Nevada Reports 1894-1895 (22 Nev.) PDF

22 Nev.
1, 1 (1894)
RULES
of the
Supreme Court of the State of Nevada
Adopted September 1, 1879; amended July 2, 1894;
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rule i.
1. Applicants for license to practice as attorneys and counsellors will be examined in
open court on the first day of the term.
2. The supreme court, upon application of the district judge of any judicial district,
will appoint a committee to examine persons applying for admission to practice as attorneys
and counsellors-at-law. Such committee will consist of the district judge and at least two
attorneys resident of the district.
The examination by the committee so appointed shall be conducted and certified
according to the following rules:
The applicant shall be examined by the district judge and at least two others of the
committee, and the questions and answers must be reduced to writing.
No intimation of the questions to be asked must be given to the applicant by any
member of the committee previous to the examination.
The examination shall embrace the following subjects:

1
The history of this state and of the United States;

2
The constitutional relations of the state and federal governments;

3
The jurisdiction of the various courts of this state and of the United States;

4
The various sources of our municipal law;

5
The general principles of the common law relating to property and personal rights
and obligations;

6
The general grounds of equity jurisdiction and principles of equity jurisprudence;

7
Rules and principles of pleadings and evidence;

8
Practice under the civil and criminal codes of Nevada;

9
Remedies in hypothetical cases;

10
The course and duration of the applicant's studies.
22 Nev. 1, 2 (1894) Rules of Supreme Court
3. the examiners will not be expected to go very much at large into the details of
these subjects, but only sufficiently so, fairly, to test the extent of the applicant's knowledge
and the accuracy of his understanding of those subjects and books which he has studied.
4. When the examination is completed and reduced to writing, the examiners will
return it to this court, accompanied by their certificate showing whether or not the applicant is
of good moral character and has attained his majority, and is a bona fide resident of this state;
such certificate shall also contain the facts that the applicant was examined in the presence of
the committee; that he had no knowledge or intimation of the nature of any of the questions to
be propounded to him before the same were asked by the committee, and that the answers to
each and all the questions were taken down as given by the applicant without reference to any
books or other outside aid.
5. The fee of thirty-five dollars for license must in all cases be deposited with the
clerk of the court before the application is made, to be returned to the applicant in case of
rejection.
rule ii.
In all cases where an appeal has been perfected, and the statement settled (if there be
one) thirty days before the commencement of a term, the transcript of the record shall be filed
on or before the first day of such term.
rule iii.
1. If the transcript of the record be not filed within the time prescribed by Rule II, the
appeal may be dismissed on motion during the first week of the term, without notice. A cause
so dismissed may be restored during the same term, upon good cause shown, on notice to the
opposite party; and unless so restored the dismissal shall be final, and a bar to any other
appeal from the same order or judgment.
2. On such motion there shall be presented the certificate of the clerk below, under
the seal of the court, certifying the amount or character of the judgment; the date of its
rendition; the fact and date of the filing of the notice of appeal, together with the fact and date
of service thereof on the adverse party, and the character of the evidence by which said
service appears; the fact and date of the filing the undertaking on appeal, and that the same is
in due form; the fact and time of the settlement of the statement, if there be one; and also
that the appellant has received a duly certified transcript, or that the has not requested
the clerk to certify to a correct transcript of the record; or, if he has made such request,
that he has not paid the fees therefor, if the same have been demanded.
fact and time of the settlement of the statement, if there be one; and also that the appellant has
received a duly certified transcript, or that the has not requested the clerk to certify to a
correct transcript of the record; or, if he has made such request, that he has not paid the fees
therefor, if the same have been demanded.
rule iv.
1. All transcripts of record in civil cases shall be printed on unruled white paper, ten
inches long by seven inches wide, with a margin, on the outer edge, of not less than one inch.
The printed page shall not be less than seven inches long and three and one-half inches wide.
the folios, embracing ten lines each, shall be numbered from the commencement to the end,
and the numbering of the folios shall be printed between lines. Nothing smaller than minion
type leaded shall be used in printing.
2. Transcripts in criminal cases may be printed in like manner as prescribed for civil
cases; or, if not printed, shall be written on one side only of transcript paper, sixteen inches
long by ten and one-half inches in width, with a margin of not less than one and one-half
inches wide, fastened or bound together on the left sides of the pages by ribbon or tape, so
that the same may be secured, and every part conveniently read. The transcript, if written,
shall be in a fair, legible hand, and each paper or order shall be separately inserted.
3. The pleadings, proceedings, and statement shall be chronologically arranged in the
transcript, and each transcript shall be prefaced with an alphabetical index, specifying the
folio of each separate paper, order, or proceeding, and of the testimony of each witness; and
the transcript shall have at least one blank fly-sheet cover.
4. No record which fails to conform to these rules shall be received or filed by the
clerk of the court.
rule v.
The written transcript in civil causes, together with sufficient funds to pay for the
printing of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt
thereof, shall file the same and cause the transcript to be printed, and to a printed copy shall
annex his certificate that the said printed transcript is a full and correct copy of the transcript
furnished to him by the party; and said certificate shall be prima facie evidence that the
same is correct.
shall be prima facie evidence that the same is correct. The said printed copy so certified shall
also be filed, and constitute the record of the cause in this court, subject to be corrected by
reference to the written transcript on file.
rule vi.
1. The expense of printing or typewriting transcripts, affidavits, briefs or other papers
on appeal in civil causes and pleadings, affidavits, briefs, or other papers constituting the
record in original proceedings upon which the case is heard in this court, required by these
rules to be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the
usual mode; provided, that no greater amount than twenty-five cents per folio of one hundred
words shall be taxed as costs for printing, and no greater amount than twelve and one-half
cents per folio for one copy only shall be taxed as costs for typewriting. All other costs to be
taxed by the clerk in accordance with the fee bill.
2. Either party desiring to recover as costs his expenses for printing or typewriting in
any cause in this court, shall, before said cause is submitted, file with the clerk and serve
upon the opposite party a verified cost bill, setting forth or stating the actual cost of such
printing or typewriting; and no greater amount than such actual cost shall be taxed as costs.
3. If either party desires to object to the costs claimed by the opposite party, he shall
within ten days after the service upon him of a copy of the cost bill, file with the clerk and
serve his objections. Said objections shall be heard and settled and the costs taxed by the
clerk. An appeal may be taken from the decision of the clerk, either by written notice of five
days, or orally and instanter, to the justices of this court, and the decision of such justices
shall be final. If there be no objections to the costs claimed by the party entitled thereto, they
shall be taxed as claimed in his cost bill.
4. In all cases where a remittitur or other final order is sent to a district court or other
inferior tribunal, the costs of the party entitled thereto as taxed by the clerk shall be indorsed
upon such remittitur or order, and shall be collected as other costs in such district court, or
other inferior court or tribunal, and shall not be subject to retaxation in such district court or
other tribunal.
rule vii.
For the purpose of correcting any error or defect in the transcript from the court
below, either party may suggest the same, in writing, to this court, and upon good cause
shown, obtain an order that the proper clerk certify to the whole or part of the record, as may
be required, or may produce the same duly certified, without such order. If the attorney of the
adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,
except when a certified copy is produced at the time, must be accompanied by an affidavit
showing the existence of the error or defect alleged.
rule viii.
Exceptions or objections to the transcript, statement, the undertaking on appeal, notice
of appeal, or to its service or proof of service, or any technical exception or objection to the
record affecting the right of the appellant to be heard on the points of error assigned, which
might be cured on suggestion of diminution of the record, must be taken at the first term after
the transcript is filed, and must be noted in the written or the printed points of the respondent,
and filed at least one day before the argument, or they will not be regarded.
rule ix.
Upon the death or other disability of a party pending an appeal, his representative
shall be substituted in the suit by suggestion in writing to the court on the part of such
representative, or any party on the record. Upon the entry of such suggestion, an order of
substitution shall be made and the cause shall proceed as in other cases.
rule x.*
1. The calendar of each term shall consist only of those cases in which the transcript
shall have been filed on or before the first day of the term, unless by written consent of the
parties; provided, that all cases, both civil and criminal, in which the appeal has been
perfected and the statement settled, as provided in Rule II, and the transcript has not been
filed before the first day of the term, may be placed on the calendar, on motion of either party,
after ten days' written notice of such motion, and upon filing the transcript.
Subdivision 2 is hereby abrogated.
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* As amended November 15, 1895.
2. Causes shall be placed on the calendar in the order in which the transcripts are
filed by the clerk.
rule xi.
1. Within fifteen days after the filing of the transcript on appeal in any case, the
appellant shall file and serve his points and authorities or brief; and within fifteen days after
the service of appellant's points and authorities or brief, respondent shall file and serve his
points and authorities or brief; and within fifteen days thereafter, appellant shall file and serve
his points and authorities or brief in reply, after which the case may be argued orally.
2. The points and authorities shall contain such brief statement of the facts as may be
necessary to explain the points made.
3. The oral argument may, in the discretion of the court, be limited to the printed or
typewritten points and authorities or briefs filed, and a failure by either party to file points and
authorities or briefs under the provisions of this rule and within the time herein provided,
shall be deemed a waiver by such party of the right to orally argue the case, and such party
shall not recover cost for printing or typewriting any brief or points and authorities in the
case.
4. No more than two counsel on a side will be heard upon the oral argument, except
by special permission of the court, but each defendant who has appeared separately in the
court below may be heard through his own counsel.
5. In criminal cases it is left optional with counsel either to file written, printed, or
typewritten points and authorities or briefs.
6. When the oral argument is concluded, the case shall be submitted for the decision
of the court.
7. The times herein provided for may be shortened or extended by stipulation of
parties or order of court, or a justice thereof.
rule xii.
In all cases where a paper or document is required by these rules to be printed, it shall
be printed upon similar paper, and in the same style and form (except the numbering of the
folios in the margin) as is prescribed for the printing of transcripts.
rule xiii.
Besides the original, there shall be filed ten copies of the transcript, briefs, and
points and authorities, which copies shall be distributed by the clerk.
transcript, briefs, and points and authorities, which copies shall be distributed by the clerk.
rule xiv.
All opinions delivered by the court, after having been finally corrected, shall be
recorded by the clerk.
rule xv.
All motions for a rehearing shall be upon petition in writing, and presented within
fifteen days after the final judgment is rendered, or order made by the court, and publication
of its opinion and decision, and no argument will be heard thereon. No remittitur or mandate
to the court below shall be issued until the expiration of the fifteen days herein provided, and
decisions upon the petition, except on special order.
rule xvi.
Where a judgment is reversed or modified, a certified copy of the opinion in the case
shall be transmitted, with the remittitur, to the court below.
rule xvii.
No paper shall be taken from the court room or clerk's office, except by order of the
court, or of one of the justices. No order will be made for leave to withdraw a transcript for
examination, except upon written consent to be filed with the clerk.
rule xviii.
No writ of error or certiorari shall be issued, except upon order of the court, upon
petition, showing a proper case for issuing the same.
rule xix.
Where a writ of error is issued, upon filing the same and a sufficient bond or
undertaking with the clerk of the court below, and upon giving notice thereof to the opposite
party or his attorney, and to the sheriff, it shall operate as a supersedeas. The bond or
undertaking shall be substantially the same as required in cases on appeal.
rule xx.
The writ of error shall be returnable within thirty days, unless otherwise specially
directed.
rule xxi.
The rules and practice of this court respecting appeals shall apply, so far as the same
may be applicable, to proceedings upon a writ of error.
shall apply, so far as the same may be applicable, to proceedings upon a writ of error.
rule xxii.
The writ shall not be allowed after the lapse of one year from the date of the
judgment, order, or decree which is sought to be reviewed, except under special
circumstances.
rule xxiii.
Appeals from orders granting or denying a change of venue, or any other interlocutory
order made before trial, will be heard at any regular or adjourned term, upon three days'
notice being given by either appellant or respondent, when the parties live within twenty
miles of Carson. When the party served resides more than twenty miles from Carson, an
additional day's notice will be required for each fifty miles, or fraction of fifty miles, from
Carson.
rule xxiv.
In all cases where notice of a motion is necessary, unless for good cause shown, the
time is shortened by an order of one of the justices, the notice shall be five days.
rules xxv.
1. Hereafter all transcripts of the record in any action or proceeding may be
typewritten. The typewriting shall be the first impression, clearly and legibly done, with best
quality of black ink, in type not smaller than small pica, upon a good quality of typewriting
paper, thirteen inches long by eight inches wide, bound in boards with flexible backs, in
volumes of a size suitable for convenient handling and ready reference, and arranged and
indexed as required by the rules of this court. When so typewritten such transcript, in the
discretion of the party appealing, need not be printed; but, if printed, all the rules concerning
the same shall still apply thereto.
2. Briefs and points and authorities, instead of being printed, may be typewritten upon
the same paper and in the same style and form as is prescribed for typewritten transcripts.
3. When so typewritten, but one copy of such transcript need be filed in the case; but
a copy thereof shall be served upon the opposite party. Two copies of the briefs and points
and authorities, viz.; the first impression and a copy thereof, shall be filed with the clerk,
and a copy shall be served upon each opposite party who appeared separately in the court
below.
thereof, shall be filed with the clerk, and a copy shall be served upon each opposite party who
appeared separately in the court below.
rule xxvi.*
Under no circumstances shall this court, or any of the district courts of the State of
Nevada, hear proof for the issuance of, or issue final papers or certificates of naturalization to
any applicant therefor, at any time within the sixty days immediately preceding any general or
special state election of this state.
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* Adopted November 15, 1895.
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22 Nev. 15, 15 (1894)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
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JANUARY TERM, 1894
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22 Nev. 15, 15 (1894) State v. Commissioners Washoe County
[No. 1393.]
THE STATE OF NEVADA, ex rel. H. H. BECK, Relator, v. THE BOARD OF COUNTY
COMMISSIONERS OF WASHOE COUNTY and J. B. WILLIAMS,
Auditor of said County, Respondents.
Boards of County CommissionersJurisdiction.Boards of county commissioners being creatures of the
statute, and invested with none but special powers, can exercise such powers only in the manner expressly
conferred by the statute, and their acts must affirmatively appear to be in conformity with the provisions of
the statute giving them power to act.
County CommissionersMeetingsRecords.Any act of a board of county commissioners as such, between
its regular meetings, is void where its records show that at the last preceding regular meeting such meeting
had been adjourned sine die and fail to show a compliance with sec. 1945, Gen. Stats., relating to special
meetings.
Original proceeding on application for writ of certiorari.
The facts are sufficiently stated in the opinion.
B. F. Curler, District Attorney of Washoe county, and Benjamin Curler and Clarke &
Jones, for Relator:
The statutes of this state, Gen. Stats., sec. 1944, provide that the meetings of the board of
county commissioners shall be held at the county seat * * * on the first Mondays of January,
April, July and October of each year, and shall continue from time to time till all business
before them is disposed of.
is disposed of. The only exception from this provision is the one providing for special
meetings (Gen. Stats., sec. 1945), and at such special meetings no business can be transacted
except that for which the meeting was called.
The board in this instance met and adjourned sine die October 2, 1893, and was therefore
powerless in the absence of a special meeting (and none was called) to meet and allow the
claim of Powning, until the next regular meeting, until the first Monday in January, 1894.
(State of Nevada v. Manhattan S. M. Co., 4 Nev. 331.)
This court has repeatedly decided that a board of county commissioners is of special and
limited jurisdiction, and nothing in regard to its proceedings is to be presumed in its favor,
and that its records must affirmatively show the necessary jurisdictional facts. (State v. Board
of Commissioners, 5 Nev. 319; Swift v. Board of Commissioners, 6 Nev. 97; Johnston v.
Eureka County, 12 Nev. 28.)
And when the jurisdiction of the board depends upon certain facts to be ascertained and
determined by it, its records should show that it acted upon the evidence and adjudged the
facts to be sufficient. (Johnston v. Eureka County, 12 Nev. 28.)
J. L. Wines, for Respondent:
This court will not inquire into the sufficiency of the evidence upon which the board acted,
and will not consider the weight or relevancy of the testimony presented to the board.
This court will not inquire as to whether or not there was sufficient or any legal testimony
before the board at the time this action was taken.
Notwithstanding all the defects claimed may have been present in connection with the action
of the board, this court will not consider any of them, nor will it review, in any manner
whatever, the action of the board on this application. A want of jurisdiction is the only
question which this court will examine. (State v. Fall, et al., 6 Nev. 100; State v. Board
Equalization, 7 Nev. 83; Phillips v. Welch, 12 Nev. 158.)
By the court, Murphy, C. J.:
This is an application for a writ of certiorari requiring the board of county commissioners
of Washoe county, and John B.
B. Williams, auditor of said county, to certify up the proceedings of said board and auditor, in
reference to a certain claim of C. C. Powning, amounting to the sum of one thousand dollars,
for money advanced and expended by him on account of the celebration of the Fourth of July,
1893, at Reno. Which claim was allowed by the Board, and audited by the county auditor, but
has not as yet been paid by the county treasurer.
It is not disputed but that the money was advanced and expended as set forth in the claim
as presented to and allowed by the board; but the relator claims and argues that in allowing
said claim the board of county commissioners exceeded its jurisdiction, therefore, its acts are
null and void.
A number of questions were discussed in the oral argument before this court, and the
points are referred to in the brief of the attorneys for the relator; among others, the grave
question of the constitutionality of the act of the legislature of 1893, authorizing the boards of
county commissioners to appropriate money for encampments and other public holiday
celebrations. (Stats. 1893, p. 127.) The court has been asked to pass upon and determine this
question. Were it necessary for the decision of this case we would not hesitate to do so; but
from the view we take of the questions submitted it is unnecessary to question the validity of
the act, and courts are unwilling to pass upon the unconstitutionality of an act of the
legislature unless it becomes absolutely necessary to do so for the purpose of deciding the
question then under consideration. We therefore deem it necessary to notice but one point
argued by the attorneys for the relator, and that is whether the board of county commissioners
was legally in session on the 6th day of November, 1893, on which day it passed upon and
allowed the claim in question. If it was not, the acts of its members were absolutely void, and
the allowance of said claim must be set at naught.
Section 1942, Gen. Stats., provides for the election of a board of county commissioners in
each county in the state.
Section 1944 reads: The meetings of the boards of county commissioners shall be held *
* * on the first Mondays of January, April, July and October, of each year, and shall continue
from time to time, until all the business before them is disposed of.
Section 1945 provides for the calling of special meetings of the board if the business of the
county should require the holding of such. The order calling a special meeting shall be signed
by a majority of the board, and the order shall be entered on the records of the board. The
clerk shall give notice to the members not signing the order, and the notice calling such
special meeting shall be published in a newspaper for one week. Boards of county
commissioners, being creatures of the statute, invested with special powers, can only exercise
such powers in the manner expressly conferred by the statute, and their acts must
affirmatively appear to be in conformity with the provisions of the statute giving them power
to act. Therefore, before the proceedings had or business transacted by the board of
commissioners of Washoe county on the 6th day of November, 1893, can be upheld, it must
appear from its records that the meeting was either an adjourned or a special meeting called
as provided for by law.
When a special meeting is held by the board its record must show that the order calling the
same was signed by the members of the board, or a majority thereof, and those who did not
sign were notified of the order calling the same, and that the notice was published in the
newspaper for one week, and what were the purposes for which the special meeting was to be
held as stated in the order calling the same; and if such entries are not made in the record
book, everything done at such special meeting must be held absolutely void for want of
jurisdiction, because jurisdictional facts of tribunals of special and limited jurisdiction must
appear on its records.
The record of the proceedings of the board of county commissioners brought up by the
respondents by way of return to the writ issued in the case, among other things, shows the
following: Board of county commissioners met October 2, 1893, and, after certain business,
adjourned sine die. There is nothing in the record that would indicate or impart information
to any taxpayer in Washoe county that the board intended to meet on the 6th day of
November for the purpose of transacting any business, and when it adjourned without date on
the 2d day of October, 1893, it could not meet again as a board of county commissioners until
the first Monday of January, 1894 without pursuing the course as provided for in section
1945.
The next record we have of the proceedings of the board reads as follows: At a meeting
of the board of county commissioners of Washoe county, Nevada, held November the 6th,
1893, the following order was made: Washoe County, to C. C. Powning, Dr. For money
advanced and agreed to be advanced on account of celebration of 4th of July at Reno, 1893,
and for decorating county bridge and streets with bunting and other emblems, $1,000.' This
claim is subscribed and sworn to by C. C. Powning, and allowed by a majority of the board of
commissioners.
The record before us fails to show that the meeting held on the 6th day of November,
1893, was either an adjourned or a special meeting, and, the record being silent, we must
presume that it was neither one nor the other, and that the board as a board had no authority to
meet and transact any business on that day. It is an easy matter for the boards of
commissioners of the several counties, if the business of the county should require weekly or
monthly meetings, for them to instruct their clerk to enter an order in their proceedings
adjourning over from week to week, or month to month, as the business may require; and at
such adjourned meeting they can transact any business that might have been transacted at a
regular meeting, of which it is but the continuation.
Being fully satisfied that the law has not been complied with, we therefore decide that the
proceedings of the commissioners had on the 6th day of November, 1893, in attempting to
allow the claim in question, were fatally defective for want of jurisdiction, and must be
quashed, and it is so ordered.
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22 Nev. 19, 19 (1894) South End Mining Co. v. Tinney
[No. 1373.]
SOUTH END MINING COMPANY, Respondent, v. CHAS. TINNEY, N. GLAVINICH and
FANNIE LEEHY, Appellants.
PleadingsEquitable Defense.Of the right of a defendant to set up an equitable defense to an action for the
possession of lands there can be no question, and as to such defense the case is to be tried in the same
manner and upon the same principles as apply to an original bill in equity.
Relocation of Abandoned Mining Claim.If an application for a patent to a mine be abandoned and the
applicant fails to do assessment work on his location without having obtained a certificate of purchase the
ground may be relocated under Rev. Stats. U. S., sec. 2324.
Patent Fraudulently Obtained.Several years after plaintiff had abandoned its application for a patent to a
mining claim and after it had ceased to work it, defendants' grantor relocated a portion of the same ground
and held continuous possession thereof thereafter. This made the ground located defendants' mining claim.
A year after the relocation, plaintiff, without giving notice of its intention so to do, and without defendants'
consent or knowledge and surreptitiously, obtained a patent to the original claim. Held, that this was, under
the circumstances, a putative and unequivocal fraud upon defendants. Held, further, that the patent being
wrongfully obtained so far as defendants are concerned, still, plaintiff does not hold the patent title in trust
for defendants.
By majority of Court, Murphy, C. J., and Belknap, J.
Bigelow, J., contra.
Appeal from District Court, Lyon county; Richard Rising, District Judge:
Action of ejectment to recover possession of a piece of mining ground, 1,100 feet in length
by 400 feet in width, including the Comet ledge, to which the plaintiff alleges title in fee
since March, 1888, and ouster by defendants in March, 1891, and to obtain an injunction
perpetually enjoining the defendants from trespassing upon or removing ore from said mining
ground.
The answer denies the plaintiff's ownership, but admits that the plaintiff obtained a patent
for the ground from the United States on March 29, 1888, and thereby acquired the legal title
to the same, but sets up the following facts as avoiding the effects of this admission:
That in 1876 the plaintiff's grantors applied for a patent for the Comet mining claim,
covering the ground in dispute, alleging it to have been located in 1872. That in 1878 the
plaintiff abandoned its application for a patent, abandoned the claim, ceased to possess or
occupy the same, and from that time up to 1888 failed to do the annual work, or any work or
labor thereon, by reason of which abandonment and failure the ground became subject to
relocation. That on January 5, 1887, while the mine was in this condition, the defendants'
grantors entered thereon, and located, in accordance with the laws of the United States, the
Phoenix mining claim, covering a portion of the Comet claim, and defendants and their
grantors have ever since remained in possession thereof, in strict compliance with the mining
laws, and have expended in its development some $6,000.
in its development some $6,000. That on the 13th of April, 1888, they made a strike of ore
therein, and thereupon the plaintiff reorganized and resumed the prosecution of its said
application for patent, and without the knowledge of the defendants or their grantors, and
without posting or publishing any other or further notice of application for patent, procured
the register and receiver to sell said Comet mining claim to plaintiff, and to issue a certificate
of the purchase thereof; and, in order to induce said register and receiver to accept payment
and issue said certificate of purchase, and for the purpose of inducing the government of the
United States to sell and patent said mining claim to plaintiff, procured and caused to be
presented to and filed in the office of said register and receiver of the United States land
office, false and fraudulent affidavits and testimony, showing, and tending to show, that the
annual labor and improvements had been made by plaintiff upon the said Comet mining
claim and location between the date of location, to wit, 1872, and the date of such proof and
certificate of purchase; said plaintiff well knowing that said affidavits and proofs were false
and fraudulent.
The answer also set up the statute of limitations founded upon an adverse possession of
more than two years.
Upon motion, the court below granted judgment for the plaintiff upon the pleadings,
holding that the answer failed to state facts constituting any defense to the action.
Case argued orally and upon briefs.
R. M. Clarke, and E. D. Knight, for Appellants:
Respondent's action is barred by the statute of limitations. (Gen. Stats. 3632; 420 Mg. Co.
v. Bullion Mg. Co., 9 Nev. 240-249; Gottschall v. Masling, 2 Nev. 189; 3 Sawyer, 634.)
Appellants, having been in possession under claim of title and adversely to respondents for
two years and more, have title by prescription and the defense of prescription is well pleaded.
(420 Mg. Co. v. Bullion Mg. Co., 9 Nev. 249; 3 Sawyer, 634; Gen. Stats., secs. 3635, 3638.)
The respondent is estopped to maintain this action against the appellants because of its acts
suffering and encouraging them to locate the property and expend money and labor in
discovering and developing the ledge. The defense of estoppel is well pleaded.
pel is well pleaded. (Hermann on Estoppel, p. 1062, et seq. and citations, sec. 1063; Walker v.
Flint, 3 McCreary, 507; Smelting Co. v. Green, 13 Fed. 208, 211, 212.)
The respondent acquired its title in fraud, and the land department had no jurisdiction and
exceeded its power in granting the ledge of appellants in contention to the respondent.
(Cooper v. Roberts, St. Louis S. & R. Co. v. Kemp, 104 U. S. 636; U. S. v. Chapman, 5 Saw.
528; Stoddard v. Chambers, 2 How. 285; Morton v. Nebraska, 21 Wall. 660; Sherman v.
Bruick, 93 U. S. 216; Patterson v. Tatum, 3 Saw. 173; Patterson v. Winn, 11 Wheat. 380.)
Appellants claimed the land in contention as locators thereof, in pursuance of the laws of
the United States, and are thus connected with the title of the United States, and, as such, can
question the validity of respondent's patent for fraud or mistake or want of jurisdiction in the
land department. (Am. & Eng. Ency. of Law, pp. 345, 346, citations and notes; Craig v.
Leitensdorfer, 123 U. S. 209-212; Rose v. Richmond Co., 17 Nev. 25, 60, 64; 75 Cal. 194; 50
Cal. 64; 96 U. S. 535; 82 Cal. 104; 98 U. S. 64, 65, 66; 83 Cal. 101, 539; 104 U. S. 636; 56
Cal. 277; 87 Cal. 371; 4 Saw 536; 85 Cal. 448; State v. Bachelder, 80 Am. Dec. 410; Lewis v.
Lewis, 43 Am. Dec. 540; Lamont v. Stimson, 62 Am. Dec. 696; Shepley, et al., v. Cowan, et
al., 91 U. S. 300; Moore v. Robbins, 96 U. S. 530; Johnson v. Towsley, 80 U. S. 72.)
The patent of respondent is void as to any mineral ground included in it, which is in excess
of the quantity the law authorizes the land department to grant. (Davis v. Weibold, II.
Supreme Court Rep. 635, 636.)
The patent carries such side or incidental veins as have their tops inside of the surface line,
that is, within the lawful distance from the center of the principal road. (Laws of the U. S.,
sec. 2320, Wade, p. 14.)
A mineral location in excess of the law is void as to such excess. (Thompson v. Spray, 72
Cal. 533; 114 U. S., 576.)
The act of congress, which grants the right of the mineral lands, permits the miners of the
district to limit the width of mining claims to less than three hundred feet on each side of the
center of the vein. (Revised Stats. U. S., sec. 2320; Wade, p. 14, 194; Golden Fleece v.
Cable, 12 Nev. 312; Gleason v. Martin White Co., 13 Nev. 442.) The rules and customs of
the miners have the force of statute laws and are binding upon the land department, and
a grant of mineral land in excess of the amount allowed by the local rules and customs is
void.
The rules and customs of the miners have the force of statute laws and are binding upon
the land department, and a grant of mineral land in excess of the amount allowed by the local
rules and customs is void. The land department has no authority to grant more land than the
law authorizes. The local laws of Devil's Gate mining district, in force when respondent's
location was made, and when respondent's patent was issued, limit the width of the locations
to two hundred feet on each side of the center of the lode. Respondent's patent, therefore, is
void as to any ground included which is in excess of two hundred feet on either side of the
lode.
W. E. F. Deal, for Respondent:
The act of congress under which the patent was issued was approved May 12, 1872.
Section 4 of the statute defining the time of commencing civil actions is applicable solely to
mining claims held by possession merely, and has no reference to mining claims which are
held by title in fee simple. The concluding proviso shows that whatever is referred to in this
section are those claims acquired by location or occupation. The section itself was adopted on
March 5, 1867, more than five years prior to the time when the act was passed under which
respondent acquired its title in fee simple by patents, and that section could only apply to such
titles as could be acquired at the time when the act itself was passed. The act of congress of
1866 will not help the appellants in this matter, as it appears upon the face of the complaint
that the patent was issued in 1888, and that it was issued for a piece of land the exterior
boundaries of which are described by metes and bounds, together with the ledge applied for
and all other ledges, the apices of which are within the exterior boundary lines of said claim,
and such patent could have been issued only under the act of 1872.
The case of the 420 Mining Company, cited by counsel, has no bearing upon this case, for
the reason that in that case the discussion of the statute of limitations of mining claims of
Nevada was with reference to a contest between adverse claimants to the same mining
ground. * * *
Under the act of 1872 a patent for mineral land is issued just exactly as a patent is issued
for other land, with the addition that the patentee has the right to follow all ledges the
apices of which are within the exterior boundary lines of his patented claim on their dip
downward, although in their course downward such ledges should pass outside of the
side lines of the patented claim.
just exactly as a patent is issued for other land, with the addition that the patentee has the
right to follow all ledges the apices of which are within the exterior boundary lines of his
patented claim on their dip downward, although in their course downward such ledges should
pass outside of the side lines of the patented claim. (Gleason v. Martin White Mg. Co., 13
Nev. 442.)
According to the admissions of the answer, respondent acquired its title in fee simple to the
premises described in the complaint on the 29th day of March, 1888, and this action was
commenced on the 2d day of March, 1892. Four years had not elapsed at the time of the
commencement of the action. The only sections of the statute of limitations of the State of
Nevada that could run against respondent's title are sections 5 to 15 inclusive, as the
respondent is the owner of the real property within the meaning of those sections by title in
fee simple. The United States was the absolute and unqualified proprietor of the mineral land
described in the complaint until it conveyed it to the respondent, and the statute does not run
against the United States, but the title is freed of all prior claims or prior possessions by the
granting of the patent. (Van Sickle v. Haines, 7 Nev. 260; Patterson v. Tatum, 3 Saw. 171;
Union M. & M. Co. v. Ferris, 2 Saw. 179; 92 U. S. 343; 4 How. 169; 16 How. 48; 8 Wall.
650; 9 Wall. 187; 13 Wall. 92; 115 U. S. 408.) * * *
The defendant in this action knew the title to the premises was in the United States subject
to purchase, and therefore they cannot invoke any of the principles of the law of estoppel.
(Steele v. Smelting Co., 106 U. S. 456; Biddleboggs v. Merced Mining Co., 14 Cal. 367.)
It is undoubtedly true that a party will, in many instances, be concluded by his
declarations and conduct which have influenced the conduct of another to his injury. The
party is said in such cases to be estopped from denying the truth of his admissions. But to the
application of this principle with respect to the title of property it must appear: * * * Third,
that the other party was not only destitute of all knowledge of the state of the title, but of the
means of acquiring such knowledge; and, fourth, that he relied directly upon such admission
and will be injured by allowing its truth to be disproved. (Biddleboggs v. Merced M. Co.,
supra.)
The defendants knew that the land in question was public mineral land of the United States
to which they had no title. Independent of the admissions in the answer they must be held to
know the law. Their entry and acts were according to the answer prior to the sale of the land
by the United States to plaintiff, and the United States could not be estopped to sell the land
by reason of any knowledge, acquiescence or consent of plaintiff in 1887 in the location or
possession or working of the Phoenix location by defendants, the purchase being March 29,
1888, and subsequent to the matters alleged by way of estoppel. (Biddleboggs v. Merced M.
Co., supra; cited with approval Henshaw v. Bissell, 18 Wall. 271; Martin v. Zellebach, 35
Cal. 315; Fledge v. Garvey, 47 Cal. 377; Wueth v. Smith, 4 Saw. 25.) * * *
There being no issue upon any material allegation of the complaint and no affirmative
defense set up in the answer, it would be an idle proceeding to require a trial, there being
nothing to try. * * *
The complaint alleges, and the amended answer admits, that ever since the 29th day of
March, 1888, plaintiff has been the owner in fee simple of the mining claim and premises
described. The amended answer not only admits this, but that since the property in dispute
has been patented the statutory period is five years, and by no possibility could that period be
lapsed between March, 1888, and March, 1892.
The court below decided on demurrer that the five years' statute applied to patented mining
claims, and notwithstanding this decision the same allegations as to this and as to the three
years' statute of limitations are put in the amended answer. This decision is in accordance
with the decision of the district court in the case of Lady Bryan Company v. Sheppard, and
the decision in 420 Mining Company v. Bullion M. Co., 3 Saw. 634, as to the statute of
limitations was as between two adverse claimants each claiming by possession alone.
The cases cited by defendant's counsel from 91 U. S. 300; 96 U. S. 530; 80 U. S. 73; 123
U. S. 209, and other cases, only support the position I have taken.
The defenses set up in the amended answer are simply collateral attacks in an action at
law upon a patent. This is never permitted. The only remedy appellants have is by an action in
equity in the name of the United States against the patentee."
the patentee. (129 U. S. 579; 128 U. S. 673; 121 U. S. 323; 141 U. S. 341; 14 Cal. 365; 14
Otto, 636; 21 Myers, Fed. Dec. p. 517, sec. 1805, et seq.; Steele v. Smelting Works, 106 U. S.
452.)
The exceptions to the rule that a patent cannot be collaterally attacked are:
1. Where the patent is absolutely void upon its face.
2. Where the patent is prohibited by statutes.
3. Where it is issued without authority.
4. Where the United States has no title to the land.
5. Where the attack is made by a party who connects himself with the title.
The allegations of the amended answer show that the defendants are strangers to the title;
that they made no adverse claim to the proceedings in the land office to obtain the patent; that
the officers of the land department had full jurisdiction of all matters decided by them, and
that no fraud or collusion is alleged on the part of those officers.
The averments do not connect defendants in any way with the title; they do not claim or
aver that they were entitled to the patent, or that the plaintiff holds the patent as trustee for
them, or that the patent is void upon its face, or that it was prohibited by statute, or that it was
issued without authority, or that the United States had no title.
The defendants do not bring themselves within any of the exceptions to the rule that a
patent cannot be collaterally attacked. There is not a single allegation of the amended answer
upon which any evidence could or would be received in any court.
Actions of officers of United States land office, judicial and not open to collateral attack.
(Smelting Co. v. Kemp, 14 Otto, 640.)
No improper conduct is charged against the officers of the land office. (Steele v. Smelting
Co., 106 U. S. 453.)
The decisions of the land office cannot be collaterally attacked. (Dahl v. Raunheim, 132 U.
S. 261.)
The judgment in this action gives the respondent no more than was granted it by the patent
and no more than the act of congress authorized. (Rev. Stats., sec. 2322, et seq.)
See upon rights of patentees: Volume 19 of the Am. and Eng. Ency. of Law, VII. Patents,
page 347, to IX. School Lands, p. 360; also, IV. Public Lands, p. 343, same volume.
Bigelow, J., after stating the facts:
The complaint in this action has a double aspect. It states, first, a cause of action in
ejectment; and, secondly, an equitable cause of action to obtain an injunction to restrain
certain trespasses threatened by the defendants. To these the answer attempts to plead, among
other things, an equitable defense. Of the right of the defendants to set up an equitable
defense to an action for the possession of lands there can be no question, and as to this
defense the case is to be tried in the same manner and upon the same principles that would
apply to an original bill in equity, brought for the same purpose. (Pom. Rem. & Rem. Rights,
sec. 87, et seq.; Bohall v. Dilla, 114 U. S. 47, 5 Sup. Ct. 782; Quinby v. Conlan, 104 U. S.
420; Estrada v. Murphy, 19 Cal. 248, 273; Hollinshead v. Simms, 51 Cal. 158; Treadway v.
Wilder, 8 Nev. 93; Dutertree v. Shallenberger, 21 Nev. 507, 34 Pac. 449; Suessenbach v.
Bank, 5 Dak. 477, 41 N. W. 662.)
2. As judgment was rendered against the defendants upon the pleadings, the question is
whether the answer states any defense, and I pass to a consideration of whether, in the light of
equitable principles, it presents facts which entitle the defendants to defeat the action,
founded, as it is, upon the legal title.
It will be noticed that when the plaintiff ceased the prosecution of its application for a
patent, and abandoned the mine, it had not paid for the ground, nor obtained a final certificate
of purchase from the receiver of the land office. This failure prevents it from having obtained
such vested rights as relieved it from the necessity of doing the annual assessment work, and
distinguishes the case from Benson Mining Co. v. Alta Mining Co., 145 U. S. 428, 12 Sup.
Ct. 877, and Deno v. Griffin, 20 Nev. 249, 20 Pac. 308, where it was held that by reason of
completed patent applications and payment the requirement of doing the work no longer
existed. Section 2324, Rev. Stat. U. S., provides that, until a patent issues, not less than $100
worth of labor shall be performed or improvements made upon a claim during each year, and
upon failure to do so the claim shall be open to relocation in the same manner as though no
location had ever been made. The courts have held a patent certificate issued upon final
payment to be equivalent to a patent, but until then abandonment, or a failure to do the
annual work, subjects the claim to relocation.
until then abandonment, or a failure to do the annual work, subjects the claim to relocation.
(Sickels, Min. Dec. 371, 384; Copp, Min. Lands, 255, 296; Ferguson v. Mining Co., 18
Copp, Landowner, 242; Mining Co. v. Gage, 17 Copp, Landowner, 39.)
Then, by reason of this abandonment and forfeiture, the Comet became subject to
relocation, and while in this condition the defendants and their grantors relocated a portion of
it under the name of the Phoenix. The answer shows that this relocation was made strictly
in accordance with the mining laws, and there is no contention that it was not, in all respects,
sufficient, nor that the defendants have not since fully complied with the laws in keeping up
their title. Under these circumstances, up to the time the patent was issued to the plaintiff,
they were vested with both the legal and equitable title to the ground as fully as it is possible
to obtain such title by a location of a mine upon the mineral lands of the United States, upon
which no patent has been obtained. As will be shown hereafter, in another connection, this
vested in them, even as against the United States, the full beneficial ownership of the claim,
which could only be lost by a failure upon their part to comply with the mining laws. Suppose
that prior to the issuance of this patent to the plaintiff it had brought this action, can there be
any question that it would have been decided in favor of the defendants? There can be but one
answer to this, and this shows that it is only by reason of the bare legal title, obtained by this
patent, that it now has any standing, even in a court of law.
Then the naked fact is that, while the defendants were the full beneficial owners of this
property in accordance with the laws of the United States, without notice to them, and
without their knowledge, the plaintiff has, by fraud and trickery practiced in the land office,
obtained a patent therefor; and the question is whether this fraud has been so well perpetrated,
and is so well intrenched in the law, that even a court of equity can afford the defendants no
remedy. I am happy to say that in my judgment such is not the case, and, further, that any
system of laws that would not afford a remedy under such circumstances would be unworthy
a civilized people.
The publication and posting of the notices, which the mining law requires to be made
upon applications for patent, had been made long prior to the time that the defendants
located the Phoenix claim.
mining law requires to be made upon applications for patent, had been made long prior to the
time that the defendants located the Phoenix claim. An adverse claim must be filed during the
sixty days that these notices are given, and it was consequently impossible for them to file an
adverse claim to the application. Their rights date from ten years subsequent to this. Had their
ownership dated from any time prior to the publication of the notices, they would, of course,
have been required to advertise the application in the land office, or they would have lost all
right in the ground. But the law does not require impossibilities, and the fact that they did not
and could not do so cuts no figure in the case. Subsequent to this, the plaintiff lost all
ownership in the ground, and the defendants obtained their title; and it is upon this situation
that the case must be decided.
3. Having established, at least to my own satisfaction, that previous to the patent the mine
was the property of the defendants, I proceed to consider whether by reason of that patent
they have lost all right therein, which can be protected by a court of equity. It is doubtful,
although in my view quite immaterial, whether the plaintiff was guilty of any fraud upon the
United States in the proceedings in the land office such as would justify the annulling and
setting aside of the patent, in that the fact that they had done the annual labor is not one of the
conditions of obtaining a patent; but this does not matter, and I shall not pause to consider it.
Obtaining a patent to the defendant's mine was, under the circumstances, a positive and
unequivocal fraud upon them; and, even if it were not, the answer shows such a state of facts
as make the plaintiff the holder of the patent title in trust for the owners of the mine. These
are that without the publication or posting of any notice of its intention so to do, and without
the defendant's consent or knowledge, the plaintiff has secretly and surreptitiously obtained a
patent to their property. This is entirely sufficient to require a court of equity to hold it a
trustee of that title for the defendants.
This has often been decided by the courts, and the principle upon which it is done is quite
clearly stated by Judge Sawyer in the case of Lakin v. Mining Co., 11 Saw. 231, 238, 25 Fed.
337, as follows: Where one party wrongfully obtains the legal title to land, which, in equity
and good conscience, belongs to another, whether he acts in good faith or otherwise, he
will be charged in equity as a constructive trustee of the equitable owner.
belongs to another, whether he acts in good faith or otherwise, he will be charged in equity as
a constructive trustee of the equitable owner. That, I think, is a doctrine established by the
following cases: Wilson v. Castro, 31 Cal. 420; Salmon v. Symonds, 30 Cal. 301; Bludworth
v. Lake, 33 Cal. 256; Hardy v. Harbin, 4 Sawy. 549the latter being a decision of Mr.
Justice Field on the circuit.
This case, while no more in point upon principle than many other decisions, is in its facts
very similar to the case in hand. The defendant there had secretly and clandestinely, but
without positive fraud, and without any fiduciary relation existing between the parties, by
means of an old and dormant application, obtained a patent to the plaintiff's mine. Upon the
ground stated in the quotation it was decreed that the defendant held this title in trust for the
plaintiff, and it was compelled to convey it to him. Two cases more alike in their essential
facts than that and this could scarcely be found. Of the two this is the stronger, as here actual
fraud in the land office intervened.
That case was approved and the same principle affirmed in Hunt v. Patchin, 13 Sawy. 304,
where the patentee of a mine was again decreed to hold the patent title in trust for the
equitable owner of the property.
In Wilson v. Castro, 31 Cal. 420, it was held that where one who had a grant of land from
the Mexican government died intestate, and then a person, mistakenly believing himself the
heir, sold a part of the land to others, who afterwards, under the belief that they had acquired
a good title, and without any fraud, obtained a confirmation of the grant and a patent from the
United States, the patent did not deprive the true heirs at law of their interest in the property,
but the patentees held the title in trust for them; that it did not matter whether the patentees
acted in good faith and did not know that they occupied to the heirs at law the relation of
trustees in equity, for the trust arose as a matter of law, and was a constructive trust. It was
held, further, that the fact that the true heirs had notice of the proceedings taken by the
patentees to obtain a confirmation of the grant and patent for the same, but did not intervene
to protect their rights, did not destroy the trust.
In Hardy v. Harbin, 4 Sawy. 536, Justice Field said (p.
540): The bill is filed for the purpose of having a trust declared and enforced, the
complainant relying upon the established doctrine that wherever property is acquired by
fraud, or under such circumstances as to render it inequitable for the holder of the legal title to
retain it, a court of equity will convert him into a trustee of the party actually entitled to its
beneficial enjoyment. The title involved was a United States patent, and it was again decreed
to be held in trust for the true owner.
In Sanford v. Sanford, 13 Pac. Rep. 602, decided by the Supreme Court of Oregon, and
subsequently affirmed by the Supreme Court of the United States (139 U. S. 642), one had by
a false affidavit made in the land office obtained a patent to a piece of land upon which
another had settled, and which equitably belonged to the latter; it was again decided that the
patentee held the legal title in trust for the equitable owner.
In Rector v. Gibbons, III. U. S. 276, 291, The Supreme Court of the United States,
speaking of the case of Johnson v. Towsley, 13 Wal. 72, said:
The decision aptly expresses the settled doctrine of this court with reference to the action
of officers of the land department, that when the legal title has passed from the United States
to one party, when in equity and in good conscience, and by the laws of congress it ought to
go to another, a court of equity will convert the holder into a trustee of the true owner and
compel him to convey the legal title.
Nothing to the contrary was decided or even suggested in Hamilton v. South Nevada G.
and S. Mining Co., 13 Sawy. 113, and the same is true of Smelting Company v. Kemp, 104 U.
S. 636, and Steel v. Smelting Company, 106 Id. 447. The two latter were both actions of law
in the United States courts, where, as every lawyer knows, no equitable defense can be
interposed, but must be set up by a separate action in equity. The attempt in those cases was
to assail a patent collaterally, which, upon well-settled principles, it was held could not be
done. The distinction between those cases and such a proceeding in equity as we are now
dealing with is over and again pointed out in the opinions therein rendered by Mr. Justice
Field. In Silver v. Ladd, 7 Wall. 219, 228, speaking of the equitable action, Mr. Justice Miller
said: "The relief given in this class of cases does not proceed upon the ground of annulling
or setting aside the patent wrongfully issued.
The relief given in this class of cases does not proceed upon the ground of annulling or
setting aside the patent wrongfully issued. That would leave the title in the United States, and
the plaintiff might be as far from obtaining justice as before. And it may be well doubted
whether the patent can be set aside without the United States being a party to the suit. The
relief granted is founded upon the theory that the title which has passed from the United
States to the defendant, inured in equity to the benefit of plaintiff, and a court of chancery
gives effect to this equity, according to its forms, in several ways.
The language used in Hardy v. Harbin, 4 Sawy. 536, 541, is also very much in point here.
The court said: And it is upon the confirmation and patent that the defendants rely to resist
the claim of the complainants. Their position is that the confirmation inured to the benefit of
the confirmee, and that the patent is conclusive evidence of the validity of their title; that it is
the record of the government upon it, which cannot be questioned, except in direct
proceedings instituted in the name of the government or by its authority. It is undoubtedly
true that the confirmation inured to the benefit of the confirmees, so far as the legal title to the
premises was concerned. It established the legal title in them, but it determined nothing as to
the equitable relations between them and third parties.
This distinction is again carefully pointed out in Sanford v. Sanford, 139 U. S. 642, 646,
and in Lee v. Johnson, 116 Id. 48.
In very many of the cases no fiduciary relation existed between the parties, and hence the
suggestion that this is the only ground upon which a patentee can be held to be a trustee is
shown to be without foundation. The true ground in such cases as this is fraud, or that in
equity and good conscience the land belongs to another.
4. It is also argued that the defendants are not in such privity with the government title that
they can contest the patent and assert their rights. I find, however, the contrary to be the law.
As I have shown, the defendants were, at the time the patent issued, the owners of a mining
location upon the premises in dispute, made and held in all respects in accordance with the
laws. As to the effect of this location, the court, in Noyes v. Mantle, 127 U. S. 34S, 353, S
Sup. Ct. 1132, used this language: "As said in Belk v. Meagher, 104 U. S. 279, 2S3: 'A
mining claim perfected under the law is property in the highest sense of the term, which
may be bought, sold, and conveyed, and will pass by descent.' It is not, therefore, subject
to the disposal of the government."
the court, in Noyes v. Mantle, 127 U. S. 348, 353, 8 Sup. Ct. 1132, used this language: As
said in Belk v. Meagher, 104 U. S. 279, 283: A mining claim perfected under the law is
property in the highest sense of the term, which may be bought, sold, and conveyed, and will
pass by descent.' It is not, therefore, subject to the disposal of the government. And again, in
Gwillim v. Donnellan, 115 U. S. 45, 49, 5 Sup. Ct. 1110: A valid and subsisting location of
mineral lands, made and kept up in accordance with the provisions of the statutes of the
United States, has the effect of a grant by the United States of the right of present and
exclusive possession of the lands located. * * * To entitle the plaintiff to recover in this suit,
therefore, it was incumbent on him to show that he was the owner of a valid and subsisting
location of the land in dispute, superior in right to that of the defendants. His location must be
one which entitles him to possession against the United States, as well as against another
claimant. If it is not valid as against the one, it is not as against the other. The location is the
plaintiff's title. In Seymour v. Fisher, 16 Colo. 188, 27 Pac. 240, the court said: The locator
thereof is entitled to the present possession and use as against all the world, including even
the United States, which, prior to patent, retains the legal ownership. Such a title as this is
amply sufficient to entitle the owner to demand that the patentee shall hold the title in trust
for him. (Sparks v. Pierce, 115 U. S. 408, 6 Sup. Ct. 102; Bohall v. Dilla, 114 U. S. 47, 5
Sup. Ct. 782.) Until the patent issued, the government held the title in trust for the locators
or their vendees. * * * The entry at the United States land office, and the patent issued in
pursuance thereof, was burdened with this trust, and the same may be enforced against any
person claiming under the patent who can be charged with it. (Suessenbach v. Bank, 5 Dak.
477, 499, 41 N. W. 662.) The rule in such cases is well stated in Chism v. Price, 54 Ark. 251,
258, 15 S. W. 883, 1031, as follows: A stranger or occupant without right cannot assail a
patent for fraud practiced against the state; but an occupant with a right to purchase may
attack a patent issued in fraud of his rights, and upon equitable terms may demand a
conveyance from the patentee. Hermocilla v. Hubbell, 89 Cal. 5, 10, 26 Pac. 611, is directly
in point. It was there held: "The defendants were in possession of their claims under
locations, which were made in accordance with the law and the local rules and customs.
The defendants were in possession of their claims under locations, which were made in
accordance with the law and the local rules and customs. They were, therefore, in privity with
the United States, and had a clear right to contest the patent and assert their rights.
5. It is said that the defendants' remedy is to apply to the attorney-general of the United
States to bring a bill in equity to set aside the patent. I shall not consider this matter. Aside
from the fact that it would be puerile to hold that the defendants' vested rights can be made
dependent upon the discretionary action of an executive officer, there are several answers to
it, some of which are suggested in U. S. v. San Jacinto Tin Co., 125 U. S. 273, 8 Sup. Ct. 850.
But as I have shown that in this proceeding they are entitled to the protection of the law, it is
unnecessary to determine whether any other course is open to them. The case of Railroad Co.
v. Cannon, 4 C. C. A. 303, 54 Fed. 253, is not in point. As there stated by Hawley, J. (page
255, 54 Fed., and page 306, 4 C. C. A.), that was not a case where equitable relief is sought
against a party holding the legal title. This is. Again, the court there held that the railroad
company's rights did not attach to the premises, if ever, until 1882, while the patent had been
issued to the defendants in 1879. A court would not be likely to hold that a patent was taken
in trust for a party that obtained no right in the land until two years after it was granted. But
here the defendants' rights date from 1887, and the patent was not issued to the plaintiff for
more than a year thereafter.
6. The question as to the statute of limitation turns upon whether the legislature intended
to include patented mines within the provisions of Gen. Stats., sec. 3632. As originally
adopted, the section reads as follows (Stats. 1861, p. 27): No action for the recovery of
mining claims, or for the recovery of the possession thereof, shall be maintained unless it
appear that the plaintiff, or his assigns, was seized or possessed of such mining claim in
question within two years before the commencement of such action. In 1867 it was amended
to its present form, and now reads thus: No action for the recovery of mining claims, or for
the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff
or those through or from whom he claims, were seized or possessed of such mining claim,
or were the owners thereof according to the laws and customs of the district embracing
the same, within two years before the commencement of such action.
claims, were seized or possessed of such mining claim, or were the owners thereof according
to the laws and customs of the district embracing the same, within two years before the
commencement of such action. Occupation and adverse possession of a mining claim shall
consist in holding and working the same, in the usual and customary mode of holding and
working similar claims in the vicinity thereof. All the provisions of this act, which apply to
other real estate, so far as applicable, shall be deemed to include and apply to mining claims;
provided, that in such application two years' shall be held to be the period intended whenever
the term five years' is used; and provided further, that when the terms legal title' or title' are
used, they shall be held to include title acquired by location or occupation, according to the
usages, laws and customs of the district embracing the claim.
The argument that the section was not intended to include patented claims is based upon
the use of the term mining claims, which, it is said, means simply a mine held under the
laws and customs of miners; and upon the fact that when the section was first enacted no
greater title than that could be obtained. It will be noticed, however, that when the
amendment was adopted the laws of the United States did provide for obtaining a patent to a
mine, and it must be supposed that the amendment was adopted with that state of facts in
view. As to the meaning of the term mining claim, the question is, of course, not what the
words mean in other connections, but what they are intended to mean as used here. Had the
legislature used the word mines in connection with, or instead of, mining claims, there
would seem to be no point to the argument; and whatever there is now is considerably
weakened by the fact that those terms were then, as they still are, often used to mean the same
thing. (State v. Real Del Monte Gold & Silver Min. Co., 1 Nev. 523.)
As the section now stands it seems to provide for three kinds of ownership of a mining claim:
(1) Where the claimant was seized; (2) where he was possessed; (3) where it had been held in
accordance with mining laws and customs. We are not to suppose that any of these terms
were needlessly used, or used without meaning; and, if not, the word "seized" means
something different from simple possession of a claim, or of a holding of it in accordance
with the laws and customs of miners.
word seized means something different from simple possession of a claim, or of a holding
of it in accordance with the laws and customs of miners. If so, it must mean, as it would
naturally import, an ownership in fee, for this is the only other kind of ownership known to
the law. The phrase, according to the laws and customs of the district, is not found in the
original section, and must have been added because of doubts as to whether a claim so held
was within the words seized or possessed. Apparently the main purpose of the amendment
was to make certain the application of the section to such claims, and that could only have
been demanded by a belief that, as originally adopted, it did not apply to them, and applied
only to mines held in fee, or by simple possession.
Again, the definition of what shall constitute adverse possession of mining property
mentions nothing but mining claims; and, if those words were not intended to cover patented
claims as well, then there is no provision as to what shall constitute an adverse holding of a
patented minea hardly probably oversight. The same words, seized or possessed, are used
in the next section with reference to other real property, but no suggestion has ever been made
that they do not apply to lands held in fee, as well as otherwise, although when adopted there
was, perhaps, not a piece of patented land in the whole territory. The main reason, too, for
fixing a shorter period of limitation for mines than for other property, applies as well to
patented claims as to those held by other titles. Other classes of real property are
comparatively stable in value, and can be used and made productive at a comparatively small
expense; but not so with mines. They are often only made to pay by the expenditure of vast
sums of money, and by this are sometimes changed from worthlessness to a value of many
thousands of dollars. It is only justice that the holders of claims against this class of property
should be required to assert them at an early day, to the end that they may not, in recovering
their own, also reap too large a benefit from the enterprise of others. (Oil Co. v. Marbury, 91
U. S. 587, 592.)
Altogether, it seems reasonably clear that by the use of the words mentioned the legislature
intended to include every kind of title by which mining property can be held.
Judgment reversed.
Belknap, J., concurring:
Plaintiff made application to the government of the United States in the year 1876 for a
mineral patent to the Comet mining claim. The matter was suffered to remain without any
further proceedings until the month of March, 1888. In the meantime, and during the month
of January, 1887, defendants relocated a portion of the ground under the name of the
Phoenix Claim. Thereafter, and without any further notice, save such as may have been
contained in the original notice of its application, a patent was issued to the plaintiff in the
month of March, 1888.
Defendants, in their answer, allege that the patent was procured by false swearing and
perjury on the part of plaintiff's witnesses in making the final proof of labor done and
improvements made before the register and receiver. This fact, coupled with a strict
compliance with the mining laws on their part, and an abandonment by plaintiff, entitles the
defendants, it is claimed, to a decree in their favor as equitable owners of so much of the
mining claim as conflicts with their claim.
Congress has provided the manner in which the government title to the mineral lands may
be acquired. Section 2318, Rev. Stats., declares that in all cases, lands valuable for minerals
shall be reserved from sale, except as otherwise expressly directed by law. Section 2325:
Any person who has complied with all the requirements of the law may file in the proper
land office an application for patent under oath showing such compliance, together with other
matters required by the statute, but unnecessary to be mentioned here. Upon the filing of the
application and such other papers as the statute directs, the register of the land office is
required to publish a notice that the application has been made, for the period of sixty days, in
some newspaper to be by him designated, as published nearest to the claim, and he must also
post a similar notice for the same time in his own office. If no adverse claim shall have been
filed with the register and receiver of the proper land office at the expiration of the sixty days
of publication it shall be assumed that the applicant is entitled to a patent upon the payment to
the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no
objection from third persons to the issuance of a patent shall be heard, except it be shown
that the applicant has failed to comply with the terms of this chapter."
to the issuance of a patent shall be heard, except it be shown that the applicant has failed to
comply with the terms of this chapter. Section 2326: It shall be the duty of the adverse
claimant, within the thirty days after filing his claim, to commence proceedings in a court of
competent jurisdiction, to determine the question of the right of possession, and prosecute the
same with reasonable diligence to final judgment, and a failure so to do shall be a waiver of
his adverse claim. After such judgment shall have been rendered, the party entitled to the
possession of the claim, or any portion thereof, may, without giving further notice, file a
certified copy of the judgment roll with the register of the land office, together with the
certificate of the surveyor-general that the requisite amount of labor has been expended or
improvements made thereon, and the description required in other cases, and shall pay to the
receiver five dollars per acre for his claim, together with the proper fees, whereupon the
whole proceedings and the judgment roll shall be certified by the register to the commissioner
of the general land office, and a patent shall issue thereon for the claim, or such portion
thereof as the applicant shall appear, from the decision of the court, to rightfully possess. If it
appears, from the decision of the court, that several parties are entitled to separate and
different portions of the claim, each party may pay for his portion of the claim, with the
proper fees, and file the certificate and description by the surveyor-general, whereupon the
register shall certify the proceedings and judgment roll to the commissioner of the general
land office, as in the preceding case, and patents shall issue to the several parties according to
their respective rights.
No title from the government to the mineral lands can be acquired in any other way than as
prescribed by this statute. The parties claim by separate rights. No fiduciary relation exists
between them, and no protest was made against the issuance of the plaintiff's patent. If the
plaintiff has acquired the title contrary to the terms of the statute, the facts can be shown, and
the patent annulled in a proper proceeding. Relief in such cases is expressly provided in
section 2325 of the foregoing act. But until the patent has been got out of the way, and
proceedings instituted to determine the validity of the title of the defendants, no relief upon
this part of the case can be afforded them.
of the title of the defendants, no relief upon this part of the case can be afforded them.
It does not follow that the defendants are entitled to the patent, conceding all of the
allegations in their answer to be true. According to it, the plaintiff has failed to comply with
the terms of the statute in the matter of expenditures required. (Rev. Stats., sec. 2324), and the
patent for this cause may be annulled. But the defendants are not in a position to acquire the
government title. They are neither applicants for patent nor protestants under the statute. They
have not complied with the requirements of the foregoing statute in that regard, and submitted
their claim to adjudication, and in a court of competent jurisdiction, and had their rights
ascertained and determined. The statute is not restrictive in its operation, as the defendants
appear to have assumed, but all claimants to the ground in question are embraced in its
provisions, and are required to present their claims for adjudication in the local courts; and a
failure to do so will be a waiver of the adverse claim. It follows, upon the facts presented, that
the patent cannot be attacked in this proceeding.
Upon the question of the statutes of limitations, I am of opinion that two years is the time
fixed for such actions.
Murphy, C. J., dissenting:
This is an action of ejectment brought by the South End Mining Company, in the district
court in and for Lyon county, for a mining claim situated in the Devil's Gate and Chinatown
mining district, Lyon county, Nevada, being 400 feet in width and 1,100 feet in length.
The complaint is in the ordinary form in ejectment, coupled with a prayer for an injunction
and $500 damages, and alleges that on the ___day of March, 1888, the plaintiff was and is
now the owner in fee simple of the ground in controversy.
To this complaint the defendants answered, setting up general denials, and pleading
affirmative matter.
They deny that on the 29th day of March, 1888, the plaintiff was or now is the owner, in
fee simple or otherwise, or was in the possession, or entitled to the possession, of the mining
claim or ledge described in the complaint.
They admit that the plaintiff purchased the mining ground described in the complaint from
the United States of America on the 29th day of March, 1888, and acquired the legal title on
that day, but allege that such title was illegal, fraudulent, and void.
They assign the following acts of plaintiff, constituting such illegality and fraud:
The defendants, further answering, aver that on the ___ day of ___, 1876, the plaintiff's
grantors applied to the register and receiver of the United States land office at Carson City,
Nev., for a patent for the Comet mining claim and lode, alleged to have been located on the
27th day of August, 1872; * * * said notice claiming 1,500 feet of the quartz lode, being a
relocation of the Dorrence, with all its dips, spurs and variations, together with all dumping
grounds and dumping privileges, and the lawful 200 feet on each side of the ledge. That
afterwards, and on or about the ___ day of ___, 1878, and until on or about the ___ day of
April, 1888, the said plaintiff abandoned the said application for patent and ceased to
prosecute the same, and abandoned said mining claim and location, and ceased to occupy or
possess the same, or to prosecute the business of mining thereon, or to keep up the
monuments marking the boundaries thereof, or to do or perform any work or labor thereon,
and failed and neglected to do or perform the annual labor or make the annual improvements
required by the mining laws of the United States, and wholly failed and neglected to comply
with the conditions of the mining laws of the United States necessary to preserve the said
location, and forfeited the same; and by reason of the premises the said Comet location and
mining ground applied for, as hereinbefore stated, was subject to relocation, and during said
period of time said Comet ledge was relocated, and was claimed, held and occupied under
said relocation, adversely to the plaintiff, for the period of more than five years.
And defendants aver that during said period, and on, to wit, January 5, 1887, said
grantors of the defendants entered and located said Phoenix mining claim, lode and location;
the same being then unoccupied public mineral lands of the United States, and subject to
location. Defendants, further answering, aver, that on or about the 13th day of April, 1SSS,
the said persons relocating the said Comet lode discovered ore thereon, and commenced
extracting the same, and that after such discovery said plaintiff reorganized, and resumed
the prosecution of its application for patent, and without the knowledge of defendants or
their grantors, and without posting or publishing any other or further notice of application
for patent, procured the said register and receiver to sell said Comet mining claim to
plaintiff, and to issue a certificate of purchase thereof; and in order to induce the said
register and receiver to accept payment and issue said certificate of purchase and for the
purpose of inducing the government of the United States to sell and patent said mining
claim to plaintiff, procured, and caused to be presented to and filed in the office of said
register and receiver of the United States land office, false and fraudulent affidavits and
testimony showing and tending to show that the annual labor and improvements had
been made by plaintiff upon the said Comet mining claim and location between the date
of location, to wit, 1S72, and the date of such proof and certificate of purchase; said
plaintiff well knowing that said affidavits and proofs were false and fraudulent, and well
knowing that said plaintiff had abandoned said location, and had failed and neglected to
do the annual labor or make the annual improvements upon the said location for or during
the years from 1S79 to 1SS7, inclusive, and each of them."
1888, the said persons relocating the said Comet lode discovered ore thereon, and
commenced extracting the same, and that after such discovery said plaintiff reorganized, and
resumed the prosecution of its application for patent, and without the knowledge of
defendants or their grantors, and without posting or publishing any other or further notice of
application for patent, procured the said register and receiver to sell said Comet mining claim
to plaintiff, and to issue a certificate of purchase thereof; and in order to induce the said
register and receiver to accept payment and issue said certificate of purchase and for the
purpose of inducing the government of the United States to sell and patent said mining claim
to plaintiff, procured, and caused to be presented to and filed in the office of said register and
receiver of the United States land office, false and fraudulent affidavits and testimony
showing and tending to show that the annual labor and improvements had been made by
plaintiff upon the said Comet mining claim and location between the date of location, to wit,
1872, and the date of such proof and certificate of purchase; said plaintiff well knowing that
said affidavits and proofs were false and fraudulent, and well knowing that said plaintiff had
abandoned said location, and had failed and neglected to do the annual labor or make the
annual improvements upon the said location for or during the years from 1879 to 1887,
inclusive, and each of them.
The defendants aver that the Comet location is a relocation of the Dorrence mine, and is
shown by cuts and excavations on the ground; that the Phoenix ledge located by the grantors
of the defendants is within the surface ground described in the patent to the plaintiff, but deny
that it is the ledge located by the plaintiff's grantors, and is not the ledge applied for by the
plaintiff, and its top or apex is more than 300 feet from the center of the Comet ledge. And
they aver that the Comet ledge, on its horizontal course and on its strike, crosses the east side
line of the plaintiff's location and claim, as described in its patent, at a point 650 feet from the
northerly end of the Phoenix ledge of the defendants.
The defendants plead the statute of limitation and title by prescription, and aver that, they
having expended $6,000 in labor and improvements on the ground, to the knowledge of the
plaintiff, the plaintiff is now estopped to assert his title.
of the plaintiff, the plaintiff is now estopped to assert his title.
The plaintiff demurred to this answer on the ground that the facts therein stated did not
constitute a defense to the action, and asked for judgment on the pleadings, on the ground that
the answer admitted the ownership of the plaintiff to the ground in controversy by its patent,
and that the defendants were not in a position to attack said patent, they not having connected
themselves with the government title.
The district court sustained the motion, and judgment was entered in favor of the plaintiff
without damages, and this appeal is from the judgment.
There is no dispute as to the sufficiency of the location of the Comet ledge in 1872. There
is no controversy as to the proceedings taken to procure the patent, from the time of making
the application up to and including the publication of the notice of such application. But the
appellants contend that by reason of the fact that the respondent allowed such a length of time
to elapse between the expiration of the publication of application for patent and the final
proof and payment for the land, coupled with the fact that the plaintiff failed and neglected to
do the assessment work or make improvements in each year as required by act of congress,
forfeited whatever rights it had to the ground in dispute; and the defendants' grantors having
entered upon the ground in 1887, and relocated the same, they are in a position to attack said
patent, and have the same set aside, as being absolutely void. It is admitted by the answer that
all of the defendants' works, and the top or apex of the Phoenix ledge at the point of
discovery, are within the surface boundaries of the Comet patented ground.
In the year 1866, and as amended in 1872, congress, by statute, conferred upon citizens of
the United States, and those who had declared their intentions to become such, the right to
locate and hold mining claims, so long as they complied with the acts of congress and the
local rules and regulations of the miners in the mining district. These statutes gave to the
locators the exclusive right of possession and enjoyment of all the surface included within the
lines of their locations, and of all veins, lodes and ledges throughout their entire depth, the
top or apex of which lies inside of the surface lines, extended downward vertically,
although such veins, lodes or ledges may so far depart from a perpendicular, in their
course downward, as to extend outside the vertical side lines of such surface location.
their entire depth, the top or apex of which lies inside of the surface lines, extended
downward vertically, although such veins, lodes or ledges may so far depart from a
perpendicular, in their course downward, as to extend outside the vertical side lines of such
surface location. (Rev. Stats. U. S., sec. 2322.)
This possessory right often is of great value, and may be sold, transferred or mortgaged.
The locator has the right to explore and extract the minerals therefrom without being required
to purchase the government title thereto. He is not compelled to do so. Under his possessory
right, he can hold as against everybody except the government of the United States. (Forbes
v. Gracey, 94 U. S. 766.)
The public mineral land is at the disposal of the federal government; and although
individuals may locate and acquire a possessory right to enter upon the unoccupied mineral
lands, and extract the valuable ores and minerals therefrom, yet all such rights so acquired are
subject to the paramount title of the government. Congress has provided that the locator or his
grantors may purchase the mineral land, and has prescribed the terms and conditions upon
which the government title may be acquired. Congress has also created a branch of the
executive department of the government, before which all matters pertaining to the issuance
of patents to mining claims are heard and determined. The land department of the government
is a special tribunal created for the purpose of hearing and determining the rights of parties to
purchase land, and, within the scope of its jurisdiction, its adjudications are final and
conclusive. (Smelting Co. v. Kemp, 104 U. S. 639; Wight v. Dubois, 21 Fed. 693; Ferry v.
Street, (Utah), 11 Pac. 576; Jeffords v. Hine, (Ariz.), Id. 352; Johnson v. Towsley, 13 Wall.
80; Talbott v. King, (Mont.), 9 Pac. 434.)
In the case of Steele v. Refining Co., 106 U. S. 450, 1 Sup. Ct. 389, Mr. Justice Field,
speaking for the court, said: We have so often had occasion to speak of the land department,
the object of its creation, and the powers it possessed in the alienation by patent of portions of
the public lands, that it creates an unpleasant surprise to find that counsel, in discussing the
effect to be given to the action of that department, overlook our decisions on the subject. That
department, as we have repeatedly said, was established to supervise the various
proceedings whereby a conveyance of the title from the United States to a portion of the
public domain is obtained, and to see that the requirements of different acts of congress
are fully complied with.
department, as we have repeatedly said, was established to supervise the various proceedings
whereby a conveyance of the title from the United States to a portion of the public domain is
obtained, and to see that the requirements of different acts of congress are fully complied
with. Necessarily, therefore, it must consider and pass upon the qualifications of the
applicant, the acts he has performed to secure the title, the nature of the land, and whether it is
of the class which is open to sale. Its judgment upon these matters is that of a special tribunal,
and is unassailable except by direct proceedings for its annulment or limitation. (Quinby v.
