial court to and filed by the clerk of this court

before said five days were up, there is no bill of exceptions in the record. It is further said that

the attorney for the respondent was not served with a bill of exceptions, though it is admitted

that he was served with a transcript of the testimony certified to as being correct by the

official court reporter. Section 1 of chapter 97, Stats. 1923, reads:

“At any time after the filing of the complaint and not later than twenty (20) days after final

judgment, or if a motion be made for a new trial, then within twenty C&�D�� !�� !��


(20) days after the decision upon such motion, any party to an action or special proceeding

may serve and file a bill of exceptions to such judgment or any ruling, decision, order, or

action of the court, which bill of exceptions shall be settled and allowed by the judge or court,

or by stipulation of the parties, by attaching thereto or inserting therein a 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, and

when such bill of exceptions has been so settled and allowed it shall become a part of the

record in such action or special proceeding. 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.”

The transcript of the testimony is in strict conformity to the provision of the last sentence

of the section. That sentence provides that a transcript duly certified to by the court reporter

may be filed in lieu of the bill of exceptions. This seems clear enough. The Standard

Dictionary defines the word “lieu” as “place; stead—used chiefly in the phrase in lieu of.”

Webster's New International Dictionary defines it as follows: “Place; room; stead—used

chiefly in the phrase in lieu of; that is, instead of.” Giving the words of the statute their usual

meaning, it provides that the transcript of the testimony certified to by the court reporter

might be filed in the place of, or instead of, a bill of exceptions. But the language of the

statute needs no interpretation, for it says that, when so certified and filed, the transcript of

the evidence shall be and constitute the bill of exceptions without further stipulation or

settlement. The bill of exceptions is in strict conformity with the law. There being a perfect

bill of exceptions in the �� !��


record, all objections thereto are without force. We do not mean to be understood as holding

that such bill of exceptions cannot be corrected, but section 3 of the 1915 act in no way

affects the settling of a bill of exceptions when settled as in this case, pursuant to the 1923

act. Our statutes use the term “bill of exceptions” very loosely. A transcript of the testimony

in a case, properly speaking, is only a tendered bill of exceptions until it is settled in one of

the methods provided by law, when it becomes a bill of exceptions. The 1915 act provides the

method to be resorted to, to bring about the settlement of what is really a tendered bill of

exceptions, which becomes a bill of exceptions when settled. The same may be said as to the

first portion of section 1 of the 1923 act, but the last sentence of this act provides, in

substance, that a transcript of the testimony, properly certified, shall have the force and effect

of a bill of exceptions.

The situation here presented, along with the confusion which has been created by the

numerous amendments since the revision of our practice act in 1912, demonstrates the

importance of an act authorizing this court, with the aid of a committee of experienced

practitioners, to draft, adopt, and promulgate rules regulating the procedure in taking an

appeal from judgments and orders of the district courts.

It is ordered that the various motions made by the respondent be, and the same are hereby,

denied. It is further ordered that appellants have 15 days in which to prepare, serve, and file

herein a corrected transcript of the record proper in compliance with the statute and rule IV of

this court. For failure to comply with this order, the appeal may be dismissed.

____________

��49 Nev. 319, 319 (1926) McGuire v. Ehrlich��

McGUIRE v. EHRLICH

No. 2715

May 5, 1926. 245 P. 703.

1. Executors and Administrators—Administratrix's Right of Action in Unlawful Detainer

Rests on Right of Estate to Possession of Such Property. Sole test as to administratrix's right of action in unlawful detainer is right of estate to possession of

property.

2. Executors and Administrators—Possessory Right of Administratrix to Property of

Deceased Terminates when Estate Is Settled or Delivered Over by Order of District

Court to Heirs or Devisees. When estate is settled or delivered over by order of district court to heirs or devisees, possessory right

of administratrix to estate of deceased, and right to receive rents and profits thereof under Rev. Laws, sec.

5950, terminates.

3. Executors and Administrators—Title to Property of Deceased Sold by Administratrix

Vests in Vendee by Order of Confirmation of District Court. Under Rev. Laws, secs. 5980, 5999, title to property of deceased sold by administratix vests in

vendee by order of confirmation of district court, and deed is nothing more than an act of officer of court

pursuant to decree.

4. Executors and Administrators—Administratrix Held Real Party in Interest Prior to

Confirmation of Sale Entitled to Maintain an Action for Possession of Leased Property

of Estate and to Recover Accrued Rents. Administratrix held real party in interest, in view of Rev. Laws, sec. 5950, entitled to maintain an

action for possession of leased property of estate, and to recover accrued rents, notwithstanding her sale

thereof by court order to another, where such sale had not been confirmed by district court.

5. Executors and Administrators—Notice, Served on Tenant for Payment of Rent or

Surrender of Premises Belonging to Deceased, Held Not Invalid Because Signed by

Attorney for Administratrix. Notice, served on tenant calling for payment of rent or surrender of premises belonging to estate of

deceased, held not invalid because signed by attorney of administratrix, and without showing that he was

an attorney at law or in fact.

6. Executors and Administrators. In administratrix's action to recover property belonging to estate, question of ownership of property

by deceased held one of fact.

7. Appeal and Error. Trial court's finding of fact, based on conflicting evidence, is conclusive on appeal.

8. Appeal and Error. Reviewing court cannot consider papers or files which do ��!��


not constitute a part of judgment roll, and have not been incorporated in a bill of exceptions.

See (1-4) 24 C.J. sec. 596, p. 133, n. 42; sec. 603, p. 135, n. 62; sec. 609, p. 139, n. 86; sec. 610, p. 139, n. 92;

sec. 1532, p. 608, n. 41; sec. 1709, p. 695, n. 62; sec. 1710, p. 695, n. 69; sec. 2267, p. 910, n. 90; (5) 36

C.J. sec. 1840, p. 641, n. 15; (6) 36 C.J. sec. 1885, p. 667, n. 61 (new); (7, 8) 4 C.J. sec. 1786, p. 180, n.

34.

Appeal from the Fifth Judicial District Court, Nye County; Frank T. Dunn, Judge.

Action by Ethel B. McGuire, as administratrix of the estate of I.M. Hensley, deceased,

against Joe Ehrlich. From a judgment for plaintiff and an order denying a motion for new

trial, defendant appeals, and plaintiff appeals from so much of judgment as relates to costs.

Affirmed.

I.S. Thompson, for Appellant:

Plaintiff was not real party in interest, owner, nor entitled to possession when she sold

property. Order confirming sale directed administratrix to execute conveyance of whatever

title deceased had in property, giving purchaser title from date of sale. 11 A. & E. Ency. 1114;

Halliburton v. Sumner, 29 Ark. 460.

Purpose of action of forcible entry and unlawful detainer is purely for rent and possession,

not to try rights of parties nor title. Rev. Laws, 6743; Iburg. v. Fitch, 57 Cal. 189; 13 A. & E.

Ency. 743.

Notice to quit must be given immediately upon default in payment of rent. Suit must be

commenced promptly after notice. 13 A. & E. Ency. 771; New v. Collins, 21 Okl. 430.

Plaintiff's name must be signed to notice, even though it is signed by representative. 26

C.J. 838.

Occupancy of house on tract does not constitute forcible entry or unlawful detainer of

entire tract, particularly when there was offer to prove portions were rented to and occupied

by others. Thompson v. Smith, 28 Cal. 528.

Possession is the issue, rent and damage only incidental. Caulfield v. Stevens, 28 Cal. 121.


Orr Ditch and Frezeau cases are cited by respondent. The Orr Ditch case was on contract;

the Frezeau case upon promissory note. Neither was upon forcible entry and unlawful

detainer and does not apply.

Counsel's stipulation did not make judgment roll plaintiff's bill of exceptions, and

appellant's bill does not help respondent. In Ehrlich's bill she has no notice of appeal, no

assignment of errors, and no record on which to base hearing here. Statute regulates what

shall constitute judgment roll. Any additional papers are surplusage. Rev. Laws. 5273.

Ryland G. Taylor, for Respondent:

It matters not whether plaintiff is real party in interest or not because it does not appear

that defendant had any interest in property. Only those interested can make objection. Estate

of Arguello, 50 Cal. 308. Nor can sale be collaterally attacked. Estate of Devincenzi, 51 P.

845. Sales must be reported to court and confirmed before title passes. 1 Ross Probate Law

and Practice, 589.

Lang could not have been made party until sale was confirmed. In any event it was

appellant's duty to move that Lang be made party. No such motion was made. It is too late to

make that claim for first time here. He who is silent when he ought to have spoken shall not

be heard when he ought to be silent. 96 U.S. 720.

It was not error to refuse defendant's testimony as to Alred's taking possession. Their

differences were collateral. There is no complaint that plaintiff did not permit defendant

peaceable enjoyment.

Penal features of unlawful detainer statute have been nullified by Hoopes v. Myer, 1 Nev.

433. Mere fact that prayer of complaint demands treble damages could not damage defendant

if they were waived and denied by court. Court did not impose penalty or damages but

allowed agreed rental. No damage was done defendant by alleging statutory notice in

unlawful detainer and demand for treble damages. Statute provides what ��

��


complaint shall contain. Complaint showing good cause is not bad because of unnecessary

averments contained therein. Orr Water Ditch Co. v. Reno Water Ditch Co., 19 Nev. 60.

It does not matter what complaint demands, providing court does not exceed prayer and

judgment is supported by evidence.

Delay in bringing suit would not waive rent due. Defendant cannot claim that because he

did not pay rent when demanded, he should not pay it at all.

Attachment may issue in action upon contract for direct payment of money not secured by

mortgage, etc. Rev. Laws, 5147. What is agreement to pay rent if not such contract?

Where plaintiff recovers three hundred dollars or more, costs are allowed of course. Rev.

Laws, 5377.

If appellant has bill of exceptions, respondent has one also for reason that bill of appellant

has been adopted by parties as bill of respondent. This case differs from Shirk v. Palmer, 48

Nev. 451. In this case there is bill of exceptions properly before court. Matters complained of

are before court in judgment roll.

OPINION


The plaintiff below, respondent, as administratrix of the estate of I.M. Hensley, deceased,

leased the real property of said estate, consisting of 160 acres of land, together with a frame

store building, dwelling, and improvements thereon, situate in Nye County, Nevada, to the

defendant below, appellant, at a monthly rental of $25, payable in advance. The defendant

entered into the possession of the premises. Subsequently the plaintiff, as administratrix of

said estate, applied to the court for an order to sell the rented premises for the benefit of the

estate. The order of sale was obtained, and the property was advertised for sale, and sold by

the administratrix on the 17th day of November, 1923, to H.B. Lang for the price of $250. On

the 4th day of January, %�&7��


1924, the plaintiff, as administratrix, caused a demand in writing to be made upon the

defendant for the payment of rent or for the surrender of the premises within three days after

the service upon him of said demand. The defendant neglected and refused for the space of

three days after said demand to pay the rent or surrender the premises. Thereafter, on, to wit,

the 8th day of August, 1924, the plaintiff as administratrix brought this action in unlawful

detainer for the restitution of the premises and demanded judgment for $275 as rent, and for

such additional sum as might become due during the pendency of the action. Subsequent to

the commencement of the action, to wit, on the 1st day of October, 1924, the court made an

order in the matter of said estate confirming the sale of the property in November, 1923, to

H.B. Lang.

The case was tried without a jury. The court, after a full hearing upon the pleadings and

evidence, found in favor of the plaintiff, and rendered judgment against the defendant for the

sum of $325, and adjudged and ordered that each side pay its own costs.

The defendant has appealed from said judgment, and also from an order denying the

defendant's motion for new trial. The plaintiff has appealed form so much of said judgment as

relates to costs.

We shall consider first the defendant's appeals.

1-4. Appellant contends that the court below erred in refusing to grant his motion to quash

the proceedings on the ground that the proof showed that plaintiff as administratrix was not at

the time of the commencement of her action the real party in interest, and was, therefore, not

entitled to maintain this action. In support of this position it is insisted that through the

administratrix's sale of the property by court order to H.B. Lang he became, and was, the real

party in interest, and the only person entitled to the possession of the property and to the rents

and profits thereof. This contention involves the construction of certain sections of the statute

relative to the settlement of estates of deceased persons. The sole test to the administratrix's

right of ��


action is right of the estate to the possession of the property. The executor or administrator

has a right to the possession of all the real, as well as personal, estate of the deceased, and

may receive the rents and profits of the real estate until the estate shall be settled, or until

delivered over by order of the district court to the heirs or devisees. Section 5950, Rev. Laws.

When either of these events happen, the possessory right of the administrator under the

statute terminates. Meeks v. Hahn, 20 Cal. 620; Touchard v. Keyes, 21 Cal. 208. But it is

contended that section 5950, Rev. Laws, has no application, where the property is sold for the

benefit of the estate by court order upon the petition of the administratrix. Under our statute

(section 5980, Rev. Laws) no sale of any property of an estate of a deceased person shall be

valid, unless made under an order of the district court. And section 5999, Rev. Laws,

provides that, if upon the hearing for confirmation it shall appear to the court that the sale was

legally made and fairly conducted, the court shall confirm the sale and direct proper

conveyances to be made and executed, “and such sale from that time shall be confirmed and

valid.” The meaning of these provisions, it is said, clearly is that the title vests in the vendee

by the order of confirmation, and the deed is nothing more than the act of an officer of the

court pursuant to the decree. 11 Cal. Jur. sec. 588, p. 948. Passage of title takes place upon

the confirmation of the sale, and there is nothing in the statute authorizing the construction

that before the confirmation of the sale the executor or administrator is not the proper person

or real party in interest to maintain an action for the possession of the leased property of the

estate and recover the accrued rents.

5. It is argued on behalf of appellant that no legal notice was served upon him before the

commencement of this action to surrender the premises or pay rent. The notice or demand

served upon the defendant was signed by the attorney for the administratrix. We are of

opinion that such notice may be signed by an agent or attorney, and a notice signed by an

attorney need not ��


show whether he is an attorney at law or in fact. Arnold v. Krigbaum, 146 P. 423, 169 Cal.

143, Ann. Cas. 1916d, 370.

6, 7. It is contended that the proof shows that the relation of landlord and tenant did not

exist between the parties, for the reason that the property claimed by the defendant was not

owned by the deceased at the time of his death, but, on the contrary, was the property of a

third person from whom it had been purchased by the defendant during the lifetime of the

deceased, and with his knowledge. The question of ownership was one of fact, and, there

being a substantial conflict in the evidence bearing upon this question, we cannot under the

rule disturb the court's finding to the effect that at the time of the decedent's death he was the

owner of all the property described in the plaintiff's complaint.

We shall not dispose of the respondent's appeal from the judgment with respect to costs.

8. The appellant, defendant below, moved to strike from the judgment roll those certain

papers or files designated as “Memorandum of Costs,” “Notice of Motion,” and the order

signed “Frank T. Dunn, District Judge.” The papers or files so designated do not constitute a

part of the judgment roll, and, not having been incorporated in a bill of exceptions, we cannot

consider them in connection with the plaintiff's appeal. We therefore sustain appellant's

motion to strike.


____________

��49 Nev. 326, 326 (1926) Barcellos v. Gompertz��

BARCELLOS v. GOMPERTZ

No. 2700

May 6, 1926. 245 P. 700.

1. Appeal and Error. Reviewing court should disregard all errors that do not affect a substantial right.

2. Appeal and Error. Findings of trial court, supported by substantial evidence, though conflicting, will not be disturbed.

3. Sales—Finding of Trial Court, that Parties Intended Title of Property Should Pass at Time

of Sale, Held Supported by Evidence. In action to recover possession of personal property sold defendants, finding of trial court that parties

intended title should pass at time of sale held supported by evidence, although conflicting.

4. Sales—Admission in Evidence of Unexecuted Bill of Sale which Defendant Sent to

Plaintiff with Payment of Purchase Price, Held Not Erroneous, though Nothing Was

Said About Bill, Since Parties May Have Agreed that Title Would Pass when Payment

Was Made. In action to recover possession of personal property sold defendants, admission in evidence of

unexecuted bill of sale, which defendant had prepared and set over with check to be executed by

plaintiffs, held not erroneous because nothing had been said about a bill of sale, since it may have been

agreed that title would pass when payment was made.

5. Appeal and Error—Any Error in Admission in Evidence of Unexecuted Bill of Sale, in

that Nothing Had Been Said About Such Bill, Held Not Prejudicial, where There Was

Evidence that Bill Had Been Sent to Plaintiffs by Defendants. In action to recover possession of personal property sold defendants, any error in admission in

evidence of unexecuted bill of sale held not prejudicial, in that nothing had been said about a bill of sale

during negotiations, where there was evidence that such bill of sale had been sent to plaintiffs by

defendants.

6. Appeal and Error—Any Error in Refusing to Permit Cross-Examination of Defendant as

to Failure to Make Deferred payments on Property Sold Held Not Prejudicial, where

Title Passed at Time of Sale. In action to recover possession of personal property sold defendants, any error in refusing to permit

cross-examination of defendant as to his failure to make deferred payments on the property held not

prejudicial, where title to property passed to defendant at time of sale.

7. Appeal and Error—Overruling Motion to Strike Testimony Based on Particular Ground

Will Not Be Considered on Appeal, where Reason Urged for Sustaining Motion is

Different from that Assigned at Trial. Overruling of motion to strike testimony based upon a ��


particular ground in trial court will not be considered, where reason urged on appeal for sustaining

motion is entirely different from that assigned at trial.

8. Evidence—Permitting Witness to Testify as to Telephone Conversation with Plaintiff

Held Not Error, because Talk Was Made After Sale Was Concluded, Since Such

Conversation Could Not Change Contract, and Court from Conversation Could Infer

that a Sale Was Made. In action to recover possession of personal property sold defendants, permitting witness to testify as

to conversation with plaintiff held not error because talk was had after negotiations were concluded and

property had arrived at destination, since such conversation could not change the contract, and court from

conversation could infer that a sale was made.

See (1, 2, 5, 6, 7) 3 C.J. sec. 733, p. 819, n. 26; 4 C.J. sec. 2726, p. 776, n. 54; sec. 2855, p. 884, n. 37; sec.

2955, p. 975, n. 88; sec. 3190, p. 1168, n. 98, 10; (3, 4) 35 Cyc. p. 508, n. 94 (new); p. 517, n. 76; p. 518,

n. 93; (6) 40 Cyc. p. 2493, n. 37.


Action by Frank Barcellos and others against G.H. Gompertz and others, in which Sierra

Market, Inc., intervened. From a judgment for intervener and an order denying a motion for a

new trial, plaintiffs appeal. Affirmed.

Mack & Green and A.F. Lasher, for Appellants:

Rev. Laws 5006 prescribes that intervener shall file complaint stating grounds; file it with

leave of court; serve it upon parties who have not appeared; and upon attorneys of those who

have appeared. Intervener did not conform to first, second, or third requisites.

Rev. Laws 5038 was construed in State ex rel. Piper v. Gracey, 11 Nev. 223, to effect that

complaint must set forth specifically each fact in issuable form which is necessary to establish

right of action.

Having failed to allege title in Gompertz, intervener failed to allege any right in itself by

transfer from him. Gentry v. Low, 4 Nev. 99.

Parties to action in which intervention is filed have ten days to plead, as in any other case.

Rev. Laws, 5006.

If intervention should not have been allowed, evidence ��


relating to issues presented by it should be disregarded. Harlan v. Eureka Mining Co., 10

Nev. 92.

Practically whole of damages claimed occurred subsequently to institution of principal suit

and could not be made issue in case except by proper supplemental pleading. 17 C.J. 1000.

Rev. Laws 5076 prescribes proper way to plead damages.

Damages sought in answer in intervention were remote and speculative, not actual. 17 C.J.

753.

Alleged sale being fraudulent because of failure of immediate delivery and actual and

continued possession (Rev. Laws, 1078), intervening company could not be protected even as

purchaser for value without notice, since Rosenthal, its officer, assisted in transaction, thereby

charging company with notice of all he knew, even though he did not communicate it. 14a

C.J. 2350.

There was either contract for conditional sale by which seller retained title not required by

statute to be in writing (35 C.J. 663) or else no contract of sale at all.

Objection that pleading fails to state cause of action or defense may be raised at any time.

Neilsen v. Rebard, 43 Nev. 274.

W.M. Kearney, and S.H. Rosenthal (Harry Swanson on the brief), for Respondents:

Theory of amended complaint is that plaintiffs sold machinery to Gompertz upon

conditional sale.

If such be fact, fraudulent representation as to insolvency of vendee is immaterial, as

vendor was secured.

That complaint was called petition or answer is immaterial so long as it contained

allegations sufficient to conform to statute. People ex rel. Fogg v. Parris Irrigation District

(Hutchins, Intervener), 64 P. 399.

Objection that complaint in intervention does not state facts sufficient to constitute cause

of intervention comes too late when first raised upon appeal. People ex rel. Attorney General

v. Reis, 18 P. 309. As matter of fact, issues were joined by stipulation.

Petition was filed by leave of court; all parties accepted it as if it were called complaint,

and made no �!��


objection thereto. Marshall v. Golden Fleece Co., 16 Nev. 156. Objection to intervention

because of insufficiency of complaint or want of right must be made at time, or will be

considered waived. Gorham v. Heiman, 27 P. 289.

Gentry v. Low, 4 Nev. 99, is out of point because townsites require possession of lot.

Intervention must be made before trial. Rev. Laws, 5006.

Allowance or refusal of amendment will be reversed only in case court grossly abuses

discretion. 31 Cyc. 368. Rev. Laws, 5084. As no damage was allowed under amendment

appellants have no complaint.

Warehouse negotiations showed actual and constructive change of possession. Actual

manual delivery of bulky articles is not necessary. Any act done with intent to transfer

possession and dominion is sufficient. 35 Cyc. 187.

Bill of sale was not necessary, since delivery passed title in absence of contract to contrary.

Sanders v. Stokes, 30 Ala. 432; Gaudette v. Travis, 11 Nev. 149.

OPINION


This action was brought to recover the possession of certain personal property. The Sierra

Market, Inc., intervened, and judgment was rendered in its favor. The plaintiffs appealed from

the judgment and from the order denying their motion for a new trial. The parties will be

referred to as they were designated in the trial court.

The plaintiffs assigned numerous errors, among them the ruling of the court on objections

to the order permitting the intervention, and to other rulings in connection therewith. The

plaintiffs, who resided in Yerington, were the owners of the property in December, 1923. On

or about the 2d day of that month Gompertz went to Yerington, at which time he saw the

plaintiffs relative to purchasing the property. The plaintiffs ��+?,�� O��2��


agreed to take $850 for the property, half payable in cash, and the balance in four monthly

payments; the theory of the plaintiffs being that they were to retain the title until the deferred

payments were made, and that of Gompertz being that he was to get title on making the cash

payment. The testimony is to the effect that Gompertz sold the plant to the intervener after

acquiring possession of it.

1. The trial court found that the theory of the defendant and intervener as to the passing of

the title was sustained by the evidence. If we sustain this finding, it is unnecessary to

determine the other questions presented by the plaintiffs, since we should disregard all errors

that do not affect a substantial right. Ramezzano v. Avansino, 189 P. 681, 44 Nev. 86.

2, 3. It is a well-established rule in this state that, if the findings of the trial court are

supported by substantial evidence, though conflicting, such findings will not be disturbed.

Dixon v. Miller, 184 P. 926, 43 Nev. 288. Let us see if the evidence as to the passing of the

title is conflicting.

Frank Barcellos, one of the plaintiffs, testified in effect as follows: Gompertz and a man

named Davis called to see me about the property one Sunday morning early in December,

1923. My terms were $425 cash, the balance of $425 to be paid in four monthly payments, the

title to remain in us. Gompertz returned to Reno and was to let me know later if he would

take the plant. Some days later he telephone me, saying that he was going to send over a

couple of men to get the plant. Two men came over, bringing Gompertz's check and a bill of

sale. One of the men showed me the check, then put it in his pocket, and did not give me the

check and bill of sale until after they had torn down the plant and were ready to leave. They

wanted me to sign the bill of sale. I refused to do this, but gave a contract to one of the men to

deliver to Gompertz.

John Barcellos, the other plaintiff, testified:

“A. He want to buy the ice plant and asked how much #��#��+?,��


I want for it, and I said $850. He said after that he got enough money to pay for it, to buy it,

but he just starting business, and he just pay $425 down and get the plant and pay in four

payments. The first payment $125 the 10th of January, the second payment the 10th of

February $100, March $100 on the 10th, and April $100 the 10th. That is all I know about it.

“Q. Was anything else said about the terms? A. He said—never say anything about the

terms, just like that.

“Q. What did the folks say about the terms? A. I said it is good enough if I get a mortgage

on the plant.

“Q. You keep the mortgage on the property? A. Yes, sir.

“Q. What do you mean by that?

“Mr. Kearney: Objects to that as calling for a conclusion.

“A. Keep security on the property.”

This is all of the testimony on the part of the plaintiffs as to the terms of the contract.

In opposition to the testimony on behalf of the plaintiffs, Gompertz testified:

“A. I looked up Mr. Barcellos, and after a while I found him and told him I came to buy an

ice machine, and he took me over and showed me the plant and what he wanted to sell. He

stated a price to me, and I told him I though it was a little high, but we finally agreed upon a

price of $850, and I said that I didn't think I was quite able to pay $850 right down then and

there, but, if he was willing to accept four and a quarter and four notes and give me the bill of

sale for the whole complete outfit, I would buy it. He told me he would have to talk to his

brother and would meet me about 4 o'clock that evening; and about 4 o'clock his brother

showed up, and he says, ‘Yes; we will take the proposition you offered'; and I said ‘Well, I

haven't decided I want it, but I will think it over.' And I went home, and possibly a day or two

later I telephone to Mr. Barcellos and asked him if he still had the machine and if he was

satisfied to sell on the terms I offered, and I told him I would send a ��#��


truck and I would give this man the money and the bill of sale and the notes, and they would

be down possibly the next day or the day after. I told him possibly the next day, but that he

should consider the machine sold.

“Q. What was his reply? A. It was satisfactory that he would hold the machine until the

men came.”

Mr. Davis, a disinterested witness, testified:

“A. Mr. Gompertz looked all the plant over and the usual discussion, and told Mr.

Barcellos the terms he would purchase the ice plant under, and they were that he would pay

$425 in cash and the balance in four notes, and Mr. Barcellos advised him that he would have

to take it up with his partner as soon as he came back, and he would give him his answer.

“Q. Did he make any statement at that time on his own behalf? A. It apparently was

agreeable to him,

“Q. Later on when Mr. John Barcellos arrived state what took place. A. Later on Mr.

Gompertz and I came around, and finally Mr. Frank Barcellos came and told Mr. Gompertz

that the proposition was agreeable to them, and Mr. Gompertz told them he wanted to go

back to Reno before he gave them a definite answer, but, if they would hold it for a week, he

was sure he would take the machine.

“Q. Did they agree to that? A. Yes, sir.

“Q. Then you left? A. Yes, sir.

“Q. Was there anything at that time said about a mortgage or conditional sales contract? A.

There was no mention of it.”

Mr. Rosenthal, the attorney who drew the bill of sale for the property, testified:

“I put in a long distance call for the Barcellos, and in answer to that call some one at the

other end spoke, and I asked if it was Mr. Barcellos, and he stated it was, and I said, ‘I am Mr.

Rosenthal, the attorney for Mr. Gompertz, and I wish to take up with you the matter of the bill

of sale which was promised with reference to an ice machine that Mr. Gompertz purchased

from you'; and I says, ‘Mr. Gompertz complains that you have not sent the bill of sale back

that I prepared for him'; and �� ;�� /*� �"#��/0��


a voice on the other end stated to me that the reason they had not sent the bill of sale back

was because they had been advised as soon as they had shipped the machine or the ice plant

had left Yerington that it was not the proper way to handle the thing, but that they should

have entered into a conditional sales contract, that they had no protection. ‘Well,' I says, ‘That

was not your original understanding with Mr. Gompertz,' and then he says, ‘That don't make

any difference, we have changed our mind'; and then I said, ‘Well, then you return the $425 to

us, and we will redeliver the ice plant to you'; and there was a little hesitation, and then the

voice at the other end said, ‘Well, we will send you the bill of sale, but by God we will collect

the notes too.'”

Upon the conclusion of the trial, the court expressed its views of the evidence, saying that

the plaintiffs had failed to prove their case; that the two witnesses in behalf of the defendant

were much more intelligent and were corroborated.

The fact is, if the testimony of John Barcellos is given its strict legal interpretation, the

only inference from it is that the title was to pass, for the plaintiffs could not take a mortgage

back unless it did pass. Taking into consideration the fact that Davis is a disinterested

witness, that Frank Barcellos flatly denied talking with Rosenthal over the telephone until

confronted with the bill for the talk from the telephone company, and the further fact that the

$425 check was cashed at a time which shows that his testimony, that he did not receive it

until the men sent for the plant were ready to leave, was false, we do not see how the trial

court could have reached any other conclusion. But in any event, the testimony being

conflicting, we cannot say that the findings are not sustained by the evidence, or that the court

erred in rendering the judgment or in overruling the motion for a new trial.

In view of the finding that title to the property in question passed to Gompertz, which is

amply sustained by the evidence, it is not necessary that we dispose of any of the assignments

of error relative to the sale by O��2�� O��2��


Gompertz to the intervener, since the plaintiffs parted with their interest in the property and

could not complain of any disposition which Gompertz might make thereof.

4, 5. There is no merit in the assignment going to an alleged error in admitting in evidence

the unexecuted bill of sale which Gompertz had prepared and sent over with the check to be

executed by the plaintiffs. In support of this assignment, reliance is placed upon the force of

the testimony in behalf of the plaintiffs to the effect that nothing was said about a bill of sale

during the negotiations. Nothing may have been said about a bill of sale, and yet it may have

been agreed that title would pass at the time the cash payment was made; if so, it was natural

that Gompertz would send over the bill of sale. In any event, there is evidence in the record

that such bill of sale was sent over by the men, and the admission of the bill of sale was in no

way prejudicial.

6. It is next insisted that the court erred in refusing to allow plaintiffs' attorney to

cross-examine Gompertz as to his failure to make the deferred payments on the property. We

are at a loss to see how plaintiffs were prejudiced by such ruling. If title to the property

passed on delivery and the payment of the $425, failure to pay the balance would not affect

the situation, nor would a failure to make the deferred payments enable the court to determine

what the real contract was. The court did not commit error. Nor did the court err for the same

reason as claimed in assignment K.

Assignment L pertains to a ruling as to testimony of witness Davis as to a conversation

which he heard. Counsel say in their brief:

“This evidence is wholly immaterial and calculated to mislead the court. That it did, in

effect, have this tendency, is shown from the court's decision in which he stressed the

particular conversation.”

In the first place, if the testimony was immaterial, it certainly would not influence the

court. In fact, the court did not stress the conversation. In alluding to this evidence, the court

said: <...*��9��"��#��"��#��1


“* * * What David heard in the attorney's office and what he heard over the phone, I don't

think I need mention.”

7. Assignment M is wholly without merit. The motion to strike the testimony was upon a

particular ground. The reason urged here why the motion should have been sustained is for an

entirely different reason than that assigned at the trial.

8. The next contention is that the court erred in permitting the witness Rosenthal to testify

as to a telephone conversation with one of the plaintiffs, on the ground that the talk was had

after the negotiations were concluded and after the property had arrived in Reno. The motion

to strike made during the trial reads: “Move to strike that out as not changing the contract in

any way.” Counsel must stand here upon the ground assigned in the trial court. As a matter of

fact, the court did not err under either contention. What was said over the telephone could not

change the contract, but the reason given by plaintiff over the telephone was not on the

ground that no sale had been made, but because they had been advised it was not handled

properly, from which the court might have inferred that a sale was made, as contended by Mr.

Rosenthal.

For the reasons given, the judgment must be affirmed, and it so ordered.

____________

��49 Nev. 336, 336 (1926) Thompsen v. Hancock��

THOMPSEN v. HANCOCK

No. 2733

May 11, 1926. 245 P. 941.

1. Statutes. Relative and qualifying words and phrases, where no contrary intention appears, refer solely to last

antecedent.

2. Hawkers and Peddlers—Statute Held Not to Require Peddler of Meat Produced in Nevada

But Not by Peddler to Secure License. Stats. 1915, c. 183 sec. 1, as amended by Stats. 1919, c. 100, sec. 1, requiring peddlers to secure

licenses, except such as are engaged in the disposal of live stock, etc., produced in Nevada, or in any

other state where the vendor is a bona fide producer or grower, held not to require a peddler of meat

produced in Nevada, but not produced by the peddler, to secure a license, as a phrase “where vendor is

bona fide producer or grower” refers to the words “in any other state.”

See (1) 36 Cyc. p. 1123, n. 54; (2) 29 C.J. sec. 17, p. 230, n. 71.

Petition for writ of prohibition by E.G. Thompsen against W.C. Hancock, Justice of the

Peace of Argenta Township, Lander County. Alternative writ made peremptory.

Thos. A. Brandon, for Petitioner:

Vendors of Nevada products are exempt, whether producers or not. Vendors from other

states are exempt if they are producers. Exception clause, Stats. 1919, 183.

In clause “or in any other state where the vendor is a bona fide producer or grower,”

antecedent of “where” is “state,” regardless of punctuation.

If undisputed facts do not constitute public offense, accused must be discharged. Ex Parte

Rosenblatt, 19 Nev. 439.

When inferior court invades fundamental right, appellate court will grant relief. Walser v.

Moran, 42 Nev. 111.

Howard E. Browne, District Attorney, for Respondent:

This is question of construction of exception clause of 1919 act. According to all canons of

statutory construction petitioner does not come within exception.

Construction of statute which sustains its validity ��


must be adopted, if possible. Hettel v. Court, 30 Nev. 382; Commonwealth v. Harvester Co.,

115 S.W. 703.

OPINION


Petitioner prays for a writ of prohibition. His petition shows the following facts, to wit: He

was arrested and tried in the respondent court sitting without a jury, on a charge of peddling

without a license. The court found him guilty as charged and fixed a time for imposing

sentence. The complaint upon which he was arrested was amended, and the charging part of

the amended complaint reads as follows:

“Personally appeared before me, this 9th day of January, 1926, Jas. A. Parker, of Battle

Mountain, in the county of Lander, State of Nevada, who, being first duly sworn, complains,

and charges E.G. Thompsen with the crime of misdemeanor committed as follows: That

within his knowledge, information, and belief E.G. Thompsen, on or about the 5th day of

January, 1926, and prior to the filing of this complaint, at Battle Mountain, in the county of

Lander, did, without first procuring a peddler's license from the sheriff of Lander County,

authorizing defendant, E.G. Thompsen, to transact the business of a traveling merchant

within Lander County, sell and deliver meats, poultry, and eggs from an automobile to

various individuals at Battle Mountain, Lander County. Said defendant, E.G. Thompsen, is

not established at a place of business within Lander County, Nevada. The meats, poultry, and

eggs sold by the defendant at Battle Mountain were products of the State of Nevada, but they

were not products which the defendant had produced or grown, the same having been

purchased by defendant's employer, from the bona fide producer or grower, all of which is

contrary to the form, force, and effect of the statute of March 22, 1915, as amended by Act of

March 26, 1919, in such cases made and provided, and against the peace and dignity of the

State of Nevada.


