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7/28/2019 Nevada Reports 1935-1937 (57 Nev.).pdf
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57 Nev. 1, 1 (1935)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
VOLUME 57
____________
57 Nev. 1, 1 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
CITY OF FALLON v. CHURCHILL COUNTY BANK
MORTGAGE CORPORATION
No. 3114
September 12, 1935. 40 P. (2d) 358.
[Reporter's NoteThe following opinion was not reported in Volume 56 for the reason
that it was deemed advisable to await the final disposal of the matter and report all phases of
the case in the same volume.]
1. Appeal and Error.General rule is that it must appear from record that bill of exceptions, if any, has been timely filed, and
unsupported statements as to such filing cannot be considered.
2. Appeal and Error.Where it does not appear that the bill of exceptions was filed in the lower court, motion to strike such bill
of exceptions must be granted.
3. Appeal and Error.Where plaintiff tendered for filing copies designated as Judgment Roll without any showing of any
kind as a basis for such offer, and only showing as to when appeal was perfected was in so-called Bill of
Exceptions which, if accepted, showed that time for filing a judgment roll had expired long prior to offer,
judgment roll was not before court (Supreme Court Rule II).
4. Appeal and Error.
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Supreme court rule relative to the correction of errors or defects in transcript on file clearly contemplates
correction of defects and errors of transcript properly filed, and filed within time limit, and when there is no
bill of exceptions or judgment UROOVRILOHGWKHUHLVQRWKLQJWRFRUUHFWRUDPHQG6XSUHPH
&RXUW5XOH9,,
57 Nev. 1, 2 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
roll so filed there is nothing to correct or amend (Supreme Court Rule VII).
5. Courts.Although the supreme court is reluctant to make any order which will prevent hearing of an appeal on its
merits, it cannot ignore rules of procedure in doing so.
Appeal from First Judicial District Court, Churchill County; Clark J. Guild, Judge.
Action by the City of Fallon against the Churchill County Bank Mortgage Corporation.
From a judgment in favor of defendant, plaintiff appealed. On defendant's motion to strikefrom the files and records of the court the document filed by plaintiff and designated Bill of
Exceptions. Bill of exceptions stricken, and appellant's tender of judgment roll denied.
George J. Kenny andH. R. Cooke, for Respondent:
The proposed bill of exceptions was not served on respondent until April 15, 1935, at least
fifteen days after expiration of the twenty days allowed by law therefor. Section 9398 N. C. L.
And it was never filed in the court below.
Obviously, section 9386 N. C. L. relied upon by respondent does not apply to a case where
a proposed bill is not filed in the trial court at all, and does not apply to a case where such bill
is served after expiration of the time allowed therefor, but applies only where the proposedbill is filed and served within time, but omits material facts, etc., in which case the adverse
party may object on such grounds. Johnson v. Johnson, 54 Nev. 453 [433], 22 P. (2d) 128.
Tendered bills of exceptions not filed within the time allowed by statute (section 9398 N.
C. L.) will be stricken on motion. Comstock Phoenix Mining Co. v. Lazzeri, 55 Nev. 421,
36 P. (2d) 360.
The time for filing a bill of exceptions having expired, the failure to file it in time was
jurisdictional, and there could be no waiver. Johnson v. Johnson, supra.
Appellant's alternative request for leave to file herein DFHUWLILHGFRS\RIWKHMXGJPHQWUROOLVSUHPDWXUHLQWKHDEVHQFHRIWKHSURSHUPRWLRQZLWKQRWLFHRIJURXQGWKHUHIRUHWFDQG
LQDQ\HYHQWWKHUHTXHVWLVZLWKRXWOHJDOEDVLVXQGHUUXOH,,RIWKLVFRXUW
57 Nev. 1, 3 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
a certified copy of the judgment roll is premature, in the absence of the proper motion with
notice of ground therefor, etc., and in any event the request is without legal basis, under rule
II of this court. Treating the instant case as one where there is no bill of exceptions, the
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transcript of the record here could consist only in a certified copy of the judgment roll. It is
clear that the thirty days time for filing such judgment roll transcript has long ago expired, as
the appeal was perfected by filing and serving notice of appeal on April 15, 1935.
Eli Cann, for Appellant:
The 1935 Statutes, p. 205, sec. 32, sets forth the procedure defendant shall follow to make
its objections to a proposed bill of exceptions; and section 36 of the same act states that if a
party shall fail to make objections as required to such bill of exceptions within the time
limited he shall be deemed to have waived his right thereto.
Section 9386 N. C. L. requires the adverse party, if he wishes to object to the allowance
and settlement of a bill of exceptions, to serve and file a statement specifically pointing out
wherein said bill is defective. State ex rel. Gray v. District Court, 51 Nev. 412, 278 P. 363.
Counsel not having pursued the statutory method of offering amendments, if the proposed
bill of exceptions were not correct, and having permitted the court to settle and authenticate it
as it was presented, they are now bound by the same as it was settled, and so is this court.
Karemius v. Merchants' Protective Association (Utah), 235 P. 881.It is the policy of the law that cases should be disposed of in this court on their merits
when possible. Section 9401 N. C. L.; Orleans H. M. Co. v. Le Champ, etc. M. Co., 52 Nev.
85, 280 P. 887; Shirk v. Palmer, 48 Nev. 449, 232 P. 1083; Johns-Manville v. Lander County,
48 Nev. 244, 239 P. 387; Lindley & Co. v. Piggly Wiggly Nev. Co. (Nev.), 22 P. (2d) 355;
Coykendall v. Gray, 53 Nev. 113, 293 P. 436; Stats. 1935, p. 202, sec. 27.
57 Nev. 1, 4 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
However, if this court shall deem that the bill of exceptions should be stricken because itwas not filed within twenty days of the entry of judgment in the district court, and further
deem that the judgment roll as the same appears in such bill of exceptions is not properly or
sufficiently certified, appellant prays that the notice of appeal attached to the bill of
exceptions be not struck, but be retained by this court, and that appellant be permitted to file
herein a certified copy of the judgment roll.
OPINION
By the Court, Coleman, J.:
This matter is before the court on the motion of respondent to strike from the files and
records of the court the document filed by appellant and designated Bill of Exceptions,
upon the ground that the same was never filed in the lower court.
Section 9398 N. C. L. provides that a party to an action may serve and file a bill of
exceptions. The same section contemplates that a transcript of the proceedings, certified, may
be filed in lieu of a bill of exceptions. Paragraph 2, section 8829 N. C. L. also contemplates
the filing of a bill of exceptions. Counsel for appellant, upon the hearing, did not contend that
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it is not necessary that a document, to become a bill of exceptions, be filed. It was his
contention that the document in question was in fact filed with the clerk of the lower court,
and that it remained in his possession until about the time it was filed in this court.
1. It is the universal practice in this jurisdiction, so far as we recall, for the clerk of the trial
court to indorse upon a bill of exceptions, when filed, a memorandum of its filing and the
date thereof, and sign it as such clerk. There is no such indorsement upon the document inquestion, and there is no showing of any kind, except the bare statement above mentioned, of
such filing. In RSSRVLWLRQWRWKHVWDWHPHQWPDGHFRXQVHOIRUUHVSRQGHQWH[KLELWHGDOHWWHUIURPWKHFOHUNRIWKHORZHUFRXUWVWDWLQJWKDWQRELOORIH[FHSWLRQVKDGEHHQILOHGLQKLV
RIILFHLQWKHPDWWHU
57 Nev. 1, 5 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
opposition to the statement made, counsel for respondent exhibited a letter from the clerk of
the lower court stating that no bill of exceptions had been filed in his office in the matter.
Neither of these unsupported statements can be considered. It is the general rule that it must
appear from the record that the bill of exceptions, if any, is filed within the time fixed by law.
4 C. J. 61.
2. It not appearing that the bill of exceptions was filed in the lower court, it necessarily
follows that the motion to strike must be granted.
3. Upon the hearing of the above matter counsel for appellant tendered for filing two
copies designated Judgment Roll. No notice was given of the proposed offer, nor was any
showing made as a basis for such offer, and counsel for respondent objected thereto. Rule II
of this court provides that transcript of record on appeal, when there is no bill of exceptions in
the case, shall be filed within thirty days after the appeal is perfected. There is no showing
when the appeal was perfected, other than what appears in the so-called Bill of Exceptions,nor any showing of any kind as a basis even for the consideration of the offer by the court. If
we accept the showing in the so-called Bill of Exceptions, the time for filing a judgment
roll had expired long prior to the making of the tender mentioned.
4. Counsel for appellant direct our attention to rule VII of this court relative to the
correction of errors or defects in the transcript on file; also to numerous decisions of the
court. Neither the rule nor any of the decisions are in point. The rule in question clearly
contemplates the correction of defects and errors of a transcript properly filed, and filed
within the time limit. There being no bill of exceptions before us, nor a judgment roll, there is
nothing to correct or amend. Had there been a motion, on due notice, to file the judgment roll,
supported by an affidavit showing excusable neglect, or other satisfactory grounds, a differentsituation would be presented.
Counsel call our attention, also, to Shirk v. Palmer, 48 1HY3
57 Nev. 1, 6 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
Nev. 449-451, 232 P. 1083, 236 P. 678, 239 P. 1000. In that case there was a motion to
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dismiss the appeal, but there was not attack upon the bill of exceptions when that motion was
made, and the first opinion in that case treated the record as having a bill of exceptions,
properly settled, containing all of the pleadings, judgment, notice of motion for a new trial,
etc. Hence that opinion is not in point here. It will appear from a later opinion in that case (48
Nev. 451 to 457, 236 P. 678) that after the first opinion was filed a motion was made to strike
the bill of exceptions. The distinguishing feature between the situation presented on the firsthearing in the Shirk-Palmer case, and in this matter, is that in it counsel for respondent treated
the so-called bill of exceptions, which contained all the pleadings, etc., as being properly
before the court, whereas in this matter respondent attacks the only document on file, which
we hold has no place in the record, hence the appellant is in default and has nothing here as a
basis for correction or amendment. In the Shirk-Palmer case we took the position that since
there was a bill of exceptions in the record, there was a record that might be amended
pursuant to the statute mentioned, but we cannot correct or amend a record which must be
stricken.
