Nevada Reports 1975 (91 Nev.) PDF

91 Nev.
1, 1 (1975)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 91
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91 Nev. 1, 1 (1975) Patton v. Warden
CHARLES THOMAS PATTON, Jr., Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 7287
January 6, 1975 530 P.2d 107
Appeal from an order denying post-conviction relief entered in the Second Judicial District
Court, County of Washoe; John F. Sexton, Judge.
After pleading guilty to a charge of assault with intent to rape and being sentenced to a
term of ten years in the state prison, petitioner brought an action for post-conviction relief,
claiming that his guilty plea was involuntarily made. The district court denied relief, and
petitioner appealed. The Supreme Court held that the sentencing judge's canvass was
adequate despite the fact that no express waiver was obtained from defendant concerning his
right to confrontation and to trial by jury and his privilege against self-incrimination.
Affirmed.
91 Nev. 1, 2 (1975) Patton v. Warden
Gary A. Sheerin, State Public Defender, and A. D. Demetras, Deputy Public Defender, for
Appellant.
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and
Kathleen M. Wall, Deputy District Attorney, Washoe County, for Respondent.
Criminal Law.
Sentencing judge's canvass prior to accepting defendant's plea of guilty to charge of assault with
intent to rape was adequate despite failure to obtain express waiver from defendant of his right to
confrontation and to trial by jury and his privilege against self-incrimination.
OPINION
Per Curiam:
Charles Thomas Patton, Jr., pleaded guilty to the charge of assault with intent to commit
rape and was sentenced to a term of ten years in the Nevada State Prison.
The present appeal is taken from the order denying appellant's petition for post-conviction
relief and is based on the theory that his guilty plea was involuntarily made.
Appellant asserts, and the record supports him, that the sentencing judge gained from him
no express waiver of the three constitutional rights mentioned in Boykin v. Alabama, 395
U.S. 238 (1969) (the right to confrontation and to trial by jury and the privilege against
self-incrimination). However, we have held that there need be no such express waiver when
an accused is represented by counsel and it appears from the record that the guilty plea was
otherwise voluntarily and intelligently entered with knowledge of its consequences.
Armstrong v. Warden, 90 Nev. 8, 518 P.2d 147 (1974).
The record shows that the sentencing judge's canvass was adequate under the requirements
of Armstrong. Cf. Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403 (1973).
Affirmed.
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91 Nev. 3, 3 (1975) Colonial Leasing, Inc. v. Taylor
COLONIAL LEASING, INC., a Corporation, Appellant,
v. WILLIAM J. TAYLOR, Respondent.
No. 7462
January 15, 1975 530 P.2d 762
Appeal from judgment; Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Action to recover damages for breach of an implied warranty that motor home leased by
plaintiff from defendant was fit for the purpose for which it was to be used. The district court
entered judgment in favor of plaintiff, and defendant appealed. The Supreme Court held that
there was substantial evidence to support the trial court's finding of breach and damages, and
there was no prejudicial legal error.
Affirmed.
M. Gene Matteucci, of Las Vegas, for Appellant.
Jones, Jones, Bell, LeBaron, Close, Bilbray and Kaufman, and Donald R. Davidson, III, of
Las Vegas, for Respondent.
Sales.
In action to recover damages for breach of an implied warranty that motor home leased by plaintiff
from defendant was fit for the purpose for which it was to be used, substantial evidence supported trial
court's finding of breach and damages.
OPINION
Per Curiam:
In this action to recover damages for breach of an implied warranty that the Dodge Motor
Home leased by the plaintiff-respondent from the defendant-appellant was fit for the purpose
for which it was to be used, there is substantial evidence to support the trial court's finding of
breach and damages, and we perceive no prejudicial legal error.
Affirmed.
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91 Nev. 4, 4 (1975) Christensen v. Christensen
STEVEN M. CHRISTENSEN and KENNETH ROSS CHRISTENSEN, Appellants, v.
JAKICA CHRISTENSEN, Respondent.
No. 7452
January 15, 1975 530 P.2d 754
Appeal from summary judgment; Second Judicial District Court, Washoe County; John
W. Barrett, Judge.
Widow and sons by prior marriage of insured contested for the proceeds of a life insurance
policy. The district court rendered summary judgment for the widow, and sons, who were
named beneficiaries, appealed. The Supreme Court, Thompson, J., held that since the gift of
community funds of $66 expended for policy premiums by the husband without his wife's
consent was not unreasonable in relation to the whole of the community estate, which was
valued at $7,177.12, the expenditure of the funds for a life policy naming the insured's sons as
beneficiaries was not fraud upon the wife, and she could not recover any of the premiums
paid or the proceeds of the policy.
Reversed.
Hale and Belford and Steve Lane, of Reno, for Appellants.
Maurice J. Sullivan, of Reno, for Respondent.
1. Husband and Wife; Insurance.
During marriage husband may insure his life in favor of his parents or children by former marriage,
paying premiums out of community funds, as long as he is fulfilling a duty, even though it be only a moral
one, to provide for such relatives, and so long as community funds so expended are not unreasonably out of
proportion to other community assets remaining, and where husband has done so, there is no fraud upon the
wife and she cannot recover any premiums paid or proceeds of policy. NRS 123.230.
2. Insurance.
Since husband's gift of community funds of $66 without wife's consent for premiums on life policy
naming sons by former marriage as beneficiaries was not unreasonable in relation to whole of community
estate valued at $7,177.12, there was no fraud upon wife and she could not recover any of premiums paid
or proceed of policy, despite contention that gift of insurance proceeds of $5,000 was
unreasonable in relation to the community estate.
of policy, despite contention that gift of insurance proceeds of $5,000 was unreasonable in relation to the
community estate.
OPINION
By the Court, Thompson, J.:
This litigation concerns entitlement to $5,000 of life insurance provided under a group
insurance policy issued by Founders Life Insurance Company. Harry S. Christensen, as an
employee of the City of Reno, was a member of the group covered by the policy. He died
intestate. The adversaries are, on one side, Jakica Christensen, his surviving widow, and on
the other, Steven and Kenneth Christensen, his sons of a prior marriage and the named
beneficiaries of the policy.
Since there existed no genuine issue as to any material fact, each side moved for summary
judgment. The district court entered summary judgment for the widow. The sons have
appealed asserting that they, rather than their stepmother, should have prevailed.
The insurance policy was purchased through a payroll deduction of $3.30 per month from
Harry's salary, and all such deductions were made after Harry's marriage to Jakica. The total
sum of $66 had been deducted for such insurance as of his death. Jakica did not know that
Steven and Kenneth were the named beneficiaries. Upon Harry's death, the community estate
was valued at $7,177.12. Of that amount, $2,095.02 was money, and the balance was the
estimated value of many items of personal property.
The sons contend that their father's designation of them as beneficiaries should be honored
since statute vested him with the entire management and control of the community property.
1
Moreover, they point to the fact that the use of community funds was very small since only
$66 had been paid out in premiums.
The widow argues that her deceased husband could not make a gift of a portion of their
community property without obtaining her consent since her interest therein was not a mere
expectancy, but rather a right vested in her at all times during the marriage [In Re Williams,
40 Nev. 241, 262, 161 P. 741 {1916)], which right vested upon acquisition of the
community asset.
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1
NRS 123.230: The husband shall have the entire management and control of the community property, with
the like power of disposition thereof, except . . . .
(1916)], which right vested upon acquisition of the community asset. In Re Condos's Estate,
70 Nev. 271, 277, 266 P.2d 404 (1954). Additionally, she presses the contention that a gift of
life insurance proceeds of $5,000 is unreasonable in relation to the whole of the community
estate valued at $7,177.12, and for that reason must be annulled on the doctrine of Nixon v.
Brown, 46 Nev. 439, 449, 214 P. 524 (1923).
1. The broad question as to whether a husband, by virtue of being vested with the entire
management and control of the community property, may make a gift of a portion thereof
without his wife's consent, was considered in Nixon v. Brown, supra. That case concerned a
voluntary gift of community real property by the husband in which the wife did not join nor
give consent. The court announced a standard for determining the validity of a husband's gift
of a portion of the community property without the consent of his wife. That standard: The
husband may make a voluntary disposition of a portion of the community property,
reasonable in reference to the whole amount, in the absence of a fraudulent intent to defeat
the wife's claims. Id. at 456. The court upheld the gift in Nixon v. Brown since its value,
some $50,000 in relation to the community estate in excess of $1,000,000 was not
unreasonable, nor was there any suggestion of fraud.
The Nixon case concerned a completed gift during the lifetime of the husband at a time
when the community of husband and wife was in existence. The instant matter involves a gift
to take effect upon the death of the husband when there is no longer a community to protect.
To this extent the cases are different, and such difference has created problems for courts of
community property states. See Huie, Community Property Laws as Applied to Life
Insurance, 18 Texas L.Rev. 121 (1940); Annots. 114 A.L.R. 545; 168 A.L.R. 342.
[Headnote 1]
The rule of Nixon v. Brown is not dissimilar to that of Texas which recognizes the right of
the husband to make moderate gifts from the community property, not excessive and not in
fraud of the wife's rights. With regard to insurance, Texas holds that a husband may, during
marriage, insure his life in favor of his parents or of children by a former marriage, and pay
the premiums with community funds, and that so long as he is fulfilling a duty, even though it
be only a moral one to provide for such relatives, and so long as the community funds so
expended are not unreasonably out of proportion to the other community assets remaining,
there is no fraud upon the wife and she cannot recover any of the premiums so paid or the
proceeds of the policy.
wife and she cannot recover any of the premiums so paid or the proceeds of the policy. Jones
v. Jones 146 S.W. 265 (Tex.Civ.App. 1912); Rowlett v. Mitchell 114 S.W. 845
(Tex.Civ.App. 1908).
[Headnote 2]
This view appeals to us as sensible since it focuses upon community funds expended
rather than upon the face amount of the policy, and is, we think, wholly compatible with the
reasoning of Nixon v. Brown. Accordingly, we reverse the judgment entered below since the
gift of community funds of $66 for premiums is not unreasonable in relation to the whole of
the community estate valued at $7,177.12, and direct the district court to enter judgment for
Steven and Kenneth Christensen.
Gunderson, C. J., and Batjer, Zenoff, and Mowbray, JJ., concur.
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91 Nev. 7, 7 (1975) Matthews v. Warden
MICHAEL MATTHEWS, Appellant, v. WARDEN,
No. 7624
January 16, 1975 530 P.2d 760
Appeal from an order denying post-conviction relief; Second Judicial District Court,
Washoe County; Grant L. Bowen, Judge.
The Supreme Court held that second petition for post-conviction relief, premised on the
contention that petitioner's guilty plea was involuntarily entered, was properly denied, where
petitioner's first post-conviction petition did not challenge the voluntariness of his plea and
where the second petition failed to explain why petitioner had previously failed to assert such
challenge.
Affirmed.
Horace R. Goff, State Public Defender, and G. A. Sheerin, Deputy State Public Defender,
for Appellant.
91 Nev. 7, 8 (1975) Matthews v. Warden
Criminal Law.
Second petition for post-conviction relief, premised on the contention that petitioner's guilty plea was
involuntarily entered, was properly denied, where petitioner's first post-conviction petition did not
challenge the voluntariness of his plea and where the second petition failed to explain why petitioner had
previously failed to assert such challenge.
OPINION
Per Curiam:
Matthews, who had pleaded guilty to the charge of uttering a forged instrument, appeals
from an order denying his second petition for post-conviction relief premised on the
contention that his guilty plea was involuntarily entered. Since his first post-conviction
petition did not challenge the voluntariness of his plea, and since his second petition did not
explain why he had previously failed to assert such challenge, the district court denied relief.
This was permissible. Rogers v. Warden, 86 Nev. 359, 468 P.2d 993 (1970); Johnson v.
Warden, 89 Nev. 476, 515 P.2d 63 (1973).
Affirmed.
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91 Nev. 8, 8 (1975) Sheriff v. Valdez
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. MARK VALDEZ, ALFRED OLEA
ENRIQUEZ and DONALD ELMER SHAPIRO, Respondents.
No. 8010
January 16, 1975 530 P.2d 759
Appeal from order granting writ of habeas corpus, Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
The Supreme Court held that the district court did not err in determining that the
prosecution failed to present sufficient evidence to establish probable cause to hold
petitioners for trial.
Affirmed.
Robert List, Attorney General, Carson City; George Holt, District Attorney, and Sherman
H. Simmons, Deputy District Attorney, Clark County, for Appellant.
George D. Frame, of Las Vegas, for Respondents Mark Valdez and Alfred Olea Enriquez.
91 Nev. 8, 9 (1975) Sheriff v. Valdez
Douglas G. Crosby, of Las Vegas, for Respondent Donald Elmer Shapiro.
Criminal Law.
Evidence was insufficient to establish probable cause to hold petitioners for trial. NRS 171.206.
OPINION
Per Curiam:
We find no error in the district court's determination that the prosecution failed to present
sufficient evidence to establish probable cause to hold appellants for trial. NRS 171.206;
State v. Luchetti, 87 Nev. 343, 486 P.2d 1189 (1971).
The district court's order granting habeas corpus is affirmed.
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91 Nev. 9, 9 (1975) Riddle v. Warden
BILLY DON RIDDLE, Appellant, v. WARDEN,
No. 7279
January 16, 1975 530 P.2d 757
Appeal from judgment denying post-conviction relief entered on January 30, 1973. Second
Judicial District Court, Washoe County; John F. Sexton, Judge.
The Supreme Court held that defendant's pleas of guilty to two counts of robbery were
voluntary entered and that defendant's contentions that pleas were induced by promises of
leniency and that he made ineffective waiver of his right to jury were improperly raised on
appeal.
Affirmed.
Rodlin Goff, State Public Defender, and A. D. Demetras, Deputy Public Defender, of
Carson City, for Appellant.
1. Criminal Law.
Statute governing court's acceptance of guilty pleas requires that accused understand nature of charges
against him and consequences of his plea. NRS 174.035, subd. 1.
2. Criminal Law.
Defendant, who stated he understood two counts of robbery alleged in information against him, who
stated he had discussed entry of his pleas with his counsel, who stated he understood significance of his
guilty pleas, and who stated he understood that sentence was from one to fifteen years, entered voluntary
pleas of guilty in proceedings which complied with statute. NRS 174.035, subd. 1.
3. Criminal Law.
Defendant's contention that his guilty pleas to robbery were induced by promises of leniency, which was
raised for first time on appeal from denial of petition for post-conviction relief was not considered by
Supreme Court.
4. Criminal Law.
Contention of defendant, who pleaded guilty, that he made ineffective waiver of his right to jury was
improperly raised in Supreme Court on appeal from denial of post-conviction relief, in light of statute
providing that if defendant's conviction was upon plea of guilty, all claims for post-conviction relief are
waived except claim that plea was involuntarily entered. NRS 177.375, subd. 1.
OPINION
Per Curiam:
On December 12, 1968 Billy Don Riddle pleaded guilty to two counts of robbery for
which he was sentenced to two five-year terms to run consecutively in the Nevada State
Prison. Riddle was represented by counsel at that time.
Riddle asserts on appeal from denial of his petition for post-conviction relief that his guilty
pleas were improperly entered because they were made involuntarily without understanding
in violation of NRS 174.035(1), and that they were induced by promises of leniency; and that
as a result of the improper entry of said pleas he waived his right to a jury.
[Headnote 1]
1. Riddle acknowledges that the requirements of Boykin v. Alabama, 395 U.S. 238
(1969), and Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970), not being retroactive are
inapplicable. Bacon v. State, 90 Nev. 368, 527 P.2d 118 (1974); Mathis v. Warden, 86 Nev.
439, 471 P.2d 233 (1970); see also Armstrong v. Warden, 90 Nev. 8, 518 P.2d 147 (1974).
Riddle's guilty pleas are thus governed by the requirements of NRS 174.035(1),
1
which was
in effect at the time of entry of the pleas.
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1
NRS 174.035(1) states, A defendant may plead not guilty, guilty or, with the consent of the court, nolo
contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo
contendere without first addressing the defendant personally and determining that the plea is made voluntarily
with understanding of the nature of the charge and consequences of the plea.
the pleas. NRS 174.035(1) requires that the accused understand the nature of the charges
against him and the consequences of his plea. Stocks v. Warden, 86 Nev. 758, 476 P.2d 469
(1970).
[Headnote 2]
The record on appeal indicates full compliance with these requirements. The trial court at
the time of acceptance of the guilty pleas questioned Riddle as to his understanding of the two
counts alleged in the information against him, if he had discussed the entry of his plea with
his counsel, if he understood the significance of his guilty plea to two separate counts of
robbery and if he understood that the sentence was from one to fifteen years and that it was
within the authority of the court to allow the two sentences to run consecutively. The
appellant answered in the affirmative to all questions asked.
[Headnote 3]
2. Riddle also contends that the guilty pleas were induced by promises of leniency, but
this assignment of error is raised for the first time on appeal from the denial of his petition for
post-conviction relief and will not be considered by this court. Sherman v. State, 89 Nev. 77,
506 P.2d 417 (1973).
[Headnote 4]
3. NRS 177.375(1) provides, If the petitioner's conviction was upon a plea of guilty, all
claims for post-conviction relief are waived except the claim that the plea was involuntarily
entered. Riddle's contention of an ineffective waiver of his right to a jury is improperly
raised.
Affirmed.
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91 Nev. 11, 11 (1975) Snarr Advertising, Inc. v. Sturgeon
SNARR ADVERTISING, INC., Appellant, v. RAYMOND L. STURGEON, dba
STURGEON'S LOG CABIN AND CAFE, Respondent.
No. 7541
January 16, 1975 530 P.2d 762
Appeal from order granting a Rule 41(b) dismissal; Sixth Judicial District Court, Pershing
County; Thomas J. O'Donnell, Judge.
The Supreme Court held that where appellant did not docket with reviewing court a
transcript of the trial, nor a substitute therefor, reviewing court would assume that the
evidence supported the trial court's implicit determinations.
91 Nev. 11, 12 (1975) Snarr Advertising, Inc. v. Sturgeon
therefor, reviewing court would assume that the evidence supported the trial court's implicit
determinations.
Affirmed.
Hale and Belford, and Steve Lane and Stephen V. Novacek, of Reno, for Appellant.
Belanger and Wagner, of Lovelock, for Respondent.
Appeal and Error.
Where appellant did not docket with reviewing court a transcript of the trial, nor a substitute therefor,
reviewing court would assume that the evidence supported the trial court's implicit determinations in
granting a Rule 41(b) dismissal. NRCP 41(b).
OPINION
Per Curiam:
We affirm the order of the district court granting a Rule 41(b) dismissal since the appellant
has not docketed with this court a transcript of the trial, nor a substitute therefor, and, we
must, therefore, assume that the evidence supported the trial court's implicit determinations.
City of Las Vegas v. Bolden, 89 Nev. 526, 516 P.2d 110 (1973); Meakin v. Meakin, 88 Nev.
25, 492 P.2d 1304 (1972).
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91 Nev. 12, 12 (1975) Stamps v. Warden
JAMES STAMPS, Appellant, v. WARDEN,
No. 7608
January 16, 1975 530 P.2d 763
Appeal from order denying post-conviction relief, First Judicial District Court, Carson
City; Frank B. Gregory Judge.
Petitioner, who had been sentenced to ten years in the penitentiary on his plea of guilty to
robbery, petitioned for post-conviction relief alleging that his plea had been involuntarily
made. The district court denied the petition without an evidentiary hearing and the petitioner
appealed. The Supreme Court held that petitioner was entitled to an evidentiary hearing for
determination of validity of his allegation that district attorney had promised probation for
petitioner and three codefendants in exchange for pleas of guilty.
had promised probation for petitioner and three codefendants in exchange for pleas of guilty.
Reversed and remanded.
Horace R. Goff, State Public Defender, and Gary A. Sheerin, Deputy Public Defender,
Robert List, Attorney General, and Robert A. Groves, Deputy Attorney General, Carson
City, for Respondent.
1. Criminal Law.
Post-conviction relief petitioner who alleged that guilty plea to robbery had been involuntarily made
because district attorney had promised probation to him and three codefendants in exchange for pleas of
guilty and who had been sentenced to ten years while one codefendant had been granted probation was
entitled to an evidentiary hearing for determination of validity of his allegation.
2. Criminal Law.
An accused who enters a plea of guilty upon the basis of an unequivocal promise by the prosecution is
entitled to withdraw his plea if that promise goes unfulfilled.
OPINION
Per Curiam:
Appellant was arrested with three male companions and charged with the crime of
robbery. All four men pleaded guilty. Stamps was sentenced to a ten year term in the Nevada
State Prison. One of his codefendants was granted probation.
Appellant subsequently petitioned for post-conviction relief, alleging that his guilty plea
had been involuntarily made. The facts which he claims support this allegation include a
promise of probation for all four defendants given by the District Attorney of Elko County in
exchange for their pleas of guilty.
1

[Headnotes 1, 2]
The district court denied appellant's petition without an evidentiary hearing. We have held,
on similar operative facts, that an appellant is entitled to an evidentiary hearing for the
determination of the validity of the allegation of the promise. Fine v. Warden, 90 Nev. 166,
521 P.2d 374 (1974). Such a hearing is necessary for it is well established that an accused
who enters a plea of guilty upon the basis of an unequivocal promise by the prosecution is
entitled to withdraw his plea if that promise goes unfulfilled. Id., citing Santobello v. New
York, 404 U.S. 257 {1971).
____________________

1
Although appellant alleged the promise of probation was made by the District Attorney of Elko County, the
record reflects that the guilty plea negotiations took place in Lander County, where the offense occurred.
enters a plea of guilty upon the basis of an unequivocal promise by the prosecution is entitled
to withdraw his plea if that promise goes unfulfilled. Id., citing Santobello v. New York, 404
U.S. 257 (1971).
We, therefore, reverse the order of the district judge and remand the case for an evidentiary
hearing to determine the veracity of Stamps' allegation of the promise.
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91 Nev. 14, 14 (1975) Petitti v. Sheriff
GARY PETITTI, Appellant, v. SHERIFF, CLARK
COUNTY, NEVADA, Respondent.
No. 8019
January 16, 1975 530 P.2d 758
Appeal from order denying pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
Petitioner who was ordered to stand trial for sale of controlled substance to a person under
21 years of age petitioned for writ of habeas corpus on ground that the evidence at
preliminary hearing was insufficient to establish probable cause. The district court entered
order denying pretrial petition and the petitioner appealed. The Supreme Court held that
where preliminary examination evidence was barren of any documents or testimony even
alluding to age of person to whom sale was purportedly made, the evidence was insufficient
to establish probable cause.
Reversed, with instructions to grant writ without prejudice to new proceeding.
Charles L. Garner and George D. Frame, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George Holt, District Attorney, and H. Leon
Simon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
In cases where age is an issue competent proof thereof is essential.
2. Criminal Law.
Where defendant was charged with having sold a controlled substance to a person under 21
years of age, preliminary examination evidence which was barren of any documents
or oral testimony alluding to the age of person to whom sale was purportedly made
was insufficient to establish probable cause.
91 Nev. 14, 15 (1975) Petitti v. Sheriff
substance to a person under 21 years of age, preliminary examination evidence which was barren of any
documents or oral testimony alluding to the age of person to whom sale was purportedly made was
insufficient to establish probable cause. NRS 171.206, 453.161, 453.321, subd.2(a)(1)(2).
OPINION
Per Curiam:
Gary Petitti was ordered to stand trial for sale of a controlled substance (diacetylmorphine,
commonly known as heroin) to a person under 21 years of age, a felony under NRS 453.321
and NRS 453.161.
In a pretrial habeas challenge he contended there was insufficient evidence adduced at the
preliminary examination to establish probable cause that he committed the charged offense,
as required by NRS 171.206. The district court denied habeas and Petitti argues the order of
the district court should be reversed. We agree.
Although the information charged that Petitti made a sale to a person under 21 years of
age, the record of the preliminary examination is barren of any document or testimony that
even alludes to the age of the person to whom the sale was purportedly made.
1

[Headnote 1]
In cases where age is an issue, competent proof thereof is essential.
2
Cf. Gay v. Sheriff,
89 Nev. 118, 508 P.2d 1 (1973).
[Headnote 2]
Accordingly, the district court should have granted the habeas petition. The district court's
order denying habeas corpus therefore is reversed, and the court is instructed to grant such
writ without prejudice to institution of such charges as the state may determine it can produce
evidence to prove.
____________________

1
The incumbent Clark County District Attorney did not occupy that office when these proceedings occurred.

2
The penalty appellant faces, if convicted of a sale to a person under the age of 21, is life imprisonment with
possibility of parole. NRS 453.321(2)(a)(2). If convicted of a sale to a person over the age of 21, the penalty
range is from 1 to 20 years imprisonment. NRS 453.321(2)(a)(1).
____________
91 Nev. 16, 16 (1975) Williams v. Warden
BILLY WILLIAMS, Appellant, v. WARDEN,
No. 7482
January 16, 1975 530 P.2d 761
Appeal from order denying writ of habeas corpus. First Judicial District Court, Carson
City; Frank B. Gregory, Judge.
Prisoner sought habeas corpus to secure release from imprisonment under life sentence as
an habitual criminal following conviction of crime of robbery. The district court denied writ,
and prisoner appealed. The Supreme Court held that where record which contained
defendant's history of mental illness and an evaluation of defendant by a court-appointed
psychiatrist raised serious doubt as to defendant's competency to stand trial, failure of trial
court to grant defendant a hearing on his mental competency required release of defendant
from imprisonment or retrial following competency hearing.
Reversed.
Rodlin Goff, State Public Defender, and Gary A. Sheerin, Deputy Public Defender, of
Robert List, Attorney General, and Robert A. Groves, Deputy Attorney General, of Carson
Habeas Corpus.
Where record which contained defendant's history of mental illness and an evaluation of defendant by
a court-appointed psychiatrist raised serious doubt as to defendant's competency to stand trial, failure of
trial court to grant defendant a hearing on his mental competency required release of defendant from
imprisonment or retrial following competency hearing.
OPINION
Per Curiam:
Billy Williams was convicted of the crime of robbery for which he was sentenced to life
imprisonment as an habitual criminal. Williams appealed to this court on March 7, 1969. We
affirmed. A petition for rehearing was subsequently denied and the Supreme Court of the
United States denied his petition for a writ of certiorari. Williams v. Nevada, 396 U.S. 916
(1969).
On July 27, 1971 the United States District Court of Nevada denied Williams' petition for
a writ of habeas corpus and on appeal from that denial the United States Court of Appeals,
Ninth Circuit, affirmed the denial on the grounds that Williams had not exhausted his
state remedies under NRS 34.360, our statutory habeas corpus provision.
91 Nev. 16, 17 (1975) Williams v. Warden
appeal from that denial the United States Court of Appeals, Ninth Circuit, affirmed the denial
on the grounds that Williams had not exhausted his state remedies under NRS 34.360, our
statutory habeas corpus provision. Williams v. Hocker, 463 F.2d 234 (9th Cir. 1972). On
January 12, 1973 Williams petitioned for a writ of habeas corpus to the First Judicial District
Court and said petition was denied without a hearing. Williams now seeks reversal of that
denial.
The United States Court of Appeals, Ninth Circuit, in considering Williams' appeal of
denial of his petition for habeas corpus, stated that Williams was entitled to a hearing on his
mental competency to stand trial under Pate v. Robinson, 383 U.S. 375 (1966). The record
before the court contained sufficient evidence to raise serious doubt about Williams'
competency to stand trial as indicated by his history of mental illness and the evaluation of a
court-appointed psychiatrist. Williams v. Hocker, supra.
We chose to follow the suggestion of the Ninth Circuit Court for otherwise an unnecessary
burden is placed on the U.S. District Court of the District of Nevada. Fine v. Warden, 90 Nev.
166, 521 P.2d 374 (1974); Rahn v. Warden, 88 Nev. 429, 498 P.2d 1344 (1972). The order of
the trial court is therefore reversed and we order Williams discharged from confinement
unless the State within a reasonable time elects to retry him. Should the State so elect,
Williams shall be given a special hearing to determine mental competency to stand trial. Pate
v. Robinson, supra; Krause v. Fogliani, 82 Nev. 459, 463, 421 P.2d 949 (1966).
Reversed.
____________
91 Nev. 17, 17 (1975) Rhodes v. State
ROBERT LOUIS RHODES, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 6935
January 20, 1975 530 P.2d 1199
Appeal from conviction of first degree murder in the Eighth Judicial District Court, Clark
County; William P. Compton, Judge.
The Supreme Court, Thompson, J., held that United States Supreme Court decision
proscribing death penalty did not require referral to juvenile division of defendant, who was
17 years old when charged homicide occurred; that testimony of witness whose identity was
learned as result of defendant's confessions to probation officers and policemen and
physical evidence discovered as result of the confessions were admissible even though
confessions themselves were inadmissible due to failure to warn defendant of his rights
to remain silent and to have counsel; and that error in permitting officer to testify that
defendant had admitted entering grocery store where killing occurred with intention of
robbing it was harmless in view of other overwhelming evidence.
witness whose identity was learned as result of defendant's confessions to probation officers
and policemen and physical evidence discovered as result of the confessions were admissible
even though confessions themselves were inadmissible due to failure to warn defendant of his
rights to remain silent and to have counsel; and that error in permitting officer to testify that
defendant had admitted entering grocery store where killing occurred with intention of
robbing it was harmless in view of other overwhelming evidence.
Affirmed.
Morgan D. Harris, Public Defender, and Robert Stott, Deputy Public Defender, Clark
County, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and
Charles L. Garner and Daniel M. Seaton, Deputy District Attorneys, Clark County, for
Respondent.
1. Indictment and Information.
Allegation in indictment concerning means by which charged crime has been committed is essential.
Trial transcript may be used to augment faulty indictments if accused elects to proceed to trial rather than
pursuing challenge to sufficiency of indictment by appropriate writ.
Conviction of first degree murder was not invalid on theory that indictment, which contained no
allegation as to means by which charged crime was committed, was fatally defective where defendant, after
losing challenge to sufficiency of indictment, failed to pursue point further by appropriate writ and
transcript showed that defendant had shot victim.
4. Infants.
If minor charged with a capital offense is 16 years or older, matter need not be referred to juvenile
division. NRS 62.050, 62.080.
5. Infants.
United States Supreme Court decision proscribing death penalty did not require referral to juvenile
division of defendant, who was 17 years old when murder with which he was charged occurred, on theory
that murder was no longer a capital crime, and did not deprive district court of authority to hear case
without certification that defendant should stand trial in that court as an adult. NRS 62.050, 62.080.
6. Criminal Law.
Failure of probation officers to warn defendant of his rights to remain silent and to have counsel prior to
interrogating him fatally infected subsequent interrogation by police officers after defendant had made
confession to probation officers and probation officers had notified police that defendant
should be interrogated and, therefore, confessions given both to probation officers
and police officers were inadmissible even though police officers did warn defendant
of his rights prior to interrogation.
officers had notified police that defendant should be interrogated and, therefore, confessions given both to
probation officers and police officers were inadmissible even though police officers did warn defendant of
his rights prior to interrogation.
7. Criminal Law.
Improper refusal to grant defendant's motion to suppress confessions was harmless where confessions
were not offered in evidence at trial.
8. Criminal Law.
Testimony of witness whose identity was learned as result of defendant's confessions and physical
evidence discovered as result of confessions were admissible even though confessions themselves were
inadmissible due to failure to warn defendant of his rights to remain silent and to have counsel, where
defendant's confessions were not compelled and there was no direct infringement upon his privilege against
self incrimination. U.S.C.A.Const. Amend. 5.
9. Criminal Law.
Evidence that defendant had admitted entering grocery store where charged homicide occurred with
intention of robbing it, which evidence was inadmissible to prove guilt during presentation of State's case
in chief due to failure to warn defendant of his rights to remain silent and to have counsel, did not acquire
status of admissibility in rebuttal simply because defendant offered medical opinion evidence as to his
mental capacity.
10. Criminal Law.
In prosecution for murder in the first degree, error in permitting officer to testify that defendant had
admitted entering grocery store where charged homicide occurred with intention of robbing it was harmless
in view of other overwhelming evidence.
11. Criminal Law.
Trial court was not required to instruct on subject of voluntariness of defendant's confession to police
officers where such confessions were not offered in evidence.
12. Criminal Law.
Confession which accused voluntarily made to a friend was not embraced within rule requiring
instruction that jury must find that a confession is voluntary before considering it.
OPINION
This appeal is from judgment and sentence entered upon jury verdict finding Robert Louis
Rhodes guilty of first degree murder and directing his imprisonment for life with the
possibility of parole. We have considered the several claims of error and conclude that
Rhodes received a fair trial and that the judgment and sentence may stand. [Headnotes 1, 2]
[Headnotes 1, 2]
1. First, it is claimed that the grand jury indictment is fatally defective since it alleged
nothing whatever concerning the means by which the crime was committed. Of course, such
an allegation is essential. Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972).
Here, however, Rhodes, after losing his challenge to the sufficiency of the indictment in the
district court, failed to pursue his point further by appropriate writ. Had he done so,
prohibition would have issued without prejudice to a new and sufficient accusation. Simpson
v. District Court, supra. Instead, he elected to proceed to trial. Consequently, his present
attack upon the sufficiency of the indictment is to be judged by a reduced standard which
permits our examination of the trial transcript to augment the faulty indictment. Simpson v.
District Court, supra.
[Headnote 3]
The transcript shows that Rhodes shot his victim. Indeed, he does not now assert that the
homicide was otherwise accomplished, that his ability to defend was impaired by reason of
the faulty indictment, or that he was in any way surprised or prejudiced thereby. It is apparent
that he proceeded to trial upon the indictment as drawn because it was not important to him to
compel an allegation concerning the means by which the homicide was committed. We,
therefore, deny his present challenge.
2. Rhodes was 17 years old when the homicide occurred. Since he was a minor he
contends that the charge against him fell within the jurisdiction of the juvenile court and that
the district court lacked authority to hear the case without a certification that he stand trial in
that court as an adult.
[Headnotes 4, 5]
It is clear that if a minor, 16 years or older, commits a capital offense, the matter need not
be referred to the juvenile division. NRS 62.080; 62.050; Lehmann v. Warden, 87 Nev. 24,
480 P.2d 155 (1971). Rhodes argues, however, that the subsequent decision of the United
States Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972), nullifies the mentioned
statute and our Lehman opinion. Although Furman v. Georgia, supra, proscribed the death
penalty, it did not purport to treat the underlying gravity of capital offenses for other
purposes. We have so ruled with regard to bail, Jones v. Sheriff, 89 Nev. 175, 509 P.2d 824
(1973), and now extend that view to encompass the present issue. Juvenile court certification
is not necessary when a minor is charged with a capital offense.
necessary when a minor is charged with a capital offense. Lehmann v. Warden, supra,
continues to be viable.
3. Robert Born was shot in the head while at his grocery store in Las Vegas. The cash
register was pried open and the money stolen. Rhodes was on probation when the killing
occurred. His supervisory probation officer had received word that Rhodes was in possession
of certain guns and had stated that people were looking for someone who had killed a grocer.
Consequently, that officer and a companion probation officer decided to question Rhodes
concerning his possible involvement with the homicide.
The interrogation occurred at the jail where Rhodes was in custody on other charges. The
juvenile officers did not protect Rhodes' privilege against self incrimination by first warning
him of his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966). During the course
of their conversation Rhodes confessed that he had killed Born. Although the Miranda
warnings were not given to assure Rhodes' awareness of his constitutional rights, there is
absolutely nothing otherwise to suggest that his confession was coerced or involuntarily
given. Indeed, the record reflects that Rhodes desired to tell his story of the crime in an effort
to relieve destructive inner feelings, and that his confession was voluntarily given without
coercion, actual or psychological.
The probation officers immediately notified the police that Rhodes should be interrogated,
but did not tell them of the confession. The police came to the jail that same day, warned
Rhodes of his constitutional rights in accordance with the commands of Miranda, and
proceeded to question him. Rhodes orally confessed fully to them, and then signed a
typewritten confession. The probation officers to whom Rhodes previously had confessed
were present during the interrogation by the police officers.
[Headnotes 6, 7]
Before trial, counsel for Rhodes moved to suppress all confessions. That motion was
granted with regard to the confession before the probation officers, but denied as to the
others. Since the successive confessions appear to have been a part of one continuous process,
the failure of the first interrogators to honor the constitutional rights of Rhodes fatally
infected the subsequent interrogation which followed in unbroken sequence. White v. State,
82 Nev. 304, 308, 417 P.2d 592 (1966). Accordingly, the motion to suppress should have
been granted as to all confessions.
as to all confessions. However, this is of no moment in the case at hand since none of the
confessions was offered in evidence at trial.
1

The identity of a key prosecution witness was, however, secured from the confessions, and
also information which led to the discovery of other physical evidence: a gun, metal
fragments, and latent fingerprints. The testimony of the witness, a friend of Rhodes to whom
he also had confessed his crime, and the mentioned physical evidence was received at trial
over the objection that all such evidence was the fruit of a poisonous tree, that is, evidence
secured as the result of illegal confessions and, therefore, inadmissible.
Hence, the issue: May the fruits of confessions given in violation of the procedural
safeguards of Miranda be received in evidence if the confessions otherwise are shown to have
been freely and voluntarily given?
a) On the evening of the homicide, Rhodes went to the home of a female friend, Patricia
Lennon. During the course of their conversation, he told her that he had gone to the grocery
store to rob it, hit the proprietor and then shot him, and had pried the cash register open with a
screw driver. He also showed her the gun that he had used. She testified to those admissions,
and to other statements made by Rhodes. All such statements made by Rhodes were
volunteered, voluntary and admissible. Cf. State v. Billings, 84 Nev. 55, 436 P.2d 212 (1968),
where volunteered and voluntary statements to a police officer which were not the result of
police interrogation, were held to be admissible. Obviously, the statements made by Rhodes
to Patricia Lennon have nothing whatever to do with his Fifth Amendment privilege against
self incrimination, and he concedes this to be so. He does contend, however, that since the
identity of Patricia became known to the police by reason of illegal confessions to them, she
was barred from testifying.
[Headnote 8]
This question recently was considered by the United States Supreme Court in Michigan v.
Tucker, 417 U.S. 433 (1974). The Court there ruled that the testimony of such witness need
not be excluded where there has been no direct infringement upon the suspect's privilege
against compulsory self incrimination, but only a violation of the prophylactic rules which
Miranda developed to protect that right. As already noted, the confessions were not
compelled.
____________________

1
Inculpatory statements given by Rhodes to the police officer (not his full confession) were received in
evidence during the State's rebuttal of the defendant's case, and will later be discussed.
confessions were not compelled. There was no direct infringement upon Rhodes' privilege
against self incrimination. In line with Michigan v. Tucker, supra, the testimony of the
witness Lennon properly was received.
b) The reasoning of Tucker, supra, with regard to the identity of a witness applies with
equal force to real or physical evidence which becomes known to the police through
inadmissible confessions. Consequently, the gun, metal fragments and fingerprints properly
were admitted since the confessions themselves were not compelled.
4. Rhodes did not testify. The defense which he proffered through expert medical
testimony centered on the proposition that at the time of the crime Rhodes' mental state was
such that he was incapable of forming a specific intent to rob or of premeditating murder. The
State countered this evidence with expert medical evidence of its own.
In addition, however, the State offered, and the court, over objection, received testimony
from one of the police officers to whom Rhodes had confessed. Although that officer did not
relate the full confession, he was allowed to testify that Rhodes admitted entering the grocery
store with the intention of robbing it. It was, and is the State's position that such inculpatory
admissions were properly received to rebut the defendant's expert testimony.
[Headnote 9]
The trial court erred in allowing the police officer to so testify. As already noted, the State
could not have used such testimony to prove guilt during the presentation of its case in chief
and did not attempt to do so. That evidence did not acquire the status of admissibility simply
because the defendant offered medical opinion evidence as to his mental capacity.
[Headnote 10]
In the context of this case, however, we believe that the error was harmless beyond a
reasonable doubt. Harrington v. California, 395 U.S. 250 (1968); Chapman v. California, 386
U.S. 18 (1967). The jury had already listened to the volunteered and voluntary confession of
the defendant as related by the witness Lennon. Other physical evidence tying the defendant
to the crime also had been received. The case against him was overwhelming.
[Headnotes 11, 12]
5. The final claim of error may summarily be dismissed. The court was not obliged to
instruct the jury on the subject of the voluntariness of the confessions made by Rhodes to
law officers since such confessions were not offered in evidence. Cf. Carlson v. State, S4
Nev. 534, 445 P.2d 157 {196S); Grimaldi v. State, 90 Nev. S3
the voluntariness of the confessions made by Rhodes to law officers since such confessions
were not offered in evidence. Cf. Carlson v. State, 84 Nev. 534, 445 P.2d 157 (1968);
Grimaldi v. State, 90 Nev. 83, 518 P.2d 615 (1974). His volunteered and voluntary statements
to the witness Patricia Lennon are not embraced by the so-called Massachusetts Rule with
which Carlson, supra, and Grimaldi, supra, were concerned.
The judgment of conviction and the sentence thereon are affirmed.
Gunderson, C. J., and Batjer, Mowbray, and Zenoff, JJ., concur.
____________
91 Nev. 24, 24 (1975) Kokkos v. Tsalikis
FOTINI KOKKOS, Appellant, v. STEPHEN
TSALIKIS, Respondent.
No. 7548
January 20, 1975 530 P.2d 756
Appeal from order setting aside default entered on August 20, 1973. Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
The Supreme Court held that an order setting aside entry of default was not an appealable
order.
Dismissed.
Ohrenschall & Ohrenschall, of Las Vegas, for Appellant.
Robert G. Legakes, of Las Vegas, for Respondent.
1. Appeal and Error.
Order setting aside entry of default was not appealable order. NRAP 3A (b).
Where no statutory authority to appeal is granted, no right exists. NRAP 3A(b).
OPINION
Per Curiam:
On June 18, 1973, a complaint was filed by Fotini Kokkos against Stephen Tsalikis, and
on August 7, 1973, a default was entered against Stephen Tsalikis. Tsalikis on August 15,
1973, filed a motion to set aside default and on August 20, 1973, an order setting aside the
default was entered.
91 Nev. 24, 25 (1975) Kokkos v. Tsalikis
order setting aside the default was entered. After a petition for review was granted and order
setting aside entry of default again entered on October 12, 1973, Kokkos appealed the order
setting aside entry of default.
[Headnotes 1, 2]
An order setting aside entry of default is not an appealable order under NRAP 3A(b).
1
NRAP 3A(b) designates the judgments and orders from which an appeal may be taken and
where no statutory authority to appeal is granted, no right exists. State v. Langan, 29 Nev. 459
(1907); Davis v. Davis, 66 Nev. 164, 207 P.2d 240 (1949).
Dismissed.
____________________

1
NRAP 3A(b) states, Appealable Determinations. An appeal may be taken:
(1) From a final judgment in an action or proceeding commenced in the court in which the judgment
is rendered.
(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, or vacating or refusing
to vacate an order appointing a receiver, or dissolving or refusing to dissolve an attachment, or changing
or refusing to change the place of trial, and from any special order made after final judgment.
(3) From an interlocutory judgment, order or decree made or entered in actions to redeem real or
personal property from a mortgage thereof or lien thereon, determining such right to redeem and directing
an accounting, and from an interlocutory judgment in actions for partition which determines the rights
and interests of the respective parties and directs partition, sale or division to be made.
(4) If an order granting or refusing to grant a motion to change the place of trial of an action or
proceeding is not directly appealed from within thirty (30) days, there shall be no appeal therefrom on
appeal from the judgment in the action or proceeding or otherwise, and on demand or motion of either
party to an action or proceeding the court or judge making the order changing or refusing to change the
place of trial of an action or proceeding shall make an order staying the trial of the action or proceeding
until the time to appeal from such order, changing or refusing to change the place of trial, shall have
lapsed; or if an appeal from such order is taken, until such appeal shall in the appellate court, or in some
other manner, be legally determined.
(5) No appeal may be taken from an order of a district court denying a motion for summary judgment;
however such an order may be reviewed by the Supreme Court in an original proceeding in mandamus
when from the record it appears that it is the duty of the district court to enter summary judgment.
____________
91 Nev. 26, 26 (1975) Wood v. Warden
ROBERT J. WOOD, Appellant, v. WARDEN,
No. 7283
January 22, 1975 530 P.2d 423
Appeal from order denying post-conviction relief, Second Judicial District Court, Washoe
County; John F. Sexton, Judge.
Affirmed.
Horace R. Goff, State Public Defender, Carson City, for Appellant.
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and
Kathleen M. Wall, Assistant Chief Deputy District Attorney, Washoe County, for
Respondent.
OPINION
Per Curiam:
The central issue raised in this appeal from an order denying post-conviction relief has
previously been considered and rejected in Williams v. State, 85 Nev. 169, 451 P.2d 848
(1969). Cert. denied, 396 U.S. 916 (1969). Other issues are equally without merit. Johnson v.
Warden, 89 Nev. 476, 515 P.2d 63 (1973); Howard v. State, 84 Nev. 599, 446 P.2d 163
(1968). Cf. Anglin v. State, 90 Nev. 287, 525 P.2d 34 (1974); Founts v. Warden, 89 Nev.
280, 511 P.2d 111 (1973).
The order of the district court is affirmed.
____________
91 Nev. 27, 27 (1975) LaPorta v. Broadbent
VALERIE FAITH LaPORTA, GENEVA M. TRENT, CHARLES SWIFT and R. HAL
SMITH, Petitioners, v. ROBERT BROADBENT, MYRON LEAVITT, JACK PETITTI, R. J.
DICK RONZONE, TOM WIESNER, AARON WILLIAMS and JAMES SAILOR
RYAN, as Commissioners of the CLARK COUNTY BOARD OF COMMISSIONERS;
MYRON LEAVITT, AARON WILLIAMS, JACK PETITTI, Individually; STANTON B.
COLTON; LORETTA BOWMAN; WILLIAM SWACKHAMER; COLLEEN
MESCHNACK; BETTY L. GILES; LOLA N. KIRK; THOMAS M. WILLIAMS; LENORE
W. CRAMER; JOHN E. JACK JEFFERY; WARREN FOOT; POLL SECURITY
GUARDS I-III; and JOHN DOES I-XX, Respondents.
No. 7986
January 28, 1975 530 P.2d 1404
Petition for peremptory writ of mandamus.
Candidate for election to state assembly sought a writ of mandamus to compel a revote in
one precinct due to an error in the conduct of the election. The Supreme Court, Zenoff, J.,
held that where, because of an error in repairing the voting mechanism, voters were unable to
cast a ballot for either candidate running for state assembly in their district, there must be a
revote in that precinct.
Writ granted.
Gunderson, C. J., and Thompson, J., dissented.
Rose, Norwood, Edwards & Hunt, Ltd., of Las Vegas, for Petitioners.
I. R. Ashleman, II, and Roy A. Woofter, District Attorney, Clark County, for Respondents.
1. Mandamus.
Where, because of short time between election and convening of new legislature, delay in determining
winner of seat in state assembly would hamper legislative process, Supreme Court entertained original
petition for mandamus brought by candidate demanding revote in precinct because of absence of ballots on
election day. NRS 293.465; Const. art. 6, 4.
2. Elections.
Ballot, in purview of statute requiring revote in precinct where ballots were absent on election day,
refers to machines, computers, or whatever voting device designates candidates.
computers, or whatever voting device designates candidates. NRS 293.465.
3. Elections.
Where, because of error in replacing faulty voting mechanism, ballots for state assembly candidates were
missing from precinct for approximately three hours on election day, revote in that precinct was required.
NRS 293.465.
4. Elections.
If election is prevented by absence of ballots, county commissioners shall order new election in precinct
where ballots were absent, and commissioners may not avoid revote by having voters appear and state how
they voted or how they would have voted. NRS 293.465.
OPINION
By the Court, Zenoff, J.:
Petitioner R. Hal Smith was a candidate for election in State Assembly District No. 22 on
November 5, 1974. For a period of approximately three hours of that day some voters who
signed to vote in Precinct No. 25 were unable to cast a ballot for Smith or the other candidate,
John E. Jack Jeffery, because a ballot had become stuck in the voting apparatus and the
mechanism had to be replaced. Unnoticed by anyone, the substituted mechanism did not
contain the names of Smith or Jeffery but was instead a list of candidates that belonged to
another precinct.
After the error was discovered the correct list was inserted but in the meantime an
unknown number of persons had cast their ballots but not for either Jeffery or Smith. Jeffery
won the election by six votes which Smith contests. He made demand upon the Board of
Commissioners of Clark County for a revote as provided in NRS 293.465.
1

The board voted three to three, one member absent, and because of the tie the request
before the board was denied. Without a record of the proceedings before the commissioners
we do not know in detail and with accuracy what evidence was presented.
____________________

1
NRS 293.465: Loss, destruction of ballots in Precinct or District; new election ordered by County
Commissioners. If an election is prevented in any Precinct or District by reason of the loss or destruction of the
ballots intended for that Precinct, or any other cause, the election officers for such Precinct or District shall
make an affidavit setting forth such fact and transmitted to the County Commissioners. Upon receipt of such
affidavit and upon application of any Candidate for office to be voted for by the registered voters of such
Precinct or District, the County Commissioners shall order a new election in such Precinct or District.
(Emphasis added.)
we do not know in detail and with accuracy what evidence was presented.
Petitioner sought a writ of mandamus from this court to compel the revote provided in the
statute. After conference between the parties before this court a majority hereof on December
13, 1974 issued a peremptory writ of mandamus that the Board of County Commissioners
order the revote in Precinct No. 25 of Henderson, Nevada, in accordance with the statute and
further provided that only those voters who appeared on November 5, 1974 in Henderson
Precinct No. 25 and signed to vote be permitted to cast ballots in the revote election. The
order also stated that absentee ballots, if any, heretofore cast for the November 5 election
shall be counted.
This is the written opinion with the dissent of two members to explain the writ of
mandamus.
[Headnote 1]
1. Under Article 6, Section 4 of the Nevada Constitution, this court has jurisdiction to
entertain petitions for mandamus. Usually we require that such requests be presented to a
district court first, but in this case we exercise our discretion in favor of an initial hearing
because the public interest requires an early determination of the issue. The legislature is
scheduled to commence January 20, 1975 and delay in the selection of this representative
would hamper the legislative process. To require the presentation to be first made to the
district court in all probability would end here in any event, thus we avoid the delay.
[Headnotes 2, 3]
2. NRS 293.465 is unequivocal on the subject of a faulty election when the ballots are
unavailable. If an election is prevented as it was here by absence of ballots the statute
specifically states that the county commissioners shall order a new election in the precinct
where the ballots were absent.
2

[Headnote 4]
Evidence before the county commissioners as to who and how many of the voters would
have voted for Smith or Jeffery would destroy the secrecy of their ballot and is not pertinent
when the question is what happens when the ballots aren't there but the voters are.
____________________

2
Our statutes have not been kept current with the transposition of voting machines to the present use of
computers. The distinction for the purposes of this case is not important however. Whatever voting device
designates the candidates is the ballot.
there but the voters are. The statute makes no provision that voters appear and state how they
would have voted nor how many.
The fundamentals of suffrage require that electors shall have the opportunity to participate
in elections and that the real will of the electors should not be defeated by errors in the
conduct of an election. NRS 293.127.
Writ granted.
Mowbray and Batjer, JJ., concur.
Gunderson, C. J., with whom Thompson, J., agrees, dissenting:
We do not feel the issue here is whether the fundamentals of suffrage require that electors
shall have the opportunity to participate in elections and that the real will of the electors
should not be defeated by errors in the conduct of an election.
As we view it, the issue is: Without any record before us and without notice, should this
court have mandated a partial new election allowing persons registered in one precinct to
have a second opportunity to vote again long after election day, even though few of them
used the defective voting device, though none then complained of loss of suffrage, and
though none has said he either wanted to or tried to vote for any assembly candidate? Or
again, should this court have intervened without record or notice, although nothing evidenced
prejudice to petitioner, though statistical probabilities indicated prejudice was highly unlikely,
and though political injustice and disfranchisement were likelier to follow than was political
justice?
Since respondent Jeffery in fact won again in the second, partial election our brethren have
allowed to his opponent, our differences with the majority now are academic, and accordingly
we state only the basics of our position.
First, we note that the majority are correct in saying: Without a record of the proceedings
before the commissioners we do not know in detail and with accuracy what evidence was
presented. Of course, it was petitioner's burden to bring this court a record impelling a
determination that the county commissioners' action was arbitrary and capricious. Toco v.
Gragson, 90 Nev. 131, 520 P.2d 616 (1974); State ex rel. Johns v. Gragson, 89 Nev. 478, 515
P.2d 65 (1973). And to us, it seems inappropriate to make such a finding without a record,
particularly since this court usually holds that an absent record is presumed to support
administrative or judicial action. Snarr Advertising, Inc. v. Sturgeon, 91 Nev. 11, 530 P.2d
762 (1975); City of Las Vegas v. Bolden, 89 Nev. 526, 516 P.2d 110 {1973); Meakin v.
Meakin, SS Nev. 25, 492 P.2d 1304 {1972); Leeming v. Leeming, S7 Nev. 530, 490 P.2d
342 {1971); Pfister v. Shelton, 69 Nev. 309
110 (1973); Meakin v. Meakin, 88 Nev. 25, 492 P.2d 1304 (1972); Leeming v. Leeming, 87
Nev. 530, 490 P.2d 342 (1971); Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239 (1952).
Second, we note the court here has not just acted without a record of the proceedings
before the county commission, but also without due notice to respondents. This court's rules
establish orderly procedures to frame and determine legal and factual issues in extraordinary
writ cases. See: NRAP 21. In this case, however, following an informal conference orally
scheduled by one justice, the court not only determined to entertain the petition for writ of
mandamus, but to grant it instanter. This not only required suspension of our rules, but we
believe contravened an express provision of Nevada law, requiring 10 days notice on
applications for peremptory writs of mandamus. NRS 34.200. Hence, under our prior
holdings, the court's action in this case seems void for want of requisite notice,
notwithstanding the presence of respondents' counsel when the court announced its intention
to grant a peremptory writ. State ex rel. Jurich v. McFadden, 43 Nev. 140, 182 P. 745 (1919);
see also, Turner v. Saka, 90 Nev. 54, 518 P.2d 608 (1974), and cases cited therein. What
makes this course of action appear especially inappropriate to us is that the court has
seemingly ignored a very difficult constitutional issue, i.e., whether our state Constitution
vests the Nevada Assembly with exclusive jurisdiction to decide whether faulty election
equipment materially has affected an election's outcome. (See: Nev. Const. Art. 4, 6, which
provides that [e]ach House shall judge the qualifications, elections and returns of its own
members.) By assuming that courts have jurisdiction, the court here reached a result exactly
contrary to one reached four years ago, in a proceeding involving the instant petitioner's 1970
opponent.
1
In light of our prior holding, it seems to us respondents' contention that the
Nevada Assembly has exclusive jurisdiction of the instant controversy was sufficiently
serious to warrant full briefing and consideration of the issue.
Third, many recitations of fact in the majority opinion are based entirely on arguments of
petitioner's counsel; for, as noted, petitioner's counsel brought us no record, and the majority's
ruling precluded respondents' counsel from doing so. However, it does seem agreed that only
6 to 10 voters used the defective device, which was the last in a line and used only when
others were in use.
____________________

1
Although this court did not articulate its reasoning in Koontz and Smith v. First Judicial District Court, No.
6528, this court held that a district court could not decide an election controversy caused by a defective voting
machine, and required that controversy to be judged by the Assembly.
defective device, which was the last in a line and used only when others were in use. It also
seems agreed that, if some of such voters attempted to vote for an assembly candidate, and
thus utilized the improperly labeled punch-holes above the names of petitioner Smith and
respondent Jeffery, then petitioner Smith almost surely benefited from these mistakes which
the majority assume took place. As petitioner's counsel concedes, the winning candidate in
the other assembly race, Nash Sena, whose name briefly appeared over petitioner's
punch-hole, ran like a scalded dog. Sena defeated his opponent, Billy K. Dedmon, by a
ratio of seven-to-two. Thus, the chances are remote that the brief appearance of Sena's name
over Smith's punch-hole caused the latter's loss, even assuming that some of the 6 to 10
voters who used the defective device endeavored to vote in the Sena-Dedmon race and thus
inadvertently marked their computer cards in favor of Smith or Jeffery.
Fourth, we note that at the time this court issued its peremptory writ, petitioner Smith had
mandamus proceedings pending in the lower court, set for hearing the following week. It
would, we submit, have been consistent with accepted practice to let the district court
proceed; for this court will not ordinarily entertain mandamus, when other adequate remedies
are available elsewhere. (By that time, incidentally, the record of proceedings before the
county commission could have been prepared, and what actually was presented to that body
would have been known.)
____________
91 Nev. 32, 32 (1975) Public Serv. Comm'n v. Community Cable
PUBLIC SERVICE COMMISSION OF NEVADA, and SOUTHWESTERN
IMPROVEMENT & INVESTMENT COMPANY, Doing Business as NEVADA
CABLEVISION COMPANY, Appellants, v. COMMUNITY CABLE TV, Respondent.
No. 7415
January 29, 1975 530 P.2d 1392
Appeal from judgment declaring void a certificate of public convenience and necessity of
the Public Service Commission and granting a certificate of public convenience and necessity
for the purposes of a cable antenna television system to a different applicant. First Judicial
District Court, Carson City; Richard L. Waters, Jr., Judge.
The Supreme Court, Zenoff, J., held that trial court did not err in failing to dismiss
complaint for lack of jurisdiction on ground that it was untimely; that fact that one
applicant needed waiver of FCC rule proscribing cross-ownership of cable TV systems and
television station resulted in applicant not qualifying as having equal ability with other
applicant to perform and Commission's refusal to consider significance of such was
arbitrary and capricious and violated statute.
ground that it was untimely; that fact that one applicant needed waiver of FCC rule
proscribing cross-ownership of cable TV systems and television station resulted in applicant
not qualifying as having equal ability with other applicant to perform and Commission's
refusal to consider significance of such was arbitrary and capricious and violated statute.
Affirmed.
[Rehearing denied March 24, 1975]
Robert List, Attorney General, and Glade L. Hall, Deputy Attorney General, Carson City;
Jones & Holt, of Las Vegas; Covington & Burling and Michael S. Horne, James W. Dyke, Jr.,
and Craig D. Miller, 888 Sixteenth Street, N.W., Washington, D.C. 20006, for Appellant
Nevada Cablevision Company.
Beckley, Singleton, DeLanoy & Jemison, Chartered, of Las Vegas, Ross, Crow &
Grayson, of Carson City, and Welch & Morgan, 3000 Farragut Building, Washington, D.C.
20006, for Respondent.
1. Public Service Commissions.
Within statute providing for judicial review of order of the Public Service Commission fixing rate, charge
or classification or any order fixing any regulations, practices or services, order means a final order and
not an interlocutory action of the Commission. NRS 704.540.
2. Administrative Law and Procedure.
Generally, qualities of administrative finality in order or determination are essential to invocation of
judicial review, even though applicable statute does not contain the word final.
3. Telecommunications.
Opinion of Public Service Commission to effect that determination of appropriate service areas for two
cable TV companies should not result in immediate issuance of certificate to each and that a compliance
order should be issued to each specifying conditions to be met, including obtaining licensing from FCC,
was not a final order of the Commission and was not subject to judicial review; thus, appeal taken more
than 90 days after opinion but within 90 days of issuance of certificates of public convenience and
necessity was timely. NRS 704.020, 704.330, 704.350, 704.540, 711.030, 711.080.
An appeal will not lie from an interlocutory order of Public Service Commission unless such order
deprives a party of substantial right or affects the merits. NRS 704.540.
FCC's minimal federal standards relating to qualifications of cable TV applicants and terms of franchise
are to be applied in first instance by local authorities in franchise selection process.
first instance by local authorities in franchise selection process. NRS 704.020, 704.330, 704.350,
711.030, 711.080.
Public Service Commission is to be aware of and apply FCC's cable TV standards and to select a
franchise holder whose qualifications are consistent with federal standards. NRS 704.020, 704.330,
704.350, 711.030, 711.080.
It was inappropriate for Public Service Commission to ignore FCC's cross-ownership rule in granting
certificate of public convenience and necessity for purposes of cable TV. NRS 704.020, 704.330,
704.350, 711.030, 711.080.
Where, before certificate of public convenience and necessity was issued for cable TV system, the FCC
issued rule precluding cross-ownership of cable TV system and television broadcast station in full or part
of same service area, the Public Service Commission erred in granting a certificate to applicant, 80 percent
of which was owned by such TV broadcast station. NRS 704.020, 704.330, 704.350, 711.030,
711.080.
Generally, proper function of court in reviewing determination made by administrative agency in granting
certificate of public convenience and necessity is to determine whether the agency acted within scope of its
authority, assuming that order complained of was reasonable, not made arbitrarily and in accordance with
law.
Duty of Public Service Commission with respect to applications for certificates of public convenience
and necessity to operate cable TV systems was to determine which of applicants was best qualified to
provide the proposed service and, in doing so, Commission was required to consider all factors which bore
upon public interest and a major consideration was ability of applicants to perform efficiently the service
for which the authority was requested. NRS 711.090.
Fact that one cable television system applicant could not operate beyond date some five years in the
future because of FCC rule with respect to cross-ownership was a matter which bore upon public interest
and prospective ability of that applicant to efficiently provide service for which authorization was
requested and should have been considered in determining whether to grant the certificate. NRS
711.090.
Facts that applicant for certificate of public convenience and necessity for cable TV system needed a
waiver of FCC rule proscribing cross-ownership resulted in applicant not qualifying as having an equal
ability with another applicant to perform and Public Service Commission's refusal to consider significance
of such was arbitrary, capricious and violated statute. NRS 704.020, 704.330, 704.350, 711.030,
711.080.
Opinion and order of Public Service Commission merely finding that two applicants were eligible for
certificates of public convenience to operate cable TV systems, if and when they met
certain proscribed conditions subsequently, did not give applicants "ownership
interest" in CATV system within FCC rule proscribing cross-ownership of CATV system
and TV broadcast station unless ownership interests were in existence on or before
stated date.
convenience to operate cable TV systems, if and when they met certain proscribed conditions subsequently,
did not give applicants ownership interest in CATV system within FCC rule proscribing cross-ownership
of CATV system and TV broadcast station unless ownership interests were in existence on or before stated
date.
14. Franchises.
Granting of certificate of public convenience and necessity to applicant whose ability to perform is
contingent upon occurrence of future events is not consistent with statutory requirement that each applicant
for certificate possess ability to perform efficiently a service for which authority is requested. NRS
711.090.
Position of applicant for certificate of public convenience and necessity for cable TV system that
cross-ownership problem arising as result of FCC rule proscribing cross-ownership of cable TV system and
broadcast station could be cured by possible occurrence of future events indicated that applicant's then
ability to perform was limited and speculative precluding granting of certificate, in view of statute requiring
that each applicant for certificate establish ability to perform efficiently the service for which authority was
requested. NRS 711.090.
Where one of two applicants for certificate for public convenience and necessity to operate cable TV
system in one-half of area requested clarification as to whether, if either applicant was unable to perform,
remaining applicant should be awarded all of area and Public Service Commission rejected petition for
clarification on ground that substance of request was implicit in the order, portion of court's judgment
directing Commission to issue one applicant a certificate encompassing entire area, upon finding that
certificate should not have been issued to the other, may have been superfluous but was not erroneous.
NRS 704.540.
OPINION
Community Cable TV and Nevada Cablevision Company were the successful applicants
before the Nevada Public Service Commission to construct and operate a community antenna
television system (CATV) in the greater Las Vegas, Nevada, area.
1

On May 5, 1969, the Public Service Commission issued an opinion and order which
concluded that the public convenience and necessity would be best served by granting the
application of Community Cable and Nevada Cablevision and, "no reasonable basis exists
for awarding preference to either Nevada Cablevision or Community Cable TV as the
applicant best suited to provide CATV service in Clark County; . . . Nevada Cablevision and
Community Cable TV are both equally qualified to provide such service. . . ."
____________________

1
NRS 704.020
1. As used in this chapter, public utility shall mean and embrace:
. . .
(f) Community antenna television companies.
NRS 711.030
1. CATV company means any person or organization which
of Community Cable and Nevada Cablevision and, no reasonable basis exists for awarding
preference to either Nevada Cablevision or Community Cable TV as the applicant best suited
to provide CATV service in Clark County; . . . Nevada Cablevision and Community Cable
TV are both equally qualified to provide such service. . . .
The effect of the May 5, 1969, order was to authorize both companies to provide CATV
service within Clark County, their respective service areas to each including approximately
50% of the population of Clark County but the order further provided that the respective
applications were granted subject to the terms and conditions set forth hereinafter. The
terms and conditions were that preliminary conferences were to be held for the purpose of
establishing and defining appropriate service areas after which each applicant was to be
issued a compliance order specifying the conditions to be met (including the obtaining of all
necessary licensing from the Federal Communications Commission) prior to the issuance of a
certificate of public convenience and necessity.
____________________
owns, controls, operates or manages a community antenna television system. . . .
NRS 704.330
1. Every public utility owning, controlling, operating or maintaining or having any contemplation of
owning, controlling or operating any public utility shall, before beginning such operation or continuing
operations or construction of any line, plant or system or any extension of a line, plant or system within
this state, obtain from the commission a certificate that the present or future public convenience or
necessity requires or will require such continued operation or commencement of operations or
construction.
The principal Nevada statutes which provide guidelines for the making of a determination in such
matters are as follows:
NRS 704.350
Every applicant for a certificate of public convenience shall furnish such evidence of its corporate
character and of its franchise or permits as may be required by the commission.
NRS 711.080
1. Upon investigation, the legislature of the State of Nevada has determined that the rates, services
and operations of community antenna television companies are affected with a public interest.
2. It is the intent of the legislature in the enactment of this chapter to:
(a) Provide fair regulation of CATV companies in the interest of the public, to promote adequate,
economical and efficient CATV system service to citizens and residents of this state;
(b) Provide just and reasonable rates and charges for CATV system services without unjust
discrimination, undue preferences or advantages, or unfair destructive competitive practices;
(c) Encourage and promote harmony between CATV companies and their subscribers;
(d) Cooperate with other states and with the Federal Government in
convenience and necessity. See TV Pix, Inc. v. Taylor, 304 F.Supp. 459 (1968).
On May 8, 1970, the PSC entered an order establishing the final boundaries of the
respective service areas in Community and Nevada Cablevision. On May 29, 1969,
Community petitioned the PSC for a clarification of its May 5 order asking the PSC to make
it clear that in the event one of the two successful applicants should be unable to perform the
remaining applicant's service area would be enlarged to include the entire greater Las Vegas
area.
On June 10, 1969, the PSC notified all parties that the substance of the requested
clarification was implicit in the May 5, 1969, order granting the application.
After the foregoing took place the event that gives rise to this litigation occurred. Effective
August 10, 1970, the FCC added Section 74.1131 to its rules and regulations (now 76.501 as
amended). That section provides:
(a) Cross-ownership. No CATV system (including all parties under common control)
shall carry the signal of any TV broadcast station if such system directly or indirectly
owns, operates, controls or has an interest in:. . .
"{2) A television broadcast station whose predicted Grade B contour, computed in
accordance with Section 73.6S4 of this chapter, overlooks in whole or in part the service
area of such system {i.e., the area in which the system is serving subscribers).
". . .
____________________
promoting and coordinating efforts to regulate effectively CATV companies in the public interest; and
(e) Vest authority in the commission to regulate CATV companies generally and their rates, services
and operations, in the manner and in accordance with the policies set forth in this chapter.
NRS 711.090
In determining whether a certificate of public convenience should be issued to a CATV company the
commission shall take into consideration, among other things, the public need for the proposed service or
acquisition, the suitability of the applicant, the financial responsibility of the applicant and the ability of
the applicant to perform efficiently the service for which authority is requested.
NRS 711.150
1. Every CATV company and every person and organization providing any service, equipment or
facilities thereto shall provide safe and adequate service, equipment and facilities for the operation of its
CATV system.
2. No CATV company may demand or receive a greater, less or different compensation for providing
CATV service than the rates and charges specified in the tariff in effect at the time.
3. All rates, charges and classifications for the service rendered by a CATV company shall be just
and reasonable.
4. No CATV company may make any unjust or unreasonable discrimination in rates, charges,
classifications, practices, regulations, facilities or services for or in connection with like service, directly
or indirectly, by any means or device, or make or give any undue or unreasonable preference or
advantage to any particular person, class of persons, or locality to any undue or unreasonable prejudice or
disadvantage.
5. Every CATV company and other person and organization shall obey and comply with the rules,
regulations and orders adopted by the commission under the provisions of this chapter.
broadcast station if such system directly or indirectly owns, operates, controls or has an
interest in:. . .
(2) A television broadcast station whose predicted Grade B contour, computed in
accordance with Section 73.684 of this chapter, overlooks in whole or in part the service area
of such system (i.e., the area in which the system is serving subscribers).
. . . Note 1: The word control' as used herein is not limited to majority stock ownership
but includes actual working control in whatever manner exercised.
Note 2: The word interest' as used herein includes, in the case of corporations common
officers or directors and partial (as well as total) ownership interests represented by
ownership of voting stock.
(d) Effective date: Provisions of Paragraph (a) of this section are not effective until
August 10, 1973, as to ownership interests proscribed herein if such interests were in
existence on or before July 1, 1970 (e.g., if a franchise were in existence on or before July 1,
1970); provided, however, that the provisions of Paragraph (a) of this section are effective on
August 10, 1970, as to such interests acquired after July 1, 1970.
The deadline for divestiture of cross-ownership interests existing prior to July 1, 1970, was
extended by the Commission to August 10, 1975.
This rule prohibits cross-ownership interests between cable TV systems and co-located TV
broadcast stations but allows cable system operators who acquired their state or local
government grant of operation authority on or before July 1, 1970, a grace period for
divestiture of one or the other ownership interests until August 10, 1975. Eighty percent of
Nevada Cablevision is owned by Donald Reynolds who also owns TV broadcast station
KORK-TV in Las Vegas, thus the provisions with respect to cross-ownership interests of Mr.
Reynolds in station KORK-TV and Nevada Cablevision apply.
This dispute concerns the significance or effect of Reynolds' interest of the grant of CATV
by the PSC.
On August 12, 1970, the PSC issued its compliance order setting forth the requirements to
be met by Community and Nevada Cablevision before issuance of their respective certificates
of public convenience and necessity. This order established a time limit for compliance and
stated that:
This compliance order does not constitute operating authority; . . . provisions of the
CATV service contemplated by this compliance order may not be instituted prior to the
issuance of the certificate of public convenience and necessity. . . . On October 13, 1970,
following submission of requested documentation by both applicants, the PSC issued
certificates of public convenience and necessity to Community Cable and Nevada
Cablevision.
On October 13, 1970, following submission of requested documentation by both
applicants, the PSC issued certificates of public convenience and necessity to Community
Cable and Nevada Cablevision. The order accompanying the issuance of the certificates
informed the applicants, however, that construction of their respective CATV systems could
not commence until all necessary licensing had been obtained from the FCC. The deadline for
obtaining this license, October 13, 1973, has been extended by the PSC for both certificates
to October 13, 1975.
On November 12, 1970, Community by petition directed the attention of the PSC to the
enactment of Section 74.1131 (now Section 76.501 as amended) of the FCC rules which had
not been in existence at the time of the PSC's May 5, 1969, order granting the application of
Community and Nevada Cablevision. The PSC denied the petition on November 27, 1970,
for the asserted reason that the PSC did not have jurisdiction to interpret Section 74.1131
(now Section 76.501) of the rules and regulations of the FCC.
Thereupon Community sought review of the October 13, 1970, order before the district
court and moved the matter be remanded to the PSC for additional hearings pursuant to the
provisions of NRS 704.560
2
upon the ground that the evidence that has been introduced by
Community was different from the evidence previously being considered by the PSC,
specifically Section 74.1131 of the FCC rules. The district court granted the petition and
remanded the matter to the PSC for the stated purpose and its effect on Nevada Cablevision's
ability . . . to perform efficiently with service for which authority is requested.
On May 9, 1972, the PSC reported to the court that after consideration the PSC had
determined that it would not alter, modify, amend or rescind Nevada Cablevision's certificate
of public convenience and necessity and stated that it believed that the requirement in Nevada
Cablevision's certificate of public convenience and necessity that copies of all required FCC
licensing be filed with the Commission prior to October 13, 1973, and if not, the certificate
would automatically become null and void, is effective to determine Nevada Cablevision's
ability to perform.
____________________

2
The first paragraph of NRS 704.560 dealing with judicial review of PSC orders provides that:
If upon the trial of such action evidence shall be introduced by the plaintiff which is found by the
court to be different from that offered upon the hearing before the commission, or additional thereto, the
court before proceeding to render judgment, unless the parties to such action stipulate in writing to the
contrary, shall transmit a copy of such evidence to the commission, and shall stay further proceedings in
the action for 30 days from the date of such transmission.
licensing be filed with the Commission prior to October 13, 1973, and if not, the certificate
would automatically become null and void, is effective to determine Nevada Cablevision's
ability to perform.
Following Community's further proceedings for review of the PSC's October 13, 1970,
order and after a hearing on May 24, 1973, the district court ordered that (1) the
cross-ownership interests of Mr. Reynolds and TV broadcast station KORK-TV and his
interest in the CATV certificate of Nevada Cablevision were not in existence on or before
July 1, 1970, i.e., a certificate for the CATV system was not in existence on or before July 1,
1970; (2) thus, the effect of Section 76.501 of the FCC's rules would be to prohibit Nevada
Cablevision from carrying the signal of any television broadcast station and thereby greatly
limited the ability of Nevada Cablevision to efficiently provide a community antenna
television service to the residents of its service area; (3) a certificate from the PSC can only
be issued to a party with the present ability to perform, and only upon an unconditional and
binding obligation to perform. The PSC by its action in granting a certificate of public
convenience and necessity to Nevada Cablevision and by its May 9, 1972, Report of Action
to the court following the remand had granted to Nevada Cablevision all of the rights and
privileges of a certificated party without requiring the acceptance of corresponding duties and
responsibilities. Nevada Cablevision had been granted the alternative of performing or not
performing at its option since its ability to perform was dependent upon whether Mr.
Reynolds would at some future date elect to divest himself of one or the other of the
cross-ownership interests or otherwise escape the restriction imposed by Section 76.501 of
the FCC's rules; (4) this being so, the district court reasoned, the PSC had erred in granting
Nevada Cablevision a certificate of public convenience and necessity on October 13, 1970,
and its action on doing so was arbitrary and capricious for the reason that after the enactment
of present Section 76.501 of the FCC's rules Nevada Cablevision was either totally
disqualified from ever obtaining the required FCC licensing and thus prospectively unable to
perform at all or had at best a limited or qualified ability to perform which was dependent
upon either future unilateral action on the part of Mr. Reynolds or waiver of its rules by the
FCC and hence was not equal in qualification to Community which had the capacity to
perform without limitation or qualifications; (5) therefore, the district court concluded that
the PSC had erred in not granting Community a certificate of public convenience and
necessity for the entire greater Las Vegas service area.
Findings of fact and conclusions of law to this effect were signed on July 27, 1973, and a
judgment of even date entered which provided that it was thereby:
ORDERED, ADJUDGED AND DECREED that the certificate of public convenience
and necessity granted to Nevada Cablevision on October 13, 1970, is declared to be null and
void; and the Public Service Commission is directed to issue to Community Cable TV a
certificate of public convenience and necessity encompassing the entire greater Las Vegas
area.
Nevada Cablevision contends that the district court erred in at least five respects. The PSC
joined Nevada Cablevision in this appeal and urges a single additional instance of alleged
error. The issues presented on appeal are:
I. Whether the district court erred when it failed to dismiss the complaint for lack of
jurisdiction on the ground that it was untimely.
II. Whether the district court erred in attempting to interpret and apply a rule of the FCC
when the same issue on the same facts was pending before the FCC in another proceeding.
III. Whether the district court erred by exceeding the proper scope of judicial review when
it overruled the PSC's decision to leave the application and enforcement of FCC rules and
policies to the FCC.
IV. Whether the district court erred in determining that Nevada Cablevision had no CATV
interest within the meaning of the FCC's rule prior to July 1, 1970.
V. Whether the district court erred in concluding that Nevada Cablevision had only a
limited and qualified ability to perform pursuant to the PSC certificate as of October 22,
1970.
VI. Whether the district court exceeded its jurisdiction in declaring the certificate of
public convenience and necessity granted to Nevada Cablevision on October 26, 1970, to be
null and void, and in directing the PSC to issue Community a certificate of public
convenience and necessity encompassing the entire Las Vegas area.
1. Nevada Cablevision argues that the time for seeking judicial review ran from the date
of the PSC's order of May 5, 1969, conditionally granting the applications of Community and
Nevada Cablevision and not from the date of its October 31, 1970, order granting the
certificates. The order of May 5, 1969, they argue, was the dispositive action of the PSC of
which judicial review should have been sought since any orders of the PSC issued subsequent
to that date were devoted to ancillary details and not to the basic determination of which
applicant should be awarded certificates of authority. This being so, Nevada Cablevision
contends that Community's petition for judicial review was untimely filed under NRS
704.540 and the district court consequently was without jurisdiction to decide the case.3
being so, Nevada Cablevision contends that Community's petition for judicial review was
untimely filed under NRS 704.540 and the district court consequently was without
jurisdiction to decide the case.
3

[Headnotes 1, 2]
The resolution of the question presented turns on what the phrase an order of the
commission means as used in NRS 704.540. The tenor of that section is that it applies to
final rather than interlocutory actions of the PSC since it speaks in terms of orders that fix
rates, fares, charges, classifications, practices or services. The question thus becomes which
of the orders of the PSC, i.e., May 5, 1969, or October 13, 1970, was final for purposes of
judicial review pursuant to NRS 704.540. This is in accord with the general view that the
qualities of administrative finality in an order or determination are essential to the invocation
of the judicial review even though the applicable statute does not contain the word final.
Chicago and Southern Airlines v. Waterman S. S. Corp., 333 U.S. 103 (1948); Levers v.
Anderson, 326 U.S. 219 (1945); Federal Power Commission v. Metropolitan Edison Co., 304
U.S. 375 (1938); Houk v. Beckley, 72 N.W.2d 664 (1955); Chastain v. Spartan Mills, 88
S.E.2d 836 (1955).
[Headnote 3]
From an examination of the wording of the May 5, 1969, opinion and order it was not
intended to be final but rather was interlocutory in nature and hence not properly subject to
judicial review.
The May 5, 1969, opinion of the PSC stated as follows:
In keeping with the Commission's announcement at the earlier prehearing conference
conducted prior to the formal hearings already held a determination of appropriate service
area in Clark County for Nevada Cablevision and Community Cable TV should not result in
the immediate issuance of a certificate to each of said applicants. At this juncture appropriate
service areas for each applicant had not even been established.
____________________

3
NRS 704.540 provides for judicial review of actions of the PSC in the following terms:
Any party in interest being dissatisfied with an order of the commission fixing any rate or rates,
fares, charges, classifications, joint rate or rates, or any order fixing any regulations, practices or services,
may within 90 days commence an action in the district court of the proper county against the commission
and other interested parties as defendants to vacate and set aside any such order on the ground that the
rate fixed in such order is unlawful or unreasonable, or that any such regulation, practice or service fixed
in such order is unreasonable.
established. Instead, pursuant to the service areas established a compliance order should be
issued to each of them. These compliance orders should specify the condition to be met
(including the obtaining of all necessary licensing from the Federal Communications
Commission) prior to the issuance of certificates. (Emphasis added.) The order which
accompanied the opinion contained like language.
It is apparent that the opinion and order of May 5, 1969, fixed none of the things
specifically enumerated in NRS 704.540 as being prerequisite to bringing that statute into
operation, that is, making it an available vehicle for seeking judicial review at that time. That
order left open for future resolution the determinations which would have had to have been
resolved on May 5, 1969, in order to have brought NRS 704.540 into play. It fixed or
established no rates, charges, fares, classifications, regulations, practices or services. The net
effect of the May 5, 1969, order was that it found Nevada Cablevision to be eligible for a
certificate of public convenience and necessity if and when it satisfactorily met certain
prescribed conditions subsequent. The failure of Nevada Cablevision to satisfy those
conditions subsequent would preclude its being issued a certificate of public convenience and
necessity.
[Headnote 4]
An appeal will not lie from an interlocutory order unless such order deprives a party of a
substantial right or affects the merits. See Rochester Telephone Corp. v. United States, 307
U.S. 125 (1939); Houk v. Beckley, supra; Wisconsin Telephone. Co. v. Wisconsin
Employment Relations Board, 34 N.W.2d 844 (1948); Madden v. Brotherhood & Union of
Transit Employees, 147 F.2d 439 (4th Cir. 1945); Chastain v. Spartan Mills, supra.
The order fixing the boundaries of the respective service areas of Community and Nevada
Cablevision was not entered until May 8, 1970. Even then Nevada Cablevision's authority to
operate from the PSC was neither final nor complete for on August 8, 1970, the PSC issued a
compliance order specifying further conditions to be met by both Community and Nevada
Cablevision before either could receive the required certificate of public convenience and
necessity. Failure to comply with any or all of the conditions specified in the compliance
order on the part of either Community or Nevada Cablevision would result in their not being
certificated to supply a CATV service to their respective service areas. In relevant part the
compliance order provided that: "Failure to comply with the foregoing requirements within
the aforesaid time period shall cause this proceeding to be dismissed for lack of
prosecution, such dismissal to be entered on the Commission's own motion immediately
after expiration of the aforesaid time period . . ." and further, that:
" . . .
Failure to comply with the foregoing requirements within the aforesaid time period shall
cause this proceeding to be dismissed for lack of prosecution, such dismissal to be entered on
the Commission's own motion immediately after expiration of the aforesaid time period . . .
and further, that:
. . . This compliance order does not constitute operating authority; . . . provision of the
CATV service contemplated by this compliance order may not be instituted prior to issuance
of the certificate of public convenience and necessity referred to hereinabove. . . .
The effective instrument was a certificate of public convenience and necessity required
before any CATV operation or even construction could commence. It is not enough to label
further actions to be taken by the PSC as ancillary details. Until such time as the certificates
of public convenience and necessity were issued there was no final order of the PSC which
could be properly reviewed under NRS 704.540.
It was not until October 13, 1970, the date of issuance of the respective certificates of
public convenience and necessity, that the respective rights and obligations of the party were
fixed concerning the providing of CATV service. The certificate of public convenience and
necessity is the document symbolizing the grant of authority to own and operate a CATV
system. Such prior orders as were issued prior thereto were intermediate and conditional in
effect. The certificate is the ultimate instrument insofar as Nevada Cablevision's right to own
and operate a CATV system is concerned. A challenge to Nevada TV authority to own and
operate a CATV system thus is properly directed to the order conferring that authority.
Nevada Cablevision relies heavily on Paradise Valley Water Co. v. Arizona Corp. Com'n,
377 P.2d 768 (Ariz. 1963), which was decided on the basis of an Arizona statute which has
no counterpart in Nevada. Arizona, unlike Nevada, has a statutory provision for the issuance
of a qualified operating authority.
4
The decision of the Arizona court followed from the
two-step procedure authorized by the Arizona statute whereby the Public Service
Commission can issue qualified operating authority and at a later date issue a certificate
of public convenience and necessity.
____________________

4
Sec. 40-282, subd. D, Arizona Revised Statutes:
If a public service corporation desires to exercise a right or privilege under a franchise or permit
which it contemplates securing, but which has not yet been granted to it, the corporation may apply to the
commission for an order preliminary to the issue of the certificate. The commission may thereupon make
an order declaring that it will thereafter, upon application, under rules and regulations it prescribes, issue
the desired certificate, upon terms and conditions it designates, after the corporation has obtained the
contemplated franchise or permit. Upon presentation to the commission of evidence that the franchise or
permit has been secured by the corporation, the commission shall thereupon issue the certificate.
two-step procedure authorized by the Arizona statute whereby the Public Service
Commission can issue qualified operating authority and at a later date issue a certificate of
public convenience and necessity. It follows, therefore, that an appeal must be timely filed
and prosecuted from the date of issuance of such qualified operating authority. It was
apparently for this reason that the Arizona court held that an appeal from the issuance of a
certificate of public convenience and necessity invoked limited powers upon judicial review.
There is no provision for issuance of qualified operating authority in the State of Nevada.
Furthermore, as late as August 12, 1970, the PSC reaffirmed its position that no qualified
operating authority had been given with respect to CATV service.
The Nevada cases relied on by Nevada Cablevision are not controlling since both Mirin v.
Checker Inc., 85 Nev. 569, 459 P.2d 774 (1969), and Mirin v. Ace Cab Co., 85 Nev. 690, 462
P.2d 523 (1969), arose in factual situations different from those in the instant case. The Mirin
cases involved PSC's orders enlarging the existing service areas of taxicab companies already
operating pursuant to outstanding certificates of public convenience and necessity. The orders
enlarging the service areas were effective October 26, 1967. However, the date upon which
the taxicab company could begin the operation within the enlarged areas was postponed to
December 26, 1967. It was held that the time within which a complaint challenging the orders
could be brought pursuant to NRS 704.540(1) commenced to run on October 26, 1967, rather
than on December 26, 1967, inasmuch as the orders were effective on the earlier date and
only operation pursuant thereto had been postponed. No further steps were required in those
cases to be taken after October 26, 1967, to perfect or make final the orders in question. The
contrary is true in this proceeding. The granting of the certificate of public convenience and
necessity on October 13, 1970, is the reviewable order. Nev.-Cal. T. Co. v. Commission, 60
Nev. 310, 103 P.2d 43 (1940). It was that order, the denial of which would have sounded the
death knell to either of the two remaining applicants (Graci v. United States, 472 F.2d 124
(5th Cir. 1973)) which was the springboard for these proceedings.
2. The second appellate point urged by Nevada Cablevision is that the district court
should have deferred any decision on the cross-ownership regulation until the question was
decided by the FCC, that the FCC had exclusive jurisdiction to apply the cross-ownership
rule. Community counters that cross-ownership was a matter for PSC consideration because it
affected Nevada Cablevision's qualifications and prospective ability to provide the
proposed service.
Cablevision's qualifications and prospective ability to provide the proposed service.
[Headnotes 5, 6]
The regulatory scheme for CATV systems is one of dual jurisdiction between state and
federal authorities. 38 FCC2d 143 (1972); 46 FCC2d 175 (1974). While the FCC has adopted
certain minimal federal standards relating to the qualifications of cable applicants and the
terms of franchise these standards are to be applied in the first instance by the local
authorities in the franchise selection process. 46 FCC2d 175 (April 1974); A Critical Look at
Illinois CATV Franchises, 26 FCC Bar Journal 243 (1973). It follows that the local
authorities, the PSC, are to be aware of and to apply the FCC's cable standards and rules and
to select a franchise holder whose qualifications are consistent with the federal standards.
This was the view of the district court, that a rule of the FCC should be taken into
consideration by the PSC in its certificating process which does not conflict with the FCC's
jurisdiction over the regulation of CATV. The FCC has exercised its jurisdiction in
establishing a regulatory scheme which the FCC itself characterizes as dual jurisdiction
providing for federal regulation of some aspects with local regulation of others under federal
prescription of standards for local jurisdictions.
[Headnote 7]
Where the FCC in its cross-ownership rule has adopted what is tantamount to a disability
it was inappropriate for the PSC to ignore that standard in granting a certificate to Nevada
Cablevision. To be remembered is the significance of the district court's finding that Nevada
Cablevision did not acquire a franchise on or before July 1, 1970, and therefore it was
questionable whether Nevada Cablevision would be able to conduct CATV under the
cross-ownership rule. That was a primary factor to be considered by PSC in the issuance of a
certificate of public convenience and necessity.
After the district court determined that Nevada Cablevision's franchise was not in
existence on or before July 1, 1970, because the certificates of public convenience and
necessity herein were not issued until October 13, 1970, it then concluded the
cross-ownership would significantly and adversely affect Nevada Cablevision's ability to
perform the proposed service. In truth, depending upon the direction to which Cablevision's
option would be taken, to keep KORK-TV or to dispose of it, the posture was whether
Cablevision could or would perform at all.
perform at all. Community at the same time had no such disability and in contrast to
Cablevision was ready, willing and able to perform.
[Headnote 8]
Therefore, the district court's finding that Nevada Cablevision's comparative qualifications
were not equivalent to those of Community since Community had the ability to perform
without limitation were correct. As a result, the issuance of a certificate of public convenience
and necessity to Nevada Cablevision was error as the district court so found.
3. Nevada Cablevision's third specification of error is that the district court improperly
substituted its judgment for that of the PSC. Community argues that the PSC's refusal to
consider the effect of the FCC's cross-ownership rule was arbitrary and capricious and a
violation of the PSC's statutory mandate to select an applicant able to perform efficiently the
service for which authority is requested. NRS 711.090.
[Headnote 9]
The general rule is that the proper function of a court in reviewing a determination made
by an administrative agency in granting a certificate of public convenience and necessity is to
determine whether the agency acted within the scope of its authority assuming that the order
complained of was reasonable, not made arbitrarily and in accordance with law. Application
of Radio-Fone, Inc., 193 N.W.2d 442 (Neb. 1972).
[Headnote 10]
The scope of review was not exceeded by the district court in this case. The duty of the
PSC was to determine which of the applicants was best qualified to provide the proposed
CATV service. In so doing it was required to consider all factors which bore upon the public
interest. Federal Power Commission v. Transcontinental Gas Pipeline Corp., 365 U.S. 1
(1961); American Trucking Association v. United States, 326 U.S. 77 (1945); Alabama
Power Co. v. City of Fort Payne, 187 So. 632 (1939). A major consideration in this
determination is the ability of the applicants to perform efficiently the service for which
authority is requested which is the requirement of NRS 711.090.
[Headnote 11]
It seems apparent therefore that the cross-ownership rule of Section 76.501 of the FCC's
rules is applicable to Nevada Cablevision.
Cablevision. The district court concluded that the cross-ownership rule rendered Nevada
Cablevision's ability to perform limited and qualified and precluded its ability to perform
efficiently the service for which such authority was requested as required by the statute. We
agree therefore that the fact that one cable television system applicant may not operate
beyond August 10, 1975, was a matter which bore upon the public interest in the prospective
ability of that applicant to efficiently provide the service for which authorization was
requested.
5

[Headnote 12]
Certainly the operation of the cross-ownership rule has an adverse impact upon the ability
to perform. The fact that Nevada Cablevision needs a waiver of the federal policy and in view
of the status as reflected in Footnote No. 5 Nevada Cablevision does not qualify as having an
equal ability with Community to perform. The PSC's refusal to consider the significance of
this effect was arbitrary, capricious and in violation of the statute.
The declaration of Nevada's legislative purpose of the community antenna television
system law, NRS 711.080 et seq., provides:
2. It is the intent of the legislature in the enactment of this chapter to:
(d) Cooperate with other states and with the federal government in promoting and
coordinating efforts to regulate effectively CATV companies in the public interest; and
(e) Vest authority in the commission to regulate CATV companies generally and their
rates, services and operations in the manner and in accordance with the policies set forth in
this chapter.
By the enactment of Section 76.501 the FCC has determined that cross-ownership of
television broadcast stations and co-located cable television systems is not in the public
interest and should be prohibited. The PSC was not cooperating within the statutory
requirement with the FCC when it granted a certificate of public convenience and necessity to
Nevada Cablevision who was at that time in violation of the FCC's cross-ownership rule.
____________________

5
Nevada Cablevision has petitioned the FCC for a waiver of the cross-ownership rule. Since the oral
argument before this court the franchise of KORK-TV has been revoked and the ruling by the hearing officer is
on appeal. Counsel, by correspondence to this court, appear to agree that a resolution of that appeal will not be
known until sometime in the latter part of 1976. It is significant that the Reynolds interests are prosecuting the
appeal vigorously which evidences the intention to perpetuate, not terminate, the cross-ownership.
cross-ownership rule. The PSC was required to consider the effect of Section 76.501 of the
FCC's rules upon Nevada Cablevision's capability to perform. Failure to do so was arbitrary
and capricious and we uphold the district court's ruling that the PSC's issuance of a certificate
of public convenience and necessity to Nevada Cablevision was erroneous.
4. Nevada Cablevision's fourth issue of alleged error is that the district court erred in
making the determination that Nevada Cablevision had no CATV interest within the
meaning of Section 76.501 of the FCC's rules on or before July 1, 1970. The appellant claims
it had a sufficient interest by reason of the PSC's opinion and order of May 5, 1969, granting
its application for a certificate of public convenience and necessity.
The action of the FCC in adopting the cross-ownership rule and promulgating a policy of
dual jurisdiction in CATV matters occurred after the May 5, 1969, order and prior to the
issuance of the certificate of public convenience and necessity to Nevada Cablevision. This
intervening occurrence adversely affected the qualifications of Nevada Cablevision and
created a condition to the issuance of a valid certificate by the PSC, a condition which has not
been met so far as the record in this case is concerned.
Whether Nevada Cablevision did or did not have an ownership interest in a CATV system
on or before July 1, 1970, is not of controlling importance in considering the validity of the
PSC's order granting to it a certificate of public convenience and necessity on October 13,
1970. The distinction is that if the prohibited cross-ownership interest was in existence on or
before July 1, 1970, then there is a deadline for divestiture of KORK-TV of August 10, 1975.
But as to ownership interest acquired after July 1, 1970, the cross-ownership rule became
presently applicable and operates to proscribe the particular CATV system from carrying the
signal of any television broadcast station. The net effect is that Nevada Cablevision is now
barred or will be barred on August 10, 1975, from carrying any television signals. Either way
Nevada Cablevision qualifications are impaired, particularly as compared to those of
Community. Nevada Cablevision acquired no ownership interest within the meaning of
Section 76.501 of the FCC's rules simply because of the PSC's opinion and order of May 5,
1969. That opinion and order merely found Nevada Cablevision, as well as Community, to be
eligible for certificates of public convenience and necessity if and when they met certain
prescribed conditions subsequent.
[Headnote 13]
The real quality ownership interest to which Section 76.501 has reference came into
existence when the certificates of public convenience and necessity were issued October 13,
1970. Those certificates constitute the significant governmental authorization, the efficacious
instruments contemplated by the statute and anything less were merely instruments of
potentiality.
Therefore, the trial court was correct in its conclusion that Nevada Cablevision did not
have an ownership interest in existence on or before July 1, 1970.
5. The district court concluded that Nevada Cablevision by reason of the FCC
cross-ownership Section 76.501 was either totally disqualified from performing or had at best
a limited and qualified ability to perform which was not equal in qualification to Community
Cable TV which had the capacity to perform without limitation or qualification. Nevada
Cablevision assigns the court's finding as error.
Nevada Cablevision argues that since the cross-ownership of Mr. Reynolds could be
resolved by Mr. Reynolds disposing of one or the other of his interests the conclusion of the
court should be reversed because its reasoning is wholly speculative.
6
It would have been
just as speculative for the district court to conclude that some future development might
remove Nevada Cablevision infirmities.
[Headnotes 14, 15]
The granting of a certificate of public convenience and necessity to an applicant whose
ability to perform is contingent upon the occurrence of future events is not consistent with the
requirement of NRS 711.090 that each applicant for a certificate of public convenience and
necessity establish his ability to perform efficiently the service for which authority is
requested. Nevada Cablevision's position that the cross-ownership problem can be cured by
the possible occurrence of future events does indicate that its present ability to perform is
limited and qualified and speculative. The imbalance between its status and that of
Community is all the more apparent.
[Headnote 16]
6. The additional specification of error raised by the PSC (which joined Nevada
Cablevision on appeal) is that the court by declaring the October 13, 1970, certificate of
public convenience and necessity to Nevada Cablevision to be null and void exceeded the
jurisdiction of the court.
____________________

6
See Footnote 5.
and void exceeded the jurisdiction of the court. That portion of the court's judgment also
directed the PSC to issue Community a certificate of public convenience and necessity
encompassing the entire greater Las Vegas area.
The statutory procedure for judicial review of orders of the PSC provides that the court
may vacate and set aside any . . . orders on the ground that the . . . service fixed in such order
is unreasonable. NRS 704.540. The district court concluded that the granting by the PSC a
certificate of public convenience and necessity to Nevada Cablevision was unreasonable,
arbitrary, capricious and unlawful because of the cross-ownership rule.
If anything, the action by the district court was superfluous because it merely formalized
the result which would obtain by reason of the PSC's own stated conclusion. On June 10,
1969, the PSC rejected Community's petition for clarification of its May 5, 1969, order upon
the ground that the substance of the requested clarification was implicit in that order. The
requested clarification was that if for any reason either Community or Nevada Cablevision
should become unable to perform, the remaining applicant should be awarded the greater Las
Vegas area. The effect of the district court's order vacating the granting of a certificate to
Nevada Cablevision was to render Nevada Cablevision unable to perform.
Pursuant to the PSC's own order then Community was entitled to a certificate of public
convenience and necessity for the entire greater Las Vegas area. This was an implicit
consequence of the PSC's order which, as stated, may have been superfluous, but certainly not
error.
The judgment of the trial court is affirmed.
Gunderson, C. J., and Batjer, Mowbray, and Thompson, JJ., concur.
____________
91 Nev. 52, 52 (1975) Young v. Board of County Comm'rs
LLEWELLYN A. YOUNG, District Judge of the Sixth Judicial District Court of the State of
Nevada, Petitioner, v. THE BOARD OF COUNTY COMMISSIONERS OF PERSHING
COUNTY, NEVADA, and DANIEL MILICH, CHARLES CARPENTER and ARTHUR
JOHNSON, Constituting the Members of Said Board, Respondents.
No. 7727
January 29, 1975 530 P.2d 1203
Original proceeding in mandamus.
District judge petitioned for writ of mandamus to compel board of county commissioners
to accede to certain budgetary requests. The Supreme Court, Batjer, J., held that statute
providing that salaries of probation officers, detention home personnel and other employees
shall be fixed by the judge with the consent of the board of county commissioners does not
extend to board the power to veto reasonable request for probation officer's salary, and that
reasonable budgetary requests regarding office equipment for probation officer, part-time
secretary for the court, and additions to the court's law library were within court's inherent
powers in the administration of justice.
Writ granted.
Beckley, Singleton, DeLanoy & Jemison, Chartered, of Las Vegas, for Petitioner.
Robert List, Attorney General, Carson City; Donald F. Klasic, Deputy Attorney General,
Carson City, for Respondents.
1. Courts.
The word consent in statute providing that salaries of probation officers shall be fixed by judge with
consent of board of county commissioners does not delegate discretionary legislative appropriation power
to the board and does not extend to the board the power to veto reasonable budgetary requests of a district
judge. Const. art. 6, 6; NRS 62.010 et seq., 62.100, 62.110, 62.120, 62.120, subd. 3,
354.470-354.626, 354.588.
2. Courts.
Statute providing that every effort shall be made by counties to provide sufficient personnel for probation
department to uphold concept of separation of powers in the court process expresses legislative intent that
district courts enjoy preeminent authority over juvenile probation services. NRS 62.120, subd. 3.
3. Courts.
The consent function of board of commissioners under statute providing that salaries of
probation officers shall be fixed by judge with consent of board of county
commissioners is limited to determining whether, in light of the current fiscal status
of the county, the salary request of a district judge is unreasonable or arbitrary.
statute providing that salaries of probation officers shall be fixed by judge with consent of board of county
commissioners is limited to determining whether, in light of the current fiscal status of the county, the
salary request of a district judge is unreasonable or arbitrary. NRS 62.110, subds. 1, 3.
4. Constitutional Law.
District judge's budgetary requests regarding office equipment for probation officer, a part-time secretary
for the court, and additions to the court's law library, if reasonable and necessary to carry out a district
court's powers and duties in the administration of justice, are within court's inherent powers and are not
violative of separation of powers. Const. art. 6, 6; NRS 62.010 et seq., 62.100, 62.110, 62.120,
62.120, subd. 3, 354.470-354.626, 354.588.
5. Mandamus.
Mandamus will not lie to compel an officer or board to perform a discretionary act, but is appropriate to
compel an act which the law especially enjoins as a duty of office. NRS 34.160.
6. Mandamus.
District judge who was required to retain counsel to seek mandate to compel board of county
commissioners to accede to certain budgetary requests would be awarded reasonable attorney fee. NRS
62.110, subds. 1, 3.
OPINION
By the Court, Batjer, J.:
This original proceeding was commenced by the Honorable Llewellyn A. Young, district
judge, hereinafter referred to as petitioner, who seeks a mandate to compel the Board of
County Commissioners of Pershing County, Nevada, hereinafter referred to as the board or
respondents, to accede to certain budgetary requests for the budget year 1974.
This court appointed the Honorable Noel E. Manoukian, district judge, special master to
hear and resolve factual disputes; however, by stipulation prior to a hearing, the parties
resolved all disputed matters.
Respondents reduced petitioner's budgetary requests for: (a) the probation officer's salary,
from $750.00 to $712.00 per month; (b) office equipment for the probation department from
$750.00 for the budgetary year to $318.00; (c) the salary of a part-time secretary, from
$400.00 to $236.00 per month; and (d) additions to the law library, from $7,000.00 to
$5,000.00 for the budgetary year.
It was stipulated that (1) respondents suffer no budgetary shortage or financial problems
which would render them unable to meet petitioner's request; (2) the budgetary requests by
petitioner were necessary for the effective administration of his court; {3) the parties have
each acted reasonably in carrying out the responsibilities of office.
court; (3) the parties have each acted reasonably in carrying out the responsibilities of office.
[Headnote 1]
1. By virtue of his position as district judge, and pursuant to the authorization of NRS
62.110(1), petitioner appointed a juvenile probation officer. When he set the salary of that
officer at $750.00 per month, the board refused to approve that salary and recommended a
lower one, basing their action on the consent requirement of NRS 62.110(3).
1
Since both
parties have stipulated to the reasonableness of their respective actions, the first issue to be
determined on appeal is whether the consent requirement of NRS 62.110(3) extends to a
board of county commissioners the power to veto the reasonable budgetary requests of a
district judge. It does not.
Article 6, 6 of the Nevada Constitution grants to the district courts original jurisdiction
in all cases in equity. The juvenile statutes are a codification of the ancient equitable
jurisdiction over infants under the doctrine of parens patriae. People v. Leonard, 112 N.E.2d
697 (Ill. 1953). Pursuant to legislative enactment of the Juvenile Court Act, NRS Chapter 62,
the district courts are specifically empowered to administer juvenile justice. Juvenile
probation services were made a part of the duties assumed by the district courts under NRS
Chapter 62. The district judge enjoys the power to choose the probation committee for the
county, which in turn advises him in his choice of probation officers. NRS 62.100 and NRS
62.110. The judge supervises, and the probation committee advises the probation officers in
their work, including their financial and clerical work. NRS 62.120.
[Headnote 2]
NRS 62.120(3) provides: Every effort shall be made by the various counties throughout
the state to provide sufficient personnel for the probation department to uphold the concept of
separation of powers in the court process. This statute is a clear expression by the legislature
of its intent that the district courts enjoy preeminent authority over juvenile probation
services.
We reject respondents' contention that the word consent found in NRS 62.110 is a
delegation of discretionary legislative appropriation power to the board of county
commissioners.2
____________________

1
NRS 62.110(3): The salaries of the probation officers, detention home personnel and other employees shall
be fixed by the judge with the advice of the probation committee and consent of the board or boards of county
commissioners.
appropriation power to the board of county commissioners.
2

Reviewing statutory language substantially similar to NRS 62.110(3), the Texas Court of
Civil Appeals refused to find a veto power in the board. Disposing of an issue on appeal
identical to the one before us, the Texas court reasoned that the consent requirement meant
only that the judge should consult with the commissioners to be apprised factually of the
financial status of the county. Commissioner's Court of Lubbock County v. Martin, 471
S.W.2d 100 (1971). A similar result was reached in In Re Salaries For Probation Officers Of
Bergen Co., 278 A.2d 417 (N.J. 1971).
[Headnote 3]
The consent function of a board of commissioners under NRS 62.110 is limited to
determining whether, in light of the current fiscal status of the county, the salary request of a
district judge is unreasonable or arbitrary. Had the commissioners so found and predicated
refusal to consent on that basis, and had the district judge seen fit to challenge their
determination, then this court would have been constrained to undertake final resolution of
that fundamentally factual issue. Here, however, there is a stipulation of reasonableness, and
therefore mandamus clearly must issue to compel approval by the board of the petitioner's
request for a probation officer's salary.
2. Along with the salary request, petitioner asks this court to compel, through mandamus,
the board's compliance with his budgetary requests regarding office equipment for the
probation officer, a part-time secretary for the court, and additions to the court's law library.
Each of these requests was reduced by the board, upon its review, and it directed the treasurer
of Pershing County not to honor any vouchers for such submitted by petitioner.
[Headnote 4]
Although there is no explicit statutory authorization for a
____________________

2
Respondents bolster their position with the theory that, since NRS 354.588 gives county commissioners the
right to prepare and fix a budget for county officers and agencies, the consent of the board under NRS 62.110
must be a part of that budgetary function.
But nowhere in NRS 354.470 to NRS 354.626, the section on local government budgets, is there a reference
to the Juvenile Court Act. NRS 354.588, by its terms applies only to the governing bodies, officers and
employees of every local government. NRS 354.536 defines governing body as the board . . . in which the
general legislative and fiscal powers of the local government are vested. The entire section deals only with the
local legislative function, not the judicial.
district court's budgetary requests, we believe that such authority flows from the inherent
power of the court. In State Ex Rel. Kitzmeyer v. Davis, 26 Nev. 373, 68 P. 689 (1902), this
court recognized inherent power, and in part depended upon it, when it mandated the state
controller to pay for the court's furnishings over the objection of the Board of Capitol
Commissioners. Relying on a statute which gave that board control over appropriations for
the furnishing of state buildings, it claimed absolute control over expenditures requested by
this court. After construing the statute as granting less than absolute control to the board, the
court then vindicated its expenditures on the theory of inherent power. To assume that the
legislature did confer any such absolute power upon the board is to assume that the legislature
possesses unlimited power of legislation in that matterthat it could by hostile legislation
destroy the judicial department of the government of this state. Id. at 379.
Respondents argue that petitioner's budgetary requests are a ministerial function derived
from the basic legislative power of appropriation and rely on Galloway v. Truesdell, 83 Nev.
13, 422 P.2d 237 (1967), to challenge the inherent power theory as violative of separation of
powers. Although in Galloway this court did hold that judicial powers cannot include a power
or function that is derived from the basic legislative or executive powers, it went on to make
it clear that in the area of ministerial functions of each branch of government there frequently
occurs an overlapping which can be entirely valid if it can logically trace its function back to
the basic source of power.
If budgetary requests are reasonable and necessary to carry out a district court's powers and
duties in the administration of justice, they are within its inherent powers. See
Commonwealth Ex Rel. Carroll v. Tate, 274 A.2d 193 (Pa. 1971); Judges For Third Judicial
Cir. v. County of Wayne, 172 N.W.2d 436 (Mich. 1969); Smith v. Miller, 384 P.2d 738
(Colo. 1963); and Noble County Council v. State, 125 N.E.2d 709 (Ind. 1955).
[Headnote 5]
Respondents' assertion that mandamus will not lie to compel an officer or board to
perform a discretionary act is correct, but it is not apposite to this case. Mandamus is
appropriate to compel an act which the law especially enjoins as a duty of office. NRS
34.160. When the petitioner's budgetary requests were stipulated as being reasonable, the
board's consent became a duty.
[Headnote 6]
Petitioner was required to retain counsel and there are no budgetary funds available for
him to meet the costs of this suit. The special master found that petitioner was entitled to
reasonable attorneys fees of $1,800.00 plus costs. Respondents registered no objection to this
award, and we hereby approve and order it.
It is ordered that a writ of mandate issue to compel the Board of County Commissioners of
Pershing County, Nevada, to approve petitioner's budgetary requests for the year 1974.
Gunderson, C. J., and Zenoff, Mowbray, and Thompson, JJ., concur.
____________
91 Nev. 57, 57 (1975) Sheriff v. Hanks
SHERIFF, CLARK COUNTY, NEVADA, Appellant v.
CLINTON LEE HANKS, Respondent.
No. 7837
January 29, 1975 530 P.2d 1191
Appeal from order dismissing information charging capital murder, entered upon
pre-trial petition for habeas corpus, Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Petitioner, who had been charged with capital murder perpetrated by executing a contract
to kill, filed a pre-trial petition for habeas corpus. The district court dismissed the
information. The Sheriff of Clark County appealed. The Supreme Court, Gunderson, C. J.,
held that petitioner could not be convicted of capital murder based on preliminary hearing
evidence which showed no more than that he and his younger brother had formulated and
manifested to each other a mutual purpose to kill another.
Affirmed, without prejudice to other appropriate proceedings.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, Clark
Goodman, Snyder & Gang, and Douglas G. Crosby, Esq., of Las Vegas, for Respondent.
1. Statutes.
Penal statutes should be so clear as to leave no room for doubt as to the intention of the legislature, and
where a reasonable doubt does exist as to whether the person charged with a violation of its provisions is
within the statute, that doubt must be resolved in favor of the individual.
2. Statutes.
Courts must consider and, where possible, reconcile all parts of a statute.
3. Homicide.
The word contract in statute defining capital murder as a murder perpetrated by, inter alia, executing a
contract to kill involving an agreement, with or without consideration, whereby one or more of the parties
to the agreement commits murder, involves more than merely mutually understood purpose and intent and
means a definite and firm commitment involving bilateral or unilateral obligations, lacking judicial
enforceability due to its unlawful character. NRS 200.030, subd. 1.
4. Homicide.
Although statute providing that a murder is a capital murder if perpetrated by executing a contract to kill
also provides that the contract need not be supported by consideration, the language does not foreclose
possible legislative intent to require a quid pro quo or agreed exchange to support a prosecution under the
statute. NRS 200.030, subd. 1.
5. Homicide.
Evidence of a mutual decision or manifestation of purpose to kill or an agreed purpose to kill will not, by
itself, support prosecution under statute providing for capital punishment for murder perpetrated by, inter
alia, executing a contract to kill. NRS 200.030, subds. 1, 1(c), 2, 2(a); U.S.C.A.Const. Amend. 8.
6. Criminal Law.
Defendant could not be convicted of capital murder perpetrated by executing a contract to kill based on
preliminary hearing evidence which showed no more than that he and his younger brother had formulated
and manifested to each other a mutual purpose to kill another. NRS 200.030, subds. 1, 1(c), 2, 2(a);
U.S.C.A.Const. Amend. 8.
OPINION
By the Court, Gunderson, C. J.:
This appeal challenges a district court order entered upon respondent Clinton Hanks'
petition for habeas corpus, dismissing a charge of capital murder allegedly perpetrated by
executing a contract to kill.
Nevada's capital murder statute, which our 1973 Legislature enacted in attempted
response to Furman v. Georgia, 408 U.S. 238 (1972), undertakes to make the death penalty
mandatory for five kinds of murder, including executing a contract to kill."
to kill. After so declaring, NRS 200.030(1)(c) further recites that contract to kill means
an agreement, with or without consideration, whereby one or more of the parties to the
agreement commits murder.
1
On respondent's petition, the district court reviewed the
evidence adduced at preliminary hearing before the committing magistrate, found it
insufficient to support a charge under NRS 200.030(1)(c), and therefore dismissed the
information. The prosecution has appealed.
2

At most, as the district court found, and as the prosecution apparently concedes, evidence
adduced at the preliminary hearing shows only that respondent Clinton Hanks, age 17, and his
brother Douglas Hanks, age 15, had somehow arrived at a mutual purpose to kill the victim,
Richard Hegwood. The record indicates that one morning in December of 1973, respondent
arrived by automobile at the victim's home, invited him for a ride, and drove to a desert
area near Las Vegas.
____________________

1
NRS 200.030(1) provides in significant part:
1. Capital murder is murder which is perpetrated by:
(a) Killing a peace officer or fireman: [under stated circumstances] . . .
(b) A person who is under sentence of life imprisonment without possibility of parole.
(c) Executing a contract to kill. For purposes of this paragraph contract to kill' means an agreement,
with or without consideration, whereby one or more of the parties to the agreement commits murder. All
parties to a contract to kill are guilty as principals.
(d) Use or detonation of a bomb or explosive device.
(e) Killing more than one person as the result of a common plan, scheme or design.

2
The power of state legislatures to reimpose the death penalty, for any crimes whatever, was left in doubt by
the U.S. Supreme Court in Furman v. Georgia, cited above. The Court there ruled the imposition and carrying
out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments. 408 U.S. at 239-40; emphasis added. This ruling was one of few points of agreement
among the majority justices in this five-to-four decision. All nine Justices wrote separate opinions, and Justices
Brennan and Marshall were the only members of the Furman majority to declare categorically that capital
punishment in all circumstances violates the Eighth Amendment.
In addition to challenging the sufficiency of the evidence to justify prosecution under NRS 200.030(1)(c)
correctly construed, respondent's counsel has questioned the constitutional efficacy of its death penalty
provisions. Finding the evidence insufficient to warrant prosecution under the statute, the district court did not
decide whether NRS 200.030(1)(c) contravenes constitutional principles established by Furman. It also was
unnecessary for the district court to consider the question left open in Furman, which is now again pending
before the U.S. Supreme Court in Fowler v. North Carolina, to-wit: whether the death penalty is cruel and
unusual per se. Since we believe the district court correctly determined that insufficient evidence was presented
to the committing magistrate, we likewise consider it unnecessary either to reach constitutional issues or to
request the district court to do so.
respondent arrived by automobile at the victim's home, invited him for a ride, and drove to a
desert area near Las Vegas. There, as Hegwood debarked and walked away from the vehicle,
respondent opened the car's trunk, releasing his younger brother Douglas who was hiding
there with a rifle. Douglas thereupon shot Hegwood once, and when he was unable or
unwilling to shoot again, respondent took the rifle and shot Hegwood three more times. Of
course, such evidence might support a determination of first degree murder.
3
The question,
however, is whether it evidences the respondent executed a contract to kill.
Although the prosecution's contentions are not entirely consistent, some of its arguments
suggest that executing a contract to kill requires nothing beyond a killing pursuant to
mutual understanding, however spontaneous and informal. To the contrary, the district court
believed that applying established canons of statutory construction, executing a contract to
kill envisions more than mere proof that the perpetrators in some fashion agreed to kill.
We affirm the district court.
[Headnotes 1, 2]
As this court long ago said: Penal statutes should be so clear as to leave no room for
doubt as to the intention of the legislature, and where a reasonable doubt does exist as to
whether the person charged with a violation of its provisions is within the statute, that doubt
must be resolved in favor of the individual. Ex Parte Davis, 33 Nev. 309, 318, 110 P. 1131,
1135 (1910); accord, Labor Comm'r v. Mapes Hotel Corp., 89 Nev. 21, 505 P.2d 288 (1973);
Sardis v. District Court, 85 Nev. 585, 460 P.2d 163 (1969). Moreover, another basic rule of
statutory construction requires courts to consider and, where possible, to reconcile all parts of
a statute. Cf. Nevada State Personnel Div. v. Haskins, 90 Nev. 425, 529 P.2d 795 (1974);
Herrick v. Herrick, 55 Nev. 59, 25 P.2d 378 (1933).
[Headnote 3]
Strictly construed, we think the word contract suggests something like a contract albeit
in the criminal realm, i.e., a definite and firm commitment involving bilateral or unilateral
obligations, lacking judicial enforcibility due to the bargain's unlawful character surely, but
still involving more than merely mutually understood purpose and intent.
____________________

3
NRS 200.030(2) provides, in part:
2. Murder of the first degree is murder which is:
(a) Perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful,
deliberate and premeditated killing.
mutually understood purpose and intent. Such a construction seems fortified by the word
executing in the phrase executing a contract to kill, which also may be read to suggest the
carrying out of a definite and firm, if illegal commitment. This construction does not seem
foreclosed by the remainder of the statute, on which the prosecution asks us to focus our total
attention.
[Headnote 4]
It is true that NRS 200.030(1)(c) says a contract to kill means an agreement, with or
without consideration, whereby one or more of the parties to the agreement commits murder.
Still, by this the Legislature may quite possibly merely have meant to indicate that
consideration, in the full and traditional legal sense of that term, need not be present. Thus
negating the need for legal consideration would by no means necessarily foreclose possible
legislative intent to require a quid pro quo or agreed exchange, which is the essence of an
agreement contractual in character. The concepts are not identical and co-extensive. An
agreed exchange is not a consideration in law, unless it is both voluntary and lawful. Cf.
Gaston v. Drake, 14 Nev. 175 (1879).
[Headnote 5]
Accordingly, as the district court perceived, the phrase with or without consideration
does not necessarily reflect legislative intent to render the words executing a contract'
nugatory, but instead may mean only that the crime can occur despite the unlawfulness of any
agreed exchange involved in a given criminal bargain. Thus, the duty to reconcile all parts of
a statute, where possible, and the doctrine requiring strict construction of penal statutes, both
support the district court's view that evidence of an agreed purpose to kill will not, by itself,
support a prosecution under NRS 200.030(1)(c).
Were this court to hold otherwise, in accord with the prosecution's urgings, we would
thereby mandate death for situations in which we believe the Legislature as a whole had no
thought to impose that penalty. For example, given such a construction, NRS 200.030(1)(c)
would even declare their crime capital if, at trial, the evidence ultimately showed that the
17-year-old respondent and his 15-year-old brother had formulated and manifested to each
other a mutual purpose to kill during the course of a spontaneous affray. Faithful application
of such a construction could make capital murder under NRS 200.030(1)(c) include almost
if not every first degree murder under NRS 200.030(2) (a), whenever more than one person
could be charged with the offense.
could be charged with the offense. This, it seems to us, the Legislature could not have
intended.
4

At this time, we cannot presume to assemble a comprehensive list of all factual situations
to which the statute, strictly construed, might or might not properly be deemed to apply.
Obviously, even strictly construed, the statute could well cover an employment relationship
whereby one party kills the victim for an agreed exchange. Arguably, the statute might
encompass a situation in which the killer is a member of a criminal combine or group, and the
agreed killing is in some way incident to the group's common pursuits or goals. However, in
our view, strictly construed as it properly must be, NRS 200.030(1)(c) does not extend to a
situation in which no more is shown than a mutual decision or manifestation of purpose to
kill.
[Headnote 6]
Accordingly, we hereby affirm the district court's dismissal of capital murder charges
against respondent Clinton Hanks, without prejudice to other appropriate proceedings.
Batjer, Zenoff, Mowbray, and Thompson, JJ., concur.
____________________

4
Query, if the Legislature did in fact so intend, could a death statute so pervasive, investing prosecutors with
so much potential for personal choice and discretion, satisfy objections against wanton and freakish
imposition of the death penalty, which the majority Justices in Furman v. Georgia apparently all felt was
constitutionally intolerable? Furman and companion cases involved death statutes in which the determination
of whether the penalty should be death or a lighter punishment was left by the State to the discretion of the judge
or of the jury. 408 U.S. at 240. In his concurring opinion, Mr. Justice Potter Stewart, a majority Justice who did
not then clearly declare capital punishment to be unconstitutional per se stated:
[A]t least two of my Brothers have concluded that the infliction of the death penalty is constitutionally
impermissible in all circumstances under the Eighth and Fourteenth Amendments. Their case is a strong one. But
I find it unnecessary to reach the ultimate question they would decide. . . .
These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and
unusual. . . . I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a
sentence of death under legal systems that permit this unique penalty to be so wantonly and freakishly imposed.
408 U.S. at 306, 309-310.
Accordingly, in light of Furman it may be questioned whether a pervasive state death statute is
constitutionally impermissible, because it merely shifts the discretionary power to make wanton and freakish
choices from juries and judges, to prosecutors. See: Comment, Capital Punishment after Furman, 64 J. Crim. L.
& C. 281, 285 (1973).
____________
91 Nev. 63, 63 (1975) Thompson v. Herrmann
PAUL THOMPSON and OLETA THOMPSON, Husband and Wife Appellants v. WALTER
E. HERRMANN and FERN E. HERRMANN Husband and Wife, Respondents.
No. 7324
January 29, 1975 530 P.2d 1183
Appeal from judgment of First Judicial District Court, Lyon County; Richard L. Waters,
Jr., Judge.
A complaint sought specific performance or damages resulting from an alleged breach of
contract for the construction of a dam and reservoir on the land of the plaintiffs. The district
court found in favor of the plaintiffs and awarded damages. The defendants appealed. The
Supreme Court, Mowbray, J., held that where there was complete failure of performance of
the dam construction contract, there could be no recovery by the contractor under the
agreement. However, there was no basis in the record for that portion of the judgment
awarding $11,500 to the plaintiff landowners for liens allegedly placed upon the property.
Affirmed as modified in total sum of $65,500.
Robert A. Grayson, of Carson City, for Appellants.
Carl F. Martillaro and Arthur Bayer, of Carson City, for Respondents.
1. Contracts.
Where there was complete failure of performance of dam construction contract, there could be no
recovery by contractor under the agreement.
Finding that there was complete failure of performance of contract, where supported by the record, could
not be disturbed on appeal.
3. Work and Labor.
Basis of recovery on quantum meruit is that party has received from another a benefit which is unjust for
him to retain without paying for it.
4. Contracts; Work and Labor.
Where there was complete failure of performance of dam construction contract, and it cost owner
$21,000 to remove partially constructed dam because of failure of contractor to follow plans for
construction, there could be no recovery on quantum meruit, but owners could recover the $21,000 cost of
removing the partially constructed dam.
5. Appeal And Error.
Where there was no evidence in the record to support $11,500 award for liens allegedly placed on
plaintiffs' land, judgment was modified to delete such award.
OPINION
By the Court, Mowbray, J.:
Walter E. Herrmann and his wife, Fern, filed a complaint in district court against Paul and
Oleta Thompson, seeking specific performance or, in the alternative, damages resulting from
an alleged breach of contract between the Herrmanns and the Thompsons, wherein Paul
Thompson agreed to construct a small dam and reservoir for the Herrmanns in Lyon County.
The Thompsons answered the complaint, and they filed a counterclaim, wherein they sought,
in alternative causes of action, damages for breach of contract, fraud, unjust enrichment, and
quantum meruit. The district judge found in favor of the Herrmanns and awarded them
damages in the sum of $77,000, from which judgment the Thompsons have appealed.
1. In January 1970, the Herrmanns agreed to lease to the Thompsons their ranch in Lyon
County. The term of the lease was for 7 years. The Thompsons agreed to pay a certain annual
rental and to make designated leasehold improvements on the property, including the
construction of an irrigation dam and reservoir in El Dorado Canyon. This lease agreement
was superseded by a later one, executed by the parties in December 1971, wherein among
other things the Thompsons agreed to commence construction and complete the dam before
March 7, 1972.
1

The Herrmanns agreed to execute a grant deed conveying to the Thompsons 115 acres of
their property, which deed was to be placed in escrow and to be delivered to the Thompsons
45 days after notice of completion of the dam had been recorded, provided that all liens
validly recorded within the time prescribed by statute had been satisfied.
2
The agreement
also provided: "The construction of said dam shall be under the supervision of and
constructed in a manner satisfactory and acceptable to Walter Reed [sic], who shall be
compensated by the Parties of the Second Part [the Thompsons] for any expenses
incurred from January 1, 1970 to completion, and be acceptable to the State Engineer, so
as to satisfy the requirements of Permit Number 23729.
____________________

1
The agreement, in paragraph 6, provided as follows:
6. That the completion schedule of the said dam shall be as follows:
a. December 14, 1971level fill compacted above pipe=45
b. January 1, 1972level fill compacted above pipe=60
c. February 7, 1972all dirt in place
d. March 7, 1972construction of dam completed.

2
The escrow instructions provided in part:
Walter E. Herrmann and Fern E. Herrmann may, prior to the expiration of 45 days after notice of
completion has been recorded, substitute the sum of $90,000 for the Grant Deeds herein referred to. In
the
provided: The construction of said dam shall be under the supervision of and constructed in
a manner satisfactory and acceptable to Walter Reed [sic], who shall be compensated by the
Parties of the Second Part [the Thompsons] for any expenses incurred from January 1, 1970
to completion, and be acceptable to the State Engineer, so as to satisfy the requirements of
Permit Number 23729. Upon Walter Reed [sic] and the State of Nevada accepting the dam as
being completed, it shall be complete and a notice of completion shall be recorded in Carson
City and Lyon County by Paul Thompson.
Paul Thompson commenced construction of the dam, following the plans previously
drafted by Walter Reid, who on occasion checked the progress of the work. Work continued
until January 1972, when it was stopped by the Nevada State Engineer. Starr Hill, Jr., an
engineer with the State, testified that construction was stopped because the application for the
permit which Mr. Reid had filed with the Division of Water Resources had never been finally
approved. After negotiations with the State, Mr. Reid's plans were amended, and approval to
proceed was given by the State.
3

It was at this time that Paul Thompson abandoned the project and returned to his home in
California. Starr Hill, Jr., Surface Water Engineer with the State, demanded in March 1972
that Mr. Herrmann either proceed with a firm schedule of construction of the dam or remove
what had been done by Paul Thompson.
4
The Herrmanns then engaged the Worthington
Construction Company of Elko, Nevada, to complete the project.
____________________
event of such substitution, you are instructed to deliver to Paul Thompson and Oleta Thompson sums in
the same proportion and under the same terms as the distribution of the land above described.

3
Two articles were added to Mr. Reid's initial specifications:
ART. 8, RIP RAP
The sizing of the riprap placed on the upstream embankment will conform with the specifications in
Design of Small Dams,' page 207.' [sic].
ART. 9, FILTER BLANKET DRAIN
The sizing of the material placed in the filter blanket drain will conform to the Sharp-Crater test
results of February 10, 1972, of sample submitted from dam site (T-210-40).

4
Mr. Hill's letter stated, in part:
March 23, 1972
Mr. W. E. Herrmann
Rt. 1, Box 564
Vacaville, California 95688
Dear Mr. Herrmann:
A field investigation of Eldorado Canyon Dam on March 20, 1972, by personnel of this office
determined that all construction at the dam site had ceased and all equipment except one junked D8 Cat
had been
The Herrmanns then engaged the Worthington Construction Company of Elko, Nevada, to
complete the project. Two of the changes required by the State included a filter blanket and
the approval of a natural or constructed keyway at the bottom of the dam. In order to approve
the keyway, it was necessary to inspect the bedrock beneath the dam, which required removal
of certain compact material. When the removal was commenced, it was discovered that the
fill provided by Thompson included large boulders, pine trees and trunks, plus sagebrush,
which, of course, were not specified in the plans Reid had furnished Thompson.
5
As a result,
it was necessary to remove all the compact fill and start from the beginning to build the dam.
6
Mr. Walter Reid, upon direct examination by Mr. Martillaro, testified that Thompson had
failed to follow his plans and specifications and that the work was completely defective.7
[Headnotes 1, 2]
____________________
removed from the site. The outlet pipe was of ample capacity to carry present stream flow through the
partially constructed dam.
. . .
Please be informed that you have until three months from the date of this letter in which to continue
construction of the dam. The partially constructed dam is, at present, an obstruction in the stream
channel. If construction has not continued by June 23, 1972, it will be necessary for you to have the
partially constructed dam completely removed from the channel to eliminate any hazard it may create
down stream.
Sincerely,
Starr Hill Jr.
Starr Hill, Jr.
Surface Water Engineer

5
Article 1 of the Specifications stated in part:
ART. 1, EARTH EMBANKMENT
. . .
b. Fill Material:
(1) The borrow for the material for the fill may be taken from either side of the dam site upstream
of the dam.
(2) All roots, stumps, humus and vegetable matter shall be removed from the fill material.
(3) All rocks larger than six inches (6) in diameter shall be excluded from the upstream two
thirds (2/3) of the dam and may be placed in the downstream one third (1/3) if not so large as to interfere
with getting the proper compaction.

6
Mr. Ralph Walter Herrmann, Mr. Herrmann's son, upon direct examination by Mr. Martillaro, testified:
Q None of the construction that was in place could be used?
A Correct.
Q Why was that?
A Because of non-compaction, because of trees found in the middle of the dam, brush, boulders,
boulders larger than yourself, because of pipe that was run through the dam that was only encased in
concrete on the top and that leaked in the middle. The bottom of the area was
testified that Thompson had failed to follow his plans and specifications and that the work
was completely defective.
7
[Headnotes 1, 2]
____________________
totally unsatisfactory. Water would run through there. In fact, one time we thought we had a problem with
a spring in the middle of the dam, and we found out that it was just a leak in the pipe.
Q In other words, you just had to start from scratch?
A Yes.
Q Everything had to come out?
A Yes.

7
Mr. Walter G. Reid, engineer, upon direct examination by Mr. Martillaro, testified:
Q What else did you find?
A We found that the gravel had been left in there, and so the water was seeping through as far back
as the last rock ledge, which seemed to have sealed upsealed that off all right, but it left water coming
through. It was when we dug down that we discovered this.
Q And was that in violation of the plans and specifications?
A Yes.
It was all loose material and it was supposed to be removed. Then we found as we wentOf course,
we discovered that the pipe wasn't jacketed, and then we had to take out all of the material on either side.
We knew we had to take it out as we went down or excavate it as we went down. We found pockets of
rocks and brush and gravel that had been pushed in there.
Q Now, when you are speaking about that, what were the size of rocks that were supposed to
bethe largest size that was permitted under the plans and specifications?
A The specifications called for everything above six inches to be removed. From the center part or
up streamThe upper two thirds could be coarse material to a certain extent. But in the portion that we
call the main or impervious portion everything above six inches was supposed to be removed.
Q And what did you discover there?
A There were many rocks that were two and three feet in diameter.
Q And even larger than that?
A Yes.
Q How about other debris?
A Well, we found some stumps and parts of trees as well as brush and
Q And that was not supposed to be there according to the plans and specifications?
A No. This would cause failure in the dam because the trees would rot in time and, of course, leave
a void.
Q In your professional opinion as an engineer, Mr. Reid, all of the construction work that was in
place or placed there by Mr. Thompson had to be removed; is that correct?
A Yes.
Q And that was because of the failure to follow the plans and specifications?
A Right.
[Headnotes 1, 2]
2. The district judge found, and correctly so, that Thompson's performance was so
inadequate and his work so defective that he was barred from any recovery under the
agreement of the parties. As the Colorado court said in Little Thompson Water Ass'n v.
Strawn, 466 P.2d 915, 917 (1970):
. . . The rules appear to be that if the promisor proves complete and full performance, he
is entitled to recover the complete and full consideration bargained for; if the proof
establishes something less than full and complete performance, that is, substantial
performance only, he is entitled to recover the contract price less those necessary
expenditures required to complete the performance bargained for; and, if the performance
falls short of being substantial, then the promisor is entitled to no recovery. See also 3 A.
Corbin, Contracts 700-12; 17 Am.Jur.2d Contracts 375. Whether performance is
complete, substantial, or less than substantial involves a factual determination for the trier of
facts, here, the jury.
In the instant case, the district judge as the trier of the facts found a complete failure of
performance on Thompson's part, and the record supports that finding. It may not be
disturbed on appeal. Britz v. Consolidated Casinos Corp., 87 Nev. 441, 488 P.2d 911 (1971);
Nevada Bank of Commerce v. Esquire Real Estate, Inc., 86 Nev. 238, 468 P.2d 22 (1970).
[Headnotes 3, 4]
The Thompsons argue, on the basis of a quantum meruit theory, that the court erred in not
awarding them damages for the work that Paul Thompson actually did on the dam and for the
alleged moneys he spent in hiring certain help and buying fuel for the machinery. The basis of
recovery on quantum meruit, however, is that a party has received from another a benefit
which is unjust for him to retain without paying for it. Maui Aggregates, Inc. v. Reeder, 446
P.2d 174 (Hawaii 1968). However, here there was no showing of a benefit flowing from the
Thompsons to the Herrmanns. As a matter of fact, the record is uncontroverted that it cost the
Herrmanns $21,000 to remove the partially constructed dam because of Thompson's failure to
follow the plans for its construction.
8
[Headnote 5]
____________________

8
Ralph Walter Herrmann testified on direct examination by Mr. Martillaro:
Q Did you enter into an agreement with them [Worthington Construction Company]?
A Yes.
Q What was that agreement?
A That agreement was that I was to pay them $63,000.00 to build
[Headnote 5]
3. The district judge awarded the Herrmanns $77,000 in damages as follows: $16,500
loan for the purchase of equipment; $16,500 personal loan; another $11,500 loan for purchase
of equipment; $21,000 cost for removing the partially constructed dam; and $11,500 to cover
liens filed on the property. The record clearly and adequately supports the judgment with the
exception of the $11,500 award for liens, for which we find no supportive evidence. We
therefore modify and affirm the judgment in favor of the Herrmanns in the total sum of
$65,500.
Gunderson, C. J., and Batjer, Zenoff, and Thompson, JJ., concur.
____________________
the same dam, plus additional funds for whatever amount that they had to remove that was in existence.
Q How much had to be removed?
A All of it.
Q How much did that cost?
A That cost over $21,000.00. The $21,000.00 would be in excess of the $63,000.00. . . .
____________
91 Nev. 69, 69 (1975) Phillips v. Incline Manor Association
BARBARA F. PHILLIPS, Appellant, v. INCLINE MANOR
ASSOCIATION, a Nevada Corporation, Respondent.
No. 7525
January 29, 1975 530 P.2d 1207
Appeal from order setting aside default judgment and quashing service of process, Second
Judicial District Court, Washoe County; Thomas O. Craven, Judge.
The Supreme Court held that (1) service of process on domestic corporation was
ineffective where service was attempted by leaving a copy of the summons and the complaint
with the fourteen-year-old son of the president of the corporation at the president's residence;
consequently, the default judgment entered thereon was void and properly set aside, but (2)
the defense of insufficiency of service of process was waived by defendant's responsive
pleading filed in aid of its motion to set aside the default judgment.
Order setting aside default judgment affirmed, quashing service of process reversed.
Herbert P. Ahlswede, of Incline Village, for Appellant.
91 Nev. 69, 70 (1975) Phillips v. Incline Manor Association
Hibbs & Bullis, Ltd., and Roger E. Newton, of Reno, for Respondent.
1. Corporations; Judgment.
Service of process on domestic corporation was ineffective where service was attempted by leaving a
copy of the summons and complaint with the fourteen-year-old son of the president of the corporation at
the president's residence; consequently, the default judgment entered thereon was void and properly set
aside. NRCP 4(d)(1), 60(b)(3).
2. Process.
Defense of insufficiency of service of process was waived by defendant's responsive pleading filed in aid
of its motion to set aside default judgment. NRCP 12(b).
OPINION
Per Curiam:
This appeal by Phillips is from an order of the district court setting aside a default
judgment entered in her favor against the defendant domestic corporation.
[Headnote 1]
Service of process was attempted by leaving a copy of the summons and complaint with
the fourteen-year-old son of the president of the defendant corporation at the president's
residence. Service was ineffective for failure to comply with the requirements of NRCP
4(d)(1) which designates the manner in which a domestic corporation is to be served. Cf.
Certain-Teed Prods. v. District Court, 87 Nev. 18, 479 P.2d 781 (1971). Consequently, the
default judgment entered thereon was void, and the court properly set it aside. NRCP
60(b)(3).
[Headnote 2]
The record indicates that after entry of default judgment, the defendant corporation also
moved to quash service of process, which motion apparently was considered simultaneously
with the defendant's motion to set aside the default judgment. The district court granted said
motion to quash. This was error, since the defense of insufficiency of service of process was
waived by the responsive pleading filed in aid of the motion to set aside the default judgment.
NRCP 12(b).
Accordingly, in its action setting aside the default judgment, the district court is affirmed;
its action quashing service of process is reversed.
____________
91 Nev. 71, 71 (1975) Board of Comm'rs v. Dayton Dev. Co.
BOARD OF COMMISSIONERS OF THE CITY OF LAS VEGAS, NEVADA, Appellants,
v. DAYTON DEVELOPMENT COMPANY, a Minnesota Corporation, and THOMAS T.
BEAM, Respondents.
No. 7741
January 29, 1975 530 P.2d 1187
Appeal from a judgment directing the issuance of a writ of mandamus; Eighth Judicial
Proceeding in mandamus was brought by development corporation to compel
reclassification of certain property by board of city commissioners following tie vote by board
on application for reclassification which resulted in application not being granted. The district
court granted mandamus, and board appealed. The Supreme Court, Thompson, J., held that
appeal was authorized by board, that trial court was empowered to decide issue without
deference to board, that issuance of mandamus was proper, but was modified to include
conditions specified by planning commission.
Affirmed, as modified.
Carl E. Lovell, Jr., City Attorney of Las Vegas, and John P. Foley, Special Counsel, of
Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy & Jemison, Chartered, of Las Vegas, for Respondent Dayton
Development Company.
1. Mandamus.
Where proceeding in mandamus was brought by development corporation to compel reclassification of
certain property by board of city commissioners and writ of mandamus subsequently issued was directed to
board as board and not to individuals thereof as individuals, appeals by individual members of board from
issuance of such writ were dismissed.
2. Officers.
Although proper resolution of merits is in jeopardy if office holder, who has conflict of interest is allowed
to vote on merits of an issue, such public office holder should not also be barred from casting his vote for
appellate review, which will not be affected by office holder's vote favoring such review.
3. Zoning.
Where board of city commissioners' motion to appeal passed by vote of three to two, with commissioner,
who disqualified himself from voting on merits of application by development corporation to reclassify
certain property from residential and civic to commercial, casting deciding vote to appeal, appeal was
authorized by board acting as such through majority of its members qualified to vote.
by board acting as such through majority of its members qualified to vote.
4. Zoning.
Zoning is legislative matter. NRS 278.260.
5. Zoning.
Generally, zoning power should not be subjected to judicial interference unless clearly necessary.
6. Mandamus.
Extraordinary remedy of mandamus is available to compel performance of an act which the law
especially enjoins as a duty resulting from office.
7. Mandamus.
Mandamus is available to correct manifest abuse of discretion by governing body including governing
body's decision in zoning cases.
8. Zoning.
Where board of city commissioners, in attempt to exercise its discretion and resolve issue presented by
application of development corporation to obtain reclassification of certain property from residential and
civic to commercial, was unable to do so because of tie vote which resulted in applicant losing, neither
district court nor Supreme Court was able to review record before board and ascertain whether board's
decision was arbitrary and capricious.
9. Mandamus.
Where board of city commissioners was unable to reach decision, by virtue of tie vote, on issue presented
by application of development corporation for reclassification of land from residential and civic to
commercial, it was appropriate to extend scope of mandamus in order to allow court review and decision
and thus court was empowered to decide issue placed before it without deference to action of board.
10. Mandamus.
Where, inter alia, feasibility study indicated property sought by development corporation to be
reclassified from residential and civic to commercial was located at optimal site for shopping center,
people in area supported such reclassification, and planning commission had approved such reclassification
by six to zero vote, issuance of mandamus directing such reclassification was proper, upon failure of board
of city commissioners to decide issue, when modified to include conditions, with exception of limit of date
of commencement of project, specified by planning commission, despite failure of board to approve such
reclassification.
OPINION
[Headnote 1]
This appeal by the Board of Commissioners of the City of Las Vegas is from a judgment
of the district court compelling by a writ of mandamus, the reclassification of certain real
property to allow the proposed construction of a regional shopping center.1
property to allow the proposed construction of a regional shopping center.
1

The respondents, Dayton Development Company and Beam, filed an application with the
City Planning Commission to reclassify certain property from residential and civic to
commercial. The property comprises approximately 125 acres of unimproved land and is
between Valley View Boulevard and Decatur Boulevard, and abuts on the south side of the
Las Vegas Expressway. During the next several years, Dayton proposes to construct thereon a
regional shopping center. The plan contemplates three or four major department stores,
including a tire, battery and accessories facility and a gas station and garden center for each.
Later on, Dayton envisions the construction of an office complex, a financial center, and
garden-type townhouses or condominiums.
The Planning Commission, by a six to nothing vote, recommended approval of the
application by the Board of City Commissioners, which is composed of five individuals. One
of them, George Franklin, an attorney, disqualified himself since the relationship of attorney
and client existed between him and Thomas Beam, one of the applicants seeking
reclassification of the property. Indeed, Franklin had advised Beam with respect to certain of
the provisions of the agreements between Beam and Dayton Development by which the latter
was granted options to purchase the very property for which rezoning was sought.
Consequently, only four commissioners voted upon the application for reclassificationtwo
in favor of reclassification as recommended by the Planning Commission, and two against. In
view of the tie vote, the application for reclassification lost. A majority of Commissioners
qualified to vote must approve the application before it may be granted.
Dayton Development and Beam then sought court relief. They filed a proceeding in
mandamus to compel reclassification of the property by the Board of City Commissioners,
and persuaded the district court that such reclassification should occur. The Board then
convened to consider whether to appeal from that judgment. A motion to appeal passed by a
vote of three to two. Commissioner Franklin cast the deciding vote to appeal.
____________________

1
Certain individual members of the Board also seek to appeal. Since the mandamus proceeding was against
the City Commissioners acting in their official capacities, and not as individuals, and since the writ of mandamus
was directed to the Board of City Commissioners as a Board and not to the individuals thereof as individuals, the
individual appeals are dismissed. State ex rel. List v. County of Douglas, 90 Nev. 272, 524 P.2d 1271 (1974).
Before reaching the merits, we first must resolve a pending motion by the Respondent
Dayton Development to dismiss this appeal.
1. Dayton contends that this appeal must be dismissed since it was not authorized by the
Board, acting as such, through a majority of its members qualified to vote. This contention, of
course, rests squarely on the proposition that Commissioner Franklin, who had disqualified
himself with respect to the merits of the rezoning application, also was disqualified to vote on
the motion to appeal since his conflict of interest continued to exist. The Board counters with
the argument that Franklin's vote to appeal was not a vote for or against the zoning change,
but simply was a vote to submit the district court's judgment to appellate review and should
be counted for that purpose.
The Texas case of Hager v. State ex rel. TeVault, 446 S.W.2d 43 (Civ.App.Tex. 1969),
appears to lend support to the respondent's contention. In that case, a city councilman, whose
recall was demanded, was, by the appellate court, ruled disqualified to vote on the resolution
which, by a three to two vote authorized the filing of a notice of appeal. The court reasoned
that such councilman was directly and immediately affected by the litigation, and was
precluded from voting, with the consequence that a majority of councilmen qualified to vote
was not obtained, and the appeal was a nullity. The appellant has not tendered contra
authority, nor have we found any directly on point.
[Headnotes 2, 3]
To a degree, the posture of Commissioner Franklin in the case at hand is different than that
of the Texas councilman. Franklin will not himself be directly and immediately affected by
court review. His client, of course, will be. This difference aside, we are not persuaded to
adopt the Texas view. It seems to us that a public office holder, disqualified to vote upon the
merits of an issue, should not also be barred from casting his vote for appellate review. A
proper resolution of the merits is in jeopardy if an office holder, who has a conflict of interest,
is allowed to vote on the merits. Court review, however, is another matter. The court's
resolution of the merits will not in any manner be affected by that office holder's vote
favoring such review. Accordingly, we conclude that this appeal was authorized by the Board
of City Commissioners, acting as such, through a majority of its members qualified to vote.
The motion to dismiss is denied.
2. As we turn to consider the merits it is worthwhile to state some established principles
with respect to zoning generally, and with regard to the availability of mandamus particularly.
[Headnotes 4, 5]
Zoning is a legislative matter and the legislature has acted. Eagle Thrifty v. Hunter Lake
P.T.A., 85 Nev. 162, 451 P.2d 713 (1969). It has authorized the governing body to provide
for zoning districts and to establish the administrative machinery to amend, supplement and
change zoning districts. NRS 278.260. As a general proposition, the zoning power should not
be subjected to judicial interference unless clearly necessary. Coronet Homes, Inc. v.
McKenzie, 84 Nev. 250, 439 P.2d 219 (1968).
[Headnotes 6, 7]
The extraordinary remedy of mandamus is available to compel the performance of an act
which the law especially enjoins as a duty resulting from office. State ex rel. List v. County of
Douglas, 90 Nev. 272, 524 P.2d 1271 (1974); Armstrong v. State Bd. of Examiners, 78 Nev.
495, 376 P.2d 492 (1962). That writ also is available to correct a manifest abuse of discretion
by the governing body, and occasionally has been so utilized in zoning cases. State ex rel.
Johns v. Gragson, 89 Nev. 478, 515 P.2d 65 (1973); Henderson v. Henderson Auto, 77 Nev.
118, 359 P.2d 743 (1961).
[Headnote 8]
With regard to the remedy of mandamus, the case at hand presents an entirely new
problem. It is apparent that the Board of City Commissioners was not under a duty to grant
the requested zoning change since the application therefor was addressed to the sound
discretion of the Board. We think it to be equally clear that the Board, in an attempt to
exercise its discretion and resolve the issue before it, was unable to do so because of the tie
vote. As we see it, the exercise of discretion contemplates a decision. Here, none was made.
The applicants lost simply because a majority vote was not secured. They did not lose
because a majority, qualified to vote, exercised a discretionary judgment against them. The
Commissioners divided equally in attempting to resolve the merits. Thus, a determination by
the Board, for or against the application, was not made. Consequently we are wholly unable
in this case, to review the record before the Board and ascertain whether its decision was
arbitrary and capricious, since the Board was unable to reach a decision.
decision. Neither was the district court in a position to make that determination. Cf. State ex
rel. Johns v. Gragson, supra, and Henderson v. Henderson Auto, supra.
[Headnote 9]
In this highly unusual context, we believe that it is appropriate to extend the scope of
mandamus in order to allow court review and decision. Any other view would permit the
possible loss of valuable rights by reason of the Board's failure to decide the issue. We are not
willing to countenance such a result.
Having decided that it was permissible for the district court to entertain mandamus in this
unusual context, it inevitably follows that the court also was empowered to decide the issue
placed before it without deference to the action of the Board of City Commissioners who had
been unable to resolve the matter. This court, in turn, will resolve this appeal by examining
the record to ascertain whether the lower court determination is supported by the evidence.
2

[Headnote 10]
3. The district court, after reviewing all data submitted to the Planning Commission and
subsequently to the Board of City Commissioners, concluded that the requested rezoning
should occur. Several factors apparently led the court to so rule. It noted that the City of Las
Vegas had employed Desert Research Associates to conduct a feasibility study regarding the
regional shopping potential for the Las Vegas metropolitan area. That study, in detailed form,
found the optimal location for such a center to be in the northwest area of the City as near as
possible to the intersection of the Interstate 15 Freeway and the Las Vegas Expressway. The
letter transmitting that report noted a preference for direct freeway access. The property in
issue appeared to suit the findings of the feasibility study.
With regard to street access to the proposed center, Dayton Development represented that
it would donate the land necessary for the Expressway-Valley View interchange when
requested and would participate significantly in the cost thereof. Other experts noted that
expected traffic would not pose a serious problem.
People residing in the general area overwhelmingly favored the application for
reclassification. Moreover, the Planning Commission in whom is vested the obligation to
study such applications and to recommend action thereon, had concluded by a vote of six
to nothing that the Board of City Commissioners should approve the rezoning sought by
Dayton Development and Beam.
____________________

2
Had the Board of City Commissioners decided the issue, our function would be to review its decision in the
light of the standards declared in State ex rel. Johns v. Gragson, supra, and Henderson v. Henderson Auto, supra.
applications and to recommend action thereon, had concluded by a vote of six to nothing that
the Board of City Commissioners should approve the rezoning sought by Dayton
Development and Beam.
The factors just mentioned possess substance and force, and provide ample support for the
judgment that a writ of mandamus issue. The judgment, however, is overly broad.
When a rezoning application is approved, certain conditions customarily are imposed. In
the present instance, the Planning Commission recommended rezoning upon compliance with
the conditions footnoted below.
3
The record shows that Dayton Development does not
object to those conditions, except that the time within which construction on Phase I of the
project must commence should begin to run from the date that ecology approval is secured
from appropriate authorities. We, therefore, modify the judgment entered below to include
the conditions specified by the Planning Commission, except that the time within which
Phase I of the Project is to commence shall begin to run from the date that ecology
approval is secured.
____________________

3
1. Resolution of Intent shall be in effect until December 1975, at which time the resolution of intent shall
expire unless construction of Phase I, including a minimum of two major department stores, has commenced.
2. Conformance to the plot plan.
3. All development proposed on the future development site as shown on the plot plan shall be approved by
the Planning Commission prior to construction.
4. If the property owner to the south is willing to dedicate the additional right of way needed to extend
Bedford Road and Revere Drive north to the south line of the shopping center property, the developer shall
provide a loop street connecting the north end of Bedford Road and Revere Drive either along the south line of
the shopping center property or by acquiring property immediately south of the south line.
5. The location of Michael Way on the east of Decatur Blvd. shall be in accordance with the requirements of
the Public Works Department.
6. Landscaping shall be installed along Decatur Blvd. and Valley View Blvd. and along the south portion of
the development with the first phase of construction as required by the Planning Department.
7. Dedication of necessary rights of way and signing an agreement and posting a bond for the installation of
off-site improvements as required by the Department of Public Works. The commercial zoning shall be
applicable only to that portion of the property indicated for immediate and future development and shall exclude
that portion of the property indicated for future freeway right of way purposes.
8. Conformance to the requirements of the Fire and Building Departments.
9. Landscaping shall be provided as required by the Planning Commission and shall be permanently
maintained in a satisfactory manner. Failure to properly maintain required landscaping shall be cause for
revocation of a business license.
within which Phase I of the Project is to commence shall begin to run from the date that
ecology approval is secured.
Affirmed, as modified.
____________
91 Nev. 78, 78 (1975) Allen v. State
WILTON EARL ALLEN, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 7036
January 29, 1975 530 P.2d 1195
Appeal from a judgment of conviction, Eighth Judicial District Court, Clark County;
William P. Compton, Judge.
Defendant was convicted in the district court of second-degree murder, and he appealed.
The Supreme Court, Batjer, J., held that even assuming that motion to suppress evidence
found in defendant's automobile should have been granted, admission of such evidence was
harmless beyond reasonable doubt in light of defendant's own testimony relative to shooting
and his disposal of murder weapon; that appellate court would not consider assigned error in
admission of hearsay testimony of victim's fellow employee relating to conversation which
she had overheard on day of murder between victim and defendant, where defense counsel
failed to object to such testimony at the time it was given; and that witness' testimony that he
and defendant had conversation about defendant's having written some hot checks did not
constitute reversible error, where such testimony was no more than an inadvertent hint of
another criminal activity, it was not solicited by prosecution but rather was blurted out by
witness, and jury was immediately admonished to disregard it.
Affirmed.
Morgan D. Harris, Public Defender, and Sherman H. Simmons, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General, Carson City; George Holt, District Attorney, and Charles
L. Garner, Deputy District Attorney, Clark County, for Respondent.
1. Searches and Seizures.
In order to have standing to object to search, aggrieved party must be one against whom search has been
directed.
2. Criminal Law.
In murder prosecution, assuming arguendo that motion to suppress evidence found in
defendant's automobile should have been granted, admission of such evidence was
harmless beyond reasonable doubt in light of defendant's own testimony relative to
shooting and his disposal of murder weapon.
91 Nev. 78, 79 (1975) Allen v. State
suppress evidence found in defendant's automobile should have been granted, admission of such evidence
was harmless beyond reasonable doubt in light of defendant's own testimony relative to shooting and his
disposal of murder weapon.
3. Criminal Law.
Appellate court would decline to consider assigned error in admission of hearsay testimony of victim's
fellow employee relating to conversation which she overheard on day of murder between victim and
defendant, where defendant failed to object to such testimony at the time it was given.
4. Criminal Law.
Color photographs of victim used by a doctor to explain cause of death to jury are properly admissible
because they aid in ascertainment of truth; probative value of such photographs outweighs any prejudicial
effect they might have on jury.
5. Criminal Law.
Where police officers went to defendant's residence to search for defendant and to inquire about welfare
of defendant's minor children, where defendant was not present but young children were at home
unattended, where officers dressed children prior to taking them to child care facility for neglected and
abandoned children, and where, while gathering clothes for children, officers found two gun boxes in
dresser in master bedroom, admission of testimony regarding such gun boxes in murder prosecution was
error despite contention they were in plain view, but such error was harmless beyond reasonable doubt in
light of defendant's own testimony relative to shooting and his disposal of murder weapon.
6. Criminal Law.
In murder prosecution, witness' testimony that he and defendant had conversation about defendant's
having written some hot checks did not constitute reversible error, where the hint of criminal activity was
no more than inadvertent, the testimony was not solicited by prosecution but rather was blurted out by
witness, and jury was immediately admonished to disregard the witness' statement.
7. Criminal Law.
In murder prosecution, where defendant cited no authority for assignment of error that admission of
testimony and exhibits relating to his purchase of gun which was not murder weapon was prejudicial,
appellate court did not have to consider the assignment of error.
8. Criminal Law.
Credibility and weight to be given to testimony are matters resting within province of jury.
OPINION
On September 23, 1971, Bobbie Ann Allen and James Phillips were shot to death in the
parking lot of Jerry's Nugget Casino in North Las Vegas, Nevada. Bobbie Ann was the wife
of appellant, and James Phillips was her paramour.
91 Nev. 78, 80 (1975) Allen v. State
Appellant and Bobbie Ann had been husband and wife for approximately 10 years prior to
the date of the shooting. However, Bobbie Ann had initiated divorce proceedings, and the
record indicates that for a period of approximately five years prior to the shooting there had
been marital difficulties between them.
The day of the shooting Bobbie Ann drove to work and thereafter related to a fellow
employee that she had had a rough time with appellant the night before and was not going
home after work. The hearing for divorce was scheduled the next day.
Before their deaths, Bobbie Ann and Phillips had exchanged cars. Near the end of Bobbie
Ann's shift, appellant went to Jerry's Nugget ostensibly to ride home with her. There he saw
Phillips waiting in Bobbie Ann's car, so he went to the car, got in and sat down. When Bobbie
Ann came into the parking lot she approached the side of the car occupied by Phillips and the
three of them engaged in conversation. Appellant then got out of the car and purportedly
walked around to Bobbie Ann to console her. Appellant testified that Bobbie Ann then pulled
a gun, and as they struggled it discharged, killing Phillips. Appellant claims that he cannot
recall what happened next, and does not remember the two shots which killed Bobbie Ann.
There were no eyewitnesses to the shooting. The Pathologist reported no powder burns on
either of the victims.
Appellant testified that he moved Bobbie Ann's body so he would not have to back the car
over her as he left. A security guard responding to the shots and screams entered the parking
lot, recognized the appellant, and the car, and took down the license number. Appellant drove
to Glendale, Nevada, where he left the car at a service station and then hitchhiked back to Las
Vegas. He testified that he returned to Jerry's Nugget, made inquiry, and upon being informed
that there had been a shooting, hitchhiked into Arizona by way of Hoover Dam. He claims
that during a brief stop at the damsite he threw the gun over the dam. It was never recovered.
Later appellant arrived in Amarillo, Texas, where he phoned his mother and arranged for
his sister to go to Las Vegas to care for his children. He then hitchhiked back to Las Vegas
with several young runaways from Texas, arriving in Las Vegas early on the morning of
September 27, 1972. Las Vegas police, who had his house under surveillance, arrested him.
Appellant, given the warning required by Miranda v. Arizona, 384 U.S. 436 (1966), was
asked the whereabouts of his car.
91 Nev. 78, 81 (1975) Allen v. State
car. He revealed that it was parked in Glendale, Nevada. The officer who was dispatched to
recover the car found it, placed evidence seals on the trunk lid and all doors, and had it towed
back to Las Vegas where it was searched pursuant to warrant, and photographed. The search
revealed two small pistols. The pistols and photographs became the basis of a motion to
suppress, which attacked the sufficiency of the affidavit supporting the search warrant.
Although the trial judge concluded that the affidavit was defective, he denied the motion
because he determined that the car had been abandoned and appellant had no standing to
complain about the search.
[Headnote 1]
1. In order to have standing to object to a search, the aggrieved party must be the one
against whom the search has been directed. Dean v. Fogliani, 81 Nev. 541, 407 P.2d 580
(1965). Appellant clearly qualified in this regard. See also, Jones v. United States, 362 U.S.
257 (1960), and Gebert v. State, 85 Nev. 331, 454 P.2d 897 (1969).
The abandonment theory may be questioned. The car was located, through information
supplied by the appellant on the premises of a Glendale service station. Cases cited by
respondent to support the abandonment theory are clearly distinguishable from this case. In
Laws v. State, 251 A.2d 237 (Md. 1969), a car punctured by bullets during flight from an
armed robbery was found, through police description, on a public street with no license
plates. See People v. Smith, 409 P.2d 222 (Cal. 1966), cert. denied 388 U.S. 913 (1967).
[Headnote 2]
However, even assuming the motion to suppress should have been granted (Mapp v. Ohio,
367 U.S. 643 (1961); Barnato v. State, 88 Nev. 508, 501 P.2d 643 (1972)), the admission of
the evidence was harmless beyond a reasonable doubt in light of appellant's own testimony
relative to the shooting and his disposal of the murder weapon. Harrington v. California, 395
U.S. 250 (1969); Chapman v. California, 386 U.S. 18 (1967); Rhodes v. State, 91 Nev. 17,
530 P.2d 1199 (1975). Cf. Schneble v. Florida, 405 U.S. 427 (1972).
[Headnote 3]
2. Appellant next asserts that the district court committed error in admitting the hearsay
testimony of Joyce Kirchner, a fellow employee of Bobbie Ann's, who testified to a
conversation which she had overheard on the day of the murder between Bobbie Ann and
appellant. Inasmuch as there was no objection by defense counsel at the time the testimony
was given, we decline to consider the assigned error, which was raised for the first time
on appeal.
91 Nev. 78, 82 (1975) Allen v. State
objection by defense counsel at the time the testimony was given, we decline to consider the
assigned error, which was raised for the first time on appeal. Sherman v. State, 89 Nev. 77,
506 P.2d 417 (1973); Bonnenfant v. State, 86 Nev. 393, 469 P.2d 401 (1970).
[Headnote 4]
3. Appellant also contends that the district court erred by admitting into evidence color
photographs of the victims, which he claims were taken after autopsies were performed. The
record clearly shows that they were taken prior to the autopsies. Color photographs of a
victim used by a doctor to explain the cause of death to a jury are properly admissible because
they aid in the ascertainment of truth. The probative value of the photographs outweighs any
prejudicial effect they might have on the jury. Shuff v. State, 86 Nev. 736, 476 P.2d 22
(1970); Summers v. State, 86 Nev. 210, 467 P.2d 98 (1970); Walker v. State, 85 Nev. 337,
455 P.2d 34 (1969); Wallace v. State, 84 Nev. 603, 447 P.2d 30 (1968).
[Headnote 5]
4. On the night of the shooting, police officers went to the Allen residence to search for
appellant and to inquire about the welfare of the couple's minor children. Appellant was not
there but the young children were at home unattended. The officers dressed the children prior
to taking them to Child Haven, a child care facility for neglected and abandoned children in
Las Vegas. While gathering clothes for the children, the officers found two gun boxes in a
dresser in the master bedroom. One was for a gun purchased by Bobbie Ann in South
Carolina in July of 1968; the other for a gun which was never found.
Appellant asserts that it was reversible error to allow the testimony regarding the gun
boxes. The trial court ruled that the officers were properly on the premises to take the
children into custody and thus could seize evidence in plain view.
The record does not support the plain view position of the trial judge, and the admission
of the testimony regarding the gun boxes was error. Again the error was harmless beyond a
reasonable doubt in light of appellant's own testimony relative to the shooting and his
disposal of the murder weapon. Harrington v. California, supra; Chapman v. California,
supra; Rhodes v. State, supra. Cf. Schneble v. Florida, supra.
91 Nev. 78, 83 (1975) Allen v. State
[Headnote 6]
5. Likewise, the unsolicited testimony of one of the juveniles from Texas, with whom the
appellant hitchhiked back to Las Vegas, was not prejudicial. While on the stand the youth
blurted out that he and the appellant had a conversation about appellant's having written some
hot checks. The trial court immediately admonished the jury and permitted direct
examination to continue. Then after a brief cross-examination by defense counsel he moved
for a mistrial, which was denied.
Relying on Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967), and Nester v. State, 75
Nev. 41, 334 P.2d 524 (1959), appellant contends this was reversible error. Such reliance is
misplaced. In Fairman the prosecutor offered evidence of a separate act of sale and
possession of a narcotic, and the conviction was reversed. In Nester evidence of another rape
was allowed into evidence to establish the identity of the defendant on the rape charged, and
his conviction was upheld.
Here there was no more than an inadvertent hint of another criminal activity and it was not
solicited by the prosecution, but rather blurted out by a witness. The jury was immediately
admonished to disregard the youth's statement. The admonition by the trial court adequately
cured the error. Cf. Donnelly v. DeChristoforo, 416 U.S. 637 (1974); Boley v. State, 85 Nev.
466, 456 P.2d 447 (1969); Boone v. State, 85 Nev. 450, 456 P.2d 418 (1969); Baker v. State,
89 Nev. 87, 506 P.2d 1261 (1973).
[Headnote 7]
6. Appellant next contends that his defense was severely prejudiced by testimony and
exhibits relating to his purchase of a gun which was not the murder weapon. The record
shows that this evidence was stricken by the court upon a defense motion after the
prosecution had failed to show its relevance. Appellant cites no authority for this assignment
of error, and we need not consider it. Williams v. State, 88 Nev. 164, 494 P.2d 960 (1972).
7. There is no basis in the record for appellant to claim that defense counsel was
incompetent, and we find the claim totally without merit. Smithart v. State, 86 Nev. 925, 478
P.2d 576 (1970). Cf. Founts v. Warden, 89 Nev. 280, 511 P.2d 111 (1973).
[Headnote 8]
The credibility and weight to be given to testimony are matters resting within the
province of a jury.
91 Nev. 78, 84 (1975) Allen v. State
matters resting within the province of a jury. The state presented a strong case to support a
verdict for second degree murder, which we affirm. Layton v. State, 87 Nev. 598, 491 P.2d 45
(1971); Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962); Harris v. State, 88 Nev. 385, 498
P.2d 373 (1972).
____________
91 Nev. 84, 84 (1975) Septer v. Warden
ROBERT LEROY SEPTER, Appellant, v. WARDEN,
No. 7605
January 30, 1975 530 P.2d 1390
Appeal from order denying post-conviction relief. Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
After defendant was convicted of attempted murder in the first degree, the district court
denied post-conviction relief, and defendant appealed. The Supreme Court, Zenoff, J., held
that appellate court need not consider whether lineup was tainted where in-court
identification was from independent observation of defendant; that finding of attempted
first-degree murder did not require that jury state in its verdict that it found that crime was
committed in perpetration of robbery; and that appellate court was precluded from
considering defendant's allegations of prosecutorial misconduct, where defendant failed to
object to such remarks at the time they were made.
Affirmed.
Stanley H. Brown and Harold G. Albright, of Reno, Rodlin Goff, State Public Defender,
and Gary Sheerin, Deputy Public Defender, of Carson City, for Appellant.
Robert List, Attorney General, and Herbert Ahlswede, Deputy Attorney General, Carson
City; and Robert E. Rose, District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Appellate court was not required to determine whether lineup was tainted, where in-court identification of
defendant was from independent observation.
2. Criminal Law.
Absent objection at trial, appellate court was precluded from considering whether prosecution influenced
in-court identification of defendant.
3. Homicide.
Defendant could be charged with attempted murder in the first degree, despite contention that no
statutory authority existed for such a charge.
4. Homicide.
Finding of attempted first-degree murder in case which was submitted on theory, inter alia, that attempted
killing was committed during commission of a robbery did not require that jury state separately in its
verdict that it found that the crime was committed in perpetration of robbery. NRS 200.030, subd. 2.
5. Criminal Law.
Appellate court would not consider assignment of error relating to admission of purported hearsay
testimony, where defendant failed to object to admission of such testimony at trial.
6. Criminal Law.
Appellate court was precluded from considering defendant's allegations of prosecutorial misconduct
where defendant failed to object to such remarks at the time they were made.
7. Criminal Law.
Prosecutor's closing argument statement that You didn't hear one bit of evidence from this witness stand
to show that the defendants were at any other place other than the parking lot was an acceptable reference
to evidence or testimony that stood uncontradicted and was not a comment on defendant's failure to testify.
OPINION
Robert Leroy Septer was convicted of attempted murder in the first degree and sentenced
to not less than five years nor more than twenty years in the Nevada State Prison.
1

Septer on appeal from denial of his petition for post-conviction relief alleges that his due
process rights were violated by being subjected to an unfair and prejudicial lineup, that the
prosecutor improperly suggested in-court identifications, that he was charged and convicted
of a crime for which no statutory provision exists, that he was improperly convicted of
attempted murder in the first degree, that hearsay statements were improperly admitted, that
the prosecution improperly commented on his failure to take the stand and testify, that the
prosecution made improper and prejudicial statements of his character and description of
the crime, and that the prosecution improperly referred to his prior criminal conduct.
____________________

1
The appeal of Nathan James Koon was dismissed with prejudice by stipulation. Koon had participated in the
crime with Septer.
prosecution made improper and prejudicial statements of his character and description of the
crime, and that the prosecution improperly referred to his prior criminal conduct.
[Headnote 1]
1. The prosecution offered into evidence the in-court identification of Septer by the
witness who had earlier identified him at a lineup. Whether the lineup was tainted need not be
resolved. The record establishes by clear and convincing evidence that the in-court
identification was from independent observation of the suspect other than the lineup
identification. Moss v. State, 88 Nev. 19, 492 P.2d 1307 (1972); Hampton v. State, 85 Nev.
720, 462 P.2d 760 (1969). There was equally convincing identification of Septer by the
victim who was not present at the lineup. Hampton v. State, supra.
[Headnote 2]
2. As to Septer's contention that the prosecution influenced the in-court identifications, the
record fails to reflect such conduct. Anyway, absent an objection this court is precluded from
considering the matter. Clark v. State, 89 Nev. 392, 513 P.2d 1224 (1973).
[Headnote 3]
3. Under Graves v. Young, 82 Nev. 433, 420 P.2d 618 (1966), Septer's assertion that he
was charged with a crime for which no statutory authority exists, attempted murder in the first
degree, is without merit.
[Headnote 4]
4. The two theories upon which the charge of attempted murder in the first degree was
submitted to the jury were that the attempted killing was committed during the commission of
a robbery, and secondly, that it was done willfully, deliberately and with premeditation. NRS
200.030(2) defines killing in the first degree.
2
Included therein are the grounds of this case.
Septer argues it is not for the jury to make a finding of attempted first degree murder
predicated on a finding that the attempt took place during the commission of a robbery
without making a separate determination whether a robbery was committed, which was
not done in this case.
____________________

2
NRS 200.030(2) states: Murder of the first degree is murder which is: (a) Perpetrated by means of poison,
or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing; (b) Committed in the
perpetration or attempted perpetration of rape, kidnaping, arson, robbery, burglary or sexual molestation of a
child under the age of 14 years; or (c) Committed to avoid or prevent the lawful arrest of any person by a peace
officer or to effect the escape of any person from legal custody.
making a separate determination whether a robbery was committed, which was not done in
this case. The finding of the existence of the robbery is a prerequisite to the fixing of the
crime in the first degree, hence, it is not necessary that the jury state in its verdict that it finds
that the crime was committed in the perpetration of robbery. State v. Ceja, 53 Nev. 272, 298
P. 658 (1931). Further, there is no lack of sufficient evidence of attempted murder in the first
degree on the basis that the attempt was willful, deliberate and premeditated.
[Headnote 5]
5. Where, as here, a party fails to object to the admission of testimony elicited at trial, the
purported hearsay testimony offered by the prosecution, this court will not consider the
contentions as a proper assignment of error. Moss v. State, supra; Smithart v. State, 86 Nev.
925, 478 P.2d 576 (1970); Wilson v. State, 86 Nev. 320, 468 P.2d 346 (1970).
[Headnotes 6, 7]
6. Finally, as to Septer's allegations of improper prosecutorial misconduct for allegedly
commenting on Septer's failure to take the stand and testify, making improper statements as
to his character and description of the crime and referring to prior criminal conduct, this court
has held that failure to object to remarks at the time they are made precludes this court's
consideration. Sorce v. State, 88 Nev. 350, 497 P.2d 902 (1972).
However, the serious constitutional consequences that can follow from questionable
statements of the prosecutor to the jury call for further comment even though the defendant
failed to object when the comments were made. The prosecutor said to the jury during his
closing rebuttal:
If these were not the two defendants that perpetrated this attempted murder and robbery,
there would have been some evidence presented to show that they were not at the parking lot
at the time this crime was committed, but there were no witnesses called. You didn't hear one
bit of evidence from this witness stand to show that the defendants were at any other place
other than the parking lot.
Now put yourselves in the position of either one of these defendants. If you were not
there in that parking lot, wouldn't you have presented some evidence to show where you
really were? And by the failure to produce this evidence, I think it's very significant.
In Fernandez v. State, 81 Nev. 276, 402 P.2d 38 (1965), the prosecutor said to the jury, In
the defendant's case, as feeble as it was, there was no denial that the defendant ever
possessed this device. . . ."
feeble as it was, there was no denial that the defendant ever possessed this device. . . .
Defense counsel moved for a mistrial which was denied. This court held the comment
nonreversible. The distinction, we held, in relying on Griffin v. California, 380 U.S. 609
(1965), was whether or not defendant's failure to testify was directly or indirectly the subject
of the prosecutor's comment. A reference to evidence or testimony that stood uncontradicted
is acceptable. Such was the situation here.
Affirmed.
Gunderson, C. J., and Batjer, Mowbray and Thompson, JJ., concur.
____________
91 Nev. 88, 88 (1975) Bell Brand Ranches v. First Nat'l Bank
BELL BRAND RANCHES, INC., Appellant, v. FIRST NATIONAL BANK OF NEVADA,
Special Administrator of the Estate of Paul B. Butler, Deceased, Respondent.
No. 7617
February 7, 1975 531 P.2d 471
Appeal from order of Second Judicial District Court, Washoe County, denying motion of
Bell Brand Ranches, Inc., to file a creditor's claim in the Estate of Paul B. Butler, deceased;
Grant L. Bowen, Judge.
Purchaser instituted proceedings for leave to file claim against estate of vendor. The
district court entered an order denying the motion, and purchaser appealed. The Supreme
Court, Thompson, J., held that obligation of vendor and his estate to pay all costs and
damages assessed in federal court action against any defendant therein claiming ownership of
ranch property would diminish estate and thus fell within bar of statute requiring that claims
against deceased be filed within three months after first publication of notice; that contingent
liability of vendor and his estate to pay purchaser up to $67,000 fell within bar of nonclaim
under statute; and that claim of purchaser, who became a creditor with a contingent claim
when agreement was made with vendor, fell within bar of statute requiring that claim be filed
against estate within three months after first publication of notice, and running of three-month
period could not be deemed to run only from date of substitution of purchaser as defendant in
court action on theory that purchaser did not become a creditor until that time.
Affirmed.
[Rehearing denied March 12, 1975] Sanford, Sanford, Fahrenkopf & Mousel, and M.
Sanford, Sanford, Fahrenkopf & Mousel, and M. Craig Haase of Reno and Parker,
Milliken, Kohlmeier, Clark & O'Hara, and J. Terrence Lyons, of Los Angeles, Calif., for
Appellant.
Woodburn, Wedge, Blakey, Folsom & Hug, and Gordon H. DePaoli, of Reno, for
Respondent.
1. Executors and Administrators.
In order to come within statute providing for the filing of claims against estate, the claim must be against
property constituting an asset of estate, and, the claim if successfully prosecuted, must diminish the estate.
NRS 147.040.
Obligation of vendor and his estate to pay all costs and damages assessed in federal court action against
any defendant therein claiming ownership of ranch property would diminish estate and thus fell within bar
of statute requiring that claims against deceased be filed within three months after first publication of
notice. NRS 147.040.
Contingent liability of vendor and his estate to pay purchaser up to $67,000, under certain circumstances,
as a result of any settlement or final judgment entered in federal court action fell within bar of nonclaim
under statute requiring that claims against decedent be filed within three months after first publication of
notice, since statute applies to contingent and noncontingent claims alike. NRS 147.040.
Failure of a creditor to timely file his claim against estate may not be excused unless it is made to appear
by affidavit of claimant, or by other proof, that claimant had no notice as provided in statute. NRS
147.040, subd. 2.
Claim of purchaser, who became a creditor with a contingent claim when agreement was made with
vendor, fell within bar of statute requiring that claim be filed against estate within three months after first
publication of notice, and running of three-month period could not be deemed to run only from date of
substitution of purchaser as defendant in court action on theory that purchaser did not become a creditor
until that time. NRS 147.040, subd. 2.
OPINION
This appeal is from an order of the district court denying the motion of Bell Brand
Ranches, Inc., to file a late creditor's claim against the Estate of Paul B. Butler, deceased.
Paul Butler died testate on April 26, 1972. The First National Bank, as special
administrator of his estate, caused notice to creditors to be published, the first such
publication occurring on October 2S, 1972.
notice to creditors to be published, the first such publication occurring on October 28, 1972.
Consequently, the time for filing creditors' claims expired three months later, that is, on
January 28, 1973, unless excused within the intendment of the governing statute.
1
On April
6, 1973, Bell Brand Ranches moved for leave to file its claim as a creditor of the decedent.
That motion was denied, and this appeal ensued.
The claim of Bell Brand flows from a purchase agreement with Paul B. Butler dated
August 24, 1971, wherein Bell Brand agreed to buy from Butler certain ranch property in
Elko County, Nevada, for a price of $1,450,000. Before that agreement was made, Butler had
placed the ranch property in a revocable trust and title had been transferred to Wayne L.
Primm, as trustee. In July of 1971, an action was commenced in the Nevada Federal District
Court by Salmon River Canal Company, Ltd., against Wayne L. Primm, Trustee, concerning
the use of well water on the ranch property.
The purchase agreement of August 24, 1971, in paragraph 9, acknowledged the existence
of the pending federal court litigation, and obligated Butler to defend the same and to pay all
costs and damages that may be assessed against Primm, or any other party who becomes a
defendant therein by virtue of any ownership of the ranch property. Butler also agreed to pay
Bell Brand up to $67,000, under certain circumstances, as a result of any settlement or final
judgment entered in that action. On January 8, 1973, the federal court granted Primm's
motion to substitute Bell Brand for Primm in that case.
The creditor's claim which Bell Brand sought leave to file with the court below was to
require the estate of Paul Butler to continue performance of the obligations of Paul B. Butler
under paragraph 9 of an Agreement dated August 24, 1971.
We turn to consider the relevant issues presented by this appeal.
[Headnote 1]
1. The major issue is whether the claim asserted by Bell Brand falls within NRS 147.040.
____________________

1
NRS 147.040: 1. All persons having claims against the deceased must, within 3 months after the first
publication of the notice specified in NRS 147.010, file the same, with the necessary vouchers, with the clerk of
the court, who shall file and register each claim.
2. If a claim be not filed with the clerk within 3 months after the first publication of the notice, it shall be
forever barred; but when it shall be made to appear by the affidavit of the claimant, or by other proof, that he had
no notice as provided in this chapter, to the satisfaction of the court or judge, it may be filed at any time before
the filing of the final account.
Brand falls within NRS 147.040. To come within the statute, the claim must be against
property constituting an asset of the estate of the decedent. Thompson v. Crockett, 19 Nev.
242, 9 P. 121 (1885); Reed v. Dist. Court, 75 Nev. 338, 341 P.2d 100 (1959); Bodine v.
Stinson, 85 Nev. 657, 461 P.2d 868 (1969); Pahlmann v. First Nat'l Bank of Nev., 86 Nev.
151, 465 P.2d 616 (1970).
2
The claim, if successfully prosecuted, must diminish the estate.
Otherwise, it does not fall within the bar of nonclaim. Reed v. Dist. Court, supra; cf. Bodine
v. Stinson, supra.
[Headnotes 2, 3]
The obligation of Paul B. Butler, and now of his estate, to pay all costs and damages
assessed in the federal court action against any defendant therein claiming ownership of the
ranch property obviously will diminish the estate, and falls within the bar of the statute. The
contingent liability of Butler, and now of his estate, to pay Bell Brand up to $67,000, under
certain circumstances, as a result of any settlement or final judgment entered in that action
likewise falls within the bar of nonclaim since that statute applies to contingent and
noncontingent claims alike. Gardner Hotel Sup. v. Estate of Clark, 83 Nev. 388, 432 P.2d 495
(1967); Continental Coffee v. Est. of Clark, 84 Nev. 208, 438 P.2d 818 (1968). Consequently,
the claim of Bell Brand is forever barred unless excused within the contemplation of
subsection 2 of NRS 147.040.
____________________

2
Thompson v. Crockett, supra, was a suit in equity against the representative of a deceased person, and
others, to recover the amount of the unpaid subscription of decedent to a bank corporation. The court ruled that
it was not necessary to file a claim since such unpaid subscription was a trust fund for the benefit of creditors of
the bank, and no part of the estate of decedent.
In Reed v. Dist. Court, supra, the executrix sought to prohibit the prosecution of an action against her seeking
rescission of a contract for the purchase of land and restitution of the purchase price, because the plaintiff in said
action had not filed a claim in the estate proceeding. The court dismissed the petition for a writ of prohibition,
reasoning that a claim to rescind the contract was not a claim against property constituting the estate, but rather
was an assertion that an asset claimed by the estate, the contract of sale, was not in truth its property.
Consequently the action for rescission, if successful, would not diminish the estate and therefore was not within
the bar of nonclaim.
Bodine v. Stinson, supra, was a wrongful death action in which this court ruled, among other things, that the
claim procedure specified by ch. 147 must be followed whenever the estate of the deceased may be diminished if
the creditor is successful.
In Pahlmann v. First Nat'l Bank, supra, we ruled that a successor Trustee's right to proceeds of a check in
repayment of a loan made by his deceased predecessor Trustee from trust funds did not fall within the bar of
nonclaim, since such proceeds were trust property and not a part of the deceased predecessor Trustee's estate.
claim of Bell Brand is forever barred unless excused within the contemplation of subsection 2
of NRS 147.040.
[Headnote 4]
2. The failure of a creditor to timely file his claim may not be excused unless it shall be
made to appear by the affidavit of the claimant, or by other proof, that he had no notice as
provided in this chapter. NRS 147.040(2).
[Headnote 5]
The affidavits tendered in support of Bell Brand's motion to file its late claim do not assert
a lack of notice which, of course, is the explicit statutory excuse for filing after the time has
run.
3
Rather, the affidavits mainly stress the fact that Bell Brand was not substituted as a
party defendant in the federal court litigation until January 8, 1973, only twenty days before
the time for filing its creditor's claim was to expire, and suggests that the 90 day period within
which to file its claim should be deemed to run from that date since it did not become a
creditor until that time. This simply is not correct. Bell Brand became a creditor with a
contingent claim when the agreement was made with Paul Butler in August of 1971, since
that agreement obliged Butler to pay Bell Brand up to $67,000, under certain circumstances,
as a result of any settlement or final judgment entered in the federal court case. As already
noted, such contingent claim falls within the bar of the statute. In our view, the supporting
affidavits fail to supply the showing required by the statute.
3. We do not consider other errors asserted to possess any merit whatsoever and reject
them out-of-hand.
____________________

3
Late filing is permitted if the creditor had no notice of the appointment of the administratrix. Pacific States
S. L. & B. Co. v. Fox, 25 Nev. 229, 59 P. 4 (1889). Also, it will be allowed if the notice is not received by one
with authority to act. Pahlmann v. First Nat'l Bank of Nev., 86 Nev. 151, 465 P.2d 616 (1970).
On the other hand, a late filing may be denied if the creditor has knowledge of the death of the decedent, for
such knowledge charges him with duty of further inquiry. Gardner Hotel Sup. v. Estate of Clark, 83 Nev. 388,
432 P.2d 495 (1967). Moreover, any knowledge of the estate proceeding, coupled with the failure to act after
acquiring such knowledge, will allow the court to deny the filing of a late claim, notwithstanding a conclusory
affidavit that the claimant did not have notice. Continental Coffee v. Est. of Clark, 84 Nev. 208, 438 P.2d 818
(1968).
____________
91 Nev. 93, 93 (1975) Rodgers v. Warden
CHARLES MICHAEL RODGERS, Appellant, v. WARDEN,
No. 7280
February 7, 1975 530 P.2d 1207
Appeal from order denying post-conviction relief; Second Judicial District Court, Washoe
Affirmed.
Horace R. Goff, State Public Defender, and Michael R. Griffin, Special Deputy Public
Defender, of Carson City, for Appellant.
Respondent.
OPINION
Per Curiam:
Since the record does not show that Rodgers' guilty plea to the charge of robbery was
induced by a promise of the prosecutor which later was broken, we affirm the order of the
district court denying post-conviction relief. Conger v. Warden, 89 Nev. 263, 510 P.2d 1359
(1973).
Affirmed.
____________
91 Nev. 93, 93 (1975) Sondergaard v. Sheriff
GARY GENE SONDERGAARD, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 7747
February 7, 1975 531 P.2d 474
Appeal from denial of pretrial petition for a writ of habeas corpus; Eighth Judicial District
Court, Clark County; Carl J. Christensen, Judge.
The Supreme Court held that State's failure, as required by statute, to bring defendant to
trial within 60 days after sheriff was notified of finding of sanity commission that defendant
was competent to stand trial was not necessarily to be equated with denial of defendant's
constitutional right to speedy trial; and that where defendant did not demand trial nor claim
prejudice, and where length of delay was not inordinate, defendant was not denied right
to speedy trial.
that where defendant did not demand trial nor claim prejudice, and where length of delay was
not inordinate, defendant was not denied right to speedy trial.
Affirmed.
Morgan D. Harris, Public Defender, Clark County, for Appellant.
Roy A. Woofter, District Attorney, Clark County, for Respondent.
1. Criminal Law.
Failure of State to bring defendant to trial, as required by statute, within 60 days after sheriff was notified
of finding of sanity commission that he was competent to stand trial was not necessarily to be equated with
denial of his constitutional right to a speedy trial but rather was a factor to be considered in applying
balancing approach for determining whether there was violation of right to speedy trial. NRS 178.460.
2. Criminal Law.
Factors to be considered in deciding whether defendant has been denied constitutional right to speedy
trial are length of delay, reason for delay, defendant's assertion of the right, and prejudice to defendant.
3. Criminal Law.
Although State violated statute by failing to bring defendant to trial within 60 days after sheriff was
notified of finding of sanity commission that he was competent to stand trial, where defendant did not
demand trial nor claim prejudice, and where length of delay was not inordinate, defendant was not denied
his right to a speedy trial. NRS 178.460.
OPINION
Per Curiam:
The sole issue presented by this appeal is whether Gary Gene Sondergaard has been denied
his constitutional right to a speedy trial. The district court denied his pretrial petition for a
writ of habeas corpus based on that premise. The chronology of this case is footnoted below.
1
The main thrust of the appellant's contention is that the State was compelled by
statute to bring him to trial within 60 days after the Sheriff of Clark County was notified
of the findings of the Sanity Commission that he was competent to stand trial.
____________________

1
a. January 23, 1973..................Criminal complaint filed charging murder.
b. January 24, 1973...................... Preliminary examination waived.
c. February 8, 1973...................... Information filed.
d. May 23, 1973 After a sanity hearing, accused found mentally incompetent and committed
to Nevada State Hospital.
e. August 27, 1973 Sanity Commission found accused competent, and district court ordered him
returned to Clark County to stand trial.
The main thrust of the appellant's contention is that the State was compelled by statute to
bring him to trial within 60 days after the Sheriff of Clark County was notified of the findings
of the Sanity Commission that he was competent to stand trial. NRS 178.460. The State made
no effort to do so, and has acknowledged its inadvertence in this regard.
[Headnotes 1, 2]
Without question, the statute was violated. That violation, by itself, is not necessarily to be
equated with a denial of his constitutional right to a speedy trial. It is a factor, of course, to be
considered in applying the balancing approach of the United States Supreme Court
announced in Barker v. Wingo, 407 U.S. 514 (1972). Four factors were there identified and
are to be assessed in deciding whether a defendant has been denied his constitutional right.
Those factors are the length of the delay, the reason for it, the defendant's assertion of his
right, and prejudice to the defendant.
[Headnote 3]
In the case at hand, the defendant did not demand trial, nor does he claim prejudice. The
length of the delay is not inordinate, particularly in the light of his fluctuating mental
condition, and his motion for a second sanity examination. Although the inability of the
prosecution to give any reason for its failure to bring the defendant to trial within 60 days
after August 27, 1973, is exceedingly disturbing, we do not consider this fault alone to
overbalance the other considerations to which we have alluded. Accordingly, we affirm the
order denying habeas relief.
____________________
f. January 22, 1974...................... Petition for habeas corpus filed asserting denial of right to a speedy trial.
g. Sometime after January 22, 1974, accused moved for a psychiatric examination. The court heard expert
medical testimony on February 6 and February 21.
h. February 26, 1974 Petition for habeas corpus denied, the court noting, among other things, that
the accused was unable to assist his counsel to defend the case.
i. March 11, 1974 Formal order entered finding accused incompetent and again committing
him to the custody of the Superintendent of the Nevada State Hospital.
____________
91 Nev. 96, 96 (1975) Matthews v. District Court
LUELLA V. MATTHEWS, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, In and for the County of Washoe, Department No. 4, the
Honorable Thomas O. Craven, District Judge, Respondent.
No. 7950
February 13, 1975 531 P.2d 852
Petition for writ of prohibition to Second Judicial District Court, Washoe County; Thomas
O. Craven, Judge.
Wife sought writ of prohibition to preclude trial court from making award of custody to
husband without notice or hearing. The Supreme Court held that trial court acted without, or
in excess of, its jurisdiction in making the award sua sponte upon wife's failure to submit
psychiatric appraisal in accordance with parties' stipulation; and that trial court should, upon
proper application, decide the reserved question of child custody as a matter of first
impression without foreclosing either party's proofs by reason of their attempted stipulation.
Writ granted.
Gordon C. Shelley, of Reno, for Petitioner.
Murray V. Dolan, of Sparks, for Respondent.
1. Parent and Child.
Where wife's right to full and fair hearing concerning ultimate disposition of custody of minor children
was not waived, trial court acted without, or in excess of, its jurisdiction in deciding reserved question of
child custody sua sponte and in awarding custody to husband without notice or hearing being afforded to
wife on basis of wife's failure to submit psychiatric appraisal as stipulated by the parties.
Trial court, which had improperly awarded custody to husband without notice or hearing because of
wife's failure to submit psychiatric appraisal as provided for in parties' stipulation, should, upon proper
application by either party, decide the reserved question of child custody as a matter of first impression
without foreclosing either party's proofs by reason of their attempted stipulation.
OPINION
Per Curiam:
On June 19, 1974, the respondent court granted a decree of divorce to the plaintiff wife,
petitioner here, ordering the defendant husband to pay plaintiff $100 per month apiece for the
support of the parties' two children, which the court left in the plaintiff wife's care.
the support of the parties' two children, which the court left in the plaintiff wife's care. The
decree provided that the children's custody would be determined at a later date following
psychiatric and/or psychological examinations and testimony of the parties as stipulated.
However, the decree did not specify how expert opinions were to be received by the court,
whether the parties had waived cross-examination of the experts, what rebuttal evidence
could be adduced, nor the time or manner in which the issue of child custody would be
brought before the court for its final consideration.
[Headnote 1]
From the decree and the court's minutes, it does not clearly appear that the
plaintiff-petitioner's right to a full and fair hearing concerning ultimate disposition of the
parties' minor children was waived or otherwise foreclosed.
1
This being so, it cannot be said
that following entry of the original decree, the reserved issue of child custody was subject to
the court's sua sponte disposition with neither notice nor opportunity to be heard.
Nonetheless, on November 12, 1974, the respondent court apparently arrived at the belief that
it had waited long enough for a psychiatric report on the plaintiff wife's behalf, and of its own
motion awarded custody of the children to the defendant father by minute order.
2
Thereafter,
on November 15, the court formalized that order in "Supplemental Findings of Fact,
Conclusions of Law, and Decree of Divorce," prepared and submitted ex parte by the
husband's counsel.
____________________

1
A provision of our District Court Rules provides:
No agreement or stipulation between the parties in a cause or their attorneys, in respect to
proceedings therein, will be regarded unless the same shall, by consent, be entered in the minutes in the
form of an order, or unless the same shall be in writing subscribed by the party against whom the same
shall be alleged, or by his attorney. DCR 24.
In the instant case, the minutes contain only the following vague reference to the stipulation
mentioned in the decree:
In open court, counsel stipulated in the presence of the parties that the child custody would be based
upon the testimony of the parties and the report of Dr. Allport, and that if after plaintiff sees the report, if
she wants to she may submit a report of a psychologist or psychiatrist, and that the Court may take these
into consideration in making its order.