“Complaintant therefore prays that a warrant be issued for the arrest of said E.G.

Thompsen, that he may be dealt with according to law.”

Before trial, petitioner, through his attorney, Thos. A. Brandon, Esq., demurred to the

amended complaint upon the ground that the same did not state facts sufficient to constitute a

public offense under the laws of the State of Nevada, and upon the further ground that the

court had no jurisdiction of the alleged offense, for the reason that the acts under which it was

filed are unconstitutional and consequently void. The demurrer was overruled by the court.

The undisputed evidence given at said trial on behalf of the State of Nevada was

substantially as follows, to wit: That E.G. Thompsen, petitioner herein, on or about the 5th

day of January, 1926, had peddled meat in Lander County, Nevada, and more particularly in

the town of Battle Mountain, situated in said Lander County, and after said petitioner had

been informed by the officers of Lander County that he must have a license for peddling or

attempting to pebble such meat; that all of said meats so peddled by petitioner at Battle

Mountain, Lander County, Nevada, where Nevada products raised and produced within the

State of Nevada; that petitioner, during the time he had so peddled meats in Battle Mountain,

Nevada, had never had any place of business at said town or within said Lander County; that

at all times while so peddling meat in Lander County, Nevada, the petitioner was acting as the

employee and under the orders of one W.H. Cooper, of Winnemucca, Humboldt County,

Nevada; that said W.H. Cooper conducts a butcher shop at Winnemucca aforesaid, and has

been so conducting the same for a period of more than five years last past and prior to the trial

of said action; that the said Cooper was also engaged in the ranching and live stock industry

in Pershing County, Nevada, raising and running cattle and sheep, and had been so ranching

and raising live stock for a large number of years prior to the trial of said action in both

Humboldt and Pershing County; that the said W.H.


Cooper had been a bona fide resident of the State of Nevada for more than 20 years prior to

the trial of said action; that he had been engaged in the peddling of meats in said town of

Battle Mountain for some two or three months prior to the trial of said action; that in so

peddling the same an automobile was loaded with meat out of the butcher shop of said W.H.

Cooper and was then driven to Battle Mountain, and there peddled by the said E.G.

Thompsen, as such employee of the said W.H. Cooper. W.H. Cooper was the bona fide

grower or producer of a portion of the Nevada products peddled by petition. Neither

petitioner nor his employer had a license to transact business as a traveling merchant.

On application for the alternative writ in this court, petitioner contended that the

respondent court had no jurisdiction in the premises for each of the reasons stated in the

demurrer. The matter has been submitted without oral argument on briefs required by this

court. Counsel for petitioner in his brief has expressly waived the constitutional objection and

states upon the contention that the justice's court is without jurisdiction to impose sentence

because the amended complaint, and the evidence in support thereof, both show that no

offense was committed, in that it appears therefrom that the products sold by petitioner were

products produced or grown in the State of Nevada.

The law involved is found at page 252 of the Statutes of 1915, as section 1 thereof was

amended in 1919. Before amendment said section read as follows:

“The term ‘traveling merchant,' wherever used in this act, shall be taken and deemed to

mean all merchants entering into business at any place within the state for a period of less

than six months, all persons vending from freight cars standing on side tracks, all hawkers,

vendors, peddlers and traveling manufacturers except such as are engaged in the disposal of

products of the soil produced in Nevada, poultry, eggs and live stock, and honey produced in

Nevada and dairy products ��'�� 1


produced in Nevada, which shall be exempt from the provisions of this act.”

By section 2 of the act a traveling merchant, prior to commencing business, is required to

procure a license from the sheriff of the county wherein he desires to transact such business,

and pay therefor the sum of $100 per month.

As amended in 1919 section 1 reads:

“The term ‘traveling merchant,' wherever used in this act, shall be taken and deemed to

mean all merchants entering into business at any place within the state for a period of less

than six months; all persons vending from freight cars standing on side tracks, or hawkers,

vendors, peddlers and traveling manufacturers, except such as are engaged in the disposal of

the products of the soil, poultry, eggs, live stock, honey or dairy products produced in

Nevada, or in any other state where the vendor is a bona fide producer or grower, who shall

be exempt from the provision of this act.” Stats. 1919, pp. 183, 184.

1, 2. As heretofore stated, the petition shows that it was proved that all of the products sold

by petitioner were Nevada products, but neither the petitioner nor his employer was the

grower or producer of a portion of the same.

Counsel for respondent contends that, by the exception clause of the section as amended,

only persons who are the growers or producers of products sold by them are meant to be

exempt from the provisions of the act. We cannot agree with this construction. By the act of

1915 the intention to exempt Nevada products is clearly and unequivocally expressed in the

exception clause. Let us restate it:

“* * * Except such as are engaged in the disposal of products of the soil produced in

Nevada, poultry, eggs and live stock, and honey produced in Nevada and dairy products

produced in Nevada, which shall be exempt from the provisions of this act.”


The legislature must be understood to mean what it has plainly expressed, and no

construction could be permitted to qualify the foregoing statement with an unexpressed

intention to limit the disposal of the products mentioned to the grower or producer. The

words are free from ambiguity and doubt. No mention is made of the grower or producer. By

the amendment of 1919 no substantial change is made in the section or exemption clause,

except that there is inserted in the latter after the phrase, “products produced in Nevada,” the

words, “or in any other state where the vendor is a bona fide producer or grower.” It will be

observed that the added words and phrases are unpunctuated and set off from the reenacted

part of the statute of 1915 by commas. The clause of the amendatory part of the statute,

“where the vendor is a bona fide producer or grower,” qualifies the amendment. It is a rule of

construction that relative and qualifying words and phrases, grammatically and legally, where

no contrary intention appears, refer solely to the last antecedent. Sutherland on Statutory

Construction, sec. 267. The antecedent of the word “where” is the word “state,” and plainly

the former refers solely to the latter as the locality in which the vender must be a bona fide

producer or grower. This is indicated by the comma after “Nevada.” Even if there were no

comma between Nevada and the other places mentioned, the word “state” would be the last

antecedent, and under the rule stated must be taken as referred to solely, unless a contrary

intention appeared. No such intention is apparent from the entire section. It would seem that,

if the legislature of 1919 intended by the amendatory statute to narrow the scope of the 1915

statute by requiring all venders to be bona fide producers or growers, it would have changed

the phraseology of the earlier statute to evidence that intent. If such had been the intention,

how easy and natural it would have been to have omitted the word “Nevada,” and said:

“Products produced in any state where the vender is a bona fide producer or grower.”


As we have stated, no substantial change was made in the phraseology of the 1915 statute

by the amendatory act, but merely a clause added which in itself clearly restricts the vending

without license of the products of other states to the producer or grower thereof. This being

the meaning of the statute, the acts charged against petitioner in the amended complaint

constituted no offense, and the evidence proved none, for the products alleged to have been

vended by him were Nevada products and shown to be such on his trial. The respondent court

was therefore without jurisdiction from the beginning, and has no jurisdiction to punish

petitioner for his lawful acts.

The alternative writ is made peremptory.

It is so ordered.

____________

��49 Nev. 342, 342 (1926) Edwards v. Jones��

EDWARDS v. JONES

No. 2716

June 5, 1926. 246 P. 688.

1. Pleading—Motion for Judgment on Pleading Should Be Sustained when, Under AdmittedFacts of Pleading, Moving Party Would Be Entitled to Judgment on Merits.

Motion for judgment on pleadings raises question of law only, and should be sustained when, under

admitted facts of pleading, moving party would be entitled to judgment on merits.

2. Judgment—Judgment in Former Action Against Husband on Note, in which Wife

Testified as a Witness in His Behalf, Determining that Compensation for Wife's

Services to Plaintiff Was Community Property of Plaintiff and Husband, Held Res

Adjudicata of Her Subsequent Action to Recover for Such Services. Judgment in former action on promissory note against husband, in which wife testified in his behalf,

determining that compensation for services rendered by wife to plaintiff was not her separate property,

but community property, held res adjudicata of her subsequent action against such plaintiff to recover for

such services.

3. Appeal and Error—Finding that Compensation Sought To Be Recovered Was Community

Property Will Be Implied, where Directly Tendered in Former Action and Necessary for

Rendering Judgment Therein. Where issue whether compensation due from defendant to � �� "��!��


plaintiff for services rendered was separate property of plaintiff was directly tendered in former action on

note by defendant against plaintiff's husband, and judgment therein required determination that it was

community property, a finding to that effect will be implied.

4. Appeal and Error—Appellate Court Will Presume Findings of Lower Court to Have Been

Such as Were Necessary to Support Judgment. Without express finding, it is duty of appellate court to presume findings of lower court to have been

such as were necessary to support judgment.

5. Appeal and Error—Without Request for Modification or Addition to Findings, they Are

Presumed Sufficient to Support Judgment, and Error in Making Findings Outside Issues

is Harmless. Where appellant fails to move for addition or modification to findings as provided by civil practice

act, sec. 403, as amended by Stats. 1919, p. 319, findings are presumed to be sufficient to support

judgment, and error in making findings outside issues is harmless.

6. Courts—Rehearing and Determination of Demurrer to Affirmative Defense to Amended

Answer, Containing Substantial Matter Not Embraced in Original Answer to which

Demurrer Had Been Sustained, Held Not Rehearing in Violation of Rule. Where affirmative defense in amended answer contains substantial matter not embraced in affirmative

defense to original answer, which was stricken, hearing on demurrer to amended answer and overruling

of motion to strike affirmative defense held not a rehearing in violation of district court rule 11, subd. 4.

See (1) 31 Cyc. p. 606, n. 30 (new); (2) 34 C.J. sec. 1325, p. 915, n. 55; (3) 31 C.J. sec. 1270, p. 160, n. 23; (4,

5) 4 C.J. sec. 2722, p. 775, n. 29; sec. 2728, p. 778, n. 75; sec. 3041, p. 1057, n. 85; (6) 15 C.J. sec. 359,

p. 963, n. 47 (new).


Action by Emily Gladys Edwards against Robert Jones. From a judgment for defendant,

and an order denying a new trial, plaintiff appeals. Affirmed.

Mack & Green and A.F. Lasher, for Appellant:

Respondent quotes from 31 C.J. 160 to effect that judgment in favor of or against husband

in action involving debt due community binds wife regardless of ��!�� !�� !��


her nonjoinder, and inserted stars to show omission of part of text which states that some

courts hold where wife was not party defendant in action wherein judgment was rendered

against husband, she is entitled to determination in proper proceeding of question whether

judgment was based on community liability. Such determination as to community is res

adjudicata where it is fairly in issue and both husband and wife are parties.

Whether claim is community debt or not may be determined in original action by making

wife defendant with husband, or wife may have determination by intervening, but if wife is

not party, she is not concluded, as to community character of debt by original judgment.

Woste v. Rugge, 122 P. 988.

To render matter res adjudicata there must be: Identity of thing sued for, of cause of action,

of persons and parties to action, and of quality in persons for or against whom claim is made.

Lyon v. Perin etc. Co., 31 L. Ed. 839.

One cannot be concluded by judgment in action unless he was formally party or privy, had

right to make defense, examine witnesses, control proceedings, and appeal. Litchfield v.

Crane, 31 L. Ed. 199.

Due process requires rights of person may not be adjudicated in action to which he is not

party. 12 C.J. 1227.

Court erred in making findings concerning matters not pleaded. Perkins v. Sierra etc. Co. 10

Nev. 405.

Huskey & Souter, for Respondent:

Judgment in favor of or against husband in action involving debt due community will bind

wife regardless of her nonjoinder. Where wife is not necessary party in actions against

husband affecting community real property, judgment against husband is binding on him,

wife, and community estate. 31 C.J. 160; Jordan v. Moore, 65 Tex. 366; Crow v. Van Sickle,

6 Nev. 146. 3��


Judgment in former case is binding on wife here because court found board and lodging

were furnished on behalf of community. Person may be bound though not technically a party.

American Bonding Co. v. Loew, 92 P. 283, citing Shoemaker v. Finlayson, 60 P. 50, wherein

same court held person who was witness, fully acquainted with character and object of action

and interested in result, was estopped by judgment as fully as if he had been nominal party.

34 C.J. 992, 1009; Snavely v. Berman, 121 Atl. 843; Curtis Studio v. Lennes, 208 P. 81; Wise

v. Reed, 139 P. 753.

OPINION


Except where mentioned by their proper names, the parties will be referred to as plaintiff

and defendant.

Plaintiff brought this action in the lower court to recover from defendant the sum of

$1,550 alleged to be owing from him to her on account of board and lodging furnished him

by her at her home in Reno, Nevada, for a period of 31 weeks from November 1, 1920, to

June 5, 1921, and also for nursing, care, washing, and sewing done by plaintiff for defendant

during said period, all of which services are alleged to be reasonably worth the sum of $50

per week. It is also alleged in the amended complaint that plaintiff is the wife of Albert W.

Edwards. It is further alleged that during the whole of their married life plaintiff has been and

now is engaged in various ways of earning money and in accumulating property by the sale of

her own labor and services, and has frequently during their married life earned money by

supplying board and lodging to persons for a price in money; that during the whole of their

married life her husband has, and now does, let her appropriate all of said earnings to her own

use; that she has at all times and does now use all of said earnings and accumulations for the

care and maintenance of her family; that said family consists of her husband and their four

children; that ��


it was at all times understood and agreed between said husband and wife that any and all

moneys due or to become due by reason of the services rendered defendant belonged to

plaintiff and should be collected and appropriated to her own use and behoof; that by reason

thereof her husband has no interest or right in the cause of action set forth.

The husband was originally a party plaintiff in the action, but was subsequently, on motion

of the plaintiff, Emily Gladys Edwards, dismissed from the action by order of the court.

Defendant in his amended answer admits that Albert W. Edwards and Emily Gladys

Edwards are husband and wife, and denies all other allegations.

For a further and affirmative defense defendant in substance alleges: That from on or about

November 1, 1920, up to and including the 1st of June, 1921, defendant resided at the home

of Albert W. Edwards, husband of the plaintiff, where he, Edwards, maintained his family,

had his residence and abode, and conducted his household, and paid him the sum of $10 per

week for each and every week that defendant remained at said home; that defendant did not

request plaintiff to nurse him or care for him or provide him with room and board or to

perform all his needful sewing, nor did he in any way or manner whatsoever accept said

services from her, but, on the contrary, all of the services of any kind and description

whatsoever rendered to him while he was at said home during the period stated were

furnished him by her husband under an agreement whereby the defendant was to pay and did

pay the sum of $10 per week—with all of which Edwards was fully satisfied, contented, and

paid.

For a further and second affirmative defense it is alleged in substance as follows: That

defendant filed his complaint in the district court against said Albert W. Edwards on or about

the 23d day of July, 1924, and in said complaint it is alleged that Edwards was indebted to

Jones on a promissory note, payment on account of which was admitted to have been paid by

Edwards of ��+66��66��+%��B�� 3��'��%�%�&�� ,��3��%�&%��B��B�� 3�� +%��B��3��+66�� %�%�&��3��B�� +%��


the sum of $330 for a period of 33 weeks at $10 per week; that Edwards filed an answer in

which he denies the payment; that a trial was had of said action, and it was testified to before

the court by Jones that from on or about November 1, 1920, up to and including the 5th of

June, 1921, he resided at the home of Edwards, where Edwards maintained his residence and

abode and conducted his household, and that by an agreement between them it was provided

that Jones should credit on account of said note the sum of $10 per week for every week that

he remained at the home of Edwards; that Jones did credit the sum of $330 on account

thereof; that said agreement provided also that for one week ending March 1, 1920, during

which Jones resided at the home of Edwards a similar sum of $10 should be credited on said

note, and was so credited.

It is also alleged in the second affirmative defense that at said trial Edwards testified that

all services rendered to Jones for the times mentioned had been rendered by Mrs. Edwards,

and that by an agreement between them she was entitled in her own right and as her separate

estate, to any compensation for the board and lodging furnished Jones, and that no agreement

had been made, as alleged by Jones, to credit said sum on account of the note, and that

nothing had been paid on account of the note by reason of the rendering of said services to

Jones. It is also alleged that at the trial of said action Mrs. Edwards appeared as a witness

called by her husband, and as such witness was in court at the beginning of the trial and

during all of the time that Jones was on the stand, and had full and complete knowledge of

said action, the purpose for which it was brought, the claim made in said action by Jones as to

the payment on account of said note, the denial on the part of her husband of said payment

and the allegation by him that all services rendered to Jones had been rendered by her, and

that any compensation for such services, board, and lodging belonged to her separate and

distinct property and separate estate by an agreement made between the husband and wife;

that with all of such knowledge of �� !�� 3��


the case and the issues involved, she understood that the determination of such issues must

result in a determination judicially of a matter alleged to be her separate property and distinct

estate; that she made no application to be admitted as a party defendant to said suit, nor did

she take any other steps to be represented in said action except as a witness, and thereupon

took the stand and under oath, by her testimony, submitted to the court her statement that she

was entitled to any compensation for board and lodging furnished to Jones as her separate

property and estate. It is further alleged that Edwards in said suit appeared by counsel; that

said suit was duly brought on for trial and tried; that as a result of all such proceedings,

pleadings, testimony, evidence, and trial, the issues were determined by this court in favor of

Jones and against Edwards, and by such determination the court determined that it had been

established as a fact that the agreement alleged to have been made by Jones and Edwards had

been actually made; that Edwards was entitled to all compensation for board and lodging of

Jones; and that said compensation was not the separate property and estate of Mrs. Edwards.

In this further and second affirmative defense the defendant refers to the proceedings in the

former action, and to all pleadings, transcript of testimony, orders, findings, decision, and

judgment therein, as if the same were set forth word for word.

It is further alleged that the last-mentioned suit involved all the issues involved in the

present suit, involved as parties Jones and Edwards and the latter's wife, plaintiff in the

present suit, in so far as it was a judicial determination of those rights which she sets up in the

present suit, involved the same subject matter, resulted in a final judgment on such issues in

favor of Jones, and was and is res adjudicata as to all matters and things and alleged causes of

action set forth in the amended complaint in the present action.

In her reply, inter alia, it is denied that the former action involved plaintiff in any other

manner than as a witness therein, and denied that it was res adjudicata ��

��


as to all or as to any of the matters and things and alleged causes of action set forth in the

amended complaint in the present action. It is admitted that she took the stand at the trial of

the former action, and under oath testified that she was entitled to the compensation for board

and lodgings furnished to Jones at the times and in the second affirmative defense mentioned

as her separate property, but denied that by her said testimony or in any manner at all

submitted to the court for determination as against her in said former action any question

concerning her title to the compensation for board and lodging furnished Jones, or any

question as to the character of said claim for compensation as her separate property.

It is alleged that plaintiff was not a party to the former action; that she was not named as a

party therein upon the record or upon any of the pleadings or documents filed therein; that she

was never served with summons in said former action; that she never, either directly or

indirectly, filed any demurrer, motion, petition, answer, stipulation, or other document or

pleadings therein; that she never employed or authorized any attorney or counsellor at law to

appear for or represent her in said former action, and never in any manner conducted or took

part in the conduct of said former action.

On motion of defendant for judgment on the pleadings, and after a hearing thereon, the

court made findings of fact and conclusions of law, and rendered judgment in favor of the

defendant, adjudging that the former suit was res adjudicata as to all matters and things and

alleged causes of action set forth in the amended complaint of Emily Gladys Edwards,

plaintiff in this action.

The facts found were substantially as alleged in the amended answer. From the judgment

and order denying a motion for a new trial this appeal is taken.

1. After her motion for a new trial had been denied, plaintiff moved to strike all of the

findings, which motion was denied by the court. The principal error assigned is that the court

erred in holding that the plaintiff was concluded as to her present cause of action by ��3��B��


the record of the prior action of Jones v. Edwards. In this connection it is urged that the

amended answer does not state sufficient facts undenied by the reply to entitle defendant to a

judgment on the pleadings. A motion for judgment on the pleadings raises a question of law

only, and should be sustained, when, under the admitted facts of a pleading, the moving party

would be entitled to a judgment on the merits. 21 R.C.L. 594. In this case, however, in

considering the error assigned, we are not confined to the pleadings. It is stipulated by

counsel for the parties that the record on appeal in Jones v. Edwards may be considered and

examined by the court upon its consideration of this case.

It appears that counsel for plaintiff stipulated in the lower court that in considering the

motion for judgment the transcript of testimony in the case of Jones v. Edwards could be

considered. It appears also that the lower court took judicial notice of the former case and

considered the testimony given therein.

2. Plaintiff moved for a new trial, assigning as one of the grounds therefor insufficiency of

the evidence to justify the decision of the court. To all intents and purposes, then, the hearing

on motion for judgment on the pleadings devolved into a trial on the merits with the evidence

taken on the former trial stipulated as the evidence to be considered by the lower court. This

being the case, the question presented to us is not whether judgment was properly entered on

the pleadings, but whether the judgment in the former case is in fact res adjudicata of the facts

alleged in the amended complaint in this action. The question of fact presented by the

amended complaint in this action was in issue and was determined by the final judgment in

the former case, namely, that the compensation sought to be recovered for services rendered

Jones was not the separate property of plaintiff, but the community property of herself and

husband. The judgment in the former case has recently been affirmed by this court, and the

evidence is summarized in the opinion. Jones v. Edwards, 49 Nev. 299. That judgment was

an adjudication of the ��


character of the property sought to be recovered here. It was said by this court in Vickers v.

Vickers, 45 Nev. 274, 199 P. 76, 202 P. 31:

“It matters not the character of the proceeding in which issues are adjudicated, but whether

they have in fact been adjudicated between the same parties or their privies.”

And in stating the principle to be applied this court in Vickers v. Vickers, supra, quotes

approvingly from the opinion in State of Oklahoma v. State of Texas, 256 U.S. 70, 41 S. Ct.

420, 65 L. Ed. 831, as follows:

“The general principle, applied in numerous decisions of this court, and definitely accepted

in Southern Pacific R. Co. v. United States, 168 U.S. 1, 48, 49, 18 S. Ct. 18, 42 L. Ed. 355,

376, 377, is, that a question of fact or of law, distinctly put in issue and directly determined

by a court of competent jurisdiction as a ground of recovery or defense in a suit or action

between parties sui juris is conclusively settled, by the final judgment or decree therein, so

that it cannot be further litigated in a subsequent suit between the same parties or their

privies, whether the second suit be for the same or a different cause of action.”

3. It is contended that, as the court in the former case made no finding that the

compensation due for the services rendered was community property, its character as such

was no determined. It is true no specific finding was made to that effect, but the issue was

directly tendered to the court by the testimony of the defendant and his wife, by which he

sought to show that the compensation due from Jones was her separate property, and the court

must necessarily have determined that it was community property to render judgment for

Jones in that case. The evidence tended to show that it was community property, and unless

the court found it to be such it was not subject to the husband's disposition as part payment on

the note sued on, and, unless payment was made as alleged, the note was barred by the statute

pleaded. Under this state of the case a finding that it was community property will be implied.


4. In the absence of an express finding it is the duty of the appellate court to presume the

findings of the lower court to have been such as were necessary to support the judgment.

Langworthy v. Coleman, 18 Nev. 440, 5 P. 65; Wilson v. Wilson, 23 Nev. 267, 45 P. 1009;

Stats. 1919, p. 319.

It is insisted that plaintiff was not a party to the former action, and the judgment therein is

not therefore conclusive against her, and many authorities are cited to the effect that only

parties of their privies can be bound by a former judgment. We need not answer this

contention further than to refer to our opinion in Jones v. Edwards, supra, wherein we held to

the effect that, as the community interests of the husband and wife were involved, she was in

legal effect a party to the action. There is no merit in the contention that the amended answer

fails to state facts sufficient to constitute a defense to the cause of action set forth in the

complaint.

5. Appellant insists that the court made findings outside of the issues in this case. He

moved the lower court to strike all of the findings, but made no application to the court for

additions to or modifications of the findings as provided by section 403 of the civil practice

act. This section, as amended by Stats. 1919, p. 319, reads:

“In cases tried by the court, without a jury, no judgment shall be reversed for want of a

finding, or for a defective finding of the facts, unless exceptions be made in the court below

to the finding or to the want of a finding after application to the court for additions to or

modification of the findings with notice given to the adverse party as prescribed in section

285 of this act. Upon failure of the court on such application to remedy the alleged error, the

party moving shall be entitled to his exceptions.”

By virtue of this statute, the appellant having failed to make application under it, we must

assume that the findings are sufficient to support the judgment. Consequently, if findings

were made outside the issues, the error would be harmless.


6. It is urged that the court erred in assuming to rehear and retry the same matter which had

already been heard and decided by the same court by Judge L.O. Hawkins, to whom all

matters before said court had been assigned. The following facts constitute the basis of this

complaint: The district judge above mentioned heard the plaintiff's demurrer to the

affirmative defenses in defendant's answer, made upon the ground that the same did not state

sufficient facts to constitute defenses to her cause of action, and also her motion to strike the

second affirmative defense. The demurrer to the second affirmative defense was sustained

and the motion granted, and defendant given ten days to file an amended answer. Thereafter

the amended answer was filed. Plaintiff demurred to the affirmative defenses contained

therein on the same ground as before. She also moved to strike the second affirmative

defense, stating, among the grounds therefor, that it was in all substantial respects identical

with the second affirmative defense theretofore stricken from the original answer, and in

contravention of subdivision 4 of rule 11 of the district court rules. The demurrer was

overruled and the motion denied by the trial court, Judge Geo. A. Bartlett, presiding. The

fourth subdivision of said rule reads as follows:

“No motion once heard and disposed of shall be renewed in the same cause, nor shall the

same matter therein embraced be reheard, unless by leave of the court granted upon motion

therefor, after notice of such motion to adverse parties.”

A sufficient answer to this contention is that the second affirmative defense in the

amended answer contains substantial matter not embraced in the former one, and the

rehearing and determination of it by the trial court was therefore not in violation of the rule.


____________

��49 Nev. 354, 354 (1926) State v. Sampson��

STATE v. SAMPSON

No. 2731

June 5, 1926. 246 P. 530.

1. Criminal Law—In Prosecution for Assault with Intent to Kill, where Court Instructed Jury

They Might Also Find Accused Guilty of Assault with Deadly Weapon, Verdict of Guilty as Charged Is

Sufficient Finding of Guilt of Assault to Kill.

In prosecution for assault with intent to kill, under Rev. Laws, sec. 6413, where court instructed jury

they might also find accused guilty of assault with deadly weapon with intent to inflict bodily injury,

verdict of guilty as charged is sufficient finding that accused was guilty of assault with intent to kill;

sections 6290, 7218, providing jury shall specify degree of crime of which accused is guilty being

unavailable.

See 16 C.J. sec. 2600, p. 1110, n. 67.


William T. Sampson was convicted of assault with intent to kill, and he appeals.

Affirmed.

Roberts & Scanlan and S.J. Parks, for Appellant:

Jury shall specify degree of attempt of which accused is guilty. Rev. Laws, 6290.

Whenever crime is distinguished into degrees, jury, if they convict, must find degree of

which accused is guilty. Rev. Laws, 7218.

Verdict must designate precise crime of which accused is convicted. 27 R.C.L. 862;

People v. Campbell, 40 Cal. 138.

Verdict of guilty under indictment for murder not expressly finding degree, though fixing

punishment, is fatally defective. Zaner v. State, 8 South. 698.

Verdict must within itself be sufficient to designate crime. Sanders v. State, 162 P. 676.

State v. Robb, 2 S.W. 1, and State v. Burke, 2 S.W. 10, Missouri cases, do not apply

because that state has statute which provides verdict shall state degree when verdict is for

inferior degree than charged.

In State v. Treadwell, 54 Kan. 513, verdict was guilty of burglary and larceny. Supreme

court sustained as to larceny, but reversed as to burglary because jury did not specify degree

of latter.


Accused is entitled to have verdict specify particular offense of which he is convicted. Ex

Parte Booth, 39 Nev. 197.

M.A. Diskin, Attorney-General; Wm. J. Forman, Deputy Attorney-General; L.D.

Summerfield, District Attorney; and H.L. Heward, Deputy District Attorney, for Respondent:

Appellant confuses “degrees of a crime” and “included offenses.”

Verdict upon plea of not guilty shall be either guilty or not guilty, which imports

conviction or acquittal of offense charged. Rev. Laws, 7216.

Statutes which require jury to fix degree apply only to crimes divided into degrees, not to

included offenses. Where such degrees do not exist, verdict of guilty as charged is proper. Ex

Parte Booth, 39 Nev. 183; 16 C.J. 1110.

Appellant's authorities deal with verdicts held invalid for not designating degree where

crimes were divided into degrees by statute.

OPINION


Appellant was charged by information with the crime of an assault with intent to kill

Thomas Ryan under section 6413, Revised Laws, which provides that:

“An assault with intent to kill, * * * shall subject the offender to imprisonment in the state

prison for a term not less than one year, nor more than fourteen years; provided, * * * an

assault with a deadly weapon, instrument or other thing, with an intent to inflict upon the

person of another a bodily injury, where no considerable provocation appears, or where the

circumstances of the assault show an abandoned and malignant heart, shall subject the

offender to imprisonment in the state prison not less than one year or exceeding two years, or

to a fine not less than one thousand, nor exceeding five thousand dollars, or to both such fine

and imprisonment.”


The jury were instructed as follows:

“The court instructs the jury that if you find form the evidence beyond a reasonable doubt

that the defendant did, at the time and place and in the manner described in the information,

assault the said Thomas Ryan, with the intent to kill the said Thomas Ryan, you should find

the defendant guilty, as charged.”

“The court instructs the jury that if you believe from the evidence beyond a reasonable

doubt that the defendant did assault the said Thomas Ryan with a deadly weapon, but further

find that he had no intent to kill, nevertheless, you are privileged to convict the defendant of

the crime of assault with a deadly weapon with intent to inflict upon the person of another a

bodily injury. * * *”

The jury returned this verdict:

“We, the jury in the above-entitled action, do find the defendant, William T. Sampson,

guilty as charged.”

The defendant moved in arrest of judgment, and also moved for a new trial. Both motions

were denied. Judgment was pronounced against him, and he was sentenced to state prison for

a period of not less than one year nor more than 14 years.

The main point made on appeal is that the motion in arrest of judgment should have been

sustained because the verdict did not specify the degree of the crime of which the defendant

was convicted. In support of this contention we are cited to the provisions contained in

section 6290 and section 7218, Revised Laws. Section 6290 provides:

“Upon the trial of an indictment, the defendant may be convicted of the crime charged

therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so

charged, or of an attempt to commit a lesser degree of the same crime. Whenever the jury

shall find a verdict of guilty against a person so charged, they shall in their verdict specify the

degree or attempt of which the accused is guilty.”

Section 7218 provides:

“Whenever a crime is distinguished into degrees, the !�� 1


jury, if they convict the defendant, must find the degree of the crime of which he is guilty.”

We are of the opinion that these provisions of the law can apply only to those cases where

the offense is divided into degrees, as in murder, etc. But they do not apply to those cases

where the statute (section 6413, Rev. Laws) defines distinct offenses and does not declare

them degrees of the same offense. Where there are no degrees of the crime charged, a verdict

of guilty as charged is sufficient, although the crime charged also may include other crimes of

which the jury may have found defendant guilty. 16 Corpus Juris, 1110. Besides this, under

the information and the instructions, it is perfectly clear that the defendant was found guilty

of the crime of assault with intent to kill.


____________

��49 Nev. 357, 357 (1926) In Re Water Rights in Humbolt River��

In Re WATER RIGHTS IN HUMBOLDT RIVER

No. 2712

June 5, 1926. 246. P. 692.

On Motion to Dismiss

1. Water—District Court Has No Jurisdiction in Statutory Proceeding for Adjudication ofWater Users' Rights to Enjoin Taking or Diversion of Water.

Proceedings under water law, Stats. 1913, c. 140, as amended by Stats. 1915, c. 253, and Stats. 1921,

c. 106, to adjudicate rights of water users along river, is special, and water users are limited by plan

outlined in water law, secs. 33, 35, as amended by Stats. 1921, c. 106, secs. 5a, 5b, and sections 38 and

39, as amended by Stats. 1915, c. 253, secs. 8, 9, last of which authorizes stay of proceedings to protect

their rights, so that district court has no jurisdiction in such proceeding to enjoin taking or diversion of

water.

2. Water—Right to Use Public Waters in Nevada May Be Acquired by Appropriation for

Irrigation Purposes. Doctrine of riparian rights is inapplicable to semiarid conditions prevailing in Nevada, and right to

use public waters in such state may be acquired by appropriation for irrigation purposes.

3. Water—No Right to Appeal from Order Denying Injunction, Sought in Proceeding for

Adjudication of Water Rights, against Diversion of Water, Exists. Proceeding under water law, as amended by Stats. 1915, c. 253, and Stats. 1921, c. 106, for

adjudication of rights of �� !��


water users along river, being special statutory proceeding, no right to appeal from order denying

injunction prayed for therein against taking or diversion of water exists, not being expressly conferred by

statute.

4. Water—Appeal from Order in Proceeding for Adjudication of Water Rights Denying

Injunction against Diversion of Water Held Unauthorized. Water law, sec. 75, as amended by Stats. 1915, c. 253, sec. 13, authorizing review of order or

decision relating to administration of determined water rights by proceeding for that purpose, does not

give right of appeal from order denying injunction against taking or diversion of water.

See 40 Cyc. p. 701, n. 83; p. 737, n. 63, 64 (new); p. 738, n. 72 (new).

Appeal from Sixth Judicial District Court, Humboldt County; Geo. A. Bartlett, Judge.

In the matter of the determination of the relative rights of claimants and appropriators of

the water of the Humboldt River Stream System. From an order denying an injunction against

the Union Canal Ditch Company and others, and granting an injunction against the Old

Channel Ditch Company and others, the latter appeal. Appeal dismissed.

Thatcher & Woodburn, Price & Hawkins, and M.A. Diskin, Attorney-General, for Movants

(Respondents):

Water code provides general system of adjudicating relative rights of all claimants and is

special statutory proceeding to which rules of procedure applicable to other civil actions do

not apply. 3 C.J. 325.

There is provision for appeal after, but not before, final decree. Sec. 35.

Proceedings here attempted are in nature of mandamus to compel lower court to pass on

appellants' claims piecemeal, as separate controversy and before adjudication is finally

determined. Proceeding in district court is not controversy between different claimants.

Humboldt L. & S. Co. v. District Court, 47 Nev. 395; In Re Silvies River, 199 F. 495.

Proceeding is to settle priority of rights, nothing else. Clay Spring Cattle Co. v. Bassett,

233 P. 156; Symons-Kraussman v. Liquor Co., 32 Nev. 241.

All persons who might be affected by appeal must be ��


served with notice, in absence of which case will be dismissed. In Re Chewaucan River, 171

P. 402.

Adjudication involves rights of about five hundred claimants. If this appeal is effectual for

any purpose, lower court has no right to proceed during its pendency. This court has no

jurisdiction until final decree is rendered by district court.

Injunctive relief is not contemplated. Pleadings are limited to order of determination,

statement or claims of claimants, and exceptions, and “there shall be no other pleadings in the

case.” Sec. 35.

Vineyard L. & L. Co. v. District Court 42 Nev. 1, did not construe original act of 1913, but

the amendments of 1915.