5. It is true, as contended by counsel, that the court is reluctant to make any order which
will prevent the hearing of an appeal upon its merits, but we cannot go to the length of
ignoring the rules of procedure in doing so.There being no showing, the offer must be denied.
It is ordered that the Bill of Exceptions be stricken. It is also ordered that appellant's
tender of the judgment roll be denied.
On Motion to Permit Appellant to File Certified
Copy of Judgment Roll
November 5, 1935. 50 P. (2d) 944.
1. Appeal and Error.Appeal can be taken on judgment roll alone, or on both MXGJPHQWUROODQGELOORI
H[FHSWLRQVRURQVXFKRWKHUUHFRUGDVPD\EHDSSURSULDWHLQSDUWLFXODUFDVH6WDWV
57 Nev. 1, 7 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
judgment roll and bill of exceptions, or on such other record as may be appropriate in
particular case (Stats. 1935, c. 90).
2. Appeal and Error.
Reasons allegedly excusing appellant for not properly preparing bill of exceptionswould not permit filing ofcertified copy of judgment roll after time for filing had
expired.
3. Appeal and Error.
Supreme court would not permit certified copy of judgment roll to be filed after time
for filing had expired in absence of showing of excusable neglect for failure to file
judgment roll in time.
4. Appeal and Error.
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Excusable neglect for failure to timely file judgment roll should have been urged on due
notice supported by proper showing at time motion to strike bill of exceptions was made.
Motion denied.
Eli Cann, for Appellant:
We contend that rule VII of the supreme court expressly permits us to produce a copy of
the judgment roll, duly certified, and under this rule we have asked this court's permission to
file it. State v. Hill, 32 Nev. 185, 105 P. 1025; Botsford v. Van Riper, 32 Nev. 214, 106 P.
440; State v. Bonton, 26 Nev. 34, 62 P. 595; Kirman v. Johnson, 30 Nev. 146, 93 P. 500;
Shirk v. Palmer, 48 Nev. 449, 457, 232 P. 1083, 239 P. 1000; Segale v. Pagni, 49 Nev. 313,
244 P. 1010; Orleans Hornsilver M. Co. v. Le Champ D'Or French G. M. Co., 52 Nev. 85,
280 P. 887.
George J. Kenny andH. R. Cooke, for Respondent:
We contend that respondent's objection to appellant's offer of the judgment roll as the
transcript on appeal is well taken and should be sustained, and appellant's appeal herein
should be dismissed. Supreme Court Rules II and III; 4 C. J. secs. 1991, 2189, 2191, 2195,
pp. 350, 460 and 463; Hayes v. Davis, 23 Nev. 233, 45 P. 466; Sullivan v. Nevada Ind.
Comm., 54 Nev. 301, 14 P. (2d) 262; Baer v. Lilenfeld, 55 Nev. 194, 28 P. (2d) 1038; Bottini
v. Mongolo, 45 Nev. 252, 197 P. 702; Skaggs v. Bridgman, 39 Nev. 310, 154 P. 77; Haley v.
Eureka County Bank, 20 Nev. 410, 22 P. 1102.
57 Nev. 1, 8 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
OPINION
By the Court, Coleman, J.:
This case is now before us on a motion, duly noticed, to permit appellant to file herein a
certified copy of the judgment roll. Heretofore we ordered stricken from the files a purported
bill of exceptions. On the hearing of the motion to strike the bill of exceptions, counsel for
appellant tendered for filing a certified copy of the judgment roll. This was after the time
allowed for the filing thereof had expired. Such tender was not based upon a motion dulynoticed and supported by any showing whatever of excusable neglect. We refused to permit it
to be filed. 57 Nev. 1, 49 P. (2d) 358.
1. The affidavit in support of the present motion sets forth why the purported bill of
exceptions, ordered stricken, was not filed as provided by law. No fact, or purported fact, is
set forth in said affidavit tending to excuse appellant for not filing the judgment roll within
the time fixed by law. An appeal may be taken on the judgment roll alone, or upon both the
judgment roll and the bill of exceptions, or upon such other record as may be appropriate in a
7/28/2019 Nevada Reports 1935-1937 (57 Nev.).pdf
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particular case, as provided by chapter 90, Stats. 1935.
2-4. We do not understand just why we should now permit the filing of the judgment roll
because of reasons excusing appellant, if such be the case, for not properly preparing its bill
of exceptions. In fact, no showing of excusable neglect having been made for failure to file
the judgment roll in time, it is clear that the motion must be denied. Had there been excusable
neglect for not filing the judgment roll, that should have been urged, on due notice, supportedby a proper showing, at the time the motion to strike the bill of exceptions was made.
Other questions are discussed, but it is not necessary to consider them.
For the reason given, the motion is denied.
57 Nev. 1, 9 (1936) City of Fallon v. Churchill County Bank Mortgage Corp.
On Appellant's Motion for an Order Extending the Time in Which to File
and Serve a Bill of Exceptions, and a Counter Motion of
Respondent to Dismiss the Appeal.
February 4, 1936. 54 P. (2d) 273.
1. Exceptions, Bill Of.
Clerk need not make notation offiling to constitute filing of bill of exceptions, since all
that litigant can do in filing document is to deposit it with proper official and pay or
tender fee therefor.
2. Appeal and Error.
Supreme court is reluctant to dispose of case except upon merits.
3. Appeal and Error.
Spirit of law is liberal in matter of amending record on appeal (Stats. 1935, c. 90, sec.45).
4. Appeal and Error.
Where plaintiff had deposited bill of exceptions in clerk's office, had served copy upon
defendant's counsel, and bill had been duly settled by trial judge, but it did not appear
from bill that it had been filed in trial court, plaintiffheldentitled to have bill remanded
to clerk for amendment to show filing (Stats. 1935, c. 90, sec. 45).
Order in accordance with opinion.
Eli Cann, for Appellant:
Appellant contends that if a document is presented to the clerk for filing, and the fees, if
demanded, are paid, the document is by that act filed, whether it is marked filed or not; that
the act of placing the file number or mark upon the instrument, the placing of it in the proper
file, or doing whatever else that may be necessary devolves upon the clerk, who is elected and
paid to perform the duties of his office, and he is presumed to do this duty; that when a
person desiring to have a document filed has done all he can do to accomplish that purpose,
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and the officer actually accepts the document for filing, it would be contrary to public policy
to hold that the document is not filed. Golden v. McKim, 45 Nev. 350, 204 P. 602.
From the date of the decision by Bigelow, J., in 21 1HY3
57 Nev. 1, 10 (1936) City of Fallon v. Churchill County Bank Mortgage Corp.
Nev. 184, 27 P. 376, 1018, to the last expression of this court in In re McGregor, 46 Nev.
407, 48 P. (2d) 418, this court has, so far as I can learn, always held to the proposition that
cases must be decided on their merits when possible, unless prevented by mandatory statutes
or mandatory rules of court. And this court has stated that it is indulgent in setting aside such
defaults. Guardia v. Guardia, 48 Nev. 230, 229 P. 386.
George J. Kenny, andH. R. Cooke, for Respondent:
It is submitted that this court would not consider making any order extending time for anact to be done, not in this court, but in a separate tribunal, viz, the trial court. Particularly so
where the proposed extension would (as here) have to relate back to April 1, 1935, and prior
to this court having any jurisdiction whatsoever over the case. The default for which relief is
sought is appellant's failure to file its bill of exceptions with the clerk of the trial court.
Joudas v. Squire, 50 Nev. 42, 249 P. 1068.
The so-called bill, filed in this court, never having been filed in the trial court, of course
never became a part of the record of that court. To allow appellant's application would be the
making of a new record; would be making up a record on appeal in this court, instead of in
the trial court. This court has repeatedly held that the bill of exceptions must be made up,
perfected, filed, etc., in the trial court, and that this court has no power to permit the making
up of such record, or entertain the same, when it was not made up, filed, etc., as required bylaw, in the trial court. Water Company v. Belmont Dev. Co., 49 Nev. 172, 241 P. 1079;
Caldwell v. Wedekind M. Co., 50 Nev. 366, 261 P. 652; Lamb v. Lamb, 55 Nev. 437, 38 P.
(2d) 659; Capurro v. Dist. Court, 54 Nev. 371, 17 P. (2d) 695; Quinn v. Quinn, 53 Nev. 68,
292 P. 620.
It is not the duty of the clerk of the court below, or of the trial judge, but it is the duty of
appellant to see WRLWWKDWKLVELOOLVVHDVRQDEO\DQGSURSHUO\ILOHGLQWKHWULDOFRXUW
57 Nev. 1, 11 (1936) City of Fallon v. Churchill County Bank Mortgage Corp.
to it that his bill is seasonably and properly filed in the trial court. 4 C. J. pp. 298, 299, 302,
secs. 1913, 1915, nn. 64, 65, 71, 72, 73.
OPINION
By the Court, Coleman, J.:
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This the third time this matter has been before us; the first time on a motion to strike the
bill of exceptions [49 P. (2d) 358], the second time on a motion for an order granting leave to
appellant to file a copy of the judgment roll [50 P. (2d) 944], and now on motion of appellant
for an order extending the time in which to file and serve a bill of exceptions, and a counter
motion of respondent to dismiss the appeal.