Conlan, 104 U. S. 426; Moore v. Robbins, 96 U. S. 532; Shepley v. Cowan, 91 U. S. 340;
Marquez v. Frisbie, 101 U. S. 476; Beard v. Federy, 3 Wall. 491; French v. Fyan, 93 U. S.
170.)
It is insisted on the part of appellants that they having alleged in their answer that the
plaintiff committed a fraud on the defendants, by reason of false affidavits having been
submitted to the register and receiver of the United States land office to establish the fact that
the assessment work had been done on the claim in each year, as required by the mining laws,
when in fact it had not, it is a direct attack, as to the validity of the patent, and constitutes a
good defense in equity to the plaintiff's action; and their counsel contends that under the
pleadings in this case the court can go behind the patent, and inquire into the regularity of the
proceedings, the sufficiency and character of the evidence submitted on said application for a
patent, and that the defendants should be permitted to introduce testimony before the court to
contradict the statements set forth in the affidavits, the sufficiency of which has already been
passed upon by the register and receiver before issuing the final certificate or receipt for
money received in payment for the land. Under our system of practice, equitable defenses of
this nature, as well as defenses at law, may be interposed in an action of ejectment. The
answer, when presenting them, is in its nature a bill in equity, and must contain all its
essential allegations. It must disclose a case which, if established, will justify a decree
adjudging that the title be transferred to the defendants, or enjoining the further prosecution
of the action.
There are cases, and quite a number of them, where courts of law, as well as in equity,
have permitted litigants to go behind the patent, and inquire into the proceedings had
before the land department.
behind the patent, and inquire into the proceedings had before the land department. In such
cases the party attempting to impeach the patent must show that he has a title to the premises,
or such an interest therein, in subordination to the title, wherever it may lie, as will authorize
him to call the true title to his aid, or where the United States or a state had issued their
patents to lands over or to which they had no control or title at the date of the issuance of the
patents, by reason of the fact that the law did not authorize the selling of the lands, or that
they had been reserved from sale, or had been previously transferred to others, as where
swamp and overflowed lands were donated to the state by the act of congress, a patent issued
thereafter by the United States is void. Why? Because the government has been divested of
the title thereto. (Railroad Co. v. McCusker, 67 Cal. 67, 7 Pac. 122; Kile v. Tubbs, 59 Cal.
191; Hermocilla v. Hubbell, 89 Cal. 5, 26 Pac. 611.)
A United States patent for land included within the limits of a Mexican grant is void, the
government having no title. (Carr v. Quigly, 57 Cal. 394; Newall v. Sanger, 92 U. S. 761.)
Where the State of California issued its patent for land once the bed of a navigable stream,
but which had never been acquired as swamp and overflowed land from the United States, the
patent was held to be void. (Edwards v. Rolley, (Cal.) 31 Pac. 267.)
In establishing the facts as set forth in the above or similar cases, the proceedings of the
land department upon matters properly before it are not called in question, but its authority to
act at all is denied, by reason of the fact that the government or the state had no title to
convey. (Smelting Co. v. Kemp, supra.) There is no such question involved in this case. It is
admitted by the answer that the land was open to sale; that the paramount title was in the
United States, and that such title was transferred by the government to the plaintiff in the
month of March, 1888; and that the plaintiff is now the owner of the legal title to the
premises in controversy. It does not appear from the answer that the defendants have
attempted, or ever will attempt, to connect themselves with the government title; nor are there
any averments in their pleadings that would justify a court in holding that the plaintiff is
trustee for them, and that the legal title must be transferred to them by the plaintiff; nor
can we, under the pleadings, enjoin the prosecution of the action.
title must be transferred to them by the plaintiff; nor can we, under the pleadings, enjoin the
prosecution of the action. The mere occupation of the defendants is worthless, when opposed
to the government title.
In the case of Courchaine v. Mining Co., 4 Nev. 374, Lewis, J., speaking for the court,
said:
The public land is absolutely at the disposal of the federal government. Although
individuals may settle upon and occupy portions of it, no title is acquired thereby which will
be available against the paramount right of the government. As between each other, settlers
may acquire rights which the courts will maintain and enforce. Thus, the first possessor is
always deemed to have the best right, and by establishing priority of possession he is allowed
to recover in ejectment, and in fact he is treated as the absolute owner of the land occupied by
him. But all rights so acquired are subject to the paramount title of the government.
Occupation and priority of possession are utterly worthless, when opposed to a title or right of
possession expressly conferred by the proper federal authorities. As between persons none of
whom claim title from the government, nor can show a right of possession recognized by it,
priority of possession must prevail. When, however, the government has declared, or by its
proper tribunals decided, that a particular person is entitled to the possession, such declaration
or decision, in the absence of fraud, is high evidence of his right to such possession; certainly,
superior to that which is acquired simply by priority of possession unaccompanied with any
recognition from the government. (Frisbie v. Whitney, 9 Wall. 194; The Yosemite Valley
Case, 15 Wall. 86; Shepley v. Cowan, 91 U. S. 331; Oaksmith v. Johnston, 92 U. S. 346.)
Courts have universally held that, after land is once offered for sale by the government, the
party who takes the initiatory step in such cases, if followed up to patent, is deemed to have
acquired the better right as against others to the premises, for the reason that when the patent
issues it relates back to the date of the initiatory act, and cuts off all intervening claims.
(Eureka Con. Min. Co. v. Richmond Min. Co., 4 Sawy. 317; Shepley v. Cowan, 91 U. S. 337;
Talbott v. King, (Mont.) 9 Pac. 439; Deffeback v. Hawke, 115 U. S. 405, 6 Sup. Ct. 95.)
The rule which prohibits courts from going behind the patents, and inquiring into the
proceedings had before the land department, when the controversy is between the holder of
the legal title and a party claiming by occupation only, is derived from the provisions of the
statutes of the United States, which prescribes the filing of adverse claims. Where a statute
prescribes one way in which a thing shall be done, it precludes every other. The plaintiff
having made an application for a patent to the Comet mining claim, the defendants, claiming
to have relocated a portion of the ground, had but one method open to them to protect their
interest, if they had any, and have their rights determined. The statute, after limiting the time
within which an adverse claim may be filed, provides: Thereafter no objections from third
parties to the issuance of a patent shall be heard, except it be shown that the applicant has
failed to comply with the terms of this chapter. (Sec. 2325, Rev. Stats. U. S.)
From the date of filing of the application for a patent by the plaintiff to the land in dispute,
it ceased to belong to the public domain. No other claim to the same land could be asserted,
except in the manner pointed out by the statute. We do not understand defendants to deny but
what the plaintiff and its grantors complied with the mining laws, local rules, regulations, and
customs of the miners within the district from the date of location of the Comet ledge and
claim until and including the date of the expiration of the publication of the notice of
application for its patent; but what they do claim is that after such publication had been
completed the plaintiff abandoned the claim, and failed to do the assessment work, until
1888, when it resumed work, and, without giving any further or additional notice of its
intentions, applied at the United States land office, made proof of having done the assessment
work, by means of false affidavits, paid five dollars an acre for the land, received the
receiver's receipt, and upon such proof and receipt the patent was issued. And the defendants
claim that after said abandonment, and before said proof and payment, their grantors entered
upon and relocated a portion of said surface location of the Comet claim.
The proceedings on application for a patent to land, before the land department, from the
initiatory step until the issuance of the patent, are ex parte, unless an adverse claim be
filed; and if an adverse claim is filed, in mineral applications, it is referred to the courts,
and in all other cases they are heard and determined in the land department.
ance of the patent, are ex parte, unless an adverse claim be filed; and if an adverse claim is
filed, in mineral applications, it is referred to the courts, and in all other cases they are heard
and determined in the land department. But we know of no law, rule or regulation of the land
department that requires of a party applying for a patent to mineral land to give or publish any
additional notice after the expiration of the sixty-days publication. After such publication the
applicant can make what is termed his final proof, which consists of the affidavit of the
publisher or manager of the paper that the notice has been published therein for sixty days; of
the applicant himself, or his agent, that the plat and notice remained posted upon the claim
during the period of publication; of two disinterested persons, that the $100 worth of labor or
improvements were performed or made on the claim during the year in which the final proof
was made. If no adverse claim was filed prior to this proof submitted to the register and
receiver, it shall be assumed that the applicant is entitled to a patent upon the payment to the
proper officers of five dollars per acre, and that no adverse claim exists.
By act of congress, March 3, 1849 (Rev. Stats., sec. 441) the secretary of the interior was
charged with the supervision of public business relating to the following subjects: Second.
The public lands including mines. By section 453, the office of commissioner of the land
department was created, and that officer was to perform his duties under the direction of the
secretary of the interior, and, as hereinbefore stated, that department being vested with the
supervision and sale of the mineral land, the decisions and rulings of the officers of the land
department, made within the scope of their authority, on questions of fact, are conclusive
everywhere; and when a party relies upon a relocation made subsequent to publication, and
prior to final proof and payment, the only course for him to pursue is by presenting his
grievance in the shape of a protest, setting forth the fact that the applicant for the patent had
not complied with the law, by reason of its failure to do the assessment work or make the
improvements, which protest should be filed in the land office, and a hearing demanded,
which would be granted, as was said by Acting Commissioner Holcomb in the appeal case of
Wheeler v. Sanger, under date of October 21, 1SS0 {Sickels, Min. Dec., at page 275): "I
am also of the opinion that all adverse claims, from whatever source derived, should be
presented in the manner prescribed by law, and during the period of publication of notice
of application for patent, with a single exception, to wit: Should the abandonment occur
subsequent to such publication, and prior to entry and payment, a case would be
presented by which the executive department would be compelled to take jurisdiction,
because the law, under that state of facts, allows the abandoned ground to be again
located by any qualified person in the same manner as if no location of the same had ever
been, and makes no provision for the determination elsewhere of any question or
controversy arising out of this class of conflicting claims."
case of Wheeler v. Sanger, under date of October 21, 1880 (Sickels, Min. Dec., at page 275):
I am also of the opinion that all adverse claims, from whatever source derived, should be
presented in the manner prescribed by law, and during the period of publication of notice of
application for patent, with a single exception, to wit: Should the abandonment occur
subsequent to such publication, and prior to entry and payment, a case would be presented by
which the executive department would be compelled to take jurisdiction, because the law,
under that state of facts, allows the abandoned ground to be again located by any qualified
person in the same manner as if no location of the same had ever been, and makes no
provision for the determination elsewhere of any question or controversy arising out of this
class of conflicting claims.
This instruction was given to the local land office in 1880, and the same has been followed
and approved in the following cases, and by the following officers: Bodie Tunnel & Min. Co.,
v. Bechtel Consol. Min. Co., 1 Dec. Dep. Int. 599letter of Secretary Kirkwood to
Commissioner McFarland, December 12, 1881, in which he says: I desire to say that, while I
am of the opinion that controversies between adverse mining claimants cannot be heard and
determined before this department, I am nevertheless of the opinion that where, under the last
clause of sec. 2325, third parties present evidence by affidavits, etc., to show that an applicant
has failed to comply with the mining statutes, if the evidence is of such character as to entitle
it to credit, and if the allegations are such as, if proven in regular proceedings, would show
that the law has not been complied with, that patent under the law ought not to be issued, or
that you have no jurisdiction to issue the patent, then it is your duty to order an investigation
as between the government and the applicant, as in similar cases of agricultural entries.
Secretary Vilas to Commissioner Stockslager, January 25, 1889, in the case of Bright v.
Mining Co., 8 Dec. Dep. Int. 122. Secretary Noble to the commissioner of the general land
office, November 4, 1889, Tangerman v. Mining Co., 9 Dec. Den. Int. 538. And by the same
secretary to the same officer in the case of Sweeney v. Wilson, under date of February 13,
1890, in which the land department canceled an application for a patent on the ground that
the applicant had not complied with the law {10 Dec.
the ground that the applicant had not complied with the law (10 Dec. Dep. Int. 157). First
Assistant Secretary Chandler to the commissioner of the general land office, under date of
May 2, 1890, in the case of Mining Co. v. Gage, in which the secretary orders a hearing to
determine as to whether the ground in controversy was subject to relocation pending adverse
proceedings and application for patent (10 Dec. Dep. Int. 534). Nichols v. Becker, 11 Dec.
Dep. Int. 8. Copp, Min. Lands, 315, Bellwither Lode, Id. 133.
In the case of St. Lawrence Min. Co. v. Albion Min. Co. 10 Copp., Landowner, 51,
Commissioner McFarland, writing to the register and receiver of the land office at Eureka,
said: The protest of the Richmond Mining Company is deemed sufficient to authorize a
hearing to ascertain whether or not the survey of the Albion, No. 1, corresponds with the
location of the claim, and the only question to be considered is whether such a hearing should
be ordered while action on the application for patent is suspended on account of the suit
pending in court on the adverse claim. The subject matter of the protest appears not to be in
any way involved in the suit, and it relates solely to questions of non-compliance with the law
by the applicant in his proceedings for patent. If the protest is true, a portion of the land was
not subject to the application for patent, and that is a question for this office, and it can be
investigated and determined without regard to the pending suit. The proceedings which are
required by law to be suspended are those relating to the patenting of the claim, and this
office is not barred by the filing of an adverse claim from investigating the collateral fact as to
whether the application embraces land not subject to the same. Such action has no tendency
to advance the application for patent, nor to interfere in any way with the matters properly
referred to the court. You will accordingly order a hearing to determine the truth or falsity of
the allegations in the Richmond Mining Company's protest.
Section 2450, Rev. Stats. U. S., creates the board of equitable adjudication, consisting of
the secretary of the interior, the attorney-general and the commissioner of the general land
office, who are authorized to decide, upon principles of equity and justice as recognized in
courts of equity, and in accordance with regulations to be settled by the secretary of the
interior, all cases of suspended entries of public lands, and to adjudge in what cases
patents shall issue upon the same.
the interior, all cases of suspended entries of public lands, and to adjudge in what cases
patents shall issue upon the same. Section 2456 provides: Where patents have been already
issued on entries which are confirmed by the officers who are constituted the board of
adjudication, the commissioner of the general land office, upon the canceling of the
outstanding patent, is authorized to issue a new patent, on such confirmation, to the person
who made the entry, his heirs or assigns.
In the case of Omaha Quartz Mine, (on appeal), Copp, Min. Lands, 198, and the letter of
Commissioner McFarland to the register and receiver at Central City, Colo., Id. 317, protests
were filed against the issuance of patents on the ground that the notices were not published in
the newspapers nearest the mines, and the law had not been complied with. In each case it
was held that the questions were such as called for the interposition of the board of equitable
adjudication. For any causes existing prior to the date of an application for a patent the party
claiming any rights adverse to the applicant must file his adverse claim before the sixty-days
publication expires, and within thirty days thereafter he shall commence his proceedings in a
court of competent jurisdiction for the recovery of the claim. But for failure to comply with
the law, such as failure to post or publish the notice or do the assessment work as required by
law, it then becomes a controversy between the United States and the applicant only, the
question being as to compliance on their part with the prerequisite conditions of the law.
(Petit v. Mining Co., 9 Dec. Dep. Int. 565.) And he who has acquired any rights after the
application for patent has been made must apply to the land department for a protection of the
same.
From the averments in the answer, the defendants were in a position to file a protest in the
United States land office, at Carson City, after they had located the Phoenix claim, and before
the plaintiff had offered its final proof and payment. They allege that their grantors entered
upon and located the claim in the month of January, 1887; that the plaintiff did not do the
assessment work, nor make any improvements on the claim, from 1878 until the month of
April, 1888; they had one year in which to file a protest against the plaintiff's right to further
prosecute its application for patent. If the allegations contained within the answer are true,
the defendants had a right to say to the officers of the land department that the applicant
had not complied with the terms of the statute, and demand an investigation, and show, if
they could, that the plaintiff had not complied with the law.
tions contained within the answer are true, the defendants had a right to say to the officers of
the land department that the applicant had not complied with the terms of the statute, and
demand an investigation, and show, if they could, that the plaintiff had not complied with the
law. It is not a valid excuse for them to say that the plaintiff gave no additional notice as to
when it would make final proof and payment. It was not required to do so, and an
examination of the files in the United States land office in Carson City would satisfy the
defendants that the application of the plaintiff for patent was filed and pending therein. They
not having filed their protest, they are not in a position to attack the patent now.
In Knight v. Association, 142 U. S. 176, 12 Sup. Ct. 258, the supervisory power of the
secretary of the interior over all matters relating to the sale and disposition of the public
lands, and the issuing of patents thereon, was fully considered, and numerous authorities
cited. It is therein declared by Mr. Justice Lamar, speaking for the court, that the secretary
was clothed with plenary authority as the supervising agent of the government to do justice to
all claimants, and to preserve the rights of the people of the United States, and that he could
exercise such supervision by direct orders or by review on appeal, and, in the absence of
statutory directions, prescribe the mode in which it could be exercised by such rules and
regulations as he might adopt.
In the case of Doe v. Mining Co., 54 Fed. 946, an attempt was made to go behind the
patent, and show that the end lines of the Silver King location were not parallel. Judge Ross,
in passing upon this question, said: If the rights conferred by the patent can be defeated by
showing a want of parallelism of the end lines in the original location, it is difficult to
understand why the patent may not likewise be defeated by showing that the original location
was void because its boundaries were not properly marked upon the ground, or because no
vein, lode or ledge was discovered within them, or because the statutory requirement in
respect to the posting of the notice of location was not complied with, or because of an
omission on the part of the locator to comply with any other provision of the statute regarding
the location of such lode claims. All such matters I understand to be absolutely concluded by
the patent, so long as it stands unrevoked. If questions relating to the boundaries of the
location; the marking of them; the discovery of a vein, lode or ledge within them; the
posting of the required notice, etc., are open to contestation after the issuance of a patent
for the claim, as before, the issuance of such an instrument would be a vain act, and
would wholly fail to secure to the patentee the rights and privileges designed by the law
authorizing its issue.
unrevoked. If questions relating to the boundaries of the location; the marking of them; the
discovery of a vein, lode or ledge within them; the posting of the required notice, etc., are
open to contestation after the issuance of a patent for the claim, as before, the issuance of
such an instrument would be a vain act, and would wholly fail to secure to the patentee the
rights and privileges designed by the law authorizing its issue. The very purpose of the patent
is to do away with the necessity of going back to the facts upon which it is based. Authorities
to this effect, in both federal and state courts, are so numerous as to render it, I think,
unnecessary to cite them.
In Smelting Co. v. Kemp, 104 U. S. 639, on the trial of the case the plaintiff introduced the
patent and its record title, and rested its case. The court permitted the defendant to introduce
in evidence a certified copy of the record of proceedings in the general land office at
Washington, upon which Starr obtained his patent. The plaintiff objected to the introduction
of the paper on the ground that it could only show, or tend to show, the regularity or
irregularity of the proceedings before the executive department in obtaining the patent or the
validity or invalidity of the possessory title or pre-emption right upon which the patent was
founded, and that no evidence could be introduced to impeach the patent, or attack it
collaterally, or in any way affect it in the action.
In passing upon this ruling, Justice Field, speaking for a majority of the court, after holding
that the actions or decisions of the officers of the land department could not be assailed, at
page 641, said: It is this unassailable character which gives to it [the patent] its chief, indeed
its only value, as a means of quieting its possessor in the enjoyment of the land it embraces. If
intruders upon them could compel him, in every suit for possession, to establish the validity
of the action of the land department, and correctness of its rulings upon matters submitted to
it, the patent, instead of being a means of peace and security, would subject his rights to
constant and ruinous litigation. He would recover one portion of his land, if the jury was
satisfied that the evidence produced justified the action of the department, and lose another
portion, the title whereto rests upon the same facts, because another jury came to a
different conclusion.
same facts, because another jury came to a different conclusion. So his rights in different suits
upon the same patent would be determined, not by its efficacy as a conveyance of the
government, but according to the fluctuating prejudices of different jurymen, or their varying
capacities to weigh the evidence. (Moore v. Wilkinson, 13 Cal. 478; Beard v. Federy, 3
Wall. 492.)
And at page 647 of the same report the judge says: According to the doctrine thus
expressed, and the cases cited in its support (and there are none in conflict with it), there can
be no doubt that the court below erred in admitting the record of the proceedings upon which
the patent was issued, in order to impeach its validity. The judgment of the department upon
their sufficiency was not, as already stated, open to contestation. If, in issuing a patent, its
officers took mistaken views of the law, or drew erroneous conclusions from the evidence, or
acted from imperfect views of their duty, or even from corrupt motives, a court of law can
afford no remedy to a party alleging that he is thereby aggrieved. He must resort to a court of
equity for relief, and even then his complaint cannot be heard unless he connects himself with
the original source of title, so as to be able to aver that his rights are injuriously affected by
the existence of the patent; and he must possess such equities as will control the legal title in
the plaintiff's hands. (Boggs v. Mining Co., 14 Cal. 279; Chapman v. Quinn, 56 Cal. 274). It
does not lie in the mouth of a stranger to the title to complain of the acts of the government
with respect to it. If the government is dissatisfied, it can, on its own account, authorize
proceedings to vacate the patent or limit its operations.
Wight v. Dubois, 21 Fed. 693, was a bill in equity to set aside a patent to a mining claim.
Brewer, J., on petition for rehearing, said: The government, as the original owner, offers the
title to these mineral lands, upon certain conditions, to whomsoever discovers mineral. The
amount of land it will convey to each locator is limited, and certain forms of procedure are
prescribed, but the primal fact is that the lands are offered to those who discover the mineral.
In this matter the government resembles a private land owner, who makes an offer to sell his
lands upon specified conditions. When the patent issues, the title passes from the
government, and no one can question that title who has not, prior thereto, by compliance
with the conditions prescribed by the government, himself acquired an interest in the
land.
government, and no one can question that title who has not, prior thereto, by compliance with
the conditions prescribed by the government, himself acquired an interest in the land. It
matters not what wrong the patentee may have perpetrated upon the government; it, and it
alone, can complain. In other words, when grantor and grantee are satisfied, a stranger has
nothing to say. (Field v. Seabury, 19, How. 330.)
In the case of Steele v. Refining Co., 106 U. S. 453, 1 Sup. Ct. 389, the answer charged
that bribery and subornation of perjury were committed by Starr in inducing parties to make
false affidavits respecting the claim patented by the land department. The perjury consisted in
Starr's affidavit as to his citizenship, and the possession and working, by himself or grantors,
of the claim for which the patent was issued. That false and perjured testimony was used to
influence the officers of the land department. There was no allegation of improper conduct on
the part of the officers. At page 457, 106 U. S., and page 389, 1 Sup. Ct., the court, in passing
upon the question of fraud, said: Though the various matters of fraud, perjury, and
subornation of perjury, alleged as a defense, are to be taken as true for the purposes of this
decision, they are not to be taken as true for any other purpose. What we decide is that, if true,
they are not available in this form of action, and that any relief against the patent founded
upon them must be sought in another way, and by a direct proceeding.
See, also, the opinion of Justice Hawley in the case of Railroad Co. v. Cannon, 4 C. C. A.
303, 54 Fed. 253, and authorities therein cited; Turner v. Donnelly, 70 Cal. 604, 12 Pac. 469.
It seems to us that the above decisions are directly in point on the question under
consideration in the case at bar.
The allegation charging fraud in this answer is that, in order to induce the register and
receiver to sell said mining claim, and issue their receipt for the payment of the land, and to
induce the government of the United States to sell and patent said mining claim to plaintiff,
the said plaintiff procured, and caused to be procured, and filed in the office of the register
and receiver, false and fraudulent affidavits and testimony showing, and tending to show, that
the assessment work had been done from the year 1879, to and including the year 1SS7,
when in fact the plaintiff well knew it had not been done."
year 1887, when in fact the plaintiff well knew it had not been done.
It does not charge any officer of the land department with being guilty of fraud, nor that
they colluded or connived with the plaintiff in any manner in the procurement of said patent,
and, if a fraud was perpetrated, it was against the government. Such being the case, the
United States is the only one that can ask to have the patent set aside. The patent is not void,
admitting that everything stated in the answer be true. It is merely voidable; and, it having
been issued to the plaintiff, there can be no higher evidence of title, and, in favor of the
validity and integrity of such an instrument, we must presume that all antecedent steps
necessary to its issuance where duly taken.
It being admitted by the answer that the paramount title was in the United States, and that
that title was transferred to the plaintiff by the department of government authorized by law to
transfer its title by patent, the presumption is that the plaintiff is entitled to the possession, as
well as to the whole beneficial interest; and, as the grantee of the governmentthe
plaintifftakes and holds whatever interest therein the government could grant, subject to no
conditions other than those expressed in the patent, and no person, company, or association
claiming in his, their, or its own right any interest in the lands can legally prevent the patentee
from entering, under and by virtue of its patent. The mere entry and claim of relocation of a
part of the Comet claim by the defendants or their grantors did not give them a vested or an
absolute estate as against the United States, nor one which the government might not impose
additional duties upon, or take away from them entirely. (The Yosemite Valley Case, 15 Wall.
86.)
It was not sufficient for the defendants to have alleged in their answer that the plaintiff was
not entitled to the patent. The government was satisfied with the proofs submitted by the
plaintiff, and received its five dollars an acre, and issued its patent for the land, and into the
bona fides of this transaction no one but the government can inquire.
In Wright v. Dubois, supra, it is said: The government, as a landowner, offers its lands for
sale upon certain prescribed conditions, compliance with which is a matter of settlement
between the owner and purchaser alone, and with which no stranger to the title can
interfere.
tlement between the owner and purchaser alone, and with which no stranger to the title can
interfere. Publication of notice is process bringing all adverse claimants into court, and, if no
adverse claims are presented, it is conclusively presumed that none exist, and that no third
parties have any rights or equities in the land. Thereafter, the only right or privilege remaining
to any third parties is that of protest or objections filed with the land department, and
cognizable only there. If sustained by the department, the proceedings had by the applicant
are set aside; if overruled, the protestant or objector is without further right or remedy. (Land
Co. v. Griffey, 143 U. S. 41, 12 Sup. Ct. 362; Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. 249;
Sparks v. Pierce, 115 U. S. 411, 6 Sup. Ct. 102; Gwillim v. Donnellan, 115 U. S. 50, 5 Sup.
Ct. 1110; Deffeback v. Hawke, 115 U. S. 405, 6 Sup. Ct. 95; Bohall v. Dilla, 114 U. S. 50, 5
Sup. Ct. 782; Smelting Co. v. Kemp, supra; Lee v. Stahl, 9 Colo. 210, 11 Pac. 77; Hamilton
v. Mining Co., 33 Fed. 565; Chapman v. Quinn, 56 Cal. 274.)
In their answer the defendants allege that their grantors relocated a portion of the Comet
claim in the month of January, 1887.
If the Comet claim was abandoned at that time, the relocation thereof by the defendants'
grantors entitled them to the exclusive possession and use thereof, as against everybody
except the United States, which, prior to patent, is the owner of the legal title.
The different statutes providing for the location and patenting of mining claims are to be
considered together, and the laws giving the miner certain rights to mining claims which he
has located in compliance therewith must be construed in connection with the adverse
provisions treated of in several enactments.
The locator's claim by right of possession is the lowest grade of title known to the mining
laws. Under such a right the locator cannot assert or claim any title as against the government.
The government merely recognizes his right to remain in possession so long as he complies
with the rules and regulations which congress may prescribe. The equitable title accrues to the
applicant upon entry and purchase at the United States land office. Still, the legal title is in the
government, and the applicant may be deprived of his equitable title if it can be shown that
he has not complied with the law; and that showing must be made before the officers of
the land department before the patent issues.
equitable title if it can be shown that he has not complied with the law; and that showing must
be made before the officers of the land department before the patent issues. Title in fee simple
is acquired on delivery of patent, evidencing the legal title, and, when the patent is issued, it
relates back to the inception of the rights of the patentee, in so far as it may be necessary to
cut off intervening rights and claimants.
It sometimes happens, under the pre-emption laws, that the legal title may be in one
person, and a superior equity in another. But such cannot occur under the operation of the
United States mining laws. The statute providing for adverse proceedings in the land office
and adverse suits in the courts, all legal and equitable adverse titles and claims must be
presented to and passed upon by the courts prior to the issuance of the patent, or be
considered stale and abandoned.
In the case of Miller v. Girard, (Colo. App.) 33 Pac. 69, it appears from the facts, as stated
by the court, that the Long John lode was located in 1883. Sometime thereafter a claim
known as the North Star was located in such a manner as to include within its exterior
boundaries a portion of the Long John claim, including the discovery shaft. Thereafter, the
owners of the North Star obtained a patent to their claim, including the ground on which the
Long John discovery shaft had been sunk. The owners of the Long John did not file a protest,
nor object to the issuance of the patent to the North Star claim. In 1888 the Aurora and Elgin
claims were located, and we would infer that these locations included a portion of the Long
John location. After such location, the owners of the Aurora and Elgin claims made
application for a patent, and, while the advertisement was pending, the owners of the Long
John commenced adverse proceeding. The priority of the Long John location was conceded,
and also that the assessment work had been done each and every year since its location; but it
was contended, on the part of the owners of the Aurora and Elgin locations, that the fact of
the North Star claim having been located subsequent to the Long John, and the North Star
Company having secured a patent to its location, which included the Long John discovery
shaft, the residue of the Long John location reverted to the public domain, and was open to
exploration and location by the parties making the Aurora and Elgin locations.
location reverted to the public domain, and was open to exploration and location by the
parties making the Aurora and Elgin locations.
In passing on this question, Bissell, P. J., speaking for the court said: Ever since the
decision of the case of Gwillim v. Donnellan, 115 U. S. 45, 5 Sup. Ct. 1110, it has been the
conceded and established law that if a locator permits an adjoining claimant to obtain a patent
from the government for that portion of his territory which includes his discovery shaft, and
he is without another which gives him a superior right as against the contesting claimant, he
must be adjudged to have lost title to whatever territory is embraced within the lines of his
claim. That case unquestionably decides that, if the locator permits the adjoining occupant to
patent that part of his territory, it is the equivalent of an adjudication that he is without title,
and the remaining part of his location reverts to the condition of public lands, and is open to
location and purchase by other citizens and claimants, unless the locators, in some legal
fashion, have initiated a new title.
Applying the above rule, which we think is a correct one, to the case under consideration,
if the defendants' grantors did locate the Phoenix claim in 1887, which location crossed the
Comet claim diagonally, but did not include any of the workings on the Comet location, but
all of the workings of the Phoenix claim are within the territorial limits of the Comet claim;
and it is also admitted by the answer that the plaintiff re-entered in the month of April, 1888,
and resumed work on the Comet claim, made final proof and payment for the land, and
obtained a patent therefor, including the workings of the Phoenix Company. Such being the
case, and the defendants failing to file a protest or interpose any objections to the resuming of
work, or the making of the final proof or payment, by the plaintiff, upon which its patent
issued, they are to be treated as having voluntarily waived whatever rights they may have
acquired under their location, for, upon the issuance of the patent to the plaintiff, it related
back to, and took effect as of, the date of the original location. (The Eureka Case, 4 Sawy.
317; Lee v. Stahl, 9 Colo. 210, 11 Pac. 77; Kannaugh v. Mining Co., 16 Colo. 346, 27 Pac.
245; Seymour v. Fisher, 16 Colo. 191, 27 Pac. 240.)
The questions as to the location, marking off boundaries, working, or improvements made
upon mining claims are all questions of fact, or mixed questions of law and fact, and the
decisions of the officers of the land department thereon are final. If the defendants did not file
a protest with the register and receiver after their location, and before the plaintiff made its
final proof and payment, it was their own fault. The evidence which they now propose to
introduce, as to the abandonment of the claim, was known to them before the final proof and
payment was made, and should have been taken advantage of at that time. The charge of
fraud is vague and indefinite, and, if any fraud was committed, the United States is the proper
party to take the necessary proceedings to have the patent declared void. The defendants, not
having connected themselves with the government title, cannot attack the patent. It is enough
for them to show that the plaintiff was not entitled to have received the patent. They must
also show that they occupy such a status towards the property as entitles them to control the
legal title. (Plummer v. Brown, 70 Cal. 545, 12 Pac. 464; Johnson v. Towsley, supra;
Smelting Co. v. Kemp, supra; Buckley v. Howe, (Cal. 25 Pac. 133.)
The plaintiff cannot be held as a trustee for the defendants. This is not one of that class of
cases, of which many instances may be found in the decisions of courts, wherein a party
receiving a patent from the United States has been declared to hold the legal title merely in
trust for another claiming to have a superior equity. There is no privity between the plaintiff
and the defendants; they are strangers to each other's titles. No circumstances are alleged or
claimed to exist between them, such as to create the relationship of trustee and cestui que,
trust, and the defendants ask for no such relief in their answer, but, upon the contrary, the
defendants' claim is that, by reason of adverse possession of the premises in controversy, they
have acquired a title to the claim as against the entire world. (Collins v. Bartlett, 44 Cal. 380.)
It is admitted in the answer that the top or apex of the Phoenix mining claim, and the lode
therein, and all the workings thereon, are within the surface boundaries of the Comet location,
and on the plaintiff's patented ground, but that the Phoenix ledge is not the ledge located by
the plaintiff or its grantors, and is not the ledge patented; and is more than 300 feet from
the center of the Comet ledge.
that the Phoenix ledge is not the ledge located by the plaintiff or its grantors, and is not the
ledge patented; and is more than 300 feet from the center of the Comet ledge.
As we understand the argument of the appellants' counsel, it is this: That, the plaintiff's
grantors having discovered a ledge, and having reason to believe that on its strike and
horizontal course it ran in a northerly and southerly direction, and made their location
accordingly, claiming 1,100 feet along the presumed course of said vein and lode, and 200
feet on each side of the middle thereof, as allowed by the local laws, rules, and customs of the
miners of that district, and the patent was issued for the ground so located, the defendants
claim that upon further exploration it will be found that the ledge which the plaintiff's
grantors located will pass without the east side line of the plaintiff's patented ground, within
four or five hundred feet of the south end thereof, and that, by so passing without the side
line, the said side line does not only become the end line, to determine its claim to the ledge,
but also determines the end of its surface boundaries; and the appellants contend that the
plaintiff cannot claim but 200 feet of surface ground north of the point where its ledge is
supposed to have crossed its side line, notwithstanding plaintiff holds the government title to
six or seven hundred feet north of said point; and the counsel claims that it was not within the
power or jurisdiction of the officers of the land department to issue the patent for that portion
of the surface ground north of such point, and that the patent is absolutely void as to that
portion of the surface ground, and that the defendants had a right to enter upon the north end
of the Comet location, and locate any ledge, the top or apex of which was within the surface
boundaries of the patented ground.
True it is that if the grantors of the plaintiff were so unfortunate as to locate the Comet
ledge in such a manner as that, instead of the vein or ledge continuing lengthwise through the
center of the location, it should so far depart from such course and direction that it will pass
without the east side line, under such circumstances, the side line becomes the end line, to
determine the extent to which the plaintiff can work on or follow the ledge, but does not in
any manner affect its ownership to the land embraced within the surface boundaries of its
patented ground.
of its patented ground. (Mining Co. v. Tarbet, 98 U. S. 463.)
Section 2319 of the revised statutes reads: All valuable mineral deposits in lands
belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free
and open to exploration and purchase and the lands in which they are found to occupation and
purchase.
Prior to July 26, 1866, the government title to mineral lands could not be acquired.
Nevertheless, the government recognized the possessory rights of miners, and their rules and
regulations in relation to the holding and working the same; yet they were reserved from
survey, from pre-emption, and from all grants. (U. S. v. Gratiot, 14 Pet. 537; Mining Co. v.
Consolidated Min. Co., 102 U. S. 175; Morton v. Nebraska, 21 Wall. 667.)
By the act of 1872, not only the veins, lodes and ledges are open to exploration and
purchase, but the land in which they are found is also declared open to occupation and
purchase to the extent allowed by the United States mining laws, and the rules and regulations
of the miners within the district in which the claim is situated, and the land so defined
constitutes a mining claim. The intention of congress in enacting this law was to dispose of
the government title to the mineral lands, and this meant that the absolute title could be
acquired therein. It did not mean simply an easement, with the right of the owner to pass over
the ground in going to and returning from his work, or dumping privileges. The right to
occupy and to purchase means the right to acquire the title in fee simple, and the right to
acquire such a title is followed by the right to the exclusive enjoyment of the entire surface
ground embraced within the lines of the location; and the land described in the patent to the
plaintiff is withdrawn from the public domain as though it was a homestead or pre-emption
entry. (Belk v. Meagher, 104 U. S. 283; Forbes v. Gracey, 94 U. S. 762; Butte City
Smoke-House Lode Cases, (Mont.) 12 Pac. 860; Deffeback v. Hawke, Talbott v. King, and
Beard v. Federy, supra.)
By virtue of its patent, the plaintiff is the owner of all veins, lodes, and ledges, the top or
apex of which lies inside the surface lines of its location. Most, if not all, patents for mining
claims contain the following: The premises hereby conveyed, with the exception of the
surface, may be entered by the proprietor of any other vein, lode, ledge or deposit, the top
or apex of which lies outside the exterior limits of said survey, should the same in its
downward course, be found to penetrate, intersect, extend into, or underlie the premises
hereby granted, for the purpose of extracting and removing the ore from such other vein,
lode, ledge or deposit."
by the proprietor of any other vein, lode, ledge or deposit, the top or apex of which lies
outside the exterior limits of said survey, should the same in its downward course, be found
to penetrate, intersect, extend into, or underlie the premises hereby granted, for the purpose of
extracting and removing the ore from such other vein, lode, ledge or deposit. This
reservation in the patent specifies the conditions and stipulations under which it is issued. It
does not authorize a party to enter upon the surface and make a location, nor does it permit
the owner of an adjoining location to enter upon the surface. He may follow his ledge beneath
the surface, but he cannot enter upon the surface and sink a shaft for the purpose of hoisting
the ore to the surface at less expense than he could through his own ground, without first
obtaining consent of the owner of the adjoining claim. (Section 2322, Rev. Stats. U. S.,
Mineral Laws; Mining Co. v. Cheesman, 116 U. S. 533, 6 Sup. Ct. 481; Iron Silver Min.
Co. v. Elgin Smelting Co., 118 U. S. 198, 6 Sup. Ct. 1177; Mining Co. v. Campbell, 135 U. S.
293, 10 Sup. Ct. 765; Mining Co. v. Sweeney, 4 C. C. A. 329, 54 Fed. 290.)
In the case of Mining Co. v. Leach, 33 Pac. 421, the supreme court of Arizona said: It
was argued, during the presentation of this case by the appellants, that a mining claim, to be
valid, must be located along the course of the lode; that the statute contemplates that it shall
be so done. The statute, as we understand it, only intends to prescribe the limit of extent along
the course of the lode that the locator may claim, not that he shall locate, so that the greatest
dimension of his claim shall coincide with the course of the lode. It is provided that the
extreme extent along the lode shall not exceed 1,500 feet. It may be less. And if the miner, in
making his location, should mistake the direction of the lode upon which he locates, and
accordingly make the extreme dimensions of his claim in a direction other than that of the
lode, that fact does not invalidate his claim, but only operates to diminish the extent of the
lode that he might have included within the boundaries of his claim. Of course, congress
expected that the miner would avail himself of the privilege accorded him, and locate along
the course of the lode, but it does not require him to do so. The only result of not so locating
is that the locator gets less, in extent, of the lode, than he otherwise would have located,
and that if the side lines, instead of the end lines, cross the course of the lode, in order to
define the locator's rights to pursue the lode on its dip, the side lines will be treated as the
end lines."
extent, of the lode, than he otherwise would have located, and that if the side lines, instead of
the end lines, cross the course of the lode, in order to define the locator's rights to pursue the
lode on its dip, the side lines will be treated as the end lines.
The title to the land in controversy being in the government, the plaintiff having connected
itself with that title, and the extent of its claim not being in excess of the number of feet
allowed by the United States mining laws, or the local rules and regulations of the miners
within the district, the plaintiff is the owner of all the surface ground described in its patent,
and of all ledges, the top or apex of which lies inside of such surface boundary lines.
The appellants contend that the respondent is estopped to maintain this action by reason of
its acts in suffering and encouraging them to locate the property, and expend money and labor
in discovering and developing the ledge. This contention is untenable. There was no relation
of confidence or trust between the plaintiff and the defendants, and none is alleged in the
answer or claimed to exist. They were not dealing at all with each other. It does not appear
that the plaintiff made any representations concerning material facts, or any statement at all,
to the defendants. But it does appear that the defendants were conversant with the facts in
relation to the plaintiff's title, for they so state in their answer. Therefore, they were not
misled. (Boggs v. Mining Co., 14 Cal. 366; Kerr, Fraud & M., 93; Bigelow, Fraud, 438;
People v. Brown, 67 Ill. 437.)
The case presented by the defendants is not covered by the law of estoppel. They and their
grantors knew that the lands were mineral lands, and were claimed as such by the plaintiff,
and that the title to them could be acquired only under the laws of the United States, and from
the United States; and there is no pretense that the defendants ever sought, or contemplated
seeking, the title to them from the government, or claimed them in any way or manner except
adversely to the plaintiff, and now they allege that they claim them as against the United
States and the world. (Martin v. Zellerbach, 38 Cal. 314.)
The defendants' counsel argues that, they having been in the possession of the premises for
more than two years, holding adversely to the plaintiff, they have gained a title by
prescription; and they rely upon sections 3632 and 3664 of the general statutes of
Nevada in support of this contention.
ing adversely to the plaintiff, they have gained a title by prescription; and they rely upon
sections 3632 and 3664 of the general statutes of Nevada in support of this contention.
Section 3632 reads as follows: No action for the recovery of mining claims, or for the
recovery of the possession thereof, shall be maintained, unless it appears that the plaintiff, or
those through or from whom he claims, were seized or possessed of such mining claim, or
were the owners thereof, according to the laws and customs of the district embracing the
same, within two years before the commencement of such action. Occupation and adverse
possession of a mining claim shall consist in holding and working the same, in the usual and
customary mode of holding and working similar claims in the vicinity thereof. All the
provisions of this act, which apply to other real estate, so far as applicable, shall be deemed to
include and apply to mining claims; provided, that in such application two years' shall be
held to be the period intended whenever the term five years' is used; and provided, further,
that when the terms legal title' or title' are used, they shall be held to include title acquired
by location or occupation, according to the usages, laws, and customs of the district
embracing the claim.
Section 3664 reads: No action for the recovery of real property, or for the recovery of the
possession thereof other than mining claims, shall be maintained, unless it appears that the
plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in
question, within five years before the commencement thereof.
The act defining the time of commencing civil actions was approved November 21, 1861.
(Stats. 1861, p. 26.) It was amended in 1867, so as to read as set forth in section 3632, while
section 3664 was passed, as a supplementary act, in 1869.
As between parties having no higher title than such as is derived from mere occupancy or
possession, an action would undoubtedly be barred at the expiration of two years' adverse
possession, under the above statutes. Do the above acts apply and run as against a party who
has connected himself with the government title? The plaintiff, holding a patent to the land
issued by authority of the United States, was invested with the highest title known to the law,
and five years had not elapsed after the issuance of the patent, and before the
commencement of this action.
years had not elapsed after the issuance of the patent, and before the commencement of this
action.
Congress has the absolute power to dispose of the government land, and this power is
subject to no limitation. No state legislation can interfere with this right, for it is well settled
that the statute of limitations of a state cannot run against the United States, by the third
subdivision of the ordinance adopted with our constitution: That the people inhabiting said
territory do agree and declare that they forever disclaim all right and title to the
unappropriated public lands lying within said territory, and that the same shall be and remain
at the sole and entire disposition of the United States. Therefore, the statute did not begin to
run against the plaintiff's cause of action until after the issuance of the patent, which is
alleged to be on the 29th day of March, 1888. (King v. Thomas, (Mont.) 12 Pac. 867; Redfield
v. Parks, 132 U. S. 241, 10 Sup. Ct. 83.)
Was the plaintiff's cause of action barred in two years after the issuance of the patent, or
does it require five years' adverse possession, as provided by section 3635, which reads: In
every action for the recovery of real property, or the possession thereof, the person
establishing a legal title to the premises, shall be presumed to have been possessed thereof
within the time prescribed by law; and the occupation of such premises by any other person
shall be deemed to have been under, and in subordination to, the legal title, unless it appears
that such premises have been held and possessed adversely to such legal title for five years
before the commencement of such action.
I think the section last quoted should govern this case, for the reason that the issuance of
the patent to the plaintiff gave new rights. The patentee then had a right superior to any
theretofore owned or held by it, viz., the absolute owner in fee simplethe highest and best
title known to a court of law.
In passing upon the statute of limitation, the court is in duty bound to take into
consideration the nature and character of the property, and the title by which the same is held,
upon which the statute is intended to act. Such being the case, it is a well-known fact that,
prior to 1866, no title to mineral lands could be acquired. The rights the miners had were
those of occupancy and possession so long as they conformed to the rules, regulations,
and customs of the miners within the district where the claims were situated.
were those of occupancy and possession so long as they conformed to the rules, regulations,
and customs of the miners within the district where the claims were situated. This right of
occupancy was recognized and permitted by the United States, and the rules and regulations
of the miners were recognized and enforced by the courts of the mining states and territories.
(Gore v. McBrayer, 18 Cal. 588; Coleman v. Clements, 23 Cal. 248.)
Under this condition of affairs, section 4 of the statute of limitations was enacted in the
month of November, 1861. The object of this statute was to prevent the occupation of large
tracts of mineral land without any title but that of the right of possession, and without
working the same for an unreasonable length of time.
The intention of the legislature is the leading, and in fact the only, object to be inquired
into by a court in construing legislative enactments; and it must be conceded that the first and
most direct means in arriving at that intention is in the application and meaning of the
language used. Therefore, when the legislature used the words, seized or possessed of such
mining claim, or were the owners thereof, according to the laws and customs of the district
embracing the same. * * * Occupation and adverse possession of a mining claim shall consist
in holding and working the same, in the usual and customary mode of holding and working
similar claims in the vicinity thereofthey wished to be understood as meaning that the act
was to apply to claims held by location and possession only, and he who could not show a
higher title than that of a possessory right could not maintain his action against one who had
entered therein and held adversely for two years.
If the purchasing of the land from the government gives no greater rights or privileges to
the holder of the patent than he would have under his possessory right, then it is a useless
waste of time and money in applying for a patent. That this is not the case, and that he who
has made his application for a patent, and paid the purchase price for the land, is entitled to
greater privileges, is shown by the rulings of the commissioner of the general land office, and
the decisions of the United States and state courts, in this: A party holding by possession is
required to perform the annual labor or make improvements each year, but, the moment he
receives the receipt showing that he has paid for the land, he is not required to do the
work, nor make the improvements, pending the decision on his application and the
issuance of the patent.
make improvements each year, but, the moment he receives the receipt showing that he has
paid for the land, he is not required to do the work, nor make the improvements, pending the
decision on his application and the issuance of the patent. (Aurora Hill Con. Min. Co. v.
Eighty-Five Min. Co., 12 Sawy. 359, 34 Fed. 515; Deno v. Griffin, 20 Nev. 250, 20 Pac. 308;
Benson Mining Co. v. Alta Mining Co., 145 U. S. 430, 12 Sup. Ct. 877.)
Nor is the patentee required to perform labor or make improvements on his claim after he
receives his patent. The legislature of Montana enacted a law barring the right of recovery of
a mining claim where the owner had not been in possession within one year before the
commencement of the action. Congress extended the time for the doing of the assessment
work. The locator had not been in the possession of his claim for over eighteen months, and
others relocated the claim. In passing upon the validity of this statute, Chief Justice Waite
said: Under the act of congress, as has just been seen, the original locators, or their grantees,
had what was equivalent to a grant by the United States of the right to the exclusive
possession and enjoyment of the property until January 1st. The Montana statute, if in any
respect it is repugnant to this, was repealed to the extent of such repugnancy by the act of
congress. As between possessors having no other title than such as is derived from mere
occupancy, an action would undoubtedly be barred by the Montana statute. (Belk v.
Meagher, 104 U. S. 286.)
As hereinbefore stated, prior to 1866 the government title to mineral lands could not be
obtained. By the statute of July 26, 1866, any person or association of persons claiming a vein
or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, or copper, having
previously occupied and improved the same according to the local rules and customs of the
miners in the district where the same was situated, and having expended, in labor and
improvements, an amount of not less than $1,000, and in regard to whose possession there is
no controversy or opposing claim, was permitted to file his application for a patent, and the
diagram filed with the application for patent should be so extended, laterally or otherwise, as
to conform to the local laws, customs and rules of miners. But, under that act, no plat or
survey or description should in any case cover more than one vein or lode, and no patent
should issue for more than one vein or lode, which should be expressed in the patent.
tion should in any case cover more than one vein or lode, and no patent should issue for more
than one vein or lode, which should be expressed in the patent. No location thereafter made
should exceed 200 feet along the vein or lode for each location, with an additional claim for
discovery, together with a reasonable quantity of surface ground for the convenient working
of the same. Under the law of 1866, the vein, lode, or ledge was the only thing that could be
located; the surface ground was not subject to location. Parties discovering a vein or lode
were entitled to locate 200 feet for discovery. They could follow that ledge in any direction it
might turn, but the only claim they had to the surface adjoining was the privilege of using it
for convenient working of their ledge. Another party discovering a vein, lode, or ledge
running parallel with the original location, and within ten feet of it, being a separate ledge,
could locate and hold the same, and procure a patent for it, notwithstanding its close
proximity to the original location.
By the act of congress of 1872 the entire system of locating and holding mining claims
was changed. One or more persons can locate 1,500 feet in length, and not to exceed 600 feet
in width; and not only are the veins, lodes, and ledges offered for sale, but also the land in
which they are found. And, under the act, a patent will not be issued for the vein, lode, or
ledge alone. The application must embrace the quantity of surface ground, as allowed by the
act, or the local rules of the district; and, when the patent issues, it vests in the patentee the
title in fee simple, not only to all the surface ground embraced within the calls of the patent,
but also all veins, lodes, and ledges, the top or apex of which lies inside of the surface
boundaries of such location.
I think that, under the act of 1872, new and greater privileges were granted to the locator,
and, when he has connected himself with the government title, his rights assume the
character, and his property is to be governed by the rule as provided for in sections 3634 and
3635. Congress has made the possession of public land, which is valuable for mineral,
separate and distinct from the fee; and, in recognizing the possessory rights of miners while
the paramount title remained in the government, by section 9 of the act of February 27, 1865
(Rev. Stats., sec. 910), it was enacted that no possessory action between individuals in the
courts of the United States for the recovery of mining titles should be affected by the fact
that the paramount title to the land was in the United States, but that each case should be
adjudged by the law of possession."
possessory action between individuals in the courts of the United States for the recovery of
mining titles should be affected by the fact that the paramount title to the land was in the
United States, but that each case should be adjudged by the law of possession.
And it seems to me that the legislature took the same view by the acts of 1867 and 1869;
and when the language, or were the owners thereof, according to the laws and customs of the
district embracing the same, in the first paragraph, and provided further, that when the
terms legal title' or title' are used, they shall be held to include title acquired by location or
occupation, according to the usages, laws and customs of the district embracing the claim, in
the closing paragraph of section 3632, was used, it wished to be understood that the act
should apply to ownership or title acquired by location and possession only, and not to the
title in fee acquired from the government. The land department of the United States, in
speaking of the ownership of land, uses the term, owner by right of possession, or title by
possession; but, after the title has passed from the government, it is then spoken of as the fee
being in the patentee. The government has said to the miner: You may occupy and possess
the mineral lands of the United States. You may extract the ores and minerals therefrom. Yes,
you may sell, and give a good and valid title thereto. But you cannot assert this right as
against the government, who is the owner of the paramount title, and has reserved unto itself
the right to extend, limit, or abolish this right of possession at any time. And, when the
government issued its patent to the plaintiff, it gave the plaintiff a title in fee, which, having
been fixed by the rules of property, which are a part of the general law of the state, cannot be
divested by a section of such law which was enacted merely to regulate neighborhood
customs or regulations, which were and are intended to apply to the possessory rights of
individuals only, and not to the title derived from the government. When, as in this case, the
language used in sections 3632 and 3664 are supposed to conflict with the language and
leading design as expressed in several other sections of the same act, can there be a better or
safer rule than to place that construction upon them which will reconcile and harmonize, with
the nature of the title to the property, the evident intention of the lawmakers, and, to my
mind, what is equitable and just?
the property, the evident intention of the lawmakers, and, to my mind, what is equitable and
just? It frequently becomes the duty of the court, in giving effect to statutes, to restrain,
enlarge, or qualify the ordinary and literal meaning of the words used. (Sedg. St. & Const.
Law, 199, 209.)
For the reasons above given, I dissent from the views expressed by my associates in
relation to the construction that should be placed upon the statute of limitations, and I think
the judgment sustaining the demurrer should be in all things affirmed.
____________
22 Nev. 71, 71 (1894) State v. Commissioners Lander County
[No. 1391.]
THE STATE OF NEVADA, ex rel. HUMBOLDT COUNTY, Plaintiff and Relator, v. J. A.
BLOSSOM, LEOPOLD STEINER and ROBERT HOGAN, as the Board of County
Commissioners of Lander County, Defendant and Respondent.
(Syllabus by Bigelow, J.)
1MandamusRemedy to Compel Board of County Commissioners to Allow Claim Based on
Judgment.Where a board of commissioners of a county, without legal justification, refuse to allow a
claim based upon a judgment regularly obtained against the county, mandamus is the proper remedy.
2CountyJudgment Against, Same as Audited Claim Against.The rendition of a judgment against a county
is an auditing of the claim within the meaning of the statute, and it becomes the duty of the
commissioners to allow it as an audited claim, unless some sufficient defense exists to the judgment. It
makes no difference in this rule whether in the action in which the judgment was obtained the county was
plaintiff or defendant.
3CostsRegularly Entered Become Part of Judgment, and not Subject to Collateral Attack.When regularly
entered up in a judgment the costs of the action become a part of the judgment, and their amount and
justice are not subject to collateral attack.
4MandamusWhen Lies as to Judgment and Discretion of Officer, Discussed (19 Nev. 89,
followed).The rule that mandamus does not lie to control the judgment and discretion of an officer
only applies to the act to be commanded, and not to preliminary matters. (State v. Murphy, 19 Nev. 89,
followed). All the questions arising in this case, such as whether there is a judgment, and whether any
defense by the county exists thereto, are merely preliminary questions concerning which the court will
review the decision of the board. Suggested, also, that the true criterion in such cases is whether it was
intended that the action of the officer should be final, and if not, whether there is any other plain, speedy
and adequate remedy.
5JudgmentFinality of.Where a party has treated a judgment as final by appealing from it to the supreme
court, which appeal has been entertained and decided upon its merits, he cannot afterwards claim that no
final judgment has been entered in the case.
6CostsMotion to Re-Tax, Undecided.The fact that a motion to re-tax costs has never been decided does
not stay the execution of the judgment nor destroy its conclusiveness as to the amount and legality of the
costs.
Original proceeding. Application for writ of mandate.
Argued orally.
M. S. Bonnifield, for Relator:
(No brief on file.)
D. S. Truman, for Respondent:
The board, in the allowance or rejection of all claims, act in a judicial capacity, except
where the law governing their action has made their duty a ministerial one. (41 Cal. 68; 20
Cal. 72; 55 Cal. 375; Gen. Stats., sec. 1941-1950.)
And the board, from the proceedings shown in the return, held that the amount claimed
was still an unaudited claim, and that it was subject to such defenses as arose subsequent to
its rendition and entry.
The first time under the statute of this state when the duty to allow a claim or demand
against the county becomes a ministerial act, is pointed out in section 1964, Gen. Stats.
Relator's petition fails to show that its claim is in this condition.
This section also furnishes a plain, speedy and adequate remedy in the ordinary course of
law regarding the enforcement of every demand against a county. (41 Cal. supra; 20 Cal.
supra; 9 Nev. 557; 12 Nev. 105; 14 Nev. 336; 68 Mo. 22; 10 Neb. 361.)
The office of the writ is to compel action, not to correct error. (4 Nev. 119; 8 Nev. 309; 22
Cal. 35.)
The board having acted on this claim and rejected the same, mandamus is not the proper
remedy. (16 Nev. 217; 6 Tex. 457.)
In order to sustain relator's contention and this proceeding, this court must take, to my
mind, the incorrect stand that there can be no defense to a judgment rendered against a
county arising subsequent to the rendition of such judgment.
that there can be no defense to a judgment rendered against a county arising subsequent to the
rendition of such judgment. If such be the law affecting a county, then it is contrary to the law
affecting individuals under like circumstances, and places a county at a truly peculiar
disadvantage in transacting its business. I call attention to the defenses that are allowed to
judgments, among which are: Want of jurisdiction, fraud, payment, the statute of limitation,
counterclaim, set-off, and the like.
In section 372, 2 Black on Judg., it is said: And in others, by the abolition of the
distinction between law and equity, precisely the same result has been brought about, the
courts hearing any defense available to the defendant, whether legal or equitable in their
character. (U. S. ex rel. Redfield v. Windom, 137 U. S. 656; 128 U. S. 40.) In this case the
court says: The court will not interfere by mandamus with the executive officers of the
government in the exercise of their ordinary official duties, even where those duties require
an interpretation of the law, the court having no appellate power for that purpose.
The examination of all the questions of law and fact upon which the validity of a claim
depends is what is meant by the statute when it speaks of auditing claims. (14 Nev. 138.)
In 51 N. W. Rep. 969, was a case where the county claimed a set-off, and it is held that
mandamus was not the proper remedy to determine that question.
The case of Dempsey v. Township of Oswego, 51 Fed. 97, is a case where the defense of
the statute of limitations was sustained and applied as I claim it ought to be done here.
In 28 Pac. Rep. 18, is another where the same defense was applied to county warrants after
issuance.
It will be distinctly understood that I now simply am claiming that the power exists in a
board to make such a defense to a judgment regardless of the question whether it determines
the question correctly or incorrectly within its power, and that it is a question of no moment
here, for the instant it is determined that the power exists in the board to determine the
question it inevitably follows, as the law and a logical sequence, that the proceeding must be
dismissed because relator's petition shows that the board has already acted. (Freeman on
Judg., 3 ed., sec. 29; 2 Black on Judg., sec.
sec. 617; 22 Cal. 468; Naefie v. Naefie, 7 John Ch. 1; 32 Cal. 211).
It therefore being the law that a defense arising subsequent to the rendition of a judgment
can be set up, I see no good reason why in determining such defense or its absence the board
in this case did not stand in position to determine it, and if it be conceded that it had such
right the above authorities which hold that mandamus will not be issued to compel an inferior
tribunal to render any particular decision stand in full authority here.
The method or reasoning used by the board is not then subject to review by mandamus
proceedings.
The only time the statutes say a board has only ministerial functions to perform and allow
the judgment is after the proceedings contemplated by section 1964, after a board has rejected
a claim. To now compel an allowance of this kind, or demand, would be directly in the face
of section 1967. But if the course laid down in section 1964 is pursued, and the judgment is
obtained on the suit therein provided for, the defenses set up are extinguished, and they and
the claim are merged in the judgment and the claim then for the first time assumes a different
form, and the allowance of such judgment does not render useless and senseless section 1967.
A county has a right to a day in court which cannot be extinguished to a defense arising
subsequent to the rendition of a judgment, and my contention is that the judgment on which
this proceeding is based is not in proper condition, nor has the proper legal status been
obtained to warrant the issuance of a writ to enforce its allowance. (55 Cal. 483.)
As is said in Peo. v. Brooklyn, 1 Wend. 318: There must be a right therefor without any
other adequate remedy or a mandamus does not issue, and I am of the opinion that the right
must be complete and not inchoate.
On such defenses they act originally for the first time on the presentation of the judgment
for allowance or rejection.
Counties are governed by the same rules of practice as individuals, unless the contrary be
provided by statute, and there is only one exception, and that is that on an appeal no
undertaking need be filed. (Clarke v. Lyon Co., 8 Nev. 181-196.)
This matter wholly fails to come within the rule enunciated in 2 Nev. 34-40.
A judgment upon a claim which is disputed is, at the most, only an auditing of that claim.
(34 Cal. 291.) But it will be remembered that the costs here have never as yet been passed
upon to determine the correct amount.
The cost bill shows on its face that it contains improper and illegal charges, and brings the
case directly, in my opinion, under the rule on which the case, 2 Brad. 166, Id., was
determined and the mandamus denied.
The second position taken by respondent is that mandamus will not lie to compel the
enforcement of a void judgment, and that the judgment of the district court of Elko county,
under the statutes of Nevada and the law, is a void judgment.
A judgment is defined by statute to be a final determination of the rights of the parties in
an action or proceeding. (Gen. Stats. 3169.) And the statute says costs shall be allowed, of
course, to the defendant upon a judgment in his favor in the actions mentioned in section
475. (Gen. Stats., 3499.)
Again, the judgment is void because it is not such a judgment as the court was authorized
to render or enter. (1 Bl. on Judg., sec. 242-248; 109 U. S. 258; 57 Ala. 628; 99 Mass. 267;
43 Mo. 502; 82 Va. 232; 83 Va. 338.)
Under the practice act there is no such thing as an interlocutory judgment in a suit on the
law side of the court for costs.
See authorities cited supra, and this being the only judgment ordered, rendered or entered,
the same is an absolute nullity, as is said by Black on Judg., sec. 695, an interlocutory order
is not a judgment; it is not a judgment at all.
By the Court, Bigelow, J.:
In an action brought by Lander county against Humboldt county in the district court of
Elko county, judgment was entered in favor of the defendant for costs. Upon appeal to this
court by Lander county this judgment was affirmed. Humboldt county then presented to the
defendants, as the board of commissioners of Lander county, a claim for the costs as entered
up in the judgment in the former action, which they rejected. This proceeding is brought to
compel them to approve the same as a legal claim against Lander county.
them to approve the same as a legal claim against Lander county.
No execution can issue in this state against the property of a county, and it follows that if
the relator is not entitled to the writ of mandamus to compel the defendants to allow the
claim, there is no way by which it can enforce its judgment. Under such circumstances
mandamus is the remedy usually resorted to and allowed. (Merrill on Mandamus, sec. 30; 2
Dillon, Mun. Corp., Sec. 850.)
Counsel for defendants contends that the writ should not issue in this case, for the reason
that the claim has never been audited by the board of commissioners, or rejected by them, and
a judgment thereafter obtained upon it; that it is only after a claim has been presented to the
commissioners and rejected by them, and then a judgment obtained upon it, as contemplated
by Gen. Stats., sec. 1964, that a peremptory writ of mandamus can issue to compel the board
to allow the claim. Before this can be done, as he contends, this judgment must be presented
as an ordinary claim against the county, and upon being rejected another action brought upon
it, in which the county will be a defendant, and another judgment obtained thereon.
We are, however, of the opinion that the ascertainment by the judgment of a court having
jurisdiction of the case that a certain sum is due from the county, is an auditing of it within
the meaning of the statute, and that when so audited it becomes the duty of the commissioners
of the county to allow it as such (Alden v. Alameda County, 43 Cal. 270; Merrill on
Mandamus, sec. 130), unless some sufficient defense exists thereto, such as fraud in obtaining
it, the statute of limitations, a set-off, etc.
When regularly entered up in judgment, the costs become as much a part of the judgment
as anything else contained therein, and their amount and justice are no more subject to
collateral attack. It follows that if a second action were permissible, and were brought upon
this judgment, the plaintiff would certainly be entitled to a second judgment, unless some
defense, such as those suggested, existed thereto. The claim was not rejected upon such
grounds, nor does it appear that any sufficient defense to the judgment exists, and
consequently a ruling that another action is necessary would simply subject Lander county to
the additional costs thereby entailed.
simply subject Lander county to the additional costs thereby entailed. Such a proceeding
would be worse than useless, and in our judgment is entirely unnecessary. It is the fact that
the county's liability has become fixed and settled, and is no longer open to controversy, that
makes it the absolute duty of the defendants to allow the claim, and it is equally as fixed
where the claim is made upon a judgment upon which the county was plaintiff, as it would be
were it a defendant therein. A judgment so obtained would be open to the same defenses that
this one is, and no more nor less. The duty to allow such a claim as this exists independently
of Gen. Stats., sec. 1964, and consequently is not confined to the circumstances therein
mentioned.
2. It is said, however, that the determination of whether any defense to the judgment exists
involves the exercise of judgment and discretion upon the part of the board; that it
consequently becomes a judicial question, and that the writ of mandamus will not issue to
control the judgment and discretion of the board. In a certain sense this is true, and it is
doubtless difficult to draw a line between ministerial duties, the exercise of which will be
controlled by the writ, and those involving the exercise of judgment and discretion, which
will not. Considerable loose language has been used in the decision, and they are, perhaps, to
some degree in conflict, but it is nevertheless very clear that the fact that the act involves to
some extent the determination of disputed questions of either law or fact, and consequently
the exercise of judgment and discretion, does not prevent the court from taking jurisdiction
nor from compelling the officer to act in a particular way, for otherwise there would be very
few cases indeed in which the writ could ever issue.
This point, as it arises here, has, however, been so well considered in the recent case of the
State v. Murphy, 19 Nev. 89, that it is unnecessary to more than briefly refer to that decision.
It was there held that, while the writ will not issue to control discretion, or to revise judicial
action, this rule applies only to the act to be commanded by the writ, and not to the
determination of purely preliminary questions. That principle is decisive here. All the
questions concerning which the board could possibly exercise any judgment or discretion,
such as whether the claim is based upon a valid judgment, and whether any defense exists
thereto, are merely preliminary ones to the main question of whether it is their duty to
allow the claim.
and whether any defense exists thereto, are merely preliminary ones to the main question of
whether it is their duty to allow the claim. If no such question exists, or if it is determined
against the board, then we see at once that it becomes their mere ministerial duty to approve
the claim; and if such were alleged, it would, under that decision, devolve upon us to pass
upon it, and if we concluded it untenable, the writ should issue, no matter what the
conclusion of the board may have been.
What seems also another sufficient answer to this contention is stated in the case of Woods
v. Strother, 76 Cal. 545, where it is held in one of Mr. Commissioner Hayes' most luminous
opinions, that the true criterion is not whether the act sought to be controlled by the writ calls
for the exercise of judgment and discretion in the officer, but whether it was intended that this
decision should be final, and if not, whether there is any other plain, speedy and adequate
remedy. Here no one will contend that it was intended that the rejection of the relator's claim
should finally conclude its right to recover thereon, nor is there any other speedy and
adequate remedy. Having obtained a judgment which finally determines in the affirmative the
relator's right to recover its costs, the only adequate remedy is one that will give it the fruit of
that successful litigation, which only the writ of mandamus will do.
4. Gen. Stats., sec. 1995, requiring claims against a county to be presented within six
months of the time they become due or payable, by its terms only applies to unaudited claims,
and if we are right in the conclusion to which we have come that a claim upon a judgment
duly rendered is an audited claim, then this section has no application.
5. It is next argued that it was not the duty of the board to allow this claim, for the reason
that no sufficient judgment has ever been entered in the case in which the claim is made. In
that the judgment is simply for costs, and in no wise determines the questions that were at
issue in the action, and consequently is not a final judgment. We regard this as one of the
preliminary questions that the board had the right to pass upon in the first instance, but in
which the correctness of their conclusion is subject to review by this court. It would seem that
under the decisions the judgment is insufficient {1 Freeman on Judg., sec. 16; 1 Black on
Judg., sec.
is insufficient (1 Freeman on Judg., sec. 16; 1 Black on Judg., sec. 31), but we are of the
opinion that the defendants are not in a position to take advantage of the defect. Lander
county treated it as a final judgment when it appealed from it to this court, and we entertained
the appeal and decided the case upon its merits. Having treated the entry as a judgment
decisive of the merits of the case, and having taken and received the benefit of a remedy
which it was otherwise not entitled to, we think that Lander county, and consequently the
defendants, as its representatives, should now be estopped to claim that no final judgment has
been entered in the action.
In Bigelow on Estoppel, page 601, the author says: It may accordingly be laid down as a
broad proposition that one who has taken a particular position in the course of a litigation
must, while that position remains unretracted, act consistently with it.
The People v. The Albany & Sus. R. R. Co., 39 How. Pr. 51, and Irwin v. Nuckols, 3 Neb.
441, read in connection with Nuckols v. Irwin, 2 Id. 60, are quite in point. See, also, 1 Herr.
Est. & Res. Jud., sec. 285.
In Clark v. Dunnam, 46 Cal. 204, the court said: The only point to be decided under the
agreed statement is whether the decree of August 20, 1869, is a final money judgment in the
sense of the statute, and, therefore bore interest. The plaintiff in this action treated the decree
as final when he prosecuted an appeal from it. If it was not final his appeal should have been
dismissed on that ground. But we entertained the appeal and decided the cause, and, in
justice, the plaintiff should now be estopped to deny the finality of the decree.
6. After the filing of the cost bill the plaintiff, Lander county, made a motion to re-tax the
costs. This motion has never been heard or disposed of, and it is urged that for this reason the
judgment is not conclusive of the amount and correctness of the costs therein entered. Any
error in the cost bill should have been corrected in that action. We regard the judgment as
conclusive in this proceeding that the costs therein entered were properly charged. A simple
motion to re-tax would not stay the execution or enforcement of the judgment, nor destroy its
conclusiveness, and, therefore, whether now pending or not, it is immaterial in this
proceeding.
fore, whether now pending or not, it is immaterial in this proceeding.