Cooke & Stoddard and B.B. Goodman, for Appellants:

These proceedings are nothing more than application for stay in part of order of

determination, and for court to fix bond, and are clearly within section 39 of water law.

Section 75 alone is ample authority for this proceeding. Both sections 36 and 75 clearly

contemplate that none is proper party other than those aggrieved.

Appellants should not be penalized merely because we went further than was actually

required by filing rather formal petition and asking for injunction, instead of merely asking

stay of proceedings. We gave court indispensable information enabling it to determine

amount of bond.

Wattles v. Baker County, 117 P. 417, does not hold that “determined rights” relate only to

adjudicated rights, but on contrary is clear authority that “determined rights” include those

determined by engineer, from time order is filed until court acts thereon. This case would be

no authority here, anyway, as Oregon has no statute comparable to our section 75. Their act

authorized injunction and appeal from decision of engineer.

Exceptions to order of determination shall be filed at least five days before hearing.

Section 35, Stats. 1921. Only those who have filed exceptions will be heard.


Order is res adjudicata or binding as to those having notice but who do not file. If no

exceptions are filed, court may hear further testimony or not, and affirm order of

determination. This shows engineer's order has legal force prior to and without any action by

court. Otherwise section 39 would be meaningless and would require obedience to rights

determined by nobody.

Relief may be asked by “Adjudicated” claimant within three years. Section 36a, Stats.

1921, 175.

Legislature knew distinction between terms, and used them advisedly.

“Adjudicate” relates to exercise of judicial power. 1 C.J. 1236; Neilsen v. Utah Bank, 120 P.

211. “Determine” relates to findings of administrative officer or board deciding according to

discretion. State v. State Board etc., 18 Nev. 173.

OPINION


This proceeding was initiated by the state engineer of Nevada some years ago to have

adjudicated the relative rights of the water users along the Humboldt River, pursuant to

statutory authorization. Stats. 1913, c. 140, as amended Stats. 1915, c. 253, Stats. 1921, c.

106. After running the gauntlet of several proceedings, a final order of determination was

made by the state engineer determining the rights of the respective water users along the

Humboldt River, which was filed with the clerk of the district court of the Sixth judicial

district in and for Humboldt County, on January 2, 1923. Within the time provided by law,

many of the interested parties, and, among them, the appellants, filed their exceptions to said

final order of determination. The state engineer, after the filing of such order with said clerk,

entered upon the business of executing said order of determination. In allotting the waters of

said river an aggregate of 1,410 miners' inches was set over to the water users under the Old

Channel Ditch Company, the appellants. On May 14, 1925, said state engineer allocated and� ��,��"��N��)�� )��4��9��)��,��"��=��9��)��


allowed to run through the gates as set by him 5,000 miners' inches to the Union Canal

Company and Southwest Ditch Company, and 5,000 miners' inches to Rogers Ditch

Company. On May 15, 1925, and during the pendency of the hearing on the exceptions to

said final order of determination, appellants herein filed and served in said proceeding in the

Sixth judicial district court of Humboldt County a petition praying for an injunction in said

proceedings against the Union Canal Company, Southwest Ditch Company, the state

engineer, and all persons acting through them, to restrain them from taking or diverting to

exceed 2,750 miners' inches of water from said Old Channel Ditch Company, so long as there

shall not be at least 5,500 miners' inches of water then available for use by the petitioners.

An answer was filed to said petition, and upon a hearing duly had the court entered an

order denying the application for an injunction. The petitioners have appealed from that order.

This matter is now before us on a motion to dismiss the appeal. Several grounds are urged in

support of the motion.

1, 2. It is asserted by the respondents that the proceeding in which the application for an

injunction was made is a special proceeding, and that the district court had no jurisdiction to

issue an injunction, and hence the appeal should be dismissed. It is contended on the part of

appellants that the district court is a court of general jurisdiction, with general equity powers,

and pursuant thereto had jurisdiction to issue an injunction in this matter.

We are clearly convinced that the view taken by counsel for the respondents is the correct

one. The purpose and history of the water law of this state is clearly stated in the case of

Humboldt Land & Cattle Co. v. District Court, 47 Nev. 396, 224 P. 612, and the decisions

therein mentioned; hence we will but briefly outline the purposes of the law herein.

In view of the semiarid conditions prevailing in this state, it is impossible to grow crops

except under irrigation, and therefore the doctrine of riparian rights has ��


been held not applicable to conditions in this state, and that the right to the use in the public

waters in the state might be acquired by appropriation for irrigation purposes. In view of the

conditions mentioned, and long prior to any statutory authorization, landowners appropriated

the public waters of the state by applying it to a beneficial use. At a later period it became

evident that the method of appropriating the public waters should be regulated by statute. At a

still later period, in view of the agricultural development of the state and the policy of the

state to promote such development to the highest degree, and of the further fact that in

hundreds of instances there was no record of the amount of water to which the various

appropriators along a stream system were entitled, or of the quantity of water in such stream

not appropriated, and open to appropriation, and of the still further fact that water users are

often prone to encroach upon the rights of others, frequently resulting in a breach of the

peace, the legislature enacted the water law of 1913, and the amendatory acts cited. The water

law empowers the state engineer to initiate proceedings to determine for administration

purposes the relative rights of all of the appropriators of the waters of a stream system. It is

the duty of the state engineer to make a survey of such stream system, ascertain the names of

all of the appropriators of water upon said stream system, give them notice of hearings to

determine the extent to their respective rights, and finally to make an order determining the

relative rights of all such appropriators.

Section 33 of the water law (as amended by Stats. 1921, p. 174, c. 106, sec. 5a) provides

that, when such order of determination is filed with the clerk of the proper district court, it

shall have the legal effect of a complaint in a civil action, and that a copy thereof shall be

served on all interested parties. Section 38 of the act mentioned (as amended by Stats. 1915,

c. 253, sec. 8), provides that, from and after the filing of the order of determination, evidence,

and transcript with the proper clerk, and during the time of the hearing thereon, the ��


division of the water of the stream shall be made by the state engineer in accordance with the

order of determination.

Section 35 of the water law (as amended by Stats. 1921, c. 106, sec 5b) provides that, if

there be no exceptions to the order of determination, the court may take such testimony as

may be deemed proper and shall then enter the findings of fact a decree. If exceptions are

filed, than there shall be a hearing as nearly as may be in accordance with the rules governing

civil actions.

By section 39 (as amended by Stats. 1915, c. 253, sec. 9) it is provided that, at any time

after the order of determination, evidence, and transcript have been filed with the clerk of the

court, the operation of the order of determination may be stayed by any party upon giving a

bond in the court wherein such determination is pending.

Though it appears that there are over 500 parties to this proceeding, only a few of them

were notified of appellants' intention to apply for an injunction and made parties to this

appeal.

In view of the conditions presented, it can readily be understood why the enactment of a

special statutory proceeding was imperative, not only to the highest development of our state,

but also to the proper supervision of the water of our stream systems. The act not only

provides a means whereby the rights of the respective water users may be ascertained and

adjudicated, but a means of supervising the distribution of the water which takes from each

water user the heretofore exercised privilege of being both judge and executioner in such

matters, and places such duties under the supervision of the state engineer.

The water law is a special statutory proceeding brought into effectual existence after much

travail to meet a great public need. The law meets every demand for a full, fair, and just

determination of the rights of every water user. It safeguards the rights of every water user by

giving him the benefit of a stay of the order of determination until final decree and every�� !��


advantage of a full judicial hearing and determination in the district court. Though these

rights are secured to him, he must avail himself of them by proceeding in the manner outlined

in the water law. The law is constitutional, and there is no contention to the contrary. The

appellants are parties to proceedings—made so by the state engineer—and they had the

option of obtaining a stay as provided by section 39, all they could hope for in an injunction

proceeding. The procedure under the statute being special in character, the appellants are

limited to the plan therein outlined to protect their rights.

3, 4. But it is said that the application made for an injunction is in substantial compliance

with the spirit of the statute, and hence they have a right to appeal. This being a special

statutory proceeding, no right to appeal exists unless it is expressly conferred by the statute.

Coffin v. Coffin, 40 Nev. 345, 163 P. 731. Appellants assert that such a right exists pursuant

to section 75 of the water law (as amended by Stats. 1915, c. 253, sec. 13), which provides:

“Any person feeling himself aggrieved by any order or decision of the state engineer,

acting in person or through his assistants or the water commissioners, affecting his interests,

when such order or decision relates to the administration of determined rights * * * may have

the same reviewed by a proceeding for that purpose, in so far as may be in the nature of an

appeal, which shall be initiated in the proper court of the county in which the matters affected

or a portion thereof are situated. * * *”

The foregoing quotation from the section clearly designates in what situation and in what

circumstances the proceeding may be initiated. In the first place, the proceeding must be in

the nature of an appeal, which must be “initiated in the proper court,” etc., and it must relate

to the administration of determined rights.

The application for the injunction in this case is not in the nature of an appeal. It was made

in the very proceeding which was pending, wherein a final decree of �� !�� :�� =��>�� <��1��


the court was to be eventually entered, adjudicating the relative rights of the water users of

the Humboldt River. Furthermore, the provisions that the proceedings in the nature of an

appeal contemplated by the section must be “initiated in the proper court of the county,” etc.,

negatives the idea that it referred to the situation here presented. Such an appeal is limited to

an appeal from the state engineer to the proper court of the county. We think, too, that by the

term “administration of determined rights” was contemplated administration in accordance

with the terms of the final decree of the court. The filing of the order of determination with

the clerk of the court, as pointed out, is the first step in the court proceedings, and it is the

duty of the state engineer, as fixed by statute, to distribute the water according to such final

determination, unless a stay bond is given. The proceeding being special, and the

determination of the very question presented being already before the court in the manner

provided by statute, it would be a singular thing if a party could ignore such method of review

and resort to a method of procedure recognized in general equity practice. But a conclusive

answer to the contention that the right of appeal in this matter is conferred by the section in

question is the fact that the legislature never contemplated, as we have held, such a procedure

in the district court as was initiated by appellant. Certainly, if no such procedure was

contemplated in the district court, the legislature never intended conferring the right of appeal

from the order in question.

It is ordered that the appeal be dismissed.

____________

��49 Nev. 366, 366 (1926) Lewis v. Carr��

LEWIS v. CARR

No. 2722

June 5, 1926. 246 P. 695.

1. Mining—In Action to Quiet Title to Mining Claims, Burden of Proving that Party

Forfeited Claims by Failing to Perform Annual Assessment Work Is On Party Asserting It.

In action to quiet title to mining claims, burden of proving that party had forfeited them by failing to

perform the annual assessment work required by Stats. 1923, c. 109, is on the party asserting it.

2. Mining—Where Fourteen Mining Claims Constitute One Group for Purposes of

Developing Property, Under Statute Requiring $100 Worth of Improvements on Claim

Yearly, $1,400 Worth Annually Upon Group Is Required to Hold Possession. Where fourteen mining claims constitute one group for purposes of developing the property, under

Stats. 1923, c. 109, requiring $100 worth of work or improvements on each claim annually, $1,400 worth

annually on the group is required to hold possession.

3. Mining—Geologic Map Making Is Not Work or Improvements, within Meaning of Statute

Requiring Work or Improvements Worth $100 Annually in Order to Hold Mining

Claim. Geologic map making is not work or improvements within the meaning of Stats. 1923, c. 109,

requiring $100 worth of work or improvements annually in order to hold possession of mining claim, as

object of requirement is to furnish evidence to parties seeking to initiate title.

4. Words and Phrases—”Areal Geology.” “Areal geology” is that branch of geology which pertains to the distribution, position, and form of the

areas of the earth's surface, occupied by different sorts of rock or different geologic formations, and to the

making of geologic maps.

5. Mining—Contention that Relocation of Mining Claims Inured to Benefit of Former

Holders Because their partner Helped Therein Will Not Be Sustained, where Claims

Were Relocated Before Partner Knew About It. Contention that relocation of mining claims inured to benefit of former holders because partner of

such former holders assisted therein will not be sustained, where claims were relocated before partner

knew about it.

See 40 C.J. sec. 16 1/2, p. 740, n. 25 (new); sec. 266, p. 827, n. 12; sec. 267, p. 828, n. 27; sec. 268, p. 829, n.

45; p. 830, n. 50 (new); sec. 303, p. 845, n. 31, 34; sec. 313, p. 850, n. 19 (new).


��49 Nev. 366, 367 (1926) Lewis v. Carr��

Action to quiet title to mining claims by E.W. Lewis and others against J.J. Carr and

others. From judgment for defendant, quieting title, and an order denying a new trial,

plaintiffs appeal. Affirmed.

Joseph T. Murphy, for Appellants:

Neither federal nor state statutes specify just what shall constitute assessment work. A

wide latitude is allowed. That which tends to develop property or facilitate extraction of ore

satisfies statutes; nothing else does. Hough v. Hunt, 138 Cal. 142; Snyder on Mines, sec. 498.

It may consist of many things besides actual digging, and whether areal geology may be so

considered is question of fact. 2 Lindley on Mines, 1562, says topographical situation of

workings is subject to inquiry as to whether they tend to develop property. Preliminary

scientific study of geological and topographical conditions saves time, labor, and money, and

benefits more than haphazard plan of miners in sinking their shafts and driving their tunnels

first, and hiring trained engineers to study such conditions afterwards. Smelter Co. v. Kemp,

104 U.S. 63; Love v. Mt. Oddie Co., 43 Nev. 68.

Abandonment is largely question of intent. Forfeiturers are not favored in law unless clearly

shown. Indiana etc. Co. v. Mining Co., 35 Nev. 158; Lindley, sec. 645; 9 Morr. 616.

Attempted relocation by cotenant of abandoned claim, when not abandoned in good faith,

inures to benefit of all. Costigan on Mining Law, 331; Lindley, sec. 406; Yarwood v.

Johnson, 22 Morr. 398.

Harry C. Price and A.M. Hardy, for Respondents:

Object of state and federal laws is that holder shall give visible and substantial evidence of

good faith. Work must develop claim. Improvement is such artificial change in physical

conditions of earth in, upon, or reasonably near claim as to show design to discover mineral

or to facilitate its extraction; alteration must also be reasonably permanent. Golden Giant v.

Hill, 198 ��

��49 Nev. 366, 368 (1926) Lewis v. Carr��

p. 276; Snyder, sec. 498; 2 Lindley, 1544; Smelter Co. v. Kemp, 104 U.S. 636.

Plaintiff's proofs of labor are defective because they failed to state character of work and

description of claims. Rev. Laws, 243. Areal geology was not mentioned in proofs of labor

and was clearly an afterthought. This strange term is not defined in any mining textbook; no

decision is cited holding geological study constitutes assessment work, but there is evidence

that though many mining companies employ geological experts the expense thereof is never

claimed to be assessment work. Prospecting, sampling, assaying are not assessment work.

Bishop v. Blaisley, 41 P. 936.

Williamson had nothing to do with relocation, was not in the country when claims were

located, had disposed of all but one-twelfth of his prior interest, and would have had right,

anyway, to relocate them in they were open. Cotenancy did not exist.

OPINION


This is an action brought by appellants to quiet title to a group of mining claims, 14 in

number, situated in the Tonopah mining district. Respondents claimed possession and right of

possession to all except one of said claims by virtue of relocations. The relocations of the

claims in question were made upon the belief that the required amount of assessment work

for the year ending July 1, 1924, had not been performed upon the claims. It was stipulated by

counsel at the trial that appellants' locations were valid, and also that the relocations were

legally made if such assessment work had not been done. The trial court found that the

necessary annual assessment work for the year ending July 1, 1924, had not been performed

upon the claims, and rendered judgment quieting respondents' title thereto.

1, 2. The appeal is taken from the judgment and order denying the motion for a new trial.

The principal ��

��49 Nev. 366, 369 (1926) Lewis v. Carr��

error assigned is that all of the findings of the court, to the effect that the necessary annual

assessment work for the period mentioned had not been performed upon the claims, are

against the evidence. This contention is not sustained by the record. While some work was

shown to have been done, there was very substantial evidence to support the finding that it

was not sufficient to comply with the law. In reaching this conclusion we have not lost sight

of the rule which should have controlled the court—that the burden of proving that appellants

had forfeited the claims was upon respondents. We will not undertake to review the evidence

further than to discuss later certain evidence which the trial court held was not of a character

to be counted as assessment work. As the mining claims involved, 14 in number, constituted

one group for the purposes of developing the property, $1,400 worth of work done or

improvements made was required by statute to hold possession of the claims.

Chapter 109 of Stats. 1923, p. 184, provides:

“The amount of work done or improvements made during each year to hold possession of

a mining claim shall be that prescribed by the laws of the United States, to wit: One hundred

dollars annually. In estimating the worth of labor required to be performed upon any mining

claim, to hold the same under the laws of the United States, the value of a day's labor is

hereby fixed at the prevailing wages of the district in which such claim is situated; provided,

however, that in the sense of this statute eight hours of labor actually performed upon the

mining claim shall constitute a day's labor.”

3. The trial court held that the services claimed by Lewis in areal geology work could not

apply as assessment work. It is insisted that the court erred in this, and it is claimed that, even

assuming that the court was correct in holding that only $700 worth of labor had been done

on the claims in actual excavation work, the services in areal geology work testified to by

Lewis as ��

��49 Nev. 366, 370 (1926) Lewis v. Carr��

having been done by him on the claims constituted assessment work, and that together they

were of sufficient value to more than meet the requirements of the statute. In regard to the

latter class of work the appellant Lewis testified that he had studied geology at Harvard

College, and had read various works on the geological formations of the district in which the

mining claims were located. He testified that during the year ending July 1, 1924, he walked

over the mining properties a number of times prospecting, collecting samples of ores, and

studying the formations. He used an aneroid barometer to determine the altitude of the hills.

He made a map of the claims showing also, as he claimed, the different formations. The map

was introduced in evidence, and the witness testified concerning the different formations

represented on it. He testified that he was engaged in this work 100 days, and that his services

in this respect were worth $10 per day and were beneficial to the claims.

5. Two mining engineers, residents of Tonopah mining district and in the employ of local

mining companies, testified in behalf of appellants. In their testimony they gave their

definitions of areal geology. They stated that it was beneficial to mining claims, and was a

part of the work done by mining companies on taking over claims. On this phase of the case

the trial court has written a very clear and convincing opinion, which we adopt in part as the

opinion of this court. It is as follows:

“Areal geology is that branch of geology which pertains to the distribution, position and

form of the areas of the earth's surface occupied by different sorts of rock or different

geologic formations, and to the making of geologic maps. (Le Forge) Bulletin

95—Department of the Interior, by Albert H. Fay. While Gunther, in his, ‘Examination of

prospects,' p. 40, does not define areal geology, yet the term bears out the above definition,

for the chief purpose of this branch of geology is to study the surface conditions, and, after

obtaining sufficient data, to make a map, which is helpful in many ways.

��49 Nev. 366, 371 (1926) Lewis v. Carr��

“Two mining engineers testified for the plaintiffs regarding areal geology, and stated that it

was the study of the surface conditions for the purpose of making a map, from which an

imaginary idea might be obtained as to the conditions under the surface.

“Plaintiff Lewis testified that he made several trips over the ground in dispute, and also

adjoining ground, and obtained data, and from this data he made the geologic map, Plaintiff's

Exhibit G, and that these services were worth at least $10 per day, and that it took him about

100 days. Just what character of labor or improvements is required is not specified either in

the federal or states statutes. The land department of the government has taken a definite

stand upon this question, and is firmly committed to the doctrine that the labor or

improvements contemplated by the federal statute are such as bear some direct relation to the

development of the mine, and which tend to facilitate the extraction of ores therefrom.

Golden Giant M. Co. v. Hill, 27 N.M. 124, 198 P. 276, 14 A.L.R. 1450.

“In Fredericks v. Klauser, 52 Or. 110, 116, 96 P. 679, 682, the court said: ‘The word

“improvement,” as thus used, evidently means such an artificial change of the physical

conditions of the earth in, upon, or so reasonably near a mining claim, as to evidence a design

to discover mineral therein or to facilitate its extraction, and in all cases the alteration must

reasonably be permanent in character.'

“In Snyder on mines, sec. 498, the doctrine of the cases is summarized as follows: ‘* * *

The test in all cases which should be applied to annual labor is whether the work or

improvements tend to develop the claim and facilitate the extraction of the mineral and

valuable contents therefrom. Any labor or improvements meeting this requirement will satisfy

the statute; nothing else will.'

“In Smelting Co. v. Kemp, 104 U.S. 636, 26 L. Ed. 875, the court held: ‘Labor and

improvements, within the meaning of the statute, are deemed to have been had �� "

��49 Nev. 366, 372 (1926) Lewis v. Carr��

on a mining claim, whether it consists of one location or several, when the labor is performed

or the improvements are made for its development, that is, to facilitate the extraction of the

metals it may contain, though in fact such labor and improvements may be on ground which

originally constituted only one of the locations, as in sinking a shaft, or be at a distance from

the claim itself, as where the labor is performed for the turning of a stream, or the

introduction of water, or where the improvement consists in the construction of a flume to

carry off the debris or waste material.'

“And in Love v. Mt. Oddie U.M. Co., 43 Nev. 61, 181 P. 133, 184 P. 921, the Supreme

Court of Nevada stated: ‘Whatever other courts may think or say, the law a laid down by the

court mentioned [Smelter v. Kemp, supra], upon this question is final, though, so far as we

know, all of the courts of the land are in accord with the view thus expressed. * * *'

“In the case of Bishop v. Baisley, 28 Or. 119, 41 P. 936, it was claimed that prospecting

the ground and picking rock from the walls of a shaft or outcropping of a ledge, in small

quantities from day to day, and testing it, and having assays made, for the purpose of trying to

find a paying vein, would constitute and go for assessment work, but the court held that it

could not be applied, and stated: ‘Such work naturally leads one to question the good faith of

the claimant, and to doubt his purpose to represent the claim except upon finding the “pay

chute.” This class of labor is not such as the statute contemplated, and will not avail the

plaintiff.'

“The only result of Lewis' trips over the ground was a map. The map shows the plaintiffs'

claims; part of them are claimed or shown to have a rhyolite formation, and the other part,

andesite formation. And the elevation is also shown. There was nothing further offered to

show how this areal geological work in any way benefited any claim or the group of claims,

or would facilitate in any way the extraction of any minerals which the claims might contain.

If this class of work could be ��

��49 Nev. 366, 373 (1926) Lewis v. Carr��

considered as assessment work, then the same thing could be done year after year, and there

would be nothing either upon or near the claims which would show that they were being

developed or improved in any manner.

“Mr. Justice Miller, in Chambers v. Harrington, 111 U.S. 353, 4 S. Ct. 430 (28 L. Ed.

452), after explaining the reasons for the adoption of the federal statute requiring the $100

worth of labor or improvements to be made upon a mining claim, says: ‘* * * Clearly the

purpose was the same as in the matter of similar regulations by the miners, namely, to require

every person who asserted an exclusive right to his discovery or claim to expend something

of labor or value on it as evidence of his good faith, and to show that he was not acting on the

principle of the dog in the manger.'

“The court therefore finds that the so-called areal geological work did not, nor did it tend

in any way, to facilitate the extraction or develop any minerals which the claims might

contain, and that said work cannot be considered as assessment work.”

For an intelligent discussion of the character of the labor or improvements which will

satisfy the statute, see Lindley on Mines (3d ed.), sec. 629.

So far as we can ascertain, counsel for appellants seems to be a pioneer in advancing the

thought that the application of the facts and principles of areal geology to the development of

mining property was within the contemplation of Congress and the legislature in enacting

these statutes. He has cited no authority to that effect, and we have not been able to find any

by our own research.

One of the mining engineers mentioned, who had been continuously in the employ of

mining companies in the Tonopah mining district for eight years prior to the trial, testified

that he had never done work in areal geology for the purpose of having it apply as assessment

work, and that he did not know of these companies having had such work done for that

purpose.

��49 Nev. 366, 374 (1926) Lewis v. Carr��

Areal geology, performed upon a mining claim, might indeed be a valuable guide as to the

most advantageous place to do the work or make the improvements, but in itself would

furnish no evidence on or near the ground to parties seeking to initiate title to the same

premises, of a bona fide intention to hold and develop the property. This we think is the

object of the statutes. “The object of the law requiring annual work,” says Mr. Lindley in the

section above referred to, “is, that the holder of a mining claim shall give substantial evidence

of good faith.” Chambers v. Harrington, supra.

Areal geology, worked out on a mining claim in the most scientific manner, would

produce no such evidence. We agree with the trial court that the work in areal geology

claimed to have been done by Lewis as assessment work on the claims in question does not

meet the requirements of the statute.

4. It is contended that one of the respondents, J.C. Williamson, had been interested in the

said claims as a copartner with the appellants prior to the relocation of the claims, and that, as

he cooperated with and helped respondents to relocate the claims, the work of relocation

inured to the benefit of appellants. The same contention was made before the trial court, and,

in respect to it, the court said, in its written decision, that there was no evidence to sustain the

contention. “In fact,” said the trial court, “there was but very slight evidence that he

(Williamson) had any interest in the plaintiffs' claims. However, it was shown that the

defendants had relocated the claims before Williamson knew anything about the relocation,

and that afterwards he was employed to assist in doing some of the work on the ground and

was paid for his services.”

These statements are warranted by the evidence. Besides, the trial court found that the

respondents, Carr, McDonald, and Price, relocated the claims, and the evidence sustains this

finding. Consequently the contention was resolved against appellants in the court below.


____________

��49 Nev. 375, 375 (1926) Thompson v. Thompson��

THOMPSON v. THOMPSON

No. 2638

July 8, 1926. 247 P. 545.

1. Fraud. One relying on fraud must specifically plead it.

2. Divorce—Written Agreement between Separated Husband and Wife to Live Together

Again Held “Condonation” of All Prior Grievances, though There Was No Subsequent

Cohabitation. Written agreement between separated husband and wife to live together again, by which husband gave

wife certain property, and she dismissed suit against him, held condonation of all prior grievances,

notwithstanding there was no cohabitation afterward; “condonation” being forgiveness by aggrieved

spouse of past offenses on condition that they will not be repeated.

3. Divorce. Condonation may be established either by conduct or express agreement.

4. Divorce.

Divorce suit is equitable, and not in nature of quasi criminal proceeding, in view of Const. art. 6,

sec.6.

5. Divorce. Condonation held to restore parties to original marital relationship so that divorce complaint, based

on subsequent desertion, need not allege such restoration.

6. Divorce. Burden is on aggrieved spouse to show repetition of misconduct to defeat condonation.

7. Divorce. Supreme court is bound by jury's finding, supported by substantial evidence, that plaintiff had

established bona fide residence within county.

8. Evidence. Sustaining objection to question on cross-examination as to source of income of plaintiff in divorce

suit held not abuse of discretion, where counsel asking it declined to state his theory of its admissibility.

9. Divorce. Testimony in divorce suit as to whether witness would have known if plaintiff had been away during

certain six-month period, admitted to establish residence, held not prejudicial.

10. Divorce. Objection to testimony as to where parties lived when they were married 20 years before held

property sustained.

11. Trial. Court held not required to give requested instruction on point fully and correctly covered by his own

instruction.

See (1) 27 C.J. sec. 144, p. 28, n. 50; (11) 38 Cyc. p. 1331, n. 74; ��


p. 1711, n. 19; (2-10) 19 C.J. sec. 23, p. 22, n. 87; sec. 192, p. 83, n. 31, 32; sec. 285, p. 114, n. 86; sec.

331, p. 127, n. 23; sec. 336, p. 128, n. 46; sec. 370, p. 146, n. 77; sec. 480, p. 195, n. 39; sec. 481, p. 195,

n. 40.


Suit for divorce by Silas Stuart Thompson against Elizabeth D. Thompson. From a

judgment for plaintiff, and an order denying defendant's motion for new trial, she appeals.

Affirmed.

Ayers & Gardiner, James T. Boyd, and Peter Breen, Jr., for Appellant:

As each party charged other with desertion, their conduct before entering into stipulation

was material. Com. v. James, 9 Pa. Co. 145.

Divorce is quasi criminal proceeding. Stafford v. Stafford, 41 Tex. 111.

Generally in all criminal cases evidence of other offenses is admissible to show intent or

malice. State v. Vertrees, 33 Nev. 510; 15 C.J. 598.

Promise without intent to perform is fraud. 26 C.J. 1093; Ivancovich v. Stern, 14 Nev.

341.

Condonation is forgiveness on condition offense will not be repeated, and lasts only as long

as offending party behaves. Averbuch v. Averbuch, 141 P. 701. It must be voluntary act of

injured party, not induced by fraud, force or fear. Ordinarily there must be renewal of marital

relation. Promise of forgiveness or unaccepted offer to resume cohabitation is insufficient. 19

C.J. 83, 85, 843.

Evidence as to bona fides of respondent's residence in Washington, D.C., was pertinent to

show bona fides of his residence here. Residence implies fixed, not temporary, abode.

Presson v. Presson, 38 Nev. 206; McLaughlin v. McLaughlin, 48 Nev. 155.

Exclusion of competent evidence on question in issue is reversible error. 4 C.J. 1003; Zelavin

v. Tonopah, 39 Nev. 86. ��K�� *� �M��=��-


Brown & Belford and W.M. Kennedy, for Respondent:

No act happening prior to condonation can be set up as defense to action brought by

forgiven party upon cause arising after condonation. Eames v. Eames, 111 Ill. App. 655;

Rogers v. Rogers, 142 P. 1150.

Condonation is forgiveness on condition offending spouse shall thereafter treat other with

kindness. If condition is broken former offense is revived. Resumption or offer in good faith

to resume marital relations after desertion terminates desertion and new ill treatment upon

part of former deserter will not revive former desertion. 2 Schouler, Marriage and Divorce

(6th ed.), sec. 1703.

Resumption of cohabitation is conclusive evidence of implied condonation, but is not

essential in express condonation. Schouler, sec. 1696; Bush v. Bush, 205 S.W. 895.

One may not both accept benefits and avoid onus of agreement. Alexander v. Winters, 23

Nev. 473; Moore v. Mng. Co., 42 Nev. 164.

By accepting benefits of agreement made with husband wife is estopped from claiming his

offer and promise were not made in good faith. Legal conclusion that facts pleaded constitute

estoppel does not have to be alleged. Johnson v. Schumpf, 239 P. 401.

OPINION


This is a suit for divorce on the ground of desertion. The defendant in her answer denied

the desertion charges, and alleged that the plaintiff had deserted her. The case was tried to a

jury, which brought in a verdict in favor of the plaintiff. The court entered a decree

accordingly. The defendant has appealed from the judgment and from the order denying her

motion for a new trial. The parties will be referred to as in the trial court.


The parties formerly lived in Washington, D.C., where they were intermarried in 1903.

About the year 1916 the defendant brought a suit for divorce against the plaintiff in one of the

courts of the city of Washington, where a decree was entered in her favor for separate

maintenance in the sum of $65 per month. Thereafter negotiations were entered upon for an

adjustment of the differences between the parties, which resulted in the execution by them, on

November 4, 1920, of an agreement in writing wherein it is recited that the plaintiff was

desirous that his wife should forgive and forget the past, and resume marital relations with

him, and that he had agreed to provide support for her and to furnish her a suitable home, and

to be a true and loving husband to her, and that she on her part had agreed to resume marital

relations with him, and to be a true and loving wife to him. It is further recited in said written

agreement that as an evidence of good faith on the part of the husband he had conveyed to her

by deed a certain house and lot in Washington, free and clear of all liens and incumbrances.

In consideration of the facts thus recited and the agreements thus entered into, the parties

further agreed that the said suit in Washington should be dismissed on the condition that, in

the event the said husband should fail to properly support and maintain his wife, or that she

should be forced to leave him by reason of his misconduct, or if he should desert or abandon

her, she should have the right to again apply for maintenance and support.

Mr. Thompson instituted this action on December 15, 1921, wherein he alleges that, in

pursuance of the agreement recited, he conveyed on November 4, 1920, to Mrs. Thompson

the house, and that he provided a home in every way suitable to the station in life of the

parties, and invited Mrs. Thompson to come and resume marital relations pursuant to the

terms of said agreement, and that she refused to do so, and that her refusal constituted

desertion. The defendant contends, on the other hand, that she went to the home provided by

the plaintiff, and that he upbraided her for making the charges embraced in her bill in the suit

in which was entered ��*�� !��


the decree in her favor in the Washington court, and otherwise so demeaned himself as to

justify her in not reestablishing the marital relations with plaintiff.

In support of the defense offered, the defendant here contends that the plaintiff, in entering

into the compromise agreement mentioned, was not sincere, and that it was done with a view

of producing the situation which she claims thereafter developed. In support of this

contention, the defendant offered evidence of alleged misconduct of which it is contended the

plaintiff was guilty prior to the entry of the decree in the Washington suit. The trial court

sustained an objection which was made to this testimony upon the ground that whatever

misconduct the plaintiff may have been guilty of, and which was the basis for the Washington

suit, was condoned by the agreement settling the differences of the parties which resulted in

the dismissal of that suit. The question of alleged error of the court in ruling upon said

objection is the one most strenuously urged upon our consideration.

In disposing of the question suggested, it must be borne in mind that, while the answer of

the defendant alleges, “that said plaintiff was not sincere in his representations or in his desire

to again resume marital relations with the defendant, * * * but that his sole object was to

escape the fixed alimony of $65 per month by conveying her a small house,” there is no

allegation of fraud nor a tender of a reconveyance to the plaintiff of the house conveyed to her

pursuant to the said agreement. Defendant's theory in support of her contention that the court

erred in its ruling is stated in counsel's brief as follows:

“Appellant's theory of the case is that, inasmuch as each party charges the other with

desertion, and the question turns on ‘who was the deserter,' the conduct of the parties toward

each other before the entry of the stipulation was material to the issues of the case much as in

a case of assault, former assaults or threats may be introduced to enable the jury to determine

‘who was the aggressor.'


“That, as we allege certain facts which would make it greatly to the advantage of

respondent to enter into the stipulation the parties did enter into, and also alleged facts

questioning the good faith of respondent, and that the stipulation was sought at his instance in

order to obtain an unfair and unjust advantage of appellant, we should have been entitled to

go back into the conduct of the parties toward each other before the signing of the stipulation

to determine whether the reconciliation was in good faith, and also to have the jury instructed

concerning the admissibility of the pleadings.”

1. In support of defendant's theory, counsel devote many pages to discussion of alleged

facts, tending, as it is contended, to show fraud on the part of the plaintiff in entering into the

agreement for the dismissal of the Washington suit. As to this contention we think it may be

disposed of with the brief statement that, where one seeks to rely upon fraud, it must be

specifically pleaded. There is no allegation of fraud in the answer. We think it proper,

however, to state that the agreement in question was drawn by the counsel who conducted

defendant's Washington suit, and, so far as appears, she was fully protected.

2, 3. As to the theory urged by counsel for the defendant in support of their contention that

to enable the court to determine who was the deserter the conduct of the parties toward each

other prior to the settlement of the Washington case was competent, we are clearly of the

opinion that the entering into the agreement settling the Washington case was a condonation

of all prior grievances. But it is contended by counsel that there can be no condonation where

there is no cohabitation, and that there was no cohabitation between the parties after the

agreement was signed. While it is true, as contended, that there was no cohabitation, we are

not in accord with the contention made. “Condonation,” as that word is used in divorce suits,

is merely a forgiveness by the aggrieved spouse of past offenses on the condition that they

will not be repeated. Such forgiveness must be with the intention that the offender ��


shall be restored to former marital relations. 19 C.J. 83. This forgiveness is generally

established by the conduct of the party, but an express forgiveness may be shown, and, when

shown, is as binding as one shown by proof of cohabitation.