Counsel for appellant has filed in this matter, in support of this application, an affidavitand a supplemental affidavit, from which it appears that the tendered bill of exceptions was,
on April 15, 1935, deposited in the office of the clerk of the trial court, and immediately
thereafter a copy was served upon counsel for the respondent. It appears from a certificate of
the trial judge that the tendered bill of exceptions was duly settled by the trial judge on April
22, 1935, but it does not appear from the bill of exceptions itself that it was filed in the lower
court. This failure may be due to an oversight on the part of the clerk of the trial court. If this
be true, an opportunity should be given to rectify the oversight.
1. To constitute filing it is not necessary that the clerk make the notation of filing, for all
that a litigant can do in the matter of filing a document is to deposit it with the proper official
and pay or tender the fee therefor, if there be any. Hook v. Fenner, 18 Colo. 283, 32 P. 614,
36 Am. St. Rep. 277; Hilts v. Hilts, 43 Or. 162, 72 P. 697; Wilkinson v. Elliott, 43 Kan. 590,23 P. 614, 19 Am. St. Rep.158; President, etc., Manhattan &RY/DLPEHHU1
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On Appellant's Motion for an Order Vacating an Order Striking the
Bill of Exceptions, and Remanding the Bill of Exceptions to
Clerk of Trial Court for Amendment.
April 29, 1936. 56 P. (2d) 1211.
1. Appeal and Error.
Where it did not appear from bill of exceptions that it had EHHQILOHGLQWULDOFRXUWEXWDIILGDYLWRIDSSHOODQWVFRXQVHOVHWIRUWKWKDWELOOZDVGHSRVLWHGZLWKFOHUNRIWULDOFRXUWIRUILOLQJDQGWKDWDWWLPHRIVXFKGHSRVLWFOHUNZDVSDLGIHHIRUILOLQJWKHUHRIDSSHOODQWKHOGHQWLWOHGWRKDYHELOOUHWXUQHGWRFOHUNIRUDPHQGPHQWLQFRPSOLDQFHZLWKIDFWV
57 Nev. 1, 13 (1936) City of Fallon v. Churchill County Bank Mortgage Corp.
been filed in trial court,but affidavit of appellant's counsel set forth that bill was
deposited with clerk of trial court for filing, and that at time of such deposit clerk was
paid fee for filing thereof, appellant heldentitled to have bill returned to clerk for
amendment in compliance with facts.
Motions granted.
OPINION
By the Court, Coleman, J.:
Appellant has applied for an order vacating the order heretofore made herein striking the
bill of exceptions. It has also moved that the bill of exceptions be remanded to the clerk of the
trial court for amendment. Both of the motions are in pursuance of our opinion and order
made herein on February 4, 1936. 54 P. (2d) 273.
Both motions are supported by the affidavit of counsel for appellant, wherein he states that
the bill of exceptions was deposited with the clerk of the trial court for filing, and that at the
time of such deposit he paid the clerk the fee for the filing thereof.
In the opinion above mentioned we pointed out what is necessary to constitute a filing of a
bill of exceptions with the clerk of a trial court. The showing made on this hearing is ample to
justify orders favorable to appellant.No counter showing has been made by respondent. In fact, no appearance was made by
respondent when the notice of motion was called up for hearing.
Good cause appearing therefor, it is ordered that the order heretofore made herein, striking
the bill of exceptions, be, and the same is hereby, vacated. It is further ordered that the clerk
of this court forthwith return to the clerk of the lower court said bill of exceptions for
amendment in compliance with the facts, and that the clerk of said lower court return the
same to the clerk of this court without delay after the amendment is made, if any.
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57 Nev. 1, 14 (1936) City of Fallon v. Churchill County Bank Mortgage Corp.
On Second Motion to Strike Bill of Exceptions
July 7, 1936. 56 P. (2d) 18.
1. Appeal and Error.
Motion to strike bill of exceptions, on ground it had not been filed within twenty days,
as provided by statute where appeal is from final judgment, was granted where there was
clear conflict between affidavits of parties as to whether respondent had waived time
requirement of statute (Comp. Laws, secs. 9392, 9398).
2. Appeal and Error.
On motion by respondent to strike bill of exceptions, on ground it had not been filed
within twenty days, as provided by statute where appeal is from final judgment, burdenwas on appellant to show respondent waived time requirement (Comp. Laws, secs. 9392,
9398).
3. Appeal and Error.
Where there was no judgment roll on file, and bill of exceptions had been struck
because filed too late, judgment was affirmed since there was nothing supreme court
could consider (Comp. Laws, secs. 9392, 9398).
Motion granted and judgment affirmed.
OPINION
By the Court, Coleman, J.:
This matter is again before us on motion of respondent to strike the bill of exceptions. In
an opinion heretofore filed (57 Nev. 12, 56 P.(2d) 1211), we ordered that the bill of
exceptions be remanded to the trial court for amendment and return to the clerk of this court.
Pursuant to that order, it was endorsed as filed by the clerk of the trial court as of April 15,
1935. The motion now under consideration is based upon the ground that the final judgment
appealed from was entered on March 11, 1935, whereas the bill of exceptions was not filed
until after the time allowed therefor had expired.
Section 9398 N. C. L. fixes the time within which a bill of exceptions may be filed wherethe appeal is from a final judgment, as in this case, at within twenty (20) days. The final
judgment having been rendered on 0DUFKDQGWKHELOORIH[FHSWLRQVQRWKDYLQJEHHQILOHGXQWLO$SULOLWLVFOHDUWKDWLWZDVQRWILOHGZLWKLQWZHQW\GD\VDIWHUWKH
HQWU\RIWKHILQDOMXGJPHQW
57 Nev. 1, 15 (1936) City of Fallon v. Churchill County Bank Mortgage Corp.
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March 11, 1935, and the bill of exceptions not having been filed until April 15, 1935, it is
clear that it was not filed within twenty days after the entry of the final judgment.
Section 9392 N. C. L. expressly provides that if a party shall omit or fail to serve and file
his bill of exceptions within the time limited by law, he shall be deemed to have waived his
right thereto. We so held in Nellis v. Johnson et al., 57 Nev. 17, 53 P. (2d) 1192.
Counsel for appellant does not contend that a failure to file a bill of exceptions within the
time fixed by law, if there be no order of court or stipulation of the parties extending the time,
does not constitute a waiver, but contends there was a stipulation extending the time, and has
offered his affidavit which he claims shows that there was a stipulation between himself and
G. J. Kenny, Esq., the attorney for the respondent in the court below, and one of its attorneys
here, waiving the statutory requirement. Though counsel for appellant relies on three separate
affidavits in support of his contention, we will refer to the one of November 12, 1935, only,
since the other two restate the same matter. The affidavit mentioned states that Mr. Kenny
said to him: * * * You prepare your bill of exceptions and your brief and give me a copy of
each; that I will then prepare my answering brief, and give you a copy of my brief; that you in
turn will then prepare and give me a copy of your reply brief; that then we will send the bill ofexceptions, and the briefs all together to the supreme court and let the supreme court pass on
the legal questions presented in these briefs without oral argument.
In opposition to the above affidavit respondent offered in evidence the counter affidavit of
G. J. Kenny, Esq., which states, in substance, that as attorney for the respondent in the lower
court, he discussed with the attorney for appellant the possibility of presenting the case to the
supreme court upon a statement of facts; that he told attorney for appellant, before judgmentZDVUHQGHUHGWKDWLQFDVHRIDQDSSHDO+5&RRNH(VTZRXOGEHDVVRFLDWHGZLWKKLPLQSUHVHQWLQJWKHPDWWHUWRWKHVXSUHPHFRXUWDQGWKDWDIILDQWZRXOGEHJXLGHGLQDOO
PDWWHUVFRQFHUQLQJWKHDSSHDOE\0U
57 Nev. 1, 16 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
was rendered, that in case of an appeal H. R. Cooke, Esq., would be associated with him in
presenting the matter to the supreme court, and that affiant would be guided, in all matters
concerning the appeal, by Mr. Cooke; that following the rendition of the judgment in the
lower court, affiant discussed with Mr. Cooke the matter of presenting the case on appeal on a
statement of facts, and was informed that he, said Cooke, was not in favor of such a course,
and thereupon affiant promptly notified the attorney for appellant accordingly, in the latter
part of March 1935; that he then and there stated to counsel for appellant that the wish of Mr.
Cooke was binding upon him in the matter.From the affidavit of counsel for appellant, it appears that Mr. Kenny suggested that he
prepare your bill of exceptions. If we give this language the usual interpretation, it could
only mean that Mr. Kenny suggested the embodying in the record of a bill of exceptions, as
contemplated by statute. This was not done. If we accept Mr. Kenny's version, there was talk
about submitting the matter to this court upon an agreed statement of facts, but that the
attorney for appellant was simultaneously informed that Mr. Cooke would be associated with
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Mr. Kenny, in case of an appeal, and that Mr. Cooke's wishes in the matter would control.
1, 2. There is a clear conflict between the affidavits. Mr. Kenny states that he informed
counsel for appellant that he could not bind the respondent in the matter, but that Mr. Cooke's
word would control, and that Mr. Cooke would not consent to any stipulation. The burden is
upon appellant to show a waiver. We do not think it is shown, hence the motion to strike the
bill of exceptions should be granted. It is so ordered.3. There being no judgment roll in the case on file, there remains nothing which the court
can consider. In this situation the judgment appealed from should be affirmed.
It is so ordered.
____________
57 Nev. 17, 17 (1936) Nellis v. Johnson Et Al.
NELLIS v. JOHNSON Et Al.
No. 3129
ON MOTION TO REMAND BILL OF EXCEPTIONS
February 4, 1936. 53 P. (2d) 1192.