2
The minute order recited:
At this time the Court entered the following order: The custody of the minor children of the parties,
John David Matthews and Steven Dwayne Matthews, is awarded to the defendant father. Pursuant to
stipulation of counsel, a psychiatric appraisal was made by Dr. William Allport, M.D. with the stipulated
right to Mr. Shelley, counsel for plaintiff, to have an independent psychiatric appraisal. The Court has
long ago received the report from Dr. Allport, dated July 8, 1974, but there has been no independent
psychiatric appraisal received from Mr. Shelley. The Court is impressed with Dr. Allport's appraisal and
the Court adopts Dr. Allport's report and incorporates it herein as though set out herein haec verba, and
the Court bases its order thereon.
15, the court formalized that order in Supplemental Findings of Fact, Conclusions of Law,
and Decree of Divorce, prepared and submitted ex parte by the husband's counsel. For no
reason apparent from the record, the husband's counsel waited until November 27 before
mailing the plaintiff wife's attorney notice of entry of judgment relative to this decree.
Meantime, on November 19, the plaintiff wife petitioned this court for a writ of prohibition
restraining implementation of the aforesaid minute order.
The plaintiff-petitioner proffers various explanations and justifications for not providing a
psychiatric evaluation and pressing her position more aggressively, which omissions
apparently convinced the respondent court there was nothing to say on her account. We need
not consider the validity of these excuses; for the respondent court, having manifestly acted
without notice where notice was required, thereby acted without or in excess of its
jurisdiction. See: Turner v. Saka, 90 Nev. 54, 518 P.2d 608 (1974), Maheu v. District Court,
88 Nev. 26, 493 P.2d 709 (1972), and authorities there cited.
[Headnote 2]
Accordingly, a writ of prohibition will issue, restraining enforcement of the aforesaid void
minute order and supplemental decree, and particularly restraining any transfer of the parties'
children from the plaintiff-petitioner's care without notice and due opportunity to be heard.
Upon proper application by either party, the district court should decide the reserved question
of child custody as a matter of first impression, without foreclosing either party's proofs by
reason of their attempted stipulation.
____________
91 Nev. 98, 98 (1975) Eikelberger v. Nev. St. Bd. of Accountancy
FRED L. EIKELBERGER, Appellant, v. NEVADA
STATE BOARD OF ACCOUNTANCY, Respondent.
No. 7556
February 13, 1975 531 P.2d 853
Appeal from a judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
A petition was filed to review decision of State Board of Accountancy disciplining
licensed certified public accountant. The district court dismissed the petition, and appeal was
taken.
The Supreme Court held that petitioner, who had complained to the Board regarding certain
alleged unprofessional services rendered by the accountant but who was displeased with the
punishment imposed, had no standing to file the petition since he was not an aggrieved party.
Affirmed.
Lohse and Lohse, Reno, for Appellant.
Laxalt, Berry & Allison, Charles David Russell, and Melvin Brunetti, Carson City, for
Respondent.
1. Administrative Law and Procedure; Licenses.
Plaintiff, who had complained to State Board of Accountancy regarding certain alleged unprofessional
services rendered by a licensed certified public accountant but who was displeased with punishment
imposed by the Board, had no standing to seek judicial review since he was not an aggrieved party. NRS
628.410.
Right to review an administrative decision is limited to those parties to the proceedings before the
administrative agency whose rights, privileges or duties are affected by the decision.
OPINION
Per Curiam:
[Headnotes 1, 2]
The appellant, Fred L. Eikelberger, complained to the Nevada State Board of Accountancy
regarding certain alleged unprofessional services rendered by a certified public accountant
who was licensed to practice in Nevada. The Board, after investigating Eikelberger's charges,
filed a complaint against the C.P.A. Formal hearings were held, and witnesses, including
Eikelberger, testified before the Board. The C.P.A. was disciplined. Eikelberger, however,
was displeased with the punishment imposed. He appealed the Board's decision to the district
court, seeking a review of its order. The district judge, finding Eikelberger had no standing to
file the petition for review because he was not an aggrieved party within the meaning of NRS
628.410,
1
dismissed the petition. We agree. The law is well settled that the right to review an
administrative decision is limited to those parties to the proceedings before the
administrative agency whose rights, privileges, or duties are affected by the decision.
____________________

1
NRS 628.410 in relevant part:
10. Any person adversely affected by any order of the board may obtain a review thereof by filing a
written petition for review with the district court within 30 days after the entry of the order. . . .
decision is limited to those parties to the proceedings before the administrative agency whose
rights, privileges, or duties are affected by the decision. See Wyoming State Bd. of
Accountancy v. Macalister, 493 P.2d 1268 (Wyo. 1972); Castleman v. Civil Serv. Comm'n,
206 N.E.2d 514 (Ill.App. 1965).
The order of the court below is affirmed.
____________
91 Nev. 100, 100 (1975) Kula v. Karat, Inc.
LEWIS KULA, Appellant, v. KARAT, INC., a
Nevada Corporation, Respondent.
No. 7025
February 26, 1975 531 P.2d 1353
Appeal from a judgment of the Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Action was brought by hotel guest, who had deposited funds with hotel casino, to recover
the amount of deposit which hotel claimed on ground that guest-depositor had orally agreed
to be responsible for his companion's gambling losses up to the amount of deposit. The
district court entered a judgment in favor of the hotel and the guest-depositor appealed. The
Supreme Court, Batjer, J., held that the deposit created a bailment, that any alleged oral
agreement by depositor to be responsible for gambling debts of his companion was void and
that depositor was bound by his admission in pleading that hotel was entitled to keep $1,000
of deposit.
Don L. Griffith and Stanley W. Pierce, of Las Vegas, for Appellant.
Jones, Jones, Close, Bilbray, Kaufman & Olsen, of Las Vegas, for Respondent.
1. Innkeepers.
Where hotel guest availed himself of hotel's service for safekeeping of valuables by depositing $18,300
with cashier in gambling casino of hotel, a bailment was created with respect to money.
2. Innkeepers.
Evidence of hotel guest-depositor's ownership of funds, which were deposited by him with casino's
cashier for safekeeping with agreement that funds could only be withdrawn therefrom on
guest-depositor's signature, was not overcome by testimony of hotel's witness that
guest-depositor had said he only owned half of deposited fund or by the fact that
guest-depositor and his companion had both made bets from money withdrawn from
deposit.
agreement that funds could only be withdrawn therefrom on guest-depositor's signature, was not overcome
by testimony of hotel's witness that guest-depositor had said he only owned half of deposited fund or by the
fact that guest-depositor and his companion had both made bets from money withdrawn from deposit.
3. Innkeepers.
Where hotel as part of its services accepted guest's deposit of cash on understanding that it could only be
withdrawn on the guest's signature, hotel was estopped to claim that guest's companion, with respect to
whom hotel claimed that guest gave oral permission for companion to bet against the deposit, had any
right, title or interest to money on deposit.
4. Bailment.
As long as relationship exists a bailee may not in any case dispute or deny title of bailor or his ultimate
right to possession, either by claiming title in himself or by asserting title in a third person as justification
for refusal to return the property.
5. Bailment.
Where bailee, either for hire or gratuitously, is entrusted with care and custody of goods, it becomes his
duty at end of bailment to return the goods or show that their loss occurred without negligence on his part.
6. Bailment.
If at end of bailment bailee fails to return goods or to show that their loss occurred without negligence on
his part, there arises a presumption that the goods have been converted by bailee or lost as a result of his
negligence and that he is accountable to the owner for them.
7. Frauds, Statute of.
Any oral commitment by hotel guest, who deposited funds with casino's cashier for safekeeping, to be
financially responsible for gambling losses of his companion to the extent of the deposit was void under
statute rendering invalid an unwritten agreement to answer for the debts of another. NRS 111.220.
Where the making of an alleged oral agreement by bailor of funds to be responsible for the gambling debt
of another had been put in issue through denials in bailee's answer to which no responsive pleading was
required, bailor could avail himself of the benefit of statute rendering void unwritten agreements to be
responsible for the debts of another without pleading the statute. NRS 111.220; NRCP 8(d).
Under statute rendering invalid unwritten agreement to be responsible for the debts of another, the
agreement is void if requisites for valid agreement are missing contrary to rule under old English statute of
frauds that the agreement was still valid and that the statute went merely to the remedy. NRS 111.220.
10. Depositaries; Pleading.
Depositor of funds with hotel casino, which claimed the right to keep the entire deposit because of an
alleged oral commitment by depositor to be responsible for the gambling debts of another, was bound
by the admission contained in his pleadings that $1,000 of the deposit was to be
retained by the hotel and depositor was entitled to recover the balance which hotel
had converted.
was bound by the admission contained in his pleadings that $1,000 of the deposit was to be retained by the
hotel and depositor was entitled to recover the balance which hotel had converted. NRS 111.220.
OPINION
The appellant and his companion, referred to in the record only as Goldfinger, were guests
in the respondent's Stardust Hotel in Las Vegas, Nevada. Appellant availed himself of the
hotel's service for the safekeeping of valuables and money and deposited $18,300 with a
cashier in the casino. This deposit was made solely in appellant's name, he was given a
receipt for the amount of the deposit and advised that he might withdraw funds from the
cashier by signing for them, and that the money could be withdrawn only upon his signature.
During the next two days appellant and Goldfinger gambled in the respondent's casino.
There was testimony that they gambled from the same funds and freely exchanged chips to
make bets. During that period appellant made withdrawal as well as deposit transactions with
the cashier.
On the evening of June 7, 1969, there was $18,000 on deposit with the cashier before
Goldfinger lost $500, and was without funds to cover the loss. He asked Philip Ponto,
respondent's shift boss, to telephone appellant for a guarantee of the loss. Ponto called
appellant. The text of that telephone conversation is in dispute. Appellant testified that he
authorized Ponto to give Goldfinger credit to the extent of $1,000, but no more. Ponto's
testimony confirms the $1,000 authorization, and relates that he specifically asked appellant if
Goldfinger could gamble against the entire safekeeping deposit, and received an affirmative
response.
In any event, Goldfinger was permitted to gamble with chips procured by signing
markers totaling $18,000. When Goldfinger stopped gambling the shift boss requested the
safekeeping receipt which he needed to send to the cashier's cage with the markers. It is
alleged that Goldfinger agreed to go to the room and get it, but instead he disappeared.
That morning appellant went to the cashier's cage and made a demand for the $18,000.
When informed of the actual credit extended to Goldfinger, he acknowledged the $1,000
authorization and demanded $17,000, which is the amount prayed for in his complaint.
[Headnote 1]
The trial court properly found a bailment had been created by the deposit of the money with
respondent. A bailment of money is as well recognized as the bailment of any other personal
property. Knapp v. Knapp, 96 S.W. 295 (Mo.App. 1906); State v. Rogers, 7 S.W.2d 250 (Mo.
1928); In Re McCarthy's Funds, 248 N.Y.S. 335 (Sur.Ct. 1930); O'Keefe v. Equitable Trust
Co., 103 F.2d 904 (3rd Cir. 1939).
[Headnote 2]
Appellant and a witness for respondent both testified that the money could only be
withdrawn upon appellant's signature. Appellant steadfastly maintained that the money in
safekeeping belonged only to him. Respondent accepted deposits and authorized withdrawals
from the safekeeping fund only upon appellant's initials. It recognized ownership in him and
refused to allow Goldfinger credit against the fund until approval was obtained from
appellant. This evidence of ownership in appellant is not overcome by the testimony from one
witness for the respondent that [H]e [Kula] said he only owned half of it, nor by the fact
that appellant and Goldfinger had both made bets from money previously withdrawn from the
deposit in safekeeping. Appellant's sharing of chips with Goldfinger is not sufficient to show
joint ownership over a deposit of money held by the respondent under a bailment contract
made only in appellant's name and subject to withdrawals only upon his signature.
Here the $18,000 was never delivered to Goldfinger but retained by respondent as its own
upon the ground that appellant had orally authorized respondent, through its employees, to
permit Goldfinger to gamble against the deposit.
Although the district court, in its oral decision, indicated a possible joint ownership of the
money in safekeeping by appellant and Goldfinger, in its findings it simply concluded that
respondent was the bailee of the money placed in safekeeping and that respondent was
obligated to use ordinary and reasonable care in its handling. No further conclusion was
reached. Nevertheless the district judge found in favor of respondent, and this appeal
followed.
[Headnotes 3, 4]
The respondent is estopped to claim that Goldfinger had any right, title or interest in the
money on deposit and it would have been error for the trial court to find any. There is
authority for the broad rule that as long as the relationship exists a bailee may not, in any
case, dispute or deny the title of the bailor, or his ultimate right to possession, either by
claiming title in himself, or as a justification for his refusal to return the property, or by
asserting title in a third person.
bailee may not, in any case, dispute or deny the title of the bailor, or his ultimate right to
possession, either by claiming title in himself, or as a justification for his refusal to return the
property, or by asserting title in a third person. Ross v. Leftwich, 377 P.2d 495 (Utah 1963);
Triggs v. Zicovich, 257 P.2d 60 (Cal.App. 1953). See also 8 C.J.S. Bailments 21 (1962).
[Headnotes 5, 6]
Where a bailee, either for hire or gratuitously, is entrusted with care and custody of goods,
it becomes his duty at the end of the bailment to return the goods or show that their loss
occurred without negligence on his part. Failing in this, there arises a presumption that the
goods have been converted by him, or lost as a result of his negligence, and he is accountable
to the owner for them. Mills v. Continental Parking Corp., 86 Nev. 724, 475 P.2d 673 (1970);
Alamo Airways, Inc. v. Benum, 78 Nev. 384, 374 P.2d 684 (1962). Cf. Traynor v. Carter, 87
Nev. 281, 485 P.2d 966 (1971); Donlan v. Clark, 23 Nev. 203, 45 P. 1 (1896).
[Headnote 7]
It is difficult to discern from the record whether or not the trial court, in reaching its
decision, relied upon the disputed evidence purporting to show an oral commitment by
appellant to be financially responsible for the gambling losses of Goldfinger to the extent of
the amount of money in safekeeping. However, if it did, such reliance was in error because
NRS 111.220
1
renders void an agreement to answer for the debts of another which is not in
writing.
[Headnote 8]
Since the making of the alleged oral agreement by appellant to be responsible for the
gambling debt of Goldfinger has been put into issue through denials in respondent's answer,
to which no responsive pleading was required, appellant could avail himself of the benefit of
NRS 111.220 without pleading the same.
____________________

1
NRS 111.220, provides in part that: Agreements not in writing: When void: In the following cases every
agreement shall be void, unless such agreement, or some note or memorandum thereof expressing the
consideration, be in writing, and subscribed by the party charged therewith.
2. Every special promise to answer for the debt, default or miscarriage of another.
See also: Harrah v. Specialty Shops, Inc., 67 Nev. 493, 221 P.2d 398 (1950).
NRCP 8(d); see Mahoney v. Lester, 168 P.2d 339 (Mont. 1946).
In Elliott v. Chrysler Motor Corp., 89 Nev. 402, 403, 514 P.2d 207 (1973), we said:
[A]ssuming the existence of such an oral agreement, [as alleged by plaintiff] the failure to
comply with the statute of frauds would void it as to the defendant. . . . Here the existence of
an oral agreement to answer for the debt of another was alleged and proven by respondent and
the failure to comply with NRS 111.220 renders it void as to the appellant.
[Headnote 9]
Under the old English statute of frauds the agreement was still valid even when the statute
declared it to be unenforceable. The statute went merely to the remedy, prescribing the rules
of evidence and declaring that without certain evidence the agreement could not be enforced.
2
Under our statute, however, the agreement is void if the requisites for a valid agreement are
missing. NRS 111.220. See Reedy v. Ebsen, 242 N.W. 592 (S.D. 1932); Syrup v. Pitcher, 73
N.W.2d 140 (N.D. 1955).
[Headnote 10]
Although appellant is bound by the admission contained in his pleadings that $1,000 be
retained by respondent (Williams v. Lamb, 77 Nev. 233, 361 P.2d 946 (1961)), he is entitled
to recover the $17,000 which was converted.
This matter is reversed and remanded with instructions to enter a judgment in favor of
appellant not inconsistent with this opinion.
Gunderson, C. J., and Zenoff, Mowbray, and Thompson, JJ. concur.
____________________

2
In 1677 Parliament enacted an Act for the Prevention of Fraud and Perjuries. Only part of the fourth section
is important for contract purposes. This section reads in part as follows:
Sec. 4. And be it further enacted by the authority aforesaid, That from and after the said four and twentieth
day of June no action shall be brought . . . (2) or whereby to charge the defendant upon any special promise
to answer for the debt, default or miscarriage of another person; . . .
____________
91 Nev. 106, 106 (1975) Naves v. State
MARTIN J. NAVES, Appellant, v. STATE
No. 7384
February 26, 1975 531 P.2d 1360
Appeal from order of Second Judicial District Court, Washoe County, denying petition for
writ of habeas corpus; John E. Gabrielli, Judge.
Juvenile petitioned for writ of habeas corpus challenging validity of order revoking
probation. The district court entered a judgment denying petition and the juvenile appealed.
The Supreme Court, Batjer, J., held that juvenile who admitted petty theft without suggesting
mitigating circumstances was not entitled to any greater rights than that afforded adult at a
revocation hearing and was not entitled to have order revoking parole set aside because he
was not represented by counsel at hearing and neither he nor his parents were advised of their
right to either retain counsel or to have counsel appointed.
Affirmed.
Virgil D. Dutt and Don V. Purke, of Reno, for Appellant.
Kathleen M. Wall, Deputy District Attorney, of Reno, for Respondent.
Infants.
Juvenile who admitted petty theft at probation revocation hearing and suggested no circumstances in
mitigation was not entitled to any greater rights at probation revocation hearing than those afforded adults
and he was not entitled to have probation revocation order set aside because he was not represented by
counsel at hearing and neither he nor his parents were advised that they could retain counsel or have
counsel appointed for hearing.
OPINION
On August 23, 1971, appellant was found to be a delinquent child within NRS 62.040, and
ordered committed to the care of the Nevada Youth Training Center. Execution of the order
was immediately suspended and he was placed on probation.
Almost two years later, after a hearing in juvenile court, appellant was determined to be in
violation of probation and ordered to the youth center.
91 Nev. 106, 107 (1975) Naves v. State
ordered to the youth center. At the probation revocation hearing, appellant was not
represented by counsel, and neither he nor his parents were advised that they could retain
counsel or have counsel appointed.
Subsequently, appellant petitioned the district court for a writ of habeas corpus alleging
that the juvenile court's failure to advise him of his right to counsel amounted to a denial of
due process. This petition was denied.
Appellant now contends that he had an absolute right to counsel at the probation
revocation hearing, because it was a critical stage of the proceedings. In support of this
contention he cites Powell v. Sheriff, 85 Nev. 684, 462 P.2d 756 (1969) and In re Gault, 387
U.S. 1 (1967). Neither of those cases is concerned with a probation revocation proceeding,
and neither provides direct support for appellant's argument.
Gault extends to juveniles the right to counsel in delinquency proceedings which may
result in commitment to an institution in which the juveniles' freedom is curtailed. In that case
the High Court noted that such proceedings were comparable in seriousness to adult felony
prosecutions. Id. at 1448.
We must now consider whether the right to counsel was required to be extended to
appellant at his probation revocation hearing. Although adults enjoy no absolute right to
counsel at probation revocation hearings, they may retain counsel or the court may appoint
counsel under certain circumstances. In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the High
Court determined that the need for counsel for an indigent probationer should be made on a
case-by-case basis, and held that an appointment should be made in cases where the
probationer makes a colorable claim that probation has not been violated or, even if there was
a violation, claims such substantial mitigating circumstances as to render revocation
inappropriate.
1
In Fairchild v. Warden, 89 Nev. 524, 516 P.2d 106 (1973), we concluded that
the appointment of counsel was not required. Fairchild, an indigent probationer, had admitted
violation of his probation and neither claimed nor suggested any mitigating circumstances.
Here, appellant (who made no claim of indigency or request for counsel) has admitted
petty theft which was one of the allegations of probation violation, and has suggested no
circumstances in mitigation. Although appellant did contest the allegation that he moved
without notifying his probation officer, and suggested reasons for such conduct, the theft
alone justifies revocation.
____________________

1
Gagnon v. Scarpelli, supra, expressly reserved any decision on the right to retained counsel for
non-indigents.
91 Nev. 106, 108 (1975) Naves v. State
and suggested reasons for such conduct, the theft alone justifies revocation. Had the appellant
been an adult indigent and the Gagnon test been applied, he would not have been entitled to
the appointment of counsel. As a juvenile he is entitled to no greater rights at a probation
revocation hearing than those afforded an adult.
The petition for writ of habeas corpus was properly denied by the lower court.
Affirmed.
____________
91 Nev. 108, 108 (1975) Holt v. Sinclair
ROY HOLT, Appellant, v. PHILLIP
SINCLAIR, Respondent.
No. 7091
February 26, 1975 532 P.2d 271
Appeal from an order granting a preliminary injunction, Eighth Judicial District Court,
Clark County; Michael J. Wendell, Judge.
Judgment debtor brought action to prevent execution sale by judgment creditor. The
district court granted preliminary injunction and the creditor appealed. The Supreme Court,
Thompson, J., held that fact that, after two parcels of debtor's property had been sold in
unsuccessful effort to satisfy judgment, attorneys for debtor and creditor entered upon
settlement negotiations and reached compromise understanding which contemplated delivery
by debtor of check for designated sum in return for satisfaction of judgment and redemption
of the two parcels sold did not warrant preliminary injunction against execution sale of other
property, where time for redemption had expired before settlement was concluded.
Harley W. Carter, of Las Vegas, for Appellant.
Lee and Beasey, of Las Vegas, for Respondent.
Execution.
Fact that, after two parcels of judgment debtor's property had been sold in unsuccessful effort to
satisfy judgment, attorneys for debtor and creditor entered upon settlement negotiations and reached
compromise understanding which contemplated delivery by debtor of check for designated sum in return
for satisfaction of judgment and redemption of two parcels sold did not warrant
preliminary injunction against execution sale of other parcels, where time for
redemption had expired before conclusion of settlement.
of judgment and redemption of two parcels sold did not warrant preliminary injunction
against execution sale of other parcels, where time for redemption had expired before
conclusion of settlement.
OPINION
Phillip Sinclair, a judgment debtor, persuaded the district court to grant a preliminary
injunction against an execution sale of parcels of his real property by Roy Holt, his judgment
creditor. Consequently, Holt has appealed to this court for relief. Since we are unable to
perceive a valid basis for injunctive relief, we reverse.
Some preliminary observations are in order. Sinclair does not claim that the judgment
debt, for some legal reason, is not owing Holt. Indeed, that debt previously has been
confirmed by this court. Sinclair v. Holt, 88 Nev. 97, 493 P.2d 1316 (1972). Neither does he
point to any infirmity in proceedings leading to the proposed execution sale. Moreover, the
record suggests his ability to pay the judgment debt should he elect to do so and thus preclude
the execution sale of property.
The district court apparently was impelled to grant injunctive relief because of
circumstances attending an attempted settlement of the debt. Two parcels of Sinclair's
property already had been sold in an effort to satisfy the judgment. Since that sale did not
produce enough to satisfy the debt, the attorneys for Sinclair and Holt entered upon settlement
negotiations and, through correspondence, had reached a compromise understanding which
contemplated the delivery by Sinclair of a check for a designated sum in return for a
satisfaction of judgment and a redemption of the two parcels sold. However, the time for
redemption expired before settlement was concluded,
1
and Holt then endeavored to execute
on other parcels, but was stopped by the court below.
Sinclair is indebted to Holt. He must pay that judgment, or suffer execution upon his
property to an extent sufficient to satisfy the debt. He has asserted no cognizable basis for
equitable relief.
____________________

1
It is claimed that Holt's then counsel misled Sinclair's counsel as to the date of the prior execution sale
causing Sinclair and his counsel to allow the redemption period to pass. Because of that claim and others,
Sinclair commenced an action at law against Holt, and others, to recover damages, if any, resulting from that
prior sale. We presume that such action will afford to Sinclair all appropriate legal relief, if any, to which he may
be entitled and is an adequate remedy. Cf. Connery v. Swift, 9 Nev. 39, 43 (1873).
equitable relief. Whatever claim for damages may be his resulting from the prior execution
sale will be resolved in another case to which we have made reference in footnote 1.
Reversed and remanded for disposition in accordance with this opinion.
____________
91 Nev. 110, 110 (1975) Stremmel Motors v. Kerns
BILL STREMMEL MOTORS, INC., Appellant, v.
JACK L. KERNS, Respondent.
No. 7326
February 26, 1975 531 P.2d 1357
Appeal from judgment entered upon a jury verdict, Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
Plaintiff brought action to recover actual and punitive damages for fraud. The district court
granted judgment for plaintiff, and defendant appealed. The Supreme Court held that
defendant's contention that the evidence failed to support the judgment would not be
considered where defendant made no motion for directed verdict, for judgment
notwithstanding verdict, or for new trial. Objection first proffered on appeal concerning a jury
instruction on burden of proof would not be considered.
Affirmed.
Petersen & Petersen, of Reno, for Appellant.
John Frankovich, of Reno, for Respondent.
Appellant's contention that evidence failed to support judgment would not be considered where appellant
had made no motion for a directed verdict, for judgment notwithstanding the verdict, or for new trial.
NRCP 50(a), (b), 59(a).
Objection first proffered on appeal concerning a jury instruction on burden of proof would not be
considered. NRCP 51.
OPINION
Per Curiam:
This appeal is from a judgment entered on a jury verdict, awarding actual and punitive
damages for fraud.
91 Nev. 110, 111 (1975) Stremmel Motors v. Kerns
[Headnote 1]
Appellant made no motion for a directed verdict, NRCP 50(a), or for judgment
notwithstanding the verdict, NRCP 50(b), or for a new trial, NRCP 59(a). However, on
appeal, appellant urges that the evidence fails to support the judgment. We will not consider
this contention. See: Price v. Sinnott, 85 Nev. 600, 460 P.2d 837 (1969); NRCP 50(b), as
amended in 1971.
[Headnote 2]
Similarly, we decline to consider an objection first proffered on appeal concerning a jury
instruction on burden of proof. NRCP 51; Fireman's Fund Ins. v. Shawcross, 84 Nev. 446,
442 P.2d 907 (1968); Shoshone Coca Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966).
Having considered appellant's other contentions, we believe appellant has demonstrated no
error, properly preserved for review, which affected substantial rights of the parties.
____________
91 Nev. 111, 111 (1975) Junior v. Warden
WILLIE JUNIOR, Appellant, v. WARDEN, NEVADA
STATE PRISON, Respondent.
No. 7578
February 26, 1975 532 P.2d 1037
Appeal from order dismissing petition for writ of habeas corpus, First Judicial District
Court, Carson City; Frank B. Gregory, Judge.
The Supreme Court held that court could not consider petition attacking proceedings
certifying defendant for adult trial, in absence of showing of reasons for the failure to raise
such contention on direct appeal.
Affirmed.
Horace R. Goff, State Public Defender, and Michael R. Griffin, Deputy Public Defender,
Robert List, Attorney General, and Robert A. Groves, Chief Deputy Attorney General,
Carson City, for Respondent.
1. Habeas Corpus.
Supreme Court decision regarding waiver of issues raised in petition for post-conviction relief where
issues could have properly been raised on direct appeal applies to post-conviction
applications for habeas corpus as well as to petitions for post-conviction relief. NRS
34.010 et seq., 177.015 et seq.
91 Nev. 111, 112 (1975) Junior v. Warden
been raised on direct appeal applies to post-conviction applications for habeas corpus as well as to petitions
for post-conviction relief. NRS 34.010 et seq., 177.015 et seq.
2. Habeas Corpus.
Court could not consider petition for writ of habeas corpus attacking proceedings certifying defendant for
adult trial, in absence of showing of reasons for the failure to raise such contention on direct appeal. NRS
34.010 et seq.
OPINION
Per Curiam:
[Headnote 1]
We hold that this court's decision in Johnson v. Warden, 89 Nev. 476, 515 P.2d 63 (1973),
applies to post-conviction applications for habeas corpus under NRS Chapter 34, as well as to
petitions for post-conviction relief under NRS Chapter 177.
[Headnote 2]
Accordingly, we affirm the district court's dismissal of appellant's petition for writ of
habeas corpus, which alleged no reasons for omitting to raise, on direct appeal, appellant's
current attack on proceedings certifying him for adult trial. See: Junior v. State, 89 Nev. 121,
507 P.2d 1037 (1973).
____________
91 Nev. 112, 112 (1975) Washoe Investment, Inc. v. State of Nevada
WASHOE INVESTMENT, INC., a Nevada Corporation, Appellant, v. THE STATE OF
NEVADA and NEVADA GAMING COMMISSION, Respondents.
No. 7081
February 26, 1975 532 P.2d 265
Appeal from order dismissing action; First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Suit was brought against the State of Nevada and the Nevada Gaming Commission,
seeking recovery of the sum of $32,399.85, representing an advance deposit paid to the State
in excess of the actual license fee due for the final quarter of plaintiff's gambling operations.
The district court dismissed the action, and plaintiff appealed. The Supreme Court,
Thompson, J., held that (1) the State has no statutory authorization to keep license fees paid
in excess of those due at the close of the licensee's gambling operations, and (2) the licensee's
submission to the Gaming Commission of its refund claim constituted an acceptable
alternative to submitting the claim directly to the Board of Examiners, and the licensee's
claim was thus not legally barred for failure to meet a precondition to suit.
Board of Examiners, and the licensee's claim was thus not legally barred for failure to meet a
precondition to suit.
Reversed, with direction to enter judgment for plaintiff.
[Rehearing denied March 27, 1975]
McDonald, Carano, Wilson & Bergin, and Gary Wood and John J. Frankovich, of Reno,
for Appellant.
Robert List, Attorney General, and David C. Polley, Deputy Attorney General, Carson
City, for Respondents.
1. Gaming.
State has no statutory authorization to keep license fees paid in excess of those due at the close of the
licensee's gambling operations. NRS 463.370, subd. 3.
2. Licenses.
Although only the State Board of Examiners may order the state controller to draw a warrant for the
amount of an overpayment of a license fee, tax or other charge, it does not follow that a claim for refund
must be presented to that Board in every case. NRS 353.120.
3. Gaming.
Licensee's submission to the Gaming Commission of its claim for recovery of an advance deposit paid to
the State in excess of the actual license fee due for the final quarter of the licensee's gambling operations
constituted an acceptable alternative to submitting the claim directly to the Board of Examiners, and the
licensee's claim for refund was thus not legally barred for failure to meet a precondition to suit. NRS
41.036, 353.110-353.120, 463.370, subd. 3.
OPINION
This action was commenced by Washoe Investment, Inc., against the State of Nevada and
the Nevada Gaming Commission to recover the sum of $32,399.85 representing an advance
deposit paid to the State in excess of the actual license fee due for the final quarter of its
operation.
1. An advance deposit was paid to the State on November 1, 1968, in the amount of
$44,266.90 as required by NRS 463.370(3).
1
Washoe Investment, Inc., terminated its
gambling operation at the Crystal Bay Club, Lake Tahoe, on June 1, 1970. The license fee
due Nevada as of that date was $11,867.05. This suit seeks a refund of the difference between
those two amounts.
____________________

1
NRS 463.370(3): When a licensee is operating under a provisional license, the payment of the fee due for
the first quarter of operation based on the gross revenue derived from gambling pursuant to this section shall be
accompanied by the payment of a fee in like
those two amounts. There is no contention that as of the close of business on June 1, 1970,
Washoe Investment was delinquent in any payments due the State. It is conceded that it had
paid all fee obligations in full.
Notwithstanding these stipulated facts, the State and the Gaming Commission insist that
the amendment to NRS 463.370(3) footnoted below somehow allows the State to retain the
overpayment.
[Headnote 1]
Whatever the purpose and intended effect of the amendment may have been, it cannot be
construed to authorize the State to keep license fees paid in excess of those due at the close of
the licensee's gambling operation. The amendment authorizes neither confiscation nor
forfeiture. Since the stipulated facts show an advance deposit greater by $32,399.85 than the
actual fee due for the final quarter of the licensee's operation, the licensee must win this case
unless otherwise legally barred.
2. It is the respondents' contention that the claim for refund is legally barred by reason of
the claimant's failure to meet a precondition to suit. The claimant did not submit its claim to
the Board of Examiners before filing this action.
Several statutes bear upon this contention. Every claim against the State for refund shall be
presented in accordance with NRS 353.110 to 353.120, inclusive.
2
Such is the command of
NRS 41.036. The advance deposit was paid to the Gaming Commission, under protest, on
November 1, 1968. The licensee terminated its business operation on June 1, 1970. From July
1, 1970, to December 1970, the claimant and staff members of the Commission met to
determine the licensee's claim to refund.
____________________
amount, which shall be a deposit and shall be applied to the actual fee due for the final quarter or operation.
Effective July 1, 1969, the italicized portion of the quoted statute was deleted, and in lieu thereof, the
following words were substituted: Thereafter, each quarterly license fee shall be paid in advance based on the
gross revenue of the preceding quarter. Any deposit held by the Commission on the effective date of this act
shall be treated as such advance payment.

2
NRS 353.110: 1. Whenever an amount has been paid into a county treasury for taxes which exceeds the
amount required by law to be paid for the applicable tax year, and all or part of the amount so paid has been
deposited in the state treasury, a claim for refund of that portion of the overpayment which has been deposited in
the state treasury may be made only to the state board of examiners.
2. Whenever an overpayment of a license fee, tax or other charge has been made to any state agency or
officer, except under the circumstances specified in subsection 1, the agency or officer may, subject to the
provisions of any other applicable law, refund the amount of the
claim to refund. The Commission denied the claim by letter dated April 5, 1971. This action
was filed May 12, 1971.
[Headnotes 2, 3]
Although only the State Board of Examiners may order the state controller to draw a
warrant for the amount of the overpayment (NRS 353.120), it does not follow, as the
respondents contend, that the claim for refund must be presented to that Board in every case.
NRS 353.110(2) permits the agency to whom overpayment is made to refund the amount of
overpayment after obtaining the approval of the State Board of Examiners. Accordingly, it
would appear that submission of the claim to the agency for approval or denial, is an
acceptable alternative to submitting the claim directly to the Board of Examiners. Cf.
Kaminski v. Woodbury, 85 Nev. 667, 462 P.2d 45 (1969), where the claim was submitted to
one not authorized to act upon it.
3
We, therefore, reject the respondents' argument that
Washoe Investment, Inc., failed to comply with an essential precondition to suit.
The order of dismissal is reversed, and this case is remanded to the district court with
direction to enter judgment in favor of the plaintiff and against the defendants for the sum of
$32,355.90 plus interest thereon at the rate of 7 percent per annum from June 1, 1970, until
paid. NRS 99.040; Paradise Homes v. Central Surety, 84 Nev. 109, 437 P.2d 78 (1968).
____________________
overpayment after obtaining the approval of the state board of examiners.
NRS 353.115: A claim for refund of money deposited in the state treasury or paid to a state agency or
officer shall be made within 1 year from the date of such deposit or payment unless: 1. Payment was made under
protest; or 2. The statute applicable to claims against or refunds by a particular state agency or officer prescribes
a different period.
NRS 353.120: 1. If the state board of examiners is satisfied of the correctness and justice of a claim for
refund of money paid into a county treasury and deposited in the state treasury, it shall order the state controller
to draw his warrant for the amount of the overpayment so deposited in favor of the person entitled to the refund.
2. Every refund ordered or approved by the state board of examiners shall be paid: (a) From the fund into
which the money refunded was originally paid, if there are unencumbered moneys in that fund. (b) Otherwise,
from the reserve for statutory contingency fund.

3
We express no opinion as to the impact of our ruling in Turner v. Staggs, 89 Nev. 230 510 P.2d 879 (1973),
upon the claim statute issue presented in this case.
____________
91 Nev. 116, 116 (1975) Melvin L. Lukins & Sons, Inc. v. Kast
MELVIN L. LUKINS & SONS, INC., Appellant, v. DEAN KAST, BASIL KAST,
GARRISON 8 INTERNATIONAL CORP., a Washington Corporation, B. H. MORTON,
VERA L. McMASTER, and ROBERT HODGES, Respondents.
No. 7484
February 26, 1975 532 P.2d 602
Appeal from order dismissing certain defendants as parties to action brought in trial court,
Sixth Judicial District Court, Humboldt County; Joseph O. McDaniel, Judge.
Appeal was taken from an order of the district court, dismissing certain defendants as
parties to action on ground that plaintiff was barred due to decision rendered in earlier
proceeding from relitigating certain issues against such defendants. The Supreme Court held
that failure to file answering brief to appeal would be considered a confession of error and
judgment would be reversed without consideration of merits of appeal.
Upon failure of respondents to file answering brief, reversed without consideration of
the merits of the appeal.
T. David Horton, of Battle Mountain, for Appellant.
Appeal and Error.
Failure to file answering brief to appeal from order dismissing three defendants as parties to action on
basis that plaintiff was barred due to decision rendered in earlier proceeding from litigating certain issues
against such defendants would be considered a confession of error and judgment would be reversed
without consideration of merits of appeal. NRAP 31(c).
OPINION
Per Curiam:
An order was entered by the trial court dismissing the defendants, Dean Kast, Basil Kast
and Garrison 8, as parties to plaintiff's action on the basis that plaintiff was barred due to a
decision rendered in an earlier proceeding from relitigating certain issues against these
defendants. Respondents have filed no answering brief.
Under these circumstances this court may regard such a failure as a confession of error and
reverse the judgment as to appellant without consideration of the merits of the appeal.
91 Nev. 116, 117 (1975) Melvin L. Lukins & Sons, Inc. v. Kast
NRAP 31(c);
1
see also, Paso Builders, Inc. v. Hebard, 83 Nev. 165, 426 P.2d 731 (1967);
Toiyabe Supply Co. v. Arcade, 74 Nev. 314, 330 P.2d 121 (1958). In our view this is an
appropriate case for application of this rule.
Judgment reversed and case remanded to the district court.
____________________

1
NRAP 31(c) provides in part: If a respondent fails to file his brief, he will not be heard at oral argument
except by permission of the court. The failure of respondent to file a brief may be treated by the court as a
confession of error and appropriate disposition of the appeal thereafter made.
____________
91 Nev. 117, 117 (1975) Selby v. Sheriff
FRED SELBY, Appellant, v. SHERIFF, CLARK
No. 8090
February 26, 1975 531 P.2d 1356
The Supreme Court held that evidence adduced at preliminary examination justified
magistrate's determination that there was probable cause to hold petitioner for trial.
Affirmed.
Morgan D. Harris, Public Defender, and Kelly H. Swanson, Deputy, Clark County, for
Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Daniel
M. Seaton, Chief Deputy, Clark County, for Respondent.
Habeas Corpus.
Evidence adduced at preliminary examination justified magistrate's determination that there was probable
cause to hold for trial petitioner, who sought pretrial habeas corpus. NRS 171.206.
OPINION
Per Curiam:
In this appeal from an order denying a pretrial petition for habeas corpus, we believe the
evidence adduced at the preliminary examination justified the magistrate's determination that
there was probable cause to hold appellant for trial.
91 Nev. 117, 118 (1975) Selby v. Sheriff
that there was probable cause to hold appellant for trial. NRS 171.206. See concurring
opinion by Zenoff, J., in Franklin v. State, 89 Nev. 382, 389, 513 P.2d 1252, 1257 (1973).
[W]e are not now concerned with the prospect that the evidence presently in the record
may, by itself, be insufficient to sustain a conviction. McDonald v. Sheriff, 89 Nev. 326,
327, 512 P.2d 774, 775 (1973).
The order denying habeas relief is affirmed.
____________
91 Nev. 118, 118 (1975) Boyer v. Warden
JAMES RAY BOYER, Appellant, v. WARDEN,
No. 7284
February 26, 1975 532 P.2d 273
Appeal from order denying post-conviction relief. Second Judicial District Court, Washoe
Petitioner, who had been convicted of selling marijuana to an adult, appealed from an
order of the district court denying post-conviction relief. The Supreme Court held that an
appropriate inquiry regarding petitioner's waiver of constitutional trial rights was made when
his guilty plea was accepted.
Affirmed.
Rodlin Goff, State Public Defender, Carson City, for Appellant.
Robert List, Attorney General, Carson City; and Larry Hicks, District Attorney, Washoe
County, for Respondent.
Criminal Law.
Trial court made appropriate inquiry regarding defendant's waiver of constitutional trial rights when his
guilty plea was accepted.
OPINION
Per Curiam:
James Ray Boyer entered a guilty plea to a charge of selling marijuana to an adult, in
violation of NRS 453.210 [now NRS 453.321]. He seeks in this post-conviction proceeding
to set aside his judgment of conviction, on the ground that appropriate inquiry regarding his
waiver of constitutional trial rights was not made when his guilty plea was accepted. Boyer
was represented by counsel when he entered his plea and later when he was sentenced.
91 Nev. 118, 119 (1975) Boyer v. Warden
was sentenced. We have reviewed the transcript of the proceedings at both hearings, and they
reflect that the canvass by the district judge fully met the standards of Armstrong v. Warden,
90 Nev. 8, 518 P.2d 147 (1974). See also Patton v. Warden, 91 Nev. 1, 530 P.2d 107 (1975).
We therefore affirm the order of the court below denying Boyer's post-conviction petition.
____________
91 Nev. 119, 119 (1975) Wheeler v. State
MICHAEL J. WHEELER, Appellant, v. THE
No. 7531
February 26, 1975 531 P.2d 1358
Appeal from a judgment of conviction for robbery; Eighth Judicial District Court, County
of Clark; John F. Mendoza, Judge.
The Supreme Court held that the evidence was sufficient to support the verdict despite
defendant's contentions that the testimony of four eyewitnesses was so similar that there must
have been a prearranged plan among them to testify and that his alibi evidence was sufficient
to acquit him.
Affirmed.
Morgan D. Harris, Public Defender, and Theodore J. Manos, Deputy, Clark County, for
Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and Dan M.
Seaton, Deputy District Attorney, Clark County, for Respondent.
Robbery.
Evidence was sufficient to support conviction for robbery despite defendant's contentions that
testimony of four eyewitnesses was so similar that there must have been prearranged plan among them to
so testify and that alibi evidence was sufficient to acquit him. NRS 200.380.
OPINION
Per Curiam:
Michael J. Wheeler, the appellant, was found guilty by jury verdict of robbery. NRS
200.380. The sole issue on appeal is whether the evidence was sufficient to support the
verdict. "On appeal, the issue is not whether this court would have found appellant guilty,
but whether the jury properly could."
91 Nev. 119, 120 (1975) Wheeler v. State
On appeal, the issue is not whether this court would have found appellant guilty, but
whether the jury properly could. Anstedt v. State, 89 Nev. 163, 165, 509 P.2d 968 (1973).
The jury is the sole and exclusive judge of the credibility of the witnesses and the weight to
be given the evidence. King v. State, 87 Nev. 537, 538, 490 P.2d 1054 (1971).
Appellant's first contention is that the testimony of four eyewitnesses was so similar that
there must have been a prearranged plan among them to so testify. The record supports no
such allegation of collusion among the witnesses and the eyewitness testimony is otherwise
compelling. Appellant next argues that his alibi evidence was sufficient to acquit him. The
jury apparently chose not to accept such evidence as was its right.
There is substantial evidence in the record to support the jury's verdict of guilty. The
judgment of conviction is affirmed.
____________
91 Nev. 120, 120 (1975) Heilig v. Christensen
MYRON F. HEILIG, Petitioner, v. HONORABLE CARL J. CHRISTENSEN, Chief Judge,
Eighth Judicial District Court of the State of Nevada, in and for the County of Clark;
ROBERT WEISS; and JACK SHULMAN, Respondents.
No. 7665
February 26, 1975 532 P.2d 267
Original proceedings in mandamus and prohibition or certiorari.
Partner instituted original proceeding wherein he petitioned for issuance of writ of
mandamus and writ of prohibition or, in alternative, writ of certiorari to relieve him from
complying with district court order confirming arbitrator's award which dissolved and settled
partnership. The Supreme Court held that mandamus, prohibition and certiorari were
inappropriate remedies to be used to obtain review of such order.
Denied.
[Rehearing denied June 18, 1975]
Eric Zubel, of Las Vegas, for Petitioner.
Lionel Sawyer Collins & Wartman, Steve Morris, Victor W. Priebe, and Robert D. Faiss,
for Respondent Weiss.
Wiener, Goldwater & Galatz, and J. Charles Thompson, for Respondent Shulman.
1. Arbitration.
Order confirming district court order confirming arbitration award is reviewable only on direct appeal.
NRS 38.205, 38.205, subd. 1(c).
2. Mandamus; Prohibition.
Neither mandamus nor prohibition can issue if petitioner has a plain, speedy and adequate remedy at law.
NRS 34.170, 34.330.
3. Mandamus.
Mandamus will not lie where another remedy is available. NRS 34.170.
4. Prohibition.
Principle on which law of prohibition is predicated is that its attack on jurisdiction is confined to those
cases where no other remedy, such as direct appeal, exists. NRS 34.330.
5. Arbitration.
Mandamus, prohibition and certiorari were inappropriate remedies to be used to obtain review of district
court order confirming arbitrator's award which dissolved and settled a partnership. NRS 34.170,
34.330, 38.205, 38.205, subd. 1(c).
OPINION
Per Curiam:
Petitioner Myron F. Heilig seeks in these original proceedings the issuance of a writ of
mandamus and a writ of prohibition or in the alternative a writ of certiorari to relieve him
from complying with the order of the court below that confirmed an arbitrator's award
dissolving and settling a certain partnership between Heilig and his partners, Respondents
Weiss and Shulman.
1. In 1966, Heilig, Weiss, and Shulman entered into a partnership agreement for the
purchase and operation of 113 apartment buildings in Las Vegas. They each signed, as part of
the purchase contract, promissory notes secured by deeds of trust covering the property. In
1970, they leased the property to the Kogelschatz Korp. Kogelschatz later defaulted in their
rental payments and abandoned the property. Weiss, with the approval of Heilig and
Shulman, assumed the management of the apartments. He advanced substantial sums of his
own money so that the partnership could remain solvent and continue in business. In
December 1971, Weiss filed an action in the court below against Heilig and Shulman,
seeking reimbursement for their pro rata shares of the moneys he had advanced to the
partnership. Heilig asked the court to refer the matter to an arbitrator, as provided in the
partnership agreement.
to an arbitrator, as provided in the partnership agreement. The court did so. The partners
submitted all issues in dispute to the arbitrator, including the dissolution of the partnership
and the settling of its affairs. As the arbitration moved to a close, the three parties entered into
a stipulation which provided for a final accounting and a division of the partnership property.
The stipulation also provided that each of the partners would execute and deliver to the
arbitrator a power of attorney which would enable the arbitrator to effect the settlement of the
partners' affairs and divide the partnership property.
The arbitrator entered his award on December 28, 1972, which was modified pursuant to
Weiss's request on February 8, 1973. The final award divided the partnership property and
ordered Heilig and Shulman to reimburse Weiss for their pro rata shares of the moneys
previously advanced by Weiss to the partnership. The award also set forth the formula for
settling the partners' accounts, and fixed February 22, 1973, as the time for terminating the
partnership. Prior to February 22, 1973, Petitioner Heilig attempted to revoke his assent to
the stipulation he had signed, giving the arbitrator the power to act in his behalf at the
February 22 closing of the partnership, and he refused to attend the closing or participate in it
in any manner.
Following the closing, the arbitrator prepared and sent to Heilig a statement of the
accounting rendered in his absence at the closing. The arbitrator offered Heilig an opportunity
to object to the accounting, if he chose to do so. Heilig failed to respond, and on May 7, 1973,
the arbitrator prepared and delivered to the parties his Final Award and Closing Statement.
The district court, after a full hearing on Weiss's motion to confirm the arbitrator's award, did
so on January 28, 1974. Heilig then filed numerous motions contesting the lower court's
Order Confirming Arbitrator's Award, as well as the judgment entered against him. The
district court denied Heilig's motions, although the court stayed execution of the judgment to
enable Heilig to pursue this petition for extraordinary relief.
2. Petitioner Heilig has now applied to this court for Issuance of an Alternative Writ of
Mandate and Writ of Prohibition or in the Alternative, for a Writ of Certiorari. The thrust of
Heilig's argument is that the order of the court below confirming the award does not reflect
the award of the arbitrator or in any event the arbitrator's award does not resolve the issues to
Heilig's satisfaction.
[Headnote 1]
The order of a district court confining the award of an arbitrator may be reviewed by this
court upon direct appeal under the express provisions of NRS 3S.205, subsection 1{c).1
Prior to 1969, certain orders of a district court concerning arbitration awards could be
reviewed in this court by certiorari, although court orders affirming an award were
appealable as final judgments.
arbitrator may be reviewed by this court upon direct appeal under the express provisions of
NRS 38.205, subsection 1(c).
1
Prior to 1969, certain orders of a district court concerning
arbitration awards could be reviewed in this court by certiorari, although court orders
affirming an award were appealable as final judgments. Plumbing Local 525 v. Eighth
Judicial Dist. Court, 82 Nev. 103, 412 P.2d 352 (1966). In 1969, our Legislature adopted
NRS 38.205, and since then an order confirming an award such as the one in the instant
proceedings is reviewable only on direct appeal. Certiorari will not lie in the instant case.
[Headnotes 2-4]
Mandamus and prohibition are equally inappropriate remedies to review the award of an
arbitrator. Neither can issue if the petitioner has a plain, speedy, and adequate remedy at law.
NRS 34.170
2
and NRS 34.330.
3
Mandamus will not lie where another remedy is available.
See State ex rel. Newitt v. Fourth Judicial Dist. Court, 61 Nev. 164, 121 P.2d 442 (1942). The
principle upon which the law of prohibition is predicated is that its attack on jurisdiction is
confined to those cases where no other remedy, such as direct appeal, exists. Bowler v. First
Judicial Dist. Court, 68 Nev. 445, 454, 234 P.2d 593, 598 (1951).
[Headnote 5]
It is clear, therefore, that mandamus, prohibition, and certiorari are inappropriate remedies
to review the order of the district court which confirmed the award of the arbitrator in the
instant case. Heilig's petition is denied, and this court's order of March 28, 1974, staying
proceedings in the district court, is vacated.
____________________

1
NRS 38.205, subsection 1(c):
1. An appeal may be taken from:
. . .
(c) An order confirming or denying confirmation of an award;
. . .

2
NRS 34.170:
This writ [mandamus] shall be issued in all cases where there is not a plain, speedy and adequate
remedy in the ordinary course of law. It shall be issued upon affidavit, on the application of the party
beneficially interested.

3
NRS 34.330:
The writ [prohibition] may be issued only by the supreme court to an inferior tribunal, or to a
corporation, board or person, in all cases where there is not a plain, speedy and adequate remedy in the
ordinary course of law. It is issued upon affidavit, on the application of the person beneficially
interested.
____________
91 Nev. 124, 124 (1975) Bradshaw v. General Electric Co.
LEWIS W. BRADSHAW, Appellant, v. GENERAL ELECTRIC COMPANY, a New York
Corporation, and GRAYBAR ELECTRIC COMPANY, a New York Corporation,
Respondents.
No. 7513
February 26, 1975 531 P.2d 1358
Appeal from judgment for defendants and denial of motion for judgment notwithstanding
the verdict or in the alternative for a new trial based on injuries suffered by electric power
repairman. Eighth Judicial District Court; Carl J. Christensen, Judge.
Electric power repairman who was electrocuted when circuit recloser failed to de-energize
power line brought action against designer and manufacturer of recloser. The district court
rendered a judgment for defendant, and plaintiff appealed. The Supreme Court, Zenoff, J.,
held that, where testimony was conflicting as to whether condition of mechanism was defect
of manufacture or whether mechanism was assembled incorrectly when it was attached to
power pole and where evidence as to repairman's prior knowledge of faulty condition was
conflicting, issue of liability was for jury.
Affirmed.
Morse, Foley & Wadsworth, of Las Vegas, for Appellant.
Rose, Norwood & Edwards, and Neils L. Pearson, of Las Vegas, for Respondent General
Electric Company.
Beckley, Singleton, DeLanoy & Jemison, and Richard W. Myers, of Las Vegas, for
Respondent Graybar Electric Compay.
1. Electricity.
In action by electric power repairman against designer and manufacturer of circuit recloser to recover on
basis of strict liability for injuries sustained when he pulled down manual operating handles on recloser to
de-energize power line but lid clamp closure was obstructed by switch mechanism so that safety
mechanism did not de-energize line and repairman touched line and was electrocuted, where testimony was
conflicting as to whether condition of mechanism was defect of manufacture or whether mechanism was
assembled incorrectly when it was attached to power pole and where evidence as to repairman's prior
knowledge of faulty condition was conflicting, issue of liability for repairman's injuries was for jury.
2. Depositions.
Where electric power repairman, who sued designer and manufacturer of circuit recloser to recover on
basis of strict liability for injuries sustained when he pulled down handles on recloser to
de-energize power line but lid clamp closer was obstructed by switch mechanism so
that safety mechanism did not de-energize line and repairman touched line and was
electrocuted, referred to portions of deposition of witness who was expert in
reclosers, it was permissible for designer and manufacturer to then offer other
portion of deposition wherein expert opined that someone had put recloser together
wrong, since expert's analysis of recloser prompted opinion he was qualified to give.
injuries sustained when he pulled down handles on recloser to de-energize power line but lid clamp closer
was obstructed by switch mechanism so that safety mechanism did not de-energize line and repairman
touched line and was electrocuted, referred to portions of deposition of witness who was expert in
reclosers, it was permissible for designer and manufacturer to then offer other portion of deposition
wherein expert opined that someone had put recloser together wrong, since expert's analysis of recloser
prompted opinion he was qualified to give. NRCP 32(a)(4).
OPINION
Defendant-respondent General Electric Company designed, manufactured and sold
through Graybar Electric Company certain automatic oil circuit reclosers to the Alamo Power
District. This action involves malfunction of the recloser installed on the crossarm of a power
pole at Hiko Junction. An automatic oil circuit recloser is designed to de-energize the power
line in the event of a short or fault on the line. It can also be operated manually. A handle may
be pulled to a near vertical position to open the recloser and de-energize the line.
The appellant, Lewis W. Bradshaw, was the sole lineman for the Alamo Power District.
On March 18, 1965, with his assistant, he went to the Whipple Ranch to check out a power
failure. There he determined that a fuse had blown necessitating his return with the assistant
to Hiko Junction in order to clear the line of energy so that he could replace the fuse. He
ascended a power pole there for the purpose of disconnecting the power so that they could
return to the scene of the blown fuse and safely replace it. While he was up the pole and using
a hot stick, which is a safety instrument for workmen who work on power lines, he reached
up and pulled down the manual operating handles on the automatic oil circuit reclosers. He
repeated the process at the direction of the assistant.
The two men returned to the Whipple Ranch and when Bradshaw climbed the transformer
pole to replace the fuse he reached out with the back of his left hand to test whether the line
was de-energized. The method was one customarily used for the purpose but in this instance
the line had not de-energized and Bradshaw was electrocuted, though not fatally. He suffered
substantial injuries to his left hand and wrist and his right foot.
Apparently, when Bradshaw pulled the lever to de-energize the line the lid clamp closer
was obstructed by the switch mechanism but not noticeably so. The safety mechanism did not
free the line of electrical energy. The testimony was conflicting as to whether the condition of
the manual mechanism was a defect of manufacture or instead was assembled at the Alamo
area incorrectly when it was attached to the power pole years before the accident. The
evidence as to this, and Bradshaw's prior knowledge of the faulty condition, were conflicting.
This action was originally based on three counts of strict liability, negligence and breach of
implied warranty, but upon final submission to the jury Bradshaw dismissed the counts of
negligence and implied warranty and relied solely on strict liability in tort for recovery. The
jury found for the respondents.
Only two assignments of error will be considered. The others are either unsupported by
citations of authority (General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972)) or no
objections were registered to the giving of certain instructions as required by NRCP 51. We
perceive no error.
[Headnote 1]
1. Bradshaw's principal contention is that the trial court erred in its denial of the motion
for judgment notwithstanding the verdict. He claims that every element to prove a cause of
action in strict liability was established without dispute. The record indicates otherwise. The
testimony was substantially in conflict as to whether the product was defective or was used in
its intended manner. Also, to be resolved by the jury were certain intervening factors that
involved the presence of assumed risk. Such are ingredients of strict liability and they were
all in dispute. General Electric Co. v. Bush, supra; Worrell v. Barnes, 87 Nev. 204, 484 P.2d
573 (1971). With all these conflicts the jury's function had to be served.
[Headnote 2]
2. Relative to the second assignment of error Bradshaw referred to portions of the
deposition of Dr. Dino Morelli who was an expert in reclosers. Respondent General Electric
thereupon offered other portions of the deposition (NRCP 32(a) (4)) wherein the claimed
error was a statement by Dr. Morelli that, Some jackass put it together wrong, that's all.
We perceive no error. Dr. Morelli's analysis of the recloser prompted the opinion which he
was qualified to give.
Affirmed.
Gunderson, C. J., and Batjer, Mowbray, and Thompson. JJ., concur.
____________
91 Nev. 127, 127 (1975) Garvey v. Clark County
JOHN A. GARVEY, RITA A. GARVEY, JAMES A. GARVEY, PATRICIA M. GARVEY,
JOHN O. GARVEY, and LEONARD ROBINSON, Special Administrator of the ESTATE
OF JACQUELINE GARVEY, Deceased; THOMAS J. BARRETT, MARY BARRETT,
PATRICK R. BARRETT, MARY BARRETT OGNAR, and LEONARD ROBINSON,
Special Administrator of the ESTATE OF NOREEN BARRETT, Deceased, Appellants, v.
CLARK COUNTY, NEVADA; JAMES G. RYAN, JAMES BRENNAN, MYRON E.
LEAVITT, ROBERT M. BROADBENT, THOMAS WEISNER, BOARD OF COUNTY
COMMISSIONERS, CLARK COUNTY, NEVADA; and STATE OF NEVADA on Relation
of Its Department of Highways, Respondents.
No. 7576
February 27, 1975 532 P.2d 269
Appeal from an order dismissing a complaint as against the State of Nevada, and from a
summary judgment in favor of Respondent Clark County; Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
Action was brought to recover for death of pedestrians who were struck by motorist at a
crosswalk. Defendant State moved to dismiss, and defendant county filed a motion for
summary judgment. The district court granted both motions, and plaintiffs appealed. The
Supreme Court held that where plaintiffs, whose original complaint included as party
defendants John Doe II through X, conscientiously elected not to name the State as a party
defendant when they commenced the action, subsequent attempt to amend complaint to bring
in State amounted to an addition rather than a substitution of a party defendant, that amended
complaint was not outside bar of 2-year statute of limitations for actions for wrongful death
on theory that it related back to date the original complaint was filed, and that plaintiffs
made showing that was insufficient to withstand county's motion for summary judgment.
theory that it related back to date the original complaint was filed, and that plaintiffs made
showing that was insufficient to withstand county's motion for summary judgment.
Affirmed.
[Rehearing denied April 7, 1975]
Foley Brothers and Pat J. Fitzgibbons, Las Vegas, for Appellants.
Dickerson, Miles & Pico and Charles H. Wagner, Las Vegas; Robert List, Attorney
General, and Margo Piscevich, Deputy Attorney General, Carson City, for Respondents.
1. Limitation of Actions.
Where plaintiffs, whose original complaint included as party defendants John Doe II through X,
conscientiously elected not to name the State as a party defendant when they commenced the action,
subsequent attempt to amend complaint to bring in State amounted to an addition rather than a substitution
of a party defendant, and amended complaint was not outside bar of 2-year statute of limitations for actions
for wrongful death, on theory that it related back to date the original complaint was filed. NRS 11.190,
subd. 4(e).
2. Judgment.
Plaintiffs, who in action for wrongful death of pedestrians offered nothing more than mere allegations of
their complaint to support their position that defendant county under a preexisting agreement with State had
a duty to maintain adequate lighting at intersection where accident occurred and that county failed to do so,
made showing that was insufficient to withstand county's motion for summary judgment that was predicated
on affidavit of county director of public works which in essence negated any factual basis for liability on
part of the county. NRCP 10(a), 56(e).
OPINION
Per Curiam:
Appellants, who were the plaintiffs below, commenced this wrongful death action to
recover damages for the death of two women pedestrians who were struck by a motorist at a
crosswalk on State Highway 91 between the New Frontier and Desert Inn Hotels in Las
Vegas. Respondent-defendant State of Nevada filed a motion to dismiss the complaint as to
the State, and Respondent-defendant County of Clark filed a motion seeking a summary
judgment in its favor. Both motions were granted. Hence, this appeal. 1.
1. On May 1, 1970, Noreen Barrett and Jacqueline Garvey, out-of-state vacationers,
attempted to cross the Las Vegas Strip on a walk designated for that purpose. They were
struck by an automobile driven by Wellman Osborne.
1
Miss Garvey died instantly. Miss
Barrett died soon thereafter. This action was filed on December 7, 1971. On July 31, 1973, an
amended complaint was filed, naming the State of Nevada a party defendant.
[Headnote 1]
2. The State, after being served with process, promptly filed, on August 17, 1973, a
motion to dismiss, on the ground the action against the State was barred by the 2-year statute
of limitations. NRS 11.190, subsection 4(e).
2
Appellants urge that the dismissal order was in
error, since the amended complaint, bringing in the State, related back to the date the original
complaint was filed, and therefore it is not barred by the statute. The original complaint
included as party defendants John Doe II through X. Appellants argue that by naming the
John Does, the complaint may be later amended to bring in the State, under NRCP 10(a).
3
However, appellants concede that they consciously elected not to name the State as a party
defendant when they commenced the action. Consequently, the State in the instant case was
not substituted, but rather was added, as a party defendant. The appellants' claim is barred by
the 2-year statute, and the order of dismissal must be affirmed.
____________________

1
Mr. Osborne has settled with the appellants, and he is not a party to this action.

2
NRS 11.190, subsection 4(e):
Actions other than those for the recovery of real property, unless further limited by NRS 11.205 or
by or pursuant to the Uniform Commercial Code, can only be commenced as follows:
. . .
4. Within 2 years:
. . .
(e) An action to recover damages for injuries to a person or for the death of a person caused by the
wrongful act or neglect of another. The provisions of this paragraph relating to an action to recover
damages for injuries to a person shall apply only to causes of action which shall accrue after March 20,
1951.

3
NRCP 10(a):
Every pleading shall contain a caption setting forth the name of the court and county, the title of the
action, the file number, and a designation as in Rule 7(a). In the complaint the title of the action shall
include the names of all the parties, but in other pleadings it is sufficient to state the name of the first
party on each side with an appropriate indication of other parties. A party whose name is not known may
be designated by any name, and when his true name is discovered, the pleading may be amended
accordingly. (Emphasis added.)
is barred by the 2-year statute, and the order of dismissal must be affirmed.
[Headnote 2]
3. NRCP 56(e) provides in part that when a motion for summary judgment is made and
supported as provided in the rule, the adverse party may not rest upon the mere allegations of
his pleading, but he must, by affidavit or otherwise, set forth facts demonstrating the
existence of a genuine issue for trial.
4
The County predicated its motion for summary
judgment on the affidavit of Mr. George C. Monahan, Clark County Director of Public
Works, which in essence negated any factual basis for liability on the part of the County. The
appellants argued in opposition to the motion that the County under a preexisting agreement
with the State had a duty to maintain adequate lighting at the intersection and that the County
failed to do so. The appellants, however, offered nothing but the mere allegations of their
complaint to support their position. Accordingly, the court below properly granted the
County's motion for summary judgment. Both the orders of the district court are affirmed.
____________________

4
NRCP 56(e):
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts
as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to
the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith. The court may permit affidavits to be
supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion
for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon
the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so
respond, summary judgment, if appropriate, shall be entered against him.
____________
91 Nev. 130, 130 (1975) Romy Hammes, Inc. v. McNeil Constr. Co.
ROMY HAMMES, INC., Appellant, v. McNEIL CONSTRUCTION
COMPANY, Respondent.
No. 7469
February 28, 1975 532 P.2d 263
Appeal from judgment for plaintiff entered upon jury verdict; Eighth Judicial District
Court, Clark County; Thomas J. O'Donnell, Judge.
A contractor sued for reasonable value of services performed in connection with
contemplated construction of a building.
in connection with contemplated construction of a building. Recovery in quantum meruit was
allowed by the district court and the defendant appealed. The Supreme Court held that
reasonable bases for recovery in quantum meruit were used in calculating the value of the
services of architectural, structural and mechanical engineering firms.
Affirmed.
Lee and Beasey, of Las Vegas, for Appellant.
James L. Buchanan, II, and Beckley, Singleton, DeLanoy & Jemison, Chartered, of Las
Vegas, for Respondent.
1. Work and Labor.
In action to recover from corporation upon quantum meruit, testimony of contractor's president that all
services performed in connection with project were performed at express direction of corporate defendant
acting through its president sustained jury's apparent conclusion that services were performed at special
instance and request of the defendant.
2. Work and Labor.
Where it was agreed that architects would be paid $20,000 for preparation of working plans required for
building permit and that such sum would be payment in full if project did not proceed further, but that if
project did proceed and final plans and specifications were prepared and building constructed, architects
were to be paid 2.5 percent of total construction value, and where in fact project went beyond working
plans and full construction plans were prepared but building was not actually constructed, 2.5 percent of
estimated cost of construction less amount which would have been required for inspection and supervision
was reasonable basis for calculating value of services in quantum meruit.
3. Work and Labor.
Where structural engineers were to be paid $20,000 for preparation of plans needed for building permit
and fee of 1 percent of construction costs if building was constructed, and full construction plans were
prepared but building was not constructed, 1 percent of estimated construction costs was reasonable basis
of recovery in quantum meruit.
4. Work and Labor.
Where mechanical engineers were to be paid $10,000 for preliminary plans for building permit or a fee of
3 percent of structural, mechanical, electrical and plumbing work if building was constructed and final
plans required, and full plans were prepared but building was not constructed, 3 percent of estimated
subcontractors' bids for structural, mechanical, electrical and plumbing work was reasonable basis for
recovery in quantum meruit.
OPINION
Per Curiam:
The plaintiff, McNeil Construction Company, commenced this action to recover the
reasonable value of services it had performed at the special instance and request of the
defendant, Romy Hammes, Inc., in connection with the contemplated construction of a
medical building to be called the Las Vegas Medical Tower.
performed at the special instance and request of the defendant, Romy Hammes, Inc., in
connection with the contemplated construction of a medical building to be called the Las
Vegas Medical Tower. The services for which compensation is sought were performed over a
period of about two years. The project finally was abandoned, and the medical building was
never constructed. A jury favored the plaintiff with its verdict in the amount of $114,109.14,
and judgment was entered thereon. This appeal by Romy Hammes, Inc., challenges the
sufficiency of the evidence to support a quantum meruit recovery and, as well, the money
awarded.
[Headnote 1]
1. The appellant's challenge to the sufficiency of the evidence to support a quantum
meruit recovery must fail. No purpose will be served by reciting in detail the history of the
contemplated project from inception to abandonment. It is sufficient to state that the
testimony of the president of McNeil Construction Company reflects that all services
performed in connection with the project were performed at the express direction of Romy
Hammes, Inc., acting through its president, Romy Hammes. Such testimony alone provides
requisite support for the jury's apparent conclusion that the services were performed at the
special instance and request of Romy Hammes, Inc. Wilkins v. Capurro, 72 Nev. 49, 293 P.2d
427 (1956).
2. The jury verdict of $114,109.14 evidently was based upon the itemized final statement
submitted by McNeil Construction Company to Romy Hammes, Inc., in that amount.
Among the many items contained in that statement are three to which particular objection
is raised. They are the fees charged by the architectural, structural and mechanical
engineering firms.
[Headnote 2]
With respect to the architectural firm of Hoops-Gardiner-Van Osdol, the agreement was to
pay a fixed fee of $20,000 for the preparation of working plans required for a building permit,
and if the project did not proceed further, such sum would constitute payment in full. The
agreement also provided that if the project did proceed, and final plans and specifications
were prepared, and the building was constructed, then the architects were to be paid a fee in
the amount of 2.5 percent of the total construction value. The agreement did not provide for
the circumstance in which the project went beyond the working plans necessary for a
building permit and full construction plans were prepared but the building was not
actually constructed.
the working plans necessary for a building permit and full construction plans were prepared
but the building was not actually constructed. That is the circumstance presented here.
The architects submitted a bill to McNeil Construction for $60,300 representing 2.5
percent of the estimated cost of construction less the amount that would have been required
for inspection and supervision had the building actually been constructed. This was a
reasonable basis for calculating the value of services in quantum meruit. Stacy-Judd v. Stone,
12 P.2d 143 (Cal.App. 1932); Parrish v. Tahtaras, 318 P.2d 642 (Utah 1957).
The contention of the appellant that the fee for the architects should have been limited to
$20,000 rests upon a provision of the agreement that does not cover the circumstance
presented, and is, therefore, rejected.
[Headnote 3]
A similar agreement was made with Brandow & Johnston Associates, structural engineers.
That firm was to be paid a fixed fee of $20,000 for the preparation of plans needed for a
building permit, and a fee of 1 percent of the construction costs if the building was
constructed. The agreement did not contain a provision covering the circumstance where full
construction plans were prepared but the building was not constructed. Their bill was for
$27,000 and represented 1 percent of the estimated construction costs. As already stated, this
was a permissible manner by which to measure the reasonable value of their services. The
$20,000 fixed fee proviso is not apposite to this case.
[Headnote 4]
Finally, the same general arrangement was made with the mechanical engineers, Ellers &
Reaves. That firm also had prepared full construction documents. The agreement called for a
fee of $10,000 for the preliminary plans for a building permit, but if the building was
constructed and final plans were required, then a fee of 3 percent of the structural,
mechanical, electrical and plumbing work would be paid. The agreement made no provision
for the circumstance in which the design went beyond that needed to obtain a building permit,
and full plans were prepared, but the building was not constructed.
The bill of the mechanical engineers was for the sum of $14,000 representing 3 percent of
the estimated subcontractors' bids for structural, mechanical, electrical and plumbing work.
As in the other instances, this too was an appropriate way to determine the reasonable value
of services performed.
determine the reasonable value of services performed. The $10,000 fee provision simply does
not apply to the facts presented.
Other assigned errors are without merit.
Affirmed.
____________
91 Nev. 134, 134 (1975) Kulik v. Albers Incorporated
H. A. KULIK and GLORIA KULIK, Appellants, v. ALBERS
INCORPORATED, a Nevada Corporation, Respondent.
No. 7542
March 5, 1975 532 P.2d 603
Appeal from order denying a third-party claim of a seller wherein judgment creditor levied
execution on dairy cows which were subject of an unrecorded security instrument. Second
Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Judgment creditor which levied on livestock that allegedly belonged to debtors brought
action to determine title to livestock that was claimed by holders of unperfected security
interest in livestock. The district court held that creditor had title to livestock, and appeal was
taken. The Supreme Court, Zenoff, J., held that trial court had jurisdiction to determine title
to livestock; that livestock buyers' action of voluntarily returning livestock to livestock sellers
at time they were in default on purchase contract and unable to pay ordinary debts, was in
violation of Uniform Fraudulent Conveyance Act and did not give sellers a superior right; and
that feed seller was lien creditor and had priority over unperfected security interest held by
sellers.
Affirmed.
Diehl, Recanzone, Evans and Smart, of Fallon, for Appellants.
McCune & Williams, of Reno, for Respondent.
1. Execution.
Purpose of statute providing that if property levied on is claimed by third person as his property by
written claim verified by his oath and served upon sheriff, sheriff must release property if plaintiff fails
within seven days after written demand to give sheriff an undertaking in sum equal
to double value of property levied upon and providing that plaintiff is entitled to a
hearing whenever verified third-party claim is served upon sheriff is to determine
whether property upon which writ of execution is levied is properly subject to writ.
plaintiff fails within seven days after written demand to give sheriff an undertaking in sum equal to double
value of property levied upon and providing that plaintiff is entitled to a hearing whenever verified
third-party claim is served upon sheriff is to determine whether property upon which writ of execution is
levied is properly subject to writ. NRS 31.070.
2. Execution.
In order for property to be properly subject to writ of execution, it must be owned by party against whom
judgment was entered. NRS 31.070.
3. Execution.
Under statute providing that whenever a verified third-party claim is served upon sheriff upon levy of
writ of attachment, plaintiff is entitled to a hearing to determine title to property, trial court had jurisdiction
over action to determine title to livestock that was levied upon by judgment creditor which claimed debtors
had ownership and that was also claimed by parties who had unperfected security interest in livestock.
NRS 21.120, 31.070.
4. Execution.
Judgment creditor's failure to put up undertaking in sum equal to double value of property levied on upon
filing of verified third-party claim to property resulted merely in possession of property being given to
third-party claimant pending court's determination of title but did not deprive court of jurisdiction over
action to determine title to property. NRS 31.070.
5. Secured Transactions.
Action of livestock buyers in voluntarily returning possession of livestock to sellers, who had not
perfected security interest in livestock and who took livestock at time buyers were in default on their
purchase contract and were unable to pay ordinary debts, before levy of execution on livestock by
judgment creditor of buyers did not give sellers superior right in preference to creditor's claim. NRS
104.9302.
To perfect a security interest, holder must file a financing statement or have possession of collateral.
NRS 104.9102, 104.9302.
7. Fraudulent Conveyances.
Where transfer of livestock from possession of buyers to the possession of sellers who had unperfected
security interest in livestock was made when buyers were in default on their contract for purchase of
livestock and were unable to pay ordinary debts, such as feed bill for livestock when due, sellers' claim of
ownership of livestock was in violation of Uniform Fraudulent Conveyance Act. NRS 112.010 et seq.
Feed seller which secured judgment against buyers for unpaid feed bill from which a writ of execution
was issued and levied on livestock allegedly owned by feed buyers was a lien creditor for purposes of
determining if seller's lien was superior to unperfected security interest in livestock under statute providing
that unperfected security interest is subordinated to rights of a person who becomes a lien creditor without
knowledge of security interest and before it is perfected. NRS 104.9301, subds. 1(b), 3. 9.
Holders of unperfected security interest had burden of proving that lien creditor had knowledge of
security interest in order to defeat lien creditor's claim of title to secured property. NRS 104.9301, subd.
1(b).
Evidence, in action to establish title to livestock subject to unperfected security interest held by sellers of
livestock, supported trial court's finding that lien creditor who knew livestock had been sold but knew
nothing about contract of sale acquired a lien without knowledge of security interest. NRS 104.9301,
subd. 1(b).
Livestock feed seller which acquired lien on livestock by writ of execution without knowledge of prior
unperfected security interest in livestock had priority over unperfected security interest. NRS 104.9301,
subd. 1(b).
OPINION
The respondent, Albers Incorporated, became a creditor of William F. and Jo Ann Belden
for feed sold the Beldens for their cows. The Beldens had purchased a ranch including
equipment and the cows from H. A. and Gloria Kulik. They executed a security instrument
for the balance of the purchase price. Neither the agreement nor any financing statement was
filed as provided in the Uniform Commercial Code. NRS 104.9302.
Kulik advised the respondent of the sale in a casual conversation but did not reveal the title
retention agreement. Respondent proceeded to sell feed to the Beldens as they had been doing
for the Kuliks.
Months later, the Beldens voluntarily relinquished possession of the ranch, cows and
equipment to the Kuliks. Respondent sued the Beldens for the unpaid feed bill amounting to
several thousands of dollars and obtained a stipulated judgment from which a writ of
execution was issued and levied on the cows. Appellants served a third-party claim on the
sheriff taking the position that all the personal property that was subject of this sale was
voluntarily returned and therefore the security interest was extinguished prior to the maturity
of any rights of Albers to the collateral. The cows were released from the writ of execution
when the respondent failed to give the sheriff an undertaking. NRS 31.070.
1
Respondent
petitioned the trial court to determine title to the cows.
____________________

1
NRS 31.070 holds in part:
1. If the property levied on is claimed by a third person as his property by a written claim verified by
his oath or that of his agent,
Respondent petitioned the trial court to determine title to the cows. The court ruled that at
the time of the sheriff's seizure title to the cows was in the Beldens (subject to a prior claim of
a lending institution which is not germane to this action) and that the appellants' interest was
subordinate to respondent's judgment because the Kuliks had failed to file the agreement of
sale or a financing statement as the Uniform Commercial Code provides.
The appellate questions are: (1) did the district court have jurisdiction to hold that the title
to the dairy cows was in the Beldens and that the Kulik interest was subject to respondent's
execution, and (2) is the ruling of the district court contrary to the law and evidence.
[Headnotes 1, 2]
1. The purpose of NRS 31.070 is to determine whether the property upon which the writ
of execution is levied is properly subject to the writ. In order to be so it must be owned by the
party against whom the judgment was entered. NRS 21.120 merely provides that the law to be
applied to writs of execution is NRS 31.070.
[Headnote 3]
NRS 31.070 is the appropriate vehicle for the determination of the issues which arose out
of the dispute between these parties. A judgment in favor of the respondent was awarded
against the Beldens. A writ of execution was issued out of that judgment against property
which was asserted to be the property of the Beldens. The Kuliks dispute the title or
ownership of that property claiming the cows as their own and therefrom immune from the
respondent's levy of execution. The dispute is classic for providing the trial court with
jurisdiction under NRS 31.070. Cooper v. Liebert, 81 Nev. 341, 402 P.2d 989 (1965); All
Nite Garage, Inc. v. A. A. A. Towing, Inc., 85 Nev. 193, 452 P.2d 902 (1969).
____________________
setting out his right to the possession thereof, and served upon the sheriff, the sheriff must release the
property if the plaintiff, or the person in whose favor the writ of attachment runs, fails within 7 days after
written demand to give the sheriff an undertaking executed by at least two good and sufficient sureties in
a sum equal to double the value of the property on . . .
. . .
5. Whenever a verified third-party claim is served upon the sheriff upon levy of the writ of
attachment, the plaintiff or the third-party claimant is entitled to a hearing within 10 days therefrom
before the court having jurisdiction of the action, an order to determine title to the property in question,
which hearing must be granted by the court upon the filing of an application or petition therefor.
[Headnote 4]
Failure to put up the undertaking has no particular significance to the issue of jurisdiction.
It merely gives possession to a third party pending the court's determination of title. Wantz v.
Redfield, 74 Nev. 196, 326 P.2d 413 (1958).
[Headnote 5]
2. The relative priorities between the Kuliks and the respondent flowed from the court's
determination of whether title to the cows was in the Beldens at the time of the levy of
execution or owned by the Kuliks. The Beldens voluntarily gave the cows to the Kuliks
before respondent's levy of execution. Such a tactic does not necessarily give the Kuliks a
superior right because of their security agreement in preference to Albers creditor's claim.
[Headnotes 6, 7]
NRS 104.9301(1)(b) provides: . . . An unperfected security interest is subordinated to the
rights of: . . . (b) A person who becomes a lien creditor without knowledge of the security
interest and before it is perfected. (Effective July 1, 1975, the without knowledge wording
is removed.) To perfect a security interest, as applicable here, the holder of a security interest
may file a financing statement under NRS 104.9302 or by having possession of the collateral.
2
No filing was made. The Kuliks' claim of ownership was in violation of the Uniform
Fraudulent Conveyance Act, Chapter 112, Nevada Revised Statutes. The transfer was made
when the Beldens were in default on their contract to make payments from the property and
were unable to pay their ordinary debts, such as the feed bill when due.
[Headnote 8]
Clearly, Albers Incorporated is a lien creditor.
3
Mann v. Clark Oil & Refining
Corporation, 302 F.Supp. 1376 (E.D. Miss. 1969), aff'd 425 F.2d 736 (8th Cir. 1970).
[Headnotes 9, 10]
The remaining question is, did Albers have knowledge of the Kuliks' security interest?
According to the testimony the Kuliks indicated to respondent that Belden was a good
dairy operator and as to the reliability of the Beldens that if he ever had to take it back
{the ranch transaction), he would have to make the bills good.
____________________

2
NRS 104.9102 states in part: This article applies to security interests created by contract including pledge,
. . . conditional sale, . . .
NRS 104.9302 states in part: A financing statement must be filed to perfect all security interests except the
following: . . .

3
NRS 104.9301(3) states: A lien creditor' means a creditor who has acquired a lien on the property
involved by attachment, levy or the like . . .
Kuliks indicated to respondent that Belden was a good dairy operator and as to the reliability
of the Beldens that if he ever had to take it back (the ranch transaction), he would have to
make the bills good. The district court ruled that this was not sufficient to put the respondent
on notice of the Kuliks' security interest, particularly in light of testimony on behalf of
respondent that Kulik had led him to believe the dairy had been sold and that Albers knew
nothing about the contract of sale. Where a trial court sitting without a jury has made a
determination upon the basis of conflicting evidence, that determination should not be
disturbed on appeal if it is supported by substantial evidence. Fletcher v. Fletcher, 89 Nev.
540, 516 P.2d 103 (1973). Further, the burden of proving knowledge is on the holders of the
unperfected security interest, the Kuliks here. Massachusetts Mut. L. Ins. Co. v. Central Penn.
Nat. Bank, 372 F.Supp. 1027 (E.D. Penn. 1974); Levine v. Pascal, 236 N.E.2d 425
(Ill.App.2d 1968). They didn't meet that burden.
[Headnote 11]
We conclude that under NRS 104.9301 (1) (b) the respondent, a lien creditor, has priority
over the unperfected security interest of the Kuliks.
Affirmed.
____________
91 Nev. 139, 139 (1975) Hulett v. Sheriff
MARVIN LEE HULETT, Jr., Appellant, v. SHERIFF,
No. 7988
March 11, 1975 532 P.2d 607
Appeal from order denying pretrial petition for habeas corpus. Eighth Judicial District
The Supreme Court held that evidence at preliminary examination justified magistrate's
determination that there was probable cause to hold defendant for trial; and that language
alluding to extorting information in counts of information charging first degree murder and
kidnapping was surplusage and did not render information invalid in that if challenged
language was stricken remaining language was sufficient to charge public offense in
words sufficient to give defendant notice of offenses charged.
language was stricken remaining language was sufficient to charge public offense in words
sufficient to give defendant notice of offenses charged.
Affirmed.
Morgan D. Harris, Public Defender, Clark County, and Robert L. Stott, Deputy, for
Appellant.
M. Seaton, Chief Deputy, Clark County, for Respondent.
1. Habeas Corpus.
Evidence at preliminary examination justified magistrate's determination that there was probable cause to
hold defendant for trial, requiring denial of pretrial petition for habeas corpus. NRS 171.206.
2. Habeas Corpus.
Court hearing appeal from order denying pretrial petition for habeas corpus did not have to determine
whether evidence at preliminary examination would support conviction but only whether evidence justified
magistrate's determination that there was probable cause to hold defendant for trial.
If words taken to be surplusage are stricken from indictment or information and there remains sufficient
language to constitute a proper charge of all elements of crime, indictment or information remains valid.
Language extorting information in counts of information charging first degree murder and kidnapping
was surplusage and did not render information invalid in that if such language was stricken remaining
language was sufficient to charge public offense in words sufficient to give defendant notice of offenses
charged.
If defendant deems surplusage in information or indictment prejudicial, he may move in the trial court to
have it stricken.
OPINION
Per Curiam:
[Headnotes 1, 2]
In this appeal from an order denying a pretrial petition for habeas corpus, we believe
evidence at the preliminary examination justified the magistrate's determination that there
was probable cause to hold appellant for trial. NRS 171.206. At this juncture we need not
and do not decide whether such evidence would support a conviction. Cf. McDonald v.
Sheriff, S9 Nev. 326
this juncture we need not and do not decide whether such evidence would support a
conviction. Cf. McDonald v. Sheriff, 89 Nev. 326, 512 P.2d 774 (1973).
At the hearing on the habeas petition, the district court granted habeas as to the counts in
the information charging extortion and robbery, and to that part of count I which charged
murder during the commission of a burglary.
Because the remaining counts (I and II), charging first degree murder and kidnapping,
allude to extorting information appellant contends the entire information is fatally defective
and that the trial court erred in refusing to grant habeas as to those counts.
[Headnotes 3, 4]
We do not agree. At most, the challenged language amounts to surplusage. In 1868, this
court first held that surplusage in an information or indictment does not necessarily render it
fatal. See State v. Lawry, 4 Nev. 161 (1868). If the words taken to be surplusage are stricken,
and there remains sufficient language to constitute a proper charge of all the elements of the
crime, the indictment or information remains valid. State v. Harkin, 7 Nev. 377 (1872). Here,
if the challenged language in counts I and II is stricken, the remaining language is sufficient
to charge a public offense in words sufficient to give appellant notice of the offenses charged.
Harkin, supra. Cf. People v. Randazzo, 310 P.2d 413 (Cal. 1957).
[Headnote 5]
If appellant deems such surplusage prejudicial, he may move [in the trial court] to have it
stricken under NRS 173.085. Carson v. Sheriff, 87 Nev. 357, 359, 487 P.2d 334, 335 (1971).
Affirmed.
____________
91 Nev. 141, 141 (1975) Robles v. State
JAIME ROMAN ROBLES, Appellant, v. THE STATE
No. 7453
March 12, 1975 532 P.2d 1033
Appeal from order denying post-conviction relief, Fourth Judicial District Court, Elko
County; Joseph O. McDaniel, Judge.
The Supreme Court held that record established that defendant's plea of guilty was
intelligently made, despite contention of defendant, who was Puerto Rican immigrant, that his
inability to understand either nature or consequences of his guilty plea was result of language
barrier; and that defendant's contention that he was denied effective representation by counsel
was without basis, in the absence of showing to overcome presumption that his attorney fully
discharged his duties.
Affirmed.
Gary A. Sheerin, State Public Defender, Carson City, for Appellant.
Robert List, Attorney General, Carson City; Robert C. Manley, District Attorney, and
Richard G. Barrows, Deputy, Elko County, for Respondent.
1. Criminal Law.
Record established that defendant's plea of guilty was intelligently made, despite contention of defendant,
who was Puerto Rican immigrant, that his inability to understand either nature or consequences of his
guilty plea was result of language barrier, where both counsel and court were careful to provide verbatim
translation from English to Spanish during every stage of proceedings, including hearing at entry of plea,
and defense counsel, who spoke some Spanish, was present along with a qualified interpreter.
2. Criminal Law.
Defendant's contention that he was denied effective representation by counsel was without basis, in the
absence of showing to overcome presumption that his attorney fully discharged his duties.
OPINION
Per Curiam:
Jaime Roman Robles pleaded guilty to the charge of second degree murder and was
sentenced to a term of fifteen years in the Nevada State Prison.
This appeal is taken from an order denying appellant's petition for post-conviction relief.
Appellant contends that his plea of guilty was not intelligently made and therefore defective.
He also argues that defense counsel was so ineffective as to deny him his right to counsel.
Neither contention has merit.
[Headnote 1]
Appellant is a Puerto Rican immigrant and apparently has difficulty speaking and
understanding the English language. He attributes his inability to understand either the nature
or the consequences of his guilty plea to this language barrier, and thus contends the plea
was not intelligently made.
consequences of his guilty plea to this language barrier, and thus contends the plea was not
intelligently made. However, the record shows that both counsel and the court were careful to
provide verbatim translation from English to Spanish during every stage of the proceedings,
including the hearing at entry of plea. Defense counsel, who spoke some Spanish, was present
along with a qualified interpreter. The proceedings at the time of the entry of plea met the
requirements of Armstrong v. Warden, 90 Nev. 8, 518 P.2d 147 (1974).
[Headnote 2]
Appellant's second contention, that he was denied effective representation by counsel,
finds no support in the record. No showing has been made to overcome the presumption that
his attorney fully discharged his duties. Smithart v. State, 86 Nev. 925, 478 P.2d 576 (1970).
The conviction is affirmed.
____________
91 Nev. 143, 143 (1975) Clark Co. Classroom Teachers Assoc. v. Clark Co. School District

CLARK COUNTY CLASSROOM TEACHERS ASSOCIATION, Appellant, v. CLARK
COUNTY SCHOOL DISTRICT and the BOARD OF TRUSTEES OF THE CLARK
COUNTY SCHOOL DISTRICT, LAS VEGAS FEDERATION OF TEACHERS, LOCAL
2170, A. F. T. and AL TRINER, Respondents.
No. 7894
March 12, 1975 532 P.2d 1032
Appeal from order denying motion for a preliminary injunction, Eighth Judicial District
Teachers association brought action to enjoin another teachers association from using
school facilities to solicit membership and distribute union information, on basis of
exclusive use provisions of a collective bargaining agreement. The district court denied
injunctive relief and declared the exclusive use provisions unconstitutional, and plaintiff
appealed. The Supreme Court held that exclusive use provisions of collective bargaining
agreement, insofar as they denied defendant an equal opportunity to use school facilities for
membership solicitations and to dispense information, were not violative of equal protection
clause.

Reversed and remanded with instructions to grant the injunction.
[Rehearing denied May 7, 1975]
Hilbrecht, Jones & Schreck, Las Vegas, for Appellant.
Robert L. Petroni, Las Vegas, for Respondents Clark County School District and Board of
Trustees of the Clark County School District.
John W. Bonner, Las Vegas, for Respondents Las Vegas Federation of Teachers, A. F. T.
Local 2170, and Al Triner.
Exclusive use provisions of collective bargaining agreement between teachers association and school
district, insofar as they denied another teachers association an equal opportunity to use school facilities for
membership solicitations and to dispense information, were not violative of equal protection clause.
Constitutional right of equal protection may be abridged, where shown necessary to promote a
compelling governmental interest.
3. Labor Relations.
First teachers association, which failed to seek judicial review of Local Government
Employee-Management Relations Board's decision with respect to collective bargaining agreement
between school district and second teachers association, were precluded from doing so in suit by second
teachers association to prohibit first teachers association from engaging in activities encompassed by
exclusive use provision of collective bargaining agreement. NRS 233B.130, 233B.150, 288.130.
OPINION
Per Curiam:
The appellant, Clark County Classroom Teachers Association petitioned the district court
to enjoin the Las Vegas Federation of Teachers, Local 2170 A. F. T., and others from using
Clark County school facilities to solicit memberships and distribute union information.
Appellant has sought to prevent respondents' use of school bulletin boards, mail delivery
service, teachers' mail boxes, meeting rooms, and payroll deductions of union dues. Such
activities are encompassed by exclusive use provisions embodied in a Collective
Bargaining Agreement between Clark County Classroom Teachers {District
Association and the Clark County School District Board of Trustees, in effect since April
17, 1970.

Association and the Clark County School District Board of Trustees, in effect since April 17,
1970.
[Headnote 1]
The trial court denied injunctive relief and declared the exclusive use provisions
unconstitutional, insofar as they denied respondents an equal opportunity to use school
facilities for membership solicitations and to dispense information. Appellant contends the
trial court erred. We agree.
After the Collective Bargaining Agreement was negotiated, respondent's predecessor,
American Federation of Teachers, Pen Local 1800, and its president, Al Triner, contested the
agreement before Mark Smith, Taylor Wines and Clel Georgetta, the members of the Local
Government Employee-Management Relations Board. The E. M. R. B. resolved the contest
in favor of the Clark County Classroom Teachers Association by order, filed October 20,
1970, and a written decision, filed November 17, 1970. The decision was based on
respectable authority.
[Headnote 2]
It has been held that the constitutional right of equal protection may be abridged, where
shown necessary to promote a compelling governmental interest. Shapiro v. Thompson, 394
U.S. 618, 634 (1969). The E. M. R. B.'s decision found compelling Nevada's interest in
allowing appellant, as the elected bargaining representative, the exclusive uses here
challenged. This view accorded with the case of Local 858 of A. F. of T. v. School D. No. 1
in Co. of Denver, 314 F.Supp. 1069, 1077 (D.Colo. 1970), wherein the court said: . . . labor
peace and stability in an area as vital as public education are indisputably a necessity to the
attainment of that goal. Inter-union strife within the schools must be minimized. Unnecessary
work stoppages and the consequent impairment of the educational process cannot be tolerated
without significant injury to public education. Also in accord: Federation of Delaware
Teach. v. De La Warr Bd. of Ed., 335 F.Supp. 385 (D.Del. 1971); and Bauch v. City of New
York, 237 N.E.2d 211 (N.Y. 1968). Cf. Labor Board v. Jones & Laughlin 301 U.S. 1 (1937).
[Headnote 3]
Neither the union nor respondent Triner sought judicial review of the E. M. R. B.'s ruling
then, as authorized by NRS 288.130, and they are precluded from doing so now. See NRS
{District
233B.130; NRS 233B.150. Cf. Arant v. Lane, 249 U.S. 367 {1919).

233B.130; NRS 233B.150. Cf. Arant v. Lane, 249 U.S. 367 (1919).
The order of the trial court is reversed and the case remanded with instructions to grant an
injunction consistent with this opinion.
____________
91 Nev. 146, 146 (1975) Finkelman v. Clover Jewelers Blvd., Inc.
SOL FINKELMAN, ALEX BLACK, NATHAN LAUFBAUM, EDWARD M. FIDELMAN,
dba SOL FINKELMAN & CO., Appellants, v. CLOVER JEWELERS BOULEVARD, INC.,
a Nevada Corporation, and THE HOME INSURANCE COMPANY, Respondents.
No. 7717
March 12, 1975 532 P.2d 608
Appeal from judgment of $791,665 and denial of motion seeking relief from default
judgment. Eighth Judicial District Court, Clark County; Keith C. Hayes, Judge.
The district court ordered defendants' answers stricken for alleged failure to comply with
order to produce documents and entered default judgment for plaintiffs, and defendants
appealed. The Supreme Court held that general rule is that sanctions be applied only in
extreme circumstances of willful noncompliance and that striking of answers and entry of
default was too drastic a remedy where within the 30 days given to produce documents
defendants partially complied with court order but apparently due to problems encountered in
the microfilming of documents a certain portion thereof were illegible, trial court gave no
opportunity to redo the documents and there was no showing of willful disregard of court's
order.
Reversed and remanded for further proceedings.
Beckley, Singleton, DeLanoy & Jemison, Chartered, and Lionel Sawyer Collins &
Wartman, of Las Vegas, for Appellants.
Robert K. Dorsey, of Las Vegas, and John R. Lemen, of Redondo Beach, California, for
Respondents.
1. Discovery.
General rule in imposition of sanctions for violation of discovery orders is that they be applied only in
extreme circumstances of willful noncompliance. 2.
2. Discovery.
Ordering defendants' answers stricken and default entered was a too drastic remedy for alleged violation
of order for production of documents where within the 30 days given them defendants partially complied
with the order but apparently due to problems encountered in the microfilming of documents a certain
portion thereof were illegible, defendants did not have present ability to readily produce the documents and
trial court gave them no opportunity to redo them and there was no showing of any willful disregard of the
production order.
OPINION
Per Curiam:
In the course of certain extensive and numerous pretrial proceedings respondent moved for
and received an order for the production of certain documents. This was only one of many
in-court maneuvers in which both parties participated equally. In this one instance, however,
the copies of the documents produced were ruled illegible, unintelligible, unidentifiable and
so badly reproduced as to be worthless for examination. On that the trial court ordered
appellants' answers stricken and default entered. Subsequently, the court also later refused to
set aside the order entering default and after taking evidence entered judgment against the
appellants in the amount of $791,665.29. Understandably, they appeal.
[Headnotes 1, 2]
The general rule in the imposing of sanctions is that they be applied only in extreme
circumstances where willful noncompliance of a court's order is shown by the record. Societe
Internationale, Etc. v. Rogars, 357 U.S. 197 (1958); General Dynamics Corp. v. Selb
Manufacturing Co., 481 F.2d 1204 (8th Cir. 1973), cert. denied, 414 U.S. 1162 (1974);
Dorsey v. Academy Moving & Storage, Inc., 423 F.2d 858 (5th Cir. 1970); Bon Air Hotel,
Inc. v. Time, Inc., 376 F.2d 118 (5th Cir. 1967); Halverson v. Campbell Soup Company, 374
F.2d 810 (7th Cir. 1967); Owens-Illinois, Inc. v. Lewis, 260 So.2d 221 (Fla. 1972); Rio
Grande Gas Company v. Gilbert, 491 P.2d 162 (N.M. 1971); Oaks v. Rojcewicz, 409 P.2d
839 (Alaska 1966).
We find nothing in the record that indicates willful disregard of the district court's order to
produce documents. The appellants within the 30 days given to produce the documents
partially complied with the court order but apparently due to problems encountered in the
microfilming of the documents a certain portion of the documents produced were illegible.
certain portion of the documents produced were illegible. This, coupled with a very close
time factor and present inability to readily produce the documents requested, accounted for
the faulty evidence. The trial court gave no opportunity to redo the documents, neither do we
perceive any prejudice (at least none was shown) in giving the appellants the chance to do so.
We have here (in contrast to Skeen v. Valley Bank of Nevada, 89 Nev. 301, 511 P.2d 1053
(1973)) an incident where the parties have partially complied with the court's order and have
provided an explanation for their failure to fully comply. This, of course, negates willfulness.
Further purported issues need not be discussed.
The order entering judgment and entry of default are set aside and the matter is remanded
for further proceedings.
____________
91 Nev. 148, 148 (1975) Leprechaun Mining & Chemical v. Grigor
LEPRECHAUN MINING AND CHEMICAL, INC., Appellant, v. WILMA
GRIGOR, dba MERCURY SECRETARIAL SERVICES, Respondent.
No. 7565
March 12, 1975 532 P.2d 602
Appeal from order denying motion to amend findings and judgment founded upon
promissory note for past services rendered. Eighth Judicial District Court, Clark County; Carl
J. Christensen, Judge.
The Supreme Court held that where the employee followed company policy and
instructions given by her superiors, in disbursing corporation funds, she was not guilty of
misconduct and was entitled to be paid for her services. Where the parties to the note agreed
to a 5 percent rate of interest, the interest rate on the judgment rendered on such note was 5
percent rather than 7 percent.
Affirmed.
Gladstone & Zucker, of Las Vegas, for Appellant.
Johns & Johns, of Las Vegas, for Respondents.
1. Master and Servant.
Where employee followed company policy and instructions given by her superiors, in
disbursing corporation funds, she was not guilty of misconduct and was entitled to be
paid for her services.
91 Nev. 148, 149 (1975) Leprechaun Mining & Chemical v. Grigor
given by her superiors, in disbursing corporation funds, she was not guilty of misconduct and was entitled
to be paid for her services.
2. Interest.
Where parties to note agreed to 5 percent rate of interest, interest rate on judgment rendered on such note
was 5 percent rather than 7 percent. NRS 99.050, subd. 1.
OPINION
Per Curiam:
On December 2, 1970, the appellant corporation issued to Wilma Grigor a promissory note
in the amount of $4,032.50, payable at $200.00 per month with 5 percent interest. The note
represented unpaid compensation to Grigor for her past services as a secretary to the
corporation. Payments were made on the note totaling $1,345.40, but then no further
payments were forthcoming.
After Grigor sued for the balance owed on the note, the corporation responded that she had
wrongfully disbursed corporation funds while she was serving as secretary and that the note
therefore had been given without consideration.
[Headnote 1]
The trial court ruled that the corporation failed to prove culpable misconduct on the part of
Grigor. The evidence supports the ruling. Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103
(1973). She followed company policy and the instructions given her by her superiors
throughout. She is entitled to be paid for her services.
[Headnote 2]
However, the trial court erred in computing interest at 7 percent when the note provided
interest at 5 percent. Where the parties agreed to a rate of interest, a judgment rendered on
such contract shall conform thereto. NRS 99.050(1); Jones v. Edwards, 49 Nev. 299, 245 P.
292 (1926).
Affirmed on the merits; remanded for recomputation of interest at the rate of 5 percent as
provided in the note.
____________
91 Nev. 150, 150 (1975) Kelly v. State of Nevada
WILLIAM CODY KELLY, and KYLE F. BROOKS, Trustees, Under Agreement Dated
December 12, 1962, and Known as the KELLY TRUST, Appellants, v. STATE OF
NEVADA, NEVADA STATE TAX COMMISSION, DOUGLAS COUNTY and HARRY
WINKELMAN, Douglas County Assessor, Respondents.
No. 7582
March 12, 1975 532 P.2d 1029
Appeal from judgment for respondents upholding valuation placed on property owners'
Lake Tahoe property by Nevada State Board of Equalization. First Judicial District Court,
Douglas County; Richard L. Waters, Judge.
The Supreme Court held that review of record showed that the Board of Equalization
looked to all the factors necessary to give a fair adjustment and there was nothing to indicate
bad faith on part of board.
Affirmed.
Daniel R. Walsh, of Carson City, for Appellants.
Robert List, Attorney General, James D. Salo, Deputy Attorney General, Carson City,
Howard McKibben, District Attorney, and F. Thomas Eck, Deputy District Attorney, Douglas
County, for Respondents.
1. Taxation.
It is taxpayer's burden to show by clear and satisfactory evidence that valuation established by State
Board of Equalization is unjust and inequitable. NRS 361.410, subd. 2, 361.430.
2. Taxation.
Taxpayer's burden to show by clear and satisfactory evidence that valuation established by State Board of
Equalization is unjust is not met unless the court can find that the board applied a fundamentally wrong
principle, or refused to exercise its best judgment or that the assessment was so excessive as to give rise to
an implication of fraud and bad faith. NRS 361.410, subd. 2, 361.430.
3. Taxation.
Review of record showed that State Board of Equalization, which reduced valuation of taxpayer's
property about 30 percent, did look to all of the factors necessary to give fair adjustment to owner and there
was nothing to reflect any bad faith on part of board in modification of valuation. NRS 361.225,
361.227, subd. 1, 361.410, subd.
361.410, subd. 2, 361.430; U.S.C.A.Const. Amend. 14; Const. art. 1, 1.
OPINION
Per Curiam:
William Cody Kelly is the owner of property at Glenbrook, Lake Tahoe. A few years ago,
he paid $500,000 for the purchase, $325,000 for 44.39 acres and the balance for the
improvements. In 1972, he protested the Douglas County tax assessment of $113,400 which
was 35 percent of the value as prescribed by statute. NRS 361.225. On his appeal to the State
Board of Equalization he contended that the land use restrictions placed on the property by
the newly created Tahoe Regional Planning Agency reduced the value of his land to an
approximate valuation of $40,000 with assessed valuation at $14,000. The State Board of
Equalization reduced the valuation from $324,000 to $215,000 or to what amounted to about
30 percent. Kelly, not satisfied, appealed to the First Judicial District Court where after trial
judgment was rendered against Kelly on the grounds that the valuation placed on the property
by the Nevada State Board of Equalization was based upon substantial evidence. There was
no evidence of fraudulent action or abuse of discretion; the board utilized and applied
accepted methods and standards of appraisal practice consistent with law; the valuation was
in accordance with a uniform and equal rate of property taxation; and the assessed valuation
was not violative of appellants' rights under the 14th Amendment to the United States
Constitution and Article I, Section I, of the Constitution of the State of Nevada.
Appealing to this court Kelly alleges generally that the district court and the State Board of
Equalization should be overruled.
[Headnotes 1, 2]
It is the taxpayer's burden to show by clear and satisfactory evidence that the valuation
established by the Commission is unjust and inequitable (NRS 361.410(2) and NRS 361.430)
and that this burden is not met unless the court can find that the Tax Commission applied a
fundamentally wrong principle or refused to exercise its best judgment or that the assessment
was so excessive as to give rise to an implication of fraud and bad faith. Nevada Tax
Commission v. Southwest Gas Corporation, 88 Nev. 309, 497 P.2d 308 (1972).
[Headnote 3]
The record shows that the State Board of Equalization looked to all of the factors
necessary to give a fair adjustment to Kelly. NRS 361.227(1) sets out those requisites and
nothing in the record reflects bad faith on the part of the board.
Affirmed.
____________
91 Nev. 152, 152 (1975) Mead v. State of Nev. Dep't of Health
GLEN L. MEAD, Appellant, v. STATE OF NEVADA DEPARTMENT OF HEALTH,
WELFARE & REHABILITATION, SERVICES TO THE BLIND DIVISION, Respondent.
No. 7532
March 13, 1975 532 P.2d 611
Appeal from order reversing decision of Nevada State Personnel Advisory Commission.
First Judicial District Court, Carson City; Frank B. Gregory, Judge.
Employee of Bureau of Blind Services was terminated from his employment as business
enterprise program manager for incompetency, inefficiency and negligence. The State
Personnel Advisory Commission found that the dismissal was unjustified and ordered
reinstatement and State Department of Health, Welfare and Rehabilitation appealed. The
district court reversed and employee appealed. The Supreme Court, Zenoff, J., held that the
district court lacked jurisdiction to entertain the employer agency's appeal from the order of
reinstatement; and that the Department was not a person within meaning of Administrative
Procedure Act.
Reversed and remanded for determination of salary due, plus interest and costs.
Reinstatement ordered.
Paul J. Williams, of Reno, for Appellant.
Robert List, Attorney General, Larry G. Bettis, Deputy Attorney General, and Robert Lyle,
Deputy Attorney General, Carson City, for Respondent.
1. States.
Where State Personnel Advisory Commission found that person whose employment as business
enterprise program manager for the Nevada Bureau of Blind Services had been terminated for alleged
incompetency, inefficiency and negligence was not incompetent, inefficient or negligent and that his
dismissal was unjustified and ordered his reinstatement, district court was without
jurisdiction to hear appeal by the Department of Health, Welfare and Rehabilitation,
Services to the Blind Division, from the order of the Commission.
and ordered his reinstatement, district court was without jurisdiction to hear appeal by the Department of
Health, Welfare and Rehabilitation, Services to the Blind Division, from the order of the Commission.
NRS 233B.130, 233B.150, 284.385, 284.390.
2. Administrative Law and Procedure; States.
State Department of Health, Welfare and Rehabilitation, Services to the Blind Division, is not a person
within meaning of Administrative Procedure Act provisions dealing with judicial review for persons
aggrieved by final decision of an agency. NRS 233B.130, 233B.150, 284.385, 284.390.
OPINION
In the event an appointing authority shall dismiss, demote or suspend any permanent
classified employee of the state, the employee may request a hearing before the hearing
authority of the Personnel Division of the State of Nevada to determine the reasonableness of
such action. If the hearing officer determines that the dismissal, demotion or suspension was
without just cause, the action of the appointing authority shall be set aside and the employee
reinstated with full pay for the period of dismissal, demotion or suspension. The decision of
the hearing officer is subject to review and rehearing by the Advisory Commission. NRS
284.385; NRS 284.390. Judicial review is ultimately accorded within the provisions of NRS
233B.130 and NRS 233B.150.
Glen L. Mead was terminated from his employment as business enterprise program
manager for the Nevada Bureau of Blind Services for alleged incompetency, inefficiency and
negligence in the performance of his duties. He requested and received a hearing before the
Nevada State Personnel Advisory Commission, an agency of the Nevada Personnel Division.
That body found that Mead was not incompetent, inefficient or negligent in the performance
of his duties, that his dismissal was unjustified and ordered his reinstatement. Instead of
complying with the order of reinstatement the department appealed the decision to the First
Judicial District Court which not only stayed the Advisory Commission's order of
reinstatement but ultimately reversed the decision and upheld Mead's discharge.
[Headnote 1]
Mead appeals principally on the ground that the state agency, the Department of Health,
Welfare & Rehabilitation, Services to the Blind Division thereof, had no right of appeal of the
decision of another state agency, the Nevada Advisory Commission of the Personnel
Division, and that the trial court lacked jurisdiction to entertain the employer agency's
appeal from the commission's order of reinstatement.
lacked jurisdiction to entertain the employer agency's appeal from the commission's order of
reinstatement. We hold that the trial court was without jurisdiction. Thus, further
consideration of other purported issues is unnecessary.
1. NRS 233B.130 is part of Nevada's Administrative Procedure Act and provides that
judicial review is available to any person aggrieved by a final decision. . . . Person is
defined by NRS 233B.030(5) as . . . any individual, partnership, corporation, association,
political subdivision or public or private organization of any character other than an agency.
Mead's position is that because agencies are not persons under the act it cannot seek
judicial review from the decision of the Advisory Commission.
[Headnote 2]
Respondent seeks to exclude this case from the definition of person provided in NRS
233B.030(5) by reliance on the portion of the preamble to NRS 233B.030 that states, . . .
unless the context otherwise requires . . .. Just what that phraseology means is obscure and
we defer to the specific language that rules out an agency being included as a person.
The weight of authority denies an administrative officer of a governmental entity or the
governmental entity or any representative thereof, the right to attack or avoid the decision of
an agency of such governmental entity, which is authorized to review and reverse the
determinations of such administrative agency and does review and reverse that determination
unless legislation exists giving the officer or entity the right to do so. State ex rel. Broadway
Petro. Corp. v. City of Elyria, 247 N.E.2d 471, 475 (Ohio 1969).
NRS 233B.030 is specific in its exclusion of an agency as a person. This is akin to 5
U.S.C.A. 551 of the Federal Code and specifically applicable to the section providing for
judicial review of governmental agency actions. It is the rule in the federal system that this
review provision's purpose is not to permit litigation between agencies but to allow relief to
persons aggrieved by agency action. Lee v. Civil Aeronautics Board, 225 F.2d 950 (D.C.
1955).
1
It was not legislatively intended that governmental agencies become adversaries.
____________________

1
5 U.S.C.A. 551 holds, (2) Person' includes an individual, partnership, corporation, association, or public
or private organization other than an agency; . . .
5 U.S.C.A. 702 holds, A person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
5 U.S.C.A. 701 holds, (2) Person,'. . . have the meanings given them by section 551 of this title.
It was not legislatively intended that governmental agencies become adversaries. To serve
its purpose the Personnel Advisory Commission must have final authority. Otherwise it
would face constant judicial appellate review from persons not adversely aggrieved in their
personal capacities.
The orders of the trial court are vacated and the ruling of the Personnel Advisory
Commission will stand.
Mead is entitled to his back pay subject to setoff of earnings from other sources during the
period of his termination. Adamian v. University of Nevada, 359 F.Supp. 825 (D. Nev. 1973);
Ramsey v. Hopkins, 447 F.2d 128 (5th Cir. 1971).
Remand is ordered to the Personnel Advisory Commission for computation of the net
amount due Mead, plus interest (NRS 99.040(5)), and costs (NRS 18.020(4)). It is also
ordered that Mead be reinstated to his position.
Batjer, Mowbray, and Thompson, JJ., concur.
Gunderson, C. J., concurring:
Although I agree the district court should be reversed, I would prefer to ground our
opinion merely on a determination that the record before the Advisory Commission justified
its decision.
In this case, I see no good reason to reach the substantially more difficult, technical point
my brethren have elected to treat. I tend to think a state agency is as legally aggrieved as
any employer, if compelled to rehire with unearned back pay an employee it can show is
incompetent. I submit that, until the question is presented upon a record that fails to justify a
determination of competence, there is no need to say otherwise. So far as I am aware, state
agencies have not inundated the courts with proceedings of this type, as my brethren
apparently feel is a danger.
____________
91 Nev. 155, 155 (1975) Jacobs v. State
DENNIS ROBERT JACOBS, Appellant, v. THE STATE
No. 7499
March 13, 1975 532 P.2d 1034
Appeal from conviction of first-degree murder and sentence of life imprisonment with
possibility of parole. Eighth Judicial District Court Clark County; John F. Mendoza, Judge.
The Supreme Court, Zenoff, J., held that where defendant failed to include in record on
appeal the affidavit which supported search warrant, Supreme Court could not determine
defendant's claim that court failed to suppress certain evidence taken from automobile
pursuant to a faulty search warrant; that the baring of defendant's arm, upon which
allegedly were several tattoos, was not a violation of defendant's right against
self-incrimination; that it was error to allow question of defendant as to term that was
imposed for conviction for any prior felony; and that since evidence of guilt was so
overwhelming, trial court errors had no reversible effect.
The Supreme Court, Zenoff, J., held that where defendant failed to include in record on
appeal the affidavit which supported search warrant, Supreme Court could not determine
defendant's claim that court failed to suppress certain evidence taken from automobile
pursuant to a faulty search warrant; that the baring of defendant's arm, upon which allegedly
were several tattoos, was not a violation of defendant's right against self-incrimination; that it
was error to allow question of defendant as to term that was imposed for conviction for any
prior felony; and that since evidence of guilt was so overwhelming, trial court errors had no
reversible effect.
Affirmed.
Lohse and Lohse, of Reno, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Dan M.
1. Criminal Law.
Supreme Court could totally reject consideration of errors for which appellant cited no authority.
2. Criminal Law.
In homicide prosecution, colored photograph of shotgun shell wadding, taken from victim's wounds, was
admissible as relating to shotgun and shells found in defendant's possession. NRS 48.025, subd. 2.
3. Criminal Law.
Where defendant failed to include in record on appeal the affidavit which supported search warrant,
Supreme Court could not determine defendant's claim that court failed to suppress certain evidence taken
from automobile pursuant to a faulty search warrant.
4. Criminal Law.
It is appellant's responsibility to provide materials necessary for review by Supreme Court.
5. Criminal Law.
In prosecution for homicide, the baring of defendant's arm, upon which allegedly were several tattoos,
was not a violation of defendant's right against self-incrimination.
6. Criminal Law.
In homicide prosecution, admission of defendant's statement concerning shotgun was not objectionable
on theory that statement purportedly made reference to another crime and was properly admitted to relate
defendant's possession of shotgun which was same kind and type used in commission of murder for which
defendant was on trial. NRS 48.045, subd. 2, 50.095.
7. Criminal Law.
In homicide prosecution, it was error to allow question of defendant as to term that was
imposed for conviction for any prior felony.
defendant as to term that was imposed for conviction for any prior felony. NRS 50.095.
8. Criminal Law.
Absence of notes taken by an FBI agent during interrogation of defendant and destroyed after defendant
signed statement for which they were used did not deny defendant a fair trial, where destruction of notes
was not with malicious motive and there was no showing that statement was in conflict with truth.
9. Criminal Law.
In homicide prosecution, since evidence of guilt was so overwhelming, trial court errors had no reversible
effect. NRS 178.598.
10. Homicide.
Evidence, including evidence of defendant's flight across three states, defendant's possession of shotgun
and shells that were same kind or type used to kill victim, of defendant's fingerprints found at scene of
killing and of statement made to drinking buddy at bar shortly after murder, was sufficient to sustain
conviction.
OPINION
Alice Jean Pablo was murdered by a shotgun blast while she was clerking in a
neighborhood grocery store operated by her and her husband. The killing took place in Las
Vegas early in the morning of July 23, 1972. No eyewitnesses were present.
Dennis Robert Jacobs was apprehended in West Yellowstone, Montana, and charged with
the crime. He was tried and convicted and sentenced to life imprisonment with possibility of
parole from which he appeals.
His assignments of error are:
1. The court allowed evidence of the victim's pregnancy, permitted a color photograph of
wadding in or near the wound, compelled him to display his bare arm upon which were
several tattoos, and failed to suppress certain evidence taken from his car pursuant to a faulty
search warrant.
2. The trial court allowed in evidence the accused's written statement that purportedly
made reference to another crime.
3. He was compelled to testify of a prior felony conviction and the sentence.
4. A mistrial should have been declared because an F.B.I. agent destroyed the notes he
had made in preparation for a statement that was later signed by Jacobs and used in evidence.
5. The evidence was insufficient to sustain a conviction.
[Headnotes 1-4]
Jacobs cites no authority for his protest concerning the display of the wadding of the
shotgun shell, nor as to failure to suppress evidence of faulty warrant; therefore, we might
totally reject consideration of said errors. Franklin v. State, 89 Nev. 382, 513 P.2d 1252
(1973). Further, while the victim's pregnancy was irrelevant and immaterial, NRS 48.025(2),
the colored photograph of the wadding which was taken from Mrs. Pablo's wounds did serve
to relate to the shotgun and shells found in Jacobs' possession. Allen v. State, 91 Nev. 78, 530
P.2d 1195 (1975). Jacobs, also, failed to include in the record on appeal the affidavit that
supported the search warrant without which we cannot make this determination. It is the
appellant's responsibility to provide the materials necessary for this court's review.
[Headnote 5]
1. The baring of Jacobs' arm was not a violation of his right against self-incrimination.
McCray v. State, 85 Nev. 597, 460 P.2d 160 (1969); State v. Oschoa, 49 Nev. 194, 242 P.
582 (1926); State v. Ah Chuey, 14 Nev. 79 (1879).
[Headnote 6]
2. In a statement given prior to trial Jacobs said, I got the gun, .20 gauge22 over and
under Savage from my car and pointed it at him and he ran away. This was in reference to an
incident that was unrelated to the crime for which he was on trial. Under NRS 48.045(2) the
evidence was properly admitted to relate his possession of a shotgun which was the same
kind and type used in the commission of Alice Pablo's murder. Nester v. State, 75 Nev. 41,
334 P.2d 524 (1959); Lindsay v. State, 87 Nev. 1, 478 P.2d 1022 (1971).
[Headnote 7]
3. As to claimed errors 3 and 4, we perceive that the trial court was in error. NRS 50.095
provides that the credibility of a witness may be attacked by evidence that a witness has been
convicted of a crime which was punishable by death or imprisonment in excess of one year.
The questions asked of Jacobs when he testified were whether he had ever been convicted of
a felony and what the sentence was. It was error to allow the question concerning the term
that was imposed. Plunkett v. State, 84 Nev. 145, 437 P.2d 92 (1968); People v. Smith, 409
P.2d 222, 230 (Cal. 1966). In the circumstances of this case the term of punishment is
immaterial and irrelevant and served no purpose.
of this case the term of punishment is immaterial and irrelevant and served no purpose.
Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965).
[Headnote 8]
The notes taken by an F.B.I. agent during his interrogation of Jacobs were self destroyed
after Jacobs signed the statement for which they were used. The statement was admitted in
evidence but since the notes were not available Jacobs could not cross-examine about them
when the statement was introduced. However, the destruction of the notes was not with
malicious motive, in fact, followed F.B.I. policy. There is no showing that the statement was
in conflict with the truth. Absence of the notes did not prevent the defendant from having a
fair trial. Cf. People v. Blair, 15 Cal.Rptr. 533, 538 (Cal.App.2d 1961), cert. denied, 368 U.S.
934 (1961), 369 U.S. 807 (1962).
[Headnote 9]
The evidence of his guilt is overwhelming and we therefore find no reversible effect of the
trial court errors. NRS 178.598; Schneble v. Florida, 405 U.S. 427 (1972); Revuelta v. State,
86 Nev. 224, 467 P.2d 105 (1970); Fairman v. State, 83 Nev. 287, 429 P.2d 63 (1967).
Jacobs' conviction followed evidence of his flight across Nevada, Utah and Montana; of
his possession of the shotgun and shells that were the same kind or type used to kill Mrs.
Pablo; of his fingerprints found at the scene of the killing; and that he had said to a drinking
buddy at a bar shortly after the murder that had blown a woman's head off for $70.00, when
the amount ascertained to have been taken in the robbery was approximately $70.00.
[Headnote 10]
Jacobs' final assignment of error directed to the sufficiency of the evidence is without
merit as shown by the above evidence of guilt.
Affirmed.
Gunderson, C. J., and Batjer, Mowbray, and Thompson JJ. concur.
____________
91 Nev. 160, 160 (1975) Cleghorn v. Goldsmith
WILLIAM F. CLEGHORN, Appellant, v. JONATHON P. GOLDSMITH and
WACKENHUT SERVICES INC., a Florida Corporation, Respondents.
No. 7636
March 17, 1975 532 P.2d 609
Appeal from order and judgment entered pursuant to NRCP 12(b) motion to dismiss.
Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Employee who had been discharged for striking a fellow employee with a pistol during an
altercation and who was subsequently reinstated after passing a psychiatric examination and
after hearing before grievance arbitrator brought action against the employer and another
based on alleged conspiracy to terminate his employment, to impair his professional
reputation and generally to defame him. The district court dismissed and employee appealed.
The Supreme Court held that employer, which was a subcontractor for the Atomic Energy
Commission and whose representatives had good and sufficient reason to be apprehensive of
employee's emotional stability were immune from prosecution.
Affirmed.
Johns & Johns, of Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy & Jemison, of Las Vegas, for Respondents.
1. United States.
Subcontractor for Atomic Energy Commission which discharged an employee for striking a fellow
employee with his pistol during an altercation was immune from liability to employee, who was later fully
reinstated, for allegedly conspiring to terminate the employee's employment, to impair his professional
reputation, and generally to defame him where the company and its representatives had good and sufficient
reason to be apprehensive of the emotional stability of the employee, who worked in sensitive area at the
Nevada Test Site.
2. United States.
Absolute immunity exists in an organization that has contracted to provide security services for the
government; the immunity is the same as that afforded the government itself.
OPINION
Per Curiam:
William Cleghorn was a ten-year employee of Wackenhut Services, Inc., a subcontractor
for the Atomic Energy Commission. While working at his duties as Security Inspector he was
fired for striking a fellow employee with his pistol during an altercation.
91 Nev. 160, 161 (1975) Cleghorn v. Goldsmith
was fired for striking a fellow employee with his pistol during an altercation. A hearing
before a grievance arbitrator provided by the existing union contract resulted in his
reinstatement. However, he was denied permission to carry a firearm until and unless he took
and passed a psychiatric examination. Eventually he was fully reinstated after the evaluation
but he brought this lawsuit alleging that the respondents through their agents and employees
conspired to terminate his employment, impair his professional reputation and generally
defame him.
The trial court granted an NRCP 12(b) motion to dismiss on the ground that Wackenhut
Services, Inc., as an agency or contractor of the federal government functioning in security
areas was immune from prosecution. Cleghorn appeals.
[Headnote 1]
The employer company's representatives had good and sufficient reason to be
apprehensive of Cleghorn's emotional stability. The fight with the co-employee was one of a
series of incidents in his background that caused the employer to look with askance at his
continued employment in the sensitive area at the Nevada Test Site. Correspondence
exchanged between the company and the representatives of the Atomic Energy Commission
operation concerning him was consistent with their proper concern over security.
[Headnote 2]
Absolute immunity exists in an organization that is contracted to provide security services
for the government, the same as afforded the government itself. The trial court founded its
order of dismissal upon Becker v. Philco Corporation, 372 F.2d 771 (4th Cir. 1967), cert.
denied, 389 U.S. 979 (1967), and we agree.
Affirmed.
____________
91 Nev. 161, 161 (1975) Johnson v. Sheriff
JOHN WESLEY JOHNSON, Jr., Appellant, v. SHERIFF,
No. 7870
March 17, 1975 532 P.2d 1037
Defendant charged with attempted capital murder and conspiracy to commit murder
petitioned for writ of habeas corpus.
The district court entered order denying relief and the petitioner appealed. The Supreme
Court held that mere discussion between defendant and feigned hit man with respect to the
murder of particular individual was insufficient to constitute an attempted murder since there
was no performance of an overt act toward commission of crime and any agreement with the
feigned hit man could not constitute a conspiracy.
Reversed, without prejudice.
M. Daniel Markoff, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Joel M.
Cooper, Deputy, Clark County, for Respondent.
1. Criminal Law.
Elements of an attempt to commit crime are intent to commit crime, performance of some act toward
its commission and the failure to consummate its commission.
2. Homicide.
Although intent to commit crime of murder was shown, the discussions testified to between defendant
and the feigned hit man were but preparations and did not constitute the performance of an overt act
toward the commission of the crime.
3. Conspiracy.
A conspiracy requires an agreement by at least two persons.
4. Conspiracy.
When one of two persons merely pretends to agree, the other party, whatever he may believe, is not
conspiring with anyone.
5. Conspiracy.
Any alleged agreement between the defendant and feigned hit man with respect to murdering a
particular person in consideration for defendant's payment of cash did not constitute a conspiracy.
OPINION
Per Curiam:
A Las Vegas Police Officer heard from an undisclosed informant that John Wesley
Johnson, Jr., was willing to pay a hired assassin $60,000.00.
The officer, feigning that he was a hit man for hire, from out of state, had several
telephone conversations with a person who represented himself to be Johnson. Details of the
proposed killing were discussed; however, the two men never met face to face. Instead, the
officer recruited a second officer, who did have two face to face meetings with Johnson.
According to the second officer, the identity, habits and residence of the proposed
victims were discussed at these meetings, and the method to be used in accomplishing
their proposed demise and disposition of bodies, as well.
residence of the proposed victims were discussed at these meetings, and the method to be
used in accomplishing their proposed demise and disposition of bodies, as well. Shortly after
the second meeting Johnson was arrested, and charged with attempted capital murder and
conspiracy to commit murder.
Following preliminary examination Johnson was ordered to stand trial for the charged
offenses. He then sought habeas relief in the district court, which was denied, and challenges
that ruling by this appeal.
[Headnotes 1, 2]
1. The elements of an attempt to commit a crime were delineated by this court in State v.
Thompson, 31 Nev. 209, 216, 101 P. 557, 559 (1909). There, we said the prosecution must
establish (1) the intent to commit the crime, (2) performance of some act towards its
commission, and, (3) failure to consummate its commission. See Mathis v. State, 8 Nev. 402,
419 P.2d 775 (1966).
In State v. Charley Lung, 21 Nev. 209, 28 P. 235 (1891), this court noted that devising or
arranging the means and measures necessary for the commission of the offense is merely
preparation; and, the attempt is the direct movement toward the commission, after the
preparation is made.
Here, although intent to commit the crime was shown, the discussions testified to by the
feigned hit man were but preparation; they did not constitute the second element,
performance of an overt act toward the commission of the crime. Compare People v. Adami,
111 Cal.Rptr. 544 (Cal.App. 1973), which held there was no attempt where, besides
solicitation and discussion, there had been the payment of a sum of money to the proposed
hit man.
[Headnotes 3-5]
2. A conspiracy requires an agreement by at least two people. When one of two persons
mere]y pretends to agree, the other party, whatever he may believe, is in fact not conspiring
with anyone. Delaney v. State, 51 S.W.2d 485 (Tenn. 1932).
The district judge should have granted the habeas petition, without prejudice to the
institution of appropriate charges.
Accordingly, we reverse, without prejudice.
____________
91 Nev. 164, 164 (1975) Stoker v. Jim Marsh American Corp.
MARTHA STOKER Appellant and Cross-Respondent, v. JIM MARSH AMERICAN
CORPORATION, a Nevada Corporation, Doing Business as JIM MARSH AMERICAN
JEEP, VOLVO AND TRIUMPH, Respondent and Cross-Appellant.
No. 7833
March 17, 1975 532 P.2d 1031
Appeal and cross-appeal from judgment allowing recovery for misrepresentations during
purchase of automobile. Eighth Judicial District Court, Clark County; John F. Mendoza,
Judge.
The district court rendered judgment for plaintiff, and plaintiff appealed challenging denial
of claim for punitive damages and amount of attorney fees awarded. The Supreme Court held
that award of attorney fees lay in the sound discretion of the trial court and that alleged fact
that such fees almost equaled amount of recovery was not the sole measure of the award of
such fees.
Judgment affirmed. Cross-appeal dismissed.
Darrell Lincoln Clark, of Las Vegas, for Appellant and Cross-Respondent.
Scotty Gladstone and Douglas J. Shoemaker, of Las Vegas, for Respondent and
Cross-Appellant.
1. Costs.
Award of attorney fees in suit to recover for misrepresentations made to plaintiff in purchase of new
automobile was a matter within the sound discretion of the trial court.
2. Costs.
Alleged fact that attorney fees would almost equal amount recovered in suit seeking damages for
misrepresentations made to plaintiff in purchase of new automobile was not the sole measure for an award
of attorney fees; award was properly based on factors of time of preparation, trial and the preliminaries.
OPINION
Per Curiam:
Appellant Martha Stoker appeals a trial court decision in her favor for misrepresentations
made to her in the purchase of a new automobile from respondent. She alleges the trial court
erred in not awarding her punitive damages and also that the award of $1,150.00 in attorney's
fees was insufficient.
1. The testimony and evidence do not reveal the trial court abused its discretion in
denying her request for punitive damages.
91 Nev. 164, 165 (1975) Stoker v. Jim Marsh American Corp.
abused its discretion in denying her request for punitive damages. Nevada Cement Co. v.
Lemler, 89 Nev. 447, 514 P.2d 1180 (1973); Caple v. Raynel Campers, Inc., 90 Nev. 341,
526 P.2d 334 (1974).
[Headnotes 1, 2]
2. Here, too, the award of attorney's fees lies in the sound discretion of the trial court.
General Electric v. Bush, 88 Nev. 360, 498 P.2d 366 (1972); Brunzell v. Golden Gate Nat'l
Bank, 85 Nev. 345, 455 P.2d 31 (1969). Although Mrs. Stoker claims that the attorney's fees
charged her by her attorney (not the same attorney who handled this appeal) will cost her as
much as she recovered in her lawsuit. That fact is not the sole measure for an award of
attorney's fees. Considering the factors of time of preparation, trial and the preliminaries, the
$ 1,150.00 award granted her by the court was reasonable.
The respondent's cross-appeal which alleged that Mrs. Stoker's rescission of the purchase
contract was not timely and therefore ineffective is without merit. Frontier Mobile Home
Sales, Inc. v. Trigleth, 505 S.W.2d 516 (Ark. 1974); Fablok Mills, Inc. v. Cocker Machine &
Foundry Co., 310 A.2d 491 (N.J. Super. 1973); Tiger Motor Company v. McMurtry, 224
So.2d 638 (Ala. 1969); Zoss v. Royal Chevrolet, Inc., 11 UCC Rep. Ser. 527 (1972).
Cross-appeal dismissed. The judgment of the trial court is affirmed.
____________
91 Nev. 165, 165 (1975) Clark County School District v. Beebe
THE CLARK COUNTY SCHOOL DISTRICT; THE BOARD OF TRUSTEES OF THE
CLARK COUNTY SCHOOL DISTRICT, and GLEN C. TAYLOR, HELEN C. CANNON,
EARL A. EVANS, Jr., CLARE W. WOODBURY, B. BERNICE MOTEN, JAMES C.
ANDRUS, and DAVID CANTER, Constituting the Members of Said Board; and DR.
KENNY C. GUINN, Superintendent, Appellants, v. WILLIAM BEEBE, Respondent.
No. 7690
March 17, 1975 533 P.2d 161
Appeal from judgment of the Eighth Judicial District Court, Clark County; James D.
Santini, Judge.
A teacher who was involuntarily retired because he had attained age of 65 filed a
grievance, which was rejected by the school district. He filed a writ of review and the district
court ordered reinstatement.
ordered reinstatement. The district and other defendants appealed. The Supreme Court,
Mowbray, J., held that under a statute defining a municipality as, inter alia, any county
school district, a school district is a county or municipal department, agency, board or
appointing officer thereof within a statute barring age discrimination against employees, and
a school district is thus precluded from discharging any school teacher or certified employee
involuntarily on the basis of age. However, under a statute defining fiscal year as a
12-month period beginning on the first day of July and ending on the last day of June, the
school district's dismissal of the employee at the end of the fiscal year in which he attained
age 65 was not simultaneous with the July 1, 1973 effective date of the statute protecting
teachers against involuntary retirement for age, and the teacher was not within the protection
of the statute.
Reversed.
Robert L. Petroni, of Las Vegas, for Appellants.
Hilbrecht, Jones & Schreck, of Las Vegas, for Respondent.
1. Labor Relations.
Under statute defining municipality as, inter alia, any county school district, school district is county
or municipal department, agency, board or appointing officer thereof within statute barring age
discrimination against employees, and a school district is thus precluded from discharging any school
teacher or certified employee involuntarily on basis of age. Stats. Nev. 1973, ch. 577, 2; NRS 43.080,
281.370, 281.370, subd. 2, 386.350, 386.360, 391.312.
2. Labor Relations.
Under statute defining fiscal year as 12-month period beginning on the first day of July and ending on last
day of June, school district's involuntary dismissal of employee because of his attaining age 65, at end of
fiscal year in which he attained age 65, was not simultaneous with July 1, 1973 effective date of statute
protecting teachers against involuntary retirement for age, and teacher was not within protection of such
statute. Stats. Nev. 1973, ch. 577, 2; NRS 281.370, subd. 2, 354.526.
3. Statutes.
Unless contrary plainly appears, statutes operate prospectively only. Stats. Nev. 1973, ch. 577, 2; NRS
281.370, subd. 2.
OPINION
The principal issues presented on this appeal are whether the Nevada Fair Employment
Practices Act as amended by chapter 577, Statutes of Nevada 1973, has nullified the Clark
County School District's policy of forcing the involuntary retirement of its teachers on the
sole basis of age, and, if so, when such nullification became effective.
retirement of its teachers on the sole basis of age, and, if so, when such nullification became
effective.
1. William Beebe, the respondent, had been a teacher in Clark County since 1960. Beebe
attained the age of 65 years during the fiscal year ending June 30, 1973. The policy of the
Clark County School District, as set forth in District Policy and Regulation 4411, adopted
June 25, 1964, provides for compulsory retirement of certified employees at the end of the
fiscal year in which the age of 65 is attained.
1
Pursuant to this regulation, Beebe was notified
by the District in November 1972 that he would be involuntarily retired in June 1973.
Beebe filed a grievance with the District, objecting to his retirement, on the ground that
[t]his policy, by contract or otherwise, will be against the public policy of the State of
Nevada, and contrary to the law at the time grievance's discharge is to be effective.
The District rejected Beebe's grievance, and he filed a writ of review in the district court.
The court below found that the District's Regulation 4411 was in direct conflict with the 1973
Nevada Fair Employment Practices Act and, consequently, void. The court ordered Beebe
reinstated as a classroom teacher.
2. Assembly Bill 543 (amending NRS 281.370, among other statutes) was introduced in
the Legislature on March 8, 1973. The bill was approved on April 25, 1973, effective July 1,
1973. Stats. Nev. 1973, ch. 577, 2, at 980-981.
2
Section 2 of NRS 2S1.370 as amended
provides that State, county, or municipal departments, agencies, boards, or appointing
officers thereof shall not discharge from employment any person because of age.
____________________

1
Clark County School District Policy and Regulation 4411:
Employees shall be retired at the end of the fiscal year in which age 65 is attained.
In unique and unusual circumstances a principal or supervisor may submit a request for continuance
of employment to the Associate Superintendent, Personnel Services. The request must be approved by the
division head involved. Extensions may be granted on a year-by-year basis only.

2
Stats. Nev. 1973, ch. 577, 2, at 980-981:
Sec. 2. NRS 281.370 is hereby amended to read as follows:
281.370 1. All personnel actions taken by state, county or municipal departments, agencies, boards
or appointing officers thereof shall be based solely on merit and fitness.
2. State, county or municipal departments, agencies, boards or appointing officers thereof shall not:
(a) Refuse to hire a person because of such person's race, color, creed, national origin [or sex,], sex
or age, unless based upon a bona fide occupational classification.
(b) Discharge or bar any person from employment because of such person's race, creed, color,
national origin [or sex,], sex or age.
(c) Discriminate against any person in compensation or in other terms or conditions of employment
because of such person's race, creed, color, national origin [or sex.], sex or age, except as provided in
section 1 of this act.
2 of NRS 281.370 as amended provides that State, county, or municipal departments,
agencies, boards, or appointing officers thereof shall not discharge from employment any
person because of age. The district court ruled that the amendment nullified the District's
Regulation 4411. We agree.
[Headnote 1]
The District argues on appeal that, since NRS 281.370, subsection 2, fails to name
specifically school districts as one of the agencies enumerated therein, District is not bound
by the age discrimination proscription of the statute. We do not agree. The pertinent language
of the statute barring age discrimination is directed to State, county or municipal
departments, agencies, boards or appointing officers thereof . . . (emphasis added). NRS
281.370 (2), infra. Certainly, a school district may be considered a municipal department
within the meaning of the statute, and the school board, a board within the statute. NRS
43.080 defines a municipality as follows: Municipality' means the State of Nevada, or any
corporation, instrumentality or other agency thereof, or any incorporated city or town, any
unincorporated city or town, or any county school district, . . . (emphasis added).
3

We conclude and so hold that District is bound by the mandate of the statute prohibiting
age discrimination. Each school district, through its board of trustees, is given such
reasonable and necessary powers as may be required to attain the ends for which the public
schools are established. NRS 386.350.
4
However, no board of trustees may enforce a policy
or rule that is inconsistent with the law.
____________________

3
NRS 43.080:
Municipality' means the State of Nevada, or any corporation, instrumentality or other agency
thereof, or any incorporated city or town, any unincorporated city or town, or any county, school district,
conservancy district, drainage district, irrigation district, general improvement district, other corporate
district constituting a political subdivision of this state, housing authority, urban renewal authority, other
type of authority, the University of Nevada, the board of regents of the University of Nevada, or any
other body corporate and politic of the State of Nevada, but excluding the Federal Government.

4
NRS 386.350:
Each board of trustees is hereby given such reasonable and necessary powers, not conflicting with
the constitution and the laws of the State of Nevada, as may be requisite to attain the ends for which the
public schools are established and to promote the welfare of school children, including the establishment
and operation of schools and classes deemed necessary and desirable.
that is inconsistent with the law. NRS 386.360.
5
This means that school districts may not
retire school teachers and certified employees involuntarily on the basis of age. The district
may, however, discharge any teacher, regardless of age, upon the grounds enumerated in NRS
391.312.
6

[Headnote 2]
3. The court below found that Beebe's retirement began at the end of the fiscal year, on
June 30, 1973, or simultaneously with the effective date of chapter 577, Statutes of Nevada
1973, July 1, 1973. We disagree. NRS 354.526 defines a fiscal year as the 12-month period
beginning on the first day of July and ending on the last day of June.7 Respondent Beebe
suggests that his retirement commenced July 1, 12:00 a.m., and that, therefore, he is
covered by the amendment to the statute barring age discrimination.
____________________

5
NRS 386.360:
Each board of trustees shall have the power to prescribe and enforce rules, not inconsistent with law
or rules prescribed by the state board of education, for its own government and the government of public
schools under its charge.

6
NRS 391.312:
1. A teacher may be suspended, dismissed or not reemployed and an administrator may be demoted,
suspended, dismissed or not reemployed for the following reasons:
(a) Inefficiency;
(b) Immorality;
(c) Unprofessional conduct;
(d) Insubordination;
(e) Neglect of duty;
(f) Physical or mental incapacity;
(g) A justifiable decrease in the number of positions due to decreased enrollment or district
reorganization;
(h) Conviction of a felony or of a crime involving moral turpitude;
(i) Inadequate performance;
(j) Evident unfitness for service;
(k) Failure to comply with such reasonable requirements as a board may prescribe;
(l) Failure to show normal improvement and evidence of professional training and growth;
(m) Advocating overthrow of the Government of the United States or of the State of Nevada by
force, violence or other unlawful means, or the advocating or teaching of communism with the intent to
indoctrinate pupils to subscribe to communistic philosophy;
(n) Any cause which constitutes grounds for the revocation of a teacher's state certificate;
(o) Willful neglect or failure to observe and carry out the requirements of this Title; or
(p) Dishonesty.
2. In determining whether the professional performance of a certificated employee is inadequate,
consideration shall be given to the regular and special evaluation reports prepared in accordance with the
policy of the employing school district and to any written standards of performance which may have been
adopted by the board.
first day of July and ending on the last day of June.
7
Respondent Beebe suggests that his
retirement commenced July 1, 12:00 a.m., and that, therefore, he is covered by the
amendment to the statute barring age discrimination. We, however, construe end of fiscal
year to be June 30, 1973. Otherwise, there would be constant conflict between policies in
effect during one fiscal year and amended the following fiscal year.
[Headnote 3]
There is nothing in the statute which indicates either expressly or impliedly that the
Legislature intended that it be applied retrospectively. County of Clark v. Roosevelt Title Ins.
Co., 80 Nev. 530, 396 P.2d 844 (1964); Walsh v. Clark County School Dist., 82 Nev. 414,
419 P.2d 774 (1966). Unless the contrary plainly appears, such statutes operate prospectively
only. Fitch v. Elko County, 8 Nev. 271 (1873).
Construing the applicable legislative pronouncements according to the normal acceptation
of their words, we are constrained to hold erroneous the lower court's determination that
Beebe's retirement and chapter 577, Statutes of Nevada 1973, were effective at the same
moment. If the Legislature wishes to extend the benefits of its 1973 Act to those situated as
Beebe, it may adopt appropriate legislation to do so during its current session.
On the basis of the statute as adopted, however, the judgment reinstating Beebe must be
reversed.
____________________

7
NRS 354.526:
Fiscal year' means the 12-month period beginning on the 1st day of July and ending on the last day
of June.
____________
91 Nev. 170, 170 (1975) Masters v. State
MELVIN MASTERS, Appellant, v. THE STATE
No. 7646
March 18, 1975 533 P.2d 765
Appeal from judgment denying post-conviction relief entered on January 14, 1974.
Seventh Judicial District Court, White Pine County; Llewellyn A. Young, Judge.
91 Nev. 170, 171 (1975) Masters v. State
Petitioner who pleaded guilty to voluntary manslaughter appealed from a judgment of the
district court denying post-conviction relief. The Supreme Court held that bare allegations of
petitioner who contended that he was denied his right to counsel in that he was represented by
ineffective counsel did not overcome the presumption that his attorney fully discharged his
duties, or overcome evidence presented at evidentiary hearing on petition for post-conviction
relief.
Affirmed.
Robert List, Attorney General, Carson City, and Rupert C. Schneider, District Attorney,
White Pine County, for Respondent.
Criminal Law.
Bare allegations of petitioner, who pleaded guilty to voluntary manslaughter and who contended that
he was denied his right to counsel in that he was represented by ineffective counsel, did not overcome
presumption that his attorney fully discharged his duties, or overcome evidence presented at evidentiary
hearing on petition for post-conviction relief.
OPINION
Per Curiam:
Melvin Masters pleaded guilty to voluntary manslaughter and was sentenced to a term of
eight years in the Nevada State Prison.
Masters' contention of denial of his right to counsel based on being represented by
ineffective counsel finds no support in the record based on the standard set out in Founts v.
Warden, 89 Nev. 280, 511 P.2d 111 (1973); see also, Warden v. Lischko, 90 Nev. 221, 523
P.2d 6 (1974); nor do Masters' bare allegations overcome the presumption that his attorney
fully discharged his duties and the evidence presented at the evidentiary hearing on his
petition for post-conviction relief. Warden v. Lischko, supra; Smithart v. State, 86 Nev. 925,
478 P.2d 576 (1970).
Affirmed.
____________
91 Nev. 172, 172 (1975) Clark County v. Mullen
CLARK COUNTY, a Political Subdivision of the State of Nevada; ROBERT T. BASKIN,
WILLIAM M. BRIARE, DARWIN W. LAMB, LOU F. LA PORTA, JAMES G. RYAN,
JAMES BRENNAN and ROBERT BROADBENT, Individually and as Clark County
Commissioners, Appellants and Cross-Respondents, v. ROBERT E. MULLEN, Respondent
and Cross-Appellant.
No. 7849
March 18, 1975 533 P.2d 156
Appeal and cross-appeal from judgment of Eighth Judicial District Court, Clark County;
Thomas J. O'Donnell, Judge.
After remand, Mullen v. Clark County, 89 Nev. 308, 511 P.2d 1036 (1973), the district
court entered judgment in favor of former probation officer in amount of $28,811.73 plus
interest at 7 percent representing compensation for a total of 6,447 hours of overtime, and
county appealed and the officer cross-appealed. The Supreme Court, Manoukian, D. J., sitting
by designation, held that evidence which included, inter alia, probation officer's testimony as
to overtime worked and corroborative testimony of juvenile court judge who was probation
officer's immediate superior during period comprehended by claims was sufficient to sustain
finding that probation officer had worked a total of 6447 hours of uncompensated overtime;
and that probation officer was entitled to interest upon unpaid overtime compensation for the
period of time his case was under submission and consideration by the court.
Affirmed; remanded for recomputation of correct amount of interest.
George E. Holt, District Attorney, and George P. Ogilvie, Jr., Chief Civil Deputy, Clark
County, for Appellants and Cross-Respondents.
Harry J. Mangrum, Jr., Las Vegas, for Respondent and Cross-Appellant.
1. Officers.
Evidence which included, inter alia, probation officer's testimony as to overtime worked and
corroborative testimony of juvenile court judge who was probation officer's immediate superior during
period comprehended by claims was sufficient to sustain finding that probation officer had worked a total
of 6447 hours of uncompensated overtime.
A trial court's findings or determinations will be reversed on appeal only where findings are clearly
against the weight of evidence or without reasonable support therein; and findings of fact are binding on an
appellate court where they are supported by substantial evidence notwithstanding conflicting testimony.
3. Interest.
Probation officer who was awarded judgment for unpaid overtime compensation against county was
entitled to interest for period of time his case was under submission and consideration by the court. NRS
99.040.
4. Interest.
Statute providing that When there is no express contract in writing fixing a different rate of interest,
interest shall be allowed at the rate of 7 percent per annum upon all money from time it becomes due . . .
upon wages or salary is mandatory, not discretionary. NRS 99.040.
5. Courts.
Probation officer who brought action for unpaid overtime compensation was not entitled to be
compensated for overtime at rate of pay he was earning when employment was terminated but rather
judgment must be computed on his rate of pay at time overtime was accrued.
OPINION
By the Court, Manoukian, D. J.:
In a prior appeal between the parties this court resolved the issue of liability against
appellants and remanded the case for further trial on the issue of the amount of overtime
compensation due respondent. See Mullen v. Clark County, 89 Nev. 308, 511 P.2d 1036
(1973). The facts of the case are fully set out in that opinion.
At the subsequent trial the district judge concluded the evidence established respondent
had worked a total of 6447 hours of overtime between April 1961 and September 1968, for
which he had not been compensated.
1
On June 6, 1974, judgment was entered in favor of
respondent for $28,811.73, plus interest at 7 percent from September 1968, the date the claim
was filed, until January 1974, when the trial concluded and the judge took the matter under
submission.
In this appeal the only cognizable issue raised by appellant is that there was a lack of
"substantial" evidence to justify the trial court's conclusion that respondent had worked
the additional 6447 hours of overtime during the period.
____________________

1
The trial court, in its findings of fact, found that after Mullen had exhausted his then accumulated annual
sick leave and vacation time, Clark County, on or about June 10, 1968, granted Mullen 480 hours pay as
compensatory time for overtime hours. Those 480 hours are not included in the instant claims.
is that there was a lack of substantial evidence to justify the trial court's conclusion that
respondent had worked the additional 6447 hours of overtime during the period. We reject the
contention.
[Headnote 1]
1. There was sufficient evidence before the trial court for it to conclude as it did that
respondent had worked a total of 6447 hours of additional overtime during his employment
with Clark County between 1961 and 1968. Respondent testified that the ten claims he filed
were based upon his own personal knowledge, partially computed through the use of old
calendars. He further testified that on numerous occasions, he was contacted by various Clark
County Commissioners for overtime purposes. In explaining this fact, respondent testified
that at the time he computed the claims, in 1968, he knew the number of hours claimed but
inadvertently failed to include same on the claim forms. The evidence further shows that
respondent made monthly overtime reports to the Chief Probation Officer prior to his
appointment to that position. In addition, there was corroboration of respondent's testimony
by Judge William Compton who was the Juvenile Court Judge and respondent's immediate
supervisor during the time periods comprehended by several of the claims. Judge Compton
testified he considered respondent to be on call 24 hours a day.
Acknowledging that respondent was somewhat the sole depository of his time and
hours, it is significant to note that appellants offered neither documentary nor testimonial
contradiction putting in doubt respondent's testimony. Furthermore, the trial court
appropriately exercised its discretion in relying upon what appears to be respondent's
reasonably set schedule of working hours; and, this certainly militates against appellants'
argument of pure conjecture and speculation.
[Headnote 2]
In order to justify reversal of a trial court's findings or determinations, the findings must be
clearly against the weight of the evidence or without reasonable support therein. Even if there
had been conflicting testimony, . . . the findings of fact are binding on the appellate court if
there is substantial evidence to uphold the lower court's position. Havas v. Carter, 89 Nev.
497, 500, 515 P.2d 397, 399 (1973). See Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353
(1970). Here, there was substantial uncontradicted evidence.
[Headnote 3]
2. Respondent, by way of a cross-appeal, contends that the failure of the trial court to
grant interest upon the overtime compensation for the period of time the case was under
submission and consideration by the court constitutes error.
the failure of the trial court to grant interest upon the overtime compensation for the period of
time the case was under submission and consideration by the court constitutes error. We
agree.
The trial court granted respondent interest from September 9, 1968, the date respondent
left Clark County's employment, until January 1974, when the case was taken under
submission. However, the trial court failed to award interest for the time the case was under
submission. Nevada law provides that under these circumstances interest is to be allowed on
wages or salary unpaid when due, after a demand, from the time when due.
2

[Headnote 4]
We will not speculate as to why the trial court failed to grant interest during the time the
case was under submission, but such decision constitutes error. The language of NRS 99.040
is mandatory; accordingly interest should have been allowed for the time the case was under
submission. See Brandon v. Travitsky, supra; and, Paradise Homes v. Central Surety, 84 Nev.
109, 437 P.2d 78 (1968).
[Headnote 5]
3. The trial judge computed the overtime pay on respondent's rate of pay at the time the
overtime was accrued. Respondent contends this was error and that under our decision in
Dunn v. City of Carson City, 88 Nev. 451, 499 P.2d 653 (1972), he is entitled to be
compensated for the overtime at the rate of pay he was earning when his employment was
terminated. That issue was not reached in Dunn and respondent has cited no other authority in
support of the contention. Accordingly, it is rejected.
4. Other errors assigned by the parties are without merit. The judgment for overtime
compensation is affirmed but we remand for recomputation of the correct interest amount, in
accordance with this opinion.
3
Batjer and Thompson JJ., and Breen D. J., and Guinan D. J.
concur.
____________________

2
NRS 99.040: When there is no express contract in writing fixing a different rate of interest, interest shall
be allowed at the rate of 7 percent per annum upon all money from the time it becomes due, in the following
cases: . . . 5. Upon wages or salary, if the same shall be unpaid when due, after demand therefor has been made.

3
Justices Gunderson, Zenoff and Mowbray voluntarily disqualified themselves and took no part in this
decision. The Governor, pursuant to Article VI, 4 of the Constitution, designated District Judges Noel E.
Manoukian, Peter I. Breen and James J. Guinan, to sit in their stead.
Batjer and Thompson JJ., and Breen D. J., and Guinan D. J. concur.
____________
91 Nev. 176, 176 (1975) Hammond v. Sheriff
MIKE HAMMOND, Appellant, v. SHERIFF, MINERAL
No. 8125
March 24, 1975 532 P.2d 1030
Appeal from order denying pretrial petition for writ of habeas corpus, Fifth Judicial
District Court, Mineral County; Kenneth L. Mann, Judge.
The Supreme Court held that where the only probative or demonstrable evidence of record,
suggesting that contraband even existed in proximity to petitioner, were three photographs a
police officer took of a plant growing in a garden at the home of petitioner's father, with
whom petitioner resided, the evidence was insufficient to warrant prosecution of petitioner on
charge of possessing marijuana.
Reversed, with instructions.
Horace R. Goff, State Public Defender, and Gary D. Armentrout, Deputy, Carson City, for
Appellant.
Robert List, Attorney General, Carson City; Larry G. Bettis, District Attorney, Mineral
Drugs and Narcotics.
Where the only probative or demonstrable evidence of record, suggesting that contraband even
existed in proximity to petitioner, were three photographs a police officer took of a plant growing in a
garden at the home of petitioner's father, with whom petitioner resided, the evidence was insufficient to
warrant prosecution of petitioner on charge of possessing marijuana.
OPINION
Per Curiam:
This appeal challenges the sufficiency of the evidence to warrant prosecution of appellant
for possession of marijuana. The only probative or demonstrable evidence of record,
suggesting that contraband even existed in proximity to appellant, are three photographs a
police officer took of a plant growing in a garden at the home of appellant's father, with
whom appellant resides.
91 Nev. 176, 177 (1975) Hammond v. Sheriff
garden at the home of appellant's father, with whom appellant resides.
Deeming this evidence insufficient to hold appellant for trial, we reverse, with instructions
to grant a writ of habeas corpus.
____________
91 Nev. 177, 177 (1975) Gaston v. Warden
CHARLES GASTON, Appellant, v. WARDEN,
No. 7588
March 27, 1975 533 P.2d 464
Appeal from order denying post-conviction relief entered on November 12, 1973. Second
Judicial District Court, Washoe County; John E. Gabrielli, Judge.
A defendant who had pleaded guilty to a charge of battery with intent to commit rape and
to a charge of carrying a concealed weapon sought post-conviction relief. The relief was
denied by the district court, and the defendant petitioner appealed. The Supreme Court held
that petitioner's allegation of deprivation of effective assistance of counsel did not overcome
evidence presented at the evidentiary hearing on petition and the presumption that the
attorney fully discharged his duties.
Affirmed.
Rodlin Goff, State Public Defender, and Gary Sheerin, Deputy Public Defender, Carson
City, for Appellant.
Respondent.
Criminal Law.
In proceeding for post-conviction relief, petitioner's allegation of deprivation of effective assistance of
counsel did not overcome evidence presented at evidentiary hearing on petition and presumption that
attorney fully discharged his duties.
OPINION
Per Curiam:
Charles Gaston pleaded guilty to battery with the intent to commit rape and to carrying a
concealed weapon and was sentenced to a term of seven years in the Nevada State Prison.
91 Nev. 177, 178 (1975) Gaston v. Warden
Gaston's contention of denial of his right to counsel based on being represented by
ineffective counsel finds no support in the record on appeal based on the standard set out in
Founts v. Warden, 89 Nev. 280, 511 P.2d 111 (1973); see also, Warden v. Lischko, 90 Nev.
221, 523 P.2d 6 (1974); nor does Gaston's allegation overcome the evidence presented at the
evidentiary hearing on his petition for post-conviction relief and the presumption that his
attorney fully discharged his duties. Warden v. Lischko, supra; Lundy v. Warden, 89 Nev.
419, 514 P.2d 212 (1973); Smithart v. State, 86 Nev. 925, 478 P.2d 576 (1970).
Gaston's assertion that he was denied an evidentiary hearing as to the truth or falsity of an
alleged promise by defense counsel that he would be sentenced to no more than five years if
he pleaded guilty to lesser charges is unfounded. The record clearly indicates that Gaston was
given an evidentiary hearing on his petition for post-conviction relief in which this issue was
raised and resolved against him as being unsupported by the evidence. The record further
indicates that his guilty pleas were knowingly and voluntarily entered. Armstrong v. Warden,
90 Nev. 8, 518 P.2d 147 (1974).
Affirmed.
____________
91 Nev. 178, 178 (1975) Kane v. Sierra Lincoln-Mercury, Inc.
BOB KANE, MARVIN JONES and JOHN F. KEMP, Sr., Appellants, v. SIERRA
LINCOLN-MERCURY INC., a Nevada Corporation, Respondent.
No. 7344
March 27, 1975 533 P.2d 464
Appeal from an order dismissing class action, Second Judicial District Court, Washoe
County; John W. Barrett, Judge.
Mechanics brought class action against automobile dealership, alleging breaches of oral
contracts of employment. The district court granted motion to dismiss without prejudice to
plaintiffs' right to bring their action as individuals, and an appeal was taken. The Supreme
Court, Batjer, J., held that the suit could not be maintained as a class action, where, on the
date defendant dealership allegedly unlawfully changed its payment policy for mechanics, the
dealership had in its employ only 9 mechanics, where, of those 9, 4 signed a written
clarification of their understanding of the contract terms which expressly refuted the
allegations of plaintiffs' complaint, and where the members of the class were, therefore,
not so numerous that joinder of all members was impracticable.
expressly refuted the allegations of plaintiffs' complaint, and where the members of the class
were, therefore, not so numerous that joinder of all members was impracticable.
Affirmed.
Flangas & Thompson, Reno, and Kermitt L. Waters, Las Vegas, for Appellants.
Hibbs & Bullis, Reno, for Respondent.
Parties.
Suit arising out of alleged breaches of oral contracts of employment between mechanics and
automobile dealership could not be maintained as a class action, where, on the date defendant dealership
allegedly unlawfully changed its payment policy for mechanics, the dealership had in its employ only 9
mechanics, where, of those 9, 4 signed a written clarification of their understanding of the contract terms
which expressly refuted the allegations of plaintiff mechanics' complaint, and where the members of the
class were, therefore, not so numerous that joinder of all members was impracticable. NRCP 23(a), (b).
OPINION
In this appeal from a dismissal, without prejudice, of appellants' class action, we are asked
to decide whether the district court erred in granting respondent's motion to dismiss based
upon appellants' failure to fulfill the prerequisites of NRCP 23(a) and the additional
requirements of NRCP 23(b).
This action arose out of alleged breaches of oral contracts of employment between
appellants and respondent. Appellants' initial contracts called for mechanics to be paid 50
percent of respondent's labor charge to customers as well as 50 percent for factory warranty
labor. According to the complaint respondent changed its payment policy for mechanics to an
hourly wage while increasing its charges for labor to customers, resulting in the mechanics
receiving less than 50 percent of the total labor charge as originally contracted for.
Appellants sued on behalf of themselves and every other person similarly situated. After
respondent filed its answer and motion to dismiss, appellants moved to certify the class. The
district court then entered its order allowing appellants to amend their complaint to eliminate
their class action. They elected not to amend and filed notice of such election. On March 2
1973, the district court granted respondent's motion to dismiss without prejudice to
appellants' right to bring their action as individuals.
March 2 1973, the district court granted respondent's motion to dismiss without prejudice to
appellants' right to bring their action as individuals. This appeal followed.
The Rule [NRCP 23] requires a plaintiff who would institute a class action to satisfy the
preconditions of 23(a), and also show that his action is appropriate under one of the three
subdivisions of 23(b). Johnson v. Travelers Insurance Co., 89 Nev. 467, 471, 515 P.2d 68
(1973). Of the 39 identified present and former employees, 17 of those individuals were
terminated prior to July 11, 1969, the date respondent began paying its mechanics an hourly
wage and increased labor charges to the customers. Of the 22 remaining mechanics only 9
were hired prior to July 1969, leaving 13 who were hired after the modification of the mode
of compensation. Of the 9 remaining employees 4 have signed a written clarification of their
understanding of the contract terms which expressly refutes the allegations of appellants'
complaint.
The express language and intent of NRCP 23(a)(1) leaves no doubt that a class action may
be maintained only if the class is so numerous that joinder of all members is impracticable.
Here the class is far too small to justify a class action and on this basis alone the trial court
properly dismissed the suit. Cf. Cook County College Teachers U., Loc. 1600, A.F.T. v.
Byrd, 456 F.2d 882 (7th Cir. 1972), cert denied 409 U.S. 848 (1972); Sharp v. Hilleary
Franchise Systems, 56 F.R.D. 34 (D.C.Mo. 1972); William Goldman Theatres, Inc. v.
Paramount Film Dist. Corp., 49 F.R.D. 35 (D.C.Pa. 1969); Holly Springs Funeral Home v.
United Funeral Service, 303 F.Supp. 128 (D.C.Miss. 1969); Moscarelli v. Stamm, 288
F.Supp. 453 (D.C.N.Y. 1968), all holding that the proposed class was not so numerous as to
make joinder impossible.
Appellants have failed to meet the requirement of NRCP 23(a)(1). The judgment of the
district court is affirmed. We need not consider whether appellants have met the additional
requirements of NRCP 23(a) and NRCP 23(b).
____________
91 Nev. 181, 181 (1975) Nevada National Bank v. Hunt
NEVADA NATIONAL BANK, a Banking Corporation, Appellant, v. JEFF HUNT and
ZANE HUNT, Individually and Doing Business as HUNT BROS., Respondents.
No. 7644
March 27, 1975 533 P.2d 161
Appeal from judgment entered on jury verdict; Fourth Judicial District Court, Elko
Defendant appealed from a judgment of the district court entered on jury verdict in favor
of plaintiffs. The Supreme Court held that jury award of lump sum as damages would be
sustained notwithstanding contention that the award improperly included money for loss of
profits where the trial court did not instruct the jury regarding loss of profits as an item of
damages and written interrogatories were not submitted to the jury on the issue of damages.
Affirmed.
Guild, Hagen & Clark, Ltd., and Thomas J. Hall, of Reno, for Appellant.
Wilson and Wilson, Ltd., of Elko, for Respondents.
Damages.
Where trial court did not instruct the jury regarding loss of profits as item of damages and written
interrogatories were not submitted to the jury on the issue of damages, general verdict for the plaintiffs
which awarded a lump sum as damages would be sustained notwithstanding defendant's contention that
the award improperly included money for loss of profits.
OPINION
Per Curiam:
A jury returned its general verdict for the plaintiffs awarding a lump sum as damages. It is
contended that the award improperly includes money for loss of profits. The court did not
instruct the jury regarding loss of profits as an item of damages. Written interrogatories were
not submitted to the jury on the issue of damages. The record may be read to support the lump
sum award. However, we do not deem the appeal frivolous as the respondents suggest.
Affirmed.
____________
91 Nev. 182, 182 (1975) Gilfillan v. Palmer
DONALD W. GILFILLAN, Appellant, v. MARY
BERNICE PALMER, Respondent.
No. 7586
March 27, 1975 533 P.2d 456
Appeal from judgment for defendant; Second Judicial District Court, Washoe County;
John W. Barrett, Judge.
Attorney brought action against former client to recover attorney's fees. The district court
entered judgment in favor of former client and attorney appealed. The Supreme Court held
that evidence sustained finding that legal fees owing the attorney and his associated
California counsel had been paid by client's husband to California counsel pursuant to terms
of property settlement agreement obligating the husband to pay such fees and that the client's
obligation had been thereby discharged.
Affirmed.
Stewart & Horton, Ltd., and Raymond B. Little, of Reno, for Appellant.
Sanford, Sanford, Fahrenkopf & Mousel and M. Craig Haase, of Reno, for Respondent.
Attorney and Client.
Evidence supported finding that all legal fees owing to attorney and his associated California counsel
had been paid by client's husband to California counsel pursuant to terms of a property settlement
agreement obligating the husband to pay such fees and that the client's obligation to the attorney had been
thereby discharged.
OPINION
Per Curiam:
In this action by an attorney against his former client to recover attorney's fees claimed to
be due, the trial court found that all legal fees owing the attorney and his associated California
counsel were paid by the client's husband to California counsel pursuant to the terms of a
property settlement agreement obligating the husband to pay such fees, and that the client's
obligation thereby was discharged. The record supports that finding.
Affirmed.
____________
91 Nev. 183, 183 (1975) Eckert v. State
EDWARD D. ECKERT, Appellant, v. STATE
No. 7606
March 27, 1975 533 P.2d 468
Appeal from conviction of first-degree murder and sentence of life imprisonment with the
possibility of parole. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski,
Judge.
The Supreme Court, Zenoff, J., held that evidence which did not connect defendant with
the crime was insufficient to corroborate the testimony of an accomplice and was thus
insufficient to sustain conviction.
Reversed.
Rogers, Monsey, Lea, Woodbury & Sheehan, of Las Vegas, for Appellant.
Seaton, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Testimony of an accomplice must be corroborated. NRS 175.291.
2. Criminal Law.
Under statute requiring that corroborative evidence must, without aid of accomplice, tend to connect
defendant with commission of offense, it is insufficient if evidence merely shows commission of offense or
circumstances thereof. NRS 175.291.
3. Criminal Law.
Evidence to corroborate accomplice testimony does not suffice if it merely casts grave suspicion on
defendant. NRS 175.291.
4. Criminal Law.
Underlying purpose of statute requiring evidence to corroborate testimony of accomplice is to prevent
false accusations as well as false convictions. NRS 175.291.
5. Criminal Law.
In murder prosecution, evidence which did not connect defendant with the crime was insufficient to
corroborate testimony of accomplice and was thus insufficient to sustain conviction. NRS 175.291.
6. Criminal Law.
Where, in murder prosecution, accomplice who had testified against defendant volunteered during
cross-examination that accomplice had passed two polygraph tests, and statement was stricken and jury
was admonished to disregard, and the defendant also tried, in rebuttal, to testify that
he had passed polygraph test, and defendant's statement was also stricken and jury
admonished, admonitions to jury were sufficient in context of entire record, and
there was no error.
and jury was admonished to disregard, and the defendant also tried, in rebuttal, to testify that he had passed
polygraph test, and defendant's statement was also stricken and jury admonished, admonitions to jury were
sufficient in context of entire record, and there was no error.
OPINION
The body of Lee Page Merkle was found on the outer perimeters of the parking lot at Clark
County's outdoor sports stadium in the vicinity of Henderson, Nevada, and the metropolitan
area of Las Vegas. The body was found in the early morning hours of December 26, 1971,
with nine bullet holes made from three different weapons: a 9 millimeter, a .380 caliber and
a.22 caliber.
Late in 1972, Gordon Overton, James Hilt and the appellant, Edward D. Eckert, were
separately arrested and charged with the commission of the murder of Merkle.
Events leading to their arrest commenced in the small community of Shawnee Mission just
outside of Kansas City, Kansas, where Eckert and Overton, both then 17 years of age, had
been casual acquaintances. Hilt, a late comer on the scene, was older than the other two and
apparently of some affluence because money seemed to be readily available to him. In a series
of events leading up to the crime, they had practiced firing at a shooting range in the small
community, where Hilt at that time provided the money for the purchase of a 9 millimeter
automatic Smith and Wesson for himself and a Browning .380 for Eckert. Eckert signed the
Federal Arms Regulation forms because he was the only one of the three with a Kansas
driver's license which was a prerequisite to the buying of the guns.
Later that day, they decided to go to Las Vegas, Nevada, Overton testifying that their
purpose was to just have a good time, but Eckert testified he went along because Hilt hired
him to drive a truck back from Las Vegas for the sum of $600.00, While driving in Hilt's car
on the way to Las Vegas, the automobile broke down near Thoreau, New Mexico, for the rest
of the trip.
From there the story differs. Overton testifying against Eckert on behalf of the State said
that all three went on to Las Vegas together. Eckert said that he was left behind to watch over
Hilt's broken automobile. Later, he said, Hilt returned from Las Vegas in the evening hours of
December 26, picked him up and together they returned to the Kansas City area.
26, picked him up and together they returned to the Kansas City area. Overton testified, on
the other hand, that while the three were in Las Vegas and roaming around that area they
picked up Merkle who had just left a bar near the Boulder highway. Again according to
Overton, after Merkle entered the car Eckert threatened to shoot Merkle for no apparent
reason, ordered Hilt to stop the car, Merkle to lie on the ground and that Eckert then fired
three shots into the prone body of Merkle. Eckert turned his weapon to Hilt and Overton
compelling those two to fire shots into Merkle so that all three were in the caper together.
They later dispersed, Overton to return home on the telephonic orders of his father whom he
called from Las Vegas. He claimed that he didn't know what ever happened to Hilt and Eckert
thereafter except that Eckert by telephone from time to time threatened to kill him if he
talked.
Eckert's version sharply differs. His testimony was that when Hilt picked him up in Gallup
on December 26 he knew nothing of any murder or any other unusual experience of the other
two, that a plausible explanation was given him by Hilt for Overton's return directly to
Kansas City. Later, apparently the weapons were disposed of by Hilt to different persons.
[Headnote 1]
Hilt refused to testify for either party claiming 5th Amendment privileges against
self-incrimination. Overton pleaded guilty to involuntary manslaughter. His time in the
county jail after arrest was commuted to time served. The jury found Eckert guilty of murder,
sentenced him to life imprisonment with possibility of parole. He appeals claiming that there
was no evidence to corroborate Overton's testimony connecting Eckert with the murder
which, of course, is essential in the case where a defendant is on trial and the evidence or
testimony of an accomplice is being used against him. Also, Overton on cross-examination
spontaneously stated that he had passed a polygraph test and this, too, was claimed as
prejudicial error.
[Headnote 2]
1. NRS 175.291
1
requires that corroborative evidence must, without the aid of the
accomplice, tend to connect the defendant with the commission of the offense.
____________________

1
NRS 175.291 holds that: A conviction shall not be had on the testimony of an accomplice unless he is
corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to
connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it
merely shows the commission of the offense or the circumstances thereof.
must, without the aid of the accomplice, tend to connect the defendant with the commission
of the offense. It is insufficient if it merely shows the commission of the offense or the
circumstances thereof. Cf. Austin v. State, 87 Nev. 578, 491 P.2d 724 (1971). Eckert claims
that the record is void of such evidence.
The only evidence with corroborative value consists of the purchase of the two weapons at
the shooting range. The testimony of both Overton and Eckert was that the weapons were
purchased and a .22 pistol taken along because they heard that Las Vegas was a rough place
and that they should have them in their possession for protection.
2
True, the victim was
killed by three different weapons of the type in possession of the three persons. One was
positively identified as one of the murder weapons. Other than that, nothing independent of
Overton connects Eckert with being in Las Vegas to participate in the killing. As a matter of
fact, an eyewitness maintenance worker at the Gallup motel near which they had parked the
automobile positively identified Eckert at the time or thereabouts that the crime was
committed. In other respects the only other incident was the issuance of a speeding citation to
Eckert just past midnight on December 27 by a patrol officer in the Gallup vicinity but the
officer was not even sure that Eckert was or was not towing an automobile as Eckert had
testified, but the value of that evidence is uncertain. According to Eckert he was caught
speeding while he was driving the rented car towing the broken automobile with a chain. It
may have been possible for Eckert to have been in Las Vegas and already returned to Gallup
at the time of the citation but it would be a matter of pure speculation.
[Headnotes 3-5]
Evidence to corroborate accomplice testimony does not suffice if it merely casts grave
suspicion on the defendant. Austin v. State, supra; People v. Luker, 407 P.2d 9 (Cal. 1965).
The underlying purpose of the accomplice statute requiring corroborative evidence is to
prevent false accusations as well as false convictions. The dangers are too great in view of the
self-purposes to be served by Overton to suggest that the contents of this record supply the
needed corroboration to uphold Eckert's conviction. Cf. State v. Wyatt, 84 Nev. 731, 448 P.2d
827 (1968); Ex Parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960). (While these are habeas
corpus cases testing the sufficiency of the evidence of an accomplice witness after a
preliminary hearing they nevertheless are expressive of the principle herein involved.)
____________________

2
A .22 caliber pistol had been taken by Overton from his father without the father's knowledge.
corpus cases testing the sufficiency of the evidence of an accomplice witness after a
preliminary hearing they nevertheless are expressive of the principle herein involved.)
[Headnote 6]
2. During cross-examination Overton volunteered that he had passed two polygraph tests.
The parties stipulated that the statement be stricken from the record and the court admonished
the jury to disregard the statement. Eckert also tried in rebuttal to testify that he had passed a
polygraph test which was also stricken and the jury admonished. In the context of the entire
record the admonitions to the jury were sufficient and there was no error.
Discussion of other issues is unnecessary. The conviction rests entirely on the
uncorroborated testimony of the accomplice, Overton, and we must therefore reverse and
remand for a new trial.
Reversed.
____________
91 Nev. 187, 187 (1975) Carson Meadows Inc. v. Pease
CARSON MEADOWS INCORPORATED, Formerly a Nevada Corporation, and
THEODORE GOLDBECK and JUNE PIEDMONT, Individually, Appellants, v.
ARTHUR E. PEASE and DOROTHY PEASE, Husband and Wife, Respondents.
No. 7552
March 27, 1975 533 P.2d 458
Appeal from judgment for damages; First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Investors brought action against corporation and corporation's officers, individually,
seeking damages for alleged fraud. The district court entered judgment against corporate
officers jointly and severally, and defendants appealed. The Supreme Court, Thompson, J.,
held that evidence which established, inter alia, that president of corporation commingled
corporate funds with his own and treated corporate assets as his own was sufficient to
establish that he was the alter ego of the corporation; that evidence which established, inter
alia, that corporation's vice-president and secretary functioned as an office manager and
secretary to the president, received money for the corporation, deposited money for the
corporation, and cosigned corporate checks was insufficient to sustain finding that she
was an alter ego of corporation; that where investors actually loaned only seventy-five
percent of the face amount of the promissory note resulting in rate of return being
usurious, investors were entitled to recover only amounts actually loaned minus amounts
paid thereon; and that where amount of judgment was reduced on appeal, award of
reasonable attorneys' fees to which investors were entitled by terms of promissory notes
must be nullified and issue remanded for reconsideration.
manager and secretary to the president, received money for the corporation, deposited money
for the corporation, and cosigned corporate checks was insufficient to sustain finding that she
was an alter ego of corporation; that where investors actually loaned only seventy-five percent
of the face amount of the promissory note resulting in rate of return being usurious, investors
were entitled to recover only amounts actually loaned minus amounts paid thereon; and that
where amount of judgment was reduced on appeal, award of reasonable attorneys' fees to
which investors were entitled by terms of promissory notes must be nullified and issue
remanded for reconsideration.
Affirmed in part, modified in part, reversed in part and remanded with respect to
attorneys' fees.
Carl P. Martillaro and Arthur J. Bayer, Jr., of Carson City, for Appellants.
Daniel R. Walsh, of Carson City, for Respondents.
1. Corporations.
The alter ego doctrine applies to hold an individual personally responsible for actions of corporation
where there is such unity of interest and ownership that the individual and corporation are inseparable from
each other and adherence to the fiction of separate entity would sanction a fraud or promote injustice.
2. Corporations.
Evidence which established, inter alia, that the president of the corporation commingled corporate funds
with his own, treated some corporate assets as his own, and negotiated all of the corporate business was
sufficient to sustain finding that corporation president was the alter ego of the corporation.
3. Corporations.
Evidence which established, inter alia, that vice-president and secretary of corporation functioned as an
office manager and secretary to the president, received money for the corporation, made deposits for
corporation, and cosigned checks with president was insufficient to sustain finding that vice-president and
secretary was alter ego of corporation.
4. Appeal and Error; Fraud.
Contentions of fraud must be established by clear and convincing proof, and reviewing court will not
hesitate to reverse a judgment where no more than a paucity of evidence exists to support charge of fraud.
5. Fraud.
Evidence which established, inter alia, that president of corporation was the one who carried on all
meaningful negotiations with investors was insufficient to sustain judgment against vice-president and
secretary of corporation based on defrauding of investors.
6. Fraud.
Evidence of investors, who were not allowed to submit any evidence regarding financial
condition of corporation at various times that they made loans to corporation, was
insufficient to support judgment of fraud against corporation's president on basis of
contention that he had misrepresented financial condition of corporation in order to
obtain such loans.
evidence regarding financial condition of corporation at various times that they made loans to corporation,
was insufficient to support judgment of fraud against corporation's president on basis of contention that he
had misrepresented financial condition of corporation in order to obtain such loans.
7. Corporations.
Fact that evidence was insufficient to support finding of fraud on part of corporation president in
obtaining a loan for corporation did not absolve president of liability since as alter ego of the corporation
he was personally liable to pay promissory note without regard to any finding of fraud.
8. Mortgages.
Foreclosure of first trust deeds on corporation's realty did not extinguish corporation president's liability
as alter ego upon promissory notes secured by second trust deeds.
9. Usury.
Where lenders actually loaned only seventy-five percent of the face value of promissory notes, the
additional twenty-five percent which was to be paid constituted interest for purposes of determining rate
of return under usury law notwithstanding fact that note specified an eight percent rate of return. NRS
99.050.
10. Usury.
Where effective rate of interest on promissory notes exceeded twelve percent per annum, lenders were
entitled to recover only amounts actually loaned less the amounts paid thereon, and no interest was
recoverable notwithstanding fact that terms of notes provided for eight percent rate of interest. NRS
99.050.
11. Fraud.
Evidence which established, inter alia, that investors were induced to purchase 2500 shares of capital
stock of corporation for $25,000 on representations by corporation's president that corporation was
financially sound, that money was needed to assist in obtaining construction loan for golf course, that
money would be used for such purpose, and that part of money was in fact deposited by corporation
president to his personal account was sufficient to sustain finding of fraud as to stock purchase.
12. Fraud.
Evidence which established, inter alia, that corporation's president induced investor to loan funds to
corporation on representation that parties who were purchasing home from corporation would give lender a
promissory note covering the loan secured by a second deed of trust and that lenders never received the
promised note and trust deed was sufficient to sustain finding of fraud as to the loan.
Where default did not occur on any promissory notes until May 1966, action on promissory notes
commenced in September 1970 was not barred by statute of limitations. NRS 11.190, subd. 1(b).
Where investors did not discover fraud until 1969, investors' action, based upon such fraud, brought in
September 1970, was not barred by statute of limitations. NRS 11.190, subd. 3(d).
15. Costs.
Statute governing award of attorneys' fees does not preclude award of reasonable fees when contractually
provided for even though recovery may exceed $10,000. NRS 18.010.
Award of $15,000 for attorneys' fees to lenders who brought action to collect promissory notes must be
remanded for reconsideration where size of judgment was reduced on appeal.
OPINION
This is an action to recover damages for fraud. It was commenced by Arthur Pease and his
wife, Dorothy, against Carson Meadows Incorporated and Theodore Goldbeck and June
Piedmont, individually. Goldbeck and Piedmont, respectively, were the president and
vice-president of the corporation and directors as well. It is asserted that they wholly
controlled the corporation as its alter ego and, therefore, are jointly and severally liable for the
corporation's indebtedness to the plaintiffs.
The charge of fraud rests mainly on the proposition that Goldbeck and Piedmont, from
time to time, induced the plaintiffs to loan various sums of money to the corporation, and to
invest therein as minor stockholders, all upon false representations that the moneys so loaned
and invested would be used for corporate purposes, and that the corporation was at all
relevant times financially sound.
From the outset, the corporate properties were heavily encumbered. It soon experienced
difficulty in meeting current operating expenses. Lending institutions holding first deeds of
trust on the real property foreclosed to satisfy the corporate obligations owing them. The
charter of Carson Meadows Incorporated was revoked on March 4, 1968.
The district court ruled for the plaintiffs and assessed judgment against Goldbeck and
Piedmont jointly and severally. Judgment was not entered against the defunct corporation.
Several assigned errors are tendered by this appeal, and we turn to consider those which
we deem worthy of discussion.
1. The corporation signed promissory notes secured by second deeds of trust for several of
the loans made by the plaintiffs to it. And, of course, the corporation issued its stock
certificate to the plaintiffs for their investment in the corporate enterprise.
The district court disregarded the corporate entity and imposed individual liability upon
Goldbeck and Piedmont. Whether this was proper first must be determined. [Headnote 1]
[Headnote 1]
[Headnote 1]
The alter ego doctrine may be applied when the corporation is influenced and governed by
the person or persons asserted to be its alter ego; there is such unity of interest and ownership
that one is inseparable from the other; and adherence to the fiction of separate entity would
sanction a fraud or promote injustice. McCleary Cattle Co. v. Sewell, 73 Nev. 279, 317 P.2d
957 (1957); North Arlington Med. v. Sanchez Constr., 86 Nev. 515, 471 P.2d 240 (1970);
Caple v. Raynel Campers, Inc., 90 Nev. 341, 526 P.2d 334 (1974).
[Headnote 2]
With regard to Goldbeck there is substantial evidence to support the trial court's view that
he was the alter ego of the corporation. By way of summary only, it was shown that as
president he governed the corporate enterprise. Legal procedures normally incident to the
operation of a corporation do not appear to have been honored at all. If the directors of the
corporation met to conduct its business affairs, the record does not reveal it. If corporate
minutes were kept and necessary resolutions passed, the record does not show it. Goldbeck
commingled corporate funds with his own. He treated some corporate assets as his own and
manipulated them to suit himself. He appears to have negotiated all of the corporate business,
and truly may be said to have used the corporate shell as a conduit for his individual
enterprise.
[Headnote 3]
The trial court erred, however, in deciding that June Piedmont also was the alter ego of the
corporation. She did not govern the corporate business. Although nominally its
vice-president, secretary and a director, her true function was that of office manager and
secretary to Goldbeck. In that capacity she received money, deposited it, and, with Goldbeck,
signed checks. She sometimes prepared promissory notes and trust deeds upon Goldbeck's
instructions, and furnished information to the accountant. Her position with regard to the
corporation simply does not satisfy the mentioned requisites for the application of the alter
ego doctrine to her. Consequently, she may not be held individually liable to the plaintiffs on
the theory that she was the alter ego of the corporation.
[Headnote 4]
2. The appellants contend that the finding of fraud is not supported by the evidence. Of
course, it was the plaintiffs' burden to support their contention of fraud by clear and
convincing proof. Our task is to examine the evidence in the light of that standard.
of that standard. Clark Sanitation v. Sun Valley Disposal, 87 Nev. 338, 487 P.2d 337 (1971).
If no more than a paucity of evidence exists to support the charge of fraud, we will not
hesitate to reverse. Nevada Mining & Exp. Co. v. Rae, 47 Nev. 182, 223 P. 825 (1924); Clark
Sanitation v. Sun Valley Disposal, supra.
[Headnote 5]
Here again, we must distinguish between the activity and conduct of Goldbeck and
Piedmont, each of whom was found to be liable. The plaintiffs were induced to loan money to
the corporation and invest therein by Goldbeck. It was he who carried on all meaningful
negotiations with the plaintiffs. As already stated, Piedmont's true function was that of an
office manager and secretary to Goldbeck. As to her participation, there exists no more than a
paucity of evidence of fraud, and the judgment entered against her on that basis must be set
aside.
[Headnote 6]
With regard to Goldbeck, however, the evidence of fraud on his part must be considered in
the light of the nature of the transactions involved. Most, but not all of the dealings between
the plaintiffs and Goldbeck concerned discounted loans to the corporation for which the
corporation gave in return promissory notes secured by second deeds of trust. These are listed
in footnote 1 below. The district court would not allow the plaintiffs to submit proof
regarding the financial condition of the corporation at the various times these loans were
made.
____________________

1
1. February 25, 1965Arthur Pease loaned the corporation $6000 and received in return a corporate
promissory note for $8000 with interest at eight percent, secured by a second deed of trust. Principal and interest
payable in monthly installments of $75 or more beginning March 25, 1965, and continuing until paid in full, or
until February 25, 1970.
2. June 9, 1965Arthur Pease loaned the corporation $7500 and received in return two corporate
promissory notes for $5000 each with interest at eight percent, secured by second deeds of trust. Principal and
interest paid in monthly installments of $75 or more beginning July 9, 1965, until June 9, 1970.
3. October 18, 1965Arthur Pease loaned the corporation $4800 and received in return a corporate
paid in monthly installments of $125 or more beginning November 18, 1965, until October 18, 1967.
4. October 25, 1965Dorothy Pease loaned the corporation $3000 and received in return a corporate
paid in monthly installments of $65 or more beginning November 25, 1965, until October 25, 1967.
5. March 16, 1966Arthur and Dorothy Pease loaned the corporation $2100 and received in return a
corporate promissory note for
plaintiffs to submit proof regarding the financial condition of the corporation at the various
times these loans were made. They wished to show that, although Goldbeck represented the
corporation to be financially sound and needed the several amounts loaned only to meet
current operating expenses, the corporation was in fact financially distressed, and unable to
pay judgments and tax liens against it. Such evidence was tendered to support their charge of
fraud on the part of Goldbeck. The court, in disallowing such proof, reasoned that the loans
were made at a discount after the plaintiffs had inspected the property and the security to be
received therefor, and that the several transactions were entered into between businessmen
fully aware of possible consequences.
[Headnotes 7, 8]
By reason of the court's preclusive ruling, evidence of fraud on the part of Goldbeck as to
the transactions listed in footnote 1 is scanty indeed. This, however, is of no moment.
Goldbeck, as the alter ego of the corporation, is personally liable to pay the promissory notes
without regard to fraud. The first trust deeds were foreclosed at a trustee's sale, and the
second deeds of trust held by the plaintiffs were thereby rendered valueless. Cf. McMillan v.
United Mortgage Co., 82 Nev. 117, 412 P.2d 604 (1966). Foreclosure of the first trust deeds
did not extinguish Goldbeck's liability upon the notes secured by the second trust deeds. Sims
v. Grubb, 75 Nev. 173, 178, 336 P.2d 759 (1959).
[Headnotes 9, 10]
It is apparent, however, that the several loans to the corporation called for usurious
interest. Although a permissible interest rate of eight percent per annum was specified in each
instance, the money actually loaned was seventy-five percent of the face amount of the
promissory notes given in return. Consequently, the lenders were to receive, in addition to the
interest specified, twenty-five percent more than the amounts actually loaned. In the
circumstances of this case, such additional sum must be treated as interest, and when so
treated, calls for a rate of return in excess of twelve percent per annum and is usurious.
____________________
$2800 with interest at eight percent, secured by a second deed of trust. Principal and interest paid in monthly
installments of $35 or more beginning April 16, 1966, until March 16, 1969.
6. January 19, 1966Aubrey and Lucille Blake, friends of the plaintiffs, loaned the corporation $2250 and
received in return a corporate promissory note for $3000, purportedly secured by a deed of trust. Principal and
interest paid in monthly installments of $45 or more beginning February 19, 1966, until January 19, 1969. The
Blake have assigned their cause of action on the note to the plaintiffs.
calls for a rate of return in excess of twelve percent per annum and is usurious. NRS 99.050;
Pease v. Taylor, 88 Nev. 287, 496 P.2d 757 (1972). Consequently, no interest is recoverable,
Pease v. Taylor, supra.
With respect to the mentioned promissory notes, the district court gave judgment to the
plaintiffs for the face amount thereof together with interest, less the sums paid thereon. This
was error, and we modify that aspect of the judgment to allow the plaintiffs to recover only
the amounts actually loaned, $25,650, less the amounts paid thereon, which the record shows
to be $3,620.
2

Other transactions between the plaintiffs and Goldbeck also occurred. The trial court found
that the plaintiffs were induced to enter into them by the false representations of Goldbeck.
We allude to them only briefly.
[Headnote 11]
On December 1, 1965, the plaintiffs purchased 2500 shares of the capital stock of the
corporation for $25,000. The record may be read to show that they were induced to do so by
Goldbeck's representations that, while the corporation was financially sound, the money was
needed to assist in obtaining a construction loan for a golf course and would be used for that
purpose. Some of that money was deposited by Goldbeck to his personal account. Within two
months, the holder of the first trust deed on the corporate realty gave notice of breach and of
its election to sell. In another seven months, the corporation filed a petition for reorganization
with the federal court alleging that it was unable to pay its obligations.
[Headnote 12]
On or about May 3, 1966, Goldbeck induced Arthur Pease to loan $2,961.50 to the
corporation upon the representation that Emile and Helen Rabe, who were purchasing a home
from the corporation, would give Pease a promissory note for $3,950, secured by a second
deed of trust. For reasons unnecessary to relate Pease never received the promised note and
trust deed.
____________________

2
Note of February 25, 1965 $6,000.
Notes of June 9, 1965 7,500.
Note of October 18, 1965 4,800.
Note of October 25, 1965 3,000.
Note of March 16, 1966 2,100.
Note of January 19, 1966 2,250.

________

Total loaned: $25,650.
Amount paid: 3,620.

________

Due: $22,030.
relate Pease never received the promised note and trust deed. However, the corporation did
not return the $2,961.50.
The court's finding of fraud with respect to the transactions just mentioned is sustained by
the record.
3. This suit was commenced on September 18, 1970. It is contended that the several
claims for relief asserted are barred by limitations. The contention is without merit.
[Headnotes 13, 14]
Default did not occur on any of the promissory notes mentioned in footnote 1 until May
1966. Consequently, the bar of limitations would not arise until May 1972. NRS 11.190(1)
(b). With respect to the claims resting upon fraud, the record may be read to support the
finding below that fraud was not discovered until 1969. The bar of limitations applicable to
those claims would not arise until 1972. NRS 11.190(3)(d).
[Headnote 15]
4. The lower court awarded attorneys' fees of $15,000. At first blush it would appear that
since the plaintiffs recovered more than $10,000 the award was improper. NRS 18.010. That
statute, however, does not preclude reasonable fees when contractually provided for even
though the recovery may be greater than $10,000. Scott v. Cord, 75 Nev. 179, 336 P.2d 773
(1959).
[Headnote 16]
The promissory notes mentioned in footnote 1 provide for reasonable attorneys' fees, and
such fees may be recovered notwithstanding the fact that the notes call for usurious interest.
Pease v. Taylor, supra, at 295. Since judgment for the plaintiffs with regard to such notes
must be modified (see footnote 2), a reasonable attorney's fee may be fixed with that recovery
in mind, and we remand to the district court for that purpose. The award of $15,000 is
nullified.
5. Other assigned errors have been considered and are without merit.
Accordingly, we: 1. Affirm the judgment for Arthur and Dorothy Pease against Goldbeck
with respect to the $25,000 invested in the corporate enterprise, and also with respect to the
Rabe transaction.
2. Affirm the judgment for Arthur Pease against Goldbeck upon the Wesley Taylor notes
(not heretofore mentioned), since Goldbeck has admitted his liability to Pease thereon.
3. Modify the judgment for the plaintiffs against Goldbeck upon the promissory notes
specified in footnote 1 as indicated herein.
4. Reverse the judgment in favor of the plaintiffs and against June Piedmont.
5. Set aside the award of attorneys' fees in the amount of $15,000 and remand to the
district court to fix a reasonable attorney's fee in accordance with this opinion.
Gunderson, C. J., and Batjer, Zenoff, and Mowbray JJ., concur.
____________
91 Nev. 196, 196 (1975) Riley v. State
RICHARD RALPH RILEY, Appellant, v. THE
No. 7585
March 27, 1975 533 P.2d 456
Appeal from judgment of the Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted before the district court of rape, the infamous crime against
nature, and robbery, and he appealed. The Supreme Court held that evidence supported
conviction, that prosecutor's gratuitous remarks relating to trial judge's rulings, although
unnecessary, did not constitute grounds for reversal, and that, in allowing defendant to
withdraw his plea of guilty to rape charge, trial judge was not required to determine whether
withdrawal was voluntarily and knowingly made.
Affirmed.
Jerry J. Kaufman, of Las Vegas, for Appellant.
H. Simmons, Deputy District Attorney, Clark County, Las Vegas, for Respondent.
1. Rape; Robbery; Sodomy.
Evidence, including defendant's testimony regarding facts surrounding commission of infamous crime
against nature and robbery and his claim that he was unable to consummate rape because of his temporary
impotency, supported defendant's conviction for rape, infamous crime against nature, and robbery.
2. Criminal Law.
Improper argument is assumed to be injurious, but if case is free from doubt, reversal will not result.
3. Criminal Law.
Where record left no doubt as to defendant's guilt, and trial judge properly instructed jury that
they and they alone were sole judges of facts in the case, prosecutor's gratuitous
remarks relating to trial judge's rulings, although unnecessary, did not constitute
grounds for reversal.
91 Nev. 196, 197 (1975) Riley v. State
judge properly instructed jury that they and they alone were sole judges of facts in the case, prosecutor's
gratuitous remarks relating to trial judge's rulings, although unnecessary, did not constitute grounds for
reversal.
4. Criminal Law.
Trial judge, in allowing defendant to withdraw his plea of guilty to rape charge, was not required to
determine whether defendant's withdrawal of plea was voluntarily and knowingly made.
OPINION
Per Curiam:
A jury found appellant, Richard Ralph Riley, guilty of rape, the infamous crime against
nature, and robbery. He seeks reversal of his judgment of conviction on two principal
grounds: 1) Prosecutorial misconduct committed during his trial and 2) the failure of the chief
judge properly to advise Riley of his constitutional rights when the judge granted Riley's
motion to withdraw a guilty plea to the charge of rape that he had previously entered.
[Headnote 1]
1. Riley followed the victim of his crimes in his car as she was driving home after work.
As she left her car, Riley accosted her with a pistol and then ordered her into her vehicle. At
gun point, she drove him to another location, where he had her disrobe. Over the victim's
pleading protests that she was a married woman and had children, Riley at the point of his
gun forced the victim to commit the infamous crime against nature, i.e., oral copulation, for
about five minutes.
Not having fully gratified his lust, Riley then proceeded to rape the woman for about 15
minutes, although, because he was on speed, he was unable to reach a climax. He then
returned the victim's clothes and released her, after taking $60 from her purse.
We have reviewed the record of the proceedings below. The evidence is clear and
convincing beyond a reasonable doubt that Riley committed the crimes of which he was
found guilty. The victim's testimony is corroborated by an officer of the Las Vegas Metro
Police Department who arrested Riley. The arrest was based on the description provided by
the victim of Riley, his vehicle, and the contents thereof.
[Headnote 2]
2. We have reviewed and considered the prosecutorial misconduct of which Riley
complains. For the most part it consists of gratuitous remarks relating to the trial judge's
rulings made during trial and the prosecutor's argument to the jury.
91 Nev. 196, 198 (1975) Riley v. State
during trial and the prosecutor's argument to the jury. While these remarks were unnecessary,
we do not find that they constitute grounds for reversible error. Improper argument is
assumed to be injurious, but if the case is free from doubt, a reversal will not result. Pacheco
v. State, 82 Nev. 172, 414 P.2d 100 (1966).
[Headnote 3]
The record below leaves no doubt as to Riley's guilt. Indeed, Riley testified before the jury
regarding the facts surrounding the commission of the infamous crime against nature and the
robbery, but he claimed that he was unable to consummate the rape because of his temporary
impotency. The evidence pointing to the guilt of Riley was overwhelming. Additionally, the
trial judge properly instructed the jury that they and they alone were the sole judges of the
facts in the case.
1
Therefore, under the posture of this case we do not find the necessary
grounds for reversible error.
[Headnote 4]
3. Riley contends that the chief judge erred in allowing him to withdraw his plea of guilty
to the rape charge. The authorities he cites pertain solely to the entry of a plea of guilty, i.e.,
whether such plea was voluntarily and knowingly made. No similar determination is required
prior to allowing the withdrawal of a guilty plea.
2

Finding no grounds to reverse the jury's verdict of guilty, we affirm Riley's judgment of
conviction.
____________________

1
Also, the prosecutor prefaced his remarks to the jury as follows:
I should forewarn you that what we try to do in this argument is to put the bits and pieces of
testimony into perspective. We try to tell you what our feeling and theory of this particular case is, but I
would like to add this admonition, that what we say at this time is not evidence[;] only what comes from
that chair is evidence and if I should make any misstatement of the testimony, as you recall it during the
time that you listened to it, then disregard what I said. Remember what you yourself have heard. . . .

2
Apparently Riley had entered a plea to the rape charge as a result of plea negotiations. However, when he
was permitted to withdraw that plea the deputy district attorney made the following statement:
For the record I would like to point out at this time that in the event the defendant is allowed to and
chooses to withdraw his plea[,] negotiations have ceased; there will be no more, and we will go to trial on
all charges.
____________
91 Nev. 199, 199 (1975) Roberts v. Farmers Insurance Co.
ANN ROBERTS, Appellant, v. FARMERS INSURANCE
COMPANY, a Foreign Corporation, Respondent.
No. 7563
March 28, 1975 533 P.2d 158
Appeal from judgment of dismissal; Eighth Judicial District Court, Clark County; James
D. Santini, Judge.
Plaintiff brought action for injuries sustained in an automobile collision against the driver
of another car and his insurer. The district court dismissed the action against the insurer, and
plaintiff appealed. The Supreme Court, Thompson, J., held that where the insurer was not
defending the action under a reservation of rights and would pay any judgment entered
against its insured according to the terms of its policy, the plaintiff's right against the insurer
would not mature until she had first recovered a judgment against the insured.
Affirmed.
Foley Brothers and Patrick J. Fitzgibbons, Jr., of Las Vegas, for Appellant.
Austin, Thorndal & Liles, and Virgil R. Gentner, of Las Vegas, for Respondent.
Insurance.
Where automobile liability insurer was not defending action against its insured under reservation of
rights and would pay any judgment entered against insured according to terms of policy, plaintiff's right
of action against insurer would not mature until she had first recovered judgment against insured,
notwithstanding permissive joinder rule allowing one to join as defendants those against whom is asserted
any right to relief arising out of same transaction if any question of law or fact common to all defendants
will arise in action. NRCP 20(a).
OPINION
In this action to recover damages for injuries sustained in an automobile collision, the
plaintiff, Ann Roberts, joined Farmers Insurance Company as a party defendant along with
Henry Bozajian, the driver of the adverse vehicle who was insured by Farmers. The propriety
of such joinder was presented to the district court by Farmers' motion to dismiss. That court
ruled that the insurance company was not a proper party defendant and expressly determined
that there was no just reason to delay entry of final judgment in its favor.
91 Nev. 199, 200 (1975) Roberts v. Farmers Insurance Co.
and expressly determined that there was no just reason to delay entry of final judgment in its
favor. Rule 54(b). This appeal followed.
1. Relying upon the Florida decision of Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969),
the appellant claims to be a third-party creditor beneficiary of the insurance policy issued by
Farmers to Bozajian and thus entitled to maintain a direct action against the insurer.
In this particular case the insurer has represented that it is not defending under a
reservation of rights and will pay any judgment entered against its insured according to the
terms of its policy. Although the insurance policy is not contained in the scanty record before
us, we note that the plaintiff-appellant has alleged only that Farmers issued a policy of
liability insurance to Bozajian and agreed to pay all sums which the insured shall become
legally obligated to pay as damages. Thus, it appears from the face of the complaint that the
plaintiff's right against Farmers will not mature until she first has recovered a judgment
against the insured Bozajian.
In these circumstances we need not decide whether the appellant is a third-party
beneficiary of the insurance contract since it is apparent that there exists no breach, actual or
anticipatory, of the insurer's contractual obligations.
2. It is true that our permissive joinder rule, NRCP 20(a), does allow one to join as
defendants those against whom is asserted any right to relief arising out of the same
transaction and if any question of law or fact common to all defendants will arise in the
action. That rule, however, does not embrace this case since a final judgment against the
insured is a precondition to the plaintiff's right to relief against Farmers. Allen v. Pomroy, 277
A.2d 727 (Me. 1971).
3. We perceive no merit to other arguments tendered by the appellant and dismiss them
out-of-hand.
Affirmed.
Gunderson, C. J., and Batjer, Zenoff, and Mowbray, JJ. concur.
____________
91 Nev. 201, 201 (1975) Nevada Escrow Service, Inc. v. Crockett
NEVADA ESCROW SERVICE, INC., and LAWYERS TITLE OF LAS VEGAS, INC.,
Appellants, v. GEORGE CROCKETT and MARGARET CROCKETT, WEED L.
PETERSON, ACRO MORTGAGE COMPANY, a Nevada Corporation, and NEVADA
SOUTHERN TITLE, INC., a Nevada Corporation, Respondents.
No. 7641
March 28, 1975 533 P.2d 471
Appeal from order denying motion for preliminary injunction and vacating temporary
restraining order. Eighth Judicial District Court, Clark County; James D. Santini, Judge.
The district court refused a preliminary injunction to restrain foreclosure of deeds of trust
covering certain realty. The plaintiffs appealed. The Supreme Court held that under evidence
bearing on the issue whether a bankrupt mortgage company which received payment of the
loan secured by the trust deeds was an agent of the trust deed beneficiaries, there was a prima
facie showing of possible agency, and such was sufficient to warrant preliminary injunction
against foreclosure. The equitable remedy of injunction against foreclosure was so far
superior that the legal remedy of damages could be rendered inadequate.
Brown & Deaner, of Las Vegas, for Appellants.
Cromer, Barker & Michaelson, of Las Vegas, for Respondents Crocketts.
Goodman, Snyder & Gang, of Las Vegas, for Respondent Nevada Southern Title, Inc.
1. Mortgages; Principal and Agent.
Under evidence bearing on issue whether bankrupt mortgage company which received payment of loan
secured by trust deeds was agent of trust deed beneficiaries, there was prima facie showing of possible
agency, and such was sufficient to warrant preliminary injunction against foreclosure.
2. Mortgages.
Equitable remedy of injunction against foreclosure of trust deeds was so far superior that legal
remedy of damages could be rendered inadequate, for purposes of preliminary
injunction.
deeds was so far superior that legal remedy of damages could be rendered inadequate, for purposes of
preliminary injunction.
OPINION
Per Curiam:
This appeal at this juncture concerns only the propriety of the refusal of the trial court to
issue a preliminary injunction restraining the foreclosure of two deeds of trust covering
certain realty in Clark County.
John McNamee, a Las Vegas lawyer, was the buyer for undisclosed principals of property
from Security Land & Investment Co., the seller. At the time of the escrow concerning the
sale two notes secured by the two deeds of trust covered the property, the beneficiaries being
George and Margaret Crockett. The debtor was Ray Petitfils. The notes were in the principal
sum of $51,000.00 plus interest at 12%. The buyers were to pay off the existing indebtedness
of the Crocketts.
The appellants, as escrow agents, wrote Acro Mortgage for the payoff on the Crockett
loan. Acro had negotiated the loan from the Crocketts on behalf of Petitfils and appellant
alleges was acting as collecting agent for the loan, no payment on which had been made.
Upon receipt of information from Acro that $52,955.00 was the payoff figure, Nevada
Escrow Service, Inc., issued its draft in that amount payable to Acro and transmitted it to
Acro. Acro deposited the check into its own account. At the time of these events Acro was in
bankruptcy.
The Crocketts not receiving payment as prescribed commenced foreclosure of the two
deeds of trust. These appellants seek a preliminary injunction to halt those proceedings. The
trial court denied the preliminary injunction on the ground that there existed an adequate
remedy at law, to wit, money damages. Appellants appeal asserting trial court abuse of
discretion for refusal to grant the injunction, and further, that the refusal will result in a
multiplicity of lawsuits.
[Headnotes 1, 2]
1. As to whether a preliminary injunction should be granted or refused is a question
addressed to the discretion of the district court. Berryman v. Int'l Bhd. Elec. Workers, 82 Nev.
277, 280, 416 P.2d 387 (1966); see also Coronet Homes, Inc. v. Mylan, 84 Nev. 435, 442
P.2d 901 (1968).
It is unusual when this court will overturn the determination of the trial court in the
matter of a preliminary injunction but in this instance we feel compelled to do so.
of the trial court in the matter of a preliminary injunction but in this instance we feel
compelled to do so. The central issue probably will be whether or not Acro was the agent of
the Crocketts. For the purpose of a preliminary injunction to halt a threatened foreclosure on
the property that is the subject of the proposed purchase and about which the litigation arose a
prima facie showing of possible agency of Acro to the Crocketts need only be shown. What
the total factual pattern is, of course, is left to be developed at the trial. From the record we
note that Crockett executed a document appointing Acro Mortgage Company their collection
representatives for the promissory note when the payments would come in from Petitfils. That
fact is undisputed. Further, when the trust deeds were recorded there appears on the face
thereof that they were to be returned to Mr. and Mrs. George Crockett, c/o Acro Mortgage
Company. Taking into consideration the several principles of law that probably will be
involved by the time this matter is finally resolved it is the opinion of this court that the
preliminary injunction enjoining the foreclosure on the deeds of trust should issue. In this
instance the equitable remedy is so far superior that the legal remedy may be rendered
inadequate. Czipott v. Fleigh, 87 Nev. 496, 499, 489 P.2d 681, 683 (1971).
It is therefore ordered that the denial thereof by the trial court is reversed and this matter is
remanded for the necessary proceedings to give effect hereto.
____________
91 Nev. 203, 203 (1975) Nollner v. Thomas
E. T. NOLLNER and LILA V. NOLLNER, Appellants,
v. FLOYD A. THOMAS, Respondent.
No. 7145
March 28, 1975 533 P.2d 478
Appeal from a judgment granting respondent a real estate commission fee, Eighth Judicial
District Court, Clark County; James D. Santini, Judge.
Action was brought by broker against vendor to recover commission on sale of real
property by vendor to ultimate purchaser after expiration of listing agreement and the 60-day
grace period thereafter. The district court entered a judgment for the broker and the vendors
appealed. The Supreme Court, Batjer, J., held that there was no evidence of fraud or bad faith
on part of vendors and where agreement made commission dependent on fact that broker
would sell property in accordance with terms thereof broker was not entitled to
commission.
faith on part of vendors and where agreement made commission dependent on fact that broker
would sell property in accordance with terms thereof broker was not entitled to commission.
Reversed.
David C. Polley, of Las Vegas, for Appellants.
Deaner & Deaner, of Las Vegas, for Respondent.
1. Brokers.
Evidence in broker's action to recover commission on sale of real estate to purchaser introduced to
vendors during term of original listing contract but who purchased property as result of a three-way trade
negotiated after the expiration of the 60-day grace period following expiration of listing agreement failed to
show any bad faith or fraud on part of vendor in transaction which could not be consummated until the
purchaser was able to dispose of their home which vendors could not use and did not want, notwithstanding
that vendor stated during grace period that he might take the property off the market and listed property
with another broker for a greater sale price.
2. Brokers.
Where open listing agreement did not make commission dependent upon broker being the procuring
cause but on the fact that he would sell the property in accordance with terms of agreement within the
180-day period or the 60-day grace period thereafter, broker who did not sell property within period of
agreement or the grace period was not entitled to commission although property was eventually sold
without any fraud or bad faith by vendor, to ultimate purchaser who was introduced by broker to vendors
during listing period.
3. Brokers.
Broker employed for definite period of time to effect sale of property must negotiate sale within time
fixed to be entitled to his commission.
OPINION
The appellants were the owners of real property known as the Hitchin' Post Motel
located in Clark County, Nevada. On September 4, 1969 they engaged the respondent, a
licensed real estate broker, to assist them in the sale of that property and executed a
non-exclusive listing agreement for a period of one hundred eighty (180) days, with a grace
period of sixty (60) days. If a sale had been made during the grace period to anyone with
whom respondent had negotiated during the original term, a commission would be paid.
During the 180 days respondent introduced the ultimate buyer, James D. Childress, to the
appellants, and exhibited the real property to him. During the original term respondent also
had inserted advertisements concerning the real property in the local newspapers.
The listing agreement expired on March 4, 1970, and up to that time no written offers of
purchase were submitted by respondent to the appellants. On March 10, 1970, and again on
March 13, 1970, the respondent, on behalf of Childress, tendered written purchase offers to
appellants. Both offers were rejected. On March 29, 1970, appellant, E. T. Nollner, and
respondent met to discuss the terms upon which appellants would sell, and at this meeting
Nollner agreed to reduce the asking price by $5,000 to $170,000, and suggested that
respondent agree to reduce his commission by a commensurate amount. Respondent refused.
Respondent contacted appellants on April 4, 1970, and again on April 7, 1970, regarding
the sale of the property. On April 7, 1970, Nollner, in a conversation with respondent,
indicated that he was considering taking the property completely off the market. On that same
date Nollner made application to change the zoning on the property to accommodate an
overnight campground. Such zoning had been an integral factor in both of the written offers
made by respondent on behalf of Childress. Respondent indicated that he may have had some
contact with appellants and Childress concerning the property after April 7, 1970, but his
testimony is very vague and indefinite. The 60-day grace period expired on May 5, 1970.
After July 1, 1970, Childress directly contacted appellants concerning the possibility of a
three-way trade involving the Hitchin' Post, the Childress residence, and the residence of
Lester and Elizabeth Simmons. Prior to that time the negotiations had become stagnant
because appellants could not use and did not want the Childress two-story home which
Childress needed to dispose of so he could move to the Hitchin' Post. An escrow was opened
on July 16, 1970, and the entire three-way transaction was concluded on July 31, 1970.
Upon learning of the transaction, respondent made a demand for a commission which was
rejected by appellants, and suit was brought. After a trial before the court, without a jury,
respondent was awarded a judgment in the amount of $9,756, from which this appeal is
taken.
Appellants contend that the trial court erred as a matter of law in its interpretation of the
listing agreement, as well as in its conclusion that respondent was the procuring cause, and
that appellant acted in bad faith in consummating the sale with Childress.
appellant acted in bad faith in consummating the sale with Childress.
The trial court seems to base its finding of appellants' bad faith upon the fact that Nollner
(1) had listed the property for sale for $200,000 with other brokers; (2) had applied to have
the zoning of the property changed from H-2 (highway frontage) and R-E (residence estates)
to T-C (mobile home park); and (3) had told respondent that, I'm seriously considering
taking the property off the market altogether.
The threat of Nollner to take the property off the market altogether, or words to that
effect, upon which the trial court finds bad faith, was meaningless to this transaction. Such
a statement, made on April 7, 1970, could not possibly have prejudiced respondent and
amounted to bad faith against him, because during the grace period respondent had a
continuing right, regardless of appellants' actions or intentions, to sell the property upon the
terms of the original agreement to anyone to whom he had shown the property during the
original six (6) months. On the other hand, since respondent had no right during the grace
period to show the property to or negotiate with new prospects, he therefore had no interest or
right in having the property remain on the market. The fact that appellants listed the Hitchin'
Post Motel property with another broker on February 16, 1970, at a price of $200,000 was
not significant and certainly not prejudicial to respondent. He did not have an exclusive
listing, and the higher price could have only enhanced his chances to sell it for $175,000, and
upon the terms of his listing agreement. The listings on June 7, 1970 and July 1, 1970 at a
price of $200,000 were executed at a time well beyond respondent's grace period and could
not be considered prejudicial to him. Appellants' proceeding to obtain a change of zoning to
the classification of mobile home park during the grace period could do nothing but
improve respondent's chances to procure a sale with Childress or anyone else with whom he
might have acquainted the property during the original six months. It did nothing to detract
from the value or salability of the property.
[Headnote 1]
This record reveals no substantial evidence whatever of bad faith relevant to the pertinent
aspects of these transactions. For respondent to receive a commission under the open listing
agreement in the absence of fraud or bad faith on the part of the seller, it was necessary for
him to have shown the property to Childress and then to have produced Childress as a ready,
able and willing buyer upon the price, terms and conditions in the listing agreement on or
before May 5, 1970, the last day of the sixty {60) day grace period.
the listing agreement on or before May 5, 1970, the last day of the sixty (60) day grace period.
It clearly appears that neither Childress nor any other prospective purchaser who had been
introduced to the property during the term of the original listing contract was produced by
respondent within the prescribed period. The record indicates that the Childresses were not
ready to purchase the Hitchin' Post property until they were able to dispose of their home,
which appellants could not use and did not want. It wasn't until after July 1, 1970, when a
three-way trade was worked out with Lester and Elizabeth Simmons, that the sale was
consummated.
[Headnote 2]
Here the action is based on a listing agreement.
1
The right of the respondent to
compensation must be governed by that agreement. It did not make the broker's commission
dependent upon the respondent being the procuring cause but upon the fact that he would
sell the property in accordance with the terms of the agreement. To avoid disputes the parties
fixed the conditions upon which a commission would be payable and agreed upon the
provision for payment if a sale was made in accordance with the contract terms. Its terms are
clear and unambiguous. When the trial court concluded that the respondent was nevertheless
the procuring cause it limited the meaning of the words of the agreement and read into it a
clause or condition which does not exist. See Nichols v. Pendley, 331 S.W.2d 673 (Mo.App.
1960). Cf. Frederick A. Schmidt, Inc. v. Brock, 127 N.E.2d 219 (Ohio App. 1953); Neigut v.
McFadden, 278 S.W.2d 218 (Tex.App. 1955).
[Headnote 3]
A broker employed for a definite period of time to effect a sale of property must
negotiate the sale within the time fixed to be entitled to his commission.
____________________

1
The listing agreement executed by the parties on September 4, 1969, reads in pertinent part:
OPEN LISTING: In consideration of the services of the broker, the owner lists with the broker for a
period of 180 days from date hereof the property described above and grants to the broker the right to sell
the same within said time in accordance with terms set out above and to accept a deposit thereon subject
to prior sale.
In case of sale or exchange being made by such broker or through such broker's effort, the owner
agrees to pay broker as commission six percent of the selling price obtained.
The owner will immediately notify agent in writing of withdrawal of the property from the market or
change of terms of sale.
In case a sale is made within sixty (60) days after termination of this listing to parties with whom
said broker negotiated during its life and said broker notifies me personally or by mail, in writing, I agree
to pay said broker the commission herein provided.
sale of property must negotiate the sale within the time fixed to be entitled to his commission.
Brackett v. Schafer, 252 P.2d 294 (Wash. 1953). Even assuming that the written contract did
not preclude suit on an implied contract, there is still no basis upon which to support the
judgment in this case, which would of necessity rest on the dealings between respondent,
appellant and Childress subsequent to May 5, 1970, the last day on which the listing
agreement controlled. There is no evidence in the record of any communication between
respondent and appellants or respondent and Childress between May 5, 1970 and the date of
the sale. Cf. Smart & Golee, Inc. v. Delany, 213 N.E.2d 27 (Ill.App. 1965).
Respondent and the trial court both rely heavily upon Humphrey v. Knobel, 78 Nev. 137,
369 P.2d 872 (1962). We find that case to be inapposite. There the property was sold upon
exactly the same terms and for the same price as those originally made by Larson through
Humphrey to Knobel 14 days after an exclusive listing had expired. In Humphrey there was
no grace period in the listing agreement and this court held that a broker is entitled to a
commission if the transaction is closed by the owner directly with the buyer within a
reasonable time after the expiration of the contract in the absence of fraud or bad faith.
Here the 60-day grace period was intended to protect the respondent's efforts to sell the
property. After the expiration of the original term of 180 days, the appellants were free to sell
their property to anyone except those introduced to the property by respondent during that
term. After the 60-day grace period expired appellants were free to sell the property to anyone
without owing a commission to respondent.
The judgment of the district court is reversed, with instructions to enter judgment for the
appellants.
____________
91 Nev. 209, 209 (1975) Crescent v. White
RALPH J. CRESCENT, Appellant, v. GILL WHITE, Also Known as GARLAND WHITE,
and DOROTHY E. WHITE, Also Known as DOROTHY E. NORD, Respondents.
No. 7219
March 28, 1975 533 P.2d 159
Appeal from a judgment dismissing complaint against respondent Dorothy E. White, First
Judicial District Court, Churchill County; Richard L. Waters, Jr., Judge.
Action was brought against husband and wife to set aside, as a fraudulent conveyance, a
certain deed executed by the husband to the wife. After remand, Crescent v. White, 88 Nev.
71, 493 P.2d 1323 (1972), the district court entered a judgment dismissing the complaint
against the defendant wife. The plaintiff appealed. The Supreme Court held that where the
express determination that there was no just reason for delay was neither requested nor made,
the judgment dismissing the complaint was not appealable since it did not adjudicate all the
claims between the parties.
Appeal dismissed.
Stokes & Eck, Ltd., and F. Thomas Eck, Carson City, for Appellant.
Diehl, Recanzone, Evans & Smart and Mario G. Recanzone, of Fallon, for Respondent,
Dorothy E. White.
A judgment or order that fails to adjudicate all the claims and the rights and liabilities of the parties is not
appealable, absent an express determination that there is no just reason for delay. NRCP 54(b).
Where express determination that there was no just reason for delay was neither requested nor made,
order which dismissed complaint against defendant wife in suit against husband and wife to set aside, as a
fraudulent conveyance, a certain deed executed by the husband to the wife was not appealable since it did
not adjudicate all the claims between the parties. NRS 112.050; NRCP 41(b), 54(b).
OPINION
Per Curiam:
Appellant commenced this action to set aside, as a fraudulent conveyance under NRS
112.050, a certain deed executed by respondent Gill White to his wife, Dorothy E. White. The
district court, pursuant to NRCP 41{b), dismissed the complaint against Dorothy E.
91 Nev. 209, 210 (1975) Crescent v. White
district court, pursuant to NRCP 41(b), dismissed the complaint against Dorothy E. White.
Appellant, contending the district court erred, asks us to reverse.
We do not reach the merits, if any, of the issues raised in the appeal. During oral argument
the court, sua sponte, raised the question of appealability of the judgment, because of
appellant's failure to comply with the requirement of NRCP 54(b).
1

[Headnotes 1, 2]
This court has repeatedly held that a judgment or order that fails to adjudicate all the
claims and the rights and liabilities of the parties is not appealable, absent the express
determination that there is no just reason for delay, as required by NRCP 54(b). See, for
example, First Western Savings v. Steinberg & Clemens, 89 Nev. 582, 517 P.2d 793 (1973);
King v. Baskin, 89 Nev. 290, 511 P.2d 115 (1973); Monsour v. Haddad, 87 Nev. 448, 488
P.2d 916 (1971). The express determination was neither requested nor made in this case;
therefore, the judgment dismissing the complaint against Dorothy White is not appealable.
Accordingly, we
ORDER this appeal dismissed, without prejudice to the rights of the parties after a final
judgment is entered in the trial court. Cf. Illinois Tool Works, Inc. v. Brunsing, 378 F.2d 234
(9th Cir. 1967)
2

____________________

1
NRCP 54(b) reads in part: When more than one claim for relief is presented . . . or when multiple parties
are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims
or parties only upon an express determination that there is no just reason for delay and upon an express direction
for the entry of judgment. In the absence of such determination and direction, any order . . . which adjudicates
fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action . . .
and the order . . . is subject to revision at any time before the entry of judgment adjudicating all the claims and
the rights and liabilities of all the parties.