Let the writ issue.
____________
22 Nev. 80, 80 (1894) State v. Commissioners White Pine County
[No. 1395.]
THE STATE OF NEVADA, ex rel. WILLIAM HAYES, Relator, v. W. C. GALLAGHER,
ABE TRAVIS and L. S. SCOTT, County Commissioners of
White Pine County, State of Nevada, Respondents.
1Record on Certiorari Concerning Action of Boards of County Commissioners.On certiorari against a
board of county commissioners a motion by respondent to file and make a part of the record papers not
embraced in the record or proceedings of the Board, should be denied.
2Right of Taxpayer to Oppose Claim.Any resident taxpayer has the right to oppose, in a proper manner, the
allowance of a claim against a county, both before the board of commissioners and in the courts. (Stats.
1893, 121.)
3Jurisdiction to Allow Claims Against County.Under Stats. 1893, 121, providing that any taxpayer may file
with the board written objections to the allowance of a claim against the county, and that the board shall
thereupon table such claim for at least ten days, after which they may consider the claim unless
proceedings have been instituted in court to determine its validity, such board has no jurisdiction to act
thereon after such objections have been filed and proceedings instituted in court to determine its validity
and they have been notified thereof.
Original proceeding on application for writ of certiorari.
The facts appear in the opinion.
Thomas Wren and F. X. Murphy, for Relator:
The relator asks that the order of the board directing the county auditor to issue a
certificate to Davis be annulled and set aside upon the following grounds:
1. That the orders calling for special meetings did not sufficiently specify the business to
be transacted.
2. That the protest of relator against the allowance of the petition and claim of Davis
divested the board of jurisdiction to act for not less than ten days, and the commencement of
the action to determine the validity of the claim divested the board of jurisdiction to act until
the validity of the claim and petition were settled in court.
3. That the board failed to order each item, date and value comprising the petition and
claim of Davis with reference to the law by title.
comprising the petition and claim of Davis with reference to the law by title.
4. The act of the legislature directing the board to order the issuance of the certificate to
Davis is unconstitutional. (Stats. 1893, p. 23.)
Upon the return to this writ the court only inquires whether the board has exceeded its
jurisdiction or not. (Maynard v. Bailey, 2 Nev. 313.)
A board of county commissioners is a body possessing limited and special powers. When the
authority of a board is questioned the record must affirmatively show all the facts necessary
to give it authority to perform the act, and when this is not shown by the record the
presumption is against its jurisdiction. (Godchaux v. Carpenter, 19 Nev. 415; Swift v. Co.
Comrs., 6 Nev. 97; State v. Co. Comrs., 12 Nev. 19.)
An order calling a special meeting must specify the business to be performed at the
meeting, and no other business can be transacted. (Gen. Stats., sec. 1945.)
At the special meeting on the 4th the Davis claim came on to be heard, and relator duly
protested against it and it was laid on the table until the 16th. On the 14th day of December
relator commenced action against Davis and the board to determine the validity; and
thereafter and prior to the special meeting on the 16th Davis and the commissioners were
served with summons in said action, and at the meeting on the 16th the board was again
notified that such action had been commenced.
The commencement of the action deprived the board of jurisdiction of the claim and
invested it in the courts. All orders made after suit commenced were invalid. (Stats. 1893; p.
121.)
The act for the relief of Davis is unconstitutional, and all orders of the board in pursuance
of it are invalid. (State v. Co. Comrs., 7 Nev. 83; Williams v. Bidleman, 7 Nev. 68; Stats.
1893, p. 23.)
Any citizen and taxpayer may contest an allowance. (Gen. Stats., sec. 1962.)
The claim is barred by the statute. (Gen. Stats., sec. 1965.)
Rives & Judge, for Respondents:
This transaction is not county business in the sense that that term is used in the
constitution.
that that term is used in the constitution. Neither section 1950, Gen. Stats., nor the
amendment contained on p. 121, Stats. 1893, were intended to apply to anything but claims
or demands against a county, such as creditors' bills, officers' and employes' and
contractors' accounts, charges and bills; and the legislature did not intend that the provisions
of either should apply to such transaction as the one involved here. It especially never
intended that the latter part of the amendment of 1893, supra, should apply in such an
instance as the latter so as to suspend the powers of the board and thus in some instances
work irreparable injury. As to definition of claim, see 5 Nev. 15.
The law involved is admitted to be local, still it affects all citizens or people and classes (if
any classes there be) interested not only generally, but equally and justly.
It is also admitted that this law is special, but both local and special have been
frequently upheld in this State. (Berling v. Goodman, 1 Nev. 314; Ash v. Parkinson, 5 Nev.
15; State, ex rel. Clarke, v. Irwin, 5 Nev. 111; Hooten v. McKinney, 5 Nev. 194; Hess v.
Pegg, 7 Nev. 23; Evans v. Job, 8 Nev. 322; Young v. Hall, 9 Nev. 212; Ex parte Spinner, 10
Nev. 323; State v. Fogus, 19 Nev. 247.)
It is no argument against the local special' law that a general one might be found to cover
it. This is expressly decided in 8 Nev. 322, et seq., and in 7 Nev. 23, 5 Nev. 122.
Statutes will not be declared unconstitutional unless clearly so. (8 Cranch, 87, 128, 188; 30
Iowa, 9; 62 Penn. 81, 286; 3 Denio, 87, 394; 7 N. Y. 109; 20 Wend. 382; 19 Barb. 81, 84,
88.)
By the Court, Murphy, C. J.:
This is an original proceeding on certiorari in this court. The affidavit sets forth, among
other things: That the relator was, and has been for more than ten years, a resident and
taxpayer within the county of White Pine. That since the first Monday of January, 1893, the
respondents were, and are, the duly elected, qualified and acting board of county
commissioners in and for the county of White Pine. That on or about the 13th day of May,
1875, the then board of county commissioners allowed a claim of one M. W. Henry for the
sum of $3,421.35. That on the same day the county auditor audited said claim, and issued a
certificate of indebtedness against said county for the amount, and delivered the said
certificate to M. W. Henry.
auditor audited said claim, and issued a certificate of indebtedness against said county for the
amount, and delivered the said certificate to M. W. Henry. That on or about the 7th day of
November, 1883, the relator, for a valuable consideration, became the owner and holder of
said certificate of indebtedness, and is now the legal owner thereof. That the relator has been
informed and believes that the said certificate has been lost or destroyed. That on the 4th day
of December 1893, one W. L. Davis filed a claim and demand with the board of county
commissioners, claiming to be the owner of said certificate of indebtedness, and alleging that
said certificate had been lost, and demanding that the board of county commissioners make
an order authorizing, commanding and directing the auditor of said county to issue to the said
Davis a certificate of indebtedness in lieu of the one alleged to have been lost or destroyed.
That the relator appeared before the board, and objected to the issuance of the certificate to
the said W. L. Davis, which objections were reduced to writing, and filed with the
proceedings of the board; and the board of county commissioners adjourned its said meeting
from the 4th until the 16th day of December, 1893.
On the 14th day of December, 1893, the relator commenced an action in the district court
of the State of Nevada, in and for the county of White Pine, against the said W. L. Davis and
the board of county commissioners, to determine the validity and ownership of said certificate
of indebtedness. That on the 16th day of December, 1893, the board met in special session,
and notwithstanding the filing of the objections to the making of any order by the board, and
the commencement of the said action in the district court, the said board made and had
entered an order on its proceedings authorizing and directing the county auditor to issue a
new certificate of indebtedness to W. L. Davis in lieu of the one alleged to have been lost or
destroyed, and the said certificate has been issued to the said W. L. Davis by the said county
auditor. The relator contends that the board of county commissioners had no jurisdiction to
make the order entered upon its minutes on the 16th day of December, 1893.
The record of the proceedings of the board of county commissioners sent up to this court
by way of return to the writ substantiates the above facts, except as to the ownership of
the certificate of indebtedness; but on the argument of the case the counsel for
respondents asked permission to file a paper, and make it a part of the record in the case,
which he claims is an agreement entered into by and between the relator and W. L. Davis,
in which he claims it is shown that the relator hypothecated to Davis the certificate of
indebtedness as security for the payment of money.
substantiates the above facts, except as to the ownership of the certificate of indebtedness; but
on the argument of the case the counsel for respondents asked permission to file a paper, and
make it a part of the record in the case, which he claims is an agreement entered into by and
between the relator and W. L. Davis, in which he claims it is shown that the relator
hypothecated to Davis the certificate of indebtedness as security for the payment of money.
The affidavit and agreement were not presented to, nor made a part of the proceedings of, the
board; and this court cannot receive and examine papers in a proceeding of this nature, which
are neither a part of the record nor of the proceedings of the board. The request to file the
papers and make them a part of the record must be denied.
On the 16th day of November, 1893, two of the members of the board of county
commissioners met in the clerk's office, and signed an order calling a special meeting of the
board to meet on the 4th day of December, 1893. The notice was served on the absent
members, and a copy thereof published in the White Pine News, a newspaper printed and
published at the county seat of White Pine county. On the 4th day of December, 1893, the
board met at the office of its clerk, all members being present. W. L. Davis, in person and by
his attorney, was present, and filed a petition asking that a certificate of indebtedness against
White Pine county for the sum of $3,421.35 be issued to him, the said Davis, in lieu of the
one that had been lost or destroyed. The relator, William Hayes, in person and by attorney,
was also there, and objected to the board making any order or considering said petition, and
asked the board to lay the claim or demand of W. L. Davis on the table for ten days or more,
to give the relator an opportunity to institute proceedings in a court of competent jurisdiction
to determine the validity of such claim or demand of the said Davis. The board did adjourn
until the 16th day of December, 1893. Such adjournment appears to have been taken under
the provisions of an act of the legislature of 1893 (Stats. 1893, p. 121) amending sections 16
and 22 of the act of March 8, 1865, creating a board of county commissioners in the several
counties of this state and defining their duties.
Stats. 1865, p. 257, sec. 22, as amended, reads as follows: "Any person being a resident
and taxpayer of the county may appear before and file with the board of county
commissioners of the county wherein he resides written objections to the allowance of
any claim or claims, demand or demands against the county.
Any person being a resident and taxpayer of the county may appear before and file with the
board of county commissioners of the county wherein he resides written objections to the
allowance of any claim or claims, demand or demands against the county. Such objection in
writing shall properly describe the claims or demands objected to, and the board of county
commissioners shall file the same and embody such objections in the record of their
proceedings, and lay such claims or demands on the table for a definite period of time, not
less than ten days, at the expiration of which time they may proceed to consider the claims or
demands so objected to, together with the objections, unless proceedings have been instituted
in a court of competent jurisdiction to determine the validity of such claims or demands.
On the 14th day of December, 1893, the relator, William Hayes, did commence an action
in the district court in White Pine county, by the filing of a complaint and the issuance of a
summons thereon, against the said W. L. Davis, and each member of the board was made a
party defendant; and the said summons was served on the said Davis and each member of the
board on the 15th day of December, 1893. On the 16th day of December, 1893, the board of
commissioners met pursuant to the order of adjournment made on the 4th; and
notwithstanding the filing of the objections, and the commencement of the action in court, by
the relator, the board of commissioners proceeded to consider and allow, and did order, the
auditor of White Pine county to draw his warrant against the general fund in the county
treasury for the sum of $3,421.35, in favor of W. L. Davis.
Under the statute referred to, it was their bounden duty to have stayed further action until
the question of ownership of the certificate of indebtedness should have been determined by
the district court. Although the constitution has provided that the legislature shall provide by
law for the election of a board of county commissioners in each county, it also provides that
such commissioners shall jointly and individually perform such duties as may be prescribed
by law. It is a tribunal with limited jurisdiction, and possessed only of quasi judicial powers,
and cannot proceed except in strict accordance with the mode provided by statute. It has no
right or authority to adopt any other mode than that provided for and pointed out by the
statute.
provided for and pointed out by the statute. It possesses no common law jurisdiction of
powers. The statute is its guide, and a strict adherence to it is essential. All the authorities are
to this effect, and there can be no safety in any other rule. If we were to hold that the board
could act on the claim or demand under consideration after the objections had been filed, and
suit commenced in the district court, it would defeat the object of the law; and the taxpayer
would have no protection whatever, as against the arbitrary action of the board. Leave, when
once given to go outside of the statute, and make rules and regulations to govern cases such
as the one under consideration, would be dangerous, not only to the letter but the spirit of the
law.
In reply to the argument of counsel for respondent, the board has no power to pass upon
the sufficiency of the pleadings. The moment objections were filed with the clerk to the
allowance of the claim or demand against the county, the board should have discontinued the
hearing of the subject matter, and the further consideration of the claim or demand must be
postponed for at least ten days. At the expiration of the ten days, it may proceed to act upon
the claim or demand, unless suit has been commenced; and if suit has been commenced, and
the board has been notified of that fact, it cannot proceed to act on the claim until the
judgment of the court is filed in its office. The statute is too plain to be misconstrued. The
board has no discretion in the matter, whatever. If the contention of the counsel was to
prevail, what would be the result? A taxpayer appears before it, and files his objections to the
board taking action on a claim or demand then under consideration, and asks that the matter
be postponed for ten days, to give him an opportunity to test the legality or ownership of the
claim or demand in a court of competent jurisdiction. The board adjourns for twelve days. At
the expiration of ten days a summons is issued out of the district court and served on the
commissioners, to which suit the members of the board are made parties defendant. After
hearing read the complaint, one of its members makes a motion, the tenor of which is, that the
action be disregarded because the complaint does not state facts sufficient to constitute a
cause of action against the defendants; and the motion prevails, and the board proceeds, and
acts on the claim or demand.
ceeds, and acts on the claim or demand. Thus, we have the anomaly of a board of county
commissioners passing upon the sufficiency of pleadings in a case to which it was a party
defendant. It was the duty of the board, when it met on the 16th day of December, 1893, to
have continued the further hearing of the matter then under consideration until the final
determination of the controversy by the court. There is no provision of the statute pointing out
any other course. Nor can we concede to the request of the counsel, and pass upon the
sufficiency of the complaint ourselves. That is the duty of the judge who presides over the
court in which the complaint if filed; and under our liberal form of practice, if the judge
before whom the case is to be tried is of the opinion that the complaint is insufficient, he can
and will allow it to be amended.
Of the right of an individual taxpayer to commence and maintain an action to determine
the legality or ownership of a claim or demand presented against the county, we do not
entertain the remotest doubt. Upon this subject the Supreme Court of the United States, in the
case of Crampton v. Zabriskie, 101 U. S. 609, said: Of the right of resident taxpayers to
invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of
the county, or the illegal creation of a debt, which they, in common with other property
holders of the county, may otherwise be compelled to pay, there is, at this day, no serious
question. The right has been recognized by the state courts in numerous cases; and from the
nature of the powers exercised by municipal corporations, the great danger of their abuse, and
the necessity of prompt action to prevent irremediable injury, it would seem eminently proper
for courts of equity to interfere, upon the application of the taxpayer of a county, to prevent
the consummation of a wrong, when the officers of those corporations assume, in excess of
their powers, to create burdens upon property holders.
For authorities on this subject, see Dill. Mun. Corp. (3d ed.) sec. 914, et seq.
Prior to the enactment of the statute of 1893, under and by virtue of section 1962, Gen.
Stats., any taxpayer of the county might appear before the board of county commissioners,
and oppose the allowance of any claim or demand against the county, but the act did not
stay the proceedings of the board.
county, but the act did not stay the proceedings of the board. It might entertain the objections,
or disregard them, as to it might seem fit. There was no appeal from its decision, and the
taxpayer was without a remedy, except by filing a bill in equity and asking for a restraining
order, which, in the majority of cases, on account of the absence of the judge from the county,
could not be done until after the mischief complained of had been consummated. The act of
1893 was passes with a view to remedy the defect in the law, and when objections are filed to
the allowance of a claim or demand the board must discontinue the further consideration of
the claim or demand for at least ten days. If at the end of ten days no suit has been
commenced, the board may proceed and pass upon the claim or demand; but if a suit has been
commenced the board is divested of all jurisdiction, and cannot act until the final
determination of the controversy by the court, for its duties are definitely prescribed by the
act, and it cannot exceed the powers therein conferred upon it.
It therefore follows that the board of county commissioners of White Pine county had no
jurisdiction over the subject matter on the 16th day of December, 1893; and the order made
and entered on its minutes on that day, authorizing and directing the auditor of White Pine
county to draw his warrant against the general fund in the county treasury, in favor of W. L.
Davis, for the sum of $3,421.35, was absolutely null and void, and must be set aside, and it is
so ordered.
____________
22 Nev. 88, 88 (1894) Prezeau v. Spooner
[No. 1394.]
G. PREZEAU, Respondent, v. M. E. SPOONER, Appellant.
DefaultJudgment bySufficiency of Notice in Summons to Warrant.Where the notice in a summons in an
action on a promissory note is that upon failure to answer the complaint plaintiff will take judgment * *
* according to the prayer of the complaint, and the prayer of the complaint is full and explicit, this is
sufficient to warrant the entering of defendant's default and a judgment thereon.
Error Not Affecting Substantial Right to be Disregarded.Where no substantial right of the appellant can
possibly be affected by an error occurring in the lower court, both law and common sense require courts
to disregard such error.
Appeal from the District Court, Ormsby county; Hon. Richard Rising, District Judge.
The facts are embodied in the opinion.
James R. Judge, for Appellant:
Section 3048, Gen. Stats. Nevada, says there shall be inserted in the summons a notice in
substance as follows: FirstIn an action arising on contract for the recovery only of money
or damages that the plaintiff will take judgment for a sum specified therein if the defendant
fail to answer the complaint. SecondIn other actions that if the defendant fail to answer the
complaint the plaintiff will apply to the court for the relief demanded therein.
A glance at the notice contained in the summons will show that it is not the notice
contemplated or required by the statute. And not having given the notice required by the
statute, respondent was not entitled to a judgment by default nor to have any judgment
rendered or entered in his favor by reason of the failure of appellant to enter his appearance
therein, the language of the statute clearly making it a condition precedent to the entry of any
judgment against defendant that such defendant shall be served with a summons containing a
notice of demand or relief sought against him, and until such a summons has been served no
binding or valid judgment can be rendered or entered against him. (Odell v. Campbell, 9 Or.
305; Lyman v. Melton, 44 Cal. 630; Ward v. Ward, 59 Cal. 139; Sweeney v. Schultes, 19 Nev.
53.)
Robert M. Clarke, for Respondent:
This record presents a single question, namely: Is a judgment of default, taken upon a
complaint, and summons served personally on the defendant, invalid, because the summons,
which correctly states the nature of the action and amount demanded in the complaint, does
not in the least part thereof, set out and specifically state the amount or sum for which the
judgment will be taken?
The statute of this state requires that there shall be inserted in the summons a notice in
substance as follows: FirstIn an action arising on contract for the recovery only of money
or damages that the plaintiff will take judgment for a sum specified therein if the defendant
fail to answer the complaint. (Gen. Laws, sec. 3048.)
The prayer of the complaint states the amount demanded by plaintiff, including interest.
The statute also provides that a copy of the complaint, certified by the clerk or the
plaintiff's attorney, shall be served with the summons (Gen. Laws, sec. 3050), and that the
court shall in every stage of an action disregard any error or defect in the pleadings or
proceedings which shall not affect the substantial rights of the parties; and no judgment shall
be reversed or affected by reason of such error or defect. (Gen. Laws, sec. 3093.)
That defendant had actual notice of the sum demanded there can be no doubt; the amount
is stated in the body of the complaint, in the prayer of the complaint and in the body of the
summons. The summons notifies defendant that if he fail to answer, judgment will be taken
against him, according to the prayer of the complaintthat is, for the sum named therein.
This reference to the prayer of the complaint makes it a part of the summons, and affords
defendant ample notice, were the summons otherwise insufficient. (Caldwood v. Brooks, 28
Cal. 153; King v. Blood, 41 Cal. 314; Behlow v. Shorb, 91 Cal. 314; Higley v. Pollock, 21
Nev. 198.)
The case of Behlow v. Shorb, supra, is directly in point, and decides this case.
The cases cited by appellant's counsel are not to the point. In Ward v. Ward, 59 Cal., the
summons followed the second subdivision of the statute. The notice given to defendant was
that plaintiff would apply to the court for relief, not that he would take judgment by default.
The same is true of Sweeney v. Schultes, 19 Nev.
The defendant had ample notice of the nature of the action and amount claimed, and was
notified that if he failed to answer judgment, by default, would be taken according to the
prayer of the complaint, which reduces the objection to a mere technicality, without
substantial merit and wholly immaterial.
It is the general rule now prevailing in the courts, that wherever and whenever substantial
justice is secured, a mere technical error, which is harmless in its character, and which has
worked no injury, will not be permitted to defeat or annul the final conclusion or
consummation of judicial proceedings."
annul the final conclusion or consummation of judicial proceedings. (Sweeney v. Schultes,
19 Nev. 58, 59.)
Appeal from a judgment by default.
The only point involved is the sufficiency of the summons, which was duly served upon
the defendant in the county where the action was pending, together with a copy of the
complaint. It was stated in the summons that the action was brought to obtain a judgment
against the defendant for the sum of $5,000, balance due upon a promissory note, describing
it, and $1,000 upon an unpaid check drawn by defendant; and this statement was followed by
the following notification: And you are hereby notified that if you fail to answer the
complaint the said plaintiff will take judgment against you according to the prayer of the
complaint. The prayer of the complaint was full and explicit. The objection is that the notice
does not comply with section 26 of the practice act, in that it does not specify the sum for
which the plaintiff will take judgment. This point was fully considered, and ruled adversely to
the appellant, in the case of Higley v. Pollock, 21 Nev. 198, and we are fully satisfied with the
law as there laid down. No substantial right of the appellant can possibly be affected by such
an error as occurred here, and, such being the case, both law and common sense require us to
disregard. (Gen. Stats., sec. 3093.)
The judgment is affirmed.
____________
22 Nev. 91, 91 (1894) Singleton v. Eureka County
[No. 1399.]
JAMES B. SINGLETON, Respondent, v. EUREKA
COUNTY, Appellant.
Special LegislationConstitutional Law.The statute of 1893, page 80, authorizing the sheriff of Eureka
county to appoint a night watchman at a fixed salary, payable by the county, is special legislation, and in
direct conflict with the constitution of Nevada, article IV., section 25, which requires a system of county
governments uniform throughout the state.
Special and General Laws.A law, though not applicable to all counties in the state, may be of a general nature
by reason of the fact that localities and objects upon which it acts are distinguishable from others by a
peculiar relation to the legislative purpose.
Appeal from District Court, Eureka county; Hon. A. L. Fitzgerald, District Judge.
Peter Breen, District Attorney of Eureka county, and Thomas Wren, for Appellant:
Section 4 of the act under which respondent claims reads as follows: The board of county
commissioners of said Eureka county may appoint one night watchman for the town of
Eureka; provided, the amount allowed or paid therefor, in any one year, shall not exceed the
sum of $900. (Stats. 1869, p. 80.)
Two years later said section was amended, and again on March 4, 1893, which is the
present law, and reads a follows: The sheriff of Eureka county is hereby authorized and
empowered to appoint one night watchman at a salary of $75 per month, said salary to be
allowed and paid in the same manner as the salaries of other county officers and employes are
allowed and paid. (Stats. 1893, p. 80.)
On the 2d day of January, 1893, the then sheriff, without consultation with the county
commissioners, appointed respondent night watchman of the town of Eureka, whereupon
respondent qualified and entered upon the discharge of his duties, and continued to act as
such until the 5th day of April, 1893, and on the 5th day of April, 1893, the sheriff appointed
respondent night watchman and deputy sheriff of Eureka county, and upon the same day
respondent qualified as such and continued to exercise his duties as night watchman of the
town of Eureka until the commencement of this action. The respondent never acted as night
watchman outside of the town of Eureka.
Respondent recovered judgment in the court below for the full amount claimed.
Appellant's motion for a new trial was overruled by the court, and this appeal is from the
order overruling the motion.
From the title of the act it seems fairly certain that the legislature intended to create the
office of night watchman for the town of Eureka, and from the language of the amendatory
act, passed in 1893, in relation to the payment of his salary, it is equally evident that the
legislature of that year regarded him as a county officer.
The act unquestionably creates an office. Where an individual has been appointed or
elected in a manner required by law, has a designation or title given him by law and exercises
functions concerning the public assigned to him by law, he must be regarded as a public
officer. (Anderson's Dictionary of Law, p. 729.)
The section of the act authorizing the sheriff to appoint a night watchman created an office
and is in violation of sections 20 and 25 of article IV. of the constitution, which provides that
the legislature shall establish a system of county and township government, which shall be
uniform throughout the state.
It is not clear what the constitutional convention intended to embrace in the phrase,
county and township government, but it certainly includes all of the officers of counties and
townships. Creating an office for Eureka county, alone, by a local or special law, is a palpable
violation of this section of the constitution.
If respondent is not an officer, but simply an employe, the act directing his appointment
and fixing the amount to be paid him and the mode of allowing it is a regulation of county
business and in direct violation of the section of the constitution above cited. (State v. Boyd,
19 Nev. 343; Evans v. Job, 8 Nev. 333.)
In this case, there was a general law already on the statute books that was equitable and just
and applicable for the appointment of policemen, and policemen and night watchmen are
synonymous, hence there was no occasion for the passage of a local or special law. (Gen.
Stats., secs. 2041, 2049.)
Henry Rives, for Respondent:
A statute will always be sustained if there is any reasonable doubt of its constitutionality.
(5 Nev. 15; 7 Nev. 23; 5 Nev. 111, 194; 8 Nev. 322; 9 Nev. 212.)
Contemporaneous legislation is always considered of great importance in determining the
intention, and also the constitutionality of an act. (5 Nev. 15; 7 Nev. 23.)
The legislature may create or abolish any office not provided for by the constitution. (1
Nev. 240.)
Article XV., sec. 10, constitution of Nev.: No law is so "local" or "special" as to be inhibited
by the constitution, if it affects all interested or reached by it alike.
local or special as to be inhibited by the constitution, if it affects all interested or reached
by it alike. (5 Nev. 15, 115, 194; 8 Nev. 322; 19 Nev. 247.)
The legislature is the sole judge of the policy and expediency of every law. See all of the
above authorities.
Respondent is not an officer, but an employe of appellant. (N. W. Rep. 809.)
The only question argued before this court, and the one relied upon by the appellant in the
district court, to defeat the right of the respondent to recover the money alleged to be due him,
is that the act of the legislature under which the respondent received the appointment and
performed the services is unconstitutional.
The act thus challenged reads as follows: The sheriff of Eureka county is hereby
authorized and empowered to appoint one night watchman at a salary of $75 per month, said
salary to be allowed and paid in the same manner as the salaries of other county officers and
employes are allowed and paid. (Stats. 1893, p. 80.)
The contention is that this act falls within the prohibition mentioned in section 20 of
article IV., and is not a compliance with section 25 of the same article of the constitution. By
the tenth paragraph of section 20 the legislature is prohibited from passing local or special
laws regulating county and township business; and by section 25 the legislature shall
establish a system of county and township government, which shall be uniform throughout
the state. Section 21 of the same article reads: In all cases enumerated in the preceding
section, and in all other cases where a general law can be made applicable, all laws shall be
general and of uniform operation throughout the state.
During the session of the legislature of 1865 an act was passed by that body, and approved
by the governor, section 9 of which authorized and empowered the sheriff of any county to
appoint policemen, not exceeding two in number, in any unincorporated city, town or village.
Their compensation was not to exceed $100 per month. The policemen should serve within
the limits of such unincorporated city, town or village, and, in case of the appointment of
more than one policeman, one should serve in the day time and the other at night.
than one policeman, one should serve in the day time and the other at night. Section 10 of the
act provides that it shall not be put in force, or have effect, until a petition should be
presented to the board of county commissioners, signed by a majority of the resident electors
of the city, town or village, and requesting the appointment of such policemen, and the
levying of a tax of one-fourth of one per cent, as provided for by the act. Section 11 provides
that upon the presentation of such a petition it shall be the duty of the board of county
commissioners to levy the tax, and notify the sheriff, in writing or otherwise, to make the
appointment of one or more policemen, as provided for by the act. In the foregoing act we
have a general law, which has been on our statutes for twenty-nine years. It is uniform in its
operation, and the constitutional provisions were complied with when the legislature had
devised one system or plan for the government of unincorporated cities, towns and villages.
By it certain general powers of local government and police regulations were delegated to the
resident electors of unincorporated cities, towns and villages, upon presentation of a petition
to their board of county commissioners, who were elected officers and had control of the
internal affairs of the county, and the power to levy taxes, and whose duty it was to carry into
effect the wishes of the resident electors.
If the act of 1893, in authorizing and empowering the sheriff of Eureka county to appoint
one watchman, created a county office, then the act clearly comes within the constitutional
interdiction, because it is not uniform in its operation. By its terms it is confined to, and was
intended for, Eureka county, and never was intended to apply to any other county in the state,
and is interdicted by section 25 of article IV. of the constitution.
No words could have been used by the legislature that could limit the operation of the act
to the county of Eureka more absolutely and definitely than those employed in the act of
1893. (State v. Boyd, 19 Nev. 43; Williams v. Bidleman, 7 Nev. 68; State v. Dousman, 28
Wis. 542; Nevil v. Clifford, 63 Wis. 446, 24 N. W. 65; State v. Supervisors, 25 Wis. 346;
Frye v. Partridge, 82 Ill. 273; Montgomery v. Com., 91 Pa. St. 132; State v. Riordan, 24 Wis.
486; Hallock v. Hollingshead, 49 N. J. Law, 64, 6 Atl.
head, 49 N. J. Law, 64, 6 Atl. 433; Freeholders v. Buck, 49 N. J. Law, 228, 7 Atl. 860; State
v. Mitchell, 31 Ohio St. 607; State v. Hermann, 75 Mo. 346; McCarthy v. Com., 110 Pa. St.
246, 2 Atl. 423.)
A watchman is an officer in cities or towns, whose duty it is to watch during the night and
take care of the property of the inhabitants. (Black, Law Dict.; Bouv. Law. Dict.) Webster's
definition of the word watchman is, one who guards the streets of a city or building by
night.
The plaintiff, in testifying, said: I have been night watchman by appointment of the
sheriff of Eureka county since the 2d day of last January. Ever since that date I have acted
continuously and exclusively as night watchman in the town of Eureka. I never acted as night
watchman outside the town of Eureka during said time. It is my duty, as night watchman, to
walk the streets of Eureka from about dark until daylight, to guard against fire, to ring the
curfew bell, and perform all of the duties incident to and usually performed by a night
watchman of a village. This is a sufficient statement of the evidence to show what the duties
of the plaintiff were, and what they were intended to be.
The counsel for respondent contends that the position of watchman is not an officer, but an
employe of the county, and he cites the case of Trainor v. Board, 50 N. W. 809. We do not
think that case supports his position. All that is held in that case and the cases referred to in
the opinion of the court is, officers receiving their appointments from county boards, or a city
council, and removable at the will and pleasure of such boards and council, are not the
holders of such offices as the courts would concern themselves about in quo warranto
proceedings.
Take the case of The Attorney-General v. Cain, 84 Mich. 223, 47 N. W. 484, which was
an information in the nature of a quo warranto to test the right of certain parties to act as
policemen of the city of Adrian. The court said: It would seem that the number of
policemen, their term of office, and their removal from office is entirely within the will of the
common council of the city. They may be appointed for one day or for one year, and may be
removed at any time, without cause shown, from their position by the common council. These
personspolicemen and night watchmanare not mentioned in the city charter as city
officers, and there is nothing in any of its provisions warranting the claim that they are to
be considered as such officers.
watchmanare not mentioned in the city charter as city officers, and there is nothing in any
of its provisions warranting the claim that they are to be considered as such officers. * * * We
do not think the position of policemen, under these circumstances, is such an office as
authorizes the attorney-general to file an information by quo warranto in this court to test the
title to the position.
It was said in People v. De Mill, 15 Mich. 182, that there are grades of position
denominated offices' which do not rise to the dignity of being entitled to the notice of the
attorney-general by information. We do not understand that any of the decisions referred to
deny but what policemen and watchmen in cities and towns are officers, but what they do
hold is their right to hold and perform the duties of such offices cannot be inquired into by
quo warranto, because such offices are not usually created by legislative acts; and, as was
said by Judge Cooley, in closing the opinion in the case of Throop v. Langdon, 40 Mich. 686:
But it is proper to say that it is at least doubtful whether the proceeding by information is
applicable to the case of an office not created by the state itself. The legislature has, in the
case under consideration, tried to create an office; but whether the respondent be an officer or
an employe is immaterial, for the reason that the act under which his appointment was made,
and upon which he relies for a recovery of the money alleged to be due, is local and special,
being confined to Eureka county alone, and falls within the prohibition of the constitution.
It is not disputed but what the legislature has the power to increase, diminish, consolidate,
or abolish certain county officers, and to regulate county and township business by general
laws. If the act increasing, diminishing, consolidating, or abolishing the officers, or regulating
the internal affairs, be of a general nature, although it may not be applicable to all the counties
of the state by reason of the fact that the localities and objects upon which it was intended to
act are distinguished from others by characteristics evincing a peculiar relation to the
legislative purpose, and showing the legislation to be appropriate to some counties or
localities and inappropriate to others, the counties or localities will be considered as a class by
themselves as respects such legislation, and legislation affecting such a class in general;
but if the act increasing, diminishing, consolidating, or abolishing county officers, or
regulating the internal affairs of a county, excludes from its operation counties or
localities similarly situated, and in like relation to the legislative purpose, then the
classification is not uniform, and is faulty as being local and special.
respects such legislation, and legislation affecting such a class in general; but if the act
increasing, diminishing, consolidating, or abolishing county officers, or regulating the
internal affairs of a county, excludes from its operation counties or localities similarly
situated, and in like relation to the legislative purpose, then the classification is not uniform,
and is faulty as being local and special. The act under consideration falls within the rule of the
latter class, and is an attempted regulation of the internal affairs of Eureka county, and all
other counties similarly situated are excluded from the privileges thereof; and the respondent,
claiming his appointment of night watchman under the provisions of an unconstitutional act,
cannot recover in this action.
It is ordered that the judgment of the district court be reversed, and the cause remanded.
Belknap, J.: I concur.
Bigelow, J., concurring:
Experience has proven that for many reasons and in many ways local and special
legislation is harmful to the public interests. Legislators are elected to enact laws, not for one
locality alone, but for the whole state, in the hope that in the multitude of counsels there may
be wisdom; but where such legislation is permitted a bill affecting but one locality is almost
invariably referred to the local members, and, if satisfactory to them, is passed without
scrutiny from the other representatives, and without any feeling of responsibility upon their
part. The possibility of it leads to improper combinations among the members, and often to
crude, and even vicious, legislation, that would not be permitted were it to affect the whole
state.
Among a number of provisions in the constitution directed against this evil is the one
requiring the legislature to establish a system of county and township government which shall
be uniform throughout the state. To a certain extent the system to be adopted was left to the
discretion of the legislative body, but the requirement is absolute that, whatever the system
may be, it must be uniform, indicating that this uniformity was a more important
consideration with the constitution makers than the plan to be adopted. These limitations
upon the power of the legislature should be executed by the courts in the same spirit in
which they were adopted, and so as to prevent legislation sought to be guarded against.
limitations upon the power of the legislature should be executed by the courts in the same
spirit in which they were adopted, and so as to prevent legislation sought to be guarded
against.
A system of government consists of the powers, duties and obligations placed upon the
political organization, and the scheme of officers charged with their administration. If the
system is to be uniform, it is necessary that these powers, duties and obligations shall be the
same in each county; that the same officers shall be provided, and the responsibilities of
government be divided among them in the same manner; otherwise the system is not uniform,
for, as here used, the word means that the county governments to be established are in all
essential particulars to be alike.
State v. Boyd, 19 Nev. 43, is an authority squarely in point, and that fully sustains this
construction of the constitution, and that case is in turn supported by a number of
well-considered cases from Wisconsin (State v. Riordan, 24 Wis. 484; State v. Supervisors,
25 Wis. 339; State v. Dousman, 28 Wis. 541; McRae v. Hogan, 39 Wis. 529; Rooney v.
Milwaukee Co., 40 Wis. 23); and from Florida (Lake v. State, 18 Fla. 501; McConihe v. State,
17 Fla. 238; State v. Stark, 18 Fla. 255; Ex parte Wells, 21 Fla. 280); and from California
(Welsh v. Bramlet, 98 Cal. 219, 33 Pac. 66), where, under varying circumstances, similar
clauses in the constitution of those states were considered and construed.
Let us now examine the act upon which the respondent rests his right to recover in the
action. It was first enacted in 1889 (Stats. 1889, p. 80) and is entitled An act fixing the
salaries and defining the duties of certain county officers of Eureka county and other matters
relating thereto. Section 1 fixes the salaries of the officers of that county as they then
existed. Section 2 directs that no other compensation shall be paid them by the county.
Section 3 forbids the payment by the county deputies, except in one instance. Section 4 reads
as follows: The board of county commissioners of said county may appoint one night
watchman for the town of Eureka, provided the amount allowed or paid therefor in any one
year shall not exceed the sum of $900. In 1891 (Stats. 1891, p. 78) this section was amended
so as to read: The board of county commissioners of Eureka county may authorize the
sheriff to appoint one night watchman at a compensation not to exceed $75 per month."
county may authorize the sheriff to appoint one night watchman at a compensation not to
exceed $75 per month. In 1893 (Stats. 1893, p. 80) the section was amended to its present
form, and now reads: The sheriff of Eureka county is hereby authorized and empowered to
appoint one night watchman at a salary of $75 per month, said salary to be allowed and paid
in the same manner as the salaries of other county officers and employes are allowed and
paid. Here, perhaps, is a fair illustration of the effects of permitting local and special
legislation. At each session of the three last legislatures an act has been passed concerning a
small matter of purely local concern, that should have been left, under the general law,
entirely to the people interested, and whereby the taxpayers of other parts of Eureka county
have been compelled to assist in maintaining a watchman for the town of Eureka, for that has
been the practical construction put upon the act; something in which they had no interest, and
from which they derived no benefit, for the fact that the county owned property in the town
no more called upon it to furnish a town watchman than it did upon the owners of any other
property therein.
As will be readily noticed, as originally enacted, section 4 provided for the appointment by
the commissioners of a night watchman for the town of Eureka, who was, inferentially, to be
paid by the county, not to exceed a certain sum. The amendment of 1891 provided that,
instead of appointing him themselves, the commissioners might authorize the sheriff to do so,
and the clause that provided that he should be appointed for the town of Eureka was omitted.
The amendment of 1893 authorizes the sheriff to appoint him without reference to the
commissioners, and provides that he shall be paid the sum of $75 per month, in the same
manner as the salaries of other county officers and employes are paid.
By the amendments the watchman is not to be appointed for any particular place, and it
was argued by the respondent's attorney that if his services were more needed elsewhere than
at the town of Eureka, he could transfer them there. As the law now stands, this view seems
correct, for apparently ex industria the legislature has omitted the provision that he is to be
appointed for that town, which indicates an intention to repeal it, and he is furthermore to
be appointed by an officer whose jurisdiction certainly extends all over the county.
intention to repeal it, and he is furthermore to be appointed by an officer whose jurisdiction
certainly extends all over the county. Probably it would make no difference here if his duties
were confined to the town, but, as the matter stands, we have in Eureka county a watchman
whose duties and jurisdiction extends all over the county, who is provided for in an act
entitled an act fixing the salaries of the county officers of that county, who is to be paid by the
county, and in the same manner that the salaries of other county officers and employes are to
be paid. These premises lead surely to the conclusion that the intention was that he should
become permanently an integral part of the government of that county, and as much one of its
officers as any other officer in it. Other counties do not have such an officer, and it follows
that this brings the act in conflict with the constitutional provision requiring uniformity in the
county governments. Certainly this law is fully within the mischief intended to be guarded
against by the constitution, and also, as it seems to me, clearly within its letter.
2. There are several other constitutional provisions with which the act seems to conflict,
but there is one with which the conflict is clear, and that is that no local or special law shall
be passed regulating county and township business. That the law is local to Eureka county
cannot be denied, and to some extent it certainly regulates the business of that county.
County business may be defined as covering almost everything that concerns the
administration of the county government. It includes the election or appointment of its
officers and employes, the amount of their compensation, and how, when, and from what
fund it is to be paid. This act directs how the watchman is to be appointed, upon which
subject there have been three different regulations. It regulates its business by making it
responsible for the watchman's salary, which otherwise it would not be. It directs that the
county's money shall be taken from its treasury, and paid to one who otherwise would have
no claim upon it. It fixes the amount which the county must pay, and by reference to the
manner of payment of the salaries of other county officers, it directs how, when, and from
what fund the money is to be paid. This is a regulation of county business, within the
meaning of the constitution, concerning which local laws are forbidden.
the meaning of the constitution, concerning which local laws are forbidden. (Welsh v.
Bramlet, 98 Cal. 219; Williams v. Bidleman, 7 Nev. 68; Montgomery v. Com., 91 Pa. St. 125.)
I concur in the judgment.
____________
22 Nev. 103, 103 (1894)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
APRIL TERM, 1894.
____________
22 Nev. 103, 103 (1894) Wiggins v. Henderson
[No. 1403.]
WILLIAM WIGGINS and JAMES WIGGINS, Relators, v. CHARLES HENDERSON,
Justice of the Peace of Empire Township, in Ormsby County, Nevada, Respondent.
1AppealJustice CourtCertiorari.No appeal to the district court lies from a judgment by default
rendered in a justice court, there being no issue of law or fact to be tried upon such appeal, and where in
such case the justice court has exceeded its jurisdiction, certiorari is the proper remedy.
2Fine upon Several Joint Defendants.But one fine can be imposed on all persons jointly proceeded against
under the statute entitled An act to secure persons and animals from danger arising from mining and
other excavations. (Gen. Stats. 290, et seq.)
3Notice to Parties Proceeded AgainstJurisdiction of Person.The notice under said statute must state that
the person or persons proceeded against are the owners, or in possession, of the unguarded well or
excavation, in order to give a justice court jurisdiction of the person.
Original Proceeding. Application for writ of certiorari.
H. F. Bartine, for Relator:
The judgment, being by default, no issue of any kind was ever made in the justice court,
and there would be absolutely nothing to try on appeal. In such case no appeal lies. (Paul v.
Armstrong, 1 Nev. 82; Martin v. District Court, 13 Nev. 85.)
To exclude the remedy of certiorari there must be something more than a mere technical
right of appeal.
thing more than a mere technical right of appeal. The appeal must be a full and complete
remedy, which in this case it would not be, for petitioners could secure no costs on appeal.
(Paul v. Armstrong, supra; Wood on Mandamus, etc., p. 208, et seq.; Memphis & Charleston
R. R. v. B., 11 La. 468; G. S. R. R. Co. v. Christian, 82 Ala. 307.)
That there is no appeal from a judgment by default in a justice court where no issue has
been made is stare decisis in this court, and that certiorari is the proper remedy in such cases,
where there has been an excess of jurisdiction, is also the established rule in this court.
(Martin v. District Court, 13 Nev. 85.)
That the justice exceeded his jurisdiction is scarcely open to discussion. The notice was
insufficient to give the court jurisdiction for any purpose. There was in fact no notice to either
defendant. The paper served was merely the order of the justice addressed to the officer. The
statute requires both an order to the officer and a notice from the officer to the party. These
defendants were not bound to take any notice of an order addressed to the sheriff or any
constable of said county. It is the notice of the officer, signed by him, which they were
bound to obey, and no such notice was ever served.
This was a special proceeding in a court of limited jurisdiction, and every provision of the
statute must be strictly followed. (Gen. Stats., sec. 295.)
But no matter what the character of the notice, the justice had no jurisdiction to render
judgment without taking testimony. The statute provides that all proceedings under the notice
shall be as provided by law in civil cases. (Gen. Stats., 293.)
There is but one class of cases in which a justice has the power to render a judgment
without hearing testimony. That is when a copy of the account, note, etc., is filed at the time
the summons was issued. (Gen. Stats., 3572.) In all other cases he must hear the evidence.
A justice of the peace takes no powers by implication. He must strictly pursue his authority
step by step or his action is coram non judice and void. (Paul v. Armstrong, 1 Nev. 100;
Victor Mining Co. v. Justice Court, 18 Nev. 21.)
In the proceeding, before a valid judgment could be rendered, three things must be proved:
First, the residence within the county of the party filing the notice; second, that there is an
open and dangerous excavation, and, third, that the party charged is the owner or in
possession of it.
within the county of the party filing the notice; second, that there is an open and dangerous
excavation, and, third, that the party charged is the owner or in possession of it. When these
facts are proved judgment may then be rendered for the amount specified in the notice.
If the notice was sufficient for any purpose it cannot possibly sustain the judgment actually
rendered. The defendants are simply informed that if they fail to appear judgment will be
rendered against them for $10 and costs, but the judgment is for $10, costs amounting to $11
more and two separate fines of $75 each.
The provision for a fine is clearly criminal in its nature and proceedings, for its imposition
must be according to the rules and principles of the common law. There can be no judgment
by default in a criminal case. (1 Bish. Crim. Procd., secs. 267, 268; Gen. Stats., secs.
4476-4480.)
There can be no judgment entered in the absence of the defendant even after there has been
a regular trial or a plea of guilty, and in no case can judgment be rendered in less than six
hours after plea or verdict of guilty. (Gen. Stats., secs. 4498, 4509.)
A very slight knowledge of legal principles would have saved the justice from so
egregious an error.
It is impossible to enforce a civil obligation and convict a defendant of crime in the same
action, because the rules of practice are essentially different.
Alexander J. McGowan, for Respondent:
(No brief on file.)
On the 2d day of March, 1894, the following notice was filed with the justice of the peace
of Empire township, in the county of Ormsby, State of Nevada: Carson City, Ormsby
county, Nevada, March 1, 1894. I hereby certify that there is a well, not surrounded by a
fence, or otherwise secured, in Empire township, Ormsby county, Nevada; said well being
located near the slaughter house owned by, or in the possession of, James and William
Wiggins; said well being dangerous to persons and animals and that the cost of fencing or
otherwise securing the same against any avoidable accident would be about five dollars.
accident would be about five dollars. Joseph Langevin. Said notice appears to have been
filed under the provisions of an act of the legislature to secure persons and animals from
danger arising from mining and other excavations (Gen. Stats., sec. 290, et seq.), which reads
as follows: Section 1. Any person or persons, company or corporation, who shall hereafter
dig, sink or excavate, or cause the same to be done, or being the owner or owners, or in the
possession, under any lease or contract of any shaft, excavation or hole, whether used for
mining or otherwise, or whether dug, sunk or excavated, for the purpose of mining, to obtain
water, or for any other purpose, within this state, shall, during the time they may be employed
in digging, sinking or excavating, or after they have ceases work upon or abandoned the
same, erect or cause to be erected, good and substantial fences, or other safeguards, and keep
the same in good repair, around such works or shafts, sufficient to securely guard against
danger to persons and animals, from falling into such shafts or excavations.
Sec. 2. Any person being a resident of the county and knowing, or having reason to
believe, that the provisions of section one of this act are being or have been violated within
such county, may file a notice with any justice of the peace or police judge therein, which
notice shall be in writing, and shall state: First, the location, as near as may be, of the hole,
excavation or shaft; second, that the same is dangerous to persons or animals, and has been
left, or is being worked contrary to the provisions of this act; third, the name of the person or
persons, company or corporation, who is or are the owners of the same, if known or if
unknown, the persons who were known to be employed therein; fourth, if abandoned, and no
claimant; and fifth, the estimate cost of fencing or otherwise securing the same against any
avoidable accident.
Sec. 3. Upon the filing of the notice, as provided for in the preceding section, the justice
of the peace, or judge of the police court, shall issue an order, directed to the sheriff of the
county, or to any constable or city marshal therein, directing such officer to serve a notice, in
manner and form as is prescribed by law for the service of summons upon any person or
persons, or the authorized agent or agents, of any company or corporation named in the
notice on file, as provided in section 2 of this act."
or corporation named in the notice on file, as provided in section 2 of this act.
Section 4 provides that the notice shall require the persons to appear before the justice or
judge issuing the same, at a time stated therein, not more than ten nor less than three days
from the service of said notice, and show to the satisfaction of the court that the provisions of
the act have been complied with, and shall notify them that if they fail to appear judgment
will be entered against him or them for double the amount stated in the notice on file. All
proceedings had therein are to be as prescribed by law in civil cases. It also provides that such
persons, in addition to any judgment that may be rendered against them, shall be liable and
subject to a fine not exceeding the sum of $100 for each and every violation of the provision
of the act, which judgment and fine shall be adjudged and collected as provided by law.
Upon filing the notice and order was issued and served upon the defendants, citing them to
appear March 10, 1894, and show to the satisfaction of the court that the well had been
secured, and further notified them that if they failed to appear and answer, judgment will be
taken against them for double said amount, together with costs and damages. They did not
appear, and thereupon the justice made the following entry in his docket: And now, on this
10th day of March, A. D. 1894, at 10 o'clock a. m., the court convened, and having given the
above defendants one hour longer to appear and answer, they, the above defendants, failed to
appear. It is the judgment of this court, after due deliberation, that the above defendants pay
to the above plaintiff the sum of $10 and costs of suit and accruing costs, and that each of the
above-named defendants shall be fined in the sum of $75, United States gold coin, for
violating the provisions of an act entitled An act to secure persons and animals from danger
arising from mining and other excavations,' approved February 8, 1866.
Execution was issued on the above entry, and placed in the hands of a constable for its
enforcement. Under this state of facts the defendants applied for a writ of certiorari, charging
that said entry and judgment are void for the want of jurisdiction. The respondent has
demurred to the petition for the writ upon the ground that the petitioners have a plain,
speedy, and adequate remedy at law, by appeal to the district court.
plain, speedy, and adequate remedy at law, by appeal to the district court. The usual mode
of reviewing judgments rendered by a justice's court is by appeal, but the judgment in this
case was entered upon the default of the relators; therefore there could be no issue of law or
fact to try on appeal to the district court, and under such circumstances an appeal will not lie
from a judgment of the justice's court to the district court. (Paul v. Armstrong, 1 Nev. 96;
Martin v. District Court, 13 Nev. 90.)
The very foundation of a proceeding under this statute is the filing of a notice with the justice,
stating that the defendants are the owners of, or in possession of, an excavation, which, in its
then unsecured condition, is dangerous to persons or animals. The notice filed in this matter
wholly fails in this respect. The statement that the well was located near the slaughter house
owned by defendants is very far from alleging the important fact of ownership in them of the
well itself. Nowhere throughout the case does it appear that this fact was ever, either by
allegation or proof, shown to the justice, and without it we are of the opinion that he never
acquired jurisdiction of the case.
Under the statute the proceeding is to be against the person or firm owning or in
possession of the excavation. If there is more than one of them, they are to be proceeded
against jointly. Judgment may be rendered against them for double the cost of securing the
dangerous place, and, in addition, such persons may be subjected to a fine not exceeding
$100.
No matter how many are proceeded against, there can be but one judgment and one fine,
which must not exceed the amount stated.
For these reasons, waiving all questions of procedure in the case, we think that the justice
also exceeded his jurisdiction when he entered a fine of $75 against each of the defendants.
We find nothing in the return of the justice to this writ that would or could justify him in
entering judgment against the relators and in favor of the state.
It is therefore ordered that the proceedings had in the justice court of Empire township on
the 10th day of March 1894, wherein the State of Nevada is named as plaintiff and these
relators as defendants, be, and the same are, declared void, and the same are hereby set
aside, and that relators do have judgment for their costs.
these relators as defendants, be, and the same are, declared void, and the same are hereby set
aside, and that relators do have judgment for their costs.
____________
22 Nev. 109, 109 (1894) Beck v. Thompson
[No. 1396.]
H. H. BECK, Respondent, v. WILLIAM THOMPSON,
Appellant.
1Statement on AppealPapers Not Part of Record.Papers not made a part of the statement on motion for
new trial, nor otherwise identified as provided by the statute, cannot be considered upon the appeal.
2StatementMotion to Strike Out Must be Made in Court Below.A motion to strike out a statement on
motion for new trial, upon the ground that no notice of intention to move for a new trial was given, will
be denied where it does not appear that any objection upon that ground was made in the district court.
3FindingsNot in Statement Stricken Out.Findings not included in the statement on motion for new trial
will, upon motion, be stricken from the record on appeal. The fact that they are identified by the judge of
the district court as having been used upon the hearing of the motion, does not alter this rule.
4Assignment of ErrorSufficiency of.Under the amendment to the practice act (Stats. 1893, 88), an
assignment of error that the verdict of the jury, or the decision, or judgment, or decree of the court, is not
supported by the evidence, requires this court to review the evidence to ascertain whether it is sufficient,
without regard to whether there are findings upon the points claimed to be so unsupported.
5Surviving PartnerBusiness Carried on Without Authority by.Where, after the death of a partner, the
business is carried on by the survivors, without authority so to do, his representatives have the right to
elect to receive a share of the profits of the business after his death, or the deceased's share of the
property of the partnership at the time of his death, with interest thereon.
6What Constitutes Election.In 1881 a partnership was formed in which Beck owned one-half and Lake and
Bole one-fourth each. In 1884 Lake died intestate. Upon distribution of the estate, in 1888, the defendant,
Thompson, succeeded to the estate's interest in the business, which, subsequent to the intestate's death,
had been carried on by the surviving partners without authority so to do. The evidence shows that the
understanding of all the parties was that by this distribution, Thompson succeeded to a partner's interest
in the profits of the business as so carried on, and to the same interest in the stock on hand. Thereafter the
business was conducted by these three as partners for some months, when Thompson, by mutual consent,
bought Bole's interest in the stock on hand, and the latter was paid his share of the profits of the business,
upon the theory that each was entitled to a partner's interest from the beginning.
to a partner's interest from the beginning. Bole retired from the firm, and Beck and Thompson continued
the business as partners, each owning one-half. Held, that thereby Thompson had exercised the option
which the law gave him, and had elected to take a partner's interest in the profits of the business carried
on by the surviving partners.
7Unauthorized Improvements Made by Surviving Partner, if Ratified, Cannot be Repudiated.During the
time the business had been carried on by the surviving partners, Beck made unauthorized improvements
upon a flouring mill used in the business, but belonging to himself and the deceased jointly. Held, that,
under the circumstances stated, the defendant had ratified the making of these improvements, and could
not afterward repudiate the expense of making them.
8Surviving PartnerCompensation for Services.Prior to Lake's death, by agreement of the partners, Beck
was paid a salary for his services to the firm. He has been allowed this salary during the continuance of
the business since, but in addition he also claims compensation for caring for the mill used in the
business, but belonging to himself and the deceased jointly. He and the deceased also owned other real
property, which was not used in the partnership business, for which the plaintiff cared, and upon which
they made a profit. Held, that for the former services he is not entitled to additional compensation, but is
for the latter.
9Interest upon Unpaid Capital.Upon the formation of the partnership the partners agreed to each furnish
certain capital. Bole furnished his share, but Beck and Lake failed to furnish the amount agreed upon by
them. In view of this, they then agreed to pay interest upon the amount they were short. Held, that under
the circumstances this agreement should be carried out after Lake's death, but each should only pay upon
the amount of his individual shortage.
10Amendments to Pleadings, Not Changing Rights of Parties, Allowable.It is not error to allow
amendments to a pleading which do not change the rights of the parties.
11Action Between PartnersWhen One Not a Necessary Party.An action may be maintained by one of
three partners in a dissolved partnership against one of the other partners for a settlement of the
partnership accounts, without making the other partner a party to the action, where it appears that the
third partner is a non-resident of the state, has disposed of all interest in the partnership property to his
co-partners, and that his rights will not be prejudiced by the present litigation.
Appeal from the District Court, Washoe county; Hon. A. E. Cheney, District Judge.
The facts, so far as they are necessary to an understanding of the points decided, are as
follows: In 1879 the plaintiff and M. C. Lake formed a partnership for the purpose of
conducting a flouring mill business at the town of Reno, under the firm name of Lake &
Beck, in which each was to be equally interested.
the firm name of Lake & Beck, in which each was to be equally interested. They erected a
mill and carried on the business until 1881, when a new partnership was formed for the same
purpose, consisting of Lake, Beck and David Bole, under the firm name of H. H. Beck & Co.,
in which Lake was to own one-fourth, Beck one-half, and Bole one-fourth. Lake sold to Bole
one-fourth interest in the stock on hand of the old firm, and thereafter the business was to be
conducted by the new firm, they paying to the owners of the mill, Lake and Beck, a rental of
$400 per month for the use of the mill, the owners to pay for all necessary repairs and
improvements upon the property.
In 1884 Lake died. Shortly after his death an inventory of the stock on hand was made, and
the profits of the business were estimated and credited, but no money was paid, nor was there
any change in the business, which was continued as before by Beck and Bole, under the firm
name of H. H. Beck & Co. An administrator of Lake's estate was appointed. In 1888 the
estate was wound up, and distribution and partition made of the property among the heirs and
their grantees, in which all the interest of the estate in the mill property and business was set
over to Thompson, defendant herein. Without any formal agreement to that effect, so far as
the evidence shows, the business was still continued the same as before until the spring of
1889, when Bole retired. He was credited with his share of the value of the stock then on
hand, and for that, and for his proportion of the profits, he was paid by Beck from moneys
which had accumulated in the business. Shortly after this the mill burned down, but was
rebuilt by Beck and Thompson, restocked by them, and run for a short time, when it was all
sold to the Riverside Mill Company. During the administration of Lake's estate, Beck paid to
the administrator $17,000, and, after Thompson succeeded to the property, paid various sums
to him. He now claims that Thompson has received more than his proportion of the moneys
arising from the property and business, and he brings this action for an accounting and
settlement of the whole business from the beginning, and for a judgment against Thompson
for the balance claimed to be due him. The court rendered judgment for the plaintiff for the
sum of $3,770.54, with interest, and the defendant appeals.
ment for the plaintiff for the sum of $3,770.54, with interest, and the defendant appeals.
William Webster, Attorney, and Byron Waters, Counsel, for Appellant:
We believe that the court has power to review the evidence under Stats. 1893, p. 89.
There are a few facts in the case that should not be lost sight of in arriving at a conclusion
upon the rights of the parties in interest. One of these facts is, the ascertained value of the
personal property of H. H. Beck & Co. at the time M. C. Lake died. The amount or value of
the property on hand at any time is the basis for a settlement of such matters as thereafter
arose upon the continued business of H. H. Beck & Co. Respecting the business of Lake &
Beck, the partnership seems to have had the misfortune of being always in debt; whether this
relation is a matter of fact or a fiction remains to be determined upon investigation and proper
application of the facts under the law.
The respondent prays an accounting by Mr. Thompson, who never has been in any
position that would place him within the jurisdiction of a court of equity upon a bill made for
an accounting at the suit of Mr. Beck. At no time has Mr. Thompson sustained a relation of
trust in favor of Mr. Beck or Mr. Bole respecting the matters involved. H. H. Beck and D.
Bole conducted the business and received all moneys, and are the parties, as the case stands,
from whom an accounting may be required.
When the business is continued after the death of one of the partners, a new partnership is
formed. The liabilities of the new firm are distinct from the debts of the old partnership.
(Woerner's Am. Law of Administration, sec. 125, p. 287, 288, citing in note 1, p. 288; Storey
on Partnership, sec. 384, and authorities cited; Collier on Part., secs. 24 and 613 and
authorities cited.)
The liability to account after dissolution rests upon the exposure of the stock of the
deceased partner, to the risks of the new business. (Woerner's Am. L. of Ad., sec. 124, p. 285,
and authorities cited.)
Should the surviving partner continue the trade or business with the co-partnership stock it
is at his own risk, and he will be held to account for profits or for interest, at the option of
those who succeed to the deceased partner's share of the stock, and is liable for all losses.
{Collier on Part., sec.
he will be held to account for profits or for interest, at the option of those who succeed to the
deceased partner's share of the stock, and is liable for all losses. (Collier on Part., sec. 343, p.
535, vol. 1; Woerner's Am. L. of Ad., sec. 124, p. 284, citing Storey on Part., sec. 343.)
There are slight exceptions to some of these rules above stated. If profits are claimed, bad
debts must be allowed or deducted, and if the business continue beneficial to the parties, the
surviving partner should receive a reasonable compensation for conducting the business.
(Woerner's Am. L. of Ad., sec. 124, p. 384, citing Greggs v. Clark, 23 Cal. 427, upon the
question of compensation.)
The rule giving compensation will not apply to Lake & Beck, if Mr. Beck is correct about
their partnership being always in debt. If the business is carried on with the consent of the
executor or administrator, the surviving partner is liable for profits only. (Woerner's Am. L.
of Ad., sec. 124, supra.)
Mr. Bole not being a party, I will use the name of Beck only. It will not be claimed that
Mr. Beck continued the business with the consent of the administrator, and if not so claimed
Mr. Beck is placed in a position that requires him to account for losses together with profits.
The law is, that the title devolves upon the surviving partners, but in equity they are, as
regards the interest of the deceased, deemed to be trustees thereof for the persons entitled to
the estate, and are compelled to account with them. (Lindley Part., vol. 1, 462.)
It is a rule in equity, when persons who are necessary parties to the bill are not in the
jurisdiction of the court, that the court will proceed, as far as it can proceed, with such parties
as there are before it, and will make a decree, if it can do so without injury. The general rule
is, that all the partners must be made parties, but there are exceptions to the rule. One
exception is, when one or more of the partners reside in a foreign country; then, if possible,
the court will proceed without such partners, but no injustice should be done. (Storey Eq.
Plead., sec. 78, 6th ed.)
Should Bole become an active party to the execution of a decree made in the case, he
would then be a necessary party, and no decree could be made without him. (Storey Eq.
Plead., sec. 81.)
If a bill is made by one partner against several other co-partners, one of whom is out of the
jurisdiction of the court, praying for an accounting, such absent partner should be made a
party, as his interest in the co-partnership is as broad as the co-partnership, and pervades the
whole of the co-partnership business, and, therefore, is an indispensable party. (Storey Eq.
Plead., sec. 82, supra.)
Mr. Thompson was not a member of either of the original partnerships but succeeded to
the interest of M. C. Lake, the deceased partner, and is entitled to all the property rights of the
deceased partner. The accounting should follow and does follow the manner of the receipt of
the property by the partners that receive it. The profits are an outflow from a joint receipt and
are permeated with a joint energy, and no severance can be made without violence till an
accounting is made. (Storey Eq. Plead., sec. 219; Barbour on Parties, p. 467.)
When the breach includes a fraudulent alienation of the trust estate, every trustee is
separately liable. (Hill on Trustees, star p. 521; Perry on Trusts, vol. 1, sec. 879, citing
Gilchrest v. Stevenson, 9 Barb.; Snell's Equity, p. 435.)
In all cases a party beneficially interested, coming into equity, must do equity and join all
parties who have interfered with the possession. He cannot proceed against one alone as a law
in trespass and make one of the trespassers bear the burden of the wrongful intrusion. (Perry
on Trusts, vol. 1, p. 316, citing Willie v. Ellice, 6 Hare, 515; Phene v. Gilloon, 5 Hare, 5.)
Surviving partners are trustees in equity, and will be held liable as such for the conversion
to their own use of the partnership funds or the property in their hands. (Woerner's Am. Ad.,
sec. 124, vol. 1, citing Renfrow v. Pierce, 68 Ill. 125; Castley v. Towles, 46 Ala. 660; Hill on
Trustees, star p. 379.)
A party who seeks to charge a trustee with the consequence of a breach of trust is bound so
to state his case upon the bill that the consequences alleged, if proved, must necessarily
constitute a breach of trust. (Hill on Trustees, star p. 535.)
The employment of trust funds in trade or any speculative undertaking, without any
express authority, will a fortiori be treated as a breach of trust, and whatever may be the
apparent advantages of such a course, and however well intentioned the conduct of the
trustee, there is no question but that the court will visit upon him any loss resulting from
such a step, while he will have to account for any profit thus made, and the same rule
applies, although the trust property be merely continued, in the trade or business of the
testator, and it is immaterial that the trustees were the partners of the testators.
ent advantages of such a course, and however well intentioned the conduct of the trustee,
there is no question but that the court will visit upon him any loss resulting from such a step,
while he will have to account for any profit thus made, and the same rule applies, although
the trust property be merely continued, in the trade or business of the testator, and it is
immaterial that the trustees were the partners of the testators. (Hill on Trustees, star p. 579, p.
559; Lindley on Part., star p. 892.)
A trustee or executor is bound to keep clear, distinct and accurate accounts. If he does not
all presumptions are against him, and all obscurities and doubts are to be taken adversely to
him; and even if he enters the accounts of the trust in the books of the firm of which he is a
partner, the books must be produced. (Perry on Trusts, sec. 821, vol. 2.)
Those standing in a fiduciary relation must account. Partners stand in a fiduciary relation
to each other and must account. (Perry on Trusts, vol. 1, sec. 430.)
Persons who sustain a fiduciary relation to an estate must account, and the accounting
must be to those who succeed to the estate. (Perry on Trusts, vol. 1, secs. 430, 431.)
A person may become a trustee by construction, by intermeddling with and assuming the
management of property without authority. Such persons are trustees de son tort and they
cannot demur to a bill charging them with neglect of duty. (Perry on Trusts, vol. 1, p. 314,
315, sec. 245, citing in note 1, Le Fort v. Delofield, 3 Edward, 31; McCoy v. Scott, 2 Rawle,
222; Schwartez's Estate, 14 Pa. St. 42; Peo. v. Haughtawling, 7 Cal. 384.)
During the possession and management by such constructive trustees, they are subject to
the same rules and remedies as other trustees, and they cannot avoid their liability by showing
that they were not, in fact, trustees. (Perry on Trusts, vol. 1, p. 315, citing note 6; Rockham v.
Biddall, 1 Mac. & G. 607; 2 Hall & T. 44; 16 Sim. 297; Hafe v. Liddell, 21 Beav. 183.)
If a trustee or other fiduciary person wrongfully convert the trust fund into a different
species of property, taking to himself the title, he is still a constructive trustees, etc.
(Pomeroy's Eq. Pl. Jur., sec. 1051, vol. 2.)
An administrator lawfully in charge of real estate of a decedent, should exercise the
same diligence and prudence in its preservation and protection as if it were personal
property in his hands, and he should be allowed credits for disbursements made prudently
and in good faith upon necessary repairs.
decedent, should exercise the same diligence and prudence in its preservation and protection
as if it were personal property in his hands, and he should be allowed credits for
disbursements made prudently and in good faith upon necessary repairs. (Woerner's Am. Ad.,
p. 767, 1151.)
Real estate belonging to a partnership is treated in equity as personal funds. (Woerner's
Am. Ad., p. 289.)
A trustee cannot convert an infant's personality into real estate. If such a conversion is
made the wards on coming of age may elect to receive their personal property, and the trustee
or guardian must account and pay it over to them, or they may acquiesce in the purchase
when of age. (Perry on Trusts, sec. 606; Pomeroy's Eq. Jurisp., sec. 1304.)
Clarke & Jones, Attorneys, and W. L. Knox, Counsel, for Respondent:
A written agreement for interest is not required, except when the interest claimed is in
excess of the rate fixed by the statute law. (Gen. Laws, secs. 4903, 4904; 1 Nev. 533, 537; 2
Nev. 199, 204, 205; Smith v. Johnson, 23 Cal. 63.)
The cases cited by appellants do not support their position.
In Desha and Shepherd v. Smith, it is decided: That a demand of two or three partners that
a third shall pay interest on the entire excess of capital furnished by said two partners cannot
be supported in the absence of an agreement to that effect, but finding such an agreement the
court enforced it. (20 Ala. 747, 749, 750.)
In Topping v. Paddock, it is decided that when two members of a firm of three agree to
furnish the capital against the labor of the third, the two so agreeing and furnishing are not
entitled to have interest on such capital. (92 Ill. 92.)
The sum upon which interest is charged was, in fact, loaned by H. H. Beck & Co. to Lake
and Beck for building purposes, and for sums so loaned H. H. Beck & Co. were entitled to
charge interest at the rate of ten per cent per annum. (Gen. Laws, sec. 4903, 4904.)
Interest is recoverable on money paid the Lake estate and Thompson in excess of amounts
due.
The money paid to the Lake estate and Thompson was not, as in Lindley on Part., money
of the firm, in the hands of the estate and Thompson, and retained by them, but was money
paid to them by Beck which he believed they were entitled to receive upon the theory that
the partnership continued, and the estate had elected to take the profits of the business.
money paid to them by Beck which he believed they were entitled to receive upon the theory
that the partnership continued, and the estate had elected to take the profits of the business.
Now that this theory is rejected the sums are money paid by Beck for the use and benefit of
the estate and Thompson, for which Beck is entitled to have interest. But if Beck is not
entitled to interest, neither is the estate of Thompson. The court will not apply one rule to
Beck and a different rule to the Lake estate and Thompson. Moreover, when the payments
were made, they were in the nature of advances, and as a favor to the estate and Thompson.
Bigelow, J. (after stating the facts):
The respondent moves to strike out the statement on motion for new trial, upon the ground
that no notice of intention to move for a new trial was given. The record does not contain any
such notice, and the only reference thereto is in the opening of the statement on the motion,
where it is said that the appellant makes his motion for a new trial on the grounds mentioned
in his notice of motion made and filed. He now, however, under a suggestion of diminution
of the record, offers what purports to be a copy of such notice, containing an admission by
respondent's attorneys of regular and sufficient service, certified by the clerk of the district
court to be a true copy of the notice on file in his office, but it was not made a part of the
statement, nor is it identified as having been used or referred to on the hearing of the motion
for new trial, if, indeed, such identification would be sufficient to entitle it to consideration
here. Under these circumstances, it is not a part of the record on appeal, and consequently
cannot be considered by us. (Greeley v. Holland, 14 Nev. 320; Mining Co. v. Barstow, 5 Nev.