In Beeby v. Beeby, 1 Hagg. Ecc. 789, the court, speaking through Lord Stowell, said:

“Now condonation is forgiveness legally releasing the injury; it may be express or implied,

as by the husband cohabitating with a delinquent wife, for it is to be presumed he would not

take her to his bed again unless he had forgiven her.”

Another English case wherein express condonation was held sufficient is that of Blandford

v. Blandford, 8 Prob. Div. 19. In that case the wife had written letters expressing her

forgiveness. The court said:

“But the letters show that she forgave him on condition that he ‘sinned no more,' and that

is the legal definition of condonation.”

Such is the rule in the United States. While there seem to be but few cases on the point,

they all hold that the condonation may be express merely.

The Supreme Court of Arkansas in Bush v. Bush, 135 Ark. 512, 205 S.W. 895, 6 A.L.R.

1153, goes into the question at some length, and shows upon both reason and authority that

the rule stated is correct. Other authorities sustaining the rule are: 2 Schouler on Marriage,

Div., Sep. and Dom. Rel. sec. 1696; 1 Nelson on Divorce and Separation, sec. 465; Merriam

v. Merriam, 207 Ill. App. 474; Sewall v. Sewall, 122 Mass. 156, 23 Am. Rep. 299.

4. But it is said by counsel that a divorce suit is in the nature of a quasi criminal

proceeding, and hence rules of evidence pertaining to criminal cases control, and therefore the

trial court should have permitted the testimony in question to go to the jury for the purpose of

establishing the acts which are relied upon to constitute the desertion pleaded by the

defendant.

In support of the contention that a divorce suit is a quasi criminal proceeding, we are

referred to the case of 4��4��7%0��


Stafford v. Stafford, 41 Tex. 111. There are two or three other cases so holding, but we do not

think the reasoning put forth to sustain the statement is sound. The chief reason to support the

conclusion, as stated in the Stafford Case, is:

“In all divorce suits the defendant is charged with a breach of a solemn contract; in many

cases with disgraceful and brutal conduct; in others with offenses that are known to the law

either as a misdemeanor or felony. Again, no judgment of divorce can be rendered by

agreement or consent; none by confession or admission of either party; neither can a

judgment be rendered by default, and, as in criminal cases, the defendant cannot be compelled

to criminate himself by answering or testifying under oath. These facts show that it is in its

nature a quasi criminal proceeding, although not presented in the name of the state, nor

punished by fine or imprisonment.”

How can the fact that a husband's brutal conduct is the ground for a divorce affect the

character of the proceeding? The brutal conduct might not even be criminal, but, if it were,

the husband could be criminally prosecuted, and at the same time the wife might prosecute

her suit for a divorce in the civil court. The fact that no divorce can be granted by consent,

default, or confession cannot affect the nature of the suit. The reason why there can be no

such judgment in a divorce suit is because the state is interested in preserving marital

relations. It is equally interested whether the proceeding be equitable or quasi criminal in

character.

While, as held in Effinger v. Effinger, 48 Nev. 209, 239 P. 801, a divorce suit is statutory

in Nevada, it partakes of the nature of an equitable proceeding. The writs of injunction and

mandamus and probably others are issued in such proceedings, and, no doubt, a receiver

might be appointed on a proper showing, and, as said in Black v. Black, 5 Mont. 15, 2 P. 317,

the court, sitting as a chancellor, is alone responsible for the decree as to alimony and the

custody of the children.

Divorce suits were classified as equitable in character �� !�� )� ��@��@��%?)� �77A�� 4��4��EA)� �


in the early judicial history of California in the case of Lyons v. Lyons, 18 Cal. 447, and later

in Sharon v. Sharon, 67 Cal. 185, 7 P. 456, 635, 8 P. 709.

In 19 C.J. 22, it is said:

“Matrimonial actions are neither actions at law nor suits in equity, but are statutory actions

in which both jurisdiction and practice depend on the statute, except that where the statute is

silent the practice usually follows the rule in equity.”

See, also, Cast v. Cast, 1 Utah, 112; Fulton v. Fulton, 36 Miss. 517; Kretz v. Kretz, 73 N.J.

Eq. 246, 67 A. 378; Cohagan v. Cohagan, 294 Ill. 439, 128 N.E. 494; Richmond v.

Richmond, 10 Yerg. (Tenn.), 343.

But, whatever may be the correct view in other states, our constitutional convention

classified divorce suits as equitable in character. When section 6 of article 6 of the

constitution which fixes the jurisdiction of the district courts of this state was under

consideration, Mr. Johnson made a motion to amend so as to give that court jurisdiction over

the person and estates of minors. Mr. Banks then said, “I will suggest further whether it

would not be well to include cases of divorce.” Mr. De Long thereupon stated, “They are

covered already. Those are actions in equity, and it is provided that the district courts shall

have original jurisdiction in all cases in equity.” The convention accepted the suggestion of

Mr. De Long as correct, and no provision was incorporated in the section or in any other

section conferring jurisdiction in divorce suits. Marsh's Constitutional Debates, 653.

But, should we concede that a divorce suit is quasi criminal in nature, we think the

contention should be rejected, for the reason that the rule invoked is not applicable to the

situation presented. To support the contention that proof of other offenses is admissible, our

attention is directed to the case of State v. Vertrees, 33 Nev. 509, 112 P. 42. In that case the

court said:

“Error is assigned in the admission of certain testimony tending to establish other similar

offenses committed about the same time as the offense charged in ��


the indictment. In this character of cases where intent is the gist of the action, evidence of

similar offenses is admissible for the purpose of establishing criminal intent, and the ruling of

the court in this respect was not error.”

That case turned upon the well-recognized proposition that, where intent is the gist of the

offense, evidence of other similar offenses committed about the same time is admissible. No

such situation is presented in the instant case.

5, 6. It is also said that the complaint does not state a cause of action, for the reason that it

does not allege that there was a restoration of marital relations after the agreement in the

Washington case was executed; the theory being that there could be no desertion until there

had been such restoration. We do not think any such allegation was necessary. The

condonation wiped out any prior offense just as effectively as if it had never existed, and

restored the parties to their original marital relationship. The burden was upon the defendant

to show that the condonation had been rendered ineffective by showing a repetition of the

offenses. Until this was done the situation stood just as though there had never been any

misconduct on the part of the plaintiff prior to the alleged desertion on the part of the

defendant.

7. It is next contended that the evidence fails to show that the plaintiff had established a

bona fide residence in Washoe County, Nevada. This was a question of fact to be determined

by the jury, and, there being substantial evidence to support the verdict, we are bound thereby.

8. It is contended that the court erred in sustaining an objection to the following question

asked plaintiff on cross-examination, namely: “From what source is your income derived?”

The record on this point reads:

“Q. Have you any source of income within the State of Nevada? A. No.

“Q. From what source is your income derived? < ��


“Mr. Kennedy: If it please your honor, that is objected to.

“The Court: The objection seems to be good. I will hear from you, if you want to be heard,

Mr. Ayers.

“Mr. Kennedy: It is not cross-examination; not relevant, material, or competent.

“Mr. Ayers: I will take your honor's ruling.

“The Court: Objection sustained.”

In the circumstances we do not think the court abused its discretion. Counsel was given an

opportunity to state his theory, and declining to do so, the court could not surmise the purpose

of the question. The situation is not parallel to that presented in McLaughlin v. McLaughlin,

48 Nev. 155, 238 P. 402. It may be of interest to note that the Supreme Court of Oklahoma

reached the same conclusion we did in the McLaughlin Case, Pope v. Pope, 116 Okl. 188,

243 P. 963.

9. It is next contended that the court erred in overruling an objection to a question asked

Mr. Allen, a witness called in behalf of the plaintiff. The question reads,

“If Dr. Thompson had been away from Reno between the 14th or 15th day of June, 1921,

and the 15th day of December, 1921, would you have known it?”

This was the sixth-month period during which it was claimed plaintiff resided in Washoe

County as an essential to the establishing of his residence there. There was no prejudice in the

ruling.

10. It is next asserted that the court erred in sustaining an objection to the following

question:

“When you and your wife were married, where did you first take up your home?”

It appears that the parties were intermarried in October, 1901, more than 20 years before

this suit was instituted. The place where they then took up their residence could throw no

light upon the issues in the case, and the ruling was right. A number of other contentions

equally lacking in merit are urged upon our ��


consideration in the brief. We decline to discuss them separately.

11. It is said that the court erred in refusing to give certain instructions requested by

defendant on the law of residence. The court gave instructions on this point fully and

correctly stating the law, and it was not incumbent upon the court to give the instructions

requested by defendant covering the same legal question. No error was committed in that

regard.

No prejudicial error appearing in the record, it is ordered that the judgment be affirmed.

____________

��49 Nev. 386, 386 (1926) State v. Boyle��

STATE v. BOYLE

No. 2727

July 24, 1926. 248 P. 48.

1. Witnesses. Ruling on objection to defendant's cross-examination of witness called by state, but only interrogated

as to his name and residence, held not prejudicial.

2. Witnesses. Range of cross-examination should be limited to subject matter inquired into on direct examination.

3. Witnesses. Wide range of cross-examination should ordinarily be allowed to test witness' motives, interests,

animus, and accuracy.

4. Criminal Law—Sustaining Objection to Defendant's Cross-Examination of Witnesses

Affecting Particular Occurrence Because of Confusion of Date and Day of Week

Involved in Question, and Remark of Court in that Connection, Held Not Prejudicial. Sustaining objection to defendant's cross-examination of witness as to how close he was to

automobile, which he testified to have seen on particular date and day of week, on ground that date

named was not on day of week mentioned, and court's remark in connection therewith, held not

prejudicial.

5. Criminal Law. In prosecution for bank robbery, in which sheriff who arrested defendant was permitted to testify

respecting conversation had with defendant while in jail, evidence held to show absence of inducement,

rendering conversation admissible.

6. Criminal Law—Evidence that Sheriff Advised Defendant to “Make a Clean Breast of It

All” Held Not Prejudicial. In prosecution for bank robbery in which sheriff testified �� !�� <�� 1�� !��

��49 Nev. 386, 387 (1926) State v. Boyle��

to conversation with defendant while in jail, evidence that on previous day he told defendant the best

thing was to “make a clean breast of it all” held not prejudicial.

7. Witnesses. Cross-examination of witnesses who had testified as to defendant's honesty, integrity, truth, and

veracity as to whether they had heard of certain prior conduct of defendant held proper.

8. Witnesses. That cross-examination of defendant's character witnesses related to alleged misconduct at distant

points held not to make it objectionable.

9. Criminal Law—In Prosecution for Bank Robbery, Exclusion of Questions Affecting

Defendant's Industry Held Not Reversible Error. In prosecution for bank robbery, where it was shown that defendant had spent considerable money

following date of robbery, exclusion of questions asked witnesses affecting defendant's reputation for

industry, if improper, held not reversible error, in view of defendant's own testimony.

10. Criminal Law. Testimony of character witnesses for defendant should be confined to his reputation for particular trait

of character in issue.

11. Criminal Law. Court's admonition to defendant's counsel to cease his bulldozing tactics and behave himself as a

gentleman toward witnesses held not shown by record to have been unjustified.

12. Criminal Law. Every presumption is in favor of propriety of court's action.

13. Witnesses. Questions affecting conversation between witness and sheriff in sheriff's office, and conduct of

sheriff, adduced in rebuttal of inferences left by defendant that witness was taken to office with ulterior

motive, held properly allowed.

14. Criminal Law. Ground of objection that question asked witness called for conclusion cannot be first assigned on

appeal.

15. Criminal Law. In prosecution for bank robbery, instruction as to jury's right to convict on circumstantial evidence

held proper.

16. Criminal Law. Instruction to convict notwithstanding good reputation, if guilt was shown beyond a reasonable doubt,

held not objectionable as disparaging evidence of good character.

17. Criminal Law. Instruction that opinions of individual witnesses as to defendant's character should not be considered

for purpose of proving existence of, or character of, his general reputation held proper.

��49 Nev. 386, 388 (1926) State v. Boyle��

18. Criminal Law—District Attorney's Argument, Affecting Inferences To Be Drawn from

Recital of Poor Character in Defendant's Army Discharge Papers, Held Not Prejudicial

Misconduct. In prosecution for bank robbery, where defendant's honorable discharge from army was admitted in

evidence, argument of district attorney affecting inferences to be drawn from recital of poor character in

such discharge held not prejudicial misconduct.

19. Criminal Law. For misconduct of counsel to constitute ground for reversal, request for instruction to disregard must

have been made and refused at trial.

20. Robbery. Evidence held to sustain conviction for bank robbery.

21. Criminal Law. Under Const., art 6, sec. 4, and Rev. Laws, sec. 7287, evidence cannot be weighed by supreme court,

if there is substantial evidence to support verdict.

See (1-3, 7, 8, 13) 40 Cyc. p. 2409, n. 70; p. 2481, n. 64; p. 2497, n. 52; p. 2501, n. 94; p. 2525, n. 19; (4-6,

9-12, 14-19, 21) 16 C.J. sec. 1124, p. 582, n. 24; sec. 1512, p. 734, n. 20; sec. 1688, p. 726, n. 49; sec.

2381, p. 980, n. 87; sec. 2382, p. 981, n. 96; sec. 2434, p. 1010, n. 14; 17 C.J. sec. 3331, p. 58, n. 27;

sec. 3336, p. 72, n. 62; sec. 3462, p. 170, n. 14; sec. 3560, p. 214, n. 31; sec. 3593, p. 255, n. 52; sec.

3637, p. 295, n. 63; sec. 3638, p. 298, n. 21; sec. 3679, p. 333, n. 95; (20) 34 Cyc. p. 1808, n. 78.


D. M. Boyle was convicted of bank robbery, and he appeals. Affirmed.

McCarran & Mashburn, for Appellant:

Limits of cross-examination are largely discretionary. Reasonable exercise of this

discretion is always allowed. The Ottawa, 3 Wall. 268; Underhill, Crim. Evi. (2d ed.), secs.

219, 221.

Admission by accused to officer must be without any threat, coercion, intimidation or hope

of reward. Risoner should be cautioned anything he says may be used against him. Rex. v.

Griffin, R. & R.C.C. 151; Ammons v. State, 18 L.R.A. (N.S.), 766; Coleman v. State, 87 Ala.

14. Advise to accused by officer that it would be better if he confesses, vitiates confession. 2

Wharton, Crim. Evi., sec. 951. Slight inducement is �� #��

��49 Nev. 386, 389 (1926) State v. Boyle��

sufficient to render confession involuntary. Idem., sec. 649. Burden is on state to prove

confession voluntary. Idem. sec. 622.

Character evidence may not be rebutted by series of independent facts. 1 Wharton, sec. 61;

State v. Pearce, 15 Nev. 188. Rumors and gossip are not reputation. Underhill, sec. 81; Dave

v. State, 22 Ala. 23. Evidence as to character is limited to community where defendant lives.

11 Wigmore, Evi., sec. 1615; Griffin v. State, 14 Ohio St. 55. Evidence of conduct merely

immoral but not unlawful is not admissible on cross-examination. 2 Wharton, sec. 487;

Chamberlyne, Modern Law of Evi., sec. 3315. In larceny, honesty is relevant trait; sobriety is

not. Idem., sec. 3299. Evidence of good character should be allowed to go to jury without

disparagement by court. Underhill, p. 144. See severe criticism of asking about rumors, 2

Wigmore, sec. 1611.

Statute defines reasonable doubt. Rev. Laws, 7164. No other definition may be given. Rev.

Laws, 7165; State v. Streeter, 20 Nev. 404.

Appeal of district attorney to ex-service and business men to consider matters within their

own personal knowledge but not evidence was error. He may not bring into case indirectly or

by innuendo matters not in testimony. State v. Petty, 32 Nev. 393; Prosecutor must be fair.

State v. Scott, 37 nev. 432. Reference to tong wars when there was nothing about them in

evidence was improper, and mere reprimand of counsel and admonition to jury do not always

cure injury. State v. Jon, 46 Nev. 418.

Identification witness must have opportunity for observation; tenacity of memory; ability to

make allowance for change of place, time and conditions; freedom from bias; absence of

fancied resemblance or mistake. 2 Wharton, secs. 806, 807, 934.

M. A. Diskin, Attorney-General; Wm. Forman, Deputy Attorney-General; L.D.

Summerfield, District Attorney; and H.L. Heward, Deputy District Attorney, for Respondent:

Cross-examination should be confined to matters ��

��49 Nev. 386, 390 (1926) State v. Boyle��

brought out on direct. 40 Cyc. 2501; Nash v. McNamara, 30 Nev. 114.

Asking officer whether he held out any inducement or made any threat as preparatory to

introduction of confession is proper and not leading, suggestive, or calling for conclusion.

State v. Newton, 70 P. 31. Opposing counsel had right to cross-examine before admission

was introduced. Telling accused it would be better for him to make clean breast of it does not

vitiate confession in this state of advanced legal thought and common sense, though appellant

cites authorities from jurisdictions where rule-of-thumb procedure prevails. State v. Jon, 46

Nev. 418; State v. Mircovich, 35 Nev. 485.

Integrity includes honesty, truth and veracity. On cross-examination character witness may be

asked as to specific reports concerning traits of character involved, if they have tendency to

establish bad reputation. People v. Burk, 122 P. 435. Witness' credibility may be tested on

cross-examination by questions as to particular acts of, or rumors concerning accused

inconsistent with reputation witness attributes to him. State v. Sella, 41 Nev. 113. Reputation

in other communities is admissible. Idem. Industry is not trait involved in robbery. Evidence

is limited to traits involved. 16 C.J. 582; State v. Pearce, 15 Nev. 188.

Burden is on party claiming error in conduct of court. 17 C.J. 213. If court unfairly criticized

counsel, it is as fair to presume jury reacted in his favor as against him. People v. Cramley,

138 P. 123.

Instructions complained of correctly state law and have been adjudicated. 3 Randall's

Instructions to Juries, 2254, 2258; State v. Harris, 65 P. 774; May v. People, 6 P. 816; State v.

Huber, 38 Nev. 253.

Matters of general public information and known history may be referred to in argument. 16

C.J. 899. Cause will not be reversed for improper remarks unless prejudicial. 17 C.J. 298;

People v. Scott, 141 P. 945; Rev. Laws, 7469.

��49 Nev. 386, 391 (1926) State v. Boyle��

OPINION


The defendant was convicted of bank robbery, and has appealed from an order denying his

motion for a new trial, and from the judgment. Such facts as may be necessary will be stated

in disposing of each point urged.

1-3. The first error assigned goes to the ruling of the trial court upon an objection to

certain questions asked G.K. Collins on cross-examination. The state called Mr. Collins, and

asked him only two questions, viz. what his name was, and where he resided. After the

witness had answered a few questions, on cross-examination he was asked if he had ever seen

the clerk at the Golden Hotel in Reno prior to registering at the hotel, whether any one was

with him when he registered, and some other questions in no way pertaining to the matter

concerning which he was inquired of on direct examination. While this court has repeatedly

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. 144,

93 P. 405, 16 L.R.A. [N.S.] 168, 133 Am. St. Rep. 694), we think this statement of the law

should be construed in the light of the facts of the particular cases in which the statement was

made. The fundamental theory justifying cross-examination, as observed in the very able

work on the law of evidence by Dean Wigmore, is that a witness on his direct examination

discloses but a part of the facts necessary to be considered in reaching a proper evaluation of

his testimony. As that learned author observes, the facts suppressed or undeveloped may be of

two sorts: (a) The remaining and unqualified circumstances of the subject of testimony, as

known by the witness; and (b) the facts which diminish and impeach the personal

trustworthiness of the witness. 3 Wigmore on Evidence (2d ed.), sec. 1368. As to the first

classification, it is clear that the court �� !��

��49 Nev. 386, 392 (1926) State v. Boyle��

did not abuse its discretion, since the questions asked did not relate to the subject matter

covered on direct examination. As to the second class, while the extent of the examination is

largely in the discretion of the court, a wide range should ordinarily be allowed to test the

witness' motives, interest, and animus, and generally to test the value of his evidence for

accuracy. In the instant case, however, there was no prejudice done the defendant. The mere

fact that the witness bore a particular name, and that he was a resident of Lida, Nevada, could

in no way, so far as it appears from the record, prejudice the defendant, no matter how hostile

he might have been toward the defendant. But Collins was called as a witness for the

defendant, and testified while so on the stand to the identical facts he testified to when called

on behalf of the state. His testimony demonstrates not only that he was not hostile toward the

defendant, but that he was chiefly relied upon to establish the innocence of the defendant, and

was very friendly toward him. The defendant was in no way prejudiced.

4. It is contended that the court erred in sustaining an objection made by the district

attorney to a question asked one Lockridge, a witness on behalf of the state, on

cross-examination. This witness had testified on direct examination that he saw a certain

automobile parked on Eleventh Street, Sparks, Nevada, on Saturday, March 31, 1925, and

had described the car and the action of the man in it, whom he identified while on the witness

stand as G.K. Collins. He had testified very positively that the day of the week was Saturday.

We quote from the evidence:

“Q. Now, was the 31st of March Saturday at all? Don't you know that the 31st of March

was Wednesday?

“Mr. Heward: Both of you are wrong. It was on Tuesday.

“Mr. McCarran: Q. All right. On Tuesday, Tuesday. If the 31st of March was a Tuesday,

you are all wrong on your calculations, aren't you, Mr. Lockridge? A. Only to the 31st of

March.

��49 Nev. 386, 393 (1926) State v. Boyle��

“Q. Only to the 31st of March. Well, if you do not know that it was a Tuesday, and you

state positively it was a Saturday, how do you know it was the 31st of March at all? A.

Because that was the day the bank was robbed. * * *

“Mr. McCarran: Q. When this car that stood out there on this Saturday that you speak

about was parked on Eleventh Street, you were not closer to the car than across the street,

were you?

“Mr. Summerfield: Object to that as assuming a state of facts not in evidence. This has

already been shown now not to have been on a Saturday, but on a Tuesday.”

In this connection it is also said that the court committed error in making the observation

that he thought it would be better to avoid confusion by directing the attention of the witness

to the date “instead of to the wrong day, which he says it was.” We do not think the court

committed prejudicial error. When Mr. Heward suggested that the 31st was on Tuesday, both

counsel and the witness apparently accepted the statement as correct, and the witness then

pinned the incident to the 31st, the day of the robbery. In either event, the main purpose of the

question was to establish the fact that the witness was not closer to the car than across the

street at the time he saw it. That phase of the question was open to such further inquiry as was

deemed necessary—the day of the week on which the car was seen was a mere detail.

Furthermore, the defendant gave testimony showing that the 31st of March was on Tuesday.

The defendant suffered no prejudice.

5. It is next contended that the court erred in overruling an objection to a question asked

W.B. Mercer, a witness on behalf of the state, on direct examination. Mr. Mercer was sheriff

of Esmeralda County. The defendant had been arrested, and placed in the county jail on the

day previous to the conversation of which the witness was testifying. At the time the

defendant was placed in the jail, the witness told him that he had been arrested for the Sparks

bank robbery, and the best ��<�� 1

��49 Nev. 386, 394 (1926) State v. Boyle��

thing for the defendant to do “would be to make a clean breast of it all.” What further, if

anything, was said at that time about the robbery does not appear. Concerning a conversation

between the witness and the defendant on the morning of July 3, the day after the arrest, we

find the following testimony by Mercer:

“Mr. Heward: Q. Sheriff, I believe you testified that you had a conversation with the

defendant down in the jail on the morning of July 3, 1925. Is that correct? A. Yes, sir.

“Q. At that time did you hold out any inducements to this defendant?

“Mr. McCarran: One moment, if the court please. That is leading and suggestive,

argumentative, calls for the conclusion of the witness.

“Mr. Summerfield: It is a type of question where you can ask for conclusions, and have to.

“The Court: Yes, in laying the foundation. The objection is overruled.

“A. I did not.

“Mr. Heward: Q. Did you make any threats to him?

“Mr. McCarran: The same objection, if the court please.

“The Court: The same ruling.

“Mr. Heward: Q. Did you use any force or violence to or toward the defendant? A. I did

not.

“Q. Did you make any promises to him? A. No, sir.

“Q. State what his appearance was as to being calm and composed or otherwise? A. He

was calm.

“Q. Would you read me next the last question that I asked just prior to recess?

“The reporter read the question referred to as follows:

“‘Q. What did the defendant, Boyle, first say to you?'

“Mr. McCarran: That is objected to, if the court please, on all the grounds stated.

“The Court: Do you want that question in the form it is now?

“Mr. Heward: Well, I will ask the question outright:

“Q. Just state what the conversation was between �� 9��

��49 Nev. 386, 395 (1926) State v. Boyle��

yourself and the defendant, Dudley M. Boyle, at the time and place I have heretofore

indicated?

“Mr. McCarran: It is objected to as incompetent, immaterial, and irrelevant.

“The Court: The objection is overruled.

“Mr. McCarran: I save an exception.

“A. Mr. Boyle asked me if he could see me a minute. I told him that he could. I stepped

back in the jail, and Mr. Box went on out. Mr. Boyle says, ‘Bill, I have learned a good lesson.

I will stop drinking, and I will leave the country if you will assist me out of this trouble.'

“Mr. Heward: My question was broad enough to cover the entire conversation, so just go

ahead, sheriff. A. That is about all was said. There was a little hesitation, and I got up and

walked out. I beg your pardon: There was—I told him that Sheriff Hillhouse had a good deal

of evidence against him, and amount the evidence he knew about the one dollar bills that he

paid his room rent with. And he says, ‘I can make an excuse for having those one dollar bills.'

And I says, ‘What do you expect me to tell Sheriff Hillhouse when he arrives this morning?'

He says, ‘Tell him that you made a mistake and got the wrong man.' He says, ‘This may hurt

you for a while, but it will wear off.'”

As to the contention that the question called for the conclusion of the witness, we need

only say that no exception was taken to the ruling of the court. Furthermore, it affirmatively

appears that no inducement was held out to the defendant to make the statement which was

made. He opened up the subject himself, and volunteered the statement. State v. Mircovich,

35 Nev. 485, 310 P. 765.

6. As to the statement on the previous day by the sheriff that the best thing for the

defendant to do was to “make a clean breast of it all,” it was not prejudicial to the defendant.

State v. Jon, 46 Nev. 418, 211 P. 676, 217 P. 587, 30 A.L.R. 1443.

7. The next alleged error relied upon is the ruling of ��"��!��5��"��

��49 Nev. 386, 396 (1926) State v. Boyle��

the court upon defendant's objections to questions asked by the district attorney on

cross-examination of certain of defendant's witnesses. These witnesses had testified on direct

examination as to the honesty, integrity, truth, and veracity of the defendant in Esmeralda

County, Nevada, in which defendant resided. They were asked on cross-examination such

questions as these:

“Did you ever hear that the defendant, Dudley Boyle, got himself into trouble with the

university authorities while at the University of Nevada by reason of his getting intoxicated?”

“Did you ever hear that during the year 1924 the defendant was accused of burglarizing

McCaffery's Chili Parlor in Goldfield, Nevada, securing money from a slot machine, a watch,

a stick pin and a pen?”

The witnesses had testified on direct examination by counsel for the defendant that the

defendant's reputation for honesty, integrity, truth, and veracity in Goldfield, Esmeralda

County, Nevada, was good.

The question presented was settled by this court in the case of State v. Sella, 41 Nev. 113,

168 P. 278, in an opinion by McCarran, C.J., wherein the question was considered at length

and determined adversely to the contention now made. In the opinion in the case last

mentioned the writer alludes to a Missouri case in which the defendant was on trial for

murder, and that a character witness in his behalf was properly cross-examined as to whether

he heard that the defendant had kept an unlawful dive, and if he had heard that he had sold

liquor illegally, and of various other disreputable transactions of the defendant. The opinion

then quotes approvingly from the Missouri case as follows:

“It is settled law that, when a witness is called to sustain or attack the reputation of another

witness, the opposite party may cross-examine him liberally as to his means of knowledge,

and test his own truthfulness, and it is largely a matter of discretion with the court how far

such an examination shall be allowed.”

��49 Nev. 386, 397 (1926) State v. Boyle��

See, also, State v. Presta, 108 Wash, 256, 183 P. 112.

8. The fact that some of the questions on cross-examination of the character witnesses

pertained to alleged misconduct at points distant from Goldfield did not make them

objectionable. State v. Sella, supra. The ruling was right.

9. It is next contended that the court erred in sustaining an objection to questions asked

certain witnesses as to the defendant's general reputation for industry. The state had

introduced evidence tending to show that at a time subsequent to the date of the robbery of

the Sparks bank the defendant had spent considerable money, and it is the theory of the

defendant that the testimony offered tended to rebut any presumption arising from such

testimony prejudicial to the defendant.

10. The rule of law applicable to the situation presented was stated by this court in State v.

Pearce, 15 Nev. 188, where it was stated that, when witnesses are called to prove the good

character of the defendant, the testimony should be confined to the reputation which the

defendant enjoyed as to the particular trait of character in issue. This is the well-recognized

rule. 16 C.J. 582.

The reputation of the defendant for industry was not involved in the crime of robbery. But,

had the court erred in its ruling, we think it was cured by the fact that, when the defendant

was on the stand, he gave testimony as to his various employments over a period of eight or

ten years, and of his earnings, which was not disputed by the state. State v. Johnny, 29 Nev.

203, 87 P. 3.

11. It is strenuously insisted that the trial judge was guilty of gross misconduct prejudicial

to the defendant. The alleged misconduct consisted of remarks of the judge which were

addressed to counsel for the defendant wherein he admonished counsel to cease his

bulldozing tactics, and that he behave himself as a gentleman.

12. While a trial judge should at all times exhibit �� !�� !��!��

��49 Nev. 386, 398 (1926) State v. Boyle��

such restraint and dignity as becomes one occupying a high position, and scrupulously avoid

utterances and demeanor which may tend to prejudice a defendant on trial, we cannot say that

the presiding judge was not justified in his utterances and action. In the instant case the

language of the attorney seems inoffensive, but the manner of counsel cannot be gleaned from

the record. The same may be said of the language of the court. In fact, the remarks of the

court were relative to counsel's manner, and not to his language. When counsel took an

exception, the court stated:

“I do not like your manner, Mr. McCarran. You can enter all the exceptions you please,

but you will be gentlemanly to this witness and to all other witnesses.”

Every presumption is in favor of the propriety of the action of the court. Error is never

presumed, and must be made to affirmatively appear. It does not appear from the record that

the court was not justified in its action. People v. Cramley, 23 Cal. App. 340, 138 P. 123-127.

13, 14. The next assigned error goes to the ruling of the court on an objection to a question

asked the witness West on rebuttal by the district attorney as to whether the witness had had a

conversation with the sheriff in his office, and what the conduct of the sheriff was as to being

courteous. The question was objected to on the ground that it called for an argumentative

answer, was immaterial and irrelevant, and not proper rebuttal. We do not think the

objections made are good. Counsel for the defendant had sought to show that some ulterior

motive prompted the taking of the witness to the sheriff's office to inquire of him relative to

certain matters. The purpose of the inquiry on rebuttal was to dissipate such an idea. The

answer was not argumentative, and was material. The contention that the question called for a

conclusion of the witness comes now for the first time, and is too late.

15. It is contended that the court erred in giving instruction No. 12, which reads as follows:

“The court instructs the jury that the state is not ��

��49 Nev. 386, 399 (1926) State v. Boyle��

required to prove all of the facts by direct and positive evidence. it may prove a part by

circumstantial evidence. Circumstantial evidence is legal and competent evidence in criminal

cases, and, where it is all consistent with the hypothesis of the guilt of the person accused of

crime, and is not consistent with the hypothesis of his innocence, and where it establishes his

quilt beyond a reasonable doubt—where all the evidence can be reconciled with the

assumption of his guilt, and cannot be reconciled with the assumption of his innocence, and

produces in the minds of the jury an abiding conviction of the truth of the charge—it is the

imperative duty of the jury, under the law and under their several oaths, to render a verdict

finding him guilty, and they would violate their oaths if they should fail to do so just as they

would if it were all direct and positive evidence. Nor is it necessary that they should be

absolutely certain of his guilt. This is impossible, in the nature of things, and the law does not

require it. If it did, few crimes, perhaps, would be punished. An abiding conviction of the

truth of the charge, therefore, satisfies, the law in this respect. But, before returning a verdict

of guilty in any criminal case, the jury should, after a consideration of all the evidence, have

an abiding conviction of the truth of the charge. And if in this case, gentlemen, the evidence,

all considered, appears to your mines to be consistent with the hypothesis that the defendant

is guilty of the charge, and inconsistent with the hypothesis that his is innocent of it, and you

feel an abiding conviction of the truth of the charge, though not absolutely certain, you will

fail in your duty, and violate your oath, if you do not return a verdict declaring him guilty. But

if, on the other hand, the whole evidence in the case, as you review it, is just as consistent

with the hypothesis of his innocence as with the hypothesis of his guilt, or, if you do not feel

an abiding conviction of the truth of the charge, or entertain a reasonable doubt, resting upon

the unsatisfactory character of the evidence or for any other reason growing �� !��1

��49 Nev. 386, 400 (1926) State v. Boyle��

out of the evidence in the case to establish his guilt, your duty is just as imperative to acquit

him.”

Counsel attack the instruction in general terms, and then say that the worst feature of the

instruction is that it also purports to instruct the jury as to reasonable doubt, but mistakes the

law on this point, in that the statutory definition of reasonable doubt is not given. We think

counsel is in error. The court had in a previous instruction charged the jury on reasonable

doubt in the language of the statue, and the instruction in question is in no way in conflict

with that instruction, but in harmony with it. It is apparent that the sole purpose of the

instruction was to advise the jury that they might convict on circumstantial evidence as well

as on positive evidence under the conditions named in the instruction. The instruction is

sound in law and proper under the testimony. It was approved in State v. Harris, 25 Wash.

416, 65 P. 774, and in 3 Randall on Instructions to Juries, p. 2254.

16. It is next asserted that the court erred in giving instruction No. 20, which reads as

follows:

“The court instructs the jury that the defendant has introduced evidence of his good

reputation for truth and veracity, honesty and integrity. This is as proper for you to consider

as any other fact in the case, but the rule of law is that, if the jury, upon consideration of all

the evidence in the case, are satisfied beyond a reasonable doubt of the guilt of the defendant,

they must so find, notwithstanding his good reputation.”

The objection to the instruction is that it disparages the evidence as to the good character

of the defendant. We do not so interpret the instruction. To the contrary, it expressly states

that such evidence should receive as much consideration as any other evidence. This

instruction was approved in May v. People, 8 Colo. 210, 6 P. 816-823; 3 Randall's

Instructions to Juries, p. 2258.

17. It is also contended that the court erred in giving an instruction, which reads:

“The court instructs the jury that, while evidence of �� !�� !��1

��49 Nev. 386, 401 (1926) State v. Boyle��

the general reputation of the defendant in and about the neighborhood in which he lived at or

about the time of the commission of the alleged offense is admissible, and is a circumstance

to be considered by the jury in connection with all the other facts of the case, the opinion or

opinions of individual witnesses as to the character of the defendant are not to be considered

for the purpose of proving the existence of or the character of his general reputation, and in

this case evidence of the character last mentioned should not be considered by the jury in

determining any issue of this case.”