2
The Governor, pursuant to Article VI, 4 of the Constitution, designated District Judge J. Charles
Thompson to participate in this case in lieu of Mr. Justice Batjer, who voluntarily disqualified.
____________
91 Nev. 211, 211 (1975) Greenspun v. District Court
HERMAN M. GREENSPUN and BARBARA J. GREENSPUN, His Wife, Petitioners, v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND
FOR THE COUNTY OF CLARK, THE HONORABLE JOSEPH O. McDANIEL, Judge
Thereof, and SUMMA CORPORATION, a Delaware Corporation, Respondents.
No. 8103
March 28, 1975 533 P.2d 482
Original proceedings for writ of mandamus to the Eighth Judicial District Court, Clark
Original proceedings were instituted for writ of mandamus to district court to compel grant
of certain claimed discovery rights. The Supreme Court, Gunderson, C. J., held that
mandamus would not issue to compel judge to order oral deposition thereby preempting
judge's function and deciding that oral deposition should precede deposing witness through
written interrogatories.
Petition dismissed without prejudice.
Breen, Young, Whitehead & Hoy, Reno; Ralph Denton and Brian Greenspun, Las Vegas,
for Petitioners.
Lionel Sawyer Collins & Wartman, Las Vegas; Cromer, Barker & Michaelson, Las Vegas;
and Vaughan, Hull, Marfisi, Giocoechea & Miller, Elko, for Respondents.
1. Discovery.
Mere personal idiosyncracies of one litigant, or of litigant's managing agent, would be no justification to
deny another litigant full and fair discovery. NRS 34.160; NRCP 30, 31.
2. Mandamus.
Mandamus would not issue to compel judge to order oral deposition thereby preempting judge's function
and deciding that oral deposition should precede deposing witness through written interrogatories. NRS
34.160; NRCP 30, 31, 33, 33(a).
3. Depositions.
A judge may take a witness' foibles or peculiarities in account in establishing a deposition setting free
from annoyance. NRCP 26.
Even if an oral deposition ultimately should be ordered so that witness' written responses to
interrogatories could be probed more searchingly, only on a clear showing of abuse would Supreme Court
consider reviewing trial judge's determination of terms and conditions, including a designation of time or
place, and of persons permitted to be present. NRCP 26(c)(2),(5).
5. Depositions.
On motion for deposition upon written interrogatories, rule of civil procedure which governs persons
before whom depositions may be taken is applicable. NRCP 28(c),31.
6. Action.
Extraordinary remedies are reserved for really extraordinary cases. NRS 34.170.
OPINION
In these original proceedings, the Greenspuns assert the respondent court and judge have
precluded them from discovery rights established by the Nevada Rules of Civil Procedure.
1
Alleging lack of another plain, speedy and adequate remedy, NRS 34.170, the Greenspuns
seek mandamus, the extraordinary writ granted to compel the performance of an act which
the law especially enjoins as a duty resulting from an office, trust or station; or to compel the
admission of a party to the use and enjoyment of a right or office to which he is entitled and
from which he is unlawfully precluded by such inferior tribunal, corporation, board or
person. NRS 34.160; cf. Holloway v. Barrett, 87 Nev. 385, 487 P.2d 501 (1971); Dzack v.
Marshall, 80 Nev. 345, 393 P.2d 610 (1964). Deeming mandamus unwarranted, at least at
present, we dismiss the Greenspuns' petition without prejudice to further proceedings in the
respondent court.
In January, 1972, the Greenspuns filed an action for slander of title in the Eighth Judicial
District Court, against Summa Corporation and others. Summa answered and counterclaimed
against the Greenspuns. By agreement of the parties, the Honorable Joseph O. McDaniel, of
the Fourth Judicial District, became presiding judge for the matter. From the outset, the
Greenspuns sought to take an oral deposition from Howard R. Hughes as Summa's managing
agent. See: NRCP 30. However, Judge McDaniel has not as yet permitted this, but instead has
ordered that the Greenspuns may attempt to elicit desired information from Hughes through a
deposition on written interrogatories. See: NRCP 31. On November 15, 1974, Judge
McDaniel entered an Order for Taking Deposition of Howard R. Hughes as Managing Agent
of Summa Corporation on Written Interrogatories and Denying Motion for Sanctions,"
providing in material part:
____________________

1
The Nevada Rules of Civil Procedure (NRCP) are patterned after and in large part follow the Federal Rules
of Civil Procedure.
Corporation on Written Interrogatories and Denying Motion for Sanctions, providing in
material part:
IT IS FURTHER ORDERED that the deposition of Howard R. Hughes, as
managing agent for the Defendant Summa in connection with the transactions involved
in this litigation, be taken by Written Interrogatories.
2

The controversy now before us concerns this order, and subsequent events.
For reasons we could but conjecture, the Greenspuns' counsel have not yet undertaken to
depose Hughes on written interrogatories, as Judge McDaniel authorized.
3
Instead, on
January 29, 1975, the Greenspuns' counsel served written interrogatories upon Summa's
counsel, apparently invoking the discovery process established by NRCP 33.4 On February
2S, the last permissible day under NRCP 33{a), Summa filed objections to interrogatories
signed by counsel, and answers signed not by Hughes but by Howard M.
____________________

2
Additionally, Judge McDaniel's order of November 15 set the action for trial without a jury to commence
March 3, 1975, at 10:00 a.m.

3
RULE 31. DEPOSITIONS UPON WRITTEN QUESTIONS
(a) Serving Questions; Notice. After commencement of the action, any party may take the testimony of any
person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled
by the use of subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only
by leave of court on such terms as the court prescribes.
(1) A party desiring to take a deposition upon written questions shall serve them upon every other party
with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is
not known, a general description sufficient to identify him or the particular class or group to which he belongs,
and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A
deposition upon written questions may be taken of a public or private corporation or a partnership or association
or governmental agency in accordance with the provisions of Rule 30(b)(6).
(2) Within 30 days after the notice and written questions are served, a party may serve cross questions
upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect
questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve
recross questions upon all other parties. The court may for cause shown enlarge or shorten the time.
(b) Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served
shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed
promptly, in the manner provided by Rule 30(c), (e) and (f), to take the testimony of the witness in response to
the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and
the questions received by him.
(c) Notice of Filing. When the deposition is filed the party taking it shall promptly give notice thereof to all
other parties.
interrogatories upon Summa's counsel, apparently invoking the discovery process established
by NRCP 33.
4
On February 28, the last permissible day under NRCP 33(a), Summa filed
objections to interrogatories signed by counsel, and answers signed not by Hughes but by
Howard M. Jaffe, Summa's Secretary.
Since the Greenspuns' counsel were served by mail, they apparently still had not seen
copies of Summa's answers on March 3 when trial was scheduled to begin. Dispute then arose
concerning sufficiency of the answers and how they should be executed.
____________________

4
RULE 33 INTERROGATORIES TO PARTIES
(a) Availability; Procedures for Use. Any party may serve upon any other party written interrogatories to be
answered by the party served or, if the party served is a public or private corporation or a partnership or
association or governmental agency, by any officer or agent, who shall furnish such information as is available to
the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the
action and upon any other party with or after service of the summons and complaint upon that party.
Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in
which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the
person making them, and the objections signed by the attorney making them. The party upon whom the
interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the
service of the interrogatories, except that a defendant may serve answers or objections within 45 days after
service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The
party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or
other failure to answer an interrogatory.
(b) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule
26(b), and the answers may be used to the extent permitted by the rules of evidence.
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the
interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court
may order that such an interrogatory need not be answered until after designated discovery has been completed
or until a pretrial conference or other later time.
(c) Option to Produce Business Records. Where the answer to an interrogatory may be derived or
ascertained from the business records of the party upon whom the interrogatory has been served or from an
examination, audit or inspection of such business records, or from a compilation, abstract or summary based
thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the
interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from
which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable
opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries.
should be executed. In our view, detailed exposition of the dispute's chronology is
unnecessary; the Greenspuns may well share responsibility for its occurrence, and possibly
were improvident in accepting a trial date with discovery yet incomplete; still, we see nothing
sufficient to justify foreclosing an area of inquiry heretofore determined appropriate. We
reject any such contention, and adopt other grounds for dismissing the Greenspuns' petition,
which asks us to compel the respondent court and judge to (1) order Howard R. Hughes to
personally appear for his deposition, (2) to Compel Judge McDaniel to order Howard R.
Hughes to sign his Answers to Interrogatories in the presence of a person appointed by
plaintiffs, or (3) to compel Howard R. Hughes to provide Answers to Interrogatories in the
form as required by Nevada law.
1. In his order, Judge McDaniel determined Hughes to be Summa's managing agent.
(While Summa's counsel suggest this was error, we deem such contention insubstantial.)
Judge McDaniel also determined Hughes, as Summa's managing agent, had personal
knowledge of and involvement in events bearing directly upon ultimate issues in the action
before him. In these circumstances, Judge McDaniel apparently recognized that the
Greenspuns are entitled to discover from Summa, through its agent Hughes, both evidence
and information reasonably calculated to lead to the discovery of admissible evidence.
NRCP 26(b)(1). Moreover, in requiring the Greenspuns to depose Hughes through written
interrogatories, Judge McDaniel preserved intact the Greenspuns' right to seek an oral
deposition later, if dissatisfied with information thus obtained.
5
Therefore, Judge McDaniel's
November 15 order favored the Greenspuns and precluded them nothing, although language
therein suggests Summa may be entitled to some consideration because of Hughes' reclusive
lifestyle.
[Headnote 1]
We agree with the Greenspuns that mere personal idiosyncracies of one litigant, or of the
litigant's managing agent, would be no justification whatever to deny another litigant full and
fair discovery.
6
We would naturally be concerned if, solely because of a witness's
predilection for privacy, a judge permitted only a deposition on written interrogatories
even though it came to appear an oral deposition might better elicit the truth.
____________________

5
Said order expressly recited: If, upon receiving the Answers, it appears that the witness' answers are
evasive or incomplete, upon a proper Motion the Court would consider the necessity of an Order for oral
examination.

6
You must know that all subjects, without distinction of degrees, owe to the king tribute and service, not
only of their deed and hand, but of their knowledge and discovery. If there be anything that imports the
because of a witness's predilection for privacy, a judge permitted only a deposition on written
interrogatories even though it came to appear an oral deposition might better elicit the truth.
[Headnote 2]
However, that is not the state of the record, and we will not assume that Judge McDaniel
will finally preclude an oral deposition, if it appears one could have value after the
Greenspuns have diligently employed the avenue of discovery Judge McDaniel initially
afforded. We cannot preempt Judge McDaniel's function by mandamus, and decide before the
question is ever presented to him, that an oral deposition should necessarily be ordered
forthwith in light of events and Summa's performance subsequent to the order of November
15.
[Headnotes 3, 4]
Moreover, while perhaps personal idiosyncracies short of incapacitating mental illness
have little bearing on whether it is oppressive to require oral testimony about voluntary
business activities, still we think a judge may take a witness's foibles or peculiarities into
account in establishing a deposition setting free from annoyance.
7
Not only does equal
justice require that the defending party's convenience be considered, but presumably the
search for truth will be advanced rather than injured, if a deposition environment
compatible with the witness's concentration and comfort is structured.
____________________
king's service, they ought themselves undemanded to impart it; much more, if they be called and examined,
whether it be of their own fact or of another's, they ought to make direct answer. Sir Francis Bacon, in the
Countess of Shrewbury's Trial, 2 How. St. Tr. 769, 778 (1612).
For more than three centuries it has now been recognized as a fundamental maxim that the public (in the
words sanctioned by Lord Hardwicke) has a right to every man's evidence. 8 Wigmore, Evidence (McNaughton
rev. 1961) 2192.

7
NRCP 26 contains the following provision concerning protective orders:
(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for
good cause shown, the court in which the action is pending may make any order which justice requires to protect
a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or
more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified
terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a
method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be
inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted
with no one present except persons designated by the court; (6) that a deposition after being sealed be opened
only by order of the court; (7) that a trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file
specified documents
justice require that the defending party's convenience be considered, but presumably the
search for truth will be advanced rather than injured, if a deposition environment compatible
with the witness's concentration and comfort is structured. Thus, assuming an oral deposition
ultimately should be ordered so that Hughes' written responses may be probed more
searchingly, only on a clear showing of abuse would we consider reviewing Judge McDaniel's
determination of the terms and conditions, including a designation of the time or place,
NRCP 26(c)(2), and of the persons permitted to be present, NRCP 26(c)(5). Judge McDaniel
should be allowed to consider these matters in the first instance, if and when a proper
occasion to do so arrives.
2. On Summa's motion, Judge McDaniel ordered that Hughes' oath regarding his answers
to the Greenspuns' interrogatories might be accepted by certain aides or employees. The
Greenspuns contend such aides or employees are disqualified to accept an oath concerning
interrogatories under NRCP 33, just as they would be to administer an oath and take a
deposition under NRCP 30 or 31. We need not decide whether this is so.
[Headnote 5]
If the Greenspuns desire Hughes to answer questions under an oath administered according
to NRCP 28, they have a speedy remedy to achieve this. Judge McDaniel has already
authorized a deposition upon written interrogatories; hence, if the Greenspuns' counsel would
but proceed under NRCP 31, then NRCP 28(c) would clearly be applicable.
8

[Headnote 6]
As Summa's counsel correctly urges, extraordinary remedies are reserved for really
extraordinary causes. Ex Parte Fahey, 332 U.S. 258, 260 (1947). We find no such occasion
for intervention here.9 Accordingly, the Greenspuns' petition is dismissed without
prejudice; the stay order hereinbefore entered is dissolved; the district court may in
orderly and deliberate fashion resolve remaining issues and problems concerning
discovery, and thereupon resume trial.
____________________
or information enclosed in sealed envelopes to be opened as directed by the court.
If the motion for a protective order is denied in whole or in part, the court may, on such terms and
conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule
37(a)(4) apply to the award of expenses incurred in relation to the motion.

8
NRCP 28, which governs the persons before whom depositions may be taken, provides in most material
part:
(c) Disqualification for interest. No deposition shall be taken before a person who is a relative or employee
or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is
financially interested in the action.
intervention here.
9
Accordingly, the Greenspuns' petition is dismissed without prejudice; the
stay order hereinbefore entered is dissolved; the district court may in orderly and deliberate
fashion resolve remaining issues and problems concerning discovery, and thereupon resume
trial.
____________________

9
When issuing our alternative writ, we anticipated a potentially extraordinary central issue which the record
simply does not now present, concerning a telecopied facsimile of Hughes' signature.
____________
91 Nev. 218, 218 (1975) Fox v. Cusick
GARY MICHEL FOX, Appellant, v. EDWARD J. CUSICK and
PHENAMAYE CUSICK, Respondents.
No. 7274
March 28, 1975 533 P.2d 466
Appeal from order granting a new trial; Eighth Judicial District Court, Clark County;
William P. Compton, Judge.
Preceding motorist and his passenger brought action against following motorist for
personal injuries sustained when following motorist's automobile struck their automobile
from the rear.
The district court, after a jury returned its verdict for the following motorist, granted a new
trial on ground that the verdict was against the weight of the evidence. The following motorist
appealed. The Supreme Court, Thompson, J., held that the grant of a new trial was improper
where the court was wholly unable to declare that had the jurors properly applied the
instructions of the court it would have been impossible for them to reach the verdict which
they reached and that the evidence created questions for the jury concerning whether the
following motorist proximately caused the collision and whether the preceding motorist and
his passenger sustained personal injuries as a result of the collision.
Reversed.
Paul C. Parraguirre, of Las Vegas, for Appellant.
Wiener, Goldwater and Galatz, and J. Charles Thompson, of Las Vegas, for Respondents.
1. New Trial.
Even before rule of civil procedure relating to new trial was amended so as to eliminate as a
ground for new trial "insufficiency of the evidence to justify the verdict," the trial
court was obliged to use great caution in the exercise of its power to set aside a jury
verdict upon that ground.
91 Nev. 218, 219 (1975) Fox v. Cusick
amended so as to eliminate as a ground for new trial insufficiency of the evidence to justify the verdict,
the trial court was obliged to use great caution in the exercise of its power to set aside a jury verdict upon
that ground. NRCP 59.
2. New Trial.
The purpose of amendment of rule of civil procedure to eliminate as a ground for a new trial
insufficiency of the evidence to justify the verdict is to preclude a trial court from substituting its view of
the evidence for that of a jury in a case where the losing party is not entitled to judgment as a matter of law.
NRCP 59.
If Supreme Court, on appeal from order granting new trial on basis of insufficiency of the evidence to
justify the verdict, perceives plain error or there is a showing of manifest injustice, it may sustain the lower
court in ordering a new trial. NRCP 59.
4. Automobiles.
Generally, the issue of proximate cause in automobile accident is one of fact.
Where reviewing court was wholly unable to declare that had the jurors properly applied the instructions
of the court it would have been impossible for them to reach the verdict which they reached in favor of
following motorist in action by preceding motorist and his passenger against following motorist for injuries
sustained in rear-end collision, grant of new trial could not be sustained. NRCP 59.
6. Automobiles; Damages.
Evidence in action by preceding motorist and his passenger against following motorist for personal
injuries sustained in rear-end collision created jury questions as to whether following motorist proximately
caused the collision and whether the preceding motorist and his passenger sustained personal injuries as a
result of the collision.
OPINION
This action was commenced by Edward and Phenamaye Cusick to recover damages for
personal injuries sustained in an automobile accident. Their car was struck in the rear by a car
driven by the defendant, Gary Fox. A jury returned its verdict for Fox. The Cusicks timely
moved for a judgment notwithstanding the verdict, or in the alternative, for a new trial. The
district court denied their motion for judgment n.o.v. but granted a new trial because of its
belief that the verdict was against the weight of the evidence. This appeal by Fox challenges
that ruling.
[Headnotes 1-3]
Rule 59 relating to new trials was amended in 1964 to eliminate as a ground for a new trial
insufficiency of the evidence to justify the verdict."
91 Nev. 218, 220 (1975) Fox v. Cusick
to justify the verdict. Even before that amendment the trial court was obliged to use great
caution in the exercise of its power to set aside a jury verdict upon that ground. Sierra Pacific
Power Co. v. Day, 80 Nev. 224, 229, 391 P.2d 501 (1964). The aim of the amendment is to
preclude a trial court from substituting its view of the evidence for that of a jury in a case
where the losing party is not entitled to judgment as a matter of law. However, if we perceive
plain error or a showing of manifest injustice we may sustain the lower court in ordering
another trial. Price v. Sinnott, 85 Nev. 600, 607, 460 P.2d 837 (1969); cf. Amundsen v. Ohio
Brass Co., 89 Nev. 378, 381, 513 P.2d 1234 (1973). The Cusicks, respondents to this appeal,
suggest that this case falls within the Price v. Sinnott, supra, rationale, and that we should
sustain the lower court. They contend that in this case, as in Price v. Sinnott, the jury
manifestly disregarded the instructions of the court regarding proximate cause and
negligence.
[Headnotes 4, 5]
Generally, the issue of proximate cause is one of fact. Barreth v. Reno Bus Lines, 77 Nev.
196, 360 P.2d 1037 (1966). In a case such as this, that issue, of course, concerns not only the
cause of the collision, but as well, the cause of the damages for which compensation is
sought. Unlike Price v. Sinnott, we are wholly unable to declare in this case that had the
jurors properly applied the instructions of the court it would have been impossible for them
to reach the verdict which they reached. Price v. Sinnott, supra, at 606.
The accident occurred on the four-lane Desert Inn Road in front of the entrance to the
Sahara Nevada Golf Course. The traffic was light and the weather was clear. Cusick was
driving east in the right-hand travel lane. His wife was riding with him. As he approached the
entrance to the golf course he slowed in preparation for a right turn into the parking lot. He
put on the automatic turn signal. He then noticed a young boy on a bicycle traveling west
towards him next to the curb and in such manner that his path would cross in front of the
Cusick car as it was turning into the parking lot. Cusick stopped. The boy also stopped.
Cusick then motioned for the boy to pass in front of the car. The boy started to do so.
Meanwhile, Gary Fox also was driving east in the right-hand travel lane behind the Cusick
car. His attention was momentarily diverted by a boat on a trailer in the right-hand parking
lane. When his attention was again drawn to the Cusick car in front of him it was too late.
Although he applied his brakes, honked the horn and attempted to turn to the left, he had
come upon the Cusick car too closely and struck it in the rear.
91 Nev. 218, 221 (1975) Fox v. Cusick
he had come upon the Cusick car too closely and struck it in the rear. Each car sustained
major damage. The Cusicks do not seek to recover for car damage, but do request
compensation for neck and back injuries claimed to have been caused by the accident.
Mrs. Cusick was immediately taken to the hospital, examined by a doctor and released.
That doctor did not testify. She received no further treatment. Mr. Cusick was not examined
at that time. The next day they returned to their California home. Three days after that, Mr.
Cusick visited his doctor. He lost no time from his employment.
The record reveals that Mr. Cusick had injured his back long before the accident and had
recurring problems with it. His doctor testified that his pre-existing back condition was
aggravated by the accident. The record also shows that sometime after the accident and before
this action was commenced, Mr. Cusick strained and twisted his back and again received
medical treatment. Much of the jury argument of counsel dwelled upon whether Mr. Cusick's
back complaints were aggravated by the accident, or were due to other misadventures.
[Headnote 6]
It was for the jury to weigh the evidence and assess the credibility to be accorded the
several witnesses. It is impossible for us to know whether the jury found for the defendant
Fox because of a belief that he did not proximately cause the collision, or because of a belief
that the Cusicks did not truly sustain personal injuries as a result of the collision. With regard
to the matter of injury and damage, it was within the province of the jury to decide that an
accident occurred without compensable injury. The fact that the weight of the evidence
bearing on cause may have been against the verdict returned in the view of the trial judge,
does not invest him with authority to order that the cause be tried again.
The order granting a new trial is reversed and the jury verdict is reinstated.
____________
91 Nev. 222, 222 (1975) Western Indus., Inc. v. General Ins. Co.
WESTERN INDUSTRIES INC., a Nevada Corporation; TORGINOL INDUSTRIES, INC., a
Corporation, Appellants, v. GENERAL INSURANCE COMPANY, WILLIAM J. MOORE,
Jr., and PATRICIA MOORE, Husband and Wife, and LAWRENCE P. STECHER,
Respondents.
No. 7090
March 31, 1975 533 P.2d 473
Appeals from judgment entered upon master's report, Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Actions were brought by holder against corporate maker of one note, against the
corporation's president and his wife, as makers of second note, and against individual as
guarantor of corporate note. The president and his wife and guarantor cross-claimed against
the corporation for destroying value of other notes they held and value of corporate stock
received through stock exchange agreement. The district court entered judgment for plaintiff
on its notes and for president and his wife and guarantor for value of their stock and the
corporation appealed. The Supreme Court, Gunderson, C. J., held that evidence sustained
findings that president and corporation's secretary had had authority to proceed as they did
with stock exchange agreement and to obligate corporation on the notes, that president had
not breached his fiduciary obligation by failing to disclose his interest in the stock exchange
and that parties' actions had been in good faith; but that where note was authorized to repay
advances by corporation, but was issued to corporation's president because of insistence of
F.H.A. officials and was to be assigned to corporation after final closing of federally insured
loan, president gave no consideration for note and was not entitled to recover on it.
Affirmed in part; reversed in part; remanded for modification of judgment.
Vargas, Bartlett & Dixon, and H. Gregory Nasky, Las Vegas, for Appellants.
Beckley, DeLanoy & Jemison, Chartered, Las Vegas; and Foley Brothers, Las Vegas, for
Respondents.
1. Corporations.
In action by holder of note against corporation which issued one note and which guaranteed
note issued by its president and his wife in connection with implementing stock
exchange agreement, evidence sustained master's findings that president and
corporation's secretary had had authority to proceed as they did with the stock
exchange agreement and to obligate corporation on the notes.
one note and which guaranteed note issued by its president and his wife in connection with implementing
stock exchange agreement, evidence sustained master's findings that president and corporation's secretary
had had authority to proceed as they did with the stock exchange agreement and to obligate corporation on
the notes. NRCP 52(a).
2. Stipulations.
Although plaintiff suing on notes had originally prayed for attorney's fees in amount less than 20% of its
total recovery, where defendant's counsel stipulated that, if plaintiff's counsel testified, he would state that
the bar recommended minimum fee was reasonable and that he understood that was 20% and neither then,
nor in the objections to report of master who recommended attorney fees equal to 20% of total recovery,
did counsel seek to confine the issue to the pleadings, court properly proceeded on the stipulated proofs
and awarded fees equal to 20% of recovery. NRCP 15(b).
3. Corporations.
Corporate officer and director has fiduciary relationship with his corporation and owes duty of good faith,
honesty and full disclosure.
4. Corporations.
In action on notes which corporation and its president had issued in connection with implementing stock
exchange agreement, evidence supported finding that president had not breached his fiduciary obligation
by failing to disclose his actions and his interest in the stock exchange. NRCP 52(a).
5. Corporations.
F.H.A. ownership of preferred shares issued to enable F.H.A. to operate project in case of default on loan
insured by F.H.A. did not prevent exchange of stock of that corporation with stock of another qualifying
for tax-free treatment under Internal Revenue Code; thus the exchange was enforceable under authority
granted by board of directors authorizing the exchange provided it could be accomplished on the tax-free
basis. 26 U.S.C.A. (I.R.C. 1954) 355, 368.
6. Bills and Notes.
In proceeding on cross-claims filed by holders of notes on ground that co-defendant had destroyed value
of notes, wherein defendant contended that the notes were unenforceable because they arose in violation of
statute making it crime to utter false documents to influence F.H.A. in obtaining federally insured loan, in
that one title policy issued in favor of F.H.A. was false because it insured clear title to property which was
subject to liens, evidence supported finding that the parties' actions had been in good faith. 18 U.S.C.A.
1010.
7. Bills and Notes.
Where note was authorized to repay advances by corporation, but was issued to corporation's president
because of insistence of F.H.A. officials and was to be assigned to corporation after final closing of
federally insured loan, president gave no consideration for note and was not entitled to recover on it.
8. Bills and Notes.
Where in connection with construction of apartment complex, corporate owner's note to
contractor was assigned to owner's president and his wife who issued note in same
amount to creditor of contractor and it appeared that, unless president paid part of
judgment entered on his note, he actually would have given nothing for the note he
received in exchange, president was not entitled to an unqualified judgment thereon.
corporate owner's note to contractor was assigned to owner's president and his wife who issued note in
same amount to creditor of contractor and it appeared that, unless president paid part of judgment entered
on his note, he actually would have given nothing for the note he received in exchange, president was not
entitled to an unqualified judgment thereon.
9. Trover and Conversion.
Demand for return of converted property is not necessary when holder asserts ownership.
In conversion situation, wrongful holder of property may be treated as forced buyer.
Where wrongful stop orders amounted to a conversion of stock, upon payment of value of stock to parties
damaged by the stop orders, they must tender back their stock.
OPINION
This appeal arises from two actions on promissory notes, separately commenced by
General Insurance Company of America (General), but consolidated in the district court for
hearing and judgment.
Western Industries, Inc. (Western), as maker, issued the first note, dated March 1964 and
in the sum of $29,314.95, to James Purvis as payee. William Moore, Jr., and Lawrence
Stecher guaranteed it; Purvis assigned it to General. Moore and his wife Patricia as makers
issued the second note, dated May 1964 and for $113,386.00, directly to General as payee,
with Western as unconditional guarantor. Both were issued to implement a stock exchange
agreement, whereby Western was to obtain most of the common stock of Westchester
Gardens, Inc. (Gardens). For various reasons, Western rescinded the agreement and refused to
honor the notes held by General. General sued Western, the Moores and Stecher.
The Moores and Stecher cross-claimed against their co-defendant Western, for destroying
the value of other promissory notes they held, as well as for the value of Western stock
received through the stock exchange agreement. Western filed cross and counterclaims
against the Moores, Stecher and General. By written stipulation, testimony was taken before a
special master, whose findings of fact and conclusions of law the district court adopted.
General received judgment on its two notes with costs and attorneys' fees. The Moores and
Stecher received judgment for the value of their Western stock.
received judgment for the value of their Western stock. Western's cross and counterclaims
were denied.
On this appeal, which followed, the major contentions are:
(1) That Moore and Richard Stevens, as Western officers, lacked corporate authority to
proceed as they did with the stock exchange agreement, and lacked authority to obligate
Western on the promissory notes General now holds;
(2) That the district court erred in awarding General attorneys' fees beyond the amount
prayed;
(3) That Moore breached his fiduciary obligation to Western by not making full, good faith
disclosure of his actions and his interest in the stock exchange;
(4) That the stock exchange agreement failed to qualify as a tax-free exchange under the
Internal Revenue Code, and is therefore unenforceable;
(5) That the promissory notes held by the Moores and Stecher were issued incident to a
civil conspiracy amounting to fraud, and are therefore unenforceable;
(6) That the special master and court erred in finding good and valuable consideration for
certain notes held by Moore; and
(7) That the district court erred in granting judgment on the Western stock held by Mrs.
Moore and Stecher as a result of the stock exchange.
Of these contentions, only the sixth has merit.
This dispute centers on a stock exchange agreement between Western and Lawrence
Stecher as agent for Gardens' stockholders. Gardens, incorporated to build and operate an
apartment complex in Las Vegas, held a commitment for a $2,970,000 F.H.A. insured loan to
finance the project. Western's principal activity was acquisition and operation of other
businesses. During the time surrounding the stock exchange agreement, Moore was president
of both corporations, a fact fully disclosed to each corporation's board of directors.
Western's board had several times discussed acquiring all or part of the stock of Gardens.
Accounting projections had been reviewed. At the November 1963 meeting, after further
discussion, Western's board, with Moore passing his vote, unanimously adopted the following
resolution:
The President and/or Secretary are hereby authorized to accept on behalf of the
Corporation, the purchase of Westchester Gardens, Inc., as outlined in the attached
projection. Moore and Stevens, the corporate secretary, thereupon proceeded with
details necessary to purchase the stock of Gardens, in a tax-free stock exchange.
Moore and Stevens, the corporate secretary, thereupon proceeded with details necessary to
purchase the stock of Gardens, in a tax-free stock exchange. In March 1964, Western through
Moore, and Stecher as agent for Gardens' shareholders, entered a formal agreement reciting
exchange of all shares of Gardens' common stock in return for 300,000 shares of Western
stock.
Concurrently, Moore proceeded with details to insure closing of the final insured loan.
Gardens issued long-term promissory notes to conform its debts to F.H.A. regulations,
requiring all obligations to be evidenced by long-term notes with principal payable after
payment of the F.H.A. loan. These are the notes the Moores and Stecher now hold. The notes
General holds were also issued during this time as part of details necessary to close the loan
and complete the stock exchange.
Then, in May 1964, Western's board of directors voted to rescind the stock exchange
agreement, citing as reasons lack of authority in Moore and Stevens, want of full disclosure
by Moore, and violation of fiduciary obligations by Moore. Western thereupon demanded
return of its stock, and placed stop orders on further transfers thereof, while retaining all of
the Gardens' stock subject to return of the Western stock. Gardens could not complete its
projects, and the F.H.A. foreclosed.
The special master, whose recommended findings the district court adopted, determined
the rescission was unlawful and without just cause. He further determined that, as a direct
result of Western's refusal to comply with the stock exchange or to return Gardens' stock,
Gardens became powerless to act with respect to its properties, causing foreclosure by the
F.H.A.; that the Gardens promissory notes held by the Moores and Stecher were rendered
worthless; and that General was caused to initiate action on its two promissory notes.
Judgment against and appeal by Western followed.
[Headnote 1]
1. We reject the contention that Moore and Stevens lacked corporate authority to proceed
as they did with the stock exchange agreement, and to obligate Western on the notes held by
General.
Among other things, the record establishes the November resolution placed no express
limitations on Moore and Stevens' authority; Moore and Stevens were Western's only salaried
officers, and conducted virtually all of its business dealings; and Moore and Stevens not
uncommonly proceeded with details necessary to an acquisition, with only general board
authorization. Whether they had authority to proceed as they did was a question for the trier
of fact and, since the record contains adequate support, we will not disturb the master's
finding of authority.
question for the trier of fact and, since the record contains adequate support, we will not
disturb the master's finding of authority. NRCP 52(a); Beverly Enterprises v. Globe Land
Corporation, 90 Nev. 363, 526 P.2d 1179 (1974); Szczeraski v. Richard, 89 Nev. 581, 517
P.2d 791 (1973); Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970). This rule is
particularly applicable where the evidence is conflicting and the credibility of witnesses and
the weight to be given evidence is in issue. Brandon v. Travitsky, id, 86 Nev. at 615, 472
P.2d at 355.
The same rationale applies to the contention that Moore and Stevens lacked authority to
obligate Western on the notes held by General. The record supports a determination that
issuance and guaranty of the notes General holds was necessary to accomplish the tax-free
stock exchange, which Moore and Stevens had authority to accomplish. Moreover, as to the
larger note, it appears General required proof that Western had authorized the guarantee, and
received a certificate of corporate resolution, signed by Stevens as corporate secretary, and
bearing the corporate seal. While the certificate indicates the board of directors met May 12,
1964, there is evidence no meeting was held that day; hence, Western urges that reliance on
corporate authority cannot be justified by reference to that certificate. The record reflects,
however, that it was not unusual for Moore and Stevens to effectuate Western's business with
certificates reflecting imaginary board action, and that the board condoned and apparently
approved the practice. Further, the act of certifying corporate action is an act of the
corporation within the normal scope of authority of the corporate secretary. Cf. Condor
Corporation v. Cunningham, 162 P.2d 21 (Cal.App. 1945). Thus, in the light of all these
facts, a determination of authority is supported by the record.
[Headnote 2]
2. As the master recommended, the court awarded attorney fees equal to 20% of General's
total recovery. This exceeded what General had originally prayed, but Western's counsel had
stipulated that, if General's counsel testified, he would state the Bar recommended minimum
fee was reasonable and I understand that was 20 per cent. Neither then, nor in objections to
the master's report, did counsel seek to confine the issue to the pleadings. Thus, the court
properly proceeded on the stipulated proofs. NRCP 15(b); cf. Essex v. Guarantee Insurance
Co., 89 Nev. 583, 517 P.2d 790 (1973); Close v. Isbell Construction Co., 86 Nev. 524, 471
P.2d 257 (1970).
[Headnotes 3, 4]
3. We reject the contention that Moore breached his fiduciary obligation by failing fully to
disclose his actions and his interests in the stock exchange. Certainly, a corporate officer and
director has a fiduciary relationship with his corporation, Talbot v. Nevada Fire Insurance
Co., 52 Nev. 145, 283 P. 404 (1930), and thus owes a duty of good faith, honesty and full
disclosure. Still, whether such duty has been breached is, again, a question the trier of fact
must resolve after scrutinizing all the evidence, which here justified the finding that Moore
did not breach his duty. NRCP 52(a).
[Headnote 5]
4. At the November 1963 board meeting, the stock exchange was generally authorized,
provided it could be accomplished on a tax-free basis under Internal Revenue Code 355
and 368. We are told such an exchange was impossible because Western could not obtain the
100 preferred shares previously issued under 24 C.F.R., 207.18(c), to enable the F.H.A. to
operate the project in case of default on the loan. However, as the I.R.S. views the matter,
F.H.A. ownership of such preferred shares does not prevent a stock exchange from qualifying
for tax-free treatment. See: Revenue Ruling 66-333, C.B. 1966-2. We have neither been
referred to, nor have we been able to find, any contrary authority. Accordingly, we reject the
contention that the stock exchange did not qualify for tax-free treatment as contemplated, and
that it was therefore unenforceable. Sellman Auto, Inc. v. McCowan, 89 Nev. 353, 357, 513
P.2d 1228, 1231 (1973); General Electric Co. v. Bush, 88 Nev. 360, 368, 498 P.2d 366, 371
(1972).
[Headnote 6]
5. It is urged that the promissory notes held by the Moores and Stecher are unenforceable
because they arose from a violation of 18 U.S.C. 1010, which makes it a crime to utter a false
document to influence the F.H.A. in obtaining a federally insured loan. We are told a certain
title policy issued in favor of the F.H.A. was false because it insured a clear title to
Gardens' property, when in fact such property was subject to liens. The master and district
court found the parties' actions to be in good faith; error is not demonstrated concerning that
finding; and after review of the record we are unwilling to say the district court erred in not
finding Western had met the heavy burden of proving fraud. See: Clark Sanitation v. Sun
Valley Disposal, 87 Nev. 338, 487 P.2d 337 (1971); Havas v. Alger, S5 Nev. 627, 461 P.2d
S57 {1969); Miller v. Lewis, S0 Nev. 402
v. Alger, 85 Nev. 627, 461 P.2d 857 (1969); Miller v. Lewis, 80 Nev. 402, 395 P.2d 386
(1964).
6. The special master found all notes held by the Moores and Stecher were issued for good
and valuable consideration, but concerning two particular notes we disagree.
[Headnote 7]
Defendant's exhibit Z is a $20,000 note issued to Moore by Gardens. The minutes of
Gardens' board of directors meeting in May 1964 (defendants' exhibit k-1) reflect this note
was authorized to repay advances by Western, but issued to Moore because of insistence by
F.H.A. officials, and was to be assigned to Western after final closing of the federally insured
loan.
Thus, so far as we can see, Moore has given no consideration for this note, and the
judgment on it is reversed.
[Headnote 8]
Similarly, defendant's exhibit T-P is a $113,386.00 note Gardens issued to James Purvis.
Gardens owed this sum to Purvis as general contractor for Gardens' F.H.A. project; however,
Purvis would not accept Gardens' long-term note as F.H.A. regulations made necessary. To
alleviate the problem and facilitate closing of the loan, a plan evolved whereby Purvis agreed
to receive Gardens' long-term note (defendant's exhibit T-P), and then assign it to Moore in
consideration of Moore and his wife issuing their note for the same amount to General,
unconditionally guaranteed by Western. (Purvis had obligations to General, which this
transaction discharged in whole or in part.) The Moores' note is the larger one on which
General here sued and recovered judgment against Western, Moore and his wife. Thus, it
appears that unless Moore hereafter pays part of the judgment entered on the note held by
General, he actually will have given nothing for defendant's exhibit T-P. Accordingly, he is
not entitled to an unqualified judgment thereon, and the judgment entered should be modified
in this particular.
7. As a result of the wrongful stop order which prevented further transfer thereof, the
district court awarded the Moores and Stecher judgment for the full value of their Western
stock. The judgment and the special master's findings of fact are silent concerning disposition
of the stock, and this court has been most concerned about the award of the stock's full value
to the Moores and Stecher, absent provision for the stock itself. Counsel have raised no issue
in this regard, but it seems that were judgment granted the Moores and Stecher for their
stock's full value, while allowing them to keep it, this would be plain error.
value, while allowing them to keep it, this would be plain error. Thus, we treat the problem
sua sponte. Williams v. Zellhoefer, 89 Nev. 579, 517 P.2d 789 (1973).
[Headnote 9]
As a basis for its judgment, the lower court may well have treated the special master's
findings of fact as to the stock as a conversion at the time of the wrongful stop orders, and
upon evidence in the record, such a determination could be sustained consistent with legal
principles. Cann v. Williams Land & Livestock Co., 56 Nev. 242, 48 P.2d 887 (1935);
Robinson M. Co. v. Riepe, 40 Nev. 121, 161 P. 304 (1916). A demand for return of converted
property is not necessary when the holder asserts ownership. Robinson M. Co. v. Riepe, id,
40 Nev. at 127, 161 P. at 305.
1

[Headnotes 10, 11]
In a conversion situation, the wrongful holder of the property may be treated as the forced
buyer. See: Prosser, Law of Torts, 80-81, 4th edition, 1971. Thus, upon payment by Western,
the Moores and Stecher must tender back their stock in Western.
Accordingly, we reverse the judgment as to those matters concerned in the sixth point of
this opinion, and affirm in all other respects. On remand, the district court will enter a
modified judgment consistent with this opinion.
2

____________________

1
In such cases, a demand would be futile. See: Redd Distributing Co. v. Bruckner, 270 A.2d 580, 583 (Vt.
1970); Genova v. Johnson, 321 P.2d 1050, 1054 (Or. 1957); Crutcher v. Scott Pub. Co., 253 P.2d 925, 932
(Wash. 1953).

2
Present counsel did not represent Western in the court below.
____________
91 Nev. 230, 230 (1975) Culbertson v. Culbertson
LAURA CULBERTSON, Appellant, v. DAVID
CULBERTSON, Respondent.
No. 7378
April 9, 1975 533 P.2d 768
Appeal from an amended judgment changing custody from appellant to respondent, Fifth
Judicial District Court, Mineral County; Kenneth L. Mann, Judge.
After parties' marriage had been dissolved and custody of children had been awarded to
wife, husband sought custody of his children and sought to have wife held in contempt.
children had been awarded to wife, husband sought custody of his children and sought to
have wife held in contempt. The district court entered judgment in favor of husband and wife
appealed and also sought to appeal from the initial judgment of dissolution. The Supreme
Court, Batjer, J., held that where wife had accepted benefits of the original judgment of
dissolution and had sought to enforce its provisions, court would not review the original
judgment at wife's behest; and that evidence that wife, contrary to provisions of dissolution
judgment, had engaged in illicit conduct with unmarried male, that older children were aware
that an unmarried man was sleeping with their mother, and that the school work of the older
children had deteriorated while they were in the wife's custody sustained change in custody
order.
Affirmed.
Daniel R. Walsh, of Carson City, for Appellant.
Walther, Key & Avansino, of Reno, for Respondent.
Party who has taken advantage of favorable provisions of a judgment or who has acquiesced in its terms
by enforcing it will not be permitted a review.
2. Divorce.
Where wife accepted benefits of judgment dissolving marriage by accepting husband's check tendered to
discharge his obligation to wife and had attempted to enforce the judgment's provisions relating to
obligation owed by husband on an automobile, court would not, at wife's behest, review the judgment of
dissolution.
3. Divorce.
Matters of custody and support of minor children of parties to a divorce action rest in the sound
discretion of the trial court, the exercise of which will not be disturbed on appeal unless clearly abused.
4. Divorce.
In determining question of custody of children of divorced parents, court's paramount consideration
should be the welfare of the children. NRS 125.140.
5. Infants.
It is presumed that a trial court has properly exercised its judicial discretion in determining the best
interests of the children. NRS 125.140.
6. Divorce.
Evidence that, after dissolution of marriage, wife, who had been granted custody of the children, had
continually engaged in illicit conduct in her home with an unmarried male despite dissolution order
requirement that she not engage in immoral conduct and that the older children, who were 9 years old, were
aware that an unmarried man was sleeping in the same bedroom with their mother and that the
school work of the two older children had deteriorated while they were in custody
sustained decision of trial court to change custody to husband.
mother and that the school work of the two older children had deteriorated while they were in custody
sustained decision of trial court to change custody to husband.
7. Divorce.
Where no authority was cited by wife to support her claim that district court erred in finding her in
contempt for violating provision of custody order which required her, inter alia, not to engage in immoral
conduct, the claim of error would not be entertained on appeal.
OPINION
On February 10, 1972, judgment was entered dissolving the marital status of the parties.
The judgment awarded custody of the parties' four minor children to appellant and effected a
property division. Although no formal notice of entry of judgment was served upon appellant,
counsel for respondent, on February 15, 1972, did direct a letter to appellant enclosing a
check made payable to her order for the sum of $1,209.01. He characterized his action as
required by the Judgment and Decree entered in the Fifth Judicial District Court in and for
the County of Mineral on February 10, 1972, and he further stated, Acceptance by you of
this check shall constitute total discharge of David A. Culbertson's obligation to pay you cash
under such Judgment and Decree. The check was immediately cashed by appellant and the
proceeds retained by her.
In December of 1972, respondent filed a motion for an order to show cause why appellant
should not be held in contempt of the original judgment and relieved of custody of the minor
children. On May 1, 1973, after a hearing, the trial court concluded that appellant was in
contempt of the original judgment
1
and ordered that judgment to be amended to transfer
custody of the minor children to respondent.
Appellant now seeks to appeal not only from that amended judgment but also from the
judgment entered on February 10, 1972.
1. Had respondent served and filed a formal notice of entry of judgment upon appellant,
considerable controversy would have been avoided. However, the record reflects that through
correspondence from respondent's counsel, appellant had been informed of the entry of
judgment and its provisions.
____________________

1
A portion of the original judgment decreed: The custodian [appellant] will not engage in or permit, in the
presence of the children, any excessive drinking, immoral conduct, obscenities, violence or disrespect for law
and order. It is this portion of the judgment which the district court found appellant had violated.
had been informed of the entry of judgment and its provisions. She has accepted the benefits
of the judgment and has attempted to enforce its provisions relating to an obligation owed by
respondent on a 1970 station wagon automobile.
[Headnotes 1, 2]
A party who has taken advantage of the favorable provisions of a judgment or has
acquiesced in its terms by enforcing it will not be permitted a review. Hummel v. Roberts, 70
Nev. 225, 265 P.2d 219 (1954); Gerbig v. Gerbig, 60 Nev. 292, 108 P.2d 317 (1940).
Accordingly, we decline to consider the part of this appeal taken from the original judgment
entered on February 10, 1972.
2. We turn now to consider whether the trial court erred when it amended the original
judgment, in part, to change custody of the minor children from appellant to respondent. The
district court found that the appellant had continued her relationship with an unmarried male
and had allowed and encouraged this individual to remain in her home far into the evening
and early morning hours. It was further found that appellant had continually engaged in illicit
conduct in her home when the children were in close proximity to her bedroom and that the
older children (age 9) were of a discerning age and aware that an unmarried man sleeps in
the same bedroom with appellant at times. The record also revealed that when appellant's
paramour came to the home and left the house at late hours it disturbed at least one of the
older children. Evidence was also presented that the school work of the two older children
had deteriorated while they were in appellant's custody.
[Headnotes 3, 4]
Matters of custody and support of minor children of parties to a divorce action rest in the
sound discretion of the trial court, the exercise of which will not be disturbed on appeal
unless clearly abused. Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701 (1970); Peavey v.
Peavey, 85 Nev. 571, 460 P.2d 110 (1969); Cosner v. Cosner, 78 Nev. 242, 371 P.2d 278
(1962). In determining the question of custody of children, the court's paramount
consideration should be the welfare of the child. NRS 125.140; Peavey v. Peavey, supra;
Paine v. Paine, 71 Nev. 262, 287 P.2d 716 (1955).
[Headnote 5]
It is presumed that a trial court has properly exercised its judicial discretion in determining
the best interests of the children. Howe v. Howe, 87 Nev. 595, 491 P.2d 38 (1971); Noble v.
Noble, S6 Nev. 459, 470 P.2d 430 {1970); Fenkell v. Fenkell, supra; Cosner v.
Noble v. Noble, 86 Nev. 459, 470 P.2d 430 (1970); Fenkell v. Fenkell, supra; Cosner v.
Cosner, supra.
Here the trial court specifically found a significant change of circumstances in the parties,
as well as the fact that the conduct of the appellant rendered her unfit to have the care,
custody and control of the minor children and that a change in custody from appellant to
respondent was in the children's best interest. The record can be read to support the findings
and conclusions reached by the trial court. Compare Murphy v. Murphy, 84 Nev. 710, 447
P.2d 664 (1968). In reaching its decision the trial court has adhered to and applied a myriad of
rules and their variations laid down over the years by this court in child custody cases.
In Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961), under somewhat similar, although
more revealing, circumstances occurring prior to a divorce, this court reversed the trial court
and ordered custody in the father. In Toth v. Toth, 80 Nev. 33, 389 P.2d 73 (1964), under
very similar circumstances, this court held that the trial court did not abuse its discretion in
changing the custody of the children from the mother to the father.
2
There the children were
approximately nine, five and two years of age when it became apparent that the mother was
having an illicit relationship with a male acquaintance in her home, under circumstances
where it was possible for the children to become aware of her conduct.
Appellant, in support of her contention that the trial court erred, relies on Cooley v.
Cooley, 86 Nev. 220, 467 P.2d 103 (1970). However, that case is inapposite because there the
wife lived in adulterous circumstances in the same abode with her minor children for
approximately one month before the divorce was granted. Nevertheless, the district court
awarded her custody of the minor children and we found no abuse of discretion. If, under the
circumstances of this case, the district court had permitted the appellant to retain custody, she
might have been able to take refuge under Cooley.
[Headnote 6]
The intimate relationship of appellant and her paramour in the close proximity of children
of tender years may be deemed a harmful influence upon those children by a trial court.
____________________

2
It appears that the trial court in the Toth case was indulging in a degree of sophistry when it decided the best
interest of the minor children dictated that the mother could only have their custody for three months of the year
instead of full custody because of her illicit conduct. The amended judgment of the district court in the instant
case is far more realistic.
court. Where that court has had the opportunity to observe the parties and their demeanor on
the witness stand, to appraise their relative fitness for custody of the minor children, along
with substantial evidence in the record to support its findings of fact and conclusions of law,
the award of custody will be affirmed on appeal. Timney v. Timney, 76 Nev. 230, 351 P.2d
611 (1960).
[Headnote 7]
3. Appellant also claims that the district court erred when it found her in contempt of
court. No authority has been cited to support her claim of error, so it will not be entertained
on appeal. Sellman Auto, Inc. v. McCowan, 89 Nev. 353, 513 P.2d 1228 (1973); General
Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972).
Affirmed.
____________
91 Nev. 235, 235 (1975) Carl Needham, Inc. v. Camilleri
CARL NEEDHAM, INC., and MARY IMOGENE NEEDHAM, Executrix of the Estate of
Carl Needham, Deceased, Appellants, v. JOSEPH CAMILLERI and VIRGINIA RITA
STROCK, Administratrix of the Estate of Sally J. Camilleri, Deceased, Respondents.
No. 7581
JOSEPH CAMILLERI and VIRGINIA RITA STROCK, Administratrix of the Estate of Sally
J. Camilleri, Deceased, Appellants, v. MARY IMOGENE NEEDHAM, Executrix of the
Estate of Carl Needham, Deceased, Respondent.
No. 7629
April 9, 1975 533 P.2d 765
Consolidated appeals. No. 7581 from judgment for damages; Second Judicial District
Court, Washoe County; Emile J. Gezelin, Judge; Affirmed.
No. 7629 from order settling final account and decree of distribution; Second Judicial
District Court, Washoe County; James J. Guinan, Judge; Reversed.
Suit was filed to recover against real estate agents for alleged breach of their fiduciary duty
in selling a motel to plaintiffs without disclosing to them that property was heavily
encumbered.
without disclosing to them that property was heavily encumbered. One agent died during
pendency of action and his executrix was substituted as a defendant. The Second Judicial
District Court, Washoe County, Emile J. Gezelin, D. J., entered judgment in favor of plaintiff,
and defendants appealed. Appeal was consolidated with an appeal filed by plaintiffs from an
order of the Second Judicial District Court, Washoe County, James J. Guinan, D. J., settling
final account and decreeing distribution of deceased agent's estate without providing for
payment of judgment against executrix. The Supreme Court, Thompson, J., held that
substantial evidence supported finding that defendants had breached their fiduciary duty
toward plaintiffs so as to justify an award of out-of-pocket damages, but that plaintiffs' claim
as judgment creditors against estate of deceased judgment debtor was not untimely by reason
of their failure to file claim in estate proceeding where executrix was substituted as a party to
pending litigation before time for filing claim had run.
Milton Wichner & Associates, Ltd., of Los Angeles, California, and Richard C. Minor, of
Reno, for Carl Needham, Inc., and Mary Imogene Needham, Executrix of the Estate of Carl
Needham, deceased.
Robinson & Cassas, of Reno, for Joseph Camilleri and Virginia Rita Strock,
Administratrix of the Estate of Sally J. Camilleri, deceased.
1. Brokers.
Substantial evidence supporting finding that conduct of real estate agents in selling a motel to plaintiffs
without disclosing to them that property was heavily encumbered constituted breach of a fiduciary duty, as
well as negligence and constructive fraud, justifying an award of out-of-pocket damages.
2. New Trial.
Denial of motion for new trial made by executrix of real estate agent's estate in suit for alleged breach of
fiduciary duty in selling a motel to plaintiffs without disclosing to them that property was heavily
encumbered was not an abuse of discretion under facts as disclosed in record.
Phrase in like manner, within statute providing that if an action be pending against deceased at time of
his or her death, the plaintiff, in like manner, shall file his claim with the clerk, and no recovery shall be
held in the action unless proof be made of such filing, refers not only to the form of such claim, but to the
time within which one having a claim against the deceased must file it. NRS 117.040.
When an action has not proceeded to final judgment, and where, within time allowed for filing
of claims, personal representative of a deceased party is substituted in his place in
pending litigation, statutory requirement for filing a claim is satisfied.
where, within time allowed for filing of claims, personal representative of a deceased party is substituted in
his place in pending litigation, statutory requirement for filing a claim is satisfied. NRS 147.040.
5. Executors And Administrators.
Claim made by judgment creditors against estate of deceased debtor was not untimely by reason of their
failure to file claim in estate proceeding where executrix was substituted as a party to pending litigation
before time for filing claim had run. NRS 147.040, 147.070, 147.100; NRCP 25(a).
OPINION
We have before us two appeals which have been consolidated since each evolves from
litigation commenced by Joseph and Sally Camilleri against Carl Needham, Carl Needham,
Inc., and John Bonsignore. During the pendency of that action, the plaintiff Sally Camilleri
and the defendant Carl Needham died. Virginia Rita Strock, administratrix of Sally
Camilleri's estate, and Mary Imogene Needham, executrix of Carl Needham's estate, were
substituted as parties. The cause proceeded, and the district court favored the plaintiffs with
judgment and awarded them damages of $17,334.95 jointly and severally against Carl
Needham, Inc., Mary Imogene Needham, as executrix of the estate of Carl Needham,
deceased, and John Bonsignore. The court also awarded punitive damages of $1,000 against
Bonsignore.
1
A creditor's claim was not filed in the Needham estate proceeding.
The appeal in case No. 7581 is from the judgment in the action commenced by the
Camilleris. It is contended that there was insufficient evidence to support judgment against
Carl Needham, Inc.; that error was committed when the court denied the motion of the
executrix of Carl Needham's estate to continue the trial; and, that the judgment against the
executrix is ineffective and unenforceable since a creditor's claim was not filed in the
Needham estate proceeding.
The appeal in case No. 7629 is from the order settling the final account and decreeing
distribution of the Needham estate without providing for payment of the judgment against the
executrix, since a creditor's claim was not filed.
____________________

1
Bonsignore since has paid the plaintiffs one half of the judgment and costs, and also the $1,000 punitive
damages, and has received a satisfaction of judgment discharging him from further liability. Consequently, he is
not a party to this appeal.
[Headnotes 1, 2]
We consider it unnecessary to detail the facts which gave birth to the Camilleri law suit. It
is sufficient simply to note that Carl Needham and John Bonsignore, real estate agents for
Carl Needham, Inc., sold a motel to the Camilleris without disclosing to them that the
property was heavily encumbered. The district court found that such conduct was in breach of
a fiduciary duty to the Camilleris, was negligence, and also a constructive fraud.
Consequently, that court awarded out-of-pocket damages. Each finding is supported by
substantial evidence. Neither does the record disclose an abuse of discretion in denying
continuance of the trial. Accordingly, we summarily reject the first two contentions tendered
by the appeal in case No. 7581.
We must, however, consider and resolve a point of law common to each appeal, to-wit:
Whether the failure of the Camilleris to file a claim in the Needham estate precludes
enforcement of their judgment.
[Headnote 3]
1. NRS 147.100 reads: If an action be pending against the deceased at the time of his or
her death, the plaintiff, in like manner, shall file his claim with the clerk, and no recovery
shall be held in the action unless proof be made of such filing. We presume that the phrase
in like manner refers not only to the form of such claim (NRS 147.070) but, as well, to the
time within which one having a claim against the deceased must file it (NRS 147.040).
2
A
claim in the form contemplated by NRS 147.070 was not filed in this case.
____________________

2
NRS 147.070: 1. Every claim filed with the clerk shall be supported by the affidavit of the claimant that:
(a) The amount is justly due (or if the claim is not yet due, that the amount is a just demand and will be due
on the.............. day of..............).
(b) No payments have been made thereon which are not credited.
(c) There are no offsets to the same to the knowledge of the claimant or other affiant.
2. Every claim filed with the clerk shall contain the mailing address of the claimant. Any written notice
mailed by an executor or administrator to the claimant at the address furnished is proper notice.
3. When the affidavit is made by any other person than the claimant, the reasons why it is not made by the
claimant shall be set forth in the affidavit.
4. The oath may be taken before any officer authorized to administer oaths.
5. The amount of interest shall be computed and included in the statement of the claim and the rate of
interest determined.
6. The court may, in its discretion, for good cause shown, allow a defective claim or affidavit to be corrected
or amended on application made at any time before the filing of the final account.
NRS 147.040: All persons having claims against the deceased must,
A claim in the form contemplated by NRS 147.070 was not filed in this case. Carl
Needham died on July 8, 1972. Mary Imogene Needham was appointed executrix of his
estate on July 28, 1972. Notice to creditors first was published on July 29, 1972. The time for
filing claims expired three months later on October 29, 1972. Before that time had run, Mary
Imogene Needham, as executrix, was on October 12, 1972, substituted as a party defendant
for the deceased. NRCP 25(a).
[Headnotes 4, 5]
When an action has not proceeded to final judgment, and where, within the time allowed
for the filing of claims, the personal representative of a deceased party is substituted in his
place in pending litigation, the statutory requirement for filing a claim is satisfied. In re
Brennan, 4 P. 561 (Cal. 1884); Lewis v. O'Brien, 56 Cal.Rptr. 749 (Dist.Ct.App. 1967). At
least, such is the California view under Probate Code 709 identical in wording to NRS
147.100. We approve that view. After all, the estate had its day in court. Guaranty Trust
Co. v. Scoon, 256 P. 74 (Wash. 1927). The claim against the estate is timely since the
executrix was substituted as a party to the pending litigation before the time for filing
creditor's claims had run. And, the information to be gathered by adherence to NRS 147.070
was fully supplied to the estate by the evidence received during the trial of the pending
matter. Indeed, in the instant estate matter when the executrix filed her first accounting she
observed that the estate was not in a condition to finally be closed because of pending
litigation against the deceased.
Accordingly, in case No. 7581 we affirm the judgment for damages against Carl Needham,
Inc., and hold that the judgment against the executrix of the estate of Carl Needham is
enforceable; and, in case No. 7629 we reverse the order settling the final account and
decreeing distribution of the Needham Estate in so far as it did not provide for payment of the
Camilleri judgment, and direct the district court to allow a certified copy of that judgment to
be filed in the estate proceeding in accordance with NRS 147.200.
____________________
within 3 months after the first publication of the notice specified in NRS 147.010, file the same, with the
necessary vouchers, with the clerk of the court, who shall file and register each claim.
____________
91 Nev. 240, 240 (1975) Igert v. State Farm Mut. Auto. Ins.
ERNESTINE IGERT, Appellant, v. STATE FARM
MUTUAL AUTOMOBILE INSURANCE CO., Respondent.
No. 7666
April 16, 1975 533 P.2d 1365
Appeal from order dismissing complaint for failure to state a claim for relief; Eighth
Judicial District Court, Clark County; Keith C. Hayes, Judge.
Party injured in automobile accident brought action against insurer under the uninsured
motorist clause for medical and hospital expenses incurred. The district court entered order
dismissing complaint for failure to state a claim for relief and the plaintiff appealed. The
Supreme Court held that plaintiff's release of all claims under policy because of bodily
injuries precluded action to recover medical and hospital expenses in absence of any
allegation of any basis for avoiding the release.
Affirmed.
John Marshall, of Las Vegas, for Appellant.
Rose, Norwood & Edwards, Ltd., and Niels L. Pearson, of Las Vegas, for Respondent.
Release.
Injured party's release of all claims because of bodily injuries known and unknown precluded action
to recover medical and hospital expenses arising out of accident in absence of any allegation of fraud,
duress, mistake or any other basis for avoiding release.
OPINION
Per Curiam:
Ernestine Igert, while driving an automobile, collided with an automobile driven by an
uninsured motorist and sustained bodily injuries for which she incurred medical and hospital
expenses in the amount of $1,154.10. Subsequently, and with the approval of her counsel, she
negotiated a settlement with her own insurance company, State Farm, for the sum of $3,000
and executed a release in full settlement and final discharge of all claims under the policy
because of bodily injuries known and unknown. . . .
The district court deemed the release to preclude her present action to recover medical and
hospital expenses. We agree, since her complaint does not allege fraud, duress, mistake or
any other basis for avoiding the release. Sibson v. Farmers Insurance Group, 88 Nev. 417,
498 P.2d 1331 (1972); Las Vegas Ins.
91 Nev. 240, 241 (1975) Igert v. State Farm Mut. Auto. Ins.
Vegas Ins. Adjusters v. Page, 88 Nev. 16, 492 P.2d 616 (1972).
Affirmed.
____________
91 Nev. 241, 241 (1975) Olson v. Iacometti
DEAN V. OLSON, Appellant, v. LOUIS IACOMETTI
and SYBIL M. IACOMETTI, Respondents.
No. 7237
April 16, 1975 533 P.2d 1360
Appeal from a summary judgment of the Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
Debtor on two notes secured by deeds of trust brought action collaterally attacking
judgment entered against him on a note held by defendants and moved to set aside foreclosure
of the deed of trust which secured the second note. The district court rendered summary
judgment for the defendants, and debtor appealed. The Supreme Court, Batjer, J., held that
foreclosure of the second trust deed extinguished only the security for the defendants' note,
not the indebtedness represented by that note; that the debtor was not a third-party beneficiary
of agreement between the defendants and the holder of the second deed of trust whereby the
defendants purchased all interest in the second deed of trust; that said agreement was
irrelevant to the action on the defendants' note, and thus its concealment could not have
precluded any defenses available to the debtor in that action; and that an allegation that the
defendants conspired with the holders of the second deed of trust to bid an amount less than
true value of the property at the foreclosure sale should have been raised in the action on the
note, and thus, was barred by res judicata.
Affirmed.
Echeverria & Osborne, and Arthur T. Nicholls, of Reno, for Appellant.
Stewart & Horton, of Reno, for Respondents.
1. Mortgages.
Foreclosure of first trust deed on property extinguished only security for note secured by second trust
deed not indebtedness represented by that note.
2. Mortgages.
Where holder of note secured by deed of trust on property assigned all interest in said note and deed to
holder of second note and deed of trust on property, debtor was not third-party
beneficiary of assignment, since his only right would have been to net proceeds of
sale of property after all amounts owed by him on notes had been paid in full.
and deed of trust on property, debtor was not third-party beneficiary of assignment, since his only right
would have been to net proceeds of sale of property after all amounts owed by him on notes had been paid
in full.
3. Contracts.
Though plaintiff can maintain action on simple contract to which he is not party, upon which he was not
consulted, and to which he did not assent, when it contains provision for his benefit, he must prove that
there was intent to benefit him.
4. Judgment.
Agreement by holder of first note secured by deed of trust on property to assign all interest therein to
holder of second note and deed of trust on property was irrelevant to action seeking judgment on second
note, and thus, concealment of assignment from debtor could not serve as basis for extrinsic fraud to vacate
judgment on the second note.
In deciding propriety of summary judgment on appeal, all evidence favorable to party against whom such
judgment was rendered will be accepted as true.
6. Stipulations.
Stipulation will not be considered by district court unless in writing. DCR 24.
7. Stipulations.
Where stipulation between plaintiff and defendant merely vacated trial setting, stipulation did not have
effect of striking or postponing defendant's motion for summary judgment. DCR 24.
8. Judgment.
Where contention that holders of notes secured by deeds of trust on property conspired to bid less than
true value of property at foreclosure sale on one deed of trust could have been raised in action on note
secured by other deed of trust, such contention could not be raised on debtor's collateral attack of judgment
on said note.
9. Judgment.
Valid judgment for plaintiff is conclusive not only as to defenses adjudicated but also to those which
might have been raised, and such defenses cannot be used by former defendant as basis of subsequent
action against former plaintiff.
10. Mortgages.
Agreement whereby holder of note secured by deed of trust on property assigned all interest in said note
and deed to holder of second note and deed of trust on property did not entitle debtor to discharge on note
secured by second deed of trust.
OPINION
In 1965, appellant Dean V. Olson purchased certain property at Lake Tahoe from Logan
Creek Estates, Inc. He made a down payment of $56,500 and gave Logan Creek a note for the
balance secured by a first deed of trust on the property.
the balance secured by a first deed of trust on the property. The down payment was part of
$60,000 borrowed from respondents, evidenced by a note for $69,000, and secured by a
second deed of trust on the realty purchased from Logan Creek.
Appellant was unable to meet payments on either note. Pursuant to the terms of the
Olson-Iacometti note, upon default by appellant, First Title Insurance Company was to record
title to the real property in the respondents, which it did.
1
On October 13, 1965, the
respondents filed suit against Olson, Logan Creek and Nevada Title Guaranty Company
2
to
quiet title to the subject realty. Process was not served on appellant and the action lay
dormant for some time.
On June 6, 1966, Nevada Title, trustee under the Olson-Logan Creek deed of trust, filed a
notice of default and election to sell, declaring the principal of $168,750, plus interest,
immediately due and payable. On June 15, 1966, prior to the foreclosure sale, Logan Creek
and respondents entered into an agreement whereby respondents agreed to purchase for
valuable consideration, all right, title and interest in appellant's note and deed of trust held by
Logan Creek. Notice of default and election to sell having already been given by Nevada
Title, Logan Creek proceeded on September 29, 1966, pursuant to the Iacometti-Logan Creek
agreement, with the foreclosure of the deed of trust. At the foreclosure sale respondents
submitted the only bid and purchased the property for $155,733.03.
On November 27, 1967, the respondents filed an amended complaint in the action
originally commenced on October 13, 1965 (case number 224372), this time naming Dean V.
Olson as the sole defendant, abandoning the quiet title theory and seeking only the money due
to them on the Olson-Iacometti note. The case was set for trial on December 18, 1970.
However, pursuant to stipulation filed by the parties, the trial setting was ordered vacated on
October 8, 1970, and was not reset.
Prior to the date of execution of the above mentioned stipulation, respondents had filed a
motion for summary judgment. The district court granted the motion and on November 17,
1970, entered summary judgment for the respondents in the amount of $60,000, together
with interest, costs and attorney fees.
____________________

1
The note provided in part that: This note is secured by the title to certain Real property in Douglas County,
Nevada, which title shall be held in First Title Insurance Company with instructions in event of default in the
payment of this Note, that the aforesaid title company shall upon instructions, record title to the payees hereof.

2
In August of 1965, a document had been executed substituting Nevada Title Guaranty Co. for First Title
Insurance Co., which, however, was not recorded until June of 1966.
amount of $60,000, together with interest, costs and attorney fees. Appellant filed a notice of
appeal, but that appeal was dismissed because it was taken from a judgment in a different
case. Appellant's subsequent motion to amend and vacate that summary judgment was denied.
On December 21, 1970, appellant filed a complaint against respondents collaterally
attacking the judgment entered against appellant on the Olson-Iacometti note as well as
moving to set aside the foreclosure of the Olson-Logan Creek deed of trust. Appellant
alleged, inter alia, extrinsic fraud in the former action. The district court, finding no extrinsic
fraud or remaining issue of fact, granted respondents' motion for summary judgment and this
appeal ensued.
Appellant contends that the facts construed most favorably toward him show that the first
summary judgment entered in favor of the respondents on November 17, 1970, was obtained
by the type of fraud that would support a collateral attack and that the district court erred in
granting respondents' motion for summary judgment on the ground that no genuine issue of
material fact remained to be tried.
1. Appellant claims that the respondents concealed from him the Iacometti-Logan Creek
agreement pertaining to the foreclosure sale, and as a result he was prevented from raising
certain defenses, evidenced by that agreement, in respondents' action against him on the
Olson-Iacometti note. Those theoretical defenses include breach of contract in which
appellant was the third-party beneficiary, a conspiracy to defraud him by securing an
unjustified deficiency judgment from him, and the execution of said agreement effecting a
discharge of his debt to respondents.
[Headnote 1]
The subject of the Iacometti-Logan Creek agreement was the Olson-Logan Creek note and
deed of trust. Appellant's debt to respondents was not part of the subject matter. The clause in
the agreement referring to a minimum bid
3
at the impending foreclosure sale in no way
affected appellant's debt to respondents. Regardless of the amount bid upon foreclosure of the
Olson-Logan Creek trust deed, respondents could still sue on the Olson-Iacometti note.
____________________

3
The agreement of July 15, 1966, between respondents and Logan Creek Estates, Inc., reads in pertinent part:
4. At said foreclosure proceedings and upon sale of the real property and personal property pursuant thereto,
the parties hereto shall jointly bid for said property, personal property and improvements, a sum equal to the
combined amounts due and owing on the first and second Deeds of Trust herein referred to, and/or Chattel
Mortgage.
the Olson-Iacometti note. Foreclosure of the first trust deed extinguished only the security for
the Olson-Iacometti note, not the indebtedness represented by that note. See Sims v. Grubb,
75 Nev. 173, 336 P.2d 759 (1959).
[Headnote 2]
If, as he claims, appellant was a third-party beneficiary under the Iacometti-Logan Creek
agreement, his only right would have been to net proceeds of the sale after all amounts owed
by him to Logan Creek had been paid in full by the trustee. His purported third-party claim
under the agreement did not arise out of the Olson-Iacometti note upon which respondents
brought their action, and is not in the nature of a compulsory counterclaim which would have
been required to be stated pursuant to NRCP 13(a). Before summary judgment on the
Olson-Iacometti note was entered, appellant's purported third-party claim could have been
filed as a permissive counterclaim (NRCP 13(b)). Now his third-party claim has been alleged
in his complaint filed on December 21, 1971, and dismissed on December 21, 1972, through
the judgment from which this appeal has been taken.
Appellant's spurious claim as a third-party beneficiary under the Iacometti-Logan Creek
agreement was properly dismissed. He cannot enforce on his behalf the Iacometti-Logan
Creek agreement unless it appears that the agreement was made for his benefit. The fact that
he might incidentally benefit by the performance of the agreement is insufficient.
At best appellant was an incidental beneficiary rather than a third-party intended
beneficiary. There is nothing in the Iacometti-Logan Creek agreement indicating that either
party intended to confer any rights on appellant as a gift, and furthermore, he was not a
creditor, but instead a debtor to both parties.
It became appellant's burden in opposition to respondents' motion for summary judgment
to show that the parties to the Iacometti-Logan Creek agreement executed it with the intent to
benefit him. He has completely failed to show any such intent. Cf. Johnson Farm Equipment
Co. v. Cook, 230 F.2d 119 (8th Cir. 1956); U.S. v. Carpenter, 113 F.Supp. 327 (D.C. N.Y.
1949). Furthermore he has neglected to cite any authority to support a third-party beneficiary
claim.
[Headnote 3]
Although a plaintiff can maintain an action on a simple contract to which he is not a party,
upon which he was not consulted, and to which he did not assent, when it contains a
provision for his benefit {Quijada v. So.
provision for his benefit (Quijada v. So. Pipe & Casing, 78 Nev. 271, 371 P.2d 661 (1962);
Acoustics, Inc. v. Amer. Surety, 74 Nev. 6, 320 P.2d 626 (1956); Painter v. Kaiser, 27 Nev.
421, 76 P. 747 (1904); Miliani v. Tognini, 19 Nev. 133, 7 P. 279 (1885)), he must prove that
there was an intent to benefit him. Before a stranger can avail himself of the exceptional
privilege of suing for a breach of an agreement, to which he is not a party, he must at least
show that it was for his direct benefit. Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303,
307 (1927). See Corbin on Contracts, 779c (1951); Restatement of Contracts, 133(1)
(a)(b)(c) (1932).
[Headnote 4]
Appellant's claim of extrinsic fraud does not go to the validity of the Olson-Iacometti note
or to any circumstances surrounding his default in the payment of that note. The gravamen of
his theory of fraud is respondents' concealment of the Iacometti-Logan Creek agreement
during the prosecution of their action on the Olson-Iacometti note. Since the agreement was
irrelevant to that action it cannot be properly urged that its concealment could possibly have
precluded any defenses available to appellant. Thus, there was no cognizable cause of action
for extrinsic fraud before the lower court. Compare Villalon v. Bowen, 70 Nev. 456, 273 P.2d
409 (1954).
[Headnote 5]
Rule 56 [NRCP 56] authorizes summary judgment only where the moving party is
entitled to judgment as a matter of law, where it is quite clear what the truth is, that no
genuine issue remains for trial. . . . Nevada Land & Mtge. v. Hidden Wells, 83 Nev. 501,
506, 435 P.2d 198, 201 (1967). In deciding the propriety of a summary judgment, all evidence
favorable to the party against whom such judgment was rendered will be accepted as true.
Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963). Supporting affidavits, notice of
foreclosure and sale, depositions of respondents, and pleadings, as well as the allegedly
concealed Iacometti-Logan Creek agreement were all before the district court when it entered
its judgment in this case. Viewing them in a light most favorable to appellant, the district
court committed no error in rendering summary judgment in favor of respondents.
[Headnotes 6, 7]
2. Appellant next claims that respondents' counsel violated a stipulation and order
vacating the trial setting, and the trial court erred in entering summary judgment against
him on that issue.
court erred in entering summary judgment against him on that issue. That stipulation, it is
contended, required respondents' motion for summary judgment to be held in abeyance to
allow appellant more time to discover the agreement which is now a part of the record in this
case. An examination of the stipulation reveals only the respondents' request. Appellant
gained only an order vacating trial setting pursuant to the stipulation. There was never a
written stipulation consenting that the motion for summary judgment be stricken or
postponed. A stipulation will not be considered by the district court unless in writing. DCR
24. Here the district court committed no error in ordering summary judgment for respondents
on the evidence available to it on this issue.
4
Nevada Land & Mtge., supra.
[Headnotes 8, 9]
3. Appellant further contends that respondents conspired with Logan Creek Estates, Inc.,
and Kenneth Amundson and Margaret Amundson, its president and secretary, to bid at the
Olson-Logan Creek trust deed foreclosure sale an amount less than the true value of the
property, and less than the amount agreed upon in the Iacometti-Logan Creek agreement. This
allegation should have been raised in the action on the Olson-Iacometti note and, not having
been raised there, it was properly precluded in this second suit. A valid judgment for a
plaintiff is conclusive not only as to defenses adjudicated, but also to those which might have
been raised, and such defenses cannot be used by the former defendant as the basis of a
subsequent action against the former plaintiff. Cf. Wolford v. Wolford, 65 Nev. 710, 200
P.2d 988 (1948); Weisheyer v. Weisheyer, 54 Nev. 76, 6 P.2d 439 (1932). On this point the
district court properly applied the bar of res judicata. Cf. Tomiyasu v. Golden, 81 Nev. 140,
400 P.2d 415 (1965), cert. denied 382 U.S. 844 (1965).
[Headnote 10]
4. Appellant's claim of discharge is a phantasy. If the Iacometti-Logan Creek agreement is
read in a light most favorable to him, it would never have entitled him to a discharge on his
note to respondents. As we have above indicated, the very most he could be entitled to would
be net proceeds of sale after the Olson-Logan Creek obligation had been fully satisfied. The
district court had the Iacometti-Logan Creek agreement before it when it dismissed
appellant's claim of discharge, and in dismissing it no error was committed.
____________________

4
The lower court ruled that appellant could have pursued the issue by way of his NRCP 60(b) motion to
vacate. This ruling was erroneous, since 60(b) excepts independent actions alleging fraud upon the court.
it when it dismissed appellant's claim of discharge, and in dismissing it no error was
committed.
The summary judgment appealed from is affirmed.
Gunderson C. J., and Zenoff, Mowbray, and Thompson, JJ., concur.
____________
91 Nev. 248, 248 (1975) French v. French
BERTA LOU FRENCH, Appellant, v. BETTY GENE
FRENCH, Respondent.
No. 7473
April 16, 1975 533 P.2d 1357
Appeal from orders denying appellant's petition for a family allowance and the setting
aside of homestead and exempt property, and from an order setting aside homestead and
exempt property to respondent, Eighth Judicial District Court, Clark County; Leonard I.
Gang, Judge.
Former wife of testator petitioned for family allowance and for an order setting aside
exempt property and homestead for support of her minor children by testator and testator's
widow petitioned for same relief on her behalf. The district court granted widow's petitions
and denied former wife's petitions, and former wife appealed. The Supreme Court, McDaniel,
D. J., held that where both widow and minor children by former wife of testator were eligible
to be recipients of exempt property and either widow or minor children could be granted
probate homestead but not all of them, district judge correctly determined that widow was
entitled to exempt property and probate homestead on basis of evidence which established
that minor children were amply provided for but that widow was in need of support.
Affirmed.
Gordon L. Hawkins, of Las Vegas, for Appellant.
Paul Sorenson and James E. Ordowski, of Las Vegas, for Respondent.
All orders affecting homesteads, exempt property and family allowances are appealable. NRS 146.060,
155.190, subds. 4, 5, 13; NRCP 52(b).
2. Statutes.
If a statute giving a special remedy is repealed without a savings clause in favor of pending suits, all suits
must stop where the repeal finds them. NRS 146.060.
3. Constitutional Law; Executors and Administrators.
The right to a family allowance or probate homestead is not a vested right, and nothing accrues before the
order granting it. NRS 146.060, 155.190, subds. 4, 5, 13; NRCP 52(b).
Where either widow or minor children of testator by former wife could be granted probate homestead but
not all of them, district judge correctly determined that widow was entitled to probate homestead. NRS
146.020, 146.060.
For purposes of statute governing setting aside of exempt personal property, minor children of testator by
former wife were members of testator's family at time of his death notwithstanding fact that they were not
living in testator's home and that they had been disinherited under testator's will. NRS 146.020.
Exempt personal property, when set aside, is an absolute interest; title to the exempt property vests in the
person to whom it is set aside at that time. NRS 146.020.
Statute governing setting aside of exempt personal property for the use of the family is mandatory, and
where an application is made by the family to set apart such property, district court is required to set it
apart. NRS 146.020.
Where there is a divided family situation such that widow lives in one location and minor children by
previous marriage live in another, district court hearing petition to set aside exempt personal property on
behalf of widow and another petition on behalf of minor children must in the exercise of its sound
discretion determine who shall receive the property. NRS 146.020, 146.030, subds. 1, 2.
Where minor children by previous marriage living apart from testator's widow petitioned to have exempt
personal property set aside on their behalf and widow similarly petitioned in her own behalf, exempt
personal property was properly set aside to widow and children's petition denied on basis of evidence
establishing that minor children were amply provided for and widow was in need of support. NRS
146.020, 146.030, subds. 1, 2.
OPINION
By the Court, McDaniel, D. J.:
James B. French died testate in Las Vegas, Nevada on July 16, 1972. He left surviving his
widow, Betty Gene French, the respondent, as well as William Mosley French and Tracy
Alyn French, ages 16 and 12 respectively, the minor children of his former marriage to the
appellant, Berta Lou French. The children reside with their mother in Texas, and had been
receiving support from decedent to the date of his death under the provision of a divorce
decree.
support from decedent to the date of his death under the provision of a divorce decree.
Decedent's will was admitted to probate on August 4, 1972. By the terms of the will all of
his children, including William and Tracy, were disinherited because of prior gifts made to
them. Respondent was appointed executrix and is the sole legatee and devisee under the
will.
An inventory and appraisement was filed in the estate listing certain personal property and
a family residence in Boulder City, Nevada. Appellant, on behalf of her minor children,
petitioned the district court for a family allowance pursuant to NRS 146.030, and for an order
setting aside exempt property and the homestead for the support of the minor children.
Respondent filed petitions for the same relief on her behalf. Appellant contends that the
district court erred in denying her petitions and granting the petitions of respondent. This
appeal, which was timely filed (NRAP 4; NRCP 52(b)), was taken from the district court's
orders denying appellant's motions for a family allowance and for the setting aside of
homestead and exempt property, as well as from an order setting aside homestead and exempt
property to respondent, all dated April 27, 1973. NRS 155.190.
[Headnote 1]
Appellant also appeals from The Order entered June 29, 1973, denying the Motion of
Berta Lou French to amend findings of fact, conclusions of law and to alter or amend the
Order, all dated April 27, 1973, to Amend Findings of Fact and Conclusions of Law and to
Alter or Amend the Order setting aside the exempt property and homestead to surviving
widow. An order denying a motion to amend findings of fact and conclusions of law is not
an appealable order within NRAP 3A, formerly NRCP 72(b). See Casino Operations, Inc. v.
Graham, 86 Nev. 764, 476 P.2d 953 (1970); Securities Investment Co. of St. Louis v.
Donnelley, 89 Nev. 341, 531 P.2d 1238 (1973). This purported part of the appeal is
dismissed. All orders affecting homesteads, exempt property and family allowances are
appealable. NRS 155.190(4)(5)(13). United States v. McLean, 77 Nev. 331, 364 P.2d 407
(1961). Appellant's move to amend preserved her right to appeal from those orders which she
was attempting to amend. NRCP 52(b).
1. Relying on NRS 146.060, which was in effect at the time of decedent's death and at the
time appellant filed her petitions, she contends that the law requires that an interest in the
probate homestead be set aside to her minor children, and, since they are not in a position to
use the family residence at Boulder City, that the probate homestead would have to be
liquidated so that they could be paid for their interest, or that the widow pay a reasonable
rental for the use of the children's interest.
at Boulder City, that the probate homestead would have to be liquidated so that they could be
paid for their interest, or that the widow pay a reasonable rental for the use of the children's
interest.
[Headnotes 2, 3]
Appellant's reliance is misplaced because NRS 146.060 was expressly repealed on March
20, 1973 by Chapter 131, 1973 Statutes of Nevada, 191. There was no saving clause in the
repealing statute. . . . [I]f a statute giving a special remedy is repealed without a savings
clause in favor of pending suits, all suits must stop where the repeal finds them. South
Carolina v. Gaillard, 101 U.S. 433 (1879). See cases collected in 77 ALR 1338, 1345. It is
well established that the right to a family allowance or probate homestead is not a vested right
and that nothing accrues before the order granting it. In Re Blair's Estate, 269 P.2d 612 (Cal.
1954); In Re Taitmeyer's Estate, 141 P.2d 504 (Cal.App. 1953).
No orders could have been entered by the district court pursuant to the provisions of NRS
146.060 after the date of its repeal. With the repeal of NRS 146.060 there exists no statutory
scheme to be followed by a district court in the designation of a recipient of the probate
homestead. Therefore, it became the responsibility of that court to make the designation when
an application is made pursuant to the provisions of NRS 146.020.
1

[Headnote 4]
Here the district court was required to consider the competing petition of the widow and
one filed on behalf of the minor children. Both the widow and the minor children were
eligible to be recipients, yet under these circumstances, where the widow was not the mother
of the minor children, and they lived with their mother in a different state, either the widow or
the minor children could be granted the probate homestead, but not all of them. Thus it
became the responsibility of the district court to determine the recipient. A hearing was held,
evidence was received and weighed, and it was concluded that the widow should be the
recipient. The record supports that conclusion.
____________________

1
1NRS 146.020: Upon the return of the inventory or at any time thereafter during the administration, the
court or judge, of his own motion, or on application, shall set apart for the use of the family of the deceased all
of the personal property which is exempt by law from execution, and shall set apart the homestead, as designated
by the general homestead law then in force, whether such homestead has theretofore been selected as required by
law, or not, and the property thus set apart shall not be subject to administration.
conclusion. We find no error in the order of the district court setting aside the probate
homestead to the respondent, and denying appellant's petition to set aside one-half of the
probate homestead to the minor children, William Mosley French and Tracy Alyn French.
[Headnotes 5, 6]
2. NRS 146.020 also provides that the exempt personal property shall be set apart for the
use of the family and that said property thus set apart shall not be subject to
administration. The minor children were members of the decedent's family at the time of
his death. Cf. In Re Foster's Estate, 47 Nev. 297, 220 P. 734 (1923); Bailey v. Bailey, 86 Nev.
483, 471 P.2d 220 (1970). It was not necessary for them to be living in the home of decedent
at that time in order to qualify as members of his family. Neither does disinheritance under
their father's will affect any rights which these minor children might have to exempt personal
property. In Re Lavendol's Estate, 46 Nev. 181, 209 P. 237 (1922). Cf. Luria v. Zucker, 87
Nev. 471, 488 P.2d 1159 (1971). The exempt personal property, when set aside, is an
absolute interest. It is to be used to produce income or liquidated to provide funds for support.
The title to the exempt property vests and becomes the property of the person to whom it is
set aside, and in this respect is a type of interest different from property set aside as the
probate homestead.
[Headnote 7]
The language of NRS 146.020 is mandatory. Exempt property belonging to an estate is
dedicated to the use of the family of the deceased and when an application is made to set
apart such property the district court is required to set it apart. (Cf. Hunter v. Downs, 53 Nev.
132, 295 P. 438 (1931); In Re MacDonnell's Estate, 56 Nev. 346, 53 P.2d 625 (1936).)
[Headnotes 8, 9]
However, where there is a divided family situation and, as here, the widow lives in one
location and the minor children of a previous marriage live in another, the district court
hearing a petition to set aside the exempt personal property on behalf of the widow and
another on behalf of the minor children must in the exercise of its sound discretion determine
who shall receive the property. The district judge heard and weighed the evidence presented
by the competing petitioners and concluded that the minor children were amply provided for
and that the respondent was in need of support.2 The record can be read to support that
conclusion.
respondent was in need of support.
2
The record can be read to support that conclusion. The
order setting aside the exempt personal property to the respondent and denying appellant's
petition to have the exempt personal property set aside to the minor children is affirmed.
3. This court in In Re Lavendol's Estate, supra, at page 192, said: It is only where the
whole property set apart by law is not sufficient for the support of the widow, child or
children that the court is authorized to make an allowance out of the estate of the deceased.
The exempt property comes first, and the allowance, if necessary, follows. NRS 146.030(1).
NRS 146.030(2), unlike NRS 146.020, specifically provides that: If the widow or any
minor child has a reasonable maintenance derived from other property, and there are other
persons entitled to a family allowance, the allowance shall be granted only to those who have
not such maintenance, or such allowance may be apportioned in such manner as may be just.
After a hearing in which evidence concerning the incomes and circumstances of
respondent, appellant and the minor children was presented, the district court, adhering to the
provisions of NRS 146.030(2), exercised its discretion, denied appellant's petition, and
granted respondent an allowance. We affirm that order of the district court, which was neither
arbitrary nor capricious. Folks v. Folks, 77 Nev. 45, 359 P.2d 92 (1961); Brandon v.
Travitsky, 86 Nev. 613, 472 P.2d 353 (1970); Szceraski v. Richard, 89 Nev. 581, 517 P.2d
791 (1973).
For the reasons set forth in this opinion affirming the orders of the district court we reject
that part of the appeal from the orders refusing to alter or amend [modify] the orders denying
appellant's motions for a family allowance, and the setting aside of homestead and exempt
property, as well as refusing to alter or amend [modify] the order setting aside homestead and
exempt property to respondent.
____________________

2
Although the trial judge observed that the appellant and minor children were nonresidents and that the
respondent was a resident at the probate homestead in Nevada, he did not enter his orders on the basis of those
facts.
____________
91 Nev. 254, 254 (1975) Ferrara v. Firsching
KAY FERRARA Executrix of the Estate of FRANK N. FERRARA, Deceased, Appellant, v.
HELEN R. FIRSCHING and ALFRED S. HOWES, Ancillary Executrix and Executor of the
Estate of ROBERT A. FIRSCHING, Deceased, Respondents.
No. 7593
April 16, 1975 533 P.2d 1351
Appeal from order for summary judgment; Eighth Judicial District Court, Clark County;
Carl J. Christensen, Judge.
Executrix of estate of real estate broker sued executor and executrix of estate of vendor of
real estate to collect a commission. The district court entered judgment against executrix of
estate of broker, and she appealed. The Supreme Court, Mowbray, J., held that where
condition precedent to payment of commission that purchase price installments be paid never
occurred, broker's fee was never earned; that subsequent amendment or cancellation of
purchase agreement did not create an obligation to broker where none had previously existed;
that in the absence of fraud or bad faith, a subsequent modification of purchase agreement
because of purchaser's default does not in a special contract case make vendor liable for a
broker's commission; and that broker failed to demonstrate manner in which addendum's
modification of escrow instructions affected or created his right to a commission.
Affirmed.
Gabe Hoffenberg, of Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy & Jemison, Chartered, of Las Vegas, for Respondents.
1. Brokers.
The payment of a broker's commission may be predicated on a specified condition.
2. Brokers.
When a broker presents a purchaser ready, willing and able to perform, the parties by their agreement
may make the broker's right to a commission dependent on an express condition such as actual sale or other
qualifications such as payment out of purchase money, cash payment, upon effecting a sale, upon
consummation of sale, on the closing of title, when title passed, if deal went through, or on date formal
transfer is made.
3. Brokers.
Where broker's commission was to be paid from purchase money as it was received, broker's fee,
except as to percentage of down payment, was never earned where purchaser never
made any of the purchase price installments.
money as it was received, broker's fee, except as to percentage of down payment, was never earned where
purchaser never made any of the purchase price installments.
4. Brokers.
A subsequent amendment or cancellation of a purchase agreement does not create a new obligation to a
broker where none had previously existed.
5. Brokers.
In the absence of fraud or bad faith, a subsequent modification of purchase agreement because of
purchaser's default does not in a special contract case make the vendor liable for a broker's commission
in that since the broker has not yet become entitled to a commission, a good faith modification of sales
agreement by a vendor does not create a new obligation to the broker.
6. Brokers.
Statement that after a contract between the principal and a customer produced by broker has been
concluded its subsequent modification or cancellation does not defeat or affect the right of broker to a
commission, unless it is done at his request or with his consent, applies only if broker is already entitled to
his commission at time or previous to time when a contract of sale is entered into between vendor and
vendee and does not apply when commission is conditional, such as upon payment of purchase price.
7. Brokers.
Where broker's right to a commission was subject to condition that purchase price installments be paid,
failure of broker to demonstrate manner in which addendum's modification of escrow instructions affected
or created his right to a commission precluded broker's recovery of commission when condition precedent
did not occur.
OPINION
This is an appeal from an order of the district court granting summary judgment in favor of
the respondents, Helen R. Firsching and Alfred S. Howes, Ancillary Executrix and Executor
of the Estate of Robert A. Firsching, deceased (hereinafter referred to as Seller), and against
the appellant, Kay Ferrara, Executrix of the Estate of Frank N. Ferrara, deceased (hereinafter
referred to as Broker). Broker had commenced this action to recover a commission fee from
Seller for the sale of real property to a third party, whom we shall refer to as Buyer.
1. In May 1969 Seller and Buyer signed escrow instructions wherein Seller agreed to sell
to Buyer certain real property for the total sum of $492,000, with a down payment of $25,000
and the balance to be paid in installments.
Contemporaneously therewith, Seller and Broker entered into a separate agreement for
the payment of a broker's commission equal to 10% of the total sales price, or $49,200.
into a separate agreement for the payment of a broker's commission equal to 10% of the total
sales price, or $49,200. The agreement provided that the commission was to be paid from the
purchase money as it was received.
1

Broker received 10% of the $25,000 down payment. This action was filed to collect the
remainder of the commission. Seller has never received any additional payments on the
balance of the purchase price.
2

In November 1969, Buyer and Seller signed an addendum to the escrow instructions.
Because Buyer did not perform pursuant to the original escrow agreement as amended by the
addendum, Seller in 1971 brought an action against Buyer to have the escrow agreement and
the addendum thereto rescinded. A judgment was entered in the district court in favor of
Seller and against Buyer, canceling the escrow agreement between them.
2. Broker in the instant case predicates his argument for the remainder of his fee on the
general rule that a broker earns his commission the moment that the seller and the buyer
execute an enforceable purchase agreement and that a buyer's subsequent default does not
affect the broker's right to receive the entire commission. Broker also urges that, in such
cases, the seller may not avoid paying the broker his fee by canceling or amending the
purchase agreement, for the reason that the commission was earned when the purchase
agreement was executed.
While it is the general rule that a broker's commission is earned when a valid and binding
contract for sale or purchase is entered into with a ready, willing, and able buyer, even though
the buyer later fails or refuses to comply with the agreement, it is equally well established that
the payment of a commission may be dependent on a condition beyond that implied by the
ordinary broker's contract. For instance, as in this case, the commission may be dependent on
the payment of the purchase price installments. In such an event, the refusal or failure of the
buyer to perform is fatal to the recovery of the commission by the broker.3 In this case,
there was a "special contract" between Seller and Broker.
____________________

1
The agreement stated in part:
Said commission represents 10% of the total sales price and shall be paid to Broker as follows:
Seller to pay 10% of all sums received from Buyers in this transaction not to exceed the sum of
$49,200.00 directly to BROKER.

2
Buyer did deposit in escrow an additional sum of $1,500 and a certain stock certificate. The escrow agent's
check for the same remains uncashed, and the certificate remains in escrow. There is no factual dispute regarding
this matter, as Seller has acknowledged that Broker is entitled to 10% of the check and the stock certificate.
of the buyer to perform is fatal to the recovery of the commission by the broker.
3
In this case,
there was a special contract between Seller and Broker. Seller was bound to pay Broker
10% of all sums received from Buyers.
This court has frequently held that if the broker's agreement provides that his commission
is to be paid from purchase money installments, the receipt of the installments is a condition
precedent to recovery. Sala & Ruthe Realty v. Campbell, 89 Nev. 483, 515 P.2d 394 (1973);
DiGregorio v. Marcus, 86 Nev. 674, 475 P.2d 97 (1970); Bell v. Krupp, 86 Nev. 247, 467
P.2d 1013 (1970); Craig v. Margrave, 84 Nev. 638, 446 P.2d 653 (1968); Fitch v.
LaTourrette, 75 Nev. 484, 346 P.2d 704 (1959).
[Headnotes 1, 2]
As this court held in Bell v. Krupp, supra, 86 Nev. at 250-251, 467 P.2d at 1016:
The payment of a broker's commission, however, may be predicated on a specified
condition.
____________________

3
There is a growing body of case authority to the effect that, even in the case of the ordinary broker's
agreement, the courts will imply a condition precedent to the payment of the commission, i.e., the performance
by the buyer. These cases hold that it would be unconscionable and against public policy to enforce a promise to
pay a broker's commission if, in fact, the buyer defaults. See the recent case of Gaynor v. Laverdure, 291 N.E.2d
617, 623 (Mass. 1973):
We are aware of the fact that in several States in which the general rule of the liability of an owner of real
estate to a broker procuring a purchaser ready, able and willing to purchase the real estate was substantially the
same as that of Massachusetts, the law has been changed by recent judicial decisions. Ellsworth Dobbs, Inc. v.
Johnson, 50 N.J. 528, 236 A.2d 843, decided in 1967, is perhaps the leading one of such decisions. There the
court, after an extensive review of the prior law, stated at p. 551, 236 A.2d at p. 855, the following conclusions
as to what the controlling rule should be in New Jersey: When a broker is engaged by an owner of property to
find a purchaser for it, the broker earns his commission when (a) he produces a purchaser ready, willing and able
to buy on the terms fixed by the owner, (b) the purchaser enters into a binding contract with the owner to do so,
and (c) the purchaser completes the transaction by closing the title in accordance with the provisions of the
contract. If the contract is not consummated because of lack of financial ability of the buyer to perform or
because of any other default of his, . . . there is no right to commission against the seller. On the other hand, if
the failure of completion of the contract results from the wrongful act or interference of the seller, the broker's
claim is valid and must be paid. In short, in the absence of default by the seller, the broker's right to commission
against the seller comes into existence only when his buyer performs in accordance with the contract of sale.'
(Footnote omitted.)
predicated on a specified condition. As summarized in 10 S. Williston, Contracts 1287A at
978 (3d ed. W. Jaeger 1967):
Whatever may be the customs and usages respecting the broker's right to a commission,
when he presents a purchaser ready, willing and able to perform, the parties by their
agreement may make this right dependent on an express condition such as actual sale. Or,
other qualifications may be incorporated[,] such as out of purchase money, cash payment,
upon effecting a sale, upon consummation of sale, on the closing of title, when title
passed, if deal went through, or, on the date formal transfer is made.'
And again, in DiGregorio v. Marcus, supra, 86 Nev. at 677, 475 P.2d at 99, this court said:
The right of a real estate broker to collect his fee is to be measured by the terms of his
commission agreement. Fitch v. LaTourrette, . . . and Craig v. Margrave, . . . Such a contract
may validly be predicated on specified conditions precedent. Craig v. Margrave, supra, and
Bell v. Krupp, . . .
When a commission agreement provides that the broker will only receive his fee from the
purchaser's payments, the receipt of those payments is a condition precedent to the seller's
obligation to pay the commission. Craig v. Margrave, supra, and Seminole Fruit & Land Co.
v. Rosborough-Weiner, Inc., 43 So.2d 864 (Fla. 1950).
[Headnote 3]
The record below is undisputed that Buyer never made any of the purchase price
installments. Since the condition precedent to the payment of the commission never occurred,
Broker's fee was never earned.
[Headnote 4]
3. A subsequent amendment or cancellation of a purchase agreement does not create a
new obligation to a broker where none had previously existed.
[Headnote 5]
Broker asserts that the amendment of the escrow instructions by the addendum (between
Buyer and Seller) created an additional absolute (rather than a contingent) right to a
commission. In the absence of fraud or bad faith (and none is alleged in this case), a
subsequent modification of the purchase agreement because of the buyer's default does not in
a special contract case make the seller liable for a broker's commission. The reason for the
rule is that, since the broker has not yet become entitled to the commission, a good-faith
modification of the sales agreement by the seller does not create a new obligation to the
broker.
of the sales agreement by the seller does not create a new obligation to the broker. 12
Am.Jur.2d Brokers 205, 208 (1964).
[Headnote 6]
As the Wyoming court said in Dallas Dome Wyo. Oil Fields Co. v. Brooder, 97 P.2d 311,
320 (Wyo. 1939):
. . . It has been held that for a former owner to bid in the property at a foreclosure or other
judicial sale is not equivalent to payment of the purchase price thereof by the vendee. . . .
[citing cases] The same is true if the vendor merely cancels, or consents to the cancellation of
a contract of sale, after, and because of the purchaser's default. It is stated in 12 C.J.S.,
Brokers, 87, page 200, that after a contract between the principal and a customer produced
by the broker has been concluded, its subsequent modification or cancellation does not defeat
or affect the right of the broker to a commission, unless it is done at his request or with his
consent.' That statement might be misleading, if not read in connection with other portions of
the text. It applies only if the broker is already entitled to his commission at the time or
previous to the time when a contract of sale is entered into between the vendor and vendee. It
does not apply when the commission is conditional, as, for instance, upon the payment of the
purchase price. In such case cancellation by reason of the default of the purchaser is not
equivalent to payment. . . . [Here, the court cited, among others, authorities from Virginia,
Arkansas, California, Illinois, Indiana, Minnesota, and the Ninth Circuit.] . . .
This court has not passed on the precise question of whether the seller can cancel or
rescind the purchase agreement because of the buyer's default, without assuming a liability to
the broker. However, an analogous issue arose in Craig v. Margrave, supra, wherein this
court held that in the special contract situation the seller has no obligation, in order to
protect the buyer's commission, to enforce the purchase agreement against the buyer; i.e., he
may, in the absence of an allegation of bad faith, do nothing or, what is tantamount to
rescinding, refuse, fail, or decline . . . to foreclose under the trust deed, given to secure the
purchase money installments. The court said, 446 P.2d at 655, 84 Nev. at 641-642:
The lower court in this case held in accordance with the rule announced by the California
and Florida courts when it ruled that the brokerage commission is not due until such time as
additional payments are received from garnishee's purchaser, or until such time as the
land hereinvolved [sic] is sold to independent purchasers on foreclosure of the Deed of
Trust hereinvolved [sic] and the sellers have received the balance of the purchase price in
cash.'
time as additional payments are received from garnishee's purchaser, or until such time as the
land hereinvolved [sic] is sold to independent purchasers on foreclosure of the Deed of Trust
hereinvolved [sic] and the sellers have received the balance of the purchase price in cash.'
We think that ruling is correct and sustain it.
The reasons supporting such rule are that the sellers have required, as here, that the
commission comes from the purchase price and not their pocket. The sellers have bargained
to receive installment payments in money for their property and not the property back, and at
the foreclosure sale, if an independent purchaser bids in the property, sellers receive their
money. If sellers bid it in they get the property back, not the installment payments of money
for which they contracted. (Footnote omitted.)
[Headnote 7]
Broker has failed to demonstrate the manner in which the addendum's modification of the
escrow instructions affected or created his right to a commission. Broker's right to a
commission, both before and after the addendum was executed, was subject to the condition
that the purchase price installments be paid. That condition did not occur. There is nothing in
the addendum or in the record before us to indicate that the condition was waived.
The trial court's ruling was correct, and the judgment below is affirmed.
____________
91 Nev. 260, 260 (1975) Cord v. District Court
VIRGINIA KIRK CORD, Petitioner, v. SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, Department No. 3, John E. Gabrielli, District Judge, Respondent.
No. 8123
April 16, 1975 533 P.2d 1355
Original proceedings for writ of mandamus to Second Judicial District Court; John E.
Gabrielli, Judge.
Proceeding was brought in mandamus to compel district court judge to transfer probate
proceedings to another judge. The Supreme Court held that affidavit of prejudice, timely filed
pursuant to statute providing that judge shall not act as such if either party to a "civil
action" in district court files affidavit of prejudice, was applicable to contested
proceedings in probate.
pursuant to statute providing that judge shall not act as such if either party to a civil action
in district court files affidavit of prejudice, was applicable to contested proceedings in
probate.
Writ granted.
Nada Novakovich, Reno, for Petitioner.
Bradley & Drendel, Ltd., and John Squire Drendel, Reno, for Respondent.
Judges.
Affidavit of prejudice, timely filed pursuant to statute providing that judge shall not act as such if
either party to a civil action in district court files affidavit of prejudice, was applicable to contested
proceedings in probate; overruling State ex rel. Germain v. District Court, 56 Nev. 331, 51 P.2d 219
(1935). NRS 1.230, subd. 5, 155.180.
OPINION
Per Curiam:
The sole question in this original proceeding in mandamus is whether an affidavit of
prejudice, timely filed pursuant to the provisions of NRS 1.230(5), is applicable to contested
proceedings in probate.
Petitioner, seeking to challenge an application for a confirmation of a sale of real property,
filed an affidavit of prejudice against respondent judge. On motion, the judge ordered the
affidavit stricken because, he reasoned, under the decision of this court in State Ex Rel.
Germain v. District Court, 56 Nev. 331, 51 P.2d 219 (1935), an affidavit of prejudice, timely
filed pursuant to the provisions of NRS 1.230(5), . . . does not apply to probate proceedings,
even though they are adversary.
We believe that respondent judge correctly interpreted Germain; however, in our view,
Germain was incorrectly decided, and must be and is hereby overruled.
In Germain, Mr. Justice Taber concluded that, in his opinion, the statute relating to
disqualification of judges was not a provision of law regulating proceedings in civil cases;'
rather, it was a section of An Act concerning the Courts of Justice of this State, and Judicial
Officers, . . .' 56 Nev. at 339, 51 P.2d at 222. Mr. Justice Taber neither cited authority for his
view, nor did he attempt to establish any explanation of why he considered the statute, first
enacted by Stats. of Nev., 1864-1865, c.
c. 19, pp. 116-117, inapplicable to contested estate, or probate, proceedings.
The rule of disqualification has elsewhere been held to be applicable in probate matters.
Payne v. Lee, 24 N.W.2d 259 (Minn. 1946). When judicial functions are involved in probate
proceedings, a probate judge, like a judge in any other civil proceedings, has been held
subject to disqualification. State v. Vosloh, 54 N.E.2d 650 (Ind. 1944).
We note that Germain is one of only three reported decisions we have found that, under
any theory, held that estate, or probate matters were not considered to be civil actions. The
other two cases are: Bowen v. Stewart, 26 N.E. 168 (Ind. 1891), and McClelland v. Bristow,
35 N.E. 197 (Ind.App. 1893), both of which held that an application to remove an
administrator was not a civil action within their change of venue statute. These two cases
appear to be contra to the Indiana Court's prior decisions in Scherrer v. Ingerman, 11 N.E. 8
(Ind. 1887), and Lester v. Lester, Executor, et al., 70 Ind. 201 (Ind. 1880), and to have been
overruled, at least by implication, in Daniels v. Bruce, 95 N.E. 569 (Ind. 1911). Both Scherrer
and Daniels held that an action under a statute relating to a change of venue, which was not
included as a part of a civil practice act, was a civil action and applied to probate
proceedings where, as here, there was a petition by an administrator, for permission to sell
real estate. Compare Fort v. White, 101 N.E. 27 (Ind.App. 1913), where a proceeding to set
aside the probate of a will was held to be a civil action, within the same statute. See also,
Clow's Estate v. Clow, 167 S.W. 2d 903 (Mo.App. 1942), and cases cited therein; and,
Lester, supra, where the Indiana court noted that estate, or probate, matters were considered
to be civil actions, saying: The reason and spirit of the statute are as applicable to cases of
claims against an estate as to other civil actions. A claim against an estate should no more be
tried before a biased, prejudiced or interested judge than any other civil action. Accord: State
v. O'Byrne, 46 N.E.2d 687 (Ind. 1943).
NRS 1.230(5) specifically provides: A judge shall not act as such if either party to a civil
action in the district court shall file an affidavit. . . . The judge shall proceed no further
therein. . . .
NRS 155.180 provides that . . . all the provisions of law and the Nevada Rules of Civil
Procedure regulating proceedings in civil cases apply in matters of estate, when appropriate,
or the same may be applied as auxiliary to the provisions of the probate code. Thus, we think
that for the instant purposes, estate or probate matters are considered to be civil actions
and subject to laws and rules relating to civil cases. Cf. State v. Langan, 32 Nev. 176
estate or probate matters are considered to be civil actions and subject to laws and rules
relating to civil cases. Cf. State v. Langan, 32 Nev. 176, 105 P. 568 (1909); In Re Kasson's
Estate, 74 P. 436 (Cal. 1903).
Once petitioner's affidavit was filed, respondent was obligated to terminate all
proceedings. NRS 1.230(5); NRS 155.180. Accordingly, we
ORDER that a peremptory writ of mandamus issue forthwith, commanding respondent to
desist and refrain from any further proceedings, save and except an order transferring these
proceedings to another judge.
____________
91 Nev. 263, 263 (1975) County of Clark v. Lucas
COUNTY OF CLARK, a Political Subdivision of the State of Nevada; JAMES G. RYAN,
JAMES A. BRENNAN, MYRON LEAVITT, ROBERT N. BROADBENT and TOM
WIESNER, County Commissioners of Clark County, Appellants, v. IRENE LUCAS,
Respondent.
No. 7651
April 28, 1975 534 P.2d 499
Appeal from judgment holding Clark County to damages for wrongful discharge of court
clerk. Eighth Judicial District Court, Clark County; Kenneth L. Mann, Judge.
The Supreme Court held that substantial evidence supported trial court's finding that court
clerk was wrongfully discharged because she had not been properly notified that her
resignation, which she had submitted while emotionally upset over a lost document, had been
accepted by her superior, the County Clerk, in accordance with county personnel manual.
Affirmed.
George Holt, District Attorney, Peter N. Reynolds, Deputy District Attorney, and Victor
W. Priebe, Deputy District Attorney, Clark County, for Appellants.
Lee and Beasey, of Las Vegas, for Respondent.
Where a trial court sitting without a jury makes a determination upon conflicting evidence, that
determination will not be disturbed on appeal if it is supported by substantial evidence. 2.
91 Nev. 263, 264 (1975) County of Clark v. Lucas
2. Clerks of Courts.
Substantial evidence supported trial court's finding that court clerk was wrongfully discharged because
she had not been properly notified that her resignation, which she had submitted while emotionally upset
over a lost document, had been accepted by her superior, the County Clerk, in accordance with county
personnel manual.
OPINION
Per Curiam:
Irene Lucas was first employed by the Clark County Clerk in June 1965. Her services at all
times were apparently satisfactory. For a period of three years prior to this lawsuit she was
assigned as the court clerk of one of the judicial departments in the Eighth Judicial District.
On January 20, 1970, while emotionally upset over a lost document involved in a difficult
trial in her department, later to be completely absolved of blame, she wrote a letter of
resignation which was delivered to the County Clerk, her superior. Although the County
Clerk at some later date wrote her acceptance of the purported resignation, intervening events
and conversations cast doubt upon the resignation or at least indicated withdrawal of it before
it was accepted. She was not, however, permitted to return to work.
Mrs. Lucas sued the county for lost pay and other damages and was awarded judgment for
$11,371.50. The trial court determined on the facts presented that she had not been properly
notified of the acceptance of the resignation as required and thus the court found she was
wrongfully discharged.
1

[Headnote 1]
Where a trial court sitting without a jury makes a determination upon conflicting evidence
that determination will not be disturbed on appeal if it is supported by substantial evidence.
Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973).
[Headnote 2]
The findings of the trial court in this case are supported by substantial evidence.
Affirmed.
____________________

1
See County of Clark Personnel Manual, July 21, 1969.
____________
91 Nev. 265, 265 (1975) Harden v. Kogo
ESLEY D. HARDEN, Also Known as JOE HARDEN,
Appellant, v. FANNIE MAE KOGO, Respondent.
No. 7673
April 30, 1975 534 P.2d 913
Appeal from the judgment of the Second Judicial District Court, Washoe County; James J.
Guinan, Judge.
The Supreme Court held that individual findings by the court, which determined that
appealing party had received a total of $29,100 from prevailing party, and had repaid only
$9,757, leaving a balance owing of $19,345, as to particular sources of money delivered, as
well as gross amount of the judgment, were adequately supported.
Affirmed.
Streeter, Sala & McAuliffe, of Reno, for Appellant.
Minor & Parraguirre, Ltd., of Reno, for Respondent.
Appeal and Error.
Individual findings by the court, which determined that appealing party had received a total of
$29,100 from prevailing party, and had repaid only $9,757, leaving a balance owing of $19,345, as to
particular sources of money delivered, as well as gross amount of the judgment, were adequately
supported, though trial court did not totally accept prevailing party's evidence.
OPINION
Per Curiam:
In this case, the district court determined that appellant had received a total of $29,100
from respondent, and repaid only $9,757, leaving a balance owing of $19,345.
Testimony of disinterested persons and of appellant would support a determination that
appellant received more from respondent than the trial court found. However, appellant
contends the judgment, as actually entered, must fail because appellant's counsel induced the
trial judge to make supplemental findings relating to particular sources of the money
delivered which, appellant contends, cannot be correlated precisely with amounts as testified
to by respondent or her witnesses. We do not agree.
Concerning two particular sources of money, the New China Club and the Colony Club,
the trial court's findings correspond exactly with those amounts to which independent
witnesses testified.
91 Nev. 265, 266 (1975) Harden v. Kogo
testified. Concerning other sources of money delivered, the court did not totally accept
respondent's evidence, and partially discounted her claims. Still, the individual findings, as
well as the gross amount of the judgment, were all adequately supported. Cf. Casey v.
Williams, 87 Nev. 137, 482 P.2d 824 (1971); Fireman's Fund Ins. v. Shawcross, 84 Nev. 446,
442 P.2d 907 (1968).
Affirmed.
____________
91 Nev. 266, 266 (1975) Richardson v. State
HAL RICHARDSON, Appellant, v. THE
No. 7609
April 30, 1975 534 P.2d 913
Appeal from conviction of fraudulent use of credit card to obtain credit in excess of
$100.00. Eighth Judicial District Court, Clark County; Clarence Sundean, Judge.
The Supreme Court held that where defendant asserted in defense that he had received
permission to use credit card from its owner by calling him from Las Vegas and that he was
merely using card as reference when he registered at hotel, intending to pay for room bill with
his own money, it was not improper for State, over objection of defense counsel, to establish
defendant's intent and motive at time of presenting card on registration by eliciting fact on
cross-examination that defendant had used card to purchase his air fare to Las Vegas prior to
calling owner of card.
Affirmed.
Morgan D. Harris, Public Defender, and Philip M. Pro, Deputy Public Defender, Clark
M. Seaton, Deputy District Attorney, Clark County, for Respondent.
1. Witness.
In prosecution for fraudulent use of a credit card to obtain credit in excess of $100, where defendant
asserted in defense that he had received permission to use credit card from its owner by calling him from
Las Vegas and that he was merely using card as reference when he registered at hotel, intending to pay for
room bill with his own money, it was permissible for State, over objection of defense counsel, to
establish defendant's intent and motive at time of presenting card on registration by
eliciting fact on cross-examination that defendant had used card to purchase his air
fare to Las Vegas prior to calling owner of card.
defense counsel, to establish defendant's intent and motive at time of presenting card on registration by
eliciting fact on cross-examination that defendant had used card to purchase his air fare to Las Vegas prior
to calling owner of card. NRS 48.045, subd. 2.
2. Criminal Law.
Trial court did not err by dismissing jury to determine whether probative value of evidence which State
wished to introduce as establishing intent and motive outweighed its prejudicial impact. NRS 48.045,
subd. 2.
3. Criminal Law.
Failure of defense counsel to request a limiting instruction on evidence which was introduced by State to
establish intent and motive constituted a waiver of right to complain of failure to give such instruction.
NRS 48.045, subd. 2.
OPINION
Per Curiam:
Hal Richardson was convicted of the crime of fraudulent use of credit card to obtain credit
in excess of $100 and was sentenced to a term of six years in the Nevada State Prison. It is
from this conviction that Richardson appeals.
Richardson's conviction stems from the use of another's credit card for hotel
accommodations and entertainment while in Las Vegas, Nevada. Richardson in defense
asserted that he had received permission to use the credit card from its owner by calling him
from Las Vegas, and that he merely was using the card as reference when he registered,
intending to pay for the room bill with his own money. On cross-examination of Richardson,
the State, over the objection of opposing counsel, elicited the fact that Richardson had used
the credit card in question to purchase his air fare to Las Vegas prior to calling the owner of
the card. It is the admission of this evidence that Richardson claims as error on appeal, and
further, that if not error in its admission, then error by the trial court in not giving a limiting
instruction as to the extent of consideration to be afforded it.
[Headnotes 1, 2]
The trial court prior to receiving the testimony of Richardson in regard to this evidence
dismissed the jury and heard argument from both parties as to its relevancy and prejudicial
effect. The trial court then made the determination that the evidence went to establishing
Richardson's intent and motive at the time of presenting the credit card on registration and for
this purpose it was allowed into evidence. Admission for this purpose under the facts of this
case is allowed. NRS 48.045(2); Lindsay v. State, 87 Nev. 1, 478 P.2d 1022 (1971); Tucker v.
State, S2 Nev. 127, 412 P.2d 970 {1966); Fernandez v. State, S1 Nev. 276, 402 P.2d 3S
{1965); Wallace v. State, 77 Nev. 123, 359 P.2d 749 {1961); State v. Cerfoglio, 46 Nev.
332
Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966); Fernandez v. State, 81 Nev. 276, 402
P.2d 38 (1965); Wallace v. State, 77 Nev. 123, 359 P.2d 749 (1961); State v. Cerfoglio, 46
Nev. 332, 205 P. 791 (1923). The trial court by dismissing the jury to determine whether the
probative value of the evidence outweighed its prejudicial impact complied with Nester v.
State, 75 Nev. 41, 334 P.2d 524 (1959); see also Lindsay v. State, supra.
[Headnote 3]
Under the circumstances of this case the failure of counsel to request a limiting instruction
waives the right to complain of the failure to give such an instruction. Wallace v. State, supra;
cf. Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967).
Affirmed.
____________
91 Nev. 268, 268 (1975) Barna v. Warden
BERNARD BARNA, Appellant, v. WARDEN,
No. 7675
April 30, 1975 534 P.2d 499
Appeal from denial of post-conviction relief; Second Judicial District Court, Washoe
Affirmed.
Defender, for Appellant.
Larry R. Hicks, District Attorney, and Kathleen M. Wall, Assistant Chief Deputy District
Attorney, Washoe County, for Respondent.
OPINION
Per Curiam:
We affirm the district court denial of post-conviction relief since the record does not
support the appellant's claim that his plea of guilty to robbery was the result of a plea bargain
which the prosecutor violated. Other claimed errors have been considered and also lack merit.
Affirmed.
____________
91 Nev. 269, 269 (1975) Gibbons v. Martin
MATILDA A. GIBBONS, Appellant, v. ASHTON K.
MARTIN and THELMA DEAN MARTIN, Respondents.
No. 7409
April 30, 1975 534 P.2d 915
Appeal from a judgment, Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Suit was brought to enjoin interference with alleged prescriptive easement upon a
turnaround which was located on defendant's property and which facilitated egress from
garage area on plaintiff's property. The district court denied relief and plaintiff appealed. The
Supreme Court held that where only prescriptive easement issue was squarely considered by
parties and trial court, no findings were made with reference to theories of easement by
necessity, easement by estoppel or irrevocable license coupled with an interest and
respondent had no opportunity to address those theories and would be prejudiced if they were
considered by Supreme Court, such issues were not tried with implied consent of parties
and would not be considered on appeal.
Affirmed.
Nada Novakovich, of Reno, for Appellant.
Woodburn, Wedge, Blakey, Folsom & Hug, and C. Robert Cox, of Reno, for Respondents.
Points not urged in trial court will not be entertained for first time on appeal. NRCP 15(b).
Where only prescriptive easement issue was squarely considered by parties in trial court, no findings
were made with reference to theories of easement by necessity, easement by estoppel or irrevocable license
coupled with an interest and respondent had no opportunity to address those theories and would be
prejudiced if they were considered by Supreme Court, such issues were not tried with implied consent of
parties and would not be considered on appeal. NRCP 15(b).
OPINION
Per Curiam:
On June 18, 1972, appellant filed suit seeking to enjoin the respondents from interfering
with an alleged prescriptive easement upon a turnaround located on the respondents'
property which facilitated egress from the garage area on appellant's property.
which facilitated egress from the garage area on appellant's property.
The pleadings, motions and decision of the trial court all deal exclusively with the issue of
easement by prescription. Now, for the first time on this appeal, appellant asserts theories of
an easement by necessity, an easement by estoppel and an irrevocable license coupled with an
interest.
[Headnote 1]
Points not urged in the trial court will not be entertained for the first time on appeal.
Cummings v. City of Las Vegas Mun. Corp., 88 Nev. 479, 499 P.2d 650 (1972).
Appellant contends that these alternative theories were tried with the implied consent of
the parties. NRCP 15(b) provides in part: When issues not raised by the pleadings are tried
by express or implied consent of the parties, they shall be treated in all respects as if they had
been raised in the pleadings. . . .
The counterpart of NRCP 15(b), Federal Rules of Civil Procedure 15(b), is discussed in 3,
Moore's Federal Practice 15.13(2), pages 992 to 997 (1974): . . . [A]n amendment after
judgment is not permissible which . . . changes the theory on which the case was actually
tried, even though there is evidence in the recordintroduced as relevant to some other
issuewhich would support the amendment. This principle is sound, since it cannot be fairly
said that there is any implied consent to try an issue where the parties do not squarely
recognize it is an issue in the trial. . . . The test should be whether the defendant would be
prejudiced by the implied amendment, i.e., . . . whether he could offer any additional
evidence if the case were to be retried on a different theory. In terms of the Rule, where such
prejudice is found it can be said that no implied consent exists. . . . Implied consent usually is
found where one party raises an issue material to the other party's case, or where evidence is
introduced without objection. . . . In a court case, the court must make findings on such
issues. . . . Cf. Cleary v. Indiana Beach, Inc., 275 F.2d 543 (7th Cir. 1960); Sears, Roebuck
& Co. v. Marhenke, 121 F.2d 598 (9th Cir., 1941); Hart v. Knox County, 79 F.Supp. 654
(D.C.Tenn. 1948).
[Headnote 2]
The record reveals no findings made by the trial court with reference to the theories of
necessity, estoppel or irrevocable license coupled with an interest. Only the prescriptive
easement issue was squarely considered by the parties and the trial court. The respondent,
who has had no opportunity to address these new theories, would be prejudiced if they were
to be given consideration by us.
new theories, would be prejudiced if they were to be given consideration by us. We will not
consider the validity of appellant's theories of an irrevocable license coupled with an interest
and easement by necessity and estoppel because the implied consent anticipated by NRCP
15(b) is absent.
Affirmed.
____________
91 Nev. 271, 271 (1975) Laand Corp. v. Firsching
THE LAAND CORPORATION and LOUIS POPP, Appellants, v. HELEN R. FIRSCHING
and ALFRED S. HOWES, Executors of the Estate of Robert A. Firsching, Deceased,
Respondents.
No. 7630
April 30, 1975 534 P.2d 916
Appeal from summary judgment; Eighth Judicial District Court, Clark County; Leonard I.
Gang, Judge.
Action was brought by estate of seller seeking to cancel contract for sale of land and to
quiet estate's title thereto. Defendant purchasers counterclaimed, denying breach of contract
and alleging damages. The district court entered summary judgment for estate, and purchasers
appealed. The Supreme Court, Thompson, J., held that performance of contract by purchasers
was not excused where purchasers could have made sales of 2 1/2-acre parcels as
contemplated by written land sale contract, since subdivision ordinance had no application to
sales of parcels of 2 1/2 acres or more, while, on the other hand, if seller and purchasers had
contemplated resale of lots in a subdivision purchasers could have done so upon complying
with the requirements of subdivision ordinance, which was purchaser's obligation.
Affirmed.
Daryl Engebregson, of Las Vegas, for Appellants.
Beckley, Singleton, DeLanoy & Jemison, Chartered, of Las Vegas, for Respondents.
1. Vendor and Purchaser.
Parties to contract for sale of land would not be held to have contemplated the resale by purchasers of
subdivision lots, as contended by defendant purchasers, where contract described the property by reference
to sections, ranges and townships, contract did not mention lots, blocks or subdivisions, and
contract provided for the resale by purchasers of 2 1J2-acre parcels to third parties,
the proceeds thereof to be deposited in escrow and divided between seller and
purchaser in a certain ratio.
not mention lots, blocks or subdivisions, and contract provided for the resale by purchasers of 2 1/2-acre
parcels to third parties, the proceeds thereof to be deposited in escrow and divided between seller and
purchaser in a certain ratio.
Where vendor of land did not agree to pay for and construct improvements required by county
subdivision ordinances, obligation to comply with the ordinances rested with the purchasers.
Purchasers' performance of contract relating to sale of land, which contract described the property by
reference to sections, ranges and townships, which made no mention of lots, blocks or subdivisions, and
which provided for resale by purchasers of 2 1/2-acre parcels to third parties, was not excused where
purchasers could have made sales of 2 1/2-acre parcels as contemplated by the contract, since county
subdivision ordinance had no application to sales of parcels of 2 1/2 acres or more, or, if vendor and
purchasers had contemplated the resale of lots in subdivision, purchasers could have done so upon
complying, as was their obligation, with requirements of subdivision ordinance.
OPINION
The district court granted summary judgment to the Estate of Robert A. Firsching against
Laand Corporation and Louis Popp. That judgment cancelled a contract for the sale of land in
Nye County and quieted the estate's title thereto as against any claim asserted by Laand
Corporation and Popp. This appeal is from that judgment. Since we do not perceive a genuine
issue as to any material fact, NRCP 56, we affirm.
The contract was made in May 1969 between the seller Firsching and Popp and others as
buyers. One month later the buyers assigned their interest in the contract to Laand
Corporation. The contract called for the sale of 820 acres for the total price of $492,000.
Twenty-five thousand dollars was paid down. The property was described by reference to
sections, ranges and townships. Mention was not made of lots, blocks or subdivisions. The
contract provided for the sale of 2 1/2-acre parcels to third parties, the proceeds thereof to be
deposited in escrow and divided between seller and buyer on a 60-40 ratio. Sales of certain
numbers of such 2 1/2-acre parcels were to be made on or before certain dates and the
delayed balance of the purchase price would become due in May 1972.
The contract was amended in November 1969 to extend the period in which the designated
number of 2 1/2-acre parcel sales were to be made, and requiring that a minimum of one
hundred 2 1J2-acre parcels be sold in any one year period commencing November 6,
1969.
were to be made, and requiring that a minimum of one hundred 2 1/2-acre parcels be sold in
any one year period commencing November 6, 1969. Firsching died November 15, 1969.
The contract did not obligate the seller to improve the property in ay respect. The buyer
acknowledged inspection of the property and examination of the zoning and use thereof.
Conveyance thereof was to be made free of encumbrances except special assessment,
conditions, restrictions, reservations, covenants, rights, and rights of way now of record. Four
years earlier, in 1965, the seller had recorded a subdivision map contemplating division of the
property into blocks and lots, but had done nothing more in furtherance of that scheme. The
contract also provided that in the event of default by the buyer, the seller was privileged to
declare the contract void and retain all monies received as liquidated damages.
The buyer never sold a 2 1/2-acre parcel to a third party. Neither did the buyer make any
payments pursuant to the contract other than the down payment and an additional sum of
$1500. Prior to June of 1970, the buyer did, however, sell lots containing less than 10,000
square feet in an alleged subdivision. Its failure to sell 2 1/2-acre parcels as required by the
contract and to make the contemplated payments precipitated this litigation to cancel the
contract for material breach. And, its sale of lots in an alleged subdivision, rather than the sale
of 2 1/2-acre parcels, caused Nye County in December of 1969 to file suit to enjoin further
sales until relevant statutes and ordinances pertaining to subdivisions had been complied
with.
It is clear from the record that the sale of 2 1/2-acre parcels was legally permissible. It is
equally clear that the sale of lots within an alleged subdivision was not permissible until
necessary improvements (streets, etc.) were provided for.
The seller's action to cancel the contract was countered by the buyer's denial of breach and
counterclaim for damages. It was the buyer's contention that its performance was excused by
reason of the seller's failure to arrange for and effectuate improvements required by county
ordinance for subdivisions within the County of Nye. Consequently, the controversy centered
mainly upon whose obligation it was to pay for and construct improvements required by the
subdivision ordinances of Nye County.
[Headnote 1]
1. Since the contract did not provide for the sale to third parties of lots in a recorded
subdivision, but only for the sale of 2 1/2-acre parcels, it would seem that the contract itself
denies the buyer's contention that the parties really contemplated the sale of lots.
the buyer's contention that the parties really contemplated the sale of lots. This observation
aside, the buyer's performance was not excused.
[Headnote 2]
If we were to assume that evidence extraneous to the contract would establish the parties'
intention to provide for the sale of subdivision lots in lieu of 2 1/2-acre parcels, it is clear that
a public zoning restriction in existence at the time of the making of the contract does not
affect the rights and remedies otherwise available to the contracting parties.
1
Here, the seller
did not agree to pay for and construct improvements required by the Nye County subdivision
ordinances. [Cf. Kahle v. Kostiner, 85 Nev. 355, 455 P.2d 42 (1969), where the seller
promised to make improvements and the buyer's performance was held to be excused.] In
such circumstance, the obligation to comply with the ordinance rests with the buyer. Fritts v.
Gerukos, 159 S.E.2d 536 (N.C. 1968).
[Headnote 3]
In the instance before us, the buyer could have made sales of 2 1/2-acre parcels as
contemplated by the written contract since the subdivision ordinance had no application to
sales of parcels of 2 1/2 acres or more. On the other hand, if the contracting parties truly
contemplated the sale of lots in a subdivision, the buyer could have done so upon complying
with the requirements of the subdivision ordinance, which was its obligation. In either event,
its performance of the contract was not excused.
2. Since the buyer's breach of the land sale contract is established and its failure to perform
not excused, we need not consider other assigned errors.
Affirmed.
____________________

1
See Annots., 175 A.L.R. 1055; 39 A.L.R.3d 362.
____________
91 Nev. 275, 275 (1975) State v. Bill
THE STATE OF NEVADA Appellant, v. BILL.............
and MURIEL.............., His Wife,* Respondents.
No. 7400
April 30, 1975 534 P.2d 1264
Appeal from a preliminary injunction, Sixth Judicial District Court, Humboldt County;
Llewellyn Young, Judge.
Foster parents of foundling child petitioned for permission to adopt child. The district
court directed welfare division of department of health, welfare and rehabilitation to cease its
efforts to remove child from foster home, and division appealed. The Supreme Court, Batjer,
J., held that fact that a district court had ordered that care, custody and control of child be
assigned to welfare division did not preclude another district court from exercising
jurisdiction over subsequent petition for permission to adopt and that adoption proceedings
are not exclusive province of welfare division; role of division, with regard to petition to
adopt, is one of advisor to court, not decision maker.
Affirmed and remanded.
Robert List, Attorney General, and Robert E. Holland, Deputy Attorney General, Carson
James A. Callahan, of Winnemucca, for Respondents.
1. Courts.
That a district court had ordered that care, custody and control of foundling child be assigned to welfare
division of department of health, welfare and rehabilitation did not preclude another district court from
exercising jurisdiction over subsequent petition by child's foster parents for permission to adopt. NRS
62.040, 62.070, 127.010.
2. Courts.
Juvenile Court Act provision that When jurisdiction shall have been obtained by the court in the case of
any child, the court may retain jurisdiction of the child until it reaches the age of 21 years prevents another
court from wresting jurisdiction over a child from juvenile court only as to the particular instance of
jurisdiction, such as neglect, originally asserted in a juvenile court. NRS 62.070.
3. Courts.
Juvenile Court Act's grant of exclusive and original jurisdiction is limited and does not preclude other
state courts from exercising their statutorily authorized jurisdiction. NRS 62.040.
____________________
* This court follows the policy of omitting names or identifying features in a juvenile or adoption matter. This
is deemed to be in the best interests of the child.
91 Nev. 275, 276 (1975) State v. Bill
4. Adoption.
Adoption proceedings are not exclusive province of welfare division of department of health, welfare and
rehabilitation; role of division, with regard to petition to adopt, is one of advisor to court, not decision
maker. NRS 34.320-34.350, 127.150.
OPINION
The subject of this action is a foundling child who was abandoned in a garbage container
in Battle Mountain, Lander County, Nevada.
On September 8, 1972, the Third Judicial District Court, which encompasses Lander
County, ordered that the juvenile master of Lander County be granted the physical care,
custody and control of the child along with the power to make such provisions for said child
as its best interests shall indicate. The order further stated that care, custody and control of
the child be assigned to the Nevada State Welfare Department [welfare division of the
department of health, welfare and rehabilitation] for the benefit of the above minor child.
On September 11, 1972, the child was placed in the home of the respondents who reside in
Winnemucca, Humboldt County, Nevada, which is located within the Sixth Judicial District.
They operated a licensed foster home and the child was placed with them as a foster child.
On April 30, 1973, they petitioned the Sixth Judicial District Court for permission to adopt
the child. The Honorable Llewellyn Young, District Judge, by restraining order, directed the
welfare division of the department of health, welfare and rehabilitation (now department of
human resources) to cease its efforts to remove the child from the foster home.
1

[Headnote 1]
The welfare division asserts on appeal that the Sixth Judicial District Court is without
jurisdiction to entertain the petition on adoption on the ground that NRS 62.040, NRS 62.070
and Dickerson v. Short, 74 Nev. 250, 328 P.2d 299 (1959), estop that district court from
entertaining an adoption matter that arose from another county and district court, to wit,
Lander County, Third Judicial District.
____________________

1
Prior to filing the petition the foster parents had attempted to apply for adoption of the child with the
Welfare Division office in Winnemucca, but were refused. Since then the foster parents have filed a petition for
termination of parental rights of the child's natural parents, which was so ordered. A petition for Letters of
Guardianship was filed and the publication of Notice was ordered and published.
91 Nev. 275, 277 (1975) State v. Bill
estop that district court from entertaining an adoption matter that arose from another county
and district court, to wit, Lander County, Third Judicial District. We do not agree.
Nevada's Juvenile Court Act specifically enumerates in NRS 62.040
2
when a district
court sitting as a juvenile court has exclusive and original jurisdiction. One of those instances
of jurisdiction is the abandonment of a child, who is then deemed neglected in the parlance
of the Juvenile Act. Our legislature has been equally explicit in providing the district courts
with original jurisdiction in adoption proceedings. NRS 127.010.
3

[Headnotes 2, 3]
Appellant's argument that NRS 62.070
4
prevents another court from wresting jurisdiction
over the child from the juvenile court is correct only as to the particular instance of
jurisdiction, i.e., neglect, originally asserted in the juvenile court. The ruling in Dickerson,
supra, is not dispositive of the issue we now consider, for in that case a district court in
Washoe County made an order inconsistent with a prior order of a district court in Elko
County, and therein asserted the same jurisdictional grounds already asserted in Elko County.
Here, the jurisdictional grounds for the adoption proceedings in Humboldt County are entirely
different from those claimed in the Lander County Juvenile Court proceedings. The Juvenile
Court Act's grant of exclusive and original jurisdiction is limited and does not preclude other
state courts from exercising their statutorily authorized jurisdiction. Anderson v. Anderson,
416 P.2d 308 (Utah 1966). The prospective parents' petition for adoption effectively invoked
the jurisdiction of the Sixth Judicial District Court.
[Headnote 4]
Appellant further challenges the Sixth Judicial District Court's jurisdiction as a derogation
of the function of the welfare division as an adoption agency and as custodian of a juvenile.
____________________

2
NRS 62.040: 1. Except as otherwise provided in this chapter, the court shall have exclusive original
jurisdiction in proceedings:
(a) Concerning any child living or found within the county who is neglected because:
(1) He has been abandoned by his parents, guardian, or other custodian.

3
NRS 127.010: The district courts of this state shall have original jurisdiction in adoption proceedings.

4
NRS 62.070: When jurisdiction shall have been obtained by the court in the case of any child, the court
may retain jurisdiction of the child until it reaches the age of 21 years.
91 Nev. 275, 278 (1975) State v. Bill
juvenile. See NRS 62.200(1)(b) and NRS 127.051. The adoption statutes do not support the
department's claim that adoption proceedings are the exclusive province of the welfare
division.
Nevada law provides that any two married persons, among others, may petition the district
court to adopt a child. NRS 127.030.
5
After receiving notice and a copy of such petition, it is
then the province of the welfare division to verify the allegations of the petition and complete
a background investigation of both the prospective parents and the child. NRS 127.120.
6
After the welfare division's findings and recommendation as to the adoption are weighed by
the court against the allegations of the petition, the court makes a final decision on the
adoption. NRS 127.150.
7
The role of the welfare division is one of advisor to the court, not
decision maker.
____________________

5
NRS 127.030: Any adult person or any two persons married to each other may petition the district court of
any county in this state for leave to adopt a child. The petition by a person having a husband or wife shall not be
granted unless the husband or wife consents thereto and joins therein.

6
NRS 127.120: 1. A petition for adoption of a child shall be filed in duplicate with the county clerk. The
county clerk shall send one copy of the petition to the welfare division of the department of human resources,
which shall make an investigation and report as hereinafter provided. If one petitioner or the spouse of a
petitioner is related to the child within the third degree of consanguinity, the court may, in its discretion, waive
the investigation by the welfare division.
2. The welfare division of a licensed child-placing agency authorized to do so by the court shall verify the
allegations of the petition and investigate the condition and the antecedents of the child and make proper inquiry
to determine whether the proposed adopting parents are suitable for the minor. The welfare division or the
designated agency shall, prior to the date on which the child shall have lived for a period of 6 months in the
home of the petitioners or within 30 days after receiving the copy of the petition for adoption, whichever date is
later, submit to the court a full written report of its findings, which shall contain a specific recommendation for
or against approval of the petition, and shall furnish to the court any other information regarding the child or
proposed home which the court may require. The court, on good cause shown, may extend the time, designating
a time certain, within which to submit a report.
3. If the court is dissatisfied with the report submitted by the welfare division, the court may order an
independent investigation to be conducted and a report submitted by such agency or person as the court may
select. The costs of such investigation and report may be assessed against the petitioner or charged against the
county wherein the adoption proceeding is pending.

7
NRS 127.150: 1. If the court finds that the best interests of the child warrant the granting of the petition,
an order or decree of adoption shall be made and filed, ordering that henceforth the child shall be
91 Nev. 275, 279 (1975) State v. Bill
Other issues respecting the merits of the adoption proceeding are not properly before this
court, either by way of appeal from the preliminary injunction, or by means of the parties'
joint stipulation that this matter be considered a petition for writ of prohibition. See NRS
34.320 to 34.350.
Affirmed and the matter is remanded to the Sixth Judicial District Court for further
proceedings on the adoption petition.
____________________
the child of the petitioners. In the decree the court may change the name of the child, if desired. No order or
decree of adoption shall be made until after the child shall have lived for a period of 6 months in the home of the
petitioners.
2. If the court is not satisfied that the proposed adoption is in the best interests of the child, the court shall
deny the petition and may order the child returned to the custody of the person or agency legally vested with
custody.
____________
91 Nev. 279, 279 (1975) Terrible v. Terrible
ELIZABETH M. TERRIBLE, Appellant, v. JOSEPH
FRANK TERRIBLE, Respondent.
No. 7328
April 30, 1975 534 P.2d 919
Appeal from a judgment ordering partition of real property, Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
Ex-wife appealed from a judgment of the district court granting ex-husband's petition for
partition of real property distributed under the terms of divorce decree. The Supreme Court,
Batjer, J., held that ex-husband waived any right to demand partition when he agreed, during
course of prior divorce trial, that until such time as the parties agreed upon a sale his wife
could live in residence situated on the parcel in question, manage the properties located
thereon, retain the income and pay the costs of use and occupancy; and he was estopped from
repudiating and invalidating, in part, the divorce decree from which no appeal was taken.
Reversed.
Albright & McGimsey, of Las Vegas, for Appellant.
Austin, Thorndal & Liles, Ltd., of Las Vegas, for Respondent.
1. Divorce; Partition.
Ex-husband waived any right to demand partition of parcel when he agreed, during course of prior
divorce trial, that until such time as the parties agreed upon a sale his wife could live in residence situated
on the parcel, manage the properties located thereon, retain the income and pay the costs of use and
occupancy; and he was estopped from repudiating and invalidating, in part, the divorce decree from which
no appeal was taken. NRS 39.010.
2. Partition.
Every tenant in common that has the right to the present enjoyment of property, or the proceeds thereof,
is entitled to demand a partition thereof as a matter of right, but the right to partition is not absolute and
may be waived by reason of an agreement or defeated by directives in a prior judgment from which no
appeal has been taken.
3. Estoppel.
Doctrine of equitable estoppel will not permit a party to repudiate acts done or positions taken or
assumed by him when there has been reliance thereon and prejudice would result to the other party.
OPINION
On May 6, 1971, a decree [judgment] of divorce was entered terminating the marriage of
the parties. One of the parcels of property distributed under the terms of the decree was Parcel
I
1
in which the trial judge terminated the joint tenancy and ordered that the parcel be held
by the parties as tenants in common, each owning an undivided one-half interest.
____________________

1
In pertinent parts the judgment effecting Parcel I reads as follows:
C. Plaintiff shall occupy Parcel I and shall collect and retain all income therefrom and maintain the same in
good rental condition, pay all real and personal property taxes assessed against the property, pay all utilities and
other expenses incurred in the use and occupancy of the property, and maintain and pay extended coverage fire
and casualty insurance thereon and neither remove nor permit the removal of any personal property situated
thereon until such time as said parcel is sold.
Plaintiff shall not incur any expenses for maintenance or repairs or additions to any of the units at the
expense in excess of one month's rent derived from such unit without first obtaining the permission or consent of
the defendant to undertake these expenditures.
D. That should either party desire to sell his or her interest in Parcel 1 or 2, or any part thereof, and finds a
purchaser, or purchasers, who are ready, able and willing to purchase the same, the other party shall have an
option to purchase the interest of the party so desiring to sell for the amount of any bona fide offer made by any
third party or parties; and the option of either party to buy the interest of the other party at such price shall
extend for a period of seventy-five (75) days after notice of such bona fide offer has been communicated to it in
writing by the party desiring to sell.
If said option to purchase at such price is not exercised within such
ordered that the parcel be held by the parties as tenants in common, each owning an
undivided one-half interest.
On or about January 21, 1972, the respondent received an offer in the amount of $150,000
for the entire parcel. He attempted to induce the appellant to agree to the sale, but she refused.
He then instituted this action to partition his interest.
The district judge, who is not the judge who entered the divorce decree, held a trial on the
petition for partition and found that, although the respondent's interest was a subject for
partition, it was impractical to partition the parcel, so he ordered it sold and the net proceeds
of sale to be equally divided.
In her appeal from the judgment of partition, appellant relies in part on the provisions of
NRS 39.010.
2
See Conter v. Herschel, 24 Nev. 152, 50 P. 851 (1897); Wolford v. Wolford,
65 Nev. 710, 200 P.2d 988 (1948). She contends that the district court erred because
respondent had an insufficient interest in the parcel to entitle him to have it partitioned and
that the judgment of divorce precluded him from such entitlement.
[Headnote 1]
We need not determine whether respondent had a sufficient interest in the parcel to afford
him standing to demand partition because (1) he waived any right to so petition when he
consented during the course of the divorce trial that until such time as the parties agreed
upon a sale, the appellant could live in the residence situated on the parcel, manage the
properties located thereon, retain the income and pay the costs of use and occupancy,
and {2) he is estopped from repudiating and invalidating, in part, the divorce entered on
May 6, 1971, from which no appeal has been taken.
____________________
seventy-five (75) day period, then the party so desiring to sell may dispose of his or her interest, or interests to a
third party, or parties.
That as and for support and maintenance, the plaintiff has been awarded the occupancy and income from
Parcel 1 and the outdoor advertising sign, until Parcel 7 is sold or otherwise disposed of. That in the event
plaintiff's income from all sources, including such parcel, employment and otherwise, averages over a year's time
less than $400 per month, the defendant shall pay to plaintiff a sum sufficient for her income to be equal to the
sum of $400 per month.

2
NRS 39.010 provides in pertinent part: When several persons hold and are in possession of real property as
joint tenants or as tenants in common, in which one or more of them have an estate of inheritance, or for life or
lives, or for years, an action may be brought by one or more of such persons for a partial partition thereof
according to the respective rights of the persons interested therein, and for a sale of such property or a part of it,
if it appears that a partition cannot be made without great prejudice to the owners. Whenever from any cause it
is, in the opinion of the court, impracticable or highly inconvenient to make a complete partition, in the first
instance, among all the parties in interest, the court may first ascertain and determine the shares or interest,
respectively held by the original cotenants, and thereupon adjudge and cause a partition to be made, as if such
original cotenants were the parties, and sole parties, in interest. . . .
as the parties agreed upon a sale, the appellant could live in the residence situated on the
parcel, manage the properties located thereon, retain the income and pay the costs of use and
occupancy, and (2) he is estopped from repudiating and invalidating, in part, the divorce
entered on May 6, 1971, from which no appeal has been taken.
By his unilateral concession memorialized in the divorce court's findings of fact and
conclusions of law, respondent gave assurance to appellant that, until such time as the parties
had agreed upon a sale or until such time as a formula for sale is determined, the appellant
could live in the residence on the parcel, manage the properties located thereon, retain the
income and pay the costs of the use and occupancy.
[Headnote 2]
In Wolford, supra, an action was filed for partition of a parcel of property awarded to the
parties as tenants in common in a prior annulment proceeding. There, this court said: Every
tenant in common that has the right to the present enjoyment of the property, or the proceeds
thereof, is entitled to demand a partition of the property as a matter of right. 65 Nev. at 715,
716. Nevertheless, the right to partition the real property is not absolute and may be waived
by reason of an agreement, or, as here, defeated by directives in a prior judgment from which
no appeal has been taken. Cf. Rodkey v. Rees, 527 P.2d 1150 (Okla.App. 1974); Goodpasture
v. Goodpasture, 278 A.2d 531 (N.J.Super. 1971); Nazzisi v. Nazzisi, 21 Cal.Rptr. 396
(Dist.Ct.App. 1966).
The rule concerning the right to partition was stated by the Illinois court in Arnold v.
Arnold, 139 N.E. 592, 593 (Ill. 1923), in the following language: . . . It has been said in
general terms that an adult tenant in common has an absolute right to partition. . . . [B]ut it
has been in cases where there was neither an equitable nor legal objection to the exercise of
the right, and partition was in accordance with the principles governing courts of equity.
Wherever any interest inconsistent with partition has been involved, the general rule has
always been qualified by the statement that equity will not award partition at the suit of one in
violation of his own agreement, . . . or where partition would be contrary to equitable
principles. Partition will not be awarded in a court of equity, where there has been an
agreement either not to partition, or where the agreement is such that it is necessary to secure
the fulfillment of the agreement that there should not be a partition. Such an agreement may
be verbal, if it has been acted upon, and it need not be expressed, but will be readily implied,
and enforced, if necessary to the protection of the parties."
be expressed, but will be readily implied, and enforced, if necessary to the protection of the
parties.
Here the issue of the right to possession and enjoyment of this particular property was
litigated in the action for divorce and adjudicated by the divorce decree. It cannot be
relitigated in this action for partition between the same parties. The divorce decree is a bar to
this subsequent action for partition although partition was not sought in the divorce action.
Miller v. Miller, 54 Nev. 44, 3 P.2d 1069 (1931).
[Headnote 3]
The doctrine of equitable estoppel will not permit a party to repudiate acts done or
positions taken or assumed by him when there has been reliance thereon and prejudice would
result to the other party. See Gardner v. Pierce, 22 Nev. 146, 36 Pac. 782 (1894); Noble Gold
Mines Co. v. Olsen, 57 Nev. 448, 66 P.2d 1005 (1937). Cf. Woods v. Bromley, 69 Nev. 96,
241 P.2d 1103 (1952); Beck v. Curti, 56 Nev. 72, 45 P.2d 601 (1935); Sharon v. Minnock, 6
Nev. 377 (1871); Goodpasture v. Goodpasture, supra.
Respondent has voluntarily consented to an occupation and use of the real property which
has been embodied in a decree of divorce upon which appellant has relied. By that unilateral
concession respondent has waived any right to partition to which he might otherwise have
been entitled and he is estopped from proceeding to partition.
In Nazzisi, supra, the husband was given the exclusive right to reside on a parcel of
property as a result of a property settlement agreement. There the court so found by virtue of
the agreement, notwithstanding the general rule that a cotenant may require partition of a
cotenancy as a matter of absolute right.
In Wolford, supra, where a judgment of partition was affirmed, the facts are readily
distinguishable from this case because there a simple designation was made by the court
decreeing that property would be held by the parties as tenants in common. There were no
restrictions or obligations attached, such as those found in the divorce decree in this case. In
Wolford there was no waiver or estoppel, therefore partition was mandatory.
In Alexander v. Winters, 23 Nev. 475, 486, 49 P. 116 (1879), this court said: It is well
settled that a person cannot accept and reject the same instrument, or, having availed himself
of it as to part, defeat its provisions in any other part. Although reference in Alexander was
to a contract, the principle is applicable with equal force to a decree of divorce which
embodies the unilateral concessions of the respondent.
Although reference in Alexander was to a contract, the principle is applicable with equal
force to a decree of divorce which embodies the unilateral concessions of the respondent.
We conclude that respondent's action for partition is barred by the divorce decree. The
judgment of the district court is reversed and the matter is remanded with instructions to enter
judgment for appellant.
____________
91 Nev. 284, 284 (1975) Boswell v. Warden
WILLIAM EDGAR BOSWELL, Appellant, v. WARDEN,
No. 8117
May 13, 1975 534 P.2d 1263
Appeal from order denying petition for writ of habeas corpus, First Judicial District,
Carson City; Frank B. Gregory, Judge.
The Supreme Court held that where allegations contained in petition raised issue whether
petitioner was afforded due process procedural protections in parole revocation proceedings,
district judge should have granted writ without delay, and his failure to do so required
reversal and a remand of case with instruction to issue the writ forthwith, to order a return
thereto, to appoint counsel, and to grant an immediate hearing and resolve allegations set
forth in petition.
William Edgar Boswell, in pro per, Carson City, for Appellant.
Robert List, Attorney General, Robert A. Groves, Chief Deputy Attorney General, and
Michael Fondi, District Attorney, Carson City, for Respondent.
Parole revocation proceedings involve the loss of limited freedom and such loss is sufficiently grievous to
come within Due Process Clause. NRS 34.390 et seq., 34.430 et seq., 34.460; U.S.C.A.Const. Amend.
14.
2. Habeas Corpus.
Where allegations contained in petition for habeas corpus raised issue whether petitioner was afforded
Due Process procedural protections in parole revocation proceedings, district judge should have
granted writ without delay, and his failure to do so required reversal and remand of
case with instruction to issue the writ forthwith, to order a return thereto, to appoint
counsel, and to grant an immediate hearing and resolve allegations set forth in
petition. NRS 34.390 et seq., 34.430 et seq.,
91 Nev. 284, 285 (1975) Boswell v. Warden
have granted writ without delay, and his failure to do so required reversal and remand of case with
instruction to issue the writ forthwith, to order a return thereto, to appoint counsel, and to grant an
immediate hearing and resolve allegations set forth in petition. NRS 34.390 et seq., 34.430 et seq.,
34.460; U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
William Edgar Boswell, after pleading guilty to second degree murder, was sentenced on
November 15, 1956, to serve not less than 10 years nor more than life. Parole, granted in
1966, was revoked in 1973. Thereafter, Boswell filed an in pro per petition for habeas corpus
contending, inter alia, the actions of the parole board in the revocation proceedings violated
his constitutional rights.
The district court neither processed the petition nor ordered a return thereto; and, without
hearing or appointment of counsel, summarily denied habeas relief. An appeal has been
perfected. Having reviewed the record we, sua sponte, conclude the summary action by the
district court constitutes reversible error.
1

[Headnote 1]
Parole revocation proceedings involve the loss of limited freedom and such loss is
sufficiently grievous to come within the Due Process Clause of the Fourteenth Amendment.
Morrissey v. Brewer, 408 U.S. 471 (1972).
[Headnote 2]
Whether Boswell was afforded the Due Process procedural protections contemplated by,
and delineated in, Morrissey was not considered by the trial court, even though the allegations
contained in the habeas petition raised the issues. Under such circumstances, the district judge
should have granted the writ without delay (see NRS 34.390 et seq.; NRS 34.430 et seq.);
and, his failure to do so compels us to reverse and remand. The First Judicial District Court,
Carson City, is instructed: (1) to issue the writ forthwith; (2) to order a return thereto; (3) to
appoint counsel; and, (4) pursuant to NRS 34.460, grant an immediate hearing and resolve the
allegations set forth in the petition for habeas corpus.
Remittitur shall issue forthwith.
____________________

1
Mr. Justice Batjer took no part in the deliberation of this case.
____________
91 Nev. 286, 286 (1975) Werner v. Shoshone Coca-Cola Bottling Co.
DOROTHY E. M. WERNER, Appellant, v. SHOSHONE
COCA-COLA BOTTLING COMPANY, Respondent.
No. 7702
May 13, 1975 535 P.2d 161
Appeal from order denying appellant's motion for a judgment notwithstanding the verdict
or in the alternative for a new trial. Fifth Judicial District Court, Mineral County; Kenneth L.
Mann, Judge.
Action was brought to recover under doctrine of strict liability in tort in area of products
liability. The district court denied plaintiff's motion for judgment notwithstanding verdict or
in alternative for a new trial, and plaintiff appealed. The Supreme Court held that actual
injury must be shown to recover on a theory of strict liability in tort and mere nominal
damages to vindicate a technical right are insufficient.
Affirmed.
Charles E. Springer, Ltd., of Reno, for Appellant.
Echeverria and Osborne, Chartered, of Reno, for Respondent.
Where appellant did not cite any authority in support of contention on appeal, Supreme Court did not
have to consider contention.
2. Torts.
Actual injury must be shown to recover on a theory of strict liability in tort and mere nominal damages to
vindicate a technical right are insufficient.
OPINION
Per Curiam:
[Headnotes 1, 2]
The appellant's contention on appeal is that proof of actual damages is not an essential part
of a plaintiff's case under the doctrine of strict liability in tort in the area of products liability.
The appellant fails to cite any authority for this claimed error and as such this court need not
consider it. Bradshaw v. General Electric Co., 91 Nev. 124, 531 P.2d 1358 (1975); General
Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 {1972).
91 Nev. 286, 287 (1975) Werner v. Shoshone Coca-Cola Bottling Co.
(1972). Further, such a contention is without merit for actual injury must be shown to recover
on a theory of strict liability in tort and mere nominal damages to vindicate a technical right
are insufficient. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970); Shoshone
Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966).
Affirmed.
____________
91 Nev. 287, 287 (1975) Geitner v. State
FRANCIS GEITNER, Appellant, v. THE STATE
No. 7754
May 14, 1975 535 P.2d 157
Appeal from an order denying post-conviction relief; Sixth Judicial District Court,
Humboldt County; Llewellyn A. Young, Judge.
The Supreme Court held that testimony by prosecutor that he had not promised to
recommend probation in exchange for plea of guilty demonstrated that prosecutor had not
violated plea bargaining agreement by failing to recommend probation; and that trial court did
not err in relying on presentence report which indicated that defendant had nine prior forgery
convictions, even though defendant believed that he had only seven prior convictions.
Affirmed.
William Macdonald, District Attorney, Humboldt County, for Respondent.
1. Criminal Law.
Prosecutor's testimony that he had not promised to recommend probation in exchange for plea of guilty
and that, in view of defendant's prior convictions for forgery, his chances for probation upon conviction of
uttering a forged instrument were slim demonstrated that prosecutor did not violate plea bargaining
agreement by failing to recommend probation.
2. Criminal Law.
Defendant's statement, when asked about accuracy of presentence report which indicated that he had nine
prior forgery convictions, that he would not dispute the record and that he was sure that it was a true
and valid record demonstrated that trial court did not err in relying on the report
containing reference to nine forgery convictions even though defendant believed that
he only had seven prior convictions.
91 Nev. 287, 288 (1975) Geitner v. State
that it was a true and valid record demonstrated that trial court did not err in relying on the report
containing reference to nine forgery convictions even though defendant believed that he only had seven
prior convictions.
OPINION
Per Curiam:
This appeal from the district court order denying post-conviction relief asserts error in two
respects: first, that the record shows that the prosecutor violated a plea bargaining agreement
that he would recommend probation and, second, that the judge, in pronouncing sentence,
relied upon an erroneous presentence report containing reference to nine rather than seven
prior forgery convictions. Neither assertion has merit.
[Headnote 1]
The appellant pleaded guilty to uttering a forged instrument. The prosecutor testified that
he had not promised to recommend probation in exchange for the plea of guilty. To the
contrary, he testified that in view of the appellant's prior convictions for forgery his chance
for probation was slim. Indeed, on this point, the appellant did not testify to a prosecutorial
promise, but only as to his impression of a conversation with the prosecutor about the subject
of probation. In short, the record does not support his claim that his plea of guilty was the
result of a plea bargain which the prosecutor violated. Barna v. Warden, 91 Nev. 268, 534
P.2d 499 (1975).
[Headnote 2]
Neither does the record support his contention that the presentence report with regard to
the number of his prior convictions was erroneous. Although he believed that he had been
convicted seven rather than nine times there is no proof to support such belief, and when
asked about the accuracy of the report he stated, among other things, Your honor, may I say
that I won't dispute the record, he has got it and I am sure that it is a true and valid record.
Affirmed.
____________
91 Nev. 289, 289 (1975) Lawry v. Lawry
JACK D. LAWRY, Appellant, v. DONNA Y.
LAWRY, Respondent.
No. 7691
May 14, 1975 535 P.2d 158
Appeal from child custody order; First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Divorced father appealed from order of the district court granting custody of his minor son
to mother and complained that order denied him reasonable visitation. The Supreme Court
held that where order was silent with regard to visitation and findings were not made as to
effect of relieving father from further obligation to pay child support upon present comfort
and future well-being of child, case would be remanded for further proceedings.
Remanded for further proceedings.
Daniel R. Walsh and Patrick V. Fagan, of Carson City, for Appellant.
William J. Crowell and Robert L. Crowell, of Carson City, for Respondent.
Divorce.
Where order awarding custody of parties' minor son to divorced wife was silent with regard to
visitation and findings were not made as to effect of relieving former husband from further obligation to
pay child support upon present comfort and future well-being of child, case would be remanded for
further proceedings.
OPINION
Per Curiam:
A divorced father appeals from an order of the district court granting full and complete
custody, care and control of his minor son to the mother, his former wife. The order also
relieved the father from further support payments for his son.
The father construes the order to deny him reasonable visitation and appeals on that basis.
He does not challenge the award of custody.
The order is silent with regard to visitation, and we are not willing to imply a denial of
visitation nor assume that so drastic a penalty was intended by the court below. Moreover,
with regard to that part of the order relieving the father of further child support, required
findings as to the effect of total suspension of child support upon the present comfort and
future well-being of the child were not made.
91 Nev. 289, 290 (1975) Lawry v. Lawry
child support, required findings as to the effect of total suspension of child support upon the
present comfort and future well-being of the child were not made. Noble v. Noble, 86 Nev.
459, 470 P.2d 430 (1970).
Accordingly, we remand this case to the district court for further proceedings consistent
with this opinion.
____________
91 Nev. 290, 290 (1975) Schultz v. State
DOUGLAS RANDALL SCHULTZ, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 7573
May 14, 1975 535 P.2d 166
Appeal from a judgment of conviction of robbery in the Eighth Judicial District Court,
County of Clark; Clarence Sundean, Judge.
The Supreme Court, Batjer, J., held that two-day delay beyond expiration of 60-day period
for a speedy trial did not deny defendant his statutory or constitutional rights to speedy trial;
that district court's acceptance of waivers of 60-day speedy trial rule and of defendant's
presence at hearing for continuance proffered by defendant's counsel was not error; and that
failure of district court to insist that certain testimony requested by jury after it had
commenced deliberations be located and provided jury was not prejudicial error on theory
that it was a comment or opinion by the court that the testimony was not important.
Affirmed.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, Clark
1. Criminal Law.
Robbery defendant was not denied his statutory or constitutional rights to speedy trial for insubstantial
two-day delay beyond expiration of 60-day statutory period for speedy trial where prosecution showed that
plea bargaining was the cause of the delay and where defendant's counsel waived the 60-day rule. NRS
178.556.
2. Attorney and Client.
District court's acceptance of waivers of 60-day speedy trial rule and of defendant's presence at
hearing for continuance proffered by defendant's counsel was not error,
notwithstanding contention that defendant's attorney was not authorized to waive
either 60-day rule or defendant's presence at hearing for continuance.
rule and of defendant's presence at hearing for continuance proffered by defendant's counsel was not error,
notwithstanding contention that defendant's attorney was not authorized to waive either 60-day rule or
defendant's presence at hearing for continuance. NRS 178.556.
3. Criminal Law.
Failure of district court to insist that certain testimony requested by jury after its deliberations had
commenced be located, where other requested testimony was stipulated to by both attorneys, was not
prejudicial error on theory that it was a comment or opinion by the court that such testimony was
unimportant where trial judge scrupulously reminded jury that he was precluded from commenting upon
evidence as of his recollection and that jury must rely on its own recollection.
OPINION
Appellant Douglas Randall Schultz was charged with robbery by information filed on May
3, 1973. He pled not guilty and trial was set for June 18, 1973. At a hearing on June 14, 1973,
his counsel gained a continuance for purposes of plea bargaining, after having waived
appellant's presence. At another hearing on July 6, 1973, when appellant was again absent,
the attorneys announced their readiness to proceed to trial. On July 9, 1973, the first day of
trial, appellant, relying on NRS 178.556,
1
moved to dismiss the information because of the
state's failure to bring him to trial within 60 days after it was filed. The motion was denied
and the matter proceeded to trial.
[Headnote 1]
Appellant argues that he has been denied his statutory right to speedy trial. NRS 178.556.
The delay beyond the statutory period was insubstantial (2 days), and the prosecution showed
good cause (plea bargaining) for the delay. Cf. Petschauer v. Sheriff, 89 Nev. 328, 512 P.2d
1325 (1973). Neither the record nor the appellant's brief gives rise to an argument for
abridgment of his constitutional right to speedy trial. Cf. Barker v. Wingo, 407 U.S. 514
(1972).
____________________

1
NRS 178.556: If no indictment is found or information filed against a person within 15 days after he has
been held to answer for a public offense, or if a defendant whose trial has not been postponed upon his
application is not brought to trial within 60 days after the finding of the indictment or filing of the information,
the court may dismiss the indictment, information or complaint.
[Headnote 2]
Appellant's assertion that his attorney was not authorized to waive either the 60-day rule or
appellant's presence at the hearing for a continuance enjoys no factual support. In Bates v.
State, 84 Nev. 43, 436 P.2d 27 (1968), where the defendant was absent at the time his
attorney waived the 60-day rule, this court held the waiver to be valid. We find no error in the
district court's acceptance of the waivers proffered by appellant's counsel or in its denial of
appellant's motion to dismiss.
[Headnote 3]
Finally asserted as error are alleged improper comments upon the facts by the trial judge to
the jury in violation of Article VI 12 of the Nevada Constitution. The comments
complained of took place when the jury interrupted its deliberations and returned to the
courtroom to have certain testimony reread. The court reporter had difficulty locating the
requested testimony, but every request except the last, concerning an eyewitness description
of appellant, was met by stipulation as to the facts by both attorneys. The court's failure to
insist that the last requested testimony be located, since no agreement as to its content could
be gained from counsel, is singled out by appellant as a comment or opinion by the court
that the testimony was unimportant. However, at that time the trial judge scrupulously
reminded the jury that he was precluded from commenting upon the evidence as of his
recollection, and that the jury must rely on its own recollection. Thus, no prejudice can be
inferred from the district court's implied comment. State v. Smith, 10 Nev. 106, 114, 115
(1875).
Affirmed.
____________
91 Nev. 293, 293 (1975) City Bank & Trust Co. v. Warthen Serv. Co.
CITY BANK AND TRUST COMPANY, Appellant, v. WARTHEN SERVICE
COMPANY, dba WARTHEN BUICK CO., Respondent.
No. 7594
May 14, 1975 535 P.2d 162
Appeal from an order granting an involuntary dismissal under NRCP 41 (b); Eighth
Judicial District Court, Clark County; Clarence Sundean, Judge.
Action was brought by Bank for conversion of automobile which defendant had purchased
from person who had fraudulently obtained an Oklahoma certificate of title which indicated
that there were no liens on the vehicle. The district court granted defendant's motion to
dismiss, and plaintiff appealed. The Supreme Court, Mowbray, J., held that omission of first
digit of identification number of vehicle on security agreement and on financing statement
constituted a minor error, and description of vehicle was sufficient to comply with standard
prescribed by Uniform Commercial Code, and that evidence was sufficient to withstand
defendant's motion to dismiss on ground that Bank had failed to prove that car had been
brought into Nevada within four-month period immediately preceding date when car was sold
to defendant.
Reversed and remanded for trial on merits.
Austin, Thorndal & Liles, and Leland E. Backus, Las Vegas, for Appellant.
Earl & Earl, Las Vegas, for Respondent.
Omission of first digit of identification number of vehicle on security agreement and on financing
statement constituted a minor error, and description of vehicle was sufficient to comply with standard
prescribed by Uniform Commercial Code. NRCP 41(b); 12A Okla.Stats.Anno. 9-203.
To comply with standard prescribed by Uniform Commercial Code, description of collateral in security
agreement and in financing statement did not have to be precisely correct. NRCP 41(b); 12A
Okla.Stats.Anno. 9-203.
In action by Bank for conversion of automobile which defendant had purchased from person who had
fraudulently obtained an Oklahoma certificate of title which indicated that there were no liens on the
vehicle, evidence was sufficient to withstand defendant's motion to dismiss on ground that Bank had failed
to prove that car had been brought into Nevada within four-month period immediately
preceding date when car was sold to defendant.
had been brought into Nevada within four-month period immediately preceding date when car was sold to
defendant. NRCP 41(b); NRS 104.9103, subd. 3; 12A Okla.Stats.Anno. 9-103(3).
4. Trial.
A trial judge, in ruling on an involuntary dismissal motion, must accord every favorable factual
intendment to the plaintiff.
OPINION
City Bank and Trust Company commenced this action against Warthen Service Company,
doing business as Warthen Buick Co., to recover damages in the sum of $3,562.80 for the
conversion of a 1970 Buick automobile.
The case was tried before the district judge sitting without a jury. At the conclusion of the
presentation of plaintiff's evidence, Warthen moved to dismiss the complaint under the
provisions of Rule 41(b) of NRCP. The district judge granted the motion, and the Bank has
appealed.
1. The Facts.
In August 1970, in Tulsa, Oklahoma, the Bank loaned Calvin R. and Mae Creasman
$3,939, to be applied to the purchase of a new Buick automobile. The Bank and the
Creasmans signed a security agreement purporting to cover the Buick, which was perfected
when the Bank caused the Creasmans' financial statement to be filed with the County Clerk of
Oklahoma County.
The Creasmans in 1970 loaned the Buick to Gary Knowlton.
1
Knowlton made two
installment payments on the Buick, and then he fraudulently obtained an Oklahoma certificate
of title for the vehicle in his own name. Less than two months later, on May 15, 1971,
Knowlton, without the knowledge or permission of the Creasmans, sold the car to Warthen
for $2,700. Warthen made no effort to ascertain whether or not the vehicle was subject to a
security interest.2 The Oklahoma title which Knowlton had obtained indicated there were
no liens on the vehicle.
____________________

1
Mae Creasman testified at the trial as follows:
Q. [by Bank's attorney, Mr. Liles]. Did you sell the automobile?
A. No, I did not.
Q. You were letting him [Mr. Knowlton] use the automobile?
A. The agreement was that if he paid it off as he wanted to do then I would sign the title over to him,
in such time as the note was cleared at the bank in Tulsa, or if he could raise the money and finance the
car and pay off the bank of [sic] Tulsa, then I would sign the title over to him.
Q. Did you ever sign the title over to this individual?
A. No, sir.
Q. What was this individual's name?
A. Gary Knowlton, K-n-o-w-l-t-o-n, I believe.
the vehicle was subject to a security interest.
2
The Oklahoma title which Knowlton had
obtained indicated there were no liens on the vehicle. Upon discovery of the sale to Warthen,
Bank made demand for return of the vehicle or the sum of $3,562.80, representing the
balance due on the Creasman loan. Warthen rejected the demand, and this suit followed.
2. The Security Agreement and Financing Statement.
Warthen predicated its 41(b) motion to dismiss on two grounds: (1) that the Bank's
security interest was not perfected, in that the security agreement and the financing statement
contained a misdescription of the collateral, the Buick automobile; and (2) that the Bank had
failed to prove that the car had been brought into Nevada within the four-month period
immediately preceding the date when Knowlton sold the car to Warthen.
The misdescription of the Buick was contained in the identification number of the vehicle
as it was typed both on the security agreement and on the financing statement. Instead of
typing the correct number, 1970 Buick Wildcat Ser. No. 466670X111904 new, an
employee of Bank typed 1970 Buick Wildcat Ser. No. 66670X111904 new, thereby
erroneously omitting the first digit of the identification number on each document.
[Headnote 1]
Bank argues that the typographical omission in the identification number constituted a
minor error and that the description of the Buick was sufficient to comply with the standard
prescribed by the Uniform Commercial Code. We agree.
UCC 9-203, as adopted in 12A Okla. Stats. Anno. 9-203, states that a security interest is
not enforceable against third parties unless the security agreement is signed by the debtor and
contains a description of the collateral.
3
UCC 9-402, as adopted in 12A Okla.
____________________

2
Warthen did check with the Clark County Sheriff's Office to determine whether the car had been stolen and
was advised that it was not.

3
12A Okla. Stats. Anno. 9-203:
(1) Subject to the provisions of Section 4-208 on the security interest of a collecting bank and
Section 9-113 on a security interest arising under the Article on Sales, a security interest is not
enforceable against the debtor or third parties unless
(a) the collateral is in the possession of the secured party; or
(b) the debtor has signed a security agreement which contains a description of the collateral and in
addition, when the security interest covers crops or oil, gas or minerals to be extracted or timber to be cut,
a description of the land concerned. In describing collateral, the word proceeds' is sufficient without
further description to cover proceeds of any character.
(2) A transaction, although subject to this Article, is also subject
UCC 9-402, as adopted in 12A Okla. Stats. Anno. 9-402, relates to the financing statement
and specifies that it is not sufficient unless it contains a statement describing the collateral.
4

With respect to the standard of specificity of description required, we note in Official
Comment No. 1 to UCC 9-203 that the draftsmen of the Uniform Commercial Code indicate
that UCC 9-110 is the applicable code section covering the adequacy of the description of the
collateral in a security agreement. The drafters of the Code also refer us to UCC 9-110 with
respect to the requirements of the description of the collateral in a financing statement. See
Official Comment No. 1 to UCC 9-402.
UCC 9-110, as adopted in 12A Okla. Stats. Anno. 9-110, provides:
For the purposes of this Article any description of personal property or real estate is
sufficient whether or not it is specific if it reasonably identifies what is described. Laws 1961,
p. 165, 9-110. (Emphasis added.)
The Official UCC Comment to that section is, in part, as follows:
. . . The test of sufficiency of a description laid down by this Section is that the
description do the job assigned to itthat it make possible the identification of the thing
described. Under this rule courts should refuse to follow the holdings, often found in the
older chattel mortgage cases, that descriptions are insufficient unless they are of the
most exact and detailed nature, the so-called 'serial number' test. . . ."
____________________
to 15 O.S. 1951, Chapter 6, entitled Loan of Money, and in the case of conflict between the provisions of
this Article and any such statute, the provisions of such statute control. Failure to comply with any
applicable statute has only the effect which is specified therein. Laws 1961, p. 166, 9-203.

4
12A Okla. Stats. Anno. 9-402:
(1) A financing statement is sufficient if it is signed by the debtor and the secured party, gives an
address of the secured party from which information concerning the security interest may be obtained,
gives a mailing address of the debtor and contains a statement indicating the types, or describing the
items, of collateral. A financing statement may be filed before a security agreement is made or a security
interest otherwise attaches. When the financing statement covers crops growing or to be grown or goods
which are or are to become fixtures, the statement must also contain a description of the real estate
concerned. A copy of the security agreement is sufficient as a financing statement if it contains the above
information and is signed by both parties.
. . .
(5) A financing statement substantially complying with the requirements of this section is effective
even though it contains minor errors which are not seriously misleading. Laws 1961, p. 175, S 9-402.
often found in the older chattel mortgage cases, that descriptions are insufficient unless they
are of the most exact and detailed nature, the so-called serial number' test. . . .
The testimony adduced at the trial below established that the first six numbers of the
vehicle's identification number indicated that the vehicle was a 1970 Buick Wildcat custom
convertible. In other words, the first six numbers alone repeated what was already described
in the words preceding the identification number on the security agreement and financing
statement. It is only the last six numbers of the vehicle identification number which
distinguish this 1970 Buick Wildcat custom convertible from any other like automobile. Thus
it is the Bank's contention that the description in the security agreement and financing
statement did the task assigned to it: It made possible the identification of the automobile. We
agree.
In Still Associates v. Murphy, 267 N.E.2d 717 (Mass. 1971), an action in conversion
against a subsequent purchaser of a truck, the serial number on the financing statement was
one digit in error. The court, in holding in favor of the secured party, ruled that where the
error in the description is not on its face sufficiently serious to invalidate the financing
statement, the party seeking to invalidate it must make some showing of actual prejudice. The
instant case having been terminated by a ruling on a motion under NRCP 41 (b), whether the
digital error prejudiced Warthen cannot as yet be finally determined. See Bank of N.Am. v.
Bank of Nutley, 227 A.2d 535 (N.J. App. 1967).
[Headnote 2]
The notice filing concept of the Uniform Commercial Code, borrowed from the Uniform
Trust Receipts Act, requires but a simple notice. This notice, i.e., the filing of a financing
statement, was and is widely and properly hailed as an advance in commercial law. The
district judge's misunderstanding of the Code's purpose, in holding that the description had to
be precisely correct, was error.
3. The Four-month Period.
The four-month period of time is relevant, since UCC 9-103(3) [adopted in Oklahoma as
12A Okla. Stats. Anno. 9-103(3) and adopted in Nevada as NRS 104.9103(3)] states in
pertinent part:
. . . If the security interest was already perfected under the law of the jurisdiction where
the property was when the security interest attached [Oklahoma] and before being brought
into this state [Nevada], the security interest continues perfected in this state [Nevada]
for four months. . ."
into this state [Nevada], the security interest continues perfected in this state [Nevada] for
four months. . .
[Headnotes 3, 4]
The evidence adduced below demonstrated that Knowlton took possession of the
automobile in December 1970, that he made at least two payments on the vehicle which were
mailed from Oklahoma, and that he obtained an Oklahoma certificate of title in March 1971.
This was the only evidence adduced on this issue. From such evidence, it could be inferred
that the Buick was in Oklahoma as late as March 1971. Knowlton sold the Buick to Warthen
on May 15, 1971. This constituted a sufficient quantum of proof to deny Warthen's motion to
dismiss. A trial judge, in ruling on an involuntary dismissal motion, must accord every
favorable factual intendment to the plaintiff. See Adelman v. Arthur, 83 Nev. 436, 433 P.2d
841 (1967); Roche v. Schartz, 82 Nev. 409, 419 P.2d 779 (1966); Schmidt v. Merriweather,
82 Nev. 372 418 P.2d 991 (1966); Stewart & Horton Trust Account v. Autrand, 78 Nev. 447,
375 P.2d 750 (1962); Gunlock v. New Frontier Hotel Corp., 78 Nev. 182, 370 P.2d 682
(1962); Quimby v. City of Reno, 73 Nev. 136, 310 P.2d 850 (1957); Corn v. French, 71 Nev.
280, 289 P.2d 173 (1955).
5

We have concluded, therefore, that the order below dismissing the complaint must be
reversed and the case remanded for a trial on its merits. It is so ordered.
____________________

5
The district judge's misunderstanding of the applicable standard in passing on Rule 41(b) motions is shown
by the court's remarks made in granting the dismissal order:
I'm also quite concerned about lack of affirmative proof that the car was in this [S]tate for less than
four months. Admittedly the plaintiff has the burden of proving by a preponderance of the evidence the
enforceability of this lien in this State and that would include the burden of establishing by the
preponderance of the evidence that this car was not within the confides [sic] of this [S]tate for the four
months preceding its sale to Warthen, to the defendant. There is some evidence from which inferences
could possibly be made that the car, or at least its owner, was in Oklahoma within that four months
period. The title certificate which he got within the four months gives his address as an Oklahoma
address, that being his residence. Two payments were supposed to have been made from Oklahoma to the
debtor. We could well infer from those facts that the automobile was there, but you can't conclusively
presume that the question is [: D]oes that evidence in and of itself meet the burden of proof[?'].
____________
91 Nev. 299, 299 (1975) Johnson v. Johnson
DONNA G. JOHNSON, Appellant, v. WILLIAM L.
JOHNSON, Respondent.
No. 7476
May 15, 1975 535 P.2d 160
Appeal from a decree of divorce,
1
an order modifying the divorce decree, and an order
denying objections to findings of fact and conclusions of law supporting the modification.
Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
The Supreme Court held that awarding custody of children ages 16 and 10 to father was
not an abuse of discretion.
Affirmed.
Earl & Earl, of Las Vegas, for Appellant.
Johns & Johns, of Las Vegas, for Respondent.
Order denying objections to findings of fact and conclusions of law entered in divorce proceeding was
not an appealable special order made after final judgment. NRAP 3A(b).
Awarding custody of children ages 16 and 10 to father was not an abuse of discretion.
OPINION
Per Curiam:
The marriage of Donna G. Johnson and William L. Johnson, appellant and respondent
respectively, was dissolved by decree of divorce entered on March 5, 1971. The temporary
custody of the couple's minor children was awarded to William. After modifications of the
divorce decree were ordered, a final modification was ratified, confirmed, approved and
entered May 8, 1973, awarding permanent custody of two of the minor children, then ages 16
and 10, to William. A third child had married since the original divorce decree and before the
final modification.
[Headnote 1]
Initially appellant attempts to challenge the order denying her objections to findings of
fact and conclusions of law entered below.
____________________

1
Although the original decree of divorce was entered on March 5, 1971, and counsel for both parties
approved it, the record does not contain any written notice of the entry of that decree. NRAP 4(a).
91 Nev. 299, 300 (1975) Johnson v. Johnson
her objections to findings of fact and conclusions of law entered below. That order is not an
appealable special order made after final judgment within the purview of NRAP 3A(b).
French v. French, 91 Nev. 248, 533 P.2d 1357 (1975); Securities Inv. Co. v. Donnelley, 89
Nev. 341, 513 P.2d 1238 (1973).
The only cognizable issue raised by this appeal from the divorce decree and subsequent
modifying order is whether the award of custody of the children to the father was proper in
light of the tender years doctrine enunciated by this court in Peavey v. Peavey, 85 Nev. 571,
460 P.2d 110 (1969). In Peavey we held that children of tender years belong to their mother
in the absence of particular circumstances establishing that she is unfit. Id. at 573. The
children there involved were aged 5 and 3, and neither parent could be deemed unfit, upon a
review of the record. Thus, the mother was awarded custody.
In Smith v. Smith, 90 Nev. 422, 529 P.2d 209 (1974), we held that children 8 and 10 years
old were not of such delicate age and condition as necessarily to come within the tender
years doctrine, and we said: . . . [W]hether a child is of tender years' cannot be
mechanically defined. The determination is subject to the discretionary powers of the trial
court in the particular facts of each case. Here the district court could permissibly find that
the children were not of tender years when the final order was entered on May 8, 1973.
[Headnote 2]
Furthermore, the district court found that they were satisfied with their father as custodian,
and that his care, custody and control was for their very best interest. No clear abuse of the
district court's discretion has been shown. Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1
(1974). The divorce decree and order of modification appealed from are affirmed.
____________
91 Nev. 301, 301 (1975) Doubles Ltd. v. Gragson
DOUBLES LTD., a Nevada Corporation, Doing Business as SWINGING ESCORTS,
Petitioner, v. ORAN K. GRAGSON, in his Capacity as City Commissioner and as the Mayor
of the City of Las Vegas; HAROLD F. MORELLI; RONALD LURIE; GEORGE
FRANKLIN; PAUL J. CHRISTENSEN, Each in His Capacity as a Commissioner For the
City of Las Vegas, Nevada; and ILA M. BRITT, Director, License and Revenue Department;
and THE CITY OF LAS VEGAS, Respondents.
No. 7861
May 20, 1975 535 P.2d 677
Original proceeding was brought in mandamus challenging constitutionality of city
ordinance regulating the licensing of escort bureaus. The Supreme Court held that ordinance
which required that license for escort bureaus be issued only to individuals, and not to
corporations, violated equal protection clause of Fourteenth Amendment where no reason
could be perceived why corporate ownership of an escort bureau was more likely to lend
itself to illegal activity than individual ownership.
Writ granted.
Alan B. Andrews, Las Vegas, for Petitioner.
Carl Lovell, City Attorney, and Daniel E. Ahlstrom, Deputy City Attorney, Las Vegas, for
Respondents.
A corporation is a person within meaning of Fourteenth Amendment, and as such is entitled to
protection prescribed by the Amendment. U.S.C.A.Const. Amend. 14.
Equal protection is offended if a prohibition against corporate licensing is an unreasonable classification
without a basis in fact, and unrelated to objective sought to be accomplished. U.S.C.A. Const. Amend. 14.
Right to pursue a legitimate occupation is a fundamental right.
4. Constitutional Law; Licenses.
City ordinance which, inter alia, required that licenses for escort bureaus be issued only to individuals
and not to corporations, violated equal protection clause of Fourteenth Amendment where no reason could
be perceived why corporate ownership of an escort bureau was more likely to lend itself to
illegal activity than individual ownership.
bureau was more likely to lend itself to illegal activity than individual ownership. U.S.C.A.Const. Amend.
14.
5. Corporations.
Individual charged with crime has no defense merely because he may have acted on behalf of a
corporation.
OPINION
Per Curiam:
Petitioner, in this original proceeding, challenges the constitutionality of Las Vegas
Ordinance No. 1614 regulating the licensing of escort bureaus.
On January 30, 1973, the Director of the License and Revenue Department for the City of
Las Vegas issued a general business license to the petitioner, doing business as Swinging
Escorts, for the purpose of operating an escort bureau in Las Vegas.
Thereafter, on February 21, 1973, the City Commission approved ordinance No. 1614,
which amended Title V of the Municipal Code of the City of Las Vegas, Nevada, 1960
edition, by adding thereto a new Chapter 23 to provide an ordinance regulating and licensing
escort bureaus and all details relating thereto, providing penalties for violation thereof, and
repealing all ordinances in conflict therewith. Among other things, the new ordinance
required that each such license be issued only to an individual and that such a license not be
issued to a corporation.
1

Petitioner, on August 28, 1974, applied in its corporate name to the License and Revenue
Department of the City for an escort bureau license. The City refused to issue the license.
Petitioner then instituted this proceeding in mandamus to compel the City to issue the license.
On September 9, 1974, this court ordered the license issued, pending resolution of this
proceeding.
Petitioner challenges the constitutionality of the ordinance on the principal ground that it
violates equal protection under the Fourteenth Amendment to the United States Constitution.
We agree.
____________________

1
Ordinance No. 1614, Las Vegas, Nevada, Municipal Code ch. 23, 5-23-2 (1960, as added 1973):
. . . No license under this Ordinance shall be issued to, or in the name of, any organization, group,
corporation, partnership, or any other entity than an individual person; but the business may be advertised
and carried on by the licensee under a fictitious name in the manner permitted by law, providing such
fictitious name is first approved by the Board of City Commissioners.
[Headnote 1]
A corporation is a person within the meaning of the Fourteenth Amendment. Wheeling
Steel Corp. v. Glander, 337 U.S. 562 (1949). As such, corporations are entitled to the
protection prescribed by the Fourteenth Amendment.
[Headnote 2]
Equal protection is offended if the prohibition against corporate licensing is an
unreasonable classification without basis in fact, and unrelated to the objective sought to be
accomplished. McDonald v. Board of Election, 394 U.S. 802 (1968).
[Headnotes 3-5]
The right to pursue a legitimate occupation is a fundamental right. Corey v. City of Dallas,
352 F.Supp. 977 (N.D. Tex. 1972), rev'd on other grounds, 492 F.2d 496 (5th Cir. 1974).
And we perceive no reason why corporate ownership of an escort bureau is more likely to
lend itself to illegal activity than is individual ownership.
Appropriate conditions and controls may be imposed upon those in control of the
corporation. Moreover, an individual charged with a crime has no defense merely because he
may have acted on behalf of a corporation.
Accordingly, we find the ordinance's proscription against corporations invalid and
unconstitutional. Wheeling Steel Corp., supra. Cf. Wedesweiler v. Brundage, 130 N.E. 520,
523 (Ill. 1921). Let a writ of mandamus issue forthwith, directing the City to permit the
petitioner to apply for an escort bureau license.
In view of our disposition of this matter, the postsubmission motion filed by petitioner has
been rendered moot.
____________
91 Nev. 303, 303 (1975) Cline v. Clark Co. Liquor & Gaming
CLIFF RAYMOND CLINE, Appellant, v. CLARK COUNTY LIQUOR
AND GAMING LICENSING BOARD, Respondent.
No. 7590
May 20, 1975 535 P.2d 783
Appeal from order dismissing writ of certiorari; Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
Licensee appealed an order of the district court affirming county liquor board's revocation
of liquor license. The Supreme Court, Thompson, J., held that county ordinance authorizing
revocation of liquor license if licensee permits premises to be frequented by or become
meeting place, hangout or rendezvous for prostitutes is unconstitutional; and that court
could not affirm revocation of license by legislating another meaning into ordinance.
Court, Thompson, J., held that county ordinance authorizing revocation of liquor license if
licensee permits premises to be frequented by or become meeting place, hangout or
rendezvous for prostitutes is unconstitutional; and that court could not affirm revocation of
license by legislating another meaning into ordinance.
Reversed.
Harry E. Claiborne, and Annette R. Quintana, of Las Vegas, for Appellant.
George E. Holt, District Attorney, Clark County, and George F. Ogilvie, Jr., County
Counsel, for Respondent.
1. Intoxicating Liquors.
County ordinance which authorizes liquor board to revoke license of licensee who permits licensed
premises to be frequented by or to become meeting place, hangout or rendezvous for known prostitutes
allows license revocation for mere presence of known prostitutes in licensed premises and is thus
unconstitutional. NRS 244.350, 244.350, subds. 1, 2.
2. Intoxicating Liquors.
Court could not affirm revocation of liquor license under unconstitutional ordinance which authorized
revocation of license if licensee permitted premises to be frequented by or to become meeting place,
hangout or rendezvous for prostitutes by interpreting ordinance to require that improper acts be
committed in or within licensed premises in addition to presence of prostitutes and by finding that acts of
solicitation occurred in licensed premises and that licensee, his agents or employees knew or should have
known of such acts in that ordinance was clear and unambiguous and could not be so interpreted.
OPINION
The Clark County Liquor Board voted to revoke the liquor license of Cliff Raymond
Cline, operator of the Playhouse Lounge on The Strip in Las Vegas. Upon review by
certiorari, the district court affirmed and this appeal followed.
Statute empowers the liquor board to grant or refuse liquor licenses and to revoke such
licenses whenever there is sufficient reason. It also requires the board to enact ordinances
regulating the sale of intoxicating liquors and prescribing the conditions under which liquor
may be sold or disposed of. NRS 2++.3S0{1){2).1 Pursuant thereto, Clark County Code
S.20.
244.350(1)(2).
1
Pursuant thereto, Clark County Code 8.20.-570(e) was enacted, which, in
relevant part, authorizes the liquor board to revoke the license of a licensee who shall permit
his licensed premises to be frequented by, or to become the meeting place, hangout, or
rendezvous for known prostitutes. . . .
2

[Headnote 1]
1. The ordinance as written would allow license revocation or other penalty for the mere
presence of known prostitutes and other specified classes of persons who congregate upon the
licensed premises.
The Supreme Court of California has struck down a similar code provision. Vallerga v.
Department of Alcoholic Beverage Con., 347 P.2d 909 (Cal. 1959). The code provided for
license suspension or revocation "where the portion of the premises of the licensee upon
which the activities permitted by the licensee are conducted are a resort for illegal
possessors or users of narcotics, prostitutes, pimps, panderers, or sexual perverts."
____________________

1
NRS 244.350: 1. The board of county commissioners in each of the several counties, and the sheriff of
any county which does not have a metropolitan police department under the provisions of chapter 280 of NRS,
are empowered and commissioned, for the purposes of this section, to act jointly, without further compensation,
as a liquor board, to grant or refuse liquor licenses, and to revoke such licenses whenever there is, in the
judgment of a majority of the board, sufficient reason for such revocation.
2. It is hereby declared to be the power and duty of the liquor board in each of the several counties to enact
ordinances:
(a) Regulating the sale of intoxicating liquors in their respective counties.
(b) Fixing the hours of each day during which liquor may be sold or disposed of.
(c) Prescribing the conditions under which liquor may be sold or disposed of.
(d) Prohibiting the employment or service of females or minors in the sale or disposition of liquor.
(e) Prohibiting the sale or disposition of liquor in places where, in the judgment of the board, such sale or
disposition may tend to create or constitute a public nuisance, or where by the sale or disposition of liquor a
disorderly house or place is maintained.

2
Clark County Code 8.20.570:
In conformity with the policy and aim of this chapter each and every of the following classes of
licensees are declared to be licensees whose existing liquor licenses may be restricted, suspended or
revoked, or who may be penalized in an amount not to exceed twenty-five thousand dollars. . . .
. . . .
(e) Each licensee, who shall permit his licensed premises to be frequented by or to become the
meeting place, hangout, or rendezvous for known prostitutes, homosexuals, vagrants, known hoodlums,
persons described as undesirables in liquor operations or those who are known to engage in the use or
distribution of illegal narcotics or in any other illegal occupation or business.
suspension or revocation where the portion of the premises of the licensee upon which the
activities permitted by the licensee are conducted are a resort for illegal possessors or users of
narcotics, prostitutes, pimps, panderers, or sexual perverts. That court wrote: It is
concluded, therefore, that subdivision (e) purports to authorize revocation of a license without
requiring anything more to be shown than that the premises are a resort for certain classes of
persons, and as such is unconstitutional. . . . Id. at 912.
It is established beyond peradventure that the mere presence of prostitutes, homosexuals or
other undesirable classes of persons in the licensed premises is not an adequate ground
upon which to revoke a liquor license. Stoumen v. Reilly, 234 P.2d 969, 971 (Cal. 1951);
Vallerga v. Department of Alcoholic Beverage Con., supra; One Eleven W. & L. Inc. v.
Division of Alcoholic Bev. C., 235 A.2d 12 (N.J. 1967); See Annot., 27 A.L.R.3d 1254. Such
persons have a right to congregate in licensed business establishments so long as their
behavior conforms to currently acceptable standards of decency and violates no legal
proscription. One Eleven W. & L. Inc. v. Division of Alcoholic Bev. C., supra.
Conceptually, the problem tendered in this case is not dissimilar to those before this court
in City of Reno v. Second Judicial District Court, 83 Nev. 201, 427 P.2d 4 (1967), and Parker
v. Municipal Judge of City of Las Vegas, 83 Nev. 214, 427 P.2d 642 (1967). In the City of
Reno case we found that the disorderly conduct ordinance violated due process since its
effect was to make status a crime. Punishment was prescribed for one's personal condition of
simply being what he was, rather than for the doing of an act. And, in Parker, we held
unconstitutional an ordinance which made the status of poverty a crime.
And so in this case, if the prostitutes who congregated in Cline's Playhouse Lounge are not
themselves liable to prosecution for their status as prostitutes, it follows that the licensee of
the public business establishment where prostitutes congregate may not be subjected to
penalty for their mere presence.
2. In the case before us the record may be read to show that something more than the mere
congregation of prostitutes occurred in the Playhouse Lounge. As observed by the district
court, during the late evening of May 23, 1973, and the early morning of May 24, 1973,
there were no fewer than five acts of solicitation in the licensed premises; and that in at least
one of these acts of solicitation a bartender acted as a knowledgeable intermediary. That
court therefore concluded that the liquor board reasonably could find that the licensee, his
agents or employees knew, or in the reasonable supervision of the premises should have
known, that acts of solicitation had occurred and failed to act to prevent it.
liquor board reasonably could find that the licensee, his agents or employees knew, or in the
reasonable supervision of the premises should have known, that acts of solicitation had
occurred and failed to act to prevent it.
The district court was aware of the inherent infirmity of the ordinance, but by
interpretation sought to supply missing requisites. That court stated: The court believes it
fair to say that subsection (e) requires, in addition to the presence of any of the enumerated
classes of people, that there be improper acts committed on or within the licensed premises.
In the view of the court, this requirement is reasonably implied for, indeed, how else would
these proscribed persons become known' to the licensee?
3

The court's reasoning is not without force, but we do not accept it. In this case, as in
Vallerga v. Department of Alcoholic Beverage Con., supra, the language of that subdivision
is too clear and unambiguous to permit any other meaning than that which the literal language
conveys. . . . To hold that by such language the Legislature intended that grounds for
revocation existed only when objectionable conduct took place on the premises would
constitute judicial legislation under the guise of interpretation. This we are not permitted to
do because it would amount to an invasion of a field committed in its entirety to the
legislative branch of government. Id. at 911.
[Headnote 2]
We need not decide whether the evidence before the board would have permitted license
revocation had the ordinance been constitutionally written. A revocation under the auspices
of an ordinance which is unconstitutional on its face cannot stand. The ordinance may easily
be amended so as to avoid its potential for governmental abuse of licensees and patrons. It is
far more important that this be accomplished than it is to devise a way to uphold the board's
action in this instance. Effective law enforcement requires a constitutional foundation.
Reversed.
____________________

3
It is apparent that proscribed persons may become known to the licensee in other ways than that of
committing improper acts on his premises. Law enforcement officers may advise the licensee of the identity of
such persons. The persons, themselves, may advise the licensee of their status without doing anything improper.
Consequently, the licensee may have knowledge in the absence of improprieties being committed on his
premises.
____________
91 Nev. 308, 308 (1975) Kitchen Factors, Inc. v. Brown
KITCHEN FACTORS, INC., Appellant, v.
E. T. and Y. S. BROWN, Respondents.
No. 7825
May 21, 1975 535 P.2d 677
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
The Supreme Court held that respondents' failure to file answering brief would be treated
as confession of error.
Paul J. Williams, Reno, for Appellant.
Jack S. Grellman, Reno, for Respondents.
Appeal and Error.
Where affidavit attached to appellant's opening brief reflected service on respondents' counsel, no
answering brief was filed, no extension of time to do so was sought or granted, and answering brief was
more than five months overdue, failure to file answering brief would be treated as confession of error and
judgment would be reversed with instruction to enter judgment in appellant's favor. NRAP 31(a), (c);
NRS 18.060.
OPINION
Per Curiam:
Attached to appellant's opening brief, filed November 1, 1974, is an affidavit reflecting
service that date upon respondents' counsel. No answering brief has been filed; no extension
of time to do so has been sought or granted; thus respondents' answering brief is now more
than five months overdue. See NRAP 31 (a).
This appeal is set for hearing on October 14, 1975. To indulge respondents further would
not only delay final resolution of appellant's claim, but would also preclude our assigning
other, more concerned litigants the hearing time now scheduled for this cause. The number of
matters we must accommodate on our hearing calendar no longer permits such indulgence.
Accordingly, we elect to treat respondents' failure to file their answering brief as a
confession of error. NRAP 31(c); Paso Builders, Inc. v. Hebard, 83 Nev. 165, 426 P.2d 731
(1967); Toiyabe Supply Co. v. Arcade, 74 Nev. 314, 330 P.2d 121 (1958). The judgment in
respondents' favor is reversed, with instructions to enter judgment in appellant's favor in the
sum of $1,365.72, proper interest, costs, and such attorneys' fees as the district court
finds appropriate in light of all services performed by appellant's counsel, including those
rendered on appeal.
91 Nev. 308, 309 (1975) Kitchen Factors, Inc. v. Brown
favor in the sum of $1,365.72, proper interest, costs, and such attorneys' fees as the district
court finds appropriate in light of all services performed by appellant's counsel, including
those rendered on appeal.
In accord with NRS 18.060, appellant will be allowed its costs on appeal, upon the proper
filing of a cost bill.
____________
91 Nev. 309, 309 (1975) Clark County v. City of Los Angeles
CLARK COUNTY, NEVADA, Appellant, v. THE CITY OF LOS ANGELES, a Municipal
Corporation, and THE DEPARTMENT OF WATER AND POWER OF THE CITY OF LOS
ANGELES, THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA,
THE STATE OF NEVADA, and THE NEVADA TAX COMMISSION, Respondents.
No. 7577
May 21, 1975 535 P.2d 158
Appeal from judgment denying Clark County the right to tax the use of federally owned
property by municipal and public corporations of California. First Judicial District Court,
Carson City; Richard L. Waters, Judge.
The Supreme Court, Zenoff, J., held that where the sole function of the municipal and
quasi-municipal corporations was to serve governmental needs through the mechanism of
public corporations, and surplus funds were not distributed to private shareholders but rather
used to retire indebtedness and to maintain and expand facilities, the federally owned
generating equipment leased by the corporations was tax exempt.
Affirmed.
George Holt, District Attorney, George P. Ogilvie, Deputy District Attorney, Clark
County, and Ross, Hardies, O'Keefe, Babcock & Parsons, and Bruce J. McWhirter and
William M. Freivogel, of Chicago, Illinois, for Appellant.
Guild, Hagen & Clark, of Reno, Burt Pines, Los Angeles City Attorney, Edward C.
Parrell, Chief Assistant, Bruce J. Sottile, Deputy Los Angeles City Attorney, Robert P. Will
and H. Kenneth Hutchinson, of Los Angeles, for Respondents The City of Los Angeles, its
Department of Water and Power, and The Metropolitan Water District of Southern
California.
Robert List, Attorney General, and James D. Salo, Deputy Attorney General, Carson City,
for Respondents State of Nevada and The Nevada Tax Commission.
Taxation.
Where sole function of California municipal and quasi-municipal corporations was to serve
governmental needs through mechanism of public corporations, and any surplus funds obtained through
their furnishing electrical power were used to retire indebtedness and to maintain and expand facilities,
federally owned electrical generating equipment leased by the corporations was exempt from property
tax. NRS 361.050, 361.157, 361.159.
OPINION
The City of Los Angeles, its Department of Water and Power, and The Metropolitan Water
District of Southern California protested the imposition of property taxes against them for
their use of Hoover Dam power generating equipment which was located within the
boundaries of Clark County. The trial court granted judgment that the taxes were illegally
imposed from which Clark County appeals.
Hoover Dam is owned by the United States of America and is operated through the Bureau
of Reclamation, Department of the Interior. The Dam straddles the Colorado River at a point
where the river forms the boundary between Nevada and Arizona. The generators and related
facilities involved in this action are on the Nevada side of the river in Clark County.
In 1941 the respondent corporations contracted with the Bureau of Reclamation for the
exclusive furnishing of electrical power to the three entities and the City of Los Angeles in
addition entered into a separate contractual relationship whereby it assumed the responsibility
to supervise, operate and maintain specified generators and related facilities that furnish the
power to the respondents.
In 1965 the Nevada Legislature enacted NRS 361.157 and NRS 361.159
1
which provide
that real estate and personal property otherwise exempt from taxation may be taxed if it is
leased, loaned or otherwise made available to and used by a private individual,
association, partnership or corporation in connection with a business conducted for a
profit.
____________________

1
NRS 361.157:
Exempt real estate subject to taxation when leased to, used in business conducted for profit; exceptions.
1. When any real estate which for any reason is exempt from taxation is leased, loaned or otherwise made
available to and used by a private individual, association, partnership or corporation in connection with a
business conducted for profit, it shall be subject to taxation in
property otherwise exempt from taxation may be taxed if it is leased, loaned or otherwise
made available to and used by a private individual, association, partnership or corporation in
connection with a business conducted for a profit. See United States v. State ex rel. Beko, 88
Nev. 76, 493 P.2d 1324 (1972).
With the enactment of NRS 361.157 and NRS 361.159, Clark County sought to tax the
previously tax exempted federally owned generators, turbines and related facilities used in the
generation of electrical power located at Hoover Dam. See NRS 361.050.
2
Clark County
contends that an interest taxable under these statutes was created in the property based on the
nature of the contracts between the respondents and the United States.
Whether or not there is a taxable interest under NRS 361.157 or NRS 361.159 and whether
or not the respondents lose their public status upon entering the State of Nevada need not be
determined for these statutes remove the prior tax exempt status of the property only if that
property is being used in connection with a business conducted for profit.
The respondents are not in the sense of NRS 361.157 and NRS 361.159 engaged in
business to make profits. The chief and sole function of municipal and quasi-municipal
corporations is to serve governmental needs through the mechanism of a public
corporation.
____________________
the same amount and to the same extent as though the lessee or user were the owner of such real estate. This
section does not apply to:
. . .
(d) Property leased or otherwise made available to and used by a private individual, association, corporation,
municipal corporation, quasi-municipal corporation or a political subdivision under the provisions of the Taylor
Grazing Act or by the United States Forest Service or the Bureau of Reclamation of the United States
Department of the Interior. . . .
NRS 361.159:
Exempt personal property subject to taxation when leased to, used in business conducted for profit.
1. Personal property exempt from taxation which is leased, loaned or otherwise made available to and used
by a private individual, association or corporation in connection with a business conducted for profit is subject to
taxation in the same amount and to the same extent as though the lessee or user were the owner of such property,
except for personal property used in vending stands operated by blind persons under the auspices of the bureau
of services to the blind of the rehabilitation division of the department of human resources, regardless of whether
such property is owned by the federal, state or local government.