252; Caldwell v. Greely, Id. 258.)
We are, however, of the opinion that, if no sufficient notice of the motion had been given,
the objection should have been made in the court below, when the missing papers might have
been supplied and made part of the statement. There does not seem to be any statutory
provision for making the notice of motion for new trial a part of the record on appeal. It does
not direct that it shall be included in the statement on the motion, nor is it mentioned among
the papers which may be identified by the judge or clerk as having been used or referred
to upon the hearing of the motion.
may be identified by the judge or clerk as having been used or referred to upon the hearing of
the motion. But, notwithstanding, had it been copied into the statement we would perhaps,
under the decisions, have held that it was properly before us, upon the principle that the
statement is to contain everything necessary for the presentation of the grounds for new trial,
and for which no other method of bringing before the court has been provided (Mining Co. v.
Barstow, 5 Nev. 252), but, in the absence of timely objection in the court below, it does not
seem that it should necessarily have been placed there. The question does not appear to have
been heretofore raised in this state, but, under the quite similar statute of California, it has
been often before the courts of that state, and they have, after ruling that the presumption was,
under some circumstances, that the notice had been properly given, and that, if no objection
was made in the lower court, the point was waived, finally come to the conclusion that, as no
provision has been made for bringing up the notice, it must have been the intention of the
legislature that it was simply for use in the lower court, and that, if any objection to it existed,
it must be first made there, and then, by a proper record, brought up on the appeal.
Pico v. Cohn, 78 Cal. 384. The court there said (p. 386): We do not put this upon the
ground of waiver by the opposite party, as is done in some of the earlier cases, but upon the
sole ground that we must look alone to the statement or bill of exceptions for the questions to
be determined, in the absence of any showing by the respondent that no notice, or an
insufficient one, was given. Undoubtedly, the notice of intention is necessary, but if it has not
been given, or has been given too late, that must be shown by the respondent as against the
settlement of the statement or bill of exceptions, or at the time of and in opposition to the
motion for new trial; and, if the court below rules against him, he must cause the facts
necessary to present the question to be then included in the statement or proper bill of
exceptions, so that this court can determine whether a proper notice has been given or not.
In the uncertainty in which the matter has been left by the practice act, this seems the most
reasonable view that can be taken of what the legislature must have intended, and constitutes
a clear and easily understood rule that will compel parties to make their objections at a
time when, if groundless, it can be readily shown, instead of waiting until under our
practice it is impossible to supply the missing records.
and constitutes a clear and easily understood rule that will compel parties to make their
objections at a time when, if groundless, it can be readily shown, instead of waiting until
under our practice it is impossible to supply the missing records. The respondent also moves
to strike the findings from the transcript, upon the ground that they are not included in the
statement, and we are of the opinion that this part of the motion must be sustained. It has been
so often held that the findings, in order to be considered on an appeal, must be included in the
statement, that, if any rule of practice can be considered settled, this must be. The appellant,
however, contends that, as the findings were indorsed by the judge as having been referred to
upon the hearing of the motion for new trial, this should be sufficient to make them a part of
the record here; but this very point was presented to the court in Boyd v. Anderson, 18 Nev.
348, and held adversely to him, and must now be considered as settled.
In view, however, of the frequency with which parties fail to comply with the rules
concerning the making of statements on motion for new trial, and the records on appeal
therefrom, we deem it proper to suggest that it would be well for the legislature to endeavor
to make them more liberal. This court, the same as all other courts, was created for the
purpose of reviewing the merits of the controversies of men, and of determining them upon
the broad principles of justice, and not upon technicalities, and it is always a matter of sincere
regret to be compelled to do the latter. In every possible way this should be avoided. The
rules concerning these matters could be made much more liberal than they are, and it should
be provided that no failure to comply with them, which still left it possible to understand the
points made, and did not prejudice the substantial rights of the parties, should prevent the
consideration of the case upon its merits. Where it is claimed that the statement is insufficient
upon grounds that might be avoided by amendment, parties should be required to make their
objections in the district court in such way that they can be preserved in the record, or to
waive them. It is probably the law now that if a party submits a motion for new trial upon its
merits, without objecting to the sufficiency of the statement to raise the errors assigned, he
thereby waives the objection, but the difficulty is that the fact that he has done so is not
made to affirmatively appear, and, in the absence of such showing, a waiver is not to be
presumed.
thereby waives the objection, but the difficulty is that the fact that he has done so is not made
to affirmatively appear, and, in the absence of such showing, a waiver is not to be presumed.
(White v. White, 6 Nev. 20; Haynes, New Trials & App., sec. 145.)
The power of amendment of statements and bills of exception also exists, and, to the end
that the merits of the action may always be presented for decision, should be as liberally
allowed, upon such terms as may be just to the other party, as it is now concerning pleadings
and other proceedings, and by this means the effects of very many mistakes might be avoided.
But no offer to amend was made here, and we feel compelled by former decisions to sustain
this part of the motion to strike out. While quite an important change in the practice has been
wrought by the amendment to section 197 of the practice act (Stats. 1893, p. 88) we are of the
opinion that it cuts no figure upon this motion.
The defendant assigns as error, and quite strenuously argues, that the court erred in holding
that the defendant, as distributee of the interest in the partnership of the deceased partner, M.
C. Lake, had elected to take the part of the partnership property belonging to the deceased at
the time of his death, with interest thereon, instead of an interest in the profits of the business
as continued by the surviving partners. A complete answer to this contention is that, in the
absence of the findings, we cannot know that it was so held. The court found a certain sum to
be due from the defendant to the plaintiff, but, without the findings, there is nothing to show
that the balance was not arrived at strictly in accordance with what the appellant contends to
have been the correct method.
Most of the errors relied upon arise upon the findings, and require no further notice. There
are some assigned, however, that seem to call for such examination of the evidence as is
possible in such a complicated matter, and without the assistance of the original accounts or
of findings. By the amendment already spoken of (Stats. 1893, p. 88), it is, among other
things, provided: When the notice designates as the ground upon which the motion will be
made, the insufficiency of the evidence to justify the verdict or other decision, it shall be a
sufficient assignment of error to specify that the verdict of the jury, or the decision, or
judgment, or decree of the court, is not supported by the evidence, or is contrary to the
evidence.
that the verdict of the jury, or the decision, or judgment, or decree of the court, is not
supported by the evidence, or is contrary to the evidence. In such case, where it appears that
the evidence, taken altogether, does not support the verdict, or decision, or judgment, or
decree of the court, a new trial shall be granted, or, upon appeal, the case shall be reversed
without regard to whether there are express findings upon all the issues. * * *
As already remarked, this statute has worked an important and quite radical change, and in
a proper case, without regard to whether there are or are not findings, seems to impose upon
this court the duty of reviewing the evidence, and determining whether the final result is
supported by it. This statute was undoubtedly designed to cut through many of the
technicalities that have so often prevented cases from being considered upon their merits, and
should be construed in the same broad spirit in which it was enacted, but at the same time
with such conservatism as will not result in the reversal of cases where substantial justice has
been done. Grounds for reversal not raised in the trial court should not be noticed upon the
appeal; where there is a substantial conflict in the testimony, the appellate court should
undoubtedly not substitute its judgment for the judgment of the trial court, and should only
interfere where, upon all the evidence, it is clear that a wrong conclusion has been reached.
Under this statute there are several assignments that raise the question as to the sufficiency of
the evidence, and under them we proceed to its consideration. The general correctness of the
accounts of the business as kept by the plaintiff and by David Bole appears to be admitted;
that is, it is admitted that they constitute the basis upon which the settlement must be made,
and it is only some particular items therein that are claimed to be wrong. As the accounts are
presented to us, it will not be necessary, nor even possible, for us to do more than to consider
these particular matters. We must accept these accounts as correct, and also accept the
statements made from them by the experts as correct, unless we can clearly see that they are
not. Several such statements are contained in the evidence, made by different bookkeepers, all
of which, although differing to some extent, find a greater balance due from the defendant
than that found by the learned judge of the trial court.
the trial court. These statements were made upon the theory that the defendant was entitled to
the deceased's interest in the business of H. H. Beck & Co. at the time of his death, and to a
partner's share of the profits of the business as carried on by the surviving partners up to the
time of the distribution of the estate, and after that, by Beck, Bole, and the defendant. We are
of the opinion that this theory is correct, and constitutes the true basis upon which the
accounts should be made up.
Up to the time this action was instituted, it is quite clear that this was the understanding of
all parties. This is first shown in Beck's report to the administrator, made in February, 1885.
In that the accounts are carried right along, in accordance with the partnership agreement,
after Lake's death, the same as before, and Beck strongly advises that the business should be
permitted to so continue, stating that, if it were, he was confident of his ability to pay off the
indebtedness then existing against Lake and Beck, amounting to over $23,000. To this report
no objection was made, nor was any objection ever made by any one to the continuance of the
business. When the distribution was made there can be no question that all parties understood
that Thompson succeeded to the estate's interest, and thereby obtained a one-fourth interest in
the firm of H. H. Beck & Co., until the purchase of Bole's interest, and, after that, the owner,
as partner with Beck, of one-half. There may have been no express agreement to that effect,
but they all understood that he thereby became a partner, and the business was continued
upon that theory; this is sufficient to make him such. That this was their understanding is
shown by all the circumstances. The complaint alleges that he became a partner. Beck so
testified, and, although Thompson seems to attempt to deny it in his answer, he does not in
his testimony, and, in fact, shows that he understood that such was the case. Upon the theory
that the estate had succeeded Lake, and that Thompson had succeeded the estate, in the firm,
and was consequently entitled to a one-fourth share from the beginning, a division of the
profits of the business was made with Bole, and he was paid his share of them, and for his
share of the stock on hand. That Thompson became a partner seems too clear for argument,
and, it may be added, if such were not the case, it is difficult to see upon what principle a
court of equity could take jurisdiction of the case, for, without that, Beck's only remedy, if
any, would be an action at law to recover back money paid by mistake.
if such were not the case, it is difficult to see upon what principle a court of equity could take
jurisdiction of the case, for, without that, Beck's only remedy, if any, would be an action at
law to recover back money paid by mistake. But, with it, the jurisdiction is clear, as well as
the principles upon which the case should be decided. We then find an unsettled partnership
between the plaintiff and defendant, to the proper adjustment of which it becomes necessary
to state the accounts from the beginning, and in which, if it is found that the defendant has
received more than his share of the proceeds, a decree against him for such share is proper.
The time for the representative to elect whether he would take a one-fourth share in the
profits of the business as continued after Lake's death, or the deceased's share at the time of
his death, with interest thereon, was when he became the legal owner of that interest; that is,
when the distribution was made. When he became a member of the partnership upon the
theory that the estate's interest therein still continued, and as the successor of that interest, he
chose the former alternative.
The respondent's counsel contends that the defendant in his answer elected to take the
deceased's share, with interest thereon from the time of his death, but, aside from the fact that
the election had been made long before this, a careful examination of the answer does not
lead us to the same conclusion. We find nothing therein supporting such a view, but on the
other hand, while needlessly attempting to deny liability for debts incurred in the business, of
which none existed, the contention all the way through seems to us to be that the profits of the
business, after Lake's death, had been much larger than the plaintiff admitted, and that in
these profits the defendant was entitled to a partner's share.
Upon the theory, then, that the accounts should be stated the same as though the
partnership had continued from the beginning, we proceed to determine whether any errors
were made in the statements that would reduce the balance against the defendant below that
fixed by the court. While not, perhaps, very material, it seems to us that, after the formation
of the firm of H. H. Beck & Co., the old firm of Lake & Beck ceased to exist, and,
consequently, we have but the affairs of one partnership to settle. After that, Lake & Beck
were simply tenants in common of the mill property, for the use of which they were to
receive a certain compensation over and above the profits of the business, the same as
Beck and Bole were to receive extra compensation for their services, and the firm name of
Lake & Beck was simply used by the book-keepers of the former firm for convenience in
keeping the accounts with the mill.
Beck were simply tenants in common of the mill property, for the use of which they were to
receive a certain compensation over and above the profits of the business, the same as Beck
and Bole were to receive extra compensation for their services, and the firm name of Lake &
Beck was simply used by the book-keepers of the former firm for convenience in keeping the
accounts with the mill. But, however, this may be, if there were two firms, their affairs were
so interwoven that it would not be possible to settle one without also settling the other. They
were virtually but one, and the same principles should be applied to the settlement of both.
It is admitted that, from the formation of the partnership of H. H. Beck & Co. to the sale of
the mill, the firm earned a profit of $71,889.68, of which defendant received one-fourth, but
the $400 monthly rent paid to the mill owners did not pay the expenses of keeping the
property in repair, making a change in the machinery from the burr system to the roller
system of grinding, and certain charges for interest, to be hereafter noticed. Appellant
contends that, as surviving partner, Beck had no authority to improve the property by making
the change in the system of grinding, and should receive no credit for the expense of so doing.
So far as the want of authority to make the improvements is concerned, the appellant is
doubtless correct, but we do not consider this, under the circumstances existing here, as
leading to the conclusion that he should not receive credit for the money so expended. It is
not claimed that the change did not increase the earning capacity of the mill, nor that it was
not made in good faith. In fact, as we understand the evidence, it is shown that it did increase
it, and is doubtless one of the reasons for the profits of H. H. Beck & Co. being as large as
they were. C. T. Bender's testimony shows that Thompson was familiar with the manner in
which the business was being carried on. Beck's report to the administrator, already
mentioned, stated that he was then engaged in making this change; that upon the mill property
the operation showed a loss to the owners, and that for profits they must look to the milling
business of H. H. Beck & Co. Under these circumstances, there is no reason for believing that
Thompson did not know of the extensive change mentioned, and knew, necessarily, that
money had been expended in making it, and that such expenditure, while deducting from
the profits of the mill, increased the profits of the milling business.
and that such expenditure, while deducting from the profits of the mill, increased the profits
of the milling business. When, therefore, he elected to take a partner's share in the profits of
the business, he elected to ratify the manner in which they had been made. He could not take
the profits without bearing the losses, and this was one of them. In addition, he accepted the
mill as remodeled, accepted the profits of a partner in running it for some months, and, when
it was burned, received the benefit of the insurance obtained upon the machinery of the new
process; and all this without objection of any kind until the disagreement arose concerning the
settlement. In view of all this, there is no question but that Beck should receive credit for the
cost of making the change. Included in the testimony we have the statements of Rule and
Roff, who had examined the books of the firms as experts, and who substantially agreed in
their conclusions. They found that, as shown by the books, Beck was entitled to a credit of
$8,732.34, and that Thompson was indebted $5,763.50. In the absence of the findings, we
adopt these statements as a basis for examining the case. Included in Beck's credits therein we
find items amounting to $4,162.50, for services rendered to Lake and Beck. Much of this
charge does not appear to us to be correct. The mill was rented to H. H. Beck & Co., and was
managed and controlled by them. They saw to all necessary repairs and changes, and, when it
was burned, they rebuilt it; of course, at the expense of the owners. For his services to the
firm, as general manager, Beck was paid a salary of $100 per month. No charge for anything
more than this was made during Lake's lifetime, and we are of the opinion that the intention
was that this should be in full for all services in this connection. The Arcadome transaction
stands, perhaps, upon different footing, and as to that he may be entitled to extra
compensation, but much less than the sum mentioned above. We will leave the amount to be
fixed by the trial court upon a rehearing.
Upon the formation of the partnership of H. H. Beck & Co., it was agreed that Beck should
furnish, as capital, $12,000; Lake, $6,000; and Bole, $6,000. Bole furnished his share, but
Lake and Beck failed in a part of theirs. Bole objected to this, and it was finally agreed
between them that, upon whatever amount their capital might be short, they should be
charged interest.
upon whatever amount their capital might be short, they should be charged interest. This was
done, but, instead of charging each partner for the amount of his own deficiency, it was, for
the convenience of the bookkeepers, all charged to Lake and Beck jointly; that is, these
charges for interest were carried into the mill accounts, and charged in the same manner as
money expended upon the mill.
The defendant first contends that no interest whatever should be allowed, but we do not
agree with this view. The arrangement amounts to the same thing as paying Bole interest
upon the excess of capital invested by him, and, as it was done by agreement of the partners,
we can see no objection to it. Nor are we able to find that any more was charged than was
properly due. Lake's capital was not, however, as much short of what it should have been as
was Beck's, so, of course, he should not have paid as much interest, but, owing to the system
of bookkeeping adopted, Lake, or the Lake interest, seems to have paid it all. As we
understand the figures, the amount of interest so charged to Lake and Beck amounted to about
$16,000, of which each paid one-half. But, as this went to swell the profits of H. H. Beck &
Co., of which Beck was entitled to one-half, he received his entire payments back in
dividends, but Lake, owning one-fourth interest in the firm, only received $4,000 back as
profits; the other $4,000 going to Bole, which was really all the interest paid. Of the amount
so paid, each should be charged in the proportion that his capital was short. Mr. Beck should
be charged with whatever his proportion was, and it having been paid by Thompson, or the
interest he represents, he should receive credit for it. This was not done in the statement. In
this connection it is proper to add that the statement also shows that quite a large amount of
uncollected accounts have been carried into it, another matter for consideration and correction
upon a retrial.
Without going further into details, enough has been said to show that in the view we take
of the evidence, as we find it reported here, the decree against the defendant should be
considerably less than it is, and in this respect we think the decision is not supported by the
evidence.
We cannot close this part of the case without remarking upon the manner in which the
statement and transcript have been prepared.
been prepared. There is scarcely a page that does not show serious and inexcusable mistakes
upon the part of the reporter, the copyist, or the printer, that have added greatly to the labor of
considering the case. It was the duty of the attorneys to see that all these were corrected, and,
as a proper penalty for not having done so, we have determined to allow no costs upon the
appeal.
The appellant assigns as errors of law the allowance of certain amendments to the
complaint, and the overruling of his objection to proceeding until Bole was made a party to
the action. We do not find that the amendments in any way changed the legal aspects of the
case, and consequently they were harmless to the appellant. While Bole would be a proper
party to the action, it is shown that he is a non-resident of the state, and that he has disposed
of all interest in the partnership business to either the plaintiff or defendant. Under these
circumstances, he could only be brought in as a party by publication of summons, and, as he
has no interest in the property involved in the litigation, under the principles established in
the well-known case of Pennoyer v. Neff, 95 U. S. 714, any judgment so obtained would be a
nullity. Such being the case, our courts must either proceed without him or they must
necessarily refuse to settle the controversy between our own citizens. Bole's rights will be in
no manner prejudiced by this litigation, and, that being so, we think the action should be
allowed to proceed without him. (Towle v. Pierce, 12 Metc. (Mass.) 329.) Any claim that
appellant makes against him will be subject to adjustment in an action in the proper form.
The decree is reversed, and cause remanded for a new trial, but without costs to either party.
____________
22 Nev. 127, 127 (1894) Hulley v. Chedic
[No. 1398.]
THOMAS HULLEY, Plaintiff and Appellant, v. W. H. CHEDIC and ADELINE A. CHEDIC,
Defendants and Respondents.
1GarnishmentRight of Action ThereonNot a Lien.Notice of garnishment served upon a debtor, while
giving a right of action against him for money owing to the defendant in the garnishment proceedings, does
not constitute a lien upon money with which he may subsequently pay his debts, so as to enable the
garnisher to follow the money into the hands of third persons to whom it has been paid.
2Same.Especially is this the case where the money in the hands of the third person does not come from the
garnishee, but is obtained through the assignment by the defendant in the garnishment proceeding of a
judgment founded upon the debt against which the garnishment has been levied.
3Judgment CreditorRight of Action Against Fraudulent Vendee of Debtor.A judgment creditor, whose
execution has been returned unsatisfied, has a right of action to recover a money judgment against a person
to whom the debtor has transferred property for the purpose of hindering, delaying or defrauding his
creditors, and who has subsequently converted such property into money.
4Such Action is in Equity.An action brought for the purpose of obtaining such a judgment is in equity. The
fact that it is brought in pursuance of an order obtained in a proceeding supplemental to execution does not
make it an action at law.
5Equity CaseJury inSpecial Issues.Where a jury is called to assist in the trial of an equity case only
special issues should be submitted to them. A judgment based upon a general verdict in such an action is
erroneous.
6Endorsee of Promissory NoteRight ofTransferred Causa MortisDonor or His Representatives Alone
to Question.Where a note has been regularly endorsed and delivered by the payee to the endorsee,
neither the maker of the note nor his creditors can challenge the right of the endorsee to receive payment
thereof, upon the grounds that the endorsement was made causa mortis, and that the gift had been
subsequently revoked by the recovery of the donor. Only the donor or his legal representatives could make
such defense.
Appeal from the District Court, Ormsby county; Hon. Richard Rising, District Judge.
On June 4, 1891, A. E. Harris executed and delivered to the defendant, W. H. Chedic, a
promissory note for about $4,000, which was secured by a chattel mortgage upon certain
property situated in Ormsby county, Nevada. This note and mortgage, it is claimed, were
immediately assigned by the mortgagee to his mother, the defendant Adeline A. Chedic, as
security for $3,900 which he then owed her upon a note made by him to his father some time
prior to that, and by his father given to her.
Harris had also executed another chattel mortgage upon the same property to D. C.
Simpson, upon which Simpson commenced an action of foreclosure. On February 10, 1892,
the Chedic note and mortgage were assigned by Adeline back to the defendant W. H., and on
February 11, 1892, he intervened in the action so commenced by Simpson; alleging that he
was the owner of the said note and mortgage, and asking for a judgment thereon against
Harris, and for a foreclosure of the mortgage, as a first lien upon the property.
he was the owner of the said note and mortgage, and asking for a judgment thereon against
Harris, and for a foreclosure of the mortgage, as a first lien upon the property. On May 19,
1892, a decree was duly rendered in his favor, accordingly.
On April 19, 1892, the plaintiff obtained a judgment against the defendant, W. H. Chedic,
for the sum of $1,605, with interest and costs, upon a note made by the latter to him on
October 1, 1890. The next day he duly served a notice of garnishment upon Harris, intended
to garnish the money then owing by him to W. H. upon the note and mortgage then in suit.
August 4, 1892, W. H. assigned the judgment so obtained by him against Harris to the
defendant Adeline, which assignment the plaintiff alleges to have been made and accepted for
the purpose of hindering, delaying and defrauding W. H. Chedic's creditors. February 6, 1893,
both of the defendants assigned the said judgment to Simpson for the sum of $4,195, which
was paid to Adeline.
February 16, 1893, a second execution was issued upon the plaintiff's judgment against W.
H., and thereunder, on the same day, a notice of garnishment was duly served upon the
defendant Adeline, to which she made no answer. Under supplementary proceedings she was
then cited to appear before a referee, where she denied any indebtedness to W. H., and
claimed to be the owner of the money obtained by her from Simpson. Thereupon, an order
was made, authorizing the plaintiff to institute an action against her to recover so much of the
money as might be necessary to pay the plaintiff's judgment against W. H. Chedic, and this
action was then commenced. The execution upon the plaintiff's judgment was returned
unsatisfied.
The complaint asks for judgment against the defendant Adeline for the sum of $2,164.80,
with interest, that being the amount due upon plaintiff's judgment against W. H. Chedic.
Upon the trial, judgment was rendered for the defendants, and the plaintiff appeals.
Trenmor Coffin and James D. Torreyson, for Appellant:
In refusing to submit the special issues to the jury, as raised by the amendment to
plaintiff's complaint, the judge who tried the cause certified Refused, because not disputed
or applicable."
or applicable. This is practically a finding on these issues in favor of plaintiff.
The judgment of the court should have been for the plaintiff upon the well-known
principles of equitable estoppel in pais. Mrs. Chedic having given out by her assignment of
February 10, 1892, that the Harris debt belonged to W. H. Chedic, and this coming to the
knowledge of Hulley, and he relying upon her representations, and having levied upon the
debt by garnishment, Mrs. Chedic is estopped to deny that the debt belonged to W. H.
Chedic. (Sharon v. Minnock, 6 Nev. 378; Hostler v. Hays, 3 Cal. 303; Mitchell v. Reed, 9
Cal. 212; McGee v. Stone, 9 Cal. 606; Bleven v. Freer, 10 Cal. 172; Davis v. Davis, 26 Cal.
23; Brown v. Cudworth, 31 Cal. 149; Martin v. Zellerback, 38 Cal. 300; Quirk v. Thomas, 6
Mich. 78, 118, 121; Horn v. Cole, 51 N. H. 287-300; The Well and Canal Co. v. Hathaway, 8
Wend. 480; 24 Am. Dec. 51 and notes.)
Proceedings supplementary to execution (Gen. Stats., sec. 3262, et seq.) are simply a
substitute for the old creditor's bill in equity, and the proceedings under the statute is a matter
of equity jurisdiction. (Herlich v. Kaufman, 99 Cal. 271; Edgell v. Haywood, 3 Atkins (Eng.),
352; Smith v. Weeks, 60 Wis. 94, and numerous authorities cited; Cargill v. Kountze (Tex.),
Cen. Law Journal, Sept. 1, 1893, p. 170, notes and numerous authorities cited; Adams v.
Hackett, 7 Cal. 201; Freeman on Ex., sec. 394; Am. & Eng. Ency. of Law, tit. Creditors,
vol. 4, p. 573, et seq.; Lynch v. Johnson, 48 N. Y. 33; Waite Fraud. Conveyances and
Creditors' Bills, sec. 61-68 and citations.)
A court of equity is the proper form in which to enforce this demand. (Waite on Fraud.
Convey. and Creditors' Bills, sec. 68 and citations; Cose v. Beauregard, 101 U. S. 688;
Kitchen v. Lowrey, 127 N. Y. 53-60.)
It does not necessarily follow, because a right or remedy is provided or regulated by
statute, that the subject matter is not properly of equitable jurisdiction. The foreclosure of
mortgages is regulated and provided for by statute in this state. (Gen. Stats., secs. 3040, 3049,
3270, 3272.)
The manner of acquiring, foreclosing and enforcing mechanics' liens is provided for and
regulated down to the minutest detail by statute. (Gen. Stats., secs. 3808, 3827.)
Likewise the statutory suit for divorce. (Gen. Stats., secs. 487, 498; Pomeroy's Eq. Jurisp.,
vol. 1, secs. 98, 112.)
An action to quiet title by one in possession is a statutory action, but also purely equitable.
(Gen. Stats., sec. 3278; Low v. Staples, 2 Nev. 209; Pomeroy's Eq. Jurisp., secs. 1395, 1399.)
An action brought under this statute by a party in possession to quiet title to a mining
claim is an equity suit and may be tried and disposed of as such. (See opinion of Justice
Hawley on motion for new trial in Book and Blooey v. Justice Mg. Co., Fed. Rep. (not yet
reported), and numerous authorities cited.)
Equity rights, remedies and practice have been improved and regulated by statute almost
or quite as much as common law, rights, remedies and practice. The Supreme Court of the
United States has twice said upon this subject: Indeed much of equitable jurisdiction
consists of better and more effective remedies for attaining the rights of parties. (Broderick
Will Case, 21 Wall. 520; Holland v. Challen, 110 U. S. 24.)
The decisions of the federal courts, where law and equity are not administered in the same
case, generally make clear distinctions as to what are and what are not suits in equity.
For eleven new statutory rights which are equitable in their nature and are enforced on the
equity side of the courts, see Foster's Fed. Prac., sec. 7 and authorities cited.
This action is to reach equitable assets of W. H. Chedic, which were found to be beyond
the reach of the ordinary summary supplementary proceedings. In such case the statute allows
suit to be brought upon the order of the court. (Gen. Stats., sec. 3268.) The court made an
order authorizing this suit to be brought. It might have been brought independently of the
statute and without the order of court, as a suit in equity to reach the assets of W. H. Chedic.
Two of the chief objects of creditors' bills were to reach equitable assets and to set aside
fraudulent transfers of property. For the pursuit of these objects, supplemental proceedings do
not afford an adequate remedy, and hence both, as formerly, may still be pursued by creditors'
suits. (Freeman on Ex., sec. 394, and authorities cited.)
The pursuit of equitable assets by a suit in equity is well established in this state by
Thompson v. Reno Sv.
established in this state by Thompson v. Reno Sv. Bank, 19 Nev. 103; Ross v. Bank of Gold
Hill, 20 Nev. 191; see, also, Bartlett v. Drew, 57 N. Y. 587, and cases cited.)
Hulley brings this suit to have his lien upon another debt declared in equity a prior lien,
and bases his right to such a decree upon the principles of equitable estoppel in pais. The
defense to the suit is that while the legal title of the Harris note and mortgage were in W. H.
Chedic, Mrs. Adeline A. Chedic was the equitable owner. How can a suit wherein equitable
relief is sought, and wherein equitable ownership of the subject matter is the defense, be
called a common law action?
Mrs. Chedic having by her assignment held out W. H. Chedic as the owner of, and having
put in his power to act and deal with the mortgage as his own, and he having done so, and
Hulley relying upon such action, and having connected himself with the property as the
property of W. H. Chedic by garnishment, Mrs. Chedic is estopped to deny that it was the
property of W. H. Chedic. (McNeil v. 10th Nat. Bk., 46 N. Y. 329; Barstow v. Savage Mg.
Co., 64 Cal. 393.)
Hulley having levied upon the Harris debt to satisfy his judgment, stands in the same
position he would have occupied had W. H. Chedic assigned to him the Harris note and
mortgage to secure his judgment. By his garnishment he became the equitable assignee of
Chedic of the Harris debt. (Sessions v. Stevens, 1 Fla. 233; 46 Am. Dec. 339, notes and
authorities.)
Plaintiff moved the court to submit special issues to the jury. The motion was overruled
and plaintiff excepted. Plaintiff moved the court to submit certain special issues in writing to
the jury embracing some of the vital issues in the case. These were refused and endorsed by
presiding judge, Refused because not applicable or disputed.
The jury returned with a general verdict for defendants. The jury was discharged and
plaintiff requested the court in writing to make special findings covering all the issues of the
case. Plaintiff requested twenty-nine findings which were refused.
The general verdict of the jury was not adopted by the court, and the special findings of
the jury and court do not support the judgment or cover the issues of the case.
court, and the special findings of the jury and court do not support the judgment or cover the
issues of the case.
There was no sufficient consideration for the assignment to Mrs. Chedic. She was not a
purchaser in good faith for value and cannot hold the note and mortgage or judgment thereon
or proceeds thereof as against Hulley, who levied upon it under this execution. (Jones on
Chattel Mort., sec. 292 and authorities cited; Thompson v. Van Vechten, 27 N. Y. 568;
Weaver v. Borden, 49 N. Y. 286; Tiffany v. Warren, 37 Barb. 571; Button v. Rathbone, 126
N. Y. 187; Peo. Savings Bk. v. Bates, 120 U. S. 562.)
A gift causa mortis, or in expectation of death, is a gift made by a person in sickness who,
apprehending his dissolution near, delivers or causes to be delivered to another the possession
of any personal goods to keep as his own in case of the donor's decease. Such transfers as a
rule are not favored by the courts for the reason that they are open to the objection of
uncertainty. (8 Am. & Eng. Ency. of Law, pp. 1341, 1342, and cases cited.)
It is essential to the validity of a gift causa mortis that it be made in expectation or
contemplation of the death of the donor, and such gift is revocable by the recovery of the
donor. It is said that if one deposits money to be given to a charity if he never returns from an
intended long journey, it is not a gift causa mortis, although the donor never returns. (Roberts
v. Draper, 18 Ill. App. 167.)
The expectation or apprehension must be of death, and not of sickness or disability.
If anything, the transfer in this case was only an attempt to make a parole testamentary
disposition of deceased's property.
In Weston v. Hight, 17 Me. 287, the court holds that where the gift was made while the
donor was in expectation of immediate death, and he afterwards so far recovered as to attend
to his business for eight months, but finally died from the same disease, such gift could not be
supported as a donatio causa mortis, there being such a subsequent recovery as vacated the
gift.
In Martin v. Smith, 25 West Va. 579, gifts causa mortis are discussed, and it is held that it
is essential to a valid gift causa mortis, that the donor should make it in his last illness, and in
contemplation and expectation of death, and if he recovers the gift becomes void, citing
the 17 Me., supra.
These cases are further supported by Higgins v. Brown, 7S Me.
and in contemplation and expectation of death, and if he recovers the gift becomes void,
citing the 17 Me., supra.
These cases are further supported by Higgins v. Brown, 78 Me. 470, and further the court
states that in order for such a gift to be valid it must be made during some illness or peril of
the donor, and in contemplation and expectation of death from that illness or peril, and death
must also ensue therefrom, and this is the contingency which takes the property out of the
general law of administration of estates.
This cause was tried by the court with a jury. The verdict was returned and recorded
September 4, 1893. The notice of motion for a new trial was filed and served September 29,
1893, twenty-five days after the verdict was rendered. The record contains no order of the
court or judge or stipulation of counsel extending the time to file and serve notice of motion
for new trial. The statute requires the notice of motion for a new trial to be given within five
days after the rendition of the verdict. (Gen. Stats., sec. 3219.)
Having failed to give the notice of intention to apply for a new trial within the time
prescribed by the statute, the right to make the application is lost. (Hayne on New Tr. and A.,
sec. 17; 1 Cal. 396, 438; 9 Cal. 67; 15 Cal. 315; 16 Cal. 117; 26 Cal. 283; 43 Cal. 626; 49
Cal. 108; 56 Cal. 610.)
The notice of motion for a new trial not having been given in time, the statement on
motion for a new trial must be disregarded, and the motion denied as to all matters set forth
therein so far as they relate to the motion for new trial. Nothing can be considered except
such errors as may be considered on appeal from the judgment. What has been said so far
depends somewhat upon whether the action was at law or in chancery and whether the court
treated the case as one at law and called the jury not to decide the case finally, but as advisory
merely. It is admitted that in a chancery case the court may deny a jury trial and try the case
with or without the finding of a jury. (Gen. Stats., sec. 3205.) But in all cases other than
chancery cases a jury is demandable, and when demanded the court cannot try the case. An
issue of facts shall be tried by a jury, unless a jury trial is waived or a reference be ordered
as provided in this act."
waived or a reference be ordered as provided in this act. (Gen. Stats., sec. 3179.)
The case at bar is not a chancery case, but is a case at law, and was triable by a jury and
not by the court sitting as a chancellor. (Drake on Attachments; Wade on Attachments;
Cohoon v. Levy, 5 Cal. 294; Cohoon v. Levy, 10 Cal. 216; Brennan v. Marsh, 10 Nev. 283.)
The action being at law and not in equity a jury was demandable, and the notice of motion for
a new trial should have been given within five days after the rendition of the verdict. But
whether the case was at law or in equity, a jury trial having been granted and the whole case
submitted to the jury, and the jury having returned both a general and special verdict, the
notice of motion for a new trial should have been given within the statutory time. The words
of the statute, namely, when the action has been tried by a jury, are general; they include all
cases tried by a jury, whether at law or in equity, and in an equity case, where a jury trial is
granted, the notice of motion for a new trial must be given within five days after the rendition
of the verdict. The practice act governs the trial and subsequent proceedings in all cases,
whether at law or in equity, and the court can grant a new trial only when the requirements of
the statute have been complied with. (Hayne on New Trials, sec. 7; Duff v. Fisher, 15 Cal.
375; Gagliardo v. Hoberlin, 18 Cal. 395.)
The case of Duffy v. Moran, decided by this court, does not establish a different rule than
that contended for by respondent. In that case there was nothing in the transcript showing
that the court submitted to the jury anything but the special issue stated, and it being a case of
purely equitable cognizance, we cannot presume the court called the jury for any other
purpose except to be advised by it. (12 Nev. 94, 98.)
In this case, the court below held that the action was at law and not in equity, and granted a
jury trial with a general verdict, refusing to try the case upon special issues. This being an
action at law and having been tried by a jury, the court had no authority to make findings, and
the provision of the statute requiring notice to be given within five days after the rendition of
the verdict must govern.
The rights involved in this action are purely of a legal nature.
nature. No equitable relief is demanded and none could be granted by the court below. And
whether the remedy in any case is in equity or at law depends upon whether the estate or
interest to be protected, or the right asserted and sought to be maintained, is equitable or legal
in its nature. In the former case the jurisdiction is in equity, in the latter at law. (Pomeroy's
Remedies, sec. 359; Pomeroy Eq. Jurisp., sec. 369; Fisher v. Benson, 71 Cal. 429; Van Vleet
v. Olen, 4 Nev. 96; Peo. v. Center, 66 Cal. 551; Hyde v. Redding, 74 Cal. 497.)
The right to move for a new trial having been lost by failure to give the notice within
proper time, we need only consider the case on appeal from the judgment.
Appellant's point 1, namely, that the facts present an equitable estoppel in pais; that Mrs.
Chedic is estopped to deny that the debt belonged to W. H. Chedic, is not well taken for two
reasons: 1. The notice and statement on motion for new trial being disregarded the point
cannot be considered on appeal from the judgment. 2. The facts, could they be considered, do
not raise an estoppel.
What respondent Adeline Chedic did, and all she did, was to assign the note and mortgage
in question to W. H. Chedic, putting the legal title thereto in him for the sole purpose of the
intervention; she made no representations to Hulley of any kind, nor did Hulley act upon any
representations, real or supposed, made by her or by any one for her.
Mrs. Chedic in no manner defrauded Hulley. She committed no act, nor did she suffer W.
H. Chedic to commit any act prejudicial to Hulley's rights. She is neither guilty of turpitude or
negligence, nor was she silent when knowledge or duty, legal or moral, called upon her to
speak.
The law of estoppel, as applicable to this case, is well settled. There must be a false
representation or concealment of a material fact. (Pittsburg v. Danforth, 56 N. H. 272;
Griffith v. Wright, 6 Cal. 248.)
The representation must be made with knowledge of the facts. (Wright's Appeal, 99 Pa. St.
425; 50 Conn. 84; 40 Ga. 181; 95 Ill. 315; 73 Ind. 315; 137 Mass. 189.)
The law of estoppel by act or declaration is well stated by Justice Field in Biddlebogg v.
Merced Mg. Co., 14 Cal. 367.
The party to whom the representation is made must have been ignorant of the truth.
been ignorant of the truth. (Williams v. Wadsworth, 51 Conn. 277; 72 Ind. 475; 105 Ill. 318;
98 Mass. 532.)
The representation must have been made or the act done with the intention that it should
be acted upon. (63 Ala. 585; 47 Conn. 224; 50 Mich. 189; 68 Me. 232; 109 Mass. 53.)
The representation must have been acted upon. (48 Conn. 101; 105 Ill. 318; 70 Me. 190;
80 Mo. 504, 639; 139 Mass. 290; 28 Fed. Rep. 110; Bigelow on Est., 4th ed., 552; 7 Am. &
Eng. Ency., pp. 12-17 and notes.)
If Mrs. Adeline A. Chedic had told Hulley, which she did not, that W. H. Chedic owned
the note and mortgage, Hulley not having disclosed to her his intention to levy upon it, this
would not estop her from claiming it (Fountain v. Whelpley, 77 Me. 132), at least as to the
original demand or anything except costs and damages occasioned by the levy.
To allow estoppel in the absence of willful deceit or influence to more than restore the
injured party would be grossly inequitable.
The court did not err in refusing the special issues proposed for Hulley. The special issues
offered were immaterial and evidentiary merely. If the case was in equity the court had the
discretion to deny any or all special issues. (Gen. Stats., sec. 3205; 57 Cal. 625; 59 Cal. 263;
4 Nev. 95.)
If it was at law the discussion is clearer still. If it was the conclusion, intention or
understanding of the jury that the special finding carried a general verdict for the defendants,
it was not error for the court to tell the jury that if such was their understanding they should
find a general verdict for the defendants. The special verdict entitled defendants to a general
verdict.
The third general point discussed in the brief for appellant is irrelevant to the case. The
point cannot be considered on appeal from the judgment. The gift was not a gift causa mortis.
Trenmor Coffin and J. D. Torreyson, for Appellant, in reply:
By section 3219, Gen. Stats., notice of motion for new trial may be given within ten days
after receiving written notice of the decision of the judge. The decision of the judge in this
case was rendered and judgment entered September 15, 1893. No notice in writing of the
decision of the judge was ever given.
ever given. Both the notice of motion for a new trial and the statement were filed and served
September 29, 1893, and were in time. (Bell v. Maist, 80 Cal. 411; Duffy v. Moran, 12 Nev.
95; Simpson v. Harris, 21 Nev. 376, and authorities therein cited.)
In Duffy v. Moran, supra, the brief for appellant is apt and in point in this case. It is as
follows: The court erred in refusing to hear the case on its merits. The judge was not bound
by the special issues found by the jury. It was useless to move for a new trial until after the
decision of the court was rendered. Until that time plaintiff was unable to state whether he
wanted a new trial. (Minturn v. Hayes, 2 Cal. 593; Smith v. Rowe, 4 Cal. 6; Walker v.
Sedgwick, 5 Cal. 192; Still v. Saunders, 8 Cal. 287; Mahoney v. Caperton, 15 Cal. 313;
Crowther v. Rowlandson, 27 Cal. 376; Freeman v. Stevenson, 63 Cal. 499; Sweetser v.
Dobbins, 55 Cal. 529; Sullivan v. Royer, 72 Cal. 250; Wallace v. Maples, 79 Cal. 438.)
The case being in equity, and tried by the court with a jury as advisory to the court, the
notice, statement and motion for new trial were in time. If it could be inferred from the record
that the case was tried by a jury against appellant's objections, it was error and may be
reviewed on appeal. (Simpson v. Harris, 21 Nev. 375, et seq.)
If there was ever any question as to the notice of motion for a new trial, and the statement
being in time, the question was waived in the district court by respondents and cannot now be
raised for the first time in this court. Respondents waived the point by an unconditional
acceptance of service of the notice of motion for a new trial and of the statement, and by
submitting the motion without raising the question. (Simpson v. Budd, 91 Cal. 488; Johnson
v. Wells, Fargo & Co., 6 Nev. 225; Hodgdom v. Griffin, 56 Cal. 60; Brichman v. Ross, 67
Cal. 601; Gray v. Newnam, 63 Cal. 220; Patrick v. Morse, 64 Cal. 462.)
Respondents admit that the statement in the transcript is a good statement on appeal.
(Elder v. Frevert, 18 Nev. 279.)
The ignoring of the law of estoppel by the judge, the taking of that question from the jury, the
refusal to instruct the jury or submit special issues upon the question to the jury, or to make
findings upon those issues, were errors of law, and we do not understand upon what theory
counsel contends that they cannot be reviewed upon appeal from the judgment.
that they cannot be reviewed upon appeal from the judgment. (Cooper v. Ins. Co., 7 Nev.
116; Burbank v. Rivers, 20 Nev. 85.)
Chedic having assigned the Harris note and mortgage to W. H. Chedic for him to deal with it
as his own, and while he was so dealing with it, Hulley having levied upon the Harris debt,
respondents are now estopped to deny that the Harris debts belonged to W. H. Chedic. (Drew
v. Kimball, 43 N. H. 282; 80 Am. Dec. 163, notes and authorities; Caldwell v. Auger, 4 Minn.
217; 77 Am. Dec. 515; Mitchell v. Reed, 9 Cal. 204; 70 Am. Dec. 647; Davidson v. Dwyer,
62 Iowa, 332; Hughes v. McAllister & Co., 15 Mo. 296; 55 Am. Dec. 143; Saltus v. Everell,
20 Wend. 267; 32 Am. Dec. 542, notes and authorities, p. 554; Moore v. Moore, 112 Ind.
149; 2 Am. St. Rep. 170; Velsian v. Lewis, 15 Or. 539; 3 Am. St. Rep. 184-94, notes and
authorities, p. 201; Hill v. Wand, 47 Kan. 340; 27 Am. St. Rep. 288-93, notes and authorities,
p. 295; Graham v. Thompson, 55 Ark. 296; 29 Am. St. Rep. 40; Casler v. Byres, 129 Ill. 257;
Stayton v. Graham, 139 Pa. St. 1-12; Trustees v. Smith, 118 N. Y. 634.)
The assignment of June 4, 1891, by W. H. Chedic to Mrs. Chedic was fraudulent and void
as to Hulley. Hulley was a creditor of W. H. Chedic from and after November 21, 1888. (Gen.
Stats., sec. 2633; Lawrence v. Burnham, 4 Nev. 361; Chamberlain v. Stern, 11 Nev. 268;
Wilson v. Hill, 17 Nev. 401.)
When a gift causa mortis is made, it is always subject to the implied condition that if the
donor recovers, or if the donee die first, the gift shall be void. The recovery of G. W. Chedic
from his illness, ipso facto revoked the gift. His recovery left the matter as if the gift had
never been made or attempted. (Merchant v. Merchant, 2 Bradf. N. Y. 432; Staniland v.
Willott, 12 Eng. L. & Eq. 42.)
By the Court, Bigelow, J. (after stating the facts):
To the proper disposition of this case, it seems necessary to first determine what are the
plaintiff's rights under the allegations of his complaint, and what were the issues to be
determined upon the trial. Admitting, as contended by the plaintiff's attorneys, that by the
assignment made February 10, 1892, from Adeline A. Chedic to W. H. Chedic, the latter
became vested with such a title to the note and mortgage as made the debt owing by
Harris subject to the claims of W. H. Chedic's creditors, we are of the opinion that the
plaintiff, by his garnishment of Harris, obtained no claim upon the money received by her
in consideration of the assignment of the judgment to Simpson.
became vested with such a title to the note and mortgage as made the debt owing by Harris
subject to the claims of W. H. Chedic's creditors, we are of the opinion that the plaintiff, by
his garnishment of Harris, obtained no claim upon the money received by her in consideration
of the assignment of the judgment to Simpson.
This conclusion is based upon two grounds: (1) However it may be with specific property
in the hands of a garnishee, our conclusion is that garnishment does not give the creditor any
lien upon a debt owing by the garnishee to the debtor in the action, nor upon any money or
property with which he may afterwards pay it. The books speak of it as giving a quasi
liensuch a lien as will justify the garnishee in refusing to pay his creditor until the
garnishment is disposed of, and as will give the creditor a right of action against the garnishee
for any money or property in his hands owing or belonging to the party against whom the writ
runs (Wade, Attachm., sec. 329), but not such a lien as will enable the creditor to follow any
money that may be paid thereon into the hands of third persons. The only case cited as
sustaining a contrary view is that of Sessions v. Stevens, 1 Fla. 233, where the point involved
was the right of an assignee of a note to maintain an action against the maker where, previous
to the assignment, the maker had been garnished in an action against the payee, and judgment
obtained against him in the garnishment proceedings. That, of course, is quite a different
question from the one we have here, and, as applied to this case, some of the language used is
a little too strong. The authorities are in conflict as to whether a garnishment creates such a
lien upon specific property in the hands of the garnishee as will enable the garnisher to follow
it into the hands of third persons. Among those in the affirmative we may cite Focke v. Blum,
82 Tex. 436, 17 S. W. 770, and Reed v. Fletcher, 24 Neb. 435, 39 N. W. 437; while, in the
negative, we find Bigelow v. Andress, 31 Ill. 333; McGarry v. Coal Co., 93 Mo. 237, 6 S. W.
81; Mooar v. Walker, 46 Iowa, 164; McConnell v. Denham, 72 Iowa, 494, 34 N. W. 298;
Johnson v. Gorham, 6 Cal. 195; Wade, Attachm., secs. 325, 334, 338; Drake, Attachm., sec.
453; Brown, Jur., sec. 149. But, as already remarked, this is not the question here,
butviewing the case most favorably to the plaintiffwhether, by garnishment of a debtor,
a right can be obtained which will enable the creditor to follow money paid upon the debt
into the hands of third persons; and we do not hesitate to say that it cannot.
garnishment of a debtor, a right can be obtained which will enable the creditor to follow
money paid upon the debt into the hands of third persons; and we do not hesitate to say that it
cannot. Such a debt can be paid by any legal-tender money. No particular pieces belong to the
creditor; and it would be, under such circumstances, an anomalous thing to hold that a lien
can be obtained upon that which may be paid to him or his assignee. To so hold would be
equivalent to determining that a garnishment creates a lien on all the garnishee's property
which might subsequently be delivered in settlement of the debt; but, clearly, that is not the
law. (Drake, Attachm., sec. 226, and cases cited.) (2) The money in the hands of Adeline A.
Chedic is money received by her, not, so far as is shown by the complaint, from Harris, the
garnishee, but from Simpson, upon the assignment of the judgment to him. Admitting that the
garnishment of Harris would bind the money that he might subsequently pay upon his
indebtedness to W. H. Chedic or his assignee, so that, by reason of its receipt, the plaintiff
would have a cause of action against the assignee, that is not the situation here. Certainly, the
garnishment could not have the effect to prevent Chedic from assigning his judgment. The
garnishment was only for about $2,000, while the judgment was for $4,000. Subject only to
the garnishment, the judgment was his, to dispose of as he saw fit. Possibly, the purchaser
would take it subject to the garnishment, but it would not prevent Chedic from assigning it
all. Nor would these facts make his assignee, who might again assign it, responsible to the
garnisher for money received upon the assignment. Proof of these matters might be
admissible upon the question of fraud, still to be considered; but they do not, of themselves,
constitute a cause of action against Mrs. Chedic.
2. It is, however, alleged in the complaint that the execution upon the plaintiff's judgment
has been returned unsatisfied, and that the assignment of the judgment by W. H. Chedic to his
mother was without consideration, and was made and accepted for the purpose of hindering,
delaying, and defrauding his creditors. We are of the opinion that, if these allegations are
supported by the proofs, they are sufficient to entitle the plaintiff to a judgment against
Adeline for the amount of his judgment against W. H. Chedic. The complaint shows that W.
H. Chedic obtained the judgment against Harris.
complaint shows that W. H. Chedic obtained the judgment against Harris. Presumptively it
belonged to him. As such, it constituted property that was subject to the claims of his
creditors, and if assigned by him, and received by the assignee, for the purpose of defrauding
his creditors, the assignee held it in trust for the creditors; and if she subsequently assigned it
to another, as it is alleged she did, then the money received by her upon the assignment is
held subject to the same trust. (Ferguson v. Hillman, 55 Wis. 181; Bank v. Wilson, 74 Wis.
391; Murtha v. Curley, 90 N. Y. 372; Fullerton v. Viall, 42 How. Pr. 294; 2 Bigelow, Fraud.
420; Bump, Fraud. Conv., 567; Wait, Fraud. Conv., sec. 177.) The charge of fraud is denied
in the answer, and it is this allegation and denial that constitute the issue to be tried in the
action.
3. A jury trial was demanded by the defendants, but objected to by the plaintiff, who
contended that the case was one in equity, and should be tried by the court, or, if a jury were
called, that only special issues should be submitted to it. The court ruled that the action was at
law, and should be submitted to the jury for a general verdict; and at the close of the
testimony it was, against the plaintiff's objections, accordingly so submitted. A general
verdict was found, upon which judgment was rendered for defendants. In this ruling, we are
of the opinion that the learned judge fell into error. The principle concerning the right of a
party to a jury trial is thus stated in Fish v. Benson, 71 Cal. 428, 435: Both courts of law and
in equity, in proper cases, have jurisdiction in cases of fraud; and when the facts constituting
the fraud, and the relief sought, are such as are cognizable in a court of law, the parties are
entitled to a jury trial. But where the case, as made by the pleadings, involves the application
of the doctrines of equity, and the granting of relief which can be obtained in a court of
equity, and not elsewhere, the parties are not entitled to a jury trial.
Under our system, where law and equity are administered by the same court, and in actions
which, in form, in no wise differ from one another, it is sometimes somewhat difficult to
determine whether the action is at law or in equity, or, perhaps more accurately, whether it
calls for legal or equitable relief. The rule for determining this is well and accurately stated in
Cole v. Reynolds, 1S N. Y. 74, 76, as follows: "The principles by which the rights of the
parties are to be determined remain unchanged.
stated in Cole v. Reynolds, 18 N. Y. 74, 76, as follows: The principles by which the rights of
the parties are to be determined remain unchanged. The code has given no new causes of
action. In some cases parties are allowed to maintain an action who could not have
maintained it before, but in no case can such an action be maintained when no action at all
could have been maintained before upon the same state of facts. If, under the former system, a
given state of facts would have entitled a party to a decree in equity in his favor, the same
state of facts in an action prosecuted in a manner prescribed by the code will now entitle him
to a judgment to the same effect. If the facts are such that at the common law the party would
have been entitled to a judgment, he will, by proceeding as the code requires, obtain the same
judgment. The question, therefore, is whether, in the case now under consideration, the facts,
as they are assumed to be, would, before the adoption of the code, have sustained an action at
law or a suit in equity.
The action against Adeline Chedic is based upon a state of facts in which, prior to the
code, relief could only have been obtained in a creditor's suit in equity. The property sought to
be made subject to the plaintiff's demand could not be reached or levied upon by an officer.
In cases where the legal title to the property is such that it cannot be seized under execution,
resort to equity is necessary. (Mulford v. Peterson, 35 N. J. Law, 127, 133.) The plaintiff has
no title to the money in Mrs. Chedic's hands, nor had he any to the judgment through which
she obtained it. He has simply an equitable right to demand that she shall account for his
debtor's property, which has been fraudulently conveyed to her, and subsequently converted
into money. As a legal demand, the complaint states no cause of action whatever, (Murtha v.
Curley, 47 N. Y. Super. Ct. 393; Wellington v. Small, 3 Cush. 145; Lamb v. Stone, 11 Pick.
527; Moody v. Burton, 27 Me. 427; Wait, Fraud. Conv., sec. 62), but is sufficient in equity. In
Ferguson v. Hillman, 55 Wis. 181, 191a cause quite like the presentthe court, speaking
by Mr. Justice Taylor, said: The original conveyance being void as to creditors, no title, as to
them, ever passed to the grantee; and if he sells it, and receives the money, he must hold the
money for the benefit of the creditors. In equity, such money in the hands of the fraudulent
grantee is held for the benefit of the creditors; and although they may not be able to
maintain an action at law for money had and received for their use, because they were
never the owners of, or had the title to, the property which had been converted into such
money, yet a court of equity, having all the parties interested before it, may make such
order as to the application thereof as may be just."
in the hands of the fraudulent grantee is held for the benefit of the creditors; and although
they may not be able to maintain an action at law for money had and received for their use,
because they were never the owners of, or had the title to, the property which had been
converted into such money, yet a court of equity, having all the parties interested before it,
may make such order as to the application thereof as may be just.
Murtha v. Curley was an action brought to recover a money judgment against the
defendant, upon the ground that he had, for the purpose of hindering, delaying, and
defrauding the creditors of one Doyle, of which the plaintiff was one, taken a mortgage from
Doyle upon certain personal property, which he had subsequently foreclosed, and converted
the proceeds to his own use. The plaintiff obtained judgment, but upon appeal to the general
term (47 N. Y. Super. Ct. 393) the judgment was reversed; that court being of the opinion that
the action was one at law, and, as such, not maintainable. The plaintiff then carried the case to
the court of appeals (90 N. Y. 372), where the latter judgment was, in turn, reversed; the court
of appeals, while admitting the correctness of the decision of the general term, if the action
were one at law, coming to the conclusion that it was in equity, and consequently properly
brought. In delivering the opinion, Mr. Justice Earl said: It appears from the opinion
pronounced at the general term that the action was there treated, not as a creditor's bill, but as
an action at law to recover damages for the fraud alleged, and the conclusion reached was that
such an action could not be maintained; and the decision of the general term was sought by
Curley's counsel to be sustained, in his argument before us, upon the same ground. We are of
the opinion that the learned general term fell into error. The complaint contains all the
allegations requisite for what is commonly called a creditor's bill,' to wit, that the plaintiff
was a creditor of Doyle, having a judgment and execution returned unsatisfied, that the
mortgages were executed by Doyle with the intent to hinder, delay, and defraud his creditors;
and that Curley had converted the mortgaged property by a sale, and had taken the proceeds
to his own use. It is argued, however, that the right to maintain this action came through the
order authorizing it, made the supplemental proceeding against Adeline Chedic; that, as
that was a statutory proceedinga proceeding at lawthe action authorized by it must
also be an action at law.
authorizing it, made in the supplemental proceeding against Adeline Chedic; that, as that was
a statutory proceedinga proceeding at lawthe action authorized by it must also be an
action at law. This does not follow. In authorizing an action, the statute, of course, means the
kind of action calculated to give the proper remedy. It may be that in some cases an action at
law would furnish full relief, while in others it would not. In fact, in a case founded, as this is,
upon a fraudulent transfer of property, it does not seem to be necessary to resort to
supplemental proceedings at all; and consequently, without such order, the action could be
maintained. The rule is correctly stated in 2 Freem. Exns., sec. 394, as follows: But two of
the chief objects of creditors' bills were to reach equitable assets, and to set aside fraudulent
transfers of property. For the pursuit of these objects, supplemental proceedings do not afford
an adequate remedy; and hence both, as formerly, may still be pursued by creditors' suits.
Besides the numerous cases cited by Mr. Freeman, see, to the same effect, Herrlich v.
Kaufmann, 99 Cal. 271; Bank v. Wilson, 74 Wis. 391, 399; Bufford v. Holley, 28 Fed. 680.
4. Being an equity case, only special issues should have been submitted to the jury; and it
was clearly error to direct them, against the plaintiff's objections, to find a general verdict,
and then to render judgment thereon as in an action at law. (Dunphy v. Kleinschmidt, 11
Wall. 610, 615; Simpson v. Harris, 21 Nev. 353, 376, and cases cited.)
5. From the defendants' testimony, it appears that the note which they claim was owing by
W. H. Chedic to Adeline Chedic, and to secure which he assigned the judgment in the
foreclosure suit, was indorsed and delivered by the payee, his father, to Adeline, a month or
two before his death. The plaintiff contends that the evidence also shows the transaction to
have been a gift in expectation of death; that he recovered from the illness from which he was
then suffering; that this recovery had the effect to revoke the gift; and, consequently, that she
had no title to the note; and, aside from that, he owed her nothingthe transfer of the
judgment to her was without consideration. Upon this theory the plaintiff requested the court
to submit several special issues, and afterwards to make findings concerning the matter,
which were all refused.
were all refused. We are of the opinion that these rulings were correct. The note had been,
according to the testimony, actually indorsed and delivered to Adeline Chedic. Thereby, the
legal title had been transferred to her; and this gave her the right to enforce payment, without
regard to the relations existing between herself and the indorser. As to the maker of the note,
except, possibly, in so far as he may have had an offset against the payee, the note was hers.
The gift was not void, but voidable; and that only by the donor, or his lawful representative.
(Prouty v. Roberts, 6 Cush. 19; Carrier v. Sears, 4 Allen, 336; Brown v. Penfield, 36 N. Y.
473; Poorman v. Mills, 35 Cal. 118.)
But, of course, without regard to this question, and without regard to whether anything was
or was not owing from W. H. Chedic to his mother, if the assignment was made and accepted
for the purpose of hindering, delaying or defrauding his creditors, as to those creditors it was
void. (Simpson v. Harris, 21 Nev. 353, 375.) If there was no consideration, the fraud would
simply be a little easier to prove. (Wait, Fraud. Conv., sec. 208.)
Judgment reversed, and cause remanded for a new trial.
____________
22 Nev. 146, 146 (1894) Gardner v. Pierce
[No. 1397.]
IDA L. GARDNER and J. H. GARDNER, Plaintiffs and Appellants, v. ZADOCH PIERCE,
Defendant and Respondent.
1RecordsNotices By.The laws of Nevada import notice to all persons of the contents of duly recorded
instruments.
2Estoppel by Silence.The ground upon which estoppel by silence proceeds is in all respects governed by
the same principles as estoppel by declarations or statements, and is based upon fraud, actual or
constructive, on the part of the person sought to be estopped. Held, that in absence of proof that
respondent intended to deceive appellants, no estoppel is made out against him.
3EstoppelParty Relying upon Must Show Diligence, Etc., on His Own Part.A party setting up and relying
upon an estoppel is himself bound to show the exercise of due diligence and good faith on his own part in
his endeavor to ascertain the truth of statements upon which he claims to have relied and acted.
4DiligenceWhat IsQuestion of Fact for Court or Jury.What is reasonable diligence on the part of a
party seeking to establish an estoppel against another, is a question of fact to be ascertained and passed
upon by the court or jury after taking into consideration all the circumstances of the case.
Appeal from the District Court, Ormsby county; Richard Rising, District Judge.
The facts are shown in the opinion.
Trenmor Coffin, for Appellants:
Plaintiffs, with the knowledge of defendant, were in possession of the land under a deed
from parties, who, together with their grantors, had been in possession of it for more than
fifteen years.
Defendant contributed to the information which led plaintiffs to believe that their grantors
had the right to sell and convey. The case is clearly within the rule of all decisions on the
subject of equitable estoppel. Judgment was for defendant; it should have been for plaintiffs.
(Sharon v. Minnock, 6 Nev. 386, et seq. and authorities there cited; Godfrey v. Caldwell, 2
Cal. 487; Hostler v. Hays, 3 Cal. 303; Parke v. Kilham, 8 Cal. 77; Bryan v. Romerez, 8 Cal.
462; Mitchell v. Reed, 9 Cal. 404; McGee v. Stone, 9 Cal. 600; Bleven v. Freer, 10 Cal. 172;
Snodgrass v. Ricketts, 13 Cal. 360; Carpenter v. Thurston, 24 Cal. 370; Davis v. Davis, 26
Cal. 23; Bowman v. Cudworth, 31 Cal. 149; Martin v. Zellerback, 38 Cal. 300; Quirck v.
Thomas, 6 Mich. 78; Horn v. Cole, 51 N. H. 287, and authorities cited.)
The testimony shows that plaintiffs and their grantors had been in open, notorious, adverse
peaceable possession of the land for more than fifteen years, with the knowledge and
acquiescence of defendant.
The findings of the court in this case cannot be accounted for except upon the supposition
that the learned judge who made the findings either entirely overlooked or ignored the whole
doctrine of equitable estoppel in pais, than which no doctrine is more firmly founded upon
nor more strongly entrenched behind the fundamental principles of equity.
Torreyson & Summerfield, for Respondent:
To justify a court of equity in subordinating the record title of lands to an equitable title
founded only upon a claim of estoppel in pais, the proofs should be clear, convincing and
decisive. (Bryan v. Ramirez, 8 Cal. 468.)
Evidence of estoppel in pais should be carefully scrutinized, as it is a dangerous species
of evidence liable to abuse.
nized, as it is a dangerous species of evidence liable to abuse. (Davis v. Davis, 26 Cal. 24.)
The protection which the law gives to those holding titles or security upon land upon the
faith of records, should not be destroyed or lost except upon clear evidence showing a want of
good faith in the party claiming their protection, and a clear equity in him who seeks to
establish a right in hostility to him. (Brown v. Volkening, 64 N. Y. 821.)
Bigelow, in his excellent treatise on Estoppel, 3d ed., 484, enumerates five distinct
elements, and concludes that all of them must actually or presumably be present in order to
sustain an estoppel in pais. Thus:
(a) There must have been a false representation or a concealment of material facts.
(b) The representation must have been made with knowledge of the facts. An estoppel in
pais cannot be relied upon by the party claiming its benefit unless he proves that the party
making the representation had actual or constructive knowledge that the other party at the
time intended to act upon it. (Andrews v. Lyons, 11 Allen, 351; Bigelow Est., 3d ed., 529.)
The party making admissions or representations must, at the time, know the true state of
his own title to be estopped. (Smith v. Penny, 44 Cal. 161; Davenport v. Turpin, 43 Cal. 597;
Martin v. Zellerback, 38 Cal. 300; Davis v. Davis, 26 Cal. 23.)
(c) The party to whom it was made must have been ignorant of the truth of the matter.
Parties are estopped from claiming ignorance. (Biddleboggs v. Merced Mg. Co., 14 Cal. 368;
26 Cal. 23; 38 Cal. 300; 44 Cal. 161; Brant v. Virginia Coal & Iron Co., 95 U. S. 337;
Bigelow on Est., 3d ed., 541.)
Equity will not aid the negligent. Appellants were so culpably negligent that they not only
failed to make or cause to be made any search of the records, but never made any inquiries to
learn who was the owner of the land.
(d) It must have been with the intention that the other party should act upon it.
(e) The other party must have been induced to act upon it. Only parties and their privies
are bound by the representation, and only those to whom the representation was made or
whom it was intended to influence and their privies, may take advantage of the estoppel.
may take advantage of the estoppel. (Kinney v. Whiton, 44 Conn. 272; Townsend Sv. Bank v.
Todd, 47 Conn. 190; Mayenberg v. Haynes, 50 N. Y. 75; Morgan v. Spangler, 14 Ohio St.
102; Harvey v. West, 13 S. E. Rep. 693; Big. on Est. 3d ed., 508.)
It is true that in a case relating to personal property the supreme court of California
(Mitchell v. Reed, 9 Cal. 204) has taken a different view, but that decision is in conflict with
the great weight of authority, and is expressly disapproved in Kinney v. Whiton, 44 Conn.
272.
Appellants could have easily, readily and conveniently ascertained in whom the title to the
land rested by examining the record. Standing by in silence will not estop a man from
asserting his title when it is of record in the proper office, unless he has done some
affirmative act to mislead the other party, and equity imposes no duty of speaking in such
case. (Ferris v. Coover, 10 Cal. 590; Boles v. Perry, 51 Me. 449; Mason v. Philbrook, 70 Me.
57; Ice v. Dewey, 54 Barb. 455; Mayo v. Cartwright, 30 Ark. 487; Sulphine v. Dunbar, 55
Miss. 255; Kingman v. Grahan, 51 Wis. 232; Kneuff v. Thompson, 16 Pa. St. 357; Markham
v. O'Connor, 52 Ga. 183; Big. on Est., 3d ed., 502.)
Silence does not estop unless it operates as a fraud. (Stockman v. Riverside Co., 64 Cal.
57; Stone v. Bumpus, 40 Cal. 428; Kelly v. Taylor, 23 Cal. 15.)
The authorities cited by appellants, with the exception of Mitchell v. Reed, 9 Cal. 404; 6
Mich. 78, and 51 N. H. 287, sustain respondent's contention in this action, notably so the case
of Sharon v. Minnock, 6 Nev. 386.
Respondent most earnestly urges that the pretenses of appellants are too flimsy in character,
are too palpably insincere and are too utterly devoid of equity to justify a court in destroying a
record title of ten years' standing.
Trenmor Coffin, in reply, for Appellants:
It is not denied that a Nevada state patent issued to Zadoch Pierce was on record in the
office of the secretary of state. Such record is not made notice by the law of anything to
anybody. It is not denied that such patent was on record in Lyon county, but there is nothing
in the record to show that any portion of the land described in plaintiff's complaint is
embraced in the patent.
show that any portion of the land described in plaintiff's complaint is embraced in the patent.
The text of Bigelow on Estoppel, and very numerous authorities cited in support of the
text, seem to place all constructive notice, by record or otherwise, in a lower or subordinate
rank to estoppel in pais. It seems that one may rely absolutely upon the words and conduct of
another without making further inquiry, and as against the person whose words and conduct
are relied upon no record or fact to the contrary will prevail.
Having heard the words of respondent, and observed his conduct, appellants were not
required to seek to discredit him either by record or parole. (Bigelow on Est., chap. XVIII, 2d
ed., especially pp. 452, 458-60, and authorities cited.)
False representation, if relied upon by a party ignorant of the truth, may create an estoppel
in his favor, although he had constructive notice of their falsity by matter of record. One who
claims the benefit of an estoppel on account of representations made must show that he was
ignorant of the truth and acted upon the false representations; but to defeat the estoppel on
that ground actual and not constructive knowledge is necessary. The very representations
relied upon may have caused the party to desist from inquiry and neglect his means of
information, and it does not rest with him who made them to say that their falsity might have
been ascertained, and it was wrong to credit them. To this principle many authorities might be
cited. (93 Ind. 480; 47 Ark. 335; Big. on Est., 627; 103 Mass. 103; 38 Mo. 55; 58 Miss. 30;
19 Minn. 32; 55 Kan. 296; 29 Am. St. Rep. 40; 100 U. S. 578; 101 U. S. 494-99; 102 U. S.
69; 8 Cir. (Mo.), 11 Fed. Rep. 31; 3 McCreary, 507; 14 Ohio St. 414; 84 Am. Dec. 405; 30 N.
Y. 519; 86 Am. Dec. 406-11; 48 Mo. 325; 8 Am. Rep. 104; 5 Call (Va.) 463; 2 Am. Dec.
593; 2 Yerger (Tenn.) 394; 24 Am. Dec. 492; 1 Blackford (Ill.) 150; 12 Am. Dec. 217; 13 Pa.
St. 376; 53 Am. Dec. 482; 19 Ala. 430; 54 Am. Dec. 194; 15 Mo. 296; 55 Am. Dec. 143; 21
Conn. 451; 56 Am. Dec. 371; 2 Cal. 489; 56 Am. Dec. 360; 5 La. An. 367; 52 Am. Dec. 367;
11 Pa. St. 419; 51 Am. Dec. 559; 8 Cal. 461; 68 Am. Dec. 310; 40 Me. 348; 63 Am. Dec.
665; 38 Cal. 300; 99 Am. Dec. 365; 41 Ga. 162; 5 Am. Rep. 526; 49 Mo.