This instruction was approved by this court in State v. Huber, 38 Nev. 253, 148 P. 562; 3

Randall's Instructions to Juries, p. 2263. No error was committed.

18. It is next contended that the district attorney was guilty of prejudicial misconduct

during his closing argument to the jury. The argument was relative to the defendant's

discharge from the army. It purported to be an honorable discharge, and reads in part as

follows:

“This is to certify that Douglas M. Boyle (875077) private first class aviation section,

Signal Res. Corps, as a testimonial of honest and faithful service, is hereby honorably

discharged from the military service of the United States. * * *”

On the enlistment record of the discharge there is, among other notations, the following:

“Character: Poor.”

The portion of the argument complained of is as follows:

“You men who have seen service, who know the ratings on these certificates, the four

ratings of excellent, very good, good, and, at the bottom of the list, ‘Poor,' can appreciate the

full import of this certificate, and I will say to you that we will throw the friends of Boyle out

of this case, we will discard the testimony of the sheriff's office in Goldfield, and we will take

what has been written by the United States government as to this man's character—this it is

poor. You gentlemen are entitled to examine this certificate. I am going to �� 5��

��49 Nev. 386, 402 (1926) State v. Boyle��

hand it to you, and particularly ask you ex-service men to read into that that which you know

is there.

“Mr. McCarran: One moment, if the court please. I take an exception to that remark as an

attempt to influence certain members of the jury by reason of their military service. We

especially refer to the ex-servicemen. I assign it as misconduct, and take an exception to it

now.

“The Court: The record will show your exception. You may proceed with the argument.

“Mr. Summerfield: I also appeal to you business men who can read any record between the

lines, to you fathers of service men, to any of you who know anything about the service of

this country, as you are entitled in any case to bring into the case your ordinary knowledge

about the affairs of this government.

“Mr. McCarran: One moment, if the court please. I regret to have to interrupt Mr.

Summerfield, but under the ruling of our supreme court—

“Mr. Summerfield: Take your exception without argument.

“Mr. McCarran: I must draw his attention to the particular part of his argument. I therefore

now assign it as misconduct, and taken an exception to that remark referring to the ex-service

men and the fathers of ex-service men as an attempt on the part of the prosecution to arouse

passion and prejudice in the members of this jury, not borne out by the record in the case.

“The Court: The record carries your remarks for whatever they may be worth. You may

proceed with the argument.”

19. We think counsel's contention has no basis to sustain it. That the point now made

might be sustained, if well founded, it was necessary that a request be made at the time that

the court instruct the jury to disregard such remarks, and refused to do so. 16 C.J. 915; State

v. Hunter, 48 Nev. 358, 367, 232 P. 778, 235 P. 645. No such request was made. The

discharge was admitted in evidence without restriction, and the jury had a right to consider it

for any purpose material to the case, and �� !��

��49 Nev. 386, 403 (1926) State v. Boyle��

counsel for the state had no right to discuss it, or any fair inference which might be drawn

from it, and to call upon the jury to consider it to such extent. Counsel say that the appeal to

the business men, to the ex-service men, and to the others on the jury who know anything

about service to their country “to bring into the case” their “ordinary knowledge,” and

particularly the statement, “I do not wonder, gentlemen of the jury, that the shoe pinches on

that argument,” were all glaring misstatements of the law as to what jurors may consider in

arriving at their verdict.

It is very evident that the district attorney sought to make an appeal to every class

represented on the jury to apply their everyday experiences to the phase of the case under

discussion for the purpose of enabling them to reach an accurate conclusion. We do not think

any other inference can be properly or fairly drawn from the argument, and the jurors are

certainly entitled to apply their experiences in daily life in enabling them to reach a fair and

impartial conclusion as to the merits of the case. No prejudicial error appears.

20, 21. It is asserted that the verdict is not supported by the evidence. Article 6, sec. 4, of

our constitution, and section 7287, Rev. Laws, are to the effect that appeals to the supreme

court in criminal cases can be taken on questions of law only. These provisions simply mean

that, if there is substantial evidence to support the verdict, the evidence will not be weighed

by this court. This matter was considered at some length by Garber, J., in State v. Van

Winkle, 6 Nev. 340-350, at the conclusion of which he states:

“But that the legal sufficiency of the evidence adduced to sustain the issue or to establish

any essential fact is a question of law and not of fact; and wherever it is so light and

inconclusive that no rational, well-constructed mind can infer from it the fact which it is

offered to establish, it is the duty of the court, according to circumstances, either to reject it as

inadmissible or to instruct the jury that there is no evidence before them to warrant their

finding the fact thus attempted to be proved.

��49 Nev. 386, 404 (1926) State v. Boyle��

According to this view, we have jurisdiction—all the evidence being embodied in the bill of

exceptions or affidavits—assuming all facts of which there is legal evidence, and drawing all

conclusions which can be fairly and logically drawn in support of the verdict or decision—to

decide, as a question of law, whether the evidence is sufficient to sustain such verdict or

decision in a criminal case.”

This view has been stated repeatedly as the law of this state. State v. Buralli, 27 Nev. 41,

71 P. 532.

We would be justified in disposing of this point by merely saying there is sufficient

evidence to justify the verdict. The fact is the evidence overwhelmingly supports the verdict.

No other verdict could be reasonably accounted for under the evidence. Three of the

employees of the bank positively identified the defendant as the robber, and others were of

the opinion that he was the guilty party. The circumstances in the case support the verdict.

The description given of the robber by the bank employees the morning of the robbery was so

accurate that the deputy sheriff in Goldfield on the evening of the robbery told the defendant

that the description fitted him, or words to that effect. Sheriff Mercer, who arrested the

defendant, testified to a statement made to him by the defendant which was substantially an

admission of his guilt. Of course, the defendant contradicted Mercer, and also denied his

guilt. He testified, as did Collins, that he left Reno about 7 o'clock the morning of the

robbery—two hours before the robbery—and that he was at the Silverado Mine near

Sweetwater at a time which would have made it physically impossible for him to have been in

Sparks at the time of the robbery. The latter event is testified to by another witness also. His

testimony, however, shows an element of great weakness. Two witnesses testified to seeing

the defendant in Sparks three or four days before the robbery, and one of them testified that

he inquired if the men at the shops had yet been paid. There is evidence that Collins was seen

in Sparks on ��A-%,��"� ��

��49 Nev. 386, 405 (1926) State v. Boyle��

the morning of the robbery between about 7:15 and 9 o'clock. A stronger case is hardly

imaginable.

Judgment affirmed.

Sanders and Ducker, JJ., concur.


October 4, 1926.

Per Curiam:

Rehearing denied.

____________

��49 Nev. 405, 405 (1926) Morton v. Howard��

Ex. Rel MORTON v. HOWARD

No. 2749

August 4, 1926. 248 P. 44.

1. Constitutional Law. In absence of provision that filing of referendum petition shall suspend operation of law, court cannot

read such provision into constitution.

2. Statutes. Act approved Feb. 18, 1925 (Stats. 1925, c. 16), which was in full force and effect on July 1

following, under Stats. 1925, c. 2, and consolidated offices of sheriff and assessor in Churchill County,

held not suspended by filing of petition for referendum, and county clerk pending referendum vote could

not file declaration of candidacy for assessor, which was separate office under Stats. 1917, c. 113, in

view of Stats. 1915, c. 137, and pages 592-594.

See (1) 12 C.J. sec. 387, p. 883, n. 98; (2) 36 Cyc. p. 942, n. 24.

Original proceeding in mandamus by the State, on the relation of H.A. Morton, against

Charles E. Howard, as county clerk of the county of Churchill. Alternative writ dismissed,

and peremptory writ denied.

G.J. Kenny, for Petitioner:

This question has not been presented to this court before, but in other states the filing of

petition for referendum vote on act suspends operation pending vote thereon. If act of 1925 is

thus suspended, act of 1917 is reinstated, and under it, petitioner has right to file his

declaration of candidacy. State ex rel. Carson v. Kozer, 217 P. 202; State ex rel. Drain v.

Becker, 240 4�*�&&��)��8��8��&E68�


S.W. 229; Condemnation of Property for Park, 263 P. 97; Fresno Co. v. Brix Estate Co., 226

P. 77.

E. E. Winters, District Attorney, for Respondent:

In all states from which petitioner's authorities are cited, there is provision that on filing

referendum petition operation of act is suspended. This is not so in Nevada. Act is operative

here unless defeated by referendum. Constitution of Nevada, art. 19, secs. 1, 2, 3.

OPINION


The petition on which an alternative writ of mandamus issued out of this court shows that

on May 8, 1926, there was filed in respondent's office a petition demanding a referendum

vote by the qualified electors of said county at the next general election on the question of

approving or disapproving of that certain act of the legislature entitled, “An act concerning

certain county offices and officers in the county of Churchill, State of Nevada, * * * and other

matters properly relating thereto,” approved February 18, 1925 (Stats. 1925, p. 21); that said

referendum petition was in due form, duly signed by over 10 per centum of the qualified

voters of said county, and verified as required by law; that on July 17, 1926, the petitioner

herein presented in due form his declaration of candidacy as the Republican candidate for the

office of assessor of said county for the full term beginning in the month of January, 1927, to

respondent at his office in said county for filing by respondent as county clerk aforesaid, and

tendered him the nomination fee as required by law; that then and there respondent refused,

and ever since has refused, to accept for filing said declaration of candidacy, or to accept said

nomination fee, and has stated that he will decline to accept for filing in his said office any

declaration of candidacy for the individual office of assessor, because said act of the

legislature provided for the consolidation of the office of assessor with that of the office ��


of sheriff and ex officio license collector of said county, and that the office of assessor by said

act of the legislature is now merely ex officio with that of the office of sheriff and ex officio

license collector.

It is averred that the refusal of respondent to file said declaration of candidacy is without

warrant or authority of law, and, if persisted in, will deprive petitioner of his right and

privilege of having his name submitted to the qualified electors of said county, as the

Republican candidate for the office of assessor thereof, in violation of the provisions under

the referendum and the provisions of an act of the legislature entitled, “An act segregating

certain county offices in the county of Churchill, and fixing the salaries of and imposing

certain duties on certain officers in said county,” approved March 15, 1917. Stats. 1917, c.

113.

Petitioner contends that the effect of the filing of the petition demanding a referendum

vote on the act of 1925 was to suspend the operation of the act pending a vote on the question

of its approval or disapproval by the qualified electors of the county at the next general

election, and entitled him to file his declaration of candidacy for the office of assessor under

the provisions of the act of 1917. By the act of 1917 the offices of sheriff and assessor of

Churchill County were segregated, and made and constituted separate offices. Stats. 1917, pp.

202, 203.

By the act of 1925 it was provided in section 1 thereof that from and after the first Monday

in January, 1927, the offices of sheriff and assessor of Churchill County, Nevada, shall be

consolidated and the sheriff shall be ex officio assessor of said county. Section 4 of said

last-mentioned act provides as follows:

“All acts and parts of acts in conflict with this act are hereby repealed.”

By section 1 of an act of the legislature of 1925 it is provided:

“Every law and joint resolution hereafter passed by the legislature of the State of Nevada

shall take effect and be in force on July first following its passage, unless �� !�� 1


such law or joint resolution shall specifically prescribe a different effective date.” Stats. 1925,

p. 2.

Consequently the act of 1925 consolidating the offices of sheriff and assessor of Churchill

County, and making the sheriff ex officio assessor, and repealing the act of 1917, is in full

force and effect, unless suspended in its operation by the filing of the petition for a

referendum as contended for by petitioner.

The contention cannot be maintained. The part of the initiative and referendum

amendment to the constitution pertinent to the inquiry reads as follows:

“Whenever ten per centum or more of the voters of this state, as shown by the number of

votes cast at the last preceding general election, shall express their wish that any law or

resolution made by the legislature be submitted to a vote of the people, the officers charged

with the duty of announcing and proclaiming elections, and of certifying nominations, or

questions to be voted on, shall submit the question of the approval or disapproval of said law

or resolution to be voted on at the next ensuing election wherein a state or congressional

officer is to be voted for, or wherein any question may be voted on by the electors of the

entire state.”

“When a majority of the electors voting at a state election shall by their votes signify

approval of a law or resolution, such law or resolution shall stand as the law of the state, and

shall not be overruled, annulled, set aside, suspended, or in any way made inoperative except

by the direct vote of the people. When such majority shall so signify disapproval the law or

resolution so disapproved shall be void and of no effect.”

“* * * The second power reserved by the people is the referendum, which shall be

exercised in the manner provided in sections one and two of this article. The initiative and

referendum powers in this article provided for are further reserved to the qualified electors of

each county and municipality as to all local, special and municipal legislation of every

character in ��


or for said respective counties or municipalities. The legislature may provide by law for the

manner of exercising the initiative and referendum powers as to county and municipal

legislation. * * *” Stats. 1915, pp. 592-594.

It will be seen from the above that there is not to be found in the referendum provision of

the constitution anything expressly giving to the filing of a referendum petition the effect of

suspending the operation of the law aimed at until a vote can be had upon the question, nor

can such intention be implied therefrom. Pursuant to constitutional authority, the legislature

enacted the law invoked by the people of Churchill County providing for the manner of

exercising the referendum powers as to county legislation. Stats. 1915, pp. 157-159. No

provision is made in the law for suspending the operation of a statute to which a referendum

petition should be filed which indicates that the legislature did not consider the constitution as

conferring the power.

The section of the law providing for a special election upon petition to the county

commissioners signed by 40 per centum of the qualified electors of the county is an

affirmative indication that the legislature did not intend to give to the filing of a referendum

petition the effect of suspending the operation of the statute referred.

Why provide for a special election if it was intended that a petition signed by ten per

centum of the electors would suspend the operation of the law until voted upon at the general

election? We are referred to the case of State ex rel. Drain v. Becker (Mo. Sup.) 240 S.W.

229, wherein it was said that the filing of referendum petition suspended the operation of the

law pending a vote upon the question by the people. A glance at the initiative and referendum

provision of the Missouri constitution reveals the reason. By the provisions of that

constitution no law except the general appropriation act shall take effect or go into force until

90 days after the adjournment of the session at which it was �� 5��


enacted, unless in case of an emergency the general assembly shall by a two-thirds vote of all

the members elected to each house otherwise direct. Referendum petitions must be filed not

more than 90 days after the final adjournment of the session of the legislative assembly which

passed the bill on which the referendum is demanded. Any measure shall take effect and

become the law when it is approved by a majority of the votes cast thereon, and not

otherwise.

The Washington, Oregon, California, and Montana constitutions also contain specific

provisions for withholding operation of a law referred to the people until approved by a

majority vote. It is unnecessary, therefore, to further refer to decisions cited by petitioner

touching the referendum in these states.

1. Petitioner contends that the referendum provision of the constitution should be

construed liberally in favor of the reservation. But there is no room for construction on the

question here involved. The people make their own constitution, and, when they have not

seen fit to provide that the filing of a referendum petition shall suspend the operation of a

law, we are not authorized to read such a provision into the constitution.

2. A law passed by the legislature, and in full force and effect referred to the people, is not

suspended or annulled until a majority of the electors have voted against it. As the law of

1925 providing for the consolidation of the offices of sheriff and assessor in Churchill County

and making the sheriff ex officio assessor is in full force and effect, the clerk of that county is

not authorized to file petitioner's declaration of candidacy for the office of assessor.

The alternative writ of mandamus heretofore issued should be dismissed, and the

peremptory writ prayed for denied.

It is so ordered.


Sanders, J.: I concur in the order.

____________

��49 Nev. 411, 411 (1925) Smart v. Valencia��

SMART v. VALENCIA

No. 2728

August 5, 1926. 248 P. 46.

1. Appeal and Error. On appeal on judgment roll alone, requirement that only errors appearing on face of roll can be

considered, held not to preclude consideration of outside records to show that clerical misprision in

complaint had been corrected after judgment and pending appeal, which made amount of judgment

correct.

2. Pleading. Trial court can order amendment of complaint to correct clerical misprision after judgment so as to

make judgment speak truth, in view of Rev. Laws, sec. 5484.

3. Appeal and Error. Trial court can correct clerical mistakes appearing on face of record after appeal, since it has not lost

jurisdiction of its records.

4. Pleading. In action to recover overpayment on certain sheep, error in complaint in calculating amount paid held

clerical rather than judicial, and therefore amendable.

5. Appeal and Error. To appeal from judgment when entire relief sought could have been obtained on application to trial

court is frivolous.

6. Sales. Buyer of sheep can maintain action to recover amount overpaid by mutual mistake, though contract

was entire and executed, notwithstanding uniform sales act (3 Rev. Laws, p. 3033), since under section

73 mistake should be given effect it would have at common law.

7. Money Received. Money held by one person, to which another is equitably entitled, may be recovered in common-law

action by latter on implied promise.

8. Partnership. Judgment against defendants individually held not error, though complaint was made to run against

them as copartners.

9. Appeal and Error. Clerical misprision in judgment roll held not to warrant reversal on appeal from judgment on

judgment roll alone.

See (1, 3, 5, 9) 3 C.J. sec. 68, p. 335, n. 84; sec. 1382, p. 1266, n. 12; 4 C.J. sec. 2293, p. 518, n. 37; sec. 3047,

p. 1062, n. 33; (2, 4) 31 Cyc. p. 405, n. 48; p. 439, n. 66; (6) 35 Cyc. p. 604, n. 65; (7) 27 Cyc. p. 849, n.

4; (8) 30 Cyc. p. 596, n. 52.


Action by L.S. Smart against Conceso Valencia and �� )��F� ��)��


others, copartners doing business under the name and style of the Conceso Valencia

Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Price & Hawkins, for Appellants:

If record contains amended complaint, original should be omitted. Page v. Walser, 46 Nev.

390.

Judgment must correspond with pleadings. Objection that judgment is not authorized by

pleadings may be taken upon judgment roll alone. Frevert v. Henry, 14 Nev. 191.

There can be no recovery of part of consideration paid under entire or completed contract.

Benjamin, Sales (7th ed.), 394.

Relief is afforded one who has paid more than he should by action for damages for breach

of contract, or for rescission upon restoration of what he has received. Second Hand Supply

Co. v. Boyd, 123 P. 619.

Mutual mistake, in law and equity, prevents agreement. Pleader may not both accept and

repudiate contract. Miller v. Thompson, 40 Nev. 35.

If mutual mistake which invalidates contract is relied upon, uniform sales act does not apply

and we are back upon common law, but if transaction was in fact a sale, act does apply. 3

Rev. Laws, p. 3051; Pope v. Ferguson, 82 N.J.L. 566.

Claim for money paid for which consideration has failed is predicated upon existence of

contract. Miller v. Thompson, supra.

Though claim is against partnership, judgment is against individuals and is therefore

wrong, as it must run against partnership property. Bearman v. Bracken, 240 P. 713.

Trial court can change findings only before notice of appeal is served and filed, or before

motion for new trial is ruled upon. 3 Rev. Laws, 5227.

Appeal from judgment does no divest trial court of power to determine motion for new

trial. 1 Hayne, New Trial (Rev. Ed.), 15.

Perfection of appeal divests trial court of jurisdiction �� !�� !�� !��


of all matters embraced in judgment appealed from, but does not deprive that the court of

jurisdiction to proceed upon any other matter in action, unless it is proceeding upon judgment

or matters embraced therein. Trial court may not revoke, modify, or disturb its judgments

except as provided by law. Eisenburg v. Superior Court, 226 P. 617.

While trial court has jurisdiction to determine motion for new trial, after appeal is

perfected it does not have power to change fatal defect in complaint or to change findings, or

to make orders relating to correctness of judgment, or to have further proceedings upon it.

Rev. Laws, 5329; 2 Hayne, New Trial (Rev. Ed.), 1225.

Cantwell & Springmeyer, for Respondent:

Respondent moves that complete record and proceedings including all pleadings be made

part of this record under Stats. 1923, c.97, and rules 7 and 8 of this court. Record now sought

to be filed corrects matters so largely dealt with the appellants' brief. Cause of action is

clearly alleged.

This is not proceeding for reformation or rescission. Contract has been fully executed. It is

proceeding in quasi contract for money received by appellants owing to mutual mistake in

counting sheep. 13 C.J. 244; Miller v. Schloss, 133 N.E. 337; 27 Cyc. 866.

Being quasi contractual proceeding, uniform sales act does not apply. Respondent's

remedy is to sue for overpayment.

Recovery may be had of money paid on mutual mistake. 3 Williston, Contracts, 2786.

Hayes v. Hayes, 25 N.E. 600; 11 L.R.A. 376. Rescission of whole contract will not generally

be allowed. Williston, 2781.

Statute allows large discretionary powers as to amendments. Rev. Laws, 5084. This statute

should be liberally construed. Finnegan v. Ulmer, 31 Nev. 520.

Amendment may be permitted after judgment or findings, and even after appeal is perfected.

Inadvertent mistake may be corrected whenever proper is furtherance of justice. 31 Cyc. 454;

Carlisle v. Show Co., 163 '�*�6?��@��N ��&&%8�


N.W. 380; Lamb v. Ulrich, 221 P. 741; 163 N.W. 380, 31 Cyc. 435.

OPINION


This appeal is from a judgment upon the judgment roll alone. The judgment roll does not

include any bill of exceptions, but consists simply of the pleadings, findings of fact,

judgment, notice, and undertaking on appeal.

Appellants, defendants below, seek reversal of the judgment upon several grounds: (1)

That the complaint does not state facts sufficient to constitute a cause of action; (2) that the

complaint and findings of fact do not support the judgment; (3) that the judgment in form is

against law and is otherwise illegal for the reasons assigned in argument.

The second amended complaint contains three causes of action. The court found in favor

of the plaintiff upon the first cause of action, and rendered judgment accordingly. The

complaint for the first cause of action alleges:

“I. That the defendants Conceso Valencia, Francisco Valencia, and Amado Yriarte are now

and during all the times herein mentioned have been copartners doing business under the

name and style of Conceso Valencia Company, and that they are residents of Washoe County,

Nevada.

“II. That on or about February 25, 1924, at Ely, Nev., plaintiff and defendants made and

entered into an agreement in writing whereby defendants sold and plaintiff purchased a band

of sheep to be delivered in Jack Valley, Nev., on or about March 7, 1924, said sheep being

described, * * * at and for the price and sum of $11 per head, and that plaintiff then and there

paid defendants the sum of $2,000 to be applied on said purchase price.

“III. That thereafter, and on or about March 5, 1924, the said band of sheep was delivered

to plaintiff by defendants in said Jack Valley, Nev., and plaintiff and �� &�6�?��&�&�?�� 0�� ,�%�&7��3��F� ��'�� +&%�E6�� +&%�E6��+%�%�� +%�%��


defendants then and there counted and caused to be counted the said sheep, but by mutual

mistake and error they fixed the number of said sheep at 2,308, when in truth and in fact the

said sheep numbered 2,208 and no more, which mistake was not discovered by plaintiff until

two or three days thereafter. That immediately after counting the said sheep as aforesaid, and

on or about said March 5, 1924, at said Jack Valley, Nev., plaintiff paid defendants the sum

of $21,630, neither plaintiff or defendants then knowing of said mistake so as aforesaid made

by them in counting the sheep in said band, and that included in said $21,630 there was an

excess payment of $1,100, which was not then and there due or owing or payable from

plaintiff to defendants on said transaction but was so paid solely on account of the said

mutual mistake in counting said sheep, as aforesaid, and was paid for the use and benefit of

plaintiff, which said sum of $1,100 defendants then and there promised to pay plaintiff.

“IV. That thereafter, and on or about March 15, 1924, plaintiff demanded of defendants the

payment of the said sum of $1,100, but that defendants failed, neglected, and refused, and still

and now fail, neglect, and refuse to pay the same, and that there is now due, owing, and

unpaid from defendants to plaintiff the full sum of $1,100, with interest thereon at the legal

rate from March 5, 1924.”

The specific objection to the complaint is that it does not sufficiently show an

indebtedness from the defendants to the plaintiff, and therefore it does not state a cause of

action for money had and received. This contention is based upon the hypothesis that, if

plaintiff, as alleged in the complaint, paid $2,000 at one time and $21,630 at another for

2,208 sheep at $11 per head, there could not have been included in the said sum of $21,630

an excess payment of $1,100 as alleged in the complaint; but, on the contrary, by

mathematical calculation, instead of there being an overpayment, there was an underpayment

of $658.

1. Subsequent to the filing of appellants' opening �� !�� !�� !�� +&%�E6��###�� +&6�E6��


brief attacking the complaint on the grounds stated, the respondent moved this court for leave

to bring before the court other records outside the judgment roll to show that the specific

objections to the complaint and findings were cured by an order made after the judgment and

pending the appeal therefrom, directing that the complaint and findings be amended and

corrected by canceling the figures $21,630 appearing in paragraph III of the complaint and

interlining the figures $23,630. It must be conceded that, if the amendment and correction

were authorized, then the specific objections to the compliant and findings must fall, because

they have no foundation upon which to rest.

2. Appellants resisted the motion, upon the ground that on appeal from a judgment upon

the judgment roll alone the court is limited in its determination to the questions presented by

the judgment roll, and that nothing can be assumed or considered that does not appear upon

the face of the roll itself. Though our statute specifies what constitutes the judgment roll and

provides that on appeal from a judgment upon the judgement roll alone only errors can be

considered which appear upon the face of the roll, we are of opinion that there is no

sacrosanct prohibition against considering evidence outside the judgment roll which makes

the judgment speak the truth. Matters often arise subsequent to appeal which may be brought

before the appellate court on evidence outside the record, and which will be considered and

acted on in disposing of the appeal. 2 Cal. Jur. sec. 394, p. 688. The record which respondent

upon motion seeks to have considered discloses that the figures in paragraph 3 of the

complaint, to wit, $21,630, were a clerical misprision. If this be so, then the trial court, after

judgment, had the power to order the amendment to make the judgment speak the truth.

Howard v. Richards, 2 Nev. 128, 90 Am. Dec. 520; Sparrow v. Strong, 2 Nev. 362; section

5484, Rev. Laws of Nevada, 1912; 14 Cal. Jur. sec. 76, p. 1002.

3. It is contended that after appeal the court was ��!��


without jurisdiction, power, or authority to order the complaint amended. While a court by an

appeal loses jurisdiction of a cause for the purposes of an appeal, it does not thereby lose

jurisdiction of its records. These remain within its physical custody and control, and it has the

right, after an appeal is taken as before, to correct clerical mistakes appearing upon the face of

the record. Sparrow v. Strong, supra; 2 Cal. Jur. sec. 182, p. 420.

4, 5. It is contended, however, that the error complained of was judicial rather than

clerical, and therefore the complaint was not amendable. We do not so interpret the pleading.

The error at most was an error in computation of the actual amount paid for 2,308 sheep at

$11 per head due to a mutual mistake in the counting of the sheep. It has been held that to

appeal from a judgment when the entire relief sought could have been obtained upon a mere

application to the trial court is frivolous and merits reproof. Roundtree v. I.X.L. Lime Co.,

106 Cal. 62, 39 P. 16. This is not such an extreme case as that cited, but we are of the opinion

that, had the error complained of for the first time in this court been called to the attention of

the court below, it would have been corrected at bar upon the mere suggestion of either

counsel by interlining the exact amount paid for the sheep.

6. It is contended that the only relief afforded to one in plaintiff's situation was either to

sue for damages for breach of the contract of sale or for a rescission upon the restoration of

what the plaintiff seeking to avoid the contract had received. This may be good law in a

proper case, but it has no application to this action brought to recover an amount overpaid by

mistake.

It is also contended that the cause of action is one governed and controlled by the uniform

sales act (3 Rev. Laws of Nevada, p. 3033), and, the contract being entire and executed, there

is nothing in the sales act to entitle plaintiff to sue to recover money overpaid by mistake. Mr.

Williston, in his work on Sales (2d ed), ��


sec. 623, states that section 73 of the sales act provides that invalidating circumstances, such

as fraud, misrepresentation, duress, mistake, bankruptcy, shall be given the effect which they

would have at common law, and that the act itself does not to any considerable extent purport

to deal with such questions.

7. While proceeding on equitable principles, the action is one at common law. Weston v.

Brown, 158 N.Y. 360, 53 N.E. 36. Money in the hands of one person, to which another is

equitably entitled, may be recovered in a common-law action by the equitable owner upon an

implied promise, arising from the duty of the person in possession to account for and pay over

the same to the person beneficially interested. 27 Cyc. 849.

8. It is contended that the judgment in form is against law, in that the complaint was made

to run against the defendants as copartners, and the judgment was rendered against them as

individuals. This contention is without merit. Conway v. District Court, 40 Nev. 395, 164 P.

1009.

9. We find no error in the judgment roll other than a clerical misprision, and in furtherance

of justice the judgment should be affirmed. It is so ordered.


Coleman, C. J., concurring:

I concur in the order of affirmance and substantially in the reasoning of the foregoing

opinion, but wish briefly to state my views. It appears from the record that the case was tried

in the lower court by both parties, upon the theory that the complaint alleged an indebtedness

in the amount demanded, and the clerical error did not mislead the defendants in the least

degree. Upon or after the argument of defendants' motion for a new trial, the clerical mistake

now complained of was pointed out. The court denied the motion for a new trial, and, upon

the showing made by the plaintiff, entered an order permitting the amendment of the

complaint to cure the clerical error. That this may be done ��


even after decision is clear. Elgan v. Frances-Mohawk Co., 34 Nev. 469, 125 P. 696.

The purpose of a pleading is to apprise the adverse party of the matter he must meet.

Defendants having tried the case and suffered no injury from the clerical error, it would be

rank injustice to reverse the judgment merely to permit an amendment which has already been

made. Amendments to pleadings before judgment are uniformly allowed to conform to the

proof, and, since the technical idea demanding this is that the pleading must support the

judgment, there is no substantial reason why the amendment may not be made after judgment,

as in this case. The reason of the law is the soul of the law, and when the reason ceases to

exist the law itself should fall. There is ample authority holding that a pleading may be

amended after judgment that it may support the judgment. The showing made in this court of

the allowance of the amendment is unquestioned; hence may properly be considered by us.

Earl v. Morrison, 39 Nev. 120, 154 P. 75.

On the other points I fully concur.

[Pending on petition for rehearing.]

____________

��49 Nev. 420, 420 (1926) Tonopah Ralston Mining Co. v. Mt. Oddie United Mining Co.��

TONOPAH RALSTON MINING COMPANY v. MT.

ODDIE UNITED MINES COMPANY

No. 2713

September 4, 1926. 248 P. 833.

1. Mining. Evidence held to sustain finding that notice of location was posted, location monument established,

and location work done at point outside exterior boundaries of mining claim as staked on ground.

2. Appeal and Error.

Rev. Laws, sec. 5327, authorizing appeals by aggrieved persons only, does not prevent person whose

mining claim has been held invalid from contesting on appeal validity of conflicting claims.

3. Mining. Supreme court, affirming invalidity of appellant's mining claim, held nevertheless required to

determine validity of appellee's conflicting claim, in view of act Cong. March 3, 1881 (U.S. Comp. St.

sec. 4625).

4. Mining. Mining claim held invalid, under Rev. Laws, sec. 2423, where neither discovery shaft nor later work

made any disclosure of “lode deposit of mineral in place.”

5. Mining. Under Rev. Laws, sec. 2423, a discovery at any place on claim before rights on same ground are

acquired by another relates back and validates claim, though original discovery work was insufficient.

See 40 C.J. sec. 181, p. 786, n. 11, 15; sec. 183, p. 788, n. 44, 45; sec. 396, p. 885, n. 11; sec. 403, p. 889, n. 79

(new).


Action by the Tonopah Ralston Mining Company against the Mt. Oddie United Mines

Company. From a judgment for plaintiff, and an order denying a motion for a new trial,

defendant appeals. Judgment affirmed in part, and reversed in part, and rendered.

Cooke, Stoddard & Hatton, for Appellant:

There is no evidence showing required location work, discovering mineral in place, was

done on K.C. Fraction or K.C. Fraction D; hence claims are invalid.

Substantial prima facie case was made of location of Sarah prior to claims of defendant,

which was not refuted.


Rule that verdict on conflicting evidence will not be disturbed relates only to substantial

conflict. Findings and verdict must be supported by substantial evidence. State v. R.R. Co.,

23 Nev. 283; 2 Hayne, New Trial and Appeal, 1623.

Litigant who fails to introduce any proof in support of his mining claim abandons contest

and confesses he has no title. Government's interest in suit is proper subject for protection.

Connolly v. Hughes, 71 P. 681.

Monumenting, occupancy, and work give protection against third parties, though not

vested rights against government, even before discovery of mineral. Miller v. Chrisman, 73 P.

1084; United States v. M'Cutcheon, 234 F. 702.

Locator of unperfected claim should not be excluded from contesting validity of claim of

adversary on appeal. He may be regarded as representative of government. In other

jurisdictions than Nevada, in adverse suit, nonsuit precludes further participation, and

subsequent action becomes ex parte proceeding in rem. Without judgment on merits there can

be no res adjudicata. However, if respondent is successful on this appeal he can go before

land office with judgment having appearance of res adjudicata; whereas, if appellant be not

allowed to contest, judgment will be ex parte so far as appeal is concerned and not res

adjudicata. If, as said in Upton v. Santa Rita Co., 89 P. 275, adverse suits are tried by state

courts under arrangements of comity, consideration upon which comity is based should guide

this court. Hilton v. Guyot, 40 P. 95; 11 C.J. 1236.

Courts should refrain from ordering nonsuits in mining contents. Comity requires rights of

contestants be fully settled in state courts. Lozar v. Belli, 96 P. 343.

Decision goes far beyond question of right of possession and carries with it judgment roll

(U.S. Rev. Stats. 2326), in which are findings that three claims of respondent are valid. It is

against ex parte confirmation of judgment roll that we contend, and Golden Fleece Co. v.

Cable Con. Co., 12 Nev. 312, and Rose v. Richmond Co., 17 Nev. 26, are not against us.


McCormack v. Parrott, 80 P. 1044, goes no farther than to hold that what may be viewed

by court may be used in applying and weighing evidence, but not that it takes place of

substantive evidence which is lacking.

Respondent offered in evidence certificate of location of Sarah. It is bound by it, vouches

for its truth, and is estopped from impeaching it. Richardson v. Southwestern etc. Co., 81 P.

781; Hoffman v. Hendricks, 17 Ann. Cas. 381.

Wm. Forman and Wm. J. Forman, for Respondent:

This is adverse suit, under U.S. Rev. Laws, 2366. Main question is whether ground upon

which K.C. claims were located was open. Appellant claims Sarah was prior valid claim.

Trial court found it was never valid for reason location monument, notice, and location work

were outside exterior boundaries.

Appellant argues effect of relative weight of evidence. This court will not go into points

which affect merely weight of evidence. Tonopah Co. v. Nevada Co., 30 Nev. 93.

Discovery must be within limits of claim. Rev. Laws, 2378; Lindley on Mines (3d ed.) 778.

Evidence of appellant and respondent directly conflict, and appellant's own evidence

places location monument in three different places. Court was justified in finding for

respondent, especially as it viewed premises.