2
NRS 361.050:
United States property exempted. All lands and other property owned by the United States, not taxable
because of the Constitution or laws of the United States, shall be exempt from taxation.
and sole function of municipal and quasi-municipal corporations is to serve governmental
needs through the mechanism of a public corporation. Although the respondents obtain
surplus funds, these are not distributed to private shareholders as dividends, nor are there
private shareholders. Instead, their funds are needed and used to retire indebtedness and to
maintain and expand their facilities. Sutter Hospital of Sacramento v. City of Sacramento,
244 P.2d 390 (Cal. 1952); San Francisco Boys' Club, Inc. v. County of Mendocino, 62
Cal.Rptr. 294 (Cal. App.2d 1967); Sarah Dix Hamlin School v. City and County of San
Francisco, 34 Cal.Rptr. 376 (Cal.App.2d 1963). Thus, the property in question retains its tax
exempt status. NRS 361.050.
Other intriguing issues were asserted but since the foregoing is dispositive of the appeal
additional discussion would only be advisory. The judgment of the trial court is affirmed.
Clark County must return the tax monies assessed and collected under the protest from the
respondents.
Affirmed.
____________
91 Nev. 312, 312 (1975) Babcock v. State
RICHARD ALLENDER BABCOCK, Appellant, v.
No. 7721
May 21, 1975 535 P.2d 786
Appeal from conviction of embezzlement. Second Judicial District Court, Washoe
The Supreme Court held that fact that defendant was a joint owner of money in question
was not a defense.
Affirmed.
Samuel T. Bull, of Reno, for Appellant.
Respondent. Embezzlement.
91 Nev. 312, 313 (1975) Babcock v. State
Embezzlement.
That accused was a joint owner of money in question was not a defense to charge of embezzlement of
such money. NRS 205.300.
OPINION
Per Curiam:
Richard Babcock was found guilty of embezzlement. The charge arose from his conduct as
a supervisor in the Bingo Parlor in the Sparks Nugget.
On June 5, 1973, during the nighttime after the Bingo Parlor was closed and locked,
Babcock obtained a key to the Bingo Parlor from the cashier's department, entered and forced
open a drawer containing the tip money totaling $842.00 and proceeded to lose the money at
gambling.
The record on appeal establishes that the supervisors, such as Babcock, were responsible
for the collecting, holding and distribution twice each month of the gratuities taken, which
were kept in the drawer from which Babcock removed the money. None of the employees had
given Babcock his permission to take all of the money for himself. The contends on appeal,
however, that he cannot be held for embezzlement because he was joint owner of the money
and a person cannot steal from himself.
His argument is known only in early legal history. At one time the common-law rule was
that a person could not commit an embezzlement of property that he co-owned. The old
principle has been modified either by statute or by interpretation. Commonwealth v. Bovaird,
95 A.2d 173 (Pa. 1953). It shall be no defense to a prosecution for embezzlement that the
property appropriated was partly the property of the accused and the property of another. The
accused is still guilty of taking for his own use monies that belong to someone else. His
portion is disregarded for this determination.
While Nevada has not included the foregoing recognition in the statutes pertaining to
embezzlement (NRS 205.300), we do analogize to NRS 205.265 wherein part ownership is
no defense to larceny.
Other discussions advanced by appellant are without merit.
Affirmed.
____________
91 Nev. 314, 314 (1975) Hall v. State
FRANKLIN L. HALL Appellant, v. THE
No. 7254
May 21, 1975 535 P.2d 797
Appeal from order denying post-conviction relief, Eighth Judicial District Court; Howard
W. Babcock, Judge.
The Supreme Court held that where it has been previously determined that defendant's
guilty plea was made as a result of intelligent application of his own will to problem, and that
the record failed to support defendant's contention that his change of plea was not voluntarily
made, such ruling became law of the case and defendant could not later revive the same issue.
The doctrine of law of the case cannot be avoided by a more detailed and precisely focused
argument subsequently made after reflection upon previous proceedings.
Affirmed.
Horace R. Goff, State Public Defender, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, of Clark
1. Criminal Law.
Where it has been previously determined that defendant's guilty plea was made as result of intelligent
application of his own will to problem, and that record failed to support defendant's contention that his
change of plea was not voluntarily made, such ruling became law of case and defendant could not later
revive same issue. NRS 177.335.
2. Courts.
Doctrine of law of case cannot be avoided by more detailed and precisely focused argument subsequently
made after reflection upon previous proceedings.
OPINION
Per Curiam:
Appellant was charged with murder in early 1965. Before his plea was entered, his counsel
requested a psychiatric examination. Upon receipt of a verbal report from the examining
psychiatrist, a plea of not guilty was entered. Shortly thereafter, appellant changed his plea to
guilty of second degree murder. Sentencing was delayed so that the trial judge could obtain a
written report from the examining psychiatrist. On May 21, 1965, the trial judge had the
report and referred to it while imposing a sentence of not less than 10 nor more than 50
years in the Nevada State Prison.
91 Nev. 314, 315 (1975) Hall v. State
1965, the trial judge had the report and referred to it while imposing a sentence of not less
than 10 nor more than 50 years in the Nevada State Prison.
In his petition for post-conviction relief appellant contended that his plea of guilty was
involuntarily made because he was mentally incompetent at that time to enter such a plea, and
that the trial court erred in its failure to hold an evidentiary hearing on the question of his
competency. After a hearing, his petition for post-conviction relief was denied and this appeal
ensued.
[Headnote 1]
Although appellant has failed to comply with the provisions of NRS 177.335
1
and
identify previous court proceedings taken by him to secure relief from his conviction and
sentence, our records indicate that for the second time this matter is before us. A detailed
recitation of the facts of this case together with an addendum of the transcript of the
proceedings in district court at the time appellant was sentenced on May 21, 1965, appear in
Hall v. Warden, 83 Nev. 446, 434 P.2d 425 (1967). When the matter was previously before
us, one of the issues raised was the voluntariness of appellant's plea. Upon that record we
determined that appellant's guilty plea was made as a result of the intelligent application of
his own will to the problem, and that the record fails to support appellant's contention that
his change of plea was not voluntarily made. 83 Nev. at 455, 456.
The law of a first appeal is the law of the case on all subsequent appeals in which the
facts are substantially the same. Walker v. State, 85 Nev. 337, 343, 455 P.2d 34 (1969);
Graves v. State, 84 Nev. 262, 439 P.2d 476 (1968); State v. Loveless, 62 Nev. 312, 150 P.2d
1015 (1944).
[Headnote 2]
Here, appellant attempts to revive the same issue presented in Hall v. Warden, supra.
(More emphasis has now been placed upon the possibility of appellant's mental incapacity,
but all witnesses at the hearing on this petition for post-conviction relief, including the
psychiatrist, testified that he was competent at the time he entered his guilty plea.)
____________________

1
NRS 177.335: The petition shall identify the proceedings in which the petitioner was convicted, give the
date of the entry of the final judgment complained of and clearly set forth the respects in which the petitioner's
constitutional rights were violated. Affidavits, records or other evidence supporting its allegations shall be
attached to the petition unless the petition recites why they are not attached. The petition shall identify any
previous state or federal court proceedings taken by the petitioner to secure relief from his conviction or
sentence. Argument, citations and discussion of authorities are unnecessary.
91 Nev. 314, 316 (1975) Hall v. State
relief, including the psychiatrist, testified that he was competent at the time he entered his
guilty plea.) The doctrine of the law of the case cannot be avoided by a more detailed and
precisely focused argument subsequently made after reflection upon the previous
proceedings.
____________
91 Nev. 316, 316 (1975) Chedester v. State
WARREN LUTHER CHEDESTER, Appellant, v. THE
No. 7444
May 21, 1975 535 P.2d 794
Appeal from conviction of attempting to obtain money by false pretenses. Second Judicial
District Court, Washoe County; Thomas O. Craven, Judge.
Defendant was convicted in the district court of attempting to obtain money by false
pretenses, and he appealed. The Supreme Court, Zenoff, J., held that defendant's activities of
attempting to heal persons by use of sonic meter were not exempt from prosecution on
ground that defendant was exercising his religious freedom, where the so-called treatments
were administered for a fee, and where defendant never told undercover officer that his
ministering of treatment was a form of religious practice.
Affirmed.
Horace R. Goff, State Public Defender, and Gary A. Sheerin, Deputy State Public
Respondent.
1. False Pretenses.
In order to convict for attempting to obtain money by false pretenses it is not necessary that the
defendant's intended victim be deceived by falsity of the representations.
2. False Pretenses.
In order to raise religious defense to prosecution for attempting to obtain money by false pretenses,
defendant who allegedly attempted to heal persons by means of a sonic meter would have had to
explicitly proffer himself to his customers as making religious claims, as opposed to
medical, scientific or otherwise secular claims.
had to explicitly proffer himself to his customers as making religious claims, as opposed to medical,
scientific or otherwise secular claims.
Activities of defendant, charged with obtaining money by false pretenses, in attempting to heal persons
by use of sonic meter, were not exempt from prosecution on ground that defendant was exercising his
religious freedom, where the so-called treatments were administered for a fee, and where defendant never
told undercover officer that his ministering of treatment was a form of religious practice.
OPINION
On July 27, 1973, Warren Luther Chedester was convicted of attempting to obtain money
by false pretenses and sentenced to a term of five years in the Nevada State Prison, sentence
to be suspended and probation granted for three years.
The conviction stems from Chedester's conduct on December 22 and December 29 of
1972 when he met with an undercover officer of the Reno Police Department on the tip of an
informant who had firsthand knowledge that Chedester was promising to heal persons by use
of a sonic meter which is a toy lie detector apparatus. The idea was that by connecting the
machine to the fingertips it monitored spiritual and emotional responses to questions and
somehow cleansed the soul. Chedester's defense was that being of a religious mind, family
and background he believed sincerely that when the spirit is troubled there are observable,
physical and emotional manifestations which can sometimes be eliminated or reduced by the
act of the spirit. He neglected, however, to relate these beliefs to the arresting and
complaining officers.
His issues on appeal are whether the intended victim of the misrepresentations must
actually be deceived in order for a conviction of attempting to obtain money by false
pretenses to stand and whether his conduct was exempt from prosecution for his claim that
his activities were in exercise of his freedom of religion.
[Headnote 1]
1. The great weight of authority which we adopt holds that it is not necessary that the
defendant's intended victim be deceived by the falsity of the representations. See People v.
Camodeca, 338 P.2d 903, 906 (Cal. 1959); People v. Lynam, 68 Cal.Rptr. 202 (Cal.App.2d
1968). [Headnotes 2, 3]
[Headnotes 2, 3]
2. Chedester administered his so-called treatments for a fee. He never told the officer that
his ministering of treatment was a form of religious practice which he claimed at trial and on
this appeal.
In order to raise this religious defense he must be held to have explicitly proffered himself
as making religious, as opposed to medical, scientific or otherwise secular, claims. Founding
Church of Scientology v. United States, 409 F.2d 1146 (D.C.Cir. 1969), cert. denied, 396
U.S. 963 (1969).
Affirmed.
____________
91 Nev. 318, 318 (1975) Horten v. Keating
LAWRENCE E. HORTEN, Appellant, v. MYRTLE KEATING, Surviving Spouse and Sole
Heir of MILES KEATING, Deceased, Respondent.
No. 7720
May 21, 1975 535 P.2d 796
Appeal from order that an estate be distributed according to the laws of intestate
succession; Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Will contest was brought by wife of decedent against beneficiary of estate under decedent's
last will. The district court held that estate should be distributed according to the laws of
intestate succession, and beneficiary appealed. The Supreme Court held that decedent's estate
should go to wife as though decedent had died intestate since his last will in favor of
beneficiary was revoked by his subsequent marriage.
Affirmed.
Michael L. Hines, of Las Vegas, for Appellant.
A. Loring Primeaux and Fadgen & Johnson, of Las Vegas, for Respondent.
Wills.
Where husband married wife in 1972, where no provision was made for wife by marriage contract or
by husband's will, where husband left no issue, father, mother, brother or sister surviving
and where husband, in 1970, had bequeathed his estate by last will to his friend and
business partner, estate of husband should go to his wife as though husband had
died intestate, since last will of husband was revoked by his subsequent marriage.
husband left no issue, father, mother, brother or sister surviving and where husband, in 1970, had
bequeathed his estate by last will to his friend and business partner, estate of husband should go to his
wife as though husband had died intestate, since last will of husband was revoked by his subsequent
marriage. NRS 123.250, 133.110, 134.050, subd. 4.
OPINION
Per Curiam:
By Last Will dated November 6, 1970, Myles Keating bequeathed his estate to his friend
and business partner, Larry Horten, and also appointed Horten executor. Keating was not then
married. On September 23, 1972, Keating married Myrtle McAvin, to whom he remained
married until his death. Provision was not made for Myrtle by marriage contract, by the
aforementioned Last Will, nor was she mentioned therein to show an intention not to make
provision for her.
1
The decedent left no issue, father, mother, brother or sister surviving. The
record does not establish whether his estate was his separate property, or his interest in
community property.
If he attempted to bequeath his separate estate, and the dispositive provision of his will
was nullified by his subsequent marriage to Myrtle, then NRS 134.050(4) provides that such
separate property shall go to the surviving wife,
2
since, in truth, he died intestate. On the
other hand, if he attempted to bequeath his interest in community property, and the bequest
was nullified by reason of his later marriage, such interest would go to Myrtle as his surviving
spouse.
3

Following a contest of the dispositive provision of the will by Myrtle, the surviving
spouse, the district court ruled that the decedent's estate was to go to Myrtle as though the
decedent had died intestate, since, in the circumstances related, the Last Will was revoked by
his subsequent marriage to her.
____________________

1
NRS 133.110: If a person marries after making a will and the spouse survives the maker, the will is
revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the
spouse is provided for in the will, or in such a way mentioned therein as to show an intention not to make such
provision; and no other evidence to rebut the presumption of revocation shall be received.

2
NRS 134.050(4): If the decedent shall have no issue, father, mother, brother, or sister, or children of any
issue, all of the separate property of the intestate shall go to the surviving husband or wife.

3
NRS 123.250: Upon the death of either husband or wife, one-half of the community belongs to the
surviving spouse; the other half is subject to the testamentary disposition of the decedent, and in the absence
thereof goes to the surviving spouse. . . .
Will was revoked by his subsequent marriage to her. That ruling was correct. The will was
revoked as to Myrtle, and whatever interest she would have taken had her husband died
intestate goes to her as the surviving spouse unaffected by the provisions of the will. In re
Estate of Stewart, 444 P.2d 337, 338 (Cal. 1968); In re Piatt's Estate, 183 P.2d 919 (Cal.App.
1947).
Affirmed.
____________
91 Nev. 320, 320 (1975) Barbash v. Barbash
CECILE Z. BARBASH, Appellant, v. ROGER S. BARBASH, Executor
of the Estate oF WilliaM J. Barbash, Respondent.
No. 7713
May 21, 1975 535 P.2d 781
Appeal from Summary Judgment; Second Judicial District Court, Washoe County;
William N. Forman, Judge.
Wife who, in connection with 1942 California divorce, had been awarded support from her
husband for the rest of her natural life, brought action to recover present value of that award
from executor of husband's estate upon husband's death. The district court entered judgment
in favor of executor and former wife appealed. The Supreme Court, Thompson, J., held that
power to modify divorce agreement under California law did not exist where property
settlement and support agreement was integrated; that the agreement was integrated; that
obligation to pay support did not terminate upon death of the husband; that 1951 amendment
to California statutes did not affect the rights of the parties; and that wife was entitled to the
present value of future support payments for her life expectancy calculated as of date of
husband's death.
Reversed.
Stewart & Horton, Ltd., of Reno, for Appellant.
Hibbs & Newton, of Reno, for Respondent.
1. Husband and Wife.
Under California law, court's power to modify support agreement incorporated in final decree of divorce
does not exist if the property settlement and support agreement is integrated, i.e., if the parties have
agreed that provisions relating to division of property and provisions relating to
support constitute reciprocal consideration.
the parties have agreed that provisions relating to division of property and provisions relating to support
constitute reciprocal consideration. Cal.Civ.Code 139.
Not only is court precluded from modifying an integrated support agreement, the obligation to pay
support under the provision of such an agreement does not terminate upon the death of the husband or the
remarriage of the wife unless the agreement so provides.
Where integrated support agreement entered into by parties in California in connection with divorce did
not provide that the support for wife for her natural life would terminate upon death of the husband, and
where agreement was entered into in 1941 and approved by court in 1942, wife was entitled, upon
husband's death, to recover from his estate the present value of her monthly payments for her life
expectancy, calculated as of the date of husband's death. Cal.Civ.Code 139.
4. Divorce.
Where integrated support agreement was executed in 1941 and divorce decree entered in 1942, 1951
amendment to California law relating to support was inapplicable to action of wife to recover present value
of support for her life expectancy upon husband's death. Cal.Civ.Code 139.
OPINION
This appeal concerns the application of California law to a 1941 property settlement
agreement obligating William Barbash to pay his then wife, Cecile, support and maintenance
in the sum of $100 per month during her natural life. In 1942, the Superior Court of
California granted Cecile a final decree of divorce, approved the agreement as fair and
equitable, and specifically ordered William to pay Cecile $100 per month during the term of
her natural life.
Many years later William died. In August 1972, Cecile timely filed a claim against his
estate for $14,400 representing the present value of $100 per month for her life expectancy.
The executor rejected her claim and this action then was commenced.
Cecile contends that William's obligation to support is to continue while she lives,
survives his death, and is a valid charge against his estate. The executor's view is otherwise.
The district court entered summary judgment for the executor, and Cecile has appealed. We
reverse.
1. California Civil Code 139
1
in effect when the agreement was made and the final
divorce decree entered provided that the court could compel the husband to make suitable
allowances to the wife for her support during her life or for a shorter period and may, from
time to time modify its order in that regard.
[Headnote 1]
That provision spawned litigation with respect to court power to modify a property
settlement and support agreement later approved and confirmed by the court in the final
decree of divorce. It now is established California law that court power to modify does not
exist if the property settlement and support agreement is integrated. Puckett v. Puckett, 136
P.2d 1 (1943); Adams v. Adams, 177 P.2d 265 (1947); Dexter v. Dexter, 265 P.2d 873
(1954); Messenger v. Messenger, 297 P.2d 988 (1956); Anderson v. Mart, 303 P.2d 539
(1956); Plummer v. Plummer, 313 P.2d 549 (1957).
In Plummer v. Plummer, supra, the court wrote: An agreement is integrated if the parties
have agreed that the provisions relating to division of property and the provisions relating to
support constitute reciprocal consideration. The support provisions are then necessarily part
and parcel of a division of property. Such an agreement would be destroyed by subsequent
modification of a support order based thereon, without the consent of the parties. Dexter v.
Dexter, supra, 42 Cal.2d at pages 41-42, 265 P.2d at page 876; Messenger v. Messenger,
supra, 46 Cal.2d at pages 626, 627-628, 297 P.2d at page 992; Herda v. Herda, 48 Cal.2d 228,
308 P.2d 705. It is immaterial whether or not the marital property is divided equally. Dexter
v. Dexter, supra, 42 Cal.2d at page 43, 265 P.2d at page 877; Messenger v. Messenger, supra,
46 Cal.2d at pages 627-628, 297 P.2d at pages 992-993. It is immaterial that the amount of
the marital property is small. Herda v. Herda, supra, 48 Cal.2d at page 230, 308 P.2d at page
707. It is likewise immaterial that the agreement calls for payments for support or
alimony. Messenger v. Messenger, supra, 46 Cal.2d at pages 624-625, 297 P.2d at pages
990, 991, and cases there cited.
____________________

1
Civil Code 139: Where a divorce is granted for an offense of the husband, the court may compel him to
provide for the maintenance of the children of the marriage, and to make such suitable allowances to the wife for
her support, during her life or for a shorter period as the court may deem just, having regard to the circumstances
of the parties respectively; and the court may from time to time modify its orders in these respects.
A support order based upon an integrated agreement may be modified if the parties so
provide. Flynn v. Flynn, 42 Cal.2d 55, 61, 265 P.2d 865. Absent such a provision, it cannot.
An agreement providing that the purpose of the parties is to reach a final settlement of their
rights and duties with respect to both property and support, that they intend each provision to
be in consideration for each of the other provisions, and that they waive all rights arising out
of the marital relationship except those expressly set out in the agreement, will be deemed
conclusive evidence that the parties intended an integrated agreement. Id. at 552.
[Headnote 2]
Not only is the court precluded from modifying an integrated agreement, but it is equally
established that the obligation to support under the provisions of such an agreement does not
terminate on the death of the husband or the remarriage of the wife unless the agreement so
provides. Anderson v. Mart, supra, and the cases therein cited.
[Headnote 3]
2. With the foregoing principles in mind, we turn to examine the agreement involved in
this case. The agreement does not provide that support for the wife shall terminate on the
death of the husband. It does provide that he shall pay her $100 per month during her natural
life. Whether that obligation to support survived his death and is a charge against his estate,
depends upon whether the agreement is an integrated agreement. It clearly is such an
agreement. It deals both with rights to marital property and support, and recites that it is the
mutual wish and desire . . . that a full and final adjustment and settlement of their property
rights, interest and claims against each other be had, settled and determined at the present
time by this agreement. Moreover, they release and forever discharge each other from any
liability for support and maintenance other than as herein set forth. As in Plummer v.
Plummer, supra, the inference is clear that the parties intended an integrated agreement.
[Headnote 4]
3. We note the California law now is different for in 1951 Civil Code 139 was amended
to provide that except as otherwise agreed, the obligation of any party in any decree,
judgment or order for support and maintenance of the other party shall terminate upon the
death of the obligor or upon the remarriage of the other party. Since the agreement in this case
was executed in 1941 and the decree entered in 1942, the amendment of 1951 is of no
consequence.
the amendment of 1951 is of no consequence. Anderson v. Mart, supra, at 543.
Reversed with direction to enter judgment for Cecile Barbash for the present value of $100
per month for her life expectancy calculated as of the date of William's death.
____________
91 Nev. 324, 324 (1975) Weaver v. Shell Oil Co.
THAIS WEAVER, Appellant, v. SHELL
OIL COMPANY, Respondent.
No. 7364
May 23, 1975 535 P.2d 787
Appeal from order granting summary judgment, Second Judicial District Court, Washoe
County; Emile J. Gezelin, Judge.
Action was brought against owner of service station for death of employee of contractor
engaged in alterations at station, wherein defendant moved for summary judgment on ground
that plaintiff's exclusive remedy was the Industrial Insurance Act. The district court entered
summary judgment for defendants and plaintiff appealed. The Supreme Court, Gunderson, C.
J., held that material fact issue existed as to whether defendant had such control over actions
of contractor and its employees as to render defendant's relationship to deceased tantamount
to that of employer, precluding summary judgment, and that summary judgment could not be
justified on assumption that trial would show nothing to create a jury question on a legal
theory consistent with pleadings.
Samuel B. Francovich and Norman H. Samuelson, Reno, for Appellant.
Leggett & Hamilton, Reno, for Respondent.
1. Workmen's Compensation.
Provision of Industrial Insurance Act declaring that subcontractors and their employees shall be deemed
to be employees of principal contractor protects employees of subcontractors against possible
irresponsibility of their immediate employers by making principal contractor or principal employer having
general control of construction liable as if he had directly employed every workman on
the job. NRS 616.010 et seq., 616.0S5.
of construction liable as if he had directly employed every workman on the job. NRS 616.010 et seq.,
616.085.
2. Judgment.
In suit against owner of service station for death of employee of contractor engaged in alterations at
service station, defendant which moved for summary judgment had burden of establishing that defendant's
relationship to deceased was tantamount to that of employer so that plaintiff's exclusive remedy was the
Industrial Insurance Act. NRCP 56(b), (c); NRS 616.010 et seq., 616.085.
3. Judgment.
In action against owner of service station based on death of employee of contractor engaged in alterations
at service station, wherein owner contended that exclusive remedy was Industrial Insurance Act, material
fact issue existed as to whether defendant had such control over actions of contractor and its employees as
to render defendant's relationship to deceased tantamount to that of employer, precluding summary
judgment. NRS 616.010 et seq., 616.085; NRCP 56(b), (c).
4. Judgment.
Summary judgment could not be justified on assumption that trial would show nothing to create a jury
question on a legal theory consistent with pleadings. NRCP 56(b), (c).
OPINION
This appeal follows a summary judgment favoring respondent, Shell Oil Company.
Appellant contends material issues of fact remain for trial, and thus summary judgment was
improper. NRCP 56(b)(c).
Appellant sued for damages following her husband's death from injuries sustained at a
service station which respondent admits owning, but which was operated by a lessee,
according to assertions in respondent's briefs. The deceased was employed by Petroleum
Engineering, Inc., a contractor engaged in alterations at the service station. Respondent
premised its motion for summary judgment on the contention that appellant's exclusive
remedy was NRS Chapter 616, the Nevada Industrial Insurance Act (NIIA), and therefore no
fact remained to be litigated. Although the court's order for summary judgment did not
expressly recite why summary judgment was granted, it referred to the affidavit of a Nevada
Industrial Commission (NIC) employee, and the judge apparently felt respondent's remedy, if
any, was necessarily under the NIIA. This, we think, was error.
Appellant's complaint alleges the deceased was injured by burning gasoline escaping from
a pump with a faulty safety valve, under the supervision, management and control of
respondent.
valve, under the supervision, management and control of respondent. The complaint further
alleges respondent had knowledge of the defect. Respondent denies all this, of course, but
respondent's relationship to its lessee, the terms of their leasethese are not shown by the
record. What obligations, rights and duties respondent retained in regard to the demised
premiseswhether the defect that allegedly caused death preexisted the lease
thereofthese facts also are now unknown. All we know is that respondent apparently held
fee title to the premises, leased them in some manner, then contracted for improvements
thereon, and that subsequently an employee of one of the contractors was killed on the
premises, allegedly due to respondent's fault.
1. We reject respondent's contention that this case is controlled by Simon Service v.
Mitchell, 73 Nev. 9, 307 P.2d 110 (1957), and Titanium Metals v. District Court, 76 Nev. 72,
349 P.2d 444 (1960), which both concerned whether the respective appellants were principal
contractors within NRS 616.085, and thus insulated from common law liability by the
NIIA's exclusive remedy provision.
[Headnote 1]
NRS 616.085, as amended in 1951, now declares only that [s]ubcontractors and their
employees shall be deemed to be the employees of the principal contractor. Previous broad
closing reference to, or other person having the work done, was deleted. Nev. Stats. of
1951, 486. In the Simon Service case, cited above, we construed the NIIA in its present form
to protect the employees of subcontractors against the possible irresponsibility of their
immediate employers by making the principal contractor or principal employer having
general control of the construction liable as if he had directly employed every workman on
the job. 73 Nev. at 15-16, 307 P.2d at 113. Without the aid of a general contractor, Simon
Service, Inc., had entered into several separate contracts in order to construct a building upon
its property. Mitchell, an employee of one contractor, suffered injury during the construction
project, over which Simon Service, Inc., had retained control. In these circumstances, Simon
Service, Inc., was held the principal contractor or principal employer pursuant to NRS
616.085 and, having complied with the necessary provisions of the NIIA, was insulated from
a common law action.
1

____________________

1
In the Simon Service case, this court considered at length the import of the 1951 amendment to NRS
616.085, as follows: Again, in Titanium Metals, cited above, we held Titanium had status as a
principal employer or principal contractor because, inter alia, it was to complete most of
the expansion project with its own employees.
. . . The owner may, indeed, be said to be the person who has the
Again, in Titanium Metals, cited above, we held Titanium had status as a principal
employer or principal contractor because, inter alia, it was to complete most of the expansion
project with its own employees. Upon the facts, Titanium had sufficient control of the entire
project to be considered a principal employer of injured individuals actually paid by a
subcontractor hired to complete other parts of the expansion.
From the record in the instant case, however, such authorities are not clearly controlling
here. It is true that an affidavit indicates respondent has complied with its obligations under
the NIIA, at least in regard to some of its other business operations. The deceased's immediate
employer, Petroleum Engineering, Inc., apparently also has complied. Originally named in
appellant's complaint as a defendant, Petroleum Engineering, Inc., filed a motion to dismiss
supported by an affidavit of an NIC employee, reciting the Industrial Commission has
accepted appellant's claim and paid benefits under the act, and thus signified determination
that the deceased's injuries arose out of and in the course and scope of his employment with
Petroleum Engineering, Inc. The motion was granted without opposition, add evidently
appellant does not challenge the propriety of such ruling. Still, appellant does not concede,
and respondent has not shown, that respondent had such control over the actions of Petroleum
Engineering, Inc., and its employees, as to render respondent's relationship to the deceased
tantamount to that of employer.
[Headnotes 2, 3]
Thus, assuming that the doctrine of Simon Service and Titanium Metals might be proved
applicable to this case, one cannot tell from the record presented whether respondent is
in fact entitled to claim such a defense.
____________________
work done' but, under the Nevada Act, as under the California Constitution, the liabilities and exemptions were
intended to attach to employers of labor and not simply to owners of property as such.
Accordingly, as we interpret the intention of the 1951 amendment, it would eliminate an owner whose only
status was as owner, but who might be said, as such owner, to be the person having the work done. When that
owner assumed an additional status, as appellant did in this case, of being principal employer or principal
contractor, he was not eliminated just because he was also the owner. This interpretation is supported by many
clauses of the act itself: the definition of the act as defining and regulating the liability of employers to their
employees; the definition of employer as every person having any natural person in service; the use of the word
employer in section after section of the act. A person having the work donean owner, lessee, licenseenot
occupying the status of an employer, or, as a contractor, of one who reasonably could be classed as an employer
[sic], was apparently not within the original contemplation of the act and was eliminated by the 1951 legislature.
. . . 73 Nev. at 15, 307 P.2d at 113; emphasis in original.
Titanium Metals might be proved applicable to this case, one cannot tell from the record
presented whether respondent is in fact entitled to claim such a defense. Under NRCP 56, the
burden of establishing the existence of such defense, as a matter of law, was upon respondent
as the movant. Daugherty v. Wabash Life Ins. Co., 87 Nev. 32, 482 P.2d 814 (1971). That
burden was not met.
2. Respondent argues, however, that even if it lacked necessary control of the project to be
a principal contractor or principal employer, nonetheless summary judgment was proper,
because there could be no basis for maintaining a common law action against it. Again, we
cannot agree.
We are, of course, disinclined to assay abstract review of all nuances, of all theories, under
which a landowner who transfers a possessory interest in property may be liable to others
entering the premises with express or implied consent. In diverse factual situations, various
theories may obtain. See, for example: Restatement, Torts 2d, 357-362; Seavy v. I.X.L.
Laundry Co., 60 Nev. 324, 108 P.2d 853 (1941); Hayes v. Richfield Oil Corp., 240 P.2d 580
(Cal. 1952).
[Headnote 4]
Whether any theory of liability will prove applicable, upon a trial, we cannot discern from
the record before us. However, in the absence of a clearly established NIIA defense, we
cannot justify summary judgment on the assumption that trial will show nothing to create a
jury question on a legal theory consistent with the pleadings. Accordingly, summary
judgment in respondent's favor must be and is hereby reversed.
The cause is remanded for further proceedings.
____________
91 Nev. 328, 328 (1975) Hagenios v. Warden
RALPH THOMAS HAGENIOS, Appellant, v. WARDEN,
No. 7635
May 23, 1975 535 P.2d 790
Appeal from an order denying post-conviction relief; Eighth Judicial District Court, Clark
The Supreme Court, Thompson, J., held that United States Supreme Court decision
setting forth requirements for court to comply with prior to accepting guilty plea was not
applicable to defendant who was sentenced before decision was rendered; and that court,
in absence of a transcript of hearing to determine degree and punishment, would
presume that confession received at hearing was voluntary.
Supreme Court decision setting forth requirements for court to comply with prior to accepting
guilty plea was not applicable to defendant who was sentenced before decision was rendered;
and that court, in absence of a transcript of hearing to determine degree and punishment,
would presume that confession received at hearing was voluntary.
Affirmed.
Gunderson, C. J., and Batjer, J., dissented.
Horace R. Goff, State Public Defender, and Gary A. Sheerin, Deputy State Public
1. Courts.
United States Supreme Court decision setting forth standards for trial court to comply with prior to
accepting a guilty plea was not applicable to defendant who was sentenced before such decision was
rendered.
2. Criminal Law.
Where transcript of hearing to determine degree and punishment had been lost or destroyed and was not
available for inspection and record showed that defendant was represented by two attorneys at hearing and
that his right to appeal was not thereafter pursued, court hearing appeal from order denying post-conviction
relief would presume that trial counsel would have perfected appeal had appeal been warranted and affirm
denial of post-conviction relief sought on basis that confession received in evidence at hearing was
involuntary.
3. Criminal Law.
Beneficent objective of post-conviction act to prevent injustice does not require perpetual right of review
to a convicted person under any and all circumstances.
OPINION
In 1957, Ralph Thomas Hagenios pleaded guilty to murder, was convicted and sentenced
to prison for life by Judge Ryland Taylor, now deceased. Hagenios was represented by
counsel. He did not appeal his conviction nor challenge its validity by a writ of habeas
corpus. A transcript of his arraignment and of the hearing before Judge Taylor to determine
degree and punishment has been lost or destroyed and is not available for court
inspection.1
degree and punishment has been lost or destroyed and is not available for court inspection.
1

In 1973, Hagenios filed a petition for post-conviction relief requesting that his conviction
be annulled upon the ground that his plea of guilty was involuntarily entered for failure of the
court to comply with the standards expressed in Boykin v. Alabama, 395 U.S. 238 (1969),
and that his confession received in evidence at the hearing to determine degree and sentence
also was involuntary, should have been excluded, and prejudiced his right to fair
consideration by the judge.
[Headnote 1]
There is no suggestion that a transcript of the arraignment may be reconstructed through
witnesses then present, nor that the transcript of the hearing to determine degree and
punishment may be reconstructed through witnesses who there testified. There does appear in
the record an affidavit of counsel for Hagenios that he advised Hagenios to plead guilty and
also advised him of the consequences of his plea. In any event, in so far as his guilty plea is
concerned, the doctrine of Boykin v. Alabama, supra, has no application to appellant since he
was sentenced before Boykin was decided. Schoultz v. Warden, 88 Nev. 135, 494 P.2d 274
(1972).
[Headnote 2]
At this late date, and in the absence of the transcript of the hearing to determine degree and
punishment, it is impossible properly to evaluate the claim that his confession was
involuntary and should not have been received in evidence. The record does show, however,
that Hagenios was represented by two attorneys at that hearing, and that his right to appeal
was not thereafter pursued. We presume that counsel would have perfected an appeal had an
appeal been warranted. Although the record before us does not explain whether the present
unavailability of the transcript is due to the fault of the State, we do not perceive a violation
of due process or equal protection in these circumstances. Cf. Norvell v. Illinois, 373 U.S.
420 (1963).
[Headnote 3]
The beneficent objective of our post-conviction act to prevent injustice does not require a
perpetual right of review to a convicted person under any and all circumstances.
____________________

1
In 1957, NRS 200.030(2) provided, in relevant part: . . . but, if such person shall be convicted on
confession in open court, the court shall proceed, by examination of witnesses, to determine the degree of the
crime and give sentence accordingly.
Other grounds for relief have been examined and are without merit.
The order denying post-conviction relief is affirmed.
Zenoff and Mowbray, JJ., concur.
Gunderson, C. J., with whom Batjer, J., agrees, dissenting:
We respectfully suggest that affirming the district court in this instance can achieve
nothing but occasion the State of Nevada additional cost and delay, in federal court
proceedings that ultimately will result in an evidentiary hearing being ordered.
In 1957, upon a guilty plea to an open charge of murder, appellant was convicted of first
degree murder, and sentenced to life imprisonment with possibility of parole. He did not
appeal the conviction or sentence.
In 1973, appellant petitioned for post-conviction relief, seeking to withdraw his guilty
plea, contending: (1) that the degree of the crime and sentence to be imposed should have
been determined by a three-judge panel, rather than by one judge; and (2) that his guilty plea
was involuntary, taken in violation of constitutional standards. Without allowing an
evidentiary hearing, which appellant's counsel repeatedly demanded, the district court denied
appellant's petition. This appeal follows.
1. Appellant's contention that he was entitled to a hearing before a three-judge panel, upon
his plea of guilty, is without merit. The Nevada Legislature did not provide for a three-judge
panel, to determine the degree of the crime and the sentence to be imposed, until the 1959
legislative session. Prior to that time, NRS 200.030(2) provided merely that the district court
in which a defendant entered his plea should determine the degree of the crime and sentence
accordingly. Nev. Stats. of 1959, 781.
2. Although appellant's claim to a three-judge panel lacks merit, his contention that his
guilty plea was not knowingly and voluntarily entered presents substantial issues not repelled
by such record as is available. Cf. Machibroda v. United States, 368 U.S. 487 (1962).
True enough, as the State notes, appellant entered his plea prior to the U.S. Supreme
Court's decision in Boykin v. Alabama, 395 U.S. 238 (1969), implemented in Higby v.
Sheriff, 86 Nev. 774, 476 P.2d 959 (1970), and Heffley v. Warden, 89 Nev. 573, 516 P.2d
1403 (1973). The dictates of Boykin are not retroactive and are inapplicable to appellant.
Schoultz v. Warden, SS Nev. 135
v. Warden, 88 Nev. 135, 494 P.2d 274 (1972). Appellant's rights are to be tested by
pre-Boykin standards; still, his guilty plea must be set aside if he can show it was not
understandingly and knowingly entered.
1
And appellant asserts, both in his petition in
supporting points and authorities, that such was the case.
2

Where factual allegations are made which, if true, could establish a right to relief, a
convicted person must be allowed an evidentiary hearing on such issue, unless the record
repels such allegations. Machibroda v. United States, cited above; Fine v. Warden, 90 Nev.
166, 521 P.2d 374 (1974); Schoultz v. Warden, cited above. Here, the record does not do so.
Indeed, the scant record before us indicates the transcript of proceedings at which appellant's
guilty plea was received has been lost or destroyed.
3

Lack of the arraignment transcript will not necessarily impel a ruling in appellant's favor.
A guilty plea entered with the advice of counsel is presumptively valid. United States Ex Rel.
Grays v. Rundle, 428 F.2d 1401 (3d Cir. 1970); see also, McMann v. Richardson, 397 U.S.
759 (1970). This is true, even where the arraignment transcript has been lost or destroyed.
Moore v. Swenson, 360 F.Supp. 583 (D.Mo. 1973). Except that its loss or destruction renders
it unavailable to support either party, we think in this pre-Boykin situation that absence of
the arraignment transcript will not affect the district court's inquiry, at least if a bad faith
suppression thereof is not established.
____________________

1
As said in Brady v. United States, 397 U.S. 742 (1970), [t]he new element added in Boykin was the
requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea
understandingly and voluntarily. 397 U.S. at 747-748, n. 4.

2
In the instant case, appellant's assertions, if true, might establish that his plea was not made knowingly and
voluntarily. Specifically, appellant has alleged: that neither the district judge nor his counsel informed him of the
necessary elements of the crime charged; that neither the judge nor his counsel took cognizance of circumstances
surrounding his arrest and subsequent statements to the police; that he was so intoxicated at the time of the
offense that necessary mental elements of the crime charged were negated; that statements obtained from him by
the investigating officers while he was still intoxicated were involuntarily taken; that such involuntary statements
were a cause of his plea that neither counsel nor the judge informed him of the possible sentence he could
receive upon a plea of guilty; and that he was denied effective assistance of counsel.
In summary, appellant has raised factual allegations which it supported by evidence, not adequately repelled,
might result in a finding that his plea was not knowingly and voluntarily made.

3
Although it is not part of the record on which the district court summarily proceeded, we are advised that a
microfilm copy of the penalty hearing transcript has been preserved, however. According to appellant's Reply
to Answer in the district court, such transcript contains testimony that might be read to support appellant.
support either party, we think in this pre-Boykin situation that absence of the arraignment
transcript will not affect the district court's inquiry, at least if a bad faith suppression thereof
is not established. See: NRS 47.250 (3).
Moreover, we believe the district court may weigh appellant's evidence in the light of all
circumstances, including any negative inferences that may be drawn from appellant's
protracted silence. Indeed, unless good cause for the delay is shown, that alone may be
deemed cause to deny relief. NRS 177.315(3).
We think, however, that appellant's allegations impel an evidentiary hearing, particularly
in light of his claim that his guilty plea was coerced by the existence of an alleged involuntary
confession. See, particularly, Doran v. Wilson, 369 F.2d 505 (9th Cir. 1966).
4

This court should, therefore, itself reverse and remand this case to the district court with
instructions to hold an evidentiary hearing.
____________________

4
In Doran v. Wilson, the Ninth Circuit Court of Appeals, to which appellant may ultimately address his
complaints, has stated:
. . . We have several times held that a guilty plea, induced' by a coerced confession, or in some other
respect not truly voluntary, cannot stand. The basis for these decisions is that a guilty plea must not be a product
of violation of fundamental constitutional rights. The distinction is that if such a violation is not claimed to be,
or, if so claimed, is not what induced the plea, then reliance upon the violation in habeas corpus by the one who
pleaded guilty is not justified because it is the plea, not the deprivation of constitutional right, that brought about
the conviction, while the plea can be upset if it was induced by the violation.
It can be argued that in every case where the government has obtained evidence by conduct that violates the
Fourth Amendment, or has obtained statements in a manner that violates the Fifth and Sixth or either of them, its
possession of such evidence will necessarily enter into a defendant's decision to plead guilty. But a decision to
plead guilty can still be free and voluntary under these circumstances, and that is all that is required. A
defendant's primary motivation in pleading guilty regardless of what has gone on before, may be his own
knowledge of his guilt and a desire to take his medicine. As the cited cases indicate, whether he was so
motivated may be a question as to which he is entitled to a hearing by the habeas corpus judge. We think that
this is such a case. Id. at 507. In accord, see also: United States Ex Rel. Ross v. McMann, 409 F.2d 1016 (2d
Cir. 1969); Johnson v. Wilson, 371 F.2d 911 (9th Cir. 1967).
____________
91 Nev. 334, 334 (1975) Custom Catering, Inc. v. Local Union No. 226
CUSTOM CATERING INC. a Nevada Corporation, dba RL'S BLUE ONION, and
RICHARD L. LONGMIRE, Individually, Appellants, v. LOCAL UNION NO. 226,
CULINARY AND HOTEL SERVICE WORKERS UNION, etc., et al., Respondents.
No. 7697
May 27, 1975 536 P.2d 488
Appeal from NRCP 41(e) judgment of dismissal. Eighth Judicial District Court, Clark
County; James D. Santini, Judge.
Corporation and principal of corporation brought action for damages against certain labor
unions and agents for alleged destruction of the restaurant business. The district court entered
judgment dismissing action for want of prosecution and the plaintiffs appealed. The Supreme
Court, Zenoff, J., held that the plaintiffs failed to make a sufficient showing to overcome
discretion to which trial court was entitled in granting dismissal more than four years after
complaint was filed.
Affirmed.
Woodburn, Wedge, Blakey, Folsom and Hug, and Roger Jeppson, of Reno, for Appellants.
1

Ashleman, Sabbath & Rohay, of Las Vegas, for Respondents.
Dismissal and Nonsuit.
Plaintiffs, a restaurant corporation and individual principal in corporation, bringing action for
damages for destruction of business against unions and their agents failed to make a sufficient showing to
overcome the discretion to which trial court was entitled in dismissing action, approximately four years
and three months after complaint was filed, for want of prosecution. NRCP 41(e).
OPINION
A complaint for damages was filed December 12, 1969, for destruction of a business in
Las Vegas known as the Blue Onion Restaurant. Certain labor unions and their agents were
alleged to have engaged in a strike for illegal purposes and to have conducted themselves in
such manner as to drive the Blue Onion out of business.
____________________

1
Present counsel on appeal did not represent plaintiffs in the court below.
the Blue Onion out of business. The loss claimed was $400,000 actual damages and
$2,500,000 in punitive damages. Richard Longmire, the individual principal in the restaurant
corporation, claimed separate personal damages. Answers were filed by all defendants by
January 22, 1970. Approximately four years and three months after the complaint was filed,
the trial court exercised its discretion by granting an NRCP 41 (e) motion to dismiss from
which plaintiffs appeal.
2

A composite of the innumerable pleadings, dates, statements, transcripts and docket entries
reflects dilatory conduct in the prosecution of this litigation by the plaintiffs-appellants. Nine
months after the action started there was a flurry of depositions being noticed and taken,
mostly by the plaintiffs, except for the union's deposition of Longmire, which although started
was never completed because his answers were incomplete and uninformative. This conduct
resulted in delay after delay for his failure to provide requested and needed information.
After the initial attack, interminable delays followed until the unions took their turn and
sought information by way of interrogatories and depositions. More unproductive interims
ensued caused by the plaintiffs who used the excuses that records were unavailable, that their
attorney was going to be out of the country, and later, that because they substituted their
counsel out of the case they were unable to secure other counsel. See Hassett v. St. Mary's
Hosp. Ass'n, 86 Nev. 900, 478 P.2d 154 (1970); Valente v. First Western Savings and Loan,
90 Nev. 377, 528 P.2d 699 (1975).
Such was the general course throughout the four-year period. This record, a jungle of
dates, files, pleadings and statements, causes us to conclude that the plaintiffs lost respect for
their lawsuit. The trial court warned the plaintiffs long in advance that their processing of the
case was incomplete and unsatisfactory, yet there was no renewal of their energy. All of the
significant delays in the final several months were the blame of the plaintiffs who brought the
lawsuit.
New counsel purported to misunderstand the status of the case. Still, his inability to get the
file from the plaintiff's original lawyer is not sufficient excuse. Courthouse records were
available and copies from opposing counsel could have been requested. In all, plaintiffs have
not made a sufficient and satisfactory showing to overcome the discretion to which the
trial court was entitled in granting this dismissal.
____________________

2
NRCP 41(e): The court may in its discretion dismiss any action for want of prosecution on motion of the
defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to
bring such action to trial. . . .
satisfactory showing to overcome the discretion to which the trial court was entitled in
granting this dismissal. Hassett v. St. Mary's Hosp. Ass'n, supra; Northern Ill. Corp. v. Miller,
78 Nev. 213, 370 P.2d 955 (1962); Harris v. Harris, 65 Nev. 342, 196 P.2d 402 (1948);
NRCP 41 (e).
We affirm. The five-year issue is no longer a concern and therefore does not merit
discussion.
Batjer, Mowbray, and Thompson, JJ., and Torvinen, D. J., concur.
____________
91 Nev. 336, 336 (1975) Wingfield v. State
JESSE WINGFIELD, Appellant, v. THE STATE
No. 7711
May 30, 1975 535 P.2d 1295
Appeal from an order denying post-conviction relief; Eighth Judicial District Court, Clark
The district court denied relief and defendant appealed. The Supreme Court held that
evidence supported findings that plea was knowing and voluntary and that representation had
not been inadequate.
Affirmed.
Robert List, Attorney General, Carson City, and George E. Holt, District Attorney, Clark
1. Criminal Law.
Guilty plea entered on advice of counsel is presumptively valid.
2. Criminal Law.
Defendant in post-conviction proceeding had burden of showing invalidity of plea, although transcript of
his appearances had been destroyed by court reporter; practice of destroying transcripts is not condoned.
3. Criminal Law.
Evidence in post-conviction proceeding, including evidence that defense counsel had discussed options
and consequences with defendant, supported finding that defendant had failed to show that plea was not
entered knowingly and voluntarily, despite claim that judge and counsel had failed to inform
defendant of possible sentence.
judge and counsel had failed to inform defendant of possible sentence.
4. Criminal Law.
Evidence in post-conviction proceeding did not establish that appointed counsel had given inadequate
representation.
OPINION
Per Curiam:
In 1965, appellant pleaded guilty to second-degree murder, and was sentenced to ten (10)
years to life in the Nevada State Prison. In 1973, appellant filed a petition for post-conviction
relief with the district court alleging his guilty plea was involuntarily entered and seeking to
withdraw it. After an evidentiary hearing, the district court denied the petition. This appeal
follows.
On appeal, appellant contends his guilty plea was involuntary for two reasons: 1. He was
not apprised of the possible sentence he could receive; 2. He was represented by ineffective
counsel. Both contentions lack merit.
[Headnotes 1, 2]
1. Appellant contends that his plea was not knowingly and voluntarily entered because
both the district judge and his counsel failed to inform him of the possible sentence he could
receive. This contention is without support. Appellant entered his plea upon the advice of
counsel, and as such it is presumptively valid. United States Ex Rel. Grays v. Rundle, 428
F.2d 1401 (3rd Cir. 1970). The transcripts of appellant's appearances to enter a plea and for
sentencing are no longer available, having been destroyed by the court reporter in 1972. We
do not condone this practice; however, appellant nonetheless had the burden of showing the
invalidity of the plea. Moore v. Swenson, 360 F.Supp. 583 (D. Mo. 1973).
[Headnote 3]
As noted, as was proper, the district court conducted an evidentiary hearing. Cf.
Machibroda v. United States, 368 U.S. 487 (1962). At such hearing, appellant's counsel
testified he discussed with appellant the possible options involved in a first-degree murder
charge, including possible consequences if appellant were to be convicted of that charge. This
is substantiated by appellant's own testimony. Counsel further testified that although he could
not remember, at this late date, all the particulars of his discussions with appellant, it was his
practice always to inform his clients of the sentences that could be imposed upon a plea of
guilty.
could be imposed upon a plea of guilty. We believe the district court could properly
determine that appellant failed to show his plea was not entered knowingly and voluntarily.
[Headnote 4]
2. Appellant's contention that he was represented by ineffective counsel has no support.
It is presumed that an attorney has fully discharged his duties. This presumption can only be
overcome by strong and convincing proof to the contrary. Smithart v. State, 86 Nev. 925,
931, 478 P.2d 576, 580 (1970). At all stages of the proceedings, appellant was represented by
court appointed counsel. Pursuant to appellant's request, the district court appointed a second
defense counsel to assist with the case. Testimony at the evidentiary hearing below showed
that appellant had fully discussed his case with counsel. We perceive no showing of
inadequate representation. Cf. Masters v. State, 91 Nev. 170, 533 P.2d 765 (1975).
The order denying post-conviction relief is affirmed.
____________
91 Nev. 338, 338 (1975) Ottenheimer v. Real Estate Division
CHARLES J. OTTENHEIMER, GERALD E. DAVID, ROBERT L. ROSE, JAMES
M. KELLY, LEONARD ZUCH, EUGENE R. JABLONSKI, RICHARD
J.CHRISTENSEN, DANIEL SHAY, YERVANT KAFAFIAN, ROBERT C.
GLASSCOCK, CHARLES N. SMITH, DONALD L. McBRIDE, GEORGE J.
DUSOLD, JOHN T. MELODY, MILES B. TIMMINS, CHESTER N. HULTBURG,
and GERALD LEE PROCTOR, Appellants, v. THE REAL ESTATE DIVISION OF
THE NEVADA DEPARTMENT OF COMMERCE and THE STATE OF NEVADA,
Respondents.
Nos. 7975 and 8004
THE REAL ESTATE DIVISION OF THE NEVADA DEPARTMENT OF COMMERCE
and THE STATE OF NEVADA, Appellants, v. H. LIPSKY, J. CAPERS, S. PARKER,
HARRY COOPER, JOHN RAYMOND, FRANK LAUR, THOMAS F. TROMBLEY,
KENNETH MAINES, R. C. JONES, CHANDIS SHAW, JOSEPH S. HUTCHINGS, JAMES
FREESE, JAMES B. SEE, RON ECKHOFF, WILLIAM F. PLUMMER, D. E. YOUNG,
WAYNE T. KRUGER, STEVE BANDURSKI, EDWARD BENDORFEANA, ROBERT RADEZ,
FRANK A.
STEVE BANDURSKI, EDWARD BENDORFEANA, ROBERT RADEZ, FRANK A. DI
RODIO, GEORGE S. MATHIS, HUGH A. NORTHINGTON, Jr., DON A. NEWSOM,
THOMAS E. HUTCHINGS, TONY NOBREGA, VICTOR LOCKWOOD. JERRY DEDAD,
GRAY JAY JOLLIFF, LARRY HICKS, JOHN F. DIEU, BRUNO PETRINI, JOHN
MERRILL, STEVEN SMITH, DAN PISTORESI, RAYMOND L. WASSON, EDWARD
PEENEY, TED K. SHOENHAIR, GILLIAN CAROL VOGEL, LINDA S. YEAGLEY,
MARY LOU GRAYNER, ANDY GRAYNER, MELVIN A. JONES, VITO A. CAPACCIO,
ARTHUR VICKERS, DWIGHT C. LANG, LOUIS F. MEDINA, ROBERT F. TAYLOR,
FRANK F. RAMONDI, EDWIN C. TOOKER, MELVIN L. WARKMEISTER, E. KEVIN
STALL, PHILLIP S. DANTE, DON JOHNSON, WOLFGANG SCHANDA, HARRY
KITSMILLER, BRUCE SALADIN, STAN FLICK, DONALD TODD, DONALD
NEWMAN, JOHN F. MORRIS, REINER ARNOLD, MICHAEL BETSOTZY, EDI
DOMINGO, JACK TURNER, RALPH BRIGGS, CARLOS WALDROP, JOSEPH
SALIGOE, PHYLLIS FAZZINGA, MICHAEL GORETSKI, JOHN ENGEL, JASON
FARRER, MYRON MEYERS, RICHARD FREESE, MILTON SAPPERSTEIN, JOHN
BROGAN, LOUIS SIDWELL, ARTHUR TOWNSEND, EARL K. HUMPHREYS,
LAWRENCE ST. CROIX, DONOVAN HUMPHREY, MARK PEPKINS, GERALD
O'BRIEN, S. PARKER, HARLEY ASHER, E. PARR, R. RILEY, D. MAXWELL, R.
SONNENBURG, H. JOHNSON, P. BURGMAN, J. SNYDER, W. CHURCH, TONY
AVANTI, THOMAS MAHER, VERNON COLES, LARRY BROWN, PHIL HOWARD,
JOHN FARONE, PAUL L. EDWARDS, GLADYS ROWELL, WILLIAM ROWELL,
DONALD COOPER, WILLARD GOLDSMITH, TOM R. ANDERSON, MORTIMER CH.
BUCKLEY, GEORGE PETERS, WILLIAM COCHRAN, NANCY BRETT, EDWARD D.
COLEMAN, BERNARD C. ROBINSON, PAUL R. ZIMMERMAN, DON LEE CAVNAR,
JAMES HAND, KIRK MARVIN, THOMAS R. EVERTS, GENERAL LEE KNIGHT,
DONALD W. LOSHBAUGH, ROY GRUNDNER, PAUL FINETTI, WILLIAM A.
NEWSOM, WAYNE LISTER, LARRY WILCOX, MARVIN STUART, R. W. WILLEY, and
A.
STUART, R. W. WILLEY, and A. STEVENS, Respondents.
Nos. 8031, 8032, 8033, 8034 and 8035
May 30, 1975 535 P.2d 1284
Appeal from summary judgment, Eighth Judicial District Court, Clark County, Paul S.
Goldman, Judge (No. 7975); appeal from order denying preliminary injunction, Eighth
Judicial District Court, Clark County, Paul S. Goldman, Judge (No. 8004); appeals from
orders granting preliminary injunction, Eighth Judicial District Court, Clark County, Howard
W. Babcock, Judge (Nos. 8031, 8032, 8033, and 8034); and appeal from order granting
preliminary injunction, Second Judicial District Court, Washoe County, Grant L. Bowen,
Judge (No. 8035).
Suits were brought by persons qualified as registered representatives challenging
amendment to statute requiring that to sell land a registered representative must be licensed
as a salesman or broker. The Supreme Court held that summary judgment should not have
been granted without opportunity for registered representative to show that the legislation in
question failed to meet constitutional standards; and that denial of preliminary injunctive
relief was erroneous in that it would force plaintiffs to leave established, intrinsically lawful
employment, thereby sustaining substantial irreparable injury if the legislation was
unconstitutional.
Case Nos. 7975 and 8004, reversed; Case Nos. 8031, 8032, 8033, 8034 and 8035,
affirmed.
Vargas, Bartlett & Dixon, and Edward Tricker, Las Vegas, for Appellant in No. 7975, and
for Respondents in Nos. 8031, 8032, 8033, 8034 and 8035.
Albright & McGimsey, Las Vegas, for Appellants in No. 8004.
Robert List, Attorney General, Robert E. Edmonson and E. Williams Hanmer, Deputy
Attorneys General, for Respondent in No. 7975 and for Appellant in Nos. 8031, 8032, 8033,
8034 and 8035.
State through its police powers may regulate business activities for the protection of the public.
Subject to burden that every reasonable presumption must be indulged in support of
controverted statute with any doubts being resolved against the challenging party,
one adversely affected may endeavor to show that statute is unreasonable, arbitrary,
or insufficiently related to the end sought to be achieved.
indulged in support of controverted statute with any doubts being resolved against the challenging party,
one adversely affected may endeavor to show that statute is unreasonable, arbitrary, or insufficiently related
to the end sought to be achieved.
3. Judgment.
Statutory amendment requiring that before a registered representative may sell land he must be licensed
as a salesman or broker was not as a matter of law reasonable, nonarbitrary and sufficiently related to the
end sought to be achieved, and summary judgment should not have been granted without opportunity for
discovery and opportunity to demonstrate that legislation failed to meet constitutional standards. NRS
119.090, 119.180, 645.001 et seq.; NRCP 56.
4. Injunction.
Inasmuch as denial of preliminary injunction against enforcement of statute requiring registered
representative to be licensed as a salesman or broker in order to sell land would force registered
representative to leave established, intrinsically lawful employment, thereby sustaining substantial
irreparable injury if the legislation is unconstitutional, and maintaining the status quo pending final
judgment would impose small burden on the State, preliminary injunction should have been granted. NRS
119.090, 119.180, 645.001 et seq.; NRCP 56.
OPINION
Per Curiam:
These consolidated appeals arise from suits commenced by persons qualified as
registered representatives under NRS 119.090, asking that a 1973 amendment to NRS
119.180 be declared unconstitutional. Before the amendment, a registered representative
could offer or sell subdivision property, without being licensed under NRS Chapter 645 as a
real estate salesman or broker. As of January 1, 1975, such amendment would require that to
sell land under NRS Chapter 119, a registered representative must be licensed as a
salesman or broker.
In Case No. 7975, appellant Ottenheimer sought to have the amendment declared
unconstitutional and its enforcement enjoined. On motion of the State of Nevada and the Real
Estate Division of the Nevada Department of Commerce (hereinafter called the State), the
district court held no genuine factual issue remained for trial, and granted summary judgment.
See: NRCP 56. Ottenheimer has appealed, and all other consolidated appeals turn on whether
summary judgment was proper in Ottenheimer's case. We hold it was not.
[Headnotes 1, 2]
Without question, the State through its police powers may regulate business activities for
the protection of the public.
Koscot Interplanetary, Inc. v. Draney, 90 Nev. 450, 530 P.2d 108 (1974). Every reasonable
presumption must be indulged in support of the controverted statute with any doubts being
resolved against the challenging party, who has the substantial burden of showing that the act
is constitutionally unsound. 90 Nev. at 456, 530 P.2d at 112. However, subject to such
burden, one adversely affected may endeavor to show that such a statute is unreasonable,
arbitrary, or insufficiently related to the end sought to be achieved. Cf. Viale v. Foley, 76
Nev. 149, 154, 350 P.2d 721, 723 (1960); King v. Board of Regents, 65 Nev. 533, 542, 200
P.2d 221, 225 (1948).
Summary judgment is a drastic remedy, therefore, all evidence favorable to the party
against whom such summary judgment was rendered will be accepted as true. [Citations
omitted.] All favorable inferences will be drawn in favor of the party who lost on the
summary judgment. Zuni Constr. Co. v. Great Am. Ins. Co., 86 Nev. 364, 366, 468 P.2d
980, 981 (1970). Here, summary judgment was granted without opportunity for full
discovery, and Ottenheimer had no opportunity to demonstrate that the legislation in question
fails to meet constitutional standards.
[Headnote 3]
Examining the existing record in the light most favorable to Ottenheimer, it cannot be said
as a matter of law that the legislation in question is reasonable, non-arbitrary, and sufficiently
related to the end sought to be achieved. Appellant Ottenheimer and others similarly situated
should be afforded opportunity to proceed with discovery and, if they can, to present proof
that the legislation offends constitutional standards. Accordingly, in Case No. 7975, we
reverse and remand for trial.
[Headnote 4]
In Case No. 8004, the district court denied a preliminary injunction to the plaintiffs, and
appeal followed. In light of all relevant considerations, we think denial of preliminary
injunctive relief was error. Particularly, we note that denying a preliminary injunction would
force appellants to leave established, intrinsically lawful employment, thereby sustaining
substantial irreparable injury if the legislation indeed is unconstitutional. By comparison,
maintaining the status quo pending final judgment will impose small burden on the State. Cf.
Memory Gardens v. Pet Ponderosa, 88 Nev. 1, 492 P.2d 123 (1972). Case No. 8004 is
therefore reversed and remanded with instructions to enter a preliminary injunction consistent
with this opinion. In Case Nos.
In Case Nos. 8031, 8032, 8033, 8034 and 8035, preliminary injunctive relief was granted,
and the State has appealed. For reasons heretofore stated, we affirm the district court in those
cases.
____________
91 Nev. 343, 343 (1975) Bowers v. Warden
THOMAS GILBERT BOWERS, Appellant, v. WARDEN,
No. 7839
May 30, 1975 535 P.2d 787
Appeal from order denying post-conviction relief; First Judicial District Court, Carson
Prisoner, who had been convicted of grand larceny and of two counts of burglary upon his
pleas of nolo contendere, petitioned for post-conviction relief. The district court denied the
petition and the prisoner appealed. The Supreme Court held that the record established that
the pleas were voluntarily and intelligently entered with knowledge of the consequences
thereof although the appropriate inquiry regarding prisoner's waiver of constitutional trial
rights was not made when his pleas of nolo contendere were accepted.
Affirmed.
Horace Rodlin Goff, State Public Defender, and Michael R. Griffin, State Deputy Public
Michael Fondi, District Attorney, and Kenneth J. Jordan, Deputy District Attorney,
Carson City, for Respondent.
Criminal Law.
Record established that petitioner's pleas of nolo contendere to grand larceny and to two counts of
burglary were voluntarily and intelligently entered with knowledge of the consequences thereof even
though the hearing judge did not make appropriate inquiry regarding his waiver of constitutional rights.
OPINION
Per Curiam:
By reason of pleas of nolo contendere the appellant stands convicted of grand larceny and
of two counts of burglary and presently is serving concurrent sentences therefor at the Nevada
State Prison.
91 Nev. 343, 344 (1975) Bowers v. Warden
Nevada State Prison. He seeks to annul those judgments and sentences since appropriate
inquiry regarding his waiver of constitutional trial rights was not made when his pleas of nolo
contendere were accepted. Although such inquiry was not made, it does appear from the
record that his pleas were voluntarily and intelligently entered with knowledge of the
consequences thereof, and that the canvass met the requirements recognized in Heffley v.
Warden, 89 Nev. 573, 516 P.2d 1403 (1973); Armstrong v. Warden, 90 Nev. 8, 518 P.2d 147
(1974); Patton v. Warden, 91 Nev. 1, 530 P.2d 107 (1975). The district court properly denied
the appellant's petition for post-conviction relief.
Affirmed.
____________
91 Nev. 344, 344 (1975) Memory Gardens v. Bunker Bros. Mortuary
MEMORY GARDENS OF LAS VEGAS, INC., a Nevada Corporation, Appellant, v.
BUNKER BROTHERS MORTUARY, INC., a Nevada Corporation, BRYAN L. BUNKER,
BERKELEY L. BUNKER, and TITLE INSURANCE AND TRUST COMPANY, a Nevada
Corporation, Respondents.
No. 7592
May 30, 1975 535 P.2d 1293
Appeal from order denying motion to vacate judgment; Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Appeal was taken from order of the district court denying motion to vacate judgment
dismissing complaint in action seeking damages and injunction with respect to alleged fraud
in obtaining trust deed and promissory note. The Supreme Court held that where, inter alia,
plaintiff did not request jury trial, plaintiff was not denied right to jury trial when trial on the
merits was consolidated with hearing on application for preliminary injunction, and thus trial
court did not abuse discretion in denying motion to vacate which was based on theory that
judgment was void because of absence of jury trial.
Affirmed.
Woodburn, Wedge, Blakey, Folsom & Hug, and Gordon H. DePaoli, of Reno, for
Appellant.
Earl & Earl, of Las Vegas, for Respondents. 1.
Order denying motion to vacate judgment dismissing amended complaint was appealable. NRCP 60
(b).
2. Jury.
Where plaintiff secured hearing on motion for preliminary injunction at which trial court entered order
advancing the trial of the merits to be consolidated with hearing on application for preliminary injunction,
controlling issues tendered by amended complaint and by application for preliminary injunction were
identical, and plaintiff did not request jury trial, there was no denial of plaintiff's right to trial by jury.
NRCP 38(b), 65(a)(2).
3. Judgment.
Where, inter alia, plaintiff did not request trial by jury, trial court did not abuse discretion in denying
motion to vacate judgment dismissing amended complaint despite contention that judgment was void
because plaintiff had been denied trial by jury. NRCP 38(b), 60(b), 65(a)(2).
OPINION
Per Curiam:
[Headnote 1]
This appeal is from an order of the district court denying the Rule 60(b) motion of
Memory Gardens of Las Vegas, Inc., to vacate a judgment dismissing its amended complaint
against Bunker Brothers Mortuary, Inc., Bryan L. Bunker, Berkeley L. Bunker and Title
Insurance and Trust Company. The order is appealable. Smilanich v. Bonanza Air Lines, 72
Nev. 10, 291 P.2d 1053 (1956); see also same case at 72 Nev. 212, 298 P.2d 819 (1956). It is,
of course, the contention of the respondents that the discretion vested in the district court was
not abused when it denied the motion to vacate.
[Headnotes 2, 3]
The Rule 60(b) motion to vacate the judgment of dismissal rests squarely upon the
proposition that the judgment was void, since, in the peculiar circumstances of this case, the
plaintiff was denied its right to trial by jury. We find no merit in this contention, nor do we
perceive an abuse of discretion by the district court in refusing to set aside the judgment of
dismissal.
This action was commenced by Memory Gardens alleging that the defendants were about
to foreclose a trust deed on property belonging to the plaintiff; that the trust deed and
promissory note which it secured were obtained by fraud and without consideration, and were
void. The plaintiff prayed for damages. Contemporaneously, the plaintiff, ex parte, obtained
a temporary restraining order stopping the foreclosure sale.
obtained a temporary restraining order stopping the foreclosure sale. The plaintiff then moved
for a preliminary injunction, asserting as a basis therefor, that the note and deed of trust were
obtained by fraud and without consideration. The defendants countered by moving to dissolve
the temporary restraining order and to deny the plaintiff's request for a preliminary injunction.
All motions were scheduled to be heard on a day certain.
When that day arrived, the plaintiff, who initially had requested the hearing, was not
prepared to proceed, and asked for a continuance.
1
The request was denied. The defendants,
who were prepared to proceed, filed an answer, and moved under Rule 65(a) (2) that trial of
the action on the merits be advanced and consolidated with the hearing on the application for
a preliminary injunction. That motion was granted and the cause tried on its merits. The
plaintiff did not then demand a jury trial. The plaintiff offered no proof at all. The defendants
submitted both oral and documentary evidence. At the conclusion of the trial, the court found
that the promissory note and deed of trust were not fraudulently obtained, and that
consideration was given therefor. Consequently, the court dismissed the plaintiff's case for
failure of proof, denied its request for a preliminary injunction, dissolved the temporary
restraining order, and entered judgment for the defendants for costs and attorney's fees.
NRCP 65(a)(2) invests the court with power to order trial of the action on the merits
advanced and consolidated with the hearing of the application for a preliminary injunction.
2

In doing so, however, the court shall save to the parties any rights they may have to trial
by jury.
In this instance, the appellant insists that the trial court infringed upon its right to a jury
trial of its action for damages when it ordered a trial upon the merits to be consolidated with
the application for a preliminary injunction, and that the judgment subsequently entered was,
therefore, void.
____________________

1
The firm representing plaintiff-appellant on this appeal was not counsel for plaintiff below.

2
NRCP 65(a)(2): Before or after the commencement of the hearing of an application for a preliminary
injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the
hearing of the application. Even when this consolidation is not ordered, any evidence received upon an
application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of
the record on the trial and need not be repeated upon the trial. This subdivision (a)(2) shall be so construed and
applied as to save to the parties any rights they may have to trial by jury.
In the context of this case we find no substance to the contention. From commencement of
the action to the time of the order advancing the trial of the merits to be consolidated with the
hearing of the application for a preliminary injunction, the plaintiff did not demand a trial by
jury.
3
The hearing date was secured by the plaintiff itself, presumably with knowledge of
Rule 65(a) (2) and of Rule 38(b). The controlling issues tendered by the amended complaint
and by the application for preliminary injunction were identical, i.e., whether the promissory
note and trust deed were obtained by fraud or without consideration. Those issues would have
been tried whether the court had advanced the trial on the merits, or merely entertained the
application for a preliminary injunction. The court's finding, after a hearing, that there was no
fraud, and there was consideration is not challenged by the plaintiff. In these circumstances, it
seems to us that the belated claim of Memory Gardens that it was denied the right to trial by
jury is superficial.
Affirmed.
____________________

3
NRCP 38(b): Any party may demand a trial by jury of any issue triable of right by a jury by serving upon
the other parties a demand therefor in writing at any time after the commencement of the action and not later
than the time of the entry of the order first setting the case for trial.
____________
91 Nev. 347, 347 (1975) Barton v. DeRousse
GARY L. BARTON, County Recorder of Mineral County, and MUISTO BRAWLEY,
County Recorder of Nye County, Appellants, v. LOUIS DeROUSSE, MERLE SWANSON,
and MILTON WICHNER, Respondents.
No. 7660
May 30, 1975 535 P.2d 1289
Appeal from judgment holding mapping requirements of Chapter 517, Nevada Revised
Statutes, unconstitutional. Fifth Judicial District Court, Mineral County; Kenneth L. Mann,
Judge.
Action by holders of unpatented mining claims challenging constitutionality of statutes
requiring filing of maps of location. The district court rendered judgment from which
defendants appealed. The Supreme Court, Zenoff, J., held that the statutes do not deny due
process and do not conflict with federal laws.
Reversed.
Robert List, Attorney General Julian C. Smith, Special Deputy Attorney General, William
P. Beko, District Attorney, Nye County, and Charles Waterman, District Attorney, Mineral
County, for Appellants.
E. A. Hollingsworth, of Reno, and Milton Wichner, of Los Angeles, California, for
Respondents.
Earl M. Hill, of Reno, for Amicus Curiae.
1. States.
Mapping requirements of statute requiring that mining claimants file maps of location of claims are not
inconsistent with any provision of federal mining law. NRS 517.030, subd. 2, 517.050, subd. 1(e),
517.080, 517.100, 517.230, subd. 3; 30 U.S.C.A. 28.
2. States.
Federal mining law does not preclude state laws involving manner of locating claims and recording them
so long as they are not inconsistent with federal law; state legislature may impose additional burdens on
locator either as requirement that work shall be made as incident to location or as condition to subsistence
of claim and can add further requirements as to recordation of notices of location. 30 U.S.C.A. 28.
3. States.
Requirement that record of location of mining claim contain description by reference to some natural
object or permanent monument does not violate federal recordation requirement. NRS 517.030,
517.030, subd. 2, 517.050, subd. 1, 517.100, 517.110; 30 U.S.C.A. 28.
4. Constitutional Law; Mines and Minerals.
Statutes requiring that maps of locations of mining claims be filed with county recorder do violate due
process for lack of definiteness and certainty, although maps may vary as to ability of locator to set forth
boundaries and location. NRS 517.030, subd. 2, 517.040, subd. 2, 517.100, 517.230, subd. 3; NRAP
3, 28(h).
5. Mines And Minerals.
Burden of showing unacceptability of map setting forth boundaries and location of mining claim rests
with county recorder. NRS 517.040, subd. 2.
OPINION
The Nevada State Legislature in 1971 amended the provisions of Chapter 517, Nevada
Revised Statutes, so that as of July 1, 1971, it became incumbent upon the establishing of
new mining claims and for already existing mining claims under the provisions of Chapter
517 that maps of the location of these claims be filed with the county recorder of the
county in which such claims are situated.
of these claims be filed with the county recorder of the county in which such claims are
situated. NRS 517.030(2), NRS 517.050(1)(e), NRS 517.080, NRS 517.100 and NRS
517.230(3).
The respondents are holders of certain unpatented lode and placer claims in Mineral and
Nye Counties. They successfully challenged in the trial court the constitutionality of Chapter
517 on the grounds that the mapping requirements are in conflict with federal law in that they
are inconsistent with the federal discovery requirements of 30 U.S.C.A. 23 and the federal
recordation requirement of 30 U.S.C.A. 28 that any record of the location of a claim contain
. . . such a description of the claim or claims located by reference to some natural object or
permanent monument as will identify the claim, and that the Nevada statutes violate due
process because they cannot be enforced.
[Headnotes 1, 2]
1. As regards the mapping requirements of Chapter 517 relating to the location and
recordation of location of mining claims, they are not inconsistent with the federal
requirement of discovery and are not a substitute for the federal requirement of discovery.
Sec. 28 of Title 30, U.S.C.A., does not preclude state laws presenting the manner of locating
mining claims and recording them so long as they are not inconsistent with the laws of the
United States. Butte City Water Company v. Baker, 196 U.S. 119 (1905); Gustin v.
Nevada-Pacific Development Corp., 125 F.Supp. 811 (D. Nev. 1954), cert. denied, 351 U.S.
930 (1956). Thus, a state legislature, as is the case here, may impose additional burdens on
the locator of a mining claim either as a requirement that the work shall be made as an
incident to the location or as a condition to the subsistence of the mining claim, and can add
further requirements as to the recordation of notices of location without being in conflict with
federal law. Northmore v. Simmons, 97 F. 386 (9th Cir. 1899); Gustin v. Nevada-Pacific
Development Corp., supra; Sisson v. Sommers, 24 Nev. 379 (1899). The mapping
requirement here is not inconsistent with any provision of federal mining law and is merely
an additional burden within the state's prerogative.
[Headnote 3]
2. As to the trial court's determination that Chapter 517 is in violation of the federal
recordation requirement that any record of the location of a claim contain . . . such a
description of the claim or claims located by reference to some natural object or permanent
monument as will identify the claim," 30 U.S.C.A. 2S, a reading of NRS 517.030{2) and
NRS 517.100 in conjunction with the other requirements for recordation of a certificate of
location as set out in NRS 517.050{1) and NRS 517.110, reflects that the mapping
requirement is in addition to the other requirements of recordation listed therein and is a
graphic representation of the federal requirement of reference to some natural object or
permanent monument.
object or permanent monument as will identify the claim, 30 U.S.C.A. 28, a reading of NRS
517.030(2) and NRS 517.100 in conjunction with the other requirements for recordation of a
certificate of location as set out in NRS 517.050(1) and NRS 517.110, reflects that the
mapping requirement is in addition to the other requirements of recordation listed therein and
is a graphic representation of the federal requirement of reference to some natural object or
permanent monument. The maps' required contents must provide connections to an official
corner of the public survey or to a claim marker if the land has not been surveyed or the
official corner can't be located. Official United States surveys have been held to be permanent
monuments under the federal requirement, McNulty v. Kelly, 346 P.2d 585 (Colo. 1959), and
the claim marker, as defined in NRS 517.030, appears to qualify as a permanent monument or
natural object under the federal requirement. North Noonday Mining Co. v. Orient Mining
Co., 1 F. 522, 534 (C. C. Cal. 1880); Book v. Justice Min. Co., 58 F. 106, 113 (C.C.D. Nev.
1893); Southern Cross Co. v. Europa Co., 15 Nev. 383 (1880); Bismark Mountain Gold M.
Co. v. North Sunbeam Gold Co., 95 P. 14 (Idaho 1908). When considered together the
Nevada statutes are in compliance with the recordation requirement of 30 U.S.C.A. 28. If
anything, the mapping requirement assures better accuracy in the recordation of mining
claims.
[Headnote 4]
3. The trial court's final determination that NRS 517.030(2), NRS 517.100 and NRS
517.230(3) violate due process of law for lack of definiteness and certainty is without merit.
Men of common intelligence are not called upon to guess at the statutes' meaning and differ
as to its application. Connally v. General Const. Co., 269 U.S. 385, 391 (1926); In re Laiolo,
83 Nev. 186, 426 P.2d 726 (1967).
[Headnote 5]
NRS 517.030(2), NRS 517.100 and NRS 517.230(3) are explicit as to what the map shall
contain. The express requirement is that the map must set forth the boundaries and location of
the mining claim. The fact that under NRS 517.030(2) and NRS 517.230(3) the map may
vary as to the ability of the locator to draw these requirements does not render the act
indefinite and uncertain. Further, the burden of showing the unacceptability of a map rests
with the county recorder who can only refuse to accept a map submitted if he can . . .
affirmatively show that the map submitted does not accurately reflect the location of all the
claims. NRS 517.040(2).
An additional issue was raised by the respondents in their answering brief, but because
they fail to properly raise this issue by way of cross-appeal it will not be considered. NRAP 3,
NRAP 28(h).
Reversed.
____________
91 Nev. 351, 351 (1975) Warden v. Hayes
WARDEN, NEVADA STATE PRISON, Appellant, v.
FRANK REINHART HAYES, Respondent.
No. 7678
May 30, 1975 535 P.2d 1282
Appeal from order grating post-conviction relief, First Judicial District Court, Carson City;
Frank B. Gregory, Judge.
The Supreme Court held that totality of record established that state met its burden of
showing that consent to search residence of petitioner's stepfather, which led to discovery of
incriminating clothing, was voluntarily given by his mother.
Reversed.
Robert List, Attorney General; Michael E. Fondi, District Attorney, and Kenneth J.
Jordan, Deputy District Attorney, Carson City, for Appellant.
Michael Farris, Incline Village, for Respondent.
Searches and Seizures.
Totality of record in petition for post-conviction relief established that state met its burden of showing
that consent to search residence of petitioner's stepfather, which led to discovery of incriminating
clothing, was voluntarily given by his mother.
OPINION
Per Curiam:
Frank Reinhart Hayes arrived in Carson City about 6:30 p.m., December 23, 1968, to visit
his mother and stepfather, a Mr. & Mrs. Newcomb. Shortly thereafter the three people went to
a local casino for gambling, dinner and drinking.
About midnight the Newcombs left Hayes at the casino and returned to their residence.
At 3:02 a.m. a police officer, responding to a silent alarm, observed Hayes perpetrating an
armed robbery at a local motel. The officer was not then able to apprehend Hayes; however,
in the ensuing investigation police officers followed the only visible tracks in fresh snow
from the motel to a nearby duplex, one side of which turned out to be the Newcomb
residence. Mrs. Newcomb, having been awakened by the conversations outside the house,
came to the porch; inquired regarding the purpose of the activity; and, after learning they
were seeking a robbery suspect, agreed to the officers' request to look in the basement, where
Hayes was found crouching under a bed with a gun. The gun was later identified as being the
same size and calibre as the one used in the robbery.
Hayes, wearing only a pair of trousers, was arrested and given the warning required by
Miranda v. Arizona, 384 U.S. 436 (1966). A police officer testified that after the arrest he
asked Mrs. Newcomb if he could search the house for the remainder of the clothes Hayes had
been wearing; that she consented that he could do so; that she guided him to a room and
pointed out the clothes Hayes had been wearing earlier in the evening. The officer said that he
took up all the clothes that were lying there and brought them to the police station.
At the trial, Mrs. Newcomb testified that her son was standing at the bottom of the steps
with nothing but his pants on and the cops asked me for his clothes. She also testified that
she had gathered up Hayes' clothes and shoes and handed them to the police officer.
Hayes was convicted of robbery, by jury verdict, February 7, 1969, and sentenced to a 10
year term in the State Prison. No appeal was taken.
During trial the articles of clothing were admitted in evidence, without objection, and there
was no pretrial motion to suppress the clothes, as contemplated by NRS 174.125(1).
After being incarcerated Hayes petitioned for post-conviction relief, contending, inter alia,
for the first time that the articles of clothing were illegally seized in violation of his rights.
The thrust of his argument in support of this contention is that it was constitutionally
impermissible for the police to take the clothes without a search warrant because the state did
not prove by clear and convincing evidence that his mother's consent to search for the clothes
was given voluntarily.
1
The district judge, concluding that our opinion in Lightford v.
State, 90 Nev. 136
____________________

1
The petition for post-conviction relief contained other issues which were not considered by the trial court
and are not here considered.
The district judge, concluding that our opinion in Lightford v. State, 90 Nev. 136, 520
P.2d 955 (1974), was factually identical to the instant case, decided [t]he voluntariness of
the consent to the search of the mother's premises was not proved by clear and convincing
evidence, and that the imprisonment of Hayes is improper and that he should forthwith be
released from imprisonment. We stayed the trial court order pending this appeal.
The district judge misconstrued Lightford which, factually, is entirely different from the
instant case. There, police officers who had been following Lightford's car, made the arrest
pursuant to a warrant, when Lightford stopped and stepped out of the car. The ensuing
personal search and seizure of contraband was within the guidelines delineated in United
States v. Robinson, 414 U.S. 218 (1973), and Gustafson v. Florida, 414 U.S. 260 (1973).
Thereafter, the officers went to Lightford's residence and made a warrantless search, which
we held invalid because his consent was given only after one of the officers had threatened
to kick in the door if Lightford refused them admission. 90 Nev. at 138, 520 P.2d at 956.
Such consent was tainted by the coercive threat of the officer, 90 Nev. at 139, 520 P.2d at
957.
Although the testimony of Mrs. Newcomb and the police officer differs in some respects
as to how the clothes were obtained by the police, the version of neither witness can be
construed to suggest there was a coercive threat.
Voluntariness is a question of fact to be determined from all the circumstances,
Schneckloth v. Bustamonte, 412 U.S. 218, 248-249 (1973), and in our view, the totality of
this record establishes that the state met its burden of showing the consent given by Mrs.
Newcomb was voluntary. See United States v. Matlock, 415 U.S. 164 (1974). Cf. Varner v.
State, 90 Nev. 6, 518 P.2d 43 (1974).
The order granting the petition for post-conviction relief is reversed.
____________
91 Nev. 353, 353 (1975) Founts v. Warden
RICHARD EUGENE FOUNTS, Appellant, v. WARDEN,
No. 7483
May 30, 1975 535 P.2d 1291
Appeal from denial of petition for writ of habeas corpus in the First Judicial District Court,
The Supreme Court, Batjer, J., held that regardless of, inter alia, clerical error on part of
Parole Board in referring to 1970 convictions when granting parole from 1966 sentence,
prisoner was paroled from 1966 sentence to concurrent 1970 sentences.
Affirmed.
Gary A. Sheerin, State Public Defender, for Appellant.
1. Criminal Law.
Post-conviction order which made 1970 sentences concurrent with each other rather than consecutive left
such sentences consecutive to 1966 sentence. NRS 176.035, 176.035, subd. 2.
2. Pardon and Parole.
Regardless of clerical error of Parole Board in referring to 1970 convictions when granting parole from
1966 sentence and regardless of unawareness of Board that post-conviction relief had changed 1970
sentences from consecutive to concurrent, effect of Parole Board's order that prisoner be paroled to
consecutive sentence was to parole prisoner from his 1966 sentence to the 1970 concurrent sentences.
OPINION
Appellant was convicted of assault with intent to commit robbery in 1966 and sentenced to
a term of not less than one nor more than fourteen years in the Nevada State Prison.
Subsequently granted parole, he committed several crimes in 1969, for which he was
convicted and sentenced in 1970 by the Second Judicial District Court, County of Washoe.
Among the crimes were three counts of robbery and one count of attempted robbery, for
which he received consecutive sentences totalling fifty-two and one-half years. He was also
convicted of kidnapping and sentenced to life imprisonment, which sentence was to run
concurrently with the robbery sentences.
On June 9, 1972 appellant was granted post-conviction relief by the Second Judicial
District Court on the theories that the 1970 sentences constituted cruel and unusual
punishment, in violation of the Eighth Amendment to the United States Constitution, and that
defendant was erroneously sentenced for lesser included offenses. That district court ordered
all consecutive sentences be required to run concurrently.
all consecutive sentences be required to run concurrently. Founts appealed from that
judgment, Founts v. Warden, 89 Nev. 280, 511 P.2d 111 (1973), and the State
cross-appealed; however, the cross-appeal was dismissed by order of this Court on May 3,
1973, and the judgment for post-conviction relief was affirmed.
On November 7, 1972 appellant was paroled from his 1966 sentence to consecutive
sentence. On November 8, 1972, in an order by the Board of Parole Commissioners which
referred to his sentence for the 1966 crime, but which incorrectly listed in its place the 1970
convictions and sentences, he was discharged from parole and further liability under his
sentence.
Contending that the judgment which was entered on June 9, 1972 required that all his
sentences run concurrently, appellant petitioned the First Judicial District Court for habeas
corpus relief upon the ground that his discharge by the Board of Parole Commissioners from
his 1966 sentence discharged him from all of his prison sentences. After a hearing the First
Judicial District Court denied his petition and this appeal followed.
[Headnotes 1, 2]
The Board of Parole Commissioners obviously made a clerical error in the November 8,
1972 order of discharge when the 1970 convictions were confused with the 1966 conviction,
and the Board, when it paroled appellant from his 1966 sentence to consecutive sentence,
was either unaware of or disregarded the judgment of post-conviction relief which changed
appellant's 1970 sentences from consecutive to concurrent. In either event the Board of Parole
Commissioners was bound by the district court judgment of June 9, 1972 which made
appellant's 1970 consecutive sentences concurrent with each other and with the kidnapping
sentence but consecutive to the 1966 sentence. NRS 176.035(2).
1
Cf. Collins v. Warden, 88
Nev. 99, 493 P.2d 1335 (1972).
Appellant has in fact been paroled from his 1966 sentence to the concurrent sentences, and
in this appeal he completely misinterprets the judgment entered on June 9, 1972 in an attempt
to effect his release.
No error was committed by the First Judicial District Court when it denied appellant
habeas relief and remanded him to "serve the balance of the sentences heretofore
imposed."
____________________

1
NRS 176.035(2): whenever a person under sentence of imprisonment commits another crime constituting a
felony and is sentenced to another term of imprisonment for such felony, such latter term shall not begin until the
expiration of all prior terms.
when it denied appellant habeas relief and remanded him to serve the balance of the
sentences heretofore imposed. NRS 176.035. We affirm.
____________
91 Nev. 356, 356 (1975) Ventureira v. Sheriff
JUAN ENRIQUE VENTUREIRA, Appellant, v. SHERIFF,
WASHOE COUNTY, NEVADA, Respondent.
No. 8217
May 30, 1975 535 P.2d 1286
Appeal from order denying pretrial petition for writ of habeas corpus, Second Judicial
District Court, Washoe County; Roy L. Tovinen, Judge.
Defendant, who was charged with attempted murder, battery with a deadly weapon and
assault with intent to commit murder, appealed from order of the district court denying
pretrial petition for writ of habeas corpus. The Supreme Court held that mere fact that
defendant fired two shots from a pistol in a public area was insufficient to meet probable
cause requirements that any of the charged crimes were committed or that defendant
committed them.
Reversed.
H. Dale Murphy, Washoe County Public Defender, and William Puzey, Deputy Public
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and Jack
Alian, Deputy District Attorney, Washoe County, for Respondent.
Criminal Law.
Mere fact that defendant fired two shots from pistol in public area was insufficient to meet probable
cause requirement that any of the charges of attempted murder, battery with a deadly weapon and assault
with intent to commit murder were committed, or that defendant committed them. NRS 171.206.
OPINION
Per Curiam:
This appeal challenges the sufficiency of the evidence to warrant prosecution of appellant
for attempted murder, battery with a deadly weapon and assault with intent to commit
murder.
91 Nev. 356, 357 (1975) Ventureira v. Sheriff
The only probative evidence of record is that appellant fired two shots from a pistol in a
public area. We deem such evidence totally insufficient to meet the probable cause
requirement of NRS 171.206 that any of the charged crimes were committed, or that appellant
committed them. Cf. Hooker v. Sheriff, 89 Nev. 89, 506 P.2d 1262 (1973).
Accordingly, we reverse the order of the district court, and order that appellant be freed
from custody unless, within fifteen (15) days, the state elects to bring new and appropriate
charges.
____________
91 Nev. 357, 357 (1975) Shedd v. Adamson
PHILLIP H. SHEDD, Appellant, v. DONALD
ADAMSON, Respondent.
No. 7535
May 30, 1975 535 P.2d 799
Appeal from judgment of the Third Judicial District Court, Lander County; Llewellyn A.
Young, Judge.
An attorney, after obtaining judgment for attorney's fees against defendant, a Nevada
resident, in a California court after service of process on defendant by mail, brought an action
in Nevada on the California judgment. The district court refused to give full faith and credit
to the California judgment, finding that the California court did not have in personam
jurisdiction over defendant when it entered the judgment. On the attorney's appeal, the
Supreme Court held that in the absence of a transcript of the testimony taken during the trial
below, it was required to accept the finding of the trial court and thereby assume that the
evidence supported the trial court's determination.
Affirmed.
Stewart & Horton, Ltd., and Raymond B. Little, Reno, for Appellant.
T. David Horton, Battle Mountain, for Respondent.
Appeal and Error.
In absence of transcript of testimony taken during trial in action to enforce foreign judgment, Supreme
Court was required to accept findings of court below that it was not required to give full faith and
credit to foreign judgment because foreign court lacked in personam jurisdiction
over defendant.
91 Nev. 357, 358 (1975) Shedd v. Adamson
faith and credit to foreign judgment because foreign court lacked in personam jurisdiction over
defendant. Cal. Code Civ. Proc. 415.40.
OPINION
Per Curiam:
Phillip H. Shedd, the plaintiff-appellant, sued Donald Adamson, the defendant-respondent,
in California for attorney's fees that Shedd claimed were due him for legal services rendered
to Donald and his grandmother, Frances Adamson. Shedd served Donald, a Nevada resident,
by mail, as provided in Section 415.40 of the California Code of Civil Procedure,
1
and
obtained a default judgment against him in the sum of $3,484.39.
Shedd then sued in Nevada on the California judgment, obtaining personal service over
Donald. At the trial, the Nevada court refused to give full faith and credit to the California
judgment, on the ground that the California court did not have in personam jurisdiction over
Donald when it entered its default judgment.
The judge determined in his written decision that there were no sufficient contacts with the
State of California to establish such jurisdiction. In the absence of a transcript of the
testimony taken during the trial below, which would enable this court to review the evidence
presented, we must accept the findings of the court and thereby assume that the evidence
supported the trial court's determinations. See Meakin v. Meakin, 88 Nev. 25, 492 P.2d 1304
(1972); City of Henderson v. Bentonite, Inc., 87 Nev. 188, 483 P.2d 1299 (1971).
The judgment is affirmed.
____________________

1
Cal. Ann. Code Civ. P. 415.40 (West 1973):
A summons may be served on a person outside this state in any manner provided by this article or by
sending a copy of the summons and of the complaint to the person to be served by any form of airmail
requiring a return receipt. Service of summons by this form of mail is deemed complete on the 10th day
after such mailing.
____________
91 Nev. 359, 359 (1975) Tavel v. Olsson
ALBERT TAVEL and FELIX MARQUANI, Appellants, v. LEIF OLSSON and JOHN
DOES I Through XV, dba THE VETERANS, Respondents.
No. 7449
May 30, 1975 535 P.2d 1287
Appeal from a judgment of the Eighth Judicial District Court, Clark County; Leonard I.
Gang, Judge.
Agents brought action against performers to recover 10% of performers' weekly salary as
commission. The district court entered judgment in favor of performers and agents appealed.
The Supreme Court, Batjer, J., held that where agreement did not contain a provision as to the
period of duration, court would imply a reasonable time; that evidence sustained finding that
one year was a reasonable time to be implied in contract whereby performers agreed to pay
agents 10% of their weekly salary as commission for the length of our engagement, as well
as on all prolongations or reengagements; and that agents were not entitled to recover where
performers, having performed at hotel for one year and then having performed elsewhere
without the efforts of their agents for two years, returned to the hotel.
Affirmed.
Boyd, Leavitt & Freedman, of Las Vegas, for Appellants.
Michael L. Hines, of Las Vegas, for Respondents.
1. Contracts.
Where agreement does not contain a provision as to the period of duration, court will imply a reasonable
time.
2. Contracts.
In determining what constitutes reasonable period of time to be implied in terms of an agreement, trial
court makes its determination from the nature of the contract and the particular circumstances involved.
3. Principal and Agent.
Where length of initial engagement at hotel which agents obtained for performers was approximately one
year, where performers thereafter performed in various parts of the world for two years, where performers,
through another agent, then secured a second engagement at the same hotel, and where, although
performers continued to perform under the same trade name, they were performing an entirely new act,
agreement which called for performers to pay first agents 10% of their weekly salary for the length of
our engagement, as well as on all prolongations or reengagements" could not be
reasonably interpreted to extend for more than one year.
length of our engagement, as well as on all prolongations or reengagements could not be reasonably
interpreted to extend for more than one year.
OPINION
In April of 1967, appellants negotiated an agreement with the Tropicana Hotel, Las Vegas,
Nevada, on behalf of respondents, for the booking of their acrobatic act. The agreement
provided that the booking would begin as of December 20, 1967, and that respondents would
pay 10% of their weekly salary to appellants as a commission for the length of our
engagement, as well as on all prolongations or reengagements. This agreement contained no
specific termination date.
On November 30, 1968, respondents closed their engagement with the Tropicana having
paid the required weekly commission to appellants during the term of the engagement. After
leaving the Tropicana, they began a European tour making several appearances in different
countries.
In April or May of 1970, they cabled appellants regarding future employment, stating that
they were available for bookings. At that time appellants took no action to book respondents
at the Tropicana or elsewhere.
In the fall of 1970, a Mr. Roth, who is a New York booking agent, contacted a Mr. Sloate
at the Tropicana Hotel regarding the employment of respondents, and a contract was signed
for their performance.
On December 25, 1970, respondents opened at the Tropicana. They closed their
engagement on November 6, 1971. In June of 1971 appellants filed an action seeking to
recover a 10% commission on the booking secured by Mr. Roth. The claim was based upon
the agreement made in April of 1967.
The trial court, in finding for respondents, said: An agreement to perform at the
Tropicana Hotel entered into some two years subsequent to the conclusion of the first year's
agreement should not be construed as a reengagement pursuant to the one page agreement
between the parties. . . . The Court feels that to allow the agency agreement of the plaintiffs to
exist for a period of more than one year subsequent to the initial agreement between
defendants and the Tropicana Hotel would be an unreasonable interpretation. Judgment was
entered on June 27, 1973, in favor of respondents, and this appeal followed.
Appellants contend that the trial court erred as a matter of law in finding no reengagement
under the terms of the agreement and in concluding that one year was a reasonable duration
for the 1967 agreement.
We need not determine whether the 1970-1971 engagement at the Tropicana was a
reengagement because the trial court properly exercised its discretion and did not commit
error when it concluded that one year was a reasonable duration for the 1967 agreement.
[Headnotes 1, 2]
Where an agreement does not contain a provision as to the period of duration the court will
imply a reasonable time. Richardson v. Jones, 1 Nev. 405 (1865). In determining what
constitutes a reasonable period of time the trial court makes its determination from the nature
of the contract and the particular circumstances involved. Denison v. Ladd, 54 Nev. 186, 10
P.2d 637 (1932); Mohr Park Manor, Inc. v. Bank of Nevada, 87 Nev. 520, 490 P.2d 217
(1971).
[Headnote 3]
The record reveals that the length of the initial engagement was for a period of
approximately one year. Thereafter respondents were in various parts of the world
performing. Nearly two years after the completion of the original booking, Roth, and not the
appellants, secured the second engagement at the Tropicana. After respondents cabled
appellants informing them of their availability, appellants took no steps whatsoever to contact
the Tropicana. Moreover, the second booking was for an entirely new act even though
respondents continued to perform under the tradename of Veterans.
Upon these facts the trial court acted within the reasonable limits of its discretion in
concluding that one year was a reasonable duration for the 1967 agreement. There is
considerable support in the record for the result reached in this case, and it should not be
disturbed on appeal. Sala & Ruthe Realty, Inc. v. Deneen, 89 Nev. 98, 507 P.2d 140 (1973);,
Lyon v. Walker Boudwin Constr. Co., 88 Nev. 646, 503 P.2d 1219 (1972); Jensen v. Brooks,
88 Nev. 651, 503 P.2d 1224 (1972).
____________
91 Nev. 362, 362 (1975) LaPratt v. City of North Las Vegas
LEROY LaPRATT, Appellant, v. CITY OF NORTH LAS
VEGAS, a Municipal Corporation, Respondent.
No. 7695
May 30, 1975 535 P.2d 795
Appeal from order dismissing with prejudice a condemnation proceeding against
appellant, for laches; Eighth Judicial District Court, Clark County; Thomas J. O'Donnell,
Judge.
The Supreme Court held that the trial court erred in dismissing the action without giving
the property owner his day in court on the issue of compensation and without assessing the
value of the property sought to be condemned.
Reversed and remanded, with instructions.
John W. Bonner, Las Vegas, for Appellant.
Paul H. Schofield, City Attorney, and John B. Squires, Deputy City Attorney, North Las
Vegas, for Respondent.
Eminent Domain.
Trial court erred in dismissing condemnation proceedings instituted by City with prejudice to
property owner for latter's failure to proceed with diligence where property owner had not been given his
day in court on issue of compensation and, although property had been occupied by City as a street
pending entry of final judgment, value of property had not been assessed nor order of condemnation
entered. NRS 37.009 et seq., 37.100, 37.110, 37.160.
OPINION
Per Curiam:
Less than 5 years after the City of North Las Vegas commenced condemnation
proceedings, trial started and was then continued. When an effort was made to complete the
trial several years later, the court, sua sponte, dismissed City's proceeding with prejudice to
the property owner, for failure to proceed with diligence. The property owner has not had his
day in court on the issue of compensation. NRS 37.110. Nor has a final order of
condemnation been entered, NRS 37.160, although the property has been occupied by City as
a street, pending entry of a final judgment. NRS 37.100. We therefore reverse and remand the
case with instructions to the court below to have a trial for the purpose of assessing the value
of the property sought to be condemned, and thereafter to enter an appropriate order of
condemnation in accordance with NRS chapter 37.
____________
91 Nev. 363, 363 (1975) Layton v. State
JOHNNY LEE LAYTON, Appellant, v. THE
No. 7226
May 30, 1975 536 P.2d 85
Appeal from conviction for first degree murder, in the Second Judicial District Court,
County of Washoe; James J. Guinan, Judge.
In murder prosecution, following grant of habeas corpus after earlier trial and conviction,
the district court rendered judgment and defendant appealed. The Supreme Court, Batjer, J.,
held, inter alia, that prosecutorial misrepresentation as to rebuttal evidence which might be
introduced should defendant testify was harmless where defendant had other compelling
reasons to forego testifying.
Affirmed.
Lohse and Lohse, Chartered, of Reno, for Appellant.
City; Larry R. Hicks, District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Refusal to grant mistrial or to voir dire jury in connection with alleged prejudicial publicity was not error
where court had scrupulously admonished jury to avoid news, publicity complained of occurred day after
last evidence was presented, and totality of circumstances indicated no possible prejudice.
2. Criminal Law.
Propriety of denial of new trial, sought while appeal from conviction was pending, was not before
reviewing court where no notice of appeal was filed after denial.
3. Criminal Law.
Prosecutorial misrepresentation as to rebuttal evidence which might be introduced should defendant
testify was harmless where defendant had other compelling reasons to forego testifying. NRS 178.598.
4. Criminal Law.
Defendant represented by counsel was not entitled to address jury personally. NRS 175.151.
5. Criminal Law.
Admission of transcript testimony of witnesses at first trial did not deny defendant's right to confront
witnesses where there was ample evidence of witnesses' unavailability and witnesses had been
cross-examined at first trial. U.S.C.A.Const. Amends. 6, 14.
6. Homicide.
Defendant in murder prosecution was not entitled to instruction on voluntary manslaughter, despite lack
of direct evidence of manner in which victim was killed, where no evidence specifically
supporting manslaughter theory was cited.
manner in which victim was killed, where no evidence specifically supporting manslaughter theory was
cited. NRS 200.050.
7. Criminal Law.
Defendant's partially correct requested instruction on weight to be accorded transcript testimony was
properly refused where its valid portions were covered in other instructions.
OPINION
Johnny Lee Layton's conviction for first degree murder in 1970 was affirmed by this court
in Layton v. State, 87 Nev. 598, 491 P.2d 45 (1971). Appellant's petition for writ of habeas
corpus was granted by the United States District Court for the District of Nevada, and the
case was remanded to the state district court for retrial. The present appeal is taken from the
judgment of conviction for first degree murder in that second trial.
1. Appellant initially assigns as error the court's denial of his motion for mistrial or to voir
dire the jury concerning allegedly prejudicial publicity during the trial. The publicity in
question was an article in the October 14, 1972 Reno Evening Gazette which reported
defense counsel's reply to the court's inquiry into the reasons for appellant's refusal to testify.
Among the reasons given was a prosecution threat to introduce into evidence a prior
confession of defendant if he testified. Radio reports also carried this information.
Appellant relies on Sheppard v. Maxwell, 384 U.S. 333 (1966), for the proposition that a
trial court must poll a jury upon defense request where that jury has been exposed to
prejudicial publicity. Each such case must be decided on its facts, and ordinarily the
defendant bears the burden of showing unfairness in the adjudicatory process unless the
totality of the circumstances raises the probability of prejudice. U.S. v. McNally, 485 F.2d
398, 402 (8th Cir. 1973) (cert. denied 415 U.S. 978 (1974)), citing Sheppard v. Maxwell,
supra.
[Headnote 1]
The lower court scrupulously admonished the jury to avoid the news at the close of each
session and upon the conclusion of the presentation of evidence. The publicity complained of
occurred the day after the last evidence was presented. The totality of the circumstances
indicates no probable prejudice. Nor has appellant offered any evidence of the jury's exposure
to the publicity. Compare Sheppard, supra. We conclude that the trial court did not commit
error in refusing to grant a mistrial or to voir dire the jury.
the trial court did not commit error in refusing to grant a mistrial or to voir dire the jury.
Compare Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968).
2. Appellant's next claimed error arose from alleged misrepresentations by the prosecutor
as to certain rebuttal evidence he possessed which induced appellant to refrain from testifying
and thus denied him a fair trial. The rebuttal evidence was comprised of appellant's
admissions of his crime to two different people. An examination of the record reveals that
one of the alleged admissions could not be so classified. However, the record also shows
that appellant had other compelling reasons to forego testifying, including probable
impeachment through the introduction into evidence of prior felony convictions and
testimony at a previous trial.
[Headnote 2]
Appellant initially challenged this misrepresentation by means of a motion for new trial in
the district court, made after having filed his appeal in this court. Appellant had asked this
court to remand the case to enable the district court to consider the motion for new trial. We
refused to remand, at the same time vacating the briefing schedule for the pending appeal and
holding it in abeyance until the termination of further district court proceedings. See Layton
v. State, 89 Nev. 252, 510 P.2d 864 (1973). The motion for new trial below was denied on
April 9, 1974, and, no notice of appeal having been filed thereafter, the propriety of the denial
is not now before us.
It is a violation of due process for the prosecutor to withhold exculpatory evidence. . . .
Wallace v. State, 88 Nev. 549, 551, 501 P.2d 1036 (1972). Appellant relies on the above
authority for his present theory of error. The withholding of exculpatory evidence in that case
is analogized to the inducement, through misrepresentation, of appellant to refrain from
testifying in this case. There is little doubt that appellant's testimony would have been
exculpatory in nature, and that the prosecutor's misrepresentation was, at least in part,
responsible for its being withheld.
[Headnote 3]
The prosecutorial misrepresentation was improper, however, we deem it harmless. NRS
178.598. Upon inquiry by the trial court into the reasons for appellant's refusal to testify,
other compelling reasons not induced by the claimed prosecutorial misconduct were given.
Thus any prosecutorial misrepresentation cannot be said to have adversely affected the
substantial rights of the accused.
rights of the accused. Epperson v. State, 84 Nev. 729, 448 P.2d 705 (1968).
[Headnote 4]
Appellant further contends that, because of the aforementioned prosecutorial misconduct,
his request to personally address the jury was erroneously denied. The contention is without
merit. If the defendant elects to have counsel, he has no right to represent himself. Miller v.
State, 86 Nev. 503, 506, 471 P.2d 213 (1970). NRS 175.151,
1
upon which appellant relies,
speaks to the number of counsel authorized to argue a case and does not address the question
here presented.
3. Appellant next asserts as error the admission of the transcript testimony of several
witnesses who testified at his first trial. It is argued that the prosecutor made an inadequate
showing of the unavailability of the witnesses to testify in the second trial. Thus, appellant's
right to confront the witnesses against him, guaranteed by the Sixth and Fourteenth
Amendments to the U.S. Constitution, was abridged.
[Headnote 5]
Appellant's claim finds no support in the record. Ample evidence of unavailability of the
witnesses was introduced by the prosecutor. Furthermore, each witness had been
cross-examined by appellant's counsel at his first trial where their testimony was transcribed.
Pointer v. Texas, 380 U.S. 400 (1965); Coffman v. State, 81 Nev. 521, 407 P.2d 168 (1965).
[Headnote 6]
4. Finally assigned as error is the lower court's refusal to instruct the jury on voluntary
manslaughter and on the weight accorded transcript testimony. . . . [A] defendant in a
criminal case is entitled to have the court instruct the jury about his theory of defense, if there
is evidence to support it. Froggatt v. State, 86 Nev. 267, 270, 467 P.2d 1011 (1970), citing
Barger v. State, 81 Nev. 548, 407 P.2d 584 (1965). Appellant relies on the lack of direct
evidence of the manner in which the victim was killed to support his request for a
manslaughter instruction.
____________________

1
NRS 175.151: If the indictment or information be for an offense punishable with death, two counsel on
each side may argue the case to the jury, but in such case, as well as in all others, the counsel for the state must
open and conclude the argument. If it be for any other offense, the court may, in its discretion, restrict the
argument to one counsel on each side.
manslaughter instruction. But no evidence specifically supporting a manslaughter theory is
cited. See NRS 200.050.
2
Nor does a review of the record reveal such supportive evidence.
[Headnote 7]
A partially correct statement of the law was contained in appellant's instruction on
transcript testimony, however, the valid portions were covered in other instructions, and the
proposed instruction was properly refused. Collins v. State, 88 Nev. 168, 494 P.2d 956
(1972).
Affirmed.
____________________

2
NRS 200.050: In cases of voluntary manslaughter, there must be a serious and highly provoking injury
inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt
by the person killed to commit a serious personal injury on the person killing.
____________
91 Nev. 367, 367 (1975) Coulter v. Eureka Co. School Dist.
DONALD H. COULTER and ESTHER L. COULTER, Appellants, v. EUREKA COUNTY
SCHOOL DISTRICT, a Political Subdivision and a School Board; EUREKA COUNTY, a
Political Subdivision; and the NEVADA STATE EDUCATION ASSOCIATION, a
No. 7881
May 30, 1975 535 P.2d 797
Appeal from order granting summary judgment, Third Judicial District Court, Eureka
County, John F. Sexton, Judge.
The Supreme Court reversed and held that appellants would be allowed their costs on
appeal.
J. Rayner Kjeldsen, Reno, for Appellants.
Evans & Bilyeu, Elko; Thornton & Stephens and Phyllis Alsey Atkins, Reno, for
Respondents.
91 Nev. 367, 368 (1975) Coulter v. Eureka Co. School Dist.
Costs.
Upon reversal of order granting summary judgment, appellants would be allowed their costs on
appeal, on proper filing of a cost bill. NRCP 56(c); NRS 18.060.
OPINION
Per Curiam:
This appeal from an order granting summary judgment is reversed for the same reasons we
delineated in Kitchen Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677 (1975). This case is
remanded for trial on its merits. Cf. NRCP 56(c).
In accord with NRS 18.060, appellants will be allowed their costs on appeal, upon the
proper filing of a cost bill.
____________
91 Nev. 368, 368 (1975) Jones v. Bank of Nevada
CLIFFORD A. JONES and LLOYD E. PERCELL, Individually, and as Copartners dba
PERCELL-JONES LEASING COMPANY, Appellants, v. BANK OF NEVADA, a Nevada
Banking Corporation, Respondent.
No. 7686
May 30, 1975 535 P.2d 1279
Appeal from judgment of the Eighth Judicial District Court, Clark County; James D.
Santini, Judge.
Creditor's action against debtors for deficiency judgment after sale of airplane under
security agreement. The district court rendered judgment for plaintiff and defendants
appealed. The Supreme Court, Mowbray, J., held that denial of further discovery upon grant
of defendants' request for continuance on ground of change of counsel was proper where
defendants had made no motion for discovery in 19 months which had elapsed since answer
and that evidence supported finding that sale was commercially reasonable.
Affirmed.
Paul V. Carelli, III, Las Vegas, and William M. Spence, Phoenix, Arizona, for Appellants.
Smith & O'Brien, Las Vegas, for Respondent. 1.
1. Discovery.
Trial judge has reasonable discretion in controlling conduct of pretrial discovery.
2. Discovery.
Denial of further discovery upon grant of defendants' request for continuance on ground of change of
counsel was proper where defendants had made no motion for discovery in 19 months which had elapsed
since answer.
Price obtained upon sale does not determine whether sale was commercially reasonable. NRS
104.9504, subd. 3, 104.9507, subd. 2.
Evidence in action for deficiency judgment supported finding that creditor's sale of airplane was
commercially reasonable. NRS 104.9504, subd. 3, 104.9507, subd. 2.
OPINION
On May 29, 1969, appellants-defendants, Clifford A. Jones and Lloyd E. Percell, executed
a promissory note and a security agreement covering a certain Beechcraft Westwind aircraft
in favor of the respondent-plaintiff, Bank of Nevada. Jones and Percell defaulted in the
payment of the note, and as a result thereof the Bank took possession of the aircraft in April
1970. Bank sold the aircraft for $71,000 and thereafter instituted this action for a deficiency
judgment of $75,330.56 against Jones and Percell, individually, and against the copartnership
of Percell-Jones Leasing Company.
1. Bank filed its complaint in the court below on August 27, 1971. Defendants answered
on October 7, 1971, asserting as their principal defense that the aircraft was not sold in a
commercially reasonable manner.
The case was eventually set for trial on March 14, 1973. Two days prior thereto, however,
Jones, acting as counsel for all defendants, filed a motion for a continuance, on the ground
that he would be out of the country and that Percell would be absent from the State on the
date of trial. The motion was granted, and the trial rescheduled for May 14, 1973.
On May 9, 1973, the defendants filed a substitution of attorneys, wherein their present
counsel, Paul V. Carelli, III, was substituted in the place of Jones. At the same time,
defendants' new counsel filed a motion . . . for an order vacating that certain trial date of the
above matter presently set for May 14, 1973. . ."
May 14, 1973. . . The district judge granted the motion to continue the trial and permitted
the association of out-of-State counsel; but the judge entered an order denying further
discovery.
2. Jones and Percell argue, first, that the trial court erred in denying them the right to
engage in pretrial discovery. We turn to consider this contention. Nineteen months elapsed
between the time Jones and Percell answered the complaint and the date of their second
motion to continue the trial. During this period there was no request for admissions nor any
attempt to take depositions nor were interrogatories submitted. There was simply no attempt
on their part to move for any pretrial discovery; nor was their initial request for continuance
of a trial date predicated upon the ground that more discovery time was needed. The second
motion for a continuance was based on the fact that new counsel had been retained. The
supporting affidavit of counsel failed to list the names and addresses of any persons sought to
be deposed, the substance of the testimony to be elicited, and the materiality of the same.
The transcript reflects that Percell testified extensively at trial, although Jones was never
present nor the reason for his absence indicated. Numerous exhibits were introduced by
appellants. Jack Green, appellants' expert witness, voluntarily appeared and testified. A
search of the record fails to disclose the prejudice complained of, or if ay such existed, the
record has not been preserved for our consideration on appeal.
1
Quite to the contrary,
appellants' counsel announced at the time of trial that they were ready to proceed. See Heffron
v. Los Angeles Transit Lines, Inc., 339 P.2d 567 (Cal.App. 1959, hearing denied, 1959).
[Headnote 1]
A trial judge must be afforded reasonable discretion in controlling the conduct of pretrial
discovery. As the court said in Heffron, supra, 339 P.2d at 570:
. . . Without reasonable judicial control, the instruments of discovery are susceptible to
abuse and may be utilized for purposes of delay, annoyance and harassment. . . .
And, again, the rule was appropriately stated in Price v. H. B. Green Transportation Line,
Inc., 287 F.2d 363, 366 (7th Cir. 1961): "The record shows that the defendant made no
effort to employ discovery procedures until the cause had been set for trial.
____________________

1
Appellants' first trial brief, filed some six weeks after trial and which has been made a part of the record on
appeal, asserts no claim of prejudice or inability on appellants' part to present their defense to this action.
The record shows that the defendant made no effort to employ discovery procedures until the
cause had been set for trial. Under these circumstances we find that there was no error by the
District Judge in refusing to allow the defendant to take the depositions of the plaintiff's
examining physicians.' . . .
[Headnote 2]
And so, in the instant case, we hold that the district judge's ruling was a reasonable
exercise of the court's discretion in the proper and necessary control of discovery proceedings.
3. We move to the second and fundamental issue presented by this appealwhether
Bank's disposition of the aircraft satisfied the requirements of the Uniform Commercial Code
as adopted by the State of Nevada.
Specifically, the Code sections involved are NRS 104.9504 (3)
2
and NRS 104.9507(2),
3
wherein commercial reasonableness is the controlling factor. The answer is predicated upon
the particular circumstances of the disposition of the aircraft.
Following its repossession on April 9, 1970, and notification to appellants that the plane
would be sold on or after April 24, 1970, Bank caused advertisements to be placed in General
Aviation News, Trade-A-Plane, the Wall Street Journal, the National Observer, and the
major newspapers in Los Angeles, Denver, Salt Lake City, Chicago, and New York.
____________________

2
NRS 104.9504(3), in relevant part:
3. Disposition of the collateral may be by public or private proceedings and may be made by way of
one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place
and on any terms but every aspect of the disposition including the method, manner, time, place and terms
must be commercially reasonable. . . .

3
NRS 104.9507(2):
2. The fact that a better price could have been obtained by a sale at a different time or in a different
method from that selected by the secured party is not of itself sufficient to establish that the sale was not
made in a commercially reasonable manner. If the secured party either sells the collateral in the usual
manner in any recognized market therefor or if he sells at the price current in such market at the time of
his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in
the type of property sold he has sold in a commercially reasonable manner. The principles stated in the
two preceding sentences with respect to sales also apply as may be appropriate to other types of
disposition. A disposition which has been approved in any judicial proceeding or by any bona fide
creditors' committee or representative of creditors shall conclusively be deemed to be commercially
reasonable, but this sentence does not indicate that any such approval must be obtained in any case nor
does it indicate that any disposition not so approved is not commercially reasonable.
Aviation News, Trade-A-Plane, the Wall Street Journal, the National Observer, and the major
newspapers in Los Angeles, Denver, Salt Lake City, Chicago, and New York. Bank caused
about 2,000 brochures to be prepared and distributed to approximately 240 sales
organizations in the United States, to fixed-based operators who were qualified to operate this
type of airplane, and to major sales organizations of used aircraft. Bank further hired a sales
representative to assist in marketing the aircraft. Those offers received were either contingent
upon further financing or the offers were too low for consideration.
On June 22, 1971, the plane was sold to Omni Aircraft, an aircraft broker in Arizona, at a
price of $71,000, the highest cash offer submitted. This aircraft broker, in turn, resold the
plane for $123,000, exclusive of broker's commission, but not before it was required to
expend about $33,000 in necessary modifications to effect the resale of the aircraft. The plane
was an unpressurized converted military unit built in the 1950s.
[Headnote 3]
Although various estimates of the plane's worth appear in the record, the price obtained
upon sale is not the sole determinative factor. NRS 104.9507 (2), supra.
The record before us supports the following calculations:
Sales price received by Omni Aircraft......................................................
$123,000
Commission (based upon 10% of first $100,000 and 5% of next
$400,000)....................................................................................
11,150

________

$111,850
Cost of modifications................................................................................
33,000

________

$78,850
Bank of Nevada's sale price......................................................................
71,000

________

Difference $7,850
Accepting appellants' argument that the sales commission would not exceed 5%, the resale of
the aircraft by Omni could have resulted only in a net sale price of $83,850, about $12,850
more than Bank was able to realize. Such an increase does not take into consideration the
appreciation in value that would normally result from $33,000 worth of modifications to the
aircraft.
Grissom Raines, sales manager for Hughes Aviation Services, testified that he was
personally familiar with the airplane and that he considered it to be a difficult type to sell, that
the aircraft sales market between April 1970 and June 1971 was depressed, and that the
efforts of Bank to sell the craft were steps customarily taken by dealers and salesmen in
selling planes.
Even Percell testified that during this period he sold approximately 35 planes owned by his
own company at prices far below their actual value.
Although Percell testified that other efforts should have been made by Bank to sell the
plane, the trial judge found that the sale to Omni Aircraft met the UCC test for commercial
reasonableness:
. . . One recognized method of disposing of repossessed collateral is for the secured party
to sell the collateral to or through a dealera method which in the long run may realize better
average returns since the secured party does not usually maintain its own facilities for making
such sales. Such a method of sale, fairly conducted, is recognized as commercially
reasonable. . . . Uniform Commercial Code 9-507, Comment (NRS 104.9507, supra).
[Headnote 4]
Where the trier of fact has made a determination upon the basis of conflicting evidence,
that determination may not be disturbed on appeal if supported by substantial evidence.
Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973); Savini Constr. Co. v. A & K
Earthmovers, Inc., 88 Nev. 5, 492 P.2d 125 (1972); Brandon v. Travitsky, 86 Nev. 613, 472
P.2d 353 (1970). The record in the instant case does contain substantial evidence to support
the district judge's finding that Bank's disposition of the subject aircraft was commercially
reasonable and satisfied the standards of the Uniform Commercial Code.
Upon review of the remaining assignments of error, we find none affecting substantial
rights of the parties. NRCP 61. Therefore, the judgment below is affirmed.
____________
91 Nev. 373, 373 (1975) Ricci v. State
JOSEPH DONALD RICCI, Appellant, v. THE
No. 7386
June 4, 1975 536 P.2d 79
Appeal from judgment of conviction of second-degree murder and from order denying
motion for a new trial; Second Judicial District Court, Washoe County; John W. Barrett,
Judge.
91 Nev. 373, 374 (1975) Ricci v. State
The Supreme Court Mowbray J. held, inter alia, that defendant's automobile was properly
admitted in evidence despite contention that the State failed to establish adequate chain of
custody; that any error in presence of unauthorized persons when jury took second view of
automobile during deliberations was harmless; that color photograph of victim standing next
to his mother was admissible to show his height and weight; and that various instructions
given were proper.
Affirmed.
Sanford, Sanford, Fahrenkopf & Mousel, Reno, for Appellant.
Respondent.
1. Criminal Law.
In murder prosecution, defendant's car was admissible in evidence for the limited purpose of permitting
the jury to view the vehicle so they could observe the physical structure of the car including the front seat
area, glove compartment and dashboard panel, despite contention that the State had failed to establish an
adequate chain of custody during approximate 2 1/2-year period from date of killing to trial.
2. Criminal Law.
Where trial court gave cautionary instructions to jury as to limited purpose with which car admitted in
evidence was to be viewed, and defendant did not request any additional formal instruction regarding
possibility of there having been structural changes in the car since the date of the crime, defendant could
not complain on appeal.
3. Criminal Law.
Where jury, while taking a second view, during deliberations, of car which had been admitted in
evidence, was accompanied by court reporter and a deputy sheriff in addition to the two bailiffs in charge
of the jury, any error in the presence of unauthorized persons was harmless where none had been a witness
for the prosecution or was, otherwise, an adversary, and there was no communication between unauthorized
persons and the jury.
4. Criminal Law.
Where photograph of homicide victim standing next to his mother was offered to show his height and
weight, unobjected-to question asked of the mother, whether the photograph fairly and accurately depicted
the height and weight of her son at the time he was shot, provided sufficient foundation for its introduction,
despite contention that proper phrasing of inquiry should have been whether the photograph was a fair and
accurate representation of what it purported to show.
91 Nev. 373, 375 (1975) Ricci v. State
5. Criminal Law.
Though there was in evidence in murder prosecution a black and white photo of victim's face, photograph
of victim standing next to his mother was relevant to show victim's height and weight, in light of
defendant's testimony that victim had reached over open passenger door of automobile and delivered a
heavy blow to defendant's forehead, and photograph was not prejudicial by reason of fact that it was in
color. NRS 48.015.
6. Criminal Law.
Instruction in murder prosecution permitting jury to infer intent on defendant's part if jury found use of a
deadly weapon on a vital part which inflicted a mortal wound was not objectionable on theory that it was in
effect a comment on the evidence or on theory that it directed jury to find intent in violation of statute
relating to instructions on presumptions. NRS 47.230; Const. art. 6, 12.
7. Homicide.
In instruction on second-degree murder, substitution of words unlawful act for words evil or wrongful
purpose, motive or design was not reversible error since any prejudice resulting was in defendant's favor.
8. Homicide.
Instruction on justifiable homicide was sufficient despite contention that it should have included the
provisions of statute defining such defense. NRS 200.120.
9. Homicide.
Instruction setting forth criteria of heat of passion which will reduce homicide to manslaughter was
proper.
10. Criminal Law.
Instructions offered by defendant were properly rejected where they were already covered in instructions
given to the jury or were incomplete or erroneous statements of the law.
11. Homicide.
Instruction that When a person commits an act or makes an omission through misfortune or by accident
under circumstances that show no evil design, intention or culpable negligence, he does not thereby commit
a crime would be improper where offense charged is a homicide. NRS 194.010, subd. 7.
12. Criminal Law.
Where defendant in homicide prosecution submitted an improper instruction on accident and was offered
an opportunity to submit an appropriate instruction but rejected it, he could not complain on appeal.
OPINION
A jury in Washoe County found Joseph Donald Ricci, the appellant, guilty of
second-degree murder. The district judge, after denying Ricci's motion for a new trial,
sentenced him to serve 15 years in the State Prison. Ricci has appealed from his judgment of
conviction and the order denying his motion for a new trial.
91 Nev. 373, 376 (1975) Ricci v. State
his judgment of conviction and the order denying his motion for a new trial.
1. Kenneth A. Muller, the victim of the murder, and his companion, Virginia Conlan,
were, on the evening of August 18, 1970, hitchhiking on Interstate 80 east of Sparks, Nevada.
Ricci, who was driving a 1969 Dodge automobile, stopped to give Kenneth and Virginia a
ride. He was returning with his friend, Gary Ellington, to Yerington, Nevada. Some time after
Ricci had picked up Kenneth and Virginia, he drove his car to the side of the road, stating that
it was overheating. Ricci exited the car and raised its hood. He then asked Ellington to start
the car, which Ellington did.
The testimony of Virginia, who was the State's principal witness, and that of Ricci differ
substantially. Virginia testified that Ellington then shut the engine off and at Ricci's direction
went to the front of the car. Both she and Kenneth remained seated in the car.
At this juncture, Ricci asked Kenneth if he knew anything about cars, Kenneth said he did
not, but that he would see what he could do; and he went to the front of the car. Virginia
testified that at this point she heard a yell that sounded like Kenneth's voice. As she jumped
from the car, she saw Ricci and Kenneth struggling. The struggle carried the two men from
the front of the vehicle along the passenger side to the rear of the automobile. Virginia
testified that she heard a shot, and she saw Kenneth fall forward on his left side. Ricci,
according to Virginia's testimony, turned toward her, and she, for the first time, saw a gun in
Ricci's hand. Ricci ran for the car, while Virginia ran to Kenneth's aid. When she reached
Kenneth, she glanced back and saw someone riding in the front seat passenger side of the car
as it sped away with its lights off.
1

Ricci testified that he went to the front of the car and raised the hood; that he asked
Ellington to start the car. Then he noticed the oil cap was off, and he told Ellington to turn off
the ignition. He asked if anyone knew anything about cars, at which point both Ellington and
Kenneth exited the car.
Ricci stated that when he told Kenneth he had lost oil, Kenneth angrily declared, What
the hell can we do? Ricci then said he wanted the couple to leave the car. He shut the hood
and walked to the passenger door in order to ask Virginia to leave. As he bent down to move
the seat back forward, he heard someone running toward him.
____________________

1
Ellington was also charged with murder; he was killed in an accident prior to trial.
91 Nev. 373, 377 (1975) Ricci v. State
heard someone running toward him. When he stood up and turned around, Kenneth,
according to Ricci, slugged him on his left temple. The force of the blow knocked him
backward and into the front seat of the car on the passenger side. As Kenneth started to
approach him, Ricci reached into the glove compartment, grabbed his gun, cocked it, and
while aiming it at Kenneth, said, Back off. Kenneth, according to Ricci, then made a grab
for the gun, but missed and grabbed Ricci's shirt instead, causing the firearm to discharge and
the bullet to pass through Ricci's shirt before hitting Kenneth. Ricci claimed that Kenneth
bent forward as if to grab his left thigh, and then he fell backward to the ground. When
Kenneth said, Help me, Ricci said he started to go to him, but Ellington yelled, Let's get
out of here. Believing that Kenneth was only wounded, the two men sped away.
[Headnote 1]
2. Ricci's 1969 Dodge was admitted in evidence, over objection, as Exhibit DD for the
limited purpose of permitting the jury to view the vehicle, first with the doors closed and then
with the doors open, so that the jurors could observe the front seat area, the glove
compartment (open and closed), and the dashboard, including the fuel, temperature, oil
pressure, and alternator gauges. The jury viewed the vehicle in the basement of the county jail
and in the presence of the defendant, his counsel, and all officers of the court. The judge
explained to the jurors the limited purpose of the view.
2
Ricci claims that the judge
committed reversible error in admitting the vehicle into evidence, on the principal ground that
the State had failed to establish an adequate chain of custody during the approximate 2
1/2-year period from the date of the killing to trial. Captain Kellerer of the Washoe County
Sheriff's office testified that he had taken photographs of the vehicle immediately after the
shooting, which photos were received in evidence without objection, and that, except for the
wear and tear and fading of paint, the physical layout of the car, i.e., the doors, front seat
area, dashboard, and glove compartment area, all appeared to be the same as when the
shooting occurred.
This court said in Sorce v. State, SS Nev. 350, 352
____________________

2
The Court: . . .
Ladies and gentlemen, we are going to go to the basement of the jail, which is the building next door, I
think, as you know, and you are going to be allowed to view this automobile and for the purposes that I have
mentioned. An overall view of the car, the doors open and closed. As far as that goes, the interior, particularly of
the front seat which would cover the front seat of [sic] the glove compartment, the gauges on the dashboard.
None of this is available for your experimentation and so forth. Someone will open the door. Each of you will
get to look in and so forth. . . .
91 Nev. 373, 378 (1975) Ricci v. State
of the car, i.e., the doors, front seat area, dashboard, and glove compartment area, all appeared
to be the same as when the shooting occurred.
This court said in Sorce v. State, 88 Nev. 350, 352-353, 497 P.2d 902, 903 (1972):
. . . It is not necessary to negate all possibilities of substitution or tampering with an
exhibit, nor to trace its custody by placing each custodian upon the stand; it is sufficient to
establish only that it is reasonably certain that no tampering or substitution took place, and the
doubt, if any, goes to the weight of the evidence. Oliver v. State, 85 Nev. 10, 449 P.2d 252
(1969); Carter v. State, 84 Nev. 592, 446 P.2d 165 (1968); Eisentrager v. State, 79 Nev. 38,
378 P.2d 526 (1963). . . .
While the facts in Sorce are much more restrictive than those in the instant case, the same
principle applies. There was no question that Exhibit DD was the 1969 Dodge Ricci was
driving on the night he shot Kenneth. The car was admitted for the sole purpose of affording
the jurors an opportunity to view it. The judge so instructed them prior to the view. We reject
as meritless Ricci's contention that the court committed reversible error in admitting the
vehicle in evidence for the limited purpose of permitting the jury to view it.
[Headnote 2]
3. Ricci asserts that the judge committed error when he failed sua sponte to give the jurors
a cautionary instruction when he charged them regarding the possibility of there being
structural changes in the car since the date of the crime. Counsel for Ricci urges that the judge
promised during the trial to give such an instruction. Prior to the jury's viewing the car the
following colloquy took place between Ricci's counsel and the court:
Mr. Fahrenkopf: It is my understanding the Court will give a cautionary instruction to the
jury. There has been an elapsed period of time.
The Court: I will do whatever is necessary in that way, and I will explain to them what we
are going to do. We will bring them in now. Do you want to do this right now? We can bring
the jury in. I can explain that to them. We can go on down to the basement and you can send
Mr. Malloy and have him get things set up and we will go down and stand up down there.
The court did just that, as evidenced in footnote 2, supra. At no time thereafter did Ricci's
counsel request an additional formal instruction.
91 Nev. 373, 379 (1975) Ricci v. State
formal instruction. Failing to do so, Ricci may not now complain. State v. Lewis 59 Nev. 262
271, 91 P.2d 820, 823 (1939); State v. Hall, 54 Nev. 213, 235, 13 P.2d 624, 630 (1932).
[Headnote 3]
4. During their deliberations, the jury stated to Bailiff Archuleta that they wished to view
the car once again. The bailiff, after securing approval of the judge, escorted the jurors to the
basement of the jail, where a second view took place. When this occurred, in addition to the
two bailiffs in charge of the jury there were present the court reporter and another deputy
sheriff named Oxborn. There is no suggestion of impropriety or any communication between
the unauthorized persons and the jury
3
merely the presence of the mentioned persons.
Consequently, prejudice is not shown.
The appellant relies mainly upon the Ninth Circuit decision of United States v. Pittman,
449 F.2d 1284 (1971). There, the court reversed a conviction because the privacy of the jury
room was improperly invaded by an agent of the prosecution. The court noted that access to
the jury during its deliberative process by any adversary simply cannot be tolerated.
The adversary to which the court referred was a government agent who had played a tape
recording during trial. He also had testified at length as a witness for the government about
surveillance and the chain of custody of the physical evidence, and had sat at the prosecutor's
table throughout the trial. Later, during jury deliberation, that agent was asked to play the tape
recording again.
Although prejudice was not shown, the fact that he had been a witness at trial for the
government, and was later with the jury during its deliberation, convinced the court that
due process was denied the accused.
____________________

2
By Mr. Fahrenkopf [appellant's counsel]:
Q Mr. Archuleta, what did you understand these restrictions [regarding the view] to be?
A Well, I don't remember exactly what they were. At the time I was there, both times, of course,
they weren't allowed to get in and start the car, drive around. I don't know. They couldn't go into the
trunk. I know they could look to see what gauges there were. I think somebody did look to see what
gauges there were in the car on the second visit as they did on the first visit. I don't recall anything being
done the second time that wasn't done the first time.
Q What you are saying is that this time, not remembering all of the admonitions of the Court, it is
your opinion that they didn't do anything that they didn't do the first time?
A That is correct.
91 Nev. 373, 380 (1975) Ricci v. State
the jury during its deliberation, convinced the court that due process was denied the accused.
To the same general effect is Turner v. Louisiana, 379 U.S. 466 (1965), where the
Supreme Court found a denial of due process when the two principal witnesses for the
prosecution were also in charge of the jury.
The case before us is not quite the same. None of those who accompanied the jury was a
witness for the prosecution, and none was, within the meaning of Pittman or Turner, an
adversary who had invaded the jury during its deliberation. Assuming it was wrong for them
to have been there, on the record it was harmless.
[Headnotes 4, 5]
5. During the trial a color photograph of Kenneth standing next to his mother was
received in evidence. Kenneth's mother was asked if the photo fairly and accurately depicted
the height and weight of her son at the time he was shot. She answered in the affirmative.
There was no objection to the form of the question at trial, but on appeal Ricci urges that the
proper phrasing of the inquiry should have been whether the photograph was a fair and
accurate representation of what it purported to show. Since the photo was offered to show
Kenneth's height and weight and there was no objection to the question when asked, we find
that the foundation for its introduction was sufficient. Ricci also complains that Kenneth's
height and weight were irrelevant and that the photo, being in color, was highly prejudicial.
Although there was a black-and-white photo of Kenneth's face in evidence, the color photo of
Kenneth and his mother had probative value in showing Kenneth's height and weight. These
facts related to Kenneth's ability to reach over the open passenger door and deliver a heavy
blow to Ricci's forehead, as Ricci claimed. The exhibit was relevant. NRS 48.015.
4
Although it was in color, it was clearly not prejudicial, and it was offered to prove facts
which the black-and-white photo of Kenneth could not do. See Shuff v. State, 86 Nev. 736,
476 P.2d 22 (1970).
6. Ricci objects to the following instructions given by the judge to the jury: [Headnote 6]
____________________

4
NRS 48.015:
As used in this chapter, relevant evidence' means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more or less probable than
it would be without the evidence.
91 Nev. 373, 381 (1975) Ricci v. State
[Headnote 6]
A. Ricci complains that Instruction No. 17
5
is in effect a comment on the evidence in
violation of article 6, section 12, of the Nevada Constitution, and further that the instruction
directs the jury to find an intent in violation of NRS 47.230.
6
The judge did not instruct the
jury to find an intent to kill, nor did the instruction indicate that certain facts were established.
See State v. Hall, supra, 54 Nev. at 240, 13 P.2d at 632. The court, by giving the instruction,
permitted the jury to infer intent on Ricci's part if the jury found the existence of certain facts:
use of a deadly weapon . . . at a vital part, which inflicts a mortal wound. . . . See Walker
v. State, 78 Nev. 463, 376 P.2d 137 (1962). The objection to the instruction is without merit.
[Headnote 7]
B. Ricci objects to Instruction No. 18 on the ground that the words evil or wrongful
purpose, motive or design were omitted from the instruction.7 However, the words
"unlawful act" were substituted therefor, and if any prejudice resulted, it was in Ricci's
favor.
____________________

5
Instruction No. 17:
If a person, without legal justification or excuse, intentionally uses a deadly weapon upon the person
of another at a vital part and inflicts a mortal wound, under circumstances showing no considerable
provocation, then intent to kill may be presumed or implied as an inference of fact from the act itself.

6
NRS 47.230:
1. In criminal actions, presumptions against an accused recognized at common law or created by
statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt,
are governed by this section.
2. The judge shall not direct the jury to find a presumed fact against the accused. When the
presumed fact established guilt or is an element of the offense or negatives a defense, the judge may
submit the question of guilt or of the existence of the presumed fact to the jury, if, but only if, a
reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or
the presumed fact beyond a reasonable doubt. Under other presumptions, the existence of the presumed
tact may be submitted to the jury if the basic facts are supported by substantial evidence, or are otherwise
established, unless the evidence as a whole negatives the existence of the presumed fact.
3. Whenever the existence of a presumed fact against the accused is submitted to the jury, the judge
shall give an instruction that the law declares that the jury may regard the basic facts as sufficient
evidence of the presumed fact but does not require it to do so. In addition, if the presumed fact
establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury
that its existence must, on all the evidence, be proved beyond a reasonable doubt.
91 Nev. 373, 382 (1975) Ricci v. State
omitted from the instruction.
7
However, the words unlawful act were substituted therefor,
and if any prejudice resulted, it was in Ricci's favor. State v. Hall, supra, 54 Nev. at 239, 13
P.2d at 632.
[Headnote 8]
C. Ricci urges that Instruction No. 23
8
was fatally defective because it should have
included the provisions of NRS 200.120.
9
In light of the evidence adduced, we think
Instruction No. 23 adequately covered this aspect of appellant's theory of defense.
____________________

7
Instruction No. 18:.
If the unlawful killing of a human being is done with malice aforethought, but without deliberation
and premeditation, that is, without the wilful, deliberate and premeditated intent to take life which is an
essential element of first degree murder, or is not perpetrated by means of poison, or lying in wait, or
torture, and is not committed in the perpetration or intent to perpetrate arson, rape, robbery, or burglary,
then the offense is murder in the second degree.
In practical application this means that the unlawful killing of a human being with malice
aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second
degree when the killing results from an unlawful act, the natural consequences of which are dangerous to
life, which act is intentionally performed by a person who knows that his conduct endangers the life of
another, even though the person has not specifically formed an intention to kill.

8
Instruction No. 23:
Justifiable homicide is the killing of a human being in necessary self-defense.
If a person kill another in self-defense, it must appear that:
1. The danger was so urgent and pressing that, in order to save his own life, or to prevent his
receiving great bodily harm, the killing of the other was absolutely necessary; and
2. The person killed was the assailant, or that the slayer had really and in good faith endeavored to
decline any further struggle before the mortal blow was given.
A bare fear of any such offense, to prevent which the homicide is alleged to have been committed,
shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite
the fears of a reasonable person and that the party killing really acted under the influence of those fears,
and not in a spirit of revenge.

9
NRS 260.120:
Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of
habitation, property or person, against one who manifestly intends, or endeavors, by violence or surprise,
to commit a felony, or against any person or persons who manifestly intend and endeavor, in a violent,
riotous or tumultuous manner, to enter the habitation of another for the purpose of assaulting or offering
personal violence to any person dwelling or being therein.
91 Nev. 373, 383 (1975) Ricci v. State
[Headnote 9]
D. Finally, Ricci's objection to Instruction No. 31
10
is without merit. It sets forth the
criteria of the heat of passion which will reduce a homicide to manslaughter, and it was a
proper instruction.
[Headnote 10]
7. Ricci offered numerous instructions which were rejected by the judge. Of the
instructions offered and refused, only Instruction No. III requires discussion. The other
offered instructions (I, II, VI, VII, VIII, and IX) were already covered in the instructions given
to the jury, or they (IV, V, X, XI, XII) were incomplete or erroneous statements of the law.
[Headnotes 11, 12]
Requested Instruction No. III stated: When a person commits an act or makes an
omission through misfortune or by accident under circumstances that show no evil design,
intention or culpable negligence, he does not thereby commit a crime.
Ricci contends that his testimony that the gun just went off and that he did not remember
pulling the trigger supports his theory that the shooting was an accident and therefore requires
an instruction to that effect. Barger v. State, 81 Nev. 548, 407 P.2d 584 (1965). The source of
the instruction is NRS 194.010(7)
11
and CALJIC 4.45. As noted in CALJIC 4.45, the
instruction is improper, where the offense charged is a homicide.
____________________

10
Instruction No. 31:
The heat of passion which will reduce a homicide to manslaughter must be such a passion as
naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A
defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because
his passions were aroused unless the circumstances in which he was placed and the facts that confronted
him were such as also would have aroused the passion of the ordinarily reasonable man, if likewise
situated. The basic inquiry is whether or not, at the time of the killing, the reason of the accused was
obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of
average disposition to act rashly and without deliberation and reflection, and from such passion rather
than from judgment.

11
NRS 194.010(7):
All persons are liable to punishment except those belonging to the following classes:
. . .
7. Persons who committed the act or made the omission charged, through misfortune or by accident,
when it appears that there was no evil design, intention or culpable negligence.
91 Nev. 373, 384 (1975) Ricci v. State
4.45, the instruction is improper, where the offense charged is a homicide. Ricci was offered
an opportunity to submit an appropriate instruction and rejected it. He may not now complain.
State v. Hall, supra, 54 Nev. at 243, 13 P.2d at 633.
8. Other assigned errors have been considered and are without merit.
The order denying the motion for a new trial and the judgment of conviction are affirmed.
____________
91 Nev. 384, 384 (1975) Pinheiro v. Young Electric Sign Co.
MANUEL PINHEIRO dba EL MIRADOR MOTEL, Appellant, v. YOUNG
ELECTRIC SIGN CO., a Nevada Corporation, Respondent.
No. 7750
June 9, 1975 535 P.2d 800
Appeal from judgment of the Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
Affirmed.
John G. Spann, Las Vegas, for Appellant.
Pat J. Fitzgibbons, Las Vegas, for Respondent.
OPINION
Per Curiam:
Appellant's briefs do not conform to NRAP 28(e), which contemplates that briefs shall
refer to those places in the appendix or record where matter referred to may be found.
Moreover, appellant has cited a paucity of relevant legal authority concerning the appeal's
merits.
For these and other reasons, having examined the briefs and the record, we order this
appeal submitted on such briefs and, finding it without merit, hereby affirm. NRAP 34(f)(1).
____________
91 Nev. 385, 385 (1975) Lane-Tahoe, Inc. v. Kindred Constr. Co.
LANE-TAHOE, INC., a Nevada Corporation, Appellant, v. KINDRED CONSTRUCTION
COMPANY, INC., a Nevada Corporation, and DAVIS WADE KINDRED, Respondents.
No. 7602
LANE-TAHOE, INC., a Nevada Corporation, v. McKENZIE CONSTRUCTION,
INC., a Nevada Corporation, Respondent.
No. 7670
June 11, 1975 536 P.2d 491
Consolidated appeals from orders denying stay of lien foreclosure proceedings and
denying arbitration; Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Building owner appealed from order of the district court denying motion to stay lien
foreclosure proceedings by contractors whose contractors provided for arbitration of disputes.
The Supreme Court, Thompson, J., held, inter alia, that the owner had not waived right to
demand arbitration, by failing to file written demand therefore before institution of lien
foreclosure proceedings, that demand for arbitration was not barred by the statute of
limitations and that compelling arbitration in accordance with contractual promises was
proper.
Reversed.
John J. McCune, Ltd., of Reno, for Appellant.
Breen, Young, Whitehead & Hoy, and Milos Terzich, of Reno, for Respondent Kindred
Construction Company, Inc.
Woodburn, Wedge, Blakey, Folsom & Hug and Robert Cox, of Reno, for Respondent
McKenzie Construction, Inc.
Determination in action involving multiple parties that there is no just reason for delay in entry of final
judgment is not necessary for purpose of appeal if a statute or rule expressly authorizes an appeal. NRCP
54(b).
In view of statute expressly providing that an appeal might be taken from order denying application to
compel arbitration, party aggrieved by court order, in action involving multiple parties, denying motion to
compel arbitration against one of the parties was entitled to appeal therefrom without a determination by
court that there was no just reason for delay in entry of final judgment.
there was no just reason for delay in entry of final judgment. NRCP 54(b); NRAP 3A(b)(2).
3. Arbitration.
Contract to submit controversies through arbitration is, with certain exceptions, valid, enforceable and
irrevocable. NRS 38.035, 38.045, subd. 4, 38.135-38.155.
4. Arbitration.
Absent express language in contract placing the initial burden for commencement of arbitration process
on either party, responsibility properly rests with party seeking relief and does not shift to opponent absent
clear waiver of arbitration by opponent.
5. Arbitration.
Where construction contracts between owner and contractors provided for arbitration of dispute but
contained no language placing the initial burden on either party to commence arbitration of dispute, burden
was on contractors seeking to recover claim of balances due for work, and when they commenced court
action instead this constituted a refusal to arbitrate with statute authorizing a stay of proceeding in absence
of anything in record to suggest waiver of arbitration by owner. NRS 38.045, subd. 1.
6. Arbitration.
Passage of time after disputes arose between building owner and contractors, without more, did not point
to a waiver of arbitration provisions of contract by owner where the duty to initiate arbitration process
rested upon the claimant contractors who thereafter commenced lien foreclosure actions. NRS 38.045,
subd. 1.
7. Mechanics' Liens.
Mechanics' lien law does not impair right to sue for debt claimed to be due. NRS 108.238.
Where contracts between contractors and building owner provided that the demand for arbitration must
be made within reasonable time and in no event after the date that institution of legal or equitable
proceedings based on such claim would be barred by applicable statute of limitations, owner's motion to
compel arbitration filed more than six months after contractors had reported claim of lien was not barred
since the applicable period of limitations was that governing contracts. NRS 11.190, subd. 1, 38.045,
subds. 1, 4, 108.233, 108.238.
9. Arbitration.
Where owner and contractors provided for arbitration of disputes arising out of construction of building,
arbitration was not rendered unsuitable on ground that contractors enjoyed a statutory remedy provided by
the mechanics' lien law. NRS 108.233, subd. 1, 108.238.
OPINION
These consolidated appeals are from orders of the district court, entered in lien foreclosure
proceedings, denying motions to compel the arbitration of disputes arising under construction
contracts.
The appellant in each instance, Lane-Tahoe, Inc., as owner, entered into written contracts
with respondents, McKenzie Construction, Inc., and Kindred Construction Co., respectively
for land site preparation and for the construction of condominiums. Each contract contains
provisions for the arbitration of claims and disputes arising thereunder. McKenzie and
Kindred seek court foreclosure of lien claims timely filed. Lane-Tahoe sought unsuccessfully
to stay court action and to compel arbitration in lieu thereof. These appeals followed. We first
must resolve a motion to dismiss tendered by Kindred.
1. Kindred filed a statement of facts constituting its claim of lien [NRS 108.239] in a lien
foreclosure action commenced by two of its subcontractors, Incline Glass and Cal-Vada
Cabinet Company, against Lane-Tahoe. Since Lane-Tahoe's contract with Kindred provided
for the arbitration of disputes between them, Lane-Tahoe moved to stay court action and to
compel arbitration. As noted, that motion was denied. We are asked to dismiss Lane-Tahoe's
appeal from the order denying arbitration because NRCP 54(b) provides that when multiple
parties are involved, the court may direct the entry of final judgment only upon an express
determination that there is no just reason for delay and upon an express direction for the entry
of judgment. The record contains no such express determination and direction. Whether
Rule 54(b) has application to this case is the point to be decided.
1

The motion to compel arbitration was offered pursuant to NRS 38.045 of the Uniform
Arbitration Act. Section 1 thereof provides that on application of a party showing an
agreement described in NRS 38.035, and the opposing party's refusal to arbitrate, the court
shall order the parties to proceed with arbitration. . . . And, section 4 thereof reads that any
action or proceeding involving an issue subject to arbitration shall be stayed if an order for
arbitration or an application therefor has been made under this section. . . . When the
application is made in such action or proceeding, the order for arbitration shall include such
stay. Finally, NRS 38.205 (1) (a) of the Act expressly provides that an appeal may be taken
from an order denying an application to compel arbitration made under NRS 38.045.
[Headnote 1]
A Rule 54(b) determination is not necessary if a statute or rule expressly authorizes an
appeal. In DeLuca Importing Co. v. Buckingham Corp., 90 Nev. 15S
____________________

1
We have examined other grounds for the motion to dismiss and find them to be without merit.
Co. v. Buckingham Corp., 90 Nev. 158, 520 P.2d 1365 (1974), we ruled that an appeal may
be taken from an order denying a motion for an injunction, NRAP 3A(b)(2), without any
express determination that there is no just reason for delay. See also: Bernhardt v.
Polygraphic Company of America, 235 F.2d 209, 211 (2d Cir. 1956); Atlantic Richfield Co.
v. Oil, Chemical & A. Wkrs. Int. U., 447 F.2d 945, 947 (7th Cir. 1971); Thompson v. Trent
Maritime Company, Ltd., 343 F.2d 200, 204 (3rd Cir. 1965).
[Headnote 2]
Kindred's motion to dismiss is denied. We turn to consider the merits of the consolidated
appeals.
2. The contractual provisions for arbitration are, in each instance, identical and, in
relevant part, are quoted below.
2

Moreover, each contract states that it shall be governed by the law of the place where the
Project is located. The project is located in Washoe County, Nevada. Consequently, the
arbitration provisions of the contracts are to be read in conjunction with the Uniform
Arbitration Act of this state.
[Headnote 3]
The underlying purpose of the Act is to preclude court intervention into the merits of
disputes when arbitration has been provided for contractually. This is evident from a mere
reading of the Act. A contract to submit controversies to arbitration, with certain exceptions,
is valid, enforceable, and irrevocable.
NRS 38.035. Any action or proceeding involving an issue subject to arbitration shall be
stayed if an application therefor has been made. NRS 38.045(4). Subject to the specified
exceptions of NRS 38.145 and 38.155, the court shall confirm the award of the arbitrators.
____________________

2
All claims, disputes and other matters in question arising out of, or relating to, this contract or the breach
thereof . . . shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the
American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to
arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the
arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law of any court
having jurisdiction thereof.
Notice of the demand for arbitration shall be filed in writing with the other party to the Contract and with
the American Arbitration Association, and a copy shall be filed with the Architect. The demand for arbitration
shall be made . . . within a reasonable time after the claim, dispute or other matter in question has arisen, and in
no event shall be made after the date when institution of legal or equitable proceedings based on such claim,
dispute or other matter in question would be barred by the applicable statute of limitations.
the award of the arbitrators. NRS 38.135. The whole tenor of the Act favors arbitration when
the parties have agreed to that method of settling disputes between them. The respondents
Kindred and McKenzie acknowledge this to be so. However, they each insist that the owner,
Lane-Tahoe, waived its right to arbitration by failing to file written notice of its demand
therefor within a reasonable time as required by the contract provision quoted in footnote 2,
and the respondent McKenzie further urges that Lane-Tahoe's motion to compel arbitration is
barred by limitations. These contentions formed the basis for the district court orders denying
arbitration.
[Headnote 4]
Although Lane-Tahoe did not file a written demand for arbitration, neither did McKenzie
nor Kindred. All had agreed, however, to settle their disputes in that manner. In view of that
agreement, one of the contracting parties was obliged to initiate the arbitration process.
Absent express language in the contract placing the initial burden on either party, that
responsibility properly rests with the party seeking relief. Mamlin v. Susan Thomas,
Incorporated, 490 S.W.2d 634, 639 (Civ.App.Tex. 1973); Nordenstrom v. Swedberg, 143
N.W.2d 848, 857 (N.D. 1966); Klein Coat Corp. v. Peretz, 153 N.Y.S.2d 92, 97 (Sp.Ct.
1956). He should not be free to litigate in the courts simply because his opponent did not
demand arbitration. This is not to say that the opponent could not have initiated arbitration.
We hold only that the burden to initiate arbitration is upon the party seeking relief and does
not shift to the opponent absent a clear waiver of arbitration by the opponent. The parties
seeking relief in these cases, that is, payment for the claimed balances due for their work, are
the contractors McKenzie and Kindred.
[Headnote 5]
This view is compatible with NRS 38.045(1) which explicitly provides that on application
of a party showing an agreement to arbitrate and the opposing party's refusal to arbitrate, the
court shall order the parties to proceed with arbitration. The thrust of the statute is to compel
the contracting parties to honor their promises. The agreements to arbitrate are admitted.
McKenzie and Kindred, who seek relief, did not initiate arbitration. Instead, they commenced
court action. This, we think, is a refusal to arbitrate within the intendment of NRS 38.045 (1).
Cf. Galion Iron Works & Mfg. Co. v. J. D. Adams Mfg. Co., 128 F.2d 411, 413 (7th Cir.
1943). [Headnote 6]
[Headnote 6]
[Headnote 6]
The record contains nothing to suggest a waiver of arbitration by Lane-Tahoe. Waiver
requires conduct which speaks the intention clearly. United Assn. Journeymen v. Stine, 76
Nev. 189, 199, 351 P.2d 965 (1960). The contracting parties did not discuss waiving
arbitration. The passing of time after the disputes arose, without more, does not point to a
waiver of the arbitration provisions by Lane-Tahoe, when the duty to initiate the arbitration
process rested upon the claimants McKenzie and Kindred. There is nothing to show that
Lane-Tahoe did not intend to rely upon arbitration should the claimants press their claims.
When the lien foreclosure actions were commenced, Lane-Tahoe moved to stay them, and for
arbitration. Had Lane-Tahoe answered to the merits instead of moving for arbitration, a
waiver could be found. Galion Iron Works & Mfg. Co. v. J. D. Adams Mfg. Co., 128 F.2d
411, 413 (7th Cir. 1942). This, it did not do. Rather, it moved for the relief explicitly
authorized by NRS 38.045 (1)(4). A waiver of arbitration by Lane-Tahoe did not occur. A. D.
Hoppe Company v. Fred Katz Construction Co., 57 Cal.Rptr. 95, 100 (Cal.App. 1967).
3. The contracts provide that the demand for arbitration shall be made within a reasonable
time and in no event after the date when institution of legal or equitable proceedings based
on such claim, dispute or other matter in question would be barred by the applicable statute of
limitations. With regard to the McKenzie controversy, it is urged that the quoted language
bars arbitration since Lane-Tahoe did not file its motion to compel arbitration until more than
six months after McKenzie had recorded its claim of lien.
3
It is Lane-Tahoe's position that
the applicable period of limitation is that governing contracts,
4
and that its right to move for
arbitration pursuant to the express authorization of NRS 38.045(1) is not precluded.
[Headnotes 7, 8]
The mechanics' lien law does not impair the right to sue for the debt claimed to be due.
NRS 108.238; State v. Breen, 41 Nev. 516, 521
____________________

3
NRS 108.233(1): No lien . . . binds any building, mining claim, improvement or structure for a longer
period than 6 months after such lien has been recorded, unless: (a) Proceedings are commenced in a proper court
within that time to enforce the same; . . . .

4
NRS 11.190(1): Within 6 years:
(a) . . . .
(b) An action upon a contract, obligation or liability founded upon an instrument in writing. . . .
41 Nev. 516, 521, 173 P. 555 (1918); State v. Moran, 42 Nev. 356, 358, 176 P. 413 (1919).
McKenzie sought not only to foreclose its lien, but alternatively, to recover money for an
alleged breach of contract. Since the underlying dispute concerns whether McKenzie or
Lane-Tahoe breached contractual duties, the contract language must mean that the applicable
statute of limitations is the one governing an action upon a contract.
[Headnote 9]
4. The district court intimated that arbitration is not suited to a case where a
lienor-contractor enjoys the statutory remedy provided by the mechanics' lien law.
We find no authority holding that arbitration is inappropriate when the parties to a
construction contract have agreed to that method of settlement. Neither the mechanics' lien
law nor the arbitration act discloses a legislative intention to preclude the voluntary
arbitration of disputes arising out of a construction contract. The contractors before us have
not attempted to demonstrate how or why they would be prejudiced by having the rights
settled by the arbitration process to which they have agreed.
5

We conclude that a valid arbitration agreement should be enforced as between the parties
hereto.
Reversed, with direction to stay the lien foreclosure proceedings of McKenzie and
Kindred, and to enter an order in each instance granting arbitration.
Zenoff and Mowbray, JJ., concur.
Gunderson, C. J., and Batjer, J., dissenting:
With all respect, we believe the majority's resolution of the above cases is incorrect.
We believe that, as the district court perceived, staying lien proceedings while one
claimant arbitrates potentially warps the lien law and permits one claimant to deprive
others of their statutory remedies, merely by invoking a contract to which the others are
not parties.
____________________

5
Labor and material suppliers are not permitted a lien on public buildings or public works of the United
States. Consequently, the Miller Act was enacted to give such suppliers needed protection. It provides for
furnishing a payment bond in all government construction contracts. Court action upon the bond is not the
exclusive remedy to decide disputed issues. If the contract provides for arbitration, that method for settlement
may be enforced. United States v. Electronic Missile Facilities, Inc., 364 F.2d 705 (2d Cir. 1966); Electronic &
Missile Facilities, Inc. v. United States, 306 F.2d 554 (5th Cir. 1962); Agostini Bros. Bldg. Corp. v. United
States, 142 F.2d 854, 855 (4th Cir. 1944). See also: Compulsory Arbitration and Rights Under the Miller Act,
Mechanics' Lien Laws, and State Public Improvement Bonds, Vol. IV, Number 3, The Forum, 195 (April,
1969).
proceedings while one claimant arbitrates potentially warps the lien law and permits one
claimant to deprive others of their statutory remedies, merely by invoking a contract to which
the others are not parties.
Even if no stay of proceedings be granted, the arbitration if compelled will often be futile;
for the results will not be binding on the other claimants, who by statute have the right to
have the court declare the existence, amount, and priority of all liens. See: NRS 108.235 et
seq.
____________
91 Nev. 392, 392 (1975) Stevens v. Hocker
BERT STEVENS, Appellant, v. WARDEN CARL HOCKER and
PERSONNEL ADVISORY COMMISSION, Respondents.
No. 7639
June 11, 1975 536 P.2d 88
Appeal from judgment dismissing state employee; First Judicial District Court, Carson
In proceeding by prison correctional officer, who was arrested in public place and charged
with disorderly conduct arising from his intoxication and use of abusive language to officer
who was attempting to stop marital quarrel, to review his dismissal, the district court affirmed
the determination and officer appealed. The Supreme Court, Thompson, J., held, inter alia,
that prison rules authorizing disciplinary action for notoriously disgraceful personal conduct
and conduct detrimental to good of institution must be limited to job performance and did not
justify dismissal.
Reversed.
Gunderson, C. J., and Mowbray, J., dissented.
Sanford, Sanford, Fahrenkopf & Mousel and Charles M. McGee, of Reno, for Appellant.
Robert List, Attorney General, and Patrick D. Dolan, Deputy Attorney General, Carson
1. Prisons.
Prison rule concerning dismissal of employee for conduct involving intoxicants resulting in conviction
did not justify discharge of correctional officer before conviction.
2. Prisons.
Prison rule requiring employees to maintain courteous and professional demeanor toward inmates, not
use indecent, abusive or profane language on duty, and to avoid conflict that might bring criticism on
themselves or prison, referred to on-duty conduct and did not justify dismissal of correctional officer for
off-duty conduct.
3. Prisons.
Prison rules authorizing disciplinary action for notoriously disgraceful personal conduct and conduct
detrimental to good of institution must be limited to job performance and did not justify dismissal of
correctional officer who was arrested in public place and charged with disorderly conduct arising from his
intoxication and use of abusive language to officer who was attempting to stop marital quarrel.
4. Prisons.
Correctional officer who was successful on appeal from judgment dismissing him was entitled to
reinstatement with accrued back pay and rights, less amount gained in gainful employment since dismissal,
with interest and costs below and on appeal.
OPINION
Bert Stevens, who had been employed as a correctional officer at the Nevada State Prison
since May 1963, was, on August 2, 1971, dismissed from his employment by the Warden for
specified off-duty conduct. The Warden's decision to discharge Stevens was affirmed by the
Personnel Advisory Commission, and in turn, by the district court. He has appealed to this
court for relief.
It is without dispute in the record that Stevens had been a faithful and competent employee
at the prison for many years. This is stipulated to be so.
On August 1, 1971, Stevens was arrested in a public place and charged with disorderly
conduct arising from his intoxication and use of abusive language to the arresting officer who
was attempting to stop a quarrel between Stevens and his wife. This isolated, off-duty
transgression prompted the Warden to dismiss Stevens from state service the following day.
Stevens pleaded nolo contendere to the charge, and on August 5, judgment was entered
against him. Sentencing was continued for 90 days, at which time the court would allow entry
of a plea of not guilty and entertain a motion to dismiss the action. This apparently occurred,
although the record is not entirely clear in this regard.
The dismissal rests upon asserted violations of certain prison and state personnel
administration rules of conduct to which we now turn our attention.
[Headnote 1]
1. The portion of Prison Rule 4127 upon which the Warden relied concerns dismissal of
an employee for any conduct involving intoxicants, drugs, gambling or immorality which
results in conviction in any court. Since Stevens was dismissed from service before he
entered his plea to the charge and before conviction thereof, reliance upon Rule 4127 was
clearly wrong. Indeed, during appellate argument, counsel for respondents conceded this to be
so.
[Headnote 2]
2. Prison Rule 4105 reads: Employees shall maintain at all times a courteous and
professional demeanor in dealing with inmates, and act at all times as a member of the
Nevada State Prison Staff. They shall not use indecent, abusive or profane language while on
duty; they shall avoid conduct that might bring criticism on themselves or the Nevada State
Prison. As written, this rule refers to on-duty conduct and, in our view, is not intended to
encompass activities of employees while off duty and at a place remote from the prison and
environs. The Warden erred in endeavoring to utilize this rule as a reason for dismissing
Stevens.
3. Rule 13 of the Rules for State Personnel Administration, subdivisions 5 and 7 thereof,
respectively authorize disciplinary action for notoriously disgraceful personal conduct, and
for conduct detrimental to the good of the institution. The Warden and the Personnel
Advisory Commission also relied upon the quoted strictures as additional grounds for the
dismissal of Stevens.
The quoted phrases may be too sweeping to be meaningful. They may be so vague and
ambiguous as to provide a substantial danger of arbitrary discrimination in their application.
Indeed, the appellant Stevens challenges the words used as unconstitutionally vague and
overbroad. Conduct detrimental to the good of the institution is a phrase so illusive as to
embrace an almost unlimited area of conduct. And the words notoriously disgraceful
personal conduct are almost as illusive in character. Whether the conduct in question falls
within the prohibited sphere would appear to be governed by the subjective evaluation of the
appointing authorityin this instance, the Warden.
However, we do not choose to rest our decision on constitutional grounds. In Moore v.
Board of Trustees, 88 Nev. 207, 495 P.2d 605 (1972), and Meinhold v. Clark County School
District, 89 Nev. 56, 506 P.2d 420 (1973), we sustained disciplinary action for
"unprofessional conduct," another phrase without precise meaning.
disciplinary action for unprofessional conduct, another phrase without precise meaning. In
each instance, however, the conduct in issue bore directly upon fitness to perform the
profession involved.
The matter at hand is quite different. There is nothing of substance in the record to suggest
that Stevens' off-duty transgression on August 1, 1971, had any bearing at all upon his
performance as an employee of the Nevada State Prison. The evidence is to the contrary. His
job performance record was good. On writing about the application of such broad phrases to
an employee's performance on the job, the California Supreme Court observed: Terms such
as immoral or unprofessional conduct' or moral turpitude' stretch over so wide a range that
they embrace an unlimited area of conduct. In using them the legislature surely did not mean
to endow the employing agency with the power to dismiss any employee whose personal,
private conduct incurred its disapproval. Hence, the courts have consistently related the terms
to the issue of whether, when applied to the performance of the employee on the job, the
employee has disqualified himself. Morrison v. State Board of Education, 461 P.2d 375 at
382 (1969).
[Headnote 3]
It is reasonable to relate such broad language to job performance, if such illusory terms are
to be tolerated at all. When so related here, it is apparent that there exists no basis for the
dismissal of Stevens from state employment.
[Headnote 4]
Accordingly, we order his reinstatement with all accrued back pay and rights, less the
amount he has earned in gainful employment since dismissal. He is also entitled to interest on
monies due him, his costs below and on appeal. Hardison v. Carmany, 88 Nev. 670, 504 P.2d
1 (1972); Mead v. State of Nevada Dep't of Health, 91 Nev. 152, 532 P.2d 611 (1975).
Batjer and Zenoff, JJ., concur.
Gunderson, C. J., dissenting:
I respectfully dissent.
The prison's security partially depends on concerned cooperation of the Carson City
Sheriff's Department, and of police generally. When an off-duty guard vulgarly and drunkenly
vilifies members of the Sheriff's Department in a public place, I think his conduct jeopardizes
this cooperation, so important to the prison's well-being. Thus, assuming the language of
subdivisions 5 and 7 of Rule 13 must be related to job performance, as the majority think,
I suggest the evidence here justified the Warden in finding such a relationship.
subdivisions 5 and 7 of Rule 13 must be related to job performance, as the majority think, I
suggest the evidence here justified the Warden in finding such a relationship.
In my view, therefore, it was proper for the Warden to find appellant had engaged in
notoriously disgraceful personal conduct, which adversely affected the prison, and conduct
detrimental to the good of the institution. Accordingly, I submit appellant should not be
compensated for the discharge his drunken tirade precipitated. Instead, that discharge should
be upheld.
Mowbray, J., concurs.
____________
91 Nev. 396, 396 (1975) First National Bank of Nevada v. Barengo
FIRST NATIONAL BANK OF NEVADA and PAULA BELL, Coadministrators of the
ESTATE OF VICTOR F. WHITTLESEA, Appellants and Cross-Respondents, v. INEZ
BARENGO, Respondent and Cross-Appellant.
No. 7403
June 12, 1975 536 P.2d 487
Appeal from dismissal without prejudice of respondent's action to recover against
guarantor of promissory note secured by a deed of trust; cross-appeal from order of dismissal;
Second Judicial District Court, Washoe County; Emile J. Gezelin, Judge.
Payee of note secured by deed of trust brought action against estate of deceased guarantor
of note. The district court entered a judgment of dismissal without prejudice and the
administrators of estate appealed and the payee cross-appealed. The Supreme Court,
Thompson, J., held that the payee was entitled to bring action on a guaranty without bringing
suit first against the makers of note or foreclosing the deed of trust.
Cause reversed and remanded for trial.
Guild, Hagen & Clark, Ltd., and Bruce Robb, of Reno, for Appellants and
Cross-Respondents.
Lohse and Lohse, of Reno, for Respondent and Cross-Appellant.
Guaranty.
One action rule of statute with regard to judicial foreclosure did not bear upon obligation of guarantor
of note secured by deed of trust to honor his separate independent contract of guaranty and payee of note
was not required to first proceed against makers or to foreclose deed of trust before bringing suit on
guaranty. NRS 40.430, subd. 1, 104.3416.
OPINION
On April 1, 1970, Lee and Mary Jane Carter executed a promissory note in the amount of
$12,000 in favor of Inez Barengo, and secured payment thereof by a deed of trust on real
property owned by them. Victor Whittlesea signed that note as guarantor.
1
The Carters
defaulted.
Whittlesea died in February 1972. Barengo filed a creditor's claim against his estate which
was rejected. This action then was commenced to recover the sum due on the note. Barengo
did not proceed against the Carters, nor did she foreclose the deed of trust. The district court
believed this action to be premature since Barengo had failed to exhaust her security.
Consequently, it dismissed without prejudice. The administrators of the Whittlesea Estate
have appealed asserting that the dismissal should have been with prejudice. Barengo has
cross-appealed, contending that the court erred in dismissing her case.
The so-called one action rule of NRS 40.430(1), considered by this court in McMillan v.
United Mortgage Co., 82 Nev. 117, 412 P.2d 604 (1966), and Nevada Land & Mtge. v.
Hidden Wells, 83 Nev. 501, 435 P.2d 198 (1967), and distinguished in Paramount Ins. v.
Rayson & Smitley, 86 Nev. 644, 472 P.2d 530 (1970), with regard to judicial foreclosure
does not, in our view, bear upon the obligation of a guarantor to honor his separate,
independent contract of guaranty. A contract of guaranty is to be separately considered.
____________________

1
On the face of the note are these words: For Value Received, the undersigned hereby guarantees the
payment of the foregoing obligation and all renewals or extensions thereof, and does hereby waive demand,
presentation, protest and notice thereof and notice of non-payment.
Dated: April 1, 1970
V. Wittlesea
Guarantor.
Bank of Nevada v. Friedman, 82 Nev. 417, 420 P.2d 1 (1966); Randono v. Turk, 86 Nev.
123, 466 P.2d 218 (1970); cf. Short v. Sinai, 50 Nev. 346, 259 P. 417 (1927), and Glens Falls
Ins. v. First Nat'l Bank, 83 Nev. 196, 427 P.2d 1 (1967), concerning suretyship.
This issue recently was considered by the United States District Court for the District of
Nevada. Coombs v. Heers, 366 F.Supp. 851 (1973). That court ruled that the one-action
statute, NRS 40.430(1), does not include a guarantor within its ambit of protection, and that
the creditor may sue the guarantor without first proceeding against the maker of the note or
the security given therefor. Id at 855, 856. In our view, the federal court correctly perceived
the Nevada law.
There is nothing in the record before us to suggest that Victor Whittlesea occupied any
status other than that of guarantor. It is clear that Inez Barengo would not have made the loan
but for the guaranty of Whittlesea. Authority elsewhere declares that where a note is signed
by a guarantor, the guarantor must pay the same according to its tenor, and the holder need
not first resort to the maker as a precondition to suit against the guarantor. Brown University
v. Landati, 320 A.2d 609 (R.I. 1974); Sadler v. Kay, 172 S.E.2d 202 (Ga. App. 1969); Liberty
Nat'l B. & T. Co. of Savannah v. Interstate Motel Dev., 346 F.Supp. 890 (D.C. Ga. 1972).
NRS 104.3416 states: Payment guaranteed' or equivalent words added to a signature
mean that the signer engages that if the instrument is not paid when due he will pay it
according to its tenor without resort by the holder to any other party. Such is the rule when
the promissory note is secured by a chattel mortgage. Etelson v. Suburban Trust Co., 283
A.2d 408 (Md.Ct.App. 1971). Security in the form of a deed of trust does not place the
guarantor in a different position. Coombs v. Heers, supra.
The order below dismissing Barengo's action without prejudice is reversed, and the cause
remanded for trial. The appeal by the administrators of the Whittlesea Estate is denied.
____________
91 Nev. 399, 399 (1975) Kirk v. Warren
BETTY KIRK, CHARLES KIRK, Jr., KATHLEEN STAPP, and CHARLES WHEELER,
Appellants, v. MICHAEL WARREN, Respondent.
No. 7896
June 12, 1975 535 P.2d 1291
Appeal from judgment for defendant entered upon jury verdict; Second Judicial District
Court, Washoe County; Grant L. Bowen, Judge.
Affirmed.
G. C. Backus, of Reno, for Appellants.
Goldwater Hill Mortimer Sourwine & Pinkerton, of Reno, for Respondent.
OPINION
Per Curiam:
The appellants have cited a paucity of relevant legal authority concerning the assigned
errors. Our independent review of the record leads us to find that the appeal is without merit.
Affirmed.
____________
91 Nev. 399, 399 (1975) A Minor v. State
..................., A Minor Boy Under the Age of 18 Years of Age, Appellant, v.
No. 7705
...................., A Minor Boy Under the Age of 18 Years of Age, Appellant, v. CLARK
COUNTY JUVENILE COURT SERVICES, Respondent.
No. 7735
June 12, 1975 536 P.2d 490
Consolidated appeals from adjudications of delinquency of the Eighth Judicial District
Court, Clark County; Michael J. Wendell, Judge.
The Supreme Court held that evidence was insufficient to justify a determination, beyond a
reasonable doubt, that youth had carnal knowledge of ostensible victim against her will.
Reversed. Morgan D.
Morgan D. Harris, Public Defender, Las Vegas, for Appellant in Case No. 7705.
Harry E. Claiborne, Las Vegas, for Appellant in Case No. 7735.
Infants.
Evidence was insufficient to justify a determination, beyond a reasonable doubt, that youth charged with
delinquency had carnal knowledge of ostensible victim against her will. NRS 200.361, subd. 1.
OPINION
Per Curiam:
At lunchtime, several boys and a girl left their high school and drove to a home where one
boy lived. There, in a den, they listened briefly to music. Then, one of the boys whispered to
the girl, who walked ahead of him to a bedroom, to which she evidently knew the way. In
doing so, without manifesting distress, the girl passed the adult brother of one boy, who was
home in the kitchen. After her first companion departed, the two appellants here concerned
successively spent time in the bedroom also. Subsequently, the girl claimed they had raped
her; appellants were charged with delinquency, so adjudicated, and placed on probation. This
appeal follows.
It would serve no useful purpose to review at length the testimony regarding the conduct of
these teenagers on the day in question. In our view, evidence before the lower court is
insufficient to justify a determination, beyond a reasonable doubt, that appellants had carnal
knowledge of the ostensible victim against her will. NRS 200.363 (1).
Accordingly, we reverse, with instructions to dismiss proceedings against appellants.
____________
91 Nev. 401, 401 (1975) Trail v. Faretto
JOHN E. TRAIL and ALICE N. TRAIL, Appellants, v. JOHN C. FARETTO, NORA L.
FARETTO and HAROLD JOSEPH FARETTO, Respondents.
No. 7755
June 18, 1975 536 P.2d 1026
Appeal from denial of motion for stay of proceedings to enforce judgment and for an order
vacating judgment for defendants and order of dismissal. Second Judicial District Court,
Washoe County; Lewellyn A. Young, Judge.
Plaintiffs appealed from an order of the district court which dismissed their case for want
of prosecution. The Supreme Court held that where the plaintiffs had failed to bring their
action to trial for some thirteen years, and the defendants' motion to dismiss for want of
prosecution had been denied some five years previously, the trial court did not err in sua
sponte entering an order of dismissal for want of prosecution.
Affirmed.
Fred A. Nelson and James W. Johnson, of Reno, for Appellants.
Echeverria & Osborne, and David Baba, of Reno, for Respondents.
1. Dismissal And Nonsuit.
Where plaintiffs had failed to bring action to trial for some thirteen years, and defendants' motion to
dismiss for want of prosecution had been denied some five years previously, trial court did not err in sua
sponte entering order of dismissal for want of prosecution. NRCP 41(e).
2. Dismissal and Nonsuit.
Order denying motion to dismiss for want of prosecution does not foreclose succeeding motion of like
nature when there has been change of circumstances such as additional extensive lapse of time. NRCP
41(e).
Whenever plaintiff has failed to bring action to trial within five years from its filing, court in absence of
written stipulation extending time shall dismiss action. NRCP 41(e).
4. Motions.
Court may, for sufficient cause shown, amend, correct, resettle, modify, or vacate, as case may
be, order previously made and entered on motion in progress of cause or proceeding.
modify, or vacate, as case may be, order previously made and entered on motion in progress of cause or
proceeding.
OPINION
Per Curiam:
Two actions were commenced in September and October of 1957 which three years later
after issue was joined were consolidated. On October 27, 1965, the matters not having been
brought to trial defendants moved to dismiss under the five-year provision of NRCP 41(e),
but the motion was denied.
1

Three years later the cases were set for trial for December 2, 1968. Instead of going to trial
the parties on December 3, 1968, stipulated that they go off calendar, but the defendants
reserved the right to assert whatever legal positions available to them resulting from the
plaintiffs' failure to bring the matter to trial at this time.
A year and a half later the trial court sua sponte entered an order of dismissal under 41(e).
Plaintiffs appeal the trial court's refusal to stay proceedings to enforce the judgment and for
an order vacating judgment, entered by a different judge, and the order of dismissal.
____________________

1
NRCP 41(e):
Want of Prosecution. The court may in its discretion dismiss any action for want of prosecution on motion of
the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed
to bring such action to trial. Any action heretofore or hereafter commenced shall be dismissed by the court in
which the same shall have been commenced or to which it may be transferred on motion of the defendant, after
due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years
after the plaintiff has filed his action, except where the parties have stipulated in writing that the time may be
extended. When, in any action after judgment, a motion for a new trial has been made and a new trial granted,
such action shall be dismissed on motion of defendant after due notice to plaintiff, or by the court of its own
motion, if no appeal has been taken, unless such action is brought to trial within three years after the entry of the
order granting a new trial, except when the parties have stipulated in writing that the time may be extended.
When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a
new trial (or when an appeal has been taken from an order granting a new trial and such order is affirmed on
appeal), the action must be dismissed by the trial court on motion of defendant after due notice to plaintiff, or of
its own motion, unless brought to trial within three years from the date upon which remittitur is filed by the clerk
of the trial court. A dismissal under this subdivision (e) is a bar to another action upon the same claim for relief
against the same defendants unless the court otherwise provides.
[Headnotes 1-4]
The first order denying the motion to dismiss does not foreclose a succeeding motion of
like nature when there has been a change of circumstances, here, an additional extensive lapse
of time. O'Brien v. City of Santa Monica, 33 Cal.Rptr. 770 (Cal.App.2d 1963). Five years had
elapsed from the first denial of the motion to dismiss. It is too well-settled to warrant further
citations that whenever plaintiff has failed to bring an action to trial within five years from its
filing the court in the absence of a written stipulation extending time shall dismiss the action.
Furthermore, a court may, for sufficient cause shown, amend, correct, resettle, modify, or
vacate, as the case may be, an order previously made and entered on motion in the progress of
the cause or proceeding. J. J. Case Company v. McDonald, 280 P.2d 1070 (Idaho 1955);
Mannah v. Robinson, 188 P.2d 360 (Okl. 1948).
Appellants' efforts to convince this court that the stipulation did not mean what it says are
without merit. The operative dates contained in the stipulation were as stated and did not
constitute an extension of time without limit.
Affirmed.
____________
91 Nev. 403, 403 (1975) Leprechaun Mining & Chemical v. Ronnow
LEPRECHAUN MINING AND CHEMICAL, INC., Appellant,
v. DONN E. RONNOW, Respondent.
No. 7662
June 18, 1975 536 P.2d 1027
Appeal from judgment on a promissory note in the Eighth Judicial District Court, Clark
Suit was filed on note given by defendant to plaintiff for past services. The district court
entered judgment in favor of plaintiff, and defendant appealed. The Supreme Court held that
record supported determination made by trial court in favor of plaintiff despite claim that,
because no salary was properly authorized for plaintiff in initial instance, note given in
settlement thereof lacked adequate consideration.
Affirmed.
Gladstone & Zucker, Las Vegas, for Appellant.
Raggio, Walker, Wooster & Pilkington, and Johns & Johns, Las Vegas, for Respondent.
Bills and Notes.
91 Nev. 403, 404 (1975) Leprechaun Mining & Chemical v. Ronnow
Bills and Notes.
Record supported determination made by trial court in favor of payee, in action on note issued for
past services, despite claim that, because no salary was properly authorized for payee in initial instance,
note given in settlement thereof lacked adequate consideration.
OPINION
Per Curiam:
In December, 1970, appellant issued a promissory note for $18,200 to respondent for past
services. Upon appellant's later refusal to honor the note, respondent brought suit. Appellant
counterclaimed, charging corporate mismanagement and seeking cancellation of the note, an
accounting, and return of various corporate funds. The district court entered judgment on the
note, and dismissed all counterclaims for failure of proof.
On appeal, appellant's major contentions are: (1) that because no salary was properly
authorized for respondent in the initial instance, the note given in settlement thereof lacked
adequate consideration; and (2) that evidence supports appellant's claims of corporate
mismanagement and breach of fiduciary obligation. The record may, however, be read to
support the trial court's determinations. Cf. Leprechaun Mining & Chemical v. Grigor, 91
Nev. 148, 532 P.2d 602 (1975); Western Indus., Inc. v. General Ins. Co., 91 Nev. 222, 533
P.2d 473 (1975).
____________
91 Nev. 404, 404 (1975) Herndon v. Arco Petroleum Co.
NEAL A. HERNDON and BERYL HERNDON, Appellants, v. ARCO PETROLEUM
COMPANY, a Nevada Corporation and CURTIS A. KNUDSEN, Respondents.
No. 7574
June 18, 1975 536 P.2d 1023
Appeal from summary judgment, Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Action was brought by pedestrian against service station after pedestrian broke his hip and
leg when he slipped on icy portion of service station private driveway which crossed public
sidewalk. The district court granted defendants' motion for summary judgment, and plaintiffs
appealed. The Supreme Court, Thompson, J., held that abutting property owner or occupier
is under duty to maintain that portion of public sidewalk put to special use in reasonably
safe condition for pedestrians if that special use creates hazard to which pedestrians are
exposed.
Court, Thompson, J., held that abutting property owner or occupier is under duty to maintain
that portion of public sidewalk put to special use in reasonably safe condition for pedestrians
if that special use creates hazard to which pedestrians are exposed.
Reversed.
C. B. Tapscott and Erickson & Thorpe, of Reno, for Appellants.
Hibbs & Bullis, Ltd., of Reno, for Respondents.
1. Municipal Corporations.
Special use, which consisted of vehicular traffic by service station, employees of service station, and
service station customers, of sidewalk allegedly resulting in hazard which was not result of natural
accumulation of ice and snow, if established to satisfaction of finder of facts, could justify finding of
negligence sufficient to warrant recovery by a pedestrian injured as result of such hazard.
Abutting property owner or occupier is under duty to maintain that portion of public sidewalk put to
special use in reasonably safe condition for pedestrians if special use creates hazard to which pedestrians
are exposed.
3. Judgment.
In action brought by pedestrian against service station after pedestrian slipped on icy portion of service
station private driveway which crossed public sidewalk and broke his hip and leg, there was material fact
issue, precluding summary judgment, as to whether service station's special use of portion of driveway,
rather than natural accumulation of ice and snow, resulted in hazard encountered by pedestrian.
OPINION
This appeal from summary judgment for defendants Arco Petroleum Company and Curtis
A. Knudsen presents this issue: Is an abutting property owner who makes special use of a
sidewalk under a duty to maintain the portion thereof put to special use in a reasonably safe
condition for pedestrians?
One of the plaintiffs, Neal A. Herndon, broke his hip and leg when he slipped on an icy
portion of the private driveway of the Arco service station which crosses a public sidewalk.
According to his affidavit offered in opposition to the defendants' motion for summary
judgment, vehicular traffic going in or out of the service station altered the snow and ice
conditions which existed, and "an inadequate attempt had been made to clear a small
pathway through the snow and ice although other sidewalks in the immediate area were
completely cleared and free of any ice or snow."
or out of the service station altered the snow and ice conditions which existed, and an
inadequate attempt had been made to clear a small pathway through the snow and ice
although other sidewalks in the immediate area were completely cleared and free of any ice or
snow.
In granting summary judgment to the defendants, the district court relied primarily upon
the opinion of this court in Major v. Fraser, 78 Nev. 14, 368 P.2d 369 (1962). We there noted
and approved the common law rule that an abutting property owner or occupant is under no
duty to keep the public sidewalk in front of his property in a reasonably safe condition, and
since the defendant did not create a defect by some positive action or through a use of the
sidewalk independent of and apart from the ordinary use thereof, he was not liable to the
plaintiff who fell and was injured. However, in the Major case, we especially mentioned that
the defect was not due to any special use of the property by Fraser, but to pedestrian use and
the weather only. Id. 16.
[Headnotes 1-3]
In the case at hand, the defendants made special use of the portion of the driveway over the
public sidewalk where Neal Herndon claims that he slipped and fell. Moreover, it apparently
is his contention that the hazard he encountered was not the result of a natural accumulation
of ice and snow, but, rather the consequence of vehicular traffic by the defendants, employees
of the defendants, or their customers. These special circumstances, if established to the
satisfaction of the finder of facts, could justify a finding of negligence sufficient to warrant
recovery. Franzen v. Dimock Gould & Co., 101 N.W.2d 4 (Iowa, 1960). An abutting property
owner or occupier is, in our view, under a duty to maintain that portion of a public sidewalk
put to his special use in a reasonably safe condition for pedestrians if that special use by the
defendants or its customers creates the hazard.
The reliance by the court below upon Major v. Fraser, supra, was misplaced. On the record
before us a genuine issue of material fact exists and summary judgment should not have been
granted. Rogers v. Tore, Ltd., 85 Nev. 548, 459 P.2d 214 (1969).
Reversed and remanded for trial.
____________
91 Nev. 407, 407 (1975) Crockett v. Eagle Thrifty Drugs & Markets, Inc.
DOROTHY (STRUTZEL) CROCKETT, Appellant, v. EAGLE
THRIFTY DRUGS & MARKETS, INC., Respondent.
No. 7467
June 18, 1975 536 P.2d 490
Appeal from a judgment for respondent and from an order denying appellant's motions for
judgment notwithstanding the verdict, and for new trial, entered in the Second Judicial
District Court, Washoe County; John W. Barrett, Judge.
Affirmed.
Charles E. Springer, Ltd., of Reno, for Appellant.
1

Hibbs & Bullis, Ltd., of Reno, for Respondent.
OPINION
Per Curiam:
In this slip and fall personal injury action, the jury, upon conflicting evidence, returned a
verdict for the defendant. In the factual context of this case, we perceive no prejudicial error
in the district court's rulings on evidence and instructions to the jury, and accordingly we
affirm. See American Cas. Co. v. Propane Sales & Serv., 89 Nev. 398, 513 P.2d 1226 (1973);
Ginnis v. Mapes Hotel, 86 Nev. 408, 470 P.2d 135 (1970); Eldorado Club, Inc., v. Francis B.
Graff, 78 Nev. 507, 377 P.2d 174 (1962); Yturralde v. Barney's Club, Inc., 87 Nev. 249, 484
P.2d 1079 (1971).
____________________

1
The case was presented in the district court by Howard W. McKissick, Jr., for plaintiff Crockett.
____________
91 Nev. 407, 407 (1975) Perry v. Warden
MICHAEL PAUL PERRY, Appellant, v. WARDEN,
No. 7989
June 20, 1975 537 P.2d 319
Appeal from an order denying a petition for post-conviction relief, Second Judicial District
Court, Washoe County; John W. Barrett, Judge.
91 Nev. 407, 408 (1975) Perry v. Warden
The Supreme Court held that evidence sustained finding that accused's plea of guilty was
not involuntary either on theory that coercive threats to prosecute accused's girl friend had
been made or on theory that prosecutor failed to keep plea bargain concerning severity of
sentence.
Affirmed.
Horace R. Goff, Public Defender, Carson City, for Appellant.
Larry R. Hicks, District Attorney, Reno, for Respondent.
Criminal Law.
Evidence sustained finding that accused's plea of guilty was not involuntary either on theory that
coercive threats to prosecute accused's girl friend had been made or on basis of failure by prosecutor to
keep plea bargain concerning severity of sentence to be imposed.
OPINION
Per Curiam:
In 1972, appellant pleaded guilty to grand larceny and was sentenced to six years in the
Nevada State Prison. In June, 1973, appellant petitioned for post-conviction relief, seeking to
withdraw his guilty plea. After an evidentiary hearing, the district court denied relief, and this
appeal followed.
Appellant contends his plea was involuntary because of coercive threats to prosecute his
girlfriend and a failure by the prosecutor to keep a plea bargain concerning the severity of the
sentence to be imposed. However, we think the record justified the district court's rejection of
such contentions.
The transcript of appellant's entry of plea reflects an adequate canvass prior to acceptance
of a guilty plea, cf. Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403 (1973), and affirmatively
shows the nonexistence of promises or coercive threats. Although appellant, his girlfriend,
and another female acquaintance testified in support of appellant's allegations at the
evidentiary hearing, their claims were refuted by testimony of appellant's defense counsel.
Affirmed.
____________
91 Nev. 409, 409 (1975) First National Bank of Nevada v. Stewart
FIRST NATIONAL BANK OF NEVADA, Appellant, v.
LYLA B. STEWART, Respondent.
No. 7749
June 23, 1975 537 P.2d 319
Appeal from order setting aside default judgment; Eighth Judicial District Court, Clark
The Supreme Court held that record revealed that trial court acted within permissible
limits of its discretion in vacating judgment in order to allow merits of cause to be determined
following an adversary trial.
Affirmed.
Wiener, Goldwater, Galatz & Waldman, Ltd., and Gerald M. Gordon, of Las Vegas, for
Appellant.
Michael F. Maley, of Las Vegas, for Respondent.
Judgment.
Record revealed that trial court acted within permissible limits of its discretion in vacating default
judgment in order to allow merits of cause to be determined following an adversary trial.
OPINION
Per Curiam:
This appeal is from an order of the district court setting aside a default judgment and
asserts that the court abused its discretion. Our review of the record leads us to conclude that
the district court acted within permissible limits of its discretion in vacating the judgment in
order to allow the merits of the cause to be determined following an adversary trial.
Affirmed.
____________
91 Nev. 409, 409 (1975) Ursino v. Sheriff
RENE MARY URSINO and STEVEN DONALD HEIAR, Appellants, v.
SHERIFF, WASHOE COUNTY, NEVADA, Respondent.
No. 8253
June 26, 1975 537 P.2d 316
District Court, Washoe County; John E. Gabrielli, Judge.
After they had been subjected to a preliminary examination and order to stand trial on a
six-count information charging drug-related offenses, defendants sought a pretrial writ of
habeas corpus. The district court denied the writ. On appeal, the Supreme Court held that the
evidence was insufficient to hold defendants for trial on a count charging possession of
cocaine, but that defendants' other contentions were without merit.
Affirmed in part; reversed in part.
Lohse and Lohse, Chartered, and William K. Lohse, Reno, for Appellants.
Robert List, Attorney General, Carson City, Larry R. Hicks, District Attorney, and Richard
L. Davenport, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Evidence at preliminary examination was insufficient to hold defendants for trial on count charging
possession of cocaine where it merely showed that undercover police officer demonstrated to one
defendant the correct way to package a substance that appeared to be cocaine. NRS 453.171,
453.336.
2. Criminal Law.
Evidence at preliminary examination was sufficient to hold defendants for trial on counts charging
possession and sale of marijuana and cocaine and conspiring to sell controlled substance. NRS 171.206,
453.161, 453.171, 453.321, 453.336, 453.401.
3. Conspiracy; Drugs and Narcotics.
Defendants, charged with possession and sale of marijuana and cocaine and conspiring to sell controlled
substance, were not immune from prosecution by virtue of their contention that they were merely
purchasing agents for undercover police officer; evidence to such effect might merely entitle them to
purchasing agent instruction at trial. NRS 453.161, 453.171, 453.321, 453.336, 453.401.
OPINION
Per Curiam:
By criminal complaint, appellants were charged with ten (10) different felonies and, after
preliminary examination, they were ordered to stand trial on a six (6) count information.
1

____________________

1
The information charged: I. Both appellants with possession of marijuana on January 20, 1975 (NRS
453.336 and 453.161). II. Appellant Heiar with sale of marijuana on January 20, 1975 (NRS 453.321). III. A
pretrial habeas challenge contended the Both appellants with possession of cocaine on January 23,
1975 (NRS 453.336 and 453.171). IV. Both appellants with sale
A pretrial habeas challenge contended the evidence submitted to the magistrate was
insufficient to meet the probable cause requirement prescribed in NRS 171.206. Appellants
also argued counts IV, V and VI cannot stand because they were merely acting as purchasing
agents for an undercover police officer when they allegedly acquired the cocaine on January
29, 1975. Habeas relief was denied and appellants now argue the district court committed
error.
[Headnote 1]
1. In regard to count III the only probative or demonstrable evidence suggesting that
cocaine even existed in proximity to these appellants on January 23, 1975, is the testimony of
an undercover police officer who said he had demonstrated, to appellant Heiar, the correct
way to package a substance that appeared to be cocaine. Appellant Ursino was said to be
present in the room when this demonstration took place.
We deem this evidence insufficient to hold appellants for trial on Count III. Hammond v.
Sheriff, 91 Nev. 176, 532 P.2d 1030 (1975).
[Headnote 2]
The contention of lack of probable cause as to the other counts contained in the
information is without merit. NRS 171.206. We are not now concerned with the prospect that
the evidence presently in the record may, by itself, be insufficient to sustain a conviction on
any of the remaining counts. McDonald v. Sheriff, 89 Nev. 326, 512 P.2d 774 (1973).
[Headnote 3]
2. In support of their contention that they were merely purchasing agents for an
undercover police officer, appellants argue they are immune from prosecution under our
decision in Roy v. State, 87 Nev. 517, 489 P.2d 1158 (1971). At this juncture their reliance on
Roy is misplaced. Roy involved the right of an accused to have a purchasing agent'
instruction given to the jury, [w]here the evidence does not foreclose it, . . .' Whitmore v.
Sheriff, 88 Nev. 688, 689, 504 P.2d 703 (1972).
The order of the trial court is reversed as to count III; as to counts I, II, IV, V and VI, it is
affirmed.
____________________
of cocaine on January 29, 1975 (NRS 453.321). V. Both appellants with possession of cocaine on January 29,
1975 (NRS 453.171). VI. Both appellants with conspiring to sell a controlled substance on January 29, 1975
(NRS 453.401 and 453.321).
____________
91 Nev. 412, 412 (1975) Jensen v. Nielson
MELBURN JENSEN, Appellant, v. KEVIN NIELSON and ELEANOR NIELSON
1
and
SAFECO INSURANCE COMPANY OF AMERICA, Respondents.
No. 7554
June 26, 1975 537 P.2d 321
Appeal from an order denying appellant's motion for new trial, or in the alternative, to
amend the judgments and findings of fact and conclusions of law, and from the judgments
entered in cases No. A 103398 and No. A 111027, Eighth Judicial District Court, Clark
Cattle owner brought action against motorist for damage sustained when cattle were struck
and killed by automobile driven by motorist and motorist and his insurer brought action
against cattle owner to recover for damage to his automobile. The district court entered
judgment in favor of automobile owner and his insurer, and cattle owner appealed. The
Supreme Court, Batjer, J., held that evidence did not sustain finding that cattle owner
negligently allowed the cattle to enter fenced highway; that the accident was due to
combination of circumstances beyond reasonable foreseeability or control of the cattle owner;
and that evidence sustained trial court's finding that motorist was not negligent.
Affirmed in part and reversed in part.
Beckley, DeLanoy & Jemison, and Richard W. Myers, of Las Vegas, for Appellant.
Fadgen & Johnson, of Las Vegas, for Respondents.
Order denying motion to amend findings of fact, conclusions of law, and judgment was not appealable.
NRAP 3A.
Trial court's determination on basis of conflicting evidence will not be disturbed on appeal it supported
by substantial evidence.
3. Automobiles.
Statute providing that persons allowing domestic animals to enter within a fenced highway right-of-way
area are liable for collisions between a motor vehicle and an animal does not impose absolute liability on
the owner of a domestic animal for damage resulting from its intrusion upon a highway in a
fenced area; liability will be imposed only if the owner negligently allowed the animal
to enter.
____________________

1
The names of respondents Nielson, having been erroneously transcribed as Nelson in the proceedings
below, were changed pursuant to a stipulation of the parties and order of the district court filed August 9, 1973.
resulting from its intrusion upon a highway in a fenced area; liability will be imposed only if the owner
negligently allowed the animal to enter. NRS 568.360.
4. Animals.
Fact that owner's animals have entered upon fenced highway does not justify inference that owner
negligently allowed them to be there. NRS 568.360.
5. Automobiles.
Evidence that gate in highway fence on land adjoining cattle owner's land was found open shortly after
collision between automobile and cattle, that the gate had often been left open and was not under cattle
owner's ownership or control, that cattle owner had transported the cattle to an open range approximately
ten miles beyond the gate one or two days before the accident, and that the gates surrounding cattle owner's
land were found to be secure shortly after the accident did not support finding that cattle owner negligently
allowed the cattle to enter the fenced highway; rather the accident was due to combination of circumstances
beyond control of the cattle owner. NRS 568.360, subd. 3.
6. Automobiles.
Evidence sustained finding that motorist whose automobile collided with cattle on fenced highway was
not exceeding the speed limit and was not otherwise negligent and was thus not liable to cattle owner.
OPINION
Reciprocal actions in negligence were filed by the parties on appeal after appellant's cattle
were struck and killed during the evening of November 5, 1971, by an automobile driven by
respondent Kevin Nielson on a state highway in a fenced area. The actions were consolidated
after a trial, without a jury, judgment was entered in favor of respondents in case No. A
103398 (Jensen v. Nielson). In case No. A 111027 (Safeco Insurance Co. of America v.
Jensen) judgment was also entered in favor of respondents requiring appellant to pay for the
damages to respondents' automobile as well as reasonable attorneys fees and costs.
[Headnote 1]
Appellant's attempt to challenge the order denying his motion to amend findings of fact,
conclusions of law and judgments must fail because such an order is not appealable within
NRAP 3A, formerly NRCP 72(b). Casino Operations, Inc. v. Graham, 86 Nev. 764, 476 P.2d
953 (1970).
[Headnote 2]
Appellant contends that the trial court's finding that he was negligent is not supported by
sufficient evidence. "Where a trial court, sitting without a jury, has made a determination
upon the basis of conflicting evidence, that determination should not be disturbed on
appeal if it is supported by substantial evidence." Fletcher v. Fletcher, S9 Nev. 540, 542
negligent is not supported by sufficient evidence. Where a trial court, sitting without a jury,
has made a determination upon the basis of conflicting evidence, that determination should
not be disturbed on appeal if it is supported by substantial evidence. Fletcher v. Fletcher, 89
Nev. 540, 542, 516 P.2d 103 (1973). It is our opinion that the district court's determination is
not supported by substantial evidence.
The record reveals that (1) appellant owned the cattle involved in the accident; (2) a gate
in the highway fence on land adjoining appellant's was found open shortly after the accident
occurred; (3) the gate had often been left open in the past and was not under appellant's
ownership or control, but rather was available for general ingress and egress on a public road;
(4) appellant had transported the cattle to an open range approximately ten miles beyond the
gate a day or two before the accident; and (5) the fences and gates surrounding appellant's
land were found to be secure shortly after the accident.
A number of cases have been decided in other jurisdictions where animals escaped through
open gates from farmland onto a fenced highway right-of-way and were struck by vehicles
causing damage to motorists. See cases collected in 34 A.L.R.2d 1285 and Later Case
Service; see also cases collected in 59 A.L.R.2d 1328 and Later Case Service. Cf. State v.
Webster, 88 Nev. 690, 504 P.2d 1316 (1972). This appears to be the first case to be decided
where animals were struck after having returned from open range land through an open gate
in a fence not located on the land of the owner of the cattle, at an intersection between a
public road and a fenced state highway.
[Headnotes 3, 4]
The pertinent Nevada statute, NRS 568.360,
2
does not impose absolute liability upon an
owner of a domestic animal for damage resulting from its intrusion upon a highway in a
fenced area.
____________________

2
NRS 568.360: 1. As used in this section, open range' means all unenclosed lands, outside of cities and
towns, upon which cattle, sheep or other domestic animals by custom, license, lease or permit are grazed or
permitted to roam.
2. No person, firm or corporation owning, controlling or in possession of any domestic animal running on
open range has the duty to keep such animal off any highway traversing or located on such range, and no such
person, firm or corporation is liable for damages to any property or for injury to any person caused by any
collision between a motor vehicle and an animal occurring on such highway.
3. Any person, firm or corporation negligently allowing a domestic animal to enter within a fenced highway
right-of-way area shall be liable for damages caused by a collision between a motor vehicle and such animal
occurring on such highway.
impose absolute liability upon an owner of a domestic animal for damage resulting from its
intrusion upon a highway in a fenced area. Liability for damages caused by a collision
between a motor vehicle and a domestic animal which has entered such highway will be
imposed upon a defendant only if the plaintiff can prove that the defendant has negligently
allowed such animal to enter. The fact that the appellant's cattle had entered upon the
highway does not justify an inference that appellant negligently allowed them to be there. Cf.
Steed v. Roundy, 342 F.2d 159 (10th Cir. 1965); Lee v. Hinson, 160 So.2d 166
(Fla.Dist.Ct.App. 1964); Parker v. Reter, 383 P.2d 93 (Ore. 1963); Gordon v. Sutherland, 131
So.2d 520 (Fla.Dist.Ct.App. 1961); Pepper v. Bishop, 15 Cal.Rptr. 346 (Cal.App. 1961).
[Headnote 5]
No evidence tending to show that appellant negligently allowed the cattle to enter the
fenced highway can be gleaned from the record. NRS 568.360(3) does not contemplate a case
such as this where domestic animals are allowed to enter upon a right-of-way through the acts
of an unknown third person or persons using a public road and leaving a gate open.
3
Although appellant had on past occasions closed the gate when he found it open, he was
unable, because of the public road, to secure it with a lock or to place a no trespassing sign
upon it. Furthermore, he could not be expected to guard it constantly. The accident was due
to a combination of circumstances beyond the reasonable foreseeability or control of the
defendant and for which he should not be held responsible. Steed, supra, at 161; Gardner v.
Black, 9 S.E.2d 10 (N.C. 1940).
[Headnote 6]
The lower court's finding that respondent Kevin Nielson was not negligent is also
challenged. Although there was conflicting evidence bearing upon the speed of the Nielson
vehicle, there is sufficient evidence in the record to support the trial court's determination that
Kevin was not exceeding the speed limit and was not otherwise negligent. Fletcher v.
Fletcher, supra.
____________________

3
NRS 207.220: 1. Any person or persons opening and passing through gates or bars when gates or bars are
placed in fences enclosing fields, or in fences partly enclosing lands, and not shutting and fastening the same,
shall be deemed guilty of a misdemeanor.
2. The provisions of this section shall not apply to gates in towns and cities nor gates necessary in the
approach to any building or works where the passing through or into fields or lands is not contemplated.
The judgment in case No. A 111027 (Safeco Insurance Co. of America v. Jensen) is
reversed, and the judgment in case No. A 103398 (Jensen v. Nielson) is affirmed.
____________
91 Nev. 416, 416 (1975) Jones v. State
MURRAY JONES, Jr., Appellant, v. STATE
No. 7772
June 26, 1975 536 P.2d 1025
Appeal from order denying post-conviction relief; Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
The Supreme Court held that where the proceeding for post-conviction relief was not
commenced until more than one year after the Supreme Court affirmed defendant's
convictions on direct appeal and no good cause had been shown for the delay, the petition for
post-conviction relief was time-barred.
Affirmed.
Horace Rodlin Goff, State Public Defender, and Michael R. Griffin, Deputy State Public
George E. Holt, District Attorney, and Sherman H. Simmons, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Where defendant brought post-conviction relief proceeding more than one year after the decision of the
Supreme Court affirming on direct appeal defendant's convictions for robbery, rape and infamous crime
against nature and defendant did not show good cause for the delay, the post-conviction proceeding was
time-barred. NRS 177.315, subd. 3, 177.375, subd. 2(b).
2. Criminal Law.
Where defendant did not show good cause for his failure to raise on his direct appeal certain of the claims
of error asserted in his petition for post-conviction relief, the district court was not obliged to consider
the claims in a post-conviction relief proceeding.
91 Nev. 416, 417 (1975) Jones v. State
obliged to consider the claims in a post-conviction relief proceeding. NRS 177.315, subd. 3, 177.375,
subd. 2(b).
OPINION
Per Curiam:
[Headnotes 1, 2]
A jury found Jones guilty of robbery, rape, and two counts of the infamous crime against
nature. His convictions and sentences were affirmed upon direct appeal to this court. Jones v.
State, 85 Nev. 53, 450 P.2d 139 (1969). This present proceeding for post-conviction relief
was not commenced until September 27, 1973, more than one year after the decision of this
court and is, therefore, barred by the provisions of NRS 177.315(3) since good cause has not
been shown for the delay. Moreover, Jones has not shown good cause for his failure to raise
certain of his claims of error upon the aforementioned direct appeal. Consequently, the
district court was not obliged to consider them. NRS 177.375(2)(b); Johnson v. Warden, 89
Nev. 476, 515 P.2d 63 (1973); Craig v. Warden, 87 Nev. 39, 482 P.2d 325 (1971); Cf.
Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974).
Affirmed.
____________
91 Nev. 417, 417 (1975) Stewart v. Jones
HARRY A. STEWART, Jr., and WALTER ONG, Appellants, v. CLIFFORD JONES,
FLOYD R. LAMB and DALE ROBERTSON, Respondents.
No. 7313
June 27, 1975 536 P.2d. 1023
Appeal from order dismissing complaint for want of subject matter jurisdiction; Eighth
Judicial District Court, Clark County; Carl J. Christensen, Judge.
Assignees of foreign default money judgments obtained in Arizona brought an action in
Nevada to enforce the judgments. The district court dismissed the action for lack of subject
matter jurisdiction, and the assignees appealed. The Supreme Court held that the district court
had subject matter jurisdiction over the action.
Richard D. Weisbart, of Las Vegas, for Appellants.
91 Nev. 417, 418 (1975) Stewart v. Jones
Jones, Jones, Close, Bilbray, Kaufman & Olsen, Ltd., and Melvin D Close Jr., of Las
Vegas for Respondents.
Judgment.
District court had subject matter jurisdiction over action by assignees of foreign default money
judgments, each in amount of $16,762.83 plus attorneys' fees and interest, to enforce such judgments in
Nevada. Const. art. 6, 6.
OPINION
Per Curiam:
Harry A. Stewart, Jr., and Walter Ong, as the assignees of foreign default money
judgments, each in the amount of $16,762.83 plus attorneys' fees and interest, obtained in
Arizona by the First National Bank of Arizona against Clifford Jones, Floyd R. Lamb and
Dale Robertson, commenced this action in Nevada to enforce the foreign judgments thus
obtained.
Jones, Lamb and Robertson moved to dismiss the action for want of subject matter
jurisdiction. They also argued that the Arizona judgments were void for ineffective service of
process; that the Arizona judgments were extinguished by reason of the assignments thereof
to co-judgment debtors; and that enforcement of the Arizona judgments is barred by
limitations.
The district court dismissed the action, apparently upon the ground that it lacked subject
matter jurisdiction. This was error. The subject matter of this lawsuit is the enforcement of
separate foreign default money judgments, each in excess of $300. Nev. Const. art. 6, 6,
invests the district court with original jurisdiction of cases in which the demand . . . exceeds
Three Hundred Dollars. Girola v. Roussille, 81 Nev. 661, 408 P.2d 918 (1965).
Accordingly, we reverse, and remand for further proceedings. Other matters concerning
the enforceability of the Arizona default judgments may be raised by appropriate responsive
pleadings.
____________
91 Nev. 419, 419 (1975) Bowman v. State
SAMUEL LEE BOWMAN, Appellant, v. THE
No. 8070
June 27, 1975 537 P.2d 316
Appeal from judgment of conviction and sentence of the Eighth Judicial District Court,
Clark County; Paul S. Goldman, Judge.
In prosecution for battery with a deadly weapon, the district court rendered judgment and
defendant appealed. The Supreme Court held that evidence, including victim's identification
of assailant and defendant's damaging statements, sustained conviction.
Affirmed.
Morgan D. Harris, Public Defender, and Michael A. Cherry, Assistant Public Defender,
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and
Sherman H. Simmons, Deputy District Attorney, Clark County, for Respondent.
Assault and Battery.
Evidence, including victim's identification of assailant and defendant's damaging statements, sustained
conviction for battery with deadly weapon. NRS 200.481.
OPINION
Per Curiam:
Convicted of battery with a deadly weapon (NRS 200.481), appellant contends the
evidence against him was insufficient.
Maria Valez identified appellant as the man who attacked her in a Las Vegas hotel,
striking her on the head and face. The defendant then strangled Mrs. Valez with a cord and
slashed her with a knife.
A hotel security officer apprehended appellant shortly thereafter, in a room not registered
to him, and recovered a knife from his person. As the officer forced his way into the room,
with gun drawn, he heard appellant say, I did it; I did it. Don't shoot; don't shoot. Later,
after receiving Miranda warning from a police officer called to the scene, appellant made
other damaging statements.
We reject appellant's sole assignment of error, believing this uncontroverted evidence
ample to warrant his conviction.
Affirmed.
____________
91 Nev. 420, 420 (1975) Hogan v. State
AL JOE HOGAN and CLEVON FAIRMAN, Appellants,
v. THE STATE OF NEVADA, Respondent.
No. 7964
June 27, 1975 536 P.2d 1028
Clark County; Howard W. Babcock, Judge.
The Supreme Court held that the evidence was sufficient to support the convictions.
Affirmed.
Morgan D. Harris, Public Defender, and Theodore J. Manos, Chief Deputy Public
Defender, Clark County, for Appellants.
H. Simmons, Deputy District Attorney, Clark County, for Respondents.
Larceny.
There was sufficient evidence of felonious asportations of air conditioner from fenced compound at
rear of store to support convictions for grand larceny notwithstanding defendants' assertions that they
found the air conditioner outside the fence and believed it was abandoned. NRS 205.220.
OPINION
Per Curiam:
Convicted of grand larceny (NRS 205.220), appellants contend the evidence against them
was insufficient.
The manager of Samons, Inc.'s store in Las Vegas testified he placed a boxed air
conditioner, which he identified by serial number, in a shed within a fenced compound at the
rear of Samons' store. He saw it there only hours before the offense concerned herein.
Sheriff's Lieutenant Charleboix, a patron of the store, apprehended appellants upon seeing
them carrying the air conditioner from the compound to their car. As Charleboix confronted
them, they apparently recognized him, saying such things as: Come on, Charlie. Give us a
break. We will put it back.
Contrary to appellants' contentions, we think the evidence adequately supported a finding
of felonious asportation, and justified the jury in rejecting appellants' assertions that they
found the air conditioner outside the fence and believed it was abandoned.
91 Nev. 420, 421 (1975) Hogan v. State
adequately supported a finding of felonious asportation, and justified the jury in rejecting
appellants' assertions that they found the air conditioner outside the fence and believed it was
abandoned.
____________
91 Nev. 421, 421 (1975) Butler v. Lahontan Valley News
NORMAN H. BUTLER and MARY BUTLER, Appellants, v.
LAHONTAN VALLEY NEWS, Respondent.
No. 7550
June 27, 1975 537 P.2d 320
Appeal from a judgment of the First Judicial District Court, Churchill County; Richard L.
Waters, Jr., Judge.
Newspaper petitioned for declaration that it was qualified to publish legal notices or
advertisements within Churchill County and owners of a competing newspaper intervened.
The district court entered judgment in favor of petitioner and owners of competing newspaper
appealed. The Supreme Court held that newspaper on which some of the typesetting, some of
the work on headlines and pictures, and preparation of page layouts took place in Churchill
County was printed in whole or in part within Churchill County as required for the
newspaper to be qualified to publish legal notices or advertisements within Churchill County,
even though the actual duplicating took place in a different county.
Affirmed.
[Rehearing denied July 25, 1975]
Seymour H. Patt, Reno, for Appellants.
Diehl, Recanzone, Evans & Smart, Fallon, for Respondent.
1. Newspapers.
Purpose of statute setting forth qualifications for newspapers printing legal notices or advertisements is to
require public notices to be published so as to fairly express them to the particular community intended to
be reached. NRS 238.010 et seq.
2. Newspapers.
Newspaper on which some of the typesetting, some work on headlines and pictures, and preparation of
page layouts took place in Churchill County was printed in whole or in part within Churchill County as
required in order for it to publish legal notices and advertisements within Churchill County, even though
the paper was duplicated in another county; statute does not require that the actual duplication
process be completed in whole or in part within the county.
actual duplication process be completed in whole or in part within the county. NRS 238.030, subd. 1.
OPINION
Per Curiam:
In 1973, respondent newspaper petitioned the district court to declare it qualified to
publish legal notices or advertisements within Churchill County, pursuant to NRS Chapter
238. Appellants, owners of a competing newspaper, intervened alleging that respondent did
not meet the statutory qualifications for publication of legal notices within the county. After a
contested hearing, the district court declared respondent a newspaper of general circulation
within the purview of chapter 238, NRS; that by virtue thereof, said publication is fully
competent to contain and publish all forms of legal notices and/or advertisements as may be
required by law.
NRS Chapter 238 delineates four requirements that a weekly newspaper must fulfill in
order to be considered a newspaper of general circulation competent to publish legal notices
and advertisements: (1) it must have a valid second-class mail permit; (2) it must be a
newspaper of general circulation; (3) it must be published within the county for 104
consecutive weeks; and (4) it must be printed in whole or in part in the county in which the
legal notice is required to be published.
Respondent's compliance with the first three requirements is not challenged. Appellants'
sole contention is that the lower court erred in determining the Lahontan Valley News is
printed in whole or in part in Churchill County, as required by NRS 238.030 (1). We
cannot agree.
[Headnote 1]
Appellants argue that NRS 238.030(1) requires the actual duplication process be
completed in whole or in part within Churchill County and since the Lahontan Valley News is
duplicated in Sparks, it does not qualify. Appellants' interpretation of the word printed would
in the context of this statute be both unreasonable and unrelated to the objective of statutes
such as NRS Chapter 238, that being, to require public notices to be published so as fairly to
express them to the particular community intended to be reached. In re Lefavor, 169 P. 412
(Cal. 1917).
[Headnote 2]
According to the record, the office of the respondent newspaper is located in Fallon, where
some of the typesetting, some work on headlines and pictures, and preparation of the page
layouts used for duplication takes place. From the testimony, we think the trial court could
properly determine that the processes performed in Fallon, in their totality, constituted a
substantial and integral part of the "printing."
we think the trial court could properly determine that the processes performed in Fallon, in
their totality, constituted a substantial and integral part of the printing. Thus, the Lahontan
Valley News is printed in whole or in part within Churchill County. Cf. Ruble v. Redden,
517 P.2d 1124 (Okla. 1973), which holds that a more restrictive interpretation would render a
similar statute unconstitutional.
The judgment of the district court is affirmed.
____________
91 Nev. 423, 423 (1975) Wrenn v. State
THOMAS WRENN, Appellant, v. THE STATE
No. 7703
July 9, 1975 537 P.2d 318
Appeal from order denying motion for a new trial. Eighth Judicial District Court, Clark
County; Clarence Sundean, Judge.
Affirmed.
Horace R. Goff, State Public Defender, and Michael R. Griffin, Deputy State Public
Defender, of Carson City, for Appellant.
Robert List, Attorney General, and Robert A. Groves, Chief Criminal Deputy Attorney
General, of Carson City, for Respondent.
OPINION
Per Curiam:
Thomas Wrenn was convicted of second-degree murder in July of 1971. The conviction
was affirmed. Wrenn v. State, 89 Nev. 71, 506 P.2d 418 (1973).
On April 13, 1973, almost two years later, Wrenn sought post-conviction relief and later
on August 16, 1973, moved for a new trial based on newly discovered evidence. This is an
appeal from the denial of his motion for a new trial.
In denying the motion for a new trial the trial court ruled that the so-called newly
discovered evidence offered by the appellant was not material to Wrenn's defense and was
cumulative. We agree. The record satisfies this court that the trial court ruled properly. Oliver
v. State, 85 Nev. 418, 456 P.2d 431 (1969).
Affirmed.
____________
91 Nev. 424, 424 (1975) Cashman Photo v. Nevada Gaming Comm'n
CASHMAN PHOTO CONCESSIONS AND LABS, INC., a Nevada Corporation, dba
CASHMAN PHOTO ENTERPRISES, INC., Appellant, v. NEVADA GAMING
COMMISSION, Consisting of JOHN W. DIEHL, Chairman; NORMAN D. BROWN,
WALTER COX, FRANK A. SCHRECK, Jr., and CLYDE T. TURNER; NEVADA
GAMING CONTROL BOARD, Consisting of PHILIP P. HANNIFIN, Chairman; JOHN H.
STRATTON, and SHANNON L. BYBEE, Jr.; DESERT PALACE, INC., a Nevada
Corporation, dba CAESARS PALACE; SUMMMA CORPORATION, a Nevada
Corporation, dba DESERT INN HOTEL, and dba SANDS HOTEL, and dba FRONTIER
HOTEL; HILTON CASINOS, INC., a Nevada Corporation, dba FLAMINGO HILTON
HOTEL; CONSOLIDATED CASINOS CORP., a Nevada Corporation, dba HOTEL
SAHARA and dba SAHARA-TAHOE HOTEL; RECRION CORPORATION, a Nevada
Corporation, dba STARDUST HOTEL and dba FREMONT HOTEL; and CIRCUS CIRCUS,
INC., a Nevada Corporation, dba CIRCUS CIRCUS HOTEL & SPA, Respondents.
No. 7739
July 9, 1975 538 P.2d 158
Appeal from judgment that the Casino Entertainment Tax, NRS 463.401, is a valid tax
upon licensed gaming establishments as to photographic concessionaires operating in casino
showrooms and lounges. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Photography concessionaire which had an exclusive photography concession with a
number of entertainment establishments brought action against Nevada Gaming Commission,
its members, and the owners of the entertainment establishments. The district court upheld
the validity of imposing casino entertainment tax on the concessionaire and concessionaire
appealed. The Supreme Court, Zenoff, J., held that photographs which were taken of, and
sold to, patron in entertainment establishments constituted neither food, nor refreshment,
nor merchandise, within Casino Entertainment Tax; and that regulation of the Gaming
Commission which interpreted and implemented the tax so as to apply to photography
concessionaires was invalid.
Reversed. George Rudiak, of Las Vegas, and Richard H.
George Rudiak, of Las Vegas, and Richard H. Foster, of San Francisco, California, for
Appellant.
Robert List, Attorney General, and David C. Polley, Deputy Attorney General, Gaming
Division, for Respondents Nevada Gaming Commission and Nevada Gaming Control Board.
Lionel Sawyer Collins & Wartman, of Las Vegas, for Respondents Desert Palace, Inc.;
Summa Corporation; Hilton Casinos, Inc.; Consolidated Casinos Corp.; Recrion Corporation.
Galane, Tingey & Shearing, of Las Vegas, for Respondent Circus Circus, Inc.
1. Gaming.
Photographs taken of, and sold to, customers in licensed gaming establishments do not constitute food,
refreshment, or merchandise, within Casino Entertainment Tax. NRS 463.401.
Administrative body may, within prescribed limits, and when authorized by the law-making power, make
rules and regulations calculated to carry into effect the express legislative intention.
3. Gaming.
Nevada Gaming Commission may not, by rule, impose a tax under authority of the Casino Entertainment
Tax statute if the tax is not mentioned in the statute. NRS 463.401-463.406.
4. Statutes.
Taxing statutes, when of doubtful validity or effect, must be construed in favor of the taxpayers.
5. Statutes.
A tax statute must say what it means; court will not extend a tax statute by implication.
6. Gaming.
Regulation of the Nevada Gaming Commission which purported to apply the Casino Entertainment Tax
to photography concessionaires working in nightclubs was invalid since it was not authorized by the statute
pursuant to which it was promulgated. NRS 463.401-463.406.
OPINION
On April 10, 1973, the Gaming Control Board of Nevada by Bulletin No. 9 advised all
gaming licensees in the State of Nevada that the Casino Entertainment Tax, NRS 463.401-
463.406, applied to all photographs taken and sold to patrons of casino showrooms and
required each licensee to keep accurate records thereon from May 1, 1973, forward.
Appellant is a Nevada corporation which has contractual relationships with each of
respondent licensees under which it is granted an exclusive photography concession.
Appellant is a Nevada corporation which has contractual relationships with each of
respondent licensees under which it is granted an exclusive photography concession. This
entitles the appellant to take photographs of hotel guests in various areas of the hotels
including casino entertainment areas, such as the main and lounge showrooms, and to sell the
photographs to such guests. Appellant is also provided with space at the hotels of respondent
licensees to operate a photographic darkroom and laboratory in connection with such
photography concession.
Photographs in the main and lounge showrooms are in all cases taken by appellant before
entertainment starts at which time the camera girl normally takes a small deposit from the
customer. The photographs are processed in the darkroom and laboratory during the show and
are delivered and the balance paid after the entertainment is ended, normally while the patron
is still in the confines of the showroom or immediately upon his exit.
1

The question is, does the Casino Entertainment Tax of NRS 463.401
2
apply to
photographic services rendered by photo concessionaires in the showrooms and lounges of
gaming licensees?
____________________

1
The foregoing statements are excerpts from the agreed statement of facts executed by the parties.

2
NRS 463.401: Casino entertainment tax: Levy; amount; exemptions.
1. In addition to any other license fees and taxes imposed by this chapter, a tax, to be known as the casino
entertainment tax, is hereby levied upon each licensed gaming establishment in this state where music and
dancing privileges or any other entertainment, except instrumental or mechanical music alone, are afforded the
patrons in connection with the serving or selling of food, refreshment or merchandise. A licensed gaming
establishment is not subject to tax under this section if the establishment is licensed for not more than 50 slot
machines, not more than three table games or any combination of slot machines and table games within such
respective limits, or if:
(a) No distilled spirits, wine or beer is served or permitted to be consumed;
(b) Only light refreshment is served;
(c) Where space is provided for dancing, no charge is made for dancing; and
(d) Where music is provided or permitted, such music is:
(1) Instrumental or other music which is supplied without any charge to the owner, lessee or operator of
such establishment or to any concessionaire; or
(2) Mechanical music.
2. The amount of the tax imposed upon each licensed gaming establishment by this section is 10 percent of
all amounts paid for admission, merchandise, refreshment or service.
3. The tax imposed by this section shall be paid by the licensee of such establishment.
photo concessionaires in the showrooms and lounges of gaming licensees? The trial court
held that it does. We, however, do not agree and reverse.
[Headnote 1]
The Nevada entertainment statute taxes licensed gaming establishments which offer live
entertainment to patrons in connection with the serving or selling of food, refreshment or
merchandise. Photographs are neither food nor refreshment. The sale of photos under the
Federal Cabaret Statute, from which our statute is derived, was construed to be a service,
not merchandise. IRS Rev. Rul. 57-263(2);
3
see Lethert v. Culbertson's Cafe, Inc., 313 F.2d
506 (8th Cir. 1963).
It is conceded by the parties that our statute is patterned from the Federal Cabaret Act and
enacted in Nevada because of the repeal of the federal act. The federal statute applied to
concessionaires because the tax in that statute was paid by the persons receiving the
payments, namely the concessionaires. However, in borrowing the federal statute our
legislature omitted reference to service.
The Nevada tax law does not call for assessment on photographic service. We cannot tell
whether the legislature did or did not intend the photographic concessions to be included as
part of the casino operators' tax.
____________________

3
IRS Rev. 57-263(2):
A cabaret owner or operator grants to another person rights to concessions in the cabaret. The concessions
include the operation of food, refreshment and cigarette vending machines, the photographing of customers, and
the maintenance of checking facilities. Under the terms of the agreement between the parties, the concessionaire
receives the proceeds from the concessions, pays the operating expenses, provides necessary maintenance and
service and has control over the vending machines and the photographic and checking facilities. The
concessionaire pays the cabaret owner a flat rate for the concessions for the concessions rights or an amount
equal to a percentage of the gross receipts derived from the concessions.
. . .
. . ., it is held that under the circumstances described in (2) above the concessionaire is the person receiving
the payments for the food, refreshment or merchandise, and he is liable for the return and payment of the tax on
the total receipts from the machines. A photographic or checking concession is considered to provide a
service within the meaning of the statute and fixed amounts paid by patrons of the cabaret for such service
are subject to the cabaret tax. Under these circumstances, the cabaret owner or operator is not liable for tax on
amounts paid to him for the concessions rights regardless of the basis upon which payments are made.
(Emphasis added.)
See also IRS Rev. Rul. 63-154.
[Headnotes 2, 3]
An administrative body may within prescribed limits and when authorized by the
law-making power make rules and regulations calculated to carry into effect the expressed
legislative intention. But the commission cannot by such rule impose a tax that is not
mentioned in the statute as taxable. Washington Printing & Binding Co. v. State, 73 P.2d
1326 (Wash. 1937); cf. State Board of Barber Examiners v. Walker, 192 P.2d 723, 728 (Ariz.
1948).
[Headnotes 4-6]
Taxing statutes when of doubtful validity or effect must be construed in favor of the
taxpayers. A tax statute particularly must say what it means. We will not extend a tax statute
by implication. State v. Pioneer Citizens Bank, 85 Nev. 395, 456 P.2d 422 (1969). We
declare Regulation No. 13 of the Nevada Gaming Commission which interprets and
implements the Casino Entertainment Tax to apply to photo concessionaires to be invalid
since it is not authorized by NRS 463.401 pursuant to which it was promulgated.
The foregoing being dispositive of this appeal, consideration of other issues and
constitutional questions is unnecessary.
Reversed.
____________
91 Nev. 428, 428 (1975) Bounds v. Warden
J. M. BOUNDS, Appellant, v. WARDEN, NEVADA
STATE PRISON, Respondent.
No. 8059
July 9, 1975 537 P.2d 475
Appeal from order denying petition for post-conviction relief, First Judicial District Court,
The Supreme Court held that where defendant voluntarily, with advice of counsel, entered
plea of guilty to homicide charge and there was no allegation of coercion, it would be
assumed that defendant was fully advised of consequences of plea.
Affirmed.
Defender, Carson City, for Appellant.
Robert List, Attorney General, and Patrick B. Walsh, Deputy Attorney General, Carson
1. Criminal Law.
Supreme Court, on appeal from denial of post-conviction relief, would not consider contention regarding
events that occurred prior to petitioner's guilty plea.
2. Criminal Law.
Where defendant voluntarily, with advice of counsel, entered plea of guilty to homicide charge, issue of
guilt was removed from the case.
3. Criminal Law.
Where guilty plea is not coerced and defendant is represented by competent counsel at time of entry of
plea, subsequent conviction is not open to collateral attack and any errors are superseded by guilty plea.
4. Criminal Law.
Where defendant voluntarily, with advice of counsel, entered plea of guilty to homicide charge and there
was no allegation of coercion, it would be assumed that defendant was fully advised of consequences of
plea.
OPINION
Per Curiam:
By reason of a guilty plea entered September 16, 1963, appellant stands convicted of
murder in the second degree. He is presently incarcerated under a 10-year to life sentence. In
August, 1974, he petitioned, unsuccessfully, for post-conviction relief.
In this appeal he argues we should reverse because (1) of events that occurred prior to the
time the guilty plea was entered; and, (2) the district court erred when it failed to rule that
appellant's plea of guilty was involuntary.
[Headnote 1]
1. We need not consider the contention regarding events that occurred prior to the guilty
plea. See Tollett v. Henderson, 411 U.S. 258, 267 (1973), where the High Court said: [A]
guilty plea represents a break in the chain of events which has preceded it in the criminal
process. When a criminal defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that occurred prior to the entry of the
guilty plea."
guilty plea. [Emphasis added.] Cline v. State, 90 Nev. 17, 518 P.2d 159 (1974).
2. In support of the second contention appellant argues he did not fully comprehend the
significance of his guilty plea. The district judge rejected the contention and we find no error
in that determination.
[Headnote 2]
In this case appellant voluntarily, with the advice of counsel, entered his plea of guilty to
the homicide charge.
1
The issue of guilt was thereby removed from the case.
[Headnote 3]
At the time of his arraignment [on September 16, 1963] it was the law of this state that
when a guilty plea is not coerced, and the defendant was represented by competent counsel, at
the time it was entered, the subsequent conviction is not open to collateral attack and any
errors are superseded by the plea of guilty. Mathis v. Warden, 86 Nev. 439, 441, 471 P.2d
233, 234-235 (1970).
[Headnote 4]
Here there is no allegation of coercion and counsel is admitted to be competent and well
respected. It can be assumed that the appellant was fully advised of the consequences of his
plea. Mathis, supra. See also, McMann v. Richardson' 397 U.S. 759 (1970).
Affirmed.
2

____________________

1
Appellant had been charged with open murder as a result of the death of his wife. Through plea
bargaining by his counsel the charge was reduced to second degree murder.