1. Appeal and Error.Respondent who failed to file timely objections to allowance and settlement of bill of exceptions waived
objections thereto, notwithstanding that he failed to object because of absence of his attorney (Stats. 1935,c. 90, sec. 36).
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action by C. H. Nellis against Charles Johnson and others, wherein Lola Dottie Cale and
S. E. Calvin claimed liens. From the judgment, the defendants appeal. On motion to remand
bill of exceptions for amendment and correction. Motion denied.
T. A. Wells andLouis Cohen, for Appellants.
J. R. Lewis, for Respondent.
OPINION
By the Court, Coleman, J.:
Respondent has moved the court to remand the bill of exceptions to the trial court for
amendment and correction.
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It is the contention of respondent, supported by affidavit, that the testimony of three certain
witnesses, as set forth in the bill of exceptions, is contrary to the testimony of each of said
witnesses given upon the trial; that the testimony of two other witnesses as set forth in the bill
of exceptions is incomplete and does not set forth the true facts as testified to by the
witnesses.
In support of the motion, counsel for the respondent has filed an affidavit wherein it isstated that on the WKRI-XO\FRXQVHOIRUDSSHOODQWOHIWLQKLVRIILFHKLVSURSRVHGELOORIH[FHSWLRQVWKDWDWWKDWWLPHDIILDQWZDVDEVHQWIURP/DV9HJDV1HYDGDZKHUHKLVRIILFHLVPDLQWDLQHGDQGGLGQRWUHWXUQXQWLODIWHUWKHWLPHKDGHODSVHGLQZKLFKWRILOHREMHFWLRQVWRWKHDOORZDQFHDQGVHWWOHPHQWRIWKHELOORIH[FHSWLRQVRUWRVXJJHVW
DPHQGPHQWVWKHUHWR
57 Nev. 17, 18 (1936) Nellis v. Johnson Et Al.
12th of July 1935, counsel for appellant left in his office his proposed bill of exceptions; that
at that time affiant was absent from Las Vegas, Nevada, where his office is maintained, anddid not return until after the time had elapsed in which to file objections to the allowance and
settlement of the bill of exceptions, or to suggest amendments thereto. It is further stated in
said affidavit that the trial judge was of the opinion that he was without authority to change or
correct said proposed bill of exceptions, in view of the fact that no objections were made or
amendments proposed by respondent to said proposed bill of exceptions, and that it was his
duty to sign said bill of exceptions as proposed.
No counter affidavit was filed by appellant.
Whether the application, if granted, would result in an amendment and correction of the
bill of exceptions, or a new bill of exceptions, should the trial court conform to the views of
respondent, we need not determine.Section 36, chapter 90 of Statutes of 1935, provides: If a party shall omit or fail to serve
and file his bill of exceptions within the time limited he shall be deemed to have waived his
right thereto, and if a party shall omit to make objections as required to such bill of
exceptions within the time limited he shall be deemed to have waived his right thereto.
This section is clear, and, as we view it, no discretion is vested in the court. Having failed
to make objections to the bill of exceptions as served, though as a result of the absence of
respondent's attorney, respondent must be held to have waived all objections thereto, and to
be foreclosed from objecting to it thereafter. Sutherland v. Round et al. (C. C. A.), 57 F. 467.
The motion is denied.
On the Merits
May 1, 1936. 57 P. (2d) 392.
1. Mechanic's Liens.
Where statute relating to filing of labor lien claims is XQFHUWDLQLWPXVWUHFHLYHD
OLEHUDOFRQVWUXFWLRQ&RPS
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57 Nev. 17, 19 (1936) Nellis v. Johnson Et Al.
uncertain, it must receive a liberal construction (Comp. Laws, sec. 3739).
2. Mechanics' Liens.Statute heldto permit filing of labor claims within ninety days after performance of
labor (Comp. Laws, sec. 3739).
3. Mechanics' Liens.
Trial court in suit to foreclose labor lien claims has wide discretion in permitting
amendments to claims to conform to proof (Comp. Laws, sec. 3739).
4. Mechanics' Liens.
Motion to amend claim of lien filed against one group of mining claims so as to cover
all mining claims of defendant in another group after defendant had offered evidence thatwork had been performed by claimants on certain claims of other group should have been
denied since motion was not to conform pleadings to proof (Comp. Laws, sec. 3739).
5. Mechanics' Liens.
In suit to foreclose labor liens, denial of application of party claiming a one-half
undivided interest in property subject to claims under an assignment prior to filing of
original lien claims to be made a party defendant to suit heldreversible error (Comp.
Laws, sec. 8556).
6. Appeal and Error.
Whether person seeking to be made a party defendant in suit to foreclose labor liens onproperty in which he claimed an undivided one-half interest by assignment prior to filing
original labor claims was not an innocent purchaser because title was obtained through a
quitclaim deed could not be determined on appeal in absence of record showing character
of deed (Comp. Laws, sec. 8556).
7. Mechanics' Liens.
Recovery could not be had under labor lien claim in absence of evidence that claim was
unpaid (Comp. Laws, sec.3739).
8. Costs.Where transcript on appeal contained many carbon copies, some of which were very
poor, successful appellant was limited in recovery of costs, since typewritten transcripts
on appeal must be of first impression, clearly and legibly done (Rules of Supreme Court,
rule 4, par. 3).
Appeal from Eighth Judicial District Court, Clark County, Wm. E. Orr, Judge.
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Action by C. H. Nellis against Charles Johnson and others, wherein Lola Dottie Cale and
S. E. Calvin claimed liens. From an adverse judgment, defendants appeal. Reversed and new
trial granted.
57 Nev. 17, 20 (1936) Nellis v. Johnson Et Al.
T. A. Wells, andLouis Cohen, for Appellant:
Section 3739 N. C. L. allows only the person furnishing material ninety days in which to
file statement of and notice of lien claim, all others mentioned not more than sixty days. The
laboring man performing labor certainly cannot be classed with or as a materialman
furnishing material. The laboring man is more properly affiliated with the subcontractor.
Hihn-Hamond Lumb. Co. v. Elson, 154 P. 12; Rankin v. Rankin, 122 P.1120.
If the laborer cannot be classified with the subcontractor as specified in the above section,
then it will be necessary and proper to go back to the Statute of 1917, p. 63, being section2217 Rev. Laws 1919, which reads: and not later than fifty days after such completion of
contract or the delivery of material or performance of labor by him, file for record with the
county recorder, etc. Section 3739 N. C. L. was an act to amend the statute of 1917, and only
adds to the provisions thereof to the extent of the conflict, repugnancy or inconsistency
between the wording of the two statutes. 59 C. J. pp. 912 to 916, secs. 515 to 517, and cases
cited. And a repeal is effected only to the extent of the repugnancy, etc. State v. Donnelly, 20
Nev. 214, 19 P. 680; State v. Daugherty, 47 Nev. 415, 224 P. 615; In re Walley, 11 Nev. 260.
The amendment of the statute in 1925 (p.264) contains no repealing clause in the act or in the
title. Courts do not favor repeal by implication. 59 C. J. 905, sec. 510, n. 22; State v. Scott, 52
Nev. 232, 286 P. 119; Kondas v. Washoe County Bank, 50 Nev. 181, 254 P. 1080; State v.
Daugherty, supra; State v. Ducker, 35 Nev. 214, 127 P. 990.The court erred in allowing amendments to the lien claims to include the Spokane claims,
entirely different land. Plaintiff's and lien claimant's motion to amend their lien statements
were insufficient and without proper showing, and were not for the purpose of making the
amendment conform to the proof, but for PDNLQJDPRUHVSHFLILFGHVFULSWLRQRIWKHPLQLQJ
FODLPVXSRQZKLFKOLHQZDVFODLPHG
57 Nev. 17, 21 (1936) Nellis v. Johnson Et Al.
making a more specific description of the mining claims upon which lien was claimed.No testimony was offered or introduced by plaintiff or lien claimants to show that they or
any of them rendered services or performed labor upon or in the mill mentioned in plaintiff's
complaint and the statement of said lien claims. 40 C. J. 462, sec. 658.
The court erred in refusing and failing to order T. A. Wells to be made a party defendant in
the action, after it was shown that said Wells was a purchaser of an undivided one-half
interest in the Spokane mining claims and at a time when no lien claims were made or filed of
record, including said claims, since the inclusion of said Spokane claims prejudiced the
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interest of said Wells. Sections 3739 and 8565 N. C. L.; Robinson v. Kind, 23 Nev. 330, 47
P. 1, 977; Bliss v. Grayson, 24 Nev. 422, 56 P. 231; Rutherford v. Union Land and Cattle
Co., 47 Nev. 22, 213 P. 1045.
The testimony of respondent Cale fails to state that the money was due or owing or had not
been paid.
There was no evidence adduced at the trial that the transfer of the half interest to Mr.Wells was by quitclaim deed.
J. R. Lewis, for Respondents:
While section 3739 N. C. L. is not as explicit as it might be, it is absurd to contend that the
legislature intended to discriminate between laborers, and give a person who furnished
material and also performed labor ninety days in which to file his lien claim, while a laborer
who did not furnish material in addition to his labor performed was to come under the old
statute and have but fifty days in which to file his claim of lien.
It is true that when this section was amended by the legislature in 1925 no repeal clause
was attached thereto. This, however, is immaterial, as the act speaks for itself. 25 R. C. L.secs. 167, 168, 171, pp. 914, 917, 922; State Mutual Ins. Co. v. Clevenger, 87 P.
57 Nev. 17, 22 (1936) Nellis v. Johnson Et Al.
583; First Kent Comm., 462; Huston v. Scott, 94 P. 512; Mesher v. Osburn, 134 P. 1092.