49 Mo. 231; 8 Am. Rep. 129; 51 N. H. 116; 12 Am. Rep. 67; 93 Ind. 570; 47 Am. Rep. 394;
69 Tex. 38; 5 Am. St. Rep. 23; 84 Ala. 570; 5 Am. St. Rep. 401; 31 S. C. 153; 17 Am. St.
Rep. 22; 77 Mich. 625; 18 Am. St. Rep. 424; 47 Kan. 340; 27 Am. St. Rep. 288-93; 94 Ala.
170; 33 Am. St. Rep. 105.)
Although appellant Ida L. Gardner testified that respondent never told her that he had
traded the land or agreed to trade it, it is not disputed that he told many others so and that his
declarations came to her knowledge. This was sufficient to operate as an estoppel the same as
if the statements had been made directly to her. (Mitchell v. Reed, 9 Cal. 404, cited and
followed in Horne v. Gale, 51 N. H. 287-94, and authorities cited.)
The record of respondent's patent could not affect appellants' title nor the estoppel which
respondent has raised up in favor of appellants and against himself. (Sharon v. Minnock, 6
Nev. 378, 90, 91; McCabe v. Gray, 20 Col. 516; Long v. Dollarhide, 24 Cal. 227.)
It is not understood to be necessary in order to work an estoppel in pais that the statements
or conduct of a party must be directly addressed to or intended to deceive the very person who
is deceived and afterwards invokes the estoppel, but that it is sufficient if one acts upon them
as a reasonable person would reasonably act, and is thereby misled to his prejudice. (Trustees
v. Smith, 118 N. Y. 634; Mitchell v. Reed, 9 Cal. 204; 70 Am. Dec. 647; 14 Mo. 482; 55 Am.
Dec. 113-118; 8 Cal. 461; 43 N. H. 282; 12 Am. Rep. 111; 85 Am. Dec. 445; 90 Am. Dec.
462.)
It is not more the statements and conduct of respondent before and at the time of Mrs.
Gardner's purchase that estops him, than it is his conduct while she was making the
improvements. (118 N. Y. 634; 6 Nev. 378; 35 Vt. 218; 2 Cal. 489; 56 Am. Dec. 362; 3 Cal.
303; 8 Cal. 78; 8 Cal. 468; 9 Cal. 600; 31 Cal. 149; 93 Ind. 570; 47 Am. Rep. 394.)
The preponderance of authority supports Mitchell v. Reed, 9 Cal. 204, at least in as great a
proportion as shown in 44 Conn., that of three to one.
Respondent, by trading or exchanging or agreeing to trade or exchange lands with Lee and
Sanders and making public declaration thereof by changing the public highway to conform to
the exchange by taking possession of and fencing the land, etc., held out Lee and Sanders to
the world as the owners thereof, and is now estopped to allege to the contrary as against
appellants who have dealt with them as such owners.
land, etc., held out Lee and Sanders to the world as the owners thereof, and is now estopped
to allege to the contrary as against appellants who have dealt with them as such owners. (47
Kan. 340; 27 Am. St. 288, 93; 88 Mo. 418; 57 Am. Rep. 424; 2 Am. St. Rep. 170; 13 Am. St.
Rep. 184; 90 Am. Dec. 460-62; 118 N. Y. 633; 129 Ill. 657; 139 Pa. St. 1-11; 15 Am. Dec.
217.)
Concerning motion for a new trial, vide sec. 197, civil practice act, as amended. (Stats.
1893, p. 88.)
This is an action to quiet the plaintiffs' title to certain real estate situated in Smith valley,
Lyon county, Nevada, consisting of two acres, described in the complaint, upon which the
plaintiffs have filed a declaration of homestead. In the complaint it is averred that the
plaintiffs are husband and wife. That Ida L. Gardner purchased the land described in the
complaint from W. H. Lee and William Sanders on the 14th day of February, 1891, paid the
sum of $50, the price thereof, and took a deed therefor in her own name, and has been in the
actual possession of the same since said date, and made improvements thereon to the value of
$1,200 in buildings and fences; and it is alleged that the plaintiff Ida L. Gardner and her
grantors have been in the continuous, open, peaceable, notorious possession of said land
adverse to all the world, and claiming title thereto, for more than fifteen years last past.
The defendant, by his answer, denies that the plaintiff Ida L. Gardner or her grantors are
now, or ever were, the owners of, in the possession of, or entitled to the possession of the
land described in the complaint, except upon certain conditions, set forth in the answer,
which conditions had not been complied with; denies the value of the improvements; and
alleges that he is now, and has been since the 6th day of September, 1883, the owner, in the
possession, and entitled to the possession, of the land in controversy, by virtue of a patent
issued to him by the State of Nevada to the land on said last mentioned date; and that, when
the plaintiffs entered upon said land, they did so without the consent of the defendant, and
with full knowledge of his ownership and possession of said land.
We glean from the record the following facts: W. H. Lee and William Sanders, and their
grantors, being the owners of and claiming a large tract of land adjoining the land of the
defendant, inclosed the same, or a part thereof, with a stone fence. At the time of constructing
this fence the lines of the legal subdivisions in accordance with the United States surveys
were not known to the parties who caused the fence to be built. After the landowners in that
section of country had familiarized themselves with the lines of the legal subdivisions, it was
found that the grantors of Lee and Sanders had inclosed a small portion of defendant's
landthat portion now in dispute. In 1890 this defendant entered into a verbal agreement
with W. H. Lee, for the firm of Lee & Sanders, in which Lee & Sanders agreed to furnish this
defendant with an abstract of title, and give him a deed to a strip of land situated across the
road from the defendant's house, and upon the furnishing of the abstract of title and the giving
of the deed by Lee & Sanders to the piece agreed upon this defendant was to deed to Lee &
Sanders the land within their inclosure, and now in controversy. Lee & Sanders have not
complied with their part of that agreement, and the defendant avers on information and belief
that Lee & Sanders are not now, and never were, the owners of the land for which they had
agreed to give this defendant a good and clear title.
The appellants contend that, notwithstanding the facts are as above stated, yet, by reason of
the fact that Pierce, the defendant, while in conversation with a number of persons at
Wellington'sJ. H. Gardner, one of the plaintiffs, being presentstated that he had traded
the land described in the complaint to Lee and Sanders for another piece of their land, and
that the land belonged to Lee and Sanders, coupled with the fact that the defendant stood by,
saw the improvements being made, and never asserting ownership, or objecting to the
expenditure of money on the improvements, he is now estopped from claiming the land, or
any interest therein. The dwelling house of the plaintiffs is not upon the land in dispute; the
barn, outhouses and other improvements are, and are estimated to be of value of $400. The
principle of the law is that he who, by his language or conduct, leads another to do what he
otherwise would not have done, shall not subject such person to loss or injury by
disappointing the expectations upon which he acted.
not subject such person to loss or injury by disappointing the expectations upon which he
acted. This rule has its justification in the justness of preventing the accomplishment of fraud.
It consists in holding for truth a representation acted upon, when the person who made it
seeks to deny its truth, and deprive the party who has acted upon it of the benefit obtained.
But, in order to justify the interposition of a court of equity to enforce an estoppel in pais, it is
necessary to establish by very clear proof not only the fact of representations being made as
alleged, but that they were false, and were made with the intent that they should be acted
upon. (1 Story, Eq. Jur. 191, 192.) And a party setting up and relying upon an estoppel is
himself bound to show the exercise of due diligence and good faith in his endeavor to
ascertain the truth of the statements made, and upon which he claims to have relied and acted;
and what is reasonable diligence is a question of fact to be passed upon by the court or jury
after taking into consideration all the circumstances of the case.
In some cases he might rely upon the representations or acts of the party to be estopped,
without any inquiry whatever; while in others it would be gross negligence and a want of
good faith not to require of the party relying upon the estoppel to make use of the means he
has at hand to ascertain if the statements he has heard, and upon which he is about to act,
were true; and especially should this be the rule when the controversy relates to real estate. In
the case under consideration there is nothing in the record showing, or tending to show, that
Pierce made the statement or representation imputed to him with the intention to deceive or
defraud the plaintiffs, or that they would act upon it. It does appear from the transcript that he
was not aware that the plaintiffs were about to purchase the land until long after they had
purchased, and commenced making improvements. It is also in evidence that the plaintiffs
were negligent in not inquiring into the true title of their grantors. The plaintiff Ida L. Gardner
admits that she knew nothing about the ownership of the property except what her husband
told her. J. H. Gardner, her co-plaintiff, testified that he had heard defendant Pierce say, at a
public meeting at Wellington's, that he had traded the land to Lee & Sanders for a piece of
their land; that Lee & Sanders now owned the land described in the complaint; that he
afterwards saw Pierce cleaning the land.
land described in the complaint; that he afterwards saw Pierce cleaning the land. But Pierce's
testimony on this point, in substance, is that he agreed to trade the land to Lee & Sanders for
another piece of land, provided they furnished him with a good title to the land that he was to
receive in exchange; and that he is now ready to carry out his part of the agreement, but he is
informed and believes that Lee & Sanders are not now, and never were, the owners of the
land. The testimony being conflicting, we must presume that the trial court adopted the
statements made by the defendant. Appellants contend that, Pierce having stood by and seen
them making their improvements, and not notifying them of his title, he is now estopped to
assert it; or, putting it in another form, they invoke the doctrine that a person remaining silent
when he ought, in the exercise of good faith, to have spoken, will not be allowed to speak
when he ought, in the exercise of good faith, to remain silent. The ground upon which the
estoppel by silence proceeds is in all respects governed by the same principles as estoppel by
declarations or statements, and is based on fraud, actual or constructive, on the part of the
person sought to be estopped.
The laws of this state import notice to all persons of the contents of duly recorded
instruments. Upon this subject, Bigelow on Estoppel, at page 502, says: In like manner it is
settled law that standing by in silence will not bar a man from asserting a title of record in the
public registry or other like office, so long as no act is done to mislead the other party. There
is no duty to speak in such a case. * * * It follows that it is not enough to raise an estoppel
that there was an opportunity to speak, which was not embraced. There must have been an
imperative duty to speak. Also pages 519 to and including 524, 541, 594. The facts in this
case are altogether insufficient to create an estoppel against the defendant.
The judgment and order appealed from are affirmed.
____________
22 Nev. 156, 156 (1894)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
JULY TERM, 1894.
____________
22 Nev. 156, 156 (1894) Gardner v. Brown
[No. 1404.]
M. C. GARDNER, Sr., Plaintiff and Respondent v. LOUIS BROWN, MORRIS BROWN,
BENJAMIN SCHEIDMAN, JACOB KLEIN, C. H. PETERS and W. A. DONNELLY,
Defendants and Appellants.
1Statement on Motion for New TrialSettled in Trial CourtAppellate Court on Motion Cannot Correct,
Alter, or Amend.The statement having been settled and certified by the district judge, according to the
statute, this court has no power to alter or amend it.
2ReplevinClaim and Delivery of Personal PropertyDetentionPossession.In an action of replevin or
claim and delivery of personal property the detention is the gist of the action, and recovery of possession
of the property is its primary object, and when the complaint alleges possession in defendant at the time
the action was commenced, and the proof shows the contrary, there is such a variance between the
allegation and the proof as disables plaintiff from recovering.
3ReplevinMeasure of Damages InValue of Property Involved InFluctuation of Valuation During
Litigation.When the value of the cattlethe subject of the litigationhad fluctuated during the
pendency of the action, an instruction that plaintiff could recover the highest value between the taking
and the trial was erroneous. The value at the time of the trial is the only competent indemnity.
Appeal from order overruling motion for new trial from District Court, Ormsby county;
Richard Rising, District Judge.
The facts appear in the opinion.
Torreyson & Summerfield, for Appellant:
At the time of bringing this action plaintiff and respondent well knew that appellants, nor
neither of them, had either actual or constructive possession or control of the property, or any
part thereof, which he sought to recover. The very gist of the action of claim and delivery is
the unlawful detention of the property at the time of the commencement of the action.
(Riciotto v. Clement, 94 Cal. 105; Phillips v. Schall, 21 Mo. App. 38; Pilkington v. Trigg, 28
Mo. 95; Rowe v. Hicks, 58 Vt. 18; Haggard v. Walland, 6 Neb. 271; Mercer v. James, 6 Neb.
406; Willis v. DeWitt (S. D.), 52 N. W. 1091; Cobbey on Replevin, sec. 12; Wells on
Replevin, sec. 135.)
Defendant must be in either the actual or the constructive possession at the time of the
commencement of the suit, and be detaining the property at such time, or the action of claim
and delivery will not lie. (94 Cal. 105; 28 Mo. App. 454; 52 N. W. 1091; 5 Mo. App. 565; 25
Wis. 705; 18 Iowa, 257; 69 N. C. 456; 106 Mass. 599; 3 Sanf. (N. Y.) 707; 12 Barb. (N. Y.)
347; 45 Kan. 130; 20 Kan. 208; 60 Mich. 357; 8 Minn. 467; 59 Miss. 340; 40 Miss. 760;
Cobbey on Replevin, secs. 61 and 64; Wells on Replevin, sec. 134.)
The California statute (sec. 509, et seq.) is almost literally identical with our claim and
delivery statute, and we have every reason to believe that our own was modeled after it.
When the motion for a non-suit was made the court below ruled that appellants' answers
admitted their possession of the cattle when the suit was commenced, and so ruled when the
motion was renewed and the affirmative allegations of the answers were pointedly
emphasized. In these rulings the court seriously erred to appellants' prejudice. Under exactly
similar pleadings in 94 Cal. 105, it was decided that possession was not admitted. In Feder v.
Abrahams, 28 Mo. App. 454, where defendant allowed default to be entered against him, but
the court held it is not an admission of possession, and that plaintiff could recover only upon
affirmative proof of the allegations contained in his complaint.
The court erred in overruling the motion for a non-suit made by appellants Brown,
Schneideman, Klein and Peters. (Blatchford v. Boyden, 122 Ill. 657; Maxey v. White, 53
Miss.
80; Griffin v. Lancaster, 59 Miss. 340; Brockway v. Burnap, 12 Barb. 347; Cobbey on
Replevin, sec. 436; Wells on Replevin, sec. 143.)
The court erred in admitting evidence, over appellants' objections, to prove the highest
market value of the cattle between the date of the levy and the time of trial, and also in
instructing the jury that if the value of the cattle was found to be fluctuating their value might
be fixed at the highest price between the date of levy and the rendition of the verdict. The true
rule for the ascertainment of personal property in actions of claim and delivery is to find its
value existing at the time of trial. This is stare decisis, in Nevada, (O'Meara v. N. Am. Co., 2
Nev. 112; Bercich v. Marye, 9 Nev. 312; Buckley v. Buckley, 12 Nev. 423.)
Buckley v. Buckley, supra, was an action in claim and delivery for live stock. In his
concurring opinion Justice Beatty said: At what time, then, is the condition and value of the
property to be estimated? It has been twice decided in this court, and, as I think, correctly
decided, that the condition of the property at the time of the trial can alone be considered in
assessing its value. Its value at the date of the trial is the value which the jury must fix by its
verdict.
Appellants submit, that a careful and critical analysis of the authorities will show that
nearly all of them adopting an apparently different rule from that established in Nevada are in
cases of conversion, and not of claim and delivery, and that they in fact do not conflict with
the Nevada decisions. The Nevada rule is supported by a host of able decisions and text
authors. (N. Y. G. & I. Co. v. Flynn, 55 N. Y. 653; Brewster v. Silliman, 38 N. Y. 423; Mix v.
Kepner, 81 Mo. 93; Parrott v. Elliott, 63 N. C. 215; Morris v. Coburn, 71 Tex. 406; Cobbey
on Replevin, secs. 850 and 938, et seq.; 3 Sutherland on Damages, sec. 1150; 2 Sedgwick on
Damages, sec. 533.)
In trover the supreme court of Nevada, on the subject of the highest market value, has
emphatically repudiated the doctrine sought to be established by respondent. (Boylan v.
Huguet, 8 Nev. 346.)
In actions of replevin lien charges paid are allowed as a recoupment. (Mackey v. Dillinger, 73
Pa. St. 85; Babb v. Calcott, 47 Mo. 343; 3 Suth. on Damages, sec. 1161; Waterman on
Set-off, tit.
man on Set-off, tit. Recoupment, sec. 455, et seq.; Pomeroy on Remedies and Remedial
Rights, 2d ed., sec. 731, et seq.; 7 Wait's Actions and Defenses, p. 544, et seq.)
Because a complaint states a cause of action at law alone, and the answer affirmatively set
up an equitable defense, it no more follows that the complaint alone shall determine the
character of the action than it follows that one swallow makes a summer. In so far as the
equitable defense is concerned, it should be tried and determined in the same manner as
though it was an independent proceeding in equity. (South End Mg. Co. v. Tinney, 22 Nev.,
and authorities there cited.)
In his concurring opinion in Simpson v. Harris, 21 Nev. 376, Justice Bigelow, citing
authorities, said: When a jury is called in an equity case, only special issues should be
submitted to them, and when found their verdict is only advisory to the court. A general
verdict in such a case is improper and should be disregarded.
Trenmor Coffin, for Respondent:
The motion for a non-suit was based solely upon the assumed fact that defendants were not
in possession of the cattle when the suit was brought. The complaint alleged that the cattle
were wrongfully taken and detained by defendants. The answer denied that the defendants
wrongfully or unlawfully detained the cattle. This is an admission of the detention, and only a
denial of the wrongful and unlawful character of the detention, and is not a denial of the
allegations as to the taking and detention of the property. (Richardson v. Smith, 29 Cal.
529-30.)
The difference between the action of replevin as treated by the authorities cited by
appellant, and our action of claim and delivery is well illustrated by Cobbey's Law of
Replevin, 652.
An action of replevin should ordinarily not be maintained against any one not in the
possession of the property, otherwise a person might be deprived of the possession of his
property by an action to which he was not a party. (Houghton v. Newberry, 69 N. C. 458.)
The writ in claim and delivery only authorizes the taking from the defendant named in the
writ, or his agent, not from a stranger."
from a stranger. (Ottis v. Williams, 70 N. Y. 208; Manning v. Keenan, 73 N. Y. 45.)
Our statute on claim and delivery only authorizes the property to be taken from the
defendants, or their agents. (Gen. Stats., secs. 3121-24.)
Appellant in his complaint prays for the possession of the property only from defendants,
and if possession cannot be had from them, then for a money judgment for its value.
The statutes of Kansas and the decisions thereunder contemplate the taking of specific
personal property from any one, no matter whether the person in whose possession it may be
found was a defendant in the action or not. (Gen. Stats. Kansas, 1889, vol. 2, secs. 4259,
4260, 4262, 4264, 4270; 45 Kan. 130; 20 Kan. 213; 17 Kan. 204.)
In Riciotto v. Clement, 94 Cal. 105, the supreme court commission of California followed
the rule laid down in Kansas and other states, having entirely different statutes from ours.
The preponderance of authority applicable to a case arising under our statute of claim and
delivery seems to be that where the original taking was wrongful, the action may be
maintained, notwithstanding defendants may have parted with possession before suit was
brought. (23 N. Y. 264; 80 Am. Dec. 261-264; 27 N. Y. 277; 16 Barb. 307; 48 Barb. 539; 7
Johns. 140; 3 Wend. 280; 10 Wend. 349; 22 Wend. 602; 27 N. Y. 277; 27 Me. 453; 39 Kan.
437; 34 Ark. 93-104; 40 Ark. 551-55; 76 Wis. 428; 3 How. (4 Miss.) 394; 9 Tex. 336-342; 1
Brev. (S. C.) 301; 5 Yerg. (Tenn.) 361.)
The statutes of Michigan, Iowa, Missouri and Kansas are all quite similar, differing from
these, but almost identical with each other are those of New York, North Carolina, Nevada,
Arkansas and Wisconsin. (Wait's N. Y. Annotated Code, sec. 206, et seq.; Code of N. C., vol.
1, 1883, sec. 321, et seq.; Gen. Stats. Nev., sec. 3121, et seq.; Sanborn & Merriman's An.
Stats. of Wis., vol. 2, sec. 2717, et seq., p. 1572, et seq.; Digest of Stats. Ark., 1884, sec.
5571, et seq.)
In claim and delivery, if plaintiff elects not to file his affidavit and undertaking and claim a
return of the property at the commencement of the action, the action proceeds as in the old
action of detinue for its value and damages for detention. (Jarmen v. Ward, 67 N. C. 32;
Miller v. Hahn, 84 N. C. 228.)
In detinue the action could be maintained against one who had disposed of the property
before the suit was brought. (Haley v. Rowen, 5 Yerg. (Tenn.) 361, and authorities cited;
O'Shea v. Toohig, 9 Tex. 343; Lowrey v. Houston, 3 How. (4 Miss.) 394; Harkey v. Tillman,
40 Ark. 555.)
In those states where it is held that the action of replevin cannot be maintained against one
not in possession at its commencement, the affidavit, undertaking and writ of replevin are
held to be the foundation of the action. The affidavit is held to be jurisdictional. (Cobbey on
Replevin, secs. 525 and 526, and authorities cited.)
On the other hand, where the jurisdiction depends upon complaint and summons, or even
in some cases where the taking of the property by plaintiff at the commencement of the action
is the foundation of the action, as in the old common law action of replevin, the writ is held to
be only ancillary or provisional, and that if the property is not taken, it is really not a replevin
action, but may proceed as an action for damages. (Cobbey on Replevin, sec. 527, and
authorities; Williams v. Gardner, 22 Kan. 122; Bachelor v. Walburn, 23 Kan. 733; Bingham
v. Morrow, 29 Mo. App. 448-51; Eads v. Stephens, 63 Mo. 90.)
If in replevin it appears upon the trial that the property has been lost or destroyed, or that it
cannot be returned, judgment for damages only may be entered without judgment for
possession. (Brown v. Johnson, 45 Cal. 76.)
Hall v. White, 106 Mass. 599, seems not to be in point for the reason that there seems to be
no statutory action of claim and delivery in Massachusetts. The action is the old common law
action of replevin there. (Richardson v. Reed, 4 Gray (70 Mass.) 443.)
Abber v. Bratton, 60 Mich. 361-2, seems not to be in point for the reason that the property
had been returned to plaintiff before the commencement of the action, and there was nothing
left except action for damages for the detention.
There is no such action under the Michigan statutes as our action of claim and delivery.
There the action can only be commenced by the issuance of a writ of replevin. Here by
complaint and summons.
The immediate return of the property to plaintiff is the basis of the action in Michigan,
while in the state it is only incidental or provisional, and may be claimed by the plaintiff or
not at his option.
incidental or provisional, and may be claimed by the plaintiff or not at his option. (Howell's
An. Stats. Mich., vol. 2, secs. 8315, 8320, 8323-25, et seq.) Under the peculiar statute of
Michigan the action of replevin lies only in the detinet. (LeRoy v. East S. C. R. R., 18 Mich.
233; 100 Am. Dec. 162.)
In Missouri, under the statute concerning replevin, the action is treated as simply the
common law action of replevin. (Rev. Stats. Mo. 1889, vol. 2, Replevin, sec. 7479, et seq.;
Feder v. Abrahams, 28 Mo. App. 457.)
The provision in the statute that the plaintiff, at the commencement of his action, may
claim the immediate delivery of the property, is construed to mean must and to be
mandatory, thus making the action the same as in Michigan. (Davis v. Randolph, 3 Mo. App.
456.)
It will not be contended that the New York decisions, which are upon a statute like ours,
are not in point in this state, where the word may, in sec. 3121, Gen. Stats. Nev., has never
been changed by either bench, bar or legislature into must.
The statute of Iowa provided for the taking of the property from any one in whose
possession it may be found, and provides also that all third parties who may claim an interest
in the property may be made parties to the action. (McClain's An. Code of Iowa, 1888, secs.
4455-4462, et seq.)
The statute of Nebraska and Mississippi upon the subject of replevin are substantially the
same as those of Iowa, Michigan and Missouri. (Cobbey's consolidated Stats. of Neb., 1891,
Replevin of Property, secs. 4689-4693; Annotated Code of Miss., secs. 3707-3712, et seq.)
If Johnson v. Garlick, 25 Wis. 705, could be construed into an authority against
respondent's position, it has been overruled in so far as it is against our position by the later
case of Prank v. Herman, 76 Wis. 428.
In Houghton v. Newburry, 69 N. C. 456-9, there was a prayer for return of possession
only. Defendant had never wrongfully taken the property, and (as in 18 Iowa, 257) did not
wrongfully detain it at the time of the trial, having sold it before the suit was commenced.
The court held that plaintiff should have asked leave to amend his complaint and pray for
judgment for the value of the property, and that he could then have recovered. This case is a
better authority for respondent than for appellant.
authority for respondent than for appellant. (Webb v. Taylor, 80 N. C. 307.)
Mitchell v. Roberts, 50 N. H. 486, is not in point for the reason that there was no statutory
action of claim and delivery in New Hampshire, at least not such as we have. It was the
common law action of replevin. The goods were in the custody of the sheriff. It was held that
they were in the custody of the law and could not be replevined.
From the foregoing authorities and those hereinafter cited it must be apparent that the
framers of the claim and delivery statutes intended that the action of claim and delivery
should be a substitute for the common law actions of replevin, trespass, trover and detinue,
and both the bench and bar have always so treated it. On this subject, see note and authorities
cited on page 432 of vol. 91, Am. Dec., also Wilson v. Rybolt, 17 Ind. 391, 79 Am. Dec. 486.
Long acquiescence gives a construction of a statute which courts will not disregard, even if
such a construction might be questioned as an original proposition. (State v. Grey, 21 Nev.
386-7; Lincoln County v. Lunning, 133 U. S. 530.)
In Whitman Mg. Co. v. Tritle, 4 Nev. 494, the court in its opinion seems to assume,
without deciding the question, that our statutory action of claim and delivery is the equivalent
of, and is a substitute for, the old action of replevin and trover. To the same effect is Buckley
v. Buckley, 12 Nev. 430. Bercich v. Marye, 9 Nev. 312, was a suit under the statute on claim
and delivery of personal property such as is usually known as an action of replevin.
The motion for a non-suit by Klein and Peters was properly denied. It was they who
induced the sheriff to make the levy. Without their indemnity the sheriff would not have
taken the property.
The action was properly brought and maintained against all of the defendants, some of
whom were execution creditors directing the levy, and some of whom indemnified the sheriff
in order to induce him to proceed. (Elder v. Frevert, 18 Nev. 450-52, and authorities cited;
Freeman on Judg., secs. 181-84; Lovejoy v. Murry, 3 Wall. (70 U. S.) 1; Herring v. Hopkings,
15 N. Y. 413, and authorities cited; Root v. Chandler, 10 Wend. 110; Knight v. Nelson, 117
Mass. 458; Lewis v. Johns, 34 Cal. 629.)
Replevin lies by the owner of chattels against one who had no possession or connection
therewith other than to direct a sheriff to levy an execution in his favor upon them. (Knapp
v. Smith, 27 N. Y. 277-81; Allen v. Crary, 10 Wend. 349, 25 Am. Dec. 566, notes and
authorities cited; Stewart v. Wells, 6 Barb. 79; Pangburn v. Patridge, 7 Johns. 140, 5 Am.
Dec. 250; Bruen v. Ogden, 6 Halstead (N. Y.) 370, 20 Am. Dec. 593; Phillips v. Harris, 3 J.
J. Marshall (Ky.) 122, 19 Am. Dec. 166; Marshall v. Davis, 1 Wend. 109, 19 Am. Dec. 463,
notes and authorities cited; Crocker v. Mann, 3 Mo. 472, 26 Am. Dec. 684.)
Property wrongfully taken is wrongfully detained until it is restored to the possession of
the person rightfully entitled to it. Any acts amounting to a conversion in trover will
constitute a wrongful detention in replevin. A wrongful detention may be shown by proof
of a wrongful taking. (Oleson v. Merrill, 20 Wis. 462, 91 Am. Dec. 428, notes and
authorities cited.)
The authorities cited by respondents were cases decided under a state of facts where the
property was steadily advancing or increasing in value up the time of trial. (9 Nev. 312; 12
Nev. 423.)
The case of O'Meara v. North Am. Mg. Co., 2 Nev. 112, was a case in equity for the
transfer of mining stock, where the court held that plaintiff was not entitled to any specific
stock, but only to a given number of shares.
The instructions given by the court upon the question of measure of damages were within
the line of safe precedence. (9 Nev. 312; 34 N. Y. 493; 26 N. Y. 309; 24 Barb. 295; 46 Barb.
184; 41 N. Y. 239; 51 N. Y. 70; 37 Ga. 335; 33 Cal. 117; 9 Cal. 562; 26 Pa. St. 143; 53 Pa.
St. 310; 69 Pa. St. 403; 33 Ind. 127; 20 Ala. 694.)
The same rule as to damages applies in cases of replevin or claim and delivery, as in cases
of trover or conversion. (Tulley v. Harlowe, 35 Cal. 303; Page v. Fowler, 39 Cal. 412;
Johnson v. Marshall, 34 Ala. 522; Holley v. Flourney, 54 Ala. 99; Field on Damages,
Replevin, secs. 825-26-28, et seq.; Robinson v. Adams, 62 Me. 369, 16 Am. Rep. 470-72;
Dorsey v. Gassaway, 2 H. & A. (Md.) 402, 3 Am. Dec. 557.)
The value of the cattle should have been found by the jury at the highest market price prior
to the time of the trial.
See authorities supra, which was their value at the time of trial.
The jury should also have found exemplary damages in favor of plaintiff, but the question
of exemplary damages was not allowed to go to the jury.
Appellants' suggestion of an agister's lien upon the cattle is remarkable. That is, it is the
proper subject of remark by reason of the propositions it contains.
The restraining orders were demanded by respondents Brown Brothers, and were issued
without color of right, but Gardner was unable to get them dissolved and vacated until
February 7, 1893. (Smith v. Weeks, 60 Wis. 94-108; Hinsdale v. Sinclair, 83 N. C. 339.)
The taking and disposing of the cattle by respondents while Gardner was at their instance
restrained from so doing, showed outrage, insult and oppression toward Gardner and bad faith
toward the court, which should have entitled Gardner to exemplary damages.
There was no error in the court's denying defendant's motion to amend their answers at the
close of the trial.
Plaintiff made no objection to the motion to amend the answers, but stood ready, if the
amendment of the answers was allowed under the authority of section 68, Civil Prac. Act, and
Riciotto v. Clemont, 94 Cal. 108 and 69 N. C. 458-9, to amend his complaint by striking out
the allegations of possession and the prayer for an alternative judgment. If defendant had been
allowed to amend, the same privilege could not have been refused to plaintiff.
The alternative judgment gives the respondents a privilege, an option, a right which they
could not have had had the pleadings been amended to eliminate the question of possession.
Hence, respondents cannot complain. (Carson v. Applegarth, 6 Nev. 188.)
In an equity case the calling of a jury and the submission of special issues is always
discretionary with the court.
When special issues are found by a jury the court is not bound by them in equity. The
chancellor may adopt or ignore the findings of the jury. If the case were in equity, defendants
cannot complain that the court refused to submit certain special issues to the jury.
In Scheetz's Appeal, 35 Pa. St. 88-94, the court said: It has often been decided by this
court that the granting or refusing an issue, where the proceedings are in equity, is not
the subject of a writ of error.
often been decided by this court that the granting or refusing an issue, where the proceedings
are in equity, is not the subject of a writ of error. This is a necessary result from the nature of
the proceedings. A chancellor directs it as a means of informing his conscience as to disputed
facts, but even when found by a jury in a particular way they are not binding on him. He may
disregard the findings if he thinks them wrong. No writ of error lies to the issue. To the same
effect, see 95 Cal. 529-30; 65 Cal. 179; 67 Cal. 302; 72 Cal. 348; 99 Mass. 200-206; 87 U. S.
(20 Wall.) 670; 4 Nev. 95-98; 16 Nev. 354; 8 Nev. 290; Gen. Stats. Nev., sec. 3205; 3 How.
(Miss.) 276; 13 N. J. Chancery 456; Proffat on Jury Trial, sec. 90.
The action in this case was not in equity. The action of replevin was an ancient common
law action to be tried by a jury. (Cobbey's Law of Replevin, secs. 257, 525-6, and authorities
cited; McDonald v. Scaife, 11 Pa. St. 381; 31 Am. Dec. 556.)
Questions of fraud may be raised and determined either in common law actions by
common law methods or in suits in equity, according to the character and procedure.
In Fish v. Benson, 71 Cal. 429-35, the court said: Both courts of law and equity in proper
cases have jurisdiction in cases of fraud, and when the facts constituting the fraud and the
relief sought are such as are cognizable in a court of law, the parties are entitled to a jury trial,
but where the case as made by the pleadings involves the application of the doctrines of
equity and the granting of relief which can be obtained in a court of equity and not elsewhere,
the parties are not entitled to a jury trial. (Citing numerous California authorities.)
(Redington v. Nunam, 60 Cal. 633; Churchill v. Lee, 77 N. C. 341; Ivancovich v. Stern, 14
Nev. 341.)
The action being an action at law, it is equally clear that it was entirely discretionary with the
court to submit special issues to the jury. The action of the court in refusing to submit special
issues is not in any way the subject of review on appeal. (Waits N. Y. Ann. Code, sec. 261;
Hackford v. N. Y. Cen. R. R. Co., 53 N. Y. 654; Cal. Prac. Act, sec. 174; Code Civil Proc.
Cal., sec. 625; Am. Co. v. Bradford, 27 Cal. 365; Code Civil Proc. Ohio, sec. 376;
Whittaker's Ohio Ann. Code, sec. 5201; Cleveland C. C. R. R. Co. v. Terry, 8 Ohio St.
570-86; Adam's Ex. Co. v. Pollack, 12 Ohio St. 618; Nev. Prac. Act, sec. 177; Gen. Stats.
Nev., sec. 3199.)
The special issues asked by defendant did not cover all of the issues in the case. When the
special issues requested do not cover all of the issues in a case, it is improper and irregular to
submit them to the jury. (Knickerbocker Co. v. Hall, 3 Nev. 104-200; Phoenix Water Co. v.
Fletcher, 23 Cal. 482-89.)
All of the special issues requested might have been found in favor of defendants, and yet
plaintiff would have been entitled to recover. Plaintiff had a complete and unimpeachable
title to the property, and complete possession of it before the levy of the execution by his
purchase from J. H. Gardner, independent of his purchase from Ida Gardner. (Montgomery v.
Hunt, 5 Cal. 366; Cartwright v. Phoenix, 7 Cal. 281; Williams v. Lerch, 56 Cal. 330;
Benjamin on Sales, Am. ed., sec. 174, p. 142; see instructions given to jury: Walden v.
Murdock, 23 Cal. 540; Ross v. Sedgwick, 69 Cal. 247; Hogan v. Cowell, 73 Cal. 211.)
The special issues requested were embraced in the instructions given to the jury and were
covered by the general verdict, including the question of fraud in its fullest extent and scope.
The general verdict of the jury embraced a finding upon all the points in favor of plaintiff.
By the Court, Belknap, J.:
This is an appeal from an order overruling a motion for a new trial. The action was in the
ordinary form of claim and delivery under the statute for the recovery of the possession of a
certain number of cattle and horses alleged to be withheld and detained by the defendants.
The answer justifies the taking by the defendants, one of whom is the sheriff of Lyon
county, under an execution against J. H. Gardner, a son of the plaintiff, as his property, and a
subsequent sale in the month of January, 1893, two months before this suit was commenced.
The proofs showed without question that the cattle were sold as alleged in the answer. Upon
these facts the question arises, has the plaintiff established a cause of action in claim and
delivery against the defendants? In order to have established his case, he should have shown
a possession of the demanded property in the defendants, as he had alleged in his
complaint.
case, he should have shown a possession of the demanded property in the defendants, as he
had alleged in his complaint. The detention is the gist of the action, and recovery of the
possession of the property its primary object. The statute has provided all the appliances to
this end, and the allegations of the complaint are consistent with this view. The proofs show a
fatal variance, and the requirement of the statute that the complaint shall contain a logical
statement of the facts constituting the cause of action has been disregarded.
In his recent work on Replevin, Mr. Cobbey states the law as follows: To enable plaintiff
to maintain an action for the recovery of specific personal property, the defendant must be in
possession thereof at the commencement of the action. When the petitioner alleges that the
defendant is in possession, and the proof shows the contrary, there is such a variance between
the allegations and the proof as disables plaintiff from recovery. (Sec. 61.)
The New York cases have adopted a different view (Nichols v. Michael, 23 N. Y. 264), but
the great weight of authority is the other way. (Coffin v. Gephart, 18 Iowa, 257; Riciotto v.
Clement, 94 Cal. 105, 29 Pac. 414; Haughton v. Newberry, 69 N. C. 456; Hall v. White, 106
Mass. 599; Aber v. Bratton, 60 Mich. 357; 27 N. W. 564; Griffin v. Lancaster, 59 Miss. 340;
Moses v. Morris, 20 Kan. 208; Davis v. Randolph, 3 Mo. App. 454; Feder v. Abrahams, 28
Mo. App. 454; Willis v. De Witt, (S. D.) 52 N. W. 1090.)
We should have hesitated before reversing this case upon this point if substantial justice
had been done by the verdict. But the measure of damages established at the trial was wrong,
and for this reason, if for no other, we are constrained to remand it. The value of cattlethe
subject of the litigationhad fluctuated during the pendency of the suit, and the jury were
instructed that the plaintiff could recover the highest value between the taking and the trial.
In O'Meara v. Mining Co., 2 Nev. 112, this court decided that in this class of cases, when
the plaintiff asks for the return of the specific property, or its value, if a return cannot be had,
the value of the property at the time of trial is the only complete indemnity. To the same
effect were the rulings in the subsequent cases of Bercich v. Marye, 9 Nev. 312, and
Buckley v. Buckley, 12 Nev. 423
rulings in the subsequent cases of Bercich v. Marye, 9 Nev. 312, and Buckley v. Buckley,
12 Nev. 423.
In Boylan v. Huguet, 8 Nev. 345, we held that the value of the property at the time of the
conversion, with interest from that date, together with such special damages as the plaintiff
may be entitled to, was the rule in trover. New decisions show that the purpose of the court
has been to fully indemnify the injured party without punishing the wrongdoer.
A motion was made in this court before its submission upon the merits for the purpose of
correcting the record by striking out one of the instructions given to the jury at the trial upon
the ground that it had not in fact been given at the trial. We denied the motion upon the
ground that the statutes invest only the judges of the district court with authority to settle
statements upon motion for new trial. In this present case the statement was so settled, as
appears by the certificate of the judge. This court has no power to alter or amend it. It is the
record upon which we are to act.
Judgment reversed, and cause remanded.
____________
22 Nev. 169, 169 (1894) Coffin v. Bell
[No. 1401.]
TRENMOR COFFIN, Plaintiff and Appellant, v. L. H. BELL and WILLIAM KINNEY,
Defendants and Respondents.
1SummonsConstructive Service of.Where a constructive service of a summons is relied upon to sustain a
judgment, a strict compliance with the provisions of the statute is required; otherwise the court obtains no
jurisdiction over the defendant.
2SummonsSecond Service of.A void service of a summons does not preclude another and perfect service
of the same; and the fact of the summons having been returned and filed does not prevent its being
withdrawn and properly served.
3Alias Summons.Right to issue questioned, but not decided.
4SummonsPublication ofOrder for.The order for publication of summons must succeed, not precede,
the issuance of the summons.
5JudgmentRight to Attack.As the successor in interest to the owner, the purchaser from such owner of
property sold to another under an execution issued on a voidable judgment against such owner, has a
right to attack the judgment on the ground of lack of jurisdiction in the court rendering the judgment, and
such attack is a direct and not a collateral one.
22 Nev. 169, 170 (1894) Coffin v. Bell
Appeal from the District Court, Ormsby county, from order denying motion for a new
trial; Richard Rising, District Judge:
On December 14, 1892, the defendant Bell commenced an action in the district court of
Ormsby county against Mrs. C. R. Goddard to recover a money judgment upon an account.
At the same time he issued an attachment, which was duly levied upon the property in dispute
in this action, a piece of real estate in Carson City.
In Bell v. Goddard summons was issued, and served on the defendant in the state of
California, but no affidavit or order for the publication of summons was made. January 28,
1893, upon this service, judgment by default was entered, as prayed in the complaint,
execution was issued, and the property sold thereunder by the defendant Kinney, as sheriff of
said county, to defendant Bell. July 19, 1893, without vacating that judgment, or withdrawing
the summons from the files, Bell made an affidavit for publication of the summons, in which
he stated that the summons had been issued December 14, 1892. On the same day an order
was made accordingly, in which it was stated that, it further appearing that a summons has
been duly issued out of said court in this action, * * * it is ordered that the service of the
summons in this action be made upon the defendant, Mrs. C. R. Goddard, by publication,
etc. July 21, 1893, what is called an alias summons was issued, which was a copy of the
first, except that the first said nothing about the costs, while the alias stated that the action
was also brought to recover costs of suit, and notified her that, if she failed to answer the
complaint, the plaintiff would also take judgment against her for his costs of suit. The alias
summons was served upon her in the state of California, and on October 21, 1893, judgment
was again entered against her by default, and the property again sold to Bell upon execution
thereunder.
February 14, 1893, the plaintiff in this action purchased the property from Mrs. Goddard,
and June 30, 1893, began this action to quiet his title thereto as against the first judgment and
sale, and to restrain the sheriff from executing any deed to Bell. In their answer herein the
defendants admitted the invalidity of the first judgment, but alleged their attachment lien, and
that they were then engaged in obtaining a second service of summons upon Goddard; and
by supplemental answer, filed February 1, 1S94, they set up the second judgment, and
the sale thereunder.
22 Nev. 169, 171 (1894) Coffin v. Bell
ing a second service of summons upon Goddard; and by supplemental answer, filed February
1, 1894, they set up the second judgment, and the sale thereunder. Judgment was rendered for
the defendants for costs, and the plaintiff appeals.
Trenmor Coffin, in pro. per., and H. F. Bartine, for Appellant:
The failure of Bell to make the necessary affidavit and obtain an order of publication
before serving Mrs. Goddard with the summons, was an irregularity which made the
judgment voidable, but not absolutely void. (Freeman on Judgments, 4th ed., sec. 116; Drake
on Attachment, sec. 447-8, and authorities cited; Paine v. Moorland, 15 Ohio, 443; Crowell
v. Johnson, 2 Neb. 146; Zeigenhagen v. Doe, 1 Ind. 296; Beech v. Abbott, 6 Vt. 586; Matter
of Clarke, 3 Denio, 167; Johnson v. Gage, 57 Mo. 165; Cooper v. Reynolds, 10 Wall. 308;
Huff v. Hutchinson, 14 How. U. S. 586; Johnson v. Geilkeison, 81 Mo. 58; Gribbon v. Freed,
93 N. Y. 93; Gregg v. Thompson, 17 Iowa, 107; Allen v. Huntington, 2 Aik. (Vt.) 249; 16
Am. Dec. 702; Work's Jurisdiction of Courts, pp. 162-5, 270-86 and authorities cited; Van
Fleet's Collateral Attack, secs. 1, 61, 62, 67, 68, 213, 215, 650, 634 and authorities cited.)
When defendants, in their answer, abandoned the first judgment in Bell v. Goddard, if they
had stopped there, the question whether that judgment was void or only voidable would have
been immaterial, but they did not stop. The answer then proceeded to set up the attachment
lien and by supplemental answer a second judgment in the cause was pleaded. By injecting
this new matter the defendants assumed the affirmative, and the burden was cast upon them
of proving that the attachment lien still existed, and that the second judgment was valid. In
this aspect of the case the exact character of the first judgment became a matter of prime
importance. If it was a complete nullity the defendant Bell had a right to ignore it, cling to his
attachment lien, and get a good judgment if he could. If, on the other hand, the first judgment
was a good one on its face, however defective it might be behind the record, it stands as the
final judgment in the cause until it is vacated and set aside. The second judgment pleaded is
an absolute nullity, and the affirmative defense fails.
22 Nev. 169, 172 (1894) Coffin v. Bell
second judgment pleaded is an absolute nullity, and the affirmative defense fails. See cases
supra.
It was assumed by the court that Mrs. Goddard having been served out of the State, the
forty days within which she was required to answer did not begin until full six weeks (the
period of publication) had passed. The six weeks' clause in our statute applies only to cases of
actual publication. Our statute upon this point is radically different from those of California,
New York and Oregon. See Deering's Ann. Codes and Stats. of Cal., vol. 3; C. C. P., sec.
413; Cal. Prac. Act, 1861 (Labatt), sec. 31; Wait's N. Y. An. Code, secs. 135, 157; N. Y.
Code Civ. Proc. (1877), p. 149, sec. 441; Hill's An. Laws of Oregon, vol. 1, p. 185, sec. 57.
See, by way of comparison, Gen. Stats. Nev., secs. 3047, 3051, 3053; also Stats. Nev. 1861,
p. 319, sec. 31 of Prac. Act.
Section 3051, Gen. Stats., is very suggestive upon this point. A California corporation, the
head of which has been personally served, is expressly required to answer in forty days after
such service.
But the court was in error upon this point for another reason. The judgment shows upon its
face that it was not rendered until the forty-third day after service of summons. (Gen. Stats.,
sec. 3057.)
If the judgment was rendered before the time for answer expired, it was merely an error
which does not make the judgment void. (Freeman on Judgs., 4th ed., sec. 126, and cases
cited.)
Upon this particular point: Whitwell v. Barbier, 7 Cal. 63; Lyons v. Cooledge, 89 Ill. 533;
Glover v. Holman, 3 Heisk. (Tenn.) 519; Ballenger v. Tarbell, 16 Iowa, 492; Re Newman, 75
Cal. 213; Harnish v. Bramer, 71 Cal. 159.
It is not necessary for a judgment to recite that an affidavit and order of publication have
been made. Those are merely probative jurisdictional facts, and it is not essential that proofs
should be recited in the judgment. The district court is one of general jurisdiction, and
nothing is presumed to be outside of its jurisdiction unless it affirmatively appear to be so.
The statute prescribes certain modes by which a non-resident may be served with summons.
In this case the judgment recites that the defendant was regularly served and the affidavit of
service fully sustains the recital. It is, therefore, to be presumed that the statute was
followed, otherwise the service could not have been "regular."
22 Nev. 169, 173 (1894) Coffin v. Bell
therefore, to be presumed that the statute was followed, otherwise the service could not have
been regular. (75 Cal. 213, 220; 71 Cal. 155; 34 Cal. 391; 94 Am. Dec. 742 and notes; 70
Tex. 394; 22 Me. 128; 8 Nev. 308; 72 Cal. 65; 77 Cal. 198; 49 Cal. 375; 39 Cal. 354; 37 Cal.
465; 65 Cal. 237-9; 57 Mo. 569; 1 Ill. App. 496; 17 Iowa, 107; 87 Ill. 365, 367; 70 Ill. 76; 80
Ill. 307; 69 Mo. 355; 68 Me. 269.)
The presumption in favor of the record is not weakened by reason of the fact that Mrs.
Goddard was a non-resident. At one time some of the courts attempted to make a distinction,
but it never rested upon sound principles, and the whole current of recent authority is to the
effect that when the record shows that the court had acquired jurisdiction by its process, the
judgment is not open to collateral attack and hence cannot be void, because if it were void it
could be attacked collaterally or any other way. (Freeman on Judgs., 4th ed., p. 224; Re
Newman, 75 Cal. 813; 68 Iowa, 244; 55 Iowa, 179; 97 Ind. 146; 102 Iowa, 233; 33 Kan. 609;
91 N. C. 483; 93 Mo. 524; 95 Mo. 501; 28 Fed. Rep. 36; 70 Tex. 588; 117 U. S. 255; 85
Tenn. 171; 10 Peters, 449; Work's Jurisd. of Courts, pp. 159-61, and notes and authorities.)
If it had been intended that the making of an affidavit and order of publication should
appear by the record, the practice act would have constituted these documents themselves a
part of the record, because this is the only way in which their sufficiency can be shown.
But the doctrine that there are no presumptions in favor of jurisdiction, when the defendant
is a non-resident, never applied to proceedings by attachment. When property is attached, it
is, in legal contemplation, in the custody of the court, and the jurisdiction to proceed and
dispose of it is clear and complete. The whole line of authorities cited under the first point
plainly indicates this: In attachment suits against non-residents the attachment is the
foundation of the jurisdiction. In other cases the summons is the foundation. The case of
Galpin v. Page, 18 Wall. 350, 85 U. S., is worthy of close consideration upon this point. See
particularly the distinction between attachment proceedings and other cases adverted to on
page 371. In an attachment suit against a non-resident the judgment only runs against the
attached property. It is, therefore, while personal in form, essentially a judgment in rem, and
the same jurisdictional presumptions exist as in other proceedings in rem {75 Cal.
22 Nev. 169, 174 (1894) Coffin v. Bell
form, essentially a judgment in rem, and the same jurisdictional presumptions exist as in other
proceedings in rem (75 Cal. 213; 75 Iowa, 573; 93 N. Y. 93; Pennoyer v. Neff, 95 U. S. 714.)
In regard to the effect of jurisdictional recitals in the record of a court, a further distinction
should be kept in view. When such record comes in issue, either directly or collaterally in
some other state than the one in which it was rendered, it can always be contributed by
showing that there was in fact no jurisdiction. But within the state the record imparts absolute
verity as against a collateral attack. A careful examination of the adjudged cases will show
that this distinction is sound. See, especially, Thompson v. Whitman, 18 Wall. 468.
The foregoing authorities show beyond all question that however fatal the defects in the
service of summons made of them on a direct attack, the first judgment in the case of Bell v.
Goddard is a good judgment on the face of the record. Having never been reversed, vacated
or set aside it stands as the final judgment in that cause. (Freeman on Judgs., secs. 91, 95, 116
and cases cited.)
Only a party to the original suit can have a judgment set aside, and whether it be done by
an independent action or by some appropriate proceeding in the cause, wherein it was
rendered, the opposing party must have notice. (Freeman on Judgs., 4th ed., sec. 91; Cotton v.
McGehee, 54 Miss. 621.)
Even where there is a fatal jurisdictional defect a district court cannot, under our practice,
set aside a judgment, except as provided by the practice act, sec. 68, or on a motion for new
trial. (State v. First National Bank, 4 Nev. 358; State v. Dist. Court, 16 Nev. 371.)
How absurd, then, to claim that the party recovering the judgment can vacate it at his own
free will.
In the case of Bell v. Goddard there is no doubt that the service was grossly irregular, and
that upon timely and proper showing made in that cause by the defendant, the judgment
would be set aside. But defendant Bell was wholly responsible for those irregularities. No one
placed the smallest obstacle in the way of his obtaining a valid judgment, and it is doubted if
he is entitled to any relief whatever. He took such a judgment as suited him and has no reason
to complain. {Freeman on Judgs., sec.
22 Nev. 169, 175 (1894) Coffin v. Bell
to complain. (Freeman on Judgs., sec. 91; Downing v. Still, 43 Mo. 309; Montgomery v. Ellis,
6 How. Prac. 326.)
His only excuse is ignorance of the law. Ignorantia lex non excusat is axiomatic.
This is not an action to vacate the judgment in Bell v. Goddard. Plaintiff is not in a
position to bring such a suit. He can only attack the judgment and avoid it so far as it affects
his title to the property described. He simply prays that he be adjudged the owner of the
property, etc. It is in this sense only that he alleges the judgment to be void. Such an action as
this he can bring, and the judgment he asks for would leave the judgment in Bell v. Goddard
still standing between the parties to that suit. (Vose v. Mortam, 4 Cush. 27-30; 50 Am. Dec.
750, note, p. 754; Downs v. Fuller, 2 Met. 135; 11 Met. 370; 4 Coe. 458; 15 Cal. 127; 25 Cal.
337; 43 Cal. 83; McMina v. Whelan, 27 Cal. 300.)
The district court erred in allowing respondents to introduce proofs of the issuance of an
alias summons, an affidavit and order of publication, the second judgment, execution and
sale. After the first judgment was rendered, the court had made jurisdiction to enter a second
without vacating the first. All the proceedings looking to a second judgment, and the second
judgment itself, were complete nullities. There cannot be two final judgments in the same
action at the same time. (Freeman on Judgs., sec. 104a; Muckels v. Irwin, 2 Neb. 60;
Morrison v. Chicago, 32 N. E. 172; Lane v. Kingsbury, 11 Mo. 402; Low v. Crown Point, 2
Nev. 75.)
If the first judgment is totally void because of the fact that there was no affidavit or order, the
second one is equally so because the order of publication, upon which it depends, was itself
absolutely void. It directs the service of the summons by publication. The summons in
the action had not only been issued, but it had been served and returned. At the time when the
order was made it actually formed a part of the judgment roll in the action. It was then functus
officio, and there was no summons in existence to which the order could apply. (Peo. v.
Huber, 20 Cal. 81; Little v. Currie, 5 Nev. 90.)
The affidavit contains no statement that an alias summons had issued. In making this order
the court acts judicially, and it must get all of its information from the affidavit.
22 Nev. 169, 176 (1894) Coffin v. Bell
and it must get all of its information from the affidavit. (Ricketson v. Richardson, 26 Cal.
149; Braly v. Hyde, 31 Cal. 342.)
The service itself was utterly void. The order directed the publication of the summons
already issued, while the summons actually served was an alias issued two days after the
order was made.
No alias summons can be issued in the absence of a statutory provision allowing it.
(Cherry v. Mississippi Ins. Co., 16 Lea (Tenn.) 292; Ensign v. Rogencamp, 13 Neb. 30.)
The court below erred in reopening the case after both sides had rested and the plaintiff
had closed his argument, in order to allow defendants to file a supplemental answer setting up
the second judgment and subsequent proceedings. That judgment was rendered more than
three months before the trial of this cause, and no attempt was made to plead it.
The first judgment being valid upon its face was a lien upon the attached property, and the
attachment lien was merged in the higher lien of the judgment. When the judgment lien was
lost by being abandoned, the attachment lien was also lost. (Drake on Attachment, sec. 224a;
Wade on Attachment, vol. 1, sec. 29; Bagley v. Ward, 37 Cal. 121; Porter v. Pico, 55 Cal.
165; Schieb v. Baldwin, 22 How. Prac. 278; Adler v. Anderson, 42 Mo. App. 192; Clark v.
McDonald, 54 N. W. 1118; Lynch v. Crary, 52 N. Y. 181; Speelman v. Chaffee, 5 Col. 247.)
Respondent Bell abandons all claim under the first judgment, while the second is an
absolute nullity. So if we leave the doctrine of merger out of the case the very best position he
can occupy is that of a mere attachment creditor. As such he is not in a position to attack the
conveyance of his debtor's real estate. (27 Cal. 316; 25 Mo. 50; 3 Neb. 586; 52 Ill. 98; 18
Kan. 324; 50 N. Y. 80; Wade on Attachment, vol. 1, sec. 33.)
As a mere attachment creditor Bell has no standing in this suit. It is admitted that
appellant's deed was regular and valid, and as respondents have shown no claim or title of any
kind appellant should prevail.
Torreyson & Summerfield, for Respondents:
Appellant was a purchaser pendente lite with notice, and is conclusively bound by the
entire proceedings in the case of Bell v. Goddard.
22 Nev. 169, 177 (1894) Coffin v. Bell
conclusively bound by the entire proceedings in the case of Bell v. Goddard.
Appellant is estopped from denying that the first judgment is and always was a void
judgment.
Appellant in effect says: When I have erred in my complaint that the judgment was null
and void I was only playing possum' to get you to admit that what I said was true, etc.
Equity declares that he who alleges contradictory claims is not to be heard. (Carpentier
v. Webster, 27 Cal. 562; Meyer v. Kohn, 29 Cal. 280; Chaquette v. Orket, 60 Cal. 594.)
Appellant, in his brief, solemnly asserts that his averment in his complaint was merely the
averment of a legal conclusion, and that he had ought not to be now estopped from showing
that the judgment was voidable only.
Granting that the averment was that of a legal conclusion only, respondents should be held
justified in accepting and acting upon as true the averment of a legal conclusion, when, to
their knowledge, it was made by a lawyer of the eminence, long practical experience, and of
such acknowledged learning in the law, as is the appellant in this action.
Appellant averred in his complaint that the judgment was null and void, but he only
claims in his brief that it is voidable. Appellant is estopped by the record from denying the
proof of his averment in the complaint, and respondents are estopped from denying the truth
of their admissions solemnly made in open court at the trial. These mutual estoppels had
certainly ought to establish the invalidity of the first judgment, whatever might be said about
the effect in general of pleading conclusions of law. Appellant's attack upon the first
judgment as being void, induced respondents to admit the truth of the attack and to abandon
the first judgment. Appellant should not be heard now to attempt to reap an advantage
because he induced respondents to believe him and to act upon the truth of his statements. A
man ought to be estopped from saying that to be false, which by his means has become
accredited for the truth. (Hostler v. Hayes, 3 Cal. 302.)
In equity, under the operation of the plainest of the fundamental principles of estoppel, the
first judgment should be held to be absolutely null and void for the purposes of this action,
even though under ordinary circumstances and conditions it would be held to be voidable,
or to have been a perfect judgment which was afterwards abandoned.
22 Nev. 169, 178 (1894) Coffin v. Bell
action, even though under ordinary circumstances and conditions it would be held to be
voidable, or to have been a perfect judgment which was afterwards abandoned. The first
judgment was always absolutely null and void.
When constructive service is authorized by the statute in place of personal citation, the
statute must be strictly pursued. (Galpin v. Page, 3 Saw. 93; Neff v. Pennoyer, 3 Saw. 374;
Pennoyer v. Neff, 95, U. S. 714.)
The authorities cited by appellant on this point are not in point in this action. An
examination of them shows that those decisions were based upon irregularities, or alleged
irregularities, in the attachment proceedings, which were merely ancillary to the main action.
The first judgment was also void for the reason that it was prematurely entered. It requires
six weeks to complete service of summons by publication which was ordered by the court,
and the personal service made outside of the state was only the statutory equivalent of
publication. Had the summons been published defendant Goddard would have had forty days
after publication completed in which to answer. If in such cases personal service outside of
the state is the equivalent of publication, the time in which to answer would begin and end at
the same times as though the summons had been actually published. (Brooklyn Trust Co. v.
Bulmer, 49 N. Y. 84; Tomlinson v. Vechten, 6 How. 199; Abrahams v. Mitchell, 8 Abbot's
Prac. 123.)
The New York statute under which the above decisions were rendered was identical with
our own, but has since been so amended that personal service, when made outside of the
state, becomes a completed service at the time when it is made. Our statute has never been so
amended.
Appellant claims that the jurisdiction of the court was complete upon any theory of time.
Appellant is in error. Recitals in a judgment will not control when it appears from the whole
record that they are untrue. (Collinson v. Teal, 4 Saw. 241.)
Recitals in a judgment or decree of due service when the record shows differently give rise
to no presumptions of jurisdiction. (Northcutt v. Lemery, 8 Or. 316.)
Appellant admits that attachment suits against non-residents are personal in form, but he
says that they are essentially judgments in rem.
22 Nev. 169, 179 (1894) Coffin v. Bell
tially judgments in rem. As a matter of fact all such judgments are purely personal, for the
reason that the judgment per se does not affect any specific property. They are only available
as a means of reaching attached property. (Galpin v. Page, 3 Saw. 93.)
It therefore follows that without a valid personal judgment against a non-resident, an
attaching suitor has no legal means whereby to reach the attached property, and until he gets
such valid judgment the status of the property attached remains the same as when seized.
State v. National Bank, 4 Nev. 358, and State v. District Court, 16 Nev. 371, cited by
appellant, have no reference whatever to void judgments. The first has reference to erroneous
judgments only, and the latter to judgments which are good but subject to the power of the
court to open the default taken.
When a wise and profound lawyer, under the solemn sanctity of an oath, proclaims a
judgment to be null and void, and afterwards strenuously asserts that he was mistaken and
that it was only voidable, why should not respondents, poor unwigged laymen, sometimes be
mistaken?
Appellant's contentions about the invalidity of the order of publication, of the alias
summons, and of the judgment based upon them are without any merit whatever. Those are
questions concerning only respondent Bell and Mrs. C. R. Goddard, and do not concern
appellant in the least. Mrs. C. R. Goddard has not complained of the order of publication, or
of the alias summons, and she is the only one who has the right to do so. Independent of that,
however, after the rendition of a judgment, which is void for defect of service, an alias
summons may issue and a valid judgment be based upon its service. (Knapp v. King, 6 Or.
243.)
When it became an admitted fact that a copy of the writ of attachment, together with a
description of the property attached, was on file in the recorder's office when appellant took
his deed, he will not be permitted to say that he did not have full notice and knowledge of
everything covered by the seventh finding of fact. The court could not have found otherwise
than it did in that finding without having done violence to the entire body of the law as to the
notice given by recorded instruments. It was to meet just such cases as the one at bar that
the statute provides for such recordation.
22 Nev. 169, 180 (1894) Coffin v. Bell
the one at bar that the statute provides for such recordation.
In Hodson v. Tibbets, 16 Iowa, 97, a suit was commenced and land attached. Defendants
were not personally served, service being made by publication, but no proof of mailing a
copy, or excuse for not doing so, appeared as required by statute. Judgment by default was
taken and the attached land sold and resold by the purchaser. Afterward the defendants
conveyed the land by deed, and their grantee brought action to have the judgment declared
invalid, and the deeds based upon the judgment canceled. The lower court held that the
judgment was null and void, but that the attachment lien was preserved. Both parties
appealed. The supreme court of Iowa decided all of the proceedings leading to the seizure of
the property remain unaffected, and the parties are heard again upon the plaintiff's claim. The
case is taken up just as if no judgment had been rendered; all rights depending on the
preceding steps being unimpaired. Substantially to the same effect is Seaver v. Fitzgerald,
23 Cal. 86.
In conclusion respondents submit that the entire facts in this case, as disclosed by the
record, show that Mrs. C. R. Goddard gave, and appellant received, the deed mala fides, with
the intent of defeating respondents' demand and realization thereon by resort to meritless
technicalities.
Trenmor Coffin, in pro. per., and H. F. Bartine, for Appellant, in reply:
We have already shown in our original brief that as a mere attachment creditor respondent
has no valid defense in this action.
The second point made by respondent has not a square inch of ground upon which to rest.
The doctrine of estoppel has no application to the statement of legal conclusions in a
pleading. If applied to this case appellant would be estopped from denying that the first
judgment was absolutely void, while the respondent would in like manner be estopped from
denying that it was voidable only. This would present a very curious legal situation, but it is
not necessary for us to attempt to analyze it, for the case turns upon no such absurdity.
Respondents virtually admitted that the doctrines of estoppel do not apply to statements
of legal conclusions in pleadings, but they claim that it should be in this case as against
appellant, because he is a "lawyer of eminence," etc.
22 Nev. 169, 181 (1894) Coffin v. Bell
pel do not apply to statements of legal conclusions in pleadings, but they claim that it should
be in this case as against appellant, because he is a lawyer of eminence, etc. It is a very
singular argument, indeed, that the law should be varied according to the legal attainments of
litigants. It is very true that neither of the respondents is a lawyer, but it should not be
overlooked that their side of this case has at all times been conducted by lawyers of
eminence, etc. These gentlemen have prepared all the pleadings and framed every issue on
behalf of respondents, and when they seek to screen themselves behind the ignorance of their
clients, they advance an argument (?) that should not address itself very forcibly to the
intelligence of this court.
It was the duty of counsel to investigate and learn for themselves the real character of the
judgment in Bell v. Goddard, instead of blindly accepting the opinion of the opposite party.
The fact is that in this action both parties have shifted their positions. The only difference
is that appellant has been progressive enough to get out of a wrong position into a correct one,
while respondents have abandoned a position intrinsically right and assumed one that is
radically wrong.
It is clear that the statute providing for constructive service must be strictly personal. It is
equally clear that in this case the statute was not strictly pursued, but the record declared that
it was. In order to prove the defective service we must go behind the record, and this marks
the distinction between a judgment absolutely void and one only voidable.
When constructive service is resorted to the statute requires certain things to be done, and
the omission of any one of those things is fatal. The omission of all that the statutes
prescribes can be no more than fatal.
All of the defects which we pointed out in the order of publicationthe alias summons
and its serviceappear right on the face of the record. The second judgment is, therefore,
totally void, and can be attacked by anybody.
The case of Wiggins et al. v. Henderson, recently decided by this court, is strikingly
analagous upon this point. In that case the statute required, as the foundation of the
proceeding, a notice setting out a number of specific things. The notice actually filed omitted
one of those things, and the whole proceeding was declared void for want of judgment.
22 Nev. 169, 182 (1894) Coffin v. Bell
whole proceeding was declared void for want of judgment.
In the case of Bell v. Goddard the summons had been issued, served, returned, a
judgment rendered, and the judgment roll made up. It was completely dead, as if it had never
been. Process once served and returned is functus, and can only be revived by a judicial act.
(Carrigan v. Washburn, 28 N. Y. S. R. 156; 9 N. Y. Sup. 541.)
In some case it has been held that the court may, by its order, allow the withdrawal of a
return summons for further service, but never, we believe, in such a case as this.
This summons could not have been withdrawn for reservice without tearing the judgment
roll to pieces, and not even the court had the power to order the destruction of its own record.
But it is useless to discuss this, because no such order was made. The order directed the
service of a summons that did not exist, and was utterly void.
An examination of the case of Knapp v. King, 6 Or. 243, cited by respondents, merely
confirms and strengthens our opinion that no alias summons can be issued under the Nevada
code. The Oregon statute expressly provides for the issuance of the alias and pluries
summons. (Hills' An. Stats. Oregon, p. 186, sec. 59.)
The California practice act, as amended in 1875-6, is to the same effect. (Deering's An.
Code Civil Proc., sec. 408.)
Originally the California statute was the same as our own, and the fact that it was deemed
necessary to amend it so as to allow the issuance of an alias summons raises a strong
presumption that the original statute gave no such right.
The whole history of the case of Bell v. Goddard, taken in connection with this one, shows
that respondent Bell had obtained a judgment upon which he was entirely content to rest his
title until it was attacked. Counsel say that no one but appellant ever offered an objection to
that judgment. This is true, and for that reason it stands to-day as the final judgment in the
case of Bell v. Goddard, and excludes the right of respondent Bell to enter another judgment
until the first is set aside.
The case cited by respondent of Seaver v. Fitzgerald, 23 Cal. 86, was a case in which
personal property had been attached and the constable was sued for the possession of it. It
was claimed that the judgment was void because of irregularities in the process.
22 Nev. 169, 183 (1894) Coffin v. Bell
ularities in the process. The court held the judgment good, and then proceeded to say that
even if it had been void the defendant would have continued to hold under the attachment.
A judgment is not a lien upon personal property, and, hence, the doctrine of merger does
not apply to attachments of personality.
In the conclusion to their brief respondents accuse appellant of mala fides, and of trying to
defeat respondents' claim by resort to meritless technicalities. This is entirely gratuitous and
unsupported by anything contained in the record.
Where constructive service of summons is relied upon to sustain a judgment, a strict
compliance with the provisions of the statute is required (Little v. Currie, 5 Nev. 90; Mining
Co. v. Marsano, 10 Nev. 370; Victor M. & M. Co. v. Justice Court, 18 Nev. 21; Galpin v.
Page, 18 Wall. 350; Guaranty Trust & Safe Deposit Co. v. Green Cove Springs & M. R. Co.,
139 U. S. 137, 11 Sup. Ct. 512); otherwise the court obtains no jurisdiction over the
defendant; and the want of such jurisdiction, when permitted to be shown under the rules of
law concerning direct and collateral attack, is fatal to the judgment.
The question here is upon the sufficiency of the second judgment entered in the action of
Bell v. Goddard. It is claimed to be fatally defective, as against the present plaintiff, upon a
number of grounds, but it will only be necessary to notice one or two of them.
The affidavit and order for the publication of the summons clearly referred to the original
summons which had been issued long prior thereto, and which the other directed to be
published. Where publication is ordered, personal service of the summons out of the state is,
by section 31 of the practice act, made equivalent to publication and deposit in the postoffice;
and, in accordance with this, service was made upon the defendant herein in the state of
California, but not of the summons ordered to be published. When it was found that the first
judgment was insufficient, proper practice would doubtless have been to vacate that
judgment, withdraw the summons from the file, and serve it again. The first service was a
nullity, and, of course, would not prevent a good service from being subsequently made;
nor did the fact that the summons had been returned and filed with the clerk prevent this
course being taken.
22 Nev. 169, 184 (1894) Coffin v. Bell
first service was a nullity, and, of course, would not prevent a good service from being
subsequently made; nor did the fact that the summons had been returned and filed with the
clerk prevent this course being taken. (Hancock v. Preuss, 40 Cal. 572.) This would have
been correct, but in saying this we do not mean to decide that some other course might not
also be held sufficient. But instead of this, two days after the order was made, a second
summons, differing in some respects from the original, was issued and served upon Mrs.
Goddard. We have no statute authorizing an alias summons, and in the only case found
bearing upon the right to issue one without such authorization (Dupuy v. Shear, 29 Cal. 238,
240) it is said, though not decided, that an alias summons is not known to our system of
practice. It is, however, unnecessary to decide the point here. It was held in the case last
citeda conclusion with which we agreethat, if more than one summons is authorized by
the practice act, the second has no necessary connection with or dependence upon the first. It
is based upon the complaint alone. We are of the opinion that, if it has any validity whatever,
it stands the same as though it were the original summons in the case; and that brings us to
the point that the summons which was served upon Mrs. Goddard, and which is relied upon
to sustain the judgment, was not issued until two days after the order for publication was
made.