2
Mr. Justice Zenoff took no part in the deliberations on this case.
____________
91 Nev. 430, 430 (1975) Jackson v. Warden
GENE GLENN JACKSON, Appellant, v. WARDEN,
No. 7817
July 9, 1975 537 P.2d 473
Appeal from denial of petition for post-conviction relief; Fourth Judicial District Court,
Elko County; Joseph O. McDaniel, Judge.
After conviction of battery with intent to commit mayhem, a petition for post-conviction
relief was filed. The district court denied relief and the petitioner appealed. The Supreme
Court held that petitioner made sufficient allegations of denial of effective assistance of
counsel to warrant an evidentiary hearing.
Reversed and remanded for hearing consistent with this opinion.
Robert List, Attorney General, Carson City; Robert C. Manley, District Attorney, and Gary
E. DiGrazia, Deputy District Attorney, Elko County, for Respondent.
1. Criminal Law.
A defendant's right to assistance of counsel is satisfied only when such counsel is effective.
2. Criminal Law.
Effective counsel does not mean errorless counsel, but rather counsel whose assistance is within the
range of competence demanded of attorneys in criminal cases.
3. Criminal Law.
Presumption exists that counsel in criminal case has fully discharged his duties and ineffectiveness of
counsel will be recognized only when the proceedings have been reduced to a farce or pretense.
4. Criminal Law.
A primary requirement of effectiveness of counsel is that counsel will conduct careful factual and legal
investigations and inquiries with a view to developing matters of defense in order that he may make
informed decisions on his client's behalf both at the pleading stage and at trial.
5. Criminal Law.
If counsel's failure to undertake careful investigations and inquiries with a view toward developing
matters of defense results in omitting a crucial defense from the case, the defendant has been denied
effective assistance of counsel.
6. Assault and Battery.
Battery with intent to commit mayhem is a specific intent crime to which the defense of diminished
capacity is applicable. NRS 193.220, 200.400.
7. Criminal Law.
Allegations in defendant's petition for post-conviction relief warranted evidentiary bearing on issue of
whether defendant was denied effective assistance of counsel because of failure of court-appointed counsel
to make careful investigations and inquiries into the circumstances and in failing to apprise
defendant, who was charged with battery with intent to commit mayhem, of the
defense of diminished capacity.
the circumstances and in failing to apprise defendant, who was charged with battery with intent to commit
mayhem, of the defense of diminished capacity. NRS 193.220, 200.400.
OPINION
Per Curiam:
Gene Glenn Jackson entered a plea of guilty to the felony charge of battery with intent to
commit mayhem. NRS 200.400. He was sentenced; placed on probation, which he later
violated; and eventually incarcerated in the Nevada Prison.
Jackson has petitioned for post-conviction relief, primarily on the ground that he was
denied effective assistance of counsel at the time he entered his plea. His petition was
summarily denied below without an evidentiary hearing. We reverse and remand, with
instructions to conduct an evidentiary hearing in accordance with the views expressed herein.
1. On February 28, 1972, the District Court appointed the state deputy public defender to
represent Jackson. Jackson claims that the deputy did not meet with him until the morning set
for the preliminary examination, March 10, 1972, even though he had been in jail since
February. At this March 10 meeting, counsel urged petitioner to waive the preliminary
examination and plead guilty. At the advice of counsel, the preliminary hearing was waived.
An information was filed on March 16, 1972, to which Jackson entered his guilty plea. The
information contained a list of witnesses, including the policemen and a doctor. Jackson, in
his petition, claims that his counsel made no pretrial investigation of his case. According to
the presentence report, dated March 27, 1972, a part of this record, there was no offense
report filed, neither the victim nor any witnesses could be located, and policemen interviewed
indicated that no one at the bar (the scene of the incident) knew what had happened. In fact,
after repeated trips to the bar, the investigating officers were never able to produce any
concrete information regarding the incident.
[Headnotes 1-5]
A defendant's right to assistance of counsel is satisfied only when such counsel is
effective. Powell v. Alabama, 287 U.S. 45, 71 (1932). Effective counsel does not mean
errorless counsel, but rather counsel whose assistance is [w]ithin the range of competence
demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 771 (1970).
While Nevada law presumes that counsel has fully discharged his duties, and will recognize
the ineffectiveness of counsel only when the proceedings have been reduced to a farce or
pretense, Warden v. Lischko 90 Nev. 221, 223, 523 P.2d 6, 7 {1974), it is still recognized
that a primary requirement is that counsel ". . . conduct careful factual and legal
investigations and inquiries with a view to developing matters of defense in order that he
may make informed decisions on his client's behalf both at the pleading stage. . . and at
trial. . . ."
duties, and will recognize the ineffectiveness of counsel only when the proceedings have been
reduced to a farce or pretense, Warden v. Lischko 90 Nev. 221, 223, 523 P.2d 6, 7 (1974), it
is still recognized that a primary requirement is that counsel . . . conduct careful factual and
legal investigations and inquiries with a view to developing matters of defense in order that
he may make informed decisions on his client's behalf both at the pleading stage. . . and at
trial. . . . In re Saunders, 472 P.2d 921, 926 (Cal. 1970). If counsel's failure to undertake
these careful investigations and inquiries results in omitting a crucial defense from the case,
the defendant has not had that assistance to which he is entitled. In re Saunders, supra; People
v. Stanworth, 522 P.2d 1058 (Cal. 1974). Further, in People v. White, 514 P.2d 69, 71-72
(Colo. 1973), the court noted that the American Bar Association Standards for Criminal
Justice set forth minimum standards by which the assistance of counsel may be judged. The
following sections of The Defense Function Standard are of particular relevancy here: 1.1(b)
(Role of the Defense Counsel), 3.2 (Interviewing of Client), and 4.1 (Duty to Investigate).
[Headnote 6]
2. Battery with intent to commit mayhem is a specific intent crime to which the defense of
diminished capacity is applicable. NRS 193.220. The record before us indicates that
petitioner, an Indian with a fourth-grade education, had been drinking for some 20 hours
before the incident, much of that time with his friend, the victim, and that he had no
recollection of the event. Without more, we do not know whether or why defense counsel
urged a waiver of the preliminary examination and failed to apprise petitioner of the defense
of diminished capacity.
[Headnote 7]
The Ninth Circuit Court of Appeals dealt with a similar situation in Brubaker v. Dickson,
310 F.2d 30 (1962). There, the appellant urged that through lack of investigation and
preparation Brubaker's court-appoint counsel failed to discover and present substantial
defenses which appellant had to the charge against him, among them being a lack of capacity
to form the intent required for first-degree murder. After reviewing the allegations, the court
said, at 38-39:
Upon an examination of the whole record, we conclude that appellant alleged a
combination of circumstances, not refuted by the record, which, if true, precluded the
presentation of his available defenses to the court and the jury through no fault of his own,
and thus rendered his trial fundamentally unfair.
no fault of his own, and thus rendered his trial fundamentally unfair. Appellant does not
complain that after investigation and research trial counsel made decisions of tactics and
strategy injurious to appellant's cause; the allegation is rather that trial counsel failed to
prepare, and that appellant's defense was withheld not through deliberate though faulty
judgment, but in default of knowledge that reasonable inquiry would have produced. . . . It
follows that appellant must have an opportunity to support the allegations of his petition, by
proof, in a hearing before the District Court.
3. Petitioner additionally urges that his plea was not entered voluntarily with a full
understanding of the nature of the charges. Since an evidentiary hearing must be conducted, it
is presumed that the district court will take testimony on the voluntariness of petitioner's plea.
The case is reversed and remanded to the district court for appropriate hearing consistent
with this opinion.
____________
91 Nev. 434, 434 (1975) Robert J. Gordon Contr. v. Meredith Steel
ROBERT J. GORDON CONSTRUCTION CO., INC., Appellant, v. MEREDITH STEEL
CONSTRUCTION, INC., and BELL TELEPHONE CO. OF NEVADA, a Corporation,
Respondents.
No. 7523
July 9, 1975 537 P.2d 1199
Appeal from a judgment entered against appellant; from a denial of appellant's
counterclaim against respondent Meredith Steel Construction, Inc.; and from a dismissal on
the merits of appellant's third party complaint against respondent Bell Telephone Co. of
Nevada. Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Subcontractor brought action against contractor, which filed counterclaim and third party
complaint against telephone company for which construction had been undertaken. The
district court dismissed third party complaint and entered judgment in favor of subcontractor,
less slight offset in favor of contractor for damage to contractor's equipment, and contractor
appealed. The Supreme Court, Batjer, J., held that evidence sustained finding that oral
agreement between contractor and subcontractor with respect to shoring beams and girders
was separate from the subcontract and did not vary its terms, so that parol evidence was
admitted on the issue of the nature of the shoring agreement; that any breach of the
agreement by the subcontractor was nonmaterial; that evidence sustained finding that
telephone company had not authorized the alleged breach by the subcontractor; but that
trial court improperly awarded attorney fees to the subcontractor where subcontractor's
net judgment was in excess of $11,000.
the subcontract and did not vary its terms, so that parol evidence was admitted on the issue of
the nature of the shoring agreement; that any breach of the agreement by the subcontractor
was nonmaterial; that evidence sustained finding that telephone company had not authorized
the alleged breach by the subcontractor; but that trial court improperly awarded attorney fees
to the subcontractor where subcontractor's net judgment was in excess of $11,000.
Affirmed in part and reversed in part.
Morse, Foley & Wadsworth, of Las Vegas, for Appellant.
Paul A. Richards, of Reno, for respondent, Meredith Steel Construction, Inc.
Dickerson, Miles & Pico, of Las Vegas, for respondent, Bell Telephone Co. of Nevada.
1. Contracts; Evidence.
Evidence supported finding that oral agreement between contractor and subcontractor concerning setting
up and removing of shoring beams and girders on construction project was independent of the subcontract
and not contemplated by the parties in the writing and not contradictory to its terms, so that proof of the
oral agreement did not violate the parol evidence rule.
2. Contracts.
Evidence that all contracts, both oral and written, concerning beams and girders were completely apart
from and outside the scope of written subcontract and that none of the terms of the subcontract controlled
or even bore upon contract encompassing shoring beams sustained finding that the work performed by the
subcontractor involving shoring beams and girders was not merely an extra under the subcontract but was a
separate agreement.
3. Contracts.
Evidence that difficulty caused by subcontractor's supplying of nonconforming girders was not great, that
the substituted girders could bear greater loads than the beams called for in agreement between contractor
and subcontractor, that weight of the girders actually provided should not have caused contractor any of the
problems of which it complained, and that contractor fully benefited from work performed by the
subcontractor sustained finding that any beach by subcontractor by supplying girders of composite steel
parts rather than one-piece steel beams was nonmaterial.
4. Contracts.
Evidence sustained finding that telephone company for which construction project was undertaken did
not authorize subcontractor to substitute girders for beams so that contractor could not recover from
telephone company for amounts which it might owe subcontractor because of the substitution. 5.
5. Costs.
Where subcontractor was awarded $12,062.46 from contractor, with the figure being reduced by $975 as
an offset in favor of the contractor, resulting in a net award to subcontractor of over $11,000, trial court
erred in awarding attorney fees to the subcontractor. NRS 18.010.
OPINION
This action arose out of a construction contract between co-respondent, Bell Telephone
Co., and appellant, R. J. Gordon Construction Co., Inc., hereinafter referred to as Bell and
Gordon, and co-respondent Meredith Steel Construction, Inc., hereinafter referred to as
Meredith, a subcontractor and supplier to the general contractor, Gordon.
Bell contracted with Gordon for the remodeling of several radio relay stations located
across northern Nevada. On April 30, 1968, Meredith submitted a bid in the amount of
$44,283 to Gordon for a subcontract on the project. Gordon eventually accepted the bid but
the subcontract was not executed by Meredith until July 14, 1968. Counsel stipulated that
$6,534.30 remained unpaid on the subcontract at the time of trial.
Attached to Meredith's April 30, 1968 bid was a proposal for the rental of temporary
shoring beams to be delivered to the construction sites by Meredith, installed by Gordon, and
returned to Meredith at Gordon's expense. Gordon's acceptance of this rental agreement is
evidenced by its purchase order No. 1330 directed to Meredith. Gordon's purchase order is
separate from the subcontract and refers only to the rental proposal attached to Meredith's bid.
The trial court found two subsequent oral agreements arising from Gordon's request that
Meredith set and remove the beams and girders it had already delivered to the construction
sites. Those oral agreements were made before the subcontract had been signed by Meredith,
but after Gordon had signed it on May 21; 1968, and sent it to Meredith.
There was conflicting evidence introduced concerning Gordon's countercharges against
Meredith for construction delay and extra man-hours in the amount of $17,357.50. Meredith
controverted all of Gordon's claims, and the trial court rejected them, awarding Meredith
$12,062.46 as the remainder due on its contracts with Gordon. That figure was reduced by
$975 as an offset in favor of Gordon for its equipment damage, resulting in a net award to
Meredith of $11,0S7.46, together with $2,500 in attorney fees, plus interest and costs.
resulting in a net award to Meredith of $11,087.46, together with $2,500 in attorney fees, plus
interest and costs. This appeal is taken from the judgment in favor of Meredith, as well as the
denial of Gordon's counterclaim against Meredith, and the dismissal of its third party claim
against Bell.
1. Gordon's first assignment of error is based upon the theory that oral negotiations and
agreements prior to or contemporaneous with a written agreement are merged with that
writing and that the oral requests asking Meredith to set up and remove the shoring beams
and girders made before Meredith had signed the subcontract on July 14, 1968, as well as the
purchase order for the beams sent to Meredith on July 11, 1968, merged with that contract.
The record supports the trial court's finding that a separate contract for rental of the
shoring beams was reached between Meredith and Gordon, and that the rental agreement
required only that Meredith deliver the beams to the job site. When Gordon experienced
difficulty in installing girders substituted for some of the specified beams, it contacted
Meredith and requested that corporation to install and remove the beams and girders. This
work performed by Meredith was not required by either the subcontract or the beam rental
agreement. In the installation and removal of the shoring beams and girders, Meredith
performed work which Gordon, as the general contractor, was already obligated to do under
the general contract with Bell.
[Headnote 1]
Relying on the parol evidence rule, Gordon objected to much of the evidence offered by
Meredith to show the separate oral agreements. The evidence, although conflicting, supports
the trial court's finding of oral agreements independent of the subcontract, not contemplated
by the parties in that writing, and not varying or contradicting its terms. Proof of such oral
agreements does not violate the parol evidence rule. Alexander v. Simmons, 90 Nev. 23, 518
P.2d 160 (1974), citing Douglass v. Thompson, 35 Nev. 196, 127 P. 561 (1912).
[Headnote 2]
Gordon next asserts that the trial court's characterization of Meredith's installation of the
beams as something other than an extra is erroneous. Gordon would have us read the
subcontract to include within its purview the work performed by Meredith in placing and
removing the shoring beams and girders. All contracts, both oral and written, concerning the
beams are completely apart from and outside the scope of the written subcontract, and none
of the terms of that contract control or even bear upon the contracts encompassing the
shoring beams.
written subcontract, and none of the terms of that contract control or even bear upon the
contracts encompassing the shoring beams. The argument that the work performed by
Meredith at the job sites is an extra is misplaced. Neither the terms of the subcontract nor
the purchase order covering the rental of the beams in any way refers to the work that
Meredith performed pursuant to the oral agreements. The judgment of the trial court is
supported by substantial evidence. Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973).
[Headnote 3]
Although Meredith may have breached the rental agreement by supplying some girders
made of composite steel parts instead of one-piece steel beams, we cannot say that the trial
judge erred in ruling that the breach was non-material. The difficulty caused by the
non-conforming girders was greatly exaggerated by Gordon. There was testimony that the
substituted girders could bear greater loads than the beams; also, there was testimony
indicating that the weight of the girders should have caused Gordon none of the problems of
which he complained. Finally, Gordon fully benefited from the work performed by Meredith
and there was no contention that the work under the subcontract and other agreements was
not substantially completed. Fletcher v. Fletcher, supra.
[Headnote 4]
2. As to Gordon's third party claim against Bell there is substantial evidence in support of
the trial court's ruling that Bell did not authorize substitution of the girders for the beams. The
testimony of Bell's engineer and of an employee of Meredith who, it is claimed, sought the
authorization from the engineer, controverts Gordon's theory of authorization. Fletcher v.
Fletcher, supra.
[Headnote 5]
3. In addition to the net damage of $11,087.46, the trial court awarded plaintiff $2,500
attorneys fees. Gordon's argument that the award of attorneys fees was error is persuasive.
NRS 18.010 explicitly limits award of attorneys fees by a court to those cases in which the
recovery is $10,000 or less. We have interpreted the statute to mean that the total amount of
the judgment is to be considered in arriving at the $10,000 limit. Peterson v. Freeman, 86
Nev. 850, 477 P.2d 876 (1970). In Peterson, as here, the total award represented recovery on
two separate counts.
two separate counts. That case is controlling and the district court's award of attorneys fees is
reversed.
____________
91 Nev. 439, 439 (1975) Junior v. State
WILLIE JUNIOR, Appellant, v. THE STATE
No. 7951
July 10, 1975 537 P.2d 1204
Appeal from judgment of conviction and sentence of First Judicial District Court, Carson
Defendant was convicted before the district court of carrying concealed weapon while
incarcerated in a prison, and he appealed. The Supreme Court held that contention that
district court was without jurisdiction to try case because defendant was prosecuted by
Attorney General rather than district attorney could not be raised for first time on appeal, that
refusal to discharge State Public Defender and appoint private counsel for defendant was not
error, that allowing defendant the benefit of Deputy Defender for purpose of assisting accused
who elected to manage his own defense was not error and that fact that preliminary hearing
took place at prison chapel and admission to such hearing could be obtained only by signing
in through prison registry did not violate defendant's right to public trial.
Affirmed.
Horace Rodlin Goff, State Public Defender, Carson City, for Appellant.
Robert List, Attorney General, and Patrick B. Walsh, Deputy Attorney General, Criminal
Division, Carson City, for Respondent.
1. Criminal Law.
In criminal proceeding initiated by information signed by Deputy Attorney General, contention that
district court was without jurisdiction to try case because accused was prosecuted by Attorney General
rather than district attorney could not be raised for first time on appeal. NRS 228.120, subd. 3.
2. Criminal Law.
Accused is not entitled to reject his court-appointed counsel and require substitution of other
counsel at public expense absent showing of adequate cause for such change.
and require substitution of other counsel at public expense absent showing of adequate cause for such
change.
3. Criminal Law.
Refusal to discharge State Public Defender and appoint private counsel for accused was not error, absent
showing of adequate cause for such change.
4. Criminal Law.
Allowing accused the benefit of Deputy Defender for purpose of assisting accused, who elected to
manage his own defense after denial of his request that State Public Defender be discharged and private
counsel be appointed to represent accused, was not error.
5. Criminal Law.
That preliminary hearing, which was conducted with regard to charge of carrying concealed weapon
while incarcerated in state prison, took place in prison chapel and admission to such hearing could only be
obtained by signing in through prison registry did not violate accused's right to a public trial. NRS
202.350.
OPINION
Per Curiam:
A jury found Willie Junior guilty of carrying a concealed weapon while incarcerated in the
Nevada State Prison, in violation of NRS 202.350. As discussed below, we reject his
assignments of error on appeal, and affirm the judgment of conviction entered upon that
verdict.
On November 12, 1973, a criminal complaint signed by Prison Officer Norman R.
Snellgrove was filed in the justice court of Carson Township, charging Junior with the felony
offense of carrying a concealed weapon while incarcerated. A preliminary hearing scheduled
for November 26, 1973, was continued, at Junior's request, to December 10, 1973, at which
time the hearing was held in the chapel of the Nevada State Prison. Junior then objected on
the ground that the chapel was not a public place, in derogation of his right to a public trial.
The objection was overruled, and following the hearing Junior was bound over to district
court for trial.
On December 24, 1973, the Attorney General entered into the proceedings by filing an
information in district court charging Junior with the crime for which he had been bound
over. The Attorney General's office then conducted the prosecution. At trial, Junior asked that
his court-appointed attorney, the State Public Defender, be discharged and that other counsel
be appointed in his place. The court denied his request, and the trial went forward with a
deputy from the Defender's office assisting Junior.
[Headnote 1]
1. Junior's principal assignment of error argues that the district court was without
jurisdiction to try his case because he was prosecuted by the Attorney General, citing Ryan v.
District Court, 88 Nev. 638, 503 P.2d 842 (1972). The prosecution was commenced by the
filing of a criminal complaint by Officer Snellgrove, and after Junior was bound over to
district court a Deputy Attorney General signed the information and prosecuted the case. In
Ryan, supra, 88 Nev. at 641, 503 P.2d at 843, this court said, . . . he [the Attorney General]
simply is not empowered to initiate a prosecution by information independent of the district
attorney. In this case, however, whether the Deputy Attorney General was acting for the
district attorney, or independent of him, is not developed by the record; for appellant chose to
accept the Deputy's signature as valid and operative, until disappointed by the outcome of his
trial. If the information was properly filed, of course, the Attorney General was empowered to
conduct the prosecution of the case.
1
Thus, we feel that Junior's failure to timely challenge
the information, and his tacit acceptance of it as a valid pleading on behalf of the State,
precludes a challenge now, for the first time, on appeal. See Sherman v. State, 89 Nev. 77,
506 P.2d 417 (1973); Sparks v. State, 89 Nev. 84, 506 P.2d 1260 (1973).
[Headnotes 2-4]
2. The State Public Defender represented Junior at his preliminary hearing. At trial, Junior
asked the court to discharge the State Defender and appoint private counsel. The court
refused, offering Junior three alternatives: He could continue receiving the services of the
State Public Defender or his Deputy, he could hire private counsel, or he could defend
himself. He elected to manage his own defense, which he did, with the assistance of the
Deputy Defender. A defendant is not entitled to reject his court-appointed counsel and request
substitution of other counsel at public expense absent a showing of adequate cause for such a
change. People v. Ginther, 212 N.W.2d 922 (Mich. 1973). There was no such showing in the
instant case.
____________________

1
NRS 228.120(3):
The attorney general shall have the power:
. . .
3. To appear in and to take exclusive charge of and to conduct any prosecution in any court of this state for
a violation of any law of this state, when in his opinion it is necessary, or when requested to do so by the
governor.
showing in the instant case. Further, we perceive no error in allowing a defendant, where he
has exercised the right to defend himself, the benefit of assistance of an appointed counsel.
Faretta v. California, 422 U.S. 806 (1975). Junior's assignment of error as to the court's ruling
is without merit.
[Headnote 5]
3. Finally, Junior argues that his preliminary hearing at the prison chapel violated his right
to a public trial. While it was not a closed hearing, admission could be obtained only by
signing in through the prison registry. In light of security measures necessary at a prison, this
requirement was clearly acceptable. There is no evidence that anyone was denied admission
to the hearing. Although Junior cites authority that a preliminary hearing is a critical stage
of the criminal process, he cites no authority that the hearing is a trial. Junior was not tried at
the chapel. He was tried and convicted by a jury in a public trial in the Carson City
Courthouse. The assignments of error is rejected.
The judgment of conviction is affirmed.
____________
91 Nev. 442, 442 (1975) Dondero v. Price
A. G. DONDERO, Executive Director, Employment Security Department of the State of
Nevada, Appellant, v. MAYNARD F. PRICE and M & F, INC., Doing Business as
CHARLESTON PLAZA BARBER SHOP, Respondent.
No. 7425
July 10, 1975 537 P.2d 318
Appeal from judgment of the Eighth Judicial District Court, Clark County; Leonard I.
Gang, Judge.
Reversed.
John A. Flangas, Carson City, for Appellant.
Tad Porter, Las Vegas, for Respondent.
OPINION
Per Curiam:
The judgment in this case is reversed for the same reasons we delineated in Kitchen Factors,
Inc. v. Brown, 91 Nev. 308, 535 P.2d 677 {1975), and the determination of the
Employment Security Department is hereby affirmed.
91 Nev. 442, 443 (1975) Dondero v. Price
535 P.2d 677 (1975), and the determination of the Employment Security Department is
hereby affirmed.
In accord with NRS 18.060, appellant will be allowed his costs on appeal, upon the proper
filing of a cost bill.
____________
91 Nev. 443, 443 (1975) Gardner v. State
GARY D. GARDNER, Appellant, v. THE STATE
No. 7634
July 10, 1975 537 P.2d 469
Appeal from order denying petition for post-conviction relief and order denying motion for
rehearing; Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Petitioner convicted of second-degree murder sought post-conviction relief. The district
court entered orders denying petition and denying motion for rehearing and petitioner
appealed. The Supreme Court, Mowbray, J., held that where petitioner at time of entry of
guilty plea repeatedly stated that his plea was free and voluntary, district judge was justified
in determining that claim of coercion based on prosecutor's threat to petitioner and petitioner's
sister to seek the death penalty and to prosecute other members of petitioner's family was not
sufficiently supported to overcome evidence of record showing voluntariness; and that
confession obtained in a hotel room where petitioner had gone to take polygraph test was not
obtained in violation of petitioner's right to counsel where petitioner's counsel was available
and the entire episode was at the instance and request of the defendant.
Affirmed.
Robert N. Peccole, Las Vegas, for Appellant.
Robert List, Attorney General; Roy A. Woofter, District Attorney, and Dan M. Seaton,
Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
To establish that plea of guilty was coerced by reason of threats, petitioner must show that threats were
made, that such threats did in fact influence him, and that the influence was such that it amounted to
coercion.
2. Criminal Law.
In determining whether petitioner was in fact coerced into pleading guilty court may consider all the
evidence, including the record taken at the time the defendant entered his plea of guilty.
3. Criminal Law.
A threat to prosecute a member of a defendant's family does not constitute coercion per se which will
render plea of guilty involuntary; defendant must prove that the threat in fact coerced him into making the
plea.
4. Criminal Law.
Petitioner who alleged in support of post-conviction petition that plea of guilty was result of coercion had
burden of proving his plea was involuntary.
5. Criminal Law.
In view of petitioner's repeated statements at time of entry of guilty pleas that plea was free and
voluntary, district judge was justified in determining in post-conviction proceeding that claim of coercion
by reason of prosecutor's threats to seek the death penalty and to prosecute members of defendant's family
was not sufficiently supported to overcome other evidence of record showing voluntariness.
6. Criminal Law.
Petitioner's confession, after prosecutor had promised to pay petitioner's counsel fees, pay his back
wages, and notify press of petitioner's innocence if petitioner were to pass polygraph test, relieved
prosecution of any obligation under the agreement and did not render plea or guilty involuntary on theory it
was induced by promises.
7. Criminal Law.
Prosecutor's failure to appear on petitioner's behalf at petitioner's first parole hearing could not have
induced and rendered involuntary petitioner's guilty plea inasmuch as any such indication on part of the
prosecutor came after the plea of guilty.
8. Criminal Law.
Where counsel of petitioner's choice was present in hall or adjoining room of hotel when petitioner
confessed, confession was not obtained in violation of petitioner's right to counsel.
9. Criminal Law.
Plea of guilty was not obtained in violation of petitioner's constitutional rights on theory that petitioner
feared the death penalty and the death penalty in effect at time of the plea was unconstitutional.
OPINION
Gary D. Gardner pled guilty to the crime of second-degree murder and received a sentence
of 99 years in the Nevada State Prison. The district court denied his post-conviction petition
to set aside the guilty plea as involuntary. We affirm.
1. Gardner was arrested on October 9, 1967, for the fatal shooting of Paul DeWeert.
shooting of Paul DeWeert. He was taken to the North Las Vegas Jail and held there for 5 or 6
days before being transferred to the Clark County Jail.
Gardner's nephews, ages 12 and 13, were also taken into custody by North Las Vegas
police on October 9, 1967. The nephews were released on October 11, but later they were
again taken into custody and held 3 days before being released on a writ of habeas corpus.
Gardner was aware of the police action taken toward his nephews.
An indictment was returned on October 19, 1967, charging Gardner with open murder.
In late October, Gardner agreed, with the approval of his attorney, to take a polygraph
examination regarding his involvement in the DeWeert homicide. Arrangements were made
by counsel to have Mr. Leonard H. Harrelson, a well known examiner from Illinois,
administer the test. Harrelson came to Las Vegas on November 4, 1967, and was prepared to
administer the test to Gardner in a local hotel room. Gardner, however, then changed his
mind, and he was transported back to the jail. Later in the day, after being visited by his wife
and his attorney, Gardner agreed to take the test upon certain conditions. He was then
returned to the hotel room. Before Harrelson started the examination, Gardner confessed to
the shooting, claiming it was spontaneous and not premeditated. Harrelson did not recite the
Miranda warnings prior to interrogation, and Gardner's counsel was not present when he
confessed. The room where the examination was to be conducted, however, had been placed
under electronic surveillance by the district attorney's office, and the phone was tapped. As a
result of Gardner's confession, he agreed to plead guilty to second-degree murder.
Pursuant to negotiations, Gardner was to enter his plea on Monday, November 6, 1967. On
Sunday, November 5, Gardner's sister Luana Jepson, had a chance meeting at a local bar with
the deputy district attorney managing the case. The deputy threatened Gardner's sister by
saying, Well, I will tell you, the son-of-a-bitch better plead guilty tomorrow or I will see him
get the death penalty and you and the rest of your family will be prosecuted. The following
day, the day the plea was scheduled, Mrs. Jepson told Gardner of the deputy's statement. At
court, Gardner refused to enter a guilty plea and was placed in the holding cell near the
courtroom. According to Gardner, the same deputy district attorney then met with Gardner
and, though apologizing for his conduct toward his sister, said, But if you don't plead guilty,
I will guarantee you get gassed and your people, your family, Luana and her kids, will be
charged and prosecuted for this crime."1
On November 7, 1967, Gardner entered a plea of guilty to the crime of second-degree
murder.
you get gassed and your people, your family, Luana and her kids, will be charged and
prosecuted for this crime.
1

On November 7, 1967, Gardner entered a plea of guilty to the crime of second-degree
murder. At the time the plea was entered, Judge Mendoza questioned Gardner thoroughly and
repeatedly before he accepted the plea, and Gardner affirmatively represented to the court that
no threats or promises were made and that his plea of guilty was free and voluntary and not
the result of any threats or promises made to him or anyone else.
2. Gardner predicates his claim that his plea of guilty to second-degree murder was not
voluntary on four different grounds.
[Headnote 1]
He first argues that his plea was coerced because of threats to prosecute his sister and
nephews unless he pled guilty. If such threats were in fact made, it does not necessarily
follow that the guilty plea was coerced. To be entitled to relief, Gardner must show (1) that
the threats were made, (2) that such threats did in fact influence him, and (3) that the
influence was such that it amounted to coercion.
[Headnote 2]
In determining whether or not Gardner was in fact coerced, the court may consider all the
evidence, including the record taken at the time the defendant entered his plea of guilty.
In State v. Hansen, 441 P.2d 500, 503 (N.M. 1968), the defendant claimed that he . . .
was threatened with charges being filed against his wife, if he did not plead guilty to the
subject charge [armed robbery], . . .' The Supreme Court of New Mexico held that this did
not amount to coercion. The court said (441 P.2d at 503-504):
The allegations fail, except by suggestion, to assert that the claimed threat influenced his
plea. Allegations or statements in a motion merely suggestive of the possibility that a plea of
guilty was not voluntarily and knowingly made are not sufficient as a basis for a hearing. Nor
are vague or conclusional charges sufficient. Williams v. United States 367 F.2d 143 (5th Cir.
1966); State v. Lobb, 78 N.M. 735, 437 P.2d 1004 (1968); State v. Williams, 78 N.M. 431,
432 P.2d 396 (1967); State v. Crouch. 77 N.M. 657, 427 P.2d 19 (1967); State v. Guy, 79
N.M. 128, 440 P.2d 803 (Ct.App. 1968); State v. Sexton, supra [437 P.2d 155 (N.M.Ct.App
1968)].
____________________

1
The deputy was never called by the petitioner nor the State during the proceedings below.
. . . Even if we were to construe defendant's allegations as constituting a threat by
someone in authority that charges would be filed against his wife, unless he pleaded guilty,
and that he was thereby induced or influenced to so plead, still he would be entitled to no
relief.
Unless he knew his wife had committed some criminal offense, or at least he had
substantial reason to believe she might be convicted of such an offense if so charged, he
cannot be heard to say he was coerced into pleading guilty for fear she might be charged. If he
knew she was guilty of some criminal offense, or had reason to believe she would be
convicted of the offense if charged, and, to save her from being charged, he elected to plead
guilty, and thus relieve the State of its burden to prove his guilt, he cannot now claim any
right to a reversal of his conviction and sentence after having made this choice and after
having become unhappy over his sentence or other subsequent developments.
[Headnote 3]
A threat to prosecute a member of a defendant's family does not constitute coercion per se.
The defendant must prove that the threat in fact coerced him into making the plea of guilty.
The New Mexico court then said (441 P.2d at 505):
As stated by the Supreme Court of New Mexico in State v. Daniels, . . . 438 P.2d 512
[, 514] (1968):
We know of no better way to ascertain if a plea of guilty is voluntary and is understood
by a defendant than for the judge to make inquiry of the pleader before accepting the plea.'
See Cranford v. Rodriguez, 373 F.2d 22 (10th Cir. 1967). (Emphasis added.)
In the case of State v. Baumgardner, 443 P.2d 511 (N.M. App. 1968), the defendant
contended that his plea of guilty was coerced because the prosecution threatened to file
charges against the 17-year-old wife of his codefendant. In doing so, the court relied upon the
record made at the time the defendant entered his plea and the fact that he was represented by
an attorney. The court said (443 P.2d at 512):
It appears from the record that defendant himself informed the court that he wished to
plead guilty to the charge. Before accepting the plea the court inquired of defendant as to
whether anyone had forced him to enter a plea to the charge or threatened him in any way, to
which inquiry defendant answered No'. Defendant was further asked by the court, If you
enter a plea here will it be free and voluntary on your part?' To this inquiry the defendant
answered Yes, sir.' "The trial court fully informed defendant as to the consequences, or
possible consequences, that could follow a plea of guilty to the charge involved.
The trial court fully informed defendant as to the consequences, or possible
consequences, that could follow a plea of guilty to the charge involved.
At the time defendant entered his plea and prior thereto he was represented by competent
counsel. This record, in our opinion, affirmatively shows that defendant's plea was voluntarily
entered. State v. Decker, (Ct.App.) 79 N.M. 41, 439 P.2d 559 (1968); State v. McCain,
(Ct.App.) 79 N.M. 197, 441 P.2d 237, decided May 3, 1968.
[Headnotes 4, 5]
Gardner repeatedly stated that his plea was free and voluntary, and this is shown not only
by the record made at the time his plea was received, but as well by the evidence received at
the post-conviction hearing. The burden of proving his plea was involuntary lies with the
appellant. United States v. Lester, 247 F.2d 496 (2d Cir. 1957). The district judge was
justified in determining that Gardner's claim of coercion was not sufficiently supported to
overcome other evidence of record showing voluntariness.
[Headnotes 6, 7]
Gardner argues as a second ground that his plea was involuntary because it was induced by
promises made by the prosecution that were not kept. The first was a promise that the
prosecution would pay Gardner's counsel fees, pay his back wages, and notify the press of his
innocence. The promise was conditioned upon Gardner's passing the polygraph test.
However, his confession relieved the prosecution of any obligation under the agreement.
Gardner further alleges that the district attorney promised to appear on his behalf at Gardner's
first parole hearing, but failed to do so. From the testimony taken below, it is clear that any
such indication on the part of the district attorney came after the plea of guilty and after
Gardner was sentenced, and therefore could not have induced his plea. Gardner also claims
that the district attorney's office promised to recommend a 10-year sentence and that he was
influenced to plead guilty for this reason. According to the testimony of Mr. Franklin, the
district attorney, there simply never was any such promise.
2

Gardner suggests as a third ground that his confession was obtained in violation of
Miranda v. Arizona, 384 U.S. 436 (1966). Gardner was represented by counsel of his choice,
his counsel wanted the polygraph test given, and counsel was present in the hall or in the
adjoining room when Gardner confessed.
____________________

2
Judge Mendoza's canvass when he took Gardner's plea made thorough inquiry in this area.
counsel wanted the polygraph test given, and counsel was present in the hall or in the
adjoining room when Gardner confessed. Gardner was permitted to talk to his attorney
whenever he wished. Mr. Harrelson simply asked Gardner if he was ready to talk to him, and
Gardner said, Yes; what do you want to know? Mr. Harrelson then asked if the shooting
was spontaneous or premeditated. Gardner replied that it was spontaneous.
In People v. Pellicano, 338 N.Y.S.2d 831 (1972), the defendant had been given the
Miranda warning twice. The last time, he told the officer he wanted to see his lawyer. His
lawyer was called and came to see him. After defendant talked to his lawyer in private, the
attorney left. The officer then asked defendant what he had decided. Defendant replied that he
had decided to talk to the officer. Defendant then confessed. The court held (338 N.Y.S.2d at
834) that under such circumstances [T]he constitutional safeguards laid down by Miranda v.
Arizona [cite omitted] during a period of custodial interrogation have been met.
[Headnote 8]
The situation in the case at bar is similar to the circumstances in People v. Pellicano. Here,
Gardner's counsel was available, and the entire episode was at the instance and request of the
defense.
[Headnote 9]
The final argument is that Gardner's plea was coerced because he feared the death penalty
and that, since the death penalty, in effect at the time, was unconstitutional, then his plea was
obtained in violation of his constitutional rights. The argument is without merit. Conger v.
State, 89 Nev. 263, 510 P.2d 1359 (1973).
The order of the district court denying Gardner's petition for post-conviction relief is
affirmed.
____________
91 Nev. 450, 450 (1975) Monroe, Ltd. v. Central Telephone Co.
MONROE, LTD., a Corporation, Appellant, v. CENTRAL TELEPHONE
COMPANY, SOUTHERN NEVADA DIVISION, et al., Respondents.
No. 7627
July 10, 1975 538 P.2d 152
Appeal from an order denying appellant's motion for trial setting, entered on September
26, 1973, Eighth Judicial District Court, Clark County; William P. Compton, Judge; and from
an order entered on October 24, 1973, vacating an order of voluntary dismissal and
dismissing the action with prejudice, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
The Supreme Court, Batjer, J., held that entry of ex parte order granting plaintiff's motion
for dismissal of action without prejudice, was error and vacating of such order was proper,
that dismissal, with prejudice, of action which had been pending for more than five years was
not abuse of discretion and that denial of plaintiff's application for preferential trial setting
was not abuse of discretion.
Affirmed.
Daryl Engebregson, of Las Vegas, for Appellant.
Neil J. Beller, of Las Vegas, for Respondents.
Words at the plaintiff's instance in rule providing that, except as provided in specified paragraph, an
action shall not be dismissed at the plaintiff's instance save on order of court and on such terms and
conditions as the court deems proper contemplate that plaintiff will present a motion to the trial court.
NRCP 41(a)(2).
2. Motions.
Purpose of motions requiring that, unless motion is made during a hearing or trial, it must be in writing
and state with particularity the grounds therefor is to guarantee that adverse party be informed not only of
pendency of motion but also basis on which movant seeks the order. NRCP 7(b)(1).
Motion for dismissal under rule, which provides that, except as provided in specified paragraph, an action
shall not be dismissed at plaintiff's instance save upon order of court and on such terms and conditions as
court deems proper, may not be heard ex parte, but is a matter for exercise of sound discretion by trial court
to either grant or refuse on facts presented. NRCP 41(a)(2).
Entry of ex parte order granting plaintiff's motion for dismissal of action without prejudice was error and
vacating of order was proper where motion had not been in writing and on notice.
proper where motion had not been in writing and on notice. NRCP 5(a), 7(b), 41(a)(2).
5. Motions.
Failure to comply with court rules is a valid ground for vacating an order.
Contention that rule, which provides that except as otherwise provided in specified subsection of rule,
when any district judge shall have entered upon the trial or hearing of any cause, proceeding or motion, or
made any ruling, order or decision therein, no other judge shall do any act or thing in or about such cause,
proceeding or motion, unless upon the written request of the judge who shall have first entered upon the
trial or hearing of such cause, proceeding or motion had been violated was not properly before Supreme
Court where contention was not raised in district court. DCR 26.
Dismissal to action pending for more than five years is mandatory in absence of written stipulation for an
extension of time. NRCP 41(e).
Dismissal, with prejudice, of action which had been pending for more than five years is not abuse of
discretion, absent showing of circumstances excusing the delay. NRCP 41(e).
Purpose to rule pertaining to dismissal of actions pending tor more than five years is to compel
reasonable diligence in prosecution of an action. NRCP 41(e).
Where defendant, who seeks dismissal of action, has made a prima facie showing of unreasonable delay,
plaintiff must show circumstances excusing delay. NRCP 41(e).
11. Appeal and Error; Trial.
Setting trial dates and other matters done in arrangement of a trial court's calendar is within discretion of
that court, and in absence of arbitrary conduct will not be interfered with by Supreme Court.
Dismissal, with prejudice, of action which had been pending more than five years was not abuse of
discretion, absent showing of circumstances excusing the delay. NRCP 41(e).
OPINION
Appellant filed a complaint against Central Telephone Company, Southern Nevada
Division, hereafter referred to as respondent, and one other party on October 11, 1968. The
other party settled and the action was dismissed as to it by district court order entered on
December 2, 196S, pursuant to a stipulation.
district court order entered on December 2, 1968, pursuant to a stipulation. Respondent filed
its answer on August 1, 1969. No other action was taken until September 12, 1973, when
appellant filed a note for trial docket. On September 21, 1973, appellant moved for a trial
setting before October 11, 1973, and attached to that motion an affidavit, in justification of
the preferential setting, which explained that the five-year period since the filing of the
complaint would expire on October 11, 1973. NRCP 41(e). The motion for trial setting was
denied by Judge Compton on September 26, 1973.
1. Although the record does not include any written motion for dismissal filed by
appellant, nor a certificate of service of such motion upon respondent, the ex parte order
entered by Judge Compton on October 9, 1973, and filed on October 16, 1973 (NRCP 41
(a)(2)),
1
dismissing appellant's complaint without prejudice recites that it was entered on the
motion of appellant.
2

[Headnote 1]
On October 12, 1973, respondent filed a motion to dismiss the action, with prejudice, for
appellant's failure to prosecute, and on October 17, 1973, respondent filed a motion to vacate
Judge Compton's ex parte order of dismissal. Both motions were served by mail.
Respondent's motions were heard and granted on October 24, 1973, by Judge Pavlikowski.
This appeal followed.
[Headnote 2]
NRCP 7(b)(1)
3
requires that a motion shall be in writing unless made during a hearing
or trial, and NRCP 5{a)4 mandates that every written motion other than one that may be
heard ex parte shall be served upon each of the parties.
____________________

1
NRCP 41(a)(2): Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be
dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court
deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's
motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can
remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal
under this paragraph is without prejudice.

2
Although the ambiguous phrase at the plaintiff's instance is used in NRCP 41(a)(2), those words
contemplate that the plaintiff will present a motion to the trial court. Diamond v. U.S., 267 F.2d 23, 25, (5th Cir.
1959), cert. denied, 361 U.S. 834 (1959).

3
NRCP 7(b)(1): An application to the court for an order shall be by motion which, unless made during a
hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the
relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the
hearing of the motion.
unless made during a hearing or trial, and NRCP 5(a)
4
mandates that every written motion
other than one that may be heard ex parte shall be served upon each of the parties. No hearing
or trial was in progress involving this case on October 9, 1973, when the ex parte order was
entered.
5
The requirement of a written motion stating the grounds with particularity is
intended to guarantee that the adverse party be informed not only of its pendency, but also the
basis upon which the movant seeks the order.
[Headnote 3]
A motion for dismissal under NRCP 41(a)(2) may not be heard ex parte, but is a matter for
the exercise of sound discretion by the trial court to either grant or refuse upon the facts
presented. Wilson & Co. v. Fremont Cake & Meal Co., 83 F.Supp. 900 (D.Neb. 1949); Pratt
v. Rice, 7 Nev. 123 (1871); Wright & Miller, Federal Practice and Procedure: Civil 912. Cf.
Larsen v. Switzer, 183 F.2d 850 (8th Cir. 1950), cert. denied, 340 U.S. 911 (1951).
[Headnote 4]
Here respondent contends that it knew nothing of the motion until a copy of the ex parte order was received by
mail several days after its entry. In Maheu v. District Court, 88 Nev. 26, 34, 493 P.2d 709 (1972), we reviewed
this court's historical view of ex parte orders: For a century, our settled law has been that any special' motion
involving judicial discretion that affects the rights of another, as contrasted to motions of course,' must be made
on notice even where no rule expressly requires notice to obtain the particular order sought, except only when
this requirement is altered to meet extraordinary situations such as those concerned in NRCP 65(b). Pratt v.
Rice, 7 Nev. 123 (1871); NRCP 6(d). It is also fundamental that although an order's subject matter would lie
within the court's jurisdiction if proper]y applied for, it is void if entered without required notice. Our authorities
establishing this principle are as old as Wilde v. Wilde, 2 Nev. 306 {1S66), and as recent as Reno
Raceway, Inc. v. Sierra Paving, Inc., S7 Nev. 619
____________________

4
NRCP 5(a) provides in pertinent part: . . . [E]very written motion other than one which may be heard ex
parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and
similar paper shall be served upon each of the parties. . . .

5
The type of hearing at which there is no need to reduce a motion to writing is one in which the proceedings
are recorded. Alger v. Hayes, 452 F.2d 841 (C.A. 8th 1972).
(1866), and as recent as Reno Raceway, Inc. v. Sierra Paving, Inc., 87 Nev. 619, 492 P.2d 127
(1971). It makes no difference that a void order may concern a matter committed to the
court's discretion, such as discovery,' regarding which the court might have granted
protective orders had a proper application been made. Cf. Checker, Inc. v. Public Serv.
Comm'n, 84 Nev. 623, 446 P.2d 981 (1968); cf. Ray v. Stecher, 79 Nev. 304, 383 P.2d 372
(1963); cf. Whitney v. District Court, 68 Nev. 176, 227 P.2d 960 (1951); cf. Abell v. District
Court, 58 Nev. 89, 71 P.2d 111 (1937).
The failure of appellant to comply with the requirements of NRCP 7(b) and NRCP 5(a)
deprived Judge Compton of authority to proceed to enter the order on October 9, 1973,
dismissing the action without prejudice. The act of Judge Compton in entering the ex parte
order was erroneous
6
since the motion should have been in writing and on notice.
[Headnote 5]
In its motion to vacate the ex parte order, respondent alleged as grounds appellant's failure
to file and serve a notice of motion and motion to dismiss. Failure to comply with court rules
is a valid ground for vacating an order. See In the Matter of the Estate of Powell, 62 Nev. 10,
135 P.2d 435 (1943). Cf. F. C. Mortimer v. P.S.S. & L. Co., supra, and Luc v. Oceanic
Steamship Company, supra, footnote 6. Whether the ex parte order was void or voidable is
not material to this opinion because it was properly vacated by Judge Pavlikowski.
[Headnote 6]
Appellant registered no objection to Judge Pavlikowski's presiding at the hearing on
October 24, 1973. Now, for the first time, it contends that DCR 26
7
was violated and error
committed.
____________________

6
In F. C. Mortimer v. P.S.S. & L. Co., 62 Nev. 142, 145 P.2d 733 (1944), this court held an order invalid
because it had been made without notice and an opportunity for hearing. In Luc v. Oceanic Steamship Company,
84 Nev. 576, 579, 445 P.2d 870 (1968), we said: The giving of notice is a jurisdictional requirement, and where
a rule or statute prescribes the manner in which notice is to be given, that mode must be complied with or the
proceeding will be a jurisdictional nullity. In Turner v. Saka, 90 Nev. 54, 518 P.2d 608 (1974), we considered
an Order to Show Cause issued in the State of New Jersey void for want of notice.

7
DCR 26: 1. Except as otherwise provided in subsection 2 of this rule, when any district judge shall have
entered upon the trial or hearing of any cause, proceeding or motion, or made any ruling, order or decision
therein, no other judge shall do any act or thing in or about such cause, proceeding or motion, unless upon the
written request
committed. It is unnecessary to decide this point as it was not raised in the district court and is
not properly before us. Eagle Thrifty Drugs v. Incline Village, 89 Nev. 575, 517 P.2d 786
(1973). Cf. Cottonwood Cove Corp. v. Bates, 86 Nev. 751, 476 P.2d 171 (1970).
After Judge Pavlikowski vacated the ex parte order, the matter was before him on
respondent's motion to dismiss for lack of prosecution. At that time the case was viable,
pending and ripe for dismissal. NRCP 41(e).
8

[Headnote 7]
Dismissal of an action pending for more than five years is mandatory in the absence of
written stipulation for an extension of time. Lighthouse v. Great W. Land & Cattle, 88 Nev.
55, 493 P.2d 296 (1972).
[Headnotes 8-10]
Judge Pavlikowski did not abuse his discretion in dismissing with prejudice. The purpose
of Rule 41(a)(2) is to compel reasonable diligence in the prosecution of an action. Where a
defendant has made a prima facie showing of unreasonable delay, the plaintiff must show
circumstances excusing delay.
____________________
of the judge who shall have first entered upon the trial or hearing of such cause, proceeding or motion.
2. The judges in any judicial district having more than one judge shall adopt such rules as they deem
necessary to provide for the division and disposal of the business of their judicial district.

8
NRCP 41(e): The court may in its discretion dismiss any action for want of prosecution on motion of the
defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to
bring such action to trial. Any action heretofore or hereafter commenced shall be dismissed by the court in which
the same shall have been commenced or to which it may be transferred on motion of the defendant, after due
notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years
after the plaintiff has filed his action, except where the parties have stipulated in writing that the time may be
extended. When, in any action after judgment, a motion for a new trial has been made and a new trial granted,
such action shall be dismissed on motion of defendant after due notice to plaintiff, or by the court of its own
motion, if no appeal has been taken, unless such action is brought to trial within three years after the entry of the
order granting a new trial, except when the parties have stipulated in writing that the time may be extended.
When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a
new trial (or when an appeal has been taken from an order granting a new trial and such order is affirmed on
appeal), the action must be dismissed by the trial court on motion of defendant after due notice to plaintiff, or of
its own motion, unless brought to trial within three years from the date upon which remittitur is filed by the clerk
of the trial court. A dismissal under this subdivision (e) is a bar to another action upon the same claim for relief
against the same defendants unless the court otherwise provides.
defendant has made a prima facie showing of unreasonable delay, the plaintiff must show
circumstances excusing delay. Hassett v. St. Mary's Hosp. Ass'n, 86 Nev. 900, 478 P.2d 154
(1970). Here appellant has failed to present a valid excuse.
2. In its challenge to the order of September 26, 1973, denying the motion for preferential
trial setting, appellant contends that Judge Compton erred. However, it was appellant who
delayed filing its application for a trial until just before dismissal would have been required
under NRCP 41(e). The diligence required on the part of appellant and its counsel is absent in
this record. No valid reason or explanation was given for the pendency of this case for some
four years after it had been at issue.
[Headnotes 11, 12]
Setting trial dates and other matters done in the arrangement of a trial court's calendar is
within the discretion of that court, and in the absence of arbitrary conduct will not be
interfered with by this court. Close v. District Court, 73 Nev. 194, 314 P.2d 379 (1957). Cf.
State ex rel. Hamilton v. Dist. Ct., 80 Nev. 158, 390 P.2d 37 (1964). We find no error or
abuse of discretion by Judge Compton in his order denying appellant a preferential trial
setting. The orders of the district court are affirmed.
Gunderson, C. J., and Mowbray and Thompson, JJ., and Gregory, D. J., concur.
____________
........................., A Minor Boy, Under the Age of 18 Years,
Appellant, v. STATE OF NEVADA, Respondent.
No. 8128
July 11, 1975 537 P.2d 477
Appeal from a juvenile commitment order of the Fourth Judicial District Court, Elko
The Supreme Court, Mowbray, J., held that statutory mandates were satisfied when
juvenile's mother was notified within approximately one hour of time that juvenile was taken
into custody, that statutory provisions pertaining to dismissal of petition alleging delinquency
if not filed within 10 days from date of complaint when child is in detention or shelter care
were not applicable where juvenile had been released, that appearance of juvenile before
juvenile court judge without first appearing before a probation officer was not violative of
statute requiring that juvenile be advised of his rights in his first appearance "at intake,"
that police officer had probable cause to arrest juvenile, that a formal declaration of
arrest was not necessary under circumstances, that search conducted pursuant to arrest
was not unreasonable, and that information provided police by minors who assisted in
investigation of case was not violative of statutory provisions.
appearing before a probation officer was not violative of statute requiring that juvenile be
advised of his rights in his first appearance at intake, that police officer had probable cause
to arrest juvenile, that a formal declaration of arrest was not necessary under circumstances,
that search conducted pursuant to arrest was not unreasonable, and that information provided
police by minors who assisted in investigation of case was not violative of statutory
provisions.
Affirmed.
[Rehearing denied August 26, 1975]
Gunderson, C. J., dissented.
Manzonie & Hawley, Elko, for Appellant.
Robert List, Attorney General, Carson City; Robert C. Manley, District Attorney, and Gary
E. DiGrazia, Deputy District Attorney, Elko County, for Respondent.
1. Infants.
Petition to adjudicate juvenile a delinquent was not subject to dismissal on ground that juvenile's mother
was not immediately notified after juvenile was taken into custody where maximum amount of time that
could have elapsed from time that juvenile was placed in custody until his mother was notified was
approximately one hour, all reasonable efforts were made to contact juvenile's parents, including his
mother, and there was no evidence of any intentional delay. NRS 62.170, subd. 1.
2. Infants.
Term detention or shelter care, within statute providing that a petition alleging delinquency or need of
supervision shall be dismissed with prejudice if not filed within 10 days from date of referral of complaint
when child is in detention or shelter care, refers to a physical form of restraint. NRS 62.128, subd. 4.
3. Infants.
Juvenile, who was immediately returned to custody of his mother upon his arrest for possession of a
controlled substance, did not fall within statute requiring dismissal of petition alleging delinquency if not
filed within 10 days from date of complaint when child is in detention or shelter care. NRS 62.128,
subd. 4.
4. Infants.
Provision of Juvenile Court Act that a juvenile must be advised of his rights in his first appearance at
intake was not violated by fact that juvenile appeared before juvenile court judge without first appearing
before a probation officer where there were no intake proceedings in that juvenile was released at school
to his mother and juvenile was otherwise fully advised of his rights. NRS 62.193, subd. 2.
5. Arrest.
A peace officer may make an arrest without a warrant on a charge made, upon a reasonable
cause, of commission of a felony by party arrested.
charge made, upon a reasonable cause, of commission of a felony by party arrested. NRS 171.124, subd.
1(d).
6. Arrest.
Presence or absence of probable cause to arrest must be determined in light of all circumstances, and it is
immaterial that each circumstance, taken by itself, may be consistent with innocence. NRS 62.128, subd.
4, 62.193, subd. 2.
7. Arrest.
Police officer, who was trained in recognition and identification of marijuana both by sight and by smell,
and who, prior to proceeding to school, was told by his chief that students who were suspected of
possessing marijuana would be questioned in band room, had probable cause to arrest juvenile when, on
smelling what he thought was marijuana emanating from juvenile, he suspected that juvenile wanted to go
to restroom to dispose of it. NRS 62.128, subd. 4, 62.193, subd. 2.
8. Arrest.
A formal declaration of arrest is not necessary in order to have an arrest; it is sufficient if person arrested
understands that he is in power of one arresting, and submits in consequence.
9. Arrest.
Where police officer testified that, prior to formal announcement of his arrest, juvenile was not free to
leave, and juvenile submitted to detention of his person in that he made no attempt to leave room without
permission of officer, facts indicated an intent on part of officer to arrest and an intent on part of juvenile to
submit; therefore, a formal declaration of arrest was not necessary. NRS 62.128, subd. 4, 62.193, subd.
2.
10. Arrest.
When a valid arrest is made, arrestee's person and areas within his immediate control may be searched.
NRS 62.128, subd. 4, 62.193, subd. 2.
Search of juvenile's person when, prior to formal announcement of his arrest, juvenile was not free to
leave and juvenile submitted to the detention of his person in that he made no attempt to leave room
without permission of police officer, was not unreasonable. NRS 62.128, subd. 4, 62.193, subd. 2.
12. Infants.
Statute which operates to prevent a physician or other such professional from using a minor as an agent to
deliver drugs contrary to statutory proscriptions was not applicable in situation where police used
information provided by minors who assisted in investigation of possession of marijuana among students at
high school. NRS 454.306.
OPINION
This is an appeal from a juvenile commitment order of the Fourth Judicial District Court in
and for Elko County, Nevada.
1. On October 1, 1974, the Chief of Police of Wells, Nevada, C. E. Rutherford, and
Sergeant Ron Cerveri went to Wells High School to investigate prior reports from at least one
student that a minor whom we shall refer to as Alan, and several other high school students,
had been possessing, smoking, and selling marijuana on the school grounds. By agreement
between school authorities and Chief Rutherford, the school's band room was made available
for questioning those students who had been reported. Eight students, including Alan, were
called from their classes by the principal and directed to the band room. At the time the
students were taken into the band room, the principal instructed his secretary to telephone
their parents and request them to come to the school. Alan's mother was notified via a
message left at her place of employment.
Sergeant Cerveri, an officer familiar with the appearance and odor of marijuana, was in the
band room prior to the entry of the students. He testified that he could smell nothing prior to
the students' appearances, but after their arrival he did detect the odor of marijuana; but he
was unable to determine its source.
Chief Rutherford advised the students of their constitutional rights by reading from a
Miranda warning card. He asked each student if he understood the warning, and then told
them he was investigating the group for possession of marijuana. He stated that he intended
to search each student if they and their parents permitted him to do so. Alan approached
Sergeant Cerveri and asked if he could go to the rest room. Cerveri testified that he detected
an odor emanating from Alan which he thought was marijuana. He asked Alan to remove the
contents of his pockets. Alan removed a Marlboro cigarette package from his left shirt pocket,
a leather pouch from his right pants pocket, and several miscellaneous items on his person,
placing the items on a stool. Sergeant Cerveri testified that he looked into the leather pouch
and the cigarette pack in Alan's presence. Cerveri thus saw the actual marijuana substance,
and he stated that he placed Alan under arrest, then permitted Alan to go to the rest room
while he accompanied him. Afterward, Cerveri took Alan into a room adjoining the band
room, where Alan was again placed under arrest by the Chief, and the Miranda warning was
again read to him. His mother was also present. The Chief asked Alan's mother if he could
question him; she agreed. Alan was asked if he smoked marijuana, and he replied that he
smoked about 2 or 3 joints a day. An agreement to produce was signed at that time by Alan
and his mother, and he was released to her custody.
time by Alan and his mother, and he was released to her custody.
A petition was filed on November 3, 1974, charging Alan with possession of a controlled
substance, and a summons was issued and sent to Alan and his mother. Alan appeared with
counsel in juvenile court on November 19, 1974. He denied the charge. A hearing date was
set for January 13, 1975, but the hearing was continued at Alan's request. Motions to suppress
and dismiss were denied on February 7, 1975. The district judge, sitting as juvenile court
judge, heard the petition on its merits on February 27, 1975, and Alan was found guilty of
committing the delinquent act. He had been on formal probation, which was revoked, and he
was committed to the Nevada Youth Training Center.
2. Alan's first assignment of error is that the juvenile court erred in denying his motion to
dismiss the petition. We do not agree. The motion to dismiss was predicated upon the ground
that the juvenile court failed to comply with the mandates of the Juvenile Court Act in that:
(1) Alan's mother was not immediately notified after Alan was taken into custody, as required
by NRS 62.170(1);
1
(2) the petition was not filed within 10 days, as required by NRS
62.128(4);
2
and (3) there was a failure to comply with the intake and notice of rights
provisions of NRS 62.193(2).
3
[Headnote 1]
[Headnote 1]
____________________

1
NRS 62.170, subsection 1:
1. Any peace officer or probation officer may take into custody any child who is found violating any law or
ordinance or whose surroundings are such as to endanger his welfare. When a child is taken into custody, the
officer shall immediately notify the parent, guardian or custodian of the child, if known, and the probation
officer. Unless it is impracticable or inadvisable or has been otherwise ordered by the court, or is otherwise
provided in this section, the child shall be released to the custody of his parent or other responsible adult upon
the written agreement signed by such person to bring the child to the court at a stated time or at such time as the
court may direct. The written agreement shall be submitted to the court as soon as possible. If such person fails
to produce the child as agreed or upon notice from the court, a writ may be issued for the attachment of the
person or of the child requiring that the person or child, or both of them, be brought into the court at a time
stated in the writ.
See also A Minor v. State, 89 Nev. 564, 517 P.2d 183 (1973).

2
4. When a child is in detention or shelter care, a petition alleging delinquency or need of supervision shall
be dismissed with prejudice if it was not filed within 10 days from the date the complaint was referred to the
probation officer.

3
2. The parties shall be advised of their rights under law in their
[Headnote 1]
A reading of the transcript of the proceedings below shows that the maximum amount of
time that could have elapsed from the time that Alan could be deemed to have been in
custody until his mother was notified was approximately one hour. All reasonable efforts
were made to contact the parents of the involved minors, including Alan's mother, almost
immediately from the time the police authorities arrived at the school. There is no evidence of
any intentional delay in contacting Alan's mother. Under the facts presented, the mandates of
NRS 62.170(1) were satisfied.
[Headnotes 2, 3]
We interpret detention or shelter care as used in NRS 62.128(4) as referring to a
physical form of restraint. The purpose of the statute is to insure prompt filing of the petition,
so that the minor is not unreasonably physically detained. In this case, Alan was immediately
returned to the custody of his mother. When a minor is so released, he is no longer in
detention or shelter care within the meaning of NRS 62.128(4). The mandates of the
statute were not offended.
[Headnote 4]
NRS 62.193(2) states in part that the parties shall be advised of their rights under the law
in their first appearance at intake and before the court. In this case, after the petition was
filed on November 19, 1974, Alan appeared before Juvenile Court Judge Joseph O.
McDaniel, with his counsel, was advised of his rights, and denied the allegations in the
petition. Additionally, Alan was advised of his rights in the summons that was sent to him on
November 5, 1974. Chief Rutherford also advised Alan twice at the high school in
accordance with the Miranda warnings. Alan complains that the statute was violated in that
he appeared before the juvenile court judge without first appearing before a probation officer.
We see no merit to this argument. Apparently Alan anchors his argument on the wording of
the statute that a juvenile must be advised of his rights in his first appearance at intake.
Alan was released at the school to his mother. There were no intake proceedings. He was
fully advised of his rights. We see no violation of the statute.
3. Alan contends that it was error not to grant his motion to suppress the marijuana
because it was the result of an illegal search and seizure.
____________________
first appearance at intake and before the court. They shall be informed of the specific allegations in the petition
and given an opportunity to admit or deny such allegations.
to suppress the marijuana because it was the result of an illegal search and seizure.
In this case, since no search warrant was obtained, the burden is on the State to
demonstrate that the warrantless search was constitutionally permissible.
[Headnotes 5, 6]
A peace officer may make an arrest without a warrant [o]n a charge made, upon a
reasonable cause, of the commission of a felony by the party arrested. NRS 171.124(1)(d).
4
Thomas v. Sheriff, 85 Nev. 551, 459 P.2d 219 (1969). In Schnepp v. State, 82 Nev. 257, 260,
415 P.2d 619, 621 (1966), this court defined reasonable cause for arrest as being such a state
of facts as would lead a man of ordinary care and prudence to believe or entertain an honest
and strong suspicion that the person is guilty. The presence or absence of probable cause to
arrest must be determined in the light of all the circumstances, and it is immaterial that each
circumstance, taken by itself, may be consistent with innocence. Hernandez v. United States,
353 F.2d 624 (9th Cir. 1965).
[Headnote 7]
Sergeant Cerveri testified that he was trained in the recognition and identification of
marijuana both by sight and by smell. Just prior to proceeding to the school on October 1,
1974, he was told by Chief Rutherford that students who were suspected of possessing
marijuana would be questioned in the band room. Rutherford's information was predicated on
one or more reliable informants. Cerveri testified that he smelled marijuana when the students
entered the band room; that when Alan approached him and asked permission to go to the rest
room, Cerveri thought he could smell marijuana emanating from Alan. He believed that Alan
had marijuana on his person, and he suspected that he wanted to go to the rest room in order
to dispose of it. All of these factors taken together gave Cerveri probable cause to believe
Alan possessed marijuana. Probable cause is determined in light of all the circumstances.
[Headnote 8]
Next, since the State claims that the search was incidental to the arrest, we must
determine whether Alan was under arrest when the search was made.
____________________

4
NRS 171.124(1)(d):
1. A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a
warrant, arrest a person:
. . .
(d) On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested.
to the arrest, we must determine whether Alan was under arrest when the search was made. In
NRS 171.104, an arrest is defined as the taking of a person into custody, in a case and in the
manner authorized by law. A formal declaration of arrest is not necessary in order to have an
arrest. Kelley v. United States, 298 F.2d 310 (D.C. Cir. 1961); United States v. Murray, 492
F.2d 178 (9th Cir. 1973). In fact, . . . It is sufficient if the person arrested understands that
he is in the power of the one arresting, and submits in consequence.' (Italics in the original.)
(Footnote omitted.) Kelley v. United States, supra, 298 F.2d at 312.
[Headnote 9]
No statement was made by Cerveri that Alan was under arrest prior to the search.
However, Cerveri testified that prior to the formal announcement of his arrest Alan was not
free to leave. Alan submitted to the detention of his person, in that he made no attempt to
leave the room without the permission of Cerveri. These facts indicate an intent on the part of
Cerveri to arrest and an intent on the part of Alan to submit. A formal declaration, under these
facts, was not necessary.
[Headnote 10]
Where a valid arrest is made, the arrestee's person and the areas within his immediate
control may be searched. Chimel v. California, 395 U.S. 752 (1969). Additionally, the High
Court ruled in United States v. Robinson, 414 U.S. 218, 235 (1973);
. . . A custodial arrest of a suspect based on probable cause is a reasonable intrusion under
the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no
additional justification. It is the fact of the lawful arrest which establishes the authority to
search, and we hold that in the case of a lawful custodial arrest a full search of the person is
not only an exception to the warrant requirement of the Fourth Amendment, but it is also a
reasonable' search under that Amendment.
[Headnote 11]
We conclude, therefore, that the search under the facts presented was not unreasonable,
and the denial of the motion to suppress was proper.
[Headnote 12]
4. Alan's third assignment of error rests upon the contention the information provided
Chief Rutherford by the minors who assisted in the investigation of the case violated the
provisions of NRS 454.306.5 This statute, obviously, is intended to prevent a physician or
other such professional from using a minor as an agent to deliver drugs contrary to the
provisions of the statute.
who assisted in the investigation of the case violated the provisions of NRS 454.306.
5
This
statute, obviously, is intended to prevent a physician or other such professional from using a
minor as an agent to deliver drugs contrary to the provisions of the statute. The purpose of the
statute is to keep dangerous drugs out of the hands of minors. Appellant's reference to NRS
454.306 in this case is both misplaced and incorrect.
The commitment order of the court below is affirmed.
Batjer, Zenoff, and Thompson, JJ., concur.
I respectfully dissent.
I would be quick to sign an opinion upholding this particular juvenile's commitment, if I
believed such could be done consistently with legal principles. Like my brethren and the
district judge, I believe a period of confinement at the Elko training school may be to his
benefit. I believe, however, that the Constitution is too high a price to pay for his tuition.
As I see it, the majority here hold a police officer may arrest any person reported to have
smoked marijuana, if the officer deems desire to utilize lavatory facilities suspicious, and if
the officer either thinks, or says he thinks, that he can detect an odor of marijuana about the
suspect's person.
I suggest a request to use the men's room typically reflects nothing more sinister than a
wish to relieve one's bowel or bladder. I further suggest that merely because such request is
made to a police officer by a schoolboy does not, as a matter of logic, enhance the import
thereof. As the United States Supreme Court has said: The fact that packages have been
stolen does not make every man who carries a package subject to arrest nor the package
subject to seizure. . . . Under our system suspicion is not enough for an officer to lay hands on
a citizen. Henry v. United States, 361 U.S. 98, 104 (1959). By direct analogy, that marijuana
users may sometimes seek to flush contraband down toilets does not, as a matter of logic,
evidence that a person asking to use a toilet has marijuana on his person.
____________________

5
NRS 454.306:
Every person who violates any provision of NRS 454.181 to 454.381, inclusive, by use of a minor as an
agent or by unlawfully furnishing any dangerous drug to a minor shall be punished by imprisonment in the state
prison for not less than 1 year nor more than 10 years, or by a fine of not more than $5,000, or by both fine and
imprisonment.
I suggest that in this case there was no more justification for a warrantless search than in
Schmitt v. State, 88 Nev. 320, 497 P.2d 891 (1972), wherein this court unanimously reversed
a conviction on comparable facts.
____________
91 Nev. 465, 465 (1975) Bishop v. State
JERRY BISHOP, Appellant, v. THE STATE
No. 7411
July 14, 1975 537 P.2d 1202
Appeal from conviction and sentence for first degree murder, Eighth Judicial District
Court, Clark County; Leonard I. Gang, Judge.
The Supreme Court, Gunderson, C. J., held, inter alia, that no showing of damaging
surprise was necessary in order for State to be permitted to impeach its own witness.
Affirmed.
Morgan D. Harris, Public Defender, Las Vegas, for Appellant.
Robert List, Attorney General, and Roy A. Woofter, District Attorney, Las Vegas, for
Respondent.
1. Witnesses.
No showing of damaging surprise was required before State would be permitted to impeach its own
witness during murder prosecution. NRS 50.075.
2. Criminal Law.
No error relative to admission of prior inconsistent statement of witness occurred where, although
prosecutor undertook to lay foundation for introduction of such prior statement, court refused to allow
prosecutor to elicit content of statement and admonished jury not to consider matters outside their
presence.
3. Criminal Law.
No prejudice occurred when trial court in murder prosecution refused to allow defense counsel to
question witness about alleged threats to prosecute him where trial court did not admit into evidence
witness' allegedly inconsistent pre-trial statement and witness' trial testimony did not connect defendant
with crime. NRS 178.598.
4. Criminal Law.
In homicide prosecution, admission of foundational testimony as to out-of-court experiment was not
prejudicial where results of experiment were never admitted into evidence and court
carefully instructed jury not to speculate what witness might have testified.
experiment were never admitted into evidence and court carefully instructed jury not to speculate what
witness might have testified. NRS 178.598.
5. Criminal Law.
Where defendant lodged no objection in trial court to court's failure to exclude state rebuttal witness'
testimony sua sponte on grounds that State had failed to give proper notice of such witness to defense, issue
would not be considered on appeal. NRS 174.087.
6. Criminal Law.
Admission into evidence of telephone bills of defendant in murder prosecution, allegedly in violation of
hearsay rule and without proper foundation under business record exception thereto, was harmless error
where such evidence did not materially diminish credibility of defendant's case. NRS 51.135.
OPINION
Charged with killing Jane Wong Barker, appellant was found guilty of first degree murder
and sentenced to life imprisonment without possibility of parole. This appeal follows.
The victim's husband, Anthony Barker, had reported her murder. At trial, Barker testified
he and his wife were abducted by an unfamiliar black man, and forced to drive to a desert
area outside Las Vegas where they were robbed, Barker's wife murdered, and Barker shot in
the leg.
The State's theory was that appellant, Barker's friend, had agreed to kill the victim for a
share of certain insurance proceeds, making the incident look like robbery by superficially
wounding Barker. Apparently the jury chose to adopt this view rather than Barker's story, and
substantial evidence supports their determination, including various admissions appellant
imprudently made to friends. The sufficiency of the evidence is not challenged.
Appellant's first three assignments of error relate to the testimony of Paul Maiden, a
prosecution witness. In particular, appellant contends that the district court erred by
permitting the State to impeach its own witness without a showing of damaging surprise,
by admitting prior inconsistent statements, and by unduly limiting cross-examination.
[Headnote 1]
The first contention manifestly lacks merit in light of NRS 50.075, which declares, the
credibility of a witness may be attacked by any party, including the party calling him. No
showing of "damaging surprise" is required by statute and we will not impose such a
requirement.
showing of damaging surprise is required by statute and we will not impose such a
requirement. In accord, People v. Stanley, 433 P.2d 913, n. 1 (Cal. 1967).
[Headnote 2]
Appellant's second contention has no merit since Maiden's prior statement was never
admitted. Upon taking the stand, Maiden testified he saw appellant in San Diego in June,
1972, but denied discussing anything that had occurred in Las Vegas. The prosecutor then
undertook to lay a foundation for introducing a prior statement to the police, and asked
Maiden whether he had made a particular assertion. The court sustained an objection, excused
the jury, and entertained arguments on Maiden's competency and the admissibility of his
statement. Thereupon, the trial judge ruled Maiden competent, but refused to allow the
prosecutor to elicit the content of his prior statement. The court admonished the jury not to
consider matters outside their presence; appellant requested no further prophylactic
instruction or action; hence we perceive no prejudicial error. Clark v. State, 89 Nev. 392, 513
P.2d 1224 (1973).
[Headnote 3]
Appellant's third contention concerning Maiden's testimony involves the court's refusal to
allow defense counsel to question the witness about alleged threats to prosecute him.
Appellant urges such action unduly limited cross-examination, to show Maiden's motive,
interest or bias. Cf. Davis v. Alaska, 415 U.S. 308 (1974). We believe, however, that since
the district court did not admit Maiden's pre-trial statement into evidence, and since Maiden's
trial testimony did not connect appellant with the crime, no prejudice could have occurred.
NRS 178.598; cf. State v. Boyle, 49 Nev. 386, 248 P. 48 (1926).
[Headnote 4]
As his fourth assignment, appellant urges the trial court erred in admitting testimony
concerning an out-of-court experiment. The results were never admitted into evidence, a
decision largely within the court's discretion. Wrenn v. State, 89 Nev. 71, 506 P.2d 418
(1973); Smith v. State, 87 Nev. 84, 482 P.2d 302 (1971). Still, appellant claims prejudice
because the court allowed certain foundational testimony before excusing the jury. Appellant
cites no authority for his position; the court carefully instructed the jury not to speculate what
the witness might have testified; the foundational testimony by itself was substantially
without meaning.
itself was substantially without meaning. Again, we perceive no prejudice to appellant. NRS
178.598.
Appellant's fifth and sixth assignments of error concern testimony of Larry Reinema, a
rebuttal witness for the State. Particularly, appellant contends the trial court should have
excluded Reinema's testimony sua sponte, without an objection, because of a failure to
give proper notice to the defense. See: NRS 174.087. Also, appellant contends the court erred
by admitting two of Reinema's telephone bills without a proper foundation under the business
record exception to the hearsay rule. See: NRS 51.135.
As part of its case in chief, apparently to show an alibi, the defense had called Tim Grimm,
who testified that on the day of the murder, he had sold appellant heroin at a house in Van
Nuys, California. Grimm testified he made several phone calls to insure appellant was not a
narcotics agent. To rebut this testimony, the prosecutor called Reinema, owner of the Van
Nuys house, who stated that he knew Grimm but that Grimm was not staying at his house on
the day of the murder. Over objection of defense counsel, the court admitted two telephone
bills covering the time in question, showing two long distance calls on the day of the murder,
which Reinema testified he placed himself.
[Headnotes 5, 6]
Appellant cites no pertinent authority for his contention that Reinema's testimony should
have been excluded sua sponte. Since no objection was lodged, we decline to consider this
issue on appeal. Tucker v. State, 86 Nev. 354, 469 P.2d 62 (1970); Mears v. State, 83 Nev. 3,
422 P.2d 230 (1967). (We note, in passing, that the record reflects Douglas Reinertson, an
investigator for the public defender's office, interviewed Reinema approximately three weeks
prior to trial.) Moreover, assuming Reinema's testimony about the telephone bills related to
hearsay, we perceive no substantial harm to appellant. At the very most, such bills reflected
only that Grimm made no toll call from the Van Nuys house on the day in question. Inasmuch
as Grimm had not referred to toll calls, evidence negating toll calls did not materially
diminish the credibility of appellant's case.
In our opinion, appellant's claims of prosecutorial misconduct are totally without merit.
Affirmed.
____________
91 Nev. 469, 469 (1975) Webb v. State
MICHAEL D. WEBB, Appellant, v. THE STATE
No. 7993
July 14, 1975 538 P.2d 164
Appeal from a judgment of conviction based upon a plea of guilty, entered in the First
Judicial District Court, Carson City; Frank B. Gregory, Judge.
Defendant was convicted in the district court of illegal use of amphetamine and he
appealed. The Supreme Court held that if information was properly filed, attorney general
was empowered to conduct the prosecution of the case; and that, defendant, who had entered
a plea of guilty, could not complain of events preceding the plea such as deputy attorney
general's signing of the information or attorney general's prosecuting of the case.
Affirmed.
1. Attorney General; Indictment and Information.
If information was properly filed by or on behalf of district attorney, attorney general was empowered to
conduct the prosecution of the case and deputy attorney general could properly sign the information. NRS
228.120, subd. 3.
2. Criminal Law.
Where defendant entered plea of guilty, he could not be heard to complain on appeal of events preceding
the plea including deputy attorney general's signing of the information and attorney general's prosecuting of
the case. NRS 228.120, subd. 3.
3. Criminal Law.
Guilty plea represents a break in the chain of events which have preceded it in the criminal process; when
defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is
charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights
which occurred prior to entry of the guilty plea.
OPINION
Per Curiam:
[Headnote 1]
By reason of a guilty plea entered July 16, 1974, appellant stands convicted of the crime of
illegal use of amphetamine, a felony. He was sentenced to serve 2 years in the Nevada State
Prison.
91 Nev. 469, 470 (1975) Webb v. State
State Prison. In this appeal, he argues that we should reverse because (1) a deputy attorney
general signed the information upon which he entered his guilty plea, and (2) the attorney
general's office had no authority to proceed with the prosecution of the case, which resulted in
a negotiated plea, citing Ryan v. District Court, 88 Nev. 638, 503 P.2d 842 (1972). In Ryan,
88 Nev. at 641, 503 P.2d at 843, this court said, . . . he [the attorney general] simply is not
empowered to initiate a prosecution by information independent of the district attorney. In
the case at bar, the record does not tell us whether the attorney general was acting for the
district attorney or independent of him; for appellant, with the approval of his counsel, chose
to accept the signature on the information as valid and indeed, through his counsel, negotiated
a plea to the charge contained therein. If the information was properly filed, the attorney
general was empowered to conduct the prosecution of the case.
1
See Junior v. State, 91 Nev.
439, 537 P.2d 1204 (1975).
[Headnote 2]
Additionally, in Webb's case he entered a plea of guilty, and he may not now be heard to
complain of events preceding that plea. As the High Court ruled in Tollett v. Henderson, 411
U.S. 258, 267 (1973):
[Headnote 3]
. . . [A] guilty plea represents a break in the chain of events which has preceded it in the
criminal process. When a criminal defendant has solemnly admitted in open court that he is in
fact guilty of the offense with which he is charged, he may not thereafter raise independent
claims relating to the deprivation of constitutional rights that occurred prior to the entry of the
guilty plea. . . . See also Cline v. State, 90 Nev. 17, 518 P.2d 159 (1974), and Bounds v.
Warden, 91 Nev. 428, 537 P.2d 475 (1975).
Affirmed.
____________________

1
NRS 228.120(3):
The attorney general shall have the power:
. . .
3. To appear in and to take exclusive charge of and to conduct any prosecution in any court of this state for
a violation of any law of this state, when in his opinion it is necessary, or when requested to do so by the
governor.
____________
91 Nev. 471, 471 (1975) Marquez v. State
EUGENE M. MARQUEZ, Appellant, v. THE STATE
No. 7428
July 23, 1975 538 P.2d 156
Appeal from judgment of conviction, Second Judicial District Court, Washoe County;
Grant L. Bowen, Judge.
Defendant was convicted in the district court on two separate counts of robbery, and he
appealed. The Supreme Court held that where defendant failed to demonstrate any error in
determination of trial judge that photographic lineup was properly conducted, subsequent
identification of defendant at preliminary examination would not be deemed tainted; the
Court also held that evidence failed to establish purposeful and systematic discrimination
against women even though defendant was tried before a jury selected from an all male jury
panel.
Affirmed.
1. Criminal Law.
Lack of counsel at a lineup did not infringe upon defendant's constitutional rights.
2. Criminal Law.
Where defendant failed to demonstrate any error in determination of trial judge that photographic lineup
was properly conducted, subsequent identification of defendant at preliminary examination would not be
deemed tainted.
3. Jury.
A jury must constitute a segment of the community within the concept that the jury shall be drawn from a
cross-section of the community, however, absence of representation of certain groups on a particular panel
does not, of itself, infringe on right to a fair and impartial jury.
4. Jury.
Systematic exclusion of members of a race or class may taint a jury.
5. Jury.
Purposeful discrimination in jury selection may not be assumed and to establish such
discrimination it is necessary to make a factual showing of systematic and purposeful
exclusion of group purportedly being discriminated against, and facts showing
irregularity should be distinctly shown in the record.
and to establish such discrimination it is necessary to make a factual showing of systematic and purposeful
exclusion of group purportedly being discriminated against, and facts showing irregularity should be
distinctly shown in the record.
6. Jury.
Evidence failed to establish purposeful and systematic discrimination against women even though
defendant was tried before a jury selected from an all male jury panel.
OPINION
Per Curiam:
A jury found Eugene M. Marquez guilty on two separate counts of robbery (NRS 200.380)
and he is now incarcerated in the Nevada State Prison.
In this appeal, the opening brief was prepared and filed by counsel in compliance with the
requirements of Anders v. California, 386 U.S. 738 (1967), and Sanchez v. State, 85 Nev. 95,
450 P.2d 793 (1969). Marquez also personally filed a supplement to his counsel's brief.
A prosecution witness, who was unable to identify Marquez from a photographic lineup
which was conducted prior to the time the instant charges were lodged, positively identified
Marquez at the preliminary examination.
Marquez then filed a pretrial motion to suppress any in-court identification. The motion
was denied and on appeal Marquez alleges his constitutional rights were infringed because
(1) he was not represented by counsel at the lineup; and (2) the lineup was so impermissibly
suggestive that any subsequent identification would be tainted.
[Headnote 1]
1. In view of the decision in Kirby v. Illinois, 406 U.S. 682 (1972), and our opinion in
Baker v. State, 88 Nev. 369, 498 P.2d 1310 (1972), the lack of counsel at the lineup did not
infringe upon appellant's constitutional rights.
[Headnote 2]
2. The trial judge determined the photographic lineup was properly conducted and
Marquez has failed to demonstrate any error in that determination. Kirby, supra; Baker,
supra, and cases cited therein.
3. Marquez also suggests his conviction should be reversed because the trial court denied
his motion to dismiss the all-male jury panel. His argument was that in a prior trial for the
same offenses, which resulted in a hung jury, there had been 14 men and 12 women on the
panel and the absence of any women on the second panel was prejudicial.
14 men and 12 women on the panel and the absence of any women on the second panel was
prejudicial.
[Headnotes 3, 4]
A jury must constitute a segment of the community within the concept that the jury shall
be drawn from a cross-section of the community. Bean v. State, 86 Nev. 80, 465 P.2d 133
(1970). However, the absence of representation of certain groups on a particular jury panel
does not, of itself, infringe on the right to a fair and impartial jury. It is the systematic
exclusion of members of a race or class that may taint a jury. Collins v. State, 88 Nev. 9, 492
P.2d 991 (1972).
[Headnotes 5, 6]
There was no evidence offered by Marquez to even suggest the selection of jurors in
Washoe County purposely and systematically discriminated against women. Purposeful
discrimination may not be assumed, or merely asserted. It is necessary to make a factual
showing of the systematic and purposeful exclusion of the group purportedly being
discriminated against. Swain v. Alabama, 380 U.S. 202 (1965). Facts showing irregularity
should be distinctly shown in the record. State of Nevada v. Roderigas, 7 Nev. 328 (1872). If
there was no evidence offered in support of the challenge, . . . it should have been disallowed
as a matter of course. State of Nevada v. Rigg, 10 Nev. 284, 289 (1875).
Affirmed.
____________
91 Nev. 473, 473 (1975) Odom v. State
JOHN BENJAMIN ODOM, Appellant, v. THE
No. 7796
July 23, 1975 538 P.2d 167
Appeal from a judgment of conviction, Eighth Judicial District Court, Clark County; John
F. Mendoza, Judge.
Defendant was convicted in the district court of one count of burglary and one count of
larceny, and he appealed. The Supreme Court held that where, when trial court refused to
allow challenge for cause to a juror who was later excused peremptorily, there remained no
one on the jury whom defendant had challenged for cause when he later exhausted his
peremptory challenges, the Supreme Court would not decide whether the trial court erred in
denying the challenge for cause.
Affirmed.
91 Nev. 473, 474 (1975) Odom v. State
Morgan D. Harris, Public Defender, and Howard N. Ecker, Deputy Public Defender,
Robert List, Attorney General; George E. Holt, District Attorney, and Dan M. Seaton,
Criminal Law.
Where, although defendant exhausted his peremptory challenges, there remained no one on jury
whom defendant had challenged for cause, Supreme Court would not consider defendant's contention that
prejudicial error was committed when trial judge refused to allow challenge for cause to juror who was
later excused peremptorily.
OPINION
Per Curiam:
A jury found John Benjamin Odom guilty on one count of burglary and one count of
larceny. On appeal he contends that prejudicial error was committed when the trial judge
refused to allow a challenge for cause to one of the jurors who was later excused
peremptorily.
Although the appellant later exhausted his peremptory challenges, there remained no one
on the jury whom the appellant had challenged for cause. In Mears v. State, 83 Nev. 3, 12,
422 P.2d 230, 235-236 (1967), where the identical issue was raised, we refused to decide
whether the trial court erred in denying the challenge for cause. See also State of Nevada v.
Raymond, 11 Nev. 98 (1876). Cf. Bryant v. State, 72 Nev. 330, 305 P.2d 360 (1956).
Applying the rationale of Mears v. State, supra, we affirm.
____________
91 Nev. 474, 474 (1975) Hayden v. State
LAWRENCE FRANKLIN HAYDEN, Appellant, v.
No. 7799
July 23, 1975 538 P.2d 583
Appeal from judgment of conviction and sentence, Eighth Judicial District Court, Clark
County; Clarence Sundean Judge.
Defendant was convicted in the district court of robbery and he appealed.
he appealed. The Supreme Court held that evidence sustained conviction.
Affirmed.
Morgan D. Harris, Public Defender, and Theodore J. Manos, Deputy Public Defender,
Robert List, Attorney General, George Holt, District Attorney, and Daniel M. Seaton,
1. Robbery.
Evidence, including testimony of motel manager that defendant came into motel office about midnight,
stated he was desperate, and said I want your money, was sufficient to sustain conviction of robbery.
NRS 200.380.
2. Robbery.
Evidence, including testimony of motel desk clerk that she was very frightened and gave defendant
money after he came into office late at night and said he had to rob her, sustained robbery conviction.
NRS 200.380.
3. Criminal Law.
Prosecutor's remarks during argument could not be complained of for first time on appeal.
OPINION
Per Curiam:
Lawrence Franklin Hayden was convicted of robbing two Las Vegas Motels and is now
incarcerated, under concurrent five year sentences, in the Nevada State Prison.
[Headnotes 1, 2]
In asking us to reverse, his central contention is that the convictions cannot stand because
there was no proof that he used a gun or other weapon or that either of the crimes were
perpetrated via the use of . . . violence or fear of injury, as contemplated by NRS 200.380.
The contention is without merit.
Mrs. Strum, co-owner and manager of Travelodge Motel, testified that Hayden came into
the motel office about midnight, October 13, 1973, stated he was desperate and said: I want
your money. She gave Hayden the money from the cash drawer, noting she could only see
one of his hands; that she was scared and afraid of what might happen; and, that she did not
know whether she was going to be tied up or killed.
Mrs. Ard, working alone as the desk clerk at the Downtowner Motel, testified that she was
very frightened and gave Hayden money after he came into the office about 3:25 a.m.,
Hayden money after he came into the office about 3:25 a.m., October 16, 1973, and said he
had to rob her. She said: You must be kidding, Hayden replied: No, lady, I'm not kidding .
. . Don't try anything funny.
1. Robbery is felonious and violent taking away from the person of another, goods or
money to any value, putting him in fear. 1 Hawkins' Pleas of the Crown 212 (8th Ed. 1824).
This definition was carried forward in IV Cooley's Blackstone 1404 (4th Ed. 1899), and
recognized by this court in State v. Luhano, 31 Nev. 278, 284, 102 P. 260, 262 (1909),
wherein we said: It is unnecessary to prove both violence and intimidation. * * * If the fact
be attended with circumstances of terror, such threatening word or gesture as in common
experience is likely to create an apprehension of danger and induce a man to part with his
property for the safety of his person, it is robbery.' It is not necessary to prove actual fear, as
the law will presume it in such a case.
1

[Headnote 3]
2. Hayden also complains for the first time on appeal, about some of the prosecutor's
remarks during jury argument.
Since the prosecutor's remarks were not considered serious enough to provoke timely
objection by defense counsel, they will not be considered at this time. Bonnenfant v. State, 86
Nev. 393, 469 P.2d 401 (1970). We need not consider if the remarks were either improper or
prejudicial, because the failure to move to strike, move for a mistrial, assign misconduct or
request an instruction, will preclude appellate consideration. See Clark v. State, 89 Nev. 392,
513 P.2d 1224 (1973), and cases cited therein. Walker v. State, 89 Nev. 568, 569, 516 P.2d
739 (1973).
Affirmed.
____________________

1
The robbery statute in effect in 1909 (Comp. Laws, 4714) has, by legislative amendments, been rewritten
and expanded into its current form; nevertheless, the rationale enunciated in Luhano is equally applicable to
NRS 200.380. Compare: 1911 C&P 162; RL 6427; NCL 10109; Stats. of Nev. 1961, p. 53; Stats. of Nev.
1967, p. 470.
____________
91 Nev. 477, 477 (1975) Hankins v. State
THURMAN HANKINS, Appellant, v. THE STATE
No. 7800
July 23, 1975 538 P.2d 167
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Joseph
S. Pavlikowski, Judge.
Defendant was convicted before the district court of rape, infamous crime against nature
and burglary, and he appealed. The Supreme Court held that evidence was sufficient to
support jury verdict on rape charge, notwithstanding defendant's testimony that victim
consented to sexual act.
Affirmed.
Morgan D. Harris, Public Defender, and Robert D. Larsen, Deputy Public Defender,
Robert List, Attorney General; George E. Holt, District Attorney, and Dan M. Seaton,
1. Criminal Law.
When there is conflicting testimony presented, it is for jury to determine what weight and credibility to
give to the testimony.
2. Criminal Law.
Where there is substantial evidence to support a verdict in a criminal case, reviewing court will not
disturb the verdict nor set aside the judgment.
3. Rape.
Notwithstanding defendant's testimony that victim consented to sexual act, evidence sustained conviction
of rape.
OPINION
Per Curiam:
Thurman Hankins was convicted by a jury of rape, infamous crime against nature and
burglary. His sole contention on appeal is that there was insufficient evidence to support the
jury verdict on the rape charge.
Although Hankins testified that the victim consented to the sexual act, the jury chose to
believe the prosecution witnesses, and not Hankins' version of the incident.
[Headnotes 1-3]
When there is conflicting testimony presented, it is for the jury to determine what weight
and credibility to give to the testimony. Where there is substantial evidence to support a
verdict in a criminal case, as the record indicates in this case, the reviewing court will not
disturb the verdict nor set aside the judgment."
91 Nev. 477, 478 (1975) Hankins v. State
verdict in a criminal case, as the record indicates in this case, the reviewing court will not
disturb the verdict nor set aside the judgment. Sanders v. State, 90 Nev. 433, 529 P.2d 206
(1974). See also, Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (1972); Crowe v. State, 84 Nev.
358, 441 P.2d 90 (1969).
Affirmed.
____________
91 Nev. 478, 478 (1975) Westenbarger v. State
DEREK WESTENBARGER, Appellant, v. THE
No. 7897
July 23, 1975 537 P.2d 1195
Appeal from judgment of conviction and sentence. Eighth Judicial District Court, Clark
Defendant was convicted in the district court of rape and robbery and he appealed. The
Supreme Court held that no error was shown in not permitting counsel to read magazine
article during final summation, where there had been neither a request to introduce the article
in evidence nor any expert testimony as to the veracity of the contents thereof.
Affirmed.
Morgan D. Harris, Public Defender, and Joseph T. Bonaventure, Deputy Public Defender,
Robert List, Attorney General; George Holt, District Attorney, and Dan M. Seaton, Deputy
District Attorney, Clark County, for Respondent.
1. Criminal Law.
Where there was substantial evidence to support verdict in prosecution for rape and robbery, reviewing
court would not disturb the same.
2. Criminal Law.
No error was shown in not permitting counsel to read magazine article during final summation, where
there had been neither a request to introduce the article in evidence nor any expert testimony as to the
veracity of the contents thereof.
OPINION
Per Curiam:
A jury found Derek Westenbarger guilty of rape and robbery and he is now incarcerated in
the Nevada State Prison.
In this appeal Westenbarger's principal contentions suggest we should reverse his
conviction because: {1) there is insufficient evidence to support the verdict; {2) his
counsel was not permitted to argue matters that were not in evidence; and {3) the
photographic line-up conducted prior to the time he was charged was impermissibly
suggestive.
91 Nev. 478, 479 (1975) Westenbarger v. State
we should reverse his conviction because: (1) there is insufficient evidence to support the
verdict; (2) his counsel was not permitted to argue matters that were not in evidence; and (3)
the photographic line-up conducted prior to the time he was charged was impermissibly
suggestive.
[Headnote 1]
1. Where there is substantial evidence to support a verdict in a criminal case, as the
record indicates exists in this case, the reviewing court will not disturb the verdict nor set
aside the judgment. Sanders v. State, 90 Nev. 433, 434, 529 P.2d 206, 207 (1974).
[Headnote 2]
2. During final summation to the jury the trial judge permitted appellant's counsel to argue
that many convictions have resulted from mistaken identification; however, the judge rejected
a request that counsel be permitted to read an article on identification from an issue of Time
Magazine, noting that there had neither been a request to (a) introduce the article in evidence,
nor (b) to have any expert testify as to the veracity of the content of the article. Although
appellant contends exclusion of the article was error, he has cited no authority in direct
support of the contention; accordingly, it is rejected.
3. The contention that the photographic line-up was impermissibly suggestive finds no
support in this record. Kirby v. Illinois, 406 U.S. 682 (1972); Baker v. State, 88 Nev. 369,
498 P.2d 1310 (1972). Other contentions are equally without merit.
____________
91 Nev. 479, 479 (1975) Nichols v. Nichols
SUSAN K. NICHOLS, Appellant, v. KENNETH
J. NICHOLS, Respondent.
No. 7972
July 23, 1975 537 P.2d 1196
Appeal from judgment and decree of divorce awarding custody of a minor child to the
father. First Judicial District Court, Carson City; Frank B. Gregory, Judge.
The Supreme Court held that trial court erred in failing to make finding as to unfitness of
mother or that it was in child's best interest to be placed with father, but error did not require
the case to be remanded where statements of trial judge in record clearly indicated that if
case were remanded for that determination he would do so.
record clearly indicated that if case were remanded for that determination he would do so.
Affirmed.
Victor Alan Perry, of Carson City, for Appellant.
Kenneth J. Jordan, of Carson City, for Respondent.
1. Divorce.
Matters of custody and support of minor child of parties to divorce action rest in sound discretion of trial
court.
2. Divorce.
Exercise of discretion of trial court with respect to matters of custody and support of minor child of
parties to divorce action will not be disturbed on appeal unless clearly abused.
3. Divorce.
It will be presumed that trial court properly exercised its judicial discretion in determining what is for
best interest of child of parties to divorce action with respect to matters of custody and support.
4. Divorce.
Tender years doctrine was not applicable in divorce case involving custody of 21/2-year-old child, in
view of evidence of mother's adultery and immaturity.
5. Divorce.
Trial court erred in failing to make finding as to unfitness of mother in divorce case involving custody of
2 1/2-year-old child or that it was in child's best interest to be placed with father as ordered, but error did
not require the case to be remanded where statements of trial judge in record clearly indicated that if case
were remanded for that determination he would do so.
OPINION
Per Curiam:
The sole issue raised on appeal from the judgment and decree of divorce as to Susan K.
Nichols, appellant, and Kenneth J. Nichols, respondent, is that absent a finding in the court's
findings of fact, conclusions of law and judgment of divorce of unfitness on the mother's part
or that it was in the child's best interest to be placed with the father, did the trial court err in
granting custody of the 2 1/2-year-old child to the father under this court's holding in Peavey
v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969)?
[Headnotes 1-3]
This court has consistently held that matters of custody and support of a minor child of the
parties to a divorce action rests in the sound discretion of the trial court, the exercise of which
will not be disturbed on appeal unless clearly abused; Culbertson v. Culbertson, 91 Nev. 230,
533 P.2d 768 (1975); Noble v. Noble, S6 Nev. 459, 470 P.2d 430 {1970); Fenkell v. Fenkell,
S6 Nev. 397, 469 P.2d 701 {1970); Peavey v. Peavey, supra; and that it will be presumed
that the trial court properly exercised its judicial discretion in determining what is for the
best interest of the child. Culbertson v. Culbertson, supra; Howe v.
v. Noble, 86 Nev. 459, 470 P.2d 430 (1970); Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701
(1970); Peavey v. Peavey, supra; and that it will be presumed that the trial court properly
exercised its judicial discretion in determining what is for the best interest of the child.
Culbertson v. Culbertson, supra; Howe v. Howe, 87 Nev. 595, 491 P.2d 38 (1971); Noble v.
Noble, supra.
[Headnote 4]
In Peavey v. Peavey, supra, we held that the law favors the mother if she is a fit and proper
person to have custody of the children, other things being equal, and that this would be taken
into consideration in determining if the trial court had abused its discretion. Unlike the record
on appeal before the court in Peavey, the record here clearly indicates things were not equal
based on the appellant's adultery and immaturity; thus precluding application of the tender
years doctrine and in support of the award of custody under our holding in Culbertson v.
Culbertson, supra.
[Headnote 5]
The fact that the trial court made no finding as to unfitness on the mother's part or that it
was in the child's best interest to be placed with the father, although error, does not require
that the case be remanded. The statements of the trial judge in the record
1
clearly indicate
that if this case were remanded for that determination he would do so.
Affirmed.
____________________

1
I am satisfied in this case that the welfare of the child will be best served by placing the custody with the
father. Perhaps I am old-fashioned. Perhaps I shall be judged as a square, as an ultra-conservative but I cannot
accept the condition under which the defendant is now living as affording a suitable home for a child two and a
half years old.
It has been pointed out that these are the formative years. These are the years when a child learns habits,
custom, morals, if you will, that will stay with it the rest of its life.
I have considered all of the circumstances of the case. I have considered Dr. Whittemore's report and I have
also considered the fact that he heard only one side of this story. He had before him for testing Mrs. Nichols and
I will accept his test as being accurate so far as it went but there are many, many facts and facets to this case that
were brought out here in Court which were not available to the doctor. The Court recognizes that the defendant
on at least one and I think two occasions walked off and left her child. She has made efforts to regain custody.
For that I give her credit but at the same time she comes into this Court and flaunts her adultery before the Court.
There is even considerable doubt from the evidence that she will marry her paramour. She impresses the Court
as being a little girl who is playing with sex but has not matured sufficiently to be a mother to this child.
____________
91 Nev. 482, 482 (1975) Lightford v. State
CALVIN CHESTER LIGHTFORD, Appellant, v. THE
No. 7917
July 23, 1975 538 P.2d 585
Appeal from order of Eighth Judicial District Court, Clark County, denying motion for
new trial; Joseph S. Pavlikowski, Judge.
Defendant's motion for new trial on the ground of newly discovered evidence was denied
by the district court and defendant appealed. The Supreme Court held that evidence that
defendant, who was convicted of possession of heroin, was merely furnished the opportunity
for the commission of the offense by husband of person to whom defendant had recently
furnished narcotics on five or six occasions did not entitle defendant to new trial on ground of
newly discovered evidence of entrapment.
Affirmed.
Raymond E. Sutton, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George Holt, District Attorney, and Dan M.
1. Criminal Law.
Granting a new trial in criminal cases on the ground of newly discovered evidence is largely discretionary
with the trial court and that court's determination will not be reversed on appeal unless abuse of discretion
is clearly shown.
2. Criminal Law.
To establish basis for new trial, newly discovered evidence must be newly discovered, material to the
defense, such that it could not, with reasonable diligence, have been discovered and produced for trial, not
cumulative, such as to render a different result probable upon retrial, not based upon contradiction or
impeachment of a former witness unless the witness impeached is so important that a different result must
follow, and the best evidence of which the case admits.
3. Criminal Law.
Entrapment is the seduction or improper inducement to commit a crime for purpose of instituting a
criminal prosecution.
4. Criminal Law.
Newly discovered evidence which showed that defendant, who was convicted of unlawful possession of
heroin, was merely furnished with an opportunity to commit the crime by husband of person to whom
defendant had furnished narcotics on at least five or six occasions did not entitle defendant to
new trial on ground of newly discovered evidence of entrapment.
or six occasions did not entitle defendant to new trial on ground of newly discovered evidence of
entrapment.
OPINION
Per Curiam:
Calvin Chester Lightford was originally convicted on two counts of unlawful possession
of heroin. On appeal, we affirmed the judgment of conviction for count one, but reversed as
to count two. Lightford v. State, 90 Nev. 136, 520 P.2d 955 (1974). Lightford thereafter filed
a motion for a new trial, predicated on the alleged ground that newly discovered evidence
showed that his arrest resulted from police entrapment involving an Elbert Williams, who
purchased the heroine from Lightford for Mrs. Williams' use.
[Headnotes 1, 2]
The granting of a new trial in criminal cases on the ground of newly discovered evidence
is largely discretionary with the trial court, and that court's determination will not be reversed
on appeal unless abuse of discretion is clearly shown. State v. Crockett, 84 Nev. 516, 444
P.2d 896 (1968); Burton v. State, 84 Nev. 191, 437 P.2d 861 (1968); Pacheco v. State, 81
Nev. 639, 408 P.2d 715 (1965). To establish this basis for a new trial, we stated in Oliver v.
State, 85 Nev. 418, 424, 456 P.2d 431, 435 (1969), that the newly-discovered evidence must
be (1) newly discovered, (2) material to movant's defense, (3) such that it could not with
reasonable diligence have been discovered and produced for the trial, (4) not cumulative, and
(5) such as to render a different result probable upon retrial. To which we add (6) that it does
not attempt only to contradict a former witness or to impeach or discredit him, unless witness
impeached is so important that a different result must follow, [citation omitted]; and (7) that
these facts be shown by the best evidence the case admits, [citations omitted].
[Headnotes 3, 4]
The record of the evidentiary hearing held on July 17, 1974, in the court below is not
supportive of Lightford's claim of entrapment. Elbert Williams testified that he had known
Lightford for the past 15 years and that he was aware that Lightford dealt in narcotics.
Williams stated that he telephoned Lightford on November 17 and December 22, 1971, and
asked him to get some narcotics for Mrs. Williams. Williams intended to pay Lightford for
the narcotics.
to pay Lightford for the narcotics. The defense of entrapment was defined by this court in In
re Wright, 68 Nev. 324, 329, 232 P.2d 398, 400 (1951): Entrapment is the seduction or
improper inducement to commit a crime for the purpose of instituting a criminal prosecution .
. . In Wyatt v. State, 77 Nev. 490, 493, 367 P.2d 104, 106 (1961), this court held that the
defense of entrapment is not available where the officer or other person acted in good faith
for the purpose of discovering or detecting a crime and merely furnished the opportunity for
the commission thereof by one who had the requisite criminal intent.' The evidence below
showed that Lightford was furnished with an opportunity to commit a crime. He was not
induced to do so against his will.
In Trice v. United States, 211 F.2d 513, 518 (9th Cir. 1954), citing Sorrells v. United
States, 287 U.S. 435, 441-442 (1932), the Court stated that:
. . . [a]rtifice and stratagem may be employed to catch those engaged in criminal
enterprises. * * * The appropriate object of this permitted activity, frequently essential to the
enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the
prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other
offenses, and thus to disclose the would-be violators of the law. A different question is
presented when the criminal design originates with the officials of the Government, and they
implant in the mind of an innocent person the disposition to commit the alleged offense and
induce its commission in order that they may prosecute.'. . .
Of particular note here is the fact that Lightford admitted to recently furnishing Mrs.
Williams with narcotics on at least five or six occasions. There was no evidence presented
that any of these transactions were the product of improper police conduct. His easy yielding
to Mr. Williams' request to furnish Mrs. Williams with narcotics, even though Mr. Williams
was then an informer, was tantamount to proof that he was predisposed and that he made the
transactions in the course of his willingness to deal illegally in narcotics.
There was no evidence of unlawful entrapment produced at the hearing below. Thus, since
a different result on retrial was not probable, the district judge acted properly in denying the
motion for new trial. Wrenn v. State, 91 Nev. 423, 537 P.2d 318 (1975).
Affirmed.
____________
91 Nev. 485, 485 (1975) Warden v. Craven
CAREY CRAVEN, Respondent.
No. 7723
JOSE FILIBERTO TORRES, Respondent.
No. 7724
July 23, 1975 537 P.2d 1198
Appeal from order granting respondents' petition to withdraw guilty pleas, entered in the
First Judicial District Court, Carson City; Frank B. Gregory, Judge.
The Supreme Court held that trial court's finding that defendants had pled guilty in
reliance on a sentence of probation, fostered by an unintentional inference of probation
supplied by public defender, did not constitute an abuse of discretion.
Affirmed.
Victor Alan Perry, Carson City, for Respondents.
Criminal Law.
Trial court's finding that defendants had pled guilty in reliance on a sentence of probation, fostered by
an unintentional inference of probation supplied by public defender, did not constitute an abuse of
discretion. NRS 174.035, 176.165.
OPINION
Per Curiam:
Craven and Torres, respondents, were charged with multiple felony offenses. Initially, they
pled not guilty to all charges, but later entered guilty pleas to the charge of burglary, as a
result of plea negotiations, and the remaining charges were dismissed. Thereafter,
respondents sought to set aside their pleas as involuntary. Their petition was summarily
denied. On appeal, we reversed and remanded with instructions to conduct an evidentiary
hearing. After conducting the hearing, the district judge found that the pleas had been entered
involuntarily and ordered that respondents be permitted to plead anew. Appellant claims that
the finding below was erroneous; hence, this appeal.
91 Nev. 485, 486 (1975) Warden v. Craven
The district judge predicated his finding that respondents' pleas were involuntary on the
fact that respondents acted upon an inference of probation supplied by their attorney, the
public defender.
1
We have reviewed the record, and the evidence is conflicting. The public
defender asserts he did not in any way urge his clients to plead guilty with a promise of
probation. On the other hand, respondents and their lady friends maintain that a promise was
offered. NRS 176.165 permits a defendant to withdraw a guilty plea after sentencing. While
we do not wish to suggest that a guilty plea may be rendered involuntary per se because of an
alleged subjective reliance by a defendant on counsel's innuendo as to sentence,
2
we are
constrained to affirm the ruling of the district judge in the instant case. The trial court judge,
as the fact finder, has heard and observed the witnesses, and we cannot rule as a matter of law
that his finding that respondents pled in reliance on a sentence of probation, fostered by
counsel, constitutes abuse of discretion. See Snug Harbor Ass'n v. State, 444 P.2d 249
(Okla.Cr.App. 1968); State v. Sorenson, 73 Nev. 218, 315 P.2d 508 (1957).
Affirmed.
____________________

1
The following characterizes the finding of the court:
Good cause appearing, the Court finds that the colloquy between the petitioners and their counsel before
entry of the formers' pleas of guilty to a charge of burglary revealed an inference of probation to petitioners.
That such inference of probation, and petitioners' subsequent guilty pleas based thereon, were constitutionally
insufficient within the purview and purpose of NRS 174.035.
The Court specifically finds, however, that any inference of probation by petitioners' appointed counsel was
unintentional and not deliberate by said counsel; additionally, the Court finds that the plea bargain struck
between petitioners' counsel and the opposing District Attorney was not breached. The court only finds and
determines that there was an innuendo and inference between the court appointed counsel and petitioners that if
the latter individuals entered a plea of guilty to one count of burglary, they would receive probation. . . .

2
See United States ex rel. LaFay v. Fritz, 455 F.2d 297 (2d Cir. 1972), at 303, where the court said:
Insofar as Thurmond may indicate that voluntariness of plea depends upon a defendant's belief (the
subjective test) that a promise of a particular sentence has been made, although in fact there was no such
promise, would seem to be contrary to the law of this circuit.
____________
91 Nev. 487, 487 (1975) Brackenbrough v. State
KEITH L. BRACKENBROUGH, Appellant, v. THE
No. 7862
July 23, 1975 537 P.2d 1194
Appeal from judgment of conviction entered upon jury verdict; Second Judicial District
Court, Washoe County; James J. Guinan, Judge.
The Supreme Court held that where defendant did not direct attention to anything in record
of trial to support claim of ineffective counsel but instead relied solely upon assertions made
in letter defendant wrote to presiding judge following conviction, Supreme Court on direct
appeal could not credit such letter and assertions therein contained.
Affirmed.
Halley and Halley, of Reno, for Appellant.
Larry R. Hicks, District Attorney, and Kathleen M. Wall, Assistant Chief Deputy District
Attorney, Washoe County, for Respondent.
Criminal Law.
Where defendant did not direct attention to anything in record of trial to support claim of ineffective
counsel but instead relied solely upon assertions made in letter he wrote to presiding judge following
conviction, on direct appeal, Supreme Court could not credit such letter and assertions therein contained
and therefore affirmed conviction of defendant, who could pursue remedy accorded by Post-Conviction
Act and thus obtain appropriate consideration of claim of ineffective counsel. NRS 177.315-177.385.
OPINION
Per Curiam:
Claiming ineffective counsel, Brackenbrough asks us to annul his conviction. He does not
direct our attention to anything in the record of the trial to support his claim, but instead,
relies solely upon assertions made in a letter he wrote to the presiding judge following
conviction. On this direct appeal, we cannot credit such letter and the assertions therein
contained. He may, of course, pursue the remedy accorded by the Post-Conviction Act, NRS
177.315-385, and obtain appropriate consideration of his claim of ineffective counsel. His
other claimed error is without merit.
Affirmed.
____________
91 Nev. 488, 488 (1975) Myers v. Myers
SALLY H. MYERS, Appellant, v. RICHARD
W. MYERS, Respondent.
No. 7888
July 23, 1975 537 P.2d 1194
Appeal from order modifying child support provision of divorce decree; Eighth Judicial
A divorced mother appealed from an order of the district court reducing the father's
decreed obligation to pay child support from $220 per month per child to $170 per month per
child. The Supreme Court held that the trial court did not abuse its discretion.
Affirmed.
Jack Lehman, of Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy & Jemison, Chartered, and Harry M. Reid, of Las Vegas, for
Respondent.
Divorce.
Trial court did not abuse its discretion in ordering divorced father's decreed obligation to pay child
support reduced from $220 to $170 per month per child.
OPINION
Per Curiam:
This appeal is from an order reducing a divorced father's decreed obligation to pay child
support from $220 per month per child to $170 per month per child for the period
commencing June 15, 1975, to June 15, 1981. The appellant mother asserts that the record
does not show a change of circumstances warranting reduction. Our review of the record,
however, does not reveal an abuse of judicial discretion as that phrase is defined in Goodman
v. Goodman, 68 Nev. 484, 236 P.2d 305 (1951).
Affirmed.
____________
91 Nev. 489, 489 (1975) Coombs v. State
SHIRLEY ANN COOMBS, Appellant, v. THE
No. 7329
July 23, 1975 538 P.2d 162
Appeal from conviction for voluntary manslaughter, Eighth Judicial District Court, Clark
The Supreme Court held that circumstances were insufficient to place deceased's character
in issue and thus there was no error in excluding evidence of victim's violent character.
Affirmed.
Robert List, Attorney General, and George E. Holt, District Attorney, Clark County, for
Respondent.
1. Homicide.
Character evidence is no exception to rule that evidence must be relevant to be admissible. NRS
48.025, subd. 2, 48.045.
2. Homicide.
Where there was nothing to excite fear of immediate injury in defendant beyond abusive language and a
conditional threat unarmed victim uttered before leaving defendant's back door, and yet defendant armed
herself, unnecessarily left safety of her locked dwelling, proceeded into yard to confront victim and shot
her six times, the first shot fired at a distance of at least ten feet, there was no error in excluding evidence
of victim's violent character. NRS 48.025, subd. 2, 48.045.
OPINION
Per Curiam:
Charged with the killing of Ava Rapp and convicted of voluntary manslaughter, appellant
contends the lower court erred in excluding evidence of the victim's violent character. We
disagree.
The morning of her death, Mrs. Rapp telephoned Richard Smith, requesting a ride to
appellant's house where she was living. Mrs. Rapp then called appellant, who advised Rapp
that she was no longer welcome, and that her belongings were packed in her car. Smith drove
Rapp to appellant's house, and waited while she went to the door. Refusing to unlock the
door, appellant asked Rapp to leave. Rapp returned to Smith's car, and asked him to wait
while she started her car, but rather than going to her car, Rapp returned toward the house.
91 Nev. 489, 490 (1975) Coombs v. State
than going to her car, Rapp returned toward the house. Appellant obtained a pistol from her
bedroom, loaded it, proceeded into the back yard, and shot Rapp six times.
Appellant admitted shooting the victim, but contended self defense, and now urges that the
trial court erred in excluding evidence of the victim's violent character, assertedly admissible
pursuant to NRS 48.045, which declares:
1. Evidence of a person's character or a trait of his character is not admissible for the
purpose of proving that he acted in conformity therewith on a particular occasion, except: . . .
(b) Evidence of the character or a trait of character of the victim of the crime offered by an
accused, and similar evidence offered by the prosecution to rebut such evidence; . . .
[Headnote 1]
Before any evidence is admissible, it must be relevant. NRS 48.025(2). Character evidence
is no exception. This court long ago stated, The character of the deceased can only be
brought in issue where the circumstances are such as to raise a doubt whether the homicide
was committed in malice or was prompted by the instinct of self-preservation. State v.
Pearce, 15 Nev. 188, 191 (1880). The court went on to say, Every case must, in this respect,
be gauged with reference to its own surroundings. Id. at 191-92.
[Headnote 2]
Here, we think the circumstances were insufficient to place the deceased's character in
issue. The record reflects nothing to excite fear of immediate injury in appellant, beyond
abusive language and a conditional threat Rapp uttered before leaving appellant's back door.
1
Notwithstanding this, appellant armed herself, unnecessarily left the safety of her locked
dwelling, proceeded into the yard to confront her unarmed victim, and shot her six times, the
first shot fired at a distance of at least ten feet. The trial court properly excluded the proffered
evidence. State v. Helm, 66 Nev. 286, 209 P.2d 187 (1949); State v. Pearce, cited above. Cf.
State v. Hoelzer, 493 S.W.2d 703 (Mo.App. 1973).
Affirmed.
____________________

1
According to witness Pam Fiefield, before Rapp walked away from appellant's back door, appellant told
Rapp, if she didn't have her stuff out of there by eight o'clock, that she was going to call the Salvation Army.
In response, Rapp told appellant, If you call that f---ing truck, . . . you better give your soul to God, because
your ass is mine. Appellant's testimony is consistent with the foregoing, and indicates that, thereafter, she
loaded her gun and shot Rapp.
____________
91 Nev. 491, 491 (1975) North American Life & Cas. v. Gingrich
NORTH AMERICAN LIFE AND CASUALTY COMPANY, Appellant,
v. DeANNE GINGRICH, Respondent.
No. 7718
July 23, 1975 538 P.2d 163
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Suit was brought on life policy. The district court entered judgment from which insurer
appealed. The Supreme Court held that where, after insured indicated a desire to surrender
life policy, insurer demanded its physical return and a witnessed, fully completed surrender
form, and insured never complied with insurer's demands, nor did insurer retreat from such
demands, prior to insured's death, such policy, which contained a provision permitting insurer
to require its surrender at time of payment of benefits, had not been effectively surrendered at
the of insured's death and was therefore in full force and effect.
Affirmed.
Rose, Norwood, Edwards & Hunt, Ltd., and Niels L. Pearson, Esq., Las Vegas, for
Appellant.
Edward Weinstein, Esq., Las Vegas, for Respondent.
1. Insurance.
Policies must be strictly construed against insurer and in favor of assured.
2. Insurance.
Where, after insured indicated a desire to surrender life policy, insurer demanded its physical return and a
witnessed, fully completed surrender form, and insured never complied with insurer's demands, nor did
insurer retreat from such demands, prior to insured's death, such policy, which contained provision
permitting insurer to require its surrender at time of payment of benefits, had not been effectively
surrendered at time of insured's death and was therefore in full force and effect.
OPINION
Per Curiam:
[Headnote 1]
Insurance policies must be strictly construed against the insurer and in favor of the
assured. Home Indem. Co. v. Desert Palace, Inc., 86 Nev. 234, 468 P.2d 19 (1970); Intercoast
Mutual v. Andersen, 75 Nev. 457, 345 P.2d 762 (1959).
91 Nev. 491, 492 (1975) North American Life & Cas. v. Gingrich
[Headnote 2]
In the instant case, the district court determined that the life policy in question had not
been effectively surrendered at the time of the insured's death, and that it therefore was in full
force and effect. This determination comported with the policy's language, strictly construed,
and was consistent with the way appellant's agents construed the policy, before it became
expedient to urge the courts to do otherwise.
1

Accordingly, we find no error in the district court's determination that there remained no
genuine issue of material fact, and that respondent was entitled to judgment as a matter of
law. NRCP 56; Moen v. Las Vegas Int'l Hotel, Inc., 90 Nev. 176, 521 P.2d 370 (1974); City
of Las Vegas v. Cragin Industries, 86 Nev. 933, 478 P.2d 585 (1970).
Affirmed.
____________________

1
The policy contained the following provision: Payments By The Company. All benefits under this Policy
are payable at the Home Office in Minneapolis, Minnesota. At the time of such payment the Company may
require the surrender of this Policy.
When the insured indicated a desire to surrender his policy, appellant demanded its physical return, and a
witnessed, fully completed surrender form. The deceased never complied with appellant's demands, nor did
appellant retreat from such demands, prior to his death.
____________
91 Nev. 492, 492 (1975) Garcia v. Warden
ANTONIO ALEX GARCIA, Appellant, v. WARDEN,
No. 8249
July 31, 1975 538 P.2d 160
The Supreme Court held that record of evidentiary hearing did not adequately show that
petitioner's guilty plea had been knowingly and voluntarily entered.
Antonio Alex Garcia, in pro per, Carson City.
91 Nev. 492, 493 (1975) Garcia v. Warden
Criminal Law.
Record of evidentiary hearing on motion for post-conviction relief did not adequately show that
petitioner's guilty plea had been knowingly and voluntarily entered.
OPINION
Per Curiam:
Antonio Alex Garcia pleaded guilty to a felony charge of grand larceny and was sentenced
to a term of five years in the Nevada State Prison.
This appeal is taken from an order summarily denying Garcia's pro se petition for
post-conviction relief in which he asserted that his guilty plea was not knowingly and
voluntarily entered.
It appears from the record that there is no need to appoint counsel or to require briefing as
the district court's decision denying relief was premature; the record of the evidentiary
hearing does not adequately show that Garcia's plea of guilty was indeed voluntary and
knowing. See Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403 (1973).
We reverse and remand with instructions to resolve Garcia's allegations in light of the
transcript of the trial court's canvass when the guilty plea was entered, and in the light of such
other evidence as either party may adduce upon evidentiary hearing.
The office of the State Public Defender is hereby appointed to represent Garcia in the
further proceedings.
____________
91 Nev. 493, 493 (1975) Lucas v. Page
WILLIAM J. LUCAS and ROGENE LUCAS, Appellants,
v. LEHMAN M. PAGE, Respondent.
No. 7744
July 31, 1975 538 P.2d 165
Appeal from order denying motion to file counterclaim, and from judgment on promissory
note, Eighth Judicial District Court Clark County; Thomas J. O'Donnell and James D.
Santini, Judges.
Suit was brought to recover on note. Defendants moved to file the counterclaim predicated
on a default judgment obtained against plaintiff's former wife by a corporation wholly owned
by defendants. The district court denied motion and entered judgment on note, and
defendants appealed.
91 Nev. 493, 494 (1975) Lucas v. Page
judgment on note, and defendants appealed. The Supreme Court held that summary judgment
in husband's favor in corporation's prior suit was res judicata of husband's liability and barred
defendants' right to relitigate such issue in instant suit.
Affirmed.
John Marshall, Las Vegas, for Appellants.
Ralph L. Denton, Las Vegas, for Respondent.
1. Judgment.
Summary judgment in favor of husband on issue of whether he was liable to corporation on default
judgment taken against his former wife was res judicata and barred relitigation thereof by owners of the
corporation by way of counterclaim in husband's suit to recover on note.
Where record supported findings of fact and conclusions of law, they would not be disturbed on appeal.
OPINION
Per Curiam:
The central issue in this appeal from a judgment on a promissory note is directed to the
trial court's order denying appellants' motion to file a counterclaim.
1
Appellants also contend
the evidence does not support the findings of fact and conclusions of law entered by the trial
court.
[Headnote 1]
1. The proposed counterclaim was predicated on a default judgment in the amount of
$33,363 obtained against respondent's former wife by Las Vegas Insurance Adjustors, Inc., a
corporation wholly owned by the appellants, William and Rogene Lucas.
Respondent's liability to the corporation on the $33,363 default judgment against his
former wife was exonerated by summary judgment in his favor, which was affirmed by this
court. See Las Vegas Insurance Adjustors v. Page, 88 Nev. 16, 492 P.2d 616 (1972).
Appellants offer no legal theory upon which they might, either in their individual capacity
or as stockholders of the corporation, have either an equal or different claim than the
____________________

1
Appellants had previously sought pretrial appellate resolution of the issue. See Lucas v. Page, 89 Nev. 248,
510 P.2d 868 (1973).
91 Nev. 493, 495 (1975) Lucas v. Page
corporation against respondent; and, since respondent's nonliability has already been
adjudicated appellants were barred under the doctrine of res judicata from trying to relitigate
the issue.
The general principle announced in numerous cases is that a right, question or fact
distinctly put in issue and directly determined by a court of competent jurisdiction, as a
ground of recovery, cannot be disputed in a subsequent suit between the same parties or their
privies; and even if the second suit is for a different cause of action, the right, question or fact
once so determined must, as between the same parties or their privies, be taken as
conclusively established, . . . Southern Pacific Railr'd v. United States, 168 U.S. 1, 48-49
(1897). Accord: Tomiyasu v. Golden, 81 Nev. 140, 400 P.2d 415 (1965); Smith v. Gray, 50
Nev. 56, 250 P. 369 (1926). See also, Baker v. Cummings, 181 U.S. 117 (1901); Kuiken v.
Garrett, 51 N.W.2d 149 (Iowa 1952); and, Pakas v. Hollingshead, 77 N.E. 40 (N.Y. 1906),
each of which hold the doctrine of res judicata applicable to a counterclaim or set-off.
[Headnote 2]
2. The record adequately supports the findings of fact and conclusions of law; therefore,
they will not be disturbed on appeal. See Western Indus., Inc. v. General Ins. Co., 91 Nev.
222, 533 P.2d 473 (1975), and cases cited therein.
Affirmed.
____________
JOHN ROBERT JACKSON, Appellant, v. WARDEN,
No. 7913
July 31, 1975 538 P.2d 584
Appeal from order denying petition for post-conviction relief, Second Judicial District
Court, Washoe County; Peter I. Breen, Judge.
The Supreme Court held that where the petitioner advanced no reasonable excuse or
explanation for failing to present the claims on direct appeal of his conviction, the claims
would not be considered, even though the petition was filed prior to the effective date of the
waiver statute.
Affirmed.
Horace R. Goff, State Public Defender, and Michael R.
Griffin, Deputy State Public Defender, Carson City, for Appellant.
Criminal Law.
Where petitioner advanced no reasonable excuse or explanation for failing to present on direct appeal
claims advanced for first time on petition for post-conviction relief, claims would not be considered, even
though petition was filed prior to effective date of waiver statute. NRS 177.375, subd. 2.
OPINION
Per Curiam:
In March, 1965, a jury convicted John Robert Jackson of murder in the first degree, and he
was sentenced to life imprisonment, with the possibility of parole.
The conviction was affirmed. See Jackson v. State, 84 Nev. 203, 438 P.2d 795 (1968),
which contains the factual recitations of the homicide and resolution of the errors claimed on
appeal.
On June 1, 1973, Jackson filed a petition for post-conviction relief raising, for the first
time, multiple issues. The district judge denied relief, concluding that the now claimed errors
had been waived because Jackson had failed to show good cause for his failure to present
them during trial or on his prior appealas required by NRS 177.375(2).
In this appeal Jackson contends the trial court erred in failing to consider and resolve the
various allegations of error in his petition.
The district judge's reliance on the waiver provision of NRS 177.375(2) was misplaced as
that statute, in its present form, was not effective until July 1, 1973, a month after this action
was initiated. See Stats. of Nev. 1973, ch. 349, pp. 436-439. However, even though the
district judge erroneously relied on the new statute, the order denying post-conviction relief
was correct. See Craig v. Warden, 87 Nev. 39, 482 P.2d 325 (1971), an analogous situation,
where we declined to consider, in a post-conviction proceeding, claims not presented in an
earlier appeal where there had been no reasonable excuse or explanation advanced for the
prior failure to present the belated claims.
claims. Accord: Stocks v. Warden, 86 Nev. 758, 476 P.2d 469 (1970). Rogers v. Warden 86
Nev. 359, 468 P.2d 993 (1970).
Affirmed.
____________
91 Nev. 497, 497 (1975) Reed v. State
RONALD RICHARD REED, Appellant, v.
No. 8048
July 31, 1975 538 P.2d 161
Appeal from judgment of conviction and sentence, First Judicial District Court, Carson
Defendant was convicted before the district court of forcible rape, and he appealed. The
Supreme Court held that evidence established that defendant knowingly entered his guilty
plea to single charge of forcible rape to escape probable conviction and enhancement of
punishment under other charges.
Affirmed.
Robert List, Attorney General; Michael E. Fondi, District Attorney, and Louis R.
Doescher, Deputy District Attorney, Carson City, for Respondent.
Criminal Law.
Evidence established that defendant knowingly entered his guilty plea to single charge of forcible rape
to escape probable conviction and enhancement of punishment under other charges. NRS 200.363.
OPINION
Per Curiam:
Ronald Richard Reed entered a guilty plea to the crime of forcible rape (NRS 200.363) and
was sentenced to a fifteen year term in the Nevada State Prison.
In this appeal the only claim of error is that his guilty plea was not entered voluntarily and
with understanding and knowledge of the probable consequences of the plea.
The contention is totally without merit. The trial judge's canvass of Reed, when the guilty
plea was accepted, fully comports with the guidelines enunciated in Heffley v. Warden, S9
Nev. 573
91 Nev. 497, 498 (1975) Reed v. State
canvass of Reed, when the guilty plea was accepted, fully comports with the guidelines
enunciated in Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403 (1973).
The record reflects Reed was on parole from a burglary conviction at the time charges of
forcible rape, infamous crime against nature, burglary and as an habitual criminal were
lodged.
Through negotiations by his counsel and the prosecutor it was agreed that in exchange for
a guilty plea on the forcible rape charge the other charges would be dismissed. Similar
charges in a neighboring county were also dismissed as a result of the bargain.
Applying the rationale enunciated in Brady v. United States, 397 U.S. 742 (1969), we
reach the inescapable conclusion that Reed knowingly entered his guilty plea to the single
charge to escape probable conviction and enhancement of punishment under the other
charges.
Affirmed.
____________
91 Nev. 498, 498 (1975) Long v. Swackhamer
JACK LONG, as an Individual, and the INDEPENDENT AMERICAN PARTY, a Qualified
Political Party in the State of Nevada, Petitioners, v. WILLIAM D. SWACKHAMER,
Secretary of State, and STATE OF NEVADA ex rel. ROBERT LIST, Attorney General,
Respondents.
No. 7813
July 31, 1975 538 P.2d 587
Original proceedings in mandamus.
Mandamus was sought to compel Secretary of State to accept and file declaration of
candidacy for office of lieutenant governor. The Supreme Court held that where political
party had not become qualified as such in state until June 25, 1974, statute providing no
person may be candidate for party nomination in primary election if he has changed
designation of his political party affiliation since September 1 prior to closing filing date for
such election did not preclude person who had been member of another political party and
had changed his party affiliation after September 1, 1973 from qualifying as candidate for
office of lieutenant governor in general election as representative of the newly qualified
political party, and that the statute does not apply to a new political party coming into
existence after September 1 of the preceding year.
Writ granted.
James F. Sloan, Reno, for Petitioners.
Robert List, Attorney General, Robert A. Groves and William E. Isaeff, Deputy Attorneys
General, Carson City, for Respondents.
1. Elections.
Where political party had not become qualified as such in state until June 25, 1974, statute providing no
person may be candidate for party nomination in primary election if he has changed designation of his
political party affiliation since September 1 prior to closing filing date for such election did not preclude
person who had been member of another political party and had changed his party affiliation after
September 1, 1973 from qualifying as candidate for office of lieutenant governor in general election as
representative of the newly qualified political party. NRS 293.176.
2. Elections.
Statute providing that no person may be candidate for party nomination in any primary election if he has
changed designation of his political party affiliation since the September 1 prior to closing filing date for
such election does not apply to a new political party coming into existence after September 1 of the
preceding year. NRS 293.176.
OPINION
Per Curiam:
Jack Long and the Independent American Party sought mandamus in this court to compel
the Secretary of State to accept and file Long's declaration of candidacy for the office of
lieutenant governor. We ordered the issuance of a peremptory writ of mandamus, but,
because of the exigencies presented, we reserved the filing of an opinion to a later date.
[Headnote 1]
Long, a resident of Nevada for more than 5 years and a qualified Nevada elector,
attempted to file his candidacy for the office of lieutenant governor in the Nevada general
elections as a representative of the Independent American Party. Long was qualified to file for
the office pursuant to NRS 224.010.
1
However, the Secretary of State refused to accept his
candidacy on the ground that Long, who had been a Republican, had changed his party
affiliation after September 1, 1973.
____________________

1
NRS 224.010:
No person shall be eligible to the office of lieutenant governor unless:
1. He shall have attained the age of 25 years at the time of such election; and
2. He is a qualified elector and has been a citizen resident of this state for 2 years next preceding the
election.
1, 1973. NRS 293.176.
2
Since the Independent America Party had not become qualified as a
political party in Nevada until June 25, 1974, we find the statute inapposite, and conclude that
the Secretary of State erred in refusing to accept Long's candidacy for that reason.
Petitioners have suggested that, since Long was the only candidate filing for the office of
lieutenant governor on the Independent American Party ticket, his name would not appear on
the primary ballots, and he was therefore exempt from the proscriptions of NRS 293.176,
which is directed to primary elections only.
3
However, by placing emphasis on the primary
election language of the statute, Respondent Secretary of State was faced with an impossible
situation. For instance, had he accepted Long's filing on July 12, several days before the
filings closed, he would have been in error. On the other hand, by not accepting Long's filing
and had no one else filed, he was in error.
[Headnote 2]
We believe, and so hold, that NRS 293.176 has no application at all to a new political
party coming into existence after September 1 of the preceding year.
A qualified political party that has met standards for qualification should be afforded an
opportunity to express its views at election time through its candidates. NRS 293. 127
provides:
This Title [Title 24, Elections, of NRS] shall be liberally construed to the end that all
electors shall have an opportunity to participate in elections and that the real will of the
electors may not be defeated by an informality or by failure substantially to comply with
the provisions of this Title with respect to the giving of any notice or the conducting of an
election or certifying the results thereof."
____________________

2
NRS 293.176 provides:
No person may be a candidate for a party nomination in any primary election if he has changed the
designation of his political party affiliation on an official affidavit of registration in the State of Nevada or in any
other state since September 1 prior to the closing filing date for such election.

2
NRS 293.260 provides:
1. Where there is no contest for nomination to a particular office, neither the title of the office nor the name
or names of the candidates shall appear on the ballot.
2. If only one political party has candidates for an office or offices, the candidates of such party who
receive the highest number of votes at such primary, not to exceed twice the number to be elected to such office
or offices at the general election, shall be declared the nominees for the office or offices.
3. Where no more than the number of candidates to be elected have filed for nomination for any office, the
names of such candidates shall be omitted from all primary election ballots. (Emphasis added.)
to participate in elections and that the real will of the electors may not be defeated by an
informality or by failure substantially to comply with the provisions of this Title with respect
to the giving of any notice or the conducting of an election or certifying the results thereof.
The right of citizens to associate and organize for the advancement of their political
beliefs, and the right of voters, regardless of their political persuasion, to cast their votes as
they wish, are two of our most precious freedoms, protected by the First and Fourteenth
Amendments to the Constitution of the United States. See Williams v. Rhodes, 393 U.S. 23,
30 (1968). NRS 293.176 has no application to one in the position of Petitioner Long. For
these reasons, we heretofore entered the order granting a peremptory writ of mandate
compelling Respondent Secretary of State to accept and file the declaration of candidacy for
the office of lieutenant governor of the State of Nevada.
____________
91 Nev. 501, 501 (1975) Edmonton v. State
KENNETH IAN EDMONTON, Appellant, v. THE
No. 7836
July 31, 1975 538 P.2d 582
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County;
Howard Babcock, Judge.
Defendant was convicted in the district court of rape and robbery, and he appealed. The
Supreme Court held that record supported finding that there was nothing impermissibly
suggestive in photographic display or lineup procedure.
Affirmed.
Daniel M. Markoff, Las Vegas, for Appellant.
Criminal Law.
Record supported ruling that there was nothing impermissibly suggestive in photographic
display or lineup procedure despite contention that photographic lineup did not
truly depict fundamental elements of assailant's description given by victim.
91 Nev. 501, 502 (1975) Edmonton v. State
suggestive in photographic display or lineup procedure despite contention that photographic lineup did
not truly depict fundamental elements of assailant's description given by victim.
OPINION
Per Curiam:
Kenneth Ian Edmonton, convicted of rape and two counts of robbery, contends we should
reverse because black and white pictures used in a photographic lineup did not truly depict
the fundamental elements of the assailant's description given by the victims. He also
complains of the refusal of the trial judge to grant his motion to suppress any in-court
identification.
The trial judge consideredand rejectedEdmonton's challenge to the lineup and denied
his motion to suppress any in-court identification. The record amply supports the trial
court's ruling that there was nothing impermissibly suggestive in either the photographic
display or the lineup procedure. Stovall v. Denno, 388 U.S. 293 (1967); Kirby v. Illinois, 406
U.S. 682 (1972); Baker v. State, 88 Nev. 369, 498 P.2d 1310 (1972). Compare: Thompson v.
State, 85 Nev. 134, 451 P.2d 704 (1969).
The in-court identification at the preliminary and at trialby both victimswas
positive and based on origins totally independent of the lineup. Baker, supra. Edmonton's
contentions are without merit and the judgment is affirmed.
____________
91 Nev. 502, 502 (1975) Regas v. State
JAY JEFFREY REGAS, Appellant, v. THE
No. 7801
July 31, 1975 538 P.2d 582
Appeal from a sentence of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Defendant was convicted in the district court of possession of stolen property, and he
appealed. The Supreme Court held that defendant was not denied due process by possibly
misleading presentence report where trial judge recognized the possibly misleading aspect
thereof and imposed lesser sentence than that recommended.
91 Nev. 502, 503 (1975) Regas v. State
misleading aspect thereof and imposed lesser sentence than that recommended.
Affirmed.
Fran P. Archuleta, Esq., Reno, for Appellant.
Robert List, Attorney General; Larry R. Hicks, District Attorney, and Kathleen M. Wall,
Assistant Chief Deputy, Washoe County, for Respondent.
Constitutional Law; Criminal Law.
Defendant was not denied due process at the sentencing hearing on theory that judge relied on
misleading sentencing report which listed arrests with no subsequent convictions and alleged criminal
association and referred to unsubstantiated charges, where sentencing judge indicated that he recognized
report's possibly misleading aspects and imposed five year sentence rather than ten years as
recommended.
OPINION
Per Curiam:
After pleading guilty to a charge of possession of stolen property and being sentenced to a
five year term in the Nevada State Prison, Regas filed this appeal contending he was denied
due process at his sentencing hearing because the judge relied on a misleading presentence
report. We disagree.
Regas argues the report was misleading because (1) it listed arrests with no subsequent
convictions, and (2) it alleged criminal association and referred to unsubstantiated charges. A
sentence of ten years was recommended.
Defense counsel brought these factors to the attention of the sentencing judge, who
informed counsel that he recognized the report's possible misleading aspect; and stated that
the primary cause of the sentence was the guilty plea as well as a prior felony conviction. The
judge then rejected the recommendation for a sentence of ten years, and sentenced appellant
to only five years.
We perceive no error on the part of the district court, properly preserved for review.
Having examined the briefs and record, we order this appeal submitted on such briefs and,
finding it without merit, hereby affirm. NRAP 34(f) (1).
____________
91 Nev. 504, 504 (1975) Nishon's Inc. v. Kendigian
NISHON'S INC., and NISH KERKORIAN, Appellants,
v. PAUL KENDIGIAN, Respondent.
No. 7643
July 31, 1975 538 P.2d 580
Appeal from an order appointing a receiver, Eighth Judicial District Court, Clark County;
John F. Mendoza, Judge.
Action was brought by corporation and its president for breach of the employment
agreement. Respondent filed counterclaims relating to employment agreement, his corporate
stock and certain funds of corporation which had sold its restaurant property. On motion of
respondent the district court entered order appointing a receiver to oversee corporation and
the plaintiffs appealed. The Supreme Court held that the appointment of receiver was not an
abuse of judicial discretion and was authorized by statute since corporation had effectively
abandoned its business.
Affirmed.
Beckley, Singleton, DeLanoy & Jemison, Las Vegas, for Appellants.
David Abbatangelo, Las Vegas, for Respondent.
1. Appeal and Error; Corporations.
Appointment of a receiver to oversee corporation which is involved in suit and which fits within specified
circumstances is an action within trial court's sound discretion and will not be disturbed absent a clear
abuse. NRS 78.650.
2. Corporations.
Where president of corporation and owner of remaining stock in corporation, which had sold its
restaurant property, brought action against the only other stockholder for breach of employment agreement
and respondent filed counterclaim alleging fraud and mismanagement as well as questioning corporate
president's entitlement to certain corporate funds, appointment of a receiver to oversee corporation, on
motion of respondent, was not an abuse of judicial discretion and was authorized by statute since
corporation had effectively abandoned its business. NRS 78.650.
OPINION
Per Curiam:
Appellants sued for breach of an employment agreement. Respondent filed counterclaims
relating to his employment agreement, his corporate stock, and certain corporate funds.
Upon respondent's motion, the district court appointed a receiver to oversee the corporation.
Appellants contend the appointment was an abuse of judicial discretion. We disagree.
The employment agreement required respondent to manage the corporate business, a
restaurant, to purchase 49% of its stock, and to loan it $25,500. Difficulties ensued, causing
the eventual termination of the employment relationship. Thereafter, Kerkorian, president of
the corporation and owner of the remaining stock, called joint meetings of stockholders and
directors to discuss the sale of the restaurant property. Notice of the meetings was sent to
respondent at the restaurant address, after he vacated the premises; thus he did not attend.
Appellants sold the property to a third party. Those present at the meeting agreed that the
proceeds from the sale would go directly to Kerkorian in lieu of payment of certain corporate
obligations owing to him. Kerkorian agreed to assume all unpaid obligations of the
corporation due to its suppliers, purveyors and for taxes. This action and appointment of a
receiver followed.
[Headnotes 1, 2]
The appointment of a receiver is an action within the trial court's sound discretion and will
not be disturbed absent a clear abuse. Peri-Gil Corp. v. Sutton, 84 Nev. 406, 442 P.2d 35
(1968); Bowler v. Leonard, 70 Nev. 370, 269 P.2d 833 (1954). We believe the appointment
proper under NRS 78.650.
1
Respondent and Kerkorian are the only shareholders, an
action and counterclaims are pending, respondent alleges fraud and mismanagement, and
questions Kerkorian's entitlement to certain corporate funds.
____________________

1
NRS 78.650 declares in pertinent part:
1. Any holder or holders of one-tenth of the issued and outstanding capital stock may apply to the district
court, held in the district where the corporation has its principal place of business, for an order dissolving the
corporation and appointing a receiver to wind up its affairs, and by injunction restrain the corporation from
exercising any of its powers or doing business whatsoever, except by and through a receiver appointed by the
court, whenever:
(a) The corporation has willfully violated its charter; or
(b) Its trustees or directors have been guilty of fraud or collusion or gross mismanagement in the conduct or
control of its affairs; or
(c) Its trustees or directors have been guilty of misfeasance, malfeasance or nonfeasance; or
(d) The corporation shall be unable to conduct the business or conserve its assets by reason of the act, neglect
or refusal to function of any of the directors or trustees; or
(e) The assets of the corporation are in danger of waste, sacrifice or loss through attachment, foreclosure,
litigation or otherwise; or
(f) The corporation has abandoned its business; or
(g) The corporation has not proceeded diligently to wind up its affairs, or to distribute its assets in a
reasonable time; or
(h) The corporation has become insolvent; or
Respondent and Kerkorian are the only shareholders, an action and counterclaims are
pending, respondent alleges fraud and mismanagement, and questions Kerkorian's entitlement
to certain corporate funds. With the sale of the restaurant, the corporation effectively
abandoned its business. Under these circumstances, we perceive no abuse of discretion. Cf.
Transcontinental Oil Co. v. Free, 80 Nev. 207, 391 P.2d 317 (1964).
Affirmed.
____________________
(i) The corporation, although not insolvent, is for any cause not able to pay its debts or other obligations as
they mature; or
(j) The corporation is not about to resume its business with safety to the public.
2. The application may be for the appointment of a receiver, without at the same time applying for the
dissolution of the corporation, and notwithstanding the absence, if any there be, of any action or other
proceeding in the premises pending in such court. (Emphasis added.)
____________
91 Nev. 506, 506 (1975) Laakonen v. District Court
ROBERT W. LAAKONEN, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and For the County of Clark, Respondent.
No. 7654
July 31, 1975 538 P.2d 574
Original proceedings in mandamus.
Petitioner sought mandamus invalidating Nevada guest statute. The Supreme Court,
Mowbray, J., held that guest statute was invalid under equal protection clauses of State and
Federal Constitutions.
Writ granted.
Wiener, Goldwater & Galatz, Gerald M. Gordon, and J. Charles Thompson, Las Vegas,
for Petitioner.
Dickerson, Miles & Pico, and Charles H. Wagner, Las Vegas, for Respondent.
1. Automobiles; Constitutional Law.
Denial of recovery for negligently inflicted injury to those who by chance fall within provisions of
Nevada guest statute did not bear substantial and rational relation to statute's purposes of protecting
hospitality of host driver and in preventing collusive lawsuit; accordingly, statute was invalid under equal
protection clauses of State and Federal Constitutions. NRS 41.180; Const. art. 4, 21;
2. Mandamus.
Original proceeding in mandamus in Supreme Court was appropriate vehicle to challenge district court's
denial of summary judgment.
Under federal and state equal protection provisions, statute may single out class for distinctive treatment
only if such classification bears rational relation to purposes of legislation. Const. art. 4, 21;
OPINION
[Headnote 1]
Petitioner, Robert W. Laakonen, seeks a writ of mandamus directing the district court in
and for the County of Clark to grant partial summary judgment in petitioner's civil tort action,
by declaring Nevada's automobile guest statute, NRS 41.180, violative of the equal protection
guarantees provided in Article 4, Section 21, of the Nevada Constitution and the Fourteenth
Amendment to the Constitution of the United States. For the reasons stated below, we find
the petition meritorious and order the issuance of the writ sought.
[Headnote 2]
1. On January 31, 1970, Petitioner Laakonen, while riding as a passenger in a borrowed
automobile driven by Terry Lynn Floyd, suffered severe injuries, including brain damage, the
loss of memory, learning loss, loss of partial use of the right side of his body, and
disfiguration, when the automobile collided with a tractor-trailer. Laakonen subsequently
filed a tort action, alleging negligence on the part of Floyd. Floyd responded with the
affirmative defense that Laakonen was a guest, and not a paying passenger, and is barred
by NRS 41.180 from recovery.
1
Laakonen then filed a motion for partial summary judgment,
asking the district court to declare NRS 41.180 unconstitutional under the Equal Protection
Clause of both the Nevada and United States Constitutions.
____________________

1
NRS 41.180:
1. For the purpose of this section, the term guest' is defined as being a person who accepts a ride in any
vehicle without giving compensation therefor.
2. Any person who as a guest accepts a ride in any vehicle, moving upon any of the public highways of the
State of Nevada, and while so riding as such guest receives or sustains an injury, shall have no right of recovery
against the owner or driver or person responsible for the
Nevada and United States Constitutions. The district judge denied the motion; hence this
original petition for mandamus.
2

NRS 41.180 statutorily bars an automobile guest passenger from any recovery for injury
attributable to negligent driving by his host.
3
As a result, this statute denies a defined class of
persons, passengers who give no compensation for their ride who are injured by their host's
negligence, the right afforded to other classes of tort victims to recover for negligently
inflicted injuries. Laakonen argues that this establishes a discriminatory treatment which
conflicts with the equal protection guarantees of our State and Federal Constitutions. We
agree.
[Headnote 3]
2. Article 4, Section 21, of the Nevada Constitution provides in pertinent part that all
laws shall be general and of uniform operation through the State. The Fourteenth
Amendment to the United States Constitution mandates that no state may deny to any person
within its jurisdiction the equal protection of the laws. Under Federal and State equal
protection provisions, a statute may single out a class for distinctive treatment only if such
classification bears a rational relation to the purposes of the legislation.
____________________
operation of such vehicle. In the event that such person while so riding as such guest is killed, or dies as a result
of injury sustained while so riding as such guest, then neither the estate nor the legal representatives or heirs of
such guest shall have any right of recovery against the driver or owner of the vehicle by reason of the death of
the guest. If such person so riding as a guest be a minor and sustain an injury or be killed or die as a result of
injury sustained while so riding as such guest, then neither the parents nor guardian nor the estate nor legal
representatives or heirs of such minor shall have any right of recovery against the driver or owner or person
responsible for the operation of the vehicle for injury sustained or as a result of the death of such minor.
3. Nothing contained in this section shall be construed as relieving the owner or driver or person
responsible for the operation of a vehicle from liability for injury to or death of such guest proximately resulting
from the intoxication, willful misconduct or gross negligence of such owner, driver or person responsible for the
operation of such vehicle; provided that in any action for death or for injury or damage to person or property by
or on behalf of a guest, or the estate, heirs or legal representatives of such guest, the burden shall be upon
plaintiff to establish that such intoxication, willful misconduct or gross negligence was the proximate cause of
such death or injury or damage.

2
Mandamus is an appropriate vehicle to challenge the district court's denial of summary judgment. See Dzack
v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964); Holloway v. Barrett, 87 Nev. 385, 487 P.2d 501 (1971); State
ex rel. List v. County of Douglas, 90 Nev. 272, 524 P.2d 1271 (1974); NRAP 3A(b)(5).

3
As set forth in footnote 1, supra, recovery is allowed if the passenger can show that the driver's misconduct
was willful, grossly negligent, or the product of intoxication.
provisions, a statute may single out a class for distinctive treatment only if such classification
bears a rational relation to the purposes of the legislation. In Reed v. Reed, 404 U.S. 71,
75-76 (1971), the United States Supreme Court stated: The Equal Protection Clause of . . .
[the Fourteenth] [A]mendment . . . den[ies] to States the power to legislate that different
treatment be accorded to persons placed by a statute into different classes on the basis of
criteria wholly unrelated to the objective of that statute. A classification must be reasonable,
not arbitrary, and must rest upon some ground of difference having a fair and substantial
relation to the object of the legislation, so that all persons similarly circumstanced shall be
treated alike.' [Cite omitted.] When a statute provides that one class shall receive different
treatment from another, the Federal Constitution requires more of a state law than
nondiscriminatory application within the class it establishes. [Cite omitted.] It also imposes a
requirement of some rationality in the nature of the class singled out. Rinaldi v. Yeager, 384
U.S. 305, 308-309 (1966). See also Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73,
75 (1968) (applying the rational basis test in striking down a Louisiana wrongful death
statute). Interpreting the Nevada, as well as the Federal, provisions, this court summarily
ruled in Doubles Ltd. v. Gragson, 91 Nev. 301, 535 P.2d 677, 679 (1975): Equal protection
is offended if the prohibition is an unreasonable classification without basis in fact, and
unrelated to the objective sought to be accomplished. [Cite omitted.] Accord, Boyne v. State
ex rel. Dickerson, 80 Nev. 160, 390 P.2d 225 (1964), where this court set forth a requirement
of rationality in the nature of the class singled out.
3. In the recent case of Brown v. Merlo, 106 Cal.Rptr. 388, 506 P.2d 212 (1973), the
California Supreme Court held the California automobile guest statute to be unconstitutional
as violative of the equal protection clauses of the California and United States Constitutions.
In its analysis of the California statute, the court described three distinct levels of
classification or discrimination that the statute establishes. It treats paying passengers
differently from automobile guests, precluding those who ride without giving compensation
from recovery for negligence; it treats automobile guests differently from other social guests;
and it distinguishes between different subclasses of automobile guests, withholding recovery
from those guests injured while in the vehicle during the ride while upon a public highway,
but permitting recovery by guests coming within the statutory loopholes. In addressing
itself to the rationales advanced in support of the guest statute, the court, in Brown stated
106 Cal.Rptr. at 390-391, 506 P.2d at 214-215:
". . .
rationales advanced in support of the guest statute, the court, in Brown stated 106 Cal.Rptr. at
390-391, 506 P.2d at 214-215:
. . . [T]wo distinct justifications(1) the protection of hospitality and (2) the elimination
of collusive lawsuitshave traditionally been proferred to support the guest statute s
operation. Upon analysis, however, neither justification constitutes a rational basis for the
differential treatment actually accorded by the statute's classification scheme. . . . [T]he
protection of hospitality' rationale exhibits a number of fatal defects: first, this rationale fails
to explain why the statute accords differential treatment to automobile guests as distinguished
from all other guests or, indeed, all other recipients of hospitality or generosity; second, it
fails to explain, in light of recent developments in comparable legal doctrine, how such an
interest in protecting hospitality can rationally justify the withdrawal of legal protection from
guests; and finally, it completely ignores the prevalence of liability insurance coverage today,
a factual development which largely undermines any rational connection between the
prevention of suits and the protection of hospitality.
The prevention of collusion' rationale is similarly inadequate to justify, in equal
protection terms, the elimination of all automobile guests' right to recover for negligence.
Although the guest statute may prevent some collusive suits connived by automobile drivers
and their passengers to defraud insurers, the enactment's classification scheme is far too gross
and over-inclusive to be justified by this end since the statute bars the great majority of valid
suits along with fraudulent claims. On numerous occasions in the recent past this court has
held similar anti-collusion' justifications insufficient to support significantly narrower
classification schemes; the wholesale elimination of all guests' causes of action for negligence
does not treat similarly situated persons equally, but instead improperly discriminates against
guests on the basis of a factor which bears no significant relation to actual collusion.
Finally, the irrationality of the guest statute's classifications is aggravated by a series of
limiting statutory loopholes,' which fortuitously stay the operation of the statute under a
variety of diverse, illogical circumstances. Although in specific cases such statutory quirks
may work to ameliorate the harsh consequences of the general provision, these numerous
exceptions when viewed in toto produce an absurd and illogical pattern which completely
drains the statute of any rationality it might conceivably claim. In light of all these
circumstances, we have concluded that the automobile guest statute must succumb to the
constitutional demand of rationality imposed by our state and federal Constitutions."
we have concluded that the automobile guest statute must succumb to the constitutional
demand of rationality imposed by our state and federal Constitutions.
The Nevada automobile guest statute produces the same discriminations found in the
California statute. The justifications propounded in support of the Nevada statute are identical
to those discussed in Brown.
4. NRS 41.180 has been upheld in the past on the grounds that a generous host should be
protected from suit by an ungrateful guest and that public policy is served by such a
limitation. Kuser v. Barengo, 70 Nev. 66, 254 P.2d 447 (1953). We can no longer accept the
notion that there is a rational relation between promotion of hospitality and removal of
liability for negligent injury of another.
In discussing this public policy, Dean Prosser observed in his Law cf Torts, 34, at 187
(4th ed. 1971):
. . . Essentially, however, the theory of the acts is that one who receives a gratuitous favor
in the form of a free ride has no right to demand that his host shall exercise ordinary care not
to injure him. The typical guest act case is that of the driver who offers his friend a lift to the
office or invites him out to dinner, negligently drives him into a collision, and fractures his
skullafter which the driver and his insurance company take refuge in the statute, step out of
the picture, and leave the guest to bear his own loss. If this is good social policy, it at least
appears under a novel front. (Footnote omitted.) The Michigan Supreme Court, in
illustrating the extent of the irrationality of the guest statute scheme, said in Stevens v.
Stevens, 94 N.W.2d 858, 862 (Mich. 1959):
. . . It has been our boast that when entrusts another with life or property relying upon a
relationship of trust and confidence, rather than the weapons and guarantees of the business
world, a performance of duty the most exacting will be demanded, a conformity not with the
arm's length standards of the market but rather the infinitely nicer standards of the hearth and
the heart. The authorities we need not cite.
The guest passenger acts changed all of this. The friends of the driver, his family, those to
whom he stands in the closest relationship of faith, and trust, and confidence, must suffer
injury at his hands without recompense, solaced only by the thought that, after all, the skull
was cracked by a friendly hand. His legal status, this invited guest, is no better than that of a
trespasser. The hospital bill, the loss from the long illness, all rising from the wrong of
another and without fault on the part of the victim, must be shouldered without the aid of
him who did the wrong.
part of the victim, must be shouldered without the aid of him who did the wrong. Why?
Because the relationship between them was one of trust and friendship. No money had
changed hands. If, however, not the neighbor himself is carried to town, but rather his
livestock to the slaughterhouse, many modern courts will permit full recovery for injury to the
unfortunate animal through failure to use reasonable care for its safety. Is this one answer of
an enlightened people to the hallowed question: How much then is a man better than a
sheep?' (Footnote omitted.)
In Lightenburger v. Gordon, 89 Nev. 226, 510 P.2d 865 (1973), this court, in applying
California law, held that the California airplane guest statute was in violation of equal
protection provisions of the California and United States Constitutions. In commenting upon
Brown v. Merlo, supra, the court recognized that (89 Nev. at 228, 510 P.2d at 867):
. . . The protection of hospitality' rationale was found fatally defective since it did not
explain why different treatment was accorded automobile guests from all other guests; how
the interest in protecting hospitality could rationally justify the withdrawal of legal protection
from guests, nor does it take account of the prevalence of liability insurance coverage which
effectively undermines any rational connection between the prevention of suits and the
protection of hospitality. . . .
4

We agree with the Brown reasoning, as has the Supreme Court of Kansas in Henry v.
Bauder, 518 P.2d 362 (Kan. 1974), that the hospitality argument does not provide a
sufficient rational basis for a guest statute's classifications.
5. The second argument in favor of the guest statute is that it prevents collusive lawsuits
against insurance companies. This argument at least recognizes the typical real party in
interest. In Cohen v. Kaminetsky, 176 A.2d 483 (N.J. 1961), the court rejected this collusion
argument and established an ordinary standard of care in the automobile situation. The court,
as did the court in Brown, supra, stated that the judicial process was qualified to eliminate the
collusive suits. By broadly prohibiting all automobile guests from instituting causes of
action for negligence because of a small segment of that class which may file collusive
suits, the guest statute presents a classic case of an impermissibly overinclusive
classification scheme.
____________________

4
In McConville v. State Farm Mut. Auto. Ins. Co., 113 N.W.2d 14, 19 (Wis. 1962), in holding that a driver
owes a guest the same ordinary duty of care that he owes to others, the Wisconsin Supreme Court commented:
Liability insurance is widely prevalent today. In few cases will the . . . [elimination of a guest statute] shift the
burden of loss from the injured guest to the negligent host personally. In the great majority of cases it will shift
part or all the burden of loss from the injured individual to the motoring public.
prohibiting all automobile guests from instituting causes of action for negligence because of a
small segment of that class which may file collusive suits, the guest statute presents a classic
case of an impermissibly overinclusive classification scheme. Clearly, it imposes too broad a
burden upon the innocent public instead of confining its disability to those who actually
institute collusive suits.
In Henry v. Bauder, supra, the Supreme Court of Kansas, in agreeing with the Brown
ruling that the collusion prevention justification does not provide a sufficient basis for the
guest statute's wholesale elimination of all automobile guests' causes of action for negligently
inflicted injuries, stated (518 P.2d at 370):
. . . [B]ecause of the presumed closeness of this relationship, the driver may falsely admit
liability so that his guest may collect from the driver's insurance company. To combat this
risk of potential fraud, the guest statute eliminates all causes of action in negligence for
automobile guests. We believe that it is unreasonable to eliminate causes of action of an
entire class of persons simply because some undefined portion of the designated class may
file fraudulent lawsuits. . . . In Rupert v. Stienne, 90 Nev. 397, 404, 528 P.2d 1013, 1017
(1974), this court depart[ed] from the doctrine of interspousal immunity . . . to claims arising
out of motor vehicle accidents, a doctrine which likewise has been rationalized as preventive
of collusive lawsuits. Mr. Justice Batjer, who wrote the unanimous Rupert opinion, said (90
Nev. at 401, 528 P.2d at 1015):
The doctrine of interspousal tort immunity has been perpetuated on the notion that
it fosters domestic tranquility and prevents fraud and collusion, and it has been frequently
argued that fraudulent and collusive suits would flow from abandonment of the rule. There
is a possibility of fraud or collusion in every negligence action where the tort-feasor is
insured. . . .
However, to deny one spouse the opportunity to recover for the tortious conduct of the
other . . . belies the centuries old trust in our jury system. . . . Our adversary system will ferret
out the non meritorious claims and dispatch those who would practice fraud upon the courts.
This analysis applies with full force here.
6. In Brown v. Merlo, supra, the court noted that in recent years numerous statutory
exceptions have rendered recovery or lack of recovery under the guest statute largely
fortuitous and has added to the irrationality of the statutory scheme. In O'Donnell v.
Mullaney, 59 Cal.Rptr. 840, 429 P.2d 160 {1967), the court recognized that if the accident
and injury occur on private property, the guest statute does not apply.
(1967), the court recognized that if the accident and injury occur on private property, the
guest statute does not apply. In Olson v. Clifton, 78 Cal.Rptr. 296 (Cal.App. 1969), the court
further extended this exception to include a collision with a power pole at the side of the road,
the court holding that the accident did not take place on the roadway. Further, in Boyd v.
Cress, 293 P.2d 37 (Cal. 1956), the court held that a person injured while in a nonmoving
automobile was excepted from the guest statute. Such exceptions and creation of loopholes
have occurred in Nevada.
5
None of these exceptions bears the remotest relation to either the
objective of protecting hospitality or to the purpose of preventing collusive lawsuits. These
distinctions bear no relation to the so-called objectives of the guest statute, and lack
rationality, therefore violating the equal protection requirements of the Nevada and United
States Constitutions.
7. We conclude, therefore, that the denial of recovery for negligently inflicted injuries to
those who by chance fall within the provisions of NRS 41.180 does not bear a substantial and
rational relation to the statute's purposes of protecting the hospitality of the host driver and in
preventing collusive lawsuits. Such irrational discrimination cannot stand in light of the
applicable constitutional standards. It is ordered that a writ of mandamus shall issue, directing
the district court to enter an order of partial summary judgment, declaring NRS 41.180
unconstitutional.
Gunderson, C. J., and Zenoff and Thompson, JJ., concur.
Batjer, J., concurring in the result:
In Silver v. Silver, 280 U.S. 117 (1929), the United States Supreme Court rejected the
equal protection argument and upheld the constitutionality of an automobile guest statute.
Article 1, section 2, of the Nevada Constitution declares:
. . . [T]he Paramount Allegiance of every citizen is due to the Federal Government in the
exercise of all its Constitutional powers as the same have been or may be defined by the
Supreme Court of the United States . . .
____________________

5
See Cook v. Faria, 73 Nev. 295, 297, 318 P.2d 649, 650 (1958), where this court found compensation by
the guests to the host on a hunting trip because the host was not an experienced hunter and was not familiar with
the country, and the guests were both experienced hunters with knowledge of how to bleed and clean a deer,
were thoroughly familiar with the country and well informed as to where deer might be found and by what roads
good deer country could be reached.
I believe that the Silver case is to be followed and that NRS 41.180, as considered by the
majority, is not in violation of the Fourteenth Amendment to the Constitution of the United
States.
Furthermore, I do not believe that automobile guests within NRS 41.180 are such an
unreasonable or arbitrary class as to be in violation of article 4, section 21, of the Nevada
Constitution. The question of classification is for the Legislature, and it is the duty of the
courts to sustain it if there is any reasonable basis for the classification. Norman v. City of
Las Vegas, 64 Nev. 38, 177 P.2d 442 (1947); Mengelkamp v. List, 88 Nev. 542, 501 P.2d
1032 (1972).
Nevertheless, I agree with the result reached in this case by the majority, because of the
enactment by the Legislature of the Nevada Motor Vehicle Insurance Act, chapter 698 of
NRS. That Act requires automobile owners to purchase policies of insurance or other security
which would provide medical, surgical, funeral, and disability benefits for every person,
unless specifically excluded, who suffers a loss from injury arising out of the maintenance or
use of a motor vehicle, without regard to immunity from liability, if the accident occurs in
this State. NRS 698.230.
1
Automobile guests are included, as well as others. By requiring
insurance to protect a guest to the extent of basic reparation benefits . . . without regard to
immunity
2
the Legislature has in effect created a new class of guests within the exclusion of
NRS 41.180, i.e., all those whose injuries exceed basic reparation benefits. Excluding from
recovery those automobile guests who receive severe injury beyond basic reparation
benefits amounts to an unreasonable classification within a class and is indeed in violation
of article 4, section 21, of the Nevada Constitution. Reed v. Reed, supra; Doubles Ltd. v.
Gragson, supra; Boyne v. State ex rel. Dickerson, supra.
____________________

1
NRS 698.230:
If the accident causing injury occurs in this state, every person suffering loss from injury arising out of
maintenance or use of a motor vehicle has a right to basic reparation benefits unless such benefits are excluded
under the provisions of NRS 698.340.

2
NRS 698.250, in relevant part:
2. Basic reparation obligors . . . shall pay basic reparation benefits . . . for loss from injury arising out of
maintenance or use of a motor vehicle. This obligation exists without regard to immunity from liability or suit
which might otherwise be applicable. (Emphasis added.)
____________
91 Nev. 516, 516 (1975) Simpson v. Warden
FLOYD DONALD SIMPSON, Appellant, v. WARDEN,
No. 8060
August 26, 1975 539 P.2d 118
Appeal from order denying post-conviction relief. First Judicial District Court, Carson
The Supreme Court held that record reflected competent representation by counsel and that
negotiated Plea bargain was fully honored by prosecutor in every respect.
Affirmed.
1. Criminal Law.
Record of arraignment and later hearing on habeas proceeding reflected competent representation by
counsel resulting in dismissal of several other pending charges against petitioner in return for his plea of
guilty to charges for which he was incarcerated.
2. Criminal Law.
Record of arraignment and of later hearing on habeas proceeding reflected that negotiated plea bargain
was fully honored by prosecutor in every respect.
OPINION
Per Curiam:
Through this post-conviction habeas proceeding following his plea of guilty to two counts
of forgery, the petitioner contends that his retained counsel was incompetent and that the
prosecutor failed to keep a plea bargaining agreement. The district court ruled against him
and this appeal followed.
[Headnotes 1, 2]
The contentions below and here are wholly without merit. The record of the arraignment
and of the later hearing on the habeas proceeding reflects competent representation by
counsel resulting in the dismissal of several other pending charges against petitioner in return
for his plea of guilty to the charges for which he is presently incarcerated and that the
negotiated plea bargain was fully honored in every respect.
91 Nev. 516, 517 (1975) Simpson v. Warden
plea bargain was fully honored in every respect. Indeed, this appeal admittedly is tendered
only to comply with the commands of Anders v. California, 386 U.S. 738 (1967), and
Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969). Our review of the record shows that the
appeal is without merit.
Affirmed.
____________
91 Nev. 517, 517 (1975) Marshall v. State
ROLAND MARSHALL, Appellant, v. THE
No. 7946
August 26, 1975 539 P.2d 116
Appeal from judgment entered upon jury verdict finding appellant guilty of murder; Eighth
Judicial District Court; Paul S. Goldman, Judge.
The Supreme Court held that defendant had been adequately warned of his rights, that
district court was not required to instruct jury regarding voluntariness of defendant's
exculpatory statement and that admission of testimony concerning a prior robbery of store in
which homicide occurred for purpose of showing that gun, which was the murder weapon,
had been taken by defendant in such robbery was not error.
Affirmed.
Bell & Leavitt, Chartered, of Las Vegas, for Appellant.
1. Criminal Law.
Where Miranda warnings were read to accused from a rights card while he was in custody and he
acknowledged that he understood what was read to him, accused had been adequately warned of his rights.
U.S.C.A.Const. Amends. 5, 6.
2. Criminal Law.
Trial court was not required to instruct jury regarding voluntariness of exculpatory statement made by
accused while in custody.
3. Homicide.
In murder prosecution, admission of testimony concerning a prior robbery of store in which homicide
occurred for purpose of showing that gun, which was the murder weapon, had been taken by accused in
such robbery was not error, since there was scanty evidence otherwise to connect
accused with gun.
by accused in such robbery was not error, since there was scanty evidence otherwise to connect accused
with gun.
OPINION
Per Curiam:
Roland Marshall stands convicted of first degree murder and is serving a sentence of life
with the possibility of parole. He requests this court to void his conviction for several reasons,
none possessing merit. Since he does not challenge the sufficiency of the evidence
establishing his guilt it is not necessary to state the probative facts of the crime, and we turn
briefly to consider assigned errors of law.
[Headnote 1]
1. While in custody, Marshall stated to a police officer that he had not committed robbery
or murder, did not know the location of the crime scene, and had never been there. This
exculpatory statement was made after the officer had warned him of his 5th and 6th
Amendment rights. It now is claimed that the warnings were inadequate in the light of
Miranda v. Arizona, 384 U.S. 436 (1966). The warnings were read to Marshall from a rights
card which covered the rights expressed in Miranda v. Arizona, supra, and Marshall
acknowledged that he understood what was read to him and then signed the card. We find
nothing to suggest that his waiver of rights was other than voluntary and knowledgeable. This
claimed error is patently without merit. United States v. Springer, 460 F.2d 1344 (7th Cir.
1972).
[Headnote 2]
Neither was the court obliged to instruct the jury regarding the voluntariness of the
statement made by Marshall. The cases of Carlson v. State, 84 Nev. 534, 445 P.2d 157
(1968); Grimaldi v. State, 90 Nev. 83, 518 P.2d 615 (1974); and Rhodes v. State, 91 Nev. 17,
530 P.2d 1199 (1975); are inapposite and the appellant's reliance thereon misplaced, since the
statement was exculpatory in nature.
[Headnote 3]
2. A gun taken by Marshall during a prior robbery of the same store where the homicide
occurred was shown to be the same weapon used in the homicide. Consequently, a witness
was allowed to testify concerning the collateral offense in order to identify Marshall with the
murder weapon. This ruling is challenged.
challenged. The trial judge, in weighing the probative value of such testimony against its
prejudicial effect, permissibly could rule in favor of admissibility since there was scanty
evidence otherwise to connect Marshall with the murder weapon. State v. Hudgens, 423 P.2d
90 (Ariz. 1967).
Other assigned errors have been considered and are meritless.
Affirmed.
____________
91 Nev. 519, 519 (1975) Lawson v. State
HAROLD GENE LAWSON, Appellant, v. THE
No. 8066
August 26, 1975 539 P.2d 116
Appeal from judgment of conviction and sentence, Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
The Supreme Court held that trial judge's refusal to give a requested jury instruction which
did not accurately state the applicable law could not afford basis for reversal of judgment of
conviction and sentence.
Affirmed.
Morgan D. Harris, Public Defender, and Robert L. Stott, Chief Deputy Public Defender,
Robert List, Attorney General; George A. Holt, District Attorney, and Dan M. Seaton,
Chief Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Trial judge's refusal to give a requested jury instruction which did not accurately state the applicable
law could not afford basis for reversal of judgment of conviction and sentence.
OPINION
Per Curiam:
Appellant's sole contention in this appeal suggests we should reverse a judgment of
conviction and sentence because the trial judge refused to give a requested jury instruction
which did not accurately state the applicable law.
91 Nev. 519, 520 (1975) Lawson v. State
He has cited no relevant authority in support of the contention; and, in fact the law is
otherwise. See Harris v. State, 83 Nev. 404, 407, 432 P.2d 929, 931 (1967), where we said: .
. . [R]equested instructions must properly state the law. The appellant can claim no right to
have requested instructions given when they do not correctly state the law. Without such right
a refusal is not error. See also, State v. Sheeley, 63 Nev. 88, 162 P.2d 96 (1945).
Affirmed.
____________
91 Nev. 520, 520 (1975) State ex rel. Tidvall v. District Court
STATE OF NEVADA ex rel. PRESTON E. TIDVALL, Superintendent of Banks; ex rel.
ROBERT LIST, Attorney General, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for the County of Clark, THE
HONORABLE MICHAEL J. WENDELL, a Judge Thereof; TYRONE HAVAS, Doing
Business as COURTESY MOTORS and BANK OF NEVADA, a Nevada Banking
No. 8020
August 26, 1975 539 P.2d 456
Original petition for writ of prohibition to stay order to produce certain documents, entered
in the Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
The Supreme Court, Batjer, J., held that superintendent of banks had standing to bring
prohibition to protect his statutory privilege against disclosure of bank examination reports
prepared by him for use in supervision of bank; that legislature in making report of
superintendent of banks confidential and in affording superintendent absolute right to
exercise privilege against disclosure does not violate due process and equal protection clauses
of Fourteenth Amendment; and that person sued by bank to recover money and personalty in
which bank claimed security interest was not entitled to discovery with respect to such bank
examination reports.
Petition granted.
Robert List, Attorney General, and E. William Hanmer, Deputy Attorney General, Carson
City, for Petitioners. Smith & O'Brien and Paul V.
Smith & O'Brien and Paul V. Carelli, Las Vegas, and Ross & Crow, Carson City, for
Respondents.
1. Prohibition.
Superintendent of banks had standing to bring prohibition to protect his statutory privilege against
disclosure of bank examination reports prepared by him for use in supervision of bank. NRS
34.320-34.350, 49.025; NRCP 34; Const. art. 1, 8; U.S.C.A. Const. Amend. 14.
2. Witnesses.
Under statute authorizing exercise of privilege against disclosing governmental information, revelation of
information asserted to be privileged may not be compelled in order to determine whether or not it is
privileged. NRS 49.025, subds. 1, 2.
3. Discovery.
Superintendent of banks in making report required by law has absolute privilege to refuse to disclose
contents of that report and duty to prevent others from disclosing. NRS 49.025, subds. 1, 2,
665.055-665.075; U.S.C.A.Const. Amend. 14; Const. art. 4, 20, 21.
Reasonable classification of persons or things for various purposes of legislation is not inimical to either
United States Constitution or State Constitution. U.S.C.A.Const. Amend. 14; Const. art. 4, 20, 21.
When there is reasonable ground for classification and law operates equally on all within the same class,
the classification is valid. U.S.C.A.Const. Amend. 14; Const. art. 4, 20, 21.
It is a duty of courts to sustain legislative classification if there is any reasonable basis for it.
U.S.C.A.Const. Amend. 14; Const. art. 4, 20, 21.
Act of legislature is presumed to be constitutional and should be so declared unless it appears to be
clearly in contravention of constitutional principles.
In cases of doubt, every possible presumption and intendment will be made in favor of constitutionality
of statute.
Courts will interfere with act of legislature only in cases of clear and unquestioned violation of
fundamental rights.
10. Constitutional Law; Discovery.
Legislature in making report of superintendent of banks confidential and in affording superintendent
absolute right to exercise privilege against disclosure did not violate due process and equal protection
clauses of Fourteenth Amendment. NRS 49.025, subds. 1, 2, 665.055-665.075; U.S.C.A.Const. Amend.
14; Const. art. 4, 20, 21.
11. Discovery.
Person sued by bank to recover money and personalty in which bank claimed security interest
was not entitled to discovery with respect to bank examination reports made by
superintendent of banks.
which bank claimed security interest was not entitled to discovery with respect to bank examination reports
made by superintendent of banks. NRCP 26(b), 34; NRS 665.055-665.075.
OPINION
The district court order which is being challenged in this petition arose out of an action to
which petitioner, Preston E. Tidvall, Superintendent of Banks of the State of Nevada, is not a
party. Respondent Bank of Nevada sued co-respondent Tyrone Havas, d.b.a., Courtesy
Motors, to recover money and personalty in which the bank claims a security interest. Havas'
answer was accompanied by a counterclaim alleging breach of contract.
A series of subpoenas duces tecum were caused to be issued by Havas and opposed on
grounds of irrelevancy by the bank. The district court ordered that the subpoenas be limited to
production of records relating only to the ten vehicles repossessed by the bank from Havas.
His next motion to produce much of the same material covered by the limited subpoenas
duces tecum was denied. Prior to this denial Havas had filed a request for production of
documents, again seeking much of the same material previously denied him by the court, but
in addition he sought audit [examination] reports made by the superintendent concerning
Courtesy Motors from January 1970 to March 1974.
The bank objected generally to this latest motion to produce, and specifically, to
production of the audit [examination] reports on the basis of NRS 665.055, 665.065 and
665.075.
1
Upon the bank's failure to meet Havas' request for production, he filed a
motion to produce.
____________________

1
NRS 665.055:
1. All examination reports and all information obtained by the superintendent and his staff in conducting
examinations of banks is confidential and privileged information and, except as otherwise provided in this Title,
shall not be made public or otherwise disclosed to any person, firm, corporation, agency, association,
governmental body or other entity.
2. No employee or other member of the staff of the superintendent shall disclose or permit disclosure of any
confidential or privileged information to anyone other than an employee or member of the staff of the
superintendent entitled to such information for the proper performance of his official duties, unless authorized to
do so by the superintendent in accordance with the provisions of this Title.
NRS 665.065:
1. The superintendent may make state bank examination reports prepared by his office available to:
(a) Any federal agency having jurisdiction over state banks and which makes examination of state banks.
Upon the bank's failure to meet Havas' request for production, he filed a motion to
produce. In its order disposing of that motion the district court denied the bank's objection to
production of the audit [examination] reports relating solely to Courtesy Motors. The
petitioners now seek a writ of prohibition to arrest execution of that order, and to prevent
discovery of the petitioners' bank examination reports which are in the bank's possession.
NRS 34.320-34.350.
The petitioners contend that bank examination reports prepared by the superintendent for
use in the supervision of a bank, are privileged and confidential material that may not be
discovered or disclosed, and therefore the respondent court's actions, as well as its threatened
actions, are improper because it is exceeding its jurisdiction.
2
The respondent Havas
counters by contending: {1) that the petitioner Tidvall who is not a party to the original
action has no standing to claim the privilege of nondisclosure by way of prohibition; {2)
that statutes relied upon by the petitioners are an unconstitutional invasion of the
separation of powers and violate equal protection and due process clauses of the United
States Constitution and Art.
____________________
(b) The director of the department of commerce for his confidential use.
(c) The state board of finance for its confidential use, when such report is necessary for the state board of
finance to perform its duties under this Title.
2. All such examination reports made available shall remain the property of the banking division, and no
person, agency or authority to whom such reports are made available, or any officer, director or employee
thereof, shall disclose any of such reports or any information contained therein, except in published statistical
material that does not disclose the affairs of any individual or corporation.
NRS 665.075:
1. The report of examination made by an examiner of the banking division is designed for use in the
supervision of the bank. The bank's copy of the report is the property of the superintendent and is furnished to
the bank solely for its confidential use.
2. The bank's directors, in keeping with their responsibilities both to depositors and to stockholders, shall
thoroughly review the report. Under no circumstances shall the bank, or any of its directors, officers or
employees disclose or make public in any manner the report or any portion thereof. Such report shall not be
made available to other banking institutions in connection with proposed transactions such as mergers and
consolidations. Such report shall not be made available to a clearing house association, but a bank may
voluntarily disclose information concerning its affairs to such clearing house association where such disclosure
is through reports prepared by the bank or by others at the request of the bank.