The same definiteness and particularity is not required in a description of the location of a
mine or mining claim that is required of a building in a town. It is sufficient if a description of
the property to be charged with the lien may be identified, even where a mistake has been
made in the legal description of the property in the lien statement. Riverside Fixture Co. v.Quigley, 35 Nev. 17, 126 P. 545.
The finding of fact made by the court is that the mill upon which plaintiff worked was
known as the Charles Johnson mill and was located in the Searchlight district and same was
the only mill belonging to the said defendant, Charles Johnson, in the said mining district.
The mill sufficiently identifies the property upon which the respondents severally claimed a
lien. Teredinick v. Red Cloud Con. Min. Co. (Cal.), 13 P. 152; McIntyre v. Montana Gold
Mountain Mg. Co. (Mont.), 108 P. 353; Thompson v. Wise Boy Min. & Mill Co. et al., 74 P.
958.
The mechanic's lien law is to be liberally construed so as to give lien claimants the benefits
intended by the legislature. Shryme v. Occidental Mill & Mining Co., 8 Nev. 221. See, also,Salt Lake Hardware Co. v. Chainman Mng. & Elect. Co., 137 Fed. 632; Maynard v. Ivey, 21
Nev. 241, 29 P. 1090; Lamb v. Goldfield Lucky Boy Mng. Co., 37 Nev. 9, 138 P. 902; Luigi
Ferro v. Bargo M. & M. Co., 37 Nev. 139, 140 P. 527; Hunter and Co. v. Truckee Lodge No.
14, 14 Nev. 24; 18 R. C. L. 943, secs. 79, 80; Tabor v. Goss & Phillips, 18 P. 535; Harrisburg
Lumber Co. v. Washburn, 44 P. 392; Kezartee v. Marks, 16 P. 411; Tibbetts v. Moore, 23
Cal. 208.
The application of respondents to amend the statements of lien was made in due time and
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for reasons and upon grounds not prohibited by the statute, but specifically provided for when
there was a variance between the lien and the proof, and that the variance should be GHHPHGLPPDWHULDOXQOHVVWKHUHVXOWRIIUDXGRULQWHQWLRQDOO\PDGHRUKDVPLVOHGWKHDGYHUVH
SDUW\WRKLVSUHMXGLFH
57 Nev. 17, 23 (1936) Nellis v. Johnson Et Al.
deemed immaterial unless the result of fraud or intentionally made, or has misled the adverse
party to his prejudice.
Mr. Wells is not an innocent purchaser for value in any sense of the word. He derived his
title on the morning of the trial of the action, by quitclaim deed from appellant, to one-half
interest in the six mining claims composing the group. Oliver et al. v. Piatt (U. S.), 11 L. Ed.
332; May v. LeClaire et al., 20 L. Ed. 50; Dickerson v. Colgrove et al., 25 L. Ed. 618.
OPINION
By the Court, Coleman, J.:
This is an appeal from a judgment and decree foreclosing lien claims, and from an order
denying a motion for a new trial.
1, 2. The first point made is that the lien claims were not filed for record within the time
prescribed by law. The suit is to foreclose three lien claims for work and labor performed
upon mining claims. The lien claims show that each claimant ceased to work not later than
November 4, 1933, and that each lien claim was filed January 6, 1934.
Section 3739 N. C. L. relative to the filing of lien claims reads:Every person claiming the benefit of this chapter shall, not earlier than ten days after the
completion of his contract, or the delivery of material by him, or the performance of his labor,
as the case may be, and in the case of every subcontractor not later than fifty days; in the case
of every original contractor, not later than sixty days, and in the case of every person
furnishing materials not later than ninety days, after such completion of his contract or the
delivery of material or performance of labor by him, file for record with the county recorder
of the county where the property or some part thereof is situated, a claim.
57 Nev. 17, 24 (1936) Nellis v. Johnson Et Al.
Appellant asserts that labor lien claimants must file their claim for record not later than
fifty days after performing their labor, contending that the amendment of 1917 (Stats. 1917,
chap. 41), which limits the time for the filing of labor claims to fifty days, controls.
In 1925 the section just referred to was again amended (Stats. 1925, chap. 169), the act
reading that the section in question is hereby amended so as to read as follows, the
amendment being section 3739 N. C. L., above quoted.
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We held in City of Reno v. Stoddard, 40 Nev. 537, 167 P. 317, that an amending act which
provides that the previous act is hereby amended so as to read as follows, operates to repeal
any provision of the amended act which is not embraced in the amending act. Such is
unquestionably the correct rule. Continental Supply Co. v. White, 92 Mont. 254, 12 P. (2d)
569; 36 Cyc. 1083.
It is also contended that if the act of 1925 controls, the only persons who are entitled toninety days in which to file lien claims are those furnishing materials.
That the legislature of the state has been solicitous of the welfare of the laborer, so far as
protecting his claim for services is concerned, cannot be doubted. The lien law not only gives
him a right to a lien, but gives him a preferred lien of the first rank (section 3745 N. C. L.);
but, unfortunately, the amendatory act of 1925, relative to the time within which such a lien
claim may be filed, is not as clear as it should be. It is evident, however, that it does not
contemplate the filing of a lien claim for labor within fifty days after the completion of the
labor. The lien law is clear as to certain things; and where it is uncertain it must receive a
liberal construction. Skyrme v. Occidental M. & M. Co., 8 Nev. 219, 221. And, as said in
Maynard v. Johnson (on rehearing), 2 Nev. 25, at page 33:
Where the words of a statute are obscure or doubtful, the intention of the legislature is tobe resorted to in order to discover their meaning. A thing within the LQWHQWLRQLVDVPXFKZLWKLQWKHVWDWXWHDVLILWZHUHZLWKLQWKHOHWWHUDQGDWKLQJZLWKLQWKHOHWWHULVQRWZLWKLQ
WKHVWDWXWHLIFRQWUDU\WRWKHLQWHQWLRQRILW
57 Nev. 17, 25 (1936) Nellis v. Johnson Et Al.
intention is as much within the statute as if it were within the letter; and a thing within the
letter is not within the statute if contrary to the intention of it.
In State v. Ross, 20 Nev. 61, 14 P. 827, it was held, in construing a statute, that the intentwill prevail over the literal sense. To the same effect, State ex rel. v. Sixth Judicial District
Court, 53 Nev. 343, 1 P. (2d) 105.
From a reading of the first part of the section, down to the semicolon, it will indisputedly
appear that it contemplates that persons who may claim a benefit under the lien act are
classified either as contractor, subcontractor, materialman, or laborer. This much is certain. It
is furthermore clear from that portion of the section that neither can file a lien claim within a
stated time, but that a subcontractor must file his claim not later than fifty days from the
completion of his contract. Under the act amended (1917 act), all claimants had to file their
claims within fifty days; but under the amendment of 1925, it is clear that the original
contractor has sixty days within which to file, and the materialmen have ninety days. It seemsthe sole purpose of the amendment of 1925 was to give certain claimants longer time within
which to file than was given by the 1917 act. Since it is clear the amendment of 1925
contemplates the filing of claims for labor, the most logical and reasonable construction of
the section is that such claimants have ninety days, in view of the fact that the words or
performance of labor come after the statement of the ninety-day limitation. It is clear it is not
contemplated labor claimants must file within fifty or sixty days, and the only other period
mentioned within which a claim may be filed being ninety days, we can reach no other
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conclusion than that it was the intention of the legislature that labor claims may be filed
within ninety days.
3, 4. It appears from the record that at the time the work in question was done the
defendant Johnson owned the Eureka No. 1, Eureka No. 2, and Eureka No. 3, the Spokane
No. 1, Spokane No. 2, and Spokane No. 3 lode PLQLQJFODLPVDQGWKDWWKHWZRVHWVRI
FODLPVZHUHORFDWHGQRWIDUGLVWDQWIURPHDFKRWKHU
57 Nev. 17, 26 (1936) Nellis v. Johnson Et Al.
mining claims, and that the two sets of claims were located not far distant from each other.
Claimant filed their lien claims against the Eureka group. Upon the trial defendant offered
evidence showing that the work performed by the plaintiffs was upon certain claims of the
Spokane group. Thereupon the plaintiff moved to amend his claim of lien so as to cover the
Spokane claims. The court made an order granting the motion, over the objection of
defendant. This ruling is assigned as error.Section 3739 N. C. L. reads in part:
Upon the trial of any action or suit to foreclose such lien no variance between the lien and
the proof shall defeat the lien or be deemed material unless the same shall result from fraud or
be made intentionally, or shall have misled the adverse party to his prejudice, but in all cases
of immaterial variance the claim of lien may be amended, by amendment duly recorded, to
conform to the proof.
This provision is very broad, and there are no facts or circumstances in the record tending
to show that the variance resulted from fraud, or was intentional, or that the defendant was
misled to his prejudice. This provision relative to amending a lien claim was first
incorporated in our lien act in 1911 (Stats. 1911, chap. 160), but notwithstanding this fact,
this court, in the case of Riverside Fixture Co. v. Quigley, 35 Nev. 17, 126 P. 545, in whichthe rights of claimant evidently accrued prior to the 1911 amendment, held that where the
rights of third parties had not intervened, an amendment would be allowed. In that case the
court reviewed the authorities at some length. In the instant case there is statutory authority
for the allowance of an amendment to conform to the proof. Courts have wide discretion in
such matters. In this connection, it is contended by appellant that the motion to amend was
not to conform to the proof. This contention seems well founded.
5. After the order allowing the amendment of the lien claims in this case, and before
judgment, T. A.
57 Nev. 17, 27 (1936) Nellis v. Johnson Et Al.
Wells filed a sworn petition reciting that prior to the filing of the original lien claims in
question he became the bona fide purchaser, for value, of an undivided half interest of the
Spokane claims, from defendant Johnson, and asked to be made a party defendant to the
action. This application was denied. This ruling is also assigned as error.