In People v. Huber, 20 Cal. 81, it was held that a judgment founded upon the publication
of a summons issued four days after the order for its publication was made was void. In
answer to the contention that the order could be made in advance, to take effect when the
summons was issued, the court said: The practice act contemplates that the judge must be
satisfied by affidavit of the absence of the defendant at the time when he is applied to for his
order, and when it is to take effect. If an order might be procured in advance, and held four
days before taking out of the summons, it might be held for a much longer time, and so that
when the summons actually issues, the defendant may have returned to the state.
In Little v. Currie, 5 Nev. 90, the case of People v. Huber was cited and followed, this
court there saying: It [the order for publication] also directs a summons to issue. This is not
its office. The order should be that 'service be made by the publication of the summons.'
Suit is commenced before the justice by the 'filing a copy of the note,' etc., 'and the
issuance of a summons thereon.' The order is a direction of extraordinary manner of
service, and presupposes the existence of a summons; otherwise it is premature.
22 Nev. 169, 185 (1894) Coffin v. Bell
is not its office. The order should be that service be made by the publication of the
summons.' Suit is commenced before the justice by the filing a copy of the note,' etc., and
the issuance of a summons thereon.' The order is a direction of extraordinary manner of
service, and presupposes the existence of a summons; otherwise it is premature. * * *
Statutory directions for acquiring jurisdiction by any other than personal service must be
strictly pursued.
In their brief, respondents' counsel contend that these are matters that only concern Mrs.
Goddard, and that she is the only one that can complain of the insufficiency of the service, or
of the issuance of the alias summons; but in this, we think, they are mistaken. As a purchaser
from her, the plaintiff seems to occupy, as to this property, the same position that she herself
would have occupied, and to have succeeded to all her rights. (People v. Mullan, 65 Cal.
396.) As her successor in interest, the action brought by him to quiet his title as against Bell's
judgment, upon the ground that the court had no jurisdiction to render the judgment, is a
direct, and not a collateral attack. (Choate v. Spencer, 32 Pac. 651; 17 Law Rep. 424; Penrose
v. McKenzie, 116 Ind. 35; Morrill v. Morrill, 20 Or. 96; Buchanan v. Bilger, 64 Tex. 589.)
For the reason that the summons which was served upon Mrs. Goddard was not the
summons ordered to be published, but one that issued two days after the order was made, we
are of the opinion that the court never acquired jurisdiction over her. This was not a strict, nor
even a substantial, compliance with the law. It follows that the judgment by default rendered
against her is void, and the sale thereunder of the property in dispute in this action to
defendant Bell gave him no title thereto.
Judgment and order refusing a new trial reversed, and cause remanded.
____________
22 Nev. 185, 185 (1894) Deegan v. Deegan
[No. 1409.]
THOMAS H. DEEGAN, an Infant, by HENRY NELIGH, His Guardian, Plaintiff and
Respondent, v. THOMAS DEEGAN, JOHN TASSELL, DENNIS KEHOE, J. B. DAZET, W.
H. COFFEY and J. C. DUNLOP, Defendants and Appellants.
1Jurisdiction of District Court in Guardianship Matters Presumed.In guardianship matters where the
judgment of the district court is collaterally attacked, the jurisdiction of the court is conclusively
presumed, and evidence to the contrary is not admissible.
is conclusively presumed, and evidence to the contrary is not admissible.
2Service of CitationVoluntary Appearance.The same as in case of a summons, service of a citation is to
bring the party into court. If he voluntarily appears without it, such service is unnecessary.
3Attorney Appearing, Authority Presumed.Upon collateral attack on a judgment removing a guardian, the
authority of an attorney to appear for the guardian is presumed, and the contrary cannot be shown.
4Power of Court to Revoke Letters of Guardianship.Gen. Stats., sec. 583, provides that all laws relative to
the accounts of administrators shall govern in regard to the accounts of guardians, as far as applicable.
Section 2897 provides that, if an administrator fails to render an exhibit after being cited, an attachment
may issue against him, or his letters may be revoked, in the discretion of the court. Held, that after a
guardian had been duly cited to account, the court had jurisdiction to remove him for failure to do so,
without further notice.
5Guardianship MattersJudgment of Courts InHow Only to be Resisted.The judgment of the district
court on matters concerning persons or estates of minors cannot be successfully resisted until overruled
or modified by some proceeding impeaching it.
6SameConclusive as to Whom.Such judgments are conclusive not only against the guardian himself, but
also against the sureties on his guardianship bond; whatever binds and concludes the guardian, equally
binds and concludes his sureties.
7PartiesNon-Joinder of Plaintiffs, How Properly Pleaded.An objection of non-joinder of parties plaintiff
cannot be taken by demurrer unless the complaint affirmatively shows that the party for whose
non-joinder the demurrer is interposed was living when the suit was commenced. If this fact does not
appear on the face of the complaint, the objection must be taken by answer.
8SameAnswer Must Show Party Living.An allegation in an answer of the non-joinder of proper parties,
plaintiff is defective when it does not show that the omitted party or parties were living at the date of the
filing of the complaint.
9Guardian's BondTechnical Defects in to be Ignored.There is wisdom in the rule, and it is of the highest
importance, that a guardian's bond, though inartistically drawn or slightly defective, is to be held
sufficient to bind the obligors. The law regards not the form but the substance of such an obligation.
10SameJoint, Instead of Several, as to Obligees.Where a guardian of several minors gives but one bond,
the sureties cannot escape liability in an action on the bond, on the ground that it is not such a bond as the
law requires, in that it is joint instead of several as to the obligees, nor on the ground that the action is
brought by only one of the obligees.
11Defects of Form Waived by General Demurrer.Where a complaint contains an allegation of the breach of
a bond on which the action is brought, although defectively stated, an objection thereto is not raised by a
general demurrer.
12Conversion of Funds of Ward by GuardianBreach of Condition of BondLiability of Bondsmen.If a
guardian converts the funds of his ward to his own use, there is a breach of his duty as guardian, and
consequently a breach of the condition of his bond, for which the sureties are liable.
Appeal from judgment and order overruling motion for new trial from the District Court,
Storey county; Richard Rising, District Judge.
The facts are fully stated in the opinion.
W. E. F. Deal, for Appellants:
The bond was joint and several as to the obligors (the principal and sureties), but joint as
to the obligees (the three minors).
This action was brought by one only of the obligees; he, alone, recovered judgment, and
the sureties appeal.
The complaint fails to state a cause of action.
The law of this state on the subject of guardians is contained in sections 548 to 598, Gen.
Stats. Section 548 provides for the appointment of guardians of minors, who have no
guardian legally appointed by will; and section 558 relates to testamentary guardians. This
latter section provides that the father of a minor may, by his last will, appoint a guardian of
such child, and that every testamentary guardian shall give bond and qualify, and shall have
the same powers and perform the same duties with regard to the person or estate of such
minor, as guardians appointed by the probate court, except as far as the said powers and
duties may have been legally modified, enlarged and changed by the will by which said
guardian was appointed.
We must, therefore, turn to section 555 of the General Statutes, which makes provision for
the giving of bonds by guardians of minors. This section provides that the bond shall be
conditioned that the guardian shall faithfully execute the duties of his trust according to law,
and that certain conditions shall be deemed to form a part of such bond without being
expressed therein. One of these conditions is that the guardian shall render an account within
three months after his appointment, and at such other times as the court shall direct; another
is that at the expiration of his trust he shall settle his accounts with the probate judge and
with the ward, if he be of full age, or his legal representative, and shall pay over and
deliver all the estate remaining in his hands, or due from him on such settlement, to the
person or persons, who shall be lawfully entitled thereto.
trust he shall settle his accounts with the probate judge and with the ward, if he be of full age,
or his legal representative, and shall pay over and deliver all the estate remaining in his hands,
or due from him on such settlement, to the person or persons, who shall be lawfully entitled
thereto. It is alleged in the complaint that after executing the bond, in suit, said Thomas
Deegan duly qualified as such guardian and continued to act as such until his letters of
guardianship were revoked, and that the final account of Thomas Deegan, as former
guardian of plaintiff, has been settled in the above court and $574 found to be due thereon.
There is no allegation that this sum was found to be due to plaintiff; it may have been found
to be due to the former guardian from aught that appears from the complaint. It is true that an
allegation follows that the former guardian received, as such, $1,286.40 of moneys belonging
to plaintiff and unlawfully converted $574.10 thereof to his own use; but this allegation
cannot aid the pleader, as it is not alleged that the court having jurisdiction of the guardian
found that he converted this sum to his own use, or that it is the same matter which was
settled by the court on the hearing of the final account.
Our statute on the subject of guardians and wards is in the particulars herein referred to
almost identical in language with the provisions of the code of civil procedure of California
upon the same subject. Section 548 of our statute corresponds with section 1747 of the code
of civil procedure of California. Section 558 corresponds with section 1758 of the code of
California. Section 555 corresponds with section 1754 of California code. The decisions of
the supreme court of California on this subject are, therefore, directly in point.
Graff v. Mesmer, 52 Cal. 636, was an action against sureties upon a guardian's bond. It
appears that the guardian had filed his account, but that it was never settled or allowed by the
probate court. It is good authority in this case, as also are Allen v. Tiffany, 53 Cal. 16;
Chaquette v. Ortet, 60 Cal. 599; Weihe v. Stathan, 67 Cal. 84. Clearly under these authorities
the allegation of conversion by the guardian cannot aid the plaintiff in the absence of a further
allegation that the court, in the guardianship proceedings, found such conversion to have
taken place; and, furthermore, would it be against all rules of pleading to presume, in aid of
the complaint, that when the plaintiff alleged that the court found a certain sum to be due
on an account, that it found such to be due to one party or the other, without any
averment as to which of the parties it was?
complaint, that when the plaintiff alleged that the court found a certain sum to be due on an
account, that it found such to be due to one party or the other, without any averment as to
which of the parties it was? Numerous authorities from other states might be cited to sustain
the proposition, which is well established, that the liability of the sureties on a guardian's
bond does not attach or approve until after the account of the guardian has been settled in the
probate court, and the amount due from the guardian fixed and determined by decree of that
court.
The complaint fails to state a cause of action in another important particular.
There is no allegation anywhere therein that demand for payment has been made either
upon the guardian or the sureties, nor is there any allegation of non-payment. (Chaquette v.
Ortet, 60 Cal. 599.)
The complaint is, therefore, fatally defective in failing to show that neither the former
guardian nor any of the sureties defendant in this action have paid the amount alleged to have
been due and converted by the guardian. The liability of the sureties rests strictly upon their
bond. The condition of their bond is that Thomas Deegan shall faithfully execute the duties of
his trust. One of these duties is to pay over and deliver all the moneys in his hands, or due
from him on the settlement of his accounts, to the person entitled thereto. It does not appear
that he has not done so, and no breach of the conditions of the bond is, therefore, shown.
There is a defect of parties plaintiff.
It is elementary law that a surety has a right to stand on the precise terms of his contract,
and that he can be held to no other or different contract. (People v. Buster, 11 Cal. 220;
Pierce v. Whiting, 63 Cal. 543.)
In the case at bar the bond was conditioned that the principal would faithfully execute the
duties of his trust, as guardian of three minors, who are named. Undoubtedly where one and
the same person is appointed guardian for a number of minors he should give bond to each of
his wards. The bond to each of them may be contained in the same instrument, but it should,
at least, run jointly and severally to the wards; and the condition should be expressed that it is
given as security for the faithful discharge of the duties of his trust as guardian of each of
the minors.
his trust as guardian of each of the minors. No such bond was given by Thomas Deegan or his
sureties. This appeal is not taken by Thomas Deegan, nor is the question of his liability
involved here in any way. We have simply to deal with the rights and obligations of the
sureties. They alone appeal from the judgment against them in this action brought by one only
of the three joint obligees named in the bond.
The guardian is liable to each of his wards, separately, for the share of the estate of each
coming into his hands without any bond whatsoever, but the liability of his sureties is fixed
by their bond, and, according to its tenor, they made themselves liable only to the minors
jointly, in case of the violation of duty by the guardian towards all of them.
It is not likely that a person who is appointed guardian of several minors will convert the
funds of one of them and not those of the others. It is more than likely that he would mingle
the funds of his wards, presumably invest them together, and probably keep a joint account
with them. It would, therefore, be a matter of great difficulty to ascertain and determine which
particular minor's funds the guardian had converted. The sureties on a bond, given to the
minors jointly, ought not, therefore, to be subjected to separate actions by each of them.
The bond runs to the minors jointly, and the sureties have a right to stand upon the precise
terms of their contracts, and insist that they shall be held to no other or different liability than
that which is therein expressly and unequivocally provided for. The case of McGilvery v.
Moorehead, 3 Cal. 267, is directly in point. There plaintiff and another made a contract with
defendants to purchase flour. Defendants delivered a portion of the flour to one of the
purchasers, and plaintiff sued for damages for a failure to deliver the balance to him.
Defendants contended that the contract was joint and that plaintiff could not sue alone. Held,
that if plaintiff relied upon the contract he could not sue without joining his co-contractor. To
the same effect is: Mayo v. Stansbury, 3 Cal. 465; Koutz v. Vanclief, 55 Cal. 345.
Thomas Deegan has never been legally removed as guardian. His trust has not expired.
Henry Neligh has never been legally appointed guardian, and the conditions of the bond have
not been broken.
The citation was returned to the court with an admission of service by Mr. F. M. Huffaker,
attorney for the guardian. No proof of service of the citation upon the guardian personally was
ever made, and no other service appears than that shown by the admission of the attorney.
Section 583 of the General Statutes provides that all the laws relative to the accounts of
executors and administrators shall govern in regard to the accounts of a guardian, so far as
they can be made applicable. Section 2958 provides that a citation must be delivered to the
person therein named; in other words, that there must be personal service. The authority of
Mr. Huffaker, as attorney for the guardian, did not go to the extent of authorizing them to
accept service of a citation, and the service upon him was void. The subsequent statement of
the guardian to Mr. Huffaker, that he was satisfied with what he had done, could not operate
retroactively to make that legal which was, at the time, void, at least as against these sureties.
If it appears that Mr. Deegan had left the state, the citation should have been served upon
him by publication. (Ashurst v. Fountain, 67 Cal. 18; Spencer v. Houghton, 68 Cal. 82.)
No petition was ever filed in the Deegan guardianship matter for the removal of the
guardian, and the only acceptation of service, even by Mr. Huffaker, was of a citation
requiring the guardian to file an account. Without any petition, without any service upon the
guardian or his attorney, without any foundation whatever, without any opportunity to the
guardian to be heard, the court found that he had embezzled the estate of his wards and
converted the same to his own use, and removed him. Its action, in this regard, was wholly
unauthorized, without jurisdiction and void. It ought not to bind Thomas Deegan, and
certainly could not bind his sureties.
It is true that Thomas Deegan subsequently filed an account, and an amount was found due
thereon to the plaintiff; but when the court did settle this account and Thomas Deegan was
before it in person it did not remove him. We contend, therefore, that Deegan's trust as
guardian has never expired, and that the condition upon which he was to pay over any money
in his hands to the person entitled thereto has never arisen.
A guardian cannot pay over the estate in his hands to his ward during his minority. The
guardian's trust terminates either when the ward attains his majority, or if he dies before that
time, or if the guardian resigns his trust or is removed on proper proceedings. If the ward
attains his majority the guardian must settle with him; if the ward dies during minority the
guardian must settle with his administrator; if the guardian resigns or is legally removed, he
must settle with his successor. In this case the ward (the plaintiff) is still a minor, the guardian
has not resigned and has not been legally removed. Consequently there is no person who is
lawfully entitled to receive the moneys found to be due to plaintiff by the court on settling the
guardian's account.
Thomas Deegan's trust has not expired, and the implied condition of the bond, as
expressed in section 555, Gen. Stats., has not been broken.
C. E. Mack, for Respondent:
The defendants moved for a new trial upon two grounds, namely: (1) Insufficiency of the
evidence to justify the decision and that it is against law. (2) Errors in law occurring at the
trial and excepted to by defendants. Said motion for a new trial was overruled and defendants
appealed.
It will be seen upon examination that the evidence justifies the decision and that there are
no errors in law occurring during the trial; and should the court find that there were errors in
law occurring at the trial they were not to the prejudice of the defendants.
The statement on motion for a new trial does not specify the particulars wherein the
evidence is insufficient to support the judgment, wherein it is contrary to the evidence, and
fails to specify the particular errors in law occurring at the trial and excepted to by the
defendants, and should be disregarded as provided by section 3219, Compiled Laws.
Counsel for appellants maintains that the case of Graff v. Mesmer, 52 Cal. 636, is in point
in this case. We think this is illogical and unreasonable. The facts in that case are totally
unlike the facts in this case. In that case the final account of the guardian had not been settled
by the court. In this case the evidence is that Deegan had been removed as guardian and
Neligh appointed to succeed him.
as guardian and Neligh appointed to succeed him. The final account of Deegan as guardian
was settled before this action was commenced, and that Deegan as guardian had embezzled
and unlawfully converted $574.10 of plaintiff's money to his own use. All the other
authorities cited by appellant on this point are, like the case of Graff v. Mesmer, not in point,
as the facts in each are totally unlike the facts in this case. After the demurrer of defendants
was overruled, and no exception was taken to such ruling, defendants answered to the
complaint, raising issues of fact, and thereby waived their right to rely upon their demurrer
upon issues of law. (Bliss on Code Pleading, sec. 417; Tenant v. Pfister, 45 Cal. 272; Lonkey
v. Wells, 16 Nev. 275, and authorities cited.)
It is not necessary to allege or prove a demand. In a case of this kind the commencement of
the action is a sufficient demand and the allegation in the complaint of the amount found due
on the settlement of the account, and that the former guardian Deegan had unlawfully
converted the same to his own use is a direct allegation of a breach of the bond and
non-payment, and could not have been more clearly alleged than in this case. Conversion
could not have been alleged or proven had the money been paid to plaintiff. A pleader is not
required to use a set phrase and is only required to set out the facts constituting the cause of
action in ordinary and concise language, which should be fairly and liberally construed.
(Com. Laws, secs. 3061, 3092; Rosendorf v. Mandel, 18 Nev. 129; White Pine Co. Bank v.
Sadler, 19 Nev. 98; McManus v. Ophir Silver Mg. Co., 4 Nev. 15.)
Counsel for appellant, in claiming that the complaint is defective in not using the negative
words of no part of which has been paid, evidently seeks to establish a new rule in pleading
a conversion. He taught the writer while a law student in his office that it was quite
unnecessary to plead payment where unlawful conversion was to be set out in a complaint, or
in other words, there could be no lawful conversion where payment had been made.
Counsel for appellant contends that there is a misjoinder of parties from the fact that the
bond given by the former guardian is to the three minor children of Michael Deegan,
deceased, and this suit is brought in the name of the guardian of Thomas Deegan, a minor,
without joining the other two children.
ian of Thomas Deegan, a minor, without joining the other two children. The statute directs
that the action shall be prosecuted in the name of the real party in interest. (Com. Laws, sec.
3031.)
The supreme court of California has adopted the rule that the action shall be brought in the
name of the real party in interest and the obligees are not compelled to join in an action.
(Summers. v. Farrish, 10 Cal. 347; Lally v. Wise, 28 Cal. 540; Brownee v. Davis, 15 Cal. 9.)
Where the defendant has caused a severance of joint obligees by paying to one or more
their proportion, then the other obligees can sue separately. (Buckner v. Baird, 32 La. 226.)
The defendants having settled and paid John J. Deegan his proportion or interest, and
defendants themselves severed the joint interest of the obligees.
The interest of the minors is not united, and the attempt of counsel to so state is an attempt
to contradict the facts in the case. Neither of the children have nor ever had any interest in the
money due plaintiff, and the fraudulent attempt of the former guardian and the sureties to give
the bond in one instrument, so as to destroy and perplex the remedy of the plaintiff, is an
attempt to set up their own fraud as a defense to plaintiff's complaint.
Thomas Deegan, the former guardian, testified that he was removed, and that after that he
ceased to act as guardian. This shows conclusively that he had authorized F. M. Huffaker,
Esq., to accept service of citation as testified to by said Huffaker.
Section 585, Com. Laws, provides that a guardian may be removed after notice, but makes
no provision for the service of the same upon a non-resident and absconding guardian, and
plaintiff should not be required to do an impossible thing or one that is not required by the
statute. Counsel urges that under section 2958, Com. Laws, the former guardian must be
personally served with notice, although he had left the state. If sections 2957 and 2958 are the
law in this respect then the notice on a non-resident and absconding guardian must be served
as a summons is served when issued by the district court. If this be the law, then section 3047,
Com. Laws, provides that voluntary appearance shall be equivalent to personal service of
summons and gives the court jurisdiction.
equivalent to personal service of summons and gives the court jurisdiction.
Where it appears that a guardian has removed from the jurisdiction of the court and taken
the property of his ward with him, his removal will be ordered without notice. (Cooke v.
Beale, 11 Ind. (N. Car.) 36; State v. Engelke, 6 Mo. App. 356; Succession of Bookter, 18 La.
Ann. 157.)
The fact that the bond to the three children was in one instrument does not invalidate it nor
compel the minors to join in one action to enforce its breach. (Ordinary v. Heishon, 42 N. J.
Law, 15; Court of Probate v. William Sprague, 3 R. I. 205; Hook v. Evans, 68 Iowa, 54;
McBeth v. VanSickle, 6 Nev. 134.) And if the court should believe that the bond should not
have been in one instrument, this slight defect does not invalidate it. (State v. Rhodes, 6 Nev.
371.)
In settling the final account of Deegan, the former guardian, Deegan not only appeared by
attorney, but in person, and under oath rendered a final account, in which he testifies that he
had been removed and was no longer guardian. The sureties also appeared by their present
attorney, who contested said final account on behalf of said sureties, and on the final ruling of
the court took exception thereto.
A guardian's final account, settlement and discharge by the court are res adjudicata of all
matters therein, and cannot be collaterally attacked in a suit upon the bond and can only be set
aside by direct proceedings therefor. (State v. Slaughter, 80 Ind. 597; Holland v. State, 48
Ind. 391; Garlon v. Boots, 73 Mo. 275; Lynch v. Rotan, 39 Ill. 14; Broderick v. Bordriff, 56
Cal. 563; Canby v. Hanmore, 76 Ind. 125.)
In an action upon a guardian's bond for the recovery of the amount found due the wards,
upon a final settlement of the guardian's accounts in the probate court, the sureties are
concluded by the settlement, and will not be heard in the absence of fraud and collusion, to
question its correctness or demand a rehearing of the accounts. (Brandon v. Mercer, 44 Ohio,
339.) And they are estopped from denying the truth of the report. (Joseph Ream, Guardian v.
Edward Lynch, 7 Ill. App. 161; Garrett v. Malone, 54 Ala. 19; Corbin v. Westcott, 2
Demarest, 559; Badger v. Daniel, 79 N. C. 386.)
By his last will and testament, M. W. Deegan, deceased, nominated and appointed Thomas
Deegan to be the guardian of the person and estates of his minor children, to wit, John J.
Deegan, Thomas Deegan and Michael Deegan. On or about the 23d day of July, 1888, the
said Thomas Deegan qualified as such guardian, by the filing of a bond in the penal sum of
$5,000 for the faithful discharge of his duties as such guardian, and entered upon the
discharge of his duties. This action is brought upon the bond for a failure of the guardian to
discharge the duties of his trust. The defendants first contend that the court had no
jurisdiction to remove the former guardian, and none to appoint the present guardian. On June
27, 1893, the plaintiff filed a petition in the district court stating that the guardian had never
filed any account of his guardianship, and asking that he be compelled to do so. An order was
thereupon made that a citation issue requiring the guardian to file such an account on or
before July 15, 1893, or then show cause why he should not do so. On that day, F. M.
Huffaker, Esq., an attorney at law, appeared for the guardian, and asked for further time in
which to file the account. The time was accordingly extended to July 22d, the court stating in
the order extending the time that, if the accounts were not then filed, the letters of
guardianship would be revoked. July 25th, Mr. Huffaker again appeared; but, no account
being forthcoming, an order was made revoking the letters, and removing the guardian. On
the same day the present guardian was appointed.
The objection in this case to the orders revoking the letters of the former guardian, and
appointing the present one, is a collateral attack upon the judgment of the court in the
guardianship matter. (Van Fleet, Coll. Attack, secs. 2, 3.) In such a case the jurisdiction of the
district court is conclusively presumed, and evidence to the contrary is not admissible. (Black,
Judgm., sec. 271; Van Fleet, Coll. Attack, sec. 841.) Upon another ground, also, the
jurisdiction is sufficiently shown. The same as in case of a summons, service of a citation is
only necessary to bring the party into court. If he voluntarily appears without it, such service
is unnecessary.
unnecessary. Here it appears from the record that the guardian did appear by attorney. To be
sure, it was sought to be shown that the attorney had no authority to appear for him, but, upon
collateral attack, such authority is presumed, and the contrary cannot be shown. (Carpentier
v. City of Oakland, 30 Cal. 446; Weeks, Attys. at Law, secs. 196, 212.) It is, however, argued
that the proceeding in the guardianship matter was simply to compel the guardian to account,
and that in that proceeding the court had no jurisdiction, without further notice, to remove the
guardian. Section 583, Gen. Stats., provides that all the laws relative to the accounts of
executors and administrators shall govern in regard to the accounts of guardians, so far as the
same can be made applicable.
Section 2897 directs that if any executor or administrator neglects or refuses to appear and
render an exhibit, after having been duly cited, an attachment may be issued against him, or
his letters may be revoked, in the discretion of the court. That was the situation here. After
having been, presumptively, duly cited to render an account, and upon the hearing of the
matter by attorney, he still neglected or refused to do so. This authorized the court to remove
him. (Deck's Estate v. Gherke, 6 Cal. 668.) Section 6 of article VI. of the constitution vests in
the district court jurisdiction in all cases relating to the persons and estates of minors; and its
judgment cannot be successfully resisted until reversed or modified by some proceeding
impeaching it. It is conclusive, not only against the guardian himself, but also against the
sureties upon his official bond. Whatever binds and concludes the guardian equally binds and
concludes his sureties. (Brodrib v. Brodrib, 56 Cal. 563; Holland v. State, 48 Ind. 391;
Garton v. Botts, 73 Mo. 276; Candy v. Hanmore, 76 Ind. 125; Lynch v. Rotan, 39 Ill. 20;
State v. Slauter, 80 Ind. 597.)
The appellants contend that, the bond given by Thomas Deegan as guardian of the persons
and estates of the minors being joint and several as to the obligors, but joint as to the
obligees, this plaintiff cannot maintain this action without joining his co-obligees with him;
and they interposed a demurrer to the complaint on the ground of defect of parties plaintiff,
which was overruled. An objection of non-joinder of parties plaintiff cannot be taken by
demurrer unless the complaint shows that the party for whose non-joinder the demurrer is
interposed was living when the suit was commenced.
complaint shows that the party for whose non-joinder the demurrer is interposed was living
when the suit was commenced. And it is held that it is not enough that the complaint is silent
on the subject; the fact must affirmatively appear. (Estee, Pl. & Pr., sec. 3102; Bliss, Code Pl.,
sec. 411.) If it does not appear upon the face of the complaint, the objection must be taken by
answer. This the defendants attempted to do by an allegation in their answer that they were
not liable to the plaintiff, but, if any liability existed, it was to the obligees named in the bond
jointly, and not severally to plaintiff. This allegation is defective, in that it does not show that
the omitted party or parties were living at the date of filing the complaint. (Wilson v. State, 6
Blackf. 212; Stockwell v. Wager, 30 How. Pr. 273; Levi v. Haverstick, 51 Ind. 236; National
Distilling Co. v. Cream City Importing Co., (Wis.) 56 N. W. 866; Palmer v. Field (Sup.) 27
N. Y. Supp. 737; State v. Goodnight, 70 Tex. 688; Furbish v. Robertson, 67 Me. 38.)
Pleas in abatement have always been regarded with disfavor, by reason of the fact that they
are dilatory in their nature, and seek to defeat the action upon technical grounds. The rule,
therefore, in relation to the degree of certainty required, both as to form and substance of such
pleas, requires fullness and particularity in the statement, leaving nothing to be supplied by
intendment or construction; and the pleadings should show that it was necessary, in order to
protect the rights and interest of the pleader, that the omitted party should be brought into
court.
The appellants argue that the bond given in this case is not such a bond as is required to be
given by law, and is for that reason null and void. There is no allegation in the answer, nor is
there any statement in the points and authorities submitted to us by the counsel, pointing out
wherein this bond is defective, except, as we can infer from his argument, that it is so by
reason of the fact that it is joint in so far as the obligees are concerned. It has been held in a
number of well-considered cases that a guardian's bond, though inartificially drawn or slightly
defective, will be held sufficient to bind the obligors; and we cannot but think that there is
manifest wisdom in the rule that the law will regard in transactions like the present, not the
form, but the substance, of the instrument; nor does it seem to us that such a rule is ever,
in any of its numerous applications, of more worth than when it is employed as a
safeguard to persons who are unfortunate, and must of necessity be represented by
agents appointed by the court and designated guardians.
stance, of the instrument; nor does it seem to us that such a rule is ever, in any of its
numerous applications, of more worth than when it is employed as a safeguard to persons
who are unfortunate, and must of necessity be represented by agents appointed by the court
and designated guardians. It must strike any one as preposterous that the bond given by a
guardian can be defeated by a slight inaccuracyby the addition or omission of a word or
sentence. The present case will afford a fair illustration of the practical operation of such a
pernicious principle. This guardian had the bond prepared by an attorney of his own choosing.
The principal and his bondsmen signed it knowing that they were obligating themselvesthe
principal that he would faithfully perform all the duties of his trust, in accordance with law
and the orders of the court; and the bondsmen binding themselves that they would be
responsible for any defalcation or neglect of duty on the part of their principal. This
instrument was presented to the judge for his approval. It was approved by the judge, and
filed in the office of the clerk; and now, after the lapse of many years, when it becomes
necessary to sue the bondsmen, the property of the minors having been misappropriated by
the guardian, the bondsmen endeavor to avoid their obligation by raising the technical
objection that one of the obligees cannot maintain the action without joining all others named
in the bond with him. As the said bond was given subject to conditions prescribed by the
statute, which conditions have not been fulfilled, in our judgment, law and public policy
demand that such defenses should not prevail in this character of cases.
The case of Ordinary v. Heishon, reported in 42 N. J. Law, 17, was an action upon a
guardian's bond. The defense was that the bond did not conform to the statute, by reason of
the fact that but one bond was given for the guardianship of two minors, and was defective in
other particulars. It was admitted that the statute of the state required a separate bond with
respect to the estate of each minor. The court said: The act of tendering such a bond as this,
as the security called for by the statute, was an act of great carelessness on the part of the
guardian and his sureties, and the acceptance of such instrument by the surrogate or the court
was conduct still more censurable; but it would seem to be irrational in the extreme to
conclude that, by reason of such improprieties, these sureties are to be absolved from all
responsibility, and these innocent minors be left without redress.
was conduct still more censurable; but it would seem to be irrational in the extreme to
conclude that, by reason of such improprieties, these sureties are to be absolved from all
responsibility, and these innocent minors be left without redress. We have not adopted in this
state the doctrine that, because a bond of this class does not conform to the statutory
definition, it becomes, for that reason alone, unenforceable. In such a condition of things, the
strong leaning of the courts has been to hold such instruments valid, to the full extent of their
terms, so far as they embody the statutory policy, as voluntary obligations.
The case of Pursley v. Hayes, 22 Iowa, 28, was a proceeding to set aside a guardian's sale.
One of the objections raised was that the bond was a joint bond, and hence void. In passing
on this point, the court said: Next is the objection that the guardian was appointed for the
wards jointly, and the bonds are for their security in the same manner, * * * and certainly
nothing has been more common in our practice than to appoint one guardian for all minors
thus interested, and no rule of the statute can be found forbidding it. The case of Hooks v.
Evans, 68 Iowa, 54, was an action by one ward against her guardian and sureties. On the trial
of the case in the nisi prius court, the sureties were released, and judgment entered against the
guardian. The plaintiff appealed. In reversing the judgment, the appellate court said: One
question remains to be determined, and that is as to the amount for which these sureties are
liable in this case. The judgment against the guardian was for $736.12. The penalty of the
bond is $600. The judgment against the sureties might be for the amount of the penalty of the
bond, but for the fact, which remains to be stated, that Evans was appointed guardian, not
only for the plaintiff, but for three others, and the bond in question was given for their benefit,
and was the only one given for the four. It is manifest that the aggregate liability of the
sureties to the four wards could not exceed $600. The other three wards are not made parties,
and without them no judgment can be rendered by which their rights can be impaired. It
follows that the court below should have rendered judgment against the sureties for $150, and
only that.
Although the bond in this case is not in strict conformity to the statute, yet the fact that
it was given for the benefit of more than one minor does not vitiate it.
to the statute, yet the fact that it was given for the benefit of more than one minor does not
vitiate it. The practice in this respect appears to be general and uniform in all courts
authorized to take such bonds. The omission of the word severally does not weaken the
bond, release the sureties, nor, in our opinion, deprive the individual ward from maintaining
an action either against the guardian or his sureties. The nature of the guardian's duties is
several, and would require a several inventory, a several accounting, and payment over to the
wards, as they severally arrive at full age.
The appellants contend that there is no allegation in the complaint that the decree in the
guardianship matter found the sum for which the judgment is given to be due the plaintiff; but
in this counsel is mistaken, for the complaint distinctly charges that the final account of
Thomas Deegan as former guardian of plaintiff has been settled in the above court, and
$574.10 found to be due plaintiff thereon.
Counsel also contends that there is no allegation of a breach of the conditions of the bond;
that there is no allegation that the money has not been paid to the plaintiff; and that,
consequently, the complaint does not state facts sufficient to constitute a cause of action. To
this contention, however, we think there are two sufficient answers: FirstThe complaint
does allege that, after qualifying as such guardian, the said defendant Thomas Deegan
received as said guardian, of the person and estate of plaintiff, the sum of $1,286.40 of the
moneys belonging to plaintiff, and has unlawfully converted the sum of $574.10 thereof to his
own use. The demurrer is general so far as this point is concerned, and the defect now relied
upon is not specially pointed out as such. There can be no question that the allegation just
quoted was intended as charge of a breach of the conditions of the bond. Admitting that it is
not sufficient as such, it is still more a defect of form than of substance, and is quite different
from a complaint that contains no allegation of a breach. As such it was waived by the
general form of the demurrer. (Grant v. Sheerin, 84 Cal. 197; Bliss v. Sneath, 36 Pac. 1029.)
SecondThe office of guardian is one of trust and obligation. He is bound to act for the best
interest of his ward, and not for his own; and, whenever he seeks to gain an advantage at the
expense of his ward, such act is fraudulent.
act is fraudulent. It was the duty of the guardian to keep the money of his ward separate and
intact from his own funds, and invest the same for the best interest of his ward. He had no
right to use it in his own private business, nor for his own purposes; and, if he did so, such
use was a breach of his duty. (1 Perry, Trusts, sec. 275.) The bond was that he should
faithfully execute the duties of his trust according to law; and if he converted the money to his
own use, as charged in the complaint, there was clearly a breach of his duty as such guardian,
and consequently a breach of the condition of the bond, for which his sureties are responsible.
(State v. Roberts, 21 Ark. 263; Irwin v. Backus, 25 Cal. 221.)
It follows that Thomas Deegan was legally removed as guardian and by such removal his
trust expired, and the conditions of his bond were broken. Henry Neligh, having been selected
by the minor, and at his request appointed by the court, is the legal guardian.
The judgment and order appealed from are affirmed, and it is so ordered.
____________
[No. 1410.]
MICHAEL M. DEEGAN, an Infant, by HENRY NELIGH, His Guardian, Plaintiff and
Respondent, v. THOMAS DEEGAN, JOHN TASSELL, DENNIS KEHOE, J. B. DAZET, W.
H. COFFEY and J. C. DUNLOP, Dependants and Appellants.
W. E. F. Deal, for Appellants:
Brief practically to the same effect as that of appellants in the case (No. 1409) of Thomas
H. Deegan, an Infant, etc., v. Thomas Deegan, et al., ante.
C. E. Mack, for Respondent:
Brief also practically to same effect as that for respondent in case No. 1409, ante.
Appeal from judgment and order overruling defendants' motion for a new trial, from
District Court, Storey county; Richard Rising, District Judge.
The facts are declared to be the same as those in the case of Deegan v. Deegan, et al. (No.
1409), ante, by the Court in the following opinion: Per Curiam: This case turns on the same
questions presented in the case of Deegan v. Same Defendants {No.
Per Curiam: This case turns on the same questions presented in the case of Deegan v.
Same Defendants (No. 1409; this day decided), and it must be decided in the same way.
Judgment and order appealed from are affirmed.
____________
[No. 1411.]
THE STATE OF NEVADA, ex rel. W. H. CAUGHLIN, as Sheriff of Washoe County,
Nevada, Relator, v. GEORGE ALT, W. P. McLAUGHLIN and J. F. CROSBY, as the Board
of County Commissioners of Washoe County, Nevada, Respondents.
1Negative StatutesRepeal By.Negative statutes are mandatory, and must be presumed to have been
intended to repeal all conflicting statutes, unless the contrary can be clearly seen.
2SheriffsBoard of PrisonersRight to Contract For.Stats. 1887, 108, which forbid any county officer,
except county commissioners, to contract for the payment or expenditure of any county moneys whatever,
being expressed in negative terms, repeal Gen. Stats., sec. 2139, which required the sheriffs to furnish, at
the expense of the counties, all necessary supplies for the prisoners committed to their custody, and left
the sheriffs without authority to bind their counties by a contract for the board of prisoners.
Original proceeding. Application for writ of certiorari.
The affidavit for the writ alleged that the respondents, as commissioners of Washoe
county, were proceeding to let a contract for boarding the prisoners confined in the county
jail, and to that end had made certain orders in relation thereto. This proceeding was brought
to test their authority to make said orders. The respondents demurred to the affidavit.
Torreyson & Summerfield, for Relator:
Relator claims the right to furnish all necessary sustenance, bedding, clothing and fuel for
the prisoners committed to his custody, and that the county commissioners are required to
allow him out of the county treasury all necessary costs, charges and expenses thereof. He
makes this claim under and by virtue of an act of the legislature of the State of Nevada,
entitled An act in relation to common jails and the prisoners thereof, approved November
25, 1861, and the act amendatory thereof, approved March 3, 1866.
Respondents claim that relator has no right to furnish these supplies, except upon an order
of the board of county commissioners, or a majority of them, authorizing him to do so under
and by virtue of an act of the legislature of Nevada, entitled An act limiting the power of
certain county officers, approved March 3, 1887, affirming that said act of 1887 repeals
section 2139, Gen. Stats., heretofore empowering the sheriff to furnish such supplies.
The act of 1887 is a general act, contains no repealing clause, and the act of 1866 is a
particular, specific and special act; if the two acts can stand and be taken together, and each
given their proper construction, the court will uphold them both. The act of 1866 is nowhere
mentioned in the act of 1887, and if section 2139 is repealed it can only be so by implication.
Repeals by implication are not favored by the courts, but it is the duty of the court to ascertain
the intention of the legislature at the time when the act of 1887 was passed. At that time the
act of 1866 was a law in force upon our statute books, and the presumption is that the
members of the legislature of 1887 knew of its existence, and if it was their intention to take
away from the sheriff the powers and duties imposed upon him under the act of 1866, they
would certainly have expressed their intention in clear and unmistakable language. That it
was not their intention so to do is found in the words of the act itself. They undoubtedly
intended to except the sheriff from the provisions of this act.
If the sheriff fails to furnish the specific things mentioned in the act of 1866, or shall not
allow reasonable allowance and accommodation to the prisoners in his charge, the
commissioners can bring an action against him, and recover the sum of $50. Is it pretended
that this section of the act of 1861, as amended in 1866, has been repealed by the act of 1887?
(See sec. 2141.) How about section 2140? Must the sheriff go to the county commissioners
and have them say what they will allow for the transfer of prisoners, and make a contract
before he removes them? How about section 2147?
The act of 1887 makes it the specific duty of sheriffs to furnish specific things themselves,
of which the necessary cost must be specifically allowed them by the commissioners.
To produce a repeal by implication the two acts must be upon the same subject and there
must be a plain repugnancy between their provisions.
upon the same subject and there must be a plain repugnancy between their provisions. (Coats
v. Hill, 41 Ark. 151, and authorities; Sutherland on Stat. Const., sec. 151, 204-205; 12 Bush.
237; also, 54 Mich. 171; 64 Md. 419-423.)
The act of 1887 does not refer to the former act of 1866 or to any part of it, either directly
or indirectly. The invariable rule of construction in respect to the repealing of statutes by
implication is that the earlier act remains in force unless the two are manifestly inconsistent
with and repugnant to each other, or unless in the later act some express notice is taken of the
former plainly indicating an intention to abrogate it. (Bowen v. Lease, 5 Hill. 225-226.)
It is necessary to the implication of a repeal that the objects of the two statutes be the
same; if they are not, both will stand, though they may refer to the same subject. (People v.
Platt, 67 Cal. 32; U. S. v. Claffin, 97 U. S. 546; Ramson v. Ramson, 52 Ill. 62.) Repugnant
means irreconcilable.
The law intended that the sheriff, and he alone, should have charge and control of the
prisoners committed to his charge as to discipline, custody and maintenance. He is the officer
upon whom this duty devolves, and no one else. The act of 1861-66 was passed in order to
give the sheriff sole power and control over the prisoners in his charge. He is responsible on
his official bond.
If respondent's interpretation of the law is correct, the sheriff cannot give the prisoners any
light, any bedding, any clothing, or any fuel without having the commissioners contract for
such supplies.
The act of 1887 never intended to repeal the law regarding the duties of the sheriff, so far
as the prisoners committed to his charge were concerned, because in the act of 1866 the
legislature was only legislating so far as prisoners were concerned, and the act of 1887 is
reconcilable with this.
If this be not true, then it is necessary for the sheriff, in case he needs a mattress for a
prisoner, to go to the commissioners and ask them to get it, and for this there must be a
meeting of the board of county commissioners before he can do so.
There are numerous cases in which the law has made it the specific duty of certain county
officers to do certain things at the expense of the county, and there is no law making it the
duty of the commissioners to do these things.
making it the duty of the commissioners to do these things. Did the legislature by the act of
1887 intend by implication to withdraw those duties from the county officers and make no
provision for any one to perform them?
SheriffsDuty to board jurors in criminal cases at the expense of the county (Gen. Stats.
4271 and 4272). AssessorDuty to print list of taxpayers at the expense of the county (Gen.
Stats. 1280). ClerksDuty to call doctors at the expense of the county to examine alleged
insane persons when judge is absent from the county (Stats. 1889, p. 40, in connection with
Gen. Stats. 1457). TreasurerDuty to publish delinquent tax list at expense of county (Stats.
1891, pp. 147-48). Query: Did the Legislature by the act of 1887 intend to leave the
performance or non-performance of these duties entirely dependent upon the pleasure of the
commissioners?
The act of 1887 is in every sense a general one. The act of November, 1861, as since
amended, is in every sense of the word a particular one, the legislature having in mind the one
subject only of jails and the prisoners therein.
A later general act never repeals an earlier particular act, except in the clearest
manifestation of the intention of the legislature so to do, or when the acts are so irreconcilably
repugnant that it is impossible for both to stand.
In this respect a particular act is classified the same as a local, special, or local and special
act. (Sedgwick on Stat. Construction, secs. 95-6-8-23; Sutherland on Stat. Construction, sec,
157, p. 212; sec. 158, p. 159; Dwarris, sec. 765; State v. Judge, 38 Mo. 534; 18 Md. 434, 439;
Village Hyde Park v. Cemetery, 119 Ill. 141, 147; Home for Inebriates v. Reis, 95 Cal. 142,
148; Ex Parte Smith, 40 Cal. 420; 33 Am. & Eng. Ency. of Law, p. 424; State v. Severance,
55 Mo. 386; Thorpe v. Schooling, 7 Nev. 17; 10 Nev. 319; 20 Nev. 217; 21 Nev. 220.)
It is really a question of intention.
The words negative and affirmative statutes mean nothing. The question is whether they
are repugnant or not to that which before existed. That may be more easily shown when the
statute is negative than when it is affirmative, but the question is the same. A negative word is
only one indicia noted by the courts in order to determine legislative intention.
noted by the courts in order to determine legislative intention. (13 O. B. 33.)
A subsequent act which can be reconciled with a former one shall not be a repeal of it,
though there be negative words. (16 W. Va. 278.)
The well-settled doctrine derived from all authorities is that laws special and local in their
application are not deemed repealed by general legislation, except upon the clearest
manifestation of an intent by the legislature to effect such repeal; and ordinarily an express
repeal or some intelligible reference to the special act is necessary to accomplish that end.
(81 Va. 367.)
We submit that, had the legislature intended to repeal the act of 1866, it certainly would
have made some reference to it in the act of 1887.
It is clear that the legislature, in passing the act of 1887, did not intend to limit or curtail
the duties of the sheriff, and if both acts can be reconciled, one with the other, then the court
will so find.
B. F. Curler, District Attorney of Washoe county, and Benjamin Curler, for Respondents:
Respondents claim that the petition does not state facts sufficient to entitle the relator to
the granting of the writ, for the reason that the board of county commissioners has the right to
contract for boarding the prisoners, and no other person or officer has.
It is conceded that prior to the passage of the act of the legislature of March 3, 1887, Stats.
1887, p. 108, the sheriffs of the several counties of this state were authorized to furnish all
necessary sustenance, bedding, clothing and fuel for those confined in the county jail, and the
county commissioners were required to allow all necessary costs, charges and expenses
thereof out of the county treasury. (Gen. Stats., sec. 2139.) But the act of March 3, 1887,
withdraws that right and power from the sheriff and vests it in the board of county
commissioners; and that part of the act of 1861, as amended in 1866, which authorized the
sheriff to furnish all necessary sustenance, bedding, clothing and fuel for prisoners, is
repealed by statute of March 3, 1887. The act of March 3, 1887, is entitled An act limiting
the power of certain county officers," and the body of the act provides that "No county
officer in any county of this state, except the board of county commissioners, shall
contract for the payment or expenditure of any county moneys for any purpose whatever,
or shall purchase any stores or materials, goods, wares or merchandise, or contract for
any labor or service whatever, except the board of county commissioners, or a majority of
them, shall order such officer to do the same."
tain county officers, and the body of the act provides that No county officer in any county
of this state, except the board of county commissioners, shall contract for the payment or
expenditure of any county moneys for any purpose whatever, or shall purchase any stores or
materials, goods, wares or merchandise, or contract for any labor or service whatever, except
the board of county commissioners, or a majority of them, shall order such officer to do the
same.
The title of an act can properly be resorted to in order to determine the legislative intent.
(Torreyson v. Board of Ex., 7 Nev. 19; People v. Flynn, 16 Cal. 358.) And the title is of much
importance when the constitution requires that the subject matter of the act shall be briefly
stated in the title. (Mazro v. Merchant & Co., 14 Wis. 295; Dodd v. State, 18 Ind. 56; Const.
of Nev., art. IV., sec. 17.)
Looking then to the title of this act, it is manifest that the legislature passed it solely for the
purpose of limiting the power of certain county officers, and the power sought to be limited is
one that must have been vested in a county officer by express provision of law, otherwise,
considering the nature sought to be limited, it would not exist. Now the power did exist in the
sheriff, prior to the passage of this act, and that by express provision to furnish necessary
sustenance, etc., for the prisoners and bound the county for the same; then considering the
title of the act of March 3, 1887, in connection with its provisions, it is clear that the intention
of the legislature was to withdraw this power from the sheriff because the furnishing of
sustenance, etc., involves either the contracting for the payment or expenditure of county
moneys, or the purchasing of stores or materials, goods, wares, or merchandise.
The statute is unambiguous and gives no room for construction (Odd Fellows' Bank v.
Quillan, 11 Nev. 109), and being a negative statute is in terms a denial of all prior laws
inconsistent therewith and therefore repeals them, and obviously this repeal is not by
implication, but is express. (State v. Donnelley, 20 Nev. 217-218; Bishop on Stat. Crimes,
sec. 153; Sedgwick on Construction, p. 31; State v. Beard, 21 Nev. 220.)
Negative words are indicative of a mandatory intent. (Bishop on Stat. Crimes, sec. 155a;
Sedgwick on Construction, p. 319; 1 Blackstone's Commentaries, 89.)
The intention of the legislature controls, both as to meaning of the act and repeal of former
acts, no matter how expressed. If, therefore, it is clearly apparent that it intended to abrogate
a former law, no matter whether that intention is expressly stated or not, it must be carried
out. (Thorpe v. Schooling, 7 Nev. 17-18.) And if the intention to repeal is manifest it is not
necessary that there be a direct conflict between the two acts. (Thorpe v. Schooling, 7 Nev.
17-18; City and County of Sacramento v. Vird, 15 Cal. 294; Sedgwick on Construction, p.
104.)
The question involved is the right of the board of commissioners of Washoe county to
contract for the board of the prisoners confined in the jail of said county. It is claimed that the
authority to purchase all necessary supplies for the prisoners is vested in the sheriff, and that
the commissioners have nothing to do with it, except to allow the bill as contracted by that
officer. By Stats. 1861, p. 41, as amended by Stats. 1866, p. 189 (Gen. Stats., sec. 2139), it
was provided that the sheriff shall furnish all necessary sustenance, bedding, clothing and
fuel for the prisoners committed to his custody; and the commissioners are hereby required to
allow him, out of the county treasury, all necessary costs, charges and expenses thereof. It is
admitted that this act vested the disputed power in the sheriff, but it is contended that the law
in this respect was changed by Stats. 1887, p. 108, which reads as follows: No county officer
in any county in this state, except the board of county commissioners, shall contract for the
payment or expenditure of any county moneys for any purpose whatever, or shall purchase
any stores or materials, goods, wares or merchandise, or contract for any labor or service
whatever, except the board of county commissioners, or a majority of them, shall order such
officer to do the same.
Does the latter act vest in the commissioners the authority previously existing in the
sheriff?
Except as limited by the constitution, the legislature undoubtedly has full control over
county affairs, and it is not suggested that it did not have the power to make the change
indicated; but it is contended that it did not do so, upon the principle that a general statute
does not repeal a special one, unless the intention so to do is clearly manifested; that, as
the act of 1S61 is nowhere mentioned in the act of 1SS7, the latter, at most, can only
constitute a repeal of the former by implication, and, as the two acts can stand
togetherthe one as constituting an exception to the general rule of the other that no
county officer shall be permitted to contract for the countyno such repeal exists.
principle that a general statute does not repeal a special one, unless the intention so to do is
clearly manifested; that, as the act of 1861 is nowhere mentioned in the act of 1887, the latter,
at most, can only constitute a repeal of the former by implication, and, as the two acts can
stand togetherthe one as constituting an exception to the general rule of the other that no
county officer shall be permitted to contract for the countyno such repeal exists. This
principle is illustrated by the case of State v. Beard, 21 Nev. 218.
The question is one of intention upon the part of the legislature, but of intention to be
ascertained under the established rules for the interpretation of statutes. The courts are not
permitted to speculate as to whether the legislature had a certain state of facts in view at the
time of the enactment of a statute, or as to whether, if it had, the statute would not have been
drawn differently; but, where the language is clear, we must suppose that the lawmakers
intended just what they have said, in every aspect of the case that they ought to have had in
mind. Where, as in the case of State v. Beard, supra, two affirmative statutes have been
enactedone special and the other generaland there is ample scope for the latter to operate
without repealing the former, it may be presumed that the legislature did not intend to repeal
the special act, although in the letter of the two acts there is a conflict. Especially is this the
case in view of the rule of interpretationwhich we must presume was known to the
legislaturethat one affirmative statute will not repeal another, unless there is an absolute
conflict between them, or it can be ascertained in some manner that a repeal was intended.
But where the later act is expressed in negative terms, the principle is different. Negative
statutes are mandatory, and must be presumed to have been intended as a repeal of all
conflicting provisions, unless the contrary can be clearly seen. It would not, perhaps, be
easy, said Sherwood, J., in Bladen v. Philadelphia, 60 Pa. St. 464, 466, to lay down any
general rule as to when the provisions of a statute are merely directory, or when mandatory or
imperative. Where the words are affirmative, and relate to the manner in which power or
jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the
power or jurisdiction itself, they may be, and often have been, construed to be directory;
but negative words which go the power or jurisdiction have never, that I am aware of,
been brought within the category."
have been, construed to be directory; but negative words which go the power or jurisdiction
have never, that I am aware of, been brought within the category. A negative statute, being
mandatory, and in terms a negation, or denial, of the prior law, repeals it. (Bish. Writ. Law,
sec. 153.) If a statute contrary to a former one be expressed in negative words, it operates to
repeal the former. (Suth. St. Const., sec. 139.) Thus, an act providing that no corporation
shall interpose the defense of usury repeals the laws against usury as to corporations. (Curtis
v. Leavitt, 15 N. Y. 135.) An act that no beer shall be sold without a license repeals a law
previously authorizing such sale, under certain circumstances, without a license. (Read v.
Storey, 6 Hurl. & N. 423.) It is certainly the general rule that the negative words in a
subsequent statute constitute a repeal of all previously enacted conflicting provisions, and we
are unable to discover anything indicating a different intention in this case.
Under our statutes the commissioners are the only officers authorized generally to
purchase supplies, or enter into contracts, on behalf of the county. (Gen. Stats., sec. 1949.) At
the time of the enactment of the statute of 1887, but two or three instances existed where
other officers had the power of so doing. Certainly, without a statute to that effect, no officer
could bind the county, and, as we must suppose, that the last-mentioned act was intended to
make some change in the law, and was not passed for a mere idle purpose, upon what else
could it be intended to operate, if not in the instance mentioned? If intended for these few
instances, why should it not as well have been intended to apply to the sheriff, in the matter of
keeping of prisoners, as to the assessor in the publication of the list of taxpayers, or to the
treasurer in the publication of the delinquent tax list?
It is suggested that other officers have been in the habit of purchasing supplies for the
counties, and that it was to prevent their already illegal acts that the statute was passed. This
is possible; but to construe the statute upon that theory would be to take our feet from the
well-trodden path of recognized legal construction, to be relied upon by legislatures and
courts in both enacting and construing laws, and resort to the miry bog of speculation,
without chart or compass to guide our steps.
It is also argued that the difficulty of properly caring for the prisoners, if the sheriff must
consult the commissioners every time he orders a meal or purchases a pair of shoes for them,
proves that the legislature did not intend such a result. But to this it must be answered that,
where the law is plain, this is a consideration with which the courts have nothing to do. Their
duty is to ascertain and give effect to what the legislature, within the limits of the
constitution, has declared. If the law works badly, it will probably be changed, but this is for
the legislature to determine.
It may also be added that the act of 1887 permits the commissioners to authorize other
officers to purchase all necessary supplies, etc., for the county; and we can no more suppose
that they will neglect to either properly attend to county affairs themselves, or to authorize
others to do so, than that the legislature would fail to enact laws necessary for that purpose in
the first instance, or the sheriff fail to furnish necessary food and clothing for the prisoners in
his charge while the duty of so doing rested upon him.
At any rate, it seems clear that, by the last-mentioned law, the legislature intended to place
all expenditure of county funds under control of the board of commissioners; and this, under
the circumstances, is conclusive of the controversy.
The application for the writ is denied.
____________
22 Nev. 213, 213 (1894)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
OCTOBER TERM, 1894.
____________
22 Nev. 213, 213 (1894) State v. Spinner
[No. 1412.]
THE STATE OF NEVADA, ex rel. FRANK R. McNAMEE, Relator, v. WILLIAM
SPINNER, County Recorder and ex officio County Auditor of Eureka County, Nevada,
Respondent.
1Act of the Legislature Fixing Salary of Specific Justice of the Peace (Stat. 1891, p. 35) Constitutional.The
act of the legislature entitled An act fixing the salary of justice of the peace in and for Eureka township,
Eureka county, State of Nevada (Stats. Nev., 1891, p. 35), by the terms of which the justice of the peace
in the township named was allowed a salary of $60 per month in lieu of fees from the county, though a
special and local act, is not unconstitutional and is therefore valid.
2ConstitutionPower of Legislature under, to Enact Special Laws Concerning Salaries of County and
Township Officers.The former constitutional restriction upon the legislature concerning the subject of
compensation of county and township officers was, prior to the year 1891, removed in terms by the
amendment of art. IV., sec. 20, of the constitution by the exception to the provision restricting the
legislature concerning the passing of special and local laws regulating county and township business.
(Art. IV, sec. 20, as amended February 11, A. D. 1889.)
Original proceeding. Application for alternative writ of mandamus.
Thomas Wren, for Relator:
The only question presented for determination is the constitutionality of the act of the
legislature of Nevada fixing the salary of the justice of the peace of Eureka township,
Eureka county.
the salary of the justice of the peace of Eureka township, Eureka county. (Stats. 1891, p. 35.)
It has been the uniform custom of the legislature, from the adoption of the state
constitution to the present time, to pass local and special laws regulating the fees and
compensation of county and township officers.
In the debates in the constitutional convention there seemed to be some question amongst
the members as to whether the passage of such laws would not be in violation of section 20,
article IV., of the constitution as adopted, but it was finally conceded that the passage of such
laws was not prohibited by that section. In order to make the section plainer, an amendment
was adopted in 1889 conferring the authority upon the legislature to pass such laws. With this
later provision incorporated in section 20 it is difficult to understand how it can be plausibly
contended that the act fixing the salary of the justice in Eureka township is unconstitutional.
If it be unconstitutional every officer of Eureka county and of most of the other counties of
the state is drawing a salary or receiving fees illegally.
Peter Breen, for Respondent:
Respondent contends that the act in question is in conflict with three sections of the state
constitution, to wit: Sections 20, 21 and 25, article IV., and is therefore unconstitutional. The
ninth subdivision of section 20 prohibits the legislature from passing local or special laws
regulating county or township business. Fixing the compensation of officers is a regulating of
county and township business within the meaning of the constitutional prohibition. (Singleton
v. Eureka Co., 22 Nev. 91.)
It is true that the amendment to section 20, ratified at the special election of 1889, would
seem to give color of constitutionality to the act of 1891, but section 20, as amended, must be
read and construed in connection with section 21, article IV., which provides that in all cases
enumerated in the preceding section, and in all other cases where a general law can be made
applicable, all laws shall be general and of uniform operation throughout the state.
The rules of construction of statutes apply equally well to the construction of
constitutions. And as all of the sections and provisions of a statute must be, when
possible, construed together, so the various sections of a constitution bearing upon a
given point must be taken into consideration when determining the constitutionality of a
law.
sections and provisions of a statute must be, when possible, construed together, so the
various sections of a constitution bearing upon a given point must be taken into consideration
when determining the constitutionality of a law. (State v. Arrington, 18 Nev. 14.)
The amendment to section 20 is limited in its operation and scope by section 21 to the extent
that the regulation of county and township business, in fixing the compensation of officers,
cannot be done by a local or special law where a general law can be made applicable.
That in the matter of fixing the compensation of a justice of the peace a general law can
be made applicable there can be no doubt, for as a matter of fact for nearly thirty years the
office of justice of the peace has been conducted under a general law in regard to fees and
compensation. (Gen. Stats., 2342-2354.)
It is laid down in Williams v. Bidleman (a case cited in Singleton v. Eureka Co.), that the
legislature has not the power to dispense with the provisions of a general law regulating
county business in favor of one officer and leave those provisions in force as to all others.
(Williams v. Bidleman, 7 Nev. 68.) This is precisely what the legislature did or attempted to
do when it enacted the act of 1891. It dispensed with the provisions of the general law
regulating the compensation of justices of the peace of Eureka county and the state at large in
favor of the justice of the peace of Eureka township by entitling that officer to a special salary
of $60 per month in addition to fees in certain cases.
The act of 1891 is not only not applicable to townships of a particular class, as for instance
of a certain voting population throughout the state, but it excludes from its provisions the
various other townships (three in number) of Eureka county and is, therefore, in derogation of
that uniform system of county and township government, which the legislature under section
25, article IV. of the constitution is required to establish throughout the state. (State v. Boyd,
19 Nev. 43; Welsh v. Bramlett, 98 Cal. 319.) Again if the act * * * regulating the internal
affairs (of a county) be of a general nature, although it may not be applicable to all the
counties of the State * * * and showing the legislation to be appropriate to some counties or
localities and inappropriate to others, the counties or localities will be considered as a class
by themselves as respects such legislation, and legislation affecting such a class is
general.
to others, the counties or localities will be considered as a class by themselves as respects
such legislation, and legislation affecting such a class is general. But if the act * * *
regulating the internal affairs of a county excludes from its operation counties or localities
similarly situated and in like relation to the legislative purpose, then the classification is not
uniform and is faulty as being local and special. (Singleton v. Eureka Co., 22 Nev. ante.)
As far as the exclusion of other localities, similarly situated, is concerned, the act of 1891,
could not have been so construed as to make it more faulty or less uniform.
If the act in question be constitutional a township, the justice in which may not have a
dozen days' office labor in a year, may, by boss or lobby work in return for political or other
services, or in the cause of nepotism, be placed in a position to literally rob taxpayers in the
drawing of a fat salary.
It does not follow that because other officers are possibly receiving compensation for their
services under unconstitutional laws that the act in question is constitutional. Two wrongs do
not make a right.
Thomas Wren, for Relator, in reply:
The rules of construction of constitution and statutes are so familiar that it is needless to
cite authorities.
In construing the constitution all of its provisions must be read together and upheld if
possible.
If any of its provisions are so inconsistent and conflicting that they cannot be reconciled,
then the provision or amendment latest adopted must prevail.
Applying these rules in the present case there should be no difficulty in determining it.
This is an application for a writ of mandamus requiring the respondent, as ex officio
auditor of Eureka county, to audit and allow the relator's claim for salary as justice of the
peace of Eureka township.
At the session of the legislature in the year 1891, an act was passed allowing the justice of
the peace of Eureka township a salary of $60 per month, in lieu of fees. (Stats. 1891, p.
p. 35.) The only question is whether the legislature had the power to adopt a special law
applicable to the incumbent of this office.
The objection is that the law is special and local, regulating county and township business,
contrary to the provisions of section 20 of article IV. of the constitution.
The authority to enact special laws fixing the compensation of county officers has been
frequently exercised by the legislature. No judicial question as to the constitutionality of such
legislation had been made until the case of State v. Fogus, 19 Nev. 247, was decided. In that
case the power of the legislature to adopt laws of this nature was upheld. That decision was
followed and approved in the case of Mining Co. v. Allen, 21 Nev. 325.
It would seem that these cases should have settled the question adversely to the relator's
contention, but the constitution itself has been amended since the decision in State v. Fogus,
and, as amended, removes, in terms, all restrictions upon the legislature upon the subject of
compensation of county and township officers. The amendment is as follows: Sec. 20. The
legislature shall not pass local or special laws in any of the following enumerated cases, that
is to say: * * * regulating county and township business. * * * But nothing in this section
shall be construed to deny or restrict the power of the legislature to establish and regulate the
compensation and fees of county and township officers.
Let the mandamus issue.
____________
22 Nev. 217, 217 (1894) Douglass v. Folsom
[No. 1407.]
J. M. DOUGLASS, Plaintiff and Respondent, v. L. D. FOLSOM, Administrator of the Estate
of C. C. Stevenson, Deceased, Defendant and Appellant.
1EstateClaim Against, Proper Presentation Of.A claim against an estate was not presented to the
executrix nor was it presented at the place designated in the notice to creditors as the executrix's place of
business or of residence, but was presented to an attorney who was acting as an attorney for the estate. The
court found that the attorney was authorized by the executrix to receive the presentation of claims, and that
he had actually presented the claim in question to the executrix. Evidence examined and held, that these
findings are not sustained.
Appeal from judgment and order overruling motion for new trial from District Court,
Ormsby county; Richard Rising, District Judge.
new trial from District Court, Ormsby county; Richard Rising, District Judge.
The facts are stated in the opinion.
J. L. Wines and Trenmor Coffin, for Appellant:
Brief in reply, being an argument almost exclusively on the facts, is omitted except:
No new fact, or point, or authority, was presented at the second trial of this case. Counsel
for plaintiff contends that the presentation of plaintiff's claim to the executrix was sufficient
in both law and fact, notwithstanding the reversal of the former judgment by this court in
Douglass v. Folsom et al., 21 Nev. 441, et seq.
F. M. Huffaker, for Respondent:
Brief, being of similar character, is omitted except:
We have already shown wherein the evidence now before the court supplements the
defects of the first trial, as pointed out by this court in Douglass v. Folsom, 21 Nev. 441.
Hence, the remark of counsel that the second trial and the rendering of the second judgment
in the case, from which this appeal is taken, * * * seems to have been upon the principle of
giving the supreme court another chance,' is purely gratuitous and an unwarranted reflection
upon the trial court, for the reason that on the former trial it was not in evidence that the
executrix, on her leaving the state during the time for presenting claims, made arrangements
for claims to be forwarded to her, while on the second trial this fact is clearly proven, and
arrangements were made with Mr. Coffin who, as attorney for the estate, receiving a fee of
$5,000, accepted this claim under said direction of the executrix, which made it a valid
presentation under every principle of right and justice and according to the decision and
doctrine of Douglass v. Folsom, supra, so that the trial court very properly held, owing to the
new state of facts proven on the second trial, that plaintiff was entitled to a judgment, the
omission pointed out by this court having been fully supplied, as found by the trial court.
Upon the hearing of the former appeal in this action (21 Nev. 441to which reference is
made for a fuller statement of facts) the question was presented whether, the
administratrix being absent from the state, the presentment of a claim against the estate
to an attorney who had been employed in the course of the administration was a
sufficient presentation to support an action; the statute providing {Gen. Stats., sec.
Nev. 441to which reference is made for a fuller statement of facts) the question was
presented whether, the administratrix being absent from the state, the presentment of a claim
against the estate to an attorney who had been employed in the course of the administration
was a sufficient presentation to support an action; the statute providing (Gen. Stats., sec.
2805) that no action shall be maintained upon a claim unless it shall have been first presented
to the executor or administrator, and (section 2798) that, if not so presented, it shall be barred
forever. We conclude that it was not; that without regard to whether the executor or
administrator was in the state or out of it, the statute recognized but two modes of presenting
a claimone to him personally, and the other at the place designated in the notice to creditors
as the representative's place of business or of residence; and that the latter provision relieves
the law of all charge of entailing unnecessary hardship upon the creditor by requiring him to
present the claim to the representative personally under all circumstances, as the place so
designated should be one fixed and permanent, and easily found. It was not, and is not now,
contended that such presentation was unnecessary, or that this action could be maintained if
the claim were not presented, and the only question is, as before, upon the sufficiency of the
presentation.
The learned judge found upon the trial that the attorney, Coffin, was authorized and
directed by the administratrix to receive claims, and forward them to her, and also that he did
receive the plaintiff's claim, and present it to the administratrix. It is claimed that these
findings distinguish the case from the case presented upon the former appeal, and support the
judgment for the plaintiff.
The statute having provided how claims may be presented, and the executor being merely
an agent in charge of the estate for the purpose of settling up its affairs with only the special
powers conferred for that purpose, it may be a question as to how far he can waive a
compliance with the statutory provisions governing the presentation of claims; but it is
unnecessary to pass upon it here, as we are of the opinion that the findings mentioned are not
supported by the evidence.
It is not claimed that it was directly proven that the executrix authorized Coffin to receive
claims for her, but the finding concerning this authority is sought to be sustained by evidence
that she had upon two or three occasions requested him to go to the residence which she had
designated in the notice to creditors as her place of business or of residence, and ascertain
whether claims had been left there, and, if so, to bring or send them to her; and that this was
the only means adopted by her to obtain possession of such claims. From this evidence it
would seem that she recognized that claims might be legally presented at that place, and, of
course, if any were, it was quite important that she should obtain them. To this end she sent
her attorney there to make inquiries, but this, it seems to us, was a long way from conferring
authority upon him to receive the presentation of claims generally. It certainly conferred no
more authority upon him than it would upon any other messenger. Suppose she had sent a
servant upon the same errand, or had requested a friend to make similar inquiries, it would
hardly be argued that they were thereby authorized to receive claims generally, and to bind
her by their presentation, without regard to whether they ever reached her. Claims left at that
residence were legally presented, regardless of whether they were ever delivered to Coffin, or
even whether they ever reached the administratrix. He was simply the vehicle through which
such claims, if any there were, were to be conveyed to her, and this no more authorized him
to receive other claims generally than it would have authorized the postoffice department to
do so had that been the instrument of conveyance chosen. His authority was special, and, the
evidence shows, was carefully limited by the executrix. This evidence is not contradicted, and
not inherently improbable, and if not true it is the plaintiff's misfortune that he is unable to
show that such is the case. Neither does the fact that Coffin had received other claims and
forwarded them to the administratrix, in the absence of any proof that she had directed him to
do so, establish his authority to act for her in the reception of claims. It is doubtless quite a
common practice to hand claims to the attorney who is understood to be advising the
representative concerning the administration, and, if delivered by him to the representative, as
they usually are, the presentation is doubtless sufficient, the same as it would be if
delivered to the representative by any other person; but, as held in Rawson v. Knight, 71
Me.
usually are, the presentation is doubtless sufficient, the same as it would be if delivered to the
representative by any other person; but, as held in Rawson v. Knight, 71 Me. 99, 104, a case
quite in point, it would be no part of his duty as an attorney to so receive them, and, if he did,
he would rather, as to them, become the agent of the creditor than of the representative. The
evidence relied upon to support the finding that Coffin actually presented the claim to the
administratrix is the same as upon the former appeal, which we then held to be insufficient.