In adverse suit each party must independently establish its own title. Golden Fleece Co. v.

Cable Co., 12 Nev. 321; Bay State Co. v. Brown, 21 F. 167.

Only person aggrieved may appeal. Rev. Laws, 5327. One who asserts no title cannot

attach title of another. Having no interest, he is a stranger; if he tries to interfere, he is

intermeddler. Connolly v. Hughes, 71 P. 681.

Actual possession makes prima facie case and shifts burden. Golden Fleece case, supra; Rose

v. Richmond Co., 17 Nev. 26.

Appellant cannot question sufficiency of work for first time on appeal. Patchen v. Keeley, 19

Nev. 404. *�� "��


When it is necessary for plaintiff to prove as part of his case that defendant is making

some claim, he does not, by introducing instrument showing defendant's claim, vouch for

truth of very thing he is questioning. Douglass v. Huhn, 24 Kan. 766; 10 R.C.L. sec. 289; 4

Ency. Evi. 842.

OPINION


Appellant, which was the defendant below, made application to the United States land

office for a patent to the Sarah lode mining claim, situated in the Tonopah mining district.

The respondent filed in the land office an adverse claim to the ground for which patent was

sought under the Sarah location. The ground was claimed by respondent pursuant to the

location of the K.C. No. 2, K.C. Fraction, and K.C. Fraction D lode mining claims, and in due

time it instituted this suit in support of the adverse claim thus filed. Judgment was rendered in

favor of the plaintiff, and the defendant has appealed from the judgment, and from the order

denying the motion for a new trial. We will refer to the parties as they were designated in the

lower court.

1. The defendant makes only two points on the appeal. The plaintiff contended in the

lower court that the point at which the notice of location was posted, and at which the

location monument was established, and where the location work was done on the Sarah, is

outside of the exterior boundaries of the claim as staked upon the ground, and hence that the

Sarah never became a valid location. The finding of the court is in accord with this

contention.

One of the errors assigned and strenuously urged upon us by the defendant is that the

finding of the court is not supported by substantial evidence. The K.C. claims were located

about eighteen months after the Sarah claim was located. Several witnesses in behalf of the

plaintiff testified that they were upon the ground in question at various times before and after

the location of the K.C. group, and that they found a monument ��4�� 4��4��


purporting to be the Sarah monument, in which was the notice of location of the Sarah, and

that such monument was outside of the exterior boundaries of the Sarah claim. Some of these

witnesses also testified that they found no other monument upon the ground prior to the

location of the K.C. group purporting to be the location monument of the Sarah claim.

To overcome the evidence of the plaintiff, the defendant produced testimony to the effect

that there is a monument at the point within the exterior boundaries of the Sarah which, if it

were the original location monument, would be sufficient to sustain the validity of the Sarah

location. John A. Kendall, the witness chiefly relied upon by the defendant, testified that he

located the Sarah claim, and that the location monument was built in approximately the

middle of the claim, and that the notice of location was placed in the monument thus built. He

also testified that the location work was done about two feet easterly from the location

monument. In an amended certificate of location signed by the witness, the location work is

described as having been done at a point ten feet north from the discovery monument. This

witness also testified that the Sarah, as originally located, was the easterly extension of the

Tregajorran claim, and that the west end corners of the Sarah were the same as the east end

corners of the Tregajorran.

There is sufficient competent evidence in the record to sustain the finding of the trial court

to the effect that the point at which the location monument of the Sarah was built, and at

which the location notice was posted, was at the point as contended by the plaintiff. We do

not think it necessary to review the testimony at length. We may say, however, since the

result of the trial was dependent—so far as defendant is concerned—almost wholly upon the

evidence of the witness Kendall, that it is inconsistent with itself on at least two or three

phases of the case. Defendant's Exhibit A also shows that he was very much mistaken as to

the exact location of the ground contained within the exterior boundaries of the Sarah, for this

exhibit, which is a plat showing the relative position of the west end line of the Sarah and the�� 0��!��


east end line of the Tregajorran, shows that, instead of the corners of said end lines being

identical, as he testified, they are several hundred feet apart. This undisputed evidence, taken

in connection with the evidence of Engineer Bruce, tending to show that the Sarah claim as

originally located on the ground was in fact 925, instead of 600, feet wide, makes it easy to

conclude that the witness Kendall might have been mistaken as to the point at which the

location monument was erected. At any rate, the trial court rejected his testimony, and we

cannot say that it was not justified in so doing.

2. It is next contended by the defendant that the evidence on the part of the plaintiff is

insufficient to show a compliance with that portion of section 2423, Rev. Laws of Nevada

(1912), which reads:

“The locator of the lode mining claim must sink a discovery shaft upon the claim located

four feet by six feet to the depth of at least ten feet from the lowest part of the rim of such

shaft at the surface, or deeper, if necessary to show by such work a lode deposit of mineral in

place.”

It is not asserted that the discovery work is not of the proper dimensions, but that the

evidence fails to show a “lode deposit of mineral in place.” Plaintiff asserts that, since the

trial court held that the location of the Sarah claim is void, the defendant has no right to

contest the validity of the locations of the claims in question, nor to appeal from the

judgment, since, as it is said, section 5327, Rev. Laws, authorizes aggrieved persons only to

appeal. If the contention as to the statute is sound, no losing party can appeal, and hence there

would be no need for a supreme court as an appellate tribunal. We cannot accept this

interpretation of the statute. Whether the location of the Sarah is valid is an open question

until it is determined by this court.

It is asked: If the defendant does not own the land in controversy, how was it in any way

injured by the findings of the lower court that the plaintiff owned it? In support of the

contention made, our attention is directed to the case of Connolly v. Hughes, 18 Colo. App.

372, 71 P. 681. We do not think the case aids the plaintiff, ��


but, taking the case as a whole, it is against it. There the court, speaking of one who asserts no

title in himself, observes that, having no interest of his own to be subserved by the overthrow

of the other's claim, he is a stranger and an intermeddler. It appears that in that case the

plaintiff introduced no evidence whatever in support of his adverse claim. The situation in

that case is very different from this one. In the instant case both parties are making vigorous

claims to the ground.

But it is said by the plaintiff that in no event should the judgment be disturbed, for the

reason that in cases of this kind each party must prove his claim to the premises in dispute,

and that the better claim prevail, and that actual possession makes out a prima facie case, and

that, in proving possession, all that was necessary for the plaintiff to show was the existence

of clearly defined surface claims under the K.C. locations, including a quartz lode running

with the claim and within the lines of the disputed ground. The case of Golden Fleece Co. v.

Cable Con. Co., 12 Nev. 312, is cited to sustain this contention. That decision was rendered

in 1877, and it was the law until Congress passed the act of March 3, 1881 (U.S. Comp. St.

sec. 4625), which reads:

“That if, any action brought pursuant to section twenty-three hundred and twenty-six of the

Revised Statutes, title to the ground in controversy shall not be established by either party, the

jury shall so find, and judgment shall be entered according to the verdict. In such case costs

shall not be allowed to either party, and the claimant shall not proceed in the land office or be

entitled to a patent for the ground in controversy until he shall have perfected his title.”

Since this act went into effect, it has “become necessary that the decision, whether by the

court or jury, must show not only that the successful party is entitled to the possession against

his opponent, including the government, but also as against all others including the

government, and by a compliance with all the laws applicable. * * *” Burke v. McDonald, et

al., 2 Idaho, 679, 33 P. 49. As said by Mr. Lindley in his work on Mines: <#��!�� "�� =��4�� 6�%??%��1&@�� C&��D��


“In the ordinary action of ejectment, a defendant may rely upon the weakness of plaintiff's

title; but in the proceeding contemplated by the Revised Statutes, in the light of the

amendment of March 3, 1881, both parties are regarded as actors.” 2 Lindley on Mines (2d

ed.), sec. 763.

Such is the uniform rule. McGinnis v. Egbert, 8 Colo. 41, 5 P. 652; Gwillim v. Donnellan,

115 U.S. 45, 5 S. Ct. 1110, 29 L. Ed. 348; Perego v. Dodge, 163 U.S. 160, 16 S. Ct. 971, 41

L. Ed. 113.

3. Having taken the view that the defendant had the right to appeal, it is our duty to

determine every question presented, including that of plaintiff's title to the ground in question.

This brings us to a consideration of the contention on the part of the defendant that the shaft

was not sunk to a depth to disclose a “lode deposit of mineral in place.”

4, 5. It is conceded by the plaintiff that no “lode deposit of mineral in place” was disclosed

in the discovery shafts of the K.C. Fraction and the K.C. Fraction D, but it contends that there

were such disclosures at other points on these claims, and that such disclosures suffice. It is

the settled law of this state that, if there is a discovery at any place on the claim before any

rights are acquired to the same ground by another, such discovery relates back and validates

the claim. Patchen v. Keeley, 19 Nev. 404, 14 P. 347; Gibson v. Hjul, 32 Nev. 360, 108 P.

759; 1 Lindely on Mines (2d ed.) sec. 335. But in the instant case there was proof of such

discovery on the K.C. Fraction D only, and not on the K.C. Fraction. It follows, from what we

have said, that the judgment of the lower court must be modified.

It is ordered that the judgment appealed from be affirmed as to the Sarah, the K.C. No. 2,

and the K.C. Fraction D, and that it be reversed as to the K. C. Fraction lode mining claims,

and, as to the claim last named, that a judgment be entered as directed by the act of Congress

above quoted.

____________

��49 Nev. 428, 428 (1926) State v. Tonopah Extension Mining Co.��

STATE v. TONOPAH EXTENSION MINING COMPANY

No. 2711

September 8, 1926. 248 P. 835.

1. Taxation. Under Const. art 10, sec. 1, as amended in 1906, providing that net proceeds of mines shall be taxed,

and Stats. 1917, c. 177, sec. 13, providing that in determining net proceeds “actual costs” only of

extraction, transportation, and reduction shall be deducted from gross value of extracted bullion,

depreciation of mining, milling, and transportation plant and equipment, taxes and insurance, and cost of

maintenance of offices outside state, held not deductible.

See 37 Cyc., p. 1030, n. 70 (new).


Action by the State against the Tonopah Extension Mining Company. From a judgment for

plaintiff, and an order overruling and denying motion for new trial, defendant appeals. Order

sustained, and judgment affirmed.

Thatcher & Woodburn and Cooke & Stoddard for Appellant:

Immediately after adoption of tax commission act, conferences were held between

commission and Mine Operators Association which resulted in agreement that mine operators

would abolish separate milling and transportation corporations; that they were entitled to

write off constant physical depreciation of equipment. Commission then put into effect rules

for assessment of proceeds which allowed deductions from gross yield for all necessary

administrative expenses except taxes, interest on bonds, or other indebtedness, and expense

of maintaining outside offices other than mine offices. Relative to cost of extraction, it

allowed all necessary expenses, including contemporaneous development and exploration; a

depreciation charge equal to quarter annual installment of amount calculated to be written off

annually to redeem 80 per cent of original cost of plant. While we do not claim this

arrangement ��


constituted valid binding contract, yet, in absence of imperative reason to contrary, it

should be accepted as correct interpretation of constitutional and statutory provisions. State v.

Cole, 38 Nev. 215; State v. Brodigan, 35 Nev. 38.

It is question of fact for court to determine whether items claimed are properly deductible. On

these questions evidence of expert accountants familiar with cost accounting is offered. As

mining is “wasting” industry—the life of a precious metals mine is about ten years—plant

and equipment are valueless except as scrap at the end of life of mine.

Net proceeds are net profits. Hall v. Abrahams, 75 P. 882. They are residue left after

deducting not only all direct, but also all incidental expenses. Commonwealth v. Alexander,

70 N.E. 1017.

Replacement and repairs are current maintenance; depreciation is deferred maintenance.

Depreciation is inevitable fact no system of accounts can ignore. Repairs are chargeable to

current operating expense; improvements and equipment should be projected proportionately

over future. Northern Pacific v. North Dakota, 59 L. Ed. 735. Knoxville v. Knoxville Water

Co., 53 L. Ed. 371.

In determining cost of transportation, outlays which pertain to it must be considered. We

do not distinguish between so-called “out-of-pocket” costs and “actual” expense. Illustrations

are found in outlays for maintenance of way and structures, general expenses, and taxes.

Northern Pacific v. North Dakota, supra.

In N.C. Power Co. v. Hamilton, 235 F. 311, court received evidence as to income,

operating expenses, taxes, depreciation and amortization, and, in arriving at net, deducted

from operating revenue all usual current expenses and taxes, and actual physical depreciation

at 3 per cent per annum, and also considered limited life of mining camp and deducted

another 10 per cent depreciation for that reason, recognizing that depreciation is cost.


Taxes are operating expense. In Re Finland Decisions of N.Y. Board, P.U.R. Ann. 1923,

107.

Maintenance of business office in New York was necessary for convenient, efficient, and

economical general management of business. Within reasonable limits company may manage

its own affairs, and its judgment is conclusive in absence of bad faith. S.W. Tel. Co. v. P.U.

Com. 67 L. Ed. 981.

We do not contend investment in property nor depletion of ore is operating cost, nor are

we entitled to return on capital investment in plant. Interest on capital investment is not

operating cost; depreciation is.

M. A. Diskin, Attorney-General, and Jos. T. Murphy, District Attorney, for the State:

Admitting tax commission had authority under Stats. 1913, sec. 9, to adopt rules for

determining net proceeds, it was not authorized to enlarge provisions of Rev. Laws, 3687,

which provides that from gross yield there shall be deducted “actual costs” of extraction,

saving tailings, transportation, reduction, and sale. Morrill v. Jones, 106 U.S. 466; U.S. v.

United Verde C. Co., 196 U.S. 207.

Officials have placed construction upon Rev. Laws, 3687, contrary to claims of appellant.

This construction is entitled to great weight. U.S. v. Finnell, 46 L. Ed. 890; Copper Queen

G.M. Co. v. Board, 84 P. 511.

Use of word “actual” limits meaning, and will not permit depreciation, construction costs,

etc. Actual cost is distinguished from estimated price or market value and excludes

everything in nature of profit or return on capital investment. Mayor v. The B.& A.R. Co.,

100 N.E. 1014; Old Colony R.R. Co., 70 N.E. 62.

Continuous and uninterrupted use of “proceeds” for forty-two years established “net

proceeds” was meant. 12 C.J. 712; State v. Cole, 38 Nev. 215.

Question is not to be viewed from standpoint of business venture. Only question is, did mine

yield net proceeds for particular year they were assessed? Mammoth M. Co. v. Juab Co., 170

P. 78.


Defendant's contention that cost of plant should be prorated over estimated life of mine

violates Rev. Laws, 3687, which states there shall be no allowance for expenses incurred

prior to quarter for which assessment is made.

Depreciation is not actual cost item within meaning of statute. Coltness Iron Co. v. Black,

Assessor (Eng.), 6 App. Cas. 315; Miller v. Coal Co., 120 N.Y. App. Div. 442.

Maintenance of offices outside Nevada cannot be deducted. Bassett v. Utah Copper Co.,

219 F. 811.

Taxes are not proper deduction. Anaconda Copper Co. v. Junod, 227 P. 1001.

Test is not that item is cost and one that is just, reasonable and proper, but it must be an

“actual” cost; this is just, reasonable, and proper, and not introduced to deprive the state of its

just revenue.

OPINION


Pursuant to an arrangement between the tax commission of Nevada and The Nevada Mine

Operators' Association, a voluntary association organized for the betterment and protection of

the mining industry of the state, this action was commenced by the State of Nevada as a test

case against the Tonopah Extension Mining Company, a member of said association, for the

purpose of obtaining a judicial determination of the proper method of arriving at the net

proceeds of mines, and for the purpose of ascertaining by judicial determination what items

are properly deductible from the gross value of the bullion actually extracted from the

reduction of the ores of any operating mine in arriving at its net proceeds for assessable

purposes under the constitution and laws of Nevada.

The question has been submitted to us upon printed and oral arguments, and we are urged

to decide the question on the ground that it is of vast interest to all the mining operations in

the state, and is of vital ��


importance to the state, as it affects one if its largest sources of revenue.

The production and reduction of ores are a vital necessity to the people of this state—are

pursuits in which all are interested and from which all derive benefit. Nature has denied to

this state many of the advantages which other states possess, but, by way of compensation to

her citizens, has placed at their doors rich and most extensive metalliferous deposits, in the

development of which all the people of the state are directly interested. To this end, since

1867, the mining, milling, smelting, or other reduction of ores are declared by statute to be of

a public use, and the right of eminent domain may be exercised therefor. Rev. Laws, 1912,

sec. 5606; Dayton Mining Co. v. Seawell, 11 Nev. 394. But notwithstanding the fact that the

mining industry is thus favored, it does not follow that it is in any way exempted from

bearing its proportion of the burden of government.

The applicable law of the case is found in section 13 of chapter 177 of the Statutes of

1917, page 328, entitled:

“An act in relation to public revenues, creating the Nevada tax commission and the state

board of equalization, defining their powers and duties, and matters relating thereto, and

repealing all acts and parts of acts in conflict herewith.”

The facts over which the controversy arose are not in dispute, and, for present purposes,

may be shortly stated: The Tonopah Extension Mining Company is a corporation organized

and existing under the laws of Arizona. The company maintains three offices, one in Arizona,

one in New York City, and an office in Tonopah, Nye County, Nevada. The company is the

owner and operator of a gold and silver bearing mine in Tonopah, Nye County, and it is also

the owner and operator of a milling and reduction works situated upon its mining ground. The

ores, when separated from the bed in which they are found, are delivered to the company's

mill near by where they are crushed and reduced to bullion, shipped out of the state, refined,

and sold.


Section 13 reads as follows:

“In pursuance of the general supervision and control over the revenue system of the state,

said commission is hereby empowered to investigate and determine the net proceeds of all

operating mines. In pursuance whereof, said commission, in each instance, shall investigate

and determine from all obtainable data, evidence, and reports, the gross value of the bullion

actually extracted from the reduction of the ores and the proceeds from the sale of the ores of

any mine, mining claim, or patented mine, and to deduct therefrom only such actual costs of

extraction, transportation, reduction, or sale of ores, as shall be deemed by said commission

to be just, proper, and reasonable, and not introduced to deprive or defraud the state of any

portion of its just revenue; and in any suit at law arising under the provisions of this section,

the burden of proof shall be upon the owner of such mine, mining claim, or patented mine, to

establish that any item of cost disallowed by said commission is, nevertheless, just, proper,

and reasonable, and not entered to defraud the state.”

It is conceded, or must be conceded, that this section of the statute is grounded upon

section 1 of article 10 of the constitution, as amended by the people in 1906, which reads as

follows:

“The legislature shall provide by law for a uniform and equal rate of assessment and

taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all

property, real, personal and possessory, except mines and mining claims, when not patented,

the proceeds alone of which shall be assessed and taxed, and, when patented, each patented

mine shall be assessed at not less than five hundred dollars ($500) except when one hundred

dollars ($100) in labor has been actually performed on such patented mine during the year, in

addition to the tax upon the net proceeds, and also excepting such property as may be

exempted by law for municipal, educational, literary, scientific or other charitable purposes.”

After a full hearing upon the pleadings and evidence, the trial court rendered judgment

against appellant for ��+E�A%E�A%��+EA%�EAC��%��D�� "�� %�%?�%�&��


the sum of $6,716.71, together with $671.67 (being 10 per cent thereof), as damages for the

nonpayment of the taxes specified in the plaintiff's complaint for the years 1918 to 1920,

inclusive.

Counsel for appellant state in their opening brief:

“It is our contention that (1) depreciation of mining, milling, and transportation plant and

equipment, (2) taxes and insurance, and (3) the cost of maintenance of offices outside of the

state (other than the cost incurred for the convenience of stockholders), are items which are

properly deductible in arriving at the net proceeds of mines for the purpose of taxation.”

Counsel do not draw in question the validity of the statute, but insist that the items are just,

proper, and reasonable, and should be deducted in arriving at the net proceeds of plaintiff's

mine for assessable purposes. Whether the deductions specified should or should not be made

is a question of law, unmixed with any discretion upon the part of the court or the tax

authorities, and if it was the intention of the legislature to restrict and limit such deductions to

the actual costs only of extraction, transportation, reduction, or sale of ores, it would be an

unwarranted assumption upon our part to extend the items to include deductions which were

never intended by the legislature. We concede that, the statute being a tax measure, if there

were any doubt as to its meaning, the doubt should be resolved in favor of the taxpayer.

Undoubtedly a good deal of latitude is allowed the commission, but its power is not

unbounded; on the contrary, its boundaries are delimited by the statute itself. The commission

is directed to investigate and determine from all obtainable data, evidence, and reports, the

gross value of the bullion actually extracted from the ore. When this is ascertained, the

commission is directed to deduct therefrom actual costs only of extraction, transportation,

and reduction or sale. The commission is particularly enjoined not to permit excessive

deductions for extraction, transportation, and reduction or sale introduced to deprive or

defraud the state of any portion of its just revenue. We regard ��


these directions as mandatory and must be strictly followed.

From the constitution we ascertain what it is that is taxed, namely, the net proceeds of

mines. The obvious purpose of the statute, read in the light of the constitution, was to

prescribe a definite and uniform method of determining net proceeds of mines for assessable

purposes, to prevent mine operators from evading bullion taxes through reports of excessive

costs of extraction, transportation and reduction of ores, and to give to mine operators an

open door to the courts to establish that any item of cost disallowed by the commission is

nevertheless just, proper, and reasonable, and not entered to defraud the state.

As stated in the decision of the court below, it was undoubtedly the intention of the people

of Nevada and of the legislature that a definite and fixed rule or method should be adopted in

arriving at net proceeds of mines, and this was done by adopting the “actual costs basis,” and

if the court should place any other construction upon the constitution and the statute the same

would be indefinite and uncertain, and in fact there would exist an open field for deductions

never intended. This is the conclusion reached by the supreme court of Montana in Anaconda

Copper Mining Co. v. Junod, 71 Mont. 132, 227 P. 1001. In construing a section of the

Montana Code which made it imperative upon mine operators to file with the board of

equalization a statement showing the “actual cost” of extraction, transportation, reduction, or

sale of ores for the purpose of aiding the board in arriving at the net proceeds of mines for the

purpose of taxation, the court held that it was the aim and intention of the legislature to find

some definite and uniform basis for the determination of net proceeds of mines for taxation

purposes. The court held that moneys expended for taxes and fire insurance premiums are not

in the strict sense actually expended for extracting metals and minerals from the ore any more

than salaries of officers not actually engaged in the working of a mine or superintending the

management thereof, ��


and if the company owning a mine and also a reduction works could deduct a portion of its

taxes as part of the cost of extracting metals and minerals from the ore, it would be in effect

granting an exemption, at least to a certain extent, on the reduction works from taxation. Such

would be the effect in this case if the items specified are allowable. The authorities seem to

be unanimous in holding that depreciation of a mine by the exhaustion of the ore body is not a

proper item for deduction in determining net proceeds of a mine for assessable purposes. This

doctrine was recognized under the particular facts in the case of Pittsburg Silver Peak Gold

Mining Co. v. Tax Commission, 49 Nev. 46, 235 P. 643.

There is much discussion between opposed counsel as to what is “net proceeds” within the

meaning of the constitution and the statute. We find no reason or necessity for attempting to

define the term “net proceeds” when the statute prescribes the method for arriving at the net

for assessable purposes. The term “actual costs” as used in the statute has a well-known

meaning among miners. The common sense of the thing is that it means the money actually

expended in the extraction, transportation, and reduction of ores. The word “actual” is a word

of limitation, as distinguished from all costs of conducting the business.

It is strongly urged that the items specified would be deductible in arriving at the net value

of a public utility for assessable purposes, and no reason appears why they should not be

considered in any instance as part of the actual costs in arriving at net proceeds of mines for

the purpose of taxation. For taxation purposes, the test of the value of a utility property is

what it will earn, or, in other words, its use value, but the same test cannot be applied under

the mandate of our constitution and statute in reference to the taxation of the net proceeds of

mines. Such items can hardly be deemed to have entered into the legislative purpose, and it

would be a strained construction of “actual costs” to say that an operating mine is a public

utility for assessable purposes. We do not think it necessary to follow the argument of counsel

through all its refinements in reference ��


to the rule for arriving at the net value of a utility property for assessable purposes. The

argument affords no test for determining the legislative intent under our constitution and

statutes in reference to the taxation of mines.

The constitution says in effect: “Exempt the mine, but tax the net proceeds.” The statute

says in effect: “Deduct only the actual costs of extraction, transportation, reduction, or sale

from the gross value of the bullion actually extracted from the mine, and the difference

represents the value of the net proceeds for assessable purposes.” If the legislature had

intended that the items claimed by appellant could be taken into consideration as deductible

items, it could have said so.

We are constrained to hold that the items claimed by appellant are not deductible as actual

costs in determining the net proceeds of mines for purposes of taxation under the constitution

and statute.

The judgment of the lower court is therefore affirmed, and the order overruling and

denying appellant's motion for a new trial is sustained.

____________

��49 Nev. 438, 438 (1926) Thomas v. Palmer��

THOMAS v. PALMER

No. 2679

September 8, 1926. 248 P. 887.

1. Pleading. Answer may so aid complaint as to cure defect therein.

2. Exchange of Property. “Perfected,” in agreement to exchange properties “soon as the papers can be signed and perfected,”

refers, not to title, but solely to the papers.

3. Exchange of Property. Under rule that promise to do what promisor is already bound to do is not consideration, document

whereby defendant agreed to convey certain land to plaintiff as soon as possible, executed by him when,

as to such land, he was in default under contract with plaintiff for exchange of lands, does not constitute

new contract.

4. Exchange of Property.

Damages for breach of contract to convey land, because of vendor's lack of title, he being free from

fraud, is, as in case of breach of warranty of title, the consideration paid, and this as well in case of

exchange of property as in case of sale.

5. Appeal and Error—From Certain Finding, Court Must Conclude that Case was Tried on

Certain Theory, and that Evidence was Offered in Support Thereof. From finding, in action for failure to convey one of several tracts agreed in exchange for properties

conveyed by plaintiff, that property conveyed to defendant as consideration for omitted tract was of

certain value, court on appeal must conclude, as against claim that exchange was of properties in bulk,

that case was tried on theory that plaintiff conveyed specific tract as consideration for omitted tract, and

that evidence was offered in support thereof, though complaint does not allege such a conveyance.

See (1) 31 Cyc. p. 715, n. 57; (2, 3, 4) 23 C.J. sec. 36, p. 207, n. 12; sec. 82, p. 233, n. 24; 13 C.J. sec. 207, p.

351, n.27; (5) 4 C.J. sec. 2725, p. 776, n. 49 (new).


Action by Bessie Mae Thomas, executrix, substituted for E.W. Shirk, against E.E. Palmer.

From a judgment for plaintiff, defendant appeals. Affirmed. (Sanders, J., dissenting in part.)

Cooke, Stoddard & Hatton (H.H. Atkinson, on briefs), for Appellant:

If agreement of June 21, 1922, required deed from defendant within one year, plaintiff

waived strict compliance and action is prematurely brought. Evidence ��


shows plaintiff offered to perform act essential to obtaining patent, and conveyance to him by

defendant of patent title, and fully understood situation. Waiver does not necessarily imply

one has been misled to his prejudice or into altered position; estoppel always involves this

element. 40 Cyc. 257, n. 78. Waiver may be created by acts, conduct, or declarations

insufficient to create technical estoppel. Idem, n. 82. Giving of consideration is not essential

element of waiver, at least where element of estoppel is present. Bishop, Contracts (2d ed.),

sec. 804; 40 Cyc. 264, n. 24. Where person encourages act to be done, he cannot afterwards

exercise his legal right in opposition. Swain v. Seamens, 19 L. Ed. 554; Smiley v. Barker, 83

F. 684.

Trial court should have held meaning of ambiguous words, “on or before one year, or as

soon as possible for me to do so,” to mean as soon as plaintiff cultivated land and thereby

enabled defendant to obtain patent to desert entry tract. While testimony of plaintiff shows

waiver of time requirement, written contract and surrounding facts show latent ambiguity

which is resolved into agreement by plaintiff to cultivate sufficiently to obtain patent prior to

delivery of deed to him by defendant. In ambiguities of intermediate class between patent and

latent, court is entitled to learn surrounding circumstances. Reynolds v. Lawrence, 40 S. 576;

2 C.J. 1913. Ambiguous words are used most strongly against one who prepares contract. 13

C.J. 544; Phoenix Ins. Co. v. Slaughter, 20 L. Ed. 444.

Exchange agreement called only for conveyance by defendant of such title as he had in

desert entry tract, or of patent title after plaintiff had sufficiently cultivated land to obtain

patent. Agreement called for marketable title. When it is agreed that deed be given nothing

more can be exacted than instrument sufficient to pass vendor's title. If covenant of warranty

is required, it must be inserted in contract. Ketchum v. Everston, 7 Am. Dec. 384.

True measure of damages is value of desert entry tract. Complaint and judgment hold

theory that consideration given by plaintiff, or portion of it, should �� !��


constitute basis for measure of damages, though closing paragraph of judgment seems to

indicate different theory. Where contract is such that it admits of no other measure, agreed

price is adopted. This case admits measure based on value of desert entry tract. Cases which

allow recovery of consideration paid are based upon right to rescind in whole or in part. 17

C.J. 851-852. When breach occurs, party to whom performance is due must elect whether to

rescind or demand continued performance and sue for damages. R.H. White Co. v. Remick,

84 N.E. 113. This suit is for breach of contract. Measure of damages for defect in or partial

failure of his title is actual loss purchaser sustained. Where title is merely defective, measure

is amount expended to perfect title. But if purchaser accepts deed and takes possession he is

entitled to nominal damages only where defect does not affect marketable value of property.

Where title is defective, measure is difference between value of that and a good title. 39 Cyc.

2118; Potter v. Clevinger, Ky., 55 S.S. 432; Stockham v. Cheeney, 28 N.W. 692.

As general rule damages for breach of contract cannot be measured by consideration for

contract, but should be determined by agreed or ascertained value of thing contracted for. 17

C.J. 751, n. 78; Rayner v. Jones, 27 p. 24.

Wm. Forman and Wm. J. Forman, for Respondent:

This court is not required to, and should not in such situation, rule that any fixed rule for

ascertaining damages should apply when it has before it only judgment roll. Pleader states

ultimate facts; court applies proper rule to secure redress desired. Mullen v. Cook, 71 S.E.

566; 17 C.J. 721; Wallace v. Ah Sam, 71 Cal. 197.

Every presumption is in favor of regularity of proceedings in court below. Virgin v.

Brubaker, 4 Nev. 31; Adams v. Rogers, 31 Nev. 163.

White v. Street, 2 S.W. 529, was case of exchange of land. Appellant sought to recover value

of land conveyed to him. Lower court held he could recover.


Supreme court reversed this, saying that if he showed land to have any value, or that he paid

any sum for it, he was entitled to recover some value or the sum paid with interest.

But if this court thinks it must determine correct rule, we submit there is great confusion

and difference of opinion among text writers, though all agree injured party should be

compensated for what he lost by best means possible. Common law theory is that measure is

the consideration—what injured party gave. Flureau v. Thornhill, 2 W. Bla. 1078. Authorities

throughout apply rule for benefit of vendor in good faith. 39 Cyc. 2108; Sanders v. Lansing,

11 P. 702. Second theory is measure of damages its value of consideration which plaintiff

was to receive, because he should receive thing he contracts for or its value at time of

conveyance should have been made. Yokum v. McBride, 56 Iowa, 139. This rule is

particularly applicable when dealing with fluctuating values. Third theory is measure is

difference between property given and received. This presumes properties traded are of

exactly same value, a violent presumption. Result in actual money is the same, no matter

what theory is adopted.

Dalton v. Bowker, 8 Nev. 190, and Hoffman v. Bosch, 18 Nev. 360, lay down principle

that where title to land fails, vendee is damaged by amount he gave therefor. If there is no

distinction in measure of damages between sale and exchange, and in action based on

contract and one on warranty, law is established in this state by that decision. That there is no

such distinction is shown in Sedgwick, Damages, sec. 1020, 1006; Maupin, Marketable

Titles, 232; Parrish v. White, 24 S.W. 572.

There cannot on principle be any distinction as to measure of damages where action is

based on breach of contract and on breach of warranty. Purchaser is entitled to good title.

When he takes deed contract is complete. Warranty protects purchaser after deed is given;

before then he is protected by his contract. Sutherland, Damages, secs. 579, 591; Page,

Contracts, sec. 393.


It would be an anomoly if vendor could relieve himself from liability for increased value

by simply executing conveyance with covenant of warranty. Maupin, 229; Hammons v.

Hannin, 21 Mich. 373.

Where there is partial failure of title, proportionate part of consideration should be

returned. 39 Cyc. 2118; Estes v. Odom, 18 S.E. 356.

Land in suit was government land. Defendant never owned it. Some courts hold where one

agrees to convey property in which he has no interest, there is no true contract, but, so far as

that promise is concerned, there is failure of consideration and the contract is a nullity. Lamb

v. James. 39 S.W. 647. Recovery can be had if consideration was paid. Raynor C. Co. v.

Bedfore, 45 S.W. 544; 39 Cyc. 2001; Morris v. Courtenay, 120 Cal. 63. Reynolds v. Franklin,

41 Minn. 279, is no longer good law and was overruled in 44 Minn. 30.

Plaintiff did not contract for public domain, but privately owned land. Such did not exist.

One can only guess what land would be worth if cultivated and had water right. Any theory

based on its value then would be too speculative. General rules of damage cannot be

formulated to govern all cases, and where damages may be estimated in various ways, most

definite and certain will apply. Kincaid v. Lynch, 132 F. 692.

OPINION


This case is now before the court on the judgment roll alone, pursuant to the ruling in

Shirk v. Palmer, 48 Nev. 451, 236 P. 678. Two questions are presented; one being whether

the complaint states a cause of action, and the other whether the trial court adopted the right

measure of damages.

The complaint reads as follows:

“Plaintiff for cause of action against the defendant complaints and alleges as follows:

“I. That on May 11, 1922, plaintiff and defendant entered into a written contract for

exchange of properties, which contract is in words and figures as follows: </B�B�8� ��9�� O�� :��O�� 4�� '�� %%�%�&&�


“‘E. E. Palmer, Dealer in General Merchandise, Hay and Grain, Mining Supplies, Beatty,

Nevada, May 11, 1922.

“‘We the undersign agree to exchange propertys, soon as the papers can be signed and

perfected, as follows E.W. Shirk is to give a deed to six hundred acres in section 23 township

7 south 9 east in Riverside county, Free and clear of all incumbrances except Mortgage not to

exceed sixty five hundred dollars. And Lot on South West corner on third & Beaudry 90 feet

on Beaudry 140 feet on third free of all incumbrance except Mortgage six thousand dollars

and third street tunnel bonds, of seven hundred dollars.

“‘E.E. Palmer is to give deed to Ranch six hundred acres improvements implements horses

& Cattle with brand

“‘Store fixtures Merchandise town property and town lots, this is intended to cover all

personal property in Beatty Nevada.

“‘E. W. Shirk.

“‘E. E. Palmer.'

“II. That plaintiff performed all the terms of said agreement to be by him performed, and

on or about June 21, 1922, made, executed, and delivered to said defendant a deed to the

lands described in said contract to be by him deeded to defendant, and in accordance with the

terms of said agreement.