2
NRS 49.025:
1. A person making a return or report required by law to be made has a privilege to refuse to disclose and
to prevent any other person from disclosing the return or report, if the law requiring it to be made so provides.
2. A public officer or agency to whom a return or report is required by law to be made has a privilege to
refuse to disclose the return or report if the law requiring it to be made so provides.
3. No privilege exists under this section in actions involving false statements or fraud in the return or
report.
The respondent Havas counters by contending: (1) that the petitioner Tidvall who is not a
party to the original action has no standing to claim the privilege of nondisclosure by way of
prohibition; (2) that statutes relied upon by the petitioners are an unconstitutional invasion of
the separation of powers and violate equal protection and due process clauses of the United
States Constitution and Art. 1, Sec. 8 of the Nevada Constitution; and (3) that he is entitled to
discovery of the superintendent's examination report under NRCP 34.
1. Prohibition is the remedy which is generally employed to prevent improper discovery.
See Greyhound Corp. v. Superior Court, Merced County, 364 P.2d 266 (1961). Gene
Compton's Corp. v. Superior Court, 23 Cal.Rptr. 250 (1962). Sullivan v. Superior Court for
County of San Mateo, 105 Cal.Rptr. 241 (1972). Cf. Maheu v. District Court, 88 Nev. 26,
493 P.2d 709 (1972). Ford Motor Company v. Angelucci, 455 S.W.2d 528 (Ky. 1970).
[Headnote 1]
Here the superintendent had a statutory duty to protect the confidentiality of his
examination reports and prohibition was the only avenue available to effect that protection.
We reject respondent Havas' contention that the superintendent had no standing to exercise
his statutory privilege against disclosure by way of prohibition.
2. The United States Supreme Court in United States v. Nixon, 418 U.S. 683, 709, 94
S.Ct. 3090 (1974), expressly recognized and distinguished privileges against forced
disclosure created by statute, such as the attorney-client privilege, from privileges implied
from a grant of power, such as executive privileges, when it said:.
Only recently the Court restated the ancient proposition of law, albeit in the context of a
grand jury inquiry rather than a trial,
that the public . . . has a right to every man's evidence,' except for those persons
protected by a constitutional, common law, or statutory privilege, United States v. Bryan, 339
U.S. [323], at 331 [70 S.Ct. 724, 94 L.Ed. 884] (1949); Blackmer v. United States, 284 U.S.
421, 438 [52 S.Ct. 252, 76 L.Ed. 375]. . . .' Branzburg v. [Hayes] United States, 408 U.S. 665,
688 [92 S.Ct. 2646, 33 L.Ed.2d 626] (1972).' The privilege at issue in the present case is a
statutory privilege, and as such, is a pronouncement of public policy. The legislature or the
people, as the case may be, formulate policy. Grant and McNamee v. Payne, 60 Nev. 250,
258, 107 P.2d 307 (1940).
[Headnote 2]
Our statute authorizing the exercise of privilege against disclosing government
information is unequivocal and specific. In other jurisdictions such a privilege exists only if
the interest in maintaining the secrecy of the information outweighs due process
considerations in the particular case.
3
In those jurisdictions it becomes necessary for the trial
judge to examine the information claimed to be privileged in order to balance the competing
considerations and determine whether or not disclosure of the information would be against
public policy. Here revelation of the information asserted to be privileged may not be
compelled in order to determine whether or not it is privileged because the legislature has
granted the privilege under the statutes relied upon by the petitioners.
The legislature did not empower the superintendent to place whatever information he
might deem confidential beyond the reach of a court order. Instead, it has specifically
declared all examination reports and all information obtained by the superintendent in
conducting examinations of banks to be confidential and privileged information and has
given the superintendent the absolute right to exercise the privilege of nondisclosure.
It is in the public interest to promote acquisition by the superintendent of banks of full
information regarding the matters within the purview of his official duties, and it is obvious
that without some such protection the information so obtainable would be greatly curtailed.
In Nixon the High Court was dealing with neither a privilege specifically delineated by
statute nor a constitutional reference to a privilege, but rather the President's generalized
interest in confidentiality. See Elson v. District Court, 83 Nev. 515, 436 P.2d 12 (1967).
[Headnote 3]
Here we are not concerned with the balance between a public interest and the need for
relevant evidence in civil litigation because the legislature has determined that the
superintendent of banks making a report required by law has an absolute privilege to refuse to
disclose the contents of that report and a duty to prevent others from disclosing the report.
NRS 49.025(1) (2); NRS 665.055, 665.065, 665.075.
3. Respondent Havas, relying on Ex Parte French, 285 S.W. 513 (1926), contends that the
statutes relied upon by petitioners amount to an unconstitutional classification.
____________________

3
8 Wigmore, Evidence (McNaughton rev.) Sec. 2378, n. 9, citing illustrative statutes from many
jurisdictions.
[Headnote 4]
State statutes which make any unreasonable or arbitrary discrimination between different
persons or different classes of people have been construed to be in violation of the Fourteenth
Amendment. Connolly v. Union Sewer Pipe Co., 184 U.S. 540 (1902). Reasonable
classification of persons or things for the various purposes of legislation is not inimical to
either the United States Constitution or Art. 4, 20, 21, Nevada Constitution. Boyne v. State
ex rel. Dickerson, 80 Nev. 160, 390 P.2d 225 (1964); Shamberger v. Ferreri, 73 Nev. 201,
314 P.2d 384 (1957). See also: Koscot Interplanetary, Inc. v. Draney, 90 Nev. 450, 530 P.2d
108 (1974); Hard v. Depaoli, 56 Nev. 19, 41 P.2d 1054 (1935).
[Headnote 5]
When there is a reasonable ground for the classification and the law operates equally on all
within the same class, the classification is valid. Hinrichs v. First Judicial District Court, 71
Nev. 168, 283 P.2d 614 (1955); State v. Coleman, 67 Nev. 636, 224 P.2d 309 (1950); In Re
Walters' Estate, 60 Nev. 172, 104 P.2d 968 (1940). Cf. Turner v. Staggs, 89 Nev. 230, 510
P.2d 879 (1973).
[Headnote 6]
Since the question of classification is primarily one for the legislature, it is the duty of the
courts to sustain it if there is any reasonable basis for the classification. In Mengelkamp v.
List, 88 Nev. 542, 501 P.2d 1032 (1972), this court said: Petitioners contend that it is
unreasonable, and an abridgment of their privileges and immunities,' to require that persons
must be 21 years of age to serve in our legislature, when they possess the right to vote at 18.
Whenever the legislature draws a line, there often is little demonstrable difference in the
cases on opposite sides of the line and closest to it. Still, unless it be demonstrated that there
is clearly no rational and legitimate reason for the distinction drawn, we must uphold the
law. See also: Norman v. City of Las Vegas, 64 Nev. 38, 177 P.2d 442 (1947).
[Headnotes 7-9]
An act of the legislature is presumed to be constitutional and should be so declared unless
it appears to be clearly in contravention of constitutional principles. County v. County
Comm'rs, 6 Nev. 30 (1879). In cases of doubt, every possible presumption and intendment
will be made in favor of constitutionality. Courts will interfere only in cases of clear and
unquestioned violation of fundamental rights.
violation of fundamental rights. City of Las Vegas v. Ackerman, 85 Nev. 493, 457 P.2d 525
(1969); Ex parte Philipie, 82 Nev. 215, 414 P.2d 949 (1966).
Respondents' reliance on Ex Parte French, 285 S.W. 513 (Mo. 1926) is misplaced because
that court determined the non-disclosure statute unconstitutional because the entities and
institutions which were allowed to be furnished copies of the bank commissioner's
examination were creditors or debtors of state banks and trust companies or conducted
business with them. Here the only entities authorized access to the examination reports are
other information gathering and regulatory agencies. NRS 665.065(1). Furthermore, in Ex
Parte French the record of the bank's dealings were not accessible to the plaintiff except
through the commissioner of finance. Here the pertinent records of the Bank of Nevada are
available to the respondent Havas via subpoena duces tecum.
[Headnote 10]
It is not a matter of judicial concern that our legislature was either prudent or unwise in
clothing the report of the superintendent of banks with the cloak of confidentiality and
affording the superintendent the absolute right to exercise the privilege against disclosure. So
far as the courts are concerned the public policy of the State of Nevada in this regard was
crystallized by enactment of the statute involved. There is no merit in respondent's contention
that the statutes are unconstitutional when measured by the tests of due process and equal
protection of the Fourteenth Amendment of the Constitution of the United States.
[Headnote 11]
4. NRCP 34 is limited to matters within the scope of NRCP 26(b), which authorizes
parties to obtain discovery regarding any matter not privileged. Here the matter is statutorily
privileged. Respondent Havas is not entitled to discovery of the superintendent's examination
reports under NRCP 24.
Let a writ issue prohibiting the respondent court from taking any action to enforce that part
of its order dated December 16, 1974, in case No. A 123437 in the Eighth Judicial District
Court, which would require the Superintendent of Banks of the State of Nevada, The Bank of
Nevada, a Nevada banking corporation, or anyone else to disclose any matter within the
protection of NRS 665.055, 665.065 and 665.075.
____________
91 Nev. 528, 528 (1975) Walker v. State
BERNARD THOMAS WALKER, Appellant, v.
No. 7999
August 26, 1975 539 P.2d 461
Appeal from an order of revocation of probation and execution of sentence; Eighth
Judicial District Court, Clark County; Carl J. Christensen, Judge.
The Supreme Court held that proof of at least five substantive violations by defendant of
the terms and conditions of his probation agreement supplied sufficient evidence to justify
court's discretionary act of revoking probation and executing original sentence.
Affirmed.
Morgan D. Harris, Public Defender, and Joseph T. Bonaventure, Chief Deputy Public
Defender, Clark County, for Appellant.
Criminal Law.
Proof of at least five substantive violations by defendant of the terms and conditions of his probation
agreement supplied sufficient evidence to justify court's discretionary act of revoking probation and
executing original sentence.
OPINION
Per Curiam:
The sole issue on this appeal is whether there was sufficient evidence to sustain the lower
court's discretionary act of revoking appellant's probation and executing the original sentence.
The record reflects proof of at least five substantive violations by appellant of the terms
and conditions of his probation agreement. While appellant attempted to offer mitigating
evidence in his own defense, none of the violations were denied. There was more than ample
evidence to justify the court's action. See Lewis v. State, 90 Nev. 436, 529 P.2d 796 (1974).
____________
91 Nev. 529, 529 (1975) Stevenson v. Kollsman Mineral & Chem.
JAMES STEVENSON and LORETTA STEVENSON, Appellants, v.
KOLLSMAN MINERAL & CHEMICAL CORPORATION, Respondent.
No. 7504
August 26, 1975 539 P.2d 463
Appeal from summary judgment of the Eighth Judicial District Court, Clark County;
Howard W. Babcock, Judge.
Action was brought against owner of mercury mine and mill for mercury poisoning
allegedly contracted by plaintiff while employed at mill. The district court granted defendant's
motion for summary judgment and plaintiff appealed. The Supreme Court held that
acceptance of permanent disability award from Industrial Commission extinguished any
common law right plaintiff might have had against former employer.
Affirmed.
Lionel Sawyer Collins & Wartman, Las Vegas, for Appellants.
Cromer, Barker & Michaelson, Las Vegas, for Respondents.
Workmen's Compensation.
Acceptance of permanent disability award from Industrial Commission extinguished any common law
right plaintiff might have had against former employer for mercury poisoning contracted while employed
at mercury mine and mill. NRS 617.010 et seq.
OPINION
Per Curiam:
Appellant contracted mercury poisoning while employed at respondent's mercury mine and
mill. This action for damages followed. Upon respondent's motion, the district court granted
summary judgment, stating that no genuine issue fact remained and that respondent was
entitled to judgment as a matter of law. This appeal followed.
Initially appellant raised certain issues concerning the applicability of the Occupational
Diseases Act to his case. See: NRS Chap. 617. We deem these issues without merit in light of
appellant's subsequent acceptance of a permanent disability award from the Nevada Industrial
Commission (NIC).
At oral argument, both parties were given permission to file supplemental briefs pertaining
to acceptance of the NIC award.
91 Nev. 529, 530 (1975) Stevenson v. Kollsman Mineral & Chem.
Attached to appellant's brief is a certified copy of proceedings before the commission on
April 25, 1974. The findings of fact reflect that appellant requested and was granted
permanent total disability status. Acceptance of the commission's award extinguishes any
common law right appellant might have had. As this court long ago stated:
At the present time not only has an award been made by the commission but that award
has now been accepted by the plaintiff below. In so doing the plaintiff has accepted the
industrial compensation so awarded in lieu of any common law rights she might have had.
This amounts to accord and satisfaction of such common law rights and has accomplished a
destruction of any right of action, merging it by accord with the compensation award she has
accepted in its place. First Nat'l Bk. v. Dist.Ct., 75 Nev. 77, 82, 335 P.2d 79, 82 (1959).
Affirmed.
____________
91 Nev. 530, 530 (1975) Ennis v. State
CURTIS LEE ENNIS, Appellant, v. THE
No. 7351
August 26, 1975 539 P.2d 114
Appeal from a judgment of conviction for second degree murder; Eighth Judicial District
Court, Clark County; Howard W. Babcock, Judge.
Defendant was convicted before the district court of second degree murder, and he
appealed. The Supreme Court, Batjer, J., held that seizure of rifle in plain view in defendant's
closet at time of arrest was legitimate, and that victim's dying declaration was correctly
admitted.
Affirmed.
Morgan D. Harris, Public Defender, Michael A. Cherry, and Stephen L. Huffaker, Deputy
Public Defenders, Clark County, for Appellant.
Robert List, Attorney General; Roy A. Woofter, District Attorney, and Dan M. Seaton,
Where initial intrusion into defendant's bedroom for purpose of making warrantless arrest of defendant
for fatal shooting of security guard was justified by exigent circumstances, warrantless
seizure of rifle, which was in plain view in bedroom closet at time of arrest, following
arrest and photographing of closet area was legitimate.
91 Nev. 530, 531 (1975) Ennis v. State
security guard was justified by exigent circumstances, warrantless seizure of rifle, which was in plain view
in bedroom closet at time of arrest, following arrest and photographing of closet area was legitimate.
U.S.C.A.Const. Amends. 4, 14.
2. Homicide.
In determining admissibility of dying declaration, sense of impending death may be found where
probable mortal effect of wounds is not hidden, but rather may have revealed itself so that wounded person
strongly believed that death was impending.
3. Homicide.
Declarant's apparent or express belief, and not doctor's prognosis, is determinative of issue whether
declarant sensed impending death when he made statement in question.
4. Homicide.
Where physician, who testified that at time hearsay statement was made by victim that victim had 60
percent to 80 percent chance of living, also testified that victim's wounds were so severe that ordinary
individual having such wounds would think he was dying and that victim so believed, victim's dying
declaration was correctly admitted in prosecution for second degree murder.
5. Criminal Law.
In prosecution for second degree murder, inferences that jury might have drawn that defendant was
ex-felon and that he had stolen gun, which was taken by victim from defendant before fatal shooting, from
testimony that person to whom such gun was registered was also an ex-felon and that the gun
subsequently came up stolen, were too nebulous and remote to be prejudicial.
6. Criminal Law.
Defendant is not entitled to a perfect trial, but only to a fair trial.
OPINION
Appellant challenges his conviction for second degree murder. On the night of April 6,
1972, Armstead Mitchell Sims, a security guard at the Brown Derby Club in Las Vegas,
Nevada, interceded in an argument between appellant and another patron. Sims relieved
appellant of a pistol which he was carrying, and ejected him from the club, assuring him of
the return of his pistol when he had cooled off. Approximately a half hour later, having
been informed of appellant's return, Sims proceeded to the back door of the club to meet him.
A series of shots was heard and officer Sims was found mortally wounded. He died twelve to
fourteen hours later.
Appellant was arrested without a warrant during the early morning hours of April 7, 1972.
At that time a .22 cal. rifle, which police experts testified was possibly the murder weapon,
was seized from appellant's room. [Headnote 1]
91 Nev. 530, 532 (1975) Ennis v. State
[Headnote 1]
1. Appellant's arrest occurred at 4:00 a.m., in his bedroom in an apartment shared with
others. The legality of the arrest is not challenged, but it is contended that the seizure of his
rifle by officers who possessed neither an arrest warrant nor a search warrant abridged his
freedom from unreasonable searches and seizures under the 4th and 14th Amendments to the
United States Constitution.
Appellant concedes, and evidence supports respondent's claim, that the rifle was in plain
view in his closet when it was seized. Nevertheless, relying on Coolidge v. New Hampshire,
403 U.S. 443, 468 (1971), he argues that such seizure must be accompanied by exigent
circumstances, and because the rifle was seized after he was taken into custody and the closet
area photographed, that no exigency attached to the seizure.
In Coolidge, the High Court said: [W]here the initial intrusion that brings the police
within plain view of such an article is supported . . . by one of the recognized exceptions to
the warrant requirement, the seizure is also legitimate. 403 U.S. at 465. Here the seizure was
legitimate because exigent circumstances coincided with the initial intrusion.
[Headnotes 2-4]
2. Appellant next assigns as error the admission into evidence of the victim's dying
declaration, upon the ground that when the hearsay statement was made, the victim had a 60
to 80 percent chance of living, and it was not therefor clearly established that the declarant
sensed impending death when he made the statement.
The physician who testified as to the victim's chance of surviving also testified that the
victim's wounds were so severe that the ordinary individual having such wounds would think
he was dying, and that this particular victim so believed. A sense of impending death may be
found where the probable mortal effect of the wounds is not hidden, but rather it may be
concluded that such probable effect has revealed itself so that the wounded person strongly
believes that death impends. Wilson v. State, 86 Nev. 320, 468 P.2d 346 (1970); State v.
Teeter, 65 Nev. 584, 200 P.2d 657 (1948). It is the declarant's apparent or express belief and
not the doctor's prognosis which is determinative of this issue. That the declarant was in
extremis and eventually died is not in question. The dying declaration was correctly admitted
into evidence. See State v. Roberts, 28 Nev. 350, 82 P. 100 (1905).
91 Nev. 530, 533 (1975) Ennis v. State
[Headnotes 5, 6]
3. While testifying that the victim had given him the pistol, taken from appellant before
the shooting, a police officer volunteered the additional information that the person to whom
the gun was registered was also an ex-felon and [the gun] subsequently came up stolen.
Appellant now asserts error upon the basis that the jury might have drawn the prejudicial
inferences from that testimony that appellant was an ex-felon and that he had stolen the gun.
The questioned testimony was unsolicited and the trial court immediately ordered it
stricken. The inference suggested by appellant is too nebulous and remote to be prejudicial.
Revuelta v. State, 86 Nev. 224, 467 P.2d 105 (1970). Appellant is not entitled to a perfect
trial, but only to a fair trial, which he received. Michigan v. Tucker, 417 U.S. 433 (1974);
Bean v. State, 86 Nev. 80, 465 P.2d 133 (1970); cert. denied 400 U.S. 844 (1970).
Furthermore, the evidence of appellant's guilt was otherwise strong. Layton v. State, 87 Nev.
598, 491 P.2d 45 (1971).
4. Appellant's remaining assignments of error have been considered and are found to be
completely without merit.
Affirmed.
____________
91 Nev. 533, 533 (1975) Williams v. State
LASLEY WILLIAMS, Appellant, v. THE
No. 7909
August 26, 1975 539 P.2d 461
Appeal from conviction of voluntary manslaughter; Eighth Judicial District Court, Clark
County; William P. Compton, Judge.
The Supreme Court held that (1) where defendant was the aggressor, the pursuer and could
not reasonably be said to have been in fear of immediate death or serious injury, an
instruction on self-defense was properly refused by the trial court in murder prosecution, and
(2) trial court did not abuse its discretion in allowing the state to reopen its case in chief to
receive testimony from a police officer concerning statement made to him by defendant, the
gist of which was that defendant had fired fatal shot, since the testimony was significant
for the jury's evaluation and since appropriate preliminary steps were observed, in the
jury's absence, to determine the voluntary nature of the statement.
by defendant, the gist of which was that defendant had fired fatal shot, since the testimony
was significant for the jury's evaluation and since appropriate preliminary steps were
observed, in the jury's absence, to determine the voluntary nature of the statement.
Affirmed.
John F. O'Reilly and Alan R. Johns, of Las Vegas, for Appellant.
George E. Holt, District Attorney, and Dan M. Seaton, Chief Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Although an accused is entitled to have jury instructed about his theory of defense if there is evidence to
support it, such an instruction should not be given if there is no supportive evidence.
2. Homicide.
Where defendant was the aggressor, the pursuer and could not reasonably be said to have been in fear of
immediate death or serious injury, an instruction on self-defense was properly refused by the trial court in
murder prosecution.
3. Homicide.
Supportive evidence was introduced to justify the trial court's jury instruction on first degree murder; in
any event, the jury apparently rejected that evidence since the verdict found defendant guilty of voluntary
manslaughter only.
4. Criminal Law.
Trial court in murder prosecution did not abuse its discretion in allowing the state to reopen its case in
chief to receive testimony from police officer concerning statement made to him by the defendant, the gist
of which was that defendant had fired fatal shot, since the testimony was significant for the jury's
evaluation and since appropriate preliminary steps were observed, in the jury's absence, to determine the
voluntary nature of the statement. NRS 175.141, subds. 3, 4.
OPINION
Per Curiam:
Lasley Williams, charged with murder, was, by the jury, convicted of voluntary
manslaughter. The imposition of prison sentence was suspended and he was granted
probation for the period of five years. By this appeal he seeks to void his conviction, urging
error with regard to jury instructions and the accepting of further evidence after the state had
rested its case. We do not perceive error, and, therefore, affirm.
While working as a clerk in a market, the appellant was struck on the head by one
Henderson, who then fled the store.
The appellant and the store manager, carrying sawed off shotguns, pursued Henderson to a
vacant lot across the street from the store. The appellant heard a noise in the bushes behind
him, turned and fired his shotgun, fatally wounding Henderson.
[Headnote 1]
1. The court did not give a self-defense instruction. The appellant claims that such an
instruction should have been given. Although an accused is entitled to have the jury
instructed about his theory of defense if there is evidence to support it, Barger v. State, 81
Nev. 548, 407 P.2d 584 (1965), such an instruction should not be given if there is no
supportive evidence. Walker v. State, 85 Nev. 337, 455 P.2d 34 (1969).
[Headnote 2]
The evidence here does not suggest a foundation for a self-defense instruction. The
appellant was the aggressor, the pursuer and cannot reasonably be said to have been in fear of
immediate death or serious injury. The court properly refused the proffered instruction.
[Headnote 3]
Neither do we perceive error by the trial court in giving the jury an instruction concerning
first degree murder. There was some supportive evidence for that instruction. In any event,
the jury apparently rejected that evidence since its verdict found voluntary manslaughter only.
Other claimed errors concerning jury instructions not given have been considered and are
without substance.
[Headnote 4]
2. The court allowed the state to reopen its case in chief to receive testimony from a police
officer concerning a statement made to him by the appellant, the gist of which was that the
appellant had fired the fatal shot. The court did not err. In the search for truth, the evidence
received was significant for the jurors' evaluation. Appropriate preliminary steps were
observed, in the absence of the jury, to determine the voluntary nature of the statement. The
order of trial contemplated by NRS.175.141 (3) (4) was not offended. The court, in allowing
the state to reopen, acted well within its discretion.
Affirmed.
____________
91 Nev. 536, 536 (1975) Seigworth v. State
REID L. SEIGWORTH, Appellant, v. THE
No. 7941
August 26, 1975 539 P.2d 464
Appeal from order and judgment forfeiting appearance bond. First Judicial District Court,
Lyon County; Noel E. Manoukian, Judge.
The Supreme Court, Zenoff, J., held that bail bondsman, who was only authorized to
perform specific, separate acts by power of attorney from surety, and whose powers, made a
part of bail bonds, expressly stated in display type THIS POWER VOID IF ALTERED OR
ERASED, was a special agent of insurer and not a general agent, and that such bail
bondsman, as attorney-in-fact for purpose of binding surety, a disclosed principal, was not
himself a surety for appearance bond, and could not be held liable for bond forfeiture.
Judgment reversed and vacated.
Robert List, Attorney General; and Ronald T. Banta, District Attorney, Lyon County, for
Respondent.
Ordinarily, a general agent may bind his principal in most circumstances, but authority of a special agent
is limited to area for which authority is granted.
A special agent is an agent authorized to conduct a single transaction or a series of transactions not
involving continuity of service.
3. Insurance.
A special insurance agent is only an agent of the insurer until time of closing of the application, and after
the contract is made all of his functions as agent, except to receive premiums, cease.
Extent of a power of attorney must be determined by language employed on the document aided by the
situation of the parties and surrounding circumstances.
Bail bondsman, who was only authorized to perform specific, separate acts by power of attorney from
surety, and whose powers, made a part of bail bonds, expressly stated in display type THIS POWER
VOID IF ALTERED OR ERASED, was a special agent of the insurer, and not a general agent.
Unless otherwise agreed, a person making or purporting to make a contract with another as
agent for a disclosed principal does not become a party to the contract.
make a contract with another as agent for a disclosed principal does not become a party to the contract.
Bail bondsman, as attorney-in-fact for purpose of binding surety, a disclosed principal, was not himself a
surety for appearance bond, and could not be held liable for bond forfeiture.
OPINION
Reid L. Seigworth was released from custody on a felony charge filed in Lyon County
after posting two bail bonds of $10,000 and $1,000. The surety, Resolute Insurance
Company, is a Rhode Island corporation with principal offices in Hartford, Connecticut. Its
general agent is J. McIntosh of Reno. The bonds were procured for Seigworth by Gordon
Drendel, Sr., an agent of Mac's Bail Bonds. Drendel signed both bail bonds as attorney-in-fact
for Resolute, as authorized by a special power of attorney filed with the bail bonds.
Seigworth did not appear in First Judicial District Court in Yerington at the time set for
trial and has not since been seen.
The district judge ordered notice of the defendant's failure to appear pursuant to NRS
178.508, and that the bondsman had 90 days to produce the defendant before bond was
forfeited. That notice was sent to Mac's Bail Bonds, Gordon Drendel, Sr., Agent, at that firm's
Reno address. A copy of the notice was sent to the Lyon County District Attorney. No notice
was sent to Resolute or to Resolute's Nevada general agent, McIntosh.
Subsequently, the district attorney made demand upon Mac's Bail Bonds and Gordon
Drendel, Sr., for the $11,000 face amount of the bonds; thereafter, a motion for forfeiture was
filed against Resolute notice of which was sent by the district attorney to Seigworth's attorney
and to Drendel's attorney. No other notice appears in the record.
On August 21, 1974, a written decision including the order was entered in district court
expressly allowing a remission of $2,500.00 and forfeiture of $8,500.00 by the Resolute
Insurance Company and Mac's Bail Bonds' to the County of Lyon.
This appeal follows. Although the appeal is in the name of Seigworth, the true party in
interest is Gordon Drendel, Sr., dba Mac's Bail Bonds, Reno.
The first issue to be resolved is whether a bail agent, commonly known as a bail
bondsman, acting pursuant to the authority of a limited power of attorney, is a general agent
or a special agent of the insurer.
[Headnotes 1-3]
While ordinarily a general agent may bind his principal in most circumstances, the
authority of a special agent is limited to the area for which authority is granted. A special
agent is an agent authorized to conduct a single transaction or a series of transactions not
involving continuity of service. Restatement, Second, Agency, 3(2). A special insurance
agent is only an agent of the insurer until the time of closing of the application, and after the
contract is made all of his functions as agent, except to receive premiums, cease. Healey v.
Imperial Fire Ins. Co., 5 Nev. 268 (1869).
[Headnote 4]
The extent of a power of attorney must be determined by the language employed in the
document aided by the situation of the parties and surrounding circumstances. Maynard v.
Mercer, 10 Nev. 33 (1875). Cf. Restatement, supra, 27, Comment (b). More recently, Ellis
v. Nelson, 68 Nev. 410, 233 P.2d 1072 (1951), states that if inferences against existence of
the agent's authority to act are as reasonable as those in favor of such authority, there can be
no reliance on the rule relating to the agent's apparent authority to act for the principal.
In this case Gordon Drendel, Sr., was only authorized to perform specific, separate acts by
the power of attorney from Resolute.
1
Those powers, made a part of the bail bonds,
expressly state in display type, THIS POWER VOID IF ALTERED OR ERASED, thus
limiting Drendel's authority to just those acts expressly authorized. Furthermore, the front of
the bail bonds, as folded, states that J. McIntosh is Resolute's general agent and that Mac's
Bail Bonds is a bail agent.
____________________

1
That RESOLUTE INSURANCE COMPANY, a Rhode Island Corporation, having its principal office in the
City of Hartford, State of Connecticut, does hereby make, constitute and appoint Gordon Drendel, Sr. in the City
of Reno, County of Washoe, State of Nevada, its true and lawful attorney-in-fact for it and in its name, place and
stead, to execute, and deliver for and on his behalf, and as its act and deed, as surety, a criminal bail bond,
supersedeas bond, peace bond, fine or cost bond or any kind of criminal appearance bond on behalf of Reid L.
Seigworth, to be posted and filed in Smith Valley Justice Court provided that the liability of the company as
surety on any such bail bond executed under this authority shall not in any event exceed the sum shown above
hereof. The said attorney-in-fact is hereby authorized to insert in the spaces provided, in this power-of-attorney,
the name of the defendant on whose behalf such bond is given, and the name of the court to which the bond is
issued, otherwise
THIS POWER VOID IF ALTERED OR ERASED.
[Headnote 5]
The facts of this case compel us to conclude that Gordon Drendel, Sr., dba Mac's Bail
Bonds was a special agent possessing only the authority to bind his principal, Resolute, to a
contract with Seigworth which names Lyon County as beneficiary.
Having determined the status of Drendel acting for Mac's Bail Bonds, we now turn to the
question, is a bail agent, as attorney-in-fact for the purpose of binding the insurer, himself a
surety for the appearance bond?
[Headnote 6]
Unless otherwise agreed, a person making or purporting to make a contract with another as
agent for a disclosed principal does not become a party to the contract. Restatement, Second,
Agency 320. See also, Restatement, 4(1); Restatement, 4 Comment (a); and,
Restatement, 328.
[Headnote 7]
Resolute Insurance Company is a disclosed principal; Drendel, dba Mac's Bail Bonds is an
agent. Drendel cannot be liable for the bond forfeiture.
Accordingly, the district court's judgment against Drendel, dba Mac's Bail Bonds, cannot
stand.
Resolute Insurance Company does not appear to be a party to this proceeding; accordingly,
we do not reach the issue of whether notice to a special agent constitutes notice to the surety
as required by NRS 178.508.
Reversed and vacated.
_____________
91 Nev. 539, 539 (1975) Bingham v. Bingham
YURIKO BINGHAM aka YURI BINGHAM, Appellant,
v. REGINALD CLARK BINGHAM, Respondent.
No. 8008
August 26, 1975 539 P.2d 118
Appeal from an order construing a divorce decree, Eighth Judicial District Court, Clark
County; Clarence Sundean, Judge.
The district court found that wife was not entitled to assistance from husband in
supporting son after he reached 18 years of age, and wife appealed.
of age, and wife appealed. The Supreme Court held that intervening statutory amendment
reducing age of majority to 18 did not affect husband's obligation to pay child support beyond
such age under settlement agreement.
Reversed.
Scotty Gladstone, Las Vegas, for Appellant.
Jones, Jones, Bell, LeBaron and Close, Las Vegas, for Respondent.
Husband and Wife.
Intervening statutory amendment reducing age of majority to 18 did not affect father's obligation to
pay child support beyond such age for son under settlement agreement which was incorporated into
divorce decree and which provided that father would pay $100 a month for support and maintenance of
each child during minority of children. NRS 129.010.
OPINION
Per Curiam:
When the parties to this action divorced in 1969, they entered into a settlement agreement
wherein the husband, respondent herein, agreed to pay appellant $100 per month for the
support and maintenance of each child . . . during the minority of said children. At the time,
NRS 129.010 declared 21 to be the age of majority for males; thus, it seems clear the parties
intended that respondent's obligation to assist appellant in supporting their son would
continue until he attained age 21. The court's decree of divorce approved their agreement,
reciting that the same is hereby merged and incorporated into this judgment and decree as a
part hereof.
In 1973, our Legislature amended NRS 129.010 to recite that [a]ll persons of the age of
18 years who are under no legal disability, shall be capable of entering into any contract, and
shall be, to all intents and purposes, held and considered to be of lawful age. This enactment
apparently precipitated controversy concerning the rights of appellant, who moved for an
order construing the decree. The district court determined that appellant was not entitled to
assistance in supporting the parties' son, after he reached the age of majority as re-defined
in NRS 129.010, and this appeal followed.
We believe the district court erred. On the date of the agreement and the decree it was
contemplated that such payments would continue until the [child] attained age 21 which was
then the statutory age of majority for male children. The intervening amendment reducing
to 1S the age of majority from 21 did not affect the father's obligation to pay child
support until age 21 or until the child was emancipated."
intervening amendment reducing to 18 the age of majority from 21 did not affect the father's
obligation to pay child support until age 21 or until the child was emancipated. Carpenter v.
Carpenter, 316 N.E.2d 207, 208-209 (Ill.App. 1974). Accord: Ruhsam v. Ruhsam, 518 P.2d
576 (Ariz. 1974); Worrell v. Worrell, 489 S.W.2d 817 (Ky. 1973).
Reversed.
____________
91 Nev. 541, 541 (1975) Luckett v. Warden
FRANK LUCKETT, Appellant, v. WARDEN,
No. 8044
September 8, 1975 539 P.2d 1219
The Supreme Court held that the word negotiable, as used in information charging that
accused did willfully and unlawfully steal, take and carry away personal property, to wit:
negotiable gambling chips of the value of $800 was mere surplusage and did not render
information defective on theory that gambling chips are not freely negotiable.
Affirmed.
Horace R. Goff, State Public Defender, and Michael Griffin, Deputy State Public
Indictment and Information.
Term negotiable in information which charged that accused did willfully and unlawfully steal, take
and carry away personal property, to wit: negotiable gambling chips of the value of $800 was mere
surplusage and did not render information fatally defective on theory that gambling chips are not freely
negotiable; if accused felt prejudiced by the use of the word, his remedy was pretrial motion to strike.
NRS 173.085.
OPINION
Per Curiam:
Frank Luckett, convicted of grand larceny and currently incarcerated under a six-year
prison term, is appealing from a district court order denying his petition for post-conviction
relief.
district court order denying his petition for post-conviction relief.
The pertinent part of the information upon which he was convicted charged that Luckett .
. . did wilfully and unlawfully steal, take and carry away personal property, to wit: negotiable
gambling chips of the value of $800.00, . . .
His only cognizable contention below, and in this appeal, is that the information is fatally
defective because it included the word negotiable, when in fact, gambling chips are not
freely negotiable.
The contention is without merit. At most we deem the word negotiable, as used in the
now challenged information, to be mere surplusage. See State v. Lawry, 4 Nev. 161 (1868);
Nevada v. Pierce, 8 Nev. 291 (1873). If Luckett felt the word was prejudicial, his remedy was
a pretrial motion to have it stricken, pursuant to NRS 173.085. See Carson v. Sheriff, 87 Nev.
357, 359, 487 P.2d 334, 335 (1971).
Affirmed.
____________
91 Nev. 542, 542 (1975) Spiegelman v. Gold Dust Texaco
NANCY SPIEGELMAN, SCOTT SPIEGELMAN, TRACY SPIEGELMAN, STEVE
SPIEGELMAN, and JACK SPIEGELMAN, Minors, by and Through Their Guardian Ad
Litem, AARON SPIEGELMAN; and AARON SPIEGELMAN, Individually, Appellants, v.
GOLD DUST TEXACO, JAMES KLATT, RALPH KLATT, JAMES E. SCHEELER, and
TEXACO OIL COMPANY, a Corporation, Respondents.
No. 7603
September 8, 1975 539 P.2d 1216
Appeal from judgment on an order of dismissal under Rule NRCP 41(e), entered in the
Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Action was instituted for wrongful death and personal injuries arising from automobile
accident. The district court granted defendants' motion to dismiss complaint with prejudice,
and plaintiffs appealed. The Supreme Court, Mowbray, J., held that dismissal of case by
reason of a prior delay in its prosecution constituted an abuse of discretion where it was being
presently prosecuted with diligence.
Reversed and remanded for trial on the merits.
Hilbrecht, Jones & Schreck, Las Vegas; Walkup, Downing & Sterns and Jerry O'Reilly,
San Francisco; and Robert A. Seligson, San Francisco, for Appellants.
Albright & McGimsey, Las Vegas, for Respondents Gold Dust Texaco, James Klatt, Ralph
Klatt, and James E. Scheeler.
Rose, Norwood & Edwards, Las Vegas, for Respondent Texaco Oil Company.
Dismissal and Nonsuit.
Dismissal of wrongful death and personal injury action by reason of a prior delay in its prosecution
constituted an abuse of discretion where it was being presently prosecuted with diligence. NRCP 41(e).
OPINION
This is an appeal by Plaintiffs Nancy Spiegelman, Scott Spiegelman, Tracy Spiegelman,
Steve Spiegelman, and Jack Spiegelman, minors, by and through their guardian ad litem,
Aaron Spiegelman, and Aaron Spiegelman, individually, from a judgment entered in favor of
Defendants Texaco, Inc., and Ralph Klatt and James E. Scheeler, doing business as Gold
Dust Texaco, following an order granting defendants' motion to dismiss the complaint with
prejudice under NRCP 41 (e).
Plaintiffs filed their complaint on November 25, 1969, seeking damages for wrongful
death and personal injuries that resulted from an automobile accident. The plaintiffs alleged,
in substance, that defendants performed work on a 1967 Ford station wagon prior to the
accident, and that as part of this work the defendants removed the left rear wheel of the
vehicle but replaced it in a negligent and careless manner. As a direct and proximate result of
this negligence, plaintiffs allege that the wheel came off, the vehicle went out of control, and
it collided head on with another automobile. Gaye Spiegelman, mother of the five surviving
minor plaintiffs, was killed; three other children, David, Sylvia, and Mark Spiegelman, were
killed; and four other children who were in the automobile suffered severe injuries. Discovery
was actively pursued for about 6 months after the complaint was filed. Interrogatories and
requests for admissions were served and answered. In April 1970 the depositions of
Defendants Ralph Klatt and James Scheeler were taken. There was no further activity in the
case, however, until January 31, 1973, when plaintiffs filed a substitution of attorneys,
naming Frank A. Schreck as their counsel. On February 12, 1973, plaintiffs served
interrogatories on Defendant Texaco; they were answered on April 10, 1973.
12, 1973, plaintiffs served interrogatories on Defendant Texaco; they were answered on April
10, 1973. On May 11, 1973, plaintiffs filed a demand for jury trial, together with a note for
trial docket, requesting that the case be set for trial.
On May 24, 1973, plaintiffs filed a motion for leave to take a number of depositions,
together with the affidavit of Mr. Schreck stating that counsel for Defendants James and
Ralph Klatt, James Scheeler, and Gold Dust Texaco does not object to further discovery.
The record does not reflect whether counsel for Texaco, Inc., objected to the taking of the
depositions, but Texaco did not make any motion to dismiss the case at that point for lack of
prosecution. On June 4, 1973, Judge Leonard I. Gang granted plaintiffs' motion; and plaintiffs
then filed and served notice of taking depositions of T. V. Rossiter, L. W. Slover, T. L. Carey,
and Dwight Pilger, scheduling them for July 17 and 18, 1973. The depositions of Mr. Slover
(sales representative of Texaco, Inc.), Mr. Rossiter (former sales representative of Texaco,
Inc.), and Mr. Pilger (sales supervisor of Texaco, Inc.) were taken on those dates. Mr. Carey
(district sales manager of Texaco) was served with a new notice on August 13, and his
deposition was eventually taken on October 19, 1973.
On August 7, 1973, Texaco served notice to take depositions of plaintiffs. Plaintiffs,
residing in Santa Rosa, California, traveled to Las Vegas, and on August 30, 1973, their
depositions were taken. Requests to produce various items of evidence were made in August
1973 by both Texaco and plaintiffs. In November, Texaco initiated further discovery and
noticed the depositions of Elwyn Dennis Hanes and Marvin Paul Brody. In the meantime,
supplemental interrogatories propounded by plaintiffs were answered by Texaco on October
25, 1973. On November 26, 1973, plaintiffs noticed the depositions of William Linn
(manager of advertising and sales promotion), Kerryn King (senior vice president, public
affairs), and Armon M. Card (vice president, sales department), to be taken at Texaco's office
in New York City on January 14, 1974; and plaintiffs had a commission issued for the taking
of these depositions.
The case had been set for trial on January 21, 1974. However, since additional discovery
was desired by both sides, and counsel who would be trying the case on behalf of plaintiffs
had another trial date scheduled for that time, plaintiffs filed, on November 21, 1973, a
motion to continue the trial date to April 1974. The court granted a continuance until May 13,
1974, but it also granted defendants leave to file a motion to dismiss for lack of
prosecution.
1974, but it also granted defendants leave to file a motion to dismiss for lack of prosecution.
Counsel for Texaco meanwhile again noticed the deposition of Mr. Brody, scheduling it for
December 13, 1973. Following the court's action, Texaco and the remaining defendants filed
motions to dismiss. Judge Carl J. Christensen granted these motions and ordered the action
dismissed with prejudice on December 13, 1973. Judgments were thereupon entered on the
order, and plaintiffs have appealed.
1. Defendants waited until December 1973 to seek dismissal of this action. By that time, a
date had been set for trial, and plaintiffs had diligently pursued their case for approximately a
year. From January 31, 1973, when Mr. Schreck became plaintiffs' counsel of record, until the
time of dismissal, extensive discovery was actively carried on by both plaintiffs and
defendants. It was not until plaintiffs' counsel requested a continuance to facilitate further
discovery by both sides and to alleviate a conflict that defendants made any effort to seek
dismissal for lack of prosecution. When the motion to dismiss was granted, there was in fact
no lack of prosecution.
2. The issue before us, then, is whether, as a matter of law, the trial court abused its
discretion in dismissing this action. In Harris v. Harris, 65 Nev. 342, 350, 196 P.2d 402, 406
(1948), this court stated:
. . . The only limitation upon the discretionary power of the court to dismiss a cause for
delay in its prosecution is that it must not be abused. [Citation omitted.] Each particular case
presents its own peculiar features, and no iron clad rule can justly be devised applicable alike
to all. [Citations omitted.]
. . . The discretion to be exercised, under the circumstances of the particular case, is a
legal discretion, to be exercised in conformity with the spirit of the law and in such a manner
as to subserve and not to impede or defeat the ends of substantial justice. [Citation omitted.]
3. The spirit of the law is that matters be heard on their merits; where a case is presently
being prosecuted with diligence, it serves the interests of justice that the matter be presented
to the trier of fact at trial. The applicable rule is set forth in 9 C. Wright, Federal Practice &
Procedure, Civil 2370, at 204, as follows:
There are no rigid time limits that govern and all of the circumstances in each particular
case must be considered in determining whether there has been a failure to prosecute that is
sufficiently serious to justify dismissal.
is sufficiently serious to justify dismissal. Excuses may be shown that will justify the delay in
question, but the fact that a plaintiff has been stirred into action by a threat of dismissal is no
excuse. However, if the claim is presently being prosecuted with diligence it cannot be
dismissed because at some earlier time plaintiff did not act diligently. (Footnotes omitted;
emphasis added.)
Federal courts have recognized the proviso emphasized above. For example, in Rollins v.
United States, 286 F.2d 761 (9th Cir. 1961), the court stated that, while it would not have
been an abuse of discretion to dismiss an action for lack of prosecution during a lengthy
period of inactivity, where the judge fails to do so, the pendency of the action on a later date
is sufficient to authorize the judge to cause an alias summons to be issued and to allow the
plaintiff to proceed with his action. There having been no lack of diligence on the part of the
plaintiff in bringing the action to trial following the issuance of the alias summons, it was
held to be error thereafter to dismiss the action; and in United States v. Myers, 38 F.R.D. 194,
197 (N.D. Cal. 1964), the court specifically held that, where the plaintiff was presently
prosecuting the claim with reasonable diligence, the action could not be dismissed under Rule
41(b) of the Federal Rules of Civil Procedure because at some earlier time the plaintiff had
failed to act with diligence.
Similarly, the Supreme Courts of our sister states have observed this tenet. In State v.
McClaine, 300 N.E.2d 342, 344 (Ind. 1973), the Supreme Court of Indiana held: A motion
to dismiss for want of prosecution should not be granted if the plaintiff resumes diligent
prosecution of his claim, even though, at some prior period of time, he has been guilty of
gross negligence. In First Nat'l Bank v. Taylor, 488 P.2d 1026 (Alaska 1971), the Supreme
Court of Alaska held that the rule of civil procedure pertaining to dismissal for want of
prosecution applies only where the motion to dismiss is filed before the period of lapse is
terminated by some affirmative action on the part of the plaintiff. In reversing the judgment
of dismissal, the court stated, at 1032:
The purpose of Rule 41(e) is to encourage plaintiffs to keep their cases moving at a
reasonable speed and to allow the court to clear the calendar of cases that are not being
prosecuted diligently. Where, however, the lapse has already occurred, and further
proceedings have been taken, it is neither necessary or [sic] justifiable to allow dismissal
because a party finds, as Taylor here found, that nearly two years prior to the motion to
dismiss a lapse in excess of one year has occurred.
We therefore hold that the present action was not properly dismissable under Civil
Rule 41 (e).
The Supreme Court of New Mexico has rendered numerous decisions on this point. In
Martin v. Leonard Motor-El Paso, 402 P.2d 954, 957 (N.M. 1965), the court expressed a
basic equitable concern for withholding dismissal where a plaintiff, dilatory in the past,
resumes active prosecution: We think it clear that the rights afforded by the rule are intended
to expedite the prosecution of litigation in our courts, and that to be effective in
accomplishing that purpose, the defendant may not sleep upon such rights and permit a party
to continue prosecution of a case which is subject to being dismissed upon motion, expending
both time and money [cite omitted], and particularly to take action to bring the case to its
final determination, and then press for a dismissal.
See also Beyer v. Montoya, 402 P.2d 960 (N.M. 1965); Dollison v. Fireman's Fund Ins.
Co., 423 P.2d 426 (N.M. 1967); State v. Molybdenum Corp., 496 P.2d 1086 (N.M. 1972).
Finally, in Denham v. Superior Court, 86 Cal.Rptr. 65, 71, 468 P.2d 193, 199 (1970), the
California Supreme Court, in holding that where both parties had indicated that they are ready
for trial an action should not be dismissed for lack of prosecution, expressed another
fundamental concern supporting this concept: Although a defendant is entitled to the weight
of the policy underlying the dismissal statute, which seeks to prevent unreasonable delays in
litigation, the policy is less powerful than that which seeks to dispose of litigation on the
merits rather than on procedural grounds. [Cite omitted.] See, also, Brown v. Superior
Court, 86 Cal.Rptr. 670, 671 (Cal.App. 1970).
We believe that, under the facts of the instant case, it was an abuse of discretion to grant
the defendants' 41(e) motion to dismiss for lack of prosecution and that the parties should
have their day in court. The case is therefore reversed and the cause remanded for trial on the
merits of the action.
____________
91 Nev. 548, 548 (1975) Cummings v. Tinkle
PHIL CUMMINGS, Administrator of the Estate of RICHARD DOYLE TINKLE, Deceased,
Appellant, v. BERT GORMAN TINKLE, Respondent.
No. 7461
September 8, 1975 539 P.2d 1213
Appeal from judgment of the Eighth Judicial District Court, Clark County; Leonard I.
Gang, Judge.
The former wife brought a suit in equity against the estate of her deceased, former husband
for an implied trust with respect to interest in land which had been conveyed to the decedent
alone. The district court entered a judgment finding an implied trust in plaintiff's favor for the
entire interest in land and the administrator appealed. The Supreme Court held that the
resulting trust was proper where the plaintiff furnished all but a de minimus amount of the
consideration for the conveyance which was to compensate the parties for services rendered
and that under circumstances it was proper to impose a resulting trust in plaintiff's favor for
the entire interest in land.
Affirmed.
Robert K. Dorsey, Las Vegas, for Appellant.
Peter L. Flangas, Las Vegas, for Respondent.
1. Trusts.
Constructive and resulting trusts have as their basic objective the recognition and protection of property
rights that have arisen in an innocent party, and a vital tenet is one of equity.
2. Trusts.
Where consideration for property is provided by one party but title is taken by another, and circumstances
negate possibility of consideration being a gift, equity will intervene to protect rights of first party.
3. Trusts.
Where decedent and the plaintiff agreed to manage a trailer park in consideration for a conveyance of
land and thereafter plaintiff did all but a de minimus amount of work in the management and operation of
the park but land was conveyed to decedent alone only prior to his death, a resulting trust in favor of
plaintiff would be declared based on presumed intention of parties.
Where the administrator of the estate rather than decedent repudiated the trust in favor of plaintiff and
plaintiff thereafter duly instituted action, the statute of limitations did not bar suit in equity for an implied
trust with respect to interest in land.
In absence of any citations of authority for claimed error, Supreme Court need not consider it. 6.
6. Trusts.
Where husband and wife contemplated that the land, which was erroneously conveyed
to the husband alone although the wife performed the major consideration for
conveyance in form of services, would be community property and the land would have
been except for the subsequent divorce of the parties, on the decedent's death and the
administrator's repudiation of trust a resulting trust in favor of plaintiff as to the entire
interest in land was proper.
OPINION
Per Curiam:
In December 1962, Richard Doyle Tinkle married Bert Gorman Tinkle. They resided in a
Las Vegas trailer park owned by their friends, Mr. and Mrs. L. D. Guilford of Wyoming.
Early in 1963, the Guilfords asked the Tinkles to take over the complete care and
management of the park until the property could be sold. It was agreed that, upon sale of the
trailer park, the Guilfords would deed to the Tinkles a separate, 2-acre parcel of real estate
located in Clark County, in consideration for their services. Accordingly, the Tinkles
managed the trailer park until it was sold. The Guilfords then deeded away the 2-acre parcel,
but named only Richard Doyle Tinkle as grantee. Richard died; Bert thereafter learned of the
discrepancy in the deed. She filed a creditor's claim in Richard's estate, which was rejected.
Bert then sued in equity, the trial court finding an implied trust in her favor.
1. The trial court specifically found that, from March 1963 to October 1967, a period of
some 4 1/2 years, Bert was responsible for all but a de minimis amount of work in the
management and operation of the trailer park. (She collected the rent, kept the books, cleaned
the park, mowed the lawns, read the utility meters, and showed the property to prospective
purchasers.) Further, the court found, the Guilfords were aware of her work, and it was their
intention to benefit her by the conveyance. Richard worked during this period as a casino
dealer. The administrator of Richard's estate, the appellant, claimed that, since Richard and
Bert were divorced in 1966,
1
she is entitled to nothing and that the trial court erred in finding
a legal or implied trust.
The issue presented is not complex. Bert seeks to establish an interest in property which
is the subject of a deed in Richard's name.
____________________

1
A divorce was obtained. However, the parties never interrupted their marriage or ceased living together as
man and wife. Richard, the day of the divorce, tore up the decree and told Bert it meant nothing. They continued
to live together until Richard's demise.
an interest in property which is the subject of a deed in Richard's name. The trial court held
that the consideration for the deed was provided by services rendered principally by Bert. The
appellant would deny Bert's interest via a highly stultified discussion of resulting and
constructive trusts. We have no difficulty in finding a remedy.
[Headnotes 1, 2]
Constructive and resulting trusts are similar in that their basic objectives are the
recognition and protection of property rights that have arisen in an innocent party. The vital
tenet is one of equity. Where the consideration for the property is provided by one party, but
title is taken by another, and the circumstances negate the possibility of the consideration
being a gift, equity will intervene to protect the rights of the first party. Cf. Werner v.
Mormon, 85 Nev. 662, 462 P.2d 42 (1969); Schmidt v. Merriweather, 82 Nev. 372, 418 P.2d
991 (1966). This court stated in White v. Sheldon, 4 Nev. 280, 287-288 (1868):
. . . [I]t is argued that the services performed by White did not raise an implied trust in his
favor. Counsel attempt to make a distinction between the payment of money in cases of this
kind and the rendering of services, but we apprehend the distinction is one not recognized in
the books nor maintainable on principle. Equity looks to the consideration, and creates a trust
in favor of him who furnishes it, regardless of whether such consideration be money or labor,
or property given in exchange. Implied trusts are based upon the broad principle that he who
furnishes the consideration is entitled to the property, and equity does not permit any
unsubstantial distinctions to defeat the operation of its liberal and rational rules. . . .
[Headnote 3]
Thus, the determinative issue in the case at hand is whether consideration was furnished in
whole or in part by Bert, it being understood that Bert's service was not a gift. The court
below concluded, and we agree, that the answer is in the affirmative and that when the land
was deeded erroneously to Richard as sole grantee, he took title to the land in trust for Bert, a
resulting trust based on the presumed intention of the parties.
[Headnote 4]
2. Appellant's contention that the statute of limitations had run is without merit. Davidson
v. Streeter, 68 Nev. 427, 234 P.2d 793 (1951). The administrator of the estate, rather than the
decedent, repudiated the trust, and the respondent duly instituted this action after such
repudiation. [Headnotes 5, 6]
[Headnotes 5, 6]
3. Finally, appellant urges error in that the trial court awarded the total 2 acres as being
within the trus res, rather than one-half as urged at trial. Appellant fails to cite any authority
for this claimed error, and as such we need not consider it. Bradshaw v. General Electric Co.,
91 Nev. 124, 531 P.2d 1358 (1975); General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366
(1972). As we view the record, the parties contemplated that the land in question would be
community property, which it would have been but for the divorce. In such circumstances, it
would have been vested totally in Bert upon Richard's death. The resulting trust, as imposed
by the district court, will achieve that purpose.
Finding no error, we affirm the judgment.
____________
91 Nev. 551, 551 (1975) Cranford v. Sheriff
MELVIN L. CRANFORD, Appellant, v. SHERIFF,
LANDER COUNTY, NEVADA, Respondent.
No. 8311
September 8, 1975 539 P.2d 1215
Appeal from order denying two pretrial petitions for habeas corpus, Third Judicial District
Court, Lander County; William P. Beko, Judge.
Accused, who was charged with assault and battery with intent to kill, use of deadly
weapon in the commission of a crime, and being a ex-felon in possession of a firearm, filed
two pretrial petitions for habeas corpus. The district court denied relief and accused appealed.
The Supreme Court held that court would not decide whether the evidence presented to
magistrate at preliminary hearing was sufficient to support a conviction; that where state, at
preliminary hearing, offered neither probative nor demonstrable evidence that accused was an
ex-felon, count charging him with being an ex-felon in possession of a firearm could not
stand; and that habeas corpus was not the proper method to challenge prospective admission
of certain evidence which was allegedly inadmissible for constitutional reasons.
The appeal from the order denying the first petition is affirmed in part; reversed in
part. The appeal from the order denying the second petition is dismissed.
[Rehearing denied September 29, 1975] Horace R.
Robert List, Attorney General, Carson City; George G. Holden, District Attorney, Lander
1. Criminal Law.
In reviewing order holding accused for trial on basis that there was probable cause, Supreme Court would
not decide whether the evidence presented to the magistrate would support a conviction.
Where state, at preliminary hearing, offered neither probative nor demonstrable evidence that accused
was an ex-felon, count charging accused with being an ex-felon in possession of a firearm could not stand.
3. Habeas Corpus.
Habeas corpus was not proper method to challenge, before trial, admissibility of certain incriminating
evidence which was allegedly inadmissible for constitutional reasons; proper procedure to be utilized was a
motion to suppress.
OPINION
Per Curiam:
Following an altercation at an apartment in Battle Mountain, Melvin Cranford was
charged with and ordered to stand trial for (1) assault and battery with intent to kill; (2) use of
a deadly weapon in the commission of a crime; and, (3) being an ex-felon in possession of a
firearm.
Two pretrial petitions for habeas corpus were filed. The first contended there was
insufficient evidence adduced at the preliminary examination to establish probable cause to
hold Cranford for trial. The second habeas petition was directed to the question of the
admissibility of incriminating evidence, which Cranford claims was illegally obtained
because his warrantless arrest was constitutionally void. Both habeas petitions were denied in
a single order and this appeal follows.
[Headnote 1]
1. The probable cause challenge to counts 1 and 2 is without merit. At this juncture we
need not and do not decide whether the evidence before the magistrate would support a
conviction. Cf. McDonald v. Sheriff, 89 Nev. 326, 512 P.2d 774 (1973).
[Headnote 2]
2. Count 3 charges Cranford with being an ex-felon in possession of a firearm.
possession of a firearm. The state offered neither probative nor demonstrable evidence that
Cranford was an ex-felon; therefore, the charge cannot stand.
[Headnote 3]
3. The motion to suppress is the remedy normally used to preclude the introduction of
evidence at trial which is claimed to be inadmissible for constitutional reasons, and is the
remedy contemplated by our criminal code . . . This is the procedure to be utilized when an
accused wishes to challenge the admissibility of evidence on constitutional grounds. Cook v.
State, 85 Nev. 692, 694-695, 462 P.2d 523, 526 (1969). (Emphasis added.) The appeal from
the second habeas petition is dismissed, without prejudice to Cranford's right to timely pursue
a motion to suppress. NRS 174.125; Cook, supra; Prescott v. State, 85 Nev. 448, 456 P.2d
450 (1969).
The order of the trial court denying the first habeas petition is reversed as to count 3; as to
counts 1 and 2, it is affirmed.
____________
91 Nev. 553, 553 (1975) Batesel v. Schultz
MICHAEL BATESEL, an Infant, by MICHAEL B. BATESEL, His Guardian Ad Litem; and
MICHAEL B. BATESEL and MURIEL BATESEL, Husband and Wife, Natural Parents and
Guardians of MICHAEL BATESEL, Appellants, v. JOHN SCHULTZ, an Infant,
Respondent.
No. 7493
September 17, 1975 540 P.2d 100
Appeal from a judgment of the First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
In action arising out of automobile accident, the district court rendered judgment on
verdict for defendant and plaintiffs appealed. The Supreme Court, Mowbray, J., held that
giving of instruction on unconstitutional automobile guest statute was error and not harmless.
Reversed and remanded for a new trial.
Gunderson, C. J., dissented.
Ross and Crow, Carson City, for Appellants.
Wait, Shamberger, Georgeson & McQuaid, Reno, for Respondent. 1.
1. Statutes.
Effect of declaration of unconstitutionality is to render statute null and void.
2. Appeal and Error; Automobiles.
Giving of instruction on unconstitutional automobile guest statute was error and not harmless. NRS
41.180.
OPINION
The Batesels, plaintiffs below, have appealed from a judgment entered on a jury verdict in
favor of John Schultz, the defendant-respondent. Michael Batesel, through his guardians, had
brought the action to recover damages from Schultz for injuries he received in an automobile
accident which threw Michael from an automobile driven by Schultz.
[Headnote 1]
At the trial, a number of instructions were given to which appellants object. We need
concern ourselves with only one instruction as dispositive of this appeal.
The jury was instructed on the language, scope, and burden of proof of NRS 41.180,
commonly known as the automobile guest statute. In Laakonen v. District Court, 91 Nev.
506, 538 P.2d 574 (1975), this court declared Nevada's automobile guest statute
unconstitutional, as denying equal protection of the laws. The effect of a declaration of
unconstitutionality is to render the statute null and void. As this court said in Lightenburger v.
Gordon, 89 Nev. 226, 228, 510 P.2d 865, 867 (1973), regarding the California Supreme Court
decision in Brown v. Merlo, 506 P.2d 212 (1973), which held the California automobile guest
statute unconstitutional:
. . . [T]hat decision did not work a change in the law of that jurisdiction. Rather, it
expressed for the first time the unconstitutionality of the automobile guest law and other
guest statutes modeled after it. It is as though the statutes had never been passed.
Brandenstein v. Hoke, 35 P. 562 (Cal. 1894). In Brandenstein, the California Supreme Court
quoted directly from Norton v. Shelby County, 118 U.S. 425, 442 (1886):. An
unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no
protection; it creates no office; it is, in legal contemplation, as inoperative as though it had
never been passed.' (Footnote omitted.)
[Headnote 2]
As we held in Laakonen, supra, the guest statute imposed a greater burden upon a
plaintiff guest passenger than upon other types of passengers.
greater burden upon a plaintiff guest passenger than upon other types of passengers. That
burden was placed upon appellants in the instant case, and we cannot say that the imposition
of such a burden was harmless error. The jury, in finding for the respondent, may have found
that he was not guilty of the standard of conduct proscribed in NRS 41.180, yet was guilty of
negligence.
Accordingly, we must reverse the judgment of the district court and remand for a new trial
consistent with this opinion. It is so ordered.
Zenoff and Thompson, JJ., and Hoyt, D. J., concur.
On appeal, for the first time, appellant contends instructions on the guest statute were
erroneously given because that statute is unconstitutional. To entertain this contention, I
respectfully suggest, the majority must ignore rules promulgated by this court as well as all
our precedents interpreting those rules. NRCP 51 provides in material part:
. . . No party may assign as error the giving or the failure to give an instruction unless he
objects thereto before the jury retires to consider its verdict, stating distinctly the matter to
which he objects and the grounds of his objection. . . .
Although appellant objected to the guest statute instructions, the grounds stated were
vague, and most certainly not those the majority here accepts. I therefore respectfully submit
that the sole issue on which the majority predicates reversal was not sufficiently preserved for
review. Downing v. Marlia, 82 Nev. 294, 417 P.2d 150 (1966); Duran v. Mueller, 79 Nev.
453, 386 P.2d 733 (1963); Wagon Wheel v. Mavrogan, 78 Nev. 126, 369 P.2d 688 (1962);
Lathrop v. Smith, 71 Nev. 274, 288 P.2d 212 (1955). See also: Gallues v. Harrah's Club, 87
Nev. 624, 491 P.2d 1276 (1971); Wadsworth v. Dille, 85 Nev. 86, 450 P.2d 362 (1969);
Fireman's Fund Ins. v. Shawcross, 84 Nev. 446, 442 P.2d 907 (1968); and Shoshone
Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966).
I further respectfully suggest that, if the majority intend to abrogate NRCP 51 and to
overrule prior authority decided under that rule, they should say so. On the other hand, if they
intend NRCP 51 to remain viable, along with our precedents interpreting it, I feel it would be
helpful to explain how that can be, consistently with the court's ruling today.
____________
91 Nev. 556, 556 (1975) McCall v. State
DEREK ALVIN McCALL, Appellant, v. THE
No. 8200
September 17, 1975 540 P.2d 95
Appeal from conviction and sentence, and from order denying motion for new trial, Eighth
Judicial District Court, Clark County; Paul S. Goldman, Judge.
Defendant was convicted in the district court of burglary, robbery, second degree
kidnapping, rape, and the infamous crime against nature, and he appealed. The Supreme
Court held that where jury, during deliberations, asked whether they could consider substance
on certain garments as evidence of sexual intercourse even though it had not been pointed out
at trial, consideration on appeal of court's instruction that The garments are in evidence.
was precluded since defendant's counsel not only failed to object to the instruction but agreed
to it.
Affirmed.
Robert List, Attorney General; George E. Holt, District Attorney, Clark County, for
Respondent.
1. Criminal Law.
Where jury in prosecution for, inter alia, rape and the infamous crime against nature, during deliberations
asked whether they could consider substance on certain garments as evidence of sexual intercourse even
though it had not been pointed out at trial, Supreme Court consideration of court's instruction that The
garments are in evidence. was precluded since defendant's counsel not only failed to object to the
instruction but agreed to it.
2. Criminal Law.
Question asked by jury during its deliberations in prosecution for rape and the infamous crime against
nature, as to whether they could consider substance on certain garments as evidence to sexual intercourse
even though it had not been pointed out at trial, could not be considered as misconduct in light of
agreement by defendant's counsel to instruction which stated that The garments are in evidence.
OPINION
Per Curiam:
Convicted of burglary, robbery, second degree kidnapping, rape, and infamous crime
against nature, appellant appeals his conviction and an order denying his motion for new trial.
91 Nev. 556, 557 (1975) McCall v. State
[Headnote 1]
At trial, garments worn by appellant and prosecutrix were admitted without objection into
evidence for identification purposes. During deliberations, the jury asked whether they could
consider a substance on certain garments as evidence of sexual intercourse, even though it
had not been pointed out at trial. The court informed counsel that it proposed to answer this
question by instructing the jury: The garments are in evidence.
Appellant's counsel not only failed to object to this instruction, but agreed to it. The failure
to object or to request special instruction to the jury precludes appellate consideration. State
v. Fouquette, 67 Nev. 505, 221 P.2d 404 (1950); Clark v. State, 89 Nev. 392, 513 P.2d 1224
(1973); Cook v. State, 77 Nev. 83, 359 P.2d 483 (1961).
[Headnote 2]
Appellant attempts to cast the jury's actions as misconduct. In light of appellant's
agreement to the instruction given by the court, we deem this contention without merit.
Affirmed.
____________
91 Nev. 557, 557 (1975) Polk v. Armstrong
ANGUS POLK, Appellant, v. RALPH
M. ARMSTRONG, Respondent.
No. 7489
September 17, 1975 540 P.2d 96
Appeal from NRCP 41(b) judgment of Second Judicial District Court, Washoe County;
Thomas 0. Craven, Judge.
A tenant brought action against his landlord to recover damages for breach of a lease
agreement between the parties. The district court granted the landlord's motion to dismiss,
and the tenant appealed. The Supreme Court, Mowbray, J., held that the landlord was under a
duty to make certain repairs demanded by the City to bring the premises into compliance with
the city fire code, and that the landlord's failure to make such repairs amounted to a
constructive eviction entitling the tenant to recovery of damages.
Reversed and remanded with instructions.
Cooke & Roberts, Reno, for Appellant.
Legarza, Lee & Barengo, Reno, for Respondent.
1. Landlord and Tenant.
Since property owner is initially under duty to comply with all statutes and orders affecting the property,
he, as lessor, remains subject to that duty, unless duty is assumed by lessee.
For a lessee to be required to make extensive structural repairs on leased premises that would revert to
benefit of lessor would be inequitable.
Where City demanded that opening in wall of leased premises be closed with cement block wall, and
evidence did nor indicate that parties contemplated such a municipal order at time lease agreement was
executed, landlord was under duty to construct the wall.
Where City refused to issue certificate of occupancy required by tenant in order to obtain license to
conduct a business on leased premises and demanded that opening in wall of premises be closed with a
cement block wall in order to comply with city fire code, and where there was no indication that the parties
contemplated such a municipal order at the time the lease agreement was executed, landlord's failure to
repair the wall to conform to the code amounted to constructive eviction, entitling tenant to recovery of
damages sustained thereby, even though tenant's business equipment remained on premises at all relevant
times.
Where wrongful eviction of tenant results in breaking up of his business conducted by him upon
premises, he may recover damages thereby sustained, including lost profits, provided those damages can be
ascertained with reasonable degree of certainty.
OPINION
The appellant, Angus Polk, hereinafter referred to as Tenant, brought this action against
his landlord, Ralph M. Armstrong, hereinafter referred to as Landlord, the respondent, to
recover damages for breach of a lease agreement between the parties. At the conclusion of
Tenant's case, Landlord moved to dismiss the complaint under Rule 41 (b) of the Nevada
Rules of Civil Procedure. The district judge deferred ruling on the motion until after Landlord
had presented his evidence, at which time the judge granted the 41(b) motion and ordered
Tenant's complaint dismissed with prejudice. Tenant has appealed from the lower court's
judgment of dismissal.
1. By a lease agreement dated April 19, 1961, Tenant leased the premises known as
Fashion Cleaners and Tailors, 910 B Street, Sparks, Nevada, from the former owner of the
property, Fannie M.
property, Fannie M. Armstrong. Fannie M. Armstrong died on August 31, 1970, and
Landlord, who is her son, is her successor in interest. Prior to the time Tenant obtained the
lease, a James Wilson operated a dry-cleaning business on the premises. Tenant purchased
the business from Wilson, obtained a new lease from Mrs. Armstrong, equipped the building,
and operated a dry-cleaning business from April 1961 until December 1968. Tenant then sold
the business to a Mr. Froggett and assigned the lease to him. During the latter part of 1969,
Froggett defaulted on the contract of sale that he had with Tenant, and he vacated the
premises. Landlord, who was then managing the property for his mother, prevented Tenant
from reentering the premises by changing the locks. Finally, after extensive negotiations
between Landlord and Tenant and their attorneys, their differences were settled, and Landlord
returned keys to the premises to Tenant in July 1970. Thereafter, Tenant applied to the City of
Sparks for a license to conduct a business on the premises. The City refused a certificate of
occupancy, and the license was not issued, although all prior businesses conducted on the
premises had been licensed. A certificate of occupancy was denied by the City because there
was an opening in the east wall of the building to a small glassed-in area that had been used
as part of the cleaning establishment premises. The glassed-in area did not meet the
requirements of the fire code because of its proximity to the wall of a nearby building. The
City demanded that the glassed-in area be removed and the opening in the wall closed with a
cement-block wall. Tenant entered into negotiations with Landlord regarding construction of
the new wall. Tenant offered to construct the wall and deduct the cost from the monthly rental
payments. Landlord refused to correct the situation or permit Tenant to do so. Tenant
continued to pay rent to Landlord through November 1971. In early 1972, Landlord again
changed the locks and denied Tenant access to the premises. Landlord then took possession
of the property and constructed a new wall that met the fire code requirements.
2. The judgment of the trial court dismissing Tenant's complaint under Rule 41(b) of the
Nevada Rules of Civil Procedure was predicated solely on the proposition that Tenant's action
was one for constructive eviction only and that, since Tenant had allowed his equipment to
remain on the premises, he had not abandoned possession thereof.
1
The district judge, in
ordering the complaint dismissed, relied on a Nevada case, Baker v. Simonds, 79 Nev. 434
____________________

1
Landlord permitted Tenant to remove his equipment at the conclusion of the trial below.
ordering the complaint dismissed, relied on a Nevada case, Baker v. Simonds, 79 Nev. 434,
386 P.2d 86 (1963). The fact situation there is different from the case at bar. In that case, 2
1/2 months before their lease was to expire, the tenants brought an action in which they
sought a court order declaring that they lawfully held possession of a beauty shop in the
Royal Nevada Hotel. In Baker, the landlord was restrained from dispossessing the tenants
pending the court determination. Fourteen months after suit was commenced, and after the
lease had expired, the tenants, by a supplemental complaint, changed the complexion of the
case to one for constructive eviction. At that time, the temporary restraining order was
dissolved, and the case went to trial. A jury awarded the tenants damages. The trial judge
granted the landlord's motion to set aside the verdict and directed the entry of judgment in the
landlord's favor. This court affirmed the trial judge's ruling and held that, notwithstanding
whatever had happened giving the tenants cause to sue the landlord for damages resulting
from a constructive eviction, the tenants had waived any claim for such relief by electing to
remain in possession and by seeking a court decree authorizing their continued possession.
This court further held that, after the nature of the action was changed and the tenants had
abandoned possession of the premises, the relationship of landlord-tenant did not exist, since
the tenants remained in possession solely by grace of the court's restraining order after the
written lease had expired. The court said that, absent the relationship of landlord-tenant at the
time possession is surrendered, the remedy of damages for constructive eviction simply does
not exist. A constructive eviction is not compatible with wrongful possession.
In the present case, Tenant had not been in actual possession of the premises since July
1970, and in early 1972 Landlord changed the locks and occupied the premises. The record
shows that Tenant was denied a certificate of occupancy and was unable to operate his
business on the leased premises because the City had demanded the construction of a
cement-block wall to close an opening in the east wall of the building. Landlord refused to
comply with the municipal order.
[Headnotes 1, 2]
3. There is a difference of opinion among American jurisdictions whether, in the absence
of an agreement to the contrary, the landlord or the tenant is responsible for making or
bearing the expense of ordinary repairs ordered by a public authority. Cases on the allocation
of the duty to comply with applicable laws between a lessor and lessee are collected in
Annot., 33 A.L.R. 530-534 {1924), and Annot., 22 A.L.R.3d 521, 555 {196S).
applicable laws between a lessor and lessee are collected in Annot., 33 A.L.R. 530-534
(1924), and Annot., 22 A.L.R.3d 521, 555 (1968). An analysis of the cases indicates that the
overwhelming majority of jurisdictions considering the question have held that if the repairs
ordered are substantial, or structural in nature, such that they could not have been
contemplated by the parties at the time the lease agreement was executed, the landlord and
not the tenant is responsible for making them. The reason for this rule is that any alteration or
repair of the kind usually ordered by a public authority would ordinarily be outside the
tenant's common law duty to repair, and the expenses of compliance would more properly be
regarded either as capital expenditures or as necessary carrying charges to be paid out of rent.
2
Furthermore, in such cases public policy requires that someone at all times be responsible
for complying with all statutes and orders affecting property. Since the property owner is
initially under the duty to comply with all such statutes and orders, he, as lessor, remains
subject to that duty, unless the duty is assumed by the lessee. Glenn R. Sewell Sheet Metal,
Inc. v. Loverde, 75 Cal.Rptr. 889, 451 P.2d 721 (Cal. 1969). Moreover, for a lessee to make
extensive structural repairs that would revert to the benefit of the lessor would be inequitable.
Gaddis v. Consolidated Freightways, Inc., 398 P.2d 749 (Ore. 1965).
[Headnote 3]
In the case at bar, the question of repair was not involved. The City was demanding the
construction of a block wall that had not theretofore existed. This modification was a
substantial alteration and was structural in nature. There is no evidence indicating that the
parties contemplated such a municipal order at the time the lease agreement was executed.
Consequently, we conclude that Landlord was under a duty to construct the wall.
[Headnote 4]
4. The next issue presented is whether under the facts of the instant case Landlord's failure
to construct the wall amounted to a constructive eviction.
In Magnolia Warehouses v. Morton Realty Co., 117 S.E.2d 552 (Ga. 1960), a municipal
authority had ordered the installation of electrical locks on elevator doors as a condition of
continued use of elevators essential to the operation of the tenant's business on the premises.
____________________

2
See Wolfe v. White, 197 P.2d 125 (Utah 1968); 1 American Law of Property 3.80, at 353-355 (A. J.
Casner ed. 1952); 2 W. Walsh Commentaries on the Law of Real Property 165, at 232-233 (1947).
business on the premises. The court found that under the lease agreement the landlord was
responsible for making this alteration and held that his failure to accomplish the alteration
within the time allowed by the municipal authorities, coupled with the threatened padlocking
of the elevators by the municipality so as to prevent the tenant from using them, constituted a
constructive eviction. The court said, at 554:
. . . The failure of the landlord to make such alterations or to begin them within the time
limited by the notice given by the municipal authorities, . . . when coupled with the threatened
padlocking of the elevators so as to prevent the tenant from using them where their use was
essential to the use of the premises by the tenant, constituted a constructive eviction and
authorized the tenant to vacate the premises and to refuse to pay rent after such premises were
vacated. [Cites omitted.]
3

Also, in Johnson v. Snyder, 221 P.2d 164 (Cal.App. 1950), the court held there was a
constructive eviction where a city health officer ordered plaintiff to close his restaurant in a
stall rented from defendant because of dirty and unsanitary conditions allowed by defendant
to exist in other parts of the building not leased by the plaintiff.
We believe that Landlord's failure to repair the wall to conform to the code amounted to a
constructive eviction, and the fact that Tenant's equipment remained in the premises should
not bar him from recovery for damages resulting from his eviction. Additionally, Landlord in
early 1971 changed the locks on the building and then occupied the building to make the
repairs demanded by the City, which acts constituted an actual eviction. Only then did Tenant
commence this action.
[Headnote 5]
5. Tenant introduced evidence of damages which Landlord at trial made no effort to
refute.
Where the wrongful eviction of a tenant results in the breaking up of his business
conducted by him upon the premises, he may recover the damages thereby sustained,
including lost profits, provided those damages can be ascertained with a reasonable degree of
certainty. See Rockey v. Bacon, 470 P.2d 804 (Kan. 1970); Western Rebuilders & Tractor
Parts, Inc. v. Flemley, 391 P.2d 383 (Ore. 1964).
In conclusion, the record shows that Tenant was denied a certificate of occupancy and
that he was unable to operate his business on the leased premises because the City had
demanded the construction of a cement-block wall to close an opening in the east wall of
the building.
____________________

3
See also New Chester Theater Corp. v. Bischoff, 210 App.Div. 125, 205 N.Y.S. 641 (1924); Galland v.
Shubert Theatrical Co., 105 Misc. 185, 172 N.Y.S. 775 (1918), aff'd 220 App.Div. 704, 221 N.Y.S. 437 (1927).
certificate of occupancy and that he was unable to operate his business on the leased premises
because the City had demanded the construction of a cement-block wall to close an opening
in the east wall of the building. The construction of this wall was the legal obligation of
Landlord, and not Tenant. Landlord refused to comply with the municipal order. When
Tenant, because of the difficulties, ceased paying rent, which he had a legal right to do,
Landlord changed the locks on the premises, went into possession, and constructed the wall
which the City had demanded. The wrongful eviction, which had been constructive, became
actual. The trial court erred in granting Landlord's Rule 41(b) motion. The judgment is
reversed, and the case remanded with instructions to the trial court to determine on the
present record the damages sustained by Tenant and to enter judgment accordingly, with
interest from August 1, 1 973. NRAP 37.
____________
91 Nev. 563, 563 (1975) Sullivan v. Warden
DANIEL PAUL SULLIVAN, Appellant, v. WARDEN,
No. 7926
September 17, 1975 540 P.2d 112
Appeal from decision and order of Eighth Judicial District Court, Clark County, denying
petition for writ of habeas corpus; Howard W. Babcock, Judge.
Defendant filed a petition for writ of habeas corpus which was treated by district judge as a
petition for post-conviction relief. The district court entered an order which denied the
petition, and defendant appealed. The Supreme Court held that evidence failed to establish
incompetency of counsel at time of entry of guilty plea on charge of burglary or with respect
to hearing wherein order which had revoked probation had been reinstated.
Affirmed.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and
Sherman H. Simmons, Deputy District Attorney, Clark County, for Respondent. 1.
Before a denial of due process arises on ground of inadequate counsel the trial must be a sham, a farce or
a pretense.
2. Criminal Law.
Fact that defendant's counsel was not immediately aware of claimed rape victim's requested withdrawal of
charges did not imply inadequacy of counsel, especially in view of counsel's understanding that State
intended to prosecute regardless of victim's request to withdraw the charges.
3. Criminal Law.
The failure of an attorney to reveal to his client a detail which does not ultimately affect the presentation
or disposition of his case does not characterize that attorney's service as a sham or a pretense.
4. Criminal Law.
Evidence, including evidence that defendant's counsel had met with defendant on several occasions, had
interviewed claimed ripe victim and actually pursued a witness who ultimately refused to testify for
defendant, failed to establish that counsel had not fairly investigated case.
5. Criminal Law.
Record failed to establish that defendant was not advised of his constitutional rights or of elements of
offense at time of plea of guilty to burglary charge.
6. Criminal Law.
Record failed to establish that defendant had been inadequately represented at time of his guilty plea on
charge of burglary.
7. Criminal Law.
In order to establish inadequate representation, defendant must assume burden of proof.
8. Criminal Law.
It is presumed that an attorney has fully discharged his duties; this presumption can only be overcome by
strong and convincing proof to the contrary.
9. Criminal Law.
Record failed to establish incompetence of counsel with respect to hearing wherein order revoking
defendant's probation had been reinstated.
OPINION
Per Curiam:
The appellant, Daniel Paul Sullivan, entered a plea of guilty to the crime of burglary. He
was sentenced to serve 5 years in the State Prison. The sentence was suspended, however, and
he was placed on probation for 2 years. He violated the terms of his probation, and his
sentence was reinstated. He filed a petition for a writ of habeas corpus (which the district
judge treated as a petition for post-conviction relief), claiming that he was not adequately
represented by counsel at the time he pled guilty to the burglary charge nor at his probation
revocation hearing.
to the burglary charge nor at his probation revocation hearing. After an evidentiary hearing,
the judge denied the petition. We affirm.
1. On April 16, 1971, Sullivan was arrested and charged with burglary and rape. A
criminal complaint issued charging him with burglary and rape. A guilty plea resulted from
negotiations between Sullivan's privately retained attorney, James J. Brown, and the district
attorney's office. Upon imposition of the sentence for the burglary charge, the State agreed to
dismiss the rape charge. At the time of the sentencing, the court fully inquired into the
circumstances surrounding the guilty plea and determined that it had been freely and
voluntarily made. On January 17, 1972, Sullivan was given a suspended sentence of 5 years
and placed on probation for 2 years. The order admitting appellant to probation and fixing the
terms thereof provided, in part, that Sullivan should . . . not drink or partake of any
alcoholic beverages to excess . . . [and should] comply with all municipal, county, state and
federal law, ordinances and orders . . . On October 18, 1972, the department of parole and
probation recommended revocation of probation as a result of arrests on September 24, 1972,
and October 18, 1972, for vagrancy and for disturbing public or private places. A revocation
hearing was held on November 13, 1972, which resulted in Sullivan's transfer to the State of
Washington for probation supervision. He was again arrested in Las Vegas on April 30, 1973,
and charged with driving under the influence of intoxicating liquor (NRS 484.379). On May
9, 1973, Sullivan pled guilty to that charge, and on May 22, 1973, he was fined $75.
After a probation hearing on June 27, 1973, at which he was represented by a Clark
County Deputy Public Defender, Sullivan requested and was granted a rehearing, which was
held on July 11, 1973, and continued to July 25, 1973. He was represented at the rehearing by
his own attorney, Stewart Bell. The court reinstated the prior order revoking probation.
Sullivan then filed this present petition in proper person on July 17, 1974.
2. Sullivan's claim of inadequate counsel at the time he entered his guilty plea is based
upon allegations of counsel's unawareness of the request for dismissal of the rape charge by
the victim, counsel's failure to thoroughly investigate the case, counsel's failure to inform
appellant of constitutional guarantees regarding entry of guilty pleas, and counsel's failure to
inform appellant of the elements of the crime for which he was charged.
The standard by which counsel's performance is evaluated has been affirmed by such
recent cases as Founts v. Warden, 89 Nev. 2S0, 511 P.2d 111 {1973), which at 2S1 of S9
Nev. and at 111 of 511 P.2d quotes from Bean v.
Nev. 280, 511 P.2d 111 (1973), which at 281 of 89 Nev. and at 111 of 511 P.2d quotes from
Bean v. State, 86 Nev. 80, 92, 465 P.2d 133, 141 (1970), stating:
[Headnotes 1-3]
Trial lawyers will always disagree on how a case should have been tried. Second guessing
is as characteristic of lawsuits as Monday morning quarterbacking is of football games. But
before a denial of due process arises on the ground of inadequate counsel the trial must be a
sham, a farce or a pretense.
The fact that Sullivan's counsel was not immediately aware of the rape victim's requested
withdrawal does not imply inadequacy of counsel, especially in view of counsel's
understanding that the State intended to prosecute regardless of the victim's request to
withdraw the charges. The failure of an attorney to reveal to his client a detail which does not
ultimately affect the presentation or disposition of his case does not characterize that
attorney's service as a sham or a pretense.
[Headnote 4]
Sullivan's allegation that his former counsel failed to thoroughly investigate the case is not
supported by the record. Counsel met with Sullivan on several occasions, interviewed the
rape victim, and actively pursued a witness who ultimately refused to testify for Sullivan. The
performance of his counsel in this regard easily meets the standard established by the cases
cited above.
[Headnotes 5, 6]
Sullivan's allegation that he was not advised of his constitutional rights, nor of the
elements of his offense, is contradicted by the record. At the time of the plea, Judge Babcock
interrogated Sullivan at length, inquiring into his educational background and determining his
ability to comprehend the nature of the charge. The court's questions revealed that Sullivan
did grasp the elements of the crime, as well as the constitutional protection and guarantees to
which he was entitled. The court's questioning also served to display the free and voluntary
nature of Sullivan's decision to plead guilty to burglary.
1
There is nothing in the record to
suggest that counsel's performance at the time of the plea was incompetent.
____________________

1
Sullivan specifically admitted the details of the burglary charge under questioning by Judge Babcock:
The Court: And are you pleading guilty because in truth and in fact you are guilty and for no other
reason?
Mr. Sullivan: Yes.
The Court: What happened on April 16, 1971? Did you enter the apartment of . . .?
nothing in the record to suggest that counsel's performance at the time of the plea was
incompetent.
[Headnotes 7, 8]
To establish inadequate representation, an appellant must assume the burden of proof
articulated in Smithart v. State, 86 Nev. 925, 931, 478 P.2d 576, 580 (1970), which states: It
is presumed that an attorney has fully discharged his duties. This presumption can only be
overcome by strong and convincing proof to the contrary. The record does not support
Sullivan's contention that his counsel's performance was substandard. Sullivan's failure to
provide any grounds for a contrary holding indicates that the court was correct in its
determination that he was adequately represented at the time he entered his guilty plea.
[Headnote 9]
3. The judgment of June 27, 1973, revoking Sullivan's probation, was vacated at a
rehearing because of an admitted lack of preparation on the part of the Clark County Public
Defender's office. However, during the rehearing Sullivan was represented by his own
counsel, Stewart Bell, who effectively represented Sullivan's interests throughout the duration
of the rehearing. At that time, the court had an opportunity to consider whatever defenses or
mitigating circumstances might have applied to the case and to correct any deficiency arising
from the June 27 hearing. There is no record of impropriety or lack of preparation on the part
of Stewart Bell, and Sullivan does not allege any facts leading to such a conclusion. The
standards for evaluating counsel and determining Sullivan's burden of proof are the same in
this instance as those mentioned above. Sullivan has fallen short of the standard by a failure
to support his argument with any facts leading to an inference of incompetence. When the
court reinstated the revocation order of June 27, it did so after a consideration of Sullivan's
interests as represented by competent counsel.
____________________
Mr. Sullivan: Yes, I did.
The Court: Unlawfully?
Mr. Sullivan: Yes.
The Court: With the intent to commit rape; is that correct?
Mr. Sullivan: Yes.
The Court: And you admit that the allegations and/or statements set forth in the information, filed
November 24, 1971, are true; is that correct?
Mr. Sullivan: Yes.
The Court: The Court accepts defendant's plea of guilty.
The order of the district court denying Sullivan's petition for post-conviction relief is
affirmed.
____________
91 Nev. 568, 568 (1975) Allen v. State
ELGlE JAMES ALLEN, Appellant, v. THE
No. 8194
September 17, 1975 540 P.2d 101
Appeal from a verdict and judgment of guilty to charges of robbery and use of a deadly
weapon during the commission of a crime, entered in the Eighth Judicial District Court, Clark
County; James A. Brennan, Judge.
The Supreme Court held that where defendant was specifically advised twice of his
Miranda rights and he promptly acknowledged on each occasion that he understood his rights
that his statements were voluntary, statements elicited from him in custodial interrogation
were properly admitted.
Affirmed.
Morgan D. Harris, Public Defender, and Thomas M. Burns, Deputy Public Defender,
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and H.
Leon Simon, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Defendant may waive effectuation of the right to admission of statements elicited in violation of privilege
against self-incrimination during a custodial interrogation provided waiver is made voluntarily, and
intelligently. U.S.C.A.Const. Amend. 5.
2. Criminal Law.
Where defendant while in custody was twice provided with the four-point Miranda advisement and twice
promptly stated that he understood his rights, his statements elicited in custodial interrogation were
admissible consistent with his Fifth amendment rights. U.S.C.A.Const. Amend. 5.
OPINION
Per Curiam:
A jury found the appellant, Elgie James Allen, guilty of robbery and the use of a deadly
weapon during the commission of a crime. He was sentenced to serve 10 years on each
charge in the Nevada State Prison, said sentences to run consecutively.
91 Nev. 568, 569 (1975) Allen v. State
the Nevada State Prison, said sentences to run consecutively. However, the district judge
suspended the execution of the sentences for a period of 5 years, with the condition that Allen
be placed on probation for that period and that he serve 1 year in the county jail.
Appellant Allen seeks reversal of his judgment of conviction on the ground that the
testimony of Officer Robert Michael Allen regarding certain admissions made by Appellant
Allen violated his rights under the Fifth Amendment to the United States Constitution.
During the hearing on appellant's pretrial motion to suppress, Officer Allen testified in
substance that, after advising Appellant Allen twice of his rights under Miranda v. Arizona,
384 U.S. 436 (1966), he asked him why he did it (committed the robbery) and he replied that
he had no money and wished to return to his home (in Pennsylvania); that he had no intention
to harm the victim of the robbery. The trial judge denied the appellant's pretrial motion to
suppress, and the officer's testimony was presented to the jury.
1. Appellant urges that his admissions to Officer Allen pursuant to custodial interrogation
were elicited in violation of his privilege against self-incrimination. Appellant contends that,
while he was informed of his rights and he understood them, he never expressly rejected or
waived such rights, as no specific question to that effect was asked by the officer. The
appellant further contends that such failure ran counter to the dictates of Miranda and thus
rendered his statements inadmissible, as obtained in violation of his rights under the Fifth
Amendment. The State acknowledges the custodial status of said appellant at the time the
statements were made. Such is not in issue.
[Headnote 1]
The facts of the instant case show that, prior to any questioning, the appellant was twice
informed of his rights, as per Miranda, and that appellant indicated that he understood those
rights. The court in Miranda, supra, 384 U.S. at 444, went on to say: The defendant may
waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and
intelligently.
In United States v. Hayes, 385 F.2d 375 (4th Cir. 1967), the appellant predicated his
appeal on the assertion that, as a matter of law, in the absence of an express statement of
waiver, he could not have made an intelligent, knowledgeable, and voluntary waiver of his
Fifth and Sixth Amendment rights. The court, in response, quoting Narro v. United States,
370 F.2d 329 (5th Cir. 1966), stated, 385 F.2d at 377: . . . [T]he cases in which it is clear
that the warnings have been given must be considered on their own facts in order to
determine the question of waiver. . . .'" The court further stated, at 37S:
91 Nev. 568, 570 (1975) Allen v. State
cases in which it is clear that the warnings have been given must be considered on their own
facts in order to determine the question of waiver. . . .' The court further stated, at 378:
. . . Of course, the attendant facts must show clearly and convincingly that he did
relinquish his constitutional rights knowingly, intelligently and voluntarily, but a statement by
the defendant to that effect is not an essential link in the chain of proof. . . .
Miranda admonishes: The warning required and the waiver necessary in accordance with
our opinion today are, in the absence of a fully effective equivalent, prerequisites to the
admissibility of any statement made by a defendant.' (Emphasis supplied.) Miranda v. . . .
Arizona, . . . 384 U.S. at 476, [parallel cite omitted]. We simply decide today that strong and
unmistakable circumstances, upon occasion, may satisfactorily establish such an equivalent.
[Headnote 2]
The underlying facts of the instant case are even more conclusive as evidence of a
knowing waiver of the Miranda rights. Appellant, unlike Hayes, was specifically asked if he
understood the rights as given, and his response was in the affirmative. It is noteworthy that at
no stage in the proceedings has appellant denied that he understood the warnings given him.
His contention of violation for failure to specifically inquire if he waived his rights loses
credence in light of United States v. Hayes, supra. In accord are United States v. Thompson,
417 F.2d 196, 197 (4th Cir. 1969); and United States v. McDaniel, 463 F.2d 129, 136 (5th
Cir. 1972).
The court in United States v. Lamia, 429 F.2d 373, 377 (2d Cir. 1970), further interpreted
the waiver issue in stating: We find that his affirmative response to Agent Myers' question
regarding his understanding of his rights, as well as his subsequent actions, were a voluntary
and knowing waiver of his rights.
The Supreme Court of California dealt with a similar question as to the interpretation of a
Miranda waiver in People v. Johnson, 450 P.2d 865, 876 (1969), wherein the court stated:
Once the defendant has been informed of his rights and indicates that he understands
those rights, it would seem that his choosing to speak and not requesting a lawyer is sufficient
evidence that he knows of his rights and chooses not to exercise them.
In a case following People v. Johnson, supra, People v. Rice, 89 Cal.Rptr. 200, 208
(Cal.App. 1970), the court spoke to the specific point of contention as in the instant case in
stating: "In the present case the appellant was advised of his Miranda rights as set out in
the statement of facts above.
91 Nev. 568, 571 (1975) Allen v. State
In the present case the appellant was advised of his Miranda rights as set out in the
statement of facts above. When asked if he understood his rights, he replied, Yes, I do.' in
light of Johnson, appellant was given a proper advisement and his affirmative answer that he
understood the advisement was sufficient to constitute a waiver.
In two recent Nevada cases, this court has interpreted the Miranda decision. In Anderson
v. State, 86 Nev. 829, 835, 477 P.2d 595, 599 (1970), this court stated:
. . . Anderson was advised of his Miranda rights no less than three times and on each
occasion he said he clearly understood his rights and knew them better than the officers. . . .
We have reviewed the record in depth on this point and cannot find any, let alone substantial,
violation of his Miranda rights. Cf. Goldstein v. State, 89 Nev. 527, 516 P.2d 111 (1973).
Reviewing the facts of the instant case, we are confronted with a situation wherein the
appellant was twice provided with the four-point Miranda advisement, the appellant twice
promptly stated that he understood his rights, his statements were voluntary, and there exists
no coercion, deception, lengthy interrogation, or any claim of lack of intelligence.
We conclude, therefore, as did the trial judge, that appellant's statements elicited and
introduced into evidence were properly obtained and consistent with his rights under the Fifth
Amendment to the United States Constitution.
____________
91 Nev. 571, 571 (1975) Collins v. Warden
LOUIS JACKSON COLLINS, Appellant, v. WARDEN,
No. 7977
September 17, 1975 540 P.2d 93
Appeal from order of Eighth Judicial District Court, Clark County, denying petition for
post-conviction relief; Carl J. Christensen, Judge.
Prisoner appealed from an order of the district court denying without evidentiary hearing
his petition for post-conviction relief based on claim that he was induced to plead guilty by a
promise of probation which was not kept. The Supreme Court held that where prosecutor kept
his promise during plea negotiations to keep silent at time of sentencing and the statements of
defendant and his attorney at time of sentencing showed that such was the extent of plea
negotiation, defendant was not entitled to an evidentiary hearing or to the setting aside
of his conviction.
such was the extent of plea negotiation, defendant was not entitled to an evidentiary hearing
or to the setting aside of his conviction.
Affirmed.
Rodlin Goff, State Public Defender, and Michael R. Griffin, Deputy Public Defender,
H. Simmons, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Claim of defendant that he was induced to plead guilty by promise that he would receive probation and
that his plea was involuntary since such inducement was not honored at sentencing had merit only if it
could be shown that defendant reasonably believed that prosecutor would perform in some manner other
than he did perform and that this reasonable belief induced the plea of guilty. NRS 177.375, subd. 1.
2. Criminal Law.
Where guilty plea rests in any significant degree on promise or agreement of prosecutor so that it can be
said to be part of inducement or consideration, such promise must be fulfilled.
3. Criminal Law.
Where record and defendant's own admission showed that prosecution had merely promised to keep
silent at time of sentencing and prosecutor did keep his promise fully, defendant was not entitled to have
conviction set aside on ground that his guilty plea was induced by a promise that he would be given
probation, a claim which was negated by his attorney's statement at time of sentencing that prosecutor had
agreed to stand silent and defendant's statements that he understood such to be the full extent of plea
negotiation.
OPINION
Per Curiam:
[Headnote 1]
Louis Jackson Collins has appealed from an order of the district court denying, without an
evidentiary hearing, his petition for post-conviction relief. Collins claims that he was induced
to plead guilty to the crime of attempted receiving of stolen property by a promise that was
not kept; that a constitutional issue was raised thereby; and that he is therefore entitled to an
evidentiary hearing on the issue.
1
Collins contends that the alleged promise made {that he
would receive probation) induced his plea of guilty, that such inducement was not
honored at sentencing, and that his plea was therefore involuntary.
____________________

1
NRS 177.375, subsection 1, states:
1. If the petitioner's conviction was upon a plea of guilty, all claims for post-conviction relief are waived
except the claim that the plea was involuntarily entered.
promise made (that he would receive probation) induced his plea of guilty, that such
inducement was not honored at sentencing, and that his plea was therefore involuntary. This
contention has merit only if it may be shown that Collins reasonably believed that the
prosecutor would perform in some manner other than he did perform, and that this reasonable
belief induced the guilty plea. See Santobello v. New York, 404 U.S. 257, 262 (1971), where
the court said:
[Headnote 2]
This phase of the process of criminal justice, and the adjudicative element inherent in
accepting a plea of guilty, must be attended by safeguards to insure the defendant what is
reasonably due in the circumstances. Those circumstances will vary, but a constant factor is
that when a plea rests in any significant degree on a promise or agreement of the prosecutor,
so that it can be said to be part of the inducement or consideration, such promise must be
fulfilled.
In Santobello, the defendant agreed to plead guilty in return for the prosecutor's silence at
the time of sentencing. Apparently through clerical error, the prosecutor failed to keep the
promise and recommended a 1-year sentence. In imposing sentence, the court said it was not
influenced by the prosecutorial recommendation. However, the case was reversed because the
promise was not honored; influence was held not to be as crucial as the integrity of the
bargained-for consideration.
In the recent case of Vaillancourt v. Warden, 90 Nev. 431, 529 P.2d 204 (1974), this court
reversed upon the basis that the State had promised to recommend probation in exchange for
a guilty plea, and then failed to do so. Affidavits were offered as proof of that promise, and
the court said that, when something more than a naked allegation is asserted, the trial court
must grant an evidentiary hearing.
In the instant case, the bargained-for consideration was, as in Santobello, supra, that the
prosecutor would stand silent at the time of sentencing and would not oppose a
recommendation by the Department of Parole and Probation, should a recommendation for
probation be forthcoming. The record shows that Collins has made two distinct and
contradictory claims in connection with the alleged prosecutor's promise. In his petition for
post-conviction relief, he accuses the State of breaching its agreement. In his opening brief of
this appeal, Collins states only that his attorney told him that he would receive probation. The
record indicates that neither of these contradictory positions is valid. At the time of entering
his plea, Collins was represented by counsel, was served with a copy of the information, and
stated that his guilty plea was voluntary.
and stated that his guilty plea was voluntary. The court advised him of the elements of the
crime with which he was charged and the burden of proof upon the State. He was advised of
the penalty and affirmatively stated that he knew what it was. He understood his right to trial
by jury, compulsory process for obtaining witnesses, and his right to confront witnesses
against him, as well as his right to remain silent.
[Headnote 3]
When the court inquired about negotiations, it was determined that the prosecutor had
agreed to stand silent at time of sentencing, and not to oppose probation. This representation
as to the plea negotiations came from appellant's attorney and is in no way indicative of a
promise of probation from that attorney to appellant. Collins said that he understood that this
was the full extent of the plea negotiations and that sentencing was entirely in the hands of
the court. From the record and from Collins's own admissions, the State did all it was bound
to do by its promise. The consideration for the guilty plea was silence at the time of
sentencing, as in Santobello, supra. Unlike Santobello, however, the State in the instant case
kept its promise fully.
The contention that Collins believed that his own attorney had promised him probation is
negated by that attorney's statements on the record at the time of sentencing and Collins's
statements that he understood such to be the full extent of the plea negotiations. Any
contention to the contrary is no more than a naked allegation. Vaillancourt v. Warden,
supra. Collins was thoroughly questioned concerning the voluntariness of his plea, and he
stated that it was voluntary. See State v. Popejoy, 450 P.2d 411 (Ariz.App. 1969). He was
fully aware of the nature of the plea negotiations with the prosecutor, and since that bargain
was kept through prosecutorial silence at the time of sentencing, Collins was properly denied
an evidentiary hearing on his petition for post-conviction relief in the court below. The lower
court order is affirmed.
____________
91 Nev. 575, 575 (1975) Adams v. Sheriff
RON ADAMS, Appellant, v. SHERIFF, WHITE
PINE COUNTY, NEVADA, Respondent.
No. 8358
September 17, 1975 540 P.2d 118
Appeal from order denying petition for writ of habeas corpus, Seventh Judicial District
Court, White Pine County; Merlyn H. Hoyt, Judge.
The Supreme Court held that where there was no legal cause for the state's failure to arrest,
arraign and try petitioner within 60 days, petitioner was entitled to discharge.
Reversed and remanded with instructions.
John Manzonie, Ely, for Appellant.
Robert List, Attorney General, Carson City; and Rupert C. Schneider, District Attorney,
White Pine County, for Respondent.
Criminal Law.
Where there was no legal cause for state's failure to arrest, arraign and try accused within 60 days,
accused was entitled to discharge. NRS 178.556.
OPINION
Per Curiam:
A two count indictment was returned against Ron Adams January 29, 1975. When Adams
first learned of the indictment from a newspaper article on March 27, 1975, he promptly
surrendered and posted bond. The state took no action in the case until May 30, 1975, when
arraignment was scheduled for June 16, 1975, 81 days after the arrest and 138 days after the
finding of the indictment.
Contending, inter alia, he had been denied his right to a speedy trial, Adams sought and
was denied habeas relief in the district court; and, in this appeal he argues that our decision in
Ex Parte Morris, 78 Nev. 123, 369 P.2d 456 (1962), compels us to reverse. We agree.
The right to a speedy trial in Nevada is legislatively recognized.
1
This court has
previously determined the 60-day rule prescribed in our statute has flexibility.
____________________

1
NRS 178.556 provides: If no indictment is found or information filed against a person within 15 days after
he has been held to answer
91 Nev. 575, 576 (1975) Adams v. Sheriff
prescribed in our statute has flexibility. See, for example, Oberle v. Fogliani, 82 Nev. 428,
430, 420 P.2d 251, 252 (1966), where we said: If the defendant is responsible for the delay
of trial beyond the 60 day limit, he may not complain. . . [T]he trial court may give due
consideration to the condition of its calendar, other pending cases, public expense, the health
of the judge, and the rights of co-defendants.
If the state is responsible for the delay, the burden of showing good cause [for the delay]
is upon the prosecution and, if not shown, the accused will be discharged upon timely
application. Ex Parte Morris, 78 Nev. 123, 369 P.2d 456 (1962). Oberle, supra, 82 Nev. at
431, 420 P.2d at 252.
In this case the record is barren of any legal cause for the state's failure to timely arrest,
arraign or try Adams. Accordingly, we reverse and remand this case to the district court with
instructions to grant the petition for a writ of habeas corpus.
____________________
for a public offense, or if a defendant whose trial has not been postponed upon his application is not brought to
trial within 60 days after the finding of the indictment or filing of the information, the court may dismiss the
indictment, information or complaint.
An accused is entitled to a speedy trial pursuant to the Sixth Amendment of the United States Constitution;
and, this right was made applicable to the states in Klopfer v. North Carolina, 386 U.S. 213 (1967). We need not
and do not reach constitutional rights or questions in the instant case.
____________
91 Nev. 576, 576 (1975) Shell Oil Co. v. Ed Hoppe Realty Inc.
SHELL OIL COMPANY, a Delaware Corporation, Appellant, v. ED
HOPPE REALTY INC., a Nevada Corporation, Respondent.
No. 7238
ED HOPPE REALTY INC., a Nevada Corporation, Appellant, v. HUSKY OIL
COMPANY OF DELAWARE, a Delaware Corporation, Respondent.
No. 7320
September 22, 1975 540 P.2d 107
Appeals from judgment of the Eighth Judicial District Court, Clark County; James D.
Santini, Judge.
Realtor brought action to recover real estate commission from vendor and purchaser for
sale of three oil service stations. The district court denied realtor relief against purchaser, and
rendered judgment against vendor; vendor and realtor appealed.
rendered judgment against vendor; vendor and realtor appealed. The Supreme Court,
Gunderson, C. J., held that an employment relationship existed between realtor and vendor;
that net listing agreements were not objectionable as a matter of law; that realtor was
procuring cause for the sale; and that evidence supported trial court's finding of no
commission liability on part of purchaser.
Affirmed.
Batjer, J., dissented in part.
Deaner & Deaner, Las Vegas, for Appellant Shell Oil Company.
Goodman & Snyder, Ltd., Las Vegas, for Respondent Husky Oil Company of Delaware.
Lee & Beasey, Las Vegas, for Appellant-Respondent Ed Hoppe Realty Inc.
If the evidence, though conflicting, can be read to support them, the Supreme Court must approve the
trial court's determinations.
2. Brokers.
Before real estate agent is entitled to a commission, an employment contract must be shown, and agent
must have been procuring cause of the sale.
3. Brokers.
In action by realtor to recover real estate commission from vendor and purchaser for sale of three oil
service stations, district court finding of an employment relationship between realtor and vendor was not
clearly erroneous. NRCP 52(a).
4. Brokers.
Net listing brokerage agreements are fairly common contractual devices, generally enforceable
according to their tenor.
5. Brokers.
Net listing agreement between realtor and vendor which reserved ultimate decision on what net figure
is reasonable and sufficient for sale to a company official higher than the one engaging the broker, was not
objectionable as a matter of law.
6. Brokers.
In action by realtor to recover real estate commission from vendor and purchaser for sale of three oil
service stations, evidence supported finding that realtor was procuring cause for sale.
7. Brokers.
To constitute procuring cause of sale, thereby entitling broker to commission, conduct must be more
than mere trifling. S.
8. Brokers.
Evidence, in action by realtor to recover real estate commission from vendor and purchaser for sale of
three oil service stations, supported trial court's finding of no commission liability on part of purchaser.
OPINION
These appeals follow judgment for Ed Hoppe Realty Inc. (Hoppe) against Shell Oil
Company (Shell), in the sum of $15,000, representing a real estate commission on the sale of
three Shell service stations. The trial court denied Hoppe relief against the buyer of the
stations, Husky Oil Company of Delaware (Husky). Shell and Hoppe have appealed. Shell
contends evidence at trial was insufficient to show a broker-client relationship between Shell
and Hoppe, or to establish Hoppe as the procuring cause of the sale. Hoppe contends the
contrary, and also that the evidence established a commission is due Hoppe from Husky. In
our view, the record supports the trial court's determinations.
Early in 1969, Husky contacted William Hoppe, Hoppe's president, seeking expansion
locations for Husky's truck stop operations. At first, Mr. Hoppe showed Husky's
representatives a number of possible locations already listed with his company. Thus, it
appears that if Hoppe had continued advocating these locations to Husky's representatives,
rather than being led to act in Shell's interests, Hoppe might have earned and received a fee,
without having to litigate over it. Moreover, Shell might still be burdened with certain service
stations it regarded as surplus, and wanted to selland which it ultimately sold to Husky as
a result of Hoppe's efforts, for $15,000 more than it apparently hoped to receive.
[Headnote 1]
Prior to the sale in question, Hoppe sent several letters to Shell and, through telephone
contact, received statistical and price information concerning the stations. Although the
content and import of these dealings are disputed, we must presume that the trier of fact
resolved all conflicts and drew all permissible inferences in Hoppe's favor. If the evidence,
though conflicting, can be read to support them, this court must approve the trial court's
determinations. Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973). Cf. Fletcher v.
Garrett, 445 P.2d 401 (Colo. 1968).
From the record, the trial court could determine that, seeking listings to show Husky, Mr.
Hoppe telephoned a number of oil companies, including Shell.
oil companies, including Shell. In Shell's case, Mr. Hoppe left a message with a secretary,
stating his name, that of his company, and the matter of his interest. Shell did not rebuff or
ignore this contact. Instead, evidently contemplating some sort of business relationship,
Shell's real estate representative called Hoppe's office, and left word that Shell desired to sell
three surplus service stations in Las Vegas, describing them by location.
Subsequently, whenever Hoppe requested it, Shell's representatives supplied further
information for Hoppe to use in negotiations with its prospect, Husky. Inferably, Shell's
representatives knew common real estate practice is that a broker receives compensation
through a percentage of the price obtained for the seller; they knew Hoppe expected to be
paid; and they knew Hoppe in all likelihood expected to be paid in the customary way.
Nonetheless, Shell continued to permit Hoppe to act for Shell's benefit, interesting Hoppe's
prospective buyer in Shell's surplus service stations. Read in the light most favorable to
Hoppe, as it must be, the record does not require a finding that Hoppe was merely an
officious intermeddler, as Shell contends.
Ultimately, after determining that Shell's surplus stations might be acceptable to Husky,
Mr. Hoppe expressly discussed price and commission with Shell's representative, Mr. Cobb.
Even then, Shell failed to advise Hoppe its conduct was regarded as officious. Rather, Mr.
Cobb told Mr. Hoppe he would recommend to higher Shell authority a price between
$250,000 and $260,000. Moreover, Cobb clearly led Mr. Hoppe to understand that his
company could earn a commission by producing a buyer willing to pay a net price
acceptable to Shell plus Hoppe's customary commission.
1
On this basis, Hoppe continued to
work on Shell's behalf, rather than endeavoring to interest Husky in other listings.
Having been led to understand Shell would pay a commission if he produced a buyer at a
gross price covering Shell's desired "net" plus the commission Mr.
____________________

1
After determining from Mr. Cobb the price Cobb would submit for final approval, Mr. Hoppe testified, he
specifically addressed the issue of Hoppe's compensation:
Q. Was anything else said by you and Mr. Cobb on that occasion?
A. Yes. I asked him if that price included commission.
Q. What did he say to you?
A. He said, Shell doesn't like to pay a commission.' I said, Well, you mean it's got to be net to you,
then?' And he said, That's right.'
Q. Was anything else said?
A. Yes. He told me that this, of course, was not a firm figure. Nothing that I could go in and say,
This is it,' but he merely stated that he would recommend acceptance of a price in this range.
net plus the commission Mr. Hoppe estimated and quoted to Husky the expected gross
price of $275,000. He computed that figure by increasing Shell's expected high net figure,
$260,000, by six percent rounded off at $15,000. (Testimony indicates a six percent
commission is customary in Las Vegas, for similar brokerage services.) Then Mr. Hoppe
wrote Husky, advising that the surplus stations could probably be purchased for a total
price of $275,000, and at the same time forwarded information received from Shell
concerning storage and sales volume, pictures of the stations, and other data.
Shortly thereafter, Shell's representatives arranged a meeting with Husky's agents. There,
they contracted a sale to Husky for $275,000, without further assistance from Hoppe. At that
time, Husky's representative, Gregson, expressly told Shell's representatives that William
Hoppe had interested them in the stations. However, Shell's agents assured Gregson that
Hoppe had no rights.
2

Whether the trial court erred in finding Shell may not take the benefits of Hoppe's services,
and retain for itself the $15,000 included for Hoppe's fee in the $275,000 gross sales price, is
the ultimate question before us.
[Headnotes 2, 3]
1. Of course, before a real estate agent is entitled to a commission, an employment
contract must be shown, Lawry v. Devine, 82 Nev. 65, 410 P.2d 761 (1966), and the agent
must have been the procuring cause of the sale. Humphrey v. Knobel, 78 Nev. 137, 369
P.2d 872 (1962). Cf. Brewer v. Williams, 362 P.2d 1033 (Colo. 1961).
To support its contention that the evidence does not show a broker-client contract, Shell
relies on Lawry v. Devine, cited above, in which a trial court determined no agreement had
been reached. Obviously, this case is in a totally different posture. Here, the district court
found an employment relationship between Hoppe and Shell, and we cannot disturb that
determination unless it is clearly erroneous. NRCP 52(a).
____________________

2
Gregson testified:
A. I said, Well, I just want to make sure you know that I saw those stations with Bill.'
Q. And he said
A. He said, That's fine. We don't pay commissions. He didn't have the authority to sell it.' I said,
Just so the record is clear, I want you to know I saw them.'
Q. And then he said to you, And we'll cross that bridge when we come to it if there is any problem.'
A. Yes.
[Headnotes 4, 5]
Net listing brokerage agreements are, of course, fairly common contractual devices,
generally enforceable according to their tenor. Humphrey v. Knobel, 78 Nev. 137, 369 P.2d
872 (1962); Close v. Redelius, 67 Nev. 158, 215 P.2d 659 (1950); and Ramezzano v.
Avansino, 44 Nev. 72, 189 P. 681 (1920). If satisfactory to both parties, as the trial court here
found it was, we perceive nothing objectionable as a matter of law in a net listing
agreement reserving to a higher company official, other than the one engaging the broker,
ultimate power to decide what net figure is reasonable and sufficient. True enough, the
seller's implied obligation to act in good faith might be difficult to enforce; however, if some
preclusive legal objection exists to such a contract, the brief of appellant Shell omits to note
its nature.
[Headnotes 6, 7]
2. The record obviously justifies a finding that Hoppe was the procuring cause of the
sale. It is impossible to measure in quantitative units the efforts necessary to constitute
procuring cause.' Suffice that on the one hand it is conduct that is more than merely
trifling.' Bartsas Realty, Inc. v. Leverton, 82 Nev. 6, 9, 409 P.2d 627, 629 (1966). The
evidence consistently shows Hoppe brought buyer and seller together.
[Headnote 8]
3. Concerning Hoppe's appeal from denial of relief against Husky, we agree with the
district court, that there is insufficient evidence to establish a commission liability on the part
of Husky.
These appeals are affirmed.
Zenoff, Mowbray, and Thompson, JJ., concur.
Batjer, J., concurring in part and dissenting in part:
I respectfully dissent from that part of the majority opinion which affirms Hoppe's
judgment against Shell, but concur in that part of the majority opinion affirming the judgment
in favor of Husky and against Hoppe. Viewing it in its most favorable light, the evidence
which purports to support the trial court's finding fails to establish a brokerage contract
between Hoppe and Shell.
Hoppe had one direct contact with Shell. That was about a five minute conversation
with a representative of Shell whose name he could not remember and whose
recommendation Hoppe admitted would have to be approved by higher authority.
Hoppe admitted would have to be approved by higher authority. During the brief telephone
conversation Hoppe inquired about the sale price on the property in which the prospective
buyer Husky was interested and was told by Shell's representative that in his personal opinion
the price should be between $250,000 and $260,000. Hoppe then inquired if that price
included a commission. Shell doesn't like to pay a commission was the representative's
answer. Hoppe then responded, Well, you mean it's got to be net to you, then?, and the
representative said that's right. After that conversation Hoppe sent an unanswered letter to
Shell, and advised Husky that the sale price on the desired property was $275,000.
Subsequently Husky purchased the property directly from Shell. Upon Shell's refusal to pay a
commission Hoppe sued claiming a $15,000 fee.
If Hoppe had an intention of holding Shell to an employment contract he should have had
something more definite than his own inference that Shell was agreeing to employ him and
pay a commission simply because Shell's employee with whom Hoppe had the telephone
conversation did not advise him in a harsh manner that it would not do so. It is not contended
by Hoppe that he had any further conversation or negotiations with Shell other than an
unanswered letter which he sent to that company.
Real estate brokers' employment contracts are to be treated in the same manner as other
contracts. There must be a meeting of the minds, consideration, mutuality and certainty. Here
there was no meeting of the minds or mutuality because it was never Shell's intention to hire
Hoppe and their employee told him so, albeit in a polite manner. To allow Hoppe to recover
one penny as a commission in this case will make it possible for a broker, upon the flimsiest
assumption of consent, to foist his services upon a property owner and extract a commission.
Assuming, without conceding that Hoppe was the procuring cause in the Husky-Shell land
transaction, he had no right to act in that capacity. In Zeligson v. Hartman-Blair, Inc., 135
F.2d 874, 875 (10 Cir. 1943), that court said: It is a well settled principle of law, which
needs no citation of authority to support it, that where an owner, in response to an inquiry
from a broker, merely states the terms upon which he is willing to sell his property, he does
not become liable for a commission if the broker produces a purchaser. Under such
circumstances, the broker is a mere volunteer and the owner owes him no duty whatsoever.
Cf. Ira Garson Realty Co. v. Brown, 4 Cal.Rptr. 734 (Cal.App. 1960); Bennett v. H. K. Porter
Company, Inc., 301 N.E.2d 155 (Ill.App. 1973). O'Donnell v. Carr, 126 S.E. 112, 114 {N.C.
1925).
S.E. 112, 114 (N.C. 1925). See also 12 C.J.S. Brokers, Sec. 60, p. 134.
A real estate broker seeking a commission has the burden to sustain the action by clear and
convincing evidence. I can find no evidence in this record to support an employment contract
and I would reverse and instruct the district court to enter a judgment in favor of Shell and
against Hoppe. See Johns v. Ambrose-Williams & Co., 317 P.2d 897 (Colo. 1957).
____________
91 Nev. 583, 583 (1975) Richard Matthews, Jr., Inc. v. Vaughn
RICHARD MATTHEWS, Jr., INC., dba The Matthews Company; and THE MATTHEWS
COMPANY, Sole General Partner of NORTHERN NEVADA COMPANY, a Limited
Partnership, Appellants, v. NORMAN G. VAUGHN, Respondent.
No. 7352
NORTHERN NEVADA COMPANY, a Limited Partnership,
Appellant, v. NORMAN G. VAUGHN, Respondent.
No. 7480
September 29, 1975 540 P.2d 1062
Appeal from jury verdict and judgment of Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
Employee brought action to recover damages arising out of and in the course of his
employment. The district court entered judgment for employee, and employer and partnership
which owned premises on which employee was injured appealed. The Supreme Court,
Thompson, J., held that employer which had rejected the provisions of the Industrial
Insurance Act had burden to rebut presumption of negligence by employer, and employee's
conduct could not be utilized to avoid liability; and that as employee sued his employer, a
general partner in limited partnership which owned premises on which employee was injured,
without describing employer's capacity as a general partner, and limited partnership was
never notified that suit was pending against it, execution upon properties of the limited
partnership in satisfaction of judgment against general partner was void.
Case No. 7352 affirmed. Case No. 7480 reversed.
Vargas, Bartlett & Dixon, and Fred Starich, of Reno, for Appellant Matthews.
Beckley, DeLanoy & Jemison, of Las Vegas, for Appellant Northern Nevada Company.
Echeverria and Osborne, and John Conner, of Reno, for Respondent.
Although employer who has rejected the Industrial Insurance Act may not be held liable in the total
absence of negligence on his part, it is employer's burden to prove his due care and rebut the statutory
presumption of negligence and proximate cause. NRS 616.300, 616.300, subd. 1(a)(2)(3).
Employer who has rejected the Industrial Insurance Act cannot rebut presumption of negligence with
respect to injury by employee by proof of employee's lack of due care for his own safety. NRS 616.300,
616.300, subd. 1(a)(2)(3).
Apartment management company which employed maintenance man who was injured while attempting to
use a vacuum cleaner failed to rebut presumption of negligence and proximate cause. NRS 616.300,
616.300, subd. 1(a)(2)(3).
Even if question asked by counsel for injured employee suggesting that employer managed rental
properties valued in excess of $7,000,000 violated order precluding mention of employer's net worth or
financial standing, error did not affect the substantial rights of the parties. NRCP 61.
5. Partnership.
Although a partnership is not a separate legal entity in the sense that a corporation is a legal entity, it is
deemed a legal entity for purposes of pleading and defending litigation. NRS 12.110, 88.270.
6. Partnership.
Claim against a conventional partnership may be asserted by filing suit against the partnership in its
common name and serving one or more of the partners as authorized by statute, or by an action naming all
of the partners. NRS 12.110, 88.270.
7. Partnership.
Claim against a limited partnership may not be asserted by bringing action naming all of the partners.
NRS 12.110, 88.270.
8. Partnership.
Where maintenance man employed by apartment management company which was a general partner in
limited partnership which owned the apartment building in which employee was injured did not sue the
limited partnership in its common name and served process upon the general partner thereof as such
general partner, and the limited partnership was never notified that a suit was pending against it and was
not afforded an opportunity to be heard, execution upon properties of the limited partnership
in satisfaction of judgment against the general partner was void.
execution upon properties of the limited partnership in satisfaction of judgment against the general partner
was void. NRS 12.110, 88.270.
OPINION
Case No. 7352.
In this action by an employee against his employer to recover damages for personal
injuries arising out of and in the course of his employment, the jury favored the employee
with its verdict in the sum of $100,000 which is not challenged as excessive. The employer
had rejected the provisions of the Nevada Industrial Insurance Act. By this appeal the
employer primarily contends that the trial court committed prejudicial error by ruling that the
employer could not argue or infer that the negligence of the employee was the sole proximate
cause of his injury. Other contentions also are tendered and will be considered.
Norman Vaughn was employed by Richard Matthews, Jr., Inc., dba The Matthews
Company, as a maintenance man for apartments managed by the company. On the day of
injury he was preparing an apartment for occupancy. He intended to vacuum the carpet and
then shampoo it. The vacuum cleaners usually available were not available on that occasion.
Consequently, he attempted to use a vacuum cleaner which he found abandoned in a vacated
apartment. Upon activating it, he noticed a clicking sound. He placed the vacuum cleaner on
the floor and removed the head so that the blades were exposed.
Because of the lighting he found it more convenient to place the vacuum cleaner on the
bed. He then tried the switch on the vacuum cleaner and there was no response. He proceeded
to the wall switch to insure that the power was on. Again, no response. He walked back to the
bed and tried the switch on the vacuum cleaner a second time. He was leaning directly over
the cleaner. The vacuum cleaner activated, and the blades thereof partially amputated his
penis. There previously had been problems with the wall sockets and switches at the
apartments. Vaughn's theory of recovery was the employer's failure to provide reasonably safe
tools or appliances or a reasonably safe place to work. NRS 616.300(1)(a)(2)(3).
1. Vaughn entered the case with the presumption that the employer was negligent and that
such negligence was the proximate cause of the injury which he sustained. NRS 616.300.
1
As applied to this case, the employer is presumed to have breached his duty to provide
Vaughn with a reasonably safe vacuum cleaner, or a reasonably safe place to work.
____________________

1
NRS 616.300: 1. If an employer having the right under NRS 616.290 to accept the terms, conditions and
provisions thereof shall fail
applied to this case, the employer is presumed to have breached his duty to provide Vaughn
with a reasonably safe vacuum cleaner, or a reasonably safe place to work. All that Vaughn
needed to allege and prove was the relationship of employer-employee, an injury arising out
of and in the course of his employment, damages, and the rejection of the Nevada Industrial
Insurance Act by the employer. Reeder v. Pincolini, 59 Nev. 396, 402, 94 P.2d 1097 (1939).
He was under no duty to prove negligence. It was the employer's burden to rebut the statutory
presumption of his negligence and of proximate cause.
____________________
to accept the same as provided in this chapter, every such employer shall be deemed to have rejected the terms,
conditions and provisions thereof, and in such case such employer shall not escape liability for personal injury
by accident sustained by an employee of such employer when the injury sustained arises out of and in the course
of the employment because:
(a) The employee assumed the risks:
(1) Inherent or incidental to, or arising out of, his employment; or
(2) Arising from the failure of the employer to provide and maintain a reasonably safe place to work; or
(3) Arising from the failure of the employer to furnish reasonably safe tools or appliances.
(b) The employer exercised reasonable care in selecting reasonably competent employees in the business.
(c) The injury was caused by the negligence of a coemployee.
(d) The employee was negligent, unless and except it shall appear that such negligence was willful and with
intent to cause the injury or the result of intoxication on the part of the injured party.
2. In actions by an employee against an employer for personal injuries sustained arising out of and in the
course of the employment where the employer has rejected the provisions of this chapter, it shall be presumed
that the injury to the employee was the first result and growing out of the negligence of the employer, and that
such negligence was the proximate cause of the injury. In such case the burden of proof shall rest upon the
employer to rebut the presumption of negligence.
3. Every such employer shall be conclusively presumed not to have elected to provide and secure
compensation to employees for injuries sustained arising out of and in the course of the employment according
to the provisions of this chapter, unless and until notice in writing of an election to accept shall be given to the
commission, substantially in the following form:
Nevada Industrial Commission
Carson City, Nevada
The undersigned employer engaged in the business of .........................................., Nevada, hereby elects to
accept the provisions of the Nevada Industrial Insurance Act.
Dated at.............., this........ day of .............., 19......
....................................................
(Signature of Employer)
Cahow v. Michelas, 62 Nev. 295, 149 P.2d 233 (1944); Reeder v. Pincolini, supra.
The common law defenses of assumed risk, negligence of a coemployee, and contributory
negligence were, by the Act (NRS 616.300) removed from the case, and could not be utilized
by the employer in an effort to defeat his employee's claim for relief. Indeed, only the
employee's willful negligence with intent to cause injury, or injury as the result of the
employee's intoxication may be offered in defense to the claim. The record in this case
contains nothing to suggest either.
The rules just expressed are not disputed by the employer-appellant. The employer does,
however, strenuously assert that he was entitled to argue that the employee's negligence was
the sole proximate cause of the accident and, moreover, that the court should have given his
offered jury instruction to that effect. We do not agree.
[Headnotes 1, 2]
Although true that the employer may not be held liable in the total absence of negligence
on his part [Day v. Cloke, 47 Nev. 75, 215 P. 386 (1923); Cahow v. Michelas, 62 Nev. 295,
149 P.2d 233 (1944)], it is his burden to prove his due care and thus rebut the statutory
presumption. The statutory expression in such case the burden of proof shall rest upon the
employer to rebut the presumption of negligence is referable to the employer's conduct, and
not to the conduct of the employee.
2
The employee's lack of due care for his own safety is of
no moment unless willful with the intent to cause injury, or the result of intoxication. This is
the penalty the employer must suffer for his failure to accept the provisions of the Nevada
Industrial Insurance Act.
[Headnote 3]
In the case at hand we think that it was within the province of the jury to find that the
presumption of employer negligence and proximate cause was not rebutted. The defense
centered upon the employee's conduct which, for reasons already stated, could not be utilized
to avoid liability. And, with regard to the employer's conduct, the jury may well have believed
that, in addition to presumed negligence, the employer breached his duty of ordinary care
when he failed to provide the employee with a vacuum cleaner that sounded to be in good
working order and reasonably safe for use.
____________________

2
We reject contrary expressions contained in opinions from other jurisdictions under similar, but not
identical, statutes. See: Haralson v. Rhea, 259 P.2d 246 (Ariz. 1953); Potter v. Garner, 407 S.W.2d 537
(Tex.Civ.App. 1966).
with a vacuum cleaner that sounded to be in good working order and reasonably safe for use.
In any event, nothing was submitted with regard to the employer's conduct to rebut the
presumption of negligence and proximate cause.
[Headnote 4]
2. The employer moved for a mistrial which motion was denied. This ruling is assigned as
error. Counsel for the employee asked a question which suggested that the employer managed
rental properties valued in excess of seven million dollars. This question prompted the
motion for mistrial since the court, at the beginning of the trial granted the employer's motion
in limine to preclude mention of the employer's net worth or financial standing.
Perhaps the question violated the spirit of the preclusive order. However, this assigned
error is unsupported by reference to authority, and we are not prepared to assume that it
affected the substantial rights of the parties. Howarth v. El Sobrante Mining Corp., 87 Nev.
492, 489 P.2d 89 (1971); NRCP 61.
3. We deem other assigned errors insubstantial. The judgment in case No. 7352 is
affirmed.
Case No. 7480.
The action considered in case No. 7352 was tried by the employee, Vaughn, against his
employer, Richard Matthews, Jr., Inc., doing business as The Matthews Company. Service of
process was made upon the resident agent of The Matthews Company.
Trial evidence disclosed that the Garden Hill Apartments where the employee was
working when injured was owned by a limited partnership called Northern Nevada Company
in which The Matthews Company was the general partner and four individual investors were
the limited partners. The Matthews Company managed the apartments for Northern Nevada
Company.
Northern Nevada Company was never made a party to the action. Process served upon the
resident agent of The Matthews Company did not indicate that The Matthews Company was
being sued in its capacity as the general partner of the limited partnership, Northern Nevada
Company.
However, because of the evidentiary disclosure, the trial court allowed the jury verdict and
judgment thereon to run not only against Richard Matthews, Jr., Inc., doing business as The
Matthews Company but, as well, against The Matthews Company as sole general partner of
Northern Nevada Company, a limited partnership.
Following judgment, execution was made against the property of Northern Nevada
Company. Rents received from tenants of its properties were levied upon. This prompted
Northern Nevada to file a third party claim which the district court denied, and from which
denial Northern Nevada has appealed.
1. The employee, Vaughn, never asserted a claim for relief against the limited partnership,
Northern Nevada Company. NRS 12.110 provides: When two or more persons, associated in
any business, transact such business under a common name, whether it comprise the names of
such persons or not, the associates may be sued by such common name, the summons in such
cases being served on one or more of the associates; and the judgment in the action shall bind
the joint property of all the associates, in the same manner as if all had been made defendants
and had been sued upon their joint liability.
[Headnotes 5-7]
Although a partnership is not a separate legal entity in the sense that a corporation is a
legal entity, it is deemed a legal entity for the purposes of pleading and defending litigation.
Ruzicka v. Rager, 111 N.E.2d 878 (N.Y. 1953). A claim against a conventional partnership
may be asserted by filing suit against the partnership in its common name and serving one or
more of the partners as authorized by NRS 12.110, or by an action naming all of the partners.
The second alternative is not available in an action against a limited partnership because of
the provisions of NRS 88.270: A contributor, unless he is a general partner, is not a proper
party to proceedings by or against a partnership, except where the object is to enforce a
limited partner's right against or liability to the partnership.
[Headnote 8]
The employee did not sue the limited partnership, Northern Nevada Company, in its
common name and serve process upon the general partner thereof as such general partner.
The district court apparently believed that a limited partnership may properly be sued by
naming only the general partner without, in any way, describing its capacity as such.
Process is the means by which a claimant may bring his alleged oppressor before the court
and should afford reasonable notice of the pendency of suit against the oppressor and an
opportunity to be heard. This must be done if the fundamental demands of due process are to
be satisfied.
In the case at hand, Northern Nevada Company, a limited partnership, was never notified
that a suit was pending against it.
it. Neither was it afforded an opportunity to be heard. Had it been so notified and afforded
such an opportunity, its defenses to the claim for relief asserted by Vaughn may well have
been different than those available to The Matthews Company, the employer of Vaughn.
Perhaps the common law defenses of assumed risk and contributory negligence could have
properly been asserted, even though not available to The Matthews Company. We do not
know since the evidence adduced at trial did not explore in sufficient depth the relationship
existing between The Matthews Company and the Northern Nevada Company in the
operation of the Garden Hill Apartments. We are not apprised whether Northern Nevada
Company was obliged to accept the terms of the Nevada Industrial Insurance Act and would
suffer the same penalties for its failure to do so as did The Matthews Company.
In these circumstances, execution upon the properties of Northern Nevada Company in
satisfaction of a judgment against The Matthews Company is void, since Northern Nevada
has never had its day in court.
Reversed.
____________
91 Nev. 590, 590 (1975) Cotton v. Ludlow
WILLIAM P. COTTON, dba COTTON'S AIR CONDITIONING SERVICE,
Appellant, v. KENNETH M. LUDLOW, Respondent.
No. 7798
September 29, 1975 540 P.2d 106
Appeal from judgment for respondent allowing recovery of certain funds in dispute.
Eighth Judicial District Court, Clark County; Keith C. Hayes, Judge.
Air conditioning serviceman, whose employment had been terminated by defendant,
sought recovery of certain money that he claimed was owed under their oral agreement
whereby he would be paid according to work invoices submitted and collected by the
defendant. The district court determined that funds were owing and defendant appealed. The
Supreme Court held that unrefuted evidence of unpaid invoices outstanding at time of air
conditioning serviceman's termination and evidence that his employer subsequently received
payment on those invoices from customers supported the determination that funds were
owing serviceman under oral agreement whereby serviceman would be paid according to
work invoices submitted and collected by employer.
91 Nev. 590, 591 (1975) Cotton v. Ludlow
serviceman would be paid according to work invoices submitted and collected by employer.
Affirmed.
John Manzonie, of Las Vegas, for Appellant.
Samuel S. Anter, of Las Vegas, for Respondent.
Unrefuted evidence of unpaid invoices outstanding at time of air conditioning serviceman's termination
and evidence that his employer subsequently received payment on those invoices from customers supported
determination that funds were owing serviceman under oral agreement whereby serviceman would be paid
according to work invoices submitted and collected by employer.
Issue of air conditioning serviceman's status as an employee or an independent contractor had no bearing
on question of liability under oral agreement whereby he would be paid according to work invoices
submitted and collected by defendant.
OPINION
Per Curiam:
In May 1970, the respondent terminated his employment as an air conditioning serviceman
for the appellant. Respondent in the trial court sought recovery of certain money that he
claimed was owed under their oral agreement whereby he would be paid according to work
invoices submitted and collected by the appellant. The trial court determined that the funds
were owing.
[Headnote 1]
The primary thrust of appellant's argument on appeal is that the judgment by the trial court
was not supported by the evidence. A review of the record convinces us to the contrary.
Unrefuted evidence of unpaid invoices outstanding at the time of respondent's termination
and evidence that appellant subsequently received payment on those invoices from customers,
support the findings of the trial court. Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973).
[Headnote 2]
The issue of Ludlow's status as an employee or an independent contractor has no bearing
whatsoever on the question of liability.
Affirmed.
____________
91 Nev. 592, 592 (1975) McNallen v. State
MICHAEL B. McNALLEN, Appellant, v. THE
No. 8112
September 29, 1975 540 P.2d. 121
Appeal from order of revocation of probation, Eighth Judicial District Court, Clark
County; James A. Brennan, Judge.
The Supreme Court held that revocation of probation for breach of condition that
defendant refrain from activity involving drugs or narcotics was proper where defendant did
not contest charge of possession of controlled substance.
Affirmed.
David Abbatangelo, Las Vegas, for Appellant.
Criminal Law.
Revocation of probation for breach of condition that defendant refrain from activity involving drugs or
narcotics was proper where defendant did not contest charge of possession of controlled substance. NRS
200.380.
OPINION
Per Curiam:
Michael B. McNallen pleaded guilty to a charge of robbery, a felony under NRS 200.380,
and was sentenced to a term of fifteen (15) years in the Nevada State Prison. Sentence was
suspended and McNallen was placed on probation for a period of five (5) years.
During the period of probation the state moved for revocation because of purported
violations of the probation agreement.
After a hearing, the district court entered an order revoking probation and imposed the
original fifteen (15) year sentence. McNallen appeals, contending revocation was unjustified.
The contention is without merit.
One of the conditions of probation was that McNallen refrain from any activity involving
drugs or narcotics (controlled substances).
Evidence leading to the request for revocationand before the district court when
probation was revokedwas that McNallen had been arrested for, and charged with,
possession of a controlled substance. The charges were not contested at the revocation
hearing; and, counsel conceded the charges could not be refuted.
91 Nev. 592, 593 (1975) McNallen v. State
the revocation hearing; and, counsel conceded the charges could not be refuted.
Accordingly, the record fully supports the district judge's order revoking probation. Lewis
v. State, 90 Nev. 436, 529 P.2d 796 (1974); Jennings v. State, 89 Nev. 297, 511 P.2d 1048
(1973).
Affirmed.
____________
91 Nev. 593, 593 (1975) Mott v. Warden
MELBURN DELOS MOTT, Appellant, v. WARDEN,
No. 8392
September 29, 1975 540 P.2d 1061
Appeal from order dismissing petition for writ of habeas corpus, First Judicial District
The Supreme Court held that summary dismissal, without hearing or appointment of
counsel and without processing petition or ordering a return thereto, of habeas corpus
petition, wherein petitioner challenged constitutional validity of burglary statute, constituted
reversible error.
Melburn Delos Mott, in pro per.
No appearance, for Respondent.
1. Habeas Corpus.
Summary dismissal, without hearing or appointment of counsel and without processing petition or
ordering a return thereto, of habeas corpus petition, wherein petitioner challenged constitutional validity of
burglary statute, constituted reversible error. NRS 34.390 et seq., 34.430 et seq., 34.460, 205.060,
205.080.
2. Habeas Corpus.
A constitutional challenge to the validity of a statute under which a person is incarcerated is a proper
subject for habeas corpus. NRS 34.390 et seq., 34.430 et seq., 34.460.
OPINION
Per Curiam:
In 1972, Melburn Delos Mott after pleading guilty to a charge of burglary (a felony under
NRS 205.060) and possession of burglary tools (a gross misdemeanor under NRS 205.080),
was sentenced to a term in the Nevada State Prison.
91 Nev. 593, 594 (1975) Mott v. Warden
Thereafter, in August 1975, he filed an in pro per petition in the district court seeking habeas
corpus. The thrust of the petition challenged the constitutional validity of the burglary statute.
The district court neither processed the petition nor ordered a return thereto; and, without
hearing or appointment of counsel, summarily dismissed the petition. An in pro per appeal
has been perfected by Mott.
[Headnotes 1, 2]
Having reviewed the record we, sua sponte, conclude the summary action by the district
court constitutes reversible error. A constitutional challenge to the validity of a statute under
which a person is incarcerated is a proper subject for habeas corpus. See, for example, Ex
Parte Mantell and Raigen, 47 Nev. 95, 216 P. 509 (1923); Ex Parte Medeiros, 57 Nev. 301,
64 P.2d 346 (1937). Cf. Eureka Bank Cases, 35 Nev. 80, 126 P. 655, 129 P. 308 (1912).
Accordingly, the district judge should have granted the writ without delay (see NRS 34.390,
et seq.; NRS 34.430, et seq.); and, his failure to do so compels us to reverse and remand. The
First Judicial District Court, Carson City, is instructed: (1) to issue the writ of habeas corpus
forthwith; (2) to order a return thereto; (3) to appoint counsel for appellant; and, (4) pursuant
to NRS 34.460, grant an immediate hearing and resolve the allegations set forth in the
petition for habeas corpus.
Remittitur shall issue forthwith.
____________
91 Nev. 594, 594 (1975) Heidmark v. Warden
BLAIR PETER HEIDMARK, Appellant, v. WARDEN,
No. 8119
September 29, 1975 540 P.2d 111
Appeal from order denying petition for post-conviction relief, Eighth Judicial District
Post-conviction petition was denied by the district court without evidentiary hearing, and
petitioner appealed. The Supreme Court held that where allegations contained in petition, and
exhibit attached thereto, were not refuted in record and, if true, might well entitle petitioner to
relief, refusal to afford petitioner evidentiary hearing constituted reversible error.
afford petitioner evidentiary hearing constituted reversible error.
Horace R. Goff, State Public Defender, and Michael R. Griffin, Deputy, Carson City, for
Appellant.
Leon Simon, Deputy, Clark County, for Respondent.
Criminal Law.
Where allegations contained in post-conviction petition that, inter alia, at sentencing trial court relied
on false and erroneous information contained in presentence report, that report was not divulged to
petitioner or his counsel prior to or at time of imposition of sentence, and that petitioner had no
opportunity to refute or deny false information contained in report, and exhibit attached to petition were
not refuted in record and, if true, might well entitle petitioner to relief, denial of petition without
conducting evidentiary hearing was reversible error. NRS 176.156, subd. 1.
OPINION
Per Curiam:
Blair Peter Heidmark, after pleading guilty to a felony charge of burglary (NRS 205.060),
was sentenced, in January 1974, to a five year term in the Nevada State Prison.
On December 24, 1974, Heidmark filed an in pro per petition for post-conviction relief
contending, inter alia, that (1) at sentencing the trial judge relied on false and erroneous
information contained in the presentence report; (2) the report was not divulged to petitioner
or his counsel prior to or at the time of the imposition of the sentence; and, (3) he had no
opportunity to refute or deny the false information contained in the report.
The district court, without conducting an evidentiary hearing, summarily denied the
petition January 2, 1975. In this appeal Heidmark contends the lower court's refusal to afford
him an evidentiary hearing constitutes reversible error. In the factual pattern presented, we are
constrained to agree.
The district court order denying relief was premature. NRS 176.156(1) provides in part,
that the sentencing court shall disclose to the district attorney and to counsel for the
defendant, . . . the factual content of the report of the presentence investigation . . . and afford
an opportunity to each party to comment thereon. [Emphasis added.] The allegations
contained in Heidmark's petition, and the exhibit attached thereto, are not refuted in the
record and, if true, may well entitle him to relief.
The allegations contained in Heidmark's petition, and the exhibit attached thereto, are not
refuted in the record and, if true, may well entitle him to relief. United States v. Tucker, 404
U.S. 443 (1972). Cf. Vaillancourt v. Warden, 90 Nev. 431, 529 P.2d 204 (1974). See also,
Boswell v. Warden, 91 Nev. 284, 534 P.2d 1263 (1975); Garcia v. Warden, 91 Nev. 492, 538
P.2d 160 (1975).
Under these circumstances we reverse and remand with instructions to resolve Heidmark's
allegations in light of the trial court's transcripts, and in light of such other evidence as either
party may adduce upon evidentiary hearing. See NRS 177.365(1) and (2).
____________
91 Nev. 596, 596 (1975) Lubbe v. Barba
BRUNO LUBBE and HELEN LUBBE, Appellants, v.JOHN JOSEPH
BARBA and MARGARET JANET BARBA, Respondents.
No. 7778
September 29, 1975 540 P.2d 115
Appeal from judgment of the Second Judicial District Court, Washoe County; William N.
Forman, Judge.
The vendors of property filed and served a notice of default and an election to sell under
second deed of trust, and the purchasers countered with an action for damages on ground that
the vendors intentionally misled the purchasers and misrepresented the property. From a
judgment of the district court the vendors appealed. The Supreme Court, Batjer, J., held, inter
alia, that the burden was on the purchasers to support the contention of fraud by clear and
convincing proof; and that the evidence failed to establish fraud on part of vendors.
Reversed.
Lance R. VanLydegraf, of Reno, for Appellants.
Paul A. Richards, of Reno, for Respondents.
1. Fraud.
Plaintiffs had burden to support their contention of fraud by clear and convincing proof.
2. Fraud.
A false representation made by defendant, knowledge or belief on part of defendant that the
representation is false, or that be has not a sufficient basis of information to make it, an intention to
induce the plaintiffs to act or to refrain from acting in reliance upon the
misrepresentation, justifiable reliance upon the representation on part of plaintiff in
taking action or refraining from it, and damage to plaintiff, resulting from such
reliance, are the elements of intentional misrepresentation.
91 Nev. 596, 597 (1975) Lubbe v. Barba
to induce the plaintiffs to act or to refrain from acting in reliance upon the misrepresentation, justifiable
reliance upon the representation on part of plaintiff in taking action or refraining from it, and damage to
plaintiff, resulting from such reliance, are the elements of intentional misrepresentation.
3. Fraud.
Justifiable reliance on representations must be established by clear and convincing evidence in order to
establish a claim for relief.
4. Fraud.
The causal connection between the wrongful conduct and resulting damage, essential throughout the law
of torts, takes in cases of misrepresentation the form of inducement of the plaintiff to act, or to refrain from
acting, to his detriment; the false representation must have played a material and substantial part in leading
the plaintiff to adopt his particular course; and when he was unaware of it at time that be acted, or it is clear
that he was not in any way influenced by it, and would have done the same thing without it for other
reasons, his loss is not attributed to the defendant.
Where a trial court, sitting without jury, has made a determination upon basis of conflicting evidence, that
determination should not be disturbed on appeal if it is supported by substantial evidence, but trial court in
reaching its determination must apply the correct legal standard.
6. Fraud.
Evidence failed to establish that vendors knew that septic system did not meet requirements of uniform
plumbing code adopted by county or that their representation that septic tank was in perfect condition
was erroneous, or that they had insufficient basis of information, and hence purchasers were not entitled to
recover for alleged fraud.
OPINION
On October 18, 1972, George Silknitter, a real estate salesman for Ryan Realty, Inc.,
exhibited to respondents property known as Sky Lake Inn, owned by appellants and located
on Mt. Rose Highway in Washoe County, Nevada. Respondents and Silknitter arrived at the
property at about 3:30 a.m. and entered the building with a key which had been previously
furnished by appellants. They inspected the second floor of the premises and about 5:30 a.m.
went downstairs and awoke appellants.
Silknitter prepared an offer and acceptance agreement. During this time appellants
revealed to respondents that a section of the asbestos shingles was missing and a few
windows were broken.
91 Nev. 596, 598 (1975) Lubbe v. Barba
were broken. At the request of both parties, an as is condition was inserted into the offer
and acceptance agreement. Mr. Barba and Mrs. Lubbe signed the agreement. Mr. Lubbe
refused to sign. Respondents then made a deposit of $5,000 with appellants.
On November 6, 1972, appellants executed escrow instructions for the sale of the property
to respondents at the appraised price of $72,000. Respondents made a down payment of
$10,000, assumed the payment of the balance due on a promissory note secured by a first
deed of trust, and executed a promissory note in the amount of $38,000, secured by a second
deed of trust. After escrow closed respondents applied for a restaurant business license and
discovered that certain corrections were necessary in the sewer system. Upon this discovery
they refused to make any payments to appellants on their promissory note. As a result
appellants filed and served a notice of default and election to sell under the second trust deed.
Respondents countered with an action for damages and alleged, among other things, that they
intentionally misled respondents and misrepresented the property.
The trial court issued a temporary restraining order followed by a preliminary injunction
preventing any foreclosure sale of the property. After a trial without a jury the district court
found that: The Lubbes did make certain representations with relation to the septic system in
that the same was adequate for the premises, which representation was false in that the septic
tank was inadequate, and the Barbas relied upon said representation all to their damage in the
sum of $9,400.00. The judgment, from which this appeal is taken, was entered accordingly.
Appellants contend (1) that there is insufficient evidence to support the finding of
intentional fraudulent misrepresentation; (2) that the trial court erred in admitting evidence to
prove what the parties meant by the as is condition in the original agreement, and by failing
to affirmatively state in its finding of fact that (1) the false representations were knowingly
made by the defendants; (2) fraud was produced by clear and convincing evidence; and, (3)
reliance was shown on the part of the respondents.
[Headnote 1]
Here the burden was upon the respondents as the plaintiffs in the action to support their
contention of fraud by clear and convincing proof. Clark Sanitation, Inc. v. Sun Valley
Disposal Co., 87 Nev. 338, 487 P.2d 337 (1971), and cases cited therein. In Clark Sanitation,
supra, we said: Although this is primarily a trial court standard, its view of the matter is
not necessarily conclusive since, upon review, we must consider the sufficiency of the
evidence in the light of that standard, [citation omitted], and where there exists no more
than a paucity of evidence to support the charge of fraud, we will not hesitate to reverse.
91 Nev. 596, 599 (1975) Lubbe v. Barba
this is primarily a trial court standard, its view of the matter is not necessarily conclusive
since, upon review, we must consider the sufficiency of the evidence in the light of that
standard, [citation omitted], and where there exists no more than a paucity of evidence to
support the charge of fraud, we will not hesitate to reverse. [Citation omitted.] 87 Nev. at
341.
[Headnote 2]
A false representation made by the defendant, knowledge or belief on the part of the
defendant that the representation is falseor, that he has not a sufficient basis of information
to make it, an intention to induce the plaintiff to act or to refrain from acting in reliance upon
the misrepresentation, justifiable reliance upon the representation on the part of the plaintiff
in taking action or refraining from it, and damage to the plaintiff, resulting from such
reliance, are the elements of intentional misrepresentation. Prosser, Law of Torts, 685 (4th ed.
1971).
Although appellants made a representation which later proved to be technically in error, it
is not established in the record by clear and convincing evidence that appellants knew that the
system did not meet the requirements of the uniform plumbing code adopted by Washoe
County, or their representation that the septic system was in perfect condition, was
erroneous, or they had an insufficient basis of information.
Instead the record indicates that appellants, upon purchasing the property, engaged a sewer
cleaning and inspection service and were informed by that service that the system was so
situated and constructed that it would never require servicing. There is also testimony in the
record that appellants never had any trouble with the system during the four years they had
owned the property. There is no evidence that the system backed up or otherwise
malfunctioned, nor was it inadequate in capacity or performance.
It was only after the respondents closed escrow and sought an operating license that an
inspector from the Washoe County district health department poured dye into the system and
discovered effluent flowing from the septic tank into an open pit. The inspector testified that
at sometime prior to the date on which the offer and acceptance agreement was executed he
had stopped and visited the appellants and Mrs. Lubbe had advised him that . . . [I]t was
down the hill and it was there for my inspection. I said that I would be back at a later date and
dye it, which unfortunately I didn't do at that time. Although appellants may have been
ignorant of the code requirements, it is obvious there was no attempt on their part to conceal
from the inspector any fact about the system.
91 Nev. 596, 600 (1975) Lubbe v. Barba
from the inspector any fact about the system. Not until the inspection on respondents' behalf
was the system deemed to have failed to meet uniform plumbing code requirements.
[Headnotes 3, 4]
Justifiable reliance must be established by clear and convincing evidence in order to
establish a claim for relief. Clark Sanitation, Inc. v. Sun Valley Disposal Co., supra. The
causal connection between the wrongful conduct and the resulting damage, essential
throughout the law of torts, takes in cases of misrepresentation the form of inducement of the
plaintiff to act, or to refrain from acting, to his detriment. The false representation must have
played a material and substantial part in leading the plaintiff to adopt his particular course;
and when he was unaware of it at the time that he acted, or it is clear that he was not in any
way influenced by it, and would have done the same thing without it for other reasons, his
loss is not attributed to the defendant. Prosser, supra, at 714.
[Headnotes 5, 6]
Where a trial court, sitting without a jury, has made a determination upon the basis of
conflicting evidence, that determination should not be disturbed on appeal if it is supported
by substantial evidence. Fletcher v. Fletcher, 89 Nev. 540, 542, 516 P.2d 103 (1973).
However, the trial court in reaching its determination must apply the correct legal standard.
Here it is apparent that some of the elements necessary to establish a cause of action for
intentional misrepresentation are absent, and that the trial court did not require respondents to
prove the alleged fraud by clear and convincing evidence.
The other assignments of error need not be considered. The matter is reversed with
instructions to the district court to enter judgment accordingly.
____________
91 Nev. 600, 600 (1975) Truax v. State
NORMAN CECIL TRUAX, Appellant, v. THE
STATE OF NEVADA Respondent.
No. 7840
September 29, 1975 540 P.2d 104
Appeal from judgment of conviction and sentence, Second Judicial District Court, Washoe
County; John E. Gabrielli, Judge.
91 Nev. 600, 601 (1975) Truax v. State
The Supreme Court held that evidence sustained finding that witness' identification of
defendant had a basis independent of observations of photographic lineups; and that where
photographic lineups were conducted prior to the time the charges were brought against
defendant, he was not entitled to counsel at the lineups.
Affirmed.
Lohse & Lohse, Chartered, Reno; Coffin & Nicholls, Reno; Horace R. Goff, State Public
Defender, and Michael R. Griffin, Deputy Public Defender, Carson City, for Appellant.
Respondent.
1. Criminal Law.
Testimony by witness that, in photograph of defendant included in first photographic lineup which
witness viewed, defendant was not wearing glasses, as he was at the second lineup and during the burglary,
and that his in-court identification of defendant was based on his inadvertent and accidental confrontation
with defendant during the burglary, and not on repetitive viewing of the photographs, sustained finding that
the in-court identification was based on observations independent of the photographs and sustained
admission of the identification testimony.
2. Criminal Law.
Where photographic lineups which included pictures of defendant were conducted prior to the time that
charges were filed against defendant, defendant was not entitled to counsel at the lineups.
Combination of several isolated events which occurred at different stages of the trial, none of which were
deemed serious enough by defendant to warrant objection or prejudicial enough to warrant an assignment
of error, did not demonstrate impropriety arising to the level of denial of due process.
OPINION
Per Curiam:
Norman Cecil Truax was convicted, by jury verdict, of burglary and sentenced to a seven
year term in the Nevada State Prison.
The central contention on appeal is that the trial court committed reversible error when it
permitted Terry Bullard, a prosecution witness, to make an in-court identification. Bullard,
who worked at the company Truax was convicted of burglarizing, had entered his
employer's building and observed Truax and two other men in the process of burglarizing
the establishment.
91 Nev. 600, 602 (1975) Truax v. State
burglarizing, had entered his employer's building and observed Truax and two other men in
the process of burglarizing the establishment.
It is argued that, since Bullard failed to identify Truax at the first of two photographic
lineups, the positive identification made at the second lineupand at trialwas the result of
impermissible suggestiveness.
[Headnote 1]
Bullard testified that in the first photograph Truax was not wearing glasses, as he was at
the second lineup, and during the burglary, and that his in-court identification was based on
the inadvertent and accidental confrontation with Truax during the burglary, not on repetitive
viewing of the photographs.
This testimony, elicited at the hearing outside the presence of the jury, supports the trial
judge's conclusion that the in-court identification was based on Bullard's independent
observations of Truax, and not on the viewing of photographs. Moss v. State, 88 Nev. 19, 492
P.2d 1307 (1972). Cf. Baker v. State, 88 Nev. 369, 498 P.2d 1310 (1972).
[Headnote 2]
In an ancillary contention Truax argues his constitutional rights were violated because he
was not afforded counsel at the two photographic lineups. Since the lineups were conducted
prior to the time charges were filed, the contention is without merit. Baker, supra.
[Headnote 3]
Truax also suggests the trial as a whole was so improper as to constitute a denial of due
process. In support of this omnibus contention, he alludes to several isolated events which
occurred at different stages of the trial, none of which he deemed serious enough to warrant
objections or prejudicial enough to warrant an assignment of error. Under these
circumstances, the contention, which even now is not seriously argued or supported by
competent authority, is summarily rejected. Cf. Septer v. Warden, 91 Nev. 84, 530 P.2d 1390
(1975), and cases cited therein.
Affirmed.
1

____________________

1
The Second Judicial District Court is directed to give appellant's court appointed counsel the certificate
specified in NRS 7.260 in order that they may be compensated for their services on this appeal.
____________
91 Nev. 603, 603 (1975) De Mars v. Slama
RUTH DE MARS, GOLDIA HALL, MICHAEL THOMAS KIRCHNER, PATRICK
MARTIN KIRCHNER, and KELLY HERBERT KIRCHNER, Appellants, v. ORLAND P.
SLAMA, and ROBERTA KIRCHNER WRIGHT, Executrix of the Estate of HAROLD
THOMAS KIRCHNER, Deceased, Respondents.
No. 8158
September 29, 1975 540 P.2d 119
Appeal from judgment of the Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Proceeding was brought to probate will which left everything to deceased's ex-wife. The
district court entered judgment adverse to the contestants who appealed. The Supreme Court
held that statute effecting revocation of will provisions favoring former spouse in event of a
divorce if different provision is not made by court or parties during divorce proceedings
would not be applied retroactively to a will and divorce antedating statute.
Affirmed.
Johnson & Belaustegui, Reno, for Appellants.
Hawkins, Rhodes, Sharp & Barbagelata, Reno, for Respondents.
Wills.
Nevada statute declaring that a divorce works revocation of will provisions favoring a former spouse
if a different provision is not made by the court or parties during divorce proceedings would not be
applied to work revocation of a will in favor of deceased's former wife where both the will and the
divorce antedated statute. NRS 133.115.
OPINION
Per Curiam:
In 1973, Harold Kirchner died testate, leaving everything to respondent Roberta Kirchner
Wright, his ex-wife. Contesting the will, the appellants herein, three nephews and two aunts
of decedent, contended NRS 133.115 precluded respondent Wright from taking any property
under the will. The district court held NRS 133.115, pertaining to revocation of a will by
divorce, had no application to this case.
1
We agree.
____________________

1
133.115 Revocation of provisions of will in favor of former spouse on divorce, annulment; exceptions.
Divorce or annulment of the marriage of the testator revokes every beneficial devise, legacy or interest
91 Nev. 603, 604 (1975) De Mars v. Slama
In 1961, the deceased married respondent Wright in Montana, where he executed a will
leaving all property to her. Following entry of an Arizona divorce decree in 1965, Kirchner
moved to Nevada where he remained until his death. In Nevada, prior to 1967, divorce did
not work revocation of will provisions in favor of a former spouse. In Re Arnold's Estate, 60
Nev. 376, 110 P.2d 204 (1941). However, in 1967, the Legislature enacted NRS 133.115.
Thus, whether NRS 133.115 applies to change the rule previously recognized, in cases where
divorce preceded the statute's effective date, is the only issue we need now decide.
Appellants contend that a will is ambulatory by nature, with no rights vesting until the
death of the testator, and thus that the law in effect at death should be applicable. See: In Re
Ziegner's Estate, 264 P. 12 (Wash. 1928). Respondents cite Champaign County Bank and
Trust Co. v. Jutkins, 193 N.E.2d 779 (Ill. 1963), wherein the court held a statute similar to
ours did not apply retrospectively to wills executed before the legislation, even though the
divorce occurred after enactment of the statute. Here, however, not only does the will predate
the statute, but the divorce occurred before the legislation's effective date.
By its terms, NRS 133.115 does not declare that divorce ipso facto shall work revocation
of will provisions favoring a former spouse. It merely declares this result will follow if a
different provision is not made by the court or the parties during the divorce proceedings.
Obviously, such opportunities to avoid the statute's force would not be affordedas the
statute clearly intends them to bewere this court to apply the statute retrospectively to
divorces obtained before its enactment. Thus, we think, far from manifesting intent that NRS
133.115 should apply where divorce has preceded the legislation, that statute instead shows it
cannot be fully operable in such circumstances, which strongly indicates it was not intended
to be operable at all.
Affirmed.
____________________
given to the testator's former spouse in a will executed before the entry of the decree of divorce or annulment
unless otherwise:
1. Provided in a property or separation agreement which is approved by the court in the divorce or
annulment proceedings and not merged in the decree; or
2. Ordered by the court in the divorce or annulment proceedings, and the will shall take effect in the same
manner as if the former spouse had died before the testator.
____________
91 Nev. 605, 605 (1975) Roberts v. Gattshall
CLINTON J. ROBERTS, Appellant, v. J. WAYNE
GATTSHALL and A. D. FOX, Respondents.
No. 7782
September 30, 1975 540 P.2d 1067
Appeal from judgment and denial of motion to alter, modify and amend judgment. Second
Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Two years after executing contract for sale of 2 1/2 acre lot, purchaser was involuntarily
committed to state hospital. Vendor and purchaser then orally agreed that purchaser would
take 1/2 acre as value for payments made, and purchaser entered agreement to sell his 1/2
acre to third person, but refused to sign necessary documents when vendor insisted that deeds
contain a utility and roadway easement over the 1/2 acre. Vendor then declared the first
contract in default, and brought action against purchaser. The district court ruled that the oral
agreement was binding, and that the easement was not part of the understanding. On appeal,
the Supreme Court, Zenoff, J., held that there was sufficient evidence to support the oral
agreement as a binding contract, that the oral agreement was not invalid by reason of the
purchaser's legal incompetency, and that the trial court correctly refused to accept stipulation
by counsel that involuntary commitment of purchaser constituted adjudication of his
incompetency.
Affirmed.
[Rehearing denied November 6, 1975]
Paul J. Williams, of Reno, for Appellant.
William L. Hammersmith, of Reno, for Respondent A. D. Fox.
Richard J. Legarza, of Reno, for Respondent J. Wayne Gattshall.
1. Stipulations.
Trial court correctly refused to accept stipulation by attorneys for vendor and purchaser, in foreclosure
action, that commitment of purchaser to state hospital constituted the only necessary adjudication of his
incompetency.
2. Stipulations.
Parties may stipulate to the facts but they may not stipulate to the law.
3. Mental Health.
Initial hospitalization of person who is too incompetent to care for himself does not constitute
adjudication called for by statute which provides, inter alia, that a hospitalized patient shall not, by reason
of his hospitalization, be denied the right to dispose of property, unless such patient has been adjudicated
incompetent by a court of competent jurisdiction and has not been restored to legal capacity. NRS
433.685-433.697, 433.725.
4. Mental Health.
A hospitalized person does not lose his right to dispose of property, marry, execute instruments, make
purchases, enter into contractual relationships, vote and hold a driver's license unless be is separately and
singly adjudicated incompetent from doing any or each of the foregoing acts. NRS 433.725.
5. Mental Health.
Where purchaser of 2 1/2 acre lot was involuntarily committed to state hospital approximately two years
after executing contract for sale of the lot, but had not been adjudicated legally incompetent, oral
understanding reached between vendor and purchaser after the purchaser's commitment, according to
which purchaser would receive value for payments made by taking 1/2 acre of the property, was not invalid
by reason of the purchaser's legal incompetency.
Evidence supported oral agreement as a binding contract according to which purchaser of 2 1/2 acre lot,
who had been involuntarily committed to state hospital after making payments on the lot for approximately
two years, was to receive value for his payments by taking 1/2 acre of the property, while the vendor was to
take the remaining two acres.
OPINION
On May 17, 1967, J. Wayne Gattshall and Clinton J. Roberts executed a contract for sale
of a 2 1/2 acre lot in Sun Valley, Washoe County, Nevada. Gattshall was the seller, Roberts
the buyer. The terms called for a total purchase price of $5,000.00 plus 6% interest on the
unpaid balance. Roberts was to pay $250.00 down and the balance in $50.00 monthly
installments. Roberts moved into possession of the property.
On June 16, 1969, at which time payments on the purchase were current, Roberts was
involuntarily committed to the Nevada State Hospital pursuant to an order of the Second
Judicial District Court under Chapter 433, Nevada Revised Statutes. The order read, . . .
mentally ill and incompetent to provide for his own proper care and support. Roberts
remained in the hospital but was allowed convalescent leave from time to time.
In November 1969, Gattshall and Roberts orally agreed that Roberts was to take title to 1/2
acre of the parcel of property and Gattshall was to take title to the remaining two acres.
Roberts, at trial, testified that the burden of the entire purchase was too much for him, but that
he had already paid in about $1,700.00 at the time of the oral agreement so that by taking the
1/2 acre and giving the rest of the property back to Gattshall he would be receiving value for
the payments he had made plus relieving himself of any further obligations.
In December 1969, Gattshall arranged to have the 1/2 acre surveyed out of the 2 1/2 acres.
In March of 1970, subsequent to reaching the oral understanding with Roberts, Gattshall
entered upon the property and made substantial changes and improvements at a cost of about
$4,000.00.
On April 12, 1970, Roberts and Gattshall signed a written memorandum confirming their
November 1969 understanding which by itself was insufficient to comply with the Statute of
Frauds.
In January 1970, prior to the execution of the written memorandum with Gattshall,
Roberts entered into a sales agreement with A. D. Fox whereby Fox agreed to purchase the
1/2 acre from Roberts for $5,000.00. Fox, in April of 1970, took possession of the 1/2 acre
parcel.
Gattshall's quandry came about because Roberts refused to sign the necessary transfer
documents. Roberts' refusal was based upon Gattshall's insistence that the deeds contain a
utility and roadway easement over the Roberts-Fox 1/2 acre. Gattshall claimed it was part of
their agreement and without it his proposed development for the two acres would not be
possible.
Gattshall then declared the first sales contract in default upon Roberts' failure to make
payment from November 1969, at which time the previously mentioned oral understanding
was reached. Roberts countered that he did stop paying but that because their oral agreement,
later reduced to writing, superseded the first contract he no longer had to pay. Because
Roberts had not yet been committed to the state hospital for reason of incompetency at the
time of their original sales agreement, Gattshall contends that the agreement was still in good
standing and that since Roberts could not legally enter into the oral contract of November
1969 Gattshall had the right to foreclose on the first sales agreement. The trial court ruled that
part performance of the oral agreement removed it from the Statute of Frauds and was
therefore a binding agreement, but did not find in Gattshall's favor that the easement was a
part of the understanding between the parties.
part of the understanding between the parties. The trial court ordered Roberts to convey the 2
1/2 acres to Gattshall, Gattshall to convey the 1/2 acre to Roberts and Roberts to convey, in
turn, the 1/2 acre to Fox. After the action was commenced a guardian ad litem was appointed
for Roberts.
[Headnotes 1, 2]
1. During the trial, counsel for both Gattshall and Roberts orally stated that they were in
accord that when Roberts was committed to the state hospital his commitment there
constituted the only necessary adjudication of his incompetency. The trial court correctly
refused to accept the stipulation. Parties may stipulate to the facts but they may not stipulate
to the law. Ahlswede v. Schoneveld, 87 Nev. 449, 488 P.2d 908 (1971).
[Headnotes 3, 4]
Nevada Revised Statutes 433.685
1
through 433.697 provide for the initial
hospitalization of a person who is too incompetent to care for himself, however, that is not
the adjudication called for by NRS 433.725.
2
NRS 433.725 insures the civil liberties of a
person hospitalized under Chapter 433.
____________________

1
NRS 433.685 reads as follows:
Petition for judicial hospitalization: Who may file; accompanying documents. Proceedings for the judicial
hospitalization of any person in the State of Nevada may be commenced by the filing of a petition with the clerk
of the district court of any county where the person who is to be hospitalized resides by his spouse, parent, adult
children or legal guardian, by any physician, duly accredited officer or agent of the department of human
resources, or by any officer authorized to make arrests in the State of Nevada. Such petitions shall be
accompanied:
1. By a certificate of a physician stating that he has examined the person and is of the opinion that such
person is mentally ill, and because of such illness is likely to injure himself or others if allowed to remain at
liberty; or
2. By a sworn written statement by the petitioner that:
(a) The petitioner has good reason to believe that such person is mentally ill and, because of such illness, is
likely to injure himself or others if allowed to remain at liberty; and
(b) That such person has refused to submit to examination by a physician.

2
Exercise of certain rights by patients. No patient hospitalized pursuant to this chapter shall, by reason of such
hospitalization, be denied the right to dispose of property, marry, execute instruments, make purchases, enter
into contractual relationships, vote and hold a driver's license, unless such patient has been adjudicated
incompetent by a court of competent jurisdiction and has not been restored to legal capacity. If the chief of
service of the public or private hospital in which any such patient is hospitalized is of the opinion that such
patient is unable to exercise any of the aforementioned rights, the chief of service shall
the civil liberties of a person hospitalized under Chapter 433. Under this specific section a
hospitalized person does not lose his right to dispose of property, marry, execute instruments,
make purchases, enter into contractual relationships, vote and hold a driver's license unless he
is separately and singly adjudicated incompetent from doing any or each of the foregoing acts.
Cameron v. Mullen, 387 F.2d 193, 202 n. 29 (D.C. Cir. 1967).
3

[Headnote 5]
So long as the oral understanding of November 1969 is recognized as enforceable,
Gattshall cannot contend that it is invalid by reason of Roberts' legal incompetency. To be
legally incompetent Roberts would have had to be so declared by a separate adjudication.
[Headnote 6]
Having found that there was sufficient evidence to support the oral agreement as a binding
contract further discussion of other issues becomes unnecessary. The trial court weighted the
testimony concerning the easement in favor of Roberts. The record on appeal supports the
findings of the trial court. Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973).
Affirmed.
____________________
immediately notify the patient and the patient's attorney, legal guardian, spouse, parents or other nearest known
adult relative, and the district court of that fact.

3
See generally, Allen, Ferster and Rubin, Readings in Law and Psychiatry (Rev. Ed. 1975), Johns Hopkins
University Press.
____________
91 Nev. 609, 609 (1975) Graham v. Carson-Tahoe Hospital
RUTH ELIZABETH GRAHAM, Appellant, v. CARSON-TAHOE HOSPITAL, WILLIAM
R. KING, HENRY F. DAVIS, JACK S. HARPER, Et Al., Respondents.
No. 7791
September 30, 1975 540 P.2d 105
Appeal from granting of a summary judgment. First Judicial District Court, Carson City;
Frank B. Gregory, Judge.
The Supreme Court held that record disclosed that plaintiff was late in submitting her
answers to request for admissions of fact, and facts could be deemed admitted for purpose
of granting a summary judgment.
91 Nev. 609, 610 (1975) Graham v. Carson-Tahoe Hospital
fact, and facts could be deemed admitted for purpose of granting a summary judgment.
Affirmed.
Arthur J. Bayer, Jr., of Carson City, and Allan Lerch, of San Francisco, California, for
Appellant.
Wait, Shamberger & Georgeson, of Reno, for Respondents.
1. Discovery.
Record disclosed that plaintiff was late in submitting answers to defendants' request for admissions of
fact.
2. Discovery.
Where plaintiff was late in submitting answers to defendants' request for admissions of fact, the facts
could be deemed admitted for purpose of granting a summary judgment.
OPINION
Per Curiam:
Pursuant to NRCP 36(a), appellant was served with a request for admissions of fact.
Appellant, although granted an extension of time by respondents in which to comply, failed to
serve timely answers or timely objections to this request. As a consequence, she admitted the
facts which negate the existence of the cause of action against the respondents as alleged in
her complaint.
Appellant asserts on appeal that the answer to the request for admissions of fact was timely
filed and that, if not, the answer which was tardily filed cannot be deemed admitted for
purposes of granting a summary judgment.
[Headnotes 1, 2]
The record on appeal refutes appellant's initial contention by showing that she was in fact
late in submitting her answers to the request for admissions of fact; and our holding in
Lawrence v. Southwest Gas Corp., 89 Nev. 433, 514 P.2d 868 (1973), see also, Western
Mercury, Inc. v. The Rix Co., 84 Nev. 218, 438 P.2d 792 (1968), Dzack v. Marshall, 80 Nev.
345, 393 P.2d 610 (1964), refutes appellant's second contention.
Additional issues raised by the appellant need not be considered as the above are
dispositive of the appeal.
Affirmed.
____________
91 Nev. 611, 611 (1975) State v. Havas
THE STATE OF NEVADA, Appellant, v. VICTOR
ROWLAND HAVAS, Respondent.
No. 8309
September 30, 1975 540 P.2d 1060
Appeal from order granting petition for habeas corpus; Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
Defendant who was charged with rape petitioned for a writ of habeas corpus, which was
granted by the district court and the State appealed. The Supreme Court, Mowbray, J., held
that record of preliminary hearing proceedings before magistrate showed that there was
sufficient legal evidence presented to establish probable cause to believe that offense of rape
had been committed and that defendant had committed it.
Reversed.
Thompson, J., dissented.
Leon Simon, Deputy District Attorney, Clark County, for Appellant.
Jeffrey D. Sobel, Las Vegas, for Respondent.
Criminal Law.
Record of preliminary hearing proceedings before magistrate showed that there was sufficient legal
evidence presented to establish probable cause to believe that offense of rape had been committed and
that defendant had committed it. NRS 171.206.
OPINION
Victor Rowland Havas, the respondent, was charged with rape. After a preliminary hearing,
he was held to answer the charge in the district court. Thereafter, he petitioned that court for a
writ of habeas corpus, which was granted. The State has appealed from the order granting the
writ. The sole issue presented for our consideration is whether the record taken before the
magistrate establishes probable cause to believe that an offense [rape] has been committed
and that the defendant has committed it. NRS 171.206. State v. Fuchs, 78 Nev. 63, 368 P.2d
869 (1962); Ervin v. Leypoldt, 76 Nev. 297, 352 P.2d 71S {1960); Raggio v. Bryan, 76 Nev.
1
91 Nev. 611, 612 (1975) State v. Havas
352 P.2d 718 (1960); Raggio v. Bryan, 76 Nev. 1, 348 P.2d 156 (1960); Ex parte Liotard, 47
Nev. 169, 217 P. 960 (1923); In re Kelly, 28 Nev. 491, 83 P. 223 (1905).
After reading the transcript of the proceedings before the magistrate who saw and heard
the witness, we conclude, as did the magistrate, that the record shows there was sufficient
legal evidence presented at the preliminary hearing establishing probable cause to believe that
a public offense, rape, had been committed and that the defendant had committed it. We,
therefore, reverse the order of the district judge granting habeas, and we order the defendant
to answer in the district court.
Batjer and Zenoff, JJ., concur.
I can agree with the majority that, drawing all possible inferences in favor of the State, and
rationalizing inconsistencies between the asserted victim's story and other evidence, it is
possible to find probable cause in the sense this court heretofore has recognized.
Weak as the case against respondent may be, still I have concluded one cannot declare the
magistrate's determination erroneous, absent a redefinition of probable cause.
Thompson, J., dissenting:
The State appeals from an order of the district court granting a petition for a writ of habeas
corpus presented by Victor Havas. Havas was charged with having committed the crime of
forcible rape (NRS 200.363). Following a preliminary examination, he was ordered to stand
trial in the district court. The instant proceeding for habeas relief then was filed, and the
district court released Havas from custody since, in its view, no evidence of force was
introduced to sustain the charge.
Force is a necessary ingredient of the offense of forcible rape, State v. Lung, 21 Nev. 209,
28 P. 235 (1891). I find nothing in the record before us to suggest that the accused used force
to cause the complainant to submit to sexual intercourse. I would affirm the district court's
order granting habeas relief.
____________
91 Nev. 613, 613 (1975) Nix v. State
KARL JEROME NIX, Appellant, v. THE
No. 8038
October 10, 1975 541 P.2d 1
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County;
Thomas J. O'Donnell, Judge.
Defendant was convicted in the district court of robbery and he appealed. The Supreme
Court held that after trial court denied habeas corpus relief prior to trial, defendant's proper
course of action was to appeal from that order and not to wait until after trial and conviction
before attempting to appeal; and that by failing to avail himself of appeal from the order,
defendant waived any impropriety in the trial court's denial of habeas relief.
Affirmed.
Lohse & Lohse, Chartered, Reno; Morgan D. Harris, Public Defender, and Michael A.
Cherry, Deputy Public Defender, Clark County, for Appellant.
1. Habeas Corpus.
Defendant's proper course of action after trial court denied habeas corpus relief prior to trial was to
appeal from the order denying the petition within 15 days and not to wait until after his trial and conviction;
by failing to appeal immediately, defendant waived any impropriety in trial court's order denying habeas
relief. NRS 34.380, subd. 3.
2. Robbery.
Evidence was sufficient to sustain defendant's conviction for robbery.
OPINION
Per Curiam:
On September 18, 1973, Karl Jerome Nix was granted habeas relief from a robbery charge
because of prearraignment delay.
Five days later, on September 23, 1973, the robbery charge was refiled. Nix again sought,
but was denied, habeas relief. No appeal was taken. He was subsequently tried and convicted
and in this appeal attempts to obtain a review of the order denying his pretrial habeas
petition.
91 Nev. 613, 614 (1975) Nix v. State
his pretrial habeas petition. We decline to review the habeas proceeding.
[Headnote 1]
Nix's proper course of action was to appeal from the order denying the petition for a writ
of habeas corpus, pursuant to the provisions of NRS 34.380(3).
1
By failing to avail himself
of this remedy, he has waived any impropriety in the trial court's order. George v. State, 89
Nev. 47, 505 P.2d 1217 (1973),; Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966).
[Headnote 2]
Nix also contends there was insufficient evidence to support the conviction. We reject this
contention. Where there is substantial evidence to support a verdict in a criminal case, as the
record indicates exists in this case, the reviewing court will not disturb the verdict nor set
aside the judgment. Sanders v. State, 90 Nev. 433, 434, 529 P.2d 206, 207 (1974). See also,
Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (1972); Crowe v. State, 84 Nev. 358, 441 P.2d 90
(1968).
Affirmed.
____________________

1
NRS 34.380(3) provides: An applicant who has petitioned the district judge of a judicial district, as
provided in this chapter, and whose application for such writ is denied, may appeal to the supreme court from
the order and judgment of the district judge or district court refusing to grant the writ or to discharge the
applicant, but such appeal shall be taken within 15 days from the day of entry of the order or judgment.
____________
91 Nev. 614, 614 (1975) Jacobson v. American Fidelity Fire Ins.
NATHAN S. JACOBSON, Appellant, v. AMERICAN FIDELITY FIRE
INSURANCE COMPANY, a New York Corporation, Respondent.
No. 7677
October 10, 1975 541 P.2d 2
Appeal from portion of judgment for American Fidelity Fire Insurance Company holding
A. L. W., Inc., and Nathan S. Jacobson jointly and severally liable. Second Judicial District
Court, Washoe County; John W. Barrett, Judge.
After hotel began to default in its monthly obligations for utility service, gas company
demanded payment from hotel's surety. The surety filed a third-party complaint against the
hotel and its president, seeking recovery under an indemnity agreement in the event the surety
was compelled to pay. The district court entered judgment in favor of both the plaintiff on its
complaint and the defendant on its third-party complaint, and the third-party defendants
appealed.
and the third-party defendants appealed. The Supreme Court held that irrespective of the fact
that the indemnity contract of hotel owner's president was executed one month after the
issuance of surety bond against nonpayment for natural gas service to be provided to the
hotel, the clear intention of the parties, as indicated even by the president's testimony, was
that the indemnification agreement was to apply to the surety bond; similarly, the
indemnification agreement, having been intended to carry out the requirements of the
underlying surety agreement, did not fail for a lack of consideration.
Affirmed.
David Hamilton, of Reno, and Simon, Sheridan, Murphy, Thornton & Hinerfeld, and
Wallace L. Rosvall, of Los Angeles, California, for Appellant.
Paul A. Richards, of Reno, for Respondent.
1. Indemnity.
Irrespective of the fact that the indemnity contract of hotel owner's president was executed one month
after the issuance of surety bond against nonpayment for natural gas service to be provided to the hotel, the
clear intention of the parties, as indicated even by the president's testimony, was that the indemnification
agreement was to apply to the surety bond; similarly, the indemnification agreement, having been intended
to carry out the requirements of the underlying surety agreement, did not fail for lack of consideration.
2. Indemnity.
A clerical error in wrongly dating indemnity contract, executed by hotel president in favor of surety
which provided a bond against nonpayment for natural gas service to be provided to the hotel, did not
invalidate the transaction since all parties knew what was intended, no one was misled, and gas service was
in fact provided.
3. Principal and Surety.
A surety cannot be discharged from his obligations when there is an alteration or modification in the
contract unless the surety is prejudiced or injured by the variance.
4. Principal and Surety.
Surety contracts are to be interpreted with a view toward effectuating purposes for which the contract was
designed.
OPINION
Per Curiam:
King's Castle Hotel and Casino, at Incline, Nevada, was owned and operated by A. L. W.,
Inc. In March of 1971, while the hotel was still under construction, Southwest Gas
Corporation requested A. L. W. to provide a surety bond against nonpayment for natural gas
service to be provided to the hotel.
American Fidelity Fire Insurance Company agreed to supply such bond but required Nathan
S. Jacobson, president of A. L. W., to subject himself to personal liability in the event of
default. On March 26, 1971, the respondent issued a bond in the amount of $10,000
guaranteeing payment to Southwest Gas. A month later, Jacobson executed the personal
indemnity agreement with American Fidelity.
In November of 1971, A. L. W. began to default on its monthly obligation to Southwest
Gas for utility service. In February of 1972, Southwest demanded payment from respondent
American Fidelity as surety for A. L. W. Respondent refused and Southwest subsequently
filed suit.
American Fidelity filed a third-party complaint joining A. L. W. and Jacobson seeking
recovery under the April 25, 1971, indemnity agreement in the event it would be compelled to
pay. Judgment was entered for both Southwest and American Fidelity. Judgment for the latter
included an award for costs and attorney's fees.
Jacobson contends on appeal that the indemnity agreement applied only to obligations
accruing from the date it was executed and did not apply to the surety agreement executed by
him on behalf of A. L. W. the preceding month. Additionally, he contends that the indemnity
agreement is unenforceable for lack of consideration because it was executed after the
issuance of the surety bond. Finally, it is contended that failure by Southwest to timely
complete its part of the hotel construction resulted in offsetting damages which erroneously
were not taken into account by the trial court.
[Headnote 1]
1. None of the preceding assertions merit reversal. Irrespective of the fact that Jacobson's
indemnity contract was executed one month after the surety bond was issued, the clear
intention of the parties, as indicated even by Jacobson's testimony, was that the
indemnification agreement was to apply to the surety bond of March 26, 1971. See, Missouri
Pacific Railroad Co. v. City of Topeka, 518 P.2d 372 (Kan. 1974);, Gribaldo, Jacobs, Jones &
A. v. Agrippina Versich, A. G., 476 P.2d 406 (Cal. 1970); Ruysser v. Smith, 293 S.W.2d 930
(Mo. 1956); National Bank v. Aetna Casualty & Surety Co., 296 P. 831 (Wash. 1931).
Similarly, the indemnification agreement does not fail for lack of consideration. It was
intended to carry out the requirements of the underlying surety agreement. See, Engbrock v.
Federal Insurance Company, 370 F.2d 784 {5th Cir.
(5th Cir. 1967). Fidelity & Deposit Co. of Maryland v. Whitson, 10 Cal.Rptr. 6 (Cal.App.2d
1960); Fidelity & Deposit Co. of Maryland v. O'Bryan, 202 S.W. 645 (Ky. 1918).
[Headnotes 2-4]
2. More than an acknowledgment of other purported issues is not warranted. Appellant
finds no support for his position in the law of this state. A clerical error in wrongly dating the
contract did not invalidate the transaction between the parties since all parties knew what was
intended, no one was misled and gas service was in fact provided. A surety cannot be
discharged from its obligation when there is an alteration or modification in the contract
unless the surety is prejudiced or injured by the variance. Zuni Constr. Co. v. Great Am. Ins.
Co., 86 Nev. 364, 468 P.2d 980 (1970). Surety contracts are to be interpreted with a view
toward effectuating purposes for which the contract was designed. United States Leasing
Corporation v. duPont, 444 P.2d 65 (Cal. 1968); Cushman v. National Surety Corp. of New
York, 417 P.2d 537 (Ariz.App. 1966).
We are also in accord with the trial court in its determination that there appeared to be no
negligence on the part of Southwest with respect to the installation of its equipment.
Affirmed.
____________
91 Nev. 617, 617 (1975) United States Fidelity v. Peterson
UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, Appellant and
Cross-Respondent, v. KEITH H. PETERSON, Doing Business as K. H. PETERSON
CONSTRUCTION CO., and A. S. JOHNSON CONSTRUCTION CO., a Nevada Joint
Venture, Respondents and Cross-Appellants.
No. 7804
October 10, 1975 540 P.2d 1070
Appeal and cross-appeal from judgment for respondent construction companies entered by
the Fourth Judicial District Court, Elko County; Joseph O. McDaniel, Judge.
Insured brought action against insurer to recover consequential damages because of
insurer's bad-faith refusal to pay for damage done by insured while engaged in construction
business, which refusal caused insured to lose his business and his credit. The district court
rendered judgment for the insured and insurer appealed. The Supreme Court, Zenoff, J., held
that the evidence was sufficient to support the trial court's finding that the insurer had
exercised bad faith in its dealings with the insured and to warrant an award of
consequential damages; that the trial court did not err in refusing to instruct on the
insured's responsibility to prevent further property damage; and that the necessary
requisites to support punitive damages were not present.
that the evidence was sufficient to support the trial court's finding that the insurer had
exercised bad faith in its dealings with the insured and to warrant an award of consequential
damages; that the trial court did not err in refusing to instruct on the insured's responsibility to
prevent further property damage; and that the necessary requisites to support punitive
damages were not present.
Affirmed.
Richard P. Wait, of Reno, for Appellant and Cross-Respondent.
McDonald, Carano, Wilson, Bergin & Bible, of Reno, for Respondents and
Cross-Appellants.
1. Insurance.
Where insurer fails to deal fairly and in good faith with its insured by refusing without proper cause to
compensate its insured for loss covered by policy, such conduct may give rise to cause of action in tort for
breach of implied covenant of good faith and fair dealing, and duty violated arises not from terms of
insurance contract but is duty imposed by law, violation of which is a tort.
2. Insurance.
In action by insured against insurer to recover consequential damages because of insurer's bad-faith
refusal to pay which caused insured to lose his business and his credit, evidence was sufficient to support
finding that insurer exercised bad faith in its dealings with insured.
3. Insurance.
refusal to pay for damage caused by insured while engaged in construction business, which refusal caused
insured to lose his business and his credit, trial court did not err in refusing to instruct on insured's
responsibility to prevent further property damage, in view of fact that record indicated that insured did
prevent further damage and in view of fact that subject matter of proposed instructions was adequately
covered by another instruction given by court.
4. Insurance.
refusal to pay which caused insured to lose his business and his credit, evidence was not sufficient to
warrant award of punitive damages.
OPINION
Claims for damages arose out of a construction contract entered into between Keith H.
Peterson, doing business as K. H. Peterson Construction Co., and the United States Forest
Service for construction of a roadway in Lamoille Canyon in Elko County.
Service for construction of a roadway in Lamoille Canyon in Elko County. Peterson was
engaged in the project as the active participant of a joint venture with A. S. Johnson
Construction Co. The latter company served only to enhance Peterson's bonding capability in
order that he could be better considered for the job.
In the fall of 1970, Peterson and Johnson, referred to jointly as respondents, were the
successful bidders for a construction contract with the United States Forest Service for the
improvement of 5.41 miles of existing road and the construction of an additional 2.63 miles
of new road in Lamoille Canyon.
An existing contract between the United States Forest Service and Nevada Power
Company regarding a pipe and trestle that ran alongside and adjacent to a portion of the
construction project provided for liquidated damages in the event of any interruption of the
flow of water through the pipe. Respondents' contract with the United States Forest Service
covered that contingency by providing that they were to pay liquidated damages to Nevada
Power Company in the event their construction activities interrupted the flow of water. As
protection against that eventuality, appellant insurance company required the respondents to
purchase liability insurance against damage to the pipe and trestle.
During the course of construction, damage occurred to the pipe and trestle on several
occasions and notification thereof was given to appellant's representatives. Claims were
submitted under the liability policy but appellant delayed and refused to pay despite
awareness of respondents' increasingly precarious financial condition.
Finally, this action was commenced by respondents to recover consequential damages
because of the insurance company's bad faith refusal to pay which caused Peterson to lose his
business and his credit. Appellant asserts that the trial court erred when it instructed the jury
that consequential damages might be awarded to Peterson; further, that if such instruction
were valid, there existed no evidence of the requisite bad faith on the part of the insurance
company that would justify consequential damages.
An additional assignment of error is that the trial court improperly refused offered
instructions dealing with the duty of Peterson to take all reasonable steps to prevent other
property damages.
[Headnotes 1, 2]
1. We approve and adopt the rule that allows recovery of consequential damages where
there has been a showing of bad faith by the insurer.
consequential damages where there has been a showing of bad faith by the insurer. Where an
insurer fails to deal fairly and in good faith with its insured by refusing without proper cause
to compensate its insured for a loss covered by the policy such conduct may give rise to a
cause of action in tort for breach of an implied covenant of good faith and fair dealing. The
duty violated arises not from the terms of the insurance contract but is a duty imposed by law,
the violation of which is a tort. Silberg v. California Insurance Company, 521 P.2d 1103 (Cal.
1974); Gruenberg v. Aetna Insurance Company, 510 P.2d 1032 (Cal. 1973); see also
concurring opinion Fisher v. Executive Fund Life Ins. Co., 88 Nev. 704, 504 P.2d 700 (1972).
The evidence bearing on the issue of consequential damages was properly admitted.
The record supports a finding that the insurance company exercised bad faith in its
dealings with Peterson. It had been given notice many times by Peterson of the several valid
claims and had knowledge of the effect of its refusal to pay on his financial condition. The
company contributed materially to Peterson's stress by promising to pay him immediately if
he would make the necessary repairs that he was not otherwise compelled to make. He
performed the work using operating capital which he needed to continue operating his
business, nor could he seek business elsewhere since his funds were tied up by the appellant
and he was unable, therefore, to obtain performance bonds. The claims of creditors were
reduced to judgment and filed with the insurance company. Yet, with this firsthand
knowledge appellant refused to negotiate or pay the sums known to be due him.
[Headnote 3]
2. With respect to the court's refusal to instruct on Peterson's responsibility to prevent
further property damages, no authority is cited. Indeed, contentions that he did not are refuted
by the record. In any event, the subject matter of the proposed instructions was adequately
covered by another instruction given by the court. Yturralde v. Barney's Club, Inc., 87 Nev.
249, 484 P.2d 1079 (1971).
[Headnote 4]
Peterson cross-appealed for the trial court's refusal to entertain his request that the jury be
instructed on punitive damages. While the record supports the court's determination that there
was sufficient evidence of the insurance company's bad faith to justify an instruction on
consequential damages, the necessary requisites to support punitive damages are not present.
Village Development Co. v. Filice, 90 Nev. 305, 526 P.2d 83 (1974). Caple v. Raynel
Campers Inc. 90 Nev. 341 526 P.2d 334 (1974); Nevada Cement Co. v. Lemler, 89 Nev. 447,
514 P.2d 1180 (1973); Nevada Credit Rating Bureau, Inc. v. Williams, 88 Nev. 601, 503 P.2d
9 (1972); Silberg v. California Insurance Company, supra.
Affirmed.
Gunderson C. J., and Batjer, Mowbray, and Thompson, JJ., concur.
____________
91 Nev. 621, 621 (1975) Olsan v. Comora
BARBARA R. OLSAN, Appellant, v. EMANUEL
COMORA, Respondent.
No. 7850
October 17, 1975 541 P.2d 662
Appeal from judgment of the First Judicial District Court, Carson City; Frank B. Gregory,
Judge.
Appeal was brought from a denial by the district court of appellant's motion seeking to set
aside an order of the district court directing the issuance of a writ of mandamus. The Supreme
Court held that appellant had made a sufficient showing of mistake and excusable neglect to
warrant the requested relief.
Morse, Foley & Wadsworth, Loeb and Loeb, and Andrew S. Garb, Las Vegas, for
Appellant.
Jones, Jones, Bell, LeBaron, Close, Bilbray & Kaufman, Las Vegas, for Respondent.
Mandamus.
Sufficient showing of mistake and excusable neglect was made to entitle appellant to relief from order of
district court directing issuance of writ of mandamus. NRCP 60(b), (b)(1).
OPINION
Per Curiam:
This is an appeal from a denial of a Rule 60(b) motion seeking to set aside an order of the
district court directing the issuance of a writ of mandamus. We have reviewed the record
below, and we have concluded that appellant did make a sufficient showing of mistake
and excusable neglect to warrant relief under NRCP 60{b){1).
91 Nev. 621, 622 (1975) Olsan v. Comora
We have reviewed the record below, and we have concluded that appellant did make a
sufficient showing of mistake and excusable neglect to warrant relief under NRCP 60(b)(1).
Morris v. Morris, 86 Nev. 45, 464 P.2d 471 (1970); Hotel Last Frontier Corp. v. Frontier
Properties, Inc., 79 Nev. 150, 380 P.2d 293 (1963). Therefore, we reverse and remand the
case for further proceedings in the court below.
____________
91 Nev. 622, 622 (1975) Williams v. City of North Las Vegas
WANDA GRACE WILLIAMS, Administratrix of the Estate of LAWRENCE EUGENE
WILLIAMS, Appellant, v. CITY OF NORTH LAS VEGAS, a Political Subdivision of the
State of Nevada, Respondent.
No. 8303
October 23, 1975 541 P.2d 652
Appeal from the Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski,
Judge. Appellant and cross-respondent appeals from a order of dismissal granted in favor of
respondent and cross-appellant. Respondent cross appeals from an order granting appellant's
motion for a determination that there was no just reason for delay in entry of final judgment.
Action was brought to recover against city and power company for wrongful death of
person who, while working on billboard, was electrocuted when piece of metal came in
contact with a power line located too close to billboard in violation of city ordinances. The
district court granted motion to dismiss action against city on ground that it was immune from
liability, and plaintiff appealed. The Supreme Court held that granting plaintiff's motion for
certification that there was no just reason for delay in entry of final judgment was not an
abuse of discretion though motion was not filed until 18 months after city's motion to dismiss
was granted, that city was not immune from liability, that statute, which protects a
municipality from liability for injury caused by failure to inspect or negligent inspection
whether or not there is a duty to inspect, relates only to duties arising under tort law and that
city's duty to exercise ordinary care in fulfilling terms of contract, which city and power
company entered into and which required city to inspect city's facilities within city's
jurisdiction, extended to benefit of person electrocuted.
to inspect city's facilities within city's jurisdiction, extended to benefit of person electrocuted.
Reversed in part and affirmed in part.
Wiener, Goldwater, Galatz & Waldman, of Las Vegas, for Appellant and
Cross-respondent.
Rose, Edwards & Hunt, of Las Vegas, for Respondent and Cross-appellant.
In most instances no abuse of discretion will be attributed to trial court's grant of motion for certification
that there is no just reason for delay in entry of final judgment if there is a substantial factual basis for
granting the motion and no significant prejudice to adverse parties is shown. NRCP 54(b).
In action, in which recovery was sought against city and power company for wrongful death of person
electrocuted while working on billboard and in which city's motion to dismiss on ground of immunity was
granted, granting plaintiff's motion for certification that there was no just reason for delay in entry of final
judgment was not an abuse of discretion where, though motion was not filed until 18 months after city's
motion was granted, nearly five years had expired from date action was first commenced and the delay in
filing plaintiff's motion resulted in no significant prejudice or inconvenience to city. NRS 41.032,
41.033; NRCP 41(e), 54(b).
City was not immune from liability with regard to death of person who, while working on billboard, was
electrocuted when piece of metal came in contact with a power line located too close to billboard in
violation of city ordinances, in that statutorily provided for governmental immunity did not protect city
with regard to its duty to exercise ordinary care in fulfilling terms of contract which city and power
company entered into and which required city to inspect company's facilities within city's jurisdiction.
NRS 41.032 et seq., 41.033.
Statute, which protects a municipality from liability for injury caused by failure to inspect or negligent
inspection whether or not there is a duty to inspect, relates to duties arising under tort liability and not
duties under contract law. NRS 41.033.
Generally, even if doctrine of governmental immunity would otherwise apply, a municipality is not
afforded protection from liability for breach of a contractual obligation even though it might be afforded
such protection had the same duty arisen under principles of tort law. NRS 41.032 et seq., 41.033. 6.
6. Contracts.
An individual, though unnamed in a contract or a stranger to both parties thereto, may bring suit where a
breach of the contract has caused him injury.
7. Contracts.
City's duty to exercise ordinary care in fulfilling terms of contract, which city and power company
entered into and which required city to inspect company's facilities within city's jurisdiction, extended to
benefit of person who, while working on billboard, was electrocuted when piece of metal came in contact
with a power line located too close to billboard in violation of city ordinances.
OPINION
Per Curiam:
Lawrence Eugene Williams was killed while working on a billboard in the City of North
Las Vegas. He was electrocuted when a piece of metal with which he was working came into
contact with a 12,000 volt power line located approximately five feet from the billboard.
Appellant, as administratrix of her deceased husband's estate, initiated a wrongful death
action against the City of North Las Vegas and Nevada Power Company. Nevada Power
subsequently negotiated a settlement with appellant and was dismissed with prejudice.
Although Nevada Power is not a party to this appeal it remains a party to the proceedings
below as a third party complainant against respondent City of North Las Vegas.
This action was commenced in November 1970. In September of 1971, respondent moved
for dismissal on the grounds that the city was immune from liability pursuant to NRS 41.032
and NRS 41.033. The motion was granted in November of 1973.
Notice of Appeal was first filed in December of 1974, shortly after appellant settled with
Nevada Power and stipulated to its dismissal. That appeal and a subsequent appeal were
dismissed for failure to comply with NRCP Rule 54(b). With reference to the dismissal in
favor of the City of North Las Vegas, appellant had failed to obtain certification from the trial
court that there was no just reason for delay in the entry of final judgment and a direction to
that effect. In July of 1975 appellant filed a Rule 54(b) motion which was granted and this
appeal followed.
For the purposes of this appeal, the facts are undisputed. It is apparently conceded by
respondent that the proximity of the lethal power line to the billboard was in violation of city
ordinances.
Two issues present themselves for determination on this appeal: The first is raised by
appellant and questions the applicability of NRS 41.032 and NRS 41.033 to the facts of this
case. The second issue is raised by respondent in its cross appeal and questions the propriety
of the trial court's ruling granting appellant's Rule 54(b) motion. The issues will be discussed
in reverse sequence.
1. Respondent directs our attention to the fact that over 18 months elapsed from the time
its motion to dismiss was granted until appellant filed her Rule 54(b) motion. The city
contends, in view of this lengthy period of time, that the granting of appellant's motion by the
trial court was an abuse of discretion. We do not agree.
[Headnote 1]
The rule set forth in Schaefer v. First National Bank of Lincolnwood, 465 F.2d 234 (7th
Cir. 1972), is basically sound but will not be implemented by this court without certain
embellishment. In the interest of preserving, when justice requires, a litigant's right to his
day in court, we would not set a specific period of time within which one must seek a Rule
54(b) order or lose his right to an interlocutory appeal. In most instances, no abuse of
discretion will be attributed to the trial court in grating a Rule 54(b) motion so long as there is
a substantial factual basis for granting the motion and no significant prejudice to adverse
parties is shown.
[Headnote 2]
Here, nearly five years have expired from the date this action was first commenced.
Appellant was faced with the prospect of no trial under any circumstances unless the Rule
54(b) motion was granted. NRCP Rule 41(e). Thus, the factual basis for granting the motion
was compelling. Furthermore, the delay in filing the motion by appellant resulted in no
significant prejudice or inconvenience to respondent.
[Headnote 3]
2. Appellant argues that under the present circumstances the doctrine of governmental
immunity as it exists in Nevada (NRS 41.032 et seq.) should not be invoked to cloak the City
of North Las Vegas with immunity from liability for the death of Lawrence Williams. We are
constrained to concur.
In 1954, the city and Nevada Power entered into a franchise agreement the terms of which
are embodied in City of North Las Vegas Ordinance 133. The agreement, still in force and
effect, provides that the city shall inspect the Power Company facilities within its
jurisdiction.
facilities within its jurisdiction. Ostensibly, such inspection is for no other purpose than to
insure that the electrical facilities are in compliance with applicable safety ordinances and do
not pose a hazard to life and property. In consideration for assuming this obligation to
inspect, the Power Company agreed to remit to the city a specific percentage of gross revenue
attributable to the citizens residing within its jurisdiction.
Without question, the franchise agreement imposed a duty to inspect on the city.
Respondent contends that irrespective of this duty, NRS 41.032 and NRS 41.033 preclude the
imposition of liability or the City of North Las Vegas.
Ordinance 133 was not within the contemplation of the legislature when it enacted NRS
41.032. Ordinance 133 is no less than the manifestation of a contract. This case is
distinguished from cases where the ordinance involved is not the embodiment of a contract
but is the original product of legislative fiat. Similarly, the city does not avoid liability by
urging that the ordinance encompassed a discretionary function. True, whether to enter into
the contract in the first instance was within the discretion of the city, but once the contractual
relationship was established, the obligation to fulfill the terms of the contract became an
operational function imposing upon the city the duty to exercise ordinary care and for the
breach of which liability may be found. See Harringan v. City of Reno, 86 Nev. 678, 475 P.2d
94 (1970); State v. Silva, 86 Nev. 911, 478 P.2d 591 (1970).
[Headnotes 4, 5]
We recognize that NRS 41.033 protects a municipality from liability for injury caused by
failure to inspect or negligent inspection whether or not there is a duty to inspect. Logically
construed, however, NRS 41.033 addresses itself only to duties arising under tort law and not
contract law. Ridiculous results would be reached if NRS 41.033 was construed to absolve
municipalities from liability incurred as a consequence of breach of contractual duties. Under
the general rule, assuming the doctrine of governmental immunity would otherwise apply, a
municipality is not afforded protection from liability for the breach of a contractual obligation
even though it might be afforded such protection had the same duty arisen under principles of
tort law. Souza & McCue Construction Co. v. Superior Court of San Benito County, 370 P.2d
338 (Cal. 1962); Ace Flying Service, Inc. v. Colorado Dept. of Agriculture, 314 P.2d 278
(Colo. 1957); Grant Construction Co. v. Burns, 443 P.2d 1005 (Idaho 1968); Carr v. State ex
rel. Coetlosquet, 26 N.E. 778 (Ind. 1891).
With the enactment of NRS 41.032 and NRS 41.033 in 1965, the legislature surely did not
intend to alter the contractual relationship between Nevada Power and the City of North Las
Vegas which had existed by virtue of the franchise agreement since 1954. Similarly, the
statutes were not intended to cloak the city with immunity from liability for misfeasance or
nonfeasance of contractual obligations it had already assumed.
[Headnotes 6, 7]
The only remaining question is whether the duty imposed on the city extended to
appellant's decedent. In this respect, the law has long recognized that an individual, although
unnamed in a contract or a stranger to both parties thereto, may bring suit where a breach of
the contract has caused him injury. Anderson v. Rexroad, 266 P.2d 320 (Kan. 1954);
Hemphill v. Hanson, 77 Nev. 432, 366 P.2d 92 (1961). Even where, as here, the contract is
between a municipality and another party for the benefit of the general public the courts have
not hesitated to permit a member of the public to bring suit for breach thereof. Bush v. Upper
Valley Telecable Co., 524 P.2d 1055 (Idaho 1973); People ex rel. Jackson v. Suburban R.
Co., 53 N.E. 349 (Ill. 1899); Phinney v. Boston Elevated Ry. Co., 87 N.E. 490 (Mass. 1909).
It safely can be said that Lawrence Williams or his survivors were intended beneficiaries
of the City of North Las Vegas-Nevada Power franchise agreement. The obvious intention of
the city at the time it entered into the franchise agreement was to protect the public from the
hazards of imprudent installation or maintenance of electrical facilities within its jurisdiction.
For the foregoing reasons, the judgment of the trial court is reversed and the case is
remanded for a trial on the merits.
____________
91 Nev. 627, 627 (1975) Warden v. Sparks
LOUIS ELMO SPARKS, Respondent.
No. 8150
October 23, 1975 541 P.2d 651
Appeal from order grating petition for post-conviction relief, First Judicial District Court,
Carson City; Frank B. Gregory, Judge. The Supreme Court held that statute's classification
of marijuana as narcotic was not improper, and that petitioner's challenge to sufficiency
of indictment did not present cognizable issue to trial court.
The Supreme Court held that statute's classification of marijuana as narcotic was not
improper, and that petitioner's challenge to sufficiency of indictment did not present
cognizable issue to trial court.
Reversed.
Robert List, Attorney General, D. Geno Menchetti, Chief Deputy, and Patrick B. Walsh,
Deputy, Carson City, for Appellant.
Horace R. Goff, State Public Defender, and Michael R. Griffin, Deputy, Carson City, for
Respondent.
1. Drugs and Narcotics.
Statute's classification of marijuana as narcotic was not improper.
2. Criminal Law.
Where convicted felon went to trial without challenging indictment, neither raised issue of insufficiency
of indictment during trial nor on direct appeal, and neither raised such issue in prior post-conviction
challenge nor delineated reason for his failure to do so, his challenge to sufficiency of indictment in action
for post-conviction relief did not present cognizable issue to trial court. NRS 177.375.
OPINION
Per Curiam:
On January 4, 1972, a jury found Louis Elmo Sparks guilty of selling marijuana, a felony.
Thereafter, on February 7, 1972, he was sentenced to a term of 10 years in the Nevada State
Prison. We affirmed the judgment of conviction in Sparks v. State, 89 Nev. 84, 506 P.2d
1260 (1973).
Several months later Sparks petitioned for post-conviction relief, in the Eighth Judicial
District Court, reiterating issues which were considered and rejected in the direct appeal.
Relief was denied November 21, 1974, and we dismissed his appeal from that determination
in an unpublished order filed July 31, 1975, in case No. 8030.
Prior to the resolution of the first petition for post-conviction relief Sparks filed another
petition in the First Judicial District Court on September 12, 1974. This latter petition was
granted March 4, 1975; however, the district judge deferred the effectiveness of his order, if
the state appealed, which it did.
In grating Sparks' petition for post-conviction relief, the district judge concluded (1)
marijuana was improperly classified, under the Nevada statutes, as a narcotic; and (2) the
indictment, under which Sparks was tried and convicted, was insufficient because it did
not specify that a "usable amount" of marijuana had been sold.
indictment, under which Sparks was tried and convicted, was insufficient because it did not
specify that a usable amount of marijuana had been sold. Appellant contends the district
court's conclusions are contrary to Nevada law and that we are, therefore, compelled to
reverse. We agree.
[Headnote 1]
1. This court has previously considered and rejected the argument that marijuana was
improperly classified as a narcotic. Sherman v. State, 89 Nev. 77, 506 P.2d 417 (1973); Egan
v. Sheriff, 88 Nev. 611, 503 P.2d 16 (1972).
[Headnote 2]
2. Sparks' belated challenge to the sufficiency of the indictment did not present a
cognizable issue to the trial court.
1
(1) He chose to go to trial without challenging the
indictment; (2) he neither raised the issue during the trial nor on his direct appeal; (3) he
neither raised the issue in his prior post-conviction challenge, nor has he delineated a reason
for his failure to so do. Furthermore, in this proceeding he has not suggested a reason as to
why the issues brought forth at this late date were not previously raised.
2
See NRS 177.375.
See also, Johnson v. Warden, 89 Nev. 476, 477, 515 P.2d 63, 64 (1973), which said: . . . we
now hold, that this court will consider as waived those issues raised in a post-conviction relief
application which might properly have been raised on direct appeal, where no reasonable
explanation is offered for petitioner's failure to present such issues.
The order of the district court is reversed.
____________________

1
See Simpson v. District Court, 88 Nev. 654, 661, 503 P.2d 1225, 1230 (1972), where we noted that . . .
when an accused proceeds to trial without challenging the indictment . . . he should not be heard to complain if
the indictment, with the Grand Jury transcript, gave notice of what later transpired at trial; . . . Here the record
reflects Sparks sold two (2) full baggies of marijuana for $50.00.