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Section 8556 N. C. L. reads:
Any person may be made a defendant, who has or claims an interest in the controversy
adverse to the plaintiff, or who is a necessary party to a complete determination or settlement
of the question involved therein.
This court in Robinson v. Kind, 23 Nev. 330, 47 P. 1, 977, held that where a party has a
direct interest in the subject matter of the suit, he is a necessary party.It appears from the incontradicted evidence in the record that the defendant Johnson, prior
to the filing of the lien claims in question, for a valuable consideration, conveyed an
undivided half interest in the Spokane claims to Wells. From this it appears that Wells has a
direct interest in the subject matter of the suit. We think the court committed reversible error,
for which the judgment and order should be reversed.
It is not contended on this appeal that the half interest retained by Johnson is not subject to
a lien claim simply because of the conveyance of an interest.
It is said in the brief of appellant that lien claimants have not attempted to file lien claims
against the mill, and do not allege that they worked in the mill. We do not quite understand
the purpose of this statement. As to the right of persons erecting improvements upon public
land of the United States, we refer to Lindley on Mines, sec. 409; Treadway v. Sharon, 7 Nev.37, 38; Arnold v. Goldfield Third Chance Mining Co., 32 Nev. 447-455, 109 P. 718.
6. Counsel for respondent states in his brief that Wells is not an innocent purchaser for
value, for the reason, as he says, that he obtained his title through a quitclaim deed. To
support his contention, he cites the IROORZLQJFDVHV2OLYHUY3LDWW+RZ/(G'LFNHUVRQY&ROJURYH862WWR/(G
57 Nev. 17, 28 (1936) Nellis v. Johnson Et Al.
following cases: Oliver v. Piatt, 3 How. 333, 11 L. Ed. 622; Dickerson v. Colgrove, 100 U. S.(10 Otto) 578, 25 L. Ed. 618.
We do not consider it necessary to determine this question, if for no other reason than that
the record does not show the character of the deed. However, we direct counsel's attention to
the case of Moelle v. Sherwood, 148 U. S. 21, 13 S. Ct. 426, 37 L. Ed. 350.
7. It is also contended by appellant that the evidence does not show that the claim of Cale
was owing and unpaid, hence the judgment as to this claim should be reversed. An
examination of the testimony of this claimant does not show that the claim was unpaid, hence
the judgment as to it must be reversed.
We have substantially disposed of every question raised on this appeal. We may say that
the evidence in the record is very skimpy, due, no doubt, to an unfortunate circumstanceheretofore considered in this case. 57 Nev. 53 P. (2d) 1192.
8. Paragraph 3, rule IV, of this court, provides that when transcripts of the record in any
action are typewritten, they must be of the first impression, clearly and legibly done, etc. The
transcript of the record in this case contains many carbon copies, some of which are very
poor. We feel that appellant should be limited in the matter of the recovery of costs herein.
It is ordered that the judgment and order appealed from be reversed, and that a new trial be
granted, appellant to recover two-thirds of his expenses in preparing the transcript on appeal.
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____________
57 Nev. 29, 29 (1936) Minden Butter Mfg. Co. v. District Court
MINDEN BUTTER MFG. CO. v. FIRST JUDICIAL DISTRICT COURT IN
AND FOR DOUGLAS COUNTY Et Al.
No. 3141
May 1, 1936. 56 P. (2d) 1209.
1. Justices of the Peace.Under statute authorizing deposit of money in place of undertaking on appeal from justice's court, deposit
of $100 at time of filing undertaking with one surety on appeal from justice's court wherein no stay ofproceedings was claimed heldto confer jurisdiction upon district court (Comp. Laws, secs. 9339, 9363).
2. Statutes.Court presumed that section of statute taken from code of another state was adopted by legislature with
construction given it by supreme court of other state (Comp. Laws, sec. 9363).
3. Justices of the Peace.Failure to give written notice of filing of undertaking or of deposit made in lieu of undertaking on appeal
from justice's court heldnot to defeat jurisdiction of district court, since notice was not required where
deposit was made (Comp. Laws, secs. 9339, 9363).
Original proceeding in certiorari by the Minden Butter Manufacturing Company and
another against the First Judicial District Court, in and for Douglas County, Hon. Clark J.Guild, presiding, and another. Writ dismissed.
Morley Griswoldand George L. Vargas, for Petitioners:
Your petitioners contend that the First judicial district court, the respondent herein, never
acquired jurisdiction of the civil action of Carl Syll v. Minden Butter Manufacturing
Company and W. H. Pearson, on appeal, basing their contention upon two major
propositions, namely:
(a) That no legal bond was given, as required by section 9339 N. C. L. as constituting an
essential step to clothe the district court with jurisdiction, and that that part of the section
which provides what shall be the equivalent of the undertaking required applies in a FDVHZKHUHQRVWD\RISURFHHGLQJVLVDVNHGIRUVXFKDVWKHFDVHDWEDUDVLVFOHDUO\VKRZQLQ
WKHGHFLVLRQRIWKLVFRXUWLQ)OR\GY'LVWULFW&RXUW1HY
57 Nev. 29, 30 (1936) Minden Butter Mfg. Co. v. District Court
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case where no stay of proceedings is asked for, such as the case at bar, as is clearly shown in
the decision of this court in Floyd v. District Court, 36 Nev. 349, 135 P. 922. Section 9339 is
clearly inconsistent with section 9363 N. C. L., and in such a case the special statute, or the
one dealing with the common subject matter in a minute way, will prevail over the general
statute. 59 C. J. 1056; Oklahoma Natural Gas Co. v. McFarland, 288 P. 471; United States
v. Lapp, 244 Fed. 377. This court, in the Floyd case, supra, also refers to section 3679Cutting's Comp. Laws (same as section 9339 N. C. L.) as being the applicable statute at the
time this appeal was taken. Consequently, it appears that under the Nevada law, in order for
an appeal to be perfected, or the district court to acquire jurisdiction, where a deposit, instead
of an undertaking with two sureties is used, it must be a deposit in the amount of the
judgment, including all costs. The California case of Laws v. Troutt, 147 Cal. 172, 81 P. 401,
is not in point, for the reason that the California courts have taken a different view of their
section, which is similar to section 9339 N. C. L., and have held that that portion of the
section which provides that a deposit of the amount of the judgment appealed from, including
all costs, applies only where a stay of proceedings is claimed. Pacific Window Glass Co. v.
Smith (Cal. App.), 97 P. 899. Consequently, under their interpretation, there is no specific
statute prescribing the requirement for a money deposit in lieu of the undertaking, in a casewhere no stay of proceedings is claimed, and there is then no applicable statute left but the
general statute, which corresponds to our section 9363 N. C. L.
(b) That no written notice of the filing of an undertaking on appeal from the justice's court
was ever given to your petitioners, or to their attorneys, and that this constitutes failure to take
an essential step necessary to give the district court jurisdiction. Section 9339 N. C. L.; State
v. Eighth Judicial District Court, 54 Nev. 404, 20 P. (2d) 655.
57 Nev. 29, 31 (1936) Minden Butter Mfg. Co. v. District Court
Geo A. Montrose, for Respondents:
The courts have construed the sections concerned many times. It will be noted that section
968 of the Code of Civil Procedure of the State of California is almost identical with section
9339 of the Nevada code, and section 967 of the California code is identical with section
9363 N. C. L. Laws v. Troutt, 147 Cal. 172, 81 P. 401; Floyd v. Sixth Judicial District Court,
36 Nev. 349, 135 P. 922; State v. Brown, 30 Nev. 495, 98 P. 871.
Where no stay of proceedings is asked, section 9339 N. C. L. in no place provides that
notice should be given the defendant of the filing of a bond. The very fact that the notice of
appeal is filed with the justice of the peace is, in itself, notice that a bond has been given, asthe justice of the peace would not be at liberty to file a notice of appeal if it were not
accompanied by a bond as the section provides. Alt v. California Fig Syrup Co., 18 Nev. 423,
4 P. 743; Floyd v. Sixth Judicial District Court, supra.
The statute in relation to the giving of notice was written to cover surety bonds, a promise
to pay, but not a bond where the good, solid money of our country was deposited.
OPINION
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By the Court, Ducker, C. J.:
This an original proceeding in certiorari. The petition and supporting affidavits disclose
that petitioners were defendants in a civil action in the justice's court of East Fork township,
State of Nevada, in which judgment was rendered in their favor. Plaintiff therein on the 8thday of August 1935, filed in said justice's court, and served on petitioners, a notice of appeal
to the district court of the First judicial district of said county. At the same time plaintiff also
filed in said justice's court a written document purporting to be an undertaking on appeal,
with one August Syll being the sole surety thereon. This undertaking recites as follows: $VVXUHW\RIVDLGXQGHUWDNLQJ,KHUHZLWKGHSRVLWZLWKWKHFRXUWWKHVXPRIRQHKXQGUHG
GROODUVOHJDOPRQH\RIWKH8QLWHG6WDWHV
57 Nev. 29, 32 (1936) Minden Butter Mfg. Co. v. District Court
As surety of said undertaking I herewith deposit with the court the sum of one hundred
dollars, legal money of the United States. The document was sworn to by the surety.
It is admitted that the deposit of money was made as stated. Neither petitioners nor their
attorneys were apprised of the filing of the undertaking or of the deposit of the money, and
had no knowledge thereof. On the 22d day of October 1935, the case was tried de novo in
said district court, and judgment rendered in favor of plaintiff in the amount of $275 and
costs. On the 3d day of December 1935, a motion made by petitioners in said district court for
an order vacating the judgment on appeal and dismissing the same on the ground that the
court was without jurisdiction to entertain the appeal was denied. Hence the proceeding for a
review in this court.