“III. That the defendant, at the time of the delivery of the above-mentioned deed, was

unable to convey title to plaintiff to 160 acres of the land agreed by him to be deeded to

plaintiff, and thereupon made and delivered to plaintiff the following promise in writing:

“‘E. E. Palmer Dealer in General Merchandise, Hay and Grain, Mining Supplies, Beatty,

Nevada, June 21, 1922.

“‘I agree to deed to E.W. Shirk the following property, No. 08342 for lots two and three

SW 1/4, NE 1/4 SE 1/4 NW 1/4 sec 5 to 12 SR, 47 E Containing 160 acres. On or before one

year, or as soon as possible for me to do so.

“E. E. Palmer.' <#F�


“IV. That defendant did not own said land, and does not now own the same, or any part

thereof, and has failed and refused to deed said land to plaintiff, or any part thereof.

“V. That the reasonable value of the property given by plaintiff in exchange for said 160

acres of land agreed to be deeded to plaintiff by defendant was, at the time it was conveyed

and deeded to defendant, and has ever since been, six thousand seven hundred and twenty

dollars ($6,720), and, by reason of the failure of defendant to deed said land to plaintiff,

plaintiff has sustained damage in the sum of six thousand seven hundred and twenty dollars

($6,720).”

This allegation was before judgment amended to plead damages in the sum of $7,500.

To sustain the contention that the judgment must be reversed for insufficiency of the

complaint, two grounds are urged: (1) That there is no allegation in the complaint showing

that a deed could have been signed and perfected prior to the bringing of the suit, or that a

reasonable time therefor had elapsed; and (2) that by the execution by the defendant of the

document of June 21, 1922, the original contract was modified, so as to extend the time of

execution of the deed to the 160 acres in question until such time as it became possible for the

defendant to give such a deed, and that there is no allegation charging that it is possible for

the defendant to execute the same.

1, 2. We will dispose of these contentions in the order made. As to the first contention, it is

said on the part of the plaintiff that, if there be merit in it, the defect was cured by the answer

of the defendant, wherein it is stated that deeds were exchanged between the parties as to all

of the property agreed to be exchanged, except as to the 160 acres in question. That an answer

may so aid the complaint as to cure a defect is well recognized. Hawthorne v. Smith, 3 Nev.

182, 93 Am. Dec. 397; Riverside F. Co. v. Quigley, 35 Nev. 17, 126, P. 545; Johnston v.

Rosaschi, 44 Nev. 386, 194 P. 1063. As we �� %%��<*��1�� 2�� -


understand the contention of defendant, he does not question the correctness of this rule, but

it is contended that the language in the agreement of May 11 reading, “We the undersign

agree to exchange propertys, soon as the papers can be signed and perfected,” with particular

reference to that emphasized, should be construed to mean as soon as the title to the property

can be perfected; it being said in the brief:

“The word ‘perfected' could not reasonably have referred to papers, but to our mind it was

rather used by the parties with reference to perfecting title, so that deeds conveying title could

be made.”

We cannot accept this view. The contract clearly specifies that the exchange of properties

shall be made as soon as the papers can be signed and perfected. The word “perfected” refers

solely to the papers, and nothing is anywhere said in the contract about the title to the

property. To take any other view would be a rewriting of the contract. This we cannot do.

3. Did the execution by the defendant of the writing of June 21, 1922, modify the terms of

the original agreement? As to this it is contended by the plaintiff that the action was upon the

contract of May 11, and that the defendant was in default at the time he signed the document

of June 21, and that it shows that he recognized that he had defaulted. It is further said that

there was no consideration passing from the defendant to the plaintiff, since the defendant by

the document of June 21 merely promised to do what he was already legally bound to do;

hence there was no new contract or modification of the old one.

We think the contention of the plaintiff, to the effect that the document of June 21 does not

constitute a new contract, is conclusive. The rule applicable to the situation is stated in 13

C.J. 351, as follows:

“A promise to do what the promisor is already bound to do cannot be a consideration, for,

if a person gets nothing in return for his promise but that to which he is already legally

entitled, the consideration is unreal.


Therefore, as a general rule, the performance of, or the promise to perform, an existing legal

obligation is not a valid consideration.”

This is a well-recognized rule, needing no citation of authorities to sustain it.

4. We come now to the contention that the court adopted the wrong measure of damages in

arriving at the amount for which judgment should be rendered. It is conceded by the

defendant that he had no title to the 160 acres. There is no allegation or contention by the

plaintiff that there was any fraud on the part of the defendant, and plaintiff seeks to recover

the value of the property which he conveyed to the defendant as a consideration for the 160

acres which the defendant could not convey.

The courts have had a great deal of trouble, both in England and in America, in reaching a

conclusion as to the correct standard by which to measure the damages of one who lost by

reason of the failure of title conveyed, or by reason of the failure of the defendant to convey,

because of his discovery of the lack of title on his part. A variety of situations is presented in

the cases which have come before the court, and considerable confusion has existed because

of the failure of the courts to discriminate carefully. While there are many cases presenting

distinguishing features and necessarily involving different questions of law, nevertheless it

may be safely said that, after all, the real point of divergence between the authorities in that

which is established by what is known as the United States Supreme Court rule, as enunciated

in Hopkins v. Lee, 6 Wheat. 109, 5 L. Ed. 218, and the common-law rule which was

sanctioned in Flureau v. Thornhill, 2 Wm. Black, Rep. 1078, and confirmed in Bain v.

Fothergill, L.R. 7 H.L. 159.

It is not our purpose to review the two lines of authorities, and determine, from a critical

analysis thereof and of the reasoning given to support their respective views, which is correct,

since our court has in two instances (Dalton v. Bowker, 8 Nev. 190, and :��

%?'��6E�


Hoffman v. Bosch, 18 Nev. 360, 4 P. 703) accepted the English rule as the correct one, and

we think the question should be deemed settled; but we deem it fit to say that in a note to

Beck v. Staats, 80 Neb. 482, 114 N.W. 663, 16 L.R.A. (N.S.) 768, at page 771, it is stated that

the English rule has been adopted by a majority of the courts of this country, and a long list of

cases is cited as supporting the statement. We may say, however, that the carefully considered

and well-reasoned opinion of Chancellor Kent in Staats v. Ten Eyck, 3 Caines (N.Y.) 111, 2

Am. Dec. 254, appeals to us with greater force than does the half page opinion in Hopkins v.

Lee, where the court arbitrarily, we might say, enunciated its rule.

It is said, however, by defendant, that the case of Dalton v. Bowker, supra, is

distinguishable from the instant case, in that it was a suit for damages for breach of warranty

of title, where as this is for breach of a contract. We do not think this difference can alter the

situation, since, as was pointed out by Chancellor Kent in Staats v. Ten Eyck, supra:

“The modern case of Flureau v. Thornhill (2 Black. Rep. 1078) * * * laid down this

doctrine: that upon a contract for a purchase of land, if the title prove bad, and the vendor is

without fraud incapable of making a good one, the purchase is not entitled to damages for the

fancied goodness of his bargain. The return of the deposit money, with interest and costs, was

all that was to be expected.”

Thus it appears that the case which finally established the rule as to measure of damages

was one, not growing out of a breach of warranty, as in Dalton v. Bowker, but out of a failure

to convey, according to contract, as in the instant case. In Maupin on Marketable Titles to

Real Estate (3d ed.) 229, it is said:

“It has been held that, in this respect, an executory contract is not distinguishable from one

that has been executed, and that in either case the measure of damages is the same. It would

be an anomaly if the vendor could relieve himself from liability for the increased value �� 1C��D�


of the premises by simply executing a conveyance to the purchaser with a covenant of

warranty” (citing authorities).

In Stuart v. Pennis, 100 Va. 612, 42 S.E 667, where this rule is accepted, the court on this

point says:

“In Thompson v. Guthrie, 9 Leigh, 101 [33 Am. Dec. 225], following Stout v. Jackson, 2

Rand. 132, Threlkeld v. Fitzhugh, 2 Leigh, 451, Mills v. Bell, 3 Call. 320, and the leading

English case of Flureau v. Thornhill, 2 W. Blacks. 1078, it is shown that the rule is as

applicable to executory contracts as to those executed, and that the vendee is not entitled to

more damages than the purchase money he has actually paid and interest thereon.”

In Gerbert v. Trustees, 59 N.J. Law, 160, it is said at page 180, 35 A. 1121, 1122 (69

L.R.A. 764, 59 Am. St. Rep. 578):

“That there is no substantial difference in the injury resulting, where there is an ouster after

conveyance with warranty, and where there is a refusal of conveyance in pursuance of the

contract to convey, when the vendor is unable to make title, which can reasonably support a

rule for damages in the former case wholly different from that which prevails in the latter

case, is too obvious to require discussion.”

5. But counsel insist that the parties exchanged properties in bulk, and hence the finding of

the court as to the amount of damages shows that it was reached by adopting the wrong

measure of damages, in that the court found that the property conveyed to the defendant by

plaintiff as a consideration for the 160 acres was of the value of $7,500, whereas it does not

appear from the record that any specific property was conveyed as such consideration. It is

true that the complaint does not allege that a specific piece of land was conveyed as a

consideration for the 160 acres, but we cannot say that such was not the theory upon which

the case was tried in the lower court. In fact, from the finding we must conclude that such was

the theory, and that evidence was offered to support that theory. In this connection we feel

that we should say that while in Dalton v.��


Bowker, supra, this court stated that the value of the property lost, where there is no fraud, is

the correct measure of damages, it also said that such value is to be determined by

ascertaining the amount of the purchase money paid for the portion lost, in proportion to the

price of the whole property purchased. The statement, after all, amounts to nothing more than

that the purchase price is the true measure of damages.

But it is contended that a different rule applies where there was an exchange of properties,

as in the instant case, and not a sale. We cannot sanction the contention. The distinction—if

there be one—is “one of shadow rather than of substance.” In both cases the negotiations are

for the transfer of property, and the same rules govern, whether the consideration of the

contract is money or by way of barter. It can make no essential difference in the rights and

obligations of parties that goods and merchandise are transferred, and paid for by other goods

and merchandise, instead of money, which is but the representative of value or property. This

idea is expressed by Bigelow, J., in Howard v. Harris, 8 Allen (Mass.) 297, where he says:

“The legal distinction between a sale and an exchange is a purely artificial one; the rules of

law are the same as applied to both transactions.”

In the case of Sietsema v. Anderson, 188 Iowa, 651, 176 N.W. 611, where there was an

agreement of exchange of properties, and the plaintiff conveyed, but, the conveyance of the

plaintiff being a forgery (though there was no fraud), it was held in an action for damages that

the measure of damages was the value of the property conveyed by the plaintiff. In that case

the court said:

“It is the recognized rule in this state, as between a vendor and vendee of real estate, that,

in the absence of wrongful intention or bad faith, a failure of vendor's title which renders him

unable to perform is a failure of consideration. In such case the vendee must be made whole;

but the punitive elements of damage are eliminated. Ordinarily the measure of damage is the��


consideration paid, and perhaps expense reasonably incurred. It is true that this rule had its

origin a long time ago in Foley v. McKeegan, 4 Iowa, 1, 66 Am. Dec. 107. Bit it has been

applied frequently from that time to the present. Eggert v. Pratt, 126 Iowa, 728, 102 N.W.

786; Cornell v. Rodabaugh, 117 Iowa, 287, 90 N.W. 599, 94 Am. St. Rep. 298; White v.

Harvey, 175 Iowa, 213, 157 N.W. 152. This rule is consonant with the rule of measure of

damage for breach of a covenant of title in the conveyance.”

What we have said disposes of the case, though we have not considered, just as presented,

the assignments of error.



Sanders, J.: dissenting:

Undoubtedly the complaint state a cause of action. I dissent solely upon the question of the

measure of the plaintiff's damages. I am of opinion that the doctrine of Dalton v. Bowker, 8

Nev. 190, and like authorities on the subject of the measure of damages on breach of warranty

of title, cannot have any application in this case.

____________

��49 Nev. 451, 451 (1926) Maitia v. Allied Land & Live Stock Co.��

MAITIA v. ALLIED L. & L. S. CO.

No. 2734

September 8, 1926. 248 P. 893.

1. Receivers. Court had jurisdiction to appoint a receiver where it had right to decide the case.

2. Courts. Point once determined by supreme court should not be unsettled, except for very weighty and

conclusive reasons.

3. Appeal and Error. Propriety of order of appointment of a receiver will not be reviewed on appeal from final judgment,

and can only be reviewed on appeal from the order itself, pursuant to civil practice act, sec. 387, as

amended by Stats. 1913, c. 91, notwithstanding Rev. Laws, sec. 5340, providing that, on an appeal from a

judgment, the court may review an intermediate order, and notwithstanding Stats. 1923, c. 97, sec. 1,

concerning bills of exceptions.

4. Appeal and Error. Jurisdictional requirement that propriety of appointment of receiver must be raised by appeal from

order of appointment cannot be waived.

5. Work and Labor. Complaint that stated labor and services were performed by plaintiff for defendant held to plead a

quantum meruit, notwithstanding absence of allegation concerning reasonable worth, since allegation that

labor and services were performed at defendant's special instance and request negatived voluntary

performance.

6. Work and Labor. Where agreed price is shown in action for labor and services on quantum meruit, that becomes their

reasonable value.

7. Witnesses. Testimony concerning circumstances under which plaintiff signed assignment for benefit of creditors

held not inadmissible, under Rev. Laws sec. 5419, providing that no person shall be allowed to testify

when other party to transaction is dead, notwithstanding trustee, who had been a party to transaction, was

dead, since testimony had no particular reference to such trustee.

8. Witnesses—Only Death of Sole Party to Transaction, or Death of All, if More than One,

Excludes Other Party from Testifying to It. Under Rev. Laws, sec. 5419, providing that no person shall be allowed to testify when other party to

transaction is dead, it was intended that only the death of a sole party to a transaction, or, where there is

more than one, the death of all, should operate to exclude the other party from testifying to it.

9. Appeal and Error. Assignment of admission of testimony as error on certain ground will not be considered on appeal,

where no objection was made on that ground.


10. Witnesses. Where, in action for work and services, defendant answered that plaintiff had agreed to an assignment

for creditor and released his claim, and plaintiff denied such allegation, testimony of another creditor that

he had signed on same sheet as plaintiff, and that there was only one sheet, held admissible to sustain

plaintiff as to manner signature was obtained.

11. Witnesses. Testimony that witness had sent letter to deceased, that letter was never returned, and that he had

never received an answer thereto, held not incompetent, under Rev. Laws, sec. 5419, as relating to a

transaction with a deceased person.

12. Evidence. Where, on issue whether plaintiff had agreed to assignment for creditors as a release from his claim,

in action against corporation, plaintiff testified that he had signed only a leaf of paper, that president of

corporation, though present at transaction, did not testify, could be weighed in determining whether

signature was obtained as plaintiff claimed.

13. Work and Labor. Where, in action for work and services, an agreement by plaintiff to an assignment for benefit of

creditors and unconditional release of debtor was set up in answer and denied in the reply, evidence as to

this issue was material, notwithstanding it may have tended to show fraud.

14. Pleading. That complaint, in action against corporation for work and services, alleged plaintiff had filed his

claim with corporation's assignee for benefit of creditors, held not to estop him from showing that he had

not agreed to the assignment, and whether he agreed was matter of proof.

15. Corporations. In action for work and services against corporation, finding that assignment for benefit of creditors

had been agreed to by certain creditors and direction that receiver appointed on motion of plaintiff carry

out its terms held not inconsistent with finding that plaintiff never agreed to the assignment.

See (1) 34 Cyc. p. 38, n. 10; (2) 15 C.J. sec. 306, p. 919, n. 1; (3, 4, 9) 3 C.J. sec. 127, p. 369, n. 30; p. 371, n.

44; sec. 733, p. 819, n. 26; 4 C.J. sec. 2582, p. 683, n. 11 (new); (5, 6, 13) 40 Cyc. p. 2839, n. 7; p. 2843,

n. 58; p. 2853, n. 44; (7, 8, 10, 11) 40 Cyc. p. 2262, n. 53, 54; p. 2301 n. 14 (new); p. 2326, n. 36 (new);

p. 2330, n. 70; p. 2785, n. 20, 21; (12) 22 C.J. sec. 56, p. 115, n. 85, 86; p. 116, n. 90, 92; (14) 31 Cyc. p.

87, n. 64; (15) 14a C.J. sec. 2987, p. 860, n. 28 (new).


Action by Beltrand Maitia against the Allied Land K@��4��)��

��49 Nev. 451, 453 (1926) Maitia v. L. & L. S. Co.��

& Live Stock Company and another. From a judgment for plaintiff, and an order denying the

motion for a new trial, defendant appeal. Affirmed.

Cooke & Stoddard, for Appellants:

There is no such thing in this state as action for mere appointment of receiver; when made,

appointment is ancillary to pending action brought by some one authorized to commence it;

no private person, stranger, or stockholder can maintain action to dissolve corporation or

seize its property. Rev. Laws, 5193; French Bank Case, 53 Cal. 495; State ex rel. Nenzel v.

Court, 49 Nev. 145.

Dissolution of corporation cannot be had without due notice. Rev. Laws, 5142. As directors

were not made parties to action to appoint receiver and suspend operations, whole proceeding

is void. Golden v. District Court, 31 Nev. 250. Power to wind up corporation belongs to state,

not individual suitor. Union etc. Co. v. Court, 140 P. 221. Holders of at least 10% of stock are

necessary. Stats. 1923, 20.

Order commanding Fairchild and Allied Company to deliver moneys, etc. to receiver was

ex parte, mandatory, injunctive, restraining order, and was void for lack of undertaking. Rev.

Laws, 5140. That it was called something else is immaterial. Meadow Valley M. Co. v.

Dodds, 6 Nev. 261.

Plaintiff had no cause of action. As alleged creditor, he accepted provisions of trust deed. He

is estopped from denying validity of assignment. Kendall v. McClure Coke Co., 37 Atl. 823.

He cannot attack it or pursue remedies against others. 5 C.J. 1295. He waived all objections

to its regularity or assignee's title. 3 Cal. Jur. 331, n. 16.

Under voluntary or contract assignment all title and estate of assignor vests in assignee.

Court never was in possession of estate. Rights are to be determined under general contract

rules. 5 C.J. 1038; 2 R.C.L. 644; Winder v. McDonald, 59 N.E. 106; 3 Cal. Jur. 317.


After assignment, company had nothing for which receiver could be appointed. On

assignee's death, property passed to his representative. Where else could it go? Executor was

compelled to accept duties. Schenck v. Schenck, 16 N.J. Eq. 174.

There was no occasion for appointment of receiver, since property passed to his

representative for accounting and delivery to new trustee selected by trustors. 1 Perry, Trusts

(5th ed.), sec. 264, 344; 26 R.C.L. 1340.

Appointments of receivers ex parte are usually void. Maynard v. Railey, 2 Nev. 313; 2

Tardy's Smith, Receivers (2d ed.), 1964.

Death of party stays proceedings until representative is brought in. Rev. Laws, 5004-5008.

Even if death of trustee gave court power to appoint successor, still appointment of

receiver is void because receiver is not successor of trustee. Proceedings were not to continue,

but to wind up trust, and all parties to trust agreement were indispensable. Of forty such

parties, only two applied. Garden City Co. v. Geilfuss, 57 N.W. 349. Case made solely for

receivership is no case at all. Nenzel case, supra.

Court erred in allowing testimony concerning transactions with deceased trustee. No one

shall testify when other party to transaction is dead. Rev. Laws, 5419; Onesti v. Samoville, 48

Nev. 441.

By filing claims with trustee, plaintiff consented to deed and assignment. Final decree

ordering receiver to carry out deed established deed as valid ab initio. 5 C.J. 1295, 1926.

Deed conveying “all property” belonging to person sufficiently describes any portion

proved to so belong to him. Pettigrew v. Dobbelaar, 63 Cal. 396.

A. Grant Miller, for Respondent:

None of counsel's authorities deals with well recognized exceptions to alleged general rule

that simple contract creditor cannot apply for appointment of receiver. Court may appoint

receiver to succeed deceased assignee. Application need not be made by �� !��


creditor whose claim has been reduced to judgment. Receiver may be appointed for

corporation which has made assignment or is insolvent, or where property is being wasted. 3

Cal. Jur. 326; 23 R.C.L. 16; Mellen v. Moline Iron Works, 131 U.S. 352; Lockwood v.

Canfield, 20 Cal. 126; Summit Silk Co. v. Kinston Spinning Co., 70 S.E. 820.

Order appointing receiver was not in any sense injunction or restraining order. It ordered

doing certain acts, not refraining from doing anything. Rev. Laws, 5136; San Diego W. Co. v.

S.S. Co., 35 P. 651. Order in Meadow V.M. Co. v. Dodds, 6 Nev. 261, cited by counsel

appointed receiver and ordered defendant not to do certain acts. Brinton v. Steele, 112 P. 319.

Death of original assignee did not affect validity or existence of trust. Trust remains

whether there is trustee or not. 5 C.J. 1141, 1203, 1207.

On death of assignee his rights in property did not pass to his administrator. Appellants'

authorities deal only with trusts generally or for specific purposes, not with assignments for

benefit of creditors. The many distinguishing features are recognized by all text writers. 5 C.J.

1038, 1040. Common law rule does not apply. Stoll v. Tarr, 132 S.W. 904. Term trustee does

not apply in so broad a sense as to include assignees of insolvents. McNeill v. Hagerty, 37

N.E. 526.

Right to appoint successor of assignee for benefit of creditors is sometimes reserved in

assignment itself, to creditors. As a rule, it is delegated to court by statute. In absence of

statute, vacancy may be filled by court of equity. 5 C.J. 1202, 1207. Such trust is personal and

does not descend to representative. Woessner v. Crank, 3 S.W. 218; Steinhauser v. Mason, 32

N.E. 69. Court had power to appoint successor (5 C.J. 1141, 1207; Batesville Institute v.

Kaufman, 18 Wall. 151) although no statute expressly authorized it. Leon v. Walborne, 58

Tex. 157.

Appointment was not void because made upon ex parte application. Rev. Laws, 5193;

Maynard v. Railey, 2 Nev. 313. )��


Court may appoint receiver on ex parte application when proper showing is made. Rev. Laws,

5193; Maynard v. Railey, 2 Nev. 313. Want of notice was waived by parties appearing.

Iroquois Furnace Co. v. Kimbark, 85 Ill. App. 399; Ripy v. Lumber Co., 106 S.E. 407;

Elwood v. Bank, 21 P. 673.

Complaint does not show plaintiff had accepted provisions of instrument appellant's

counsel delight to call trust deed, and court so found. “Trust deed” conveyed nothing and at

most was merely appointment of Fairchild as trustee, but it vested no title to real or personal

property in him. If it was intended to do so, such intention was never carried out, and whole

fabric of appellants' argument falls.

Wm. McKnight, for Receiver:

Error in appointment of receiver or in refusal to vacate it could have been raised only by

direct appeal, and cannot be reviewed on appeal from final judgment. State v. Second Judicial

District Court, 48 Nev. 198; State v. Court, 49 Nev. 145.

When obiter dictum in Meadow Valley case, 6 Nev. 261, was written, old practice did not

provide for direct appeal from order appointing receiver, but provision is now made therefor.

Rev. Laws, 5329.

Appeal must be taken within sixty days. Kingsbury v. Copren, 47 Nev. 466. Appellants did

not take any appeal whatever from order. Their appeal is from judgment and order denying

motion for a new trial. How can this court consider, then, any alleged errors relative to

appointment of receiver? Jones v. Oil Co., 84 P. 1122; 23 R.C.L. 45; Tourny v. Bryan, 226 P.

21.

There is no merit in contention that because order was made ex parte, appellants could not

appeal from it. Rumney v. Donovan, 72 p. 305.

OPINION


This is an action originally instituted by plaintiff against the defendant, a corporation, and

one M.D.


Fairchild. Thereafter Fairchild died, and on application of the defendant corporation John D.

Cameron, administrator with the will annexed of his estate, was substituted as a party

defendant. Two causes of action against the defendant corporation are set forth in the

complaint, the first for labor and services, and the second on two promissory notes of the

corporation. In addition, it is alleged in the complaint that ever since October, 1922, Fairchild

has been and now is in possession of the assets of the defendant corporation in an amount of

more than $28,000 in cash, and that there have been no legal proceedings in court

establishing Fairchild's right to the possession of said money.

It is alleged that plaintiff filed his claim as set forth in said causes of action with Fairchild,

but that the latter had paid no money whatever thereon. On information and belief it is alleged

that Fairchild claims the right to the possession of said assets and money upon the ground that

he was appointed by certain officers of the corporation as trustee therefor. It is alleged that

plaintiff never gave his consent to any such appointment and has been unable to discover any

facts concerning the business or transactions of Fairchild under such alleged trust, and that a

discovery of the facts of such business and transactions is necessary in order that plaintiff

may recover the money due plaintiff for his labor and services. It is alleged that the

corporation is indebted to other persons in various amounts. Those known to plaintiff are

named, the amounts owing to each designated. It is alleged that the corporation owes other

large sums to the persons unknown to the plaintiff. If is alleged that the assets of the

corporation have been wasted, scattered and mismanaged in the following manner, to wit, that

certain personal property has not been accounted for, nor taken into the possession of

Fairchild; that about 2,000 head of sheep have been turned over to one Sugaty as unto a

preferred creditor, whereas in fact said Sugaty is not a preferred creditor; that $900 of the

corporation's money was paid out as damages on account of the accidental killing of a girl by

the president of the corporation; that Fairchild has not ��

�� !��


taken all of the property of the corporation into his possession; that he turned over all of its

real estate to certain creditors without any legal adjudication thereof and therefor; that certain

personal property is in possession of the president of the corporation. It is alleged that

plaintiff is not a party to the appointment of Fairchild; that the latter is not under bond as such

trustee, and has not taken all of the property of the corporation into his possession. It is

alleged that the 2,000 head of sheep turned over to Sugaty should be subject to the payment

of the plaintiff and other creditors, and that said sheep are worth approximately $10,000.

In this connection it is alleged that the turning over of said sheep to Sugaty was a fraud

against plaintiff and other creditors, and that unless the court appoint a receiver to take charge

of the assets of the corporation, said sheep and the value thereof will be totally lost to the

company and to the creditors thereof. It is alleged that the corporation has gone out of

business, and is insolvent, cannot pay its debts, owes more than its assets, and that, unless the

court appoint a receiver to take possession of and conserve the assets of the corporation, its

affairs cannot be legally and properly and economically wound up, and that plaintiff will

suffer irreparable loss. A receiver is prayed for, and also an order that Fairchild make full,

true, and complete account under oath of all the property of said corporation.

Upon motion of plaintiff and on the complaint and affidavits, a receiver for the corporation

was appointed. Thereafter the defendant corporation demurred to the complaint and moved to

vacate the order appointing a receiver. The demurrer was overruled and the motion to vacate

the order denied with leave to renew the motion. A subsequent motion was denied. The

demurrer to the complaint of defendant Cameron was also overruled, and his motion to

modify the order appointing a receiver denied. The defendants filed separate answers to the

complaint in which, inter alia, the indebtedness alleged therein in both causes of action is

denied.


The indebtedness alleged as to other persons is also denied. The allegation in the complaint to

the effect that plaintiff did not give his consent to the appointment of Fairchild and was not a

party thereto is also denied.

For an affirmative defense for the defendant corporation it is alleged in substance as

follows, to wit: That the corporation became heavily indebted to divers persons, and, being

unable to pay its indebtedness or any considerable portion thereof, proposed to its creditors to

convey and set over all of its assets to some suitable person as a trustee, first for the benefit of

said creditors, and secondly for the benefit of the corporation in the event there was a residue

of assets, after payment of expenses of the trust and all debts; that in consideration thereof

said creditors were to accept the benefits and provisions of such trust of their several claims,

and to unconditionally release the defendant corporation from any further liability in respect

thereto; that pursuant thereto and on November 28, 1922, the defendant, by its president and

secretary, thereunto duly authorized by its board of directors, executed in the corporate name

and under the seal thereof a deed of trust to said Fairchild as trustee, and duly delivered said

deed of trust to said Fairchild, who duly accepted said trust, and that thereupon all, or

practically all of the creditors including the plaintiff herein, accepted the provisions of the

said trust deed in writing by becoming a party and consenting thereto; that pursuant to and in

consideration of said trust deed the defendant delivered over to said Fairchild as trustee all its

assets, and he entered upon the duties of his said trust and took possession of said assets; that

under the terms of said trust deed, as to all the creditors of the defendant consenting thereto, it

is released from any liability, and has a valuable, vested, and substantial right in the subject

matter of the continuance and execution of said trust. A copy of the trust deed alleged is made

a part of the defense.

The same matter is alleged as an affirmative defense in the answer of the defendant

Cameron. In connection therewith his appointment as administrator with the ��


will annexed is alleged. And it is further alleged in this regard that as such administrator he

came into the possession of certain real estate formerly belonging to said corporation, some of

which was situate in Nevada and some in California, all of the various books, papers, and

documents pertaining to the property and business of said corporation, and $18,000 in money,

which had been deposited by Fairchild in the Stockgrowers' & Ranchers' Bank of Reno in the

name and to the credit of Fairchild, trustee, and so remained until after the time of the death

of Fairchild, and that by the operation of law this defendant, as his administrator, is legally

entitled to receive and hold possession of said moneys, property, and effects conveyed and

assigned by said deed of trust to the end that said trust may be fully executed and discharged,

pursuant to its terms and conditions; that upon his said appointment as administrator this

defendant has undertaken to discharge the duties thereof, and to close the same by a

collection and distribution of the property, or its proceeds pertaining to said trust, as their

interests appear from said trust deed and in accordance with the provisions thereof. It is

further alleged that, exclusive of plaintiff, there are about 24 additional persons claiming to

be creditors of the defendant corporation, and who are parties to said trust deed and became

bound thereby, and have a substantial property right and interest in the property pertaining to

said trust estate which they have not waived or relinquished; and that, as by this action

plaintiff is seeking to have set aside the said trust deed as null and void, a complete, or any,

determination of such controversy cannot be made without the presence before the court of

the parties to said trust deed and beneficially interested in the subject matter of the trust. This

defendant prayed the court to require plaintiff to bring said former creditors of the defendant

corporation before the court.

In plaintiff's reply to the answer of the defendant corporation he denies that it has a

valuable, vested, or substantial right in the subject matter of the continuance of the alleged

trust, and denies that the alleged ��


trust was ever agreed to by him, or that he ever agreed to release the defendant corporation

from its indebtedness to him. He alleges in his reply that, if his signature is affixed to the

alleged deed of trust, it was placed there by and through fraud and fraudulently; that he never

saw the alleged deed of trust; that the defendant corporation never made any proposition to

him to composes its debt to him; and that the alleged deed of trust is not his deed. Similar

denials and allegations are made in his reply to the answer of defendant Cameron.

The case was tried before the court without a jury and submitted upon evidence introduced

by plaintiff, the defendants having offered no evidence, except the instrument designated as

an assignment for the benefit of creditors. From the judgment and order denying their motion

for a new trial, defendants appealed. For convenience we will continue to refer to the parties

as designated in the court below.

1, 2. The plaintiff is a mere contract creditor, and counsel insists that the lower court was

without jurisdiction to appoint a receiver on the application of such a creditor, holding that

only judgment creditors or creditors having some lien on the property of the debtor are

entitled to such relief. They also urge that the appointment was unauthorized in several other

respects. The question of the jurisdiction of the lower court to appoint the receiver was before

the supreme court in State ex rel. Cameron v. Second Judicial District Court, 48 Nev. 198,

228 P. 617, and it was then held that the court had such jurisdiction. We are satisfied with the

ruling in that case. A point once determined should not be unsettled except for very weighty

and conclusive reasons. Evans v. Cook, 11 Nev. 69. It is contended, however, that the action

of the court in appointing the receiver on the application of a contract creditor was, at the

least, an error in law which, with the other errors claimed to have been made in making such

appointment, should be considered on this appeal, and the judgment reversed even though the

court had jurisdiction to make such appointment. Section 387 of the civil practice ��4��%�%6��%%6��-


act, as amended by Statutes of 1913 at page 113, reads in part:

“An appeal may be taken: (1) From a final judgment in an action or special proceeding

commenced in the court in which the judgment is rendered, within six months after the

rendition of the judgment. (2) From an order granting or refusing a new trial, or granting or

refusing to grant, or dissolving or refusing to dissolve an injunction, or appointing or refusing

to appoint a receiver, * * * within 60 days after the order is made and entered in the minutes

of the court.”

The order appointing the receiver in this case was made and entered in the minutes of the

court on November 15, 1923, and no appeal was taken from it. We are therefore of the

opinion that any errors of law the lower court may have made in appointing the receiver

cannot be reviewed on this appeal from the judgment and order denying the motion for a new

trial. In an early decision by this court, Meadows Valley M. Co. v. Dodds, 6 Nev. 261, it was

said:

“As the statute does not allow an appeal from an order requiring a party litigant to give a

bond as is done here, nor an order appointing a receiver, it is evident that it was not intended

to permit a review of the action of the lower court in matters of that kind, except upon an

appeal from the final judgment.”

3. Since then the statute quoted, providing for an appeal from an order appointing a

receiver, has been enacted, and it is clear that it was intended that matters concerning such an

appointment could be reviewed only on appeal from such an order. This is the view quite

generally taken when a statute provides for such direct appeal. As stated in 23 R.C.L. p. 45,

sec. 45:

“There are numerous decisions to the effect that questions as to the propriety of the

appointment of a receiver must be raised by appeal from the order, and cannot be reviewed on

appeal from the final judgment.”

In Jones v. North Pac. Fish & Oil Co., 42 Wash. 332, 84 P. 1122, 6 L.R.A. (N.S.) 940, 114

Am. St. Rep. 131, the court held that questions as to the propriety of the order appointing a

receiver will not be reviewed on �� !��


appeal from the final judgment and can only be raised on appeal from the order itself.

In Merchants' Nat. Bank of Bismark v. Braithwaite, 7 N.D. 358, at page 369, 75 N.W. 244,

247, 66 Am. St. Rep. 653, 659, the court said:

“Moreover, the order appointing the receiver was not appealed from, and the point cannot

be raised on an appeal from an order refusing to dismiss the proceedings and all orders

thereunder. The proper time to present reasons why a receiver should not be appointed is

when the application for his appointment is made. If the objection to such appointment is

overruled, the defendant must review the decision by an appeal from the order appointing the

receiver. If he suffers the time to appeal from such order to pass, he cannot thereafter raise the

point.”

That the order of the court appointing a receiver is reviewable only on appeal from the

order of appointment was the view of the supreme court in State v. Union National Bank of

Muncie, Indiana, et al., 145 Ind. 537, 44 N.E. 585, 57 Am. St. Rep. 209. In that case the lower

court had appointed a receiver. The state of Indiana intervened and moved the court to set

aside the order appointing the receiver and to dismiss the proceedings, which was denied, and

a motion for a new trial overruled. An appeal was taken which the court allowed as being

practically an appeal permitted by the statute from an order appointing a receiver, stating that

to deny the right to appeal from that ruling of the court would be, in effect, to deny any

appeal.