2
For several years this court has refused to consider issues raised in successive applications for
post-conviction relief where a petitioner has failed to explain why the issues were not previously raised. See
Rogers v. Warden, 86 Nev. 359, 468 P.2d 993 (1970), and its progeny.
____________
91 Nev. 630, 630 (1975) Dunn v. State
RICHARD GARFIELD DUNN, Appellant, v. THE
No. 7445
October 23, 1975 541 P.2d 524
Appeal from judgment of conviction of Eighth Judicial District Court, Clark County; Carl
J. Christensen, Judge.
Defendant, following withdrawal of his plea of guilty, was convicted before the district
court of murder and assault with a deadly weapon, and he appealed. The Supreme Court,
Mowbray, J., held that admission of testimony of two witnesses, who were originally unable
to make in-court identifications of defendant but were able to identify defendant from mug
shot, was not reversible error; and that facts that State's witness who testified that person in
same cell had told him that he had killed victim could not identify defendant, who was shown
to have been incarcerated in same cell with witness, and was allegedly confused about
nicknames of fellow cellmates some 3 years after alleged conversation took place went to the
weight of evidence and did not require exclusion of witness' testimony.
Affirmed.
Fadgen & Johnson, Las Vegas, for Appellant.
Sherman Simmons, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
In prosecution for murder and attempted murder. admission of testimony of two witnesses, who were
originally unable to make in-court identifications of defendant but were able to identify defendant from
mug shot previously received in evidence, that defendant had been seen with woman over whom he had
allegedly quarreled with murder victim, was not reversible error where, inter alia, another witness testified
to substantially same facts as such witnesses and no hint of improper or suggestive use of photograph,
which had been previously shown to witnesses, was shown.
2. Criminal Law.
Facts that State's witness, who testified that person in same cell had told him that he had killed victim
because victim was going out with his girl friend, could not make in-court identification of defendant, who
was shown to have been incarcerated in same cell with witness, and was allegedly confused about
nicknames of fellow cellmates 3 years after incarceration in question went to weight to be accorded
testimony and did not require exclusion of witness' testimony in defendant's prosecution
for murder and attempted murder.
91 Nev. 630, 631 (1975) Dunn v. State
exclusion of witness' testimony in defendant's prosecution for murder and attempted murder.
3. Criminal Law.
Where jury, following withdrawal of defendant's guilty plea, returned verdict of life imprisonment with
possibility of parole, the same sentence that defendant had originally received upon his guilty plea,
defendant was not prejudiced by court's instructing jury that it could return verdict of life imprisonment
without parole.
4. Criminal Law.
Where no proper offer of proof was made concerning certain evidence defendant allegedly desired to
introduce in prosecution for murder and attempted murder, no direct rulings were made by court with
respect to such evidence, and no other steps were taken by defendant to perfect his record as to such
evidence, appellate consideration of alleged refusal of court to permit defendant to present such evidence
was precluded.
OPINION
An information was filed against the appellant, Richard Garfield Dunn, charging him in
Count I with the murder of Bernard Hayes, in Count II with the attempted murder of Ozie
Conerly, Jr., and in Count III with the attempted murder of Allan Patton.
Dunn pled guilty to the murder of Hayes, whereupon the State dismissed the remaining
counts. The court sentenced him to life imprisonment with possibility of parole, on Count I.
Thereafter, Dunn filed in forma pauperis a petition for post-conviction relief, claiming that
his guilty plea to the murder charge was not made freely and voluntarily. Upon the State's
stipulation, Dunn's guilty plea was ordered withdrawn. The two attempted murder counts
were reinstated. Dunn pled not guilty to all three counts, and he went to trial before a jury.
The jury found him guilty of Count I, the murder of Hayes, and guilty of assault with a deadly
weapon as to Counts II and III, a lesser included crime of the charge of attempted murder.
Dunn has appealed from his judgment of conviction of all three counts, on several grounds,
which we reject as meritless.
1. This case arose out of a shooting in a bar in Las Vegas. Dunn shot Hayes 11 times,
killing him. He also shot the bartender, Allan Patton, and a patron of the bar, Ozie Conerly,
Jr. The State contended that Dunn went into the bar with premeditation to kill Hayes because
Hayes had been dating Dunn's girl friend, Carol. The State produced witnesses who testified
that two nights before the shooting Hayes was with Carol and another couple in a bar
when Dunn approached Hayes and an argument ensued between the two.
91 Nev. 630, 632 (1975) Dunn v. State
that two nights before the shooting Hayes was with Carol and another couple in a bar when
Dunn approached Hayes and an argument ensued between the two. Dunn claimed that, on the
day of the shooting, he entered the bar where the shootings occurred and ordered a beer; that
the bartender (Patton) became belligerent and ordered him out of the bar; that he (Dunn)
thought Patton was going to get a gun; so Dunn shot him twice before he could do so; that a
patron (Conerly) grabbed Dunn; so Dunn then shot him twice. Next, Hayes accosted Dunn,
and they fell to the floor. In the scuffle, Hayes, according to Dunn, bit him on the chin. This
irritated Dunn, who jumped up and shot Hayes several times, killing him.
Dunn testified that he did know Carol, but that he had not seen her for many years, not
since their junior high school days. Dunn, in his defense, called Carol, who testified that she
knew Dunn but that she had not seen him in 10 years. In rebuttal, the State called two
witnesses, Ruth Seaton and Denise Birdcileuskas, who were barmaids at the bar where Dunn
had accosted Hayes two nights prior to the fatal shooting. They both knew Carol, who also
worked in the bar, as a cocktail waitress. They testified that they had seen Dunn and Carol
together in the bar on several occasions
1
and that Hayes had been with Carol in the bar two
nights before his death.2 However, neither witness could make an in-court identification
of Dunn until she was shown a mug shot of him that was received in evidence as Exhibit
G.
____________________

1
BY DISTRICT ATTORNEY WOOFTER TO WITNESS SEATON:
Q. Now, directing your attention back to your employment at Al's Liquors. Did you have an occasion at any
time to see the Defendant, Richard Dunn, in the company of the girl you identified as Carol, in Al's Liquors?
A. Yes, I did.
Q. And would you state, as best you can recollect, the times that you did see Richard Dunn and Carol
together in Al's Liquors.
A. Well, I can only recall approximately three times that they were actually together. Once, they were
sitting at the bar having a drink and talking. Once, she walked into the club and said she didn't want to have
anything to do with him; that she was upset and she said she just didn't want to be bothered by him at all, and I
told her that she did not have to worry about it; that if he gave her any trouble, we would ask him to leave.
The last time that I saw the two together, they were having words. . .
. . .
Q. Did you hear any conversation that was going on between Mr. Dunn and Carol at that time?
A. At the time, the gentleman yelled at her, You are always messing around with other guys and I am
going to get you for this.'
Q. What happened after you heard the Defendant say this to Carol?
A. We had a slight problem in the back room and I just walked away and I saw Carol run into the
bathroom. She seemed to be crying.
91 Nev. 630, 633 (1975) Dunn v. State
been with Carol in the bar two nights before his death.
2
However, neither witness could
make an in-court identification of Dunn until she was shown a mug shot of him that was
received in evidence as Exhibit G.
[Headnote 1]
2. Dunn contends that the trial court committed reversible error by admitting the
testimony of Ruth Seaton and Denise Birdcileuskas. Both witnesses were originally unable to
identify Dunn in court, although Seaton recognized him during her testimony, stating that he
had changed. Both witnesses were, however, able to identify Dunn from a photograph
previously received in evidence as Exhibit G. Defense counsel, in support of a motion to
strike the two witnesses' testimony, called to the stand Investigator Ed Armstrong, an
employee of the district attorney's office. Armstrong stated that he had shown the photograph
of Dunn, Exhibit G, to the two witnesses prior to their testimony, but had covered the name at
the bottom so that it would not be visible.
3
Dunn contends that his constitutional rights were
abrogated by this procedure, under cases decided by this court and the United States Supreme
Court: United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263
(1967); Simmons v. United States, 390 U.S. 377 (1968); Hampton v. State, 85 Nev. 720, 462
P.2d 760 (1969); Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969).
In each of the above cases, the factual situation was different from that of the instant case.
There, victims or other eyewitnesses took the stand to identify various defendants as
perpetrators of crime. Here, Seaton and Birdcileuskas were not testifying as to any crime
committed by Dunn. They were called by the State to refute Dunn's flat denial that he had
seen Carol.
____________________

2
BY DISTRICT ATTORNEY WOOFTER TO WITNESS SEATON:
Q. Did you have any occasion to see the girl that you have already identified in Defendant's Exhibit F',
Carol, with the deceased, Ben Hayes, in Al's Liquor Store?
A Yes, sir.
Q. And when was this?
A. She was with him about two nights prior to his death. She was sitting with him in the back room. On a
number of other occasions, she had sat with the man, talking to him and I had to ask her to get up because it was
against house rules for employees to sit in the back room with customers.

3
The two witnesses also identified the victim, Hayes, from a photograph, Exhibit 9, and Carol from Exhibit
F, both previously received in evidence.
91 Nev. 630, 634 (1975) Dunn v. State
Carol. They testified that Dunn had been a patron of a bar in which they had worked and that
they had seen him there with Carol on several occasions prior to the killing. Cf. Harris v. New
York, 401 U.S. 222 (1971). Under the factual posture of the case, it was permissible for the
State to present the testimony.
Additionally, James Clury, a security guard at the bar where Seaton and Birdcileuskas
worked, testified to substantially the same facts as they did. Clury was able to positively
identify Dunn in court. Dunn was unable to develop evidence of misidentification occasioned
by the showing of Exhibit G to the two witnesses prior to their testimony. Both witnesses
were available for cross-examination. The district attorney's investigator was called as a
witness and questioned. The photograph itself was in evidence. No hint of improper or
suggestive use of the photograph was shown.
[Headnote 2]
3. State's witness Joseph Michael Yurko testified that a man in jail with him in 1970,
known as Rick or Posey, told him that he had killed a man named Hayes in a bar because
Hayes had been going out with his girl friend. Yurko was unable to identify Dunn in court.
Custodians of jail records testified that Dunn and witness Yurko had been incarcerated in the
same cell.
Defense counsel produced evidence that a man named Posey was also in the cell with
Yurko and Dunn. He argued that Yurko was confused about who had told him what, since
Rick and Posey were clearly two different people, and not the same individual, as Yurko
had testified. Dunn urges that, for this reason, and for the further reason that Yurko could not
identify Dunn in court, Yurko should not have been permitted to testify.
Yurko did not make identification by means of a photograph, Exhibit G, as did the two
other witnesses. His testimony was connected to Dunn by jail records, confirming that they
were in the same cell together, and by the specificity of detail contained in Dunn's statements
to him concerning the commission of the crime: names, places, dates, number of people,
portions of anatomy into which shots were fired. That there may have been some confusion as
to names or nicknames of fellow cellmates some 3 years following the incarceration goes to
the weight to be accorded the testimony. Inability of Yurko himself to positively identify
Dunn in court likewise merely goes to the weight of the testimony. [Headnote 3]
91 Nev. 630, 635 (1975) Dunn v. State
[Headnote 3]
4. Dunn contends that the court violated his constitutional rights of due process by
instructing the jury that it could return a verdict of life without possibility of parole. In this
regard, whatever the merits of Dunn's contention might have been if the jury had returned
such a verdict, the fact is that the jury returned a sentence precisely the same as the original
sentence. Thus, no prejudice resulted, and Dunn has no ground for complaint.
[Headnote 4]
5. Dunn argues that he was not permitted to offer evidence of good character in his own
behalf because the court would not allow him to testify as to his military record. At a hearing
outside the jury's presence, the prosecutor stated that he would oppose defense counsel's
efforts to go into Dunn's service record, on the ground of immateriality. Defense counsel
stated that his reason for wishing to go into Dunn's military record was to show that Dunn
served two terms in Viet Nam and to show that he became acquainted with guns and
during his time in the service this became his hobby. Counsel never made an offer of proof.
The prosecutor suggested that such an offer be made. During the discussion outside the jury's
presence, the court was never asked to rule on any proposed testimony. And when the jury
entered, no question was asked of Dunn concerning his military record to which there was an
objection raised. It cannot be shown by the record before us what evidence Dunn sought to
offer, because there was never a proper offer of proof, a direct ruling by the court, or any
steps taken by Dunn to perfect his record in that respect. Thus appellate consideration is
precluded, under Clark v. State, 89 Nev. 392, 513 P.2d 1224 (1973); Cook v. State, 77 Nev.
83, 359 P.2d 483 (1961); Kelley v. State, 76 Nev. 65, 348 P.2d 966 (1960); and State v.
Fouquette, 67 Nev. 505, 221 P.2d 404 (1950).
Dunn's judgment of conviction on all three counts is affirmed.
____________
91 Nev. 636, 636 (1975) Cook v. Warden
LEO E. COOK, Appellant, v. WARDEN,
No. 8335
October 23, 1975 541 P.2d 642
The Supreme Court held that where, at time that prisoner entered plea of guilty, it had
been agreed between he and the district attorney that he would plead guilty on one charge and
that other charges would be dismissed and that district attorney would recommend probation
if prisoner sought mental psychiatric help, prisoner was entitled to withdraw his plea and
plead anew where, at the time of sentencing, another representative from the district attorney's
office recommended maximum punishment and, without any reference to probation,
maximum sentence was imposed.
Horace R. Goff, State Public Defender, Gary D. Armentrout, Deputy, and Michael R.
Griffin, Deputy, Carson City, for Appellant.
Robert List, Attorney General, Stephen P. Boland, Deputy, Carson City, Larry R. Hicks,
District Attorney, and Calvin R. Dunlap, Deputy, Washoe County, for Respondent.
1. Criminal Law.
Where an accused enters a plea of guilty upon the basis of a promise of representation made by an
official representing the prosecution and the promise is unequivocal, accused is entitled to withdraw his
plea if promise is unfulfilled.
2. Criminal Law.
Where, when guilty plea was entered, it had been agreed between district attorney and accused that
accused would enter plea of guilty on one charge and that other charges would be dismissed and that
prosecutor's office would recommend probation if accused sought mental psychiatric help, accused was
entitled to withdraw his plea and plead anew where, at time of sentencing, another representative from the
district attorney's office recommended that maximum punishment be imposed and, without any reference to
probation, maximum sentence was imposed.
OPINION
Per Curiam:
Leo E. Cook, having been convicted in the Second Judicial District Court, Washoe
County, petitioned for post-conviction relief in the First Judicial District Court, Carson City,
contending, inter alia, he was entitled to withdraw his guilty plea because the prosecuting
attorney had violated a plea bargain agreement.
91 Nev. 636, 637 (1975) Cook v. Warden
relief in the First Judicial District Court, Carson City, contending, inter alia, he was entitled
to withdraw his guilty plea because the prosecuting attorney had violated a plea bargain
agreement. The district court rejected Cook's contention and this appeal follows.
Cook had been charged with several crimes and, as a result of negotiations between his
attorney and the district attorney, it was agreed that in exchange for a guilty plea on one of the
charges that the other charges would be dismissed. Further, when the guilty plea was entered
July 18, 1973, the transcript of the canvass taken by the district judge shows that there was an
agreement by the representative of the prosecutor's office that, at sentencing, the District
Attorney would recommend probation if the defendant seeks mental psychiatric help.
[Headnotes 1, 2]
When the case came back on calendar, for sentencing, on September 1 1, 1973, a different
deputy from the Washoe County Public Defender's office appeared on behalf of Cook as did a
different deputy from the District Attorney's office, on behalf of the State. Apparently neither
counsel was familiar with the background of the case and the representative of the district
attorney's office, in total disregard of his associate's prior representation, stated to the district
judge: Your Honor, I have never seen a man that deserved the maximum more than Mr.
Cook . . . I am sorry that 10 years is the maximum [sentence] for the crime that he pled.
There was no reference to probation and the maximum sentence was imposed on Cook.
It is well-established that where an accused enters a plea of guilty upon the basis of a
promise or representation made by an official representing the prosecution, and the promise is
unequivocal, as this record shows, then he is entitled to withdraw his plea if the promise is
unfulfilled. See Fine v. Warden, 90 Nev. 166, 521 P.2d 374 (1974).
Reversed and remanded to the First Judicial District Court with instructions to transfer the
proceedings to the Second Judicial District Court, Washoe County, in order that Leo E. Cook
may plead anew.
____________
91 Nev. 638, 638 (1975) Weinstein v. Sodaro
ABE J. WEINSTEIN Administrator of the Estate of LOUIS
SODARO, Appellant, v. VITO SODARO, Respondent.
No. 7876
October 23, 1975 541 P.2d 531
Action in declaratory relief to determine which party was entitled to proceeds of a savings
account. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Action was brought for declaratory relief to determine which party was entitled to
proceeds of savings account in name of decedent and his brother. The district court entered
judgment against administrator of decedent's estate and he appealed. The Supreme Court held
that signature cards appropriate for changing individual savings account into joint account
were sufficient to create a joint account; thus a joint tenancy was properly effectuated and
money did not remain in estate.
Affirmed.
Ralph L. Denton, of Las Vegas, for Appellant.
Robert N. Peccole, of Las Vegas, for Respondent.
1. Joint Tenancy.
Under statute permitting individual to transfer solely owned property to himself and another as joint
tenants, the only requirement is that the transfer be manifested by a writing. NRS 111.065, 663.015.
2. Executors and Administrators; Joint Tenancy.
Signature cards appropriate for changing individual savings account into joint account were sufficient to
create a joint account; thus a joint tenancy was properly effectuated and money did not remain in estate of
original owner of account to be distributed to heirs upon his death. NRS 111.065, 663.015.
OPINION
Per Curiam:
On April 15, 1970, Louis Sodaro opened Savings Account No. 16245 at one of the branch
banks of the First National Bank of Nevada in Las Vegas. Subsequent to that date and prior to
his death on September 24, 1973, Louis indicated to his brother, Vito, and others that upon
his death he desired to have the funds from this savings account transferred to Vito for the
purpose of providing care for their invalid mother. In that same connection Louis consulted
with his brother-in-law, a licensed attorney in Springfield, Illinois, who advised Louis that
his desire could be executed by changing his individual savings account into a joint
tenancy with Vito.
In that same connection Louis consulted with his brother-in-law, a licensed attorney in
Springfield, Illinois, who advised Louis that his desire could be executed by changing his
individual savings account into a joint tenancy with Vito. Louis proceeded to change Savings
Account No. 16245 from his individual account to a joint tenancy with his brother Vito. He
secured appropriate signature cards and mailed them to Vito who signed and returned them.
Louis delivered the cards to the bank and on January 26, 1971, a notation was made on Louis'
original signature card indicating that the account was changed from individual to joint. It
was apparently understood between Louis and Vito that Vito would make no withdrawals
from the account until Louis' death.
The bank issued no new passbook nor was any notation made upon the old passbook
indicating the change. Louis retained possession of the passbook until his death in September
of 1973.
Abe J. Weinstein was appointed administrator of Louis' estate and Weinstein and Vito
claimed the money deposited in the savings account, an amount in excess of $11,500.00. The
bank filed a complaint for declaratory judgment seeking a determination as to which party
was entitled to the money. Weinstein, as administrator of the estate of Louis Sodaro, appeals
the judgment rendered in favor of Vito.
The appellate contention is that Louis did not intend a joint tenancy but instead meant to
make a gift of the savings account to Vito but that the gift fell short of the necessary
requisites that constitute a valid gift and that therefore the money remains in the estate to be
distributed to other heirs. The trial court had found to the contrary, of course, ruling that the
joint tenancy was properly effectuated.
[Headnotes 1, 2]
Under NRS 663.015 the trial court was bound to conclude that the parties intended to
establish a joint tenancy relationship, first, because the statute is conclusive, and secondly, the
obvious intention was to create a joint tenancy. The presumption in favor of a joint tenancy is
mandated by the statute.
1
By the enactment of NRS 111.065, which permits an individual
to transfer solely owned property to himself and another as joint tenants,2 the statute
only requires that the transfer be manifested by a writing which in this case was met in
the form of a signed signature card.3 We see no other issues.
____________________

1
Deposits in names of two or more persons.
1. When a deposit has been made, or is made after July 1, 1971, by any person, in any bank or other
depository transacting business in this state, in the name of such depositor and one, two or more persons, and in
form to be paid to the survivor or survivors of them, such deposit and any addition thereto made by any of such
persons, after the making thereof, shall become the property of such persons as joint
the enactment of NRS 111.065, which permits an individual to transfer solely owned property
to himself and another as joint tenants,
2
the statute only requires that the transfer be
manifested by a writing which in this case was met in the form of a signed signature card.
3
We see no other issues.
Affirmed.
____________________
tenants, and such deposits, together with all dividends thereon, shall be held for the exclusive use of such
persons and may be paid to any of them during the lifetime of all or to the survivor or survivors after the death of
any of them. Such payments and receipts or acquittances of the person or persons to whom such payment is
made shall be a valid and sufficient release and discharge to such bank or other depository for all payments
made on account of such deposit.
2. The making of the deposit in such form shall, in the absence of fraud or undue influence, be conclusive
evidence, in any action or proceeding to which either such bank or other depository, or a surviving depositor, is
a party, of the intention of the depositors to vest such deposit and the additions thereto in such survivor or
survivors.

2
Joint tenancy in real and personal property: Creation.
1. Joint tenancy in real property may be created by a single will or transfer when expressly declared in the
will or transfer to be a joint tenancy, or by transfer from a sole owner to himself and others, or from tenants in
common to themselves, or to themselves and others, or to one of them and others, or from a husband and wife
when holding title as community property or otherwise to themselves, or to themselves and others, or to one of
them and others, when expressly declared in the transfer to be a joint tenancy, or when granted or devised to
executors or trustees as joint tenants.
2. A joint tenancy in personal property may be created by a written transfer, agreement or instrument.

3
Both parties rely upon Edmunds v. Perry, 62 Nev. 41, 140 P.2d 566 (1943). That case is subject to different
interpretations. The evidence was conflicting as to what was intended and this court did not disturb the trial court
finding that no joint tenancy was intended. Here, however, the intention to form a joint tenancy is clear.
____________
91 Nev. 641, 641 (1975) Gordon v. Hurtado
ROYAL G. GORDON and GLEN MICHAEL GORDON, Appellants, v. JERRY HURTADO
and RECRION CORPORATION, dba THE FREMONT HOTEL, Respondents.
No. 7684
October 23, 1975 541 P.2d 533
Appeal from a judgment entered in the Eighth Judicial District Court, Clark County; James
D. Santini, Judge.
Father and son brought action to recover damages for injuries suffered by son in collision
between his motorcycle and delivery van driven by defendant, an employee of defendant
corporation. The district court entered judgment for defendants and plaintiffs appealed. The
Supreme Court, Batjer, J., held that trial court erred in admitting testimony of accident
reconstruction expert and in denying plaintiff's motion to strike after testimony had been
given, that trial court erred in commenting on quality and quantity of direct evidence and in
referring to inadmissible testimony of expert witness as particularly appropriate and
particularly probative, and such error was not harmless, and that evidence of circumstances
of accident, and negligence of both drivers was for jury.
[Rehearing denied December 5, 1975]
Peter L. Flangas, of Las Vegas, for Appellants.
Cromer, Barker & Michaelson, of Las Vegas, for Respondents.
1. Evidence; Trial.
In action to recover for injuries suffered in collision between motorcycle and delivery van, trial court
erred in admitting testimony of accident reconstruction expert containing calculations which, except for
fact of point of impact, were based upon assumption, speculation and conjecture having no support in
record; plaintiff's motion to strike after testimony had been given should have been granted.
2. Trial.
Judges are precluded from commenting upon probability or improbability of truth of evidence or
credibility thereof. Const. art. 6, 12; NRS 3.320.
Violations of constitutional and statutory prohibitions are subject to rule of harmless error. NRCP 61.
4. Appeal and Error; Trial.
In action to recover for injuries suffered in collision between motorcycle and delivery van, trial court
erred in commenting upon quality and quantity of direct evidence and in referring to
inadmissible testimony of expert witness as "particularly appropriate and particularly
probative," and such error was not harmless.
quality and quantity of direct evidence and in referring to inadmissible testimony of expert witness as
particularly appropriate and particularly probative, and such error was not harmless. Const. art. 6,
12; NRS 3.230; NRCP 61.
5. Automobiles.
In action to recover for injuries suffered in intersectional collision between motorcycle and delivery van,
evidence of circumstances of accident, and negligence of both drivers was for jury. NRCP 50(a).
6. Trial.
Entry of directed verdict by trial court is proper only if there is no question of fact remaining to be
decided. NRCP 50(a).
OPINION
Appellants, father and son, brought an action to recover damages for the personal injury
suffered by the son, Glen Michael Gordon, in a collision between his motorcycle and a
delivery van driven by respondent Jerry Hurtado, an employee of respondent Recrion
Corporation, dba Fremont Hotel. Appellants alleged negligence and failure to observe a red
light on the part of Hurtado who countered with allegations of contributory negligence and
failure to display lights on the part of Glen Gordon.
The accident occurred at the intersection of the eastbound lanes of Washington Avenue
and the southbound lane of 25th Street in Las Vegas, Nevada. Evidence in the record
indicates that the width of Washington Avenue was 25 feet each for the eastbound and
westbound lanes, with a 40-foot drainage ditch divider between the lanes. Hurtado was
driving south across Glen Gordon's lane after completing a left hand turn from Washington
onto 25th. The signal lights were green for traffic on Washington Avenue and red for traffic
on 25th Street. The accident occurred at 5:05 p.m. on December 26, 1969.
Prior to the accident, Hurtado, who was proceeding west on Washington Avenue, had
stopped for a red light at the intersection with 25th Street. When the light changed he turned
his delivery van left into the southbound lane of 25th Street and as he approached the
eastbound lanes of Washington Avenue he paused to allow a vehicle to make a left turn in
front of him into the northbound lane of 25th Street; then, not heeding the red light, he drove
into the intersection. When he had proceeded approximately one-third of the distance into the
eastbound lanes he felt a bump, pulled to the west curb of 25th Street, and stopped. Only then
did he notice Glen Gordon and his motorcycle lying prone in the intersection. A witness who
was approaching the intersection from the south testified that he saw Hurtado's vehicle
before the collision but did not see the motorcycle until after the collision, nor did he see
the collision.
A witness who was approaching the intersection from the south testified that he saw
Hurtado's vehicle before the collision but did not see the motorcycle until after the collision,
nor did he see the collision. He further testified that at the time Hurtado crossed Washington
on 25th, the light was red for 25th Street traffic.
At trial, Arnold W. Siegal was permitted to testify as an accident reconstruction expert.
According to his testimony, if Gordon had been looking, he could have seen the delivery van
in time to stop his motorcycle 45 feet before the point of impact. Siegel based his testimony
on the lack of skid marks, the acceleration and braking characteristics of the same types of
van and motorcycle, and an assumption that Gordon was travelling about 25 m.p.h. upon
impact. His calculations included conclusions that the van would require 3 1/2 seconds to
reach the point of impact from the northern edge of the eastbound lanes of Washington
Avenue where he assumed it had paused, that the motorcycle was 130 feet to the west when
the van started into the eastbound lanes, and that the motorcycle would require 85 feet to stop,
assuming its rider thought the van would stop.
During the course of the trial the district judge denied appellants' motion to strike Siegal's
testimony, as well as their motion for a directed verdict, rejected some of the proposed
instructions and overruled their objections to certain instructions submitted by respondents.
After a jury verdict in favor of respondents this appeal was taken, claiming that error had
been committed by the district court in its rulings and that the district judge further erred by
commenting on the evidence in violation of Article 6, Section 12, of the Nevada Constitution.
[Headnote 1]
Appellants' contention that the trial court erred when it allowed Arnold W. Siegal, a traffic
reconstruction analyst, to testify as an expert is well taken. The point of impact was the only
direct evidence from the record which was used by Siegal to arrive at his calculations. Every
other factor that entered into those calculations was based on assumption, speculation and
conjecture having no support in the record.
In Levine v. Remolif, 80 Nev. 168, 390 P.2d 718 (1964), an expert's testimony material to
the speed of two vehicles involved in a collision was based entirely upon photographs of the
scene and the vehicles, a diagram made by two police officers giving their version of the
movements of the two vehicles prior to and after impact, and certain tests made by the expert
with a vehicle similar to one of those involved. This court noted that the expert did not
consider the coefficient of friction, he had never seen either of the vehicles, the
photographs did not disclose the damage to the cars' frames, and the police officer who
drew the diagram was inexperienced in reconstructing automobile accidents.
court noted that the expert did not consider the coefficient of friction, he had never seen either
of the vehicles, the photographs did not disclose the damage to the cars' frames, and the
police officer who drew the diagram was inexperienced in reconstructing automobile
accidents. This court then went on to say: The lower court properly concluded that the
testimony of Blewett, that he was able to determine from such a foundation with any degree
of accuracy the speed of either vehicle immediately prior to impact, was incredible. . . .
[Blewett's] conclusions . . . based not on facts but on his assumptions from the photographs . .
. and from a diagram which to a substantial degree was the result of the conclusions of the
maker, were mere speculation, conjecture, and guess. Proof of negligence cannot be left to
mere speculation or conjecture. Johnson v. Brown, 77 Nev. 61, 359 P.2d 30. 80 Nev. at
171-2, 390 P.2d at 720.
And in Choat v. McDorman, 86 Nev. 332, 336-7, 468 P.2d 354, 356-7 (1970), we held
that an expert could not testify to speed based upon the resulting damage to the vehicles
involved. There we said: Even cases where expert testimony on speed prior to impact has
been admitted, factors such as skid marks, the relative positions of the vehicles after the
accident, and their respective weights, in addition to the resulting damage, were taken into
consideration. . . . The testimony of a former highway patrolman, testifying as an expert
witness, was undoubtedly accorded considerable weight by the jury and, inasmuch as it
tended to establish the contributory negligence of the appellant it was unduly prejudicial to
his case, and it was therefore reversible error to admit it.
Siegal's testimony was no less prejudicial to appellants in this case. He should never have
been permitted to testify over the objections of appellants' counsel; however, after that harm
was done appellants' motion to strike should have been granted. See also Cardinal v.
Zonneveld, 89 Nev. 403, 514 P.2d 204 (1973).
In denying appellants' motion to exclude the testimony of the traffic reconstruction analyst
Siegal, the trial judge stated in the presence of the jury: The court is substantially impressed
in this case not only by the qualification of this witness and the validity to formulate opinions
enunciated by him, but also by the fact there was virtually no direct testimony whatsoever to
assist or aid or direct or guide the jury with regard to circumstances surrounding the accident
in concluding that in this case the testimony in the line of accident construction is particularly
appropriate and particularly probative and, therefore, more than justified on the basis of the
record before the court at this time. . . ."
than justified on the basis of the record before the court at this time. . . .
[Headnote 2]
Judges shall not charge juries in respect to matters of fact, but may state the testimony
and declare the law. Nev. Const. art. 6, 12. Furthermore, judges are precluded from
commenting upon the probability or improbability of the truth of the evidence or the
credibility thereof. NRS 3.230.
1

In Wheeler v. Twin Lakes Riding Stable, 88 Nev. 485, 487, 500 P.2d 572, 573 (1972), we
said: This barrier between court and jury preserves their respective functions and insures
freedom in the jury to decide facts and the reasonable inferences therefrom without influence
or direction from the court except as to applicable law.
[Headnotes 3, 4]
The statement of the trial judge quoted above is a direct comment not only upon the
evidence that was then before the jury but also upon the credibility of Siegal's testimony, as
well as the probability of its truth and its probative value. The trial court's error is obvious.
Violations of the constitutional and statutory prohibitions are subject to the rule of
harmless error. Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 448 P.2d 46 (1968); Wheeler
v. Twin Lakes Riding Stable, supra; NRCP 61.
2

The trial court's comment on the quality and quantity of the direct evidence, his referring
to the inadmissible testimony of Siegal as particularly appropriate and particularly
probative, does not permit us to conclude that the error was harmless. A full and fair jury
trial could not occur in these circumstances. Wheeler v. Twin Lakes Riding Stable, 88 Nev.
at 487, 500 P.2d at 573.
____________________

1
NRS 3.230: District judges shall not charge juries upon matters of fact but may state the evidence and
declare the law. In stating the evidence, the judge should not comment upon the probability or improbability of
its truth nor the credibility thereof. If the judge state the evidence, he must also inform the jury that they are not
to be governed by his statement upon matters of fact.

2
NRCP 61: No error in either the admission or the exclusion of evidence and no error or defect in any ruling
or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or
for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal
to take such action appears to the court inconsistent with substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of
the parties.
[Headnotes 5, 6]
The trial court properly denied appellants' motion for a directed verdict. Here there existed
questions of fact as to the negligence of both drivers, conflicting evidence of the
circumstances of the accident to be weighed and credibility of witnesses to be determined.
The entry of a directed verdict by a trial court is proper only if there is no question of fact
remaining to be decided. Kline v. Robinson, 83 Nev. 244, 428 P.2d 190 (1967); NRCP 50(a).
We need not consider appellants' other assignments of error. The judgment is reversed and
this case is remanded for a new trial.
____________
91 Nev. 646, 646 (1975) Brown v. Vonsild
CLEO RUTH BROWN, a.k.a. CLEO RUTH VONSILD, Appellant,
v. HARVEY O. VONSILD, Respondent.
No. 7706
October 23, 1975 541 P.2d 528
Appeal from a judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Divorced wife brought action seeking judgment against divorced husband for arrearages in
child support installments due and owing. The district court denied recovery for any
installment prior to April 15, 1964, and wife appealed. The Supreme Court held that statute of
limitations was not tolled by absence of husband, and such statute commenced to run against
each installment as it became due.
Affirmed.
Breen, Young, Whitehead & Hoy, Chartered, and Richard Bennett, Reno, for Appellant.
A. D. Jensen, Reno, for Respondent.
Parent and Child.
Where nonresident divorced husband was continuously subject to service in original divorce
proceedings, six-year statute of limitations was not tolled by absence of husband, but was applicable in
action brought by wife for arrearages in child support installments, and such statute commenced
to run against each installment as it became due.
and such statute commenced to run against each installment as it became due. NRS 11.190, subd. 1(a),
11.300.
OPINION
Per Curiam:
The principal issue presented for our consideration in this appeal is whether the 6-year
statute of limitations applicable to child support installments was tolled under the provisions
of NRS 11.300 by the absence of the defendant husband from the State of Nevada, where the
district court that granted the divorce decree retained jurisdiction over the parties for the
purpose of entering any further orders regarding the care, custody, and support of their
children.
This separate, independent action was commenced on April 15, 1970, in the Second
Judicial District Court in and for the County of Washoe, wherein appellant, Cleo Ruth
Brown, also known as Cleo Ruth Vonsild, hereinafter referred to as Wife, sought a judgment
against respondent, Harvey O. Vonsild, hereinafter referred to as Husband, in the principal
sum of $13,920, plus interest amounting to $8,791, totaling $22,711, for arrearages in child
support installments due and owing by Husband to Wife under the terms of an order issued by
the Sixth Judicial District Court in and for the County of Humboldt. The court below held
that, under the facts presented, NRS 11.300 did not toll the 6-year statute of limitations and
that the said statute barred recovery of any installments prior to April 15, 1964.
On July 12, 1950, Wife was granted a decree of divorce. Husband appeared by appearance
and waiver. The decree approved and ratified a written agreement of the parties where Wife
was given custody of the parties' three children and Husband agreed to pay Wife $50 per
month per child for a total sum of $150 per month for the children's support. Thereafter,
Husband failed to make the aforementioned child support payments, and Wife brought a
contempt proceeding in the Sixth Judicial District Court. Husband retained John H. Mathews
as counsel, who appeared as his attorney of record in the proceedings.
1
The parties, through
their counsel, settled their difficulties by stipulation, which was approved by the Sixth
Judicial District Court on December 13, 1954.2 Husband failed to comply with the terms
of that order regarding payment of child support.
____________________

1
John H. Mathews became a municipal court judge on June 1, 1964, a position he still holds, although he
remains attorney of record for Husband in the original divorce proceedings.
District Court on December 13, 1954.
2
Husband failed to comply with the terms of that
order regarding payment of child support.
Fifteen years and four months later, on April 15, 1970, Wife filed the instant action in the
Second Judicial District Court in and for Washoe County, seeking arrearages in child support
installments.
3

The parties stipulated in the court below that Lawrence Vonsild was emancipated in
August 1965 when he entered the service and that Nikki was emancipated on December 30,
1964, when she attained the age of 18 years.
Husband had resided in California since 1955. He visited his mother, who resided in Reno,
several times annually until her death in 1968. The evidence is conflicting as to whether Wife
knew of Husband's whereabouts during the 15-year period or made any attempt to locate him.
The district judge, in holding that the 6-year statute of limitations was applicable to the
instant case, ruled that the statute commenced to run against each installment as it became
due.
____________________

2
The parties further stipulated as follows:
3. That the defendant shall faithfully make to the plaintiff the aforesaid payments of Thirty ($30.00) Dollars
per month per child without fail as long as said defendant is able to make said payments. In the event said
defendant is unable to make the entire payment of Sixty ($60.00) Dollars per month, he will make as much of the
said payment as he is financially able to do. In the event the defendant is unable to make the entire Sixty
($60.00) Dollars per month payment, the delinquent amount or amounts shall be paid as soon as the defendant is
financially able to do so; and further, the defendant, for each month that he is unable to make the full monthly
payment, will advise the attorney for the plaintiff of the reasons for his inability to make the payment or any part
hereof, and further advise said attorney for plaintiff of his present whereabouts, and upon request, will submit
substantiating evidence of his inability to pay.
4. Upon the faithful performance of all of the covenants and agreements provided herein for a period of two
(2) years from the date hereof, the unpaid support payments in the approximate sum of Six thousand ($6,000.00)
Dollars due plaintiff from defendant will be deemed discharged and paid in full.
(No support payments were provided for Linda Michele, as she was adopted by Wife's parents.)

3
Wife sought the following sums:
(1) $6,000 plus interest at the legal rate from December 10, 1954 (pursuant to the order entered by the Sixth
Judicial District Court on December 13, 1954);
(2) $3,600 plus interest at the legal rate from December 10, 1964 (as and for arrearages in child support for
Nikki Vonsild, a minor child of the parties); and
(3) $4,320 plus interest at the legal rate from December 10, 1966 (as and for arrearages in child support for
Lawrence Vonsild, a minor child of the parties).
commenced to run against each installment as it became due. The court found that the statute
was not tolled, because Husband was continuously subject to service in the original divorce
proceedings in the Sixth Judicial District.
4
We agree with the ruling of the court below.
The court further found that judgment should be entered in favor of Wife in the sum of
$405 as child support payments for Lawrence Vonsild and the sum of $255 as child support
payments for Nikki Vonsild, for a total judgment of $660.
It is from the court's determination that the statute of limitations had not been tolled under
the provisions of NRS 11.300
5
and that the 6-year statute of limitations under NRS 11.190,
subsection 1 (a),
6
barred recovery for any installments prior to April 15, 1964, that this
appeal is taken.
____________________

4
The district judge made the following findings of fact:
16. That the six-year statute of limitations under NRS 11.190, applicable to judgments, is applicable to the
instant case, and such statute of limitations commences to run against each installment as it becomes due.
17. That the defendant was under the jurisdiction of the Sixth Judicial District Court and was continuously
liable to service during the entire period in question, and under these circumstances, the statute of limitations
was not tolled pursuant to NRS 11.300.
18. Accordingly, only those child support installments due and owing by April 15, 1964, are due and
payable to plaintiff from defendant; that since Lawrence Vonsild was emancipated in August of 1965, there is
due and owing to the plaintiff as and for his child support payments, the sum of $30.00 per month from April 15,
1964, through July 31, 1965, in the total sum of $405.00; that there is due and owing to plaintiff from the
defendant as and for child support payments on behalf of Niki [sic] Vonsild the sum of $30.00 per month from
April 15, 1964, to December 30, 1964, the date on which she reached the age of majority [,] in the total sum of
$255.00.
Based on the foregoing findings and facts, the court held in its conclusions of law:
3. That although defendant was a resident of the State of California from November, 1955, up to and
including April 15, 1970, the date upon which this action was instituted, the statute of limitations has not been
tolled, under the circumstances of this case, pursuant to NRS 11.300.

5
NRS 11.300:
If, when the cause of action shall accrue against a person, he be out of the state, the action may be
commenced within the time herein limited after his return to the state; and if after the cause of action shall have
accrued he depart the state, the time of his absence shall not be part of the time prescribed for the
commencement of the action.

6
NRS 11.190, subsection 1(a):
Actions other than those for the recovery of real property, unless further limited by NRS 11.205 or by or
pursuant to the Uniform Commercial Code, can only be commenced as follows:
Wife could have obtained a judgment for arrearages under the provisions of NRS 125.180,
7
which provides that application for such a judgment shall be upon notice to the husband as
the court may direct. No steps were taken by Wife to secure a judgment. Rather, 5 years after
the two children had either reached majority or become emancipated, Wife filed this original
complaint in district court. Husband was effectively and continuously subject to the
jurisdiction of the court in the original divorce proceedings. He was, for purposes of
judgment, before the district court, subject only to such notice as the court might have
directed. Wife had only to make application for judgment predicated on the arrearages then
due. Husband's absence did not deprive her of a remedy. Such a judgment for arrearages
would have effectively extended the statute as to that judgment an additional 6 years.
We conclude, as did the district judge, that the 6-year statute of limitations was applicable
in the instant case and that it was not tolled by the absence of Husband under the provisions
of NRS 11.300, supra.
The judgment of the lower court is affirmed.
____________________
1. Within 6 years:
(a) An action upon a judgment or decree of any court of the United States, or of any state or territory within
the United States.

7
NRS 125.180:
1. Where the husband, in an action for divorce, makes default in paying any sum of money as required by
the judgment or order directing the payment thereof, the district court may make an order directing entry of
judgment for the amount of such arrears, together with costs and disbursements not to exceed $10 and a
reasonable attorney's fee.
2. The application for such order shall be upon such notice to the husband as the court may direct.
3. The judgment may be enforced by execution or in any other manner provided by law for the collection of
money judgments.
4. The relief herein provided for is in addition to any and every other remedy to which the wife may be
entitled under the law. (Emphasis added.)
____________
91 Nev. 650, 650 (1975) Allan v. State
GEORGE LAVERN ALLAN, Appellant, v. THE
No. 7818
October 23, 1975 541 P.2d 656
Appeal from judgment and conviction of the Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Defendant was convicted in the district court of infamous crime against nature and he
appealed.
91 Nev. 650, 651 (1975) Allan v. State
crime against nature and he appealed. The Supreme Court held that the trial court had not
erred in finding the defendant capable of a voluntary and intelligent waiver of his right to
counsel, that the testimony of the complaining witness did not require corroboration since the
witness could not be considered an accomplice, that the statute creating the offense was not
unconstitutionally applied against defendant, and that defendant had been properly sentenced.
Affirmed.
Larry C. Johns, Johns & Johns, Las Vegas, for Appellant.
Robert List, Attorney General, and George Holt, District Attorney, Clark County, for
Respondent.
1. Criminal Law.
Trial court, in prosecution for infamous crime against nature, properly found defendant capable of
voluntary and intelligent waiver of his right to counsel where two psychiatrists examined defendant prior to
trial and determined that he was competent to stand trial, to aid in defense with his attorney, and to make
any waiver that might be necessary, where defendant was properly advised of his constitutional rights, and
where, despite defendant's refusal to go forward with any member of public defender's office as counsel or
to cooperate with members of that office in any manner, public defender remained throughout trial to assist
in any manner requested.
2. Criminal Law.
Fourteen-year-old boy involved in infamous crime against nature would not be considered accomplice to
such offense and evidence corroborative of his testimony was not necessary where he was complainant to
offense and statute creating offense was designed to protect persons under full age of 18 years. NRS
175.291, subd. 2, 201.190, 201.190, subd. 1.
3. Sodomy.
Statute proscribing infamous crime against nature was not unconstitutionally applied to consenting
adults in prosecution of defendant where victim and complainant, because he was only 14 years old, was
incapable of effective consent. NRS 201.190.
4. Sodomy.
Defendant convicted of committing infamous crime against nature upon 14-year-old victim was properly
sentenced under portion of statute providing for penalties when offense is committed upon persons under
age of 18 years. NRS 201.190, subd. 1(a), (b).
OPINION
Per Curiam:
Appellant stands convicted of an infamous crime against nature, committed through oral
copulation with a 14-year-old boy. See: NRS 201.190. Appellant here contends the trial court
erred: {1) in allowing him to conduct his own defense; {2) in holding he could be
convicted on the testimony of the boy alone, without corroboration; {3) in holding the
"infamous crime" statute constitutional; and {4) in sentencing appellant under NRS
201.190{1){a) rather than NRS 201.190{1){b).
91 Nev. 650, 652 (1975) Allan v. State
court erred: (1) in allowing him to conduct his own defense; (2) in holding he could be
convicted on the testimony of the boy alone, without corroboration; (3) in holding the
infamous crime statute constitutional; and (4) in sentencing appellant under NRS
201.190(1)(a) rather than NRS 201.190(1)(b). We reject all contentions raised.
[Headnote 1]
1. Appellant wished to conduct his own defense. In fact, he refused to go forward with
any member of the public defender's office as counsel, or to cooperate with members of that
office in any manner. The judge canvassed appellant concerning his educational background
and knowledge of the charge against him. He explained appellant's right to cross-examine
witnesses, his privilege against self-incrimination, and the availability of compulsory process
to bring witnesses before the court. The public defender remained throughout the trial to
assist in any manner requested. Before the second day of trial appellant was given another
opportunity for representation by the public defender's office and again he refused. Prior to
trial, two psychiatrists examined appellant. Based on their reports and testimony, the district
court determined appellant competent to stand trial, to aid in the defense with his attorney and
to make any waivers that might be necessary. Under the circumstances, we cannot hold the
court erred in finding appellant capable of a voluntary and intelligent waiver of his right to
counsel. Cf. Hatten v. State, 83 Nev. 531, 435 P.2d 495 (1967); cf. Faretta v. California, 422
U.S. 806 (1975).
[Headnote 2]
2. Appellant next argues that the complainant, a 14-year-old boy, is an accomplice and
that therefore evidence corroborative of his testimony was necessary.
1
NRS 201.190 (1)
speaks to every person of full age who commits the infamous crime against nature.
____________________

1
175.291 Testimony of accomplice must be corroborated: sufficiency of corroboration; accomplice defined.
1. A conviction shall not be had on the testimony of an accomplice unless he is corroborated by other
evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant
with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the
commission of the offense or the circumstances thereof.
2. An accomplice is hereby defined as one who is liable to prosecution, for the identical offense charged
against the defendant on trial in the cause in which the testimony of the accomplice is given.
91 Nev. 650, 653 (1975) Allan v. State
crime against nature.
2
We have previously defined full age to mean 18 years. Basurto v.
State, 86 Nev. 567, 472 P.2d 339 (1970). NRS 201.190(1) is designed to protect, and not
prosecute a 14-year-old. The complainant was not liable to prosecution for the identical
offense and as such was not an accomplice. NRS 175.291(2); Geddes v. State, 90 Nev. 367,
526 P.2d 1180 (1974).
[Headnote 3]
3. Appellant contends NRS 201.190 is unconstitutionally void for vagueness and also
unconstitutional as applied to the facts of this case. The vagueness contention has been
considered and rejected in the past, and we here see no reason to review this issue. Jones v.
State, 85 Nev. 411, 456 P.2d 429 (1969). Concerning the statute's application to this case,
appellant argues the statute is unconstitutional when applied to consenting adults. This
contention, which other courts have upheld, certainly has force and will be duly considered in
a proper case. See, for example: State v. Elliott, 539 P.2d 207 (N.M.App. 1975). However, a
14-year-old boy is not an adult for the purposes of NRS 201.190. Basurto v. State, cited
above. We have previously upheld the statute's constitutionality in nonconsensual cases.
Jones v. State, cited above. That holding is no less applicable where the victim, because of his
tender age, is incapable of effective consent.
[Headnote 4]
4. Finally, appellant contends he should have been sentenced pursuant to NRS
201.190(1)(b) rather than NRS 201.190 (1)(a). The statutory mandate is clear. NRS 201.-
190(1)(a) provides the penalty if the offense is committed upon the person of one who is
under the age of 18 years. Here, the victim was 14 years old; appellant was properly
sentenced.
Affirmed.
____________________

2
201.190 Crime against nature: Punishment; limitations on parole, probation.
1. Except as provided in subsection 2, every person of full age who commits the infamous crime against
nature shall be punished:
(a) Where physical force or the immediate threat of such force is used by the defendant to compel another
person to participate in such offense, or where such offense is committed upon the person of one who is under
the age of 18 years, by imprisonment in the state prison for life with possibility of parole, eligibility for which
begins, unless further restricted by subsection 3, when a minimum of 5 years has been served.
(b) Otherwise, by imprisonment in the state prison for not less than 1 year nor more than 6 years.
____________
91 Nev. 654, 654 (1975) Hilt v. State
JAMES WILLIAM HILT, Appellant, v. THE STATE
No. 7810
October 23 1975 541 P.2d.645
Appeal from conviction of first degree murder and a judgment of life imprisonment with
possibility of parole and an order denying motion for a new trial. Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
The Supreme Court, Batjer, J., held that where defense counsel answered affirmatively
when trial judge asked whether the next witness would be the defendant and defendant took
the stand immediately after short intervening recess, failure to move to strike, move for
mistrial, assign misconduct or request instruction precluded appellate consideration of alleged
denial of Fifth Amendment rights; that state's witness was properly called in rebuttal to
corroborate another witness' testimony given in state's case in chief; and that evidence
supported conviction of first degree murder.
Affirmed.
John F. O'Reilly, of Las Vegas, for Appellant.
Robert List, Attorney General, George E. Holt, District Attorney, Dan M. Seaton, Deputy,
and Frank Cremen, Deputy, Clark County, for Respondent.
1. Criminal Law.
Where defense counsel answered affirmatively when trial judge asked whether next witness would be the
defendant and defendant took the stand immediately after short intervening recess, failure to move to strike,
move for mistrial, assign misconduct or request instruction precluded appellate consideration of alleged
denial of Fifth Amendment rights. U.S.C.A.Const. Amend. 5; Const. art. 1, 8.
2. Criminal Law.
Record did not support defendant's contentions that trial judge had been guilty of misconduct and had
denied defendant a fair and impartial trial on theory that he had aligned himself with prosecution, applied
different procedural rules to prosecution than to defense and commented on the evidence.
3. Criminal Law.
Where defendant testified that he had not told anyone he had picked up a hitchhiker to rob him or that
hitchhiker could identify defendant, two others or his car and testified that he did not know of anyone's
trying on hitchhiker's boots and could not remember what happened to them, state's witness was properly
called in rebuttal to corroborate another witness who testified in state's case in chief
contrary to testimony given by defendant.
91 Nev. 654, 655 (1975) Hilt v. State
rebuttal to corroborate another witness who testified in state's case in chief contrary to testimony given by
defendant.
4. Criminal Law.
It is within trial court's discretion to admit rebuttal evidence in support of party's original cause.
5. Criminal Law.
Supreme Court will not review trial court's discretion as to admitting rebuttal evidence supporting party's
original cause, in absence of gross abuse.
6. Criminal Law.
Where appellant failed to specifically object to testimony elicited during trial, it was not proper
assignment of error that the testimony was improperly elicited.
7. Marriage.
Common-law marriages are recognized as valid in Kansas.
8. Marriage.
Elements essential to establish common-law marriage in Kansas are capacity to marry, present marriage
agreement and holding out of each other as husband and wife to the public.
9. Witnesses.
In absence of woman ever intending to be married by common law to defendant, her testimony was
properly admitted over objection that she was defendant's common-law wife under law of Kansas and any
communication to her was privileged.
10. Criminal Law.
Contention that trial judge erred in not limiting number of witnesses who testified to same issue and that
names of three of four officers who testified did not appear on attachment to information and were not
furnished pursuant to motion for discovery were not proper assignments of error, where defendant failed to
specifically object to number of witnesses testifying to essentially the same issue or to bring trial court's
attention to fact that only one of four witnesses' names had been furnished.
11. Criminal Law.
Failure to object to questionable statements of prosecutor at time they were made precluded consideration
of them by Supreme Court.
12. Criminal Law.
In prosecution for murder of man whose body was found in parking lot, prosecutor's statement to effect
that he wouldn't shoot his dogs and leave them out in the parking lot was questionable, but where case was
free from doubt, Supreme Court would not reverse conviction.
13. Criminal Law.
Defendant was not entitled to new trial on basis of newly discovered evidence consisting of statements
made by prosecution witness against defendant, inasmuch as defense counsel had been well aware of the
facts during trial and some of the statements had been made to defendant. NRS 176.515.
14. Criminal Law.
If there is substantial evidence to support jury verdict, Supreme Court will not disturb it on appeal. 15.
91 Nev. 654, 656 (1975) Hilt v. State
15. Homicide.
Evidence supported conviction of first degree murder.
16. Criminal Law.
Guilty plea or conviction of one person is not admissible against another charged for same offense.
17. Criminal Law.
Rule that guilty plea or conviction of one person is not admissible against another charged with same
offense does not apply where evidence of such plea or conviction is introduced by defense counsel as part
of trial strategy.
18. Criminal Law.
Where evidence of conviction of another charged with murder tended to support defendant's theory of his
case and his testimony concerning the other person's role in the murder, defendant was not deprived of fair
trial because jury had been informed of the other person's conviction, even though, after defendant's trial,
the other person's conviction had been reversed and at retrial he had been acquitted.
19. Criminal Law.
Conviction of one accomplice or defendant is not reversible merely because another accomplice or
codefendant is subsequently acquitted.
20. Criminal Law.
Record failed to support defendant's claim that his attorney had deprived him of fair trial and his right to
counsel.
OPINION
A jury found appellant James William Hilt guilty of first degree murder and set his penalty
at life imprisonment with possibility of parole. The trial court denied him a new trial, and this
appeal follows.
Hilt was convicted of the murder of Lee Page Merkle, whose body was found the morning
of December 26, 1971, in the parking lot of Clark County's outdoor sports stadium located
between Henderson, Nevada and the Las Vegas, Nevada metropolitan area. The body
contained nine gunshot wounds made from three different weapons: a 9 millimeter, a .380
caliber and a .22 caliber.
Late in 1972, Hilt, Gordon Overton and Edward D. Eckert were separately arrested and
charged with the murder. At trial Hilt testified in his own behalf. Overton testified for the
prosecution, and Eckert did not testify.
According to the testimony of appellant and Overton, all three departed in appellant's car
on the evening of December 23, 1971, from Kansas for Las Vegas, Nevada, arriving there the
next day. Each had a gun in his possession. Appellant had a 9 millimeter Smith and Wesson
and Eckert had a .3S0 Browning automatic.
91 Nev. 654, 657 (1975) Hilt v. State
a 9 millimeter Smith and Wesson and Eckert had a .380 Browning automatic. Appellant had
furnished the money to purchase both guns with Eckert signing the required Federal Arms
Regulations forms. Overton had his father's .22 derringer. On Christmas day they drove
around town gambling and sightseeing and finally proceeded to Henderson, Nevada. At
approximately 1:30 the morning of December 26, 1971, while returning on the Boulder
Highway to Las Vegas, they picked up a hitchhiker at Eckert's direction. The hitchhiker,
Merkle, got into the back seat with Eckert where Eckert held a gun to his head and threatened
him. Also at Eckert's direction, appellant turned off the highway and onto the access road to
the sports stadium and stopped. Eckert forced Merkle to remove his boots, get out of the car,
lie on his stomach and put his hands over his head; then Eckert shot Merkle once in the head,
stopped for a second to laugh, and shot Merkle three or four more times.
From this point appellant's and Overton's testimony differs. Overton testified that after
Eckert had finished shooting he told appellant to shoot Merkle because they all needed to
shoot into the body. Hilt hesitated for a second before he went over and shot three times, then
said to Overton, Come on, why don't you shoot him? Appellant then gave the .22 derringer
to Overton who fired two shots into the body while Eckert held a gun to Overton's head.
Appellant testified that after Eckert shot a total of four or five times point blank at Merkle's
head, Eckert stated they all needed to get involved and motioned his gun at appellant while
Overton was refusing. Appellant then fired two shots into the body because he was afraid
Eckert would shoot him too. Appellant testified further that he thought Merkle was already
dead when he was forced to fire.
Alfa Ann Fox, who had lived with appellant, testified in state's rebuttal that in February,
1972, Hilt told her he and some other men had picked up a hitchhiker while in Las Vegas and
had decided to rob him. After they got a few cents off the guy, one of the men was kicking
him in the head, and appellant said to kill him or be done with it but quit kicking him. The
man went ahead and shot him, and the rest of them shot him a couple of times and took his
personal belongings and boots. She testified appellant stated the boots were too small, but she
could not remember his stating what happened to them. She did remember his saying that the
hitchhiker had driven the car, knew their names, and might even have known the license plate
number.
91 Nev. 654, 658 (1975) Hilt v. State
Appellant's brother, his father, and a friend all testified that appellant had expressed fear of
Eckert. Appellant's father testified regarding two phone calls, one on December 25, 1971,
from Las Vegas, in which appellant stated he had some problems, and the other on December
27, 1971, from Albuquerque, New Mexico, in which he warned that if he wound up in a
ditch, the name would be Eckert.
Appellant contends that the trial court committed error in (1) forcing the defendant to
become a witness at his trial, (2) aligning itself with the prosecution, (3) allowing the
prosecution to present the testimony of Alfa Ann Fox in state's rebuttal and (4) allowing the
prosecution to present rebuttal testimony which was, in part, cumulative from witnesses
whose names did not appear on the attachment to the information. Appellant also contends
that the prosecutor's comments made during the trial prejudiced his rights, the conduct of his
own trial counsel deprived him of a fair trial and his right to counsel, and the trial court
incorrectly denied his motion for a new trial. He further claims that the verdict of the jury was
not supported by substantial evidence and is contrary to law and weight of the evidence, the
aggregate of errors committed at the trial violates the constitutional requirements of due
process, and the reversal of Eckert's conviction by this court and Eckert's subsequent acquittal
dictate a reversal.
1. After a defense witness left the stand the trial judge stated, We will take a short recess
at this time before we begin with the next witness. I assume it is going to be the defendant,
Mr. Hilt? Appellant contends this statement denied him his fundamental right to not testify
at his trial if that were his decision.
[Headnote 1]
Both the Fifth Amendment of the United States Constitution and Article I, Section 8 of the
Nevada Constitution guarantee the fundamental right that no person shall be compelled to
testify against himself. However, there is no indication from the record that appellant chose
not to testify. Defense counsel answered affirmatively to the trial judge's question, and
appellant took the stand immediately after the short intervening recess. Under these
circumstances, failure to move to strike, move for a mistrial, assign misconduct or request an
instruction precludes appellate consideration. Clark v. State, 89 Nev. 392, 513 P.2d 1224
(1973).
2. Appellant next contends the trial judge was guilty of misconduct and denied him a fair
and impartial trial by aligning himself with the prosecution, applying different procedural
rules to the prosecution than to the defense, and commenting on the evidence.
91 Nev. 654, 659 (1975) Hilt v. State
rules to the prosecution than to the defense, and commenting on the evidence. In Kinna v.
State, 84 Nev. 642, 447 P.2d 32 (1968), this court disapproved of trial judge's comments and
conduct which are calculated to mislead jurors or prejudice a party.
[Headnote 2]
We have reviewed the instances cited by appellant and have failed to find any design of
the trial court to align itself with the prosecution. The judicial conduct of which appellant
complains did not deny him his constitutional right to a fair and impartial trial. Kinna v.
State, supra.
3. Appellant contends the testimony of Alfa Ann Fox offered in the rebuttal portion of the
state's case properly belonged within the state's case in chief because it impeached the
testimony of the state's own witness Overton and was the only evidence that could justify the
felony murder doctrine instruction.
[Headnote 3]
Overton testified in state's case in chief that Eckert forced Merkle to remove his boots and
after the shooting stated, . . . [A]ll the guy had on him was 22 cents. Alfa Ann Fox merely
corroborated Overton's testimony which had raised the fact question as to whether Merkle
was robbed. Appellant testified that he never told anyone he had picked up a hitchhiker to rob
him or that the hitchhiker could identify Eckert, Overton, and himself or his car. He testified
further that he did not know of anyone's trying on the boots and could not remember what
happened to them. Alfa Ann Fox was properly called in rebuttal to appellant's testimony.
[Headnotes 4-6]
Even if her testimony should have been more properly introduced during the prosecution's
case in chief, it is within the trial court's discretion to admit evidence during rebuttal offered
in support of a party's original cause. This court will not review that discretion in the absence
of gross abuse. Walker v. State, 89 Nev. 281, 510 P.2d 1365 (1973), citing State v. Lewis, 50
Nev. 212, 255 P. 1002 (1927). There was no specific objection to her testimony being offered
in rebuttal. Where an appellant fails to specifically object to testimony elicited during trial we
do not consider his contention as a proper assignment of error. Septer v. Warden, 91 Nev. 84,
530 P.2d 1390 (1975); Moss v. State, 88 Nev. 19, 492 P.2d 1307 (1972); Smithart v. State, 86
Nev. 925, 478 P.2d 576 (1970); Wilson v. State, 86 Nev. 320, 468 P.2d 346 (1970).
91 Nev. 654, 660 (1975) Hilt v. State
[Headnotes 7-9]
At trial defense counsel objected to Alfa Ann Fox's testimony upon the ground that she
was appellant's common-law wife under the law of the state of Kansas and any
communication to her was privileged. The Kansas Supreme Court has long recognized the
validity of common-law marriages. The elements essential to establish a common-law
marriage relationship are the capacity to marry, a present marriage agreement, and holding
out of each other as husband and wife to the public. In Re Estate of Mazlo, 505 P.2d 762
(Kan. 1973); Schrader v. Schrader, 484 P.2d 1007 (Kan. 1971); Sullivan v. Sullivan, 413 P.2d
988 (Kan. 1966); Gillaspie v. E. W. Blair Construction Co., 388 P.2d 647 (Kan. 1964). The
trial court found Alfa Ann Fox never intended to be married by common law to appellant.
Therefore, there could be no present marriage agreement or understanding they were married,
and her testimony was properly admitted.
[Headnote 10]
4. Appellant submits on appeal that the trial court erred in allowing four police officers to
testify in state's rebuttal that they saw appellant and Eckert together in the chow hall or cell
block while both were incarcerated in the Clark County jail. Appellant contends that the trial
judge should have used his power to limit the number of witnesses who testified to the same
issue. He contends further that three of the four officers' names did not appear on the
attachment to the information nor were they furnished pursuant to the motion for discovery.
However, he failed to specifically object to the number of witnesses testifying to essentially
the same issue or bring the trial court's attention to the fact that only one of the four witnesses'
names had been furnished. We will not consider these contentions as a proper assignment of
error. Septer v. Warden, supra; Moss v. State, supra; Smithart v. State, supra; Wilson v. State,
supra.
[Headnotes 11, 12]
5. Appellant cites nine instances in which he contends the prosecutor's remarks prejudiced
his rights. Of the nine only one was objected to at the trial. The failure to object to
questionable statements of the prosecutor at the time they were made precludes this court's
consideration. Septer v. Warden, supra; Walker v. State, 89 Nev. 568, 516 P.2d 739 (1973);
Sorce v. State, 88 Nev. 350, 497 P.2d 902 (1972); Bonnenfant v. State, 86 Nev. 393, 469 P.2d
401 (1970). The trial court overruled appellant's objection to the prosecutor's statement: "I
have got dogs at home I wouldn't shoot them and leave them out in the parking lot. . . ."
91 Nev. 654, 661 (1975) Hilt v. State
I have got dogs at home I wouldn't shoot them and leave them out in the parking lot. . . .
The prosecutor's remark was questionable, and improper argument is assumed to be injurious;
but where the case is as free from doubt, as here, this court will not reverse. Riley v. State, 91
Nev. 196, 533 P.2d 456 (1975), citing Pacheco v. State, 82 Nev. 172, 414 P.2d 100 (1966).
[Headnote 13]
6. The trial court's denial of appellant's motion for a new trial is cited by him as error.
Affidavits signed by appellant's friends, relatives, and acquaintances regarding threats Alfa
Ann Fox had made against appellant were produced in support of the motion. One affidavit
alleged she said, I hate you! to appellant during preliminary hearing in Justice Court.
Another concerned threats she made while visiting appellant in prison. Other affidavits
alleged she had made statements that she would pay him back.
The trial court ruled that facts alleged in the affidavits were insufficient to justify granting
a new trial, that defense counsel was well aware of the facts during trial and that some of the
statements were made to appellant himself. In Oliver v. State, 85 Nev. 418, 456 P.2d 431
(1969), this court detailed the requirements necessary for obtaining a new trial based on
newly discovered evidence and held that under NRS 176.515, which was amended in 1967 by
the legislature, such evidence must be so newly discovered that it would not with reasonable
diligence have been discovered and produced at trial. This requirement was not met by
appellant.
[Headnotes 14, 15]
7. Appellant alleges that the verdict of first degree murder is not supported by substantial
evidence and is contrary to law and weight of the evidence. If there is substantial evidence to
support the jury verdict this court will not disturb it on appeal. Azbill v. State, 88 Nev. 240,
495 P.2d 1064 (1972); Collins v. State, 87 Nev. 436, 488 P.2d 544 (1971); Williams v. State,
87 Nev. 230, 484 P.2d 1088 (1971). This record contains an abundance of evidence,
including appellant's testimony, which supports the jury's verdict.
8. After appellant's trial Edward Eckert's conviction of first degree murder was reversed,
1
and at a retrial he was acquitted. Appellant now contends he was deprived of a fair trial
because the jury was informed of Eckert's conviction.
____________________

1
Eckert v. State, 91 Nev. 183, 533 P.2d 468 (1975).
91 Nev. 654, 662 (1975) Hilt v. State
Eckert did not testify at appellant's trial, and the parties stipulated that the court inform the
jury that Eckert had been found guilty of first degree murder. In addition, Eckert's conviction
was mentioned a number of times, and his name was continually before the jurors.
Appellant's contention is not a valid assignment of error. There was never any objection to
this information being given the jurors. In fact, defense counsel mentioned the conviction
first, when in opening argument he stated he would show that Eckert had been tried in this
case and had been convicted of first degree murder.
[Headnotes 16-18]
A guilty plea or conviction of one person is not admissible against another charged with
the same offense. See State v. Riddall, 446 P.2d 517 (Ore. 1968). However, where such
evidence is introduced by defense counsel as part of the trial strategy the rule has no
application. People v. Burch, 317 N.E.2d 136 (Ill.App. 1974). Eckert's conviction tended to
support appellant's theory of his case and his testimony concerning Eckert's role in the murder
of Merkle. Appellant cannot now contend that error was committed by informing the jury of
Eckert's conviction when any information to the jury about that conviction inured to
appellant's benefit and was not prejudicial to him.
[Headnote 19]
The conviction of one accomplice or defendant is not reversible merely because another
accomplice or codefendant is subsequently acquitted. Neal v. State, 506 P.2d 936 (Okl.App.
1973).
2
. . . [W]here there is more than one defendant in a criminal action the innocence or
guilt of each must depend upon the evidence introduced against him and if convicted the lack
of evidence or the miscarriage of justice insofar as his codefendant is concerned is
immaterial. People v. Taylor, 199 P.2d 751, 754-755 (Cal.App. 1948).
[Headnote 20]
A review of the record fails to support appellant's claim that his attorney deprived him of a
fair trial and his right to counsel. Cline v. State, 90 Nev. 17, 518 P.2d 159 (1974). Appellant's
remaining contention that the aggregate of errors committed at the trial violated his
constitutional rights is without merit.
____________________

2
See also State v. Jordan, 462 P.2d 799 (Ariz. 1969); People v. Clark, 60 Cal.Rptr. 58 (Cal.App. 1967); State
v. Remington, 515 P.2d 189 (Ore.App. 1973); State v. Orange, 478 P.2d 220 (Wash. 1969).
91 Nev. 654, 663 (1975) Hilt v. State
committed at the trial violated his constitutional rights is without merit.
The judgment of the trial court is affirmed.
____________
91 Nev. 663, 663 (1975) Becker v. Walthers
JOHN C. BECKER, M.D., Appellant, v. YVONNE
C. WALTHERS, Respondent.
No. 7714
October 23, 1975 541 P.2d 523
Appeal from judgment for damages entered upon jury verdict; Second Judicial District
Court, Washoe County; William N. Foreman, Judge.
Action was brought alleging that doctor negligently injured plaintiff during course of
independent medical examination. The district court entered judgment awarding plaintiff
$30,000, and defendant appealed. The Supreme Court held that statements by plaintiff's
counsel during summation, including statement that doctor performing independent medical
examination has no right whatsoever to hurt or damage the person he's examining, were
within permissible limits of summation and were not necessarily in conflict with instruction
on standard of care.
Affirmed.
Erickson & Thorpe, of Reno, for Appellant.
Werchick & Werchick, of San Francisco, Calif., and Joseph J. Kay, Jr., of Reno, for
Respondent.
1. Trial.
In action brought alleging that doctor negligently injured plaintiff during course of independent medical
examination, statements by plaintiff's counsel during summation, including statement that doctor while
performing independent medical examination has no right whatsoever to hurt or damage the person he's
examining, were within permissible limits of summation and were not necessarily in conflict with
instruction that doctor must possess and apply knowledge and use skill and care which reasonably well
qualified specialist in same field and in same locality ordinarily would use in similar cases and
circumstances. 2.
2. Physicians and Surgeons.
Evidence in action brought alleging that doctor negligently injured plaintiff during course of independent
medical examination was sufficient to support jury award of $30,000.
OPINION
Per Curiam:
A jury found that Dr. John Becker negligently injured Yvonne Walthers during the course
of an independent medical examination and assessed her damages at $30,000. This appeal is
from the judgment entered upon jury verdict. We affirm.
The independent medical examination was conducted by Dr. Becker at the request of the
insurance carrier for a person against whom Mrs. Walthers had instituted an action for
damages arising out of an automobile collision. Her car was struck from behind and she
incurred a whiplash neck injury. She was treated conservatively by an orthopedic surgeon for
about six months, but her pain and discomfort continued to persist. Consequently, a
neurosurgeon was consulted, and after additional diagnostic procedures were completed, the
two doctors decided upon surgery which consisted of fusing cervical levels C3-4 and C4-5.
The surgery apparently was successful since her neck and arm pain disappeared. She was
discharged by her doctors on July 1, 1970.
On August 21, 1970, she went to Dr. Becker's office for the aforementioned independent
medical examination. Yvonne Walthers testified that during the course of that examination
and while conducting a neck range of motion test, Dr. Becker twisted her neck and pushed
her head downward with such force as to cause a popping or crushing sound, and severe
pain. The doctor denied the use of excessive force.
The pain persisted, and on October 14, 1970, her doctors performed another surgical
fusion at the C5-6 level. This surgery apparently was not successful, and in July 1972, a third
anterior cervical fusion was performed at the level of C6-7. The last fusion seemed to cure
her major complaints.
Her treating orthopedic surgeon testified that in his opinion the manner in which the
independent medical examination was conducted resulted in a subsequent nerve root
irritation or compression or pain which subsequently resulted in the two following
operations. Her treating neurological surgeon opined that the independent medical
examination precipitated her problems, assuming, of course, that the story of that examination
related by his patient was true.
[Headnote 1]
The major claim of error is that counsel for the plaintiff misled the jury by certain
statements he made during summation. The statements are footnoted.
1
It is urged that such
statements were contrary to the law respecting the applicable standard of care.
The court instructed the jury that the doctor . . . must possess and apply the knowledge
and use the skill and care which a reasonably well qualified specialist in the same field,
practicing in the same locality ordinarily would use in similar cases and circumstances. A
failure to do so is a form of negligence called malpractice. The propriety of the instruction is
not challenged. Thus, the jury knew the standard of care to be applied in evaluating all
evidence presented to it. We view the challenged statements to be within permissible limits of
summation and not necessarily in conflict with the instruction given.
[Headnote 2]
The remaining claim of error, that the trial court should have granted the defendant's
motion to dismiss, or his motion for a directed verdict, is denied peremptorily. There was
ample evidence which, if accepted as true, would support the verdict of the jury.
Affirmed.
____________________

1
The evidence will show that in the course of this examination, that is, an examination not by one's own
physician, but by another doctor designated by an insurance company, that doctor has absolutely no right
whatsoever to hurt or damage the person he's examining.
. . . a physician's first responsibility in doing an examination at the request of an insurance company is to do
no harm to the patient. It's not his patient and he's not doing any kind of test that has to result in harm.
. . . because the law and the facts of medicine are clear, the doctor has no right to harm at all in doing a
range-of-motion test for an insurance company.
. . . the only issue in the case [is] whether Yvonne C. Walthers' neck condition was aggravated during the
examination by Dr. Becker, because if you hurt someone in the course of such an examination, then it's not a
properly performed examination.
____________
91 Nev. 666, 666 (1975) Smith v. Recrion Corp.
GILBERT C. SMITH, Appellant, v. RECRION CORPORATION, a Delaware corporation,
and KARAT, INC., a Nevada corporation and wholly owned subsidiary of Recrion
Corporation, dba STARDUST HOTEL and ALLAN D. SACHS, Respondents.
No. 7871
October 23, 1975 541 P.2d 663
Appeal from summary judgment denying relief on claim that an abstract idea was usurped
without compensation. Eighth Judicial District Court, Clark County; Thomas J. O'Donnell,
Judge.
Hotel employee, who had suggested that recreational vehicle park be constructed and
operated as part of hotel, brought action to recover compensation on theories of express
contract, implied contract, quasi contract, common law copyright and fraud after hotel opened
a recreational vehicle park adjacent to hotel. The district court granted defendants summary
judgment, and employee appealed. The Supreme Court, Zenoff, J., held that employee was
not entitled to compensation on theories of express contract or implied contract, that even if
general manager of hotel subsequently promised employee compensation for his idea after he
suggested it, such promise would not have been enforceable, that employee's idea was not
protected under statutory or common law copyright law and that employee was not entitled to
compensation under either theory of quasi contract or theory of fraud.
Affirmed.
Jolley & Urga, of Las Vegas, for Appellant.
George Rudiak, Chartered, of Las Vegas, for Respondents.
Controverted facts must be construed in manner most favorable to appellant on appeal from a summary
judgment.
2. Contracts.
Terms of an express contract are stated in words while those of an implied contract are manifested by
conduct.
3. Contracts.
Both express and implied contracts are founded on an ascertained agreement.
4. Literary Property.
Hotel employee, who suggested that recreational vehicle park be constructed and operated as part of
hotel, was not entitled to compensation on theories of express contract or implied contract after hotel
opened a recreational vehicle park adjacent to hotel where employee's idea was
entirely unsolicited and he was not promised any compensation.
after hotel opened a recreational vehicle park adjacent to hotel where employee's idea was entirely
unsolicited and he was not promised any compensation.
Even if general manager of hotel subsequently promised hotel employee compensation for his idea after
he suggested that recreational vehicle park be constructed and operated as part of hotel, such promise
would have been unenforceable in that it was not supported by consideration.
6. Contracts.
Past consideration is the legal equivalent of no consideration.
Abstract idea cannot be protected by an express or implied contract unless the contract was made before
disclosure of the idea.
8. Copyrights; Literary Property.
Generally, abstract ideas will not be protected under statutory or common law copyright law without a
showing of concreteness and novelty; term concreteness pertains to the developmental stage of the idea,
i.e., the idea must be sufficiently developed as to constitute a protectable interest.
9. Copyrights; Literary Property.
Hotel employee's idea, which pertained to construction and operation of recreational vehicle park as part
of hotel and which had been somewhat detailed in a brochure, was not protected under statutory or
common law copyright law, in that brochure was not capable of immediate use without any additional
embellishment.
Idea must meet test of concreteness and novelty before its author is entitled to quasi contractual recovery.
Hotel employee, who had suggested that recreational vehicle park be constructed and operated as part of
hotel, was not entitled to compensation on theory of quasi contract after hotel opened recreational vehicle
park adjacent to hotel where employee's idea was entirely unsolicited.
12. Work and Labor.
One who officiously confers benefit on another is not entitled to compensation therefor.
13. Fraud.
Hotel employee, who suggested that recreational vehicle park be constructed and operated as part of
hotel, was not entitled to compensation on theory of fraud after hotel opened a recreational vehicle park
adjacent to hotel where employee's idea was unsolicited and voluntarily disclosed prior to any discussion of
compensation.
OPINION
Gilbert C. Smith, while employed as a keno writer by the Stardust Hotel in Las Vegas,
conceived that a recreational vehicle park constructed and operated as a part of the luxury
hotel would be a profitable idea.
vehicle park constructed and operated as a part of the luxury hotel would be a profitable idea.
After developing a brochure somewhat detailing his idea, he arranged for and had a meeting
with Allan Sachs, General Manager of the Stardust, later to become President. The hotel was
owned and operated by Recrion Corporation through its subsidiary Karat, Inc.
After presenting the idea to Sachs, Smith indicated that he desired to be compensated in
the form of an unspecified amount of money or by participation in the venture in an executive
capacity. Sachs expressed no interest in the proposal except to suggest that Smith contact him
at a later date. Smith's subsequent attempts to meet with Sachs were unsuccessful and
culminated in a note from Sachs' secretary stating simply that Mr. Sachs was not interested.
Two years later, the Stardust opened a recreational vehicle park known as Camperland
adjacent to the hotel. The project had been initiated and carried forward by the Stardust
Director of Public Relations, Dick Odessky.
After the opening of Camperland, asserting that the hotel had implemented his idea, Smith
made several demands for compensation; all of which were refused. Finally, Smith requested
a letter from Sachs acknowledging that the Camperland idea was his. The letter was never
forthcoming. Smith sued for money damages, claiming he was entitled to compensation upon
alternate theories of express contract, implied contract, contract implied in law (quasi
contract), common law copyright and fraud. Smith appeals from the summary judgment
granted in favor of respondents.
[Headnote 1]
Although some of the facts set forth above are not uncontroverted, they have been
construed in a manner most favorable to the appellant as required on an appeal from a
summary judgment. Franktown v. Marlette, 77 Nev. 348, 364 P.2d 1069 (1961); Abbott v.
Miller, 80 Nev. 174, 390 P.2d 429 (1964); Catrone v. 105 Corp., 82 Nev. 166, 414 P.2d 106
(1966).
[Headnotes 2-4]
1. The terms of an express contract are stated in words while those of an implied contract
are manifested by conduct. Youngman v. Nevada Irrigation District, 449 P.2d 462 (Cal.
1969). Both types of contracts are founded upon an ascertainable agreement. Horacek v.
Smith, 199 P.2d 929 (Cal. 1948). Here, there is no evidence that the parties expressly
contracted for the purchase and sale of Smith's idea. Smith only alleged that he expected
compensation, not that he was promised compensation.
promised compensation. See Alexander v. O'Neil, 267 P.2d 730 (Ariz. 1954).
In order to prevail on the theory of a contract implied in fact, the court would necessarily
have to determine that both parties intended to contract, Horacek v. Smith, supra, and that
promises were exchanged; the crucial promise being that of Sachs to compensate Smith.
There is no evidence of conduct on the part of Sachs suggesting an intention to enter into a
contract with Smith, nor any evidence from which it could be inferred that he promised to
compensate Smith. Trujillo v. Chavez, 417 P.2d 893 (N.M. 1966); Texas Co. v. Forson, 167
P.2d 877 (Okla. 1946).
There being no evidence of contractual intent or the exchange of mutual promises, express
or implied, there was no genuine issue of fact.
[Headnotes 5-7]
Prior to the time Smith and Sachs first met to discuss Smith's idea, Sachs had no
knowledge of the purpose of the meeting. Smith's idea was entirely unsolicited and he
voluntarily disclosed his idea before the subject of compensation had been discussed. Even if
Sachs subsequently promised Smith compensation, the promise would be unenforceable for
the reason that it would have been unsupported by consideration. Past consideration is the
legal equivalent to no consideration. Murray v. Lichtman, 339 F.2d 749, 752 n. 5 (D.C. Cir.
1964). An abstract idea cannot be protected by an express or implied contract unless the
contract was made before the disclosure of the idea. See e.g., Hampton v. LaSalle Hat
Company, 88 F.Supp. 153 (S.D.N.Y. 1949); Oxenhandler v. Dime Savings Bank of
Brooklyn, 227 N.Y.Supp.2d 642 (1962); Desny v. Wilder, 299 P.2d 257 (Cal. 1956).
[Headnotes 8, 9]
2. Neither statutory nor common law copyright protects against the borrowing of ideas as
distinguished from the expression of such ideas. 2 M.B. Nimmer, Nimmer on Copyright 715,
166 (1975). Generally, abstract ideas will not be protected without a showing of
concreteness and novelty. Concreteness pertains to the developmental stage of the idea,
i.e., the idea must be sufficiently developed as to constitute a protectable interest. An idea in
order to meet the test of concreteness must be ready for immediate use without any additional
embellishment. Nimmer, supra, at 750. Novelty pertains to originality and, in some
jurisdictions, the innovative character of the idea. Nimmer, supra, at 719-20. The purpose of
the test is to insure that the idea merits protection: That it is "tangible" and would not exist
but for the independent efforts of the author.
that the idea merits protection: That it is tangible and would not exist but for the
independent efforts of the author. See Belt v. Hamilton Nat. Bank, 108 F.Supp. 689 (D.C.
1952); Desny v. Wider, supra.
Smith's idea does not meet the test of concreteness. His brochure was hardly capable of
immediate use without any additional embellishment. The most that can be said is that
respondents may have gleaned the raw idea of a recreational vehicle park from Smith.
However, to develop that idea to the point where it was ripe for implementation required
extensive investigation, research and planning.
[Headnotes 10-12]
3. An idea must also meet the test of concreteness and novelty before its author is entitled
to quasi contractual recovery. Smith is denied compensation on the theory of quasi contract
for this reason and for the reason that the idea was entirely unsolicited. One who officiously
confers a benefit on another is not entitled to compensation therefor. Weitzenkorn v. Lesser,
256 P.2d 947 (Cal. 1953); Krisel v. Duran, 303 F.Supp. 573, aff'd, 424 F.2d 1367, cert.
denied, 400 U.S. 964 (S.D.N.Y. 1969); Stein v. Simpson, 230 P.2d 816 (Cal. 1951).
[Headnote 13]
4. Nor can Smith recover on the ground of fraud. As a necessary element of proving fraud
Smith must show that he was deceived by false representations to the effect that he would
receive compensation for disclosing his idea. It is clear from the record that his idea was
unsolicited and voluntarily disclosed prior to any discussion of compensation by either party.
All discussions regarding compensation were initiated by Smith. There was no fraud.
Summary judgment was appropriate. Affirmed.
____________
91 Nev. 671, 671 (1975) Stalley v. State
DOVE DOUGLAS STALLEY, Appellant, v.
No. 7781
October 23, 1975 541 P.2d 658
Appeal from judgments of conviction for rape, second degree kidnaping, and the use of a
deadly weapon in the commission of a crime; Eighth Judicial District Court, Clark County;
Keith C. Hayes, Judge.
The Supreme Court, Thompson, J., held that where police officers came upon auto
suddenly and inadvertently, officers had probable cause to believe that rape had occurred in
vehicle, that it contained items subject to seizure and that vehicle itself was evidence, vehicle
was in plain view and defendant's wife, a co-owner, could have removed it, warrantless
seizure and delayed search of automobile were constitutionally permissible, that where after
initial asportation and consummation of rape defendant resumed driving his car with victim
detained therein against her will and continued to threaten her, at that point, if not before,
separate crime was committed, and risk of further harm to victim over and above that existing
in crime of rape itself was present, so that convictions for both forcible rape and second
degree kidnaping could stand that court did not err in admitting knife into evidence, where
rape victim testified that defendant had threatened her with gun and knife similar to that
admitted, despite contention that presence of knife would confuse jury and lead it to believe
knife, rather than gun, was deadly weapon involved in charge of use of deadly weapon in
commission of crime, to wit: a gun, that for purposes of statute defining crime of use of a
deadly weapon in the commission of a crime, firearm is considered deadly weapon and proof
of its deadly capabilities is not required, and that refusal to give instruction that a charge of
rape is easily made and difficult to disprove, and therefore, the prosecuting witnesses'
testimony should be examined with caution, offered by defendant, was not error.
Affirmed.
Morgan D. Harris, Public Defender, Jerry E. Shiles and Howard Ecker, Deputy Public
Defenders, Clark County, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, Daniel M.
Seaton, Chief Deputy District Attorney, and Frank Cremen, Deputy District Attorney, Clark
Attorney, and Frank Cremen, Deputy District Attorney, Clark County, for Respondent.
Where police officers came upon automobile suddenly and inadvertently when they arrived at defendant's
home to arrest him, officers had probable cause to believe that rape had occurred in vehicle and that it
contained items subject to seizure and good reason to believe that vehicle itself was evidence, vehicle was
in plain view and defendant's wife, a co-owner, could have removed it, warrantless seizure of automobile
and delayed search and examination thereof were constitutionally permissible. NRS 193.165, 200.310,
subd. 2, 200.363.
2. Criminal Law.
Where, after initial asportation and consummation of rape, defendant resumed driving his car with victim
detained therein against her will and continued to threaten her, at that point, if not before, separate crime
was committed and risk of further harm to victim over and above that existing in crime of rape itself was
present, so that convictions for both forcible rape and second degree kidnaping could stand. NRS
200.310, subd. 2, 200.363.
3. Criminal Law.
Court did not err in admitting knife into evidence, where rape victim testified that defendant had
threatened her with gun and knife similar to that admitted, despite contention that presence of knife would
confuse jury and lead it to believe knife rather than gun was deadly weapon involved in other charge of use
of a deadly weapon in the commission of a crime, to wit: a gun. NRS 193.165.
4. Weapons.
In prosecution for use of a deadly weapon in the commission of a crime, positive identification of object
used to threaten victim is not required, and it is sufficient if it fits general description given by victim.
NRS 193.165.
5. Weapons.
For purposes of statute defining crime of use of a deadly weapon in the commission of a crime, firearm is
considered deadly weapon and proof of its deadly capabilities is not required. NRS 193.165.
6. Criminal Law.
Refusal to give instruction that a charge of rape is easily made and difficult to disprove, and therefore,
the prosecuting witnesses' testimony should be examined with caution, offered by defendant charged with
forcible rape was not error. NRS 200.363.
OPINION
This appeal is from judgments entered upon jury verdicts finding Dove Douglas Stalley
guilty of forcible rape (NRS 200.363), second degree kidnaping (NRS 200.310(2)), and the
use of a deadly weapon in the commission of a crime {NRS 193.165), for which he has
been sentenced to serve respectively the terms of life with the possibility of parole,
fifteen years, and life with the possibility of parole.
the use of a deadly weapon in the commission of a crime (NRS 193.165), for which he has
been sentenced to serve respectively the terms of life with the possibility of parole, fifteen
years, and life with the possibility of parole. The sentences are to run consecutively. Six
claims of error are asserted. In our view, none has merit and we affirm each conviction.
On December 14, 1973, the female victim, Gladys Tremaine, purchased a used car from
Freddie's Auto Brokers where Stalley was employed as chief mechanic. About two hours later
the car ceased to function and she telephoned Freddie's Auto Brokers for assistance. Soon
thereafter Stalley arrived, but was unable to start the car. Stalley was driving a white Chrysler
automobile, and offered to take Gladys home. She accepted his offer and advised Stalley of
her destination. Stalley, however, drove in a different direction, and when she asked him to
return to the proper course or she would jump from the car, he said, Jump at 35 miles an
hour or stay and get balled. He pointed a small calibre revolver at her and pressed it against
her temple. Later, he pointed a knife at her and demanded that she undress. He stopped the
car and sexual intercourse occurred. She then unsuccessfully attempted to escape. Stalley
resumed driving and continued to threaten her. She somehow managed to put on her coat and
shoes, and when the car slowed for a turn, jumped therefrom, and ran and hid in the desert
until Stalley had left the scene. She returned to the road and beckoned a passing car, which
stopped, and the driver took her to the Las Vegas Police Department where she reported the
occurrence, and then was taken to the hospital. She was in a highly emotional state. Her
knees, abdomen and arms were abrased and bruised.
Because of the victim's description of Stalley, his Chrysler automobile, and place of
employment, the police arrived at Stalley's home the following day. Stalley exited his home
towards the white Chrysler car and was placed under arrest for rape. The car at that moment
was occupied by Mrs. Stalley, a co-owner. The police impounded the car as evidence and
removed it to the impound lot for later processing by the identification bureau.
The next day the car was photographed, checked for fingerprints, weapons, clothing,
semen stains, and any other item of evidence that may bear relevance to the crime for which
Stalley had been arrested. A search warrant was never obtained.
In the rear seat of the car was a trench coat, in the pocket of which was a knife. The victim
testified at trial that Stalley was wearing a trench coat during their ride and that the knife was
similar to the one he had used to threaten her.
similar to the one he had used to threaten her. The coat and knife were received in evidence.
Although the police search of the car did not produce a small calibre revolver, a bartender
testified that he had evicted Stalley from his bar for brandishing a small calibre revolver. This
happened within several hours after the ride with Gladys Tremaine. We turn to discuss the
assigned errors.
[Headnote 1]
1. Stalley argues that the knife taken from the pocket of the trench coat on the rear seat of
the white Chrysler automobile was the product of a illegal search and should not have been
received in evidence. Although the search at the police impound lot sometime after the arrest
cannot be justified as a search incident to arrest [Preston v. United States, 376 U.S. 364
(1964); Thurlow v. State, 81 Nev. 510, 406 P.2d 918 (1965)], it did not, in our view, offend
constitutional proscriptions.
The officers came upon the automobile suddenly and inadvertently when they arrived at
Stalley's home to place him under arrest. At that moment, they had probable cause to believe
that the rape had occurred in that vehicle and that it contained items subject to seizure.
Indeed, the officers had good reason to believe that the automobile itself was evidence.
Moreover, it was in plain view and could have been removed by Stalley's wife, a co-owner.
These circumstances satisfy the criteria of Carroll v. United States, 267 U.S. 132 (1925), and
Chambers v. Maroney, 399 U.S. 42 (1970), which approved seizure of the automobiles
involved and delayed searches at the station. Cf. Coolidge v. New Hampshire, 403 U.S. 443
(1971), in which there was no exigency when the initial seizure occurred. We hold that the
seizure of the automobile and the delayed search and examination thereof was
constitutionally permissible. Wright v. State, 88 Nev. 460, 499 P.2d 1216 (1972); Staab v.
State, 90 Nev. 347, 526 P.2d 338 (1974).
[Headnote 2]
2. It is contended that the conviction for second degree kidnaping must be annulled since
the kidnaping was but a subsidiary incident to the crime of rape. In pressing this point the
appellant relies mainly upon the New York case of People v. Levy, 204 N.E.2d 842 (1965),
and the California decision in People v. Daniels, 459 P.2d 225 (1969). Both cases involved
convictions for kidnaping and robbery. The circumstances in Levy led the court to conclude
that the kidnaping involved a contemporaneous robbery and, therefore, was not to be
considered a separate crime.
contemporaneous robbery and, therefore, was not to be considered a separate crime.
Consequently, the kidnaping conviction was set aside. And, in Daniels the court ruled that if
the movements of the victim are merely incidental to the commission of the robbery and do
not substantially increase the risk of harm over and above that necessarily present in the crime
of robbery itself, the kidnaping conviction cannot stand.
NRS 200.310 (2) defines second degree kidnaping.
1
As noted in Jacobson v. State, 89
Nev. 197, 510 P.2d 856 (1973), The statute is quite broad, and designates alternative
circumstances which fall within its sweep. The crime is complete, for example, whenever it is
shown that a person willfully and without lawful authority seizes another with the intent to
keep him secretly imprisoned, or to detain him against his will. The proof of either alternative
will support the charge. Id. at 202, 203.
In the case before us the rape and kidnaping were not contemporaneous in the sense
expressed by the New York court in People v. Levy, supra. Neither may it be stated that
movements of the victim were merely incidental to the commission of the rape and did not
substantially increase the risk of harm above that necessarily present in the crime of rape
itself, the California test enunciated in People v. Daniels, supra. Here, after the initial
asportation and consummation of rape, Stalley resumed driving his car with the victim
detained therein against her will and continued to threaten her. At that point, if not before (a
matter on which we express no opinion) a separate crime was committed, and the risk of
further harm to the victim over and above that existing in the crime of rape itself was present.
The conviction for second degree kidnaping may stand.
[Headnote 3]
3. It is claimed that prejudicial error occurred when the court received in evidence the
knife found in the trench coat pocket, since one charge in the complaint was the use of a
deadly weapon in the commission of a crime to-wit: a gun. Argument is offered that the
presence of the knife in evidence would confuse the jury and lead it to believe that the knife
was the deadly weapon involved in that particular charge rather than the gun as alleged.
____________________

1
NRS 200.310(2): Every person who shall willfully and without authority of law seize, inveigle, take, carry
away or kidnap another person with the intent to keep such person secretly imprisoned within the state, or for the
purpose of conveying such person out of the state without authority of law, or in any manner held to service or
detained against his will, shall be deemed guilty of kidnaping in the second degree.
[Headnote 4]
The victim testified that Stalley had threatened her with a knife and with a gun, and that
the knife found in the trench coat pocket was similar to the one used to threaten her. Positive
identification of the object used is not required. Carter v. State, 84 Nev. 592, 446 P.2d 165
(1968). It is sufficient if the knife fits the general description given by the victim. Lofton v.
People, 450 P.2d 638 (Colo. 1969).
The knife was corroborative of the victim's testimony and relevant to the charges of
forcible rape and kidnaping. The court did not err.
[Headnote 5]
4. It is contended that the gun used to threaten the victim was not shown to be a deadly
weapon, and that the conviction for use of a deadly weapon in the commission of a crime
cannot stand.
The wording of the statute under which he was charged refutes this contention. Any
person who uses a firearm or other deadly weapon in the commission of a crime shall be
punished. . . . NRS 193.165. By the words firearm or other deadly weapon, the legislature
has declared that a firearm is a deadly weapon within the contemplation of the statute. Proof
of its deadly capabilities is not required. To require such proof would frustrate the legislative
purpose to deter crime by providing a greater penalty when a firearm is used in the
commission of a public offense.
2

[Headnote 6]
5. The trial court refused a cautionary instruction offered on behalf of the accused, and
such refusal is assigned as reversible error. The instruction was that a charge of rape is easily
made and difficult to disprove, and therefore, the prosecuting witnesses' testimony should be
examined with caution. The same contention was made and, by this court rejected in May v.
State, 89 Nev. 277, 510 P.2d 1368 (1973). We perceive no reason to depart from our decision
in that case.
6. We deny out-of-hand the last assigned error challenging the competency of defense
counsel and his handling of the trial.
Each conviction is affirmed.
____________________

2
NRS 193.165 is not challenged on constitutional grounds and we express no opinion in this regard.
____________
91 Nev. 677, 677 (1975) Rouse v. State
MICHAEL ALLEN ROUSE, Appellant, v. THE STATE
No. 7829
October 24, 1975 541 P.2d 643
Appeal from judgment of the First Judicial District Court, Douglas County; Noel E.
Manoukian, Judge.
Defendant was convicted on his guilty plea in the district court of Possession of marijuana,
was placed on probation for two years, with the first 50 days of such probation to be spent in
county jail, and defendant appealed. The Supreme Court held that where the State fulfilled its
obligation under plea bargain to make no sentence recommendation, defendant's subjective
expectation that he would receive only probation without jail time and deferred sentence,
based upon advice of his attorney, did not entitle him to withdraw his guilty plea.
Affirmed.
Lohse and Lohse, Chartered, Reno, for Appellant.
Robert List, Attorney General, Carson City; Howard D. McKibben, District Attorney,
Douglas County, for Respondent.
1. Criminal Law.
Where State fulfilled its obligation under plea bargain to make no sentence recommendation, defendant's
subjective expectation that he would receive only probation without jail time and deferred sentence, based
upon advice of his attorney, did not entitle him to withdraw his guilty plea after he received sentence which
included jail time. NRS 176.165.
2. Criminal Law.
Mere subjective belief of defendant as to potential sentence, or hope of leniency, unsupported by promise
from State or indication by court, is insufficient to invalidate guilty plea as involuntary or unknowing.
3. Criminal Law.
Trial court's refusal to give defendant convicted of possession of marijuana a deferred sentence was not
abuse of discretion, notwithstanding contention that court improperly rested its decision on prior arrest for
drug-related charge which did not result in conviction. NRS 453.336, subd. 6.
OPINION
Per Curiam:
[Headnote 1]
On April 11, 1974, Michael Allen Rouse pled guilty to possession of a controlled
substance, marijuana. He was sentenced to a 4-year term in the Nevada State Prison. The
execution of his sentence was suspended, and Rouse was placed on probation for 2 years.1
After sentencing, Rouse moved to withdraw his plea under the provisions of NRS 176.165,
claiming that his plea was involuntary in that it was entered on the advice of his attorney
that he would probably be given probation without jail time and a deferred sentence, as
provided in NRS 453.336, subsection 6.2 Rouse's attorney frankly admits that he did so
advise Rouse.
91 Nev. 677, 678 (1975) Rouse v. State
on probation for 2 years.
1
After sentencing, Rouse moved to withdraw his plea under the
provisions of NRS 176.165, claiming that his plea was involuntary in that it was entered on
the advice of his attorney that he would probably be given probation without jail time and a
deferred sentence, as provided in NRS 453.336, subsection 6.
2
Rouse's attorney frankly
admits that he did so advise Rouse. After a hearing on the motion, the court below denied it;
hence, this appeal.
In Warden v. Craven, 91 Nev. 485, 537 P.2d 1198 (1975), this court affirmed a decision of
a lower court permitting the respondents to withdraw their pleas of guilty to multiple felony
offenses. In that case, the district judge had predicated his findings that the defendants' pleas
were involuntary on the grounds that they were induced by an inference of probation supplied
by their attorney. We felt constrained to affirm that ruling because we could not say that it
amounted to a abuse of judicial discretion. In so holding, however, we admonished that we
did not intend to suggest that a guilty plea would be rendered involuntary per se because of an
alleged subjective reliance on counsel's innuendo regarding a possible sentence. Rouse's
argument on this appeal falls directly within the ambit of that caveat.
In the instant case, Rouse's guilty plea was entered as a result of plea negotiations between
the parties, wherein Rouse agreed to plead guilty on the promise that the prosecution would
make no suggestion or recommendation to the court regarding sentencing. The record shows
that the agreement was fully disclosed to the trial judge in open court and that the parties
specifically stated that no other promise or consideration had been offered or accepted in
connection with Rouse's plea. Rouse himself corroborated this testimony by acknowledging
that he understood the bargain as described to incorporate the full extent of the agreement
between the parties and that no other promise or threat had been made as an inducement to
his plea of guilty.
____________________

1
As a condition of probation, the sentence provided that Rouse would have to spend the first 50 days in the
Douglas County Jail.

2
6. Whenever any person who has not previously been convicted of any offense under the provisions of
NRS 453.011 to 453.551, inclusive, or under any statute of the United States or of any state relating to narcotic
drugs, marihuana or stimulant, depressant or hallucinogenic drugs pleads guilty to or is found guilty of
possession of a controlled substance under this section, the court, without entering a judgment of guilt and with
the consent of the accused, may defer further proceedings and place him on probation upon terms and
conditions.
91 Nev. 677, 679 (1975) Rouse v. State
[Headnote 2]
Rouse, however, has attempted to explain the contradiction between this testimony and his
present position by characterizing the taking of his plea as merely a pro forma routine
colloquy entered into the record solely for the sake of legal technicality, but without any real
substance in fact. We reject such a argument as entirely meritless. In Bryan v. United States,
492 F.2d 775 (5th Cir. 1974), the Third Circuit Court of Appeals observed that nullification
of a plea on grounds similar to the one advanced in the instant case would reduce solemn
legal proceedings to a charade, which would go far to undermine decisional finality, which is
necessary to the effective administration of justice. We agree. Were a plea to be considered
involuntary because of subjective reliance on advice of counsel regarding a potential
sentence, no plea would be immune from attack. Consequently, we hold that mere subjective
belief of a defendant as to potential sentence, or hope of leniency, unsupported by ay promise
from the State or indication by the court, is insufficient to invalidate a guilty plea as
involuntary or unknowing. See Maggio v. United States, 514 F.2d 80 (5th Cir. 1975); People
v. Selikoff, 360 N.Y.S.2d 623 (1974); cf. Tellis v. State, 84 Nev. 140, 437 P.2d 69 (1968).
[Headnote 3]
Rouse additionally contends that the trial court abused its discretion in refusing to give
him a deferred sentence under the provisions of NRS 453.336, subsection 6, supra. We
disagree. The thrust of Rouse's argument is that, in refusing to so consider him, the court
rested its decision on a prior arrest for a drug-related charge. From this, Rouse has concluded
that the trial court considered his arrest tantamount to conviction, contrary to the intent of the
statute, which precludes its application only where there has been a prior conviction. This
argument, however, overlooks the statement of the trial judge that, in determining Rouse's
sentence, he carefully considered the appropriateness of accepting a deferred guilty plea under
NRS 453.336, subsection 6. Were the judge of the opinion that a prior arrest necessarily
precluded application of the statute, he need not have carefully considered the matter. Far
from finding an abuse, we find the trial court to have exercised its discretion in a most careful
and considerate manner.
Affirmed.
____________
................, a Minor, Appellant, v. THE
No. 7867
October 30, 1975 541 P.2d 911
Appeal from an adjudication of delinquency, Eighth Judicial District Court, Clark County;
John F. Mendoza, Judge.
The Supreme Court held that evidence supported adjudication of delinquency of juvenile
found guilty of attempted rape.
Affirmed.
Morgan D. Harris, Public Defender, and Thomas L. Leen, Deputy Public Defender, Clark
Infants.
Evidence supported adjudication of delinquency of juvenile found guilty of attempted rape.
OPINION
Per Curiam:
Appellant, charged with rape, was found guilty of attempted rape after a contested hearing
before a juvenile referee.
The juvenile judge adopted the finding and adjudicated appellant a delinquent; and, in this
appeal the only contention urges there was insufficient evidence to sustain the adjudication.
We reject the contention.
The prosecutrix, appellant's schoolmate, testified: (1) appellant grabbed her purse and
pulled her behind a building at the high school they attended; (2) she was forced to kiss and
hug appellant who continually beat her about the head and face, at the same time poking her
in the chest with a sharp stick; (3) appellant forced her to have intercourse; and, (4) he
threatened to severely beat her if she reported the incident. Additionally, the victim
immediately reported the incident to school authorities; and, subsequently, to her mother.
Testimony of the mother also showed the victim (1) had a bruise on her chest and, (2)
suffered from facial swelling.
Cross-examination raised some question as to whether or not penetration was actually
achieved; however, there is ample evidence to show it was attempted. In our view, the
recited circumstances support the adjudication.
In our view, the recited circumstances support the adjudication. See Sanders v. State, 90
Nev. 433, 529 P.2d 206 (1974), where we ruled that when a judgment is supported by
substantial evidence, as in this case, it will neither be disturbed nor set aside.
Affirmed.
____________
FRANK LUCKETT, Appellant, v. WARDEN,
No. 8453
October 30, 1975 541 P.2d 910
Appeal from order denying petition for post-conviction relief, Second Judicial District
Court, Washoe County; Roy L. Torvinen, Judge.
The Supreme Court held that where petitioner failed to explain why issues had not been
previously raised on direct appeal and in petitioner's previous post-conviction petition,
briefing and hearing on present petition was unwarranted.
Affirmed.
Horace R. Goff, State Public Defender, and David Mathews, Special Deputy Public
Kathleen Wall, Deputy District Attorney, Washoe County, for Respondent.
Criminal Law.
Where petitioner failed to explain why issues raised in present petition seeking post-conviction relief
had not been previously raised on direct appeal and in previous post-conviction petition, Supreme Court,
sua sponte, concluded that briefing and hearing on present petition was unwarranted.
OPINION
Per Curiam:
On January 8, 1974, a jury found Frank Luckett guilty of grand larceny, a felony.
Thereafter, on February 8, 1974, he was sentenced to a six-year term in the Nevada State
Prison. His belated in pro per appeal from the judgment of conviction was dismissedfor
want of jurisdictionon April 19, 1974, by an unpublished order in case No.
was dismissedfor want of jurisdictionon April 19, 1974, by an unpublished order in case
No. 7688.
Some six (6) months later, in October 1974, Luckett, seeking to obtain his release from
confinement, petitioned for habeas corpus (post-conviction) relief in the First Judicial
District, Carson City. An order denying the requested relief was entered in December 1974,
and the timely appeal from that order was affirmed by this court. See Luckett v. Warden, 91
Nev. 541, 539 P.2d 1219 (1975).
On February 10, 1975, while his appeal from the adverse order of the First Judicial District
Court was in progress, Luckett filed another petition for post-conviction relief, this time in
the Second Judicial District, Washoe County. Relief was denied and Luckett has now lodged
this, his third, appeal.
From the record, and the above recitations, we, sua sponte, conclude that briefing and
hearing is unwarranted. This court has consistently refused to consider issues raised in
successive applications for post-conviction relief where, as here, a petitioner failed to explain
why the issues were not previously raised. See Rogers v. Warden, 86 Nev. 359, 468 P.2d 993
(1970). Accord: Johnson v. Warden, 89 Nev. 476, 515 P.2d 63 (1973); Junior v. Warden, 91
Nev. 111, 532 P.2d 1037 (1975).
Affirmed.
____________
91 Nev. 682, 682 (1975) Mathews v. State
WILLIAM TERRELL MATHEWS, Appellant, v.
No. 8018
October 30, 1975 541 P.2d 906
On motion to be relieved as counsel for appellant.
Defendant was convicted and sentenced in district court and he appealed. When
defendant's financial resources became depleted and he was unable to continue retaining
private counsel for the appeal, the office of state public defender was appointed to continue
the appeal. On the motion of the state public defender to be relieved of the appointment, the
Supreme Court held that the public defender had no duty or responsibility to represent
defendant in the direct appeal from the judgment of conviction.
Motion granted.
Horace R. Goff, State Public Defender, and J. Thomas Susich, Deputy Public Defender,
Carson City, for Movant.
Criminal Law.
State public defender had no duty or responsibility to represent defendant who had originally been
represented by private counsel on direct appeal from his conviction but whose financial resources had
become depleted; state public defender would be relieved as counsel and county public defender
appointed to represent defendant in his stead. NRS 7.260, 171.188, 180.010 et seq., 180.060, subd.
3, 260.101 et seq., 260.050, subd. 2.
OPINION
Per Curiam:
Pursuant to a judgment of conviction and sentence in the Eighth Judicial District, Clark
County, William Terrell Mathews is incarcerated in the Nevada State Prison. An appeal from
the judgment is in progress.
Mathews had been represented by private counsel during trial, and in the early stages of
the appeal; however, when Mathews' financial resources were depleted, the office of the state
public defender was appointed to continue the appeal.
The matter is before us at this time on motion of the State Public Defender to be relieved
of the appointment because, he contends, representation of Mathews, in this instance, is not
one of his statutory duties. We agree.
The office of the state public defender was created to provide competent legal
representation for eligible indigents in the Nevada counties which did not have their own
public defender system. See Stats. of Nev. 1971, ch. 622, p. 1410 et seq., which has been
codified as NRS ch. 180.
The duties of the state public defender are delineated in NRS 180.060; and, 3 of that
statute contemplates, among other things, that, in counties which have a public defender, the
state public defender is only required to prepare and present appeals in post-conviction
proceedings.
The duties of county public defenders are set forth in NRS 260.050, and 2 of that statute
contemplates that county public defenders shall represent all eligible indigents at all stages of
all appeals, except the post-conviction proceedings specified in NRS 180.060(3). Under NRS
ch. 260
Under NRS ch. 260, when an eligible indigent takes an appeal from a judgment of
conviction in counties having a public defender system, the appeal must be handled by the
county public defender; except, of course, in those cases where the county defender cannot
act or is otherwise disqualified; and, in such cases, private counsel should be appointed,
pursuant to NRS 171.188 and, at the appropriate time, be compensated, as authorized by NRS
7.260.
Accordingly, we conclude the State Public Defender has no duty or responsibility to
represent William Terrell Mathews in this direct appeal from the judgment of conviction. The
motion to be relieved as counsel is granted; and, the Clark County Public Defender is hereby
appointed to represent William Terrell Mathews in this appeal. Said counsel may, on or
before November 24, 1975, serve and file a supplemental and/or reply brief. NRAP 2.
It is so ORDERED.
____________
91 Nev. 684, 684 (1975) Country Development Corp. v. Elder
COUNTRY DEVELOPMENT CORP., a Nevada Corporation,
Appellant, v. VIRGINIA C. ELDER, Respondent.
No. 7899
October 30, 1975 541 P.2d 1097
Appeal from judgment; Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
From judgment of the district court compelling corporation to specifically perform
agreement to issue 50 percent of authorized capital stock of corporation to certain person,
corporation appealed. The Supreme Court held that evidence sufficiently supported findings
favorable to respondent with regard to the agreement, the consideration therefor, the authority
of corporation's president to make such agreement, or its ratification by corporation.
Affirmed.
Eli Grubic, of Reno, and Lionel Sawyer Collins & Wartman, of Las Vegas, for Appellant.
Vargas, Bartlett & Dixon, and Frederic R. Starich, of Reno, for Respondent. Specific
Performance.
91 Nev. 684, 685 (1975) Country Development Corp. v. Elder
Specific Performance.
In action in which judgment was entered compelling corporation to specifically perform agreement to
issue 50 percent of authorized capital stock of corporation to certain person, evidence sufficiently
supported findings favorable to such person with regard to the agreement, the consideration therefor, the
authority of corporation's president to make such agreement, or its ratification by corporation.
OPINION
Per Curiam:
The district court entered judgment compelling Country Development Corp. to specifically
perform an agreement made on its behalf by its president, Edward R. Kertz, with Virginia C.
Elder to issue to Virginia C. Elder 50 percent of the authorized capital stock of the
corporation and vesting her with all rights and incidents of stock ownership.
We perceive no legal errors. Trial issues concerning the agreement, the consideration
therefor, the authority of Kertz to make it, or its ratification by the corporation, were issues of
fact which the court resolved in favor of the respondent on conflicting evidence.
Affirmed.
____________
91 Nev. 685, 685 (1975) Shugart v. Shugart
JAMES W. SHUGART, Appellant, v. JOYCE
A. SHUGART, Respondent.
No. 7914
October 30, 1975 541 P.2d 1101
Appeal from judgment of divorce; Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
The district court made award of alimony and child support and distribution of property in
divorce action, and husband appealed. The Supreme Court held that where husband did not
submit to trial court for settlement and approval his statement of evidence in unreported
divorce trial, the statement was not part of the record on appeal and could not be considered
by the Supreme Court in husband's appeal.
Affirmed.
[Rehearing denied November 21, 1975] Lorin D.
91 Nev. 685, 686 (1975) Shugart v. Shugart
Lorin D. Parraguirre, of Las Vegas, for Appellant.
Michael L. Hines, of Las Vegas, for Respondent.
Divorce.
Where husband did not submit to trial court for settlement and approval his statement of evidence in
unreported divorce trial, the statement was not part of the record on appeal and could not be considered
by the Supreme Court in husband's appeal from judgment awarding wife alimony and child support.
NRAP 10(c).
OPINION
Per Curiam:
This appeal from a judgment divorcing the parties challenges the awards of alimony and
child support, and the property distribution as well. Since the trial was not reported, the
appellant attempted to utilize the provisions of NRAP 10(c).
1
However, the statement of the
evidence or proceedings was not submitted to the district court for settlement and approval
and, therefore, may not be considered as a part of the record on appeal. United States v.
Chesapeake and Ohio Railway Co., 281 F.2d 698, 701 (1960). Consequently, we are wholly
unable to evaluate the assigned errors.
Affirmed.
____________________

1
NRAP 10(c): . . . Thereupon the statement and any objections or proposed amendments shall be submitted
to the district court for settlement and approval and as settled and approved shall be included by the clerk of the
district court in the record on appeal.
____________
91 Nev. 686, 686 (1975) Nevada Industrial Comm'n v. Williams
NEVADA INDUSTRIAL COMMISSION, Appellant, v.
VERNON L. WILLIAMS, Respondent.
No. 7830
October 30, 1975 541 P.2d 905
Appeal from an order of the district court directing the issuance of a peremptory writ of
mandamus; Eighth Judicial District Court, Clark County; Keith C. Hayes, Judge.
Disabled employee sought workmen's compensation for his ailment of respiratory deficit.
Following order for rehearing, employee's claim was denied by the Industrial Commission
and employee filed petition for writ of mandamus. The district court directed that
peremptory writ of mandamus issue commanding Commission to pay employee
compensation, and the Commission appealed. The Supreme Court, Thompson, J., held that
district court was precluded from substituting its view of evidence for that of Commission.
court directed that peremptory writ of mandamus issue commanding Commission to pay
employee compensation, and the Commission appealed. The Supreme Court, Thompson, J.,
held that district court was precluded from substituting its view of evidence for that of
Commission.
Reversed.
Frank A. King, of Las Vegas, for Appellant.
Charles L. Kellar, of Las Vegas, for Respondent.
1. Mandamus.
Mandamus was not proper remedy for review of Industrial Commission's determination that disabled
employee's injury was not related to his employment. NRS 34.170.
2. Mandamus.
Extraordinary proceeding of mandamus is not available when there exists a plain, speedy and adequate
remedy at law. NRS 34.170.
Where Industrial Commission determined, upon substantial evidence, that claimant's disability of
respiratory deficit was not related to his employment as room service waiter at hotel, district court was
precluded from substituting its view of evidence for that of Commission. NRS 233B.140, subd. 5,
616.543, 617.165.
OPINION
Vernon Williams is partially disabled by reason of a respiratory deficit, cause unknown.
Through a claim filed with the Nevada Industrial Commission he sought compensation for his
ailment, alleging that on February 6, 1972, while employed as a room service waiter at the
Desert Inn Hotel, Las Vegas, he inhaled a concentrated amount of poisonous gas. An
investigator for the Commission interviewed coemployees on duty that day and none was
found to have experienced any unusual odor or gas, and the area of the hotel in which the
incident is alleged to have occurred was found to have been properly ventilated.
Consequently, his claim was denied for failure to show an injury arising out of and in the
course of his employment.
1
Williams received a claims level hearing on May 24, 1972, and
a Commission level hearing on November 10, 1972.
____________________

1
NRS 617.440(3): The disease need not have been foreseen or expected, but after its contraction must
appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a
natural consequence.
Williams received a claims level hearing on May 24, 1972, and a Commission level
hearing on November 10, 1972. His claim, in each instance, was denied for failure to
establish that his respiratory deficit was in any respect related to his employment at the Desert
Inn. Williams then filed a petition for review with the district court. That court ordered a
rehearing before the Commission to consider new evidence which Williams desired to
offer. NRS 233B.140. The Commission once more denied his claim for the same reason as
before.
On March 8, 1974, Williams filed a petition for a writ of mandamus with the district court.
The entire file concerning his claim and the transcripts of hearings thereon were submitted to
the court. An evidentiary hearing was not held. After reviewing the file and transcripts, the
court directed that a peremptory writ of mandamus issue commanding the Commission to pay
Williams compensation from the date of his claimed injury, attorneys' fees, and other
specified relief. From this order the Commission has appealed.
[Headnotes 1, 2]
Mandamus is not the proper remedy. State v. Nevada Ind. Commission, 40 Nev. 220, 161
P. 516 (1916). That extraordinary proceeding is not available when there exists a plain,
speedy and adequate remedy at law. NRS 34.170.
Before July 1, 1973, it was permissible for an employee to commence an action against the
Commission in the district court to challenge its handling of his claim, and the court had the
power to hear and consider evidence and make its own independent findings and decision.
Nevada Indus. Comm'n v. Strange, 84 Nev. 153, 437 P.2d 873 (1968); Dahlquist v. Nevada
Ind. Com., 46 Nev. 107, 207 P. 1104 (1922).
On July 1, 1973, NRS 616.543 and NRS 617.165 became effective. Each provides that the
Administrative Procedure Act shall govern judicial review of rulings of the Nevada Industrial
Commission. That Act, among other things, provides that court review shall be confined to
the record (NRS 233B.140(4)) and precludes the court from substituting its judgment for that
of the agency as to the weight of the evidence on questions of fact (NRS 233B.140(5)).
[Headnote 3]
If we were to consider the petition for a writ of mandamus filed herein as a petition for
review within the contemplation of NRS 233B, we would be compelled to rule that the
district court erred in failing to honor the decision of the Commission. Clearly, the question
of whether the injury or disease was related to the claimant's employment was factual in
nature.
related to the claimant's employment was factual in nature. That issue was resolved against
the claimant upon substantial evidence. Consequently, the court was precluded from
substituting its view of the evidence for that of the Commission. NRS 233B.140(5).
2

Reversed, and the ruling of the Nevada Industrial Commission is reinstated.
____________________

2
The constitutionality of NRS 233B concerning judicial review of rulings of the Nevada Industrial
Commission is not questioned in this case and we express no opinion in that regard.
____________
91 Nev. 689, 689 (1975) Rusk v. Whitmire
The Honorable ROBERT F. RUSK, ROY PAGNI, GERALD GROW, DWIGHT NELSON
and DICK SCOTT, The Board of County Commissioners of Washoe County, Nevada;
WASHOE COUNTY, NEVADA; H. K. BROWN, Washoe County Clerk; DON QUESTA,
Washoe County Auditor; The Honorable ROBERT J. GALLI, Sheriff of Washoe County,
Nevada, Appellants, v. WILLIAM WHITMIRE, Respondent.
No. 7734
October 30, 1975 541 P.2d 1097
Appeal from a judgment entered in the Second Judicial District Court, Washoe County;
John W. Barrett, Judge.
Suit was brought by former deputy sheriff alleging entitlement to monetary compensation
for hours worked in excess of eight-hour work day. The district court found deputy sheriff to
be entitled to $1,723.56 at straight time rate for 357 hours of overtime, and appeal was
taken. The Supreme Court held that where there was no statutory or other authority for
payment of overtime compensation to deputy sheriff, no valid contract for such, and no
applicable collective bargaining agreement, deputy sheriff was not entitled to overtime
compensation.
Reversed.
Larry R. Hicks, District Attorney, and Larry D. Lessley, Deputy District Attorney, Washoe
County, for Appellants.
Grellman & Polaha, of Reno, for Respondent.
Sheriffs and Constables.
Where there was no statutory or other authority for payment of overtime compensation to deputy
sheriff, no valid contract for such, and no applicable collective bargaining agreement, deputy sheriff was
not entitled to monetary compensation for hours worked in excess of eight-hour work day. NRS
281.100.
OPINION
Per Curiam:
Respondent was employed as a deputy sheriff by the sheriff's office of Washoe County,
Nevada, on April 12, 1971, and resigned from that position on November 30, 1972. It was
stipulated that during that period of time he worked 357 hours of overtime for which he had
not received compensatory time off.
At the time of respondent's resignation neither the statutes of Nevada, the ordinances of
Washoe County, nor the rules of the sheriff's office contained any provision for payment of
compensation to deputy sheriffs of that county for hours worked in excess of those
prescribed.
There was no agreement to pay the respondent any extra compensation and he so testified.
1
While it had been the practice to award compensatory time off to deputy sheriffs when they
had worked overtime, if approved by their superior officers, such practice was entirely
voluntary and gratuitous within the sheriff's office and not in any way compelled.
After resigning, respondent filed a claim with Washoe County demanding payment for
extra compensation for hours worked in excess of the eight-hour work day. When that claim
was denied he filed suit alleging entitlement to monetary compensation. The trial court sitting
without a jury found respondent to be entitled to $1,723.56 at straight time rate for 357
hours of overtime and accordingly entered judgment from which this appeal has been taken.
Reliance by the district court and respondent on Dunn v. City of Carson City, 88 Nev. 451,
499 P.2d 653 (1972), is misplaced. In Dunn this court reversed the judgment of the lower
court dismissing a claim for declaratory relief on the issue of compensation for overtime.
There a city ordinance governing the employment of Carson City police officers specifically
authorized payment for overtime, and we held that cognizable causes of action were
stated by appellants under that ordinance for work already completed.
____________________

1
Question by Lew W. Carnaham, Deputy District Attorney of Washoe County, Nevada: You were never
told that you would not be paid?
Answer by William Whitmire, appellant: I was aware that I would not be paid in cash.
specifically authorized payment for overtime, and we held that cognizable causes of action
were stated by appellants under that ordinance for work already completed. Likewise,
respondent's reliance on Mullen v. Clark County, 89 Nev. 308, 511 P.2d 1036 (1973), is
misdirected. The question in Mullen was whether the Clark County Director of Juvenile
Court Services was an official or an employee. Here there is no dispute about
respondent's status as a deputy sheriff who was specifically excluded from the limitations and
restrictions delineated in NRS 281.100
2
concerning hours of employment.
The fact that normal hours of work are established and compensating time off is provided
for work beyond those hours does not, of itself, give the employee a right to payment for
overtime.
____________________

2
NRS 281.100 provides as follows:
1. Except as otherwise provided in this section, the services and employment of all persons who are now, or
may hereafter be, employed by the State of Nevada, or by any county, city, town, township or any other political
subdivision thereof, are hereby limited and restricted to not more than 8 hours in any 1 calendar day and not
more than 56 hours in any 1 week.
2. The period of 8 hours' employment mentioned in this section shall commence from the time the
employee takes charge of any equipment of the employer or acts as an assistant or helper to a person who is in
charge of any equipment of the employer, or enters upon or into any conveyance of or operated by or for the
employer at any camp or living quarters provided by the employer for the transportation of employees to the
place of work.
3. Nothing in this section shall apply to:
(a) Officials of the State of Nevada or of any county, city, town, township or other political subdivision
thereof.
(b) Employees of the State of Nevada or of any county, city, town, township or other political subdivision
thereof who are engaged as employees of a fire department, or to nurses in training or working in hospitals, or to
deputy sheriffs or jailers.
(c) Employees of the legislative counsel bureau.
(d) Work done directly by any public utility company pursuant to an order of the public service commission
or other public authority.
4. Any employee whose hours are limited by subsection 1 may be permitted, or in case of emergency where
life or property is in imminent danger may be required, at the discretion of the officer responsible for his
employment, to work more than the number of hours limited. If so permitted or required, he shall receive, at the
discretion of the responsible officer:
(a) Compensatory vacation time; or
(b) Overtime pay.
5. Any officer or agent of the State of Nevada, or of any county, city, town, township, or other political
subdivision thereof, whose duty it shall be to employ, direct or control the services of an employee covered by
this section, who violates any of the provisions of this section as to the hours of employment of labor as herein
provided, shall be guilty of a misdemeanor.
overtime. [Citation omitted.] Pootel v. City and County of San Francisco, 270 P.2d 553, 555
(Cal.App. 1954). The denial of payment is bottomed on the theory that as such
compensation is not budgeted by the employer, it would be disruptive of budgeting
procedures to increase the employee's pay by cash for vacation or overtime. Lombardi v.
City of New York, 359 N.Y.S.2d 154, 155 (Sup.Ct. 1974). Municipal employees are not
entitled to compensation for overtime work in absence of a valid contract or law authorizing
it. State Ex Rel. Beck v. Carter, 471 P.2d 127, 130 (Wash.App. 1970); 4 McQuillan,
Municipal Corporations, 12.194(a) (3d ed. 1968). Accord Grossman v. City of New York,
335 N.Y.S.2d 890 (Sup.Ct. 1972), reversing Grossman v. City of New York, 316 N.Y.S.2d
542 (N.Y. City Civ.Ct. 1970) (upon which respondent relies); Donohue v. Police
Commissioner of Baltimore City, 298 A.2d 437 (Md.App. 1973); City of Homestead v.
DeWitt, 126 So.2d 582 (Fla.App. 1961).
Here there was no statutory or other authority for payment of cash compensation to
respondent, valid contract for such, or collective bargaining agreement covering the situation.
3

The judgment is reversed.
____________________

3
Briefs filed with this court by both appellants and respondent indicate that subsequent to respondent's
termination of employment a collective bargaining agreement was entered into and an ordinance was enacted in
Washoe County, Nevada, authorizing payment for overtime work performed by deputy sheriffs.
____________
91 Nev. 692, 692 (1975) LaPena v. Sheriff
FRANK LaPENA, Appellant, v. SHERIFF, CLARK
No. 8081
October 30, 1975 541 P.2d 907
Appeal from order denying petition for writ of habeas corpus, Eighth Judicial District
Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court, Zenoff, J., held that it was not necessary to find corroboration to
accomplice's testimony in a single fact or circumstance; that inferences were permitted in the
corroboration of accomplice's testimony; and that there was sufficient corroboration for the
testimony of accused's accomplices to justify requiring accused to stand trial.
Affirmed.
Goodman and Snyder, and Douglas G. Crosby, of Las Vegas, for Appellant.
Robert List, Attorney General, George E. Holt, District Attorney, and Dan M. Seaton,
1. Criminal Law.
Corroboration of accomplice's testimony need not be found in a single fact or circumstance; if several
circumstances in combination show defendant's criminal involvement, requirement that accomplice's
testimony be corroborated is satisfied. NRS 175.291.
2. Criminal Law.
Inferences are permitted in corroboration of accomplice testimony. NRS 175.291.
3. Criminal Law.
Evidence that victim saw his attacker and the accused talking to each other a week or two before the
attack on victim, evidence that accused had a basis for dislike for the victim, evidence that the attacker did
not have such a dislike, and evidence that victim's attacker caused his wife to return certain lead-filled
gloves to accused provided sufficient corroboration for testimony of the attacker, who was an accomplice,
to require accused to stand trial on charge of second-degree kidnapping and battery with use of a deadly
weapon. NRS 175.291, 200.310, 200.481.
4. Criminal Law.
To commit a defendant to trial, State is merely required to present enough evidence to support a
reasonable inference that defendant committed the offense.
5. Criminal Law.
In circumstances and evidence from sources other than testimony of the accomplice tend, on the whole, to
connect the defendant with the crime charged, it is sufficient to commit defendant to trial. NRS 175.291,
subd. 1.
OPINION
Appellant Frank LaPena was held to answer for the crime of second-degree kidnapping,
NRS 200.310, and battery with use of a deadly weapon, NRS 200.481. He appeals the denial
of his writ of habeas corpus contending insufficiency of evidence of corroboration of the
accomplice testimony to justify holding him for trial. NRS 175.291.
1
LaPena is accused of
hiring Gerald Weakland to kidnap and injure Willis Obenauer, manager of the Hacienda
Hotel in Clark County, where LaPena worked as bell captain.
____________________

1
175.291 Testimony of accomplice must be corroborated; sufficiency of corroboration; accomplice defined.
1. A conviction shall not be had on the testimony of an accomplice unless he is corroborated by other
evidence which in itself, and without
LaPena is accused of hiring Gerald Weakland to kidnap and injure Willis Obenauer,
manager of the Hacienda Hotel in Clark County, where LaPena worked as bell captain.
Weakland and one Robert Webb testified as State witnesses that they, Weakland as the
principal and Webb as his helper, took Obenauer against his will into the desert near Las
Vegas in the early morning hours of November 24, 1973, where Weakland severely beat
Obenauer with a 9 millimeter pistol and then shot him in the calf of each leg with a.38 caliber
pistol.
Weakland's testimony was that LaPena claimed bad blood between himself and Obenauer,
his superior at the Hacienda, because Obenauer was riding LaPena in the performance of
his duties. LaPena hired Weakland to rough up Obenauer for the total payment of $500.00.
Weakland testified that LaPena first identified Obenauer for him after the deal was made at a
prearranged meeting at the Hacienda, and that he gave Weakland some money on account and
also a pair of lead-filled gloves apparently to be used for the beating. Webb came into the
picture at Weakland's request and the two accompanied LaPena, according to their testimony,
to the parking lot of the Hacienda where Obenauer's parked car was pointed out to them by
LaPena. He also told them the approximate time that Obenauer would likely appear in the
early morning hours when he left work to go home.
[Headnote 1]
NRS 175.291(1) prohibits a conviction on testimony of an accomplice unless he is
corroborated. Weakland and Webb being accomplices, it becomes necessary to determine
what evidence is present, independent of the accomplice testimony, to connect LaPena with
the crime. We need not find the necessary corroboration in a single fact or circumstance, of
course. Rather, if several circumstances in combination show LaPena's criminal involvement,
we may find the statute satisfied. People v. Trujillo, 194 P.2d 681 (Cal. 1948).
[Headnote 2]
We note, first of all, that although the circumstances of the crime suggest its motive was a
lust for vengeance, it appears from Obenauer's testimony that neither Weakland nor Webb
had any personal reason for animus against him.
____________________
the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense;
and the corroboration shall not be sufficient if it merely shows the commission of the offense or the
circumstances thereof.
2. An accomplice is hereby defined as one who is liable to prosecution, for the identical offense charged
against the defendant on trial in the cause in which the testimony of the accomplice is given.
from Obenauer's testimony that neither Weakland nor Webb had any personal reason for
animus against him. Obenauer did not even know them. It might be inferred, therefore, that
some acquaintance of theirs, harboring hatred for Obenauer, had inspired their attack upon
him. As held in Goldsmith v. Sheriff, 85 Nev. 295, 454 P.2d 86 (1969), inferences are
permitted in the corroboration of accomplice testimony.
[Headnote 3]
Obenauer also testified that a week or two before the kidnapping and beating, he saw
Weakland and LaPena talking to each other in the Hacienda at the bell desk, and noted that
they looked at him as he went by. By itself, of course, this testimony would mean little, and
doubtless would not independently tend to incriminate LaPena. Mere association frequently
has been viewed as insufficient to corroborate an established wrong-doer's accusation. See,
for example: Eckert v. State, 91 Nev. 183, 533 P.2d 468 (1975); Austin v. State, 87 Nev. 578,
491 P.2d 724 (1971); Ex parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960). However,
from additional evidence, it may be inferred that LaPena was not merely a close associate of
Weakland, but one who had a motive to injure Obenauer, and who was linked to Weakland in
a criminal scheme, quite possibly involving a criminal assault.
In this regard, it appears from Obenauer's testimony that he and LaPena did not get along
and that on at least two occasions he had felt constrained to cite LaPena for infraction of hotel
rules. Inferably, such confrontations occasioned hatred in LaPena. A bellman, Mario Macias,
testified LaPena had told him that he would like to tear Obenauer's heart out. Moreover,
Weakland's former wife, Gail, with whom he was living despite their divorce, testified that
she saw LaPena and Weakland together at the Tower of Pizza shortly before the assault on
Obenauer, and that Weakland ordered her out of their presence while they talked. Later, she
said, after the assault on Obenauer, Weakland caused her to return certain lead-filled gloves
to LaPena, which LaPena took from her furtively when she delivered them to him at the
Hacienda Hotel.
Of course, at trial, some of the circumstances just mentioned may be explained to the jury's
satisfaction. It may be shown that Gail Weakland, in truth, was an accomplice in her
husband's misdeeds, and therefore that her testimony cannot be utilized to corroborate his. On
the record before us, however, the magistrate quite properly could decide that the
circumstances recited above were established without the aid of accomplice testimony.
of accomplice testimony. Taken together, such factors may be deemed inculpatory, and more
than mere coincidence. Cf. Austin v. State, cited above.
[Headnotes 4, 5]
To commit a defendant to trial the State is merely required to present enough evidence to
support a reasonable inference that the accused committed the offense. Kinsey v. Sheriff, 87
Nev. 361, 487 P.2d 340 (1971); Morgan v. Sheriff, 86 Nev. 23, 467 P.2d 600 (1970). If
circumstances and 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. Seymour, 57
Nev. 35, 57 P.2d 390 (1936); see also State v. Hilbish, 59 Nev. 469, 97 P.2d 435 (1940);
State of Nevada v. Chapman, 6 Nev. 320 (1871).
Affirmed.
____________
91 Nev. 696, 696 (1975) Marquette v. State
WILLIAM HOWARD MARQUETTE, Appellant, v.
No. 7216
October 30, 1975 541 P.2d 1099
Clark County; John P. Mendoza, Judge.
Defendant was convicted in the district court as a principal in homicide and he appealed.
The Supreme Court held that evidence that defendant, in his capacity as a paid private
investigator, told client's wife that she had better think about going back to her husband for
the good of yourself and everyone concerned did not, without the aid of testimony of the
accomplice, tend to connect defendant with killing of wife's paramour.
Reversed.
George H. Spizzirri, Las Vegas, for Appellant.
Robert List, Attorney General, and George E. Holt, District Attorney, Clark County, for
Respondent. 1.
1. Homicide.
Statement made by private investigator to client's wife that she had better think about going back to her
husband for the good of yourself and everyone concerned could not be construed as threats evincing any
involvement in the ultimate death of wife's paramour. NRS 175.291, subd. 1.
2. Criminal Law.
Evidence that defendant, in his capacity as a paid private investigator, told client's wife that she had better
think about going back to her husband for the good of yourself and everyone concerned did not, without
the aid of testimony of accomplice, tend to connect defendant with killing of wife's paramour. NRS
175.291, subd.1.
OPINION
Per Curiam:
Upon the strength of the admitted killer's subsequently repudiated, extra-judicial
accusation, which the court accepted as substantive evidence by virtue of NRS 51.035(2)(a),
appellant stands convicted as a principal in the crime.
1
The only issue we need address is
whether any substantial evidence corroborates the original accusation of appellant.
[Headnote 1]
In his capacity as a paid private investigator, it appears that a number of days before her
paramour was murdered, appellant and his client talked to his client's wife, urging her to
return to the client, Frank Foss. At that time, appellant said such things as: You had better
think it over good. You had better think real hard about going back to Frank Foss for the good
of yourself and everyone concerned. Appellant also helped restrain Mrs. Foss, when she
attempted to depart while appellant and his client were talking to her. We have determined
that, in light of the acknowledged nature of appellant's employment, and other facts of record,
such conduct cannot be deemed to corroborate adequately the killer's original accusation of
appellant. Taking appellant's conduct in context, we do not believe his statements may be
construed as threats, evincing any involvement in the ultimate death of Mrs. Foss's friend.
[Headnote 2]
We therefore find no evidence which in itself, and without the aid of the testimony of
the accomplice, tends to connect the defendant with the commission of the offense."
____________________

1
After agreeing to testify for the prosecution in exchange for the privilege of pleading guilty to second degree
murder, and for the dismissal of related charges, the killer recanted his accusation of appellant at trial. The now
incumbent District Attorney was not serving in that office when the bargain referred to was entered.
the aid of the testimony of the accomplice, tends to connect the defendant with the
commission of the offense. NRS 175.291(1); cf. Eckert v. State, 91 Nev. 183, 533 P.2d 468
(1975).
The charge against appellant is hereby dismissed, and he is hereby discharged from
custody, dismissal to be without prejudice to institution of other criminal proceedings against
him. Austin v. State, 87 Nev. 578, 589, 491 P.2d 724, 731 (1971).
____________
91 Nev. 698, 698 (1975) Drummond v. Mid-West Growers
JUD D. DRUMMOND, Appellant and Cross-Respondent, v. MID-WEST
GROWERS COOPERATIVE CORPORATION, a California Corporation, and
CLAUDE JEROME HILL, Respondents and Cross-Appellants.
No.7551
October 30, 1975 542 P.2d 198
Appeal from order denying plaintiff's motion for additur to a jury award or a limited new
trial; cross-appeal from order denying defendants' motions for a directed verdict or judgment
notwithstanding the verdict; Second Judicial District Court, Washoe County; Thomas O.
Craven, Judge.
Rescuer brought action against truck driver whose truck had stalled on freeway, to recover
for loss of arm suffered in accident which allegedly resulted from aiding stalled truck driver.
The district court awarded rescuer damages of $9,640. The truck driver appealed from denial
of his motion notwithstanding the verdict, and rescuer appealed from denial of motion for
additur. The Supreme Court, Mowbray, J., held that whether stalled motorist was negligent
was question for the jury; that whether intoxicated motorist who collided with stalled truck
was sole proximate cause of injuries received by rescuer was question for the jury; that rescue
doctrine was applicable and that plaintiff who was aiding stalled truck when he was injured
was rescuer within meaning of rescue doctrine; that trial court properly instructed jury not
to consider defense of assumption of risk unless it found rescue doctrine not to be
applicable; that whether rescuer was contributorily negligent was a question for the jury; that
state courts were empowered to grant motions for additur; and that award of $9,640 as
damages for loss of arm was clearly inadequate.
Order denying directed verdict or judgment notwithstanding the judgment affirmed;
order denying additur or a limited new trial reversed.
McDonald, Carano, Wilson, Bergin & Bible, Reno, for Appellant and Cross-Respondent.
Goldwater Hill Morrimer Sourwine & Pinkerton, Reno, for Respondents and
Cross-Appellants.
1. Trial.
On motion for directed verdict, evidence must be viewed in light most favorable to the party against
whom the motion is made, and neither credibility of witnesses nor weight of evidence will be considered.
In considering an appeal from denial of a motion for directed verdict, standard for review is whether
evidence is such that reasonable men would necessarily have reached a different conclusion.
3. Automobiles.
Under evidence that truck driver drove with knowledge that his battery was dead, that be stopped his
truck fully on the freeway completely blocking one lane, and that he failed to place flares behind stalled
truck as required by statute, whether truck driver was negligent was a question for the jury. NRS
484.627.
4. Automobiles.
Under evidence that motorist had been drinking, that she was driving at excessive speed, was oblivious of
flagmen, and did not apply her brakes before crashing into stalled vehicle, whether such motorist's
negligence was sole proximate cause of injuries received by rescuer who was aiding stalled vehicle was a
question for the jury.
5. Negligence.
Not every intervening cause, or even every negligent intervening cause, acts as a superseding cause
absolving prior negligence.
6. Automobiles.
Whether truck driver's negligence in stalling his truck on freeway and completely blocking one lane
produced a foreseeable risk of harm to rescuer from negligent or nonnegligent motorist was a question for
the jury.
7. Automobiles.
Whether rescuer, who was standing between towing vehicle and stalled truck which was completely
blocking one lane of freeway, had assumed the risk that stalled vehicle might be struck from behind so as to
crush rescuer's arm was a question for the jury.
8. Automobiles.
Where plaintiff left his vehicle and was injured while attempting to assist in towing stalled vehicle from
lane of freeway, whether rescue doctrine was applicable was a question for the jury.
9. Automobiles.
Where plaintiff left his automobile in early morning hours and aided truck which had stalled and which
was completely blocking one lane of freeway, such plaintiff was "rescuer" within meaning
of rescue doctrine.
one lane of freeway, such plaintiff was rescuer within meaning of rescue doctrine.
10. Negligence.
The defense of assumption of risk is not ordinarily available against a rescuer.
11. Automobiles.
Trial court properly instructed jury not to consider truck driver's defense of assumption of risk unless it
found that rescue doctrine was inapplicable, where plaintiff was injured when intoxicated motorist struck
the rear of stalled truck which plaintiff was assisting in attempt to tow it from lane of freeway which it was
blocking.
12. Negligence.
The defense of assumption of risk is based on an injured plaintiff's actual knowledge of the danger and
his voluntary exposure to it.
13. Negligence.
The law does not discriminate between the rescuer who is oblivious of peril and the one who counts the
cost.
14. Negligence.
In determining contributory negligence of a rescuer, the standard remains the objective reasonable man
test, but it is a reasonable man acting under crisis pressure.
15. Negligence.
Generally, a party will not be found negligent as a matter of law for not acting altogether wisely in an
emergency.
16. Automobiles.
Whether rescuer, who was attempting to tow stalled truck which was blocking freeway and his arm was
crushed between stalled truck and towing vehicle when truck was struck from behind by intoxicated
motorist, was contributorily negligent was a question for jury.
17. New Trial.
Courts have the power to condition and order for a new trial on the plaintiff's acceptance of remittitur.
18. Jury.
Fact that State Constitution guarantees right of trial by jury does not mean that an error committed by a
jury may not be corrected merely because the common law did not recognize or practice remittitur or
additur at the time State Constitution was adopted. Const. art. 1, 3.
19. Jury; New Trial.
Additur promotes economy and efficiency in judicial proceedings, is a just, speedy, and inexpensive
vehicle for correcting an inadequate jury verdict, does not detract from substance of common law trial by
jury and does not deprive a plaintiff of the right to go to the jury on any issue, and thus is a proper post-trial
procedure for correcting jury verdicts. Const. art. 1, 3.
20. New Trial.
Upon appropriate motion for additur, the court should determine whether damages are clearly inadequate
and whether case would be a proper one for granting a motion for a new trial limited to
damages, and if both conditions exist, the court in its discretion may issue an order
granting the motion for a new trial, unless defendant consents to an additur set by
the court.
would be a proper one for granting a motion for a new trial limited to damages, and if both conditions exist,
the court in its discretion may issue an order granting the motion for a new trial, unless defendant consents
to an additur set by the court.
21. Damages.
Where rescuer, who suffered loss of arm as result of injuries received during rescue, incurred medical
expenses of $4,640, where future medical expenses were estimated to exceed $4,000, where rescuer's
permanent injury resulted in extensive disability, and where jury award included no damages for permanent
disability or for pain and suffering, jury verdict awarding damages of $9,640, was clearly inadequate.
22. Damages.
Where a limb is lost or severely disabled the damage to the victim far exceeds just the medical expenses
and loss of earnings, for an arm or leg is an integral functioning part of the human body, and because its
separation results in disability as well as pain and suffering an award of medical expenses or award of an
amount slightly over the medical expenses is clearly inadequate.
OPINION
Jud D. Drummond commenced this action against Claude Jerome Hill and his employer,
Mid-West Growers Cooperative Corporation, to recover damages for injuries Drummond
received when he was assisting in the removal of a Mid-West truck, driven by Hill, that had
stalled and was blocking the outside eastbound lane of Interstate 80 near Fernley, Nevada.
The case was tried before a jury that found in favor of Drummond and against the defendants,
awarding him damages in the amount of $9,640.35.
After all the evidence had been presented, Hill and Mid-West moved for a directed verdict
in their favor. Decision on the motion was reserved, and the case went to the jury. After the
jury returned their verdict, defendants moved for judgment notwithstanding the verdict.
Drummond, who was not satisfied with the amount of his award, moved the court to grant
additur or a new trial limited to the issue of damages. All motions were denied and appeals
taken therefrom.
1. The Facts.
On July 17, 1972, Drummond was driving east on Interstate 80 to Ely. Just west of
Fernley, he noticed a van stalled in the center median, and he stopped to help push it onto the
highway. It was about 12:30 a.m. At this same time, Hill, driving a truck for Mid-West, was
also traveling on Interstate 80. The Mid-West truck had a dead battery. Hill knew about the
battery.
battery. Several hours earlier, in Sparks, he had needed to use jumper cables to start the
engine. Hill had decided to drive with the dead battery, expecting that driving would recharge
the battery before he reached Winnemucca, his next scheduled stop. By the time Hill
approached the scene, several motorists in addition to Drummond had stopped to help. Hill
testified that he had not intended to stop, but only slowed down and moved into the inside
lane in order to steer around another truck that had stopped and was partially blocking the
outside lane. As Hill slowed and was shifting gears, someone yelled at him to ask if he had a
chain. At that point, his truck stopped. Drummond testified that Hill parked alongside the
median, and subsequent events established that Hill was carrying a chain. Because of the dead
battery, he could not restart the engine.
Fully blocking the fast lane of the freeway, the Mid-West truck created an emergency
situation. Efforts were quickly organized to chain one of the other trucks at the scene to the
Mid-West truck and then tow it off the highway. Drummond suggested using a padlock to
hold the chain together. After the Mid-West truck had been pulled just a few feet, the padlock
broke. As Hill retrieved the padlock, Drummond waited between the trucks to reattach the
chain. As he waited, a car driven by Sharon Williams crashed into the back end of the
Mid-West truck, pushing the truck forward and crushing Drummond's arm against the other
truck.
There was conflicting evidence as to whether or not Hill had his emergency lights on at the
time of the collision. It was undisputed that, contrary to State law (NRS 484.627)
1
and
federal regulation [Motor Carrier Safety Regulations, 392.22, 49 C.F.R. 392.22
{1974)],2 Hill had not placed the required three flares, lanterns, or reflectors at distances
of 10, 100, and 200 feet, respectively, to the rear of his disabled vehicle in the blocked
lane.
____________________

1
NRS 484.627, in relevant part:
1. Every bus, truck and truck-tractor and every combination of vehicles 80 inches or more in overall width,
except implements of husbandry, shall be equipped with at least three pot torches, three red electric lanterns or
three red emergency reflectors.
2. Except as otherwise provided in subsections 3, 4 and 5, when any such vehicle is disabled on any portion
of the traveled portion of a highway during any time specified in NRS 484.545, such torches, lanterns or
reflectors shall be placed as soon as possible as follows:
(a) One at the traffic side of the vehicle, not more than 10 feet to the front or rear thereof;
(b) One at a distance of approximately 100 feet to the rear of the disabled vehicle in the center of the traffic
lane occupied by such vehicle; and
(c) One at a distance of approximately 100 feet to the front of the vehicle in the center of the traffic lane
occupied by such vehicle.
. . .
4. When any such vehicle is disabled on any portion of the traveled portion of a one-way highway with two
or more traffic lanes during any time specified in NRS 484.545, such torches, lanterns or
federal regulation [Motor Carrier Safety Regulations, 392.22, 49 C.F.R. 392.22 (1974)],
2
Hill had not placed the required three flares, lanterns, or reflectors at distances of 10, 100, and
200 feet, respectively, to the rear of his disabled vehicle in the blocked lane. Instead, Hill had
sent one of the bystanders down the highway behind the truck with a flashlight to warn
approaching motorists. Drummond testified that he also gave his flashlight to one of his
passengers and sent him behind the Mid-West truck. Another motorist, approaching the scene
as Williams had, testified that he could not tell that an accident had occurred until he was
within 100 feet of it. There was also testimony that the use of the flashlights may have been
confusing, perhaps actually directing oncoming drivers into the blocked lane. On the other
hand, there was testimony that numerous vehicles had passed the trucks safely. There was
additional evidence as well that Williams had been drinking, was driving at excessive speed,
was oblivious of the flagmen, and had not applied her brakes at all.3
____________________
reflectors shall be placed as soon as possible as provided in subsection 2, except that the torch, lantern or
reflector to be placed at the front of the vehicle shall be placed 200 feet to the rear of the vehicle.

2
Motor Carrier Safety Regulations, 392.22, 49 C.F.R. 392.22 (1974):
(a) . . .
(b) Placement of warning devices(1) General rule. Except as provided in subparagraph (2) of this
paragraph, whenever a vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway
for any cause other than necessary traffic stops, the driver shall as soon as possible, but in any event within 10
minutes, place the warning devices with which his vehicle is equipped in conformity with the requirements of
393.95 of this subchapter, either three emergency reflective triangles, three electric emergency lanterns, three
liquid-burning emergency flares, or three red emergency reflectors in the following manner:
(i) One at the traffic side of the stopped vehicle, within 10 feet of the front or rear of the vehicle;
(ii) One at a distance of approximately 100 feet from the stopped vehicle in the center of the traffic lane or
shoulder occupied by the vehicle and in a direction toward traffic approaching in that lane: and
(iii) One at a distance of approximately 100 feet from the stopped vehicle in the center of the traffic lane or
shoulder occupied by the vehicle and in the direction in which traffic in that lane is moving.
(2) Special rules(i) . . .
. . .
(v) Divided or one way roads. If a motor vehicle is stopped upon the traveled portion on the shoulder of a
divided or one-way highway, the driver shall place the warning devices required by subparagraph (1) of this
paragraph, one warning device at a distance of 200 feet and one warming device at a distance of 100 feet in a
direction toward approaching traffic in the center of the lane or shoulder occupied by the vehicle. He shall place
one warning device at the traffic side of the vehicle within 10 feet of the rear of the vehicle.
was driving at excessive speed, was oblivious of the flagmen, and had not applied her brakes
at all.
3

2. Defendants' Motions for a Directed Verdict or for Judgment Notwithstanding the
Verdict.
[Headnotes 1, 2]
Hill and Mid-West claim, as the basis for their motions, that there was insufficient
evidence to establish Hill's negligence, that Williams's negligence was the sole proximate
cause of the accident, and that the evidence established that Drummond was contributorily
negligent or had assumed the risk of injury. The evidence must be viewed in the light most
favorable to the party against whom the motion is made. Neither the credibility of witnesses
nor the weight of the evidence will be considered. Bliss v. DePrang, 81 Nev. 599, 407 P.2d
726 (1965). The standard for review is whether the evidence is such that reasonable men
would have necessarily reached a different conclusion. The conflicting evidence presented
created material issues of fact. The jury was the trier of those facts. For the reasons stated
below, we affirm the trial court's order denying defendants' motions for a directed verdict or
for judgment notwithstanding the verdict.
A. Hill's Negligence.
[Headnote 3]
Drummond charged Hill with various acts of negligence. It is unnecessary at this juncture
to review the evidence at length. Suffice it to say that it is sufficient to support the jury
verdict. Hill chose to drive with a dead battery. He stopped with the truck fully on the
freeway. He may have failed to utilize his emergency lights. He admitted violating state and
federal law by not placing flares or lanterns as required, behind his truck. The jurors were
properly instructed that they might consider these violations as evidence of negligence.
B. Williams's Negligence.
[Headnote 4]
Williams's negligence was not the sole proximate cause of the accident as a matter of law.
There was evidence to sustain the jury's finding that Hill's negligence was a concurrent
proximate cause.
[Headnote 5]
The defendant's negligence must be established as a proximate cause of the plaintiff's
injury. We have previously defined "proximate cause" as "any cause which in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the injury
complained of and without which the result would not have occurred."
____________________

3
Williams died as a result of the crash.
defined proximate cause as any cause which in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury complained of and without which the
result would not have occurred. Mahan v. Hafen, 76 Nev. 220, 225, 351 P.2d 617, 620
(1960). An efficient intervening cause is not a concurrent and contributing cause but a
superseding cause which is itself the natural and logical cause of the harm. Thomas v.
Bokelman, 86 Nev. 10, 13, 462 P.2d 1020, 1022 (1970). Not every intervening cause, or even
every negligent intervening cause, acts as a superseding cause absolving the prior negligence.
Konig v. Nevada-California-Oregon Ry., 36 Nev. 181, 135 P. 141 (1913); Alex Novack &
Sons v. Hoppin, 77 Nev. 33, 359 P.2d 390 (1961).
Hill and Mid-West claim that the negligence of Williams caused the accident and,
because it was an efficient intervening force, they are relieved of liability. In support of their
position, they cite City of Reno v. Van Ermen, 79 Nev. 369, 385 P.2d 345 (1963), in which
the defendant-appellant's possible negligence was held, as a matter of law, not a proximate
cause of the plaintiff's injuries. Van Ermen was similarly an action by a third party injured
when a speeding motorist crashed into an obstruction created by the alleged negligence of
another. As in the present case, the action was brought not against the motorist but against the
party responsible for the obstruction. A significant difference between Van Ermen and the
instant case, however, is that the plaintiff, Van Ermen, was a passenger in the speeding car,
brought into the harm by the motorist, while Drummond became imperiled as he tried to
remove the obstruction on the highway. As we acknowledged in Konig v.
Nevada-California-Oregon Ry., supra: Each case presents its own particular set of
circumstances, and a definition of proximate cause which might apply to one might be
entirely inapplicable to another. 36 Nev. at 215, 135 P. at 153.
[Headnote 6]
In Konig, we also said that the test for proximate cause could be found in the probable
injurious consequences which were to be anticipated. . . . 36 Nev. at 214, 135 P. at 153.
Taking the evidence as it favors Drummond, the emergency situation produced by Hill's
negligence prompted efforts at rescue. Assessing the circumstances, a jury could reasonably
decide that a foreseeable risk of harm to the rescuers from a negligent or nonnegligent
motorist had been created. As part of the prior risk, foreseeable intervening forces are within
the scope of the prior negligence and do nor negate liability.
3. The Evidence.
[Headnote 7]
The evidence does not establish contributory negligence or assumption of risk as a matter
of law.
Defendants' third ground of error in the verdict charges plaintiff with contributory
negligence or assumption of risk. However, before these charges may be analyzed, plaintiff's
role in the incident preceding his injury must be defined.
[Headnotes 8, 9]
Drummond's claim of rescuing was controverted at the trial. Although defendants
acknowledged that an emergency situation had been created, they insisted that peril was not
imminent and that Drummond's help had not been sought or needed. The potential for harm,
however, was, if not imminent, at least immediate and real. And Drummond was in fact
giving assistance. There is sufficient contrary evidence to preclude finding the rescue doctrine
inapplicable here as a matter of law. Therefore, since Drummond is entitled on this appeal to
the benefit of all reasonable inferences from conflicting evidence, we must treat him for these
purposes as a rescuer.
A. Assumption of Risk.
[Headnotes 10-13]
This defense is not ordinarily available against the rescuer. The jury here was properly
instructed not to consider assumption of risk unless it found that the rescue doctrine did not
apply. Assumption of risk is based on the injured plaintiff's actual knowledge of the danger
and his voluntary exposure to it. Sierra Pac. Power Co. v. Anderson, 77 Nev. 68, 358 P.2d
892 (1961); Downing v. Marlia, 82 Nev. 294, 417 P.2d 150 (1966). In this case, actual
knowledge may be inferred from Drummond's experience as a truck driver. But, even with
actual knowledge, the individual is not voluntarily accepting the risk if he is compelled by
an emergency situation to endanger himself. The law does not discriminate between the
rescuer oblivious of peril and the one who counts the cost. Wagner v. International Ry., 133
N.E. 437, 438 (N.Y. 1921).
B. Contributory Negligence.
[Headnotes 14, 15]
The rescue doctrine also modifies the measure of contributory negligence. The standard
remains the objective reasonable man test, but it is the reasonable man acting under crisis
pressure. As this court much earlier noted, courts generally are unlikely to find a party
negligent as a matter of law for not acting altogether wisely in an emergency.
not acting altogether wisely in an emergency. Bunting v. Central Pac. R.R., 14 Nev. 351, 361
(1879). In a comparable multivehicle accident case in which a rescuer was injured, a
California district court of appeals recognized that the rescuer might be allowed to take
actions which in other circumstances would be considered negligent. Scott v. Texaco, Inc., 48
Cal. Rptr. 785, 787 (Cal.App. 1966). The court suggested that only conduct which amounts
to rashness and recklessness should be considered unreasonable and negligent conduct by a
rescuer. 48 Cal.Rptr. at 787-788. The California Supreme Court later unanimously adopted
this same view, in Solgaard v. Guy F. Atkinson Co., 491 P.2d 821 (Cal. 1971). Mr. Justice
Burke wrote: . . . [T]he rescue doctrine varies the ordinary rules of negligence . . . by
requiring defendant to prove that the rescuer acted rashly or recklessly under the
circumstances. 491 P.2d at 825.
[Headnote 16]
In the case before us, Drummond testified that he did not consider the absence of flares,
lanterns, or reflectors behind the Mid-West truck. He also stated that he had thought it safe to
wait between the trucks because of the several vehicles that had passed the obstruction
without difficulty. In determining contributory negligence, Drummond is charged only with
the knowledge of a reasonable man. Judging his actions against the reasonable man
standard for emergency actions, it cannot be maintained that Drummond was contributorily
negligent as a matter of law.
4. Plaintiff's Motion for Additur or for a New Trial Limited to the Issue of Damages.
Drummond was 60 years of age at the time of the accident. After the accident, he was
hospitalized in Washoe Medical Center, where he was treated by Dr. John Becker. The doctor
testified that when he examined Drummond his forearm was crushed, and he inserted a pin
and placed the arm in traction to aid circulation. Such treatment was not sufficient, because of
the extent of the injury to the arm, and upon the setting in of gangrene, amputation of the arm
became inevitable. In addition to the injury to his arm, Drummond suffered a fractured rib.
He was given demerol and codeine to ease his pain, and following the amputation he was
later fitted with a prosthetic device. The doctor testified that Drummond has an overgrowth of
calcium on the stump of his arm which may give him discomfort, but which is not serious
enough to warrant surgical intervention. He also stated that amputation entails adverse
psychological effects, such as feelings of helplessness and inadequacy.
entails adverse psychological effects, such as feelings of helplessness and inadequacy. The
doctor further testified that as a result of the amputation Drummond has lost the ability to do
those things that require the use of a hand, and that a prosthetic device is not, and cannot be,
an adequate substitute for a human hand; that a prosthetic device requires maintenance and
periodic replacement at 5-year intervals or more frequently, depending on use. The medical
expenses incurred to the date of the trial amounted to $4,640.35. The evidence established
that the cost of such future medical expense with replacement every 5 years over
Drummond's remaining 14.5 years' life expectancy, based upon the cost of the components of
the prosthetic device, would be $3,087.70. The evidence further indicated that, even though
Drummond's employment history was sporadic, he was employed immediately prior to the
accident at an hourly rate of $8.21, and that his wages for the 3 days immediately preceding
the accident had been $196.00.
Although the jury was properly instructed as to the elements of damage for which
compensation should be awarded if it found that Hill and Mid-West were liable for
Drummond's injuries, the jury's verdict, while in favor of Drummond on the issue of liability,
awarded damages in the total amount of only $9,640.35. Drummond filed a timely motion for
additur to the verdict, predicated upon the inadequacy of the award, or, in the alternative, for
a new trial limited to the issue of damages. The motion was denied.
4

[Headnote 17]
It has been recognized in Nevada that our courts have the power to condition an order for a
new trial on the plaintiff's acceptance of remittitur. See Hotel Riviera, Inc. v. Short, 80 Nev.
505, 396 P.2d 855 (1964); Hahn v. Yackley, 84 Nev. 49, 436 P.2d 215 (1968); Bonelli v.
Jones, 26 Nev. 176, 65 P. 374 (1901). Our courts, however, have not heretofore had the
power to condition an order for a new trial on acceptance of an additur. We believe, for the
reasons stated below, that they should have such power.
The early common law, prior to the seventeenth century, did not contain any provision for
setting aside a jury verdict. It was not until the end of the eighteenth century that new trials
were granted for excessive damages in tort actions. See Bender, AdditurThe Power of the
Trial Court to Deny a New Trial on the Condition that Damages Be Increased, 3 Cal.
W.L.Rev. 1 at 3-4 (1967). The use of additur and remittitur never developed to any
significant extent in England.
____________________

4
Drummond's motion for attorneys' fees, however, was granted.
never developed to any significant extent in England. However, remittitur became fairly
common in the United States during the nineteenth century and is now almost universally
accepted. Id., at 4-6. Additur, on the other hand, developed differently. In 1935, the issue of
the validity of an additur order was presented to the United States Supreme Court. Dimick v.
Schiedt, 293 U.S. 474 (1935). The High Court held that an additur order infringed upon the
plaintiff's right to a jury trial under the Seventh Amendment to the United States Constitution,
predicating its holding upon the premise that the common law rules governing the granting of
new trials as they existed at the time of the adoption of the Federal Constitution in 1791 were
controlling.
The historical approach, condemned by the Justices who dissented in Dimick, as the
search of the legal scrap heap of a century and a half ago,
5
has generally been rejected by
the state courts that have considered the issue of additur.
6
The guarantee of trial by jury
provided in the Seventh Amendment to the United States Constitution, which is not binding
on the states,
7
is substantially different from the jury trial guarantees of most state
constitutions, including the Nevada Constitution.
The Seventh Amendment to the United States Constitution states:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise
re-examined in any Court of the United States, than according to the rules of the common
law. (Emphasis added.)
It was the constitutional prohibition of reexamination of a fact tried by a jury, other than
according to common law, which was the basis of the Court's decision in Dimick. Thus, the
amount of damages is a fact tried by a jury; common law did not permit reexamination of
such fact by a motion for additur; therefore, reexamination of the amount of damages by
additur was in violation of the Seventh Amendment to the United States Constitution.
However, the reexamination clause" forms no part of the jury trial guarantee set forth in
article 1, section 3, of the Nevada Constitution, which states:
____________________

5
Justice Stone wrote a dissenting opinion in which Chief Justice Hughes and Justices Brandeis and Cardozo
concurred.

6
See Smith v. Ellyson, 115 N.W. 40 (Iowa 1908); Genzel v. Halvorson, 80 N.W.2d 854 (Minn. 1957);
Volker v. First Nat'l Bank, 42 N.W. 732 (Neb. 1889); Fisch v. Manger, 130 A.2d 815 (N.J. 1957); Caudle v.
Swanson, 103 S.E.2d 357 (N.C. 1958); Bodon v. Suhrmann, 327 P.2d 826 (Utah 1958); Markota v. East Ohio
Gas Co., 97 N.E.2d 13 (Ohio 1951).

7
See Pearson v. Yewdall, 95 U.S. 294, 296 (1877); Walker v. Sauvinet, 92 U.S. 90, 92 (1875).
clause forms no part of the jury trial guarantee set forth in article 1, section 3, of the Nevada
Constitution, which states:
The right of trial by Jury shall be secured to all and remain inviolate forever; . . .
Nevada courts, like the courts of other states with similar constitutional provisions, are not
inextricably bound to the accidents of history, nor compelled forever to retain the trappings of
1791 jurisprudence with regard to the nature of a jury trial. See Feldhahn v. Van Deventer,
115 N.W.2d 862 (Iowa 1962); and Richmond v. Campbell, 136 S.E.2d 877 (W.Va. 1964). In
Jehl v. Southern Pac. Co., 59 Cal.Rptr. 276, 280, 281, 282-283, 427 P.2d 988, 992, 993,
994-995 (Cal. 1967), Chief Justice Traynor, speaking for the California Supreme Court,
reviewed and rejected the reasoning of Dimick and affirmed the power of the California
courts to award additur, stating:
In Dorsey [v. Barba, 38 Cal.2d 350, 240 P.2d 604 (Cal. 1952)] this court held that additur
would deny a plaintiff's right to jury trial as guaranteed by article 1, section 7 of the California
Constitution. Although the Seventh Amendment to the United States Constitution is not
binding on the states and differs significantly in language from the California constitutional
provision, Dorsey relied in large part on Dimick v. Schiedt, 293 U.S. 474, . . . Dimick was a
five-to-four decision and has been vigorously criticized. Like Dorsey, Dimick was based on
an historical and logical analysis that was open to serious question. . . .
. . .
In assessing the precedents, we search for the meaning and substance of jury trial and are
not rigidly bound by the exacting rules that happen to be found on the legal scrap heap of a
century and a half ago.' (Dimick v. Schiedt, supra, 293 U.S. at 495, . . . [Stone, J. dissenting];
see People v. Hickman, 204 Cal. 470, 476, 268 P. 909 [1925], 270 P. 1117 [1928]). . . .
. . .
Remittitur happened to develop earlier than additur because courts undertook to grant
new trials for excessive damages long before they took similar action on the ground of
inadequacy. (See McCormick on Damages, pp. 72-73; Washington, Damages in Contract at
Common Law, 47 L.Q. Rev. 345, 365, fn. 7.) The issue of additur was not presented until
modern times, but it is a logical step in the growth of the law relating to unliquidated
damages as remittitur was at an earlier date. Its acceptance, though still somewhat retarded, is
growing.
growing. It should not be treated differently from other modern devices aimed at making the
relationship between judge and jury as to damages as well as to other matters, one that
preserves the essentials of the right to jury trial without shackling modern procedure to
outmoded precedents. Additur does not detract from the substance of the common law trial by
jury. Like its fraternal twin remittitur, now over 100 years old in this state, it promotes
economy and efficiency in judicial proceedings. (Footnotes omitted.)
The tenuous argument that remittitur leaves standing a part of the jury's award, whereas
additur constituted a bald addition to the verdict, was considered and rejected by Chief
Justice Traynor, who stated, in footnote 8 to the Jehl opinion, 59 Cal.Rptr. at 280, 427 P.2d at
992:
. . . There are several replies to this argument. In reaching the larger verdict involved in
remittitur, the jury has rejected all smaller amounts just as they have rejected all larger
amounts in reaching the smaller verdict involved in additur. Neither verdict is more that of
the jury than the other. (See Carlin, Remittiturs and Additurs, . . ., 49 W.Va. L.Q. 1, 18,
24-25; see also [Note,] 44 Yale L.J. 318, 323.) Only additur retains all that was contained in
the jury's verdict, and in both additur and remittitur something is taken from the litigant who
is relying on the verdict. (See Bender, AdditurThe Power of the Trial Court to Deny a New
Trial on the Condition that Damages be Increased, California Law Revision Commission.
Recommendation and Study relating to Additur (Oct. 1966) at pp. 617, 647-648.)
[Headnote 18]
The Nevada Constitution guarantees to Respondents Hill and Mid-West the right to a jury
trial, i.e., the right to have factual issues determined by a jury. But the right to a jury trial
does not mean that an error committed by a jury may not be corrected, merely because the
vehicle of correcting such error was not known or practiced at common law when Nevada's
Constitution was adopted. Cf. Misty Management v. District Ct., 83 Nev. 180, 183, 426 P.2d
728, 729 (1967):
The notion that a favorable ruling upon a Rule 50(b) motion for judgment n.o.v.
somehow violates the constitutional guaranty of a jury trial has been rejected by the United
States Supreme Court. Neely v. Eby Construction Co., 386 U.S. 317 (1967), see also,
Montgomery Ward & Co. v. Duncan, 311 U.S. 243 (1940). Further discussion on this point is
not warranted.
[Headnote 19]
The same reasoning applies to other post-trial procedures for correcting verdicts, and we
find no reason in logic or common sense for excluding additur therefrom.
8

We conclude, therefore, that additur does not detract from the substance of the common
law trial by jury. Rather, additur, like its twin, remittitur, promotes economy and efficiency in
judicial proceedings. Additur does not deprive a defendant of the right to go to the jury on any
issue. It operates only in the event a plaintiff is dissatisfied with a jury's verdict.
[Headnote 20]
There is no essential difference between the procedures appropriate for remittitur and
additur. The court upon appropriate motion should first determine whether the damages are
clearly inadequate and, if so, whether the case would be a proper one for granting a motion
for a new trial limited to damages. If both conditions exist, the court in its discretion may
issue an order granting the motion for a new trial, unless the defendant consents to an additur
set by the court, within the time it allows.
[Headnote 21]
We have reviewed the damages suffered by Drummond, and we have concluded that the
award therefor is clearly inadequate. Drummond's medical expenses incurred at the time of
trial were $4,640.35, and evidence indicated that future medical expenses, including
maintenance and replacement of the prosthetic device, would exceed $4,000. Yet the total
jury award was only $9,640.35. The record shows that Drummond has suffered a permanent
injury resulting in extensive disability. Yet he apparently was awarded no damages for such
permanent disability; nor could the award have included any sum for pain and suffering. In
Jehl v. Southern Pac. Co., supra, the California Supreme Court held that an award of
$100,000 was grossly inadequate for the loss of a leg and an injury which might result in the
loss of a portion of the other leg. In Yost v. General Elec. Co., 173 F.Supp. 630 (S.D.N.Y.
1959), the court, sitting without a jury, assessed damages at $125,000 for a 65-year-old
machinist whose left arm was amputated two inches below the elbow.
____________________

8
Modern authority has demonstrated that additur is a just, speedy, efficient, and inexpensive vehicle to
correct an inadequate jury verdict. See Ariz. Rules of Civil Procedure, Rule 59 (i)(l), 16 Ariz. Rev. Stat. Ann.
(1967); La. Code Civ. Pro. Art. 1971 (1960); Mass. Gen. Laws Ann., ch. 231, 127 (Supp. 1970); Miss. Code
Ann. 11-1-55 (1972); R.I. Gen. Laws Ann. 9-23-1 (1956); S.D. Compiled Laws Ann. 15-6-59(a) (1967);
Tenn. Code Ann. 20-1330 (Supp. 1974); Wash. Rev. Code Ann. 4.76.030 (1962).
for a 65-year-old machinist whose left arm was amputated two inches below the elbow.
[Headnote 22]
The above cases demonstrate that when a limb is lost or severely disabled, the damage to
the victim far exceeds just the medical expenses and loss of earnings. An arm or a leg is an
integral, functioning part of the human body, and because its separation results in disability as
well as pain and suffering it is recognized that an award of medical expenses or an amount
slightly over the medical expenses, as in this case, is inadequate.
We therefore reverse the order denying Drummond's motion for additur or, in the
alternative, a new trial limited to the issue of damages, and we remand the case to the district
court with instructions to grant Drummond a new trial limited to the issue of his damages,
unless the respondents, Hill and Mid-West, shall, within 20 days after the clerk of the court
has filed the remittitur in this case, agree to an additur of $30,359.65, amounting to a total
verdict of $40,000.00. The order denying respondents' motion for a directed verdict or
judgment notwithstanding the verdict is affirmed.
____________
91 Nev. 713, 713 (1975) Sunrise Manor v. City of North Las Vegas
SUNRISE MANOR TOWN PROTECTIVE ASSOCIATION, JOHN N. CATHA, et al.,
Appellants, v. CITY OF NORTH LAS VEGAS, a Municipal Corporation, Respondent.
No. 7621
October 30, 1975 541 P.2d 1102
Appeal from order and judgment denying motions of taxpayers to recover taxes paid by
reason of invalid annexations. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
The Supreme Court, 89 Nev. 10, 504 P.2d 1326 (1973), ruled invalid two annexation
ordinances adopted by City, and taxpayers sought return of money paid to City during period
of annexation. The district court denied relief, and taxpayers appealed. The Supreme Court,
Zenoff, J., held that there had been a de facto annexation, and that the City would not be
compelled to return the taxpayers' money after services for which taxes were collected
had been performed.
compelled to return the taxpayers' money after services for which taxes were collected had
been performed.
Affirmed.
Harry J. Mangrum, Jr., of Las Vegas, for Appellants.
Paul H. Schofield, City Attorney, North Las Vegas, for Respondent.
Albright & McGimsey, Special Counsel, City of Las Vegas, Kent J. Dawson, City
Attorney, City of Henderson, and James E. Ordowski, City Attorney, City of Boulder City,
for Amicus Curiae.
For concept of de facto annexation to be applied four elements must be present: (1) constitutional or
statutory provision under which annexation might lawfully have been accomplished; (2) attempted
compliance in good faith with provisions; (3) colorable compliance with provisions; (4) assumption in
good faith of municipal powers over annexed territory.
Colorable compliance with constitutional or statutory provisions under which annexation of area might
lawfully have been accomplished does not exist if defect is of a material nature as opposed to a technical
defect.
Test of whether defect in annexation procedures is so material that it vitiates colorable compliance with
applicable statute so that concept of de facto annexation cannot be applied is whether error was so
substantial as to result in injustice.
Where determination of validity of annexation petition required that court construe statute and fix basis
for determination of the 10 percent of property owners required for annexation petition, there was
colorable compliance with statute until interpretation was made, and error as to number of signatures
required on petition was of technical and unsubstantial nature, for purpose of determining whether de facto
annexation existed prior to entry of court's opinion. NRS 268.582.
Where de facto annexation existed prior to Supreme Court decision which ruled invalid relevant
annexation ordinances, and City had provided all municipal services for apparently annexed areas during
period of de facto annexation, City would not be required to return to taxpayers money paid during that
period. 6.
6. Appeal and Error; Costs.
Supreme Court would not consider assertion on appeal that trial court improperly disallowed award of
attorney fees, where appellants failed to cite any authority for claimed error, and statute allowed award of
attorney fees only if a plaintiff was prevailing party, and appellants were not prevailing parties in damage
suit. NRS 18.010, subd. 3(a).
OPINION
This court in County of Clark v. City of North Las Vegas, 89 Nev. 10, 504 P.2d 1326
(1973), ruled invalid two annexation ordinances adopted by the City of North Las Vegas. We
held that a proper construction of NRS 268.582 rendered the petitions for annexations
inadequate and that the action by the City in confirming the annexations was invalid. The
taxpayers now seek return of their monies paid during the period of the annexation. The trial
court denied them relief on the ground that the annexations were de facto and therefore
effective for the period of time that they were approved by the trial court until subsequently
our decision reversing that judgment on appeal was rendered.
In relation to that determination the trial court ruled that the City of North Las Vegas acted
under color of delegated authority and valid statutes in attempting annexations nos. 38 and
41, that there was colorable compliance with the annexation statutes, that the City had
assumed full responsibility for the annexed areas and during such annexation period provided
all municipal services thereto and that any errors in regard to these annexations were
technical errors.
The above-stated finding by the trial court that services were provided to the annexed areas
is undisputed. We feel, also, that to avoid these damages a stay of execution of the trial
court's approval of the annexations or a writ of prohibition to halt its enforcement pending the
original appeal should have been sought. In those instances the final decision would have
come earlier and the payments avoided. Instead, the City, acting in reliance on the trial court's
judgment, proceeded with the annexations, the collection of the taxes and the providing of
services to the annexed areas.
[Headnote 1]
De facto annexation is predicated on the prevention of substantial disruptions that may
result in the disannexation of an area.
area. For the concept of de facto annexation to be applied four elements must be present: (1) a
constitutional or statutory provision under which the annexation might lawfully have been
accomplished; (2) an attempted compliance in good faith with the provisions; (3) a colorable
compliance with the provisions; and (4) an assumption in good faith of municipal powers
over the annexed territory. Port Valdez Company, Inc. v. City of Valdez, 522 P.2d 1147
(Alaska 1974); Ash Realty Corporation v. City of Milwaukee, 130 N.W.2d 260 (Wis. 1964);
see also Peterson v. Bountiful City, 477 P.2d 153 (Utah 1970). We are concerned here with
the issue of whether or not there was colorable compliance.
[Headnotes 2, 3]
Colorable compliance with the statutory provisions does not exist if the defect is of a
material nature as opposed to a technical defect. Port Valdez Company, Inc. v. City of
Valdez, supra; Peterson v. Bountiful City, supra. Whether a procedural defect is so material
that it vitiates colorable compliance with the applicable statute and thereby strips the
annexation of de facto municipality protection parallels the test of plain error in civil cases;
whether the error is so substantial as to result in injustice. Port Valdez Company, Inc. v. City
of Valdez, supra.
[Headnote 4]
Our holding in County of Clark v. City of North Las Vegas, supra, was that as to
annexation no. 38, the petition did not properly describe the unincorporated areas developed
for urban purposes which was proposed for annexation; as to annexation no. 41, the petition
did not contain the necessary number of signatures as required by statute. Our task on that
appeal was to construe the uncertainty of the meaning of NRS 268.582 as to what constituted
the basis for determination of the 10 percent of property owners required for an annexation
petition. Not until the entry of that opinion was doubt removed and the defect in the
annexation petitions determined. Until then how many signatures were required for how
much area was anybody's guess except that areas were described and signatures affixed in
good faith to a reasonable approximation. It is apparent that in a case such as this where a
statutory interpretation must be rendered in order to determine the validity of an annexation
petition that there is colorable compliance with the statutory provisions until such
interpretation is made. Further, such an error is of a technical and unsubstantial nature under
these circumstances. This was not the case in Peterson v. Bountiful City, supra, where the
statute was clear but the number of signatures was still nevertheless insufficient.
Peterson v. Bountiful City, supra, where the statute was clear but the number of signatures
was still nevertheless insufficient.
[Headnote 5]
We agree with the trial court's application of the doctrine of de facto annexation and that
de facto annexation existed in this case. To compel the City of North Las Vegas to give the
taxpayers their money back after the services for which the taxes were collected were
performed would be manifestly unfair.
[Headnote 6]
The only other issue raised on appeal that need be discussed is appellants' assertion that the
trial court improperly disallowed the awarding of attorney fees. Appellants fail to cite any
authority for this claimed error and thus it need not be considered. General Electric Co. v.
Bush, 88 Nev. 360, 498 P.2d 366 (1972). Further, NRS 18.010(3)(a) allows attorney fees to
be awarded only if a plaintiff is the prevailing party, which appellants were not in this action
for damages.
Affirmed.
Mowbray and Thompson, JJ., concur.
Gunderson, C. J., with whom Batjer, J., agrees, dissenting:
I cannot agree that the facts of this case in all respects meet the four requirements
necessary for de facto annexation, as defined by the majority, i.e. (1) a statutory scheme; (2)
attempted compliance in good faith; (3) colorable compliance; and (4) an assumption in good
faith of municipal power over the annexed property.
Our original opinion, wherein we declared the attempted annexation of Parcels Nos. 38
and 41 wholly nugatory, was filed January 10, 1973. 89 Nev. at 14. Because of intervening
motions by the North Las Vegas City Attorney, the case was not actually remitted to the
district court until March 29. On March 30, the district court ordered the annexed property
returned to the county.
First, I suggest that as of January 10, 1973, if not before, the City of North Las Vegas had
clear notice its exercise of municipal power was invalid. If, indeed, de facto annexation ever
was present, it would have to terminate as of that date. From the record, one cannot discern if
funds were taken by the City between January 10 and March 30, but the record most certainly
does not foreclose this possibility, and most certainly such funds could not have been taken
in "good faith."
certainly such funds could not have been taken in good faith. During oral argument, the
North Las Vegas City Attorney acknowledged this.
1
At a minimum, on remand, as its
counsel candidly admits, the City should account for any monies received after January 10,
1973.
Second, I suggest colorable compliance never existed with respect to Parcel No. 38.
Assuming that colorable compliance requires a defect of a technical rather than material
nature, how can we consider the defects with respect to Parcel No. 38 merely technical? The
problem with respect to Parcel No. 38 was more than a mere misdescription of the land. The
City circulated a proper petition for Parcel No. 39 and then attempted to file the petition for
the purpose of annexing No. 38, an area 1/6 the original size. In effect, no petition at all has
been filed. Of course, the petition contained an adequate number of signatures by landowners
within Parcel No. 38but these people signed the petition under the mistaken belief that a far
larger parcel was to be annexed.
No oneand certainly not the North Las Vegas city fatherscould presume to say how
the citizens would have reacted if they had been asked about Parcel No. 38, which the City
ultimately sought to annex.
In Peterson v. Bountiful City, 477 P.2d 153 (Utah 1970), a case the majority have cited,
the Utah Supreme Court allowed an action for return of funds where the city failed to secure
the required number of landowners in favor of annexation. In City of Birmingham v. Bouldin,
190 So.2d 279 (Ala. 1966), the Alabama Supreme Court held annexation void because the
statutory notice provision was not complied with prior to an annexation election. The defects
involved in those cases were considered to be of a substantial nature.
____________________

1
At oral argument, the following colloquy took place:
Chief Justice Gunderson: I have a little difficulty seeing how the City could claim to be in good faith in
taking the revenue beyond the time of our original decision, and I think you'd have to concede that, at that point,
they were on rather clear notice that they did not hold property under color of law. Wouldn't you agree with
that?
Mr. Schofield: I would agree to that right now, your honor.
Chief Justice Gunderson: Do you think then that, at least insofar as the decision [now on appeal] fixes a
date beyond our initial decision, that it is incorrect?
Mr. Schofield: I believe so, your honor. Again, I don't know if that's the case. I assume it is until the final
order came down, but I would not argue at all with that. And that was not the intent, of course, of our argument
on the motion to go on remittitur. That very question, in fact, has never come up before. But I would concur
100%. January 10 would be the date
At least as to Parcel No. 38, we are not concerned with a mere technical defect.
Respondent simply failed to comply with the statutory scheme.
____________
91 Nev. 719, 719 (1975) Warden v. Shuff
HENRY E. SHUFF, Respondent.
No. 8361
November 4, 1975 541 P.2d 1105
Appeal from order granting habeas corpus (post-conviction) relief, First Judicial District
The Supreme Court held that prisoner who chose to go to trial without challenging
information and who did not raise issue of failure of information to specify the means by
which crime of second-degree murder was committed either during trial or on appeal was
proscribed from bringing the challenge by way of habeas corpus.
Reversed.
Robert List, Attorney General, D. Geno Menchetti, Chief Deputy, and David B. Small,
Deputy, Carson City, for Appellant.
Horace R. Goff, State Public Defender, and Gary D. Armentrout, Deputy, Carson City, for
Respondent.
Habeas Corpus.
Petitioner who chose to go to trial without challenging information and who did not raise issue of
failure of information to specify the means by which crime of second-degree murder was committed
either during trial or on appeal was proscribed from bringing the challenge in habeas corpus proceeding.
OPINION
Per Curiam:
Henry E. Shuff, convicted of murder in the second degree by a Clark County jury, was, on
November 3, 1969, sentenced to a twenty (20) year term in the Nevada State Prison. His
conviction was affirmed in Shuff v. State, 86 Nev. 736, 476 P.2d 22 (1970).
In March 1975, Shuff petitioned for habeas corpus (post-conviction) relief in the First
Judicial District Court, Carson City, contending his conviction must be set aside because of
an infirmity in the information upon which he was tried and convicted.
91 Nev. 719, 720 (1975) Warden v. Shuff
an infirmity in the information upon which he was tried and convicted. The district judge,
relying on our decision in Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972),
voided Shuff's conviction because the information did not specify the means by which the
crime was committed.
Effectiveness of the district judge's order was deferred, if the state appealed, which it did.
Appellant contends the district judge's reliance on Simpson was misplaced and we are,
therefore, compelled to reverse. We agree.
In Simpson we ruled that . . . when an accused proceeds to trial without challenging the
indictment . . . he should not be heard to complain if the indictment, with the Grand Jury
transcript, gave notice of what later transpired at trial; . . . 88 Nev. at 661, 503 P.2d at 1230.
This language is equally applicable to an information and the transcript of a preliminary
examination. Here, it appears from the record that Shuff had pulled a knife from his pocket
and thrust it into the victim's throat.
Since Shuff chose to go to trial without challenging the information and he neither raised
the issue during trial nor on his appeal, he is proscribed from bringing the challenge at this
late date. Simpson, supra. Cf. NRS 177.375(2).
Reversed.
____________
ROBERT LOUIS RHODES, Appellant, v. STATE
No. 7826
November 12, 1975 542 P.2d 196
Appeal from judgment of First Judicial District Court, Carson City; Frank B. Gregory,
Judge.
Defendant was convicted in the district court of attempted murder, and he appealed. The
Supreme Court held that admission of testimony from a parole counselor concerning
defendant's juvenile record was not error under circumstances, and that trial court did not err
in failing, sua sponte, to give a cautionary instruction once defendant's expert gave testimony
on cross-examination regarding defendant's previous criminal activity.
Affirmed.
Horace Rodlin Goff, State Public Defender, and Michael R. Griffin, Deputy Public
City; Michael Fondi, District Attorney, Carson City, for Respondent.
1. Criminal Law.
Statute providing that evidence of juvenile adjudications is not admissible for purpose of attacking
credibility of a witness was never intended to aid and abet perjury and, as with most statutes, is subject to
doctrine of invited error. NRS 50.095, subd. 4.
2. Criminal Law.
When a defendant voluntarily, and in less than a truthful light, opens his juvenile record to jury, he may
not hide behind protective shield of statutory prohibition against admission of evidence concerning juvenile
adjudications for purpose of attacking credibility. NRS 50.095, subd. 4.
3. Criminal Law.
Once defendant testified on direct examination that he had voluntarily turned himself in to juvenile
authorities to avoid choosing sides with his parents, who were obtaining a divorce, and answered in
negative to question on cross-examination whether he was returned to juvenile authorities because he had
been molesting his sister, trial court did not err in admitting testimony on rebuttal from defendant's parole
counselor that defendant was returned to juvenile detention center because of his behavior in his father's
home. NRS 50.095, subd. 4.
4. Criminal Law.
Failure to object, assign misconduct, or request an instruction will generally preclude appellate
consideration, but where errors are patently prejudicial and inevitably inflame or excite passions of jurors
against an accused, rule does not apply inasmuch as it is duty of court to see that an accused receives a fair
trial.
5. Criminal Law.
Where defendant, represented by his counsel, through his own testimony and that of his expert witness,
brought his state of mind into issue, his failure to request a special instruction to jury once expert gave
testimony in cross-examination relating to defendant's previous criminal activity operated to preclude
appellate consideration.
6. Criminal Law.
Trial court did not err in failing, sua sponte, to give a cautionary instruction once defendant's expert gave
testimony on cross-examination concerning defendant's previous criminal activity.
OPINION
Per Curiam:
A jury found Robert Louis Rhodes guilty of attempted murder. He has appealed from his
judgment of conviction, asserting several assignments of error that we reject as meritless. We
therefore affirm the judgment of the lower court.
Rhodes, who was confined to the Nevada State Prison, attempted to escape by hiding in a
laundry cart that was loaded into a truck and driven out of the prison yard. After exiting the
prison, Rhodes emerged from the laundry cart and threatened the driver of the truck with
a knife, ordering him to drive to Reno.
prison, Rhodes emerged from the laundry cart and threatened the driver of the truck with a
knife, ordering him to drive to Reno. The driver, who was a guard at the prison, agreed to do
so, but he suggested that Rhodes hide in the cart so that his departure would not be observed
by the guards in the tower. Rhodes complied, but the guard, instead of driving toward Reno,
returned to the prison gate. When Rhodes found that they were back at the gate, he became
furious and stabbed the guard. Rhodes was soon subdued by other prison personnel who came
immediately to the guard's rescue.
At trial, Rhodes testified and admitted everything that had occurred during the abortive
escape attempt, including possession of the knife, except he claimed he could not remember
what occurred from the time the laundry truck returned to the prison gate until the prison
officers subdued him. As a result, the sole issue at trial focused on Rhodes's intent to commit
the crime charged.
1. Rhodes, during his direct testimony, told the jury that he was serving consecutive
prison terms on two separate charges, murder and assault with intent to commit rape. He
related to the jury his background with the juvenile authorities, including juvenile
adjudications to the Clark County Juvenile Home and the Nevada Youth Training Center. He
further testified on direct that he had voluntarily turned himself in to the juvenile authorities
to avoid choosing sides with his parents, who were obtaining a divorce. On
cross-examination, he was asked if he was not returned to the juvenile authorities because he
had been molesting his sister. Although the court sustained defense counsel's objection to the
question, Rhodes responded in the negative. On rebuttal, the State called Rhodes's parole
counselor, Patrick Hertzel, who testified that Rhodes was returned to the juvenile detention
center because of his behavior in his father's home.
1
Rhodes, citing NRS 50.095, subsection
4,
2
claims that the State committed error in introducing evidence relating to his juvenile
record.
____________________

1
By Mr. Ahlswede, Deputy Attorney General:
Q. State why he was recommitted.
A. [by Patrick Hertzel, former Youth Parole Counselor] Well, he was returned because of a deterioration in
his behavior and ability to adjust at home in my estimation. His father informed me that he was becoming fearful
of Robert's behavior around the home when he and his wife were gone and because of abusive acts towards his
sister.