Instead of showing presentation, it shows that it never was presented, and never called to her
attention, until several months after the time for the presentation of claims had expired. This
is the direct and positive testimony of Coffin, who, the administratrix being dead, is the only
witness testifying upon this point. His evidence is clear, plausible, uncontradicted, and under
all the rules of evidence must be taken as true. At any rate, under the issues, the burden of
proving presentation was upon the plaintiff, and there is no testimony whatever to establish
that fact. While we regret the effect of this decision, which will probably result in the defeat
of an apparently just claim, we have no doubt that the law, as we have declared it, is in
accordance with the intention of the legislature as declared in the statutes, and it follows that,
without regard to the hardships of the case, we must so declare. It is to the advantage of all
interested in estates that the rules concerning the presentation of claims should be definite and
fixed, and it is our duty to look, not at the hardships of this case, but to the general rule.
The judgment is reversed and cause remanded.
____________
[No. 1406.]
SOUTH END MINING COMPANY, a Corporation, Plaintiff and Respondent, v. CHARLES
TINNEY, M. GLAVINICH and FANNIE LEHIGH,
Defendants and Appellants.
1Mining Ground, Title by Patent, Statute of Limitations.The statute of limitations does not begin to run
against a person entitled to the legal title to mining ground until the patent is issued to him.
2SameVarianceWhen Immaterial.Where the answer sets up an adverse holding of the premises by
defendants for more than two years before the commencement of the action on March 30, 1892, a patent
from the United States, issued to the plaintiff February 7, 1891within two years of the commencement
of the actionis admissible in evidence upon this issue, although the complaint alleges that plaintiff's
ownership began March 29, 1888.
Appeal from District Court, Lyon county; Richard Rising, District Judge.
Robert M. Clarke and E. D. Knight, for Appellants:
This is an action of ejectment to recover Comet mine. The action was commenced March
30, 1892; the complaint alleges that said plaintiff is now, and ever since the 29th day of
March, 1888, has been the owner in fee simple of the mining ground in contention. The
answer alleges that plaintiff acquired the title in fee as follows: Defendants admit that said
plaintiff purchased the mining ground by metes and bounds, as described in the complaint,
from the United States of America on the 29th day of March, 1888, and on that day acquired
the legal title to said mining ground from the United States. Among other things, and by way
of affirmative relief, the answer alleges the discovery and location by defendants and their
grantors of the Phoenix lode and mining claim. The answer also pleads the statute of
limitations; also, title by prescription; also, fraud in procuring the title of plaintiff; also,
estoppel.
At the trial plaintiff offered its patent from the United States of America for the Comet
mine, including the ground in contention. The patent is dated February 7, 1891, nearly three
years after the date pleaded. Defendants objected to the introduction of the patent on the
ground that the evidence was immaterial, and upon the further ground that it contradicted the
averments of the complaint and the admissions of the answer.
It was error to admit the patent in evidence; the patent contradicted the averments of the
complaint and admissions of the answer. Evidence was not admissible to controvert facts
admitted by the pleadings. (Patterson v. Sharp, 41 Cal. 133; Hall v. Pollack, 42 Cal.
219-225; Colvin v. Replican Vl. Assn., S Am. St. 114; Hirschfeld v. Williamson, 1S Nev.
66-71
can Vl. Assn., 8 Am. St. 114; Hirschfeld v. Williamson, 18 Nev. 66-71.)
Evidence offered must correspond with the allegations. (Greenleaf on Evidence, sec. 51.)
It was error to deny defendant's offer of proof to support the plea of the statute of
limitations, because the complaint alleging title in fee of date March 29, 1888, and the answer
admitting this averment, the patent of plaintiff was immaterial, the complaint was conclusive,
and it was competent for defendants to prove themselves in possession under claim of title
and plaintiff out of possession during the statutory time. (Gen. Stats., sec. 3632; Brown v.
Warren, 16 Nev. 234; Gibson v. Choulton, 13 Wall. 92-102; Treadway v. Wilder, 12 Nev.
114.)
Defendant's peaceable adverse possession for two years after final entry made raises the
presumption of a grant from plaintiff to defendants of such estate, title and interest as it had
when the adverse possession began. (Gen. Stats., secs. 3632, 3635, 3638; 3 Saw. 634; Angell
on Watercourses, secs. 201, 202-214; Goddard on Easements, pp. 111, 112; Gould on Waters,
secs. 329, 330; 420 Mg. Co. v. Bullion Mg. Co., 9 Nev. 240, 249; 32 Cal. 27; 58 Cal. 73, 291;
2 Nev. 189.)
When an injury is done or a right invaded, prescription begins to run. (Washburn on
Easements, 308, 309, par. 49; 17 Conn. 288; 6 Ex. 363.)
Prescription is a presumption of a grant once made and lost. (Angell on Watercourses,
secs. 200, 201, note 6.)
The patent to plaintiff does not carry the Phoenix lode, because the apex thereof is more
than 300 feet from the middle of the Comet lode, and because said Phoenix lode is north of
the legal northerly end line of said Comet lode and location. (Rev. Stats. U. S., sec. 2320;
Wade's Am. Mg. Law, pp. 14, 194; Thompson v. Spray, 72 Cal. 533; 114 U. S. 576; Davis v.
Wiebbold, 11 Sup. Ct. Rep. 635-636; Last Chance Mg. Co. v. Tyler Mg. Co., 61 Fed. 557;
Larkin v. Roberts, 54 Fed. 461; Larkin v. Dally, 53 Fed. 333; Watervale Mg. Co. v. Leach, 33
Pac. 418; Tyler Mg. Co. v. Sweeney, 54 Fed. 284; 54 Fed. 262.)
Defendants should have been permitted to make proof of plaintiff's fraud as charged by
them. (Cooper v. Roberts, 59 U. S. 18 How. 173; St. Louis S. & R. Co. v. Kemp, 104 U. S.
636; U. S. v. Chapman, 5 Saw. 52S; Stoddard v. Chambers, 2 How. 2S5; Morton v.
Nebraska, 21 Wall. 660; Sherman v. Bruick, 93 U. S. 216; Patterson v. Tatum, 3 Saw. 173;
Patterson v. Winn, 11 Wheaton, 3S0; 19 Am.
U. S. v. Chapman, 5 Saw. 528; Stoddard v. Chambers, 2 How. 285; Morton v. Nebraska, 21
Wall. 660; Sherman v. Bruick, 93 U. S. 216; Patterson v. Tatum, 3 Saw. 173; Patterson v.
Winn, 11 Wheaton, 380; 19 Am. & Eng. Ency. of Law, pp. 345, 346, citation and notes;
Craig v. Leitensdorfer, 123 U. S. 209, 212; Rose v. Richmond, 17 Nev. 25, 60, 64; 75 Cal.
194; 82 Cal. 104; 96 U. S. 535; 98 U. S. 64-66; 83 Cal. 101, 539; 104 U. S. 636; 56 Cal. 277;
87 Cal. 371; 4 Saw. 336; 85 Cal. 448; State v. Lewis, 43 Am. Dec. 540; U. S. v. Culver, 52
Fed. 81; La Mont v. Stinson, 62 Am. Dec. 696; Shepley et al. v. Cowan et al., 91 U. S. 300;
Moore v. Robins, 96 U. S. 530; Johnson v. Towsley, 80 U. S. 72; Hermocilla v. Hubbell, 26
Pac. 611; Hermann on Est., p. 1062, et seq., and citations, sec. 1063; Walker v. Flint, 3
McCreary, 507; Smelting Co. v. Greem, 13 Fed. 208, 211, 212; Smith v. Townsend, 29 Pac.
82.)
This is the second appeal in this case. Upon the former appeal this court held in effect that
there was but one issue of fact made by the pleadings upon which evidence could be received.
(South End Mg. Co. v. Tinney et al., 22 Nev. 19-71, ante.)
The complaint alleged that the plaintiff, ever since the 29th day of March, 1888, has been
the owner in fee simple of the premises in dispute. The defendants in their amended answer
admitted the allegation, but alleged that more than two years had elapsed prior to the
commencement of this action since the plaintiff was seized or possessed of the Phoenix
claim, and that plaintiff's action is barred by the statute of limitations. Plaintiff introduced in
evidence its patent from the United States for the premises in dispute; the patent is dated and
tested February 7, 1891, and recites that the land was sold to plaintiff by the United States,
and final payment made therefor on the 29th day of March, 1888. It was admitted on the trial
that this action was commenced on the 2d day of March, 1892, less than thirteen months after
the patent was issued. The proof made was in accordance with the averments of the complaint
that the plaintiff was the owner in fee simple of the premises on March 29, 1888.
After the sale of the land and payment therefor, the United States held the legal title to the
land in trust for plaintiff, but plaintiff, from the time of payment, was the owner in fee
simple.
plaintiff, but plaintiff, from the time of payment, was the owner in fee simple. (Treadway v.
Wilder, 12 Nev. 113; Brown v. Warren, 16 Nev. 235; Biffenbach v. Hawks, 115 U. S. 405;
Witherspoon v. Duncan, 4 Wall. 218.)
The statute of limitation does not commence to run until the issuance of the patent.
(Gibson v. Chouteau, 13 Wall. 93; Henshaw v. Bissell, 18 Wall. 255; Matthews v. Ferrea, 45
Cal. 51; VanSickle v. Haines, 7 Nev. 249; U. M. & M. Co. v. Dangberg, 2 Saw. 451;
Treadway v. Wilder, 12 Nev. 114; Brown v. Warren, 16 Nev. 234; U. S. v. Thompson, 98 U.
S. 490; Smith's Administrator v. De La Gaiza, 15 Tex. 150; 65 Am. Dec. 151; Cal. Index
Digest, p. 518; 18 Cal. 434; 20 Cal. 225; 24 Cal. 289; 26 Cal. 24; 27 Cal. 58; 29 Cal. 581; 30
Cal. 233; 46 Cal. 347, 656; 47 Cal. 570, 588; 48 Cal. 406; 49 Cal. 12; 50 Cal. 465; 51 Cal.
165; 54 Cal. 3, 7; 55 Cal. 94; 57 Cal. 412; 59 Cal. 100; 60 Cal. 98; 63 Cal. 9, 305; 65 Cal.
441; 66 Cal. 301, 302.)
The district court did not err in rejecting the evidence offered by the defendants. (South
End Mg. Co. v. Tinney et al., 22 Nev., ante.)
This case came before this court on appeal from an order of the district court sustaining a
demurrer to the answer. The judgment was reversed, and cause remanded. (22 Nev. 91.) Upon
the trial in the court below, the plaintiff prevailed, and the defendants appeal.
The appellants contend that the court erred in permitting the plaintiff to introduce its patent
in evidence over their objection, because the same was immaterial, and contradicted the
averments of the complaint and admissions of the answer. The action was commenced to
recover the possession of a mining claim. The complaint alleged that the plaintiff is now,
and ever since the 29th day of March, 1888, has been, the owner in fee simple of the ground
in dispute. The defendants admitted that the plaintiff had purchased the ground in
controversy from the government of the United States, but set up as a defense that the patent
had been procured by fraud. They also pleaded the statute of limitation and title by
prescription, alleging that they and their grantors had been in possession of the premises since
January, 1SS7.
1887. On the trial the plaintiff gave in evidence a patent of the United States for the ground in
controversy, bearing date of the 7th day of February, 1891. The object of the action of
ejectment is the recovery of the possession of real property; and the variance between the date
of the alleged seisin and right of possession as set forth in the complaint, to wit, the 29th day
of March, 1888, and the date of its patent, February 7, 1891, is immaterial, the latter date
being previous to the commencement of the action. (Yount v. Howell, 14 Cal. 468; Stark v.
Barrett, 15 Cal. 364.)
The appellants contend that the court erred in deciding that the statute of limitations did
not commence to run against the plaintiff's cause of action until the issuance of the patent.
They argue that the statute was set in motion on the payment of the purchase price of the land,
and hence the plaintiff's right of action is barred. A glance at the decided cases by the
supreme court of the United States will show that this contention is unsustainable in law.
It has been held by the secretary of the interior and numerous decided cases that, by the
mining laws of the United States, three classes of title are created: (1) Title in fee simple; (2)
title by possession; (3) the complete equitable title. The first vests in the grantee of the
government an indefeasible title, while the second vests a title in the nature of an easement
only. The first, being an absolute grant by purchase and patent without condition, is not
defeasible, while the second, being a mere right of possession and enjoyment of profits
without purchase and upon conditions, may be defeated at any time by the failure of the party
in possession to comply with the condition. The equitable title accrues immediately upon
purchase, for the entry entitles the purchaser to a patent. The inquiry then is as to who holds
the legal title to the mining ground in question. There can be but one answer to this question,
and that answer must be that the title remains in the original owner, the government of the
United States, and there remains until it is vested by the government in its grantee. This
results from the laws, rules, and regulations for the sale and disposal of the public lands, and
is the rule of decisions affirmed by the courts of last resort all over the United States; and they
universally hold that congress has the sole power to declare the dignity and effect of titles
emanating from the United States, and the whole legislation of the government in
reference to the public lands declares the patent to be superior and conclusive evidence of
the legal title."
sole power to declare the dignity and effect of titles emanating from the United States, and the
whole legislation of the government in reference to the public lands declares the patent to be
superior and conclusive evidence of the legal title. Until it issues, the fee is in the
government, which by the patent passes to the grantee; and until it is issued, the statute of
limitations does not run against the legal title.
The judgment and order appealed from are affirmed.
The action of ejectment is based upon the legal title. In this case the answer admitted the
legal title to be in the plaintiff, but set up other matters as a defense thereto, among others, the
statute of limitations. The burden of proving this defense was of course upon the defendants,
and, until some proof thereof was made, the plaintiff had no occasion to offer any evidence
whatever. The orderly course of the trial would have been for the plaintiff to have rested the
case upon the pleadings. The defendants would then have put in the evidence of their adverse
holding, which the plaintiff would have rebutted by proof of its patent title accruing to it
within two years of the commencement of the action. Instead of doing this, however, the
plaintiff offered its patent in evidence upon the opening, and, over the defendant's objections,
it was admitted accordingly. This, of itself, certainly cannot be said to have worked the
defendant any injury, as it was simply proving a fact which they did not deny. But, when the
defendants came to offer the evidence of their adverse holding, the plaintiff objected to it
upon the ground that the patent issued within two years of the commencement of the action
was conclusive of this issue. The objection was sustained, and the evidence excluded. If this
was the effect of the patent, it is evident that again no substantial injury was done the
defendants, even though the evidence of their adverse holding should properly have been
admitted, for it could be of no benefit to them to introduce evidence which would be nullified
by the introduction of the patent. That the patent had this effect seems at the present time to
be beyond question. The statute could not begin to run until the patent issued from the
United States.
run until the patent issued from the United States. (Treadway v. Wilder, 12 Nev. 108;
Redfield v. Parks, 132 U. S. 239; Steele v. Boley, 7 Utah, 64.)
The variance between the date of the patent and that of the beginning of the plaintiff's
ownership, as alleged in the complaint, is immaterial. The issue was now upon the statute of
limitations, and any evidence which would conclusively rebut that was certainly admissible.
The patent did this, and the fact that it bore a date subsequent to the alleged beginning of the
plaintiff's ownership neither made it better nor worse. No error affecting the substantial
merits of the case is shown upon this appeal, and I therefore concur in affirming the
judgment.
____________
22 Nev. 228, 228 (1894) George v. Nevada Central Railroad Co.
[No. 1405.]
THOMAS A. GEORGE, Plaintiff and Appellant, v. THE NEVADA CENTRAL RAILROAD
COMPANY, Defendant and Respondent.
1Railroad CorporationPowers ofManagement ofBoard of DirectorsGen. Stats., Sec. 843,
Charter.A corporation can exercise no power not granted to it by the legislature. The powers of
management granted in this state are delegated to the board of directors and are embraced in Gen. Stats.,
sec. 843. That power, which is fairly implied, is as much granted as those which are expressed. The
charter of a corporation is the measure of its powers, and the enumeration of powers in the charter is an
exclusion of all other powers.
2CorporationContracts with, Bound by the Limits of its Authority.Every person who enters into a
contract with a corporation is bound, at his peril, to take notice of the legal limits of the capacity of such
corporation to contract.
3Corporation, Acts of in Excess of Authority.If an act of a corporation is in excess of its chartered
purposes, such act is outside of the powers delegated to its agent.
4Railroad Corporation Has no Authority to Employ Persons to Report on Mines.Respondent being
authorized by the statute to construct and maintain a railroad, the employing of persons to make a
report upon mines is outside of its purposes and objects, as well as outside the powers which it can
delegate to its officers.
5Employment, Contract of by Corporation.When the president of a corporation directs its superintendent to
make a contract of employment without authority from the corporation to do so, courts cannot presume
that the president was authorized more than the superintendent to do so. (Bigelow, J., concurring.)
6Finding, Absence of, Presumption.If a finding of a fact is necessary to support a judgment and there is no
such finding, the appellate court is required to presume that the trial court had in fact found against the
existence of such necessary fact. (Bigelow, J., concurring.)
7EstoppelDenial of Agent's AuthorityRatification.Before the retention of benefits derived from the
unauthorized act of an agent can have the effect of estoppel to deny the agent's authority by reason of
ratification, it must appear that the principal was in a position to either accept or refuse such benefits as
he deemed best. (Bigelow, J. concurring.)
Appeal from the District Court, Lander county; A. L. Fitzgerald, District Judge.
David S. Truman, for Appellant:
There are some rules of law that apply in this case and that are decisive of it: FirstA
corporation that claims a certain act to be ultra vires must show the same to be such.
SecondA contract made by a corporation will not be presumed to be invalid, but it must be
shown, unless, possibly, it is a contract that on its face is shown to be malum per se, or
against public policy. As to the question of ultra vires and the effect here, if any, appellant's
position is two-fold: FirstThat the contract here shown is not ultra vires. SecondFor the
sake of the argument only, admitting that it is, then the doctrine of ultra vires constitutes no
defense, as the contract on which this action is brought is an executed contract of which the
defendant has received the benefit and regarding which plaintiff cannot be placed in statuo
quo ante and defendant cannot rely on the doctrine of ultra vires to an executed contract.
The object of a railroad company must truly be to derive all the revenue it legitimately can
from its traffic, or its carriage of freight and passengers for the benefit of its shareholders. As
a general proposition this is the only object of its existence; of course, it also operates a
benefit to the general public and the commerce of a nation. In order to accomplish its true end
and aim it must have freight and passengers to transport from place to place for hire, or else,
failing this, it must stop business, or else do it at a large and continuing loss to its
stockholders for a time, and then eventually cease operations entirely.
It will be understood that the report was not made for the railroad company so it could buy
the mines, but so it could aid and assist in a sale of the property to some one else and thereby
start up the business of mining again at Austin, so it could continue its avocation as a
common carrier. The object was not to deal in mines for speculative purposes, but so the
defendant could live and continue to transact business.
To increase the traffic of a railroad company is not beyond the charter powers of a railroad,
but directly within the same, and a contract made directly for that purpose is not an ultra vires
contract unless void as against public policy, or malum per se, or directly prohibited by the
charter.
A contract to have a report on a mine or series of mines showing their condition and value,
or showing their prospective value as an investment of money, clearly does not come within
either of the above prohibited character of contracts, and unless our statute prohibit the same
it is not unlawful, and under our statute this contract is within the charter powers of the
defendant. (Gen. Stats., sec. 836.)
The having of a mining report made under the conditions of the defendant at the time for
the purpose for which it was made was a legitimate exercise of a power regularly vested in
this defendant by its charter, was an act conducive to a legitimate purpose, and the ultimate
end and aim of the defendant's incorporation. For the sake of the argument, say that this was
an act that could only be held valid under extraordinary circumstanceswhich is the very
utmost that can be said of itwe have fully shown those circumstances to have existed at the
time. (Mor. on Corp., sec. 68, ed. of 1882; 19 Am. & Eng. Ency. of Law, p. 815, title Power
to Contract, and note 2 and authorities there cited.)
The contract here was directly within the enumerated powers of the charter, if not,
certainly it comes within the implied powers. The court finds that the report was beneficially
used in presenting the mining property, etc., to purchasers, and also to the actual purchasers,
and, no doubt, it had a marked influence, and formed a very important factor in the sale and
in inducing the sale for $300,000.
The sole object of the defendant did not lie in the sale of the mines as such, but it was the
resultant benefits to itself therefrom, and that a sale of the mines had to be first made did not
the less render the aim and object of the defendant a legitimate one within the charter
powers, viz., its increase of traffic therefrom. The case of Dupee v. Boston Water Power
Co.,
did not the less render the aim and object of the defendant a legitimate one within the charter
powers, viz., its increase of traffic therefrom. The case of Dupee v. Boston Water Power Co.,
114 Mass. 37-43-64, is a direct authority here, and also Board of Agriculture v. Railway Co.,
47 Ind. 17 Am. Rep. 702. (Sherman Center Town Co. v. Russell, 26 Pac. Rep. 715; Hotel Co.
v. International Military Encampment Co. (Ill.), 29 N. E. Rep. 1044; Mor. on Corp., sec. 70;
Old Colony Railway Co. v. Evans, 6 Gray, 25; Mor. on Corp., sec. 103, ed. 1882; 19 Nev.
121; 4 Nev. 20; 113 U. S. 322; 5 Sup. Ct. Rep. 528; 56 Cal. 61-63; 55 Ill. 413; 57 Fed. Rep.
59; 14 Sup. Ct. Rep. 339.)
The second position is, that this being an executed contract on the part of the plaintiff, and
the defendant having received the benefit thereof, by and through its duly authorized agents
and officers, it is not permitted here to have sustained, as a defense to this action, the doctrine
of ultra vires. (Underwood v. Newport Lyceum, 5 B. Mun. 129, 41 Am. Dec. 260; 3 Sup. Ct.
Rep. 315; 109 U. S. 522; Mor. on Corp., ed. 1882, sec. 100-107; 47 Ind. 407, 63 N. Y. 62; 55
Ill. 413; Field's Ultra Vires, p. 181-190; 18 Pac. Rep. 941, 958; 67 Cal. 127; 9 Col. 11; 13
Pac. Rep. 329; 16 Cal. 256; 6 Hill (N. Y.) 33; 33 Cal. 183; 30 N. Y. 83; 33 Pac. Rep. 544,
772; 51 Fed. Rep. 327; 21 Nev. 481-482.)
The court finds that there were no restrictions placed upon Hinchcliffe's authority as
superintendent and general manager by the by-laws of defendant.
The right to make such a contract is the power. The making of it is the exercise of the
power. That the contract of employment is for a purpose that does not necessarily arise every
day in the business of a railroad company makes no difference with the power to so employ a
person when the need for his services arises, and cannot affect the question of the power to so
employ. The power was exercised in employing plaintiff to make the report if the power to
employ men generally exists or was assumed by the superintendent and acquiesced in by the
company, the fact that it was exercised in employing plaintiff cannot affect the case unless
such contract is invalid per se.
As between a railroad company and third persons the true limit of a railroad agent's
authority to bind his company is the apparent authority with which he is invested.
the apparent authority with which he is invested. (61 Cal. 338; 73 N. Y. 10; 21 Am. & Eng.
R. R. Cases, 64; 108 Pa. St. 530; 10 Neb. 556; 65 N. Y. 111; 20 Kan. 519; 6 Am. & Eng. R.
R. Cases, 436; 103 Ill. 239; 17 Am. & Eng. Ency. of Law, 145, sec. 3, and authorities cited;
35 Pac. Rep. 677.)
The scope of authority of a superintendent is laid down in Reynolds v. Witte, 13 S. C. 5; 31
Pac. Rep. 771; 18 Nev. 161-165; Lee v. Pittsburg C. M. Co., 56 How. Prac. 376; 17 Am. &
Eng. Ency. of Law, 130; 72 Me. 167; 3 Phil. (Pa.) 447; 17 Am. & Eng. Ency. of Law, 135,
title Officers and Agents.
Huntington & Rhinelander (New York), of Counsel; O. A. Murdock, for Respondent:
The only acts proved are those of Hatch, president, and Hinchcliffe, general
superintendent. There is no proof of any act or acquiescence whatever by anybody else. No
ratification by anybody, unless the contract and the use of the report are the acts of the
corporation by virtue of the authority which Hatch and Hinchcliffe had; they are not the acts
of the corporation at all. Neither Hatch nor Hinchcliffe had any authority to make the contract
or to use any report. First, because such contract or use was outside of the powers of the
corporation itself (ultra vires) and, therefore, outside of the powers of any agent. Second,
because whether ultra vires or not it was outside of the powers of the president and also
outside of the power of all officers beneath him.
In seeking to fix a corporation with a contract there are always two separate and distinct
facts to be established: FirstThat the contract is in fact the contract of the corporation. This
is a question of agency pure and simple. SecondWhen it is once established that the
corporation did in fact make the contract, then the further question arises, was it such a
contract as the charter allowed the corporation to make? If it was the matter is ended, the
corporation is liable. If it was not, then the corporation has made a contract which it was
forbidden to make, and the question is: What is the court going to do about it? and it is at
this point that the question becomes material whether or not the contract has been performed.
If the contract has not been performed on either side, it cannot be enforced, and some courts
hold that if it has been performed on one side the court will enforce it upon the other.
court will enforce it upon the other. This proposition, however, assumes that the contract is in
fact the contract of the corporation.
A corporation always acts through its agents, and in determining whether a given act of the
agent is binding upon the corporation there is always the question of fact pure and simple
whether the agent had authority. When it is determined that the contract is in fact the contract
of the corporation, then, and not till then, comes the question whether it is such a contract as
the corporation had power to make, i. e., the question of ultra vires, or not ultra vires.
In the case at bar our contention is that the contract made between Hinchcliffe and the
plaintiff was not the contract of the corporation. To prove that Hinchcliffe had no authority to
make the contract, we show that such a contract was not within the chartered powers of the
corporation. Having established this, the plaintiff's case falls to the ground. There is not even
a pretense that the board of directors knew anything about it. The question then is whether or
not the court will enforce an ultra vires contract. (Munt v. Shrewsbury and Chester Railway
Co., 13 Beav. 1.) For the correctness of the above general statement, see Morawetz on Corp.,
2d ed., secs. 575-6-9, 581, 690.
Appellant takes the further position that respondent received some benefits from the acts
performed by appellant, and that therefore respondent is bound to pay appellant. In this
appellant assumes that the contract was the contract of the corporation, though ultra vires. He
further assumes that it was the corporation that accepted the performance of his acts; that it
was the corporation that received his report and that it was the corporation that used his
report. The fact is that the corporation had nothing whatever to do with the report, neither
received nor used it.
It is true in certain cases where an agent of a corporation has without authority made a
contract in terms in behalf of the corporation, and the other party has performed his side of
the contract, and the result of such performance is that money or property has actually come
into the possession of the corporation and has been applied by its agent to its legitimate uses,
it is established that the corporation must either return the money or property so received or
pay its reasonable value; not on the ground that it has contracted to pay for it, but on the
ground that it has received and used the property in its own proper and legitimate
business and must therefore pay for it.
reasonable value; not on the ground that it has contracted to pay for it, but on the ground that
it has received and used the property in its own proper and legitimate business and must
therefore pay for it. It is to be borne in mind, however, that the very foundation of this
liability is the receiving and using of the property in the legitimate business of the
corporation. If the property was received by an agent of the corporation and applied by him to
purposes outside of his authority as agent of the corporation, then it was never in fact received
by, or used by, the corporation; hence, there can be no liability on the part of the corporation
to pay for it. This principle is well set forth in 2 Mor. on Corp., 2d ed., secs. 715, 717, 581.
The contract was not within the power of the corporation itself to make, and was,
therefore, not within the power of any agent of the corporation. (Morawetz on Corp., vol. 2,
sec. 580; Edwards v. Carson Water Co., 21 Nev. 485; Rickord v. C. P. R. R. Co., 15 Nev.
176; The Whitman Mg. Co. v. Baker, 3 Nev. 391.)
A railroad corporation is incorporated for the purpose of owning and operating a railroad. The
laws of Nevada are explicit upon this point. (Gen. Stats., 835, 836, 843, 851.) These expressly
limit a railroad to acts necessary for the construction, completion and maintenance of such
railroad, and they expressly limit the power of its directors to acts within the object and
purposes of such company, and all else that may be deemed needful and proper within the
scope and power of such company. This law says that the corporation shall confine itself to
railroading. (1 Morawetz on Corp., sec. 363.)
The cases cited below, particularly 19 Nev. 121, put the whole thing in a nut-shell: 13
Beavan, 1; Alexander v. Caldwell, 83 N. Y. 480; Angell & Ames on Corp., 288, 301; Davis
v. Old Colony Railroad, 131 Mass. 258; Whittenton Mills v. Upton, 10 Gray, 582, 598; 11
Allen, 65, 72; 21 How. 441, 443; 11 C. B. 775, 811; 7 H. L. 653; 12 Beavan, 339, 352, 353; 7
Hare, 114; 2 Mach. & Gord. 589; 2 Hall & Twells, 201; 18 Q. B. 618; 19 Exch. 55, 84; 5
House of Lords Cases, 331, 371, 373, 381; 2 Macq. 391, 416, 422; 7 H. L. 653; 9 Exch. 224;
21 How. 441; 101 U. S. 71; 130 U. S. 1; 45 Mo. 212; 22 Conn. 1, 16, 17; 39 Pa. St. 347, 340;
130 Ill. 268, 2S3; S5 Tenn.
283; 85 Tenn. 703; 139 U. S. 24, 48, 49; 33 N. J. Eq. 155, 161, 163; 68 Me. 43.
The general management of a corporation is vested in its board of directors. (Gen. Stats.
843.) The by-laws of the corporation concerning the powers of the president will be taken
judicial notice of by the court. (Sacalaris v. Eureka & Palisade R. R. Co., 18 Nev. 155.)
In Edwards v. Carson Water Co., 21 Nev. 469, recently decided by this court, it is said, after
relating the rights between the trustees and the officers, before a corporation can be held
responsible for the contracts of his officers or its agents, it must affirmatively appear that the
officer or agent was authorized to enter into the contract by the company, or that the company
received the benefits derived from the transaction. See, also, 73 Iowa, 548; S. C., 34 Am. &
Eng. R. R. Cases, 107.
Virtute officii, a president has very little authority to act for his corporation, and can bind
it only by such contracts as plainly come within its most ordinary routine of business. (Bank
v. Hock, 89 Pa. St. 324; Blen v. Water Co., 20 Cal. 602; Risley v. Railroad Co., 1 Hun. 202;
14 Wis. 325; 22 Wis. 194; 65 Cal. 502; 29 Vt. 220; 55 N. W. Rep. 81; 6 Peters, 51, 58; 23 At.
Rep. 77; 51 Mo. App. 66; 20 Cal. 602; 5 N. Y. (1 Seld.) 320; 63 Vt. 581; 81 Tex. 306.)
The authority of an agent is created and defined by the instruction of his principal and not
by any inherent necessity in the nature of things. A strong case upon this subject is that of
Hawtayne v. Bourne, 7 M. & W. 592.
Neither Hatch nor Hinchcliffe had any authority, and neither was held out as having any
such authority. The plaintiff had actual knowledge of the purpose of the report, and was
charged with the knowledge that ordering the report for such a purpose was outside of the
chartered powers of the defendant, and therefore unauthorized. (Hillyer v. The Overman
Silver Mg. Co., 6 Nev. 51; Bond v. Pontiac R. R. Co., 62 Mich. 649; 2 Mor. on Corp., sec.
591; 83 N. Y. 480; Edwards v. Carson Water Co., 21 Nev. 469, 483; 3 H. & N. 340; 6 Nev.
51; 4 Nev. 78.)
The ordering of the report was never ratified by respondent. There can be no ratification by
silence or by accepting the benefit of the act done, or otherwise, unless there is full
knowledge on the part of the person ratifying of all the essential circumstances of the
case.
knowledge on the part of the person ratifying of all the essential circumstances of the case.
Vide cases cited infra. (2 Mor. on Corp., 2d ed., sec. 581; 5 Nev. 224; 9 Peters, 629; Angell &
Ames on Corp., sec. 304; 7 Nev. 75; 21 Nev. 489, 492.)
The defendant never received nor used this report. A person or corporation cannot be called
upon, on the principle of implied contract, to pay for benefits thrust upon him, unless he is
free to elect whether to accept or to reject the benefit. The plaintiff had fully performed his
labors before any benefit came to the railroad. The plaintiff's position was in no way changed
by anything the railroad did. (Yellow Jacket Co. v. Stevenson, supra; 20 Cal. 96; 108 N. Y.
39, 46; 7 Wis. 59; 63 Vt. 581; 131 U. S. 389; 102 U. S. 294; 106 U. S. 487, 503; 107 U. S.
348, 360; 118 U. S. 256, 263, 317, 318; 139 U. S. 24, 60, 61.)
[Respondent here reviews at length the authorities cited by appellant.Rep.]
From the foregoing, inasmuch as the appellant has failed to make out his case, this appeal
should be dismissed and the appellant should pay the costs.
D. S. Truman, for Appellant, in reply:
In attempting to answer the brief of the defendant in this case, I shall only seek to point out
in a somewhat more pertinent manner the points I have rested this contention upon in my
opening of the argument. If defendant could consign to oblivion the findings of fact in this
case, its contentions might seem more meritorious, but this is hardly possible for it to do.
[Here follows nineteen pages of argument and citation to maintain appellant's original
position.Rep.]
This is an action against a railroad corporation, organized under the laws of this state,
upon a contract made by its superintendent with the plaintiff that he should report the
condition of certain mines in the Reese River mining district. The case was tried by the court
without a jury. None of the evidence has been brought here. Findings of fact and conclusions
of law were made by the court, and upon these judgment was entered for the defendant.
Among other things, it was found that the principal business of the defendant was the
transportation of ores from the Austin mining district, and that this business became
unprofitable to the railroad company because of the limited output of the mines. It appeared
to some, at least, of the defendant's officers that with a more active management of the mines
the traffic of the defendant would be increased. Accordingly the superintendent of the
company, Mr. Hinchcliffe, by the authority of Mr. Hatch, the president, employed the plaintiff
to examine the mines known as the Manhattan Mining Property, and to report upon them,
in the expectation that a change in their management and control could be brought about. The
change took place, but whether through the instrumentality of the report or otherwise, is not
clear; but it is found as a fact that the report was beneficially used by Hatch, Hinchcliffe and
Elliman, officers of the defendant, and that under the new management of the mines the
business of the railroad company materially increased.
The fact was also found that the defendant was vested with the power conferred by the
statute of the state relative to railroad corporations, and that neither the president nor secretary
was authorized to employ the plaintiff in the service in which he was engaged, and, also, that
no action was ever taken by the board of directors in the matter.
Section 843, Gen. Stats., commits the management of railroad corporations to a board of
directors. The section is as follows: The directors of any railroad company heretofore
incorporated, or which may be incorporated hereafter, from and after its incorporation or
organization, in pursuance of the provisions of this act, or of any law now in force in this
state, shall, for and on behalf of such company, manage the affairs thereof, make and execute
contracts, of whatever nature or kind, fully and completely to carry out the objects and
purposes of such corporation, in such way and manner as they may think proper, and exercise
generally the corporate powers of such company; and such directors shall also have full
power to make such by-laws as they may think proper, and alter the same from time to time
for the transfer of the stock, and the management of the property and business of the
company, of every description whatsoever, within the objects and purposes of such company
and for prescribing the duties of officers, artificers and employes of said company, and for
the appointment of all officers, and all else that by them may be deemed needful and
proper, within the scope and power of said company; * * * provided, that such by-laws
shall be approved by a majority of the stockholders, and shall not be inconsistent or in
conflict with the laws of this state, or with the articles of association."
ing the duties of officers, artificers and employes of said company, and for the appointment of
all officers, and all else that by them may be deemed needful and proper, within the scope and
power of said company; * * * provided, that such by-laws shall be approved by a majority of
the stockholders, and shall not be inconsistent or in conflict with the laws of this state, or with
the articles of association.
A corporation can exercise no power not granted to it by the legislature.
In Thomas v. Railroad Co., 101 U. S. 82, this principle was stated as follows: We take
the general doctrine to be in this country, though there may be exceptional cases and some
authority to the contrary, that the powers of corporations organized under legislative statutes
are such, and such only, as those statutes confer. Conceding the rule applicable to all statutes,
that what is fairly implied is as much granted as what is expressed, it remains that the charter
of a corporation is the measure of its powers, and that the enumeration of these powers
implies the exclusion of all others. In Davis v. Railroad Co., 131 Mass. 259, it is said: A
corporation has power to do such business, only, as it is authorized by its act of incorporation
to do, and no other. It is not held out by the government, nor by the stockholders, as
authorized to make contracts which are beyond the purposes and scope of its charter. It is not
vested with all the capacities of a natural person, or of an ordinary partnership, but with such,
only, as its charter confers. If it exceeds its chartered powers, not only may the government
take away its charter, but those who have subscribed to its stock may avoid any contract made
by the corporation in clear excess of its powers. If it makes a contract manifestly beyond the
powers conferred by its charter, and therefore unlawful, a court of chancery, on the
application of a stockholder, will restrain the corporation from carrying out the contract; and a
court of common law will sustain no action on the contract against the corporation. Every
person who enters into a contract with a corporation is bound, at his peril, to take notice of
the legal limits of its capacity, especially where, as in this commonwealth, all acts of
incorporation are deemed public acts, and every corporation organized under general laws is
required to file in the office of the secretary of the commonwealth a certificate showing the
purpose for which the corporation is constituted."
commonwealth a certificate showing the purpose for which the corporation is constituted.
In Morawetz on Private Corporations, the author states the law thus: The powers
possessed by the various agents of a corporation may be limited by the terms of their
appointment, or by custom; but the ultimate source of their authority is always the agreement
of the shareholders, expressed in their charter or articles of association. It follows, therefore,
that, if an act is in excess of the chartered purposes of a corporation, it will always be outside
of the powers delegated to the company's agents, as well as in excess of the corporate powers
which the company is authorized by law to exercise. The general rule that a contract made by
an agent of a corporation in excess of his powers does not bind the company applies with
peculiar force to a contract which is in excess of the charter itself. For a person dealing with a
corporation must, at his peril, take notice of the terms of its charter, and of the fact that acts in
excess of the charter are necessarily in excess of the authority of the agent performing them.
(Section 580.)
The defendant corporation is authorized by the statutes of the state to construct and
maintain a railroad. To employ persons to make a report upon mines is outside the purposes
and objects of a railroad corporation, and, consequently, outside of the powers delegated to it
by any of its officers. Assuming that the road may have been benefited by an increased
business, the same reason would be applicable to any other project that would lead to the
same result. The question is not whether the business is profitable, but whether it is within the
legitimate purposes of the corporation. (Mor. Priv. Corp., sec. 363.) It is claimed that the
contract was an executed contract, and that the defendant, having received its benefits, cannot
defend upon the ground of want of authority to make it. If the company had received the
benefits of the contract, the question we should have to consider would be different from the
one now before us. But the fact is that the report never came into the possession of the
corporation, as such. Several of its officers used it, but their use was unauthorized, and never
ratified by the corporation. The findings of fact on this point show that the stockholders of
said defendant did not personally know of the making of said contract, and the same was
never presented to them for their action, other than said Hatch and Hinchcliffe, and no
action was ever taken thereon by the board of directors of said defendant."
know of the making of said contract, and the same was never presented to them for their
action, other than said Hatch and Hinchcliffe, and no action was ever taken thereon by the
board of directors of said defendant.
Judgment affirmed.
Murphy, C. J.: I concur.
The defense in this case rested upon two grounds: First, that the defendant did not employ
the plaintiff to perform the services upon which the action is brought; secondly, that the
corporation had no legal authority to engage in the business in which the services were
rendered, and therefore, if it did employ him, it is not liable upon the contract. In my
judgment, there is no necessity to consider the second ground, and in passing upon the
sufficiency of the first I think the two should not be confounded. As to the second, I am not
prepared to say that the contract was ultra vires, it being shown that the change of
management of the mines to be brought about by the plaintiff's report was almost
indispensable to the continued operation of the defendant's road (see 1 Mor. Priv. Corp., sec.
362, et seq.; Tod v. Land Co., 57 Fed. 47; Louisville & N. R. Co. v. Literary Soc. of St. Rose,
91 Ky. 395; Town Co. v. Morris, 43 Kan. 282); nor, if it were ultra vires, would this act, it
being a completed contract, constitute any defense to the action (see State Board of
Agriculture v. Citizens' St. R. Co., 47 Ind. 407; Linkauf v. Lombard, 137 N. Y. 417). But, as
just remarked, I deem it unnecessary to decide this proposition.
Whether the defendant made the contract with the plaintiff involves a question of agency.
The defendant, a railroad corporation, was engaged in running a railroad in this state. C. W.
Hinchcliffe was general superintendent of the road, and, as such, presumptively clothed with
such powers, and only such, as ordinarily belong to the position, and which were sufficient to
authorize him to enter into all contracts necessary and proper for the management of the road
as railroads are usually managed. As such agent, and without further authority, he made the
contract with the plaintiff upon which the action is brought, whereby it was agreed that the
plaintiff should receive $1,000 for making a report upon certain mines.
the plaintiff should receive $1,000 for making a report upon certain mines. This was clearly
outside the ordinary scope of a railroad superintendent's duty, and could only bind the
defendant if specially authorized, or subsequently ratified. To be sure, Hinchcliffe was
directed by the defendant's president to make the contract, but it was not found that the
president had any more authority in the matter than had Hinchcliffe himself, and certainly we
cannot presume that he was authorized, by virtue of his office, to make a contract so different
from what would ordinarily be included in the duties of a railroad president.
Whether subsequently ratified or not, is, under the circumstances shown here, a question
of fact (2 Mor. Priv. Corp., sec. 633; Nims v. Boys' School, 160 Mass. 177), upon which there
is no finding; and, if necessary to support the judgment, we would be required to presume that
the court found that it had not been ratified. The most that can be said of this phase of the
case, as it is presented here, is that a certain probative fact is found, to wit, the beneficial use
of the report by the defendant's officers in effecting a change of management of the mines,
from which the ultimate fact of ratification might perhaps have been found. But there is no
finding that such use was any more authorized than was the act of obtaining the report in the
first place, and, while the use is evidence from which ratification might be inferred, it does
not of itself necessarily constitute ratification.
It was further found that, as a result of the sale of the mines, there was an immediate
increase of the traffic and business of the defendant, and of its revenue therefrom; and it is
argued that having received this benefit from the sale, which to some extent was furthered by
the plaintiff's report, it is now estopped to deny the agent's authority in obtaining the report,
or, at least, that it is a ratification of his act in so doing. Aside from others that might be
made, it is a sufficient answer to this contention to say that before the retention of benefits
derived from the unauthorized act of an agent can have this effect it must appear that the
principal was in a position to either accept or refuse the benefit, as he deemed best.
(Cincinnati v. Cameron, 33 Ohio St. 336, 374; Zottman v. City of San Francisco, 20 Cal. 96,
107.) Where such choice exists, it is only just to hold that, as the principal has seen fit to
accept the benefit of the agent's act, he must also assume the burdens.
cipal has seen fit to accept the benefit of the agent's act, he must also assume the burdens. But
it does not exist here. The railroad company was not at liberty to refuse the additional traffic,
offered, as it was, by other parties, and having no possible connection with the plaintiff or his
report, and therefore its acceptance does not amount to either ratification or estoppel.
I concur in the judgment of affirmance.
____________
22 Nev. 242, 242 (1894) Authors v. Bryant
[No. 1413.]
JAMES AUTHORS, Plaintiff and Appellant, v. ELIZABETH BRYANT, ALLEN BRYANT,
SHERMAN BRYANT, EUPHEMIA BRYANT and Z. BRYANT, Defendants and
Respondents.
1PrescriptionTitle byPleading, Waiver.Where, by the language of an answer, it was evidently intended
to set up a prescriptive title in defendants, and the cause is tried without objection to its sufficiency, all
objections to it have been waived.
2WaterIrrigationDecree Concerning.No subject is perhaps so prolific of controversies as the right to
the use of water for irrigation purposes by different claimants, and a decree concerning it should be as
certain as the use of language can make it.
3PrescriptionDefense ofProof.In order to establish a right by prescription to the use of water, the
claimant's use and enjoyment thereof, must have been uninterrupted, adverse, under claim of right and
with the knowledge of the owner.
4Findings Contradictory.Contradictory findings upon a material issue will not support a judgment.
Appeal from judgment and order overruling motion for a new trial from District Court,
Ormsby county; A. E. Cheney, District Judge, presiding:
Robert M. Clarke, for Appellant:
This action is to try the right to the waters of Mill Station creek, and for an injunction to
prevent future diversion. The complaint alleges ownership and right of use in plaintiff, by
appropriation made in 1860. The answer denies plaintiff's ownership, and alleges ownership
and right of use in defendants Elizabeth Bryant and Euphemia Bryant, by appropriation, made
in 1860, and that ever since said date, up to the time of commencing this action,
defendants and their grantors have maintained and used said ditch and the water
appropriated as aforesaid, which flows therein, continuously, notoriously and without
hindrance or molestation from the said plaintiff, and the whole world."
time of commencing this action, defendants and their grantors have maintained and used said
ditch and the water appropriated as aforesaid, which flows therein, continuously, notoriously
and without hindrance or molestation from the said plaintiff, and the whole world. The court
decides that defendant for five years used the water flowing to the house and across the road
to the orchard of defendants, and that the mere disputing of the right to such use does not
prevent the bar of the statute. The court finds that the defendants, for a period of five years
immediately preceding the commencement of this action, used adversely to the plaintiff and
all others the waters flowing from Mill Station creek through a flume or ditch to the house of
the defendants and thence across the road to the orchard of the defendants. The court also
finds that, on or about the year 1860, the grantor of plaintiff claimed, diverted and
appropriated the water of said Mill Station creek for the irrigation of plaintiff's land, and that
said water is necessary for the irrigation of plaintiff's land. Also, that at times during the
irrigating season there is a large flow of water in said creek and more than defendants use or
require, and at times during each year plaintiff and his grantors have used the water of said
stream for irrigating plaintiff's land. The court also finds that in May, 1892, plaintiff claimed
and demanded the water of defendants and objected to their use of it, and at that time turned
the water out of their ditch and took it away from them, but defendants immediately turned
the water back into defendants' ditch.
The allegations of the answer taken as true, and the original findings and decision upon the
question of prescription, are insufficient to support the decree. The facts pleaded and found
do not constitute a title by prescription in favor of defendants. It is not sufficient to raise the
presumption of grant that defendants used the water adversely to plaintiff and others for five
years immediately preceding the commencement of the action. Such use must not only have
been adverse; it must also have been under claim of right or title, peaceable, with the
knowledge of plaintiff, exclusive and uninterrupted. (Angell on Watercourses, secs. 201, 205;
Gould on Waters, secs. 334, 337, 338; 90 Ill. 339; 47 N. H. 78; 38 N. Y. 11; 59 Me. 437; 37
Vt. 310; 62 Me. 445; 10 Allan, 444; 45 Cal.
Allan, 444; 45 Cal. 511; 71 Cal. 458, 459; 85 Cal. 226.) The use was not continuous or
exclusive. (Angell on Watercourses, sec. 205.)
The claim, notice, objection and conduct of plaintiff made, given and committed in May,
1888, were sufficient to stop the statute and break and defeat defendants' right of prescript.
Plaintiff's conduct challenged and denied defendants' right, and was sufficient to negative the
presumption of a grant. The objection and verbal protest of plaintiff set out in additional
finding are sufficient. (90 Ill. 339; 24 Gratt. 74; Tyler v. Wilkinson, 4 Mason, 397; Pierce v.
Cloud, 42 Pa. St. 102; Powell v. Bragg, 8 Gray, 441; Tracy v. Atherton, 36 Vt. 514; Angell
on Watercourses, sec. 211; White v. Chapin, 12 Allan, 519; Smith v. Miller, 11 Gray, 145;
Pollard v. Barnes, 2 Cush. 191.)
The enjoyment must be exclusive. (Davis v. Brigham, 29 Me. 391, 403; Kilburn v. Adams,
7 Metcalf, 33.) But, if mere words are not sufficient, plaintiff actually interrupted defendants'
use, actually turned the water out of and away from defendants' ditch. This is sufficient to
defeat the presumption of grant, according to all the cases.
William Woodburn and Alex. J. McGowan, for Respondent:
The proof establishes an adverse user for five years of the water flowing to the house and
across the road to the orchard. The mere disputing of the right to such use does not prevent
the bar of the statute. (Cox v. Clough, 11 Pac. Rep. 732.)
The proof having been submitted upon the statement in open court that the issue was as to
the prescriptive right of defendants and no objection made to the proof when offered, the
sufficiency of the answer cannot now be considered.
Rights to the use of water become fixed after five years' adverse enjoyment of the same.
(Crandall et al. v. Woods et al., 8 Cal. 136; Leigh & Co. v. Independent Ditch Co., 8 Cal.
323; 2 Washburn's Real Property, 319, 320; 27 Cal. 361.)
This is an action to try the right to the use of the waters of Mill Station creek, and for an
injunction to prevent the future diversion of the same.
future diversion of the same. Judgment went for the defendants, from which plaintiff appeals.
The complaint alleges ownership of the water through an appropriation made by plaintiff's
grantor in the year 1860 for the irrigation of certain lands. The answer denies the plaintiff's
ownership and appropriation, and alleges ownership in the defendants through an
appropriation made by their grantors in the year 1860 for the irrigation of certain lands now
belonging to them, and that ever since that date, up to the time of the commencement of the
action, they and their grantors have used the water so appropriated continuously,
notoriously, and without interruption, and without hindrance or molestation from the said
plaintiff and to the whole world. By this language it was evidently intended to set up a
prescriptive title in the defendants, and, the cause having been tried without objection to its
sufficiency, all objections to it have been waived.
The court found: First, that the defendants, for a period of five years immediately
preceding the commencement of this action, used, adversely to the plaintiff and all others, the
water flowing from Mill Station creek through a flume or ditch to the house of the
defendants, and thence across the road to the orchard of the defendants; second, that the
answer of the defendants alleging a prescriptive title is sufficient, no objection having been
made to the proof of prescription when offered by defendants. As a conclusion of law from
these findings, the court found that the defendants are entitled to the sole use of the water
flowing from Mill Station creek to the house of defendants, Elizabeth Bryant and Euphemia
Bryant, and thence across the road to the orchard of defendants, and a decree was entered
accordingly.
We would first call attention to the fact that the decree nowhere fixes the amount of water
awarded to the defendants, nor whether it is all, or less than all, of it, but only that it is the
amount flowing from the creek to the house of defendants, and thence across the road to the
orchard. This is so indefinite that it would in all probability simply lead to future litigation.
No subject is, perhaps, so prolific of controversies as the use of water by different claimants
for irrigation purposes, and a decree concerning it should be as certain as the use of language
can make it. After the rendition of the above judgment, the plaintiff's counsel requested
additional findings, five of which were allowed and approved by the court, and which read
as follows: "{1) On or about the year 1S60 the grantor of plaintiff claimed and
appropriated the water of said Mill Station creek, and the whole thereof, for the irrigation
of the land of plaintiff described in the complaint, and said water, and the whole thereof,
was necessary, and is now necessary, for the irrigation of plaintiff's land and the crops
growing thereon.
tion of the above judgment, the plaintiff's counsel requested additional findings, five of which
were allowed and approved by the court, and which read as follows: (1) On or about the year
1860 the grantor of plaintiff claimed and appropriated the water of said Mill Station creek,
and the whole thereof, for the irrigation of the land of plaintiff described in the complaint,
and said water, and the whole thereof, was necessary, and is now necessary, for the irrigation
of plaintiff's land and the crops growing thereon. (2) That the grantors of plaintiff diverted the
water of said stream, and the whole thereof, from the natural channel of said stream by means
of a dam, and conducted the same to the lands of plaintiff, through and by means of ditches,
for the irrigation of said land. (4) That in the month of May in the year of 1892, while the
defendants were using the water of said stream for the irrigation of said trees, plaintiff
objected, and forbade them to use it, and claimed and demanded the water, which claim and
demand defendants disputed and denied. (5) That in the month of May, 1892, and at the time
mentioned in finding No. 4 preceding, plaintiff turned the water out of the ditch being used by
defendants, and away therefrom, and into the channel of said Mill Station creek, and the same
was immediately turned back into defendants' ditch by defendants. (6) That at times during
the irrigating season there is a large flow of water in said Mill Station creek, and more than
defendants use or require, and at times during each year plaintiff and his grantors have used
the water of said stream for irrigating plaintiff's land.
Appellant claims that additional findings Nos. 4 and 5 conflict with finding No. 1, and
that, upon all the findings, judgment should have been rendered for plaintiff. We are of the
opinion that this point is well taken. Apparently, the decree is based entirely upon five years'
uninterrupted adverse use of the water by defendants immediately preceding the
commencement of the action, which was June 8, 1892. But, without determining whether the
mere fact that the plaintiff disputed their right to the use of the water is sufficient to prevent
the statute from running, finding No. 5 shows an actual physical interruption of that use in
May, 1892. This, we think, was certainly such an interruption as to prevent the creation of a
title by prescription during that time.
time. In order to establish a right by prescription to the use of water claimed by another, the
use and enjoyment must have been uninterrupted, adverse and under a claim of right, and
with the knowledge of the owner. As said in the case of Land & Water Co. v. Hancock, 85
Cal. 226: This right becomes fixed only after five years' adverse enjoyment; and, to have
been adverse, it must have been asserted under claim of title, with knowledge and
acquiescence of the person having the prior right, and must have been uninterrupted. In order
to constitute a right by prescription, there must have been such an invasion of the rights of the
party against whom it is claimed that he would have ground of action against the intruder. To
be adverse, it must be accompanied by all the elements required to make out an adverse
possession; the possession must be by actual occupation, open, notorious and not clandestine;
it must be hostile to the other's title; it must be held under claim of title, exclusive of any
other, as one's own; it must be continuous and uninterrupted for the period of five years.
In Cave v. Crafts, 53 Cal. 138, the court uses this language: The use, says Wood in his
Law of Nuisance, must also be open and as of right, and also peaceable; for if there is any
act done by other owners that operates as an interruption, however slight, it prevents the
acquisition of the right by such use.
The testimony introduced on the trial of this case does not meet the above requirements,
and establish a title by prescription in the defendants. The court found (and the evidence
supports the finding) that about the year 1860 the grantor of the plaintiff appropriated all the
water of Mill Station creek for irrigating the land of plaintiff; that it was then, and is now,
necessary for the irrigation of plaintiff's land and the crops growing thereon. There is
evidence of the fact, and the court so finds, that in the month of May 1892, while the
defendants were using the water, plaintiff objected, and forbade them to use it, and turned the
water out of the ditch used by the defendants, and into the channel of the creek; and, after the
plaintiff had returned to his own place, the defendants turned the water into their ditch again.
The complaint in this action was filed in the district court on the 8th day of June, 1893. In
the first finding the court found "that the defendants, for a period of five years immediately
preceding the commencement of this action, used adversely to the plaintiff and all others,
the water flowing from Mill Station creek;" and in the fourth and fifth findings the court
found "that in the month of May, 1S92, the plaintiff objected, and forbade the defendants
the use of the water, and turned the water out of the ditch being used by the defendants,
and away therefrom, and into the channel of said Mill Station creek."
found that the defendants, for a period of five years immediately preceding the
commencement of this action, used adversely to the plaintiff and all others, the water flowing
from Mill Station creek; and in the fourth and fifth findings the court found that in the
month of May, 1892, the plaintiff objected, and forbade the defendants the use of the water,
and turned the water out of the ditch being used by the defendants, and away therefrom, and
into the channel of said Mill Station creek. The defendants' right to the water was denied by
the plaintiff some thirteen months before the commencement of this action, and their use of
the same interrupted by his turning the water out of their ditch, and into the channel of the
creek above the dam.
No judgment could be entered in favor of the defendants upon such contradictory findings.
When findings are directly antagonistic, we cannot say that either finding is correct, or which
is correct.
Judgment and order denying a new trial reversed, and cause remanded for a new trial.
____________
22 Nev. 248, 248 (1894) Humboldt County v. Lander County
[No. 1415.]
HUMBOLDT COUNTY, Plaintiff and Respondent, v.
LANDER COUNTY, Defendant and Appellant.
1EquityJurisdiction of Disputed County Boundaries.The mere existence of a disputed boundary between
counties is insufficient to give a court of equity jurisdiction of the question. In addition there must be
some equitable circumstance shown arising from the conduct, situation, or relation of the parties, such as
that the boundary has become confused through the fraud of the defendant, or that the duty of preserving
it rests upon the defendant, or that it will avoid a multiplicity of suits. The fact that the defendant county
is claiming jurisdiction over a part of plaintiff's territory, is collecting taxes therein, and claims the right
so to do, is insufficient for this purpose.
2Decree, Not Binding on Others Not Parties.A decree rendered in this action as to the situation of the
boundary, would not determine that question as to any one not a party to the action.
Appeal from judgment by default after demurrer to amend complaint overruled, from
District Court, Washoe county; A. E. Cheney, District Judge.
W. D. Jones, District Attorney of Lander county, D. S. Truman and J. F. Dennis, for
Appellant:
The court overruled the demurrer and the defendant, not desiring to make further answer,
allowed judgment to be taken against it.
Appellant contends that a court of equity has no jurisdiction of this action as set forth in
the complaint, but that said action should have been brought in a court of law, as there is a
plain, speedy and adequate remedy at law.
In rendering the decision of the lower court, Judge Cheney files an elaborate opinion in the
case, citing but one authority of the defendant (appellant) in the case, ignoring all others.
The question is not an open one in this state, as this honorable court has already taken a
different view and enunciated the law to be that there is a plain, speedy and adequate remedy,
especially in Eureka Co. v. Lander Co., 21 Nev. 144, which is on all fours with the case at
bar.
Such being the law of this state, there is no reason to cite additional authority, but it seems
that the same view has been taken elsewhere. (Kittell v. Jensen, 56 N. W. 487.)
The trial court seeks to take this case out of the general rule by reason of some supposed
and surmised equities of his own, not pleaded in the complaint, nor relied upon by counsel.
It can make no difference that this is a question of importance, nor that it is a question
which affects the people, nor is a question of public character and concerns every elector and
taxpayer in each county. It can make no difference that the state owes it to the citizen that
such question should be speedily settled and definitely determined, nor can it make any
difference if public policy dictates that the taxpayer, delinquent or criminal, should not be
enabled to take advantage of or escape punishment by reason of such dispute. None of these
facts even tend to the solution of the question at issue, viz., the jurisdiction of a court of
equity in this case when there is an adequate remedy at law. Judge Cheney has cited none of
the above instances in which a court of law has not full jurisdiction.
Can adequate relief be obtained in a court of law? If it can, then equity, generally, has no
jurisdiction. It is nonsensical to say that the judgment of the court of law is not as binding as
that of a court of equity.
as binding as that of a court of equity. Then the only question here is: Can a court of law
determine where a boundary line is situated so as to make the matter res adjudicata? This is
fully answered by 21 Nev. 144, where it was done.
The only claimed grievance of Humboldt county in its complaint is the unlawful levying
and collection of taxes, claimed to belong to it, by the appellant here. The same claim was
made in 21 Nev. 144; no other is made here, no other was made there. The question on which
that case wholly depended was where the true boundary line was situated; the question was
fully raised, considered by the court and determined in the action at law.
The bill of plaintiff in this case fails to show any equity, or facts sufficient to give a court
of equity jurisdiction. (Doggett v. Hart, 5 Fla. 215; 4 Randolph (Va.) 74; 1 Storey's Eq.
Jurisp. 619; 6 Am. & Eng. Ency. of Law, p. 693; 21 Nev. 144; 30 Pac. Rep. 160; 31 Pac. Rep.
655, 657; 23 Me. 448; 2 Anst. 395; 1 Brown's C. C. 40; 2 Anst. 386; 2 DeG. Mc. & G. 111; 5
Hump. 79; 7 Hump. 569; 2 Vern. 38; 3 Ves. 4; 2 P. Wms. 376; 3 P. Wms. 148; 67 Pa. St.
507; 4 Or. 177; 1 Jac. & Walk. 491; 1 Eden, 331; 2 Lead. Cases in Eq. 433; 5 Leigh. 191; 36
Cal. 249.)
Of these cases three are directly in point here, viz.: 21 Nev. 144; 2 Anst. 86, and Waring v.
Hotham.
There could be no dispute, except a fictitious one, as to where the boundary line between
Lander and Humboldt is or was, because the same was fully settled and determined in 21
Nev. 144. Courts will not entertain fictitious disputes and determine them, if known. (21 Nev.
127 and authorities cited.)
No court should lend its aid to such a proceeding, least of all a court of equity. (38 Mo.
App. 243.)
For the foregoing reasons and the fact that respondent's bill sets forth no special equity to
take the case out of the general rule, the lower court erred when it held that as a court of
equity it had jurisdiction in this case.
Where must the facts appear showing that there is a special equity existing? Not in the
opinion of the court in rendering a decision on a demurrer, certainly, but in the complaint or
bill.
There can be no dispute as to where the boundary line is when the legislature has, by
law, fixed and established and determined it.
when the legislature has, by law, fixed and established and determined it. It is then
determined by the highest power in the state.
A county is only a political subdivision of the state, or sovereign, in which rests the entire
power to create the county or to change its boundaries. In the sovereign also rests the power
to say when it can be sued, if sued at all, and also to say if it, or any part of it, shall be subject
to the law of limitations. If the state has passed laws to this effect they are binding on the state
as a whole or on any lesser part of the whole, such as a county, as on the individual, and
actions by a state or county can only be prosecuted or defended in obedience to such
limitation laws. (State v. Y. J. S. M. Co., 14 Nev. 220.)
Then the only question here which it seems necessary to discuss is: What length of
acquiescence in the usurpation of the right is sufficient to constitute a defense to an action
brought to assert, or claim the right so usurped or acquiesced in? The authorities are now
uniform, universal and harmonious that such acquiescence for a period equal to the statute of
limitations is sufficient to bar the right, and constitute a defense to such an action. Here we
were prevented from relying upon this defense, and in so preventing us from so doing the
lower court erred. The reasons given by Judge Cheney for preventing us have not been
deemed good or sufficient by the judges of the highest court in our land. That such was the
true rule was not denied by counsel in 21 Nev. 144, the contention there being that the
statute of limitations did not apply because the action had been brought in ninety days after
the receipt and appropriation. As it would be impossible to give a more thorough citation of
authorities on the point than was done by Mr. Mayenbaum in that case, and having obtained
his consent, we use his brief as follows: 2 Hermann Est., pp. 1266, 1274; 1 Dill. Mun. Corp.,
sec. 184n; 6 Wend. 468; 16 N. Y. 357; 19 N. Y. 279; 35 N. Y. 113, 116; 25 Cal. 619; 48 Cal.
395; 59 Cal. 113; 75 Cal. 610; 76 Cal. 359; 85 Ill. 390, 401; 11 Peters, 185; 4 How. U. S.
591; 7 How. U. S. 660; 8 Fost. N. H. 111; 6 Fost. N. H. 473; 2 Hump. 19; 7 Cuch. 382; 18
Nev. 44; 13 La. 69; 13 Gratt. 389; 35 Ill. 562; 6 Saw. 332; Roane Co. v. Anderson Co., 14 S.
W. Rep. 1079.
That the county of Lander is exercising a power that is conferred by law cannot be
questioned. It is not questioned here. The contention here is that it is exercising such power
within or over a section of country that it was originally not granted the right to so exercise
the power, and to which and in which we claim it has acquired a right to exercise the same by
lapse of time, acquiescence, or the statute of limitation of this state.
M. S. Bonnifield, for Respondent:
Did the lower court have jurisdiction in the premises to render its judgment declaring
which of the two alleged lines between the counties is the true boundary line? In the first
volume of Pomeroy's Equity Jurisprudence, p. 155, is given some subject matters of which
courts of equity have jurisdiction, such as establishing wills, construing wills, and
determining the rights under them of devisees and legatees, and establishing disputed
boundaries. The same author on page 162 names the particular cases of disputed
boundaries, and on page 167 he gives the partition of lands, the assignment of dower and
the settlement of disputed boundaries, as coming within the concurrent jurisdiction. In the
case of Lyon County v. Washoe County, 8 Nev. 177, the identical question decided in the case
at bar was decided. The question of disputed boundary was the only question involved. On
the authority of that case the complaint here was drawn to determine the question of the true
boundary between the plaintiff and defendant.
We respectfully submit to the court the following portion of the opinion of Judge Cheney:
To counties through their officers is intrusted the performance of many of the most
important public duties and trusts. Their power to levy and collect taxes; inquire into and
present indictments for the commission of crimes; the jurisdiction of their courts; the
enforcement of civil and criminal process; the place and persons for whom the elective
franchise shall be exercised; the care and maintenance of public roads and bridges; the
management of public schools and apportionment of school funds, all depend upon and are
confined within the boundaries of the county.
To those residing within this disputed territory these are questions of the highest
importance; questions not only affecting them, but which are of such public character
that they concern every elector and taxpayer in each county.
questions of the highest importance; questions not only affecting them, but which are of such
public character that they concern every elector and taxpayer in each county. The state owes it
to the citizen that such question should be speedily and definitely settled; and public policy
dictates that the taxpayer, delinquent or criminal, should not be enabled to take advantage of
or to escape punishment by reason of such disputes.
A court of law is unable in one action to grant adequate relief, and prevent the repeated
assertion by the losing party of all its powers within the contested territory, to the manifest
annoyance of those residing therein, to the injury of the other county, and to the creation and
promulgation of diverse and multiplied suits directly affecting a large number of persons.
A court of equity, with its power to enjoin either party from the further assertion of
jurisdiction over disputed ground, is alone able to enter and enforce in one action a decree
which will finally and effectually terminate the contention and bring about an end to the
litigation, which it is the policy of the law to secure.
The answer of the defendant pleads title to the territory between the disputed lines by
prescription and adverse possession. It is unnecessary to consider the vexed question whether
counties come within the operation of the statute of limitations like individuals in respect to
ordinary obligations and liabilities, for the reason that counties, in respect to their rights to
exercise jurisdiction over this territory, occupy a position entirely dissimilar to that of
individuals. It is not and cannot be claimed that either plaintiff or defendant is the owner of
the property embraced within this territory, nor that they, or either of them, have ever had the
open or exclusive possession of it; nor that they have claimed title as against the true owner.
The question between the counties is not and never has been, who is the true owner of
this land, but simply who has the legal right to exercise certain governmental functions over
the inhabitants and property therein.
That being the extent of the asserted right, that must necessarily be the limit of any right
acquired by adverse possession. Adverse possession of real estate is a means of destroying
the title of the owner, and creating in the adverse possessor a title superior to that of the
true owner, and the statutes of limitations in reference to adverse possession operate on
the title and not merely to the remedy.
destroying the title of the owner, and creating in the adverse possessor a title superior to that
of the true owner, and the statutes of limitations in reference to adverse possession operate on
the title and not merely to the remedy. (Am. & Eng., pp. 693, 694; Campbell v. Holt, 115 U.
S. 622, 623.) By adverse possession for the statutory period the possessor becomes vested
with a perfect title, which cannot be taken away by the legislature. (Sharp v. Blankenship, 59
Cal. 288.) To constitute a title by prescription there must be a thing claimed which may be
granted, and a person to whom a grant may be made, and who may be a party to such grant.
(Washburn on Easements, 32 ed., p. 118.)
Title by prescription applies only to such rights as an individual or corporation may grant
or take under a grant. (19 Am. & Eng. Ency., p. 24.)
A county is a subdivision of a state created by the sovereign will without the particular
solicitation, consent or concurrent action of the people who inhabit it. It is denominated a
public corporation, for the reason that it is a part of the machinery employed in carrying on
the affairs of state. * * * Being of itself unable to bring itself into legal existence, or to
enlarge the boundaries of its jurisdiction or scope of its functions, it cannot dispose of them
by grant, barter or sale; and, being without power to deprive itself of the authority and duty of
exercising its governmental functions by any positive, overt act of its officers or agents a
fortiori it cannot do so by their laches, omissions or negligences. (Cooley Const., 4th ed.,
296; 4 Am. & Eng. Ency. 343, 345; Laramie Co. v. Albany Co., 92 U. S. 307; Tucker v. Va.
City, 4 Nev. 20; State v. Swift, 11 Nev. 128; 12 Am. & Eng. Ency. 562, 563, note 3; In Re
County of Hampshire, 143 Mass. 424; 13 Am. & Eng. Ency. 714.)
No more is here decided than that the public governmental jurisdiction of a county over
any portion of the territory of a state cannot be lost or acquired by adverse possession or
prescription, and that in an action between two counties to establish a disputed boundary a
plea of title by adverse possession, or by prescription, constitutes no defense. * * * If it is
once conceded that the right of a county to exercise any of its political or civil authority
within the limit established by sovereignty acting through the legislature can be lost or
acquired by adverse possession, laches or prescriptive use, the will of the legislature
ceases to be supreme and is subordinate to the intention of neglect or agreement of
inferior municipal officers.
ture can be lost or acquired by adverse possession, laches or prescriptive use, the will of the
legislature ceases to be supreme and is subordinate to the intention of neglect or agreement of
inferior municipal officers. * * * The mere statement of some of the legitimate consequences
of such a rule shows that it is utterly at variance with the purposes and duties for which
counties are created, and places the agent of the public beyond the control of its sovereign
willraises the created above its creator. Such cannot be law.