Petitioners contend that jurisdiction was wanting in the district court (1) because no legalbond was ever given to perfect the appeal, and (2) because no written notice of the filing of an
undertaking was ever given.
Concerning an appeal from a justice's court, section 9339 N. C. L. provides in part as
follows:
An appeal from a justice's court where no stay of proceedings is claimed is not effectual
for any purpose unless an undertaking is filed, with two or more sureties, in the sum of one
hundred dollars, for the payment of the costs on the appeal. If a stay of proceedings is
claimed, the appellant must file an additional undertaking, in a sum equal to twice the amount
of the judgment, including costs, when the judgment is for the payment of money. * * *
A deposit of the amount of the judgment, including all costs, appealed from or of the
value of the property, including all costs in actions for the recovery of specific personal
property, with the justice, is equivalent to the filing of the undertaking.
1. It is insisted by petitioners that these provisions are controlling, and that under them, as
to the first SRLQWWKHJLYLQJHLWKHURIDQXQGHUWDNLQJLQWZLFHWKHDPRXQWRIWKHMXGJPHQWLQFOXGLQJFRVWVRUDGHSRVLWLQWKHDPRXQWRIWKHMXGJPHQWDQGFRVWVZDVDQHVVHQWLDO
VWHSWRJLYHWKHGLVWULFWFRXUWMXULVGLFWLRQ
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57 Nev. 29, 33 (1936) Minden Butter Mfg. Co. v. District Court
point, the giving either of an undertaking in twice the amount of the judgment, including
costs, or a deposit in the amount of the judgment and costs, was an essential step to give the
district court jurisdiction. No stay of proceedings was claimed. Consequently an undertaking
with two or more sureties in the sum of $100 would have satisfied the statute. There is
nothing uncertain about this. The first part of said section so prescribes in precise terms. As
we have seen, such an undertaking was not given, but the sum of $100 was deposited in the
justice's court at the time the undertaking, with one surety, was filed. We think the deposit
was sufficient to confer jurisdiction by virtue of section 9363 N. C. L., which provides: In all
civil cases arising in justice's courts, wherein an undertaking is required as prescribed in this
act, the plaintiff or defendant may deposit with said justice a sum of money in United States
gold coin equal to the amount required by the said undertaking, which said sum of money
shall be taken as security in place of said undertaking.
2. This was the effect given to a statute of California (section 926 Cal. Code Civ. Proc.)
identical with section 9363, by the supreme court of that state, in Laws v. Troutt, 147 Cal.172, 81 P. 401. When that case was decided, the California statute (section 978 Code Civ.
Proc.) providing for appeal bonds in cases arising in justice's courts was practically the same
as section 9339 N. C. L. Our statutes were taken from the California code. So we presume
that section 9363 N. C. L. was adopted by the legislature with the construction given it by the
supreme court of the parent state. Menteberry v. Giacometto, 51 Nev. 7, 267 P. 49.
We are told by petitioners that the case of Floyd v. District Court, 36 Nev. 349, 351, 135
P. 922, 4 A. L. R. 646, supports their contention. The law has been changed since the appeal
was taken in that case. Section 9363 N. C. L. was not then, as now, a part of the law
governing the taking of appeals in cases arising in justices' courts.
57 Nev. 29, 34 (1936) Minden Butter Mfg. Co. v. District Court
Counsel for petitioners describe this section as a general or catch-all provision of no
application. It was not considered so in the state from which it was adopted, Laws v. Trout,
supra, nor are we of that opinion. The language of the section does not leave any room for
construction in line with petitioner's contention. It reads: In all civil cases arising in justices'
court, etc.
3. The point that the court was without jurisdiction because no notice of the undertaking or
deposit was given must also be decided adversely to petitioners. They rely on the last part of
section 9339, which reads: The adverse party may except to the sufficiency of the sureties
within five days after written notice of the filing the undertaking, and unless they or other
sureties justify before the justice within five days thereafter, upon notice to the adverse party,
to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking
had been given. (The italicizing is ours.)
It is not there or elsewhere required that notice of a deposit made in lieu of an undertaking
be given to a respondent, and with reason. The very purpose to be served in requiring written
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notice of an undertaking is effected by a deposit in lieu thereof; namely, adequate security.
The law does not require vain acts. State ex rel. Collins v. District Court, 54 Nev. 404, 20 P.
(2d) 655, cited by petitioners, is therefore not in point.
The writ must be dismissed.
It is so ordered.
____________
57 Nev. 35, 35 (1936) State v. Seymour
STATE v. SEYMOUR
No. 3133
May 7, 1936. 57 P. (2d) 390.
1. Incest.Testimony of prosecutrix, an accomplice, heldsufficiently corroborated to sustain conviction for incest
(Comp. Laws, sec. 10978).
2. Criminal Law.Evidence that accused committed act of incest in county of prosecution heldsufficient to sustain
conviction therefor.
3. Incest.Accomplice is sufficiently corroborated to sustain conviction for incest, where circumstances in evidence
from sources other than accomplice's testimony tend on the whole to connect accused with crime charged
(Comp. Laws, sec. 10978).
4. Criminal Law.Weight of evidence was for jury.
5. Criminal Law.In incest prosecution, prosecutrix' testimony as to acts of sexual intercourse with accused before and after
date of act charged heldadmissible as tending to show relation and incestuous disposition of accused and
prosecutrix.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Arthur B. Seymour was convicted of incest, and he appeals. Affirmed.
John W. Burrows, for Appellant:
The verdict of the jury in the above-entitled case was contrary to the law as defined in the
instructions given the jury by the court; and the verdict of the jury so rendered was contrary to
the evidence presented in the case, and said evidence was insufficient to sustain such verdict.
There was nothing to prove that the adultry was not committed in California, and if so, the
courts of Nevada had no jurisdiction in the case. Ruth Seymour was a self-confessed
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accomplice, and it is the law of this state that no person can be convicted on the
uncorroborated testimony of such an accomplice. There ZDVQRRQHHOVHZKRVD\VWKDWWKHUHZDVDQDFWRILQWHUFRXUVHFRPPLWWHGLQ1HYDGD
57 Nev. 35, 36 (1936) State v. Seymour
was no one else who says that there was an act of intercourse committed in Nevada. Gertrude
Seymour testified that she knew of the trip to Sacramento, California; Ruth Seymour testified
that they went to Sacramento; Arthur Seymour, who did not deny the paternity, said: We
committed adultery in Sacramento; Frank Seymour, who was in the car at the time, was not
put on the stand; 266 days from September 9, 1934, the time they were at Sacramento, to June
1, 1935, is a normal time for the birth of full-term baby; Gertrude Seymour said that the baby
was a strong, normal baby. There was no corroboration of Ruth Seymour's testimony that the
conception of the baby was not the happening of the events at Sacramento, California.
It is not sufficient corroboration merely to show generally that the defendant was anassociate of the accomplice. Peo. v. Koening, 99 Cal. 574, 34 P. 238; Peo. v. Larsen, 4 Cal.
Unrep. Cas. 286, 34 P. 514; Peo. v. Butler, 71 N. Y. S. 129; Smith v. State (Tex. App.), 38 S.
W. 200; State v. Lay, 38 Utah 143, 110 P. 286; Peo. v. Morton, 139 Cal. 139, 73 P. 609.
Gray Mashburn, Attorney-General; W. T. Mathews and W. Howard Gray, Deputy
Attorneys-General; andErnest S. Brown, District Attorney, for the State:
Where one act of incestuous intercourse is elected for prosecution, testimony of either
prior or subsequent acts is admissible as evidence of an incestuous disposition, and as
corroboration of the testimony as to the one act. People v. Koller (Cal.), 76 P. 500.
The corroboration necessary and required by section 10978 N. C. L. is simply sufficientcorroboration which tends to connect the defendant with the crime. State v. Streeter, 20 Nev.
403, 22 P. 758; 31 C. J. 388. Ruth Seymour, the prosecutrix, testified definitely to the place
and time and to the crime charged in the information. Her mother testified that the defendant
himself had confessed that the girl's pregnancy was due to his fault. The mother further
testified that she had noticed WKHDIIHFWLRQDWHDWWLWXGHRQWKHSDUWRIWKHGHIHQGDQWWRZDUGKHUGDXJKWHUIURPWKHSHULRGFRPPHQFLQJZLWK-XQHXQWLO)HEUXDU\
57 Nev. 35, 37 (1936) State v. Seymour
the affectionate attitude on the part of the defendant toward her daughter from the period
commencing with June 1934 until February 1935. Furthermore, the defendant himself
admitted on examination that he had had sexual intercourse at least on one occasion with
Ruth Seymour, and that he constantly kept company with her from June 1934 until February
1935, and that he had seen her nearly every day; that he had spent a night in a hotel in Reno,
Washoe County, Nevada, with her; that he had engaged in petting parties frequently with
her; had addressed her affectionately. He testified positively that he loved the girl, that he
7/28/2019 Nevada Reports 1935-1937 (57 Nev.).pdf
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wanted to marry her, that he intended to marry her when he had secured his divorce from his
wife. We believe, from the opinion in the case of State v. Streeter, supra, that under this
evidence it was entirely for the jury to decide as to its weight.
OPINION
By the Court, Ducker, C. J.:
The defendant, Arthur B. Seymour, was convicted of the crime of incest. He has appealed
from the judgment and the order denying his motion for a new trial.
It is alleged in the information that the offense was committed in the county of Washoe,
State of Nevada, on or about October 1, 1934. The mother of the female with whom the
defendant is alleged to have committed the crime instituted the prosecution, but for
convenience we will refer to the daughter as the prosecutrix.