2
NRS 50.095 Impeachment by evidence of conviction of crime.
. . .
4. Evidence of juvenile adjudications is inadmissible under this section.
. . .
[Headnotes 1-3]
It is true that NRS 50.095, subsection 4, provides that evidence of juvenile adjudications is
not admissible for the purpose of attacking the credibility of a witness. However, the statute
was never intended to aid and abet perjury and, as with most statutes, is subject to the
doctrine of invited error. See People v. Simmons, 172 P.2d 18 (Cal. 1946). When a defendant
voluntarily, and in less than a truthful light, opens his juvenile record to the jury, he may not
hide behind the protective shield of the statute. See Davis v. Alaska, 415 U.S. 308 (1974); cf.
Harris v. New York, 401 U.S. 222 (1971). Under the factual posture of this case, the court did
not err in admitting the testimony relating to Rhodes's juvenile record.
[Headnotes 4-6]
2. Dr. Zora Young, a psychiatrist appointed by the court to examine Rhodes, testified
regarding his state of mind at the time of the stabbing. His somewhat equivocal conclusions
were based in part on what Rhodes himself had told Doctor Youngthat he had blacked out
during the stabbing and had no intention of committing the act. On cross-examination, the
following colloquy occurred:
Q. [by Mr. Ahlswede] Now you are relying to some degree on what the defendant told
you; isn't that true?
A. [by Doctor Young] Yes, I am.
Q. You are relying upon the truthfulness of his representations to you at times; isn't that
correct?
A. Yes.
Q. And in your report isn't it true that you stated, His statements cannot be entirely
trusted, however, because he states that the time he shot a 7-11 store clerk in Las Vegas, he
denied that he shot the man with any deliberation and said that the gun went off accidentally
when he was questioned by the authorities about this incident. At the time of this
examination,' meaning your examination in October, he confides that he had an angry urge to
shoot the clerk and he had angry thoughts of paying people back for what they had done to
him and his brother.'?
A. Yes.
Q. So the defendant then is not to be trusted in his statements; isn't that true?
A. That's right.
Q. And he would have a tendency to say anything that would help him out of some
trouble that he would find himself in; isn't that true?
A. Yes. No objection was lodged by defense counsel to the above
cross-examination.3 On this appeal, however, Rhodes urges that the trial judge erred in
not giving, sua sponte, an appropriate cautionary instruction regarding the testimony
relating to Rhodes's previous criminal activity, citing Garner v. State, 7S Nev. 366
No objection was lodged by defense counsel to the above cross-examination.
3
On this
appeal, however, Rhodes urges that the trial judge erred in not giving, sua sponte, an
appropriate cautionary instruction regarding the testimony relating to Rhodes's previous
criminal activity, citing Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962). Rhodes's reliance
on Garner is misplaced. Garner was tried without benefit of a counsel. From the opening
statement to the closing argument, repeated references were made to Garner's police record.
This court, in Garner, recognized the general rule that failure to object, assign misconduct, or
request an instruction will preclude appellate consideration. However, where errors are
patently prejudicial and inevitably inflame or excite the passions of jurors against an accused,
the general rule does not apply, for it is the duty of the court to see that an accused receives a
fair trial. In the instant case, Rhodes, represented by his counsel, through his own testimony
and that of his expert witness, brought his state of mind into issue. His failure to request a
special instruction to the jury precludes appellate consideration. State v. Fouquette, 67 Nev.
505, 221 P.2d 404 (1950); Clark v. State, 89 Nev. 392, 513 P.2d 1224 (1973); Cook v. State,
77 Nev. 83, 359 P.2d 483 (1961). The court below did not err in failing, sua sponte, to give a
cautionary instruction relating to the testimony directed to Rhodes's prior criminal activity.
Other assigned errors have been considered and are meritless.
Affirmed.
____________________

3
An adversary may inquire as to the facts upon which the opinion is based. Wallace v. State, 84 Nev. 603,
447 P.2d 30 (1968).
____________
GEORGE WALKER, Appellant, v. THE STATE
No. 7767
November 12, 1975 542 P.2d 438
Appeal from judgment of Eighth Judicial District Court, Clark County; Clarence Sundean,
Judge.
Defendant was convicted before the district court of sale of a controlled substance, and he
appealed. The Supreme Court held that whether to believe testimony of undercover agent that
he purchased heroin from defendant or defendant's denial of the sale was for jury, that
district court did not err in refusing continuance for purpose of subpoenaing individual
who allegedly introduced undercover agent to defendant and that record demonstrated
proper showing of chain of custody of the heroin.
the sale was for jury, that district court did not err in refusing continuance for purpose of
subpoenaing individual who allegedly introduced undercover agent to defendant and that
record demonstrated proper showing of chain of custody of the heroin.
Affirmed.
Morgan D. Harris, Public Defender, and Thomas L. Leen, Deputy Public Defender, Clark
Robert List, Attorney General, Carson City; George Holt, District Attorney, and Dan M.
1. Criminal Law.
It is the function of the jury, not the appellate court, to weigh the evidence and pass on the credibility of
witnesses.
2. Criminal Law.
A verdict supported by substantial evidence cannot be disturbed on appeal.
Whether to believe testimony of undercover narcotics agent that he purchased heroin from defendant or
defendant's testimony denying sale was for the jury in prosecution for sale of a controlled substance. NRS
453.321.
4. Criminal Law.
Refusing a continuance, as requested by defendant on first day of trial, for purchase of subpoenaing a
witness incarcerated in State Prison was not abuse of discretion where defense counsel did not wish to call
witness, although he made defendant's views known to trial judge, no subpoena had been issued and no
motion for a continuance made as provided in court rule. DCR 21.
5. Criminal Law.
Record, which included testimony of undercover agent as to his handling of heroin purchase as well as
appellant's testimony concerning his acquisition of the matter, demonstrated proper showing of chain of
custody of the heroin. NRS 453.321.
OPINION
Per Curiam:
A jury found George Walker guilty of the sale of a controlled substance (heroin), in
violation of NRS 453.321. Since this was his second conviction for the sale of heroin, Walker
was sentenced to life imprisonment in the Nevada State Prison without possibility of parole,
as mandated by NRS 453.321. Walker has appealed from his judgment of conviction, seeking
reversal on several grounds, which we reject as meritless; therefore, we affirm the
judgment of the lower court.
as meritless; therefore, we affirm the judgment of the lower court.
On February 23, 1973, William Arnold, an undercover narcotics agent for the State of
Nevada, approached one Johnny Benson in the Brown Derby bar in Las Vegas, seeking to
purchase heroin. After some preliminary discussion, Benson took Arnold to meet Walker, and
Arnold purchased from Walker a balloon containing heroin, for $30. Walker took the stand
and denied the sale.
[Headnotes 1-3]
Walker claims on appeal that the evidence was insufficient to support the jury's verdict.
The rule is well established that it is the function of the jury, not the appellate court, to weigh
the evidence and pass upon the credibility of the witness. A verdict supported by substantial
evidence may not be disturbed on appeal. Apparently the jury believed Arnold rather than
Walker, which was their prerogative. Where there is substantial evidence to support a
verdict in a criminal case, as the record indicates exists in this case, the reviewing court will
not disturb the verdict nor set aside the judgment. Sanders v. State, 90 Nev. 433, 434, 529
P.2d 206, 207 (1974). See also Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (1972); Cross v.
State, 85 Nev. 580, 460 P.2d 151 (1969).
[Headnote 4]
Walker also complains that the district judge erred in refusing a continuance of the trial on
the date it had started, for the purpose of subpoenaing Johnny Benson, who was incarcerated
in the State Prison, to testify in Walker's behalf. The record shows that Walker's attorney did
not wish to call Benson, although he made Walker's views known to the trial judge.
1
No
subpoena had been issued for Benson, nor a motion for continuance made, as provided in
DCR 21.
____________________

1
COURT: Let the record show we are convening in the absence of the jury at the request of counsel for the
defendant.
You may proceed.
MR. HUBBARD [defendant's counsel]: As I discussed with you in chambers, with the Assistant District
Attorney, Your Honor, from the time I have been assigned this case I have had approximately six interviews in
jail with my client. I have had an opportunity to review the arrest report and the basic evidence that the State will
be presenting against my man. Now, actually during my trial preparation I determined that it would not be in the
best interest of my client to subpoena the co-defendant, Mr. Benson. It is my understanding that Mr. Benson
negotiated a plea with the District Attorney's Office either on this charge or a similar charge and he is presently
incarcerated in State Prison in Carson City. Now, the defendant tells me at the noon recess today that he felt Mr.
Benson, and this incidentally is the first
for continuance made, as provided in DCR 21. See Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918
(1969). There is no merit to Walker's contention.
[Headnote 5]
Walker also asserts that, because of the State's failure to establish a proper chain of
custody, the trial court committed error in admitting in evidence the heroin. Arnold testified
that he placed the balloon containing the heroin that he purchased from Walker, in his glass
case, and then put it in a State narcotics evidence envelope, which he deposited in the
evidence impound at the State Narcotics Division office in Las Vegas; that he personally
hand-delivered the proposed exhibits to the justice court, where they were received in
evidence at the preliminary hearing. Richard Russell Renner, a chemist with the Las Vegas
Metropolitan Police Department, testified that he removed the above-named exhibits from the
county clerk's office for laboratory testing a few days before the district court trial and then
returned the exhibits to the clerk. No objection was made at the time the exhibits relating to
the balloon and heroin were received in evidence. Earlier in the trial, defense counsel had
stated to the court that he would have no objection to the admission of the exhibits if a proper
chain of custody from the time of arrest were established. Apparently counsel was satisfied,
for he made no objection when the exhibits were formally offered.
____________________
time that he has mentioned it to me, in regard to subpoenaing Mr. Benson or I would have done it, but against
my advice because I really felt that Mr. Benson would not help my client's case, Mr. Walker has asked that we
have Mr. Benson here to testify on his behalf and I realize that the man is in the State Prison and that it would
probably take a few days to get him down here, so at this time I am making the motion to have Mr. Benson
brought down here as a witness.
COURT: Have you previously discussed with the defendant the advisability of having Mr. Benson here?
MR. HUBBARD: Yes, sir, I believe on one of my interviews in the jail that I suggested to Mr. Walker that it
would not be in his best interests to have Mr. Benson testify.
. . .
COURT: You are of the personal opinion that he would not be helpful to the defense of this case?
MR. HUBBARD: Yes, Your Honor.
COURT: But you feel that it is encumbent [sic] upon you because of Mr. Walker's request that you move
for a continuance?
MR. HUBBARD: Yes, sir, that's true.
COURT: Well, I think there hasn't been a proper showing for a continuance based on the absence of the
witness or that there has been sufficient diligence used in having him here for the trial, and that the motion is
made too late. The motion is denied.
exhibits were formally offered. A review of the record demonstrates a proper showing of a
chain of custody of the evidence received. See Sorce v. State, 88 Nev. 350, 497 P.2d 902
(1972); Ricci v. State, 91 Nev. 373, 536 P.2d 79 (1975).
Finally, Walker argues that he was denied due process because of the inadequacy of his
counsel. We find this charge completely without merit.
Affirmed.
____________
91 Nev. 728, 728 (1975) Grogan v. County of Esmeralda
JAMES PATRICK GROGAN, d/b/a SANTA FE CLUB, Appellant, v. THE COUNTY OF
ESMERALDA and NATHAN L. MERRITT, Jr., Chairman of the Liquor Board for the
County of Esmeralda, HENRY DAHLSTROM, ROBERT HARTMAN and KENNETH E.
SIRI, Members of the Liquor Board for the County of Esmeralda, Respondents.
No. 8328
November 13, 1975 541 P.2d 1101
Appeal from order denying petition for writ of mandamus, Fifth Judicial District Court,
Esmeralda County; John F. Sexton, Judge.
Eric Lubel, Las Vegas, for Appellant.
Alan R. Harter, District Attorney, Esmeralda County, for Respondents.
OPINION
Per Curiam:
This appeal, which is in progress, is from an order denying appellant's petition for a writ of
mandamus to compel respondents to reinstate a liquor license.
Respondents did not timely file their answering brief and appellant has filed a motion for
confession of error, under NRAP 31(c). Respondents have neither opposed the motion nor
offered any reason for their failure to do so.
Under these circumstances and for the same reasons stated in, and on the authority of,
Kitchen Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677 (1975), we grant the motion and
reverse the order of the district court. NRAP 31 (c).
91 Nev. 728, 729 (1975) Grogan v. County of Esmeralda
This case is remanded to the district court with instructions to grant the petition for
mandamus to compel respondents to reinstate James Patrick Grogan's liquor license
forthwith.
____________
91 Nev. 729, 729 (1975) Sheriff v. Smith
SHERIFF, WASHOE COUNTY, NEVADA, Appellant,
v. EDWARD LEROY SMITH, Respondent.
No. 7908
November 14, 1975 542 P.2d 440
Appeal from pretrial habeas order declaring NRS 200.030(1)(e) to be unconstitutional;
Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
The district court granted defendant pretrial habeas corpus and declared capital murder
statute unconstitutionally vague and thus void, and the State appealed. The Supreme Court,
Mowbray, J., held that that phrase common plan, scheme or design as used in capital
murder statute defining capital murder as the killing of more than one person as result of
common plan, scheme or design, was clearly intended to mean a single plan involving several
contemplated killings, for which a more severe deterrent and punishment would reasonably
be allowed, and that statute was thus not unconstitutionally vague.
Reversed.
Kathleen M. Wall, Assistant Chief Deputy District Attorney, Washoe County, for Appellant.
H. Dale Murphy, Public Defender, and Michael R. Specchio, Deputy Public Defender,
Washoe County, for Respondent.
Due process under the Fifth and Fourteenth Amendments requires that a statute must be definite, and this
principal is strictly applied to penal statutes, for life, liberty, or property may not be placed in jeopardy by a
statute which provides no warning or notice of the prohibited conduct. U.S.C.A.Const. Amends. 5, 14.
In assessing a statute's constitutional validity, the judiciary has long recognized a strong presumption that
a statute duly enacted by the Legislature is constitutional.
3. Criminal Law.
The phrase common plan, scheme or design as used in the common law, means in one context
a single plan or scheme contemplating two or more offenses before the plan has been
completed, so that one offense cannot be proved without proving the others, and
means in another context the perpetration of two independent and unrelated
offenses which have sufficient number of elements in common to make the
commission of the first relevant to a determination of the modus operandi and thus
identity of the perpetrator of the second offense.
common law, means in one context a single plan or scheme contemplating two or more offenses before the
plan has been completed, so that one offense cannot be proved without proving the others, and means in
another context the perpetration of two independent and unrelated offenses which have sufficient number
of elements in common to make the commission of the first relevant to a determination of the modus
operandi and thus identity of the perpetrator of the second offense.
4. Homicide.
An accused could not be found guilty of capital murder for committing multiple homicides without
malice aforethought. NRS 200.010, 200.030, subd. 1 (e).
5. Statutes.
It is a rule of statutory interpretation that the unreasonableness of the result produced by one of many
alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another
interpretation which would produce a reasonable result.
The mere fact that one among many alternative constructions of a statute would involve serious
constitutional difficulties is reason to reject that interpretation in favor of another.
7. Statutes.
The stated purpose of legislation is a factor considered by courts in interpreting a given statute.
8. Statutes.
Where a former statute is amended, or a doubtful interpretation of a former statute rendered certain by
subsequent legislation, such amendment is persuasive evidence of what the Legislature intended by the first
statute.
9. Homicide.
The phrase common plan, scheme or design, as used in prior first-degree murder statute, and phrase
single plan, scheme or design, as used in subsequent statute defining capital murder as killing more than
one person willfully and with premeditation as result of a single plan, scheme of design, contemplate a
single plan involving more than one killing, which would justify a more severe deterrent and punishment
than other killings not involving planned multiple murder. NRS 200.030, subd. 1(e).
10. Criminal Law.
Provisions of capital murder statute under which defendant was charged, defining capital murder as the
killing of more than one person as result of a common plan, scheme or design, refers to a single plan
involving several contemplated killings, and has a definite meaning and is not unconstitutionally vague.
U.S.C.A. Const. Amends. 5, 14; NRS 200.030, subd. 1(e).
OPINION
Edward Leroy Smith is charged in a three-count indictment with two counts of first-degree
murder in violation of NRS 200.030, subsection 2{a),1 and with one count of capital
murder in violation of NRS 200.030, subsection 1{e).2 In a pretrial habeas proceeding,
Smith challenged the constitutionality of the capital murder statute, seeking to have it
declared void for vagueness.
200.030, subsection 2(a),
1
and with one count of capital murder in violation of NRS
200.030, subsection 1(e).
2
In a pretrial habeas proceeding, Smith challenged the
constitutionality of the capital murder statute, seeking to have it declared void for vagueness.
The district judge so ruled, and the State has appealed.
[Headnotes 1, 2]
To be constitutional, a statute must be definite. Cramp v. Board of Pub. Instruction, 368
U.S. 278 (1961). Due process under the Fifth and Fourteenth Amendments requires strict
application of this principle to penal statutes, for life, liberty, or property may not be placed in
jeopardy by a statute which provides no warning or notice of the prohibited conduct. Winters
v. New York, 333 U.S. 507 (1948). In assessing a statute's validity, however, the judiciary has
long recognized a strong presumption that a statute duly enacted by the Legislature is
constitutional. Maye v. Commonwealth, 189 S.E.2d 350, 351 (Va. 1972); In re King, 90
Cal.Rptr. 15, 23, 474 P.2d 983, 991 (1970); People v. Jones, 64 Cal.Rptr. 622, 624 (Cal.App.
1967); State v. Bailey, 236 P. 1053 (Ore. 1925). The inevitable tension between these
principles has not been eased by the putative formulas or tests for vagueness that do little
more than rephrase the principle of definiteness.
3
It is with both concepts in mind, then, that
we analyze the Nevada legislative provisions defining capital murder as the killing of more
than one person as the result of a common plan, scheme or design.
[Headnote 3]
The phrase common plan, scheme or design has acquired a common law usage that
admits of two different interpretations. In its widely used sense, the phrase relates to evidence
of uncharged crimes admissible during trial where one act, plan, or scheme involves the
commission of two or more crimes under circumstances that would make it impossible to
prove one crime without proving all the crimes.
____________________

1
NRS 200.030, subsection 2(a):
2. Murder of the first degree is murder which is:
(a) Perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and
premeditated killing;

2
NRS 200.030 subsection 1(e), as amended, Stats. Nev. 1973, ch. 798, 5, at 1803:
. . .

3
One such test focuses on whether a statute, by its terms, is so vague that men of common intelligence must
speculate as to its meaning. Cramp v. Board of Pub. Instruction, supra.
plan, or scheme involves the commission of two or more crimes under circumstances that
would make it impossible to prove one crime without proving all the crimes. Such was the
definition accorded the phrase by this court in State v. Nester, 75 Nev. 41, 334 P.2d 524
(1959). In Nester, permitting evidence of another offense to show a common scheme or plan
was carefully distinguished from a second evidentiary principle which admits evidence of a
prior offense to prove identity, where specific features or peculiarities of a crime previously
committed by the defendant serve as a kind of trademark when they appear in the
subsequent crime. This latter sense is the second context in which the phrase common plan
or scheme has been used: crimes committed under a similar modus operandi that tends to
establish the identity of the perpetrator. See People v. Paxton, 62 Cal.Rptr. 770 (Cal.App.
1967).
[Headnote 4]
Thus, the phrase common plan or scheme has acquired a common law usage in one
context that means a single plan or scheme contemplating two or more offenses before the
plan has been completed, and that means in another context the perpetration of two
independent and unrelated offenses having a sufficient number of elements in common to
make the commission of the first relevant to a determination of the identity of the perpetrator
of the second. The issue before the court is whether the existence of these two different
meanings makes NRS 200.030(1)(e) so vague as to render it unconstitutional. The district
judge, in declaring NRS 200.030(1)(e) void for vagueness, ruled in part:
. . . One could . . . perpetrate two or more unrelated homicides, both without
premeditation, deliberation and malice aforethought and be guilty of capital murder if he
commits the murders in substantially the same way.
[4]
On the other hand, one could commit
two unrelated homicides, with premeditation, deliberation, and malice aforethought in the
most atrocious manner and not by vulnerable to a charge of capital murder if the two
homicides were committed in dissimilar ways.
____________________

4
The suggestion that under NRS 200.030(1)(e) one could be guilty of capital murder for committing multiple
homicides without malice aforethought is without merit, since the statute defines capital murder as murder
perpetrated by killing more than one person as the result of a common plan, scheme, or design; and under NRS
200.010, murder is defined as the unlawful killing of a human being with malice aforethought.
ways. This Court does not believe the Legislature intended such arbitrary and irrational
results. (Footnote added.)
[Headnotes 5-8]
A fundamental rule of statutory interpretation
5
is that the unreasonableness of the result
produced by one among alternative possible interpretations of a statute is reason for rejecting
that interpretation in favor of another that would produce a reasonable result.
6
Adoption of
the district judge's independent-and-unrelated-offense interpretation of the statute would lead
indeed to unreasonable results. It would ascribe to the Legislature a purpose to punish more
severely one who murdered a series of victims in a characteristic manner than one who
murdered a series of victims in an uncharacteristic manner. Additionally, with no rational
basis for such a distinction, this interpretation would render NRS 200.030(1)(e) violative of
the equal protection clause of the Fourteenth Amendment to the United States Constitution.
As a corollary to the previously mentioned presumption favoring the constitutionality of
legislation, the mere fact that one among alternative constructions of a statute would involve
serious constitutional difficulties is reason to reject that interpretation in favor of another. In
re King, supra; People v. Jones, supra. Further, the interpretation adopted by the trial court is
inconsistent with the purpose of the statute as expressed by the Legislature in the preamble to
NRS 200.030{1){e).
____________________

5
It has long been recognized that criminal and penal statutes are to be interpreted with the aid of all of the
usual rules of statutory construction. While the rule of strict construction is an additional factor to be considered
by courts in ascertaining the meaning of criminal statutes, it is still only one of several factors to be considered
and is to be utilized in conjunction with the other rules of statutory construction. See People v. Breyer, 34 P.2d
1065, 1066 (Cal.App. 1934), where the court stated: [T]he rules of construction applicable to civil statutes also
apply to penal statutes . . . See, also, State v. Ledkins, 303 P.2d 1099, 1101 (Utah 1956), where the court ruled:
[I]t is well established that the same basic rules apply to statutory construction of criminal and civil statutes.
And compare 2 C. Sands, Statutes and Statutory Construction, 44.19, at 366-367 (4th ed. 1973), where it is
stated: In keeping with the principle of statutory construction that criminal statutes are to be strictly construed
against the state, penal statutes tend to be more often struck down for partial invalidity than purely civil
enactments, even though the same rules of construction are followed for this purpose in dealing with both types
of legislation. (Footnotes omitted.)

6
For an application of this principle, see Cannon v. Taylor, 87 Nev. 285, 486 P.2d 493 (1971); Ex parte
Davis, 63 P.2d 853 (Cal.App. 1936); Penrose v. Whitacre, 61 Nev. 440, 132 P.2d 609 (1942).
to NRS 200.030(1)(e). That purpose, as defined by the Legislature, is to establish a deterrent
to particularly aggravated instances of criminal conduct. (Stats. Nev. 1973, ch. 798, at 1801.)
The independent-offense interpretation of common plan, scheme or design ascribes to the
Legislature a purpose to deter the mere existence of a modus operandi, rather than a single
preconceived plan that contemplates multiple murder. The stated purpose of legislation is a
factor considered by courts in interpreting a given statute. Lott v. State, 223 P.2d 147, 151
(Okla. 1950); United States v. Sullivan, 332 U.S. 689, 693-694 (1947); Board of School
Trustees v. Bray, 60 Nev. 345, 109 P.2d 274 (1941). Finally, the Legislature has recently
reenacted the statute, substituting the word single for the word common in the phrase
common plan, scheme or design. Stats. Nev. 1975, ch. 740, 1, at 1580-1581.
7
Where a
former statute is amended, or a doubtful interpretation of a former statute rendered certain by
subsequent legislation, it has been held that such amendment is persuasive evidence of what
the Legislature intended by the first statute. People v. Valentine, 169 P.2d 1 (Cal. 1946);
Groves v. Meyers, 213 P.2d 483 (Wash. 1950).
[Headnote 9]
On the other hand, the clear alternative to the interpretation by the district court presents
none of these problems. A single plan involving several contemplated killings would be a
particularly heinous crime, justifying a more severe deterrent and punishment than other
killings not involving planned multiple-murder. Such a distinction would not be irrational,
would be consistent with the stated legislative purpose, and would reflect the recent
legislative clarification. Of the two alternative constructions, every canon of statutory
interpretation mandates this approach. Most important to the instant case, such meaning fairly
derives from the language of the statute. United States v. Brown, 333 U.S. 18, 25-26 (1948).
[Headnote 10]
We conclude, therefore, that the single-plan interpretation does not do violence to the
purposes sought to be implemented by the due process clause in voiding vague and
ambiguous statutes, in that one who commits multiple murder according to a single
preconceived plan may not argue that he is without notice that the statute applied to him;
nor may he argue that the statute as thus interpreted would leave too great a potential
for the unequal and discriminatory application of the law.
____________________

7
NRS 200.030(1)(e), as amended, Stats. Nev. 1975, ch. 740, 1, at 1580-1581:
. . .
(e) Killing more than one person willfully, deliberately and with premeditation as the result of a single plan,
scheme or design.
statutes, in that one who commits multiple murder according to a single preconceived plan
may not argue that he is without notice that the statute applied to him; nor may he argue that
the statute as thus interpreted would leave too great a potential for the unequal and
discriminatory application of the law. For these reasons, we reverse the order of the court
below declaring NRS 200.030(1)(e) unconstitutional, and we order that the respondent,
Smith, be held to answer to the capital murder charge in district court.
Zenoff and Thompson, JJ., concur.
Gunderson, C. J., and Batjer, J., concurring:
We assume that the only issue the majority have elected to decide in this case is the issue
they have elected to discuss.
We therefore agree with what we understand to be the majority's ultimate conclusion: that
NRS 200.030(1)(e), as originally adopted, should be construed only as encompassing
[k]illing more than one person as the result of a common [single] plan, scheme or design [to
kill]. However, to arrive at this conclusion, we find it necessary only to notice that the
foregoing seems the strictest available construction, and to consider that penal statutes must
be strictly construed. Sheriff v. Hanks, 91 Nev. 57, 530 P.2d 1191 (1975); Sardis v. District
Court, 85 Nev. 585, 460 P.2d 163 (1969).
Since we think that, strictly construed, the words employed by the legislature are quite
intelligible, we have no difficulty agreeing that NRS 200.030(1)(e) is not unconstitutionally
vague. We do so, however, without feeling constrained to refer to many of the cases and
principles the majority apparently feel are significant to a determination of that issue.
____________
91 Nev. 735, 735 (1975) Braddock v. Braddock
FRED BRADDOCK, Appellant, v. ALMA C.
BRADDOCK, Respondent.
No. 7740
No. 7875
November 21, 1975 542 P.2d 1060
Appeal from judgment of divorce; from order granting respondent's motion for
continuation of support during pendency of appeal, and from order denying motion for
rehearing of support issue, Eighth Judicial District Court, Clark County; Keith C. Hayes,
Judge.
Husband filed complaint for divorce claiming all property interests between the parties had
been settled by antenuptial agreement. The district court determined antenuptial agreement
was void and granted judgment of divorce, and husband appealed. The Supreme Court,
Batjer, J., held that evidence supported trial court's conclusion that Ohio antenuptial
agreement was not knowingly, understandingly, freely, and voluntarily entered into by wife;
that award of property made by trial court to wife was supported by record and not
unreasonable or arbitrary; and that evidence supported order that wife could continue to
occupy home during pendency of any appeal husband might pursue, notwithstanding
husband's contention that wife could well afford to rent her own house or apartment during
appeal.
Affirmed.
Monte J. Morris, Las Vegas, for Appellant.
Rose, Norwood & Edwards, Las Vegas, for Respondent.
Where antenuptial agreement was executed in Ohio and was to be performed there, its validity had to be
construed in light of Ohio law.
In Ohio, an antenuptial agreement is not void merely for lack of independent legal counsel; however, it
must be knowingly, understandingly, freely and voluntarily entered into by both parties.
Evidence, including fact that husband was a businessman with some sophistication and a good deal of
success and that wife had little or no formal education or business experience, that husband correctly
represented the extent of his wealth to be $700,000 and testified he believed wife had approximately
$2,500 in safe deposit box plus some furniture and clothing, and that wife had no independent legal counsel
present at signing, in Ohio, of antenuptial agreement, supported finding by trial court that wife did not
knowingly and understandingly enter into antenuptial agreement with husband whereby she gave up any
right, interest, or claim in or to the property of her husband, and upon such evidence and applying Ohio law
the trial court was free to find the agreement to be void.
The nature and rights of married persons in personal property acquired during marriage is determined by
the laws of state which is the matrimonial domicile of the parties at time property is acquired.
5. Divorce.
Trial court's award of personal property to wife in divorce action was not unreasonable or
arbitrary and would be upheld pursuant to Ohio law, wherein such property was
acquired, despite antenuptial agreement under which wife had given up rights to
husband's property.
action was not unreasonable or arbitrary and would be upheld pursuant to Ohio law, wherein such property
was acquired, despite antenuptial agreement under which wife had given up rights to husband's property.
6. Divorce.
The amount of property, it any, subject to allocation to wife in divorce proceeding was a question of fact
to be determined by the trial court.
7. Divorce.
Evidence, including fact that wife had lived in home and maintained it for several years prior to husband's
filing for divorce. That wife was approximately 46 years of age, had never worked during the marriage, and
had no particular skills for gainful employment, supported trial court's order that wife could continue to
occupy the home during the pendency of any appeal husband might pursue, notwithstanding husband's
contention that wife could well afford to rent her own house or apartment during the appeal.
8. Divorce.
A district court may allow reasonable attorney fees in an action for divorce if they are in issue under the
pleadings. NRS 125.150, subds. 2, 3.
9. Divorce.
Wife is not required to show necessitous circumstances to support court's award of attorney fees in
divorce action, and such award is within the sound discretion of the trial court. NRS 125.150, subd. 2.
10. Action.
An action is pending from the time of filing the complaint until its final determination on appeal.
11. Divorce.
Husband who stipulated to pay wife support during pendency of divorce action could not subsequently
claim that be stipulated to said payments during pendency of the case in trial court but not during pendency
of appeal, and he was required to pay wife for her support while the appeal was in progress.
OPINION
Appellant and respondent were married May 14, 1957. Appellant filed a complaint for
divorce in the district court on July 27, 1973, alleging that there were no minor children born
as issue of their marriage, that all property interests between the parties had been settled by an
antenuptial agreement, and that there was no community property belonging to the parties to
be considered in the court's decision. In its judgment and decree of divorce the district court
determined that the antenuptial agreement was void ab initio, and required appellant to pay
respondent $173,429.90 as her share of the property, and her attorney's fee of $7,500,
plus costs of the suit.
to pay respondent $173,429.90 as her share of the property, and her attorney's fee of $7,500,
plus costs of the suit. Respondent was also awarded the furniture in the Florida home and the
privilege of residing in that home, rent free, pending final determination of the matter on
appeal. By an order of the district court filed May 17, 1974, the appellant was further required
to pay respondent $150 per week during pendency of this appeal. From the judgment of
divorce and the support order these appeals were taken.
7740:
Appellant and respondent met sometime in October of 1956, and during the first part of
1957 seriously considered marriage. On May 2, 1957, at the offices of appellant's attorney
located in Columbus, Ohio, appellant and respondent executed the antenuptial agreement. At
that time appellant was living in Washington Court House, Ohio, and respondent was living
in Columbus, Ohio. The antenuptial agreement in pertinent part provided as follows:
Whereas, the Parties have agreed that neither party shall have any right, interest, or claim in
or to the property of the other, either during their marriage or upon the death of the other,
except as hereinafter stipulated and provided, and desire to set forth their said agreement, . . .
Second Party, in consideration of said marriage and of the agreements made by First Party
herein, hereby agrees to accept and receive the payments and provisions hereinabove
stipulated in lieu of any or all rights or claims of dower, inheritance, and descent, in and to
the real property of the First Party, now owned or hereafter acquired, and in lieu of any and
all rights or claims to a distributive share of his personal estate, now owned or hereafter
acquired, and in lieu of any and all claims for an allowance for a year's support, and in lieu of
any and all rights or claims which Second Party may have or acquire as wife, widow,
distributee, survivor, or next of kin, in or against the Estate of the First Party, which may in
any manner arise or accrue by virtue of said marriage; . . .
[Headnote 1]
1. Because the agreement was executed in Ohio and was to be performed there, its validity
must be construed in the light of Ohio law. See, Jones v. Jones, 86 Nev. 879, 478 P.2d 148
(1970); Davis v. Jouganatos, 81 Nev. 333, 402 P.2d 985 (1965).
In its decision rendered from the bench the trial court found, and it is supported in the
record, that at the time of signing the antenuptial agreement respondent was substantially
younger than appellant.
than appellant. Appellant was a businessman with some sophistication and a good deal of
success, and respondent had little or no formal education or business experience and, in
fact, was working as a waitress.
Appellant correctly represented the extent of his wealth to be $700,000 in May 1957, and
testified he believed respondent had approximately $2,500 in a safe deposit box, plus some
furniture and clothing. Neither party had dependents from a prior marriage.
The parties had discussed the possibility of signing an agreement which was to be drawn
by appellant's attorney. On the day the antenuptial agreement was executed, appellant's
attorney was not present; however, an associate or attorney who shared the offices was
present, and in his deposition explained: . . . [M]y role was to be a witness, the notary,
explain the document, at least by reading it to them what was involved and taking their
signatures.
Respondent was to receive $500 per year, after she signed the agreement or the marriage
was consummated, and she was, in fact, paid $500 per year for the years 1957 and 1958, and
beginning May 14, 1959, was paid $1,000 per year. Respondent testified she believed the
yearly payments were anniversary gifts and understood the agreement guaranteed a quarter of
appellant's estate to her upon his death, but had nothing to do with divorce.
In its findings of fact and conclusions of law the district court concluded: The matters
affected by the antenuptial agreement were so important to the Defendant's spousal rights that
she was entitled to have independent counsel at the time of execution of said agreement. . . .
Defendant did not have independent legal counsel . . . [and] the ante-nuptial agreement was
void at the time of its execution. . . .
[Headnote 2]
In Ohio an antenuptial agreement is not void merely for lack of independent legal counsel.
Pniewski v. Przybysz, 183 N.E.2d 437 (Ohio App. 1962). However, it must be knowingly,
understandingly, freely and voluntarily entered into by both parties. In Juhasz v. Juhasz, 16
N.E.2d 328, 331 (Ohio 1938), the Ohio Supreme Court said: An engagement to marry
creates a confidential relation between the contracting parties and an antenuptial contract
entered into after the engagement and during its pendency must be attended by the utmost
good faith; . . . After being fully informed and advised, the intended wife may be entirely
satisfied with the provision made for her, and, if she then voluntarily enters into the
contract, she is bound by its terms."
made for her, and, if she then voluntarily enters into the contract, she is bound by its terms.
In Rocker v. Rocker, 232 N.E.2d 445, 456 (P.Ct. of Cuyahoga County, Ohio, 1967), that
court stated: In the last analysis, each case in this field of law must be decided on its own
particular facts, and not solely by rote.
[Headnote 3]
Whether the antenuptial agreement was knowingly, understandingly, freely and voluntarily
entered into is a question of fact which was resolved against the appellant by the trial court.
There is sufficient, albeit conflicting, evidence, revealing that respondent did not knowingly
and understandingly enter into the agreement. Upon this evidence and applying Ohio law
1
the trial court was free to find the agreement to be void, and committed no error in doing so.
Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973).
2. Although appellant argues at great length that the trial court erred in finding community
property belonging to the parties and awarding $173,429.90 to respondent as her share, a
close examination of the trial court's decision delivered from the bench, its finding of fact and
conclusions of law, as well as its judgment, fails to reveal any finding on the part of trial court
of community property, but instead it found that respondent had an interest in $346,859.80
and ordered that appellant pay to her one-half that amount as her share of property rights.
The trial court awarded respondent her share after setting aside to both parties their sole and
separate property.
[Headnote 4]
The property which consists of treasury bills, stocks, bank accounts, and cash was all
accumulated in Ohio prior to the time appellant moved to Nevada. The nature and rights of
married persons in personal property acquired during marriage is determined by the laws of
that state which is the matrimonial domicile of the parties at the time the property is
acquired."
____________________

1
Compare the following Ohio cases where the appellate courts of that state have upheld antenuptial contracts,
all distinguishable from the case at bar. Osborn v. Osborn, 248 N.E.2d 191 (Ohio 1969) (wife of considerable
means with business experience); Rocker v. Rocker supra (wife bright and experienced woman who had been in
business for 18 years); Hawkins v. Hawkins, 185 N.E.2d 89 (P.Ct. of Cuyahoga County, Ohio, 1962) (wife was
woman of considerable business experience); Troha v. Sneller, 159 N.E.2d 899 (Ohio 1959) (both parties adults
with substantial property, each having four grown children by former marriages); In Re Mosier's Estate, 133
N.E.2d 202 (P.Ct. of Franklin County, Ohio, 1954) (wife received $7,000 for giving up interest in estate worth
$40,000, amount not so disproportionate as to give rise to presumption of fraud).
is determined by the laws of that state which is the matrimonial domicile of the parties at the
time the property is acquired. Choate v. Ransom, 74 Nev. 100, 104, 323 P.2d 700 702
(1958). Ohio Revised Code, Section 3105.18
2
provides as follows: The court of common
pleas may allow alimony as it deems reasonable to either party, having due regard to property
which came to either by their marriage, the earning capacity of either, and the value of real
and personal estate of either at the time of the decree. Such alimony may be allowed in real or
personal property, or both, or by decreeing a sum of money, payable either in gross or by
installments, as the court deems equitable. [Emphasis added.]
[Headnote 5]
In Creelman v. Creelman, 220 N.E.2d 684, 686 (Ohio App. 1966), the court stated: It is
not the province of this court to take issue with the court below in its division of property
between the parties so long as the court's determination is made without apparent
unreasonableness or arbitrariness. The property adjustments made here, on the other hand,
appear to be quite just and reasonable and well within the allowable limits of the lower court's
discretion. The trial court awarded property to respondent without apparent
unreasonableness or arbitrariness, and it must be upheld. Cf. Clark v. Clark, 136 N.E.2d 52
(Ohio 1956); Boehm v. Boehm, 138 N.E.2d 418 (Ohio App. 1956); Hill v. Hill, 136 N.E.2d
131 (Ohio App. 1955). See also Esteb v. Esteb, 181 N.E.2d 462 (Ohio 1962).
[Headnote 6]
The amount of property, if any, subject to allocation to respondent was a question of fact
to be determined by the trial court. This determination is supported in the record. Fletcher v.
Fletcher, supra. Again applying the law of Ohio, it does not appear that the trial court was
unreasonable or arbitrary and we find no error in its award of $173,429.90 to respondent.
[Headnote 7]
3. Appellant contends that the trial court further erred by providing in its judgment and
decree of divorce that respondent could continue to occupy the home in Fort Lauderdale,
Florida, owned by Braddock Company of which appellant is sole stockholder, during the
pendency of any appeal the appellant may pursue to this court, because respondent had
$45,000 at the time of separation and $33,000 at the time of trial, and could well afford to
rent her own house or apartment during appeal.
____________________

2
Ohio Revised Code, Section 3105.18 was amended effective September 23, 1974, in a manner which would
appear to render it more favorable to respondent's position.
at the time of separation and $33,000 at the time of trial, and could well afford to rent her
own house or apartment during appeal.
Respondent had lived in the Florida home and maintained it for several years prior to
appellant's filing for divorce. She was approximately 46 years of age at the time of trial, never
worked during the marriage, and had no particular skills for gainful employment. It is
apparent that the trial court gave proper consideration to the matter and exercised its power to
provide for the wife's support pursuant to NRS 125.150(3).
3
Cf. Buchanan v. Buchanan, 90
Nev. 209, 523 P.2d 1 (1974).
[Headnotes 8, 9]
4. Appellant's contention that the trial court erred in awarding respondent attorney fees in
the amount of $7,500 is without merit. A district court may allow reasonable attorney fees in
an action for divorce if they are in issue under the pleadings. NRS 125.150(2).
4
The wife is
not required to show necessitous circumstances to support the court's award of attorney fees,
and such award is within the sound discretion of the trial court. Fletcher v. Fletcher, supra;
Sargeant v. Sargeant, 88 Nev. 223, 495 P.2d 618 (1972).
7875:
On May 17, 1974, the trial court granted respondent's motion for judgment for arrearages
and for payment of support during pendency of appeal. In its order the trial court ordered the
sum of $150 per week be paid to respondent during pendency of the appeal to this court.
Appellant admits in his reply brief that he stipulated to pay respondent $150 per week during
the pendency of the case in the trial court but not during the pendency of the appeal in the
appellate court. However, in the stipulation filed October 29, 1973, prior to the time the
complaint for divorce came on for trial, appellant stipulated: . . . [T]hat plaintiff shall pay to
the defendant as and for support, pendente lite, the sum of One Hundred Fifty ($150.00) per
week, the first payment to be made on the 27th day of September, 1973, and continue each
and every week during the pendency of this action."
____________________

3
At the time the lower court entered its judgment and decree of divorce NRS 125.150(3) provided:
The court may also set apart such portion of the husband's property for the wife's support and the support of
their children as shall be deemed just and equitable.

4
NRS 125.150(2): Whether or not application for suit money has been made under the provisions of NRS
125.040, the court may award a reasonable attorney's fee to either party to an action for divorce if attorneys' fees
are in issue under the pleadings.
day of September, 1973, and continue each and every week during the pendency of this
action.
[Headnotes 10, 11]
An action is pending from the time of filing the complaint until its final determination on
appeal. Rilcoff v. Superior Court of Los Angeles County, 123 P.2d 540 (Cal.App. 1942).
Appellant cannot now complain of the trial court's enforcing a stipulation entered into in that
court regarding payments during the pendency of the action. In Buchanan v. Buchanan, supra,
on appellant's motion after the appeal was perfected, we reinstated the trial court pendente lite
order and ordered respondent to pay appellant for her support and child support while the
appeal was in progress.
The judgment and orders of the lower court are affirmed.
____________
91 Nev. 743, 743 (1975) Williams v. Griffin
PHILLIP A. WILLIAMS, Appellant, v. ROBERT
GRIFFIN, et al., Respondents.
No. 7910
November 21, 1975 542 P.2d 732
Appeal from judgment denying relief from zoning ordinance. First Judicial District Court,
Lyon County; Noel E. Manoukian, Judge.
Landowner brought action for relief from zoning ordinance pursuant to which he had been
ordered to vacate mobile home. The district court denied relief, and appeal was taken. The
Supreme Court, Zenoff, J., held that constructive knowledge would be attributed to the
landowner of master plan zoning proposal which gave rise to moratorium prohibiting location
of mobile homes on new sites, and that it was, therefore, not improper to deny the landowner
a permit to locate his mobile home on land which was subject to the moratorium.
Affirmed.
Ronald T. Banta, District Attorney, Lyon County, for Respondents.
1. Zoning.
Although there exists a minority of authority to the contrary, administrative agencies may refuse to issue
permits which conflict with pending zoning ordinances not yet in effect.
2. Zoning.
It is proper to deny use permit on ground that such permit would not conform to a pending but not yet
effective zoning scheme, if party aggrieved by denial had actual or constructive knowledge of pending
zoning change, and there was in fact a new zoning ordinance likely to become effective in relatively short
period of time.
3. Zoning.
Where master plan zoning proposal pursuant to which county imposed moratorium prohibiting location
of mobile homes on new sites was product of numerous public hearings which were conducted subsequent
to written notice appearing in local newspapers, constructive knowledge of proposal would be attributed to
landowner who located mobile home on his land during moratorium period, and it was, therefore, not
improper for county to refuse to allow landowner to locate mobile home on land subject to moratorium.
NRS 278.010 et seq., 278.210, 278.570.
OPINION
In January of 1973, Phillip Williams purchased approximately 17 acres of land in Mason
Valley, Lyon County, for the purpose of growing alfalfa and raising cattle. He intended
eventually to build a home thereon for himself and his son. Because he was unable to obtain
financing for construction of the house he moved a mobile trailer onto the land and began
living there even though he was denied the necessary permit required by the county before a
mobile home could be located on a given parcel of land. Permits to construct a septic tank
and to run electricity to a well pump for the stated purpose of watering cattle were granted.
Without authorization from the building department, Williams connected his mobile home to
the septic tank and the electrical facilities.
The land Williams bought, although zoned for open use, was subject to a moratorium
imposed by a county resolution prohibiting the location of mobile homes on any new sites. In
December of 1971, the Board of County Commissioners began fashioning a master plan
zoning scheme which, while it was being effectuated, gave rise to the moratorium. Public
hearings concerning the new zoning plan were held throughout 1972 and early 1973.
Thereafter, Ordinance No. 136 constituting the new zoning plan was passed and made
effective October 26, 1973.
26, 1973. Williams did not commence to reside on the property in the mobile home until
November 1973. When ordered to vacate he initiated this action.
Although the appellate questions are recited otherwise, the real issue concerns the validity
of the moratorium. If the moratorium was valid, it was effective and binding on Williams and
the question of retroactivity raised by appellant then would not be relevant.
[Headnotes 1, 2]
1. Although there exists a minority of authority to the contrary, administrative agencies
may refuse to issue permits which conflict with pending zoning ordinances not yet in effect. If
the aggrieved party had actual or constructive knowledge of the pending zoning change and
there was in fact a new zoning ordinance pending that was likely to become effective in a
relatively short period of time, the denial of permits authorizing a use not conforming to the
pending zoning scheme is proper. Kings Castle v. Washoe Co. Bd. Comm'rs, 88 Nev. 557,
502 P.2d 103 (1972); Russian Hills Imp. Ass'n v. Board of Permit Appeals, 423 P.2d 824
(Cal. 1967); City of Los Angeles v. Superior Court, 34 Cal.Rptr. 161 (1963); County Coun.,
Montgomery Cty. v. District Land Corp., 337 A.2d 712 (Md. 1975); Casey v. Zoning Hearing
Board of Warwick Township, 328 A.2d 464 (Pa. 1974).
It is axiomatic that an extensive zoning scheme cannot be fashioned and implemented
within a day's time. This is particularly true when one considers the mandates of NRS
278.010 et seq. requiring, among other things, public hearings pursuant to published notice.
For this reason we may take judicial notice of the fact that it will take much time to work out
the details of such a plan and that obviously it would be destructive of the plan if, during the
period of its incubation, parties seeking to evade the operation thereof should be permitted to
enter upon a course of construction which might progress so far as to defeat in whole or in
part the ultimate execution of the plan. Miller v. Board of Public Works, 234 P. 381, 388
(Cal. 1925).
[Headnote 3]
The new master plan zoning proposal devised by the county commissioners was the
product of numerous public hearings which were conducted subsequent to written notification
appearing in the local newspapers. See NRS 278.210. Constructive knowledge thereof can be
attributed to Williams who never possessed the absolute right to have a mobile home permit
issued to him.
permit issued to him. Russian Hills Imp. Ass'n v. Board of Permit Appeals, supra.
That the County Building Inspector did not have the necessary authority to enforce the
prospective zoning provisions is a spurious contention which we refuse to entertain. See NRS
278.570.
Affirmed.
Gunderson, C. J., and Mowbray, Batjer, and Thompson, JJ., concur.
____________
91 Nev. 746, 746 (1975) Aikins v. Andrews
PERRY AIKINS and GERALDINE AIKINS, Appellants, v. JOHN
ANDREWS and KARIN ANDREWS, Respondents.
No. 7828
November 21, 1975 542 P.2d 734
Appeal from judgment for damages for failure of landlord to give statutory notice under
NRS 40.250(1)(e). First Judicial District Court, Carson City; Frank B. Gregory, Judge.
Landlord brought action for restitution of demised property, damages for repairs and $500
rent. The tenant counterclaimed for return of $500 rent deposit, damages for conversion of
personal property, and attorney's fees and costs. The district court entered judgment against
the landlord on his principal claim for failure to give notice as required by statute and in favor
of the tenant on its counterclaim, and the landlord appealed. The Supreme Court, Zenoff, J.,
held that appeal from the judgment against the landlord in its principal action would be
dismissed since notice of appeal had not been timely filed, and that evidence supported the
trial court's award of $1,000 damages to the tenant for conversion of personal property.
Dismissed in part and affirmed in part.
William J. Crowell, Jr., of Carson City, for Appellants.
Breen, Young, Whitehead & Hoy, Chartered, of Reno, and Jeffrey K. Rahbeck, of Zephyr
Cove, for Respondents.
Appeal by landlord from adverse judgment in unlawful detainer action was dismissed where
notice of appeal from such judgment was filed seven days beyond expiration of
ten-day filing period, since such oversight left the Supreme Court without
jurisdiction.
detainer action was dismissed where notice of appeal from such judgment was filed seven days beyond
expiration of ten-day filing period, since such oversight left the Supreme Court without jurisdiction. NRS
40.380.
Evidence, in landlord-tenant dispute, supported finding that value of tenant's personal property
appropriated by landlord was $1,000.
OPINION
For their failure to give the required notice as provided in NRS 40.250(1)(e) the appellant
lessors of a bar with an attached motel were held to have wrongfully retaken possession of the
premises from the respondent lessees. Judgment for damages were assessed against them by
the trial court in the amount of $1,000 general damages, $500 return of advanced rent and
$750 attorney fees and costs.
NRS 40.250(1)(e) provides that A tenant of real property . . . for a term less than life is
guilty of unlawful detainer . . . [w]hen he continues in possession . . . after a neglect or failure
to perform any condition or covenant of the lease or agreement under which the property . . .
is held . . . and after notice in writing, requiring in the alternative the performance of such
condition or covenant or the surrender of the property, served upon him . . . shall remain
uncomplied with for 5 days after the service thereof. . .
The second section of the statute was enacted in 1973, subsequent to the commencement
of these proceedings, and voids any attempt by the landlord to shorten such period by contract
or otherwise.
The lease consisted of the usual provisions: Rent at $500 per month; first and last month's
rent to be paid upon execution of the lease; that the lessee would maintain the premises in a
reasonable state of repair; and that upon breach of any covenant or condition the lessor,
without notice, could terminate the lease and repossess the premises. The lease was executed
on March 4, 1971.
The Andrews closed the bar when Mr. Andrews became ill in November 1971. The rent
was paid for December 1971, but not for January 1972. During the month of January,
Andrews and his wife continued to reside on the premises in one of the motel units. In early
January, while they were temporarily absent, Aikins forcibly entered the premises and
observed that the water pipes were frozen and that a roof was leaking.
observed that the water pipes were frozen and that a roof was leaking. On January 20, Aikins
returned, served a notice of immediate termination on Andrews and padlocked the bar. He
returned later to padlock the motel units as well.
The Andrews broke the padlocks on two of the motel units and continued to reside therein
until early February at which time they vacated the premises permanently.
Aikins commenced this action for restitution of the property, damages for repairs and $500
rent for the month of January 1972. Andrews counterclaimed for return of the $500 rent
deposit, damages for conversion of certain personal property which remained on the premises
in possession of Aikins, and attorney fees and costs.
[Headnote 1]
1. Before terminating the lease and dispossessing respondents, appellants failed to comply
with the five-day notice provision of NRS 40.250(1)(e) which neither can be waived nor
neglected. Gasser v. Jet Craft Ltd., 87 Nev. 376, 487 P.2d 346 (1971); Paul v. Armstrong, 1
Nev. 82 (1865). And in filing this appeal, appellants failed to comply as well with NRS
40.380
1
which requires that an appeal from a judgment in unlawful detainer be filed within
ten days after notice of entry of judgment. This appeal was filed seven days late. Such an
oversight renders this court without jurisdiction to entertain most of appellants' assignments
of error and this appeal, as it pertains to questions incident to unlawful detainer, must be
dismissed. West v. Edwards, 62 Nev. 1, 139 P.2d 1022, on rehearing (1943).
[Headnote 2]
2. The judgment on the counterclaim is distinct from the unlawful detainer action and may
be appealed within 30 days. West v. Edwards, supra. Andrews had paid $3,500 to the
previous tenants for certain bar furnishings. When Aikins took possession of the premises
he left the usable items in the bar and placed the rest, which were of little value, in
storage.
____________________

1
NRS 40.380 provides: Either party may, within 10 days, appeal from the judgment rendered. But an appeal
by the defendant shall not stay the execution of the judgment, unless, within the 10 days, he shall execute and
file with the court or justice his undertaking to the plaintiff, with two or more sureties, in an amount to be fixed
by the court or justice, but which shall not be less than twice the amount of the judgment and costs, to the effect
that, if the judgment appealed from be affirmed or the appeal be dismissed, the appellant will pay the judgment
and the costs of appeal, the value of the use and occupation of the property, and damages justly accruing to the
plaintiff during the pendency of the appeal. Upon taking the appeal and filing the undertaking, all further
proceedings in the case shall be stayed.
possession of the premises he left the usable items in the bar and placed the rest, which were
of little value, in storage. By rendering judgment for $1,000, the trial court impliedly found
that sum to represent the fair market value of Andrews' appropriated personal property. As
trier of the facts the court was empowered to make such a finding which, being supported by
substantial evidence in the record, we will not disturb. Western Land Co. v. Truskolaski, 88
Nev. 200, 495 P.2d 624 (1972); Sala & Ruthe Realty, Inc. v. Deneen, 89 Nev. 98, 507 P.2d
140 (1973).
Dismissed in part and affirmed in part.
____________
91 Nev. 749, 749 (1975) Blanchard v. Nevada State Welfare Dep't
LINDA MAY BLANCHARD, on behalf of CHE WARREN BLANCHARD, a Minor Child,
Appellant, v. NEVADA STATE WELFARE DEPARTMENT, Respondent.
No. 7856
NEVADA STATE WELFARE DEPARTMENT, Appellant, v. LINDA MAY
BLANCHARD, on behalf of CHE WARREN BLANCHARD, a Minor Child,
Respondent.
No. 8024
November 21, 1975 542 P.2d 737
This is a consolidated appeal. In Case No. 7856, a mother appeals from a denial of a
petition for writ of habeas corpus seeking to withdraw relinquishment of her child for
adoption. In Case No. 8024, the state, as the prevailing party, appeals the imposition of costs
upon it. Eighth Judicial District Court, Clark County; Keith C. Haves, Judge.
The district court denied the petition and compelled the state to pay for the preparation of a
transcript for the mother's use in her appeal and both mother and state appealed. The Supreme
Court, Zenoff, J., held that the evidence was sufficient to support the trial court's finding that
the mother's relinquishment of her child was knowingly, willfully and voluntarily made; that
there was no requirement that both parents execute the relinquishment of custody before it
became effective as to either or that both parents execute the document at the same time; and
that the state should not have been compelled to bear the mother's costs on appeal.
the same time; and that the state should not have been compelled to bear the mother's costs on
appeal.
Case No. 7856 affirmed.
Case No. 8024 reversed.
Johns & Johns, of Las Vegas, for Linda May Blanchard.
Robert List, Attorney General, and Walter V. Norwood, Deputy Attorney General, for
Nevada State Welfare Department.
1. Habeas Corpus.
On mother's petition for writ of habeas corpus seeking to withdraw relinquishment of her child for
adoption, evidence was sufficient to support trial court's finding that mother's relinquishment of custody
was knowingly, willfully and voluntarily made.
Where there is substantial evidence to support ruling of trial court, such ruling will not be disturbed on
appeal.
3. Adoption.
There was no requirement that both parents execute relinquishment of child for adoption before it became
effective as to either or that parents execute document at same time. NRS 127.040.
4. Adoption.
Once relinquishment of child for adoption is knowingly and voluntarily executed, it becomes irrevocable.
NRS 127.080.
5. Habeas Corpus.
Where state prevailed on mother's petition for writ of habeas corpus seeking to withdraw relinquishment
of her child for adoption, state could not be compelled to bear mother's costs on appeal. NRS 18.040.
OPINION
On June 7, 1973, Linda May Blanchard executed a form prepared by the Nevada State
Welfare Department designated Relinquishment of Child for Adoption. The child, born on
October 1, 1972, was placed in the custody of the welfare authorities and remains in their
custody.
Approximately one year after she executed the relinquishment, the mother changed her
mind and petitioned for a writ of habeas corpus seeking the return of her child. She alleged
that at the time she executed the relinquishment she was under severe mental, physical and
emotional distress and under the influence of certain drugs. She contends that because of her
condition the relinquishment was not knowingly, willfully and voluntarily made and was
therefore invalid.
condition the relinquishment was not knowingly, willfully and voluntarily made and was
therefore invalid.
Linda and her husband, the baby's father, were both addicted to narcotics. As a result of
mutual drug addiction and pronounced instability of the husband, the marital relationship,
such as it was, was stormy and the parties eventually divorced.
[Headnote 1]
1. On June 7, 1973, when Linda executed the relinquishment, she was receiving daily
methadone treatments. On that date, prior to signing the relinquishment, she received an 80
milligram dose of methadone and allegedly had taken 100 milligrams of valium. Two
witnesses who at the time worked for the welfare department testified that she appeared lucid
and did not appear to be under the influence of any drugs.
1
Dr. S. E. LoBello, from the
Methadone Clinic, stated that the methadone dosage taken by Linda should have had little
effect on her ability to make a knowing voluntary decision. Other witnesses testified that she
appeared rational, calm and in control of herself.
[Headnote 2]
Although the nature of her condition was not completely undisputed, the rule in the face of
conflicting evidence remains, nevertheless, that where there is substantial evidence to support
the ruling of the trial court, such a ruling will not be disturbed on appeal. Bangston v. Brown,
86 Nev. 653, 473 P.2d 829 (1970); Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970).
We therefore decline to overturn the lower court's determination on this issue.
[Headnote 3]
2. Linda also questions the legal validity of the relinquishment in terms of strict
compliance with NRS 127.040. The statute provides that a valid relinquishment may be
effectuated only when signed by both parents unless one parent is dead, the child was born
out of wedlock, a guardian has been judicially appointed or one parent had been adjudged
insane for a period of at least two years. She argues that the statute must be construed to
require that both parents execute the relinquishment before it becomes effective as to either
and that both parents execute the document at the same time.
These requirements, of course, do not appear in the statute and we do not agree with that
construction.
____________________

1
This evidence conflicts with Linda's testimony that she, prior to arriving at the welfare department, had
taken 100 milligrams of valium.
and we do not agree with that construction. Furthermore, while it is true both parents must
execute a relinquishment, that her husband did not does not in itself invalidate Linda's
signature. Before the child can be placed for adoption either he must voluntarily relinquish
his parental rights in the same manner as Linda or his rights must be terminated in some other
fashion consistent with statutory directives.
From the standpoint of Linda's parental rights, this court has previously ruled in Ex Parte
Schultz, 64 Nev. 264, 181 P.2d 585 (1947), and Welfare Division v. Maynard, 84 Nev. 525,
445 P.2d 153 (1968), that a relinquishment once validly executed cannot be withdrawn. Linda
was 27 years old at the time these proceedings were commenced, had six years previously
relinquished one of her children for adoption, knew the consequences thereof and now must
suffer the consequences of her deliberate act.
[Headnote 4]
The trial court found, and we support its conclusion, that Linda was in sufficient
possession of her faculties when she executed the relinquishment to do so knowingly and
voluntarily. Once a relinquishment is knowingly and voluntarily executed it becomes
irrevocable. NRS 127.080; Welfare Division v. Maynard, supra.
[Headnote 5]
3. The second case consolidated in this appeal concerns the lower court ruling compelling
the state to pay for the preparation of a transcript for Linda's use in her appeal from the
adverse ruling in the habeas corpus proceeding. This is a civil action in which the state stands
as any other individual and because it was the prevailing party below, it cannot be compelled
to bear appellant's costs on appeal. NRS 18.040.
We affirm the trial court in the habeas corpus proceeding, Case No. 7856, but reverse No.
8024.
Gunderson, C. J., and Mowbray, Batjer, and Thompson, JJ., concur.
____________
91 Nev. 753, 753 (1975) Gates v. Sheriff
ANDREW WENTWORTH GATES, Appellant, v. SHERIFF,
No. 8068
November 21, 1975 542 P.2d 736
Appeal from an order of the Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant petitioned for habeas corpus contending that the capital murder statute under
which he was charged was unconstitutionally vague and that evidence was insufficient to hold
him for trial on such charge. The district court denied defendant's petition, and defendant
appealed. The Supreme Court held that evidence adduced at the preliminary examination
justified the magistrate's order holding defendant for trial.
Affirmed.
Morgan D. Harris, Public Defender, and Stephen L. Huffaker and Herbert F. Ahlswede,
Deputy Public Defenders, Clark County, for Appellant.
Robert List, Attorney General, Carson City; George Holt, District Attorney, and H. Leon
Simon, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Evidence adduced at preliminary examination justified magistrate's order holding defendant for trial on
charge of capital murder. NRS 171.206.
OPINION
Per Curiam:
In this appeal, Andrew Wentworth Gates contends that the capital murder statute under
which he was charged is unconstitutional because of vagueness,
1
and he further challenges
the sufficiency of the evidence to hold him for trial on a capital murder charge. We reject
both contentions.
Appellant's constitutional challenge was considered and rejected by this court in Sheriff
v. Smith, 91 Nev. 729
____________________

2
NRS 200.030, subsection 1(e), as amended, Stats. Nev. 1973, ch. 798, 5, at 1803:
. . .
91 Nev. 753, 754 (1975) Gates v. Sheriff
rejected by this court in Sheriff v. Smith, 91 Nev. 729, 542 P.2d 440 (1975). In our view, the
quantum and quality of the evidence adduced at the preliminary examination justified the
magistrate's order holding the appellant for trial. NRS 171.206. State v. Fuchs, 78 Nev. 63,
368 P.2d 869 (1962); Ervin v. Leypoldt, 76 Nev. 297, 352 P.2d 718 (1960); Raggio v. Bryan,
76 Nev. 1, 348 P.2d 156 (1960);, Ex parte Liotard, 47 Nev. 169, 217 P. 960 (1923); In re
Kelly, 28 Nev. 491, 83 P. 223 (1905).
The order of the district court denying appellant's petition for habeas corpus is affirmed.
____________
91 Nev. 754, 754 (1975) O'Donnell v. Sheriff
JAMES THOMAS O'DONNELL, Appellant, v. SHERIFF,
No. 8487
November 21, 1975 542 P.2d 733
District Court, Washoe County; John W. Barrett, Judge.
Defendant filed a pretrial petition for writ of habeas corpus in connection with his
prosecution on a charge of burglary. The district court denied the petition, and defendant
appealed. The Supreme Court held that testimony of a witness that a car of the same make
and color as one owned by defendant had been parked at the scene at the time when the
burglary could have taken place did not provide sufficient corroboration for incriminating
testimony of an accomplice to show probable cause to hold defendant for trial.
Grellman, Polaha & Coffin, of Reno, for Appellant.
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and Calvin
R. Dunlap, Deputy District Attorney, Washoe County, for Respondent.
Criminal Law.
Testimony that car of same make and color as one owned by defendant had been parked at scene at
time burglary with which defendant was charged could have taken place, standing alone, was not
sufficient corroboration of incriminating testimony given by accomplice to establish
probable cause to hold defendant for trial.
91 Nev. 754, 755 (1975) O'Donnell v. Sheriff
was not sufficient corroboration of incriminating testimony given by accomplice to establish probable
cause to hold defendant for trial.
OPINION
Per Curiam:
At the conclusion of a preliminary examination James Thomas O'Donnell was ordered to
stand trial for burglary, a felony under NRS 205.060. O'Donnell then sought and was denied
habeas corpus in the district court. In this appeal O'Donnell argues we are compelled to
reverse because the state failed to produce evidence to corroborate the only incriminating
testimony, that given by an accomplice, Clarence Rew Baggett.
Baggett, an ex-felon, testified he and O'Donnell burglarized a medical clinic in Sparks.
The record shows this testimony was given in exchange for the prosecutor's agreement, inter
alia, to recommend that Baggett be given a suspended sentence and probation on the instant
charge.
Other than Baggett's testimony, the only inference that O'Donnell may have been
implicated was from a witness who testified that a car of the same make and color as one
owned by O'Donnell had been parked at the medical clinic at a time when the burglary could
have taken place. Respondent's argument that this testimony corroborates Baggett is contrary
to Nevada law. See Austin v. State, 87 Nev. 578, 585, 491 P.2d 724, 729 (1971), wherein the
court noted that it had previously held that an accomplice was not sufficiently corroborated,
even to show probable cause to hold for trial, merely by showing the defendant was with the
accomplice near the scene of the crime on the night it was committed, at the time the
accomplice testified they committed it in concert.
Accordingly, we reverse and remand this case to the district court with instructions to
grant the petition for a writ of habeas corpus. In the event the state has evidence to
corroborate Baggett, it may institute new charges within 15 days after remittitur issues.
____________
91 Nev. 756, 756 (1975) Woofter v. O'Donnell
ROY A. WOOFTER, District Attorney of Clark County, Nevada, Petitioner, v. THE
HONORABLE THOMAS J. O'DONNELL, as District Judge, Eighth Judicial District Court,
County of Clark, State of Nevada, Respondent.
No. 7939
December 5, 1975 542 P.2d 1396
Original proceeding in mandamus/certiorari.
District attorney brought original proceeding for issuance of writ of mandamus directing
district court judge to sentence defendant convicted of robbery with use of a firearm in
accordance with enhanced punishment statute. The Supreme Court held that statute was
constitutional, notwithstanding contention that it subjected defendants to double jeopardy and
was void for vagueness; and that district judge was required to sentence defendant in
accordance with said statute.
Writ of mandamus granted.
Robert List, Attorney General, Carson City; George Holt, District Attorney, and Frank
Cremen, Dan M. Seaton, and Sherman H. Simmons, Deputy District Attorneys, Clark County,
for Petitioner.
Morgan D. Harris, Public Defender, and Stephen L. Huffaker, and Joseph T. Bonaventure,
Deputy Public Defenders, Clark County, for Respondent.
1. Criminal Law.
Legislature has power to declare certain conduct criminal and provide for its punishment.
2. Criminal Law.
A criminal defendant may not be punished more than once for the same offense.
3. Statutes.
When a former statute is amended, or a doubtful interpretation rendered certain by subsequent legislation,
such amendment may be persuasive evidence of what the Legislature intended by the first statute.
Due process clause of the Fourteenth Amendment does not require impossible standards of specificity in
penal statutes; the test of granting sufficient warning as to prescribed conduct will be met if there are well
settled and ordinarily understood meanings for the words employed when viewed in context of the entire
statutory provision. U.S.C.A.Const. Amend. 14; NRS 193.165. 5.
5. Criminal Law.
Words [using] a firearm or other deadly weapon in the commission of any crime [is punishable by
imprisonment] equal to and in addition to the term of imprisonment prescribed by statute for such crime
define a prescribed course of conduct for which a perpetrator may be imprisoned and are not
unconstitutionally vague. NRS 193.165; U.S.C.A.Const. Amend. 14.
6. Statutes.
Where intention of Legislature is clear, it is duty of court to give effect to such intention and to construe
language of statute so as to give it force and not nullify its manifest purpose.
7. Criminal Law.
Statute providing for imposition to greater sentences where person uses a firearm in commission of a
crime is not unconstitutional, notwithstanding contention that it subjects defendants to double jeopardy.
NRS 193.165.
8. Criminal Law.
Word shall embodied within statute providing for imposition of greater sentence where person uses a
firearm in commission of crime operates to make statute's use mandatory. NRS 193.165.
9. Criminal Law.
District judge was required to resentence defendant who had entered plea of guilty to crime of robbery
with use of firearm pursuant to enhanced punishment statute requiring imposition of greater sentence where
person used firearm in commission of a crime. NRS 193.165.
OPINION
Per Curiam:
Petitioner Woofter seeks in this original proceeding the issuance of a writ of mandamus
directing the respondent district judge to sentence a defendant in accordance with NRS
193.165, commonly known as the enhanced punishment statute.
1
The district judge
sentenced a defendant who had entered a plea of guilty to the crime of robbery with the use of
a firearm to serve 8 years in the State prison, but suspended execution of the sentence for 5
years, during which period the defendant was placed on probation, serving the first 9
months in the county jail.
____________________

1
NRS 193.165, prior to the 1975 amendment:
1. Any person who uses a firearm or other deadly weapon in the commission of a crime shall be punished
by imprisonment in the state prison for a term equal to and in addition to the term of imprisonment prescribed by
statute for such crime. The sentence prescribed by this section shall run consecutively with the sentence
prescribed by statute for such crime.
2. The provisions of this section shall not apply where the use of a firearm or other deadly weapon is a
necessary element of such crime. Stats. Nev. 1973, ch. 759, at 1593.
was placed on probation, serving the first 9 months in the county jail. The district judge
refused, however, to impose an additional sentence because the defendant had used a firearm
in the commission of the crime, declaring at the time of sentencing, . . . [T]he other matter
which called for the enhancement of the penalty under NRS 193.165, I am going to ignore it,
as either unconstitutional or a Legislative encroachment on a judicial function. The district
judge ruled that the statute was unconstitutional, in that it calls for two penalties for one
crime, and it is also vague and uncertain. . . .
2

[Headnote 1]
It is axiomatic that the Legislature has the power to declare certain conduct criminal and
provide for its punishment. As early as 1820, in United States v. Wiltberger, 18 U.S. 76, 95 (5
Wheat.), Chief Justice Marshall declared: [T]he power of punishment is vested in the
legislative, not in the judicial department. It is the legislature, not the Court, which is to
define a crime, and ordain its punishment.
[Headnote 2]
It is also a fundamental concept expressed in criminal statutes providing a single sentence
of imprisonment for each distinct crime that a defendant may not be punished more than once
for the same offense.
Other jurisdictions having enhanced punishment statutes have considered and ruled on the
issue of whether such statutes place the defendant in double jeopardy.
____________________

2
The judge, in passing on the constitutionality of the statute, said in part:
If they [the Legislature] don't give us a new crime, then they put the Court in the awkward position, if it [the
Court] follows the statute, to impose two sentences for one crime, and thus an individual stands convicted twice
for the commission of one offense.
I feel that there is something inherently wrong with this method of enhancing the criminal penalty, and that
there are many other ways in which the penalties could be enhanced: They could go through the statutestake
Robbery, Burglary, Rape, and set up specific penalty sections for those crimes when they were shown to have
been committed with the use of a deadly weapon, or they could simply say that if during the course of a trial it
was clearly demonstrated to the Court that the deadly weapon was used in the commission of such crimes, which
ordinarily do not necessarilyas one of their elementsinclude the use of a deadly weapon, and have another
penalty provision, but only one penalty and not two penalties for one crime.
I feel that it is unconstitutional and I am taking this time to declare it so, so that in the event someone wants
to attempt to clarify this matter or our Supreme Court [does], then they can study the provisions of NRS
193.165.
place the defendant in double jeopardy. In People v. Henry, 91 Cal.Rptr. 841, 842-843
(Cal.App. 1970), the court resolved the question as follows:
. . . The fallacy of this contention is that section 12022.5 [of the California Penal Code] does
not prescribe an offense. . . . Section 12022.5 merely provides additional punishment for an
offense in which a firearm is used.
3

The California court further said, in People v. McDaniels, 102 Cal.Rptr. 444, 449
(Cal.App. 1972):
. . . That it [the Legislature] chose to accomplish its purpose through one rather than six
amendments is not a valid reason for declining to carry out the legislative intent if that intent
is clear, and if the amendment is not invalid for other reasons. . . .
. . .
We hold that the concern of the Legislature over the use of firearms in the commission of
crimes, and its desire to deter the use thereof by increasing the penalties attendant upon this
use constituted reasonable grounds for increasing the penalties theretofore provided for the
crimes enumerated. . . .
The State of Washington has an enhanced punishment statute. Wash. Rev. Code Ann.
9.41.025 (Supp. 1974).
4
In State v. Rose, 49S P.2d S97 {1972), the Washington Supreme
Court rejected the argument that the statute posed a double jeopardy problem.
____________________

3
Section 12022.5 of the California Penal Code (West 1970) provides as follows:
Any person who uses a firearm in the commission or attempted commission of a robbery, assault with a
deadly weapon, murder, rape, burglary, or kidnaping, upon conviction of such crime, shall, in addition to the
punishment prescribed for the crime of which he has been convicted, be punished by imprisonment in the state
prison for a period of not less than five years. Such additional period of imprisonment shall commence upon
expiration or other termination of the sentence imposed for the crime of which he is convicted and shall not run
concurrently with such sentence.
Upon a second conviction under like circumstances, the additional period of imprisonment shall be for a
period of not less than 10 years, and upon a third conviction under like circumstances the additional period of
imprisonment shall be for a period of not less than 15 years, such terms of additional imprisonment to run
consecutively.
Upon a fourth or subsequent conviction under like circumstances, the defendant may be imprisoned for life
or a period not less than 25 years, in the discretion of the court.
This section shall apply even in those cases where the use of a weapon is an element of the offense.

4
Wash. Rev. Code. Ann. 9.41.025 (Supp. 1974):
Any person who shall commit or attempt to commit any felony, or any misdemeanor or gross misdemeanor
categorized herein as inherently dangerous, while armed with, or in the possession of any firearm, shall upon
conviction, in addition to the penalty provided by statute for the
v. Rose, 498 P.2d 897 (1972), the Washington Supreme Court rejected the argument that the
statute posed a double jeopardy problem. The court ruled that the imposition of consecutive
sentences resulting from the use of firearms statute was not objectionable, on the ground
that all sentences resulted from the commission of a single act. Further, the court stated in
Rose, 498 P.2d at 903-904:.
Neither do we find any merit in the defendant's contention that consecutive sentences are
prohibited because they all result from the commission of a single act. The thrust of
defendant's contention is that all of the counts charged amount to the commission of only one
offense. The test to be applied to determine whether or not there is only one offense, is
whether each count requires proof of an additional fact which the other does not. Blockburger
v. United States, 284 U.S. 299 [parallel cites omitted] (1932). See also Gore v. United States,
357 U.S. 386 [parallel cites omitted] (1958).
A New Jersey court also considered the double jeopardy issue in State v. Buffa, 16S A.2d
49, 52 {N.J.App.
____________________
crime committed without use or possession of a firearm, be imprisoned as herein provided:
(1) For the first offense the offender shall be guilty of a felony and the court shall impose a sentence of not
less than five years, which sentence shall not be suspended or deferred;
(2) For a second offense, or if, in the case of a first conviction of violation of any provision of this section,
the offender shall previously have been convicted of violation of the laws of the United States or of any other
state, territory or district relating to the use or possession of a firearm while committing or attempting to commit
a crime, the offender shall be guilty of a felony and shall be imprisoned for not less than seven and one-half
years, which sentence shall not be suspended or deferred;
(3) For a third or subsequent offense, or if the offender shall previously have been convicted two or more
times in the aggregate of any violation of the law of the United States or of any other state, territory or district
relating to the use or possession of a firearm while committing or attempting to commit a crime, the offender
shall be guilty of a felony and shall be imprisoned for not less than fifteen years, which sentence shall not be
suspended or deferred;
(4) Misdemeanors or gross misdemeanors categorized as Inherently Dangerous' as the term is used in this
statute means any of the following crimes or an attempt to commit any of the same: Assault in the third degree,
provoking an assault, interfering with a public officer, disturbing a meeting, riot, remaining after warning,
obstructing firemen, petit larceny, injury to property, intimidating a public officer, shoplifting, indecent liberties,
and soliciting a minor for immoral purposes.
(5) It any person shall resist apprehension or arrest by firing upon a law enforcement officer, such person
shall in addition to the penalty provided by statute for resisting arrest, be guilty of a felony and punished by
imprisonment for not less than ten years, which sentence shall not be suspended or deferred.
issue in State v. Buffa, 168 A.2d 49, 52 (N.J.App. 1961), where the court held:
The present claim that the indictment was defective is based on the contention that there
was an illegal joinder or consolidation of two separate and distinct statutory violations within
the one count of the indictment, namely, robbery . . . and being an armed criminal . . .
As this court had occasion to say again only a few weeks ago, it is well settled that an
indictment like the one here under consideration does not allege two separate crimes, but a
single crime (robbery . . .) under circumstances which permit greater punishment for that
crime . . .
The sentences imposed by the court, being well within the maxima allowed under the
respective two statutes, were proper. Any suggestion that defendant has been subjected to
double jeopardy is without validity. He was punished for only one crime, robbery, for which
he received an enhanced punishment because he used a revolver. That a statutory provision
for the imposition of a greater sentence because of particular circumstancesin this case,
being armed while committing robberyis constitutionally proper, is too well settled to
require discussion.
[Headnote 3]
Finally, the Nevada Legislature on May 15, 1975, passed Assembly Bill 502, amending
NRS 193.165.
5
The amendment was a tool of emphasis to clarify the original intent of the
Legislature when it passed NRS 193.165, in 1973.
____________________

5
Stats. Nev. 1975, ch. 465, at 720:
Assembly Bill No. 502Assemblyman Dreyer
CHAPTER 465
AN ACT relating to crimes and punishments; clarifying the intent of the legislature in providing an
additional penalty for the commission of a crime with the use of a deadly weapon. [Emphasis added.]
The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:
SECTION 1. NRS 193.165 is hereby amended to read as follows:
193.165 1. Any person who uses a firearm or other deadly weapon in the commission of a crime shall be
punished by imprisonment in the state prison for a term equal to and in addition to the term of imprisonment
prescribed by statute for such crime. The sentence prescribed by this section shall run consecutively with the
sentence prescribed by statute for such crime.
2. This section does not create any separate offense but provides an additional penalty for the primary
offense, whose imposition is contingent upon the finding of the prescribed fact. [Italicized material in this
section was added by the 1975 amendment.]
3. The provisions of this section [shall] do not apply where the use of a firearm or other deadly weapon is a
necessary element of such crime. [In this section, the bracketed word shall was deleted, and the italicized
material was added, by the 1975 amendment.]
was a tool of emphasis to clarify the original intent of the Legislature when it passed NRS
193.165, in 1973. It clearly states that the section does not create any separate offense but
provides an additional penalty for the primary offense, whose imposition is contingent upon
the finding of a prescribed fact. When a former statute is amended, or a doubtful
interpretation rendered certain by subsequent legislation, it has been held that such
amendment is persuasive evidence of what the Legislature intended by the first statute.
Sheriff v. Smith, 91 Nev. 729, 542 P.2d 440 (1975).
[Headnotes 4, 5]
In addition to his ruling that NRS 193.165 was unconstitutional because it placed the
defendant in double jeopardy, the district judge held the statute void for vagueness. The
doctrine that a statute is void for vagueness is predicated upon its repugnancy to the due
process clause of the Fourteenth Amendment to the United States Constitution. The
Constitution does not require impossible standards of specificity in penal statutes. The test of
granting sufficient warning as to proscribed conduct will be met if there are well settled and
ordinarily understood meanings for the words employed when viewed in the context of the
entire statutory provision. United States v. Brown, 333 U.S. 18, 25-26 (1948); United States
v. Sullivan, 332 U.S. 689, 693-694 (1947). Under such a test, we are satisfied that the words
[using] a firearm or other deadly weapon in the commission of any crime [is punishable by
imprisonment] equal to and in addition to the term of imprisonment prescribed by statute for
such crime define a proscribed course of conduct for which a perpetrator may be imprisoned.
We do not find unconstitutional vagueness in the statute.
[Headnote 6]
Where the intention of the Legislature is clear, it is the duty of the court to give effect to
such intention and to construe the language of the statute so as to give it force and not nullify
its manifest purpose. State ex rel. Barrett v. Brodigan, 37 Nev. 245, 141 P. 988 (1914); State
ex rel. Mighels v. Eggers, 36 Nev. 364, 136 P. 104 (1913); In re Prosole, 32 Nev. 378, 108 P.
630 (1910).
[Headnotes 7-9]
We conclude that NRS 193.165 is constitutional and that the word shall embodied
within it operates to make its use mandatory. We therefore order that a writ of mandamus
issue, directing the respondent district judge to resentence the defendant in the case
before the court, in accordance with the provisions of NRS 193.165.
directing the respondent district judge to resentence the defendant in the case before the court,
in accordance with the provisions of NRS 193.165.
____________
91 Nev. 763, 763 (1975) Jory v. Bennight
EDWARD E. JORY, EDWARD E. JORY CORPORATION, a Nevada Corporation,
GEORGE E. BURNS, and HARRY J. ADAMS, Appellants, v. JANE BENNIGHT,
Respondent.
No. 7835
December 5, 1975 542 P.2d 1400
Appeal from judgment of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Action was brought against real estate corporation, its licensed corporate officer, and two
of its salesmen for damages arising out of an alleged breach of fiduciary duties. The district
court awarded $4,250 in damages plus $1,500 attorney fees, and defendants appealed. The
Supreme Court, Gunderson, C. J., held that evidence that, inter alia, broker evaded his client's
attempts to invoke his assistance concerning transaction in which two salesmen in his employ
allegedly induced homeowner to accept an offer by deceitfully or negligently promising her
that she would receive an additional $4,500 outside of escrow supported the trial court's
determination that the broker had breached his fiduciary duties; and that the award of $4,250
was not improper.
Affirmed.
Albright & McGimsey, Las Vegas, for Appellants.
James L. Buchanan, II, Las Vegas, for Respondent.
1. Evidence.
Even if trial transcript left question as to status of real estate broker who had incorporated his business
and requested that his status be changed to licensed corporate officer, Supreme Court would take judicial
notice from Secretary of State's records that broker was the officer licensed as broker on behalf of the
corporation. NRS 47.130.
2. Corporations.
Use of the corporate structure to evade legal obligations and defeat public policy is not favored.
3. Brokers; Corporations.
In permitting business of real estate brokerage to operate in corporate form, legislature did not intend to
relieve brokers of professional responsibility, but provided that a broker's license would be issued not alone
to a corporation as such but only to a qualified officer on behalf of the corporation. NRS 645.370.
4. Brokers.
Real estate broker who incorporated his real estate business and had status changed from licensed broker
to licensed corporate officer remained a real estate broker, though he was licensed to serve clients on
behalf of a corporation, and had fiduciary duties to those he had undertaken to serve in a professional
capacity, including duty to act in the utmost good faith and to disclose to his principal facts within his
knowledge which might influence the principal in the transaction.
5. Brokers; Corporations.
If real estate broker who had incorporated his real estate business through his own professional
misconduct or neglect breached fiduciary obligations owed to homeowner who listed her home for sale
with his corporation, he would be personally responsible for consequent harm, and operating in the
corporate form did not insulate him from such liability.
6. Corporations.
Under special circumstances, a real estate broker who was also officer of real estate brokerage
corporation might be liable for corporate breaches of fiduciary duties.
7. Brokers.
Evidence that, inter alia, when real estate broker might have rectified any wrongdoing of two salesmen in
his employ he instead evaded client's attempts to invoke his assistance, and that the broker had failed to act
even after promising client that he would investigate allegation that the salesman had induced the client to
accept offer for her home by deceitfully or negligently promising that she would receive additional
payment, supported trial court's determination that broker failed in his fiduciary duties, which include
obligations of the utmost good faith, diligence, loyalty, fair dealing, and disclosure of material facts.
8. Brokers.
Award of $4,250, plus $1,500 attorney fees, to homeowner who assented to offer for her home because
two real estate salesmen had deceitfully or negligently promised that she would receive an additional
$4,500 outside of escrow, including $2,500 additional payment for her home plus $2,000 as compensation
for furniture conveyed to the purchasers, was not improper, despite contention that damages should not
have included anticipated payment for furniture because homeowner still had furniture.
OPINION
Appealing a judgment for $4,250 damages plus $1,500 attorney fees, awarded for
breaching their fiduciary duties to respondent Jane Bennight, appellants contend inter alia"
that appellant Edward E.
respondent Jane Bennight, appellants contend inter alia that appellant Edward E. Jory has no
responsibility for the conduct of the other appellants, Edward E. Jory Corporation and two of
its real estate salesmen, George E. Burns and Harry J. Adams; and that, in any event,
evidence relating to damages does not sustain the judgment. We disagree.
Edward E. Jory incorporated his real estate business under the name of Edward E. Jory
Corporation in December, 1969. Jory is a corporate shareholder and, as the trial court
apparently inferred from evidence before it, the officer licensed on behalf of the corporation
pursuant to NRS 645.370.
1
The corporation employed George E. Burns and Harry J. Adams
as licensed real estate salesmen.
In June of 1970, respondent Bennight listed her home for sale with the Jory corporation.
Burns and Adams showed the home to a Mr. and Mrs. Lewis, who commenced negotiations
for its acquisition. Through Burns and Adams, they tendered an offer for $37,000, which
Bennight accepted. After this agreement failed because the Lewises could not obtain
contemplated financing, another offer set forth a purchase price of $32,750. Evidence the trial
court could credit indicates Bennight assented to this lower offer because Burns and Adams
deceitfully or negligently promised she would receive an additional $4,500 outside of escrow:
$2,500 more cash for her home, plus $2,000 as compensation for furniture also conveyed to
the Lewises.
Bennight testified that, after she failed to receive the $4,500, and while she might still
have rescinded the transaction, she sought an explanation from Edward Jory.
____________________

1
NRS 645.370, as most recently amended in 1975, provides in pertinent part:
1. Every . . . corporation in its application for a license shall designate and appoint one of its officers, to
submit an application for a broker's license.
2. Upon such . . . officer's successfully passing the examination, and upon compliance with all other
requirements of law by the . . . corporation, as well as by the designated . . . officer, the real estate division shall
issue a broker's license to such . . . officer on behalf of the corporation . . ., and thereupon the . . . officer so
designated is entitled to perform all the acts of a real estate broker contemplated by this chapter; except:
(a) That the license entitles such . . . officer so designated to act as a real estate broker only as officer or
agent of the . . . corporation, and not on his own behalf except as provided in NRS 645.385; and
(b) That if in any case the person so designated is refused a license by the real estate division, or in case he
ceases to be connected with the . . . corporation, the . . . corporation may designate another person who shall
make application and qualify as in the first instance.
Although this statute was in slightly different form when the dispute here concerned arose, its apparent
purpose was identical.
and while she might still have rescinded the transaction, she sought an explanation from
Edward Jory. Except for an early morning phone contact in which Jory promised to
investigate the matter, Bennight's evidence indicates he eluded all her efforts to confront him.
It further appears that although Jory had personal knowledge of possible misconduct by Burns
and Adams, he neither informed Bennight concerning the outcome of his promised
investigation, if in fact he ever conducted one, nor did he attempt in any manner to rectify the
wrong done to her.
Receiving no satisfaction, Bennight sued not only the Jory corporation and its salesmen,
but Edward Jory. The trial court found all such defendants had breached their fiduciary
duties, and awarded respondent $4,250. This appeal follows.
[Headnote 1]
1. Public records of the Nevada Real Estate Division show Edward Jory requested that his
status be changed from licensed broker to licensed corporate officer on February 6, 1970. The
Division, approving this request on February 7, issued a new license in the name of Edward
E. Jory, President-Treasurer, Edward E. Jory Corporation. Further, our Secretary of State's
records list Edward Jory as the President, Treasurer, and a director of the corporation. Thus,
assuming arguendo that the trial transcript leaves Jory's status in question, we deem it
appropriate to take judicial notice that Edward Jory, as President-Treasurer of Edward E. Jory
Corporation, was the officer licensed as broker on behalf of the corporation. See: NRS
47.130; Cannon v. Taylor, 88 Nev. 89, 493 P.2d 1313 (1972); Chas. L. Harney, Inc. v. State,
31 Cal.Rptr. 524 (Cal.App. 1963). Were we to remand for a new trial because Jory's
relationship to the corporation was not sufficiently shown, as appellants apparently suggest,
that fact would nonetheless be capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned. NRS 47.130(2)(b).
[Headnotes 2, 3]
2. In essence, appellants contend that a real estate broker like Jory, by electing to conduct
his activities on behalf of a corporation, can absolve himself of all fiduciary responsibility
normally owed to the public. We deem this position untenable. Use of the corporate structure
to evade legal obligations and defeat public policy is not favored. Bangor Punta Operations,
Inc. v. Bangor & A. R. Co., 417 U.S. 703 (1974); N.L.R.B. v. Miller Trucking Service, Inc.,
445 F.2d 927 (10 Cir. 1971); E.
E. Albrecht & Son v. Landy, 114 F.2d 202 (8 Cir. 1940); United States v. Hudgins-Dize Co.,
83 F.Supp. 593 (E. D. Vir. 1949). Moreover, it seems clear our legislature, in permitting the
business of real estate brokerage to operate in corporate form, had no intent to relieve brokers
of professional responsibility. Instead, the legislature has provided that a broker's license will
be issued, not alone to a corporation as such, but only to a qualified officer on behalf of the
corporation. NRS 645.370. We are, therefore, concerned with the obligations and liability of a
corporate officer who is licensed to carry out the corporation's duties as a broker.
[Headnotes 4, 5]
In urging that Edward Jory owed no duty to Bennight we think appellants misconstrue
Jory's status. He remained a real estate broker, although licensed to serve clients on behalf of
a corporation. Like any broker, Jory had fiduciary duties to those he had undertaken to serve
in a professional capacity, including a duty to act in the utmost good faith, and to disclose
to his principal facts within or which may come to his knowledge which might influence the
principal in the transaction. Keyworth v. Nevada Packard Co., 43 Nev. 428, 436, 186 P.
1110, 1112 (1920). Therefore if Jory, through his own professional misconduct or neglect,
breached fiduciary obligations owed to Bennight, he is personally responsible for consequent
harm, and operating in the corporate form does not insulate him from such liability. Cf.
Adams v. Fidelity & Casualty Co. of New York, 107 So.2d 496 (La.Cir.Ct.App. 1958).
[Headnote 6]
Some jurisdictions, indeed, take the view that the designated broker shares responsibility
for any and all breaches of fiduciary duty attributable to the corporation. Circle T.
Corporation v. Deerfield, 444 P.2d 404 (Colo. 1968); see Code of Ala., Tit. 46, 311 (5)
(Supp. 1973). In the instant case, however, we need not go so far as to declare brokers
accountable for breaches they do not participate in, countenance, or direct. Here, we only
need recognize that a broker, though licensed on behalf of a corporation, stands personally
responsible for his own professional defaults.
2
[Headnote 7]
[Headnote 7]
____________________

2
We also recognize, of course, that under special circumstances, a broker-officer might be liable for
corporate breaches upon other legal theories: See: Carson Meadows Inc. v. Pease, 91 Nev. 187, 533 P.2d 458
(1975); North Arlington Med. v. Sanchez Constr., 86 Nev. 515, 471 P.2d 240 (1970); Baer v. Amos J. Walker,
Inc., 85 Nev. 219, 452 P.2d 916 (1969); McCleary Cattle Co. v. Sewell, 73 Nev. 279, 317 P.2d 957 (1957).
[Headnote 7]
Thus, it is sufficient for disposition of this case to find evidence in the record that Jory
breached his own fiduciary duties to Bennight. As noted, evidence shows that when Jory
might have rectified any wrongdoing, he instead evaded Bennight's attempts to invoke his
assistance as responsible broker. Even after promising Bennight he would investigate the
matter, it appears Jory failed to take meaningful action to protect her. Thus, although Jory
may not have been guilty of fraud, evidence of record supports the trial court's determination
that he failed in his fiduciary duties as a broker, which include obligations of the utmost good
faith, diligence, loyalty, fair dealing and disclosure of material facts. Holland Rlty. v. Nev.
Real Est. Comm'n, 84 Nev. 91, 436 P.2d 422 (1968); Keyworth v. Nevada Packard Co.,
supra.
[Headnote 8]
3. Appellants also contend that, even if Jory is liable, evidence does not support the
amount of damages awarded. The basis for such contention is that the damages include what
Bennight anticipated receiving for her furniture, and that this is improper because she still has
the furniture. The record, however, discloses facts from which the trial court could infer that
the furniture, though retained by respondent, had little or no value to her in her altered
circumstances, and that therefore she was in fact damaged in the total amount of $4,250. See:
Harden v. Kogo, 91 Nev. 265, 534 P.2d 913 (1975); Casey v. Williams, 87 Nev. 137, 482
P.2d 824 (1971).
Once respondent is paid, it may be that either appellants or the Lewises will be entitled to
the furniture. Whatever the various parties' rights may be regarding the furniture, that issue is
not before us.
Affirmed.
____________
91 Nev. 768, 768 (1975) Doggett v. State
De ORVAL DOGGETT, Appellant, v. THE
No. 7757
December 5, 1975 542 P.2d 1066
Appeal from order denying post-conviction relief, Sixth Judicial District Court, Humboldt
County; Llewellyn A. Young, Judge.
The Supreme Court held that (1) in the factual context of the case, the absence of a trial
transcript did not infringe petitioner's due process rights, (2) petitioner was not entitled to be
represented by counsel at the 1958 preliminary examination, and (3) while no rule of law
requires a judgment of conviction to be summarily reversed because of a conclusory
allegation, made after trial when guilt has been determined by a jury, that the defendant was
mentally incompetent, the Court was constrained to conclude, in the factual setting of the
instant case, that the post-conviction court should have conducted an evidentiary hearing on
petitioner's allegations regarding his competency at the time of his 1958 murder trial.
Horace R. Goff, State Public Defender and Michael R. Griffen, Deputy Public Defender,
Robert List, Attorney General, Carson City; and William Macdonald, District Attorney,
Humboldt County, for Respondent.
Absence of a trial transcript did not, in the factual context of the case, infringe petitioner's rights of due
process, since petitioner's trial counsel, at a time when the transcript was available, wanted to perfect and
pursue an appeal, but petitioner vetoed counsel's advice.
2. Criminal Law.
In situation where the trial transcript is no longer available, it may be presumed that a defendant who had
a lawyer at trial had one who could have protected his rights on appeal.
3. Criminal Law.
Defendant was not entitled to be represented by counsel at his 1958 preliminary examination, since that
right, first enunciated in the Supreme Court's 1970 Coleman decision, was subsequently held not to be
retroactive.
4. Criminal Law.
While no rule of law requires a judgment of conviction to be summarily reversed because of a conclusory
allegation, made after trial when guilt has been determined by a jury, that the defendant was mentally
incompetent, the Supreme Court was constrained to conclude, in the particular factual setting of the instant
case, that the post-conviction court should have conducted an evidentiary hearing on petitioner's allegations
regarding his competency at the time of his 1958 murder trial.
5. Criminal Law.
Where factual allegations are made which, if true, could establish a right to relief, a convicted person
must be allowed an evidentiary hearing, unless the available record repels such allegations.
6. Criminal Law.
Post-conviction petitioner had the burden of proving by clear and convincing evidence his allegations of
incompetency at the time of his trial.
OPINION
Per Curiam:
In November 1958, De Orval Doggett was found guilty, by jury verdict, of first degree
murder and sentenced to life imprisonment, without possibility of parole.
There was a timely motion for new trial based on newly discovered evidence that Doggett
lacked mental competency because he had been admitted to the Stockton State Hospital for
mental illness on September 19, 1952. It was also shown that Doggett had left the hospital,
without permission, July 30, 1953. The hospital records also show Doggett was not
considered dangerous and their want request was cancelled August 14, 1953. Doggett had
not given this information to his attorney until the night before the trial ended; and,
documentation from the hospital was not received by the attorney until after the jury's verdict.
The trial judge denied the motion for new trial, concluding that he had considered all the
testimony, including Doggett's, and that there was no doubt in the mind of the court as to
Doggett's sanity at the time of the homicideand at trial. Doggett then vetoed his counsel's
advice that an appeal should be taken and the matter was dormant until 1967almost 9 years
laterwhen Doggett personally requested a copy of his trial transcript. The request was
denied because the court reporter, having retired in 1965, had contemporaneously and of her
own volition, destroyed her shorthand notes.
In August 1973, Doggett filed an in pro per petition for habeas corpus together with an in
pro per petition for post-conviction relief. The thrust of both petitions alleged what Doggett
denominated constitutional issues of (1) the lack of a trial transcript; and, (2) the
ineffectiveness of trial counsel. The district court appointed new counselwho filed a
supplemental petition challenging (1) certain evidence; (2) the lack of counsel at the
preliminary hearing; and, (3) Doggett's mental competency.
Relief was denied and in this appeal we are asked to reverse because: (1) Doggett's due
process rights have been violated because of the absence of the trial transcript; (2) he was
denied counsel at his preliminary examination; (3) the post-conviction court was obligated to
grant Doggett a new trial because there was no competency hearing in 195S to determine
if he was competent when he was tried and convicted; and {4) he was denied appellate
counsel.
because there was no competency hearing in 1958 to determine if he was competent when he
was tried and convicted; and (4) he was denied appellate counsel.
This latter contention, being raised for the first time in this appeal, is summarily rejected.
[Headnotes 1, 2]
1. In the factual context of this case the absence of the trial transcript does not infringe
Doggett's rights of due process. The state cannot be charged with the unavailability of the
transcript; and, since Doggett's trial counsel wanted to perfect and pursue an appealwhen
the transcript was availablewe can only conclude Doggett's own acts prevented a timely
appeal. See Norvell v. Illinois, 373 U.S. 420, 424 (1963), where the High Court said: . . .
[W]here transcripts are no longer available, Illinois may rest on the presumption that he who
had a lawyer at the trial had one who could protect his rights on appeal. The Court also said:
If it appeared that the lawyer who represented petitioner at the trial refused to represent him
on the appeal and petitioner's indigency prevented him from retaining another, we would have
a different case. Id. at 422. Nevada is allowed the same presumption afforded Illinois. Cf.
Hagenios v. Warden, 91 Nev. 328, 535 P.2d 790 (1975).
[Headnote 3]
2. The claimed error because of lack of counsel at the preliminary examination is also
rejected. See Victoria v. Young, 80 Nev. 279 392 P.2d 509 (1964). An accused was not
entitled to be represented by counsel at a preliminary examination in 1958. That right, first
enunciated in Coleman v. Alabama, 399 U.S. 1 (1970), was subsequently held not to be
retroactive. Adams v. Illinois, 405 U.S. 278 (1972).
[Headnotes 4-6]
3. We are unaware of any rule of law that requires a judgment of conviction to be
summarily reversed because of a conclusory allegation, made after trial when guilt has
already been determined by a jury, that an accused was mentally incompetent. However, in
the particular factual setting presented here we are constrained to conclude that the
post-conviction court should have conducted an evidentiary hearing on Doggett's allegations
regarding his competency in 1958. Where factual allegations are made which, if true, could
establish a right to relief, a convicted person must be allowed an evidentiary hearing on such
issue, unless the available record repels such allegations. Fine v. Warden, 90 Nev. 166, 521
P.2d 374 (1974).
See Machibroda v. United States, 368 U.S. 487 (1962). Accordingly, the order of the district
court is reversed. This case is remanded for the sole purpose of affording De Orval Doggett
an evidentiary hearing on the question of his mental competency in 1958. Cf. Williams v.
Warden, 91 Nev. 16, 530 P.2d 761 (1975), and cases cited therein. On remand the burden is
on Doggett to prove by clear and convincing evidence, his allegations of incompetency.
Nathaniel v. Estelle, 493 F.2d 794 (5th Cir. 1974).
____________
91 Nev. 772, 772 (1975) Rowe v. State
CALVIN SWOPE ROWE, Appellant, v. STATE
No. 8201
December 5, 1975 542 P.2d 1059
Appeal from judgments of conviction; Second Judicial District Court, Washoe County;
James J. Guinan, Judge.
Defendant was convicted in the district court of two counts of sale of a controlled
substance and he appealed. The Supreme Court held that circumstances were sufficient for
jury to infer defendant's awareness of the narcotic nature of the substances sold, and that
evidence established that the marijuana involved in the sale was a type prohibited by statute.
Affirmed.
Rodlin H. Goff, State Public Defender, and Michael R. Griffin, Deputy Public Defender,
Defendant's knowledge of the narcotic nature of substances sold is a necessary element of offense of
sale of a controlled substance. NRS 453.321.
Defendant's knowledge of the narcotic nature of controlled substances may be shown by circumstantial
evidence and reasonably drawn inferences. NRS 453.321.
Circumstances that sale of marijuana and amphetamines to informant was observed by officer who had
discussed the price with defendant and paid him the requested sum were sufficient for
jury to infer defendant's awareness of the "narcotic" nature of the substances sold.
91 Nev. 772, 773 (1975) Rowe v. State
defendant and paid him the requested sum were sufficient for jury to infer defendant's awareness of the
narcotic nature of the substances sold. NRS 453.321.
Evidence was sufficient to prove that marijuana involved in sale of controlled substance was a type
prohibited by statute. NRS 453.096, subd. 1(a).
OPINION
Per Curiam:
An undercover agent of the Washoe County Sheriff's Office paid Rowe $125 in exchange
for 8 baggies of marijuana and 5 baggies of amphetamines. As soon as the money and
contraband had been exchanged, Rowe was arrested. He was subsequently convicted, by jury
verdict, of 2 counts of sale of a controlled substance. NRS 453.321.
Appellant here contends: (1) The prosecution failed to prove his awareness of the
narcotic nature of the substances sold, and (2) the prosecution failed to prove the marijuana
involved in the sale was a type prohibited by statute. Both contentions are without merit.
[Headnotes 1-3]
1. Appellant's knowledge of the narcotic nature of the controlled substances is a
necessary element of the offenses charged. Fox v. State, 87 Nev. 591, 491 P.2d 721 (1971);
Dougherty v. State, 86 Nev. 507, 471 P.2d 212 (1970). The requisite knowledge may be
shown by circumstantial evidence and reasonably drawn inferences. Woerner v. State, 85
Nev. 281, 453 P.2d 1004 (1969). Here, the actual transfer of the contraband was between
appellant and a police informant who did not testify. However, the arresting officer observed
the transfer and so testified. The officer also discussed the price with appellant and paid his
the requested sum. We believe these circumstances were sufficient for the jury to infer the
requisite knowledge. Cf. Fairman v. Warden, 83 Nev. 332, 431 P.2d 660 (1967).
[Headnote 4]
2. Appellant's second contention is equally without merit. NRS 453.096(1)(a) defines
marijuana as [a]ll parts of the plant Cannabis sativa L. . . . On cross-examination, the
chemist so identified the marijuana in question.
Affirmed.
____________
91 Nev. 774, 774 (1975) Sun Realty v. District Court
SUN REALTY, a Nevada corporation, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for the County of Clark, Respondent.
No. 8413
December 5, 1975 542 P.2d 1072
Original proceeding in certiorari to review order of Eighth Judicial District Court, Clark
County; Keith C. Hayes, Judge.
Realty company brought original proceeding in certiorari to review district court order
entered sua sponte declaring mistrial in action brought by realty company to recover broker's
commission, and requiring realty company to pay defendants' costs, expenses and attorneys'
fees incurred as precondition to recommencing trial at later date. The Supreme Court,
Thompson, J., held that trial court erred in requiring, in absence of statutory authorization,
that plaintiff pay defendants' costs, expenses and attorneys' fees as precondition to
recommencing trial at later date.
Order vacated.
Stanley W. Pierce, Mario L. Ventura and Don L. Griffith, of Las Vegas, for Petitioner.
Woofter & Bilbray and Bell, Leavitt & Green, of Las Vegas, for Respondent.
Concept of inherent court power comes from Constitution which provides for three separate departments
of governmentlegislative, executive, and judicial, and contemplates that judiciary, as coequal branch of
government, possesses inherent power to protect itself and administer its affairs; consequently, court may,
in exercise of its inherent power, require funds for office equipment, secretarial aid, law library, court
furnishings, and related items. Const. art. 3, 1.
Essentially, inherent power of court is nonadjudicating in nature and relates to administration of judicial
system rather than to handling of controversies between litigants before it.
3. Costs.
Costs, not being recoverable at common law, may be allowed only pursuant to express authority of statute
or rule.
4. Costs.
Attorney fees are governed by agreement, express or implied, and are not recoverable otherwise except
when authorized by statute or rule.
5. Costs.
Following declaration of mistrial in action brought by realty company to recover broker's
commission, trial court erred in requiring, in absence of statutory authorization, that
plaintiff pay defendants' costs, expenses and attorneys' fees as precondition to
recommencing trial at later date.
company to recover broker's commission, trial court erred in requiring, in absence of statutory
authorization, that plaintiff pay defendants' costs, expenses and attorneys' fees as precondition to
recommencing trial at later date. NRS 18.010 et seq.
OPINION
By an original proceeding in certiorari we are asked to review an order of the district court
entered sua sponte declaring a mistrial and requiring plaintiff to pay defendants' costs,
expenses and attorneys' fees incurred as a precondition to recommencing trial at a later date.
The action had been commenced in 1969 by Sun Realty against several defendants to
recover a broker's commission for the sale of the Landmark Hotel in Las Vegas. Shortly
before the five-year dismissal period specified by NRCP 41 (e) was to run, the parties
stipulated in writing for an extension of time within which to bring the action to trial. Trial
before a jury finally did commence. The plaintiff called one of the defendants as an adverse
witness and questioned him for about 2 1/2 trial days. Since only three days had been set
aside for the trial, and since the plaintiff had not as yet presented any of its own witnesses, the
court expressed its displeasure with the progress of the case, declared a mistrial, dismissed
the jury, and ordered the plaintiffs to reimburse the defendants for their costs, expenses and
attorneys' fees incurred as a precondition to recommencing trial at a later date. The order
declaring a mistrial is not challenged. Sun Realty, however, does contend that the district
court acted in excess of its power when it required plaintiff to pay the defendants' costs,
expenses and attorneys' fees as a precondition to later recommencement of trial.
1

It is the contention of petitioner, Sun Realty, that neither statute nor rule authorized the
order entered below, and that absent such authorization the order is void.
2
That contention
was presented to the court below.
____________________

1
The costs, expenses and fees totaled $3,671.98. Of that sum, $3,000 was for attorneys' fees, $408 for travel
expenses of two defendants from Missouri to Nevada, $54.98 for telephone charges, $84 for miscellaneous
expenses, and $125 for court reporter's fees.

2
Since the action had not proceeded to judgment none of the defendants was a prevailing party within the
contemplation of NRS 18.010 et seq., authorizing the allowance of certain costs and disbursements and, in
specified circumstances, attorneys' fees. And, of course, NRCP 37 regarding sanctions when a party fails to obey
an order for discovery is inapposite to the circumstances of this case.
was presented to the court below. That court acknowledged the absence of statutory or rule
authority, but believed that it possessed an inherent power to enter such an order. We do
not agree.
[Headnote 1]
The concept of inherent court power comes from our constitution which provides for three
separate departments of governmentthe legislative, the executive, and the judicial [Nev.
Const. art 3, 1] and contemplates that the judiciary, as a coequal branch of government,
possesses the inherent power to protect itself and administer its affairs. Commonwealth ex
rel. Carroll v. Tate, 274 A.2d 193 (Pa. 1971); Judges for Third Judicial Cir. v. County of
Wayne, 172 N.W. 2d 436 (Mich. 1969). Consequently, a court may, in the exercise of its
inherent power, require funds for office equipment, secretarial aid, law library, Young v.
Board of County Comm'rs, 91 Nev. 52, 530 P.2d 1203 (1975), court furnishings, State ex rel.
Kitzmeyer v. Davis, 26 Nev. 373, 68 P. 689 (1902), and related items.
[Headnote 2]
Essentially, the inherent power of the court is nonadjudicating in nature and relates to the
administration of the judicial system rather than to the handling of controversies between the
litigants before it.
[Headnotes 3, 4]
It is the established law of this state that costs, not being recoverable at common law, may
be allowed only pursuant to the express authority of statute or rule. Dearden v. Galli, 71 Nev.
199, 284 P.2d 384 (1955). It is equally well established that attorney fees are governed by
agreement, express or implied, and are not recoverable otherwise except when authorized by
statute or rule. Dixon v. District Court, 44 Nev. 98, 190 P. 352 (1920); City of Las Vegas v.
Southwest Gas, 90 Nev. 178, 521 P.2d 1229 (1974).
[Headnote 5]
Since neither statute nor rule authorizes the order entered below, and since the district
court misconceived the essential meaning and scope of the inherent power of the court, we
annul that part of the order directing the plaintiff to pay the defendants' costs, expenses and
attorneys' fees.
____________
91 Nev. 777, 777 (1975) Brown v. State
JEPTHA MARVIN BROWN, Appellant v. THE
No. 8076
December 5, 1975 542 P.2d 1068
Appeal from judgment of conviction; Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Defendant was convicted before the district court of robbery, and he appealed. The
Supreme Court held that defendant was not entitled to counsel at identification at scene of
robbery by store clerk; and that store clerk's in-court identification had an independent origin.
Affirmed.
Morgan D. Harris, Public Defender, and Keith E. Galliher, Jr., Deputy Public Defender,
Thomas D. Beatty, Assistant District Attorney, Clark County, for Respondent.
1. Criminal Law.
Defendant was not entitled to counsel at identification at scene of robbery by store clerk, where defendant
had been arrested on probable cause prior to commencement of any prosecution. U.S.C.A.Const. Amend.
6.
2. Criminal Law.
Evidence that store clerk observed robber for approximately 25 minutes during two separate times he was
seen in store and provided a detailed description of his features and clothing supported determination that
store clerk's in-court identification had origin independent of crime scene lineup.
OPINION
Per Curiam:
Convicted of robbery, appellant filed this appeal wherein he contends: (1) he was entitled
to counsel at the crime scene identification; and (2) the identification violated due process
standards. We reject both contentions.
On April 19, 1974, a robbery occurred at Sammy's News Stand in Las Vegas. The store
clerk immediately contacted the police and provided a detailed description of the suspect. A
patrolman spotted a man matching the description running into the Golden Hotel near the
newsstand. When the officers knocked, appellant answered his hotel room door and was
immediately arrested.
91 Nev. 777, 778 (1975) Brown v. State
knocked, appellant answered his hotel room door and was immediately arrested. Shortly
thereafter, the store clerk identified appellant at the crime scene.
[Headnote 1]
1. We reject appellant's contention that he was denied his sixth amendment right to
counsel at the crime scene identification. The right does not exist where the accused has been
arrested on probable cause and prior to the commencement of any prosecution. Reed v.
Warden, 89 Nev. 141, 508 P.2d 2 (1973); Spencer v. State, 88 Nev. 392, 498 P.2d 1335
(1972). Cf. Kirby v. Illinois, 406 U.S. 682 (1972).
[Headnote 2]
2. We also reject his contention that the crime scene identification was so suggestive as to
violate due process. Cf. Stovall v. Denno, 388 U.S. 293 (1967). We doubt the identification
violates due process, but it is unnecessary to decide the issue. After a full evidentiary hearing,
the district judge found the in-court identification was based on observations independent of
the crime scene lineup. For example, the store clerk observed the robber for approximately 25
minutes during two separate times he was seen in the store. She provided a detailed
description of his features and clothing. This evidence amply supports the district court's
determination that the in-court identification had independent origin. Riley v. State, 86 Nev.
244, 468 P.2d 11 (1970); McCray v. State, 85 Nev. 597, 460 P.2d 160 (1969).
Affirmed.
____________
91 Nev. 778, 778 (1975) Cassinari v. Mapes
JOHN CASSINARI, Appellant, v. CHARLES W. MAPES
and GLORIA MAPES WALKER, Respondents.
No. 7902
December 5, 1975 542 P.2d 1069
Appeal from judgment; Second Judicial District Court. Washoe County; John E. Gabrielli,
Judge.
Lessee, in response to notices to quit served on him by lessors, brought action seeking
court declaration regarding status of lease, injunction against lessors' interference therewith,
and damages for breach of covenant of quiet enjoyment, and lessors counterclaimed for
restitution of premises. The district court held that option to extend term of lease was too
vague to be enforced, denied injunctive relief to lessee, and granted lessors' request for
restitution of premises, and lessee appealed. The Supreme Court, Thompson, J., held that
where terms and conditions of covenant to extend lease were settled, except for rental
amount to be determined at later date, renewal clause was enforceable; that where
building, which was subject of lease, had been demolished, lessee's request for injunction
and specific enforcement of renewal clause was no longer viable issue; and that case
would be remanded to consider question of damages for lessors' alleged breach of
covenant of quiet enjoyment.
granted lessors' request for restitution of premises, and lessee appealed. The Supreme Court,
Thompson, J., held that where terms and conditions of covenant to extend lease were settled,
except for rental amount to be determined at later date, renewal clause was enforceable; that
where building, which was subject of lease, had been demolished, lessee's request for
injunction and specific enforcement of renewal clause was no longer viable issue; and that
case would be remanded to consider question of damages for lessors' alleged breach of
covenant of quiet enjoyment.
Reversed, and remanded for further proceedings.
Raggio, Walker, Wooster, Pilkington, and David Guinan, of Reno, for Appellant.
Halley and Halley, and Oliver C. Custer, of Reno, for Respondents.
Covenant to extend lease upon such terms as may be agreed upon is nullity and unenforceable since all
terms of extension are left for future agreement.
Where all terms and conditions of renewal of lease were settled, leaving only rental amount to be
determined at later date, covenant providing for such extension was enforceable since renewal clause
constituted part of consideration for original lease and was without question intended by parties to have
meaning and to be effective.
Where covenant to extend lease was complete as to all of its terms, except for rental amount which was to
be determined at later date, it was proper to imply that parties intended reasonable rent for extended period
and if parties were unable to agree, court should be allowed to fix rental amount since economic conditions
are ascertainable with sufficient certainty to make clause capable of enforcement; thus, such provision for
extending term of lease was not too vague to be enforceable.
4. Landlord and Tenant; Specific Performance.
Where building, which was subject of lease, had been demolished, lessee's request for injunction against
lessors' interference with lease and specific enforcement of renewal clause for lease of building was no
longer viable issue.
OPINION
This action was commenced by John Cassinari as lessee in response to notices to quit
served upon him by Charles W.
Mapes and Gloria Mapes Walker, lessors. He sought a court declaration regarding the status
of his lease, an injunction against the lessors' interference therewith, and damages for breach
of the covenant of quiet enjoyment. The lessors counterclaimed for restitution of the
premises.
The written lease, effective September 1, 1966, through August 31, 1971, at a monthly rent
of $450, granted lessee the exclusive right to secure a new lease upon the property covered
hereby for an additional period of Five (5) years from and after the expiration of the term
hereof upon the same terms and conditions as herein set forth, at a monthly rental to be
determined at that time.
Since the rent was not specified, nor a method provided for determining rent in case of
disagreement, the district court ruled that the option to extend the term of the lease was too
vague to be enforced. The court also declined to apply the doctrine of part performance to the
circumstances before it. Consequently, injunctive relief was denied the lessee, and restitution
of the premises to the lessors was ordered. By reason of its holding, the court was not obliged
to decide other issues in the case. The lessee has appealed.
As already noted, the original five-year term was to expire August 31, 1971. In March, and
again in April, 1971 the lessee notified the lessors in writing of his intention to extend the
lease for an additional five years, and in the latter notification, requested that a time and place
be scheduled to determine the rent to be charged. Attorneys for lessee and lessors discussed
the matter before August 31, 1971, but did not resolve it. The lessee and lessors did not
themselves communicate with each other regarding the rent to be charged for the extended
term.
On August 17, 1971, before expiration of the original term, the President of the United
States issued executive order No. 11615 which prohibited the raising of rents after its issue.
This order was effective for six months.
From September 1, 1971, until May 1974, the lessee continued paying $450 a month rent
and the lessors accepted those monthly payments without protest. In May 1974, the lessors
served two notices to quit upon the lessee, each demanding that he surrender the premises by
June 1, 1974. The first of said notices asserted that the lessee was selling wine in violation of
the lease, and the second notice advised that the lessors had elected to terminate the lease
because the premises had become uninhabitable. This litigation followed.
[Headnotes 1, 2]
1. A covenant to extend a lease upon such terms as may be agreed upon is a nullity and
unenforceable since all the terms of the extension are left for future agreement. City of Reno
v. Silver State Flying Serv., 84 Nev. 170. 175 438 P.2d 257 (1968). In the case before us,
however, all terms and conditions of the renewal were settled, leaving only the rental to later
be determined. There is a division of authority as to enforceability in this circumstance.
1
We
are persuaded that the better view is to enforce such a provision for extension. Playmate Club,
Inc. v. Country Clubs, Inc., 462 S.W.2d 890 (Tenn. App.1970); Moolenaar v. Co-Build
Companies, 354 F.Supp. 980 (D.C.V.I., 1973); Edwards v. Tobin, 284 P. 562 (Ore. 1930);
Chaney v. Schneider, 206 P.2d 669 (Cal.App.1949); Fuller v. Michigan National Bank, 68
N.W.2d 771 (Mich. 1955).
[Headnote 3]
It is appropriate to enforce such a provision since the clause for renewal constitutes part of
the consideration for the original lease, and was without question intended by the parties to
have meaning and to be effective. Surely we may not presume that one of the signatories
agreed to the provision only in the secret belief that it would prove unenforceable. It is
proper, then, to imply that the parties intended a reasonable rent for the extended period. If
unable to agree, a court should be allowed to fix the rental since economic conditions are
ascertainable with sufficient certainty to make the clause capable of enforcement. This view,
we think, carries out the true intention of the parties, and does not constitute a making of a
lease by the court in opposition to the desire of lessor and lessee.
Consequently, we reverse the determination below that the provision for extending the
term of the lease is too vague to be enforceable.
[Headnote 4]
2. The lessee surrendered possession of the leased premises to the lessors in compliance
with the decision below and did not endeavor to secure a stay pending appeal. The building, a
portion of which was the subject of the lease in issue, has been demolished by the lessors and
the land on which it was located is now being used as a parking lot. The lessee presently is
conducting his restaurant business at another location.
____________________

1
The relevant cases are collected in an annot. at 58 A.L.R.3d 500 entitled Validity and Enforceability of
provision for renewal of lease at rental to be fixed by subsequent agreement of parties.
is conducting his restaurant business at another location. Of these facts we take judicial
notice. NRS 47.130 (2).
2

Thus, it is apparent that the injunctive relief sought by the lessee in the first instance, and
his request that the renewal covenant be specifically enforced, no longer tenders a viable
issue.
The lessee, however, also sought to recover damages for the lessors' alleged breach of the
covenant of quiet enjoyment. That issue was not fully litigated since the hearing centered
upon the effectiveness of the renewal provision of the lease. In view of our disagreement with
the trial court on that central issue, a remand is in order to consider the question of damages,
if any, sustained by the lessee.
3

Gunderson, C. J., and Batjer, Zenoff, and Mowbray JJ., concur.
____________________

2
NRS 47.130(2): A judicially noticed fact must be: (a) generally known within the territorial jurisdiction of
the trial court; or
(b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned so that the fact is not subject to reasonable dispute.

3
Regarding damages, it is appropriate to observe that had the trial court found the renewal provision
enforceable, damages would not have automatically followed. Other issues presented to that court would have
had to be determined. For example: whether the lessors' reasons for terminating the tenancy (the sale of
winethat the premises had become uninhabitable) were valid, or merely subterfuge to enable the lessors to
carry out their plans to demolish the building and use the property for purposes more beneficial to them. And, of
course, the issue is further clouded by events that have transpired since the entry of judgment below.
____________
91 Nev. 782, 782 (1975) Rodriguez v. State
WALDMAER RODRIGUEZ, Appellant, v. THE
No. 8271
December 5, 1975 542 P.2d 1065
Appeal from judgment of conviction; First Judicial District Court, Carson City; Paul S.
Goldman, Judge.
On retrial following a mistrial, defendant was convicted in the district court of grand
larceny. Defendant appealed, and the Supreme Court held that defendant's statutory and
constitutional rights to speedy trial were not violated by fact that second trial began 66 days
after the mistrial, and that the record did not support defendant's contention that he did
not have effective assistance of counsel.
second trial began 66 days after the mistrial, and that the record did not support defendant's
contention that he did not have effective assistance of counsel.
Affirmed.
Robert List, Attorney General, Carson City; Michael Fondi, District Attorney, and Terry
Friedman, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
Court may dismiss information when a defendant has not been brought to trial within 60 days of the filing
of an information or after a mistrial. NRS 178.556.
2. Criminal Law.
Failure to set a trial within 60 days of the filing of an information or after a mistrial is not per se
equatable to a denial of a speedy trial. U.S.C.A.Const. Amend. 6; NRS 178.556.
3. Criminal Law.
Where defendant's second trial on charge of grand larceny began 66 days after mistrial, and defendant did
not object that his right to a speedy trial had been violated until the day of the trial, six-day delay was
insubstantial and unprejudicial. U.S.C.A. Const. Amend. 6; NRS 178.556.
4. Criminal Law.
Actions by trial counsel complained of on appeal reflected tactical decisions and did not support
defendant's contention that he was not competently represented.
OPINION
Per Curiam:
In the early morning of September 22, 1974, the Carson City Sheriff's Department received
and broadcast a stolen vehicle report, including a description of the suspect. A radio patrol
unit spotted the suspect vehicle and an ensuing high speed chase ended in a local mobile
home park. Waldmaer Rodriguez was arrested after he was observed running through the
park. The owner of the car identified Rodriguez as the person he had seen take the car without
authorization. Charged with grand larceny, Rodriguez's first trial resulted in a deadlocked
jury; however, on retrial he was convicted and sentenced to a term of years in the Nevada
State Prison.
In this appeal he contends: (1) he was denied his right to a speedy trial; and, (2) he did not
have effective assistance of counsel. We reject both contentions.
[Headnotes 1-3]
1. On the date set for commencement of the second trial, appellant moved to dismiss the
charge, alleging a violation of his right to a speedy trial under a Nevada Statute and the
Federal Constitution. A court may dismiss an information when a defendant has not been
brought to trial within 60 days (1) of the filing of an information (NRS 178.556; State v.
Craig, 87 Nev. 199, 484 P.2d 719 (1971)); or, (2) after a mistrial (Ex Parte Hansen, 79 Nev.
492, 387 P.2d 659 (1963)). However, failure to set a trial within 60 days is not per se
equatable to a denial of a speedy trial. Petschauer v. Sheriff, 89 Nev. 328, 512 P.2d 1325
(1973). Here, the second trial began 66 days after the mistrial. Rodriguez voiced no objection
until the day of the trial. Under these circumstances, we deem the six-day delay insubstantial
and unprejudicial. Cf. Maiorca v. Sheriff, 87 Nev. 63, 482 P.2d 312 (1971); Anderson v.
State, 86 Nev. 829, 477 P.2d 595 (1970). Similarly, we perceive no Sixth Amendment
violation because appellant did not timely assert the right, the delay was insubstantial and no
prejudice occurred.
[Headnote 4]
2. In support of the contention that he was not competently represented, Rodriguez cites
his trial counsel's failure (1) to question what is subjectively described as suggestive
identification; (2) to object to discharge of the first jury; and, (3) to raise a particular defense
at trial. The claimed derelictions are patently frivolous and without merit. It appears that
counsel's actions reflected tactical decisions; and, the record shows that counsel did all that
could be expected of him. Lundy v. Warden, 89 Nev. 419, 514 P.2d 212 (1973); Founts v.
Warden, 89 Nev. 280, 511 P.2d 111 (1973).
Affirmed.
____________
91 Nev. 784, 784 (1975) Geary v. State
MELVIN JOSEPH GEARY, Appellant, v. THE
No. 7775
December 19, 1975 544 P.2d 417
Appeal from a judgment of conviction, Eighth Judicial District Court, Clark County;
James D. Santini, Judge.
Defendant was convicted in the district court of murder in the first degree, and he
appealed. The Supreme Court Batjer J., held that testimony concerning a previous offense
was not reversible error, that police officers conducted a proper warrantless search and
seizure upon observing a large spot of blood on apartment floor, that existence of
temporary break in search between time police officers made initial observation and
investigators gathered certain articles of evidence in the apartment did not render the
search and seizure of the articles unlawful, that knife seized from counter in defendant's
kitchen was properly admitted into evidence, that confession was not involuntary, that
jury instruction was harmless error, that trial court did not err in refusing defendant's
offered instruction, and that fact that two vials of blood were missing from evidence
envelope did not render third vial of blood inadmissible where that vial of blood was
adequately accounted for from the time of its extraction through analysis to introduction
in evidence.
91 Nev. 784, 785 (1975) Geary v. State
reversible error, that police officers conducted a proper warrantless search and seizure upon
observing a large spot of blood on apartment floor, that existence of temporary break in
search between time police officers made initial observation and investigators gathered
certain articles of evidence in the apartment did not render the search and seizure of the
articles unlawful, that knife seized from counter in defendant's kitchen was properly admitted
into evidence, that confession was not involuntary, that jury instruction was harmless error,
that trial court did not err in refusing defendant's offered instruction, and that fact that two
vials of blood were missing from evidence envelope did not render third vial of blood
inadmissible where that vial of blood was adequately accounted for from the time of its
extraction through analysis to introduction in evidence.
Affirmed.
Morgan D. Harris, Public Defender, and Michael A. Cherry, Deputy Public Defender,
Seaton and Frank Cremen, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Trial judge was not required to sua sponte give jury admonishment and limiting instruction after police
officer testified that he had arrested the defendant on a previous incident, where the prosecution had
requested such admonishment, but defense counsel indicated that he felt admonishment would be more
prejudicial to his client than the officer's remark and therefore opposed the request.
2. Criminal Law.
Testimony by police officer that he had arrested defendant on a previous incident did not violate rule
proscribing proof of a distinct independent offense and therefore did not warrant reversal.
The Fourth Amendment to the United States Constitution guarantees the individual's privacy against
arbitrary intrusion by the police, and subject to a few specifically established and well delineated
exceptions, warrantless police invasions of personal privacy are per se unreasonable under the Fourth
Amendment. U.S.C.A.Const. Amend. 4.
The fact that item seized was in plain view, standing alone, is not enough to justify warrantless entry and
seizure unless there are also exigent circumstances and the discovery is inadvertent. U.S.C.A.Const.
Amend. 4.
The state had the burden of proving that a warrantless search and seizure was proper. U.S.C.A.Const.
Amend. 4. 6.
91 Nev. 784, 786 (1975) Geary v. State
Where police officers making a valid arrest in connection with an unrelated matter observed in plain view
what they recognized to be a large spot of blood on floor of defendant's apartment and where defendant
was not bleeding, the police officers had a right to immediately search, as well as a duty and an obligation
to do so. U.S.C.A.Const. Amend. 4.
When an exigency gives rise to a search it may be carried through to its completion in whatever area law
enforcement officers may reasonably expect to find the object of their search.
Fact that there was a temporary break in the search of defendant's apartment between the time that police
officers, who lawfully entered the premises, initially observed a large spot of blood on the apartment floor
and the time that investigators gathered the articles of evidence from the apartment did not render
warrantless search and seizure unlawful, even though the defendant was being held in custody elsewhere.
9. Criminal Law.
Items offered in evidence have relevancy and materiality if they are connected with the perpetrator, the
victim or the crime.
10. Criminal Law.
Knife seized from counter in defendant's kitchen was properly admitted into evidence where a pathologist
had testified that the knife was the type of weapon that could have inflicted the wounds, where defendant,
in his confession, admitted stabbing the victim with a boning knife, and where a criminalist testified that
blood was found on the knife, as the knife was connected to the defendant, the victim, and the crime.
11. Criminal Law.
If a defendant is mentally capable of understanding the meaning and consequences of his confession, his
mentally disturbed condition does not preclude admission of the confession.
12. Criminal Law.
Evidence was sufficient to support conclusion that confession to murder in the first degree was voluntary,
despite defendant's contention that he was promised psychological help in exchange for his confession.
13. Criminal Law.
Jury instruction was erroneous in part in that it improperly advised the jury under the rejected doctrine of
partial responsibility by advising the jury that an abnormal mental condition not amounting to insanity
should be considered for the purpose of determining whether the crime charged or a lesser degree thereof
was in fact committed.
14. Criminal Law.
Where defendant's position was improperly benefitted by instruction allowing jury to apply the rejected
doctrine of partial responsibility, error in giving such instruction was harmless.
15. Criminal Law.
Even though second part of jury instruction was erroneous, in manner that improperly benefitted
defendant, where first part of the instruction sufficiently instructed the jury on defendant's
"state-of-mind," it was not error to refuse defendant's proposed instruction in this
regard.
91 Nev. 784, 787 (1975) Geary v. State
the instruction sufficiently instructed the jury on defendant's state-of-mind, it was not error to refuse
defendant's proposed instruction in this regard.
16. Criminal Law.
Jury instructions should be as clear and understandable as possible and should avoid undue repetition,
and it is not error to refuse to give an instruction when the law encompassed therein is substantially covered
by another instruction given to the jury.
17. Criminal Law.
Vial of murder victim's blood was properly received in evidence over defendant's objection, even though
two of the three vials of blood placed in evidence envelope by a mortician were missing, where the custody
of the remaining vial of blood was accounted for from the time of its extraction through analysis to
introduction.
OPINION
A jury found the appellant guilty of murder in the first degree and fixed his penalty at life
in prison without the possibility of parole. In this appeal he contends that the trial court erred
by (1) admitting evidence of another offense then refusing to grant a mistrial; (2) failing to
suppress evidence obtained in the course of an unlawful search and seizure; (3) admitting his
involuntary confession; (4) failing to properly instruct the jury on his state of mind; and (5)
admitting into evidence a vial of the victim's blood when the chain of evidence was defective.
Midafternoon, February 27, 1973, law enforcement officers in Las Vegas, Nevada,
received information appellant had been involved in a robbery and shooting and began
searching for him. Their search ended several hours later when they found his name on an
apartment mailbox and knocked on the apartment door which he answered.
Upon ascertaining his identity, police officers Emmett Davis and Dale Davis stepped into
the apartment, made a pat down search of appellant, and then pushed him outside into the
custody of a fellow officer. At that moment the officers, from their position at the door of
appellant's apartment, observed an overturned lamp and a large reddish-brown spot appearing
to be blood on the carpet and which was partly covered by a throw rug. Upon this observation
the officers went through the apartment where they found more blood, bloody clothing and
bedding. Shortly thereafter they called for assistance from skilled investigators who made a
more thorough search of the premises and gathered articles of evidence including a knife
from the kitchen counter.
91 Nev. 784, 788 (1975) Geary v. State
and gathered articles of evidence including a knife from the kitchen counter.
Later that day appellant was given the Miranda
1
warnings by two detectives, and he
signed a rights of persons arrested card before they questioned him about the large amount
of blood found in his apartment. During the interrogation appellant told the two detectives he
had at one time been hit by a truck and had blackouts and needed help. They suggested that
he would be entitled to have an attorney appointed to represent him and that an application
could be made for assistance for mental problems. On February 28, 1973, appellant, after
again being advised of his constitutional rights, waiving those rights orally, and signing
another rights of persons arrested card, confessed to the killing of Annette Morris, whose
body containing multiple throat and chest wounds had been discovered February 26, 1973,
beneath a pile of trash and rubbish in the desert. The confession was videotaped and later
played for the jury during the trial.
[Headnote 1]
1. At the trial, officer Dale Davis testified that on February 27, 1973, at about 7:45 p.m.,
he arrested appellant on another incident. Appellant's counsel immediately interrupted the
testimony and moved for a mistrial. After a hearing outside the presence of the jury,
appellant's motion was denied. The trial judge later offered to admonish the jury and give a
limiting instruction, and respondent requested an admonishment, but counsel for appellant
indicated that he felt an admonishment would be more prejudicial to his client than the
officer's remark and opposed the request. In light of the record we reject appellant's
contention on appeal that the trial judge was required to sua sponte give the admonishment.
[Headnote 2]
Appellant's claim that evidence of criminal activity unrelated to the offense charged was
erroneously admitted is answered in Founts v. State, 87 Nev. 165, 483 P.2d 654 (1971).
Founts was indicted for a robbery committed in September of 1969. The victim testified
before the grand jury that Founts had also robbed him in April of 1969. At trial, the
prosecuting attorney referred to the April meeting between Founts and the victim as an
unfortunate confrontation and characterized the circumstances as highly unusual. No
reference was made to the details of the meeting.
____________________

1
Miranda v. Arizona, 384 U.S. 436 (1966).
91 Nev. 784, 789 (1975) Geary v. State
details of the meeting. On appeal Founts contended that the trial court erred in allowing into
evidence the testimony regarding the April offense. In affirming the conviction, we said:
Though the prosecution repeatedly referred to the unusual' or unfortunate' nature of the
April meeting, nowhere in the course of the examination of Mr. Keough [victim] did it elicit a
description of the offense which occurred. Therefore, no damaging previous-offense
testimony was introduced and the rule proscribing the introduction of such testimony was not
violated. 87 Nev. at 168. All the cases relied upon by appellant are distinguishable on their
facts. Here, as in Founts, no damaging previous-offense testimony was introduced, and the
rule proscribing proof of a distinct independent offense at the trial of a person accused of a
crime was not violated. Cf. Martin v. State, 80 Nev. 307, 393 P.2d 141 (1964).
2. The trial court did not commit error in refusing to suppress the physical evidence
discovered during the warrantless search of appellant's apartment and his confession given
during a police inquiry.
[Headnote 3]
The Fourth Amendment to the United States Constitution guarantees the individual's
privacy against arbitrary intrusion by the police. Wolf v. Colorado, 338 U.S. 25, 27 (1949);
See Mapp v. Ohio, 367 U.S. 643 (1961). Subject to a few specifically established and
well-delineated exceptions warrantless police invasions of personal privacy are per se
unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 357
(1967). One of the recognized exceptions to the search warrant requirement of the Fourth
Amendment is the emergency doctrine. State v. Hardin, 90 Nev. 10, 518 P.2d 151 (1974).
[Headnotes 4-6]
Here the police officers making a valid arrest in connection with an unrelated matter and
being lawfully on the premises observed in plain view
2
what they recognized to be a large
spot of blood on the apartment floor. The appellant was not bleeding. A wounded person in
need of assistance might well have been on the premises. At that moment an emergency
situation arose which made an immediate search of the apartment imperative. Not only did
the officers have a right to immediately search, but more importantly, a duty and
obligation.3 State v. Hardin, supra.
____________________

2
Plain view alone is not enough, there must be exigent circumstances to justify a warrantless entry and
seizure, and the discovery must be inadvertent. Coolidge v. New Hampshire, 403 U.S. 443 (1971).
91 Nev. 784, 790 (1975) Geary v. State
search, but more importantly, a duty and obligation.
3
State v. Hardin, supra. The state had
the burden of proving that a warrantless search and seizure was proper. State v. Hardin, supra.
That burden has been adequately met.
[Headnote 7]
When an exigency gives rise to a search it may be carried through to its completion in
whatever area law enforcement officers may reasonably expect to find the object of their
search.
[Headnote 8]
Having had his interest of privacy in the apartment validly invaded and being in custody
elsewhere, appellant cannot recapture that interest by a temporary break in the search between
the time the police officers made the initial search and the investigators gathered the articles
of evidence.
4
Wimberly v. Superior Court, County of San Bernardino, 119 Cal.Rptr.
____________________

3
In State v. Hardin, supra, we quoted with approval from E. Mascolo, The Emergency Doctrine Exception to
the Warrant Requirement Under the Fourth Amendment, 22 Buff.L.Rev. 419, 426-27 (1973):
Law enforcement officers may enter private premises without either an arrest or a search warrant to
preserve life or property, to render first aid and assistance, or to conduct a general inquiry into an
unsolved crime, provided they have reasonable grounds to believe that there is an urgent need for such
assistance and protective action, or to promptly launch a criminal investigation involving a substantial
threat of imminent danger to either life, health, or property, and provided, further, that they do not enter
with an accompanying intent to either arrest or search. If, while on the premises, they inadvertently
discover incriminating evidence in plain view, or as a result of some activity on their part that bears a
material relevance to the initial purpose for their entry, they may lawfully seize it without a warrant.

4
Compare Scott v. State, 86 Nev. 145, 465 P.2d 620 (1970). Scott was charged with two separate robberies,
and his automobile was searched incident to his arrest, then a second time pursuant to a warrant. Neither search
turned up incriminating evidence. Three days after his arrest the car was searched again, this time without a
warrant, to determine whether it had been stolen. During that search the gun used in robberies and some money
taken in one of the robberies was located. Scott was convicted in separate trials of two robberies. Upon appeal a
majority of this court held that the admission of the gun was harmless error in the case where Scott did not testify
and a positive identification of him as the robber was corroborated. However, in the other case we held that the
gun and the money taken from Scott's automobile while in police custody, three days after his arrest, during a
search without a warrant or consent were products of an illegal search and seizure, and reversed. After Scott was
imprisoned on the conviction which we affirmed he petitioned for habeas corpus to the United States District
Court for the District of Nevada, and it was denied. In affirming that denial United States Court of Appeals,
Ninth Circuit, said: . . . [W]e reject the contention that the final search of the car (the car had been previously
under the control of Scott) was improper. We think that the
91 Nev. 784, 791 (1975) Geary v. State
Superior Court, County of San Bernardino, 119 Cal.Rptr. 514 (Cal.App. 1975); Bailey v.
State, 294 A.2d 123 (Md.App. 1972).
[Headnotes 9, 10]
Upon the ground that it was not properly connected to him appellant contends that the
knife seized from the counter in his kitchen was improperly admitted into evidence.
5
Items
offered in evidence have relevancy and materiality if they are connected with the perpetrator,
the victim or the crime. State v. Iddings, 485 P.2d 631 (Wash.App. 1971); Lofton v. People,
450 P.2d 638 (Colo. 1969); State v. Mays, 436 P.2d 482 (Ariz.App. 1968).
In Alsup v. State, 87 Nev. 500, 501-502, 489 P.2d 679 (1971), we said: When the
evidence on the part of the prosecution is circumstantial an implement by means of which it
is likely that a crime was committed is admissible in evidence if it has been connected with
the defendant.
Here a pathologist testified to the numerous wounds suffered by the victim and indicated
that the subject knife was the type of weapon that could have inflicted those wounds.
Appellant, in his videotaped confession, admitted stabbing the victim with a boning knife,
and a criminalist testified that blood was found on the knife.
Connected to the appellant, the victim and the crime, the knife was properly admitted into
evidence by the trial court.
3. Relying on the contention that the detectives promised him psychological help in
exchange for his confession to murder, appellant argues that his confession was not freely and
voluntarily given. The record does not support his contention but does indicate that appellant
had been injured some years before in a traffic accident and, by his own testimony, suffered
blackouts.
[Headnotes 11, 12]
If a defendant is mentally capable of understanding the meaning and consequences of his
confession, his mentally disturbed condition does not preclude its admission.
____________________
search was perhaps an administrative search, proper as such and not too untimely. It also would appear that the
last search (which was a re-search) was proper under the warrant issued a few days before. Scott v. Hocker,
460 F.2d 303 (9th Cir. 1972). [Emphasis added.]

5
For the first time, during argument on this appeal appellant has claimed the knife should have been
suppressed as evidence because it was not seized by the police officers making the initial search of his
apartment, but by an investigator making a later search. This contention is met by our holding, supra, that a
search validly commenced may be reasonably carried through to its conclusion.
91 Nev. 784, 792 (1975) Geary v. State
meaning and consequences of his confession, his mentally disturbed condition does not
preclude its admission. Criswell v. State, 86 Nev. 573, 472 P.2d 342 (1970), cert. denied, 400
U.S. 946 (1970). This record reveals no adverse mental or physical condition on the part of
the appellant which would impair his understanding of the meaning and consequence of his
confession, nor any oppressive or coercive act or pressure on the part of the law enforcement
officers which would render the confession inadmissible.
[Headnotes 13, 14]
4. Appellant next contends there was a possibility that he might have been found guilty in
a lesser degree if his proposed instruction on the state of mind issue had been given in
conjunction with Instruction No. 22,
6
which was given, and as a result the trial court erred in
its refusal. We do not agree.
In Fox v. State, 73 Nev. 241, 247, 316 P.2d 924 (1957), this court in holding that it was
not error for the district court to refuse to give the instruction offered, said: We are here
concerned with two separate factual issues. (1) Was the mind of the defendant capable of
premeditating? This is the capacity' issue upon which we have, earlier in this opinion,
rejected the doctrine of partial responsibility. (2) Assuming that the defendant was capable of
premeditating, did he in fact premeditate? This is the state-of-mind' issue. Upon this issue all
material evidence may be consideredevidence of what the California court has referred to
as tensions', including the evidence of mental disorder. But all evidence must be taken into
consideration. And it must show something more than mental disorder. If evidence of mental
disorder alone is to preclude premeditation it must be such as affects capacity. Otherwise we
have by circuitous reasoning placed upon the State the burden of disproving mental disorder
beyond a reasonable doubt. Upon the state-of-mind issue it is the tensional circumstances of
the case viewed in the light of the evidence of mental disorder which are the proper concern
of the jury. The issue is whether those circumstances, so viewed, raised reasonable doubt that
the mind, although capable of premeditating, did in fact premeditate.
____________________

6
Instruction No. 22, as given, reads: Evidence of an abnormal mental condition not amounting to insanity
which tends to prove that the defendant did not, in fact, entertain the specific intent or state of mind at the time
of the act, which is by definition a requisite element of the crime charged, should be considered for the purpose
of determining whether the crime charged or a lesser degree thereof was, in fact, committed.
91 Nev. 784, 793 (1975) Geary v. State
In presenting these issues to the jury they should be carefully differentiated. Otherwise
confusion is bound to result for, at best, confusion is implicit in the situation. It will not do,
upon the first issue, to present conflicting and confusing instructions which in effect say that
although the defendant had mental capacity to premediate, yet the jury in conscientious
judgment may find that he had not such capacity.
The instruction with which we are here concerned was not a state-of-mind' instruction,
addressing itself to the second issue. Rather, read as a whole, it was a capacity' instruction. It
confined itself to evidence of capacity and invited a reduction of sentence upon the basis of
such evidence alone. To say that evidence of insanity * * * may reduce the grade of the
offense' is not a true statement of the law. It is a statement of the doctrine of partial
responsibility. . . .
In the light of Fox the wording of Instruction No. 22 as given in this case was erroneous in
part. It went beyond the state of mind issue and advised the jury that an abnormal mental
condition not amounting to insanity could not only be considered in determining specific
intent but also should be considered for the purpose of determining whether the crime
charged or a lesser degree thereof was in fact committed. The latter part of that instruction is
a statement of the doctrine of partial responsibility which was specifically rejected by this
court in Fox. In spite of the fact that the trial court erred in giving that latter part of
Instruction 22, it was harmless to appellant because his position was improperly benefitted by
that doctrine being available for application to the facts by the jury.
[Headnotes 15, 16]
Because the first part of Instruction No. 22 sufficiently instructed on appellant's
state-of-mind it was not error to refuse his proposed instruction. Jury instructions should be
as clear and understandable as possible and should avoid undue repetition. It is not error to
refuse to give an instruction when the law encompassed therein is substantially covered by
another instruction given to the jury. Collins v. State, 88 Nev. 168, 170, 494 P.2d 956
(1972). Cf. People v. Bickerstaff, 190 P. 656 (Cal.App. 1920).
[Headnote 17]
5. Finally appellant claims that State's Exhibit No. 32, a vial of the victim's blood, was
erroneously received in evidence over his objection because Peter Foote, a mortician, had
drawn three (3) vials of blood from the victim and placed them in an evidence envelope, but
when State's Exhibit No. 32 was offered, the other two vials were missing.
91 Nev. 784, 794 (1975) Geary v. State
the other two vials were missing. No contention is made that there is any break in the custody
of State's Exhibit No. 32, but a claim that the exhibit is somehow contaminated by the
missing vials because tampering could be inferred and therefore the chain of custody was
incomplete. We do not follow that line of reasoning.
The custody of the vial of blood labeled State's Exhibit No. 32 was accounted for from the
time of its extraction through analysis to introduction. Nothing more is required. No prejudice
to appellant is claimed and none is found in the record as a result of the missing vials. Cf.
People v. Hitch, 527 P.2d 361 (Cal. 1974). The unexplained loss of the companion vials
neither invalidates the exhibit's chain of custody nor precludes its admissibility.
In Sorce v. State, 88 Nev. 350, 352-353, 497 P.2d 902 (1972), we held: It is not necessary
to negate all possibilities of substitution or tampering with an exhibit, nor to trace its custody
by placing each custodian upon the stand; it is sufficient to establish only that it is reasonably
certain that no tampering or substitution took place, and the doubt, if any, goes to the weight
of the evidence. [Citations omitted.]
The unaccounted-for vials did not affect the fairness of the trial and therefore did not
constitute a denial of due process.
The judgment of the district court is affirmed.
____________
91 Nev. 794, 794 (1975) Fagin v. Fagin
HAROLD A. FAGIN, Appellant, v.
RUTH V. FAGIN, Respondent.
No. 7936
December 19, 1975 544 P.2d 415
Appeal from order setting aside decree of divorce entered upon default. Eighth Judicial
District Court, Clark County; Keith C. Hayes, Judge.
Wife moved to vacate husband's default divorce decree on ground that it was entered one
day before expiration of the 20-day period required by rule governing service of publication.
The district court granted motion, and husband appealed. The Supreme Court, Zenoff, J., held
that order setting aside a default judgment will not be reversed except in extreme cases and
that although court condemned deceitful means by which wife, who resided in New York,
avoided personal service of process trial court did not abuse its discretion in setting aside
decree where wife suffered from severe rheumatoid arthritis, was innocent of litigious
affairs, was distressed by fact that husband of 36 years had left her and initiated divorce
proceedings in distant state and had acted on advice of counsel in avoiding service of
process.
91 Nev. 794, 795 (1975) Fagin v. Fagin
which wife, who resided in New York, avoided personal service of process trial court did not
abuse its discretion in setting aside decree where wife suffered from severe rheumatoid
arthritis, was innocent of litigious affairs, was distressed by fact that husband of 36 years had
left her and initiated divorce proceedings in distant state and had acted on advice of counsel
in avoiding service of process.
Affirmed.
Steffens & Simmons, and Gerald W. Hardcastle, of Las Vegas, for Appellant.*
George Rudiak, of Las Vegas, for Respondent.
1. Divorce.
Although wife, who resided in New York, avoided personal service of process by deceitful means, trial
court did not abuse its discretion in setting aside husband's default divorce decree, which was defective for
having been entered one day before expiration of 20-day period required by rule governing service by
publication, in view of fact that wife suffered from severe rheumatoid arthritis, wife was distressed by fact
that her husband of 36 years had left her and initiated divorce proceedings in a distant state, wife was
innocent in litigious affairs and had acted on advice of counsel in avoiding service of process. NRCP
4(e)(1)(iii), (e)(2), 60, 60(b), (c).
2. Appeal and Error; Judgment.
Discretion enjoyed by trial court in setting aside default judgments is broad and such determinations will
not be disturbed on appeal in absence of clear abuse of discretion. NRCP 60.
3. Judgment.
An order setting aside a default judgment will not be reversed except in extreme cases. NRCP 60.
OPINION
Harold Fagin moved from Scarsdale, New York, to Las Vegas in January 1973 and six
weeks later commenced divorce proceedings against his wife, Ruth, to whom he had been
married for 36 years. When apprised of the divorce proceedings by her brother-in-law, Ruth
contacted a New York attorney who advised her that so long as she avoided service of
process, the Nevada courts would be without jurisdiction to entertain her husband's action.
Ruth thereupon successfully thwarted two attempts at personal service by misleading the
process server.
____________________

*
Present counsel did not represent Mr. Fagin in the original divorce proceedings.
91 Nev. 794, 796 (1975) Fagin v. Fagin
Failing to obtain personal service on his spouse, Harold commenced service by publication
pursuant to the provisions of NRCP 4(e) (1)(iii). The first publication occurred on April 5,
1973, and on April 6, copies of the summons and complaint were mailed to Ruth. She refused
to accept the envelope and it was returned to Harold's attorney. A default divorce decree was
entered May 24, 1973, but it was defective for having been entered one day before the
expiration of the 20-day period required by the rule.
1

Shortly thereafter Harold remarried. Within six months, as provided in NRCP 60(b) and
(c),
2
Ruth moved to vacate the default and decree and sought leave to file an answer to
the complaint on the grounds that the judgment was voidable for lack of perfected service
of process and that she should be relieved therefrom on the basis of mistake,
inadvertence or excusable neglect.
____________________

1
NRCP 4(e) (1) (iii): Publication. The order shall direct the publication to be made in a newspaper, to be
designated by the court or judge thereof, for a period of four weeks, and at least once a week during said time. In
case of publication, where the residence of a nonresident or absent defendant is known the court or judge shall
also direct a copy of the summons and complaint to be deposited in the post office, directed to the person to be
served at his place of residence. When publication is ordered, personal service of a copy of the summons and
complaint, out of the state, shall be equivalent to completed service by publication and deposit in the post office,
and the person so served shall have twenty days after said service to appear and answer or otherwise plead. The
service of summons shall be deemed complete in cases of publication at the expiration of four weeks from the
first publication, and in cases when a deposit of a copy of the summons and complaint in the post office is also
required, at the expiration of four weeks from such deposit.

2
NRCP 60:
. . .
(b) Mistakes: Inadvertence; Excusable Neglect; Fraud, Etc. On motion and upon such terms as are just, the
court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud, misrepresentation or other
misconduct of an adverse party which would have theretofore justified a court in sustaining a collateral attack
upon the judgment; (3) the judgment is void; or. (4) the judgment has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that an
injunction should have prospective application. The motion shall be made within a reasonable time, and for
reasons (1) and (2) not more than six months after the judgment, order, or proceeding was entered or taken. A
motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule
does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order,
or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a
judgment shall be by motion as prescribed in these rules or by an independent action.
(c) Default Judgments: Defendant Not Personally Served. When a
91 Nev. 794, 797 (1975) Fagin v. Fagin
default and decree and sought leave to file an answer to the complaint on the grounds that the
judgment was voidable for lack of perfected service of process and that she should be
relieved therefrom on the basis of mistake, inadvertence or excusable neglect. The motion
was granted.
On this appeal, Harold contends that Ruth should be estopped from denying personal
service for the reason that she avoided service by deceitful means and that the reason for her
nonappearance and the consequent entry of default does not fall within the ambit of mistake,
inadvertence or excusable neglect as contemplated by NRCP 60(b). In essence, Harold urges
reversal on the ground that the lower court abused its discretion in setting aside the default
and vacating the divorce decree.
After Ruth had been told of the divorce proceedings and had obtained the advice of
counsel, Harold's attorney contacted the sheriff of Westchester County and requested that
Ruth be personally served with the summons and complaint. Twice, a deputy sheriff, with
process in hand, was sent to Ruth's residence. On both occasions, Ruth confronted the deputy
and denied her own identity claiming instead to be a sister of Ruth. When asked by the deputy
as to Ruth's whereabouts, the sister replied that she was in Florida at an unknown
address. Because the summons and complaint were never delivered to Ruth, she was not
served in technical compliance with NRCP 4(e)(2).
[Headnotes 1-3]
We condemn the deceitful means by which Ruth avoided personal service of process but
we must refrain from considering that question and cases concerned with it.
3
Our restraint is
occasioned by the realization that irrespective of whether we regard Ruth as being
personally served, it was still within the discretion of the lower court to set aside the
default under NRCP 60{b).
____________________
default judgment shall have been taken against any party who was not personally served with summons and
complaint, either in the State of Nevada or in any other jurisdiction, and who has not entered his general
appearance in the action, the court, after notice to the adverse party, upon motion made within six months from
the date of rendition of such judgment may vacate such judgment and allow the party or his legal representatives
to answer to the merits of the original action. When, however, a party has been personally served with summons
and complaint, either in the State of Nevada or in any other jurisdiction, he must make his application to be
relieved from a default, a judgment, an order, or other proceeding taken against him, or for permission to file his
answer, in accordance with the provisions of subdivision (b) of this rule.

3
Schenkman v. Schenkman, 136 N.Y.S.2d 405 (S.Ct. 1954); Kenworthy v. Van Zandt, 337 N.Y.S.2d 481
(Civ.Ct. 1972); State v. Olsen,
91 Nev. 794, 798 (1975) Fagin v. Fagin
regard Ruth as being personally served, it was still within the discretion of the lower court to
set aside the default under NRCP 60(b). As we have ruled many times previously, the
discretion enjoyed by the trial court in setting aside default judgments is broad and such
determinations will not be disturbed on appeal in the absence of clear abuse of discretion.
Bowman v. Bowman, 47 Nev. 207, 217 P. 1102 (1923); Hotel Last Frontier Corp. v. Frontier
Prop., 79 Nev. 150, 380 P.2d 293 (1963); Johnston, Inc. v. Weinstein, 88 Nev. 7, 492 P.2d
616 (1972). An order setting aside a default judgment will not be reversed except in extreme
cases. Howe v. Coldren, 4 Nev. 171 (1868).
The policy underlying the vestiture of such broad discretion in the lower court was
articulated in Hotel Last Frontier Corp. v. Frontier Prop., supra, 79 Nev. at 155-56, 380 P.2d
at 295:
[T]he basic underlying policy [is] to have each case decided on its merits. In the
normal course of events, justice is best served by such a policy. Because of this policy,
the general observation may be made that an appellate court is more likely to affirm a
lower court ruling setting aside a default judgment than it is to affirm a refusal to do so.
In the former case a trial upon the merits is assured, whereas in the latter it is denied
forever. (Emphasis is that of the court.)
Ruth suffered from severe rheumatoidal arthritis which limited her activities and confined
her largely to her household. She was distressed by the fact that her husband of 36 years had
left her and initiated divorce proceedings in a state approximately 2,000 miles distant. These
facts, combined with Ruth's innocence in litigious affairs and her misguided adherence to the
advice of her attorney, were undoubtedly considered by the lower court in concluding that the
default should be set aside. Under such circumstances, we do not perceive an abuse of
discretion of the magnitude necessary to justify reversal.
Issues of attorneys' fees, support, maintenance, court costs and related questions will be
determined by the trial court.
Affirmed.
____________________
154 N.W.2d 825 (Minn. 1967); Nielson v. Braland, 119 N.w.2d 737 (Minn. 1963); Hickey v. Merrit, 197 S.E.2d
833 (Ga.App. 1973); Trujillo v. Trujillo, 162 P.2d 640 (Cal.App. 1945).
____________
91 Nev. 799, 799 (1975) Alves v. Bumguardner
MAYNARD ALVES and JACOLYN ALVES, Husband and Wife, Appellants, v. HORTON
BUMGUARDNER and DARLENE BUMGUARDNER, Husband
and Wife, Respondents.
No. 7921
December 22, 1975 544 P.2d 436
Appeal from judgment of the Fifth Judicial District Court, Nye County; Llewellyn A.
Young, Judge.
The Supreme Court held that substantial evidence supported the trial court's determination
that the parties had intended certain small tools and equipment to be included in the sale of a
ranch, and that the contention the Uniform Commercial Code was applicable to the
transaction had been first raised on appeal and would not be entertained.
Affirmed.
James F. Sloan, Reno, for Appellants.
C. E. Horton, Ely, for Respondents.
Substantial evidence supported trial court's determination that parties had intended certain small tools and
equipment to be included in sale of ranch.
Where argument that Uniform Commercial Code was applicable to transaction involving sale of ranch
was first raised on appeal and supported by no authority, Supreme Court would not entertain argument.
OPINION
Per Curiam:
Appellants contend the district court erroneously determined that the parties intended
certain small tools and equipment to be included in the sale of appellants' ranch to
respondents.
[Headnote 1]
The court's determination is based on substantial evidence and will not be set aside on
appeal. County of Clark v. Lucas, 91 Nev. 263, 534 P.2d 499 (1975); Kulik v. Albers
Incorporated, 91 Nev. 134, 532 P.2d 603 (1975); Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d
103 (1973); Picking v. Day and Night Elec., Inc., 87 Nev. 5, 479 P.2d 461 (1971).
91 Nev. 799, 800 (1975) Alves v. Bumguardner
[Headnote 2]
Appellants argue that the Uniform Commercial Code is applicable to the transaction. In
that this argument is first raised on appeal and supported by no authority, we will not
entertain it. Solar, Inc. v. Electric Smith Constr., 88 Nev. 457, 499 P.2d 649 (1972); Howarth
v. El Sobrante Mining Corp., 87 Nev. 492, 489 P.2d 89 (1971); Britz v. Consolidated Casinos
Corp., 87 Nev. 441, 488 P.2d 911 (1971); Young Elec. Sign Co. v. Erwin Elec. Co., 86 Nev.
822, 477 P.2d 864 (1970).
Numerous other contentions of appellants being without merit, we affirm the district
court's judgment.
____________
91 Nev. 800, 800 (1975) Wiechers v. Sheriff
DIETRICH H. WIECHERS, Appellant, v. SHERIFF,
No. 8541
December 24, 1975 543 P.2d 1347
District Court, William N. Forman, Judge.
Accused petitioned for pretrial writ of habeas corpus, claiming that state failed to produce
sufficient evidence to establish probable cause that he committed offenses of receiving and
possessing stolen property. The district court denied the petition, and accused appealed. The
Supreme Court held that the state did not meet burden of showing probable cause where only
evidence against accused was testimony of members of theft ring who testified they would
steal automobiles, remove engines from vehicles, and then sell some of stolen engines to
accused, who would, apparently, rebuild engines and sell them for profit.
Michael R. Specchio, Reno, for Appellant.
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and Mills B.
Lane, Deputy, Washoe County, for Respondent.
1. Criminal Law.
Evidence, offered at preliminary examination of defendant accused of receiving and possessing
stolen property, that authorities found that 3 of 175 or more engines in defendant's
inventory came from cars that had been stolen was insufficient to show defendant
had knowledge he had bought stolen merchandise.
accused of receiving and possessing stolen property, that authorities found that 3 of 175 or more engines in
defendant's inventory came from cars that had been stolen was insufficient to show defendant had
knowledge he had bought stolen merchandise. NRS 205.275.
2. Criminal Law.
State failed to produce sufficient evidence at preliminary examination to establish probable cause to
believe that defendant committed offense of receiving and possessing stolen property where only
incriminating evidence was testimony, given by members of theft ring in exchange for prosecutor's
agreement to afford them partial immunity and other special considerations, that they would steal
automobiles, remove engines from vehicles, and then sell some of stolen engines to accused, who would,
apparently, rebuild engines and sell them for profit, and where record affirmatively showed that defendant
had no knowledge that engines had been stolen. NRS 171.206, 205.275.
OPINION
Per Curiam:
At the conclusion of a preliminary examination Dietrich H. Wiechers was ordered to stand
trial on a six count information charging him with receiving and possessing stolen property,
felonies under NRS 205.275. Wiechers then sought and was denied habeas; and, in this
appeal he contends we are compelled to reverse because the state failed to produce sufficient
evidence to establish probable cause that he committed the charged offenses. We agree.
The only incriminating evidence was that given by Alan Charleston, who had a felony
record as a juvenile, and William Panos, an outpatient at the state mental hospital. The thrust
of their testimony was (1) they would steal Volkswagen automobiles; (2) they would then
remove the engines from the vehicles; and, (3) they would sell some of the stolen engines to
Wiechers, who would, apparently, rebuild the engines and sell them for a profit. Both
Charleston and Panos testified that at no time did they tell Wiechers that the engines were
stolen.
The record shows the testimony of Charleston and Panos was given in exchange for the
prosecutor's agreement, inter alia, to afford them partial immunity and other special
considerations.
[Headnote 1]
This record is barren of any inference or suggestion that Wiechers was implicated in any
manner inor withthe Volkswagen theft ring; and, in fact, it affirmatively shows that he
had no knowledge that the engines had been stolen.1 See Staab v. State 90 Nev. 347
he had no knowledge that the engines had been stolen.
1
See Staab v. State 90 Nev. 347, 526
P.2d 338 (1974). Furthermore, Wiechers paid for the stolen engines in the ordinary course of
business with his regular business checks. This conduct alone appears to us to be
inconsistent with the state's argument that Wiechers knew of and participated in the charged
criminal activity.
[Headnote 2]
Accordingly, we conclude the state did not meet its burden of showing probable cause, as
required by NRS 171.206. We reverse and remand this case to the district court with
instructions to grant the petition for the writ of habeas corpus.
____________________

1
Based on statements by Charleston and Panos a search warrant issued and the authorities found that 3 of the
175 or more Volkswagen engines in Wiechers' inventory came from cars that had been reported stolen. In the
factual context of this case we deem this evidence insufficient to show that Wiechers had knowledge that he had
bought stolen merchandise.
____________
91 Nev. 802, 802 (1975) Salas v. Sheriff
BENJAMIN ANTHONY SALAS, Appellant, v. SHERIFF,
No. 8540
December 24, 1975 543 P.2d 1343
Appeal from order denying petition for writ of habeas corpus, Eighth Judicial District
Court, Clark County; Paul S. Goldman, Judge.
Defendant, charged with burglary, petitioned for writ of habeas corpus. The district court
denied petition, and accused appealed. The Supreme Court held that continuance of
preliminary examination was improperly granted where victim of alleged burglary had not
been subpoenaed and prosecutor offered no legal reason for his failure to arrange for
appearance of this necessary witness but only testified he was surprised that occupant of
premises was not owner of stolen goods and victim of alleged burglary.
Morgan D. Harris, Public Defender, and Kelly H. Swanson, Deputy, Clark County, for
Appellant.
Leon Simon, Deputy, Clark County, for Respondent.
Criminal Law.
Continuance of preliminary examination was improperly granted where victim of alleged burglary had
not been subpoenaed and prosecutor offered no legal reason for his failure to arrange for appearance of
this necessary witness, but only gave sworn testimony that he was surprised that occupant of premises,
who did testify, was not owner of stolen goods and victim of alleged burglary.
OPINION
Per Curiam:
Benjamin Anthony Salas duly and timely appeared in a magistrate's court in Las Vegas for
a scheduled preliminary examination on a burglary charge.
Although the criminal complaint alleged that Salas had, during the night, broken and
entered a shed in the backyard of premises occupied by the alleged victim, and removed
certain goods therefrom, the only evidence of record showed that the goods were picked up
by Salas from a nearby vacant lot at midday.
The chief prosecution witness was the occupant of the premises where the alleged burglary
took place. She testified that she was not the owner of the goods which were allegedly taken
and that she could not identify them.
At this juncture the prosecuting attorney, under the ostensible authority of Bustos v.
Sheriff, 87 Nev. 622, 491 P.2d 1279 (1971), gave sworn testimony that he was surprised
that the occupant of the premises was not the victim of the alleged burglary. On the basis of
the sworn statement the magistrate granted, over objection, the prosecuting attorney's motion
to continue the hearing.
Salas then sought, but was denied, habeas and in this appeal he contends we must reverse.
We agree.
In McNair v. Sheriff, 89 Nev. 434, 514 P.2d 1175 (1973), we charted the case history of
the court's concern that criminal accusations should proceed or terminate on principles
compatible with judicial economy, fair play and reason, . . . Id., 89 Nev. at 438, 514 P.2d at
1177. There, we also noted that our opinion in Bustos, allowed a continuance to be granted
for legitimate emergencies. For example: . . . if surprised by absence of a subpoenaed
witness, a prosecutor may orally move for continuance on his own sworn testimony." Id.,
S9 Nev. at 43S, 514 P.2d at 1177.
for continuance on his own sworn testimony. Id., 89 Nev. at 438, 514 P.2d at 1177.
Here the necessary witness had not been subpoenaed and the prosecutor offered no legal
reason for his failure to arrange for the appearance of the necessary witness and to have been
prepared to go forward with the preliminary examination.
The magistrate should not have granted the continuance; accordingly, we reverse and
remand this case to the district court with instructions to grant the petition for the writ of
habeas corpus.
____________
91 Nev. 804, 804 (1975) First Am. Title Co. v. State of Nevada
FIRST AMERICAN TITLE COMPANY OF NEVADA, As Successor to NEVADA TITLE
AND GUARANTY COMPANY, Appellant, v. THE STATE OF NEVADA, COUNTY OF
DOUGLAS, and THE NEVADA STATE TAX COMMISSION, Respondents.
No. 7892
December 30, 1975 543 P.2d 1344
Appeal from an order of the Ninth Judicial District Court, Douglas County; Noel E.
Manoukian, Judge.
Taxpayer, having paid property taxes under protest, instituted action attacking the assessed
valuation of the property. The district court granted defendant's motion to dismiss, and
taxpayer appealed. The Supreme Court held that taxpayer could not maintain suit where it
had failed to challenge the valuation before the county and state boards of equalization.
Affirmed.
Vargas, Bartlett & Dixon, and Albert F. Pagni, Reno, for Appellant.
Robert List, Attorney General, James D. Salo, Deputy Attorney General, and Howard D.
McKibben, District Attorney, Douglas County, for Respondents.
1. Taxation.
Taxpayer, after paying property taxes under protest, could not maintain action attacking the assessed
valuation of the property, having failed to challenge the valuation before the county and state boards of
equalization before filing suit as required by statute, despite contention that second statute, authorizing suit
where taxes exceed $300, stated a separate and distinct remedy; latter statute does
not create an exception to doctrine of exhaustion of administrative remedies.
where taxes exceed $300, stated a separate and distinct remedy; latter statute does not create an exception
to doctrine of exhaustion of administrative remedies. NRS 361.410, subd. 1, 361.420.
2. Statutes.
In construing statute, legislative acts are to be harmoniously construed.
Administrative remedies must be exhausted prior to seeking judicial relief.
OPINION
Per Curiam:
[Headnote 1]
Appellant paid, under protest, property taxes on land located in Douglas County.
Subsequent to payment, appellant instituted this action attacking the assessed valuation of the
property, pursuant to NRS 361.420.
1
The district court granted respondent's motion to
dismiss because appellant failed to challenge the valuation before the county and state boards
of equalization, before filing suit, as required by NRS 361.410(1).
Appellant here contends that compliance with NRS 361.410(1) is not a condition
precedent to filing suit under NRS 361.420, because the latter states a separate and distinct
remedy. We disagree.
NRS 361.410(1) provides:
No taxpayer shall be deprived of any remedy or redress in a court of law relating to the
payment of taxes, but all such actions shall be for redress from the findings of the state board
of equalization, and no action shall be instituted upon the act of a county assessor or of a
county board of equalization or the Nevada tax commission until the state board of
equalization has denied complainant relief. Nothing herein shall be deemed to prevent a
proceeding in mandamus to compel the placing of nonassessed property on the
assessment roll."
____________________

1
NRS 361.420 provides in most material part:
1. Any property owner whose taxes exceed the sum of $300 and are in excess of the amount which such
owner claims justly to be due may pay each installment of taxes as it becomes due under protest in writing,
which protest shall be in triplicate and filed with the county treasurer at the time of the payment of the
installment of taxes. . . .
2. The property owner, having protested the payment of taxes as provided in subsection 1, may commence
a suit in any court of competent jurisdiction in the State of Nevada against the state and county in which the
taxes were paid, and, in a proper case, the Nevada tax commission may be joined as a defendant for a recovery
of the difference between the amount of taxes paid and the amount which such owner claims justly to be due,
and such owner may complain upon any of the grounds contained in subsection 4. . . .
to prevent a proceeding in mandamus to compel the placing of nonassessed property on the
assessment roll. (Emphasis added.)
[Headnotes 2, 3]
Appellant's suggested interpretation of NRS 361.420 would be inconsistent with the rule
of statutory construction requiring legislative acts to be harmoniously construed. See: Nevada
State Dep't Motor Vehicles v. Turner, 89 Nev. 514, 515 P.2d 1265 (1973). Furthermore, it
would contravene the well-established rule that administrative remedies must be exhausted
prior to seeking judicial relief. State v. Sadler, 21 Nev. 13 (1890). The exhaustion doctrine
is sound judicial policy. If administrative remedies are pursued to their fullest, judicial
intervention may become unnecessary. Had appellant sought relief before the respective
boards of equalization, he may well have been granted the relief he now seeks in the first
instance by judicial intervention.
Appellant's suggested interpretation, from a practical standpoint, would circumvent NRS
361.410(1) in any case involving a contested tax exceeding $300.00. The language of NRS
361.420 does not create an exception to the exhaustion doctrine, and we decline to impose
such an exception. Cf. Westinghouse Electric Corp. v. County of Los Angeles, 116 Cal.Rptr.
742 (Cal.App. 1974).
Affirmed.
____________
91 Nev. 806, 806 (1975) City of Las Vegas v. Int'l Assoc. Firefighters
CITY OF LAS VEGAS, NEVADA, a Municipal Corporation, Appellant, v.
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 1285, Respondent.
No. 7916
December 30, 1975 543 P.2d 1345
Appeal from judgment; Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
City sought declaration whether statute which created metropolitan police department had
repealed by implication a prior city ordinance directing that firefighters be compensated at a
monthly rate not less than that provided in the case of police patrolmen. The district court
found no repeal, and the city appealed. The Supreme Court, Thompson, J., held that the
ordinance relating to firefighters' pay had not been repealed by implication.
ordinance relating to firefighters' pay had not been repealed by implication.
Affirmed.
Carl E. Lovell, Jr., Las Vegas City Attorney, and Leonard P. Smith, Deputy City Attorney,
for Appellant.
Hilbrecht, Jones & Schreck, of Las Vegas, for Respondent.
1. Statutes.
In determining whether statute was repealed by implication, test is whether there is irreconcilable
repugnancy between the two laws compelling conclusion that later enactment necessarily repealed earlier.
2. Statutes.
Though repeal by implication is not favored and will not be indulged if there is any other reasonable
construction, if later enactment covers whole subject matter of earlier law and it is evident that it was
intended as a substitute for it, repeal by implication occurs.
Statute which merged local law enforcement agencies within county into a metropolitan police
department did not repeal by implication prior city ordinance directing that firefighters be compensated at a
monthly rate not less than that provided for police patrolmen. NRS 280.010 et seq.
OPINION
This action for declaratory relief was commenced by the City of Las Vegas against the
International Association of Firefighters, Local 1285, the collective bargaining representative
of the firefighter employees of the City. The City desired to know whether NRS, ch. 280,
creating a metropolitan police department in Clark County, repealed by necessary implication
a prior City ordinance directing that firefighters shall be compensated at a monthly rate not
less than that provided in the case of police patrolmen.
1
The district court found no repeal
and entered judgment for the firefighters. We affirm.
NRS, ch. 280, became effective July 1, 1973. Its purpose was to dissolve local law
enforcement agencies in each county having a population of 200,000 or more according to the
last preceding national census, and to merge such agencies into a metropolitan police
department in order to increase efficiency, reduce costs and coordinate enforcement.
____________________

1
The firefighters' ordinance was enacted pursuant to initiative petition. The City was unsuccessful in its effort
to void the ordinance on constitutional grounds. See: City of Las Vegas v. Ackerman, 85 Nev. 493, 457 P.2d
525 (1969).
preceding national census, and to merge such agencies into a metropolitan police department
in order to increase efficiency, reduce costs and coordinate enforcement. To accomplish that
purpose it was necessary to establish a scheme for control, supervision, budgeting and
funding different than that which theretofore had existed within the several political
subdivisions in the county.
It is the contention of the City that the scheme for control, supervision, budgeting and
funding established by ch. 280 necessarily is repugnant to the earlier firefighters' ordinance
since the City of Las Vegas no longer controls police patrolmen and their monthly rate of pay.
[Headnotes 1, 2]
The test is whether there is an irreconcilable repugnancy between the two laws compelling
the conclusion that the later enactment necessarily repeals the earlier. Carson City v. County
Commissioners, 47 Nev. 415, 224 P. 615 (1924). A repeal by implication is not favored and
will not be indulged if there is any other reasonable construction. State v. Economy, 61 Nev.
394, 130 P.2d 264 (1942); State v. Thompson, 89 Nev. 320, 511 P.2d 1043 (1973). Of course,
if the later enactment covers the whole subject matter of the earlier law and it is evident that it
was intended as a substitute for it, a repeal by implication does occur. So. Nev. Tel. Co. v.
Christoffersen, 77 Nev. 322, 363 P.2d 96 (1961).
[Headnote 3]
Such repugnancy does not exist here. The subject matter of the two laws is different. The
firefighters' ordinance concerns only the monthly rate of pay for firefighters. NRS, ch. 280,
does not concern firefighters at all. It concerns police personnel. This alone destroys the
validity of the City's contention that the later legislative enactment was intended to supersede
the earlier city ordinance. The mere fact that the City of Las Vegas may no longer control the
rate of pay for police patrolmen is of no consequence. The objective of the firefighters'
ordinance was to declare a minimum standard for firefighters' pay. That
standardfirefighters shall be compensated at a monthly rate not less than that provided in
the case of police patrolmenis ascertainable notwithstanding the merger of the local law
enforcement agencies of Clark County into a metropolitan police department. The City of Las
Vegas continues to control the rate of pay for firefighters and has the competence to meet
that standard.
to meet that standard. We, therefore, affirm the judgment entered below.
2

____________________

2
The City of Las Vegas paid its firefighters pursuant to the initiative ordinance until July 1, 1973, the
effective date of the act creating the metropolitan police department. Thereafter, the ordinance was not honored
and parity was not maintained. Consequently, the firefighters counterclaimed below to recover the difference
between the monthly salaries actually paid them and the sums which would have been paid to them had the City
continued to honor the ordinance. The court granted relief to the counterclaimants for the period July 1, 1973, to
March 6, 1974. On the later date, the City of Las Vegas repealed the firefighters' ordinance. Whether the
firefighters are entitled to additional compensation beyond March 6, 1974, was not in issue before the trial court
nor upon this appeal.
____________
91 Nev. 809, 809 (1975) Moser v. State
EDWARD AUGUST MOSER, Appellant, v. THE
No. 8172
December 30, 1975 544 P.2d 424
Appeal from judgment of Eighth Judicial District Court, Clark County; Keith C. Hayes,
Judge.
Defendant was convicted before the district court of murder in first degree, and he
appealed. The Supreme Court, Mowbray, J., held that evidence was sufficient to sustain
guilty verdict; that trial court did not err in giving lying in wait instruction; and that
prosecutor's statements in final argument were improperly designed to inflame emotions of
jury, but did not constitute reversible error.
Affirmed.
[Rehearing denied January 28, 1976]
Carl Martillaro and Arthur J. Bayer, Jr., Carson City, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, Dan M.
Seaton, Chief Deputy District Attorney, and Elliott A. Sattler, Deputy District Attorney, Clark
91 Nev. 809, 810 (1975) Moser v. State
1. Homicide.
Malice aforethought may be inferred from intentional use of deadly weapon in deadly and dangerous
manner, and intention to kill may be ascertained or deduced from facts and circumstances of killing, such
as use of weapon calculated to produce death, manner of use, and attendant circumstances characterizing
act.
2. Homicide.
In prosecution for murder in first degree, in which witness testified that he saw shotgun blast which killed
victim, and then saw defendant emerge from around building from which shot was fired, break open
shotgun, and remove remaining shells, evidence was sufficient to sustain guilty verdict. NRS 200.030.
3. Statutes.
Words in statute having a well defined meaning it common law are presumed to be used in their
common-law sense, unless it clearly appears that another meaning was intended.
4. Homicide.
Elements necessary to constitute lying in wait are watching, waiting, and concealment from person
killed with intention of inflicting bodily injury upon such person or of killing such person. NRS 200.030.
5. Homicide.
In prosecution for murder in first degree, in which testimony by witness to crime supported inference that
defendant concealed himself behind building and watched and waited for victim before shooting victim,
trial court did not err in giving lying in wait instruction. NRS 200.030.
6. Criminal Law.
Instruction will be deemed proper if it is consistent with any reasonable inference that jury might draw
from evidence.
7. Criminal Law.
In prosecution for murder in first degree, prosecutor's statement in final argument, including statement,
December 22, 1972, Merry Christmas, from [defendant] to the [victim's] family . . . were improperly
designed to inflame emotions of jury, but did not constitute reversible error in view of defendant's failure to
request corrective instructions, and in view of fact that evidence was free from doubt.
OPINION
A jury found appellant, Edward August Moser, guilty of murder of the first degree and
fixed his sentence at life imprisonment with possibility of parole.
1
Moser has appealed from
his judgment of conviction, asserting several assignments of error, which we reject as
meritless; therefore, we affirm.
____________________

1
NRS 200.030, subsection 1, as formerly enacted, Stats. Nev. 1967, ch. 523, 438, at 1470:
1. All murder which shall be perpetrated by means of . . . lying in wait . . . or by any other kind of willful,
deliberate and premeditated killing . . . shall be deemed murder of the first degree . . .
91 Nev. 809, 811 (1975) Moser v. State
his judgment of conviction, asserting several assignments of error, which we reject as
meritless; therefore, we affirm.
1. During the early evening hours of December 22, 1972, Moser met his girl friend,
Bobbie, at the Basin Bar in Las Vegas. Later in the evening, Roy Batiste entered the bar.
Moser and Batiste became involved in a heated argument. There were racial slurs exchanged.
Moser claimed Batiste made advances toward Bobbie. Later, Moser left the bar for a short
time, and then returned. The verbal battle appeared to have subsided and Batiste, apologizing
to the patrons for his actions, departed. At this juncture, the evidence is at a variance. Moser
testified that he met Batiste in the parking lot; that Moser became fearful of him and took his
shotgun from his car to scare Batiste; that Batiste hit the gun, and it accidentally discharged,
killing him. A disinterested witness, William Jarrett, testified differently. He said that Moser,
when he noticed Batiste leaving, walked hurriedly past Batiste, exiting the bar before him;
that after the two had left, Jarrett pulled the door open and saw the barrel of a gun protruding
from a corner of a building, pointed at Batiste, who had one hand raised and the other at his
side. Moser was completely concealed. Jarrett witnessed a shotgun blast, saw Moser then
emerge from around the building, break open his gun, and remove the remaining shells.
Moser left the scene and threw his gun in the desert.
2
2.
____________________

2
Q [by Deputy District Attorney Koot] Then, if you would, by using the diagram, please describe to the
jury what occurred after that; what did you see?
A. [by Witness Jarrett] On the shooting?
Q. Yes.
A. Well, I opened up the door this way and I stopped halfway out, and here is the porch right here and right
here was Mr. Batiste, and I seen a gun barrel right there.
Q. That is all you saw was a gun barrel?
A. Yes.
Q. It was point from which direction?
A. Pointing this way, that way.
Q. Assuming that a person was holding that gun, where would be have been standing, approximately?
A. He would have to be standing somewhere behind that building.
. . .
Q. And could you please just describe what happened after that?
A. Well, I would say within a second the gun went off and then Mr. Batiste staggered back, oh, maybe
three or four steps, and then fell down, and then I ran out from here to him and I looked at Mr. Batiste and I
looked back toward the door because at first I thought that it wasn't a real shot because the gun was so muffled,
and I looked back and I seen Ed there by the doorway and he broke the shotgun open and he started pulling the
shells out, I remember distinctly, because of the
91 Nev. 809, 812 (1975) Moser v. State
2. Moser claims there was insufficient evidence presented to the jury to support the jury's
finding that he was guilty of first degree murder. He claims it was all a accident. There was a
direct eyewitness to the crime, and if the jury chose to believe him (Jarrett) rather than
Moser, which they apparently did, it was their prerogative to do so.
[Headnotes 1, 2]
. . . [O]ne may be guilty of murder in the first degree although the intent to commit such a
homicide is formed at the very moment the fatal shot is fired.' Payne v. State, 81 Nev. 503,
509, 406 P.2d 922, 926 (1965). When a design is once formed, the haste with which it is put
into execution in no way affects or modifies the degree of guilt. State v. Gregory, 66 Nev.
423, 212 P.2d 701 (1949). Malice aforethought may be inferred from the intentional use of a
deadly weapon in a deadly and dangerous manner. Moreover, the intention to kill may be
ascertained or deduced from the facts and circumstances of the killing, such as the use of a
weapon calculated to produce death, the manner of the use, and the attendant circumstances
characterizing the act. Payne v. State, supra. There was sufficient evidence in the record
below to support a charge of deliberate and premediated killing.
Where there is substantial evidence to support a verdict in a criminal case, as the record
indicates exists in this case, the reviewing court will not disturb the verdict nor set aside the
judgment. Sanders v. State, 90 Nev. 433, 434, 529 P.2d 206, 207 (1974); Azbill v. State, 88
Nev. 240, 495 P.2d 1064 (1972); Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968).
[Headnote 3]
3. Moser also contends that the court committed reversible error in giving a lying in
wait instruction.
3
Appellant contends that the evidence presented did not support such an
instruction. The elements constituting lying in wait have not heretofore been discussed in
Nevada. In addressing this issue, we are guided by that canon of statutory construction which
provides that words in a statute having a well defined meaning at common law are
presumed to be used in their common law sense, unless it clearly appears that another
meaning was intended.
____________________
smoke coming out, and I looked back at Mr. Batiste and red blood was forming. I went back to the bar and
yelled at someone to give me some clean bar towels and told Ruby to call the police and call an ambulance.

3
The instruction read as follows:
The unlawful killing of a human being, with malice aforethought, with express or implied intent, which is
committed by a person lying in wait for his victim, is Murder in the First Degree.
91 Nev. 809, 813 (1975) Moser v. State
at common law are presumed to be used in their common law sense, unless it clearly appears
that another meaning was intended. Sheriff v. Smith, 91 Nev. 729, 542 P.2d 440 (1975). A
succinct statement of the conduct on the part of the defendant which will support a finding of
murder lying in wait is found in People v. Atchley, 346 P.2d 764, 772 (Cal. 1959):
[Headnote 4]
. . . The elements necessary to constitute lying in wait are watching, waiting, and
concealment from the person killed with the intention of inflicting bodily injury upon such
person or of killing such person. . . . See also People v. Thomas, 261 P.2d 1 (Cal. 1953). Cf.
State v. Brooks, 445 P.2d 831 (Ariz. 1968).
[Headnotes 5, 6]
Applying the tests of Atchley, supra, to the instant case, we find that there was a
watching, waiting, and concealment. Jarrett's testimony would support an inference that
Moser, after concealing himself behind the building, watched and waited for Batiste. An
instruction will be deemed proper if it is consistent with any reasonable inference that the jury
might draw from the evidence. People v. Smith, 298 P.2d 540 (Cal. App. 1956).
[Headnote 7]
4. Moser's final allegation of error results from the prosecution's statements made during
final argument, which are footnoted below.
4
The comments made were improper. They were
designed to inflame the emotions of the jury. They had no place in a trial, and counsel's
objections should have been sustained.
____________________

4
The record reflects the following:
MR. McGIMSEY [Deputy District Attorney]: December 22, 1972, Merry Christmas, from Ed Moser to the
Batiste family
MR. BONAVENTURE [Deputy Public Defender]: I am going to object to that, it has no place in the trial.
THE COURT: Proceed.
MR. McGIMSEY: Wouldn't it be nice, as Mr. Bonaventure says, if we could have Mr. Batiste back here? If
emotion and a guilty conscience could only bring Roy Batiste back here, wouldn't it be nice? If sorrow could
bring Roy Batiste back to his wife and six kids, wouldn't it be nice?
You saw this Defendant testify up here yesterday. He was emotional, he broke up in places, but let's look at
it realistically. Do you think for one minute that this man is sorry for Roy Batiste? Do you think for one minute
that man feels sorry for Roy Batiste and those six kids, or do you think this man feels sorry for himself because
he committed a murder in cold blood?
91 Nev. 809, 814 (1975) Moser v. State
sustained. The issue before us is whether the comments mandate reversal. We have held that
the failure of defense counsel to seek corrective instructions precludes appellate review. In
State v. Hunter, 48 Nev. 358, 367, 232 P. 778, 781 (1925), this court held that to entitle a
defendant to have improper remarks of counsel considered on appeal, objections must be
made to them at the time, and the court must be required to rule upon the objection, to
admonish counsel, and instruct the jury. This requirement was reiterated in State v. Fitch, 65
Nev. 668, 200 P.2d 991 (1948), and more recently in Mears v. State, 83 Nev. 3, 442 P.2d 230
(1967). No such request was made in the instant case.
Additionally, this is a case where the evidence was free from doubt. As this court said in
Pacheco v. State, 82 Nev. 172, 179, 414 P.2d 100, 103 (1966):
Improper argument is presumed to be injurious. If the case, however, is free from doubt,
the appellate court will not reverse. [Cites omitted.] If it is closely contested, the error will be
considered prejudicial. . . .
An eyewitness observed the murder in the instant case. The issue of guilt was not close.
Therefore, we conclude that prejudicial error requiring a reversal and a new trial did not
occur. Accordingly, we affirm the jury's verdict and Moser's judgment of conviction.
Batjer, Zenoff, and Thompson, JJ., concur.
I agree that the prosecutor's Merry Christmas argument constituted misconduct.
Moreover, in the factual context of this case, I agree that such misconduct may be deemed
nonprejudicial. With the approval of my brethren, however, I take this occasion to note that
this court will consider penalizing prosecutors personally for similar derelictions hereafter.
Such unprofessional tactics, however well intentioned, burden our court system in intolerable
ways.
First, inflammatory argument inevitably creates serious appellate issues, occasioning
unnecessary expenditure of time by this court, and by counsel, even if we ultimately decide
reversal for a new trial is unnecessaryas we have in this case. The waste ensuing from
improvident prosecutorial comment often does not end in this court, of course. Frequently, as
may well happen in the instant case, the defense raises similar issues again in federal court,
sometimes successfully and sometimes not, but always at additional public expense
needlessly occasioned by the overzealous prosecutor.
91 Nev. 809, 815 (1975) Moser v. State
not, but always at additional public expense needlessly occasioned by the overzealous
prosecutor.
Second, where a new trial ultimately is ordered, everything done before is at best a total
loss. Indeed, with the passage of time, marshaling evidence necessary for successful
presentation of the people's case may have become more difficult and costly, or even
impossible. In such instances, the prosecutor's misguided efforts at eloquence may free the
person he sought to convict.
Third, judicial resort to the harmless error rule, as in this case, erodes confidence in the
court system, since calling clear misconduct harmless will always be viewed by some as
sweeping it under the rug. (We can, at best, make a debatable judgment call.) Still, an
appellate court like ours cannot try to correct prosecutorial misconduct by abandoning the
harmless error rule where it seems applicable; for to do so would only impose greater
burdens on our court system and penalize the taxpayers who support it.
What, then, should be done when prosecutors burden the courts, and endanger their
capacity to deliver justice to the public, by improper argument or similar misconduct? To be
effective, it seems, sanctions should place the loss as fully as possible on the offending
lawyer.
Accordingly, in cases tried after this date, where the trial transcript discloses improper
argument, I understand that this court will consider referring the offending attorney to the
local administrative committee for determination of an appropriate penalty. Where a retrial is
necessitated, I suggest the penalty might properly include payment of court costs to the state,
and an appropriate assessment to cover the cost of public or private defense counsel.
More than a century of admonitions has failed to engender in all who serve as prosecutors
that instinct for propriety and fairness which their public duty obviously demands. Manifestly,
another approach is indicated.
____________
91 Nev. 816, 816 (1975) Nevada Power Co. v. Public Serv. Comm'n
NEVADA POWER COMPANY a Nevada Corporation, Appellant, v. THE PUBLIC
SERVICE COMMISSION, an Administrative Agency of the State of Nevada; NOEL A.
CLARK, Chairman; EVO A. GRANATA and HEBER P. HARDY, as Members of said
Commission, Respondents.
No. 8013
December 30, 1975 544 P.2d 428
Appeal from order of Eighth Judicial District Court, Clark County; Michael J. Wendell,
Judge.
Electric power company sought judicial review of order of Public Service Commission.
The district court affirmed the Commission's order, and power company appealed. The
Supreme Court, Mowbray, J., held that public is entitled to notice of the filing of company's
rate applications and hearings thereon; that Public Service Commission, in considering
application for electric rate increases, properly restricted consideration to matters stated by
electric company in its applications, and thus Commission properly refused to consider
additional costs reflected in new test year proposed by company and ending subsequent to test
year used in original applications; and that Public Service Commission did not act arbitrarily
or capriciously in fixing a 12.75% return on common equity of electric power company.
Affirmed.
Beckley, Singleton, DeLanoy & Jemison, Chartered, Las Vegas, for Appellant.
Robert List, Attorney General, and Robert L. Crowell, Deputy Attorney General, Carson
When an order of an administrative board is challenged, Supreme Court must review proceedings before
Commission and determine whether that body abused its discretion in an arbitrary way.
The public has a statutory right to notice of a utility's rate increase application, including its contents, and
notice of a Commission hearing on any such rate application. NRS 703.170, 704.100, 704.100,
subds. 1, 2, 704.110, 704.110. subd. 1, 704.210, subd. 1.
A member of the public is entitled to participate in rate application hearings either as an intervenor or as
an interested party.
party. NRS 703.170, 704.100, 704.100, subds. 1, 2, 704.110, 704.110, subd. 1, 704.210, subd. 1.
Public is entitled to notice of the filing of company's rate applications and to hearings thereon. NRS
703.170, 704.100, subds. 1, 2, 704.110, 704.210, subd. 1.
5. Electricity.
Public Service Commission, in considering application for electric rate increases, properly restricted
consideration to matters stated by electric company in its applications, and thus Commission properly
refused to consider additional costs reflected in new test year proposed by company and ending subsequent
to test year used in original applications. NRS 704.110, 704.110, subd. 1.
The methods used by a regulatory body in establishing just and reasonable rates of return are generally
considered to be outside scope of judicial inquiry. NRS 704.040, 704.120.
7. Electricity.
Public Service Commission did not act arbitrarily or capriciously in fixing a 12.75% return on common
equity of electric power company. NRS 704.040, 704.120.
OPINION
This is an appeal from an order of the district court affirming an order of the respondent,
Public Service Commission, regarding seven rate increase applications filed by the appellant,
Nevada Power Company.
Company filed applications for seven rate increases with Commission between September
12 and November 7, 1973. On November 8, 1973, Commission consolidated the seven
applications into one proceeding, which was duly noticed to the public. Hearings on the
applications commenced December 4, 1973. They were continued by announcement thereat
and were heard December 18-21, 1973, and on March 6, 1974. Commission filed its order on
March 11, 1974. Company sought judicial review in the district court under the provisions of
NRS 704.540. The court below, after reviewing the evidence presented to Commission, held
that Commission had not abused its discretion by acting arbitrarily or capriciously, and the
court affirmed Commission's order in all respects.
Company has appealed, claiming that Commission did abuse its discretion in rejecting
certain evidence relating to its operational costs and further that Commission acted arbitrarily
in setting a rate of return on its common equity of 12.75%, which Company claims its
confiscatory.
[Headnote 1]
When an order of an administrative board is challenged, the function of this court is the
same as that of the district court. We must review the proceedings before Commission and
determine whether that body abused its discretion. Southwest Gas Corp. v. Public Serv.
Comm'n, 86 Nev. 662, 474 P.2d 379 (1970); Urban Renewal Agency v. Iacometti, 79 Nev.
113, 379 P.2d 466 (1963); McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961). We have
made such a review of the proceedings before Commission, and we find and so hold that
Commission did not abuse its discretion, and we therefore, as did the district court below,
affirm Commission's order of March 11, 1974, in all respects.
1. The seven applications filed by Company and noticed to the public were predicated for
the most part on an increased cost of fuel.
1

The evidence presented to support these applications was based on Company test year
ending May 31, 1973. However, at the hearings on the seven applications commencing on
December 4, 1973, Company attempted to support the rate increase by using a new Company
test year ending September 30, 1973. This test year contained numerous items that were not
considered in or noticed when the seven original applications were filed.
2
[Headnotes 2, 3]
____________________

1
Company filed rate applications designated as Docket Nos. I&S 810, 811, 820, 823, 824, 826, and 827.
Applications I&S 810 and 811, filed September 12, 1973, state that they were necessitated by . . . the severe
curtailment of natural gas . . . and the resultant requirement of high cost fuel oil that will have to be purchased to
substitute for this gas . . .
Applications I&S 823 and 824, filed October 19, 1973, state they were necessitated by . . . the sharp
increase in the cost of natural and the sharp increase in the cost of low sulphur fuel oil for the Sunrise and Clark
Generating stations. . .
Applications I&S 826 and 827, filed November 7, 1973, state they were necessitated by . . . the increased
cost of common equity capital and increase in oil prices. . .
Application I&S 820, filed October 5, 1973, requested review of specific customer service charges.

2
For instance, the test year ending September 30 1973 contained the following new costs not previously
submitted or noticed to the public:
1. Effluent lines, $72,002.
2. Increased wage costs, $198,216.
3. Research and development costs, $56,000.
4. Additional rate base items, $8,119,379.
5. Rate at which allowances for funds used during construction may be capitalized.
[Headnotes 2, 3]
It is Company's principal argument on this appeal that Commission erred in not
considering the additional costs reflected in the new test year ending September 30, 1973.
Commission felt otherwise and so expressed itself in its written order of March 11, 1974,
when it said, in part:
. . . [A] person examining these applications should be able to rely on the factors stated
by the Applicant in its applications as justifying the rate increases. Therefore, were the
Commission to hear and issue orders on matters not submitted by the Applicant in its
application, there would to that extent be a denial of fairness and due process through
inadequate Notice.
3

We agree, as did the district court, with the conclusions of the Commission. In the State of
Nevada, the public has a statutory right to both notice of a utility's rate increase application,
including its contents, and notice of a Commission hearing on any such rate application.
Additionally, a member of the public is entitled to participate in rate application hearings
either as an intervenor or as an interested party.
1. Notice of Hearing and Right to Be Heard.
Company argues that Commission exercises a legislative function and does not in so doing
adjudicate vested interests requiring a public hearing for affected ratepayers.
____________________
6. Oil tanks in rate base, $513,241.
7. Borrowed energy costs, $191,250.
8. Interchange transactions, $319,695.

3
Commission's order of March 11, 1974, stated in part:
Two problems arise. In the first instance, Section 704.100 of the Nevada Revised Statutes provides that no
change in Applicant's rates, rules and regulations can be effected on less than 30 days' notice to the Commission.
This notice provision is not complied with when, as was done in the instant case, Applicant proceeds to propose,
at the hearing, rates different and higher than those originally applied for and noticed.
Next, Section 704.110(1) of the Nevada Revised Statutes provides that upon filing of any new rate, rule or
regulation the Commission is authorized upon reasonable notice, to enter upon a hearing concerning the
propriety of such rate, fare, charge, classification, regulation, discontinuance, modification, restriction or
practice'. In this case the Commission gave notice of a hearing to be held concerning the instant applications as
they were filed. This notice provided that interested persons could examine these applications as filed and
determine for themselves whether they wished to make an appearance to contest the propriety' of the requested
rate increase. In making such a determination a person examining these applications should be able to rely on the
factors stated by the Applicant in its applications as justifying the rate increases. Therefore, were the
Commission to hear and issue orders on matters not submitted by the Applicant in its application, there would to
that extent be a denial of fairness and due process through inadequate Notice.
requiring a public hearing for affected ratepayers. While it may be argued that a ratepayer
does not have a constitutional right to due process in a legislative rate making procedure, it is
clear that in the State of Nevada the public, who is served by the utility, has a statutory right
to both notice of a utility's rate increase application, including its contents, and notice of a
Commission hearing on any such rate application.
A utility operating under the regulatory jurisdiction of Commission may not effect a
change in its rates for service upon less than 30 days' notice to Commission. NRS 704.100(1).
Moreover, a utility is required under NRS 704.100(2) to file and post its new or amended
rates in its stations and offices.
Pursuant to NRS 703.170 and NRS 704.210(1), Commission on July 1, 1961, adopted its
Rules of Practice and Procedure before the Public Service Commission of Nevada. Rule 15.2
of the Rules states as follows:
If applicant for authorization to increase rates is a gas, electric, telephone, or water utility,
or a street railroad corporation or a passenger stage corporation, the applicant shall name in
the application and mail a copy thereof to the state, when the state is a customer or subscriber
whose rates would be affected by the proposed increase in rates, and to the counties, or the
municipal corporations whose citizens would be affected by the proposed increase in rates,
and shall name any other parties to whom copies of the application will be mailed and
applicant shall promptly notify the Commission of such mailing, unless otherwise ordered by
the Commission. Applicant shall also mail copies to such additional parties and within such
times as may be designated by the Commission.
Similarly, the public is entitled to notice of a Commission hearing on a rate application
pursuant to Rule 9.2 of the Rules, which states that [a]ll hearings required by the Public
Service Commission of Nevada must be noticed by publication and mailing. Rule 9.2 further
states: Copies of the notice shall also be mailed to all city clerks and county clerks of each
county or city wherein patrons or customers affected by the application reside, and such other
parties as designated by the Commission.
Members of the public may participate in a hearing pursuant to Rule 4.1, which states:
At any hearing, all parties named in the preceding rule, except interested parties, shall be
entitled to enter an appearance, to introduce evidence, examine and cross-examine witnesses,
make arguments, and generally participate in the conduct of the proceeding. Interested parties
who are or may be directly and substantially affected by the proceeding may enter an
appearance, introduce evidence and, subject to the discretion of the Commission, may
otherwise participate in the conduct of the proceeding."
be directly and substantially affected by the proceeding may enter an appearance, introduce
evidence and, subject to the discretion of the Commission, may otherwise participate in the
conduct of the proceeding.
Under statutory language almost identical to the Nevada statute, a Delaware court held in
Smith v. Delaware Coach Co., 70 A.2d 257, 260 (Del.App. 1949):
It is apparent from these provisions that no order changing the rates can be made by the
Public Service Commission on its own initiative without a hearing concerning the lawfulness
of such rate or rates' and without reasonable notice to the public as well as to the public utility
affected. [Cite omitted.] When the act is read as a whole it is evident that the phrase in
Section 5 which permits changes in rates by the Commission without the usual thirty days'
notice under such conditions as it may prescribe' is not inconsistent with this conclusion. . .
.
[Headnote 4]
We conclude, therefore, that the public is entitled to notice of the filing of Company's rate
applications and hearings thereon.
2. Notice of the Supportive Evidence Data.
The next issue presented is whether the public is entitled to notice of the evidence filed in
support of a rate increase application. Company argues that there is no statutory requirement
that the evidence to support an application be submitted in advance and that Rule 15.1 (f)
simply requires that a financial statement for a full 12-month period, including a balance
sheet and profit and loss statement, be attached as an exhibit. We find that Rule 15.1 requires
substantially more than a balance sheet and profit and loss statement.
4
Rule 15.1 (c) requires
that a utility rate application contain "[a] complete and accurate statement of the
circumstances and conditions relied upon as justification for the application."
____________________

4
Rule 15.1 in its entirety reads as follows:
Application by any public utility other than rail or motor common carriers proposing to increase any rate,
fare, toll, rental or charge or any classification, contract practice, rule or regulation resulting in any increase shall
in addition to complying with the provisions of the rules applicable to all pleadings submit the following data,
either in the application or attached thereto as an exhibit:
(a) Statements showing in full the rates, tolls, rentals or charges or rules or regulations for which it is
desired to put into effect or the general relief asked for.
(b) A statement or reference showing in full the rates, bills, rental, charges or rules or regulations which will
be superseded by the proposed rates.
(c) A complete and accurate statement of the circumstances and conditions relied upon as justification for
the application. [Emphasis added.]
that a utility rate application contain [a] complete and accurate statement of the
circumstances and conditions relied upon as justification for the application. The clear intent
of this rule is to provide notice to Commission, its staff, and the public (Rule 15.2) of what
the utility intends to rely upon to support a rate application. It is designed to enable
Commission and any other interested parties to narrow their investigation concerning the
propriety (NRS 704.110) of a particular rate increase to the elements enumerated by the
utility in its rate application.
Company filed Docket Nos. 810, 811, 823, 824, 826, and 827 between September 12,
1973, and November 7, 1973. These rate applications as filed with the Commission all used a
test year ending May 31, 1973, and related principally to the increased costs of fuel and
common equity. These applications were noticed to the public, consolidated for hearing
purposes, and the hearing set for December 4, 1973. Just before the hearing, on or about
November 30, 1973, Company submitted its prepared testimony and exhibits to the then
parties of record. From these documents, it was apparent that Company was requesting a rate
increase based not only upon the evidence and data set forth in its filed applications but also
upon additional cost and rate base factors that were not submitted with the filed applications.
Additionally, such new cost factors were based on an updated test year ending September 30,
1973. Company, at the hearing, not only changed the test year from that which it had
originally included in its applications, but it also presented other evidence relating to cost
factors. Commission ruled that the new evidence, insofar as it was different from that
originally referred to in Company's applications, could not be considered, because such
consideration could result in a rate change and therefore not be in compliance with the 30
days' notice required by NRS 704.100(1). Additionally, Commission determined that
consideration of such new and different costs would deny the public and other interested
parties of their right to notice of what Commission was considering in a rate application,
thereby depriving the public and such interested parties, as well as Commission and its staff,
reasonable notice upon which to determine the propriety of the rate increase pursuant to
NRS 704.110{1).
____________________
(d) A reference record to prior action if any by the Commission in any proceeding relative to the existing
and proposed rates.
(e) The approximate number of customers in each rate category or classification.
(f) A financial statement for a full twelve (12) month period including a balance sheet, and profits and loss
statement.
its staff, reasonable notice upon which to determine the propriety of the rate increase pursuant
to NRS 704.110(1).
In urging that Commission erred in not considering the new evidence at the rate hearing,
Company relies heavily upon Bell Tel. Co. v. Public Serv. Comm'n, 70 Nev. 25, 253 P.2d
602 (1953). This court said, 70 Nev. at 39, 253 P.2d at 608:
. . . When the case was being tried to the court on October 15, 1951 and the parties were
considering the test period of the first seven months of 1951, it definitely appeared that the
fifth round wage increase had started July 29, 1951. Only two days remained within the test
period. The company had contracts with six different unions. These contracts provided a
fixed wage schedule, with a starting rate and defined step-ups. Knowing the number of
employees of each class and on each step of the schedule, it was simply a matter of
arithmetic to permit the submission of an exhibit which showed an annual increase in
operating expense, though not within the test period, of $166,000 before federal income
taxes. A similar situation existed with respect to federal income taxes. A bill was pending
before the congress to increase this tax to 52% of net income, retroactive to April 1, 1951.
There was little doubt but that it would pass and it subsequently did pass. The situation could
not be ignored. Without an honest and intelligent forecast as to probable tax, price and wage
levels in the immediate future the fixing of rates would be a futility. [Cites omitted.]
This is not the situation in the instant case. The seven consolidated applications used a test
year ending May 31, 1973. There was nothing contained therein that would suggest to
Commission or the public that the applications were going to be supported with evidence of a
different test year. The court in Bell did not hold or discuss whether Commission was
required to consider an updated test year where that test year is different from that presented
in an original application for a rate increase.
Other jurisdictions have held that it is beyond the jurisdiction of a regulatory body to make
a determination on matters not noticed to the public. In the case of Re Citizens Util. Co., 19
PUR 3d 177 (1957), the California Utilities Commission stated, at 178:
At the hearing in North Sacramento, applicant attempted orally to make a second
amendment to its application concerning such district by which it sought approval of a rate
schedule higher than that theretofore proposed. Primarily because acceptance of such an oral
amendment would be tantamount to a denial of due notice to the public, applicant was
directed to prepare and file a "Second Amendment to Application' concerning its new
proposal . . ."
acceptance of such an oral amendment would be tantamount to a denial of due notice to the
public, applicant was directed to prepare and file a Second Amendment to Application'
concerning its new proposal . . .
In Re Consolidated Edison Co., 90 PUR 3d 371, 384 (1971), the New York Commission
stated:
To avoid such a potential problem in the future, utilities seeking to justify an amount in
addition to their intended rate filing that would separately be a major change should provide
notice to the public of such an intention prior to the time the pertinent evidence is presented.
In a somewhat different context from that presented in the instant case, the Montana
Commission, in Re Montana-Dakota Util. Co., 78 PUR (n.s.) 33, 45 (1949), stated:
The company has one live-steam customer who receives service in Miles City . . . Rates
on this service were fixed in 1927, but the company, apparently through inadvertence, failed
to apply for increases in these rates. On the last day of the hearing, a schedule was filed
covering these rates. This matter was not included in the notice of hearing and the
Commission does not now have jurisdiction to consider this increase in live-steam rates.
Although the above-referenced regulatory decisions do not have the weight of prior
judicial determinations, such cases do indicate the reasonableness of Commission's action
taken in the instant case and that Commission did not act arbitrarily and capriciously.
The Supreme Court of the United States has ruled that, where a statute provides for a
hearing, it means a meaningful hearing. A hearing is not meaningful without an awareness of
the matters to be considered. The High Court held in Gonzales v. United States, 348 U.S.
407, 415 (1955): . . . [T]he right to a hearing means the right to a meaningful hearing.
United States v. Nugent, [346 U.S. 1 (1953)], Simmons v. United States, [348 U.S. 397
(1955)], . . . one based on all the facts in the file and made with awareness of the
recommendations and arguments to be countered. And again the Court ruled, at 416, in
quoting from Judge Learned Hand:
As the case comes to us, the board made use of evidence of which [the registrant] may
have been unaware, and which he had no chance to answer: a prime requirement of any fair
hearing.' [Cite omitted.]
[Headnote 5]
We conclude, as did the district court, that Commission did not act arbitrarily or
capriciously in refusing to consider the new cost items set forth in Company's test year
ending September 30, 1973.
new cost items set forth in Company's test year ending September 30, 1973.
3. The Rate of Return.
We turn to the remaining issue, and that is whether Commission acted arbitrarily in fixing
a 12.75% rate of return on Company's common equity. The price/earnings ratio of a stock is
simply the amount of earnings or yield that an investor may obtain by purchasing a share of
stock at a given price.
The legislative mandate to Commission in the State of Nevada is that Commission
establish rates that are just and reasonable. NRS 704.040, 704.120. The concept of just
and reasonable rates is discussed in two landmark cases of the United States Supreme Court.
In Bluefield Waterworks & Improvement Co. v. West Va. Pub. Serv. Comm'n, 262 U.S.
679 (1923), the Supreme Court stated, at 692-693:
A public utility is entitled to such rates as will permit it to earn a return on the value of
the property which it employs for the convenience of the public equal to that generally being
made at the same time and in the same general part of the country on investments in other
business undertakings which are attended by corresponding risks and uncertainties; but it has
no constitutional right to profits such as are realized or anticipated in highly profitable
enterprises or speculative ventures. The return should be reasonably sufficient to assure
confidence in the financial soundness of the utility and should be adequate, under efficient
and economical management, to maintain and support its credit and enable it to raise the
money necessary for the proper discharge of its public duties.
Later, in Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591 603 (1944), the
Supreme Court reiterated Bluefield to some extent, and stated:
By that standard the return to the equity owner should be commensurate with returns in
investments in other enterprises having corresponding risks. That return, moreover, should be
sufficient to assure confidence in the financial integrity of the enterprise so as to maintain its
credit and to attract capital.
The return of the equity owner should be (a) commensurate with returns on investments in
other enterprises having corresponding risks and (b) sufficient to assure confidence in the
financial integrity of the enterprise so as to maintain its credit and to attract capital. The crux
to every rate case involving the cost of common equity is just how one goes about
conforming to the Bluefield and Hope cases.
In the proceedings before Commission in this case, Company presented the testimony of
two witnesses, Messrs. Allen and Phelps, regarding a just and reasonable rate of return on
Company's common equity. These two witnesses relied on the so-called earnings/price ratio
approach and arrived at the conclusion that the equity return should be 17.4%. Two other
witnesses, Messrs. Seeds and Loconto, also testified regarding the required return on
Company's common equity. Mr. Seeds, essentially using the comparative-earnings approach,
arrived at a recommended return of 12.31%. Mr. Loconto, using primarily the
discounted-cash-flow technique, with a look at comparative earnings, arrived at a
recommended return on common equity of between 12% and 13%. On the basis of the
testimony of these witnesses, Commission arrived at a return on common equity of 12.75%.
Company complains that Commission rejected the evidence of the earnings/price ratio
approach. However, the testimony and exhibits of Allen and Phelps were received into
evidence and were before Commission. Commission determined that exclusive reliance on
the earnings/price ratio approach was not a viable regulatory test. Commission then went
on to say, however, that [a]lthough this Commission cannot and does not herein disregard
the market price of applicant's common stock, we do not believe our decisions should be tied
to the stock market. Commission did consider and weigh the earnings/price data.
[Headnote 6]
Courts have been loath to describe the formula or formulae that must be used by a
regulatory commission in establishing just and reasonable rates. The methods used by a
regulatory body in establishing just and reasonable rates of return are generally considered to
be outside the scope of judicial inquiry. Federal Power Comm'n v. Hope Natural Gas Co.
supra. Federal Power Comm'n v. Natural Gas Pipeline Co., 315 U.S. 575 (1942); Kansas
State Corp. Comm'n v. Federal Power Comm'n, 206 F.2d 690 (8th Cir. 1953). Indeed, this
court has stated:
. . . Yet it is not our province to quarrel with methods used by the commission or with
methods approved by the district court, no matter how faulty they may have been as means or
guides in arriving at sundry determinations involved either in evaluating the property or
determining the net return if the end result of the orders made is to permit the company a just
and reasonable return. . . . Bell Tel. Co. v. Public Ser. Comm'n, supra, 70 Nev. at 34, 253
P.2d at 606.
The hesitancy of courts to establish or prescribe formulae to be used by a regulatory body
in determining reasonable rates of return stems from the fact that rate making is primarily a
legislative function, and therefore, were the courts to prescribe such formulae, they would be
exercising a legislative function not constitutionally entrusted to them.
[Headnote 7]
We conclude, as did the district court, that Commission, acting on the record then before
it, did not act arbitrarily or capriciously in fixing a 12.75% return on the common equity of
Company.
5
We therefore affirm the order of the district court.
Gunderson, C. J., and Batjer and Thompson, JJ., and Guinan, D. J., concur.
____________________

5
It should be noted that Commission, acting on a subsequent application, filed an order on November 11,
1974, authorizing Company a 13.75% rate of return on its common equity.
____________

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