In California, from whence our practice act is borrowed, it was decided that upon appeal

from a final judgment, an order made in a cause which is itself by the statute made the subject

of a distinct appeal, cannot be reviewed. McCourtney v. Fortune, 42 Cal. 387; Regan v.

McMahon, 43 Cal. 625. Later this rule was incorporated in the statute. Code Civ. Proc. sec.

956. This statutory rule was applied in a receivership proceeding in Tourny v. Bryan, 66 Cal.

App. 426, 226 P. 21.

Authority for this court to consider errors involved �� ,67��=��@��


in the appointment of a receiver is claimed by reason of section 5340, Rev. Laws. The section

reads:

“Upon an appeal from a judgment the court may review an intermediate order involving

the merits and necessarily affecting the judgment which comes within the specifications of

error and statement or is embraced in affidavits.”

This statute is practically the same as the statute in California where the decisions in

McCourtney v. Fortune and Regan v. McMahon, supra, were rendered. By these decisions it

was settled that an order from which a direct appeal court be taken was not within the

purview of the statute. Hayne on New Trial and Appeal, Rev. Ed. Sec. 195.

Washington and North Dakota have practically the same statute, but it is settled by the

decisions cited supra from those states that the statute does not apply to an order appointing a

receiver, from which a direct appeal is given. As the statute gives a direct appeal from an

order appointing a receiver we are satisfied that its effect is to take such an order out of the

category of intermediate orders contemplated by section 5340.

It is urged that the order denying the motion to vacate the appointment of the receiver is an

intermediate order, and that the questions presented by defendant as to errors in law in the

appointment of a receiver and in refusing to vacate such appointment may therefore, by force

of statute, be determined on an appeal from the final judgment. Our reply to this is that the

statute having provided how such questions may be determined on appeal, and defendants

having failed to avail themselves of this method, the subsequent order refusing to vacate the

appointment could not affect the judgment.

4. We are referred to section 1 of the act of 1923 (Stats. 1923, c. 97) concerning bills of

exceptions, which authorizes a party to serve and file a bill of exceptions �� !�� !��


within stated times to the final judgment or any ruling, decision, order, or action of the

court, which shall be settled and allowed by the judge or court, or by stipulation of the parties.

It is argued, if an appeal is taken from the judgment and order denying a motion for a new

trial, as was done in this case, the section contemplates that any of the matters mentioned in it

shall be considered on appeal if embodied in the bill of exceptions. We do not think so. A

proper appeal must be taken, and if the order is itself appealable the bill of exceptions must

be taken in connection with the order appealed from. The fact that counsel for plaintiff

stipulated that the bill of exceptions in this case, containing the matters urged against the

validity of the order appointing a receiver, is true and correct, and contains the substance of

the proceedings, and all of the material evidence relating to the points involved, does not help

defendants. A jurisdictional requirement cannot be waived. Phillips v. Welch, 11 Nev. 187.

5, 6. It is insisted that the first cause of action is fatally defective because it attempts to plead

a quantum meruit, and there is no allegation that the labor and services were reasonably worth

$860, or any sum whatsoever. It was demurred to on this ground. While such an allegation

would have made a better pleading, we think, because of the liberal practice observed under

out code, its omission cannot be held fatal to the statement of the cause of action. The facts

out of which the indebtedness arose, to wit, labor and services performed by plaintiff for

defendant, are stated. That they were performed voluntarily on plaintiff's behalf is negatived

by the allegation that they were performed at defendant's special instance and request. As the

complaint shows that the labor and services were not performed gratuitously, the necessary

legal intendment is that they were of a reasonable value. If the proof showed an agreed price,

that would become their reasonable value. Burgess v. Helm, 24 Nev. 242, 51 P. 1025.

Defendants complain because the court did not make ��


the other creditors party to the suit. The court had jurisdiction to appoint the receiver, and

having determined that such appointment was necessary under the circumstances of the case,

the defendants, by failing to appeal from the order, as we hold, are foreclosed from

questioning the validity of the appointment. The principal question left for the court to

determine was as to the indebtedness, and whether or not the plaintiff was discharged

therefrom. It is obvious that the other creditors were not necessary parties for the

determination of these questions.

It would serve no useful purpose and unnecessarily prolong this opinion to discuss in

detail all of the numerous assignments of error based on objections to the motions to strike

the testimony. An examination of these reveals no error of a prejudicial nature. We will,

however, discuss several of these which we deem of more importance.

The indebtedness alleged in the complaint was fully proved by evidence free from

objection. In fact there is no evidence to the contrary. The document designated as an

assignment for the benefit of creditors, signed by the president and secretary of the

corporation and a number of its creditors, and which appeared to be signed by plaintiff as

alleged in the answer, was introduced in evidence by the defendants during the presentation

of plaintiff's case, and plaintiff undertook to prove that the sheet which contained his

signature was not attached to it when he signed his name to it. In this regard he testified that

Pete Etchecopar took him over to the Stockgrowers' Bank telling him that he had to sign his

name to collect his money; that Mr. Fairchild and a clerk were in the bank when they got

there, and that he signed just a leaf of paper; that it was presented to him by Mr. Fairchild;

that he could not read English. The attention of the plaintiff was drawn to the top signature on

the last page of the instrument designated “Assignment for the benefit of creditors,” and he

testified that it was his signature, and that the page was the leaf of paper he signed. The

plaintiff further testified that no papers were read to him by ��


anybody at that time before he signed the leaf of paper. It is insisted that, as Fairchild was a

party to the transaction and was dead when the foregoing testimony was given, it was

objectionable because in violation of section 5419, Rev. Laws Nevada. The part of the section

invoked reads:

“No person shall be allowed to testify: First, when the other party to the transaction is

dead.”

It appears that the objection was made on this ground only to the following question:

“Was there any paper read to you by anybody at that time before you signed the leaf of

paper?”

To this the answer was given as stated above. There were others present besides Fairchild

and the plaintiff, and the question had no particular reference to the former. However,

assuming that it did, we do not think that the rule of the statute applies. According to the

testimony, Etchecopar was just as much a party to the transaction as Fairchild and could have

testified concerning it. It is a principle uniformly recognized that, when the reason of a rule

ceases to exist, the rule does not apply. The reason of the rule was to prevent one party to a

transaction from obtaining an unfair advantage because of the death of the other party. Roney

v. Buckland, 4 Nev. 45. But when there are two opposite parties and one is surviving and

capable of testifying, no such undue advantage as contemplated by the statue could be

obtained. It does not appear that Etchecopar was dead. He was president of the defendant

corporation and had an interest in the transaction adverse to plaintiff, and, as we have

previously stated, was one of the parties to the transaction. If the plaintiff testified falsely he

could have contradicted him.

In Onesti v. Samoville, 48 Nev. 441, 233 P. 846, this court quoted from 40 Cyc. 2260, the

rule of construction as to such statutes as ours as follows:

“But it is held that the terms of the exception will not be extended by judicial construction,

nor will the testimony be excluded when the case is not clearly within the terms of the

statute.”

7, 8. We find that such statutes are generally ��


construed liberally in favor of competency. This is by reason of the fact that the statute as a

whole is an enabling statute, restoring to competency generally parties to an action who were

disqualified by the common law. In view of this rule we cannot say that the testimony is

clearly within the prohibition of the rule for the reason that it had no particular reference to

Fairchild. Moreover, keeping in sight the purpose of the exception to prohibit testimony

which would militate against the equality of litigants, we are satisfied that it was intended by

its terms that only the death of a sole party to a transaction, or where there is more than one

the death of all, should operate to exclude the other party from testifying to it.

9, 10. Defendant also assigns as error on the same ground the admission of the testimony

of one Cordova, who claimed to be a creditor of the corporation, who was permitted to testify

that he signed his name on the same sheet as plaintiff, and there there was only one sheet. It is

sufficient to say in regard to this that no objection was made to the testimony on this ground.

The testimony was admissible as tending to sustain the allegations of plaintiff's replies as to

the manner in which his signature was obtained to the assignment for the benefit of creditors.

11. It is contended that the testimony of A. Grant Miller, attorney for plaintiff, was also in

violation of the statute. Miller testified in part as follows:

“I wrote a letter under date of May 16, 1923, of which I have in my hand a carbon copy,

which I duly posted in the United States mail addressed to the addressee named in the letter in

this carbon copy, and was signed by myself—my usual return card was upon the envelope. It

was deposited in the post office and the letter was never returned to me through the post

office, and we offer the carbon copy.”

Defendants objected to the offer on several grounds, among which was the ground that it

was within the rule of said section 5419. The court said: <9�� G


“Did you ever receive an answer to the letter?

“Mr. Miller: I did not.

“Mr. Cooke: For the purpose of the record, I move to strike the answer to the question of

the court.

“The Court: I will overrule the objection.”

The motion to strike was also denied, and the copy of the letter was admitted in evidence.

We do not think that the admission of the copy of the letter or the testimony of the witness

concerning it in violation of the statute. It was not a transaction between the two as meant by

it. The witness testified to his own act and knowledge, and to nothing said or done by

Fairchild. If the latter had been alive, he could not have denied the testimony of the witness as

to the sending of the letter. He might have denied receiving the letter, but the witness did not

say he did. Neither could he have denied the testimony of the witness elicited by the question

of the court in which he stated that he had received no answer to the letter. The evidence was

offered in support of the allegation in plaintiff's complaint that he had been unable to discover

any facts concerning the business or transactions of Fairchild under the alleged trust.

Fairchild, if living, would have been unable to deny the effort made in this regard as testified

to by the witness. The reason for exclusion underlying the statute is consequently not present

here. Plaintiff could obtain no undue advantage from the testimony of the witness on account

of Fairchild's death.

The reasoning of the court in Dillon v. Gray, 87 Kan. 129, 123 P. 878, and the test stated

are applicable here. In that case the court held that the testimony as to the receipt of letters,

which in the opinion of plaintiffs were in the handwriting of deceased, was not incompetent

as relating to a transaction with a deceased person. On this point the court said:

“The plaintiffs testified to the receipt of the letters addressed to them in Alabama,

postmarked in Kansas, and that in their opinion the letters were in the handwriting of Andrew

Gray. This was competent. If he ��


had been living, he could not have testified that plaintiffs did not receive letters so

postmarked, or that in their opinion the handwriting was not his. This is said to be one of the

tests as to whether or not the matter is a transaction within the statute.”

In Daniels, Executor, v. Foster and others, 26 Wis. 686, the court said:

“The question is, whether, after the death of the writer, it is competent for the party who

receives a letter at a distant place to which it is addressed, to testify to such receipt. The

deceased party could not, from the nature of the transaction, have made any directly

contradictory statement. He was a party to the transaction, but not an immediate party, at least

to that part of it concerning which the proof is offered. The fact to be proved is not one of

which he had any positive knowledge, or which he could, if living, have positively denied. He

could deny it indirectly or by inference only, by denying that he ever wrote the letter. But this

would be testimony to another fact or point, as to which it is not proposed to examine the

living party.”

True, the statute in these states prohibited testimony as to transactions had personally with

a deceased person, but the reasoning of the court in both instances is persuasive of the

conclusion that a matter which works no hardship on a litigant is not a transaction within the

spirit of the rule of exclusion.

Objection was taken on the same ground to other testimony of the witness touching his

inquiries concerning the affairs of the defendant, but we find that it was not within the rule of

the statute.

12. The judgment should be affirmed. As previously stated, the indebtedness sued upon

was fully proved. The court found that the plaintiff never agreed to the assignment for the

benefit of creditors set up in defendant's affirmative defense as a release from plaintiff's

claims, and there is substantial evidence to support this finding. Plaintiff testified to the

circumstances of his signing the leaf of paper, and of his lack of knowledge ��)��


concerning the assignment, and corroborative testimony was given by the witness Cordova.

Etchecopar, the president of the defendant corporation, was present at this transaction but did

not appear as a witness for the corporation. The fact that he did not testify concerning the

transaction was a significant circumstance, and within the province of the trial court to weigh

in determining whether plaintiff's signature to the assignment for the benefit of creditors was

obtained in the manner as alleged and claimed by him.

13. It is insisted that the facts of the fraud claimed are not sufficiently pleaded in the reply

to admit of proof, or support the finding. We think, however, that as the agreement of the

plaintiff to the assignment was set up in the answer as an affirmative defense and denied in

the reply, evidence as to this issue was material, notwithstanding it may have tended to show

fraud.

14. It is urged that as the complaint alleged and the answer admitted that plaintiff had filed

his claim set forth in the first cause of action with Fairchild, he is estopped to show that he

had not agreed to the assignment for the benefit of creditors. This might be true if the

complaint showed plaintiff had assented to the appointment of Fairchild as trustee, or had

filed his claim with full knowledge of the facts concerning it, or had received any benefits

from it. But none of these matters appear in the complaint. On the contrary, it is alleged that

Fairchild paid plaintiff no money whatever on his claim; that he never gave his consent to

such appointment, and had been unable to discover any facts regarding the business or

transactions of said Fairchild under such alleged trust, and that a discovery of such business

and transactions is necessary in order that plaintiff may recover the money so due plaintiff as

aforesaid. Under these allegations, as well as under the averments of the reply that he never

saw the alleged deed of trust and never agreed to release defendant from its indebtedness, the

question of whether plaintiff either expressly or impliedly agreed to the transaction, is one of

proof.


15. Lastly it is insisted that the findings are fatally inconsistent and contradictory, in that

the court found that plaintiff never agreed to the assignment for the benefit of creditors, and

also ordered that the receiver carry out the trust as stated in the contract of assignment for the

benefit of creditors. The court found that the said assignment had been agreed to by certain

creditors of the defendant, and the direction that the receiver carry out its terms cannot be

construed into the effect of a finding that the trust agreement was valid as against plaintiff.

The findings to the contrary in this regard are specific.


Sanders, J.: I concur.

Coleman, C. J., concurring:

While I was of the opinion that the general principles of law enunciated in State ex rel.

Cameron v. Second Judicial District Court, 48 Nev. 198, 228 P. 617, were correct, I was

never in accord with the order made, since I did not think the facts justified it; but, whether

the order was right or wrong, there was available to the appellant, within limited time, an

appeal from the order appointing a receiver, and, no appeal having been taken within the time

limit, that question is foreclosed.

I find no prejudicial error in the record; hence I concur in the order of affirmance.

____________

��49 Nev. 475, 475 (1925-1926) Annotations to Court Rules��

ANNOTATIONS TO COURT RULES

____________

GENERALLY

Where statute and court rule conflict, former prevails. Twaddle v. Winters, 29 Nev. 89.

Appeal must be dismissed if not taken within one year after rendition of judgment. Paroni v.

Simonsen, 34 Nev. 26.

Damages are properly assessed if appeal is taken merely for delay. Idem.

Ruling of trial court will be deemed correct if not questioned by adverse party. Seeley v.

Goodwin, 39 Nev. 315.

Assignment of errors is unnecessary when appeal is based on judgment roll alone. Miller v.

Walser, 42 Nev. 497.

On appeal from judgment roll alone which shows demurrer was presented and ruled upon,

order sustaining demurrer is deemed excepted to under Stats. 1915, 208, and alleged error in

so ruling is not required to be presented by bill of exceptions. Idem.

Finding sustained by substantial evidence will not be disturbed. Bralis v. Flanges, 45 Nev.

178.

Mandatory rule of court not unreasonable or in conflict with statute has same effect as statute.

Ex Rel. Williams v. Court, 48 Nev. 459.

Point not discussed in brief other than to allege error is deemed waived. Robinson v. Mathis,

49 Nev. 35.

Assigned error to strike portion of answer is disregarded if notice of motion to strike does not

appear in record or bill of exceptions. Idem.

Notice among papers constituting judgment roll but �� !��


not properly part of it is disregarded when appeal is on judgment roll and evidence is not

before court. Idem.

Every intendment is to be drawn in favor of judgment on appeal from judgment roll. Idem.

____________

SUPREME COURT

RULE II

Appeal dismissed for noncompliance with rules 2 and 3 will not be restored where no

purpose would be served and record presents only judgment roll showing no error. Scaggs v.

Bridgman, 39 Nev. 310.

That motion to dismiss was not filed until more than three terms after appeal was taken and

record filed does not amount to waiver of right to make motion. Rule 8 has no application in

such case. Idem.

Supreme court has no power to make or settle new statement on appeal (which must be

settled only in lower court) or to direct lower court to make one, statement having been

settled as prescribed by statute; but any relief under practice act, 5084 Rev. Laws, for

mistake, etc., of appellant must be had in lower court, motion for new trial there made never

having been determined. Idem.

Objection that transcript was not filed within thirty days after appeal was perfected was

waived where after transcript was filed attorneys stipulated for additional time in which

respondent should file and serve authorities, especially where respondent failed to timely

move for dismissal. Miller v. Walser, 42 Nev. 497.

Appellant has thirty days after appeal is perfected to file transcript of record. Page v. Walser,

44 Nev. 1.

Appeal will be dismissed where transcript is not filed in time. Bottini v. Mongolo, 45 Nev.

245. But time will be given to correct improperly prepared and certified transcript. Shirk v.

Palmer, 48 Nev. 499. Time ��


runs from date of settlement of bill of exceptions. Idem.

Appellant may have bill of exceptions settled and allowed by court or agreement of parties, or

may use reporter's transcript instead. Transcript may be filed any time within thirty days after

appeal is perfected and bills of exceptions are settled. Barbash v. Pitt, 48 Nev. 108.

RULE III

Affidavit must show diligence and good faith. Lightlie v. Ivancovich, 10 Nev. 41.

Where statement on appeal has not been settled, appeal should not be dismissed. If irregularly

dismissed, it will be reinstated on motion. Hayes v. Davis, 23 Nev. 233.

Clerical defects are not fatal. Bliss v. Grayson, 34 Nev. 422.

Order is good though signed only by judge. Idem.

Motion to dismiss on ground record is not filed in time must be accompanied by clerk's

certificate. Robinson v. Kind, 25 Nev. 261.

Appeal will be dismissed when no attempt is made to perfect it. Young v. Updike, 29 Nev.

303.

It is error to dismiss appeal on mere (especially defective) affidavit of counsel, or to vacate

order of dismissal on unsworn statement of counsel in absence of opposing counsel. Adams

v. Rogers, 31 Nev. 150.

Where appellant failed to call supreme court's attention promptly to its error in dismissing

appeal and failed to show any good cause for vacating dismissal, order will be vacated only

on his timely presenting record and satisfactory showing of good faith. Idem.

Appeal dismissed for delay not due to laches may be reinstated. Interstate etc. Co. v.

Nevada etc. Co., 31 Nev. 237.

Appeal will be dismissed if transcript is not filed in time. Collins v. Goodwin, 32 Nev. 342.

That appellant failed for more than six months to file briefs, or appear and argue on motion to

dismiss or �� !�� !�� !��


on merits after notice of hearing, and made no request to submit without argument or

briefs, warrants inference of abandonment of appeal which was from judgment roll alone, so

that judgment was properly affirmed, no glaring defect appearing on face of judgment roll.

Potosi Z. M. Co. v. Mahoney, 34 Nev. 295.

For failure to certify opinion of court, see Rev. Laws, 5356.

RULE IV

Where both parties appeal on different grounds, upon judgment being affirmed for one and

his paying amount of judgment, other is not estopped by receipt of such payment from

prosecuting his appeal for full amount claimed. State v. C. P. Ry. Co., 21 Nev. 172.

Document having no proper place in record may be stricken. Robinson v. Kind, 25 Nev. 261.

Opportunity will be given to correct defective transcript. Shirk v. Palmer, 48 Nev. 449.

Failure to number pages of bill of exceptions or to separate original papers from journal

entries not ground for dismissal. Middleton v. State (Wyo.), 241 Pac. 715.

Testimony is not part of record in proceedings in error unless in bill of exceptions. Idem.

Reference to transcript in bill of exceptions is insufficient to make it part thereof. Idem.

Order extending time for filing motion sufficiently shows extension was granted without

stating particular showing made. Idem.

Overruling of motion for new trial sufficiently appears if fact thereof is shown by bill of

exceptions. Idem.

Statement in bill of exceptions that court erroneously failed to sustain motion for new trial

and that objection was duly taken thereto sufficiently shows exception to denial of motion.

Idem.

Bill of exceptions is not mere statement of exceptions but includes statement clearly

showing objection with facts and circumstances on which it is founded, authenticated by trial

judge according to law, and in view of ��


statutes brings into record matter which otherwise would not be regularly shown thereby.

Idem.

RULE VI

Copy of cost bill must be served. Enforcement of paragraph 2 is not subject to court's

discretion. Haley v. Bank, 20 Nev. 423; Zelavin v. Dev. Co., 41 Nev. 1.

In absence of objection cost bill will not be modified merely because prematurely filed. State

v. Sadler, 25 Nev. 134.

Cost bill and objection thereto must be filed in time. State v. Sadler, supra; Candler v. Ditch

Co., 28 Nev. 422.

Query: Can cost bill be amended? Yes. State v. Court, 26 Nev. 253.

Question whether reduced judgment is more favorable is for sound discretion of district court

and is not reviewable on certiorari. State v. Court, 26 Nev. 253.

Under Rev. Laws, 5333, appeal was taken from judgment and order denying motion for new

trial. Only relief granted appellant was on appeal from judgment based on judgment roll

alone. Held appellant not entitled to cost of transcript on appeal from order denying motion

for new trial. Idem.

On certiorari to review order in district court on appeal from justice court, that each party

pay its own costs in both courts and one-half cost on appeal and one-half jury fee in district

court, only question that can be considered is whether district court had jurisdiction to make

order. Idem.

Costs of transcribing record and typing briefs are taxable. Brandon v. West, 28 Nev. 500.

Court will not consider objection to cost bill except upon appeal from decision of clerk.

Hartung's Estate, 39 Nev. 200.

Allowance of attorney fee is for trial court where no question thereon is in record. Idem.

Cost bill may be filed after decision on rehearing. Ramelli v. Sorge, 40 Nev. 281. ( ��


Allowance is made only for papers actually copied, not originals. Richards v. Vermilyea,

42 Nev. 294.

Supreme court affirmed lower court's ruling in sustaining demurrer and ex gratia remanded

cause with leave to amend if desired. Held appellant did not obtain such relief as entitled him

to costs. Dixon v. Reno, 44 Nev. 350.

Supreme court's order modifying original judgment is “decision” within rule requiring cost

bill to be filed within five days. Studebaker Co. v. Witcher, 45 Nev. 376.

Matters concerning costs are regulated by statute, amplified by court rules. Page v. Walser, 47

Nev. 386.

Bill filed after decision on petition for rehearing is filed in time. Idem.

Reasonable premiums on appeal bond are proper appeal costs. Idem.

Costs of reply to rehearing petition are proper appeal costs. Idem.

Prevailing party's recovery for typing on appeal is not limited to portions of transcript

relating to points decided in his favor. Idem.

Counsel should compile statement pointing out non-pertinent matter for which he claims

costs should not be allowed. Idem.

Modification of judgment without order carries costs. Idem.

Surplus matter brought up on appeal is chargeable to party responsible therefor. Idem

Verified bill stating costs are “correct” and “necessarily incurred” is sufficient compliance

with requirement that “actual” costs be stated. Sorge v. Auto Co., 48 Nev. 60.

Amount paid reporter for typing testimony used in transcript on appeal is proper item of

costs. Barbash v. Pitt, 48 Nev. 118.

When no objection is made to cost bill, clerk must allow it as filed. McLaughlin v.

McLaughlin, 48 Nev. 165. *��


Where several parties appeal one may recover costs for all. Holtzman v. Bennett, 48 Nev.

282.

Where cases are not tried together and testimony in one is not available for bill of exceptions

in other, prevailing parties are entitled to costs. Richmond Machinery Co. v. Bennett, 48 Nev.

293.

Cost bill filed within time after filing of order denying petition for rehearing is in due time.

Siebert v. Smith, 49 Nev. 120.

Verified bill stating costs are correct and necessarily incurred is sufficient. Idem.

RULE VII

Clerk's defective certificate may be amended. State v. Bouton, 26 Nev. 34.

Record may be amended to allow addition of papers which had been omitted because

temporarily misplaced. Christensen v. Floriston Co., 29 Nev. 552.

Where motion to correct is not made, objections to transcript not jurisdictional are deemed

waived. Kirman v. Johnson, 30 Nev. 146.

Court must sustain valid objection to transcript when no effort is made to correct it. State v.

Hill, 32 Nev. 185.

Motion to dismiss appeal for defects in record will be denied when correction is obtained

pending motion. Botsford v. Van Riper, 32 Nev. 214.

Appellate court may make order to correct transcript to conform to record made in lower

court, but may not alter it. State v. Hunter, 48 Nev. 358.

RULE VIII

Findings will not be considered unless embodied in statement of case. Alderson v. Gilmore,

12 Nev. 84.

“Argument” means oral argument. Waiving argument and taking time to file briefs on merits

is same in effect as oral argument. State v. Mining Co., 13 Nev. 203. (��!��


Argument on merits amounts to waiver of objections to statement. Truckee Lodge v. Wood,

14 Nev. 293.

When objections are reserved they are not waived by stipulation extending time. Brooks v.

Syndicate, 24 Nev. 264.

Request to introduce amended record on rehearing comes too late. State v. Court, 29 Nev.

200.

Three days after appellant filed brief respondent, without making any reservation, obtained

ten day allowance to file brief and then failed to file it or make motion to dismiss appeal

within fifteen days after appellant filed brief, held respondent waived right to object to

irregularities of certification of order appealed from. Smith v. Wells Estate Co., 29 Nev. 411.

Respondent is deemed to have waived objection to defective record if motion to dismiss

appeal therefor is not made. Kirman v. Johnson, 30 Nev. 146.

If no proceeding is had to correct defective transcript objections thereto must be sustained.

State v. Hill, 32 Nev. 185.

Respondent waives right to move to dismiss or strike upon any ground not jurisdictional by

entering into stipulation extending time without reserving right to object or except to

sufficiency of record. Botsford v. Van Riper, 32 Nev. 225.

That motion to dismiss for noncompliance with rules 2 and 3 was not filed until more than

three terms after appeal was taken and record filed was not waiver, rule 8 not applying.

Skaggs. v. Bridgman, 39 Nev. 310.

Appellate court cannot alter or amend record of lower court. State v. Hunyer, 48 Nev. 358.

RULE IX

That appellant has succeeded to interest of other parties in case does not make previous

appeal binding as law of case as to him, where those parties were not parties to action at time

of previous appeal and decision of such appeal was based on court's refusal to make them

parties. Robinson v. Kind, 25 Nev. 261.

This rule does not conflict with Comp. Laws, 3111.


Statute goes further. Twaddle v. Winters, 29 Nev. 88. In conflict between statute and rule,

former controls. Idem.

RULE XI

For failure to comply with this rule, judgment may be affirmed. Goodhue v. Shedd, 17

Nev. 140; Gardner v. P. P. Co., 40 Nev. 343. But see Smith v. Wells, 29 Nev. 415, holding

that where respondent fails to file brief or move to dismiss within fifteen days after appellant

files brief he waives right to object to manner or form of certification of order appealed from.

And see also dissenting opinion of Talbot, J., in Adams v. Rogers, 31 Nev. 161, holding order

giving stated period to file brief is privilege and does not designate penalty, and that nothing

is lost except right to argue orally and cost of printing brief.

Error assigned but not briefed or orally argued is waived. Candler v. Ditch Co., 28 Nev.

164. See, also, 94 Atl. 501; 109 N. E. 365; 92 P. 401; 72 P. 607; 94 P. 452.

Where transcript was served in part before docketing in supreme court and remainder

within reasonable time thereafter appeal will not be dismissed. Guisti v. Guisti, 41 Nev. 349.

Appeal should not be dismissed where error or oversight can be corrected without injury to

opposite party if appellant desires to make such correction. Idem. Distinguishing Gardner v.

P. P. Co., 40 Nev. 343, where no copy was ever served and no brief filed not attempt made to

cure defect and where case was abandoned.

Supreme court need not pass upon assignments to ruling on evidence where questions

objected to are not quoted in brief nor reference made to place in bill of exceptions where

questions and ruling appear. State v. Milosovich, 42 Nev. 273.

Brief should point out where in record alleged errors are to be found. Idem.

Question not urged on original hearing cannot be considered on rehearing. Forney's Estate,

43 Nev. 228.

On appeal on denial of change of venue brief must be �� %?C �� &6D�


filed as required by rule 18 (old rule 23). Page v. Walser, 43 Nev. 422.

Appeal will not be dismissed for failure to file brief where court is convinced appellant in

good faith desires to prosecute appeal, and it cannot say his neglect is inexcusable. Strattan v.

Raine, 45 Nev. 7.

Under this rule and Rev. Laws, 7299, appellant by filing brief after being in default and after

notice of motion to affirm for that reason is not saved from an affirmance; though on

application and showing of good cause supreme court might relieve him of his default. State

v. Cecchettini, 45 Nev. 238.

Brief containing scandalous or frivolous matter stricken. Wainwright v. Dunseath, 46 Nev.

361; Thomsen v. Keil, 48 Nev. 1.

Judge's certificate that bill of exceptions is legally filed and served is surplusage. Reinhart v.

Oklahoma G. M. Co., 48 Nev. 32.

Whether bill of exceptions is properly settled and allowed is for appellate court to decide.

Idem.

Appeal will not be dismissed for failure to serve copy of transcript since such irregularity

can be remedied without prejudice. Idem.

Motion for rehearing based on ground not urged on original hearing will be denied.

Howard's Estate, 48 Nev. 106.

Where plaintiff in error filed no brief appeal will be dismissed for want of prosecution.

Fogarty v. Enloe (Okla.), 148 P. 77; Sells v. State (Okla.), 148 P. 131.

On failure of respondent to file brief, see Durant National Bank v. Cummins. 148 p. 1022.

Court is not required to search record, and where brief filed seems to sustain assignments

of error court may reverse judgment in accordance with prayer of petition of plaintiff. Idem.

RULE XV

Question raised for first time on petition for rehearing will not be considered. Gamble v.

Silver Peak, 35 Nev. 323. 0��!�� !��


Though jurisdictional questions may generally be raised at any time, where party has

treated judgment as final throughout proceedings he will not be heard thereafter to question

its finality. Idem.

Appellant who has obtained reversal of judgment will not be heard for first time on reply

to petition for rehearing to suggest that further order be made directing lower court to dismiss

action. Idem.

Point not urged upon original hearing will not be considered on petition for rehearing.

Nelson v. Smith, 44 Nev. 302.

Granting of rehearing is not essential to procure modification of judgment, and petition

therefor will be denied with leave to apply for such modification if necessary to protect

appellant. Studebaker Co. v. Witcher, 44 Nev. 442.

Supreme court will not entertain second petition for rehearing when urged by same party.

State v. Gee Jon, 46 Nev. 418.

After cause had been remanded, if party should desire judgment or decree modified in

supreme court he must first obtain leave there to do so. Richardson v. Sears (Wash.), 151 P.

505.

RULE XVI

Rev. Laws, 5361, do not provide for retention of jurisdiction by supreme court until filing

of remittitur with clerk of lower court. Golden v. McKim, 45 Nev. 350.

Rule of supreme court has same force as statute. Idem.

Clerk of lower court having received remittitur without objection or protest is presumed to

have received it for filing and in fact to have filed it. Idem.

Document is “filed” when deposited with and received for proper officer for filing with

payment of necessary fee if demanded. Idem.

Duplicate remittitur or new remittitur nunc pro tune will not be issued where remittitur

was filed with clerk of lower court, but has been lost. Idem.


RULE XVIII

Such matters should have speedy determination. Peters v. Jones, 26 Nev. 267.

This rule (old rule 23) when involved supersedes rule 11. Latter was made to govern in

ordinary appeals, but this rule is special and controls, having been made to expedite hearing

upon appeals from orders granting or denying motions for change of venue and other

interlocutory orders. Page v. Walser, 43 Nev. 422.

Clerk can collect but one fee, and that from appealing party. Idem; Stats. 1917, 30.

Where prior to appellant's filing transcript and within thirty days from date of perfecting

same, respondent gives notice that he will call up for hearing appellant's appeal from order

denying motion for change of venue, respondent is not required to pay fee for filing notice of

hearing and other papers, since he does not thereby seek to bring some independent matter or

special proceeding to attention of court, but seeks only speedy disposition of main case. Page

v. Walser, 44 Nev. 1.

RULE XX

Where attaching creditor is required to file additional bond and such bond is not approved

until several days after date set for its filing, attachment lien is not discharged, but defect is

cured under rule allowing amendments. Ex Rel. Nenzel v. Court, 49 Nev. 145.

DISTRICT COURT

RULE X

Document styled “motion” asking that complaint be dismissed for reasons which could be

asserted only by demurrer or answer should be dismissed as having no legal standing, and not

merely denied. Symons-Kraussman v. Liquor Co., 32 Nev. 241.

Application to reset trial at earlier date than that fixed should be denied where notice was not

given, though ��


defendant was present in court when application was made. State v. McFadden, 43 Nev. 140.

See Rev. Laws, 5362, 4942.

RULE XVII

Amended complaint filed without complying with rule will be stricken on motion. Order so

striking amended complaint is not appealable. Weir v. Washoe Co. 31 Nev. 528.

RULE XX

Where attaching creditor's additional bond was not approved until several days after date set

for its filing lien was not discharged but defect was cured under this rule allowing

amendment. Ex Rel. Nenzel v. Court, 49 Nev. 147.

RULE XXVI

Rule does not require that undertaking to stay execution shall be approved by same judge

who tries case. Frevert v. Swift, 19 Nev. 400.

Undertaking on appeal in sum of $300 is not “good and sufficient” to stay execution pending

motion for new trial on judgment of $700. Idem.

Judge may rule on effect of former decree on motion for judgment on pleadings, though once

considered on motion to dismiss. Vickers v. Vickers, 45 Nev. 288.

RULE XXVII

Evidence of verbal agreement by plaintiff's attorney not to take any default against defendant

is inadmissible on application to set aside default. Haley v. Bank, 20 Nev. 410.

Oral stipulation of defendant's attorney, that it would make effort to settle with plaintiff,

failing which it would file appointment of state agent upon whom service might be had, is

unenforceable. Stretch v. Mng. Co., 29 Nev. 163.

Stipulation extending defendant's time to answer date does not extend time to apply for

change of venue. Connolly v. Salsberry, 43 Nev. 182. =N@BPPPF##

=N@BPPPF##


RULE XXXVII

Though district court erred in dismissing appeal from justice's court its action cannot be

reviewed by original proceedings in supreme court. Andrews v. Cook, 28 Nev. 265.

Court has no alternative but to dismiss appeal where more than fifteen days expired from time

appeal was perfected before papers on appeal were filed in district court. Ex. Rel. Williams v.

Court, 48 Nev. 459.

RULE XL

Regarding instructions in civil cases, see Rev. Laws, 5210, 5215; in criminal cases, 7169.

RULE XLI

Where on determination of case, judge ordered all further business not completed and all new

business referred during his absence to judge of another district, latter had jurisdiction in

chambers within his district to grant ex parte order extending time for preparation of

statement on motion for new trial in cause tried before absent judge, without affidavit that he

was then still absent. Twaddle v. Winters, 29 Nev. 88.

RULE XLIII

Rule is abrogated where presiding judge orders business of his court referred to judge of

another district during his absence. Twaddle v. Winters, 29 Nev. 88.

____________