1-3. Defendant insists that the evidence is insufficient to justify the verdict, and that the
verdict is contrary to the evidence, in this, that the evidence fails to show that he committed
an offense of incest in Washoe County, Nevada. He contends also that there is not sufficientcorroboration of the testimony of the prosecutrix, an accomplice. The following facts wereSUHVHQWHGLQHYLGHQFH'HIHQGDQWDQGSURVHFXWUL[DUHUHODWHGDVILUVWFRXVLQV
57 Nev. 35, 38 (1936) State v. Seymour
presented in evidence: Defendant and prosecutrix are related as first cousins. The latter was
eighteen years of age on the former's trial in July 1935. She had lived with her parents in said
city of Sparks all of her life and was never married. Defendant has also lived in that city for a
number of years. His parents separated when he was quite young and thereafter he lived atdifferent times with his mother, father, and grandmother. He lived for a while at the home of
the prosecutrix. Defendant was married in April 1928. He and his wife separated in April
1934, and she left Sparks and went to Oakland, Calif., taking their young daughter with her.
The separation was caused by defendant's attentions to the prosecutrix. The latter testified that
between June 1, 1934, and February 15, 1935, she saw defendant quite often in the city of
Sparks, county of Washoe, State of Nevada. He came to her home frequently and they were
much together within that period. She testified that she had sexual intercourse with him
during that time about twice a week, all of which occurred in said city of Sparks. They had
such intercourse on one occasion on or about October 1, 1934, in that city at a place where
defendant was living, known as the Deer Park Grocery Store. She continued having theserelations with him in Sparks until about February 15, 1935, when her mother, who became
aware of her pregnancy, took her to a hospital in Oakland, Calif., where she gave birth to a
child on June 1, 1935. Defendant is the father of that child.
The testimony of the prosecutrix summarized above, together with other evidence, reveals
enough of the legal evidence adduced to support the verdict and judgment.
The mother of the prosecutrix was a witness for the state. She testified that she had been
residing with her husband in the city of Sparks for a number of years. She testified that
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prosecutrix was their daughter, and defendant's father was a brother of her husband. The
witness had known defendant for a long time and knew WKDWKHZDVDPDUULHGPDQGXULQJWKH\HDU
57 Nev. 35, 39 (1936) State v. Seymour
that he was a married man during the year 1934. He became unduly attentive to her daughter
and this was more apparent after witness returned from Lake Tahoe to her home in Sparks on
September 14, 1934. She testified that he was in her company frequently; addressed her as
sweetie, and all those affectionate words that lovers use. This unusual conduct between
cousins caused the witness to admonish defendant to cease visiting her daughter. He resented
her interference and did not discontinue his attentions. She saw defendant in company with
her daughter quite often after that. Whenever the daughter went to school, he would
accompany her. In February 1935, witness went to the school and found them near there is an
automobile. At this time they admitted to her that prosecutrix was pregnant, and defendantconfessed to her that he was the cause of it. He said he would marry prosecutrix after he got a
divorce. The witness then took her daughter to a hospital in Oakland, Calif., where she gave
birth to a child on June 1, 1935, as also testified to by the daughter.
But evidence of defendant's intimacy with the prosecutrix on or about the date alleged in
the information is also supplied by the defendant himself. He was a witness in his own behalf.
In his testimony he admitted that he was the father of the child, and his knowledge of his
relation with prosecutrix as her cousin. After he took his wife to San Francisco on April 27,
1934, he commenced keeping company with prosecutrix. He commenced to love her in 1931
and loved her ever afterwards.
He admitted having sexual intercourse with her in Sacramento, Calif., in September 1934.
Later in that year he took her to a hotel in Reno where he engaged a room and signed thehotel register as husband and wife. They remained in that room all night and he sought to
relieve her of pregnancy by having her drink a quantity of gin.
The testimony of the mother and defendant does not GLVFORVHDQ\RQHFLUFXPVWDQFHWHQGLQJGLUHFWO\WRFRUURERUDWHWKHWHVWLPRQ\RIWKHSURVHFXWUL[LWLVWUXHEXWWKLVLV
XQQHFHVVDU\
57 Nev. 35, 40 (1936) State v. Seymour
disclose any one circumstance tending directly to corroborate the testimony of theprosecutrix, it is true, but this is unnecessary. If circumstances in evidence from sources other
than the testimony of the accomplice tend on the whole to connect the accused with the crime
charged, it is enough. State v. Streeter, 20 Nev. 403, 22 P. 758; 31 C. J. 388, and cases cited
in note 55 supporting the text. The testimony of the mother and the defendant shows a
conjunction of opportunity and intimacy extending over a period of time, both before and
after the act charged. This led, as appears by his admission, to an act of sexual intercourse
shortly prior to the time specified in the information. Not long after that time, as likewise
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appears from his admission, followed the clandestine association as husband and wife in the
room of the hotel in Reno. These circumstances are of sufficient probative force to satisfy the
statute as to the corroboration of an accomplice. Collectively, they tend to connect the
defendant with the commission of the offense. Section 10978 N. C. L.
4. The weight of the evidence was for the jury. The prosecutrix was also corroborated by
the testimony of the mother and defendant as to the other sexual acts.5. It was objected by the defendant that the testimony of prosecutrix as to such other acts
with defendant was inadmissible. We are not of that opinion. Those acts occurring, as she
testified, about twice a week, commencing around the 1st of June 1934, and continuing until
February of the following year, tended to show the relation and incestuous disposition of the
parties, which had a probative bearing upon the probability of the crime having been
committed as charged. Prior acts of sexual intercourse are admissible in this class of cases,
according to the great weight of authority. People v. Stratton, 141 Cal. 604, 75 P. 166;
Lipham v. State, 125 Ga. 52, 53 S. E. 817, 114 Am. St. Rep. 181, 5 Ann. Cas. 66; State v.
Pruitt, 202 Mo. 49, 100 S. W. 431, 10 Ann. Cas. 654; Thayer v. Thayer, 101 Mass. 111, 100
Am. Dec. 110; State v. Wallen, 123 0LQQ
57 Nev. 35, 41 (1936) State v. Seymour
Minn. 128, 143 N. W. 119; People v. Skutt, 96 Mich. 449, 56 N. W. 11; 16 C. J. p. 602; 14 R.
C. L. p. 38; Wigmore on Evidence (2d ed.) sec. 398. Subsequent acts are within the rule.
Thayer v. Thayer, supra; Lawson v. State, 20 Ala. 65, 56 Am. Dec. 182; State v. Witham, 72
Me. 531; Burnett v. State, 32 Tex. Cr. R. 86, 22 S. W. 47; State v. Bridgman, 49 Vt. 202, 24
Am. Rep. 124; State v. Reineke, 89 Ohio St. 390, 106 N. E. 52, L. R. A. 1915a, 138; People
v. Koller, 142 Cal. 621, 76 P. 500; Wigmore on Evidence, sec. 398; Bishop on Statutory
Crimes, sec. 682. Especially are such acts admissible when, as here, they are connected withanterior acts, thus showing a continuousness of illicit relations.
We have considered all other claims of error made by defendant and find them to be
without merit.
The judgment and order denying the motion for a new trial should be affirmed.
It is so ordered.
____________
57 Nev. 41, 41 (1936) Lyon County Bank v. Lyon County Bank
LYON COUNTY BANK Et Al. v. LYON COUNTYBANK Et Al.
No. 3135
June 16, 1936. 58 P. (2d) 803.
1. Parties.
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Statutory ground of demurrer that plaintiff has not legal capacity to sue heldto refer to persons who
cannot sue except by guardians, next friends, committees, or, in case of married women, by joining their
husbands in certain cases (Comp. Laws, sec. 8596).
2. Action.In action by bank as trustee of railroad to recover trust fund in bank at time bank was taken over by bank
examiner, complaint heldnot demurrable on ground that plaintiff was without legal capacity to sue, in that
same person could not control both prosecution and defense of action (Comp. Laws, secs. 747 et seq.,8596).
Complaint alleged that suit was brought for benefit of bondholders of railroad of which bank was
WUXVWHHXQGHUWUXVWGHHGSXUVXDQWWRZKLFKEDQNKDGIRUHFORVHGWUXVWGHHGDQGSURFXUHGDSSRLQWPHQWDVUHFHLYHUHPSRZHUHGWRFROOHFWDQGGLVEXUVHWUXVWIXQGIRUERQGKROGHUVRIUDLOURDGWKDWEDQNH[DPLQHUWRRNFKDUJHRIEDQNSXUVXDQWWREDQNLQJODZVDQGWKHUHDIWHUVWDWHVXSHULQWHQGHQWRIEDQNVWRRNFKDUJHRIEDQNDQGLWVDVVHWVSXUVXDQWWRVWDWXWHDQGWKDWFHUWDLQWUXVWIXQGVZHUHLQKDQGVRIVXSHULQWHQGHQWRIEDQNVSXUVXDQWWRVWDWXWHDQGWKDWEDQNH[DPLQHUKDGGLVDOORZHGFODLPVIRUVXFKIXQGVDVSUHIHUUHGFODLPV
57 Nev. 41, 42 (1936) Lyon County Bank v. Lyon County Bank
trustee under trust deed pursuant to which bank had foreclosed trust deed and procured appointment as
receiver empowered to collect and disburse trust fund for bondholders of railroad; that bank examiner
took charge of bank pursuant to banking laws, and thereafter state superintendent of banks took charge
of bank and its assets pursuant to statute; and that certain trust funds were in hands of superintendent of
banks pursuant to statute, and that bank examiner had disallowed claims for such funds as preferred
claims.
3. Banks and Banking.In suit by bank as trustee of railroad against bank and state superintendent of bank, supreme court held
required to presume that state bank examiner had good and sufficient reasons under statute to take
possession of property and business of bank and administer affairs thereof, where complaint alleged thatstate ba