D. S. Truman, W. D. Jones, District Attorney of Lander county, and J. F. Dennis, for
Appellant, in reply:
There is but one authority cited by counsel for respondent that requires comment or
answer, and that is Lyon Co. v. Washoe Co., 8 Nev. 177. That case, as reported, is no
authority here, because it in no manner undertakes to determine the question made in the case
at bar. The only question in that case determined by this court was on the motion to dismiss
the appeal, because the copy of the notice was served before the notice of appeal was filed
with the clerk of the district court. It is true that that was an action to obtain a decree
declaring certain territory to be within the boundaries of Lyon county and not in Washoe
county. We think that the question of jurisdiction was never raised in that case at all. It is
sufficient answer here to the question of jurisdiction that the plaintiff's bill shows on its face
that there is no dispute as to the boundary line at all. And there is a plain, speedy and
adequate remedy at law, and where there is equity will not in a case of this kind entertain
jurisdiction. (Pomeroy's Eq. Jurisp., 3d vol.; 42 Pa. St. 488; 13 Ill. 201; 3 Ves. 4; 2 P. Wms.
376; 3 P. Wms. 148.)
In every bill for the purpose here claimed it is necessary to clearly show that without the
assistance of the court of equity the boundaries cannot be found. (Miller v. Warmington, 1
Jac. & Walk. 491.)
Judge Cheney, in the case at bar, seems to rest his opinion on the ground of a prevention of
a multiplicity of suits, if we understand the same correctly, but his position is fully answered
by the court in Stuart's Heirs v. Coalter, 4 Rand. (Va.) 74. And we do not see what can be, or
need be, added thereto to show that in this case a court of equity has no jurisdiction.
thereto to show that in this case a court of equity has no jurisdiction.
Action in equity to establish the boundary line between plaintiff and defendant. The
complaint sets out, by reference to fixed points and monuments, what the plaintiff claims to
be the true line, as established by the joint action of the two counties, and as afterwards
recognized and fixed by the legislature; that subsequently, under the act of March 2, 1887
(Stats. 1887, p. 97), directing the surveyor-general to make a survey of the railroads in this
state, and to place monuments at the points where any railroad crosses a county line, that
officer placed a monument at a point on the Central Pacific railroad two and seven-twentieths
miles west of where the true boundary crossed that road, and that thereby a contention has
arisen between said counties as to where the true line is, and that each claims jurisdiction over
the territory lying between those two points and extending the entire length of the boundary
between them; that the defendant claims jurisdiction over the tract, and during the years 1892
and 1893 has assessed the property situated therein for the purpose of taxing the same, has
collected the taxes thereon, and claims the right so to do.
The defendant demurred, upon the grounds that the court had no jurisdiction, and for want
of facts sufficient to constitute a cause of action. The demurrer was overruled, and a decree
entered fixing the boundary in accordance with the allegations of the complaint. The
correctness of the ruling upon the demurrer is the only point necessary to be noticed to
dispose of this appeal.
In many of the states the legislatures have provided specially for ascertaining and fixing
the boundaries of counties where they are in controversy. They have sometimes conferred
jurisdiction in such cases upon the courts, but that has not been done in this state. We have
several statutes bearing upon the matter (Gen. Stats., sec. 1854; Stats. 1862, p. 93; Stats.
1866, p. 130), but none of them give any power to the courts to settle the controversy. In the
absence of a statute to that effect, we have been cited to no precedent sustaining such an
action upon the part of one political organization against another, and, after a somewhat
diligent search, we have been able to find none, except that of Edwards Co. v. White Co.,
S5 Ill.
zation against another, and, after a somewhat diligent search, we have been able to find none,
except that of Edwards Co. v. White Co., 85 Ill. 390, where the point does not seem to have
been raised or considered. Lyon Co. v. Washoe Co., 8 Nev. 177, was dismissed in this court
for want of proper service of the notice of appeal, and an examination of the record shows
that the question of jurisdiction was not raised nor passed upon even by the lower court.
Under these circumstances, we have been compelled to resort to the principles established in
such actions between private owners, feeling that they are at least analogous, and that, if the
action could not be maintained between individuals, no sufficient reason has been suggested
why it should be between counties.
In cases where boundaries have become lost, confused, obliterated, or obscure, courts of
equity, by granting commissions to ascertain the lost boundary, have exercised jurisdiction
from very early times. Its origin is uncertain. It is sometimes supposed to have been derived
from two ancient writs, long since abolished (3 Pom. Eq. Jur., sec. 1384); at others, it is
claimed as coming under the head of accident (Tyler, Bound. 266); and, again, that consent is
the ground upon which it was first exercised (Speer v. Crawter, 2 Mer. 410, 417).
Whatever it may have been, it is certain that at the present day the mere existence of a
disputed boundary, even though lost or confused, is insufficient to give a court of equity
jurisdiction. In addition, there must be some equitable circumstance shown, which has arisen
from the conduct, situation, or relations of the parties; such as that the boundary has become
confused through the fraud of the defendant, or that the duty of preserving it rests upon him,
or that it will avoid a multiplicity of suits. In Speer v. Crawter, supra, Sir William Grant, M.
R., stated the law as follows: But on what principle can a court of equity interfere between
two independent proprietors, and force one of them to have his rights tried and determined in
any other than the ordinary legal mode in which questions of property are to be decided? In
some cases, certainly, the court has granted commissions or directed issues on no other
apparent ground than that the boundaries of manors were in controversy. In Wake v. Conyers,
2 Cox, 360, however, Lord Northington held that it was in the case of manors that the
exercise of the jurisdiction, which, he says, 'had been assumed of late,' was peculiarly
objectionable.
Lord Northington held that it was in the case of manors that the exercise of the jurisdiction,
which, he says, had been assumed of late,' was peculiarly objectionable. He refused either to
grant a commission or to direct an issue. So did Lord Thurlow in the case of two parishes (St.
Luke's v. St. Leonard's, 2 Anstr. 386, 395.) In the same case of Wake v. Conyers, Lord
Northington says that, in his apprehension, this court has simply no jurisdiction to settle the
boundaries even of land, unless some equity is superinduced by act of parties. I concur in that
opinion, and think that the circumstance of a confusion of boundaries furnishes per se no
ground for the interposition of the court.
The authorities to the same effect are numerous and practically unanimous. See Love v.
Morrill, 19 Or. 546, and authorities therein cited; King v. Brigham, 23 Or. 262, and
authorities therein cited; Ashurst v. McKenzie, 9 South. 262; Wilson v. Hart, 98 Mo. 618;
Doggett v. Hart, 5 Fla. 232; Bressler v. Pitts, 58 Mich. 348; Wetherbee v. Dunn, 36 Cal. 251;
Norris' Appeal, 64 Pa. St. 279; Tillmes v. Marsh, 67 Pa. St. 510.
It must be taken as settled that a court of equity does not have jurisdiction of a question of
boundary simply because it is in dispute; and passing by the proposition that the complaint
here shows no lost or confused boundary, but, on the contrary, that the boundary is well
defined and marked, we pass to a consideration of the question whether any other fact is
shown that brings it within the rule. We think there is not. In addition to the fact of a dispute,
the complaint simply alleges that the defendant is claiming jurisdiction over the disputed
tract, is collecting taxes upon the property situated therein, and claims the right to continue so
to do. All this does not confer equity jurisdiction. It certainly would not even if the county
owned the property illegally taxed (Cooley, Taxn. 760); and much less should it do so where
the most that can be said is that the defendant is illegally collecting money for taxes from
some of the taxpayers in the plaintiff county. It is not shown that Humboldt county has not
been paid all the taxes upon that property due to it, nor that it ever has lost, or ever will lose, a
dollar by defendant's wrongful action, although we do not mean to intimate by that that the
court would have jurisdiction were that fact shown.
It is argued, however, that a court of equity should have jurisdiction because the settlement
of the boundary is of great importance to both counties and to all living or owning property in
the disputed tract; that it is highly important that it should be known to which county it
belongs, because the right to prosecute crime, to serve process therein, the exercise of the
elective franchise, and many other rights for and against people and property therein, all
depend upon that fact. All this may be freely admitted, but, aside from the fact that none of
them are grounds of equitable jurisdiction, it is, perhaps, one of the greatest objections to this
action, as it seems to us, that it settles none of these questions. We know of no principle upon
which it can be claimed that the decree entered in this action determines the situation of the
boundary as against any one not a party. It would not even be admissible for or against either
party to a criminal proceeding, to an action to recover delinquent taxes, or in an election
contest; nor would it prevent the assessor of Lander county from assessing property therein.
The law fixes the boundary. All that a court could possibly do would be to determine the fact
of where it is so fixed, and as upon this would often depend very important rights of others,
of which they could not be deprived without their day in court, judgment upon the point can
conclude no one not a party to the action.
It is unnecessary to determine how far, if at all, manors and parishes in England are public
corporations, so as to make the decisions there concerning their lost or confused boundaries
in point in this action; but they are, at least, somewhat analogous, and as will be seen from the
citation from Speer v. Crawter, supra, it is in such cases that the exercise of jurisdiction by a
court of equity is pronounced particularly pernicious.
After a careful consideration of the points presented on this appeal, we are satisfied that
the court erred in overruling the defendant's demurrer. It is therefore ordered that the
judgment of the district court be reversed, and the demurrer to the complaint sustained.
____________
22 Nev. 260, 260 (1894) Nesbitt v. Pioche Consol. Mining Co.
[No. 1408.]
JAMES NESBITT and GEORGE NESBITT, Partners, etc., under Firm Name of J. NESBITT
& BRO., Plaintiffs and Appellants, v. THE PIOCHE CONSOLIDATED MINING AND
REDUCTION COMPANY, Defendant and Respondent.
In an action for goods sold and delivered, where the defense is that the goods were sold to a third party, and that
the defendant's oral promise to pay for them is within the statute of frauds: Held, that the action can only
be maintained on the theory that the goods were sold directly to the defendant, but where there is some
evidence tending to establish that theory, although there is also evidence tending to contradict it, a
non-suit is improper.
Appeal from order excluding testimony and sustaining motion for non-suit, from District
Court, Lincoln county; A. E. Cheney, District Judge, presiding:
In addition to the facts stated in the opinion, there was evidence tending to prove that,
when the plaintiffs refused to trust Denton further, the defendant's superintendent requested
them to continue to do so, stating that he, as superintendent of the defendant would see every
dollar paid; that as the pay days would be far apart, he would give them special checks
without waiting for pay day, and that defendant had accordingly paid several thousand dollars
thereon; that although after this agreement they continued to charge the goods to Denton, it
was done only at the superintendent's request, to prevent confusion of the accounts. On the
other hand, some of the plaintiffs' evidence tended to prove that the superintendent's promise
was only to become security for the goods. The action was tried by the court without a jury.
George S. Sawyer and Henry Rives, for Appellants:
All the circumstances and conversations which led up to and culminated in the promise of
defendant to pay for the goods and other things advanced by plaintiffs (appellants), the value
of which is sought to be recovered in this action, are parts of the res gestae. (1 Greenleaf's
Ev., sec. 108 and notes.)
The court, therefore, erred in excluding the testimony of James Nesbitt as to what he told
the men who obtained the supplies. The testimony introduced by plaintiffs shows
conclusively that none of the goods or other things, the value of which is sued for in this
action, would have been delivered by plaintiffs, except upon the promise of defendant to
pay for them or "see that they were paid for."
clusively that none of the goods or other things, the value of which is sued for in this action,
would have been delivered by plaintiffs, except upon the promise of defendant to pay for
them or see that they were paid for.
This was an original and not a collateral promise and not within the statute of frauds. It is
also shown by the testimony that the goods and other things, for the value of which this action
was brought, were advanced for and used by the defendant for its special benefit, which also
takes the case out of the statute of frauds. (Mackey v. Smith, 28 Pac. Rep. 974, and cases
cited.)
In reviewing a judgment on a non-suit the appellate court will consider as proved every
fact which the testimony on the part of plaintiff tends to prove; and in this case it cannot be
contended that the testimony does not, at least, tend to prove that the promise of defendant
was an original and not a collateral promise. (Patchen v. Keeley, 19 Nev. 404, and cases
cited.)
Thomas J. Osborne and J. H. Macmillan, for Respondent:
Section 2630 of our General Statutes provides that every special promise to answer for the
debt of another shall be void unless the agreement of some note or memorandum thereof
expressing the consideration be in writing and subscribed by the party charged therewith. The
broadest possible construction placed upon plaintiffs' testimony shows only that Mr. Godbe,
as agent of the defendant corporation, promised only to secure the debt of Denton, a coal
contractor, with the company defendant. There was no agreement in writing, hence the lower
court committed no error in excluding from the testimony of James Nesbitt any statements he
may have made to the men. The promise was entirely a collateral one, not in any sense an
original undertaking, and so should have been in writing. While the goods supplied were used
indirectly for the benefit of defendant (respondent), yet they were not absolutely necessary for
the prosecution of its business, and a careful examination will disclose material differences
between the facts in this case and those involved in Mackey v. Smith, 28 Pac. Rep. 974, which
is relied on by appellants.
Plaintiffs, as co-partners, sued the defendant to recover judgment in the sum of $4,928 53
for goods, wares, and merchandise sold and delivered, and for the hire of teams furnished.
The answer denied the indebtedness. The case was tried by the court without a jury.
The facts, as disclosed by the testimony on the part of the plaintiffs, were that one Denton
had contracted with defendant to furnish coal to be used at its furnaces. Plaintiffs, as
merchants, had furnished Denton supplies for a time. Later they declined to extend his credit.
The superintendent of defendant then met with plaintiffs, and such agreement was reached, it
is claimed, as to make defendant liable, in connection with the other facts, for the account
subsequent to January 3, 1891. If the defendant is liable, it is upon facts constituting an
original promise, and not by any written promise made to the plaintiffs. Evidence was
adduced tending to prove that the superintendent had promised to pay for the goods; that, if
the pay days should be too far apart, he would give a special draft; and that the company had
paid upwards of $4,000 on the account.
Upon the close of plaintiffs' case, defendant moved for a non-suit upon the ground that the
promise made was within the statute of frauds, and should have been in writing. The court
granted the motion. For the purposes of the motion the evidence should be taken as true.
Considering it as true, there is in the above statement evidence tending to support plaintiffs'
contention. They may ultimately fail to recover upon the merits of the whole case, but we
cannot say, as matter of law, that there is no evidence tending to support their case.
Judgment reversed, and cause remanded.
____________
22 Nev. 263, 263 (1895)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
JANUARY TERM, 1895.
____________
22 Nev. 263, 263 (1895) State v. Commissioners of Storey County
[No. 1417.]
THE STATE OF NEVADA, ex rel. J. D. TORREYSON, Attorney-General, Relator, v. W. S.
JAMES, W. H. PRATT and E. CHATELAIN, as the Board of County Commissioners of
Storey County, Respondents.
1Mandamus, When Only to be Resorted To.The writ of mandamus should be resorted to only when the
usual and ordinary remedies fail to afford adequate relief, and without it there would be a failure of
justice.
2SameDoes Not Lie When Other Adequate Remedy.Mandamus does not lie unless the party invoking it
has no other adequate remedy.
Original proceeding for alternative writ of mandate.
Argued orally.
James D. Torreyson, Attorney-General of Nevada, in pro. per., for Relator.
E. D. Knight, District Attorney of Storey county, for Respondent.
This is an application for an alternative writ of mandamus requiring the board of county
commissioners of Storey county (respondents herein) to allow the costs of the clerk of this
court incurred upon appeal in the case of State v. Trolson, 21 Nev. 419.
22 Nev. 263, 264 (1895) State v. Commissioners of Storey County
Nev. 419. Respondents demurred to the petition, upon the ground that the court had no
jurisdiction of the subject matter. The writ of mandamus should be resorted to only when the
usual and ordinary remedies fail to afford adequate relief, and without it there would be a
failure of justice. If there is an adequate remedy at law by which relief may be attained it
should be taken. It is clear that there is such remedy.
The principle is stated in Shelby v. Hoffman, 7 Ohio St. 450, as follows: The writ of
mandamus, at common law, was a prerogative writ, introduced to prevent discord from a
failure of justice, and to be used on occasions where the law had established no specific
remedy. It is, however, a general rule at common law that the writ of mandamus does not lie
unless the party applying has no other adequate remedy. See, also, High, Extr. Rem., sec. 15,
and cases there cited.
Mandamus denied.
____________
22 Nev. 264, 264 (1895) State v. Meder
[No. 1418]
THE STATE OF NEVADA, ex rel. JAMES GUINAN, Relator, v.
JOHN P. MEDER, JOHN T. JONES and A. CUTTS, Respondents.
1School Trustees, Long and Short Term.The office of long-term school trustee is separate and distinct from
that of short-term, and a certificate of appointment which does not state that it is for the long term is
insufficient to entitle the appointee to that position.
2Official Appointment, to be in Writing.An appointment to a public office must be in writing.
3Election, Result of, How Declared.The legislature has power to provide for the manner in which the result
of an election shall be determined and declared, and their enactment in reference thereto is binding.
4Canvassers, Board of, Failure to Canvass Votes, and Issue Certificate, Fatal to Right to Hold Office.The
relator claims to have been elected long-term school trustee at the general election held in November,
1892, by virtue of having received a majority of the votes cast at that election, but which were not
canvassed by the board of county commissioners, nor any certificate of election issued as provided by
Gen. Stats., sec. 1304. He also claims that Stats. 1891, 93, changing the election of trustees from
November to May of that year, are unconstitutional, and consequently that his election in November was
legal. Held, that, without regard to the constitutionality of the act of 1891, the failure of the board to
canvass the votes and issue a certificate is fatal to his right to hold office.
22 Nev. 264, 265 (1895) State v. Meder
5Constitutional Questions, When Not Passed Upon.It is a well-known rule of courts never to pass upon a
constitutional question unless it is clearly involved and a decision thereon is necessary to a determination
of a case.
Original proceeding on information in the nature of quo warranto.
At the general election held in November, 1892, the relator was a candidate for the
position of long-term school trustee of Carson school district, and received a majority of the
votes cast for that position. There was, however, no notice given that the trustees were to be
elected at that election, and the vote therefor was not canvassed, nor any certificate of election
given to him; Stats. 1891, p. 93, then providing that trustees should be elected in May of that
year. In January, 1893, believing, as the information states, that there were doubts of the
validity of the election, the district attorney of Ormsby county, as ex officio superintendent of
schools, appointed him to the position for which he had been a candidate at the election. The
certificate of appointment read as follows: I, * * * do hereby appoint James Guinan a school
trustee for school district No. 1. Upon this appointment he took the oath of office, and
continued to discharge the duties of the position until June, 1894, when the superintendent
appointed the respondent Cutts as his successor. Cutts had also been elected a trustee for the
unexpired term at the school election held in May, 1894.
H. F. Bartine, for Relator:
Relator offered to show by parol that his appointment was intended for the long term. The
introduction of parol evidence for such purpose was objected to by respondent. The parol
evidence is clearly admissible. It is not intended to contradict or vary the written instrument
or to show anything inconsistent with its language. As a matter of law, of which the court will
take cognizance, there are two official terms of school trustee; one for two years and one for
four years. This appointment fails to specify which was intended, the longer or shorter term.
Its language applies with equal propriety to either. Hence arises a latent ambiguity which can
be removed by parol. (Greenleaf on Ev., vol.
22 Nev. 264, 266 (1895) State v. Meder
Ev., vol. 1, sec. 297; Am. & Eng. Ency. of Prac. of Law, vol. VII., p. 93; Wharton on Ev.,
937-940.)
Where a name in a written instrument applies equally to two persons, parol evidence is
admissible to show which was intended. (Abbott's Trial Ev., pp. 136-37-40.) The same
doctrine as to two parcels (pp. 145-6). See general statement of the rule on p. 294.
Parol evidence is admissible to identify either persons or things ambiguously described.
(Rice on Ev., pp. 219, 264, 276, 318; McLennan v. Grant, 36 Pac. 682; 8 Wash. 603;
Thompson v. Southern, 82 Cal. 497; 131 Mass. 179; 72 Mo. 570; 18 S. W. 587; 116 Ind. 356;
75 Ala. 209.)
Parol proof is equally admissible to supply omissions if such proof is not contradictory of
the writing. (Equator M. & S. Co. v. Guanella et al., 36 Pac. 613; 32 Pac. 571; 97 Cal. 518;
119 N. Y. 593; 32 N. E. 921; 47 Mo. App. 196, 202; 11 N. Y. Supp. 535; 6 Col. 294; 78 Mo.
391; 14 Mo. App. 71; 71 Iowa, 212; 141 Pa. St. 266.)
The acts and admissions of a party to an ambiguous instrument subsequent to its execution
are competent against him. (Abbott's Trial Ev., p. 509.)
When a written appointment is silent as to the term parol evidence is competent to show
what term was intended. (State, ex rel. Webster, v. Rule (by Judge Cheney); State v.
Fulkerson, 10 Mo. 681.)
The principle should apply to appointments even more strictly than to written contracts.
First, because an appointment to office is a matter that concerns the public, and, however
ambiguously an appointment may be worded, the public have a right to know what was
actually intended. Second, because the appointee is not in a position to dictate the language of
the appointment. Third, because if parol proof is not admissible an officer having the
appointing power can violate the law with perfect impunity. Fourth, the denial of the rule for
which we contend will throw the door wide open to the most outrageous abuses of the
appointing power.
The failure of the notice of the election in November, 1892, to specify school trustees
among the officers to be elected did not invalidate the election of such officers. The
November election in 1892 was a general election and the law itself was all the notice
required. (Hubbard v. Gorin, 276.)
22 Nev. 264, 267 (1895) State v. Meder
The duties of the board of county commissioners in canvassing votes are ministerial only.
(Paine on Elections, secs. 603, 605, 608, 611; Mecham's Pub. Off., sec. 208; Brightley's Lead.
Cases on Elections, pp. 300, 306.)
The only power of a board of canvassers is to canvass the returns as made by the
inspectors of election and from the returns declare the resultthat is, what candidate has the
highest number of votes. In this case it is a fact admitted in open court that relator had a
greater number of votes than any other candidate, which is all that could have been shown by
the canvass and the certificate of the board. The board did not decide against relator's election
except by holding that there was no law for it. This was clearly an assumption of judicial
power. It was not necessary for relator to demand a canvass or certificate; it was the duty of
the board to make the canvass and issue the certificate.
Relator took peaceable possession of the office and performed its duties unchallenged for a
year and five months. A certificate of election is at best only prima facie evidence and may be
completely overthrown on parol proof. (Brightley's Lead. Cases on Elections, pp. 314, 319,
especially note in which the cases are reviewed.)
In election cases the ultimate fact to be determined by a canvass is who had the most votes.
In this case that fact is decided in relator's favor by admission in open court. Between the
parties this admission is conclusive so far as relator's election is concerned. (47 Kan. 432.)
The oath of office was sufficient. It is evident that relator endeavored to qualify legally. If
there is any fault it lies at the door of Superintendent McGowan. (Mecham's Pub. Off., sec.
258; 5 Cal. 106; 6 Utah, 90.) But at the worst the omission only gives rise to an uncertainty as
to what office the oath applied to. It is an easy matter to make the application certain. It can
be done by parol or by a simple inspection of the appointment. Certum est quad certum reddi
potest.
Formal defects and even substantial ones in official oaths and bonds have never been held
fatal. (People, ex rel. Brooks, v. Watts, 73 Hun. 407; 97 N. Y. 273; 80 Mich. 265; 45 N. W.
132; 4 Wash. 234.)
The election held in November, 1892, was under the general school law of the state.
22 Nev. 264, 268 (1895) State v. Meder
school law of the state. (Gen. Stats. 1304.) At that time the general law was in full force
and effect. The act of March 19, 1891, providing for the election of school trustees on the
fourth Monday of May (Stats. Nev. 1891, p. 93), is unconstitutional. The first section creates
a term of four years and six months, which is in excess of the constitutional limitation. As
this provision cannot be rejected without leaving the act imperfect and incomplete, the entire
act must fall. This is settled law. (State v. Harris, 19 Nev. 222.)
The attempt to amend the act of 1891 so as to remove this defect was itself a legislative
admission of its unconstitutionality (Stats. 1893, p. 115). But the original act being void there
was nothing to amend, and the amendatory act of 1893 is equally void. (Sedgwick Const.
Law, p. 143; Cooley Const. Limitation, p. 469.)
Section 17, article IV., of the Nevada constitution requires that the subject of every statute
shall be expressed in the title. The subject of an original statute is the matter which it
contains. The subject of an amendatory statute is the act amended. In this case the statute
amended, being unconstitutional, was void ab initio and never had an existence as a
substantive thing, hence there was no subject to which the amendatory act could refer. It
fails because no existing subject is referred to in the title. It is clearly within the analogy of
State v. Hallock, 19 Nev. 384. Therefore the election held on the fourth Monday of May,
1894, was without authority of law and void.
Now when relator's title or right to the office is assailed he can show any title that he may
have. (Clarke v. Irwin, 5 Nev. 111, 130.)
If the amendatory act of 1893 (Stats. 1893, p. 115) be held constitutional, it can in no way
affect relator. The act did not take effect until March 6, 1893, about four months after he had
been elected and two months after he had been appointed.
An officer can be elected only at the time fixed by law. (1 Nev. 75; 2 Nev. 351; 33 Neb.
266; 29 Pac. 1118.)
A. J. McGowan and Torreyson & Summerfield, for Respondents.
(No brief on file.)
22 Nev. 264, 269 (1895) State v. Meder
The question involved in this proceeding is whether the relator or the defendant Cutts is
entitled to the position of long-term school trustee of Carson school district No. 1,
commencing January, 1893. The relator founds his right thereto both upon an election at the
general election of 1892, and upon an appointment made in January, 1893. Upon the hearing
he offered in evidence a certificate of appointment as school trustee, but which did not state
that it was for the long term. For this reason the court were of the opinion that the certificate
did not establish any title in him to the office in controversy; that position being separate and
distinct from an ordinary two years term, and the statutes specially providing that it should be
known as the long term. (Gen. Stats., sec. 1304; Stats. 1891, p. 95.)
The relator then offered to prove by parol testimony that the intention of the appointing
officer was to appoint him to the long term, and that the understanding was that he had been
so appointed. Upon objection the offer was overruled upon the ground that an appointment to
an office must be in writing, and cannot be shown by parol. (Gen. Stats., secs. 1658, 1667;
People v. Murray, 70 N. Y. 521.)
He now claims that the statute of 1891 (page 93), providing that trustees should be elected
in May, 1892, instead of at the general election in that year, as had previously been the law,
was unconstitutional, because it provided for the election of a trustee whose term of office
was to be for more than four years; that consequently the trustees were still to be elected at
the general election; and, having received a majority of all the votes then cast for long-term
trustee, and having taken the oath of office in due time, he is now entitled to hold the position
under that election. The information, however, fails to show that any canvass of the votes so
cast was ever had, and, so far as the board of commissioners is concerned, it is admitted that
none was made.
It is a well-known rule with the courts never to pass upon a constitutional question unless
it is clearly involved, and a decision thereon is necessary to the determination of a case.
Accordingly, we do not do so here, because, aside from the constitutionality of the statute
of 1S91, we are of the opinion that the failure to canvass the votes cast for trustees is
fatal to the relator's claim thereunder.
22 Nev. 264, 270 (1895) State v. Meder
constitutionality of the statute of 1891, we are of the opinion that the failure to canvass the
votes cast for trustees is fatal to the relator's claim thereunder. It will not be contended that it
was not within the power of the legislature to provide the manner in which an election shall
be held, and the result determined and made known. Any reasonable regulation adopted for
the purpose of obtaining an orderly and definite settlement of the result would certainly be
binding. Even if the statutes were not clear upon the point, a due regard for good order and
the proper regulation and administration of public affairs would require the courts to construe
them, if the language would permit, so as to make the right to hold an office, either by
election or appointment, as much beyond controversy as possible. The interests depending
upon this right are too important to be left to the conflicting decisions of courts and juries,
made, perhaps, long after the event, and upon conflicting and unsatisfactory evidence, as to
who had received a majority of votes that had never been canvassed. This, however, would be
the effect were we to concede the correctness of the relator's contention that the right to hold
an office is complete whenever the claimant can by any means show that he received the
majority of the votes cast at an election.
But, turning to the statutes, and viewing them in this light and in the light of the decisions
of other courts, we are of the opinion that it was clearly the intention of the legislature that no
election should be complete, or a candidate qualified to serve, until there has been a proper
canvass and certification of the result. Gen. Stats., sec. 1304, which, prior to the act of 1891,
already mentioned, provided when and how trustees should be elected, also directed that
certificates of election shall be issued the same as to county and township officers, which
certificates, with the oath or affirmation endorsed thereon shall be forwarded to the county
superintendent, who shall file the same in his office. Section 30 of the act concerning
elections, as amended (Stats. 1889, p. 42), provides that the county commissioners shall
canvass the returns of an election, and issue certificates of election to county and township
officers. This careful provision for a public record of the fact of the trustee's election and due
qualification indicates the importance attached to it by the lawmakers, and certainly does
not indicate that it was to be a mere matter of form, to be disregarded with impunity.
22 Nev. 264, 271 (1895) State v. Meder
lawmakers, and certainly does not indicate that it was to be a mere matter of form, to be
disregarded with impunity. Neither from the reason of the thing, nor from the language used,
can we discover any ground upon which to base the belief that the legislature so intended. If
the election was legal, it was the duty of the canvassers to canvass the vote and issue the
certificate of election, and the courts furnish ample machinery for compelling them to do so,
should they improperly refuse.
In People v. North, 72 N. Y. 124, 128, this question arose upon a statute, substantially the
same as ours, which provided that the inspectors of election should canvass the votes cast at a
city election, and certify the result to the common council, who, upon such returns, should
declare and determine who had been elected, and cause certificates of election to issue
accordingly. The court said: We think that the determination of this case depends upon two
questions: First, whether, under these provisions, the election of a ward officer is complete
until he shall have been declared and certified by the common council to have been duly
elected, and whether this declaration and certificate are indispensable for the purpose of
consummating the election and qualifying the candidate to enter upon his office. * * * Upon
the first question we are of the opinion that the declaration and certificate of the common
council is indispensable to the election and qualification of ward as well as city officers. It is,
by the express terms of the act, required as to ward officers; and although the same reason
does not exist as in the case of city officers for requiring it, yet, as the legislature have done
so, the courts cannot dispense with it. The legislature can provide for the manner in which the
result of an election shall be determined and declared, and their enactment is binding. * * *
We cannot concur in the view that these provisions are only for the purpose of limiting the
time within which the persons elected must take the oath of office. An examination of the
whole section shows, we think, that its intention was to provide for the manner in which the
election of the candidate should be consummated and officially declared; and that, until these
acts are done, his election is not complete, and he is not qualified to serve.
In People v. Crissey, 91 N. Y. 616, 627, speaking of the case from which we have just
quoted, the same court again said: "The case cited arose under the provisions of the
charter of Cohoes, which are different from and more specific than those of the charter of
Troy, but the same principle governs both casesthat is, that the legislature can provide
for the manner in which the result of an election shall be determined and declared, and
their enactment is binding; that the power to declare, the result must be lodged
somewhere; and that, where the mode of so doing is commanded, until it is obeyed, and
such acts are done, the election is not complete, and the candidate not qualified to serve."
22 Nev. 264, 272 (1895) State v. Meder
from which we have just quoted, the same court again said: The case cited arose under the
provisions of the charter of Cohoes, which are different from and more specific than those of
the charter of Troy, but the same principle governs both casesthat is, that the legislature can
provide for the manner in which the result of an election shall be determined and declared,
and their enactment is binding; that the power to declare the result must be lodged
somewhere; and that, where the mode of so doing is commanded, until it is obeyed, and such
acts are done, the election is not complete, and the candidate not qualified to serve.
In Carr v. Wilson, 32 W. Va. 419, 426, a case involving the right to hold the office of
governor of that state, the New York decisions were approved and followed, and it was
declared that no one was entitled to hold that position until the declaration of the result of the
election had been duly made.
We are of the opinion that the relator is not entitled to the position in controversy, and that,
so far as shown, the defendant Cutts is the legal incumbent thereof.
It is therefore ordered that the information be dismissed.
____________
22 Nev. 272, 272 (1895) Schneider v. Bray
[No. 1422.]
HENRY SCHNEIDER, Plaintiff and Appellant, v. C. E.
BRAY, Defendant and Respondent.
1Pleading, Sufficiency ofOn Motion to QuashRuling of Court Below, Followed by Appellate
Court.Where, on a motion to quash which amounted to a demurrer, the trial court held the complaint
sufficient, justice requires that the appellate court should do the same, as otherwise the pleader would
lose all right of amendment.
2ElectionContestedBallots as Evidence.In a contested election case the trial court ruled that plaintiff
must prove that the ballots had been counted for defendant (respondent) which should have been counted
for plaintiff (appellant), and that the ballots themselves were utterly immaterial as evidence to prove
these alleged facts and excluded them and dismissed the case. The ruling that the ballots were immaterial
as evidence, and the excluding them, and the order dismissing the case, were all error.
3SamePrimary and Controlling Evidence Where the Question at Issue is Which Party Received the Greater
Number of Votes.The ballots themselves furnish the primary and controlling evidence as to which
party to the contest legally received the greater number of votes.
4Ballots, Controlling as Evidence.In order to continue the ballots controlling evidence it must appear that
they have been preserved in the manner and by the officers prescribed in the statute, and that while in
such custody they have not been so exposed to the reach of unauthorized persons as to afford a
reasonable probability of their having been changed or tampered with.
Appeal from order dismissing proceeding, from District Court, Ormsby county; Richard
Rising, District Judge.
Alfred Chartz, for Appellant:
This appeal involves two points: (1) Are the ballots primary or secondary evidence? (2)
What is the proper foundation to lay to make the ballots primary evidence?
Section 1561, General Laws, says: When any election held for any office exercised in and
for a county is contested on account of any malconduct on the part of the board, * * * the
election shall not be annulled * * * unless the rejection of the vote of such precinct shall
change the result as to such office. Section 1563 says: The district court of the respective
districts shall have original jurisdiction to try and determine all such cases, and may by
mandamus or otherwise obtain all documentary evidence required by either of the parties
litigant. Section 1564 says: No statement of the cause of contest shall be rejected nor the
proceedings thereon dismissed by any court before which such contest may be brought for
trial for want of form, if the particular cause of contests shall be alleged with such certainty as
will sufficiently advise the defendant of the particular proceedings or cause for which such
election is contested. All the statute requires is that the opposite party should be sufficiently
advised of what to meet that he may not be surprised, and that he may be prepared to meet it
if he can. Section 1552 provides who shall keep the ballots. Section 1552 also states: * * *
The poll book, tally list, certified copy of the register, ballot box and ballots thus inclosed and
sealed shall, after the canvass of the votes by the board of county commissioners, be
deposited in the office of the clerk of the board of county commissioners and preserved until
the next general election; * * * provided, however, that the ballots so deposited with the
board of county commissioners shall not be subject to the inspection of any one except in
cases of contested elections, and then only by the judge, body or board before whom such
election is being contested."
however, that the ballots so deposited with the board of county commissioners shall not be
subject to the inspection of any one except in cases of contested elections, and then only by
the judge, body or board before whom such election is being contested. (As amended, Stats.
1879, 117.) There can be no doubt for what purpose the statutes were amended and required
the ballots to be preserved for two years. It was to meet and decide just such cases as the case
at bar.
If there was any wrongdoing, miscalling of ballots and calling and counting them for Bray,
that fact lies solely in the breast of the inspectors of the election, precinct No. 2, and in the
ballots.
The case at bar was tried before Hon. Richard Rising in exactly one minute by the watch.
The summary manner in which it was dismissed is shown by the statement. The honorable
court could have entertained no doubt whatever as to the correctness of his position, but let us
see the terrible clash between the opinion of the honorable court and the statutes and Justice
Stephen J. Field, while judge of the supreme court of California, and Judge McCreary, and
other authorities. Section 1564, Gen. Stats., says: No statement of the cause of contest shall
be rejected, nor the proceedings thereon dismissed, by any court before which such contest
may be brought for trial, etc. Section 1562 provides for the character of statement under
which any elector may come into court and be heard.
Formerly ballots were destroyed in Nevada as well as in California. In Searcy v. Grow, 15
Cal. 118, similar proceedings were instituted, defendant moved to dismiss as in this case,
motion overruled, defendant declined to answer and the court rendered judgment annulling
the election of defendant, and defendant appealed. Justice Field said: In this respect the
ruling of the court was clearly erroneous. The public is interested in a contest of this
character; it is not a matter solely between the parties to the record, etc.
In Lord v. Dunster, 79 Cal. 477, brought into court under a similar statement as the case at
bar, the court proceeded to count the ballots, the case was appealed and the upper court said:
The public interests imperatively require that the ultimate determination of the contest
should in every instance, if possible, reach the very right of the case. How was it possible to
reach the right of this case in one minute?
was it possible to reach the right of this case in one minute? Vide People v. Holden, 28 Cal.
129, strongly approved of in 19 Kan. 186; Coglan v. Beard, 65 Cal. 59. In this case the
ballots were recounted in the presence of the court.
In the case at bar the honorable court held that it was utterly immaterial to show that the
ballots had not been tampered with and had been kept by the proper officers, and added that if
the evidence was offered, the court would throw it out on the ground that it was immaterial.
What principle of public policy can be subserved by first having to prove allegations by
secondary evidence before primary evidence can be introduced in election contests?
Judge McCreary, in his work on Elections, says: The title of the office rests upon the
votes cast and not upon the boards of election (Sec. 397). See, also, Am. & Eng. Ency. of
Law, title Elections, p. 424; Hudson v. Solomon, 19 Kan. 126; State, ex rel. Judge, 13 Ala.
805; People, ex rel. Holden, 28 Cal. 123; McCreary on Elections, secs. 291, 439; Cooley
Const. Lim., p. 625. As between the ballots and a canvass of the ballots the ballots are
controlling. (19 Kan. 190; McCreary on Elections, sec. 444; 31 Kan. 758; Dorey v. Linn, 94
Ill. 515.)
The appellant in this case contests the election of Bray on the ground of the malconduct of
the inspectors of election in precinct No. 2, alleging in his petition the general allegation that
the inspectors were guilty of malconduct in counting votes for Bray which were in reality cast
for Schneider, and which were sufficient in number to change the result of the election.
Appellant urges that, from this allegation and upon his showing that the ballots had not
been tampered with, he has a right to have the ballots opened and counted, while respondent
contends that some showing of fraud must be made before the court will order the ballots to
be produced and counted.
The facts set up in the petition are not sufficient to warrant the court in ordering the ballots
to be counted. There must be a clear and precise statement of the fact upon which said
petition is based, and it must be shown that the result of the election was changed.
the election was changed. (McCreary on Elections, sec. 402; Skerrett's Case, 2 Parsons, 509;
Kneass' Case, 2 Parsons, 561; Carpenter's Case, 2 Parsons, 537, 545; Whipley v. McKune, 12
Cal. 352, 359-362; Gen. Stats. 1561-64; Leading Cases on Election, Brightley, p. 360.)
It must appear to the court from the face of the petition how and in what manner the result
of the election has been changed. It is not enough to allege that votes have been counted for
Bray which were in reality cast for Schneider. The allegation is too general. The petition
states conclusions, not facts from which they are drawn.
By the Court, Bonnifield, J.:
Henry Schneider and C. E. Bray were candidates at the last general election for short-term
county commissioner of Ormsby county. Upon the county commissioners of said county
making an abstract of the votes, it appeared that the defendant had the highest number of
votes cast for said office and he received a certificate of election therefor.
This action was brought in the district court of Ormsby county to contest the election of
the defendant, on the ground of malconduct on the part of the board of inspectors, or
members thereof, of election precinct No. 2. Such malconduct is alleged, in the plaintiff's
statement or complaint, to consist in calling and counting votes for and in behalf of said C.
E. Bray which were in reality cast and should have been called and counted for and in behalf
of the plaintiff, and the said board have otherwise failed to count votes cast for and in behalf
of said plaintiff, which all of said votes, if correctly called and counted, would have been
sufficient in number to elect said plaintiff, Henry Schneider, to said office of county
commissioner.
The defendant, by his answer, denies each of the above allegations in the complaint. The
defendant moved the court below to quash the statement or complaint of the plaintiff, on the
ground, among others, that it does not state facts sufficient to warrant the court in hearing
any testimony or considering the same.
The motion was denied by the court. The plaintiff, to maintain the issues on his part,
offered to introduce in evidence the ballots cast at election precinct No. 2, and asked to have
them counted.
to have them counted. The defendant objected to the introduction of the ballots on the
ground that the same are incompetent, immaterial, and irrelevant, and not tending to prove
any issue in the proceeding. The court refused to admit the ballots in evidence, on the
ground that they are utterly immaterial, and ruled that the plaintiff must first prove that
ballots were called and counted for Bray which should have been called and counted for
Schneider. The plaintiff, by his attorney, stated to the court: We have no such evidence,
except the ballots themselves which we now offer for that purpose. The court thereupon
ordered the action dismissed, at plaintiff's cost.
This appeal is taken from the judgment therein made and entered, and ruling excluding
evidence offered by plaintiff, and order dismissing the action; and this ruling and order are
assigned as error. That the ballots had not been tampered with, but remained the same as they
were when cast, we understand, is not disputed. No suggestion was made to the contrary in
the court below, and none has been made in this court.
If the members of the board of inspectors had been examined as witnesses as to whether
any ballots cast for Schneider had been called and counted for Bray, they would have,
doubtless, testified that the ballots were counted as they were cast, and they would have
properly so testified if they were not conscious of making any mistake in the calling and
counting, and still an erroneous canvass of the votes might have occurred to the extent of
changing the result of the election. While such testimony would be good and satisfactory
evidence of the honesty of their intention, it would not be conclusive that the alleged errors in
calling and counting had not been committed. The evidence offered by the plaintiff was not to
prove the quality of the inspectors' intention, but to establish his alleged facts.
Upon the authority of the Kneass Case, 2 Pars. Eq. Cas. 553, cited in respondent's brief,
the voters themselves could not have been compelled to disclose for whom they voted, even if
their testimony was competent, and the plaintiff had resorted to that character of proof. The
court ruled to the effect that it was proper for the plaintiff to prove that ballots were called
and counted for Bray which should have been called and counted for Schneider," but that
he must do this before he would be permitted to introduce the ballots which the plaintiff
had offered for the purpose of proving these alleged facts.
called and counted for Schneider, but that he must do this before he would be permitted to
introduce the ballots which the plaintiff had offered for the purpose of proving these alleged
facts. If such proof had been made aliunde, a resort to the ballots would not have been
necessary or material.
The public interests imperatively require that the ultimate determination of such contest
should in every instance, if possible, reach the very right of the case. It is the wholesome
practice of the statute to invite inquiry into the conduct of popular elections. Its aim is to
secure that fair expression of the popular will in the selection of public officers, without
which we can scarcely hope to maintain the integrity of our political system. (Minor v.
Kidder, 43 Cal. 236; Lord v. Dunster, 79 Cal. 478.) The true result of the election is the
object to be sought. The returns of the inspectors of election are prima facie true, but, when
the returns are impeached, the ballots are the primary and controlling evidence of the true
result.
In the case at bar oral testimony would not have been competent to either prove or
disprove the correctness of the canvass of the election inspectors, if such had been offered.
That the court below erred in ruling out the ballots offered in evidence by the plaintiff is
clear, not only upon reason and from the ordinary rules of evidence that the best evidence of
the contents of a writing is the writing itself, but from the authority of the decided cases. That
the ballots are the primary and controlling evidence in all cases of election contests based on
the ground of alleged errors in the count made by the election officers charged with the duty
of canvassing the votes, we are of opinion, is well settled.
In the case of People v. Holden, 28 Cal. 123, the court say: In an action brought in the
district court to try the right to an office, the list of ballots cast in any precinct, and returned
with the poll list and tally paper to the county clerk, is better evidence of the number of votes
cast at the precinct, and for whom cast, than the tally list made from them by the officers of
the election.
In the case of Coglan v. Beard, 65 Cal. 58, the court adheres to the rule laid down in 28
Cal., supra.
In Hudson v. Solomon, 19 Kan. 177, the court refer to the case in 28 Cal. with approval,
and say: (1) As between the ballots cast at an election and a canvass of the ballots by the
election officers, the former are the primary and controlling evidence.
the ballots cast at an election and a canvass of the ballots by the election officers, the former
are the primary and controlling evidence. (2) In order to continue the ballots controlling
evidence, it must appear that they have been preserved in the manner and by the officers
prescribed in the statute, and that, while in such custody, they have not been so exposed to the
reach of unauthorized persons as to afford a reasonable probability of their having been
changed or tampered with.
In State v. Owens, 63 Tex. 261, and Owens v. State, 64 Tex. 500, the court maintain the
same rule.
In Dorey v. Lynn, 31 Kan. 758, the court say: In an action in the nature of quo warranto
to determine which of two persons is entitled to a certain office, the ballots cast at the
election, where they can be properly identified, are the best evidence, and much better and
more reliable than the mere abstract or summary of the same made by the election officers.
The court, in Searle v. Clark, 34 Kan. 49, approve the rule in 31 Kan., supra.
The supreme court of Alabama, in State v. Judge of Ninth Judicial Circuit, 13 Ala. 805,
decided that the ballots or votes themselves are higher evidence of the number of votes cast
than the certified lists of votes sent by the managers at each precinct to the managers at the
courthouse; and, if either party received more votes than were counted for him, the circuit
judge should correct the mistake, and count the votes.
In Kingery v. Berry, 94 Ill. 515, the court say: When we have before us the very ballots
that were cast by the voters, as between the ballots themselves and a canvass of the ballots
made by the election officers, the ballots are controlling.
The canvass of the votes by the board of inspectors is prima facie evidence of the result of
the election, but the canvass may be corrected by the ballots themselves. (People v. Van
Cleve, 1 Mich. 362; Cooley, Const. Lim., 6th ed., 788.)
We find nothing in the Skerrett Case, 2 Pars. Eq. Cas. 509, in the Kneass Case, Id. 561, in
the Carpenter Case, Id. 537, or in Whipley v. McKune, 12 Cal. 352, cited in respondent's
brief, contrary to the rule that the ballots are primary and controlling evidence.
In the Kneass Case the court say: The court will not, on a general request, order the ballot
boxes to be recounted, without some specific charge or allegation of fraud or mistake.
The questions discussed and decided in these four cases related to the sufficiency of the
allegations of the complaint or petition, and not to the competency or materiality of the
ballots as evidence; and respondent's attorneys in fact attempted to justify the ruling upon the
ground of the insufficiency of the complaint herein. But the only objection to which the
complaint is possibly open is not that there is an entire absence of necessary facts, but rather
that they are inartistically stated in the form of conclusions of law. Aside from the fact that
the ruling excluding the ballots was not at all placed upon the insufficiency of the pleading, it
appears that upon the motion to quash, which amounted to a demurrer, the court held the
complaint sufficient. Having done this, justice requires that an appellate court should also
treat it as sufficient, as otherwise the pleader would lose all right of amendment.
In the case at bar the court ruled that the plaintiff's complaint was sufficient, but that the
plaintiff must prove that ballots were called and counted for Bray which should have been
counted for Schneider, and ruled that the ballots were utterly immaterial as evidence to
prove these alleged facts. The ruling that the ballots were immaterial, and the ruling
excluding them as evidence, and the order dismissing the case are error; and such ruling and
order and the judgment of the district court should be reversed.
It is so ordered.
____________
22 Nev. 280, 280 (1895) Ex Parte Gardner
[No. 1427.]
Ex Parte JAMES H. GARDNER, Petitioner for Writ
of Habeas Corpus.
(Syllabus by Bigelow, C. J.)
1District Court, No Power to Transfer Case from Another County.The district court of one county has no
power to make an order that an action pending in the court of another county shall be transferred to the
first named court. Such an order is void, and gives the court no jurisdiction of the action.
2Court, No Jurisdiction, Orders Made by, Void.Where a court has no jurisdiction of an action, any order it
may make in such action is equally without jurisdiction, and void.
3ContemptHabeas Corpus.It is not a contempt of court to fail to comply with an order which the court
had no jurisdiction to make, and a party imprisoned for a contempt committed under such circumstances
will be discharged upon habeas corpus.
Original proceeding. Application for writ of habeas corpus.
Torreyson & Summerfield and J. R. Judge, for Petitioner:
There are three essential elements in this proceeding requisite to render the conviction in
this case valid: (1) Jurisdiction over the person of the defendant. (2) Authority of the court to
render the particular judgment. (3) Jurisdiction of the subject matter. If either of these
elements are lacking, the judgment is fatally defective. (Browne on Jurisdiction, sec. 110, p.
294; Hahn v. Kelly, 34 Cal. 391; Kline v. Kline, 57 Iowa, 386; Freeman on Judg., sec. 120, 2d
ed.; Browne on Juris., sec. 10, note 1, p. 24, sec. 11, p. 25, sec. 1, pp. 3, 4, sec. 6, p. 16, note
1; Woodworth v. Allen, 4 Allen, 321.)
The record must show that petitioner had possession or control of the child. (15 Abbott's
Prac., N. S. 430; 6 Cal. 318.)
In proceedings in habeas corpus the inquiry is: Was the court empowered to make the
order? Did it make the order and was obedience possible? If obedience was impossible and
the contempt consisted of non-performance, not the result of defendant's acts, willfully done
after notice of the order had been given or received by him, then the order itself was
improvident. (Browne, p. 312, and cases cited in note 1.)
If the court in a proceeding for contempt state the facts upon which it proceeded, a revising
court or tribunal may on habeas corpus discharge the party, if it appear that the facts do not
amount to a contempt, and in this case we claim that the facts shown and attempted to be
stated do not warrant the judgment. (Church on Habeas Corpus, sec. 340.)
If the record shows a want of jurisdiction the judgment is void and the prisoner will be
discharged on habeas corpus. (Ex parte Grace, 12 Iowa, 208; Ex parte Godin, 67 Mo. 641;
Cooper v. People, 13 Col. 337; Ex parte Degeners, 30 Tex. App. 566.)
If a court, judge or tribunal having no jurisdiction of the person or subject matter sentences
a person for contempt, such person may be released by any court having authority to issue
writs of habeas corpus.
such person may be released by any court having authority to issue writs of habeas corpus.
(Ex parte Perkins, 29 Fed. Rep. 900; Ex parte Fisk, 113 U. S. 713; Coleman v. Mayor, 34
Tex. 668; Ex parte Hollis, 59 Cal. 405; Cuddy, Petitioner, 131 U. S. 280.)
Courts will inquire into the regularity of the commitment, and if necessary go behind the
commitment in order to ascertain if there is sufficient grounds for the arrest, detention and
imprisonment. (Church on Habeas Corpus, sec. 230; Ex parte Jenkins, 2 Wall. 521; Walls v.
Whitney, 114 U. S. 546; 4 Mackey, 38; Ex parte Willoughby, 14 Nev. 451; Ex parte Hollis, 59
Cal. 405; 106 N. Y. 604; In re Simon, 13 N. Y. Supp. 399.)
Admitting that the court had jurisdiction to render a judgment and also jurisdiction of a
person, then did the court have jurisdiction of the subject matter? We contend that it did not.
Mr. Black in his dictionary, p. 1130, defines subject to be the thing in controversy or the
matter spoken of or written about. Mr. Kinney, at page 637, defines it to be the matter
under consideration or in dispute. Mr. Anderson, page 983, defines it to be the cause of
action, the thing or matter spoken of, written about or legislated upon the thing or object in
controversy or in dispute.
The subject matter of the order for disobeying which the petitioner was adjudged to be in
contempt was the child Amyleta Frances Gardner, and the record on the return to the writ
shows that she was not, at the time of the making of the order, within the jurisdiction of the
court, nor had she been within the jurisdiction for ten days prior to the making of the order.
Proceedings for contempt are never retroactive so as to include acts performed before the
existence or making of the order which is claimed to have been thereby violated. (Wells on
Jurisdiction, sec, 192; Dunham v. State, 6 Clarke, 253; Witter v. Lyon, 34 Wis. 575.)
It is improper to remove a child from the jurisdiction of the court, but this is not contempt
unless in defiance of an express order. (Stewart on Marriage & Divorce, secs. 103, 106; 76 Ill.
399, 409-17; 57 Wis. 206, 221-22.)
William Woodburn, for Respondent.
(No brief on file.)
By the Court, Bigelow, C. J.:
The wife of petitioner brought an action against him for a divorce in the district court of
Lyon county. The complaint also asks for the custody of the infant child of the parties.
On January 26, 1895, while the action was pending in Lyon county, the district court of
Ormsby county made the following order: Ida L. Gardner v. James H. Gardner. In this
entitled cause, and by consent of William Woodburn, Esq., counsel for plaintiff, and J. D.
Torreyson, Esq., of counsel for defendant, it was ordered that the cause herein be, and the
same is hereby, transferred from the county of Lyon to the county of Ormsby, State of
Nevada, and set for hearing February 12, 1895.
On February 12th, while the trial of the action was progressing before the court in Ormsby
county, the attorney for the plaintiff, upon certain affidavits, asked an order of the court
directing the defendant to deliver the custody of the child to the plaintiff during the pendency
of the case, and an order was made to that effect. This order not having been complied with,
on February 14th the court ordered the defendant to produce the child in court at 3 o'clock of
that day. By subsequent orders the time for doing this was extended until February 23d, when,
the defendant failing to produce the child, the following order was made: Ordered that the
defendant, James H. Gardner, is guilty of contempt of court, and that he be confined in the
Lyon county jail, Lyon county, State of Nevada, until he produces his child in court in
compliance with an order heretofore made.
Subsequently an order was issued, purporting to be made in the district court of Lyon
county, but certified by the clerk of Ormsby county to be a copy of the judgment of contempt
on file in his office, directing the sheriff of Ormsby county to arrest the petitioner, and deliver
him to the sheriff of Lyon county, where he was to be confined until he should produce the
child. Under this order he has been arrested by the sheriff of Ormsby county, and from his
custody he now asks to be discharged.
As so often decided, the only question we can consider upon this application is whether
the district court of Ormsby county, which really made the order for the petitioner's arrest
and confinement {although there seems to be some uncertainty in the orders as to which
court the action was then pending in), had authority or jurisdiction to do so.
upon this application is whether the district court of Ormsby county, which really made the
order for the petitioner's arrest and confinement (although there seems to be some uncertainty
in the orders as to which court the action was then pending in), had authority or jurisdiction to
do so. We are of the opinion that it did not. Notwithstanding that Lyon and Ormsby counties
are both in the same judicial district, the courts of those counties are still separate and
distinct. The only thing they have in common is that the same judge presides over both. A
judicial district is simply a political division, provided for by the constitution, but arranged by
the legislature, for the purpose of economizing in the number of judges. In fact, the inclusion
of any two counties in the same district may almost be said to be accidental.
The judge alone does not constitute a court. Burrill defines the term thus: A court' may
be more particularly described as an organized body with defined powers, meeting at certain
times and places for the hearing and decision of causes and other matters brought before it,
and aided in this, its proper business, by its proper officers, viz.: Attorneys and counsel to
present and manage the business, clerks to record and attest its acts and decisions, and
ministerial officers to execute its commands and secure due order in its proceedings.
Proceedings at another time and place, or in another manner than that specified by law,
though in the personal presence and under the direction of a judge, are coram non judice, and
void. (State v. Roberts, 8 Nev. 239; Wightman v. Karsner, 20 Ala. 446; Brumley v. State, 20
Ark. 77.) It follows that the district court of Lyon county could not possibly have had any
authority to sit as a court in Ormsby county, even supposing it had attempted to do so. Section
21 of the practice act (Gen. Stats., sec. 3043) provides that the court may on motion change
the place of trial. This, of course, means the court where the action is pending. It is not
possible for one court to reach out and draw to itself jurisdiction of an action pending in
another court, even when done with the consent of parties; for that would be to confer
jurisdiction by consent, which, so far as subject matter is concerned, can never be done.
Not having jurisdiction of the action, it had no jurisdiction to order the defendant to
produce the child.
tion to order the defendant to produce the child. (Walton v. Develing, 61 Ill. 201; In re Ayers,
123 U. S. 443; Piper v. Pearson, 2 Gray, 120.)
Having no jurisdiction to make the order, it was not a contempt for the petitioner to fail to
comply with it. Mr. Spelling, in his work on Extraordinary Relief (sec. 1243), says: Where a
court attempts by its process of contempt to punish a party for his refusal to comply with an
order which that court had no authority to make, the original order being void for want of
jurisdiction, the order punishing for contempt is also void, and, if the proceeding for contempt
result in imprisonment, the prisoner may be discharged by another court on habeas corpus.
See, also, Rap. Contempt, sec. 16.
It is ordered that the petitioner be discharged.
____________
22 Nev. 285, 285 (1895) State v. Vaughan
[No. 1416.]
THE STATE OF NEVADA, Plaintiff and Respondent, v.
ALPHEUS VAUGHAN, Defendant and Appellant.
1Juror, Challenge for Implied Bias, Insufficient.A challenge to a juror upon the ground of implied bias is
insufficient. The particular ground of a challenge must be specified.
2Challenge, Allowed, No Ground for Exception.The allowance of a challenge to a juror is not the subject of
an exception.
3Dying Declarations, When Admissible.Where the evidence shows that at the time of making dying
declarations the deceased had no hopes of recovery from the wound he had received, the declarations are
admissible. His condition of mind may be shown by statements made both before and after the
declaration.
4Evidence, Error, How Cured.Where, upon the state's motion, certain evidence was stricken out, but
subsequently the motion was withdrawn, and the jury informed by the court that the evidence would stand
as evidence in the case, any error in the former ruling is cured.
5SameAssault Upon Others by Deceased.In a case involving the question of self-defense, where
defendant claimed that deceased began the fatal affray, evidence tending to prove that at another time
than the homicide deceased had attempted to shoot the brothers of defendant was stricken out: Held, no
error.
6SameReputation of Deceased.Where, in such a case, the defendant had introduced testimony tending to
prove that the deceased had a quarrelsome, turbulent and violent disposition; that he had once wantonly
shot at defendant, and at the time of the homicide was making a murderous attack upon him: Held, that
this was such an attack upon the character of deceased as authorized the state to
introduce evidence that the reputation of deceased for peace and quietness was
good.
that this was such an attack upon the character of deceased as authorized the state to introduce evidence
that the reputation of deceased for peace and quietness was good.
7SamePresumption.Upon the trial of the case there was a question as to whether deceased was
accidentally at the place where the homicide occurred, or had gone there for the purpose of preventing
defendant from passing through a fence. The mother of the defendant testified that the day before, in the
presence of the young sister of deceased, she had stated that her son would go to a certain mine the next
day, which might have taken them past the place. There was no evidence that the girl had communicated
this information to deceased, and upon this ground the testimony was stricken out: Held, no error, as
there was no presumption that it had been communicated, and, unless it had, it cut no figure in the case.
8Malice AforethoughtHow Established.The jury were instructed that to constitute malice aforethought it
was only necessary that there should be a formed intention to kill; that malice aforethought means the
intention to kill: Held, error, as malice is an inference to be drawn from all the facts in the case, and is not
established by mere proof of an intentional killing, for there may be an intentional killing in justifiable
self-defense, or where the crime only amounts to manslaughter.
9InstructionIrrelevantWhen Prejudicial.The father of deceased owned a ranch through which a road
ran, across which he had placed gates. Defendant claimed this to be a public road, and when passing
through it he refused to shut the gates. This led to difficulties and a feeling of hostility between defendant
and deceased. The court instructed the jury that a person passing through gates in fences enclosing fields
without again shutting them was guilty of a misdemeanor: Held, that this instruction was upon a point
irrelevant to the case, and that it was prejudicial to defendant, in that its only effect was to show that the
defendant had committed another crime in regard to the controversy between deceased and himself.
10Improper Instruction Not Cured by Others Though Proper. Although the law concerning self-defense and
manslaughter is correctly laid down in other instructions, and the law concerning malice is correctly
stated in another instruction, it does not cure the error contained in the instruction wherein malice
aforethought is improperly limited and defined.Rep.
11Evidence of Collateral Occurrences, Materiality Of.The main question for the jury was whether the
defendant acted in self-defense or not. What occurred at the fatal place was the central point, and
evidence of collateral occurrences was material only in so far as it tended to throw light upon what took
place there.Rep.
Appeal from judgment on verdict of murder in the first degree and order overruling motion
for new trial, from District Court of Lander county; A. L. Fitzgerald, District Judge.
James F. Dennis and J. H. Macmillan, for Appellant:
The first point relied on by the appellant is: That the challenges to the jurors C. W. Hilkey,
John Tallack, D. McCloud, George Schutes, O. J. Heath and John Thorpe should have been
allowed, and to deny either one was a fatal error.
There are but two cases which we deem it necessary to cite in support of this contention:
State v. McClear, 11 Nev. 39; State v. Murphy, 37 Pac. Rep. 420. The case of State v.
Murphy was rendered by Dunbar, C. J., and concurred in by a full bench of the supreme court
of Washington. It is useless to quote from these cases as they are full of the doctrine. The
record shows that defendant asked for and was denied the privilege of an extra peremptory
challenge, when in fact he was entitled by reason of the court denying his challenges to six
extra peremptory challenges.
The second point is that juror Rapley was a qualified juror in every way. We acknowledge
that it seldom is error to excuse a juror, but in this case, we desire the attention of the court to
the fact that when the State interposed a challenge, very little grounds were needed to have
the challenge sustained; but when the defendant interposed a challenge no opinion, however
strong, was sufficient to support the challenge.
The third point is that the dying declaration of Willie Litster was not admissible under the
defendant's (appellant's) objections. It was not made to appear that Willie Litster had any
prospect of almost immediate dissolution, and that is the test. (1 Greenleaf on Ev., sec. 158
and note 3; Stevens' Digest on Ev., art. XXVI.)
The only foundation for the introduction of this evidence, is at the time it was introduced,
he said he was going to die, and he knowed he was going to die. Is it not a fact that we are
all going to die, and that we all know we are going to die? But we do not know when, where,
or of what cause. There never was a dying declaration admitted on such a foundation.
It was error for the court to strike out the latter part of the sheriff's testimony. If any part of
the statement was admissible, it was all admissible, and the jury were the ones to judge of
its truth and weight.
admissible, it was all admissible, and the jury were the ones to judge of its truth and weight. It
was an admission, and all of it, or none of it, should have gone to the jury. (Sackett's
Instructions to Juries, p. 641; Conner v. State, 34 Tex. 659; Roscoe's Crim. Ev. 55; Rilly v.
State, 4 Tex. App. 538; Riland v. State, 53 Ala. 322; State v. Hollinscheit, 61 Mo. 302.) And
Sackett says, at the above-named place: Where the verbal admission of a person charged
with crime is offered in evidence, the whole of the admission must be taken together.
The question asked Charles Vaughan, about defendant's (appellant's) intention with regard
to the shooting, was a proper question, and that, therefore, the court erred in ruling it out;
right at the time the shooting transpired what was said was competent and part of the res
gestae. Charles Vaughan should have been permitted to answer the question: Were you in
the habit of shutting these gates or not?
The answers of Charles Vaughan were made under duress at the coroner's jury, and he
should not have been compelled to answer on or about them. (Fifth Amendment to Const. U.
S.; Rev. Stats. U. S., sec. 860; Counselman v. Hitchcock, 12 Sup. Ct. Rep. 195; 142 U. S.;
Sup. Ct. Rep. 547.)
The question: What religious denomination do you belong to? should never have been
answered. It was sectarian. The question asked by the defense was general and touched the
old common law qualifications of the witness' reliability, but whether he was protestant or
catholic, or how he worshiped God, has never been admissible. Do you believe in God, the
immortality of the soul, the reward and punishment for deeds done in this life? are always
pertinent and admissible. (1 Greenleaf on Ev., note 2, sec. 370, etc.)
I was afraid of my life of him (Willie Litster). State, from your observation of Willie
Litster, what his general disposition was. This question should have been allowed, to show
how the defendant regarded him. The jury are the judge of the defendant's theory of
self-defense, and in order to do so the defendant should have been allowed to testify what
feelings operated upon his mind and the cause which produced such effect. Whether it was
reliable or the truth, the jury was to judge of its reliability and weight, and the same rule
applies to the threats and shot.
the jury was to judge of its reliability and weight, and the same rule applies to the threats and
shot.
The testimony about Lizzie Litster hearing that the Vaughan boys were going to mine the
next day should have been left in the case. A girl 12 years of age knowing of the feelings
which existed between the families would be sure to go home and tell it, and at any rate, the
jury should have been left to judge of it.
The testimony as to Willie Litster's character for peace and quiet should never have been
allowed in the case. It had never been attacked.
The court takes out of the case the doctrine of self-defense by instruction No. 2, and does
not say that the indictment might include justifiable homicide.
The court takes out of the case the doctrine of self-defense by instruction No. 4, and says
that the presumption that the killing is malicious unless the same proof that establishes the
killing shows mitigation, to the exclusion of any other proof, which, under the law, would be
sufficient, no matter from whence it comes.
By instruction No. 5 the jury are told that they must find the defendant did voluntarily and
unlawfully kill William Litster, or that he was not guilty. No intermediate course was left to
them. We say such an instruction is not law and misled the jury and prohibited them from
bringing in any verdict but murder in the first degree, or that the killing was justifiable.
Instruction No. 6 misstates the law and tells the jury that it must appear that the
circumstances were sufficient to excite the fears of a reasonable person. We say that it must
have appeared to the defendant as a reasonable person that the circumstances were sufficient
to excite his fears as a reasonable person, placed as he was at the time.
Instruction No. 8 is misleading in not going far enough and giving the whole section 4582,
Com. Laws of Nevada.
Instruction No. 11 takes the doctrine of self-defense out of the case entirely and says that
a killing which is intentional is willful, if the intention to kill has been formed, etc., etc., will
be murder in the first degree. Now, every one who shoots in self-defense has the intention to
kill formed before he shoots, and yet no one will say it is murder if done in self-defense.
he shoots, and yet no one will say it is murder if done in self-defense.
Instruction No. 14 is in the teeth of the statute, and should not have been given, because
the statute says no other definition of a reasonable doubt is to be given but the statute.
Instruction No. 16 draws the attention of the jury to the testimony of the defendant and so
does No. 13, and presents to the jury his testimony alone and not in conjunction with others,
and, therefore, was not correct.
Instruction No. 17, also, takes out of the case the doctrine of self-defense and says that
there need be only the intention to kill and never mentions the words and not in necessary
self-defense.
Instruction No. 18, also, eliminates the doctrine of self-defense and says that malice
aforethought means the intention to kill; and when such means are used as are likely to
produce death, the legal presumption is that death was intended. This language conveys the
idea that the intention to kill manifests malice no matter how much danger the slayer was in,
at the time, from the person killed, and is not law.
Instruction No. 19 is not applicable to the case and is not the law. On the contrary it is
unlawful to fence up the public domain by settlers.
Instruction No. 21 again picks out the defendant and his witnesses to the jury, and says if
he or any witness for him have sworn falsely, you may disbelieve them. Such picking out of
the defendant and his witnesses, and constantly holding him or them up to the jury takes the
place of bold assertion; that the defendant is not to be believed, nor are his witnesses to be
relied upon.
The court tells the jury Rask may be believed, although he acknowledged to perjuring
himself before the coroner's jury, the committing magistrate and the grand jury, and that he
lied in the district attorney's office. Yet the court tells the jury they may believe him, but does
not say if you believe he has lied or sworn falsely, you may reject his testimony.
Instruction No. 24 totally ignores all kind of provocation which might reduce it to murder
in the second degree, or manslaughter, and just says: If he did the killing not in necessary
self-defense, it would constitute murder in the first degree."
necessary self-defense, it would constitute murder in the first degree.
These instructions are biased, one-sided and misleading, and no instruction which is
misleading is cured by an instruction which gives the law correctly afterwards. This rule is
clearly set forth in the case of People v. Berlin, 35 Pac. Rep. 499, and authorities therein cited
in the dissenting opinion of Smith, J., and on rehearing concurred in by Merritt, C. J., and
made the opinion of the court. The rule that when a charge is erroneous in one part, and
injurious to a defendant, the mere stating of a correct rule in another part does not cure it, is
established by every authority entitled to respect. (Brown v. McAllister, 39 Cal. 577; Aguirre
v. Alexander, 58 Cal. 21; Fredrick v. Allgair, 83 Mo. 602; Knowlton v. Fritz, 5 Ill. App. 217;
R. R. Co. v. Monroe, 47 Mich. 152; 10 N. W. 179; Phillips v. Jamieson, 51 Mich. 153; 16 N.
W. 318; Murray v. Com., 79 Pa. St. 311; Thompson's Trials, sec. 2326.)
We believe that there are many errors in the case, which is noticed in our bill of
exceptionsin fact, the record bristles with thembut feel confident that each of the many
we have herein pointed out, would in itself, be sufficient error to reverse the case.
Robt. M. Beatty, Attorney-General, and W. D. Jones, District Attorney of Lander county,
for Respondent:
The first point relied upon by appellant is that the challenges to the jurors Hilkey, Tallack,
Thorpe and others should have been allowed. They fail to show that John Thorpe was the
only juror named who served on the jury. This is true, however, for Thorpe is the only one of
the jurors complained of that served upon appellant's jury, Hilkey, Tallack and others having
been peremptorily challenged by appellant. Thorpe was challenged by appellant for implied
bias, which was overruled by the court. After this proceeding as to Thorpe, and before the
jury was sworn, appellant exercised three peremptory challenges, being apparently satisfied
with Thorpe as a juror. The challenge to Thorpe, Hilkey, Tallack and others complained of
were all challenges for implied bias. The statutes of this state (Gen. Stats. 4220, amended
1889, 83) permit a challenge for one or more of nine causes.
lenge for one or more of nine causes. In the challenge to Thorpe appellant failed to name
any one of the statutory causes. In State v. Gray, this court said: If the challenge be
considered as made for implied bias it was properly overruled, because it does not set forth
any ground upon which a challenge for implied bias may be made. (State v. Gray, 19 Nev.
212, et seq.; 12 Cal. 492; 16 Cal. 130; 4 Denio, 31; 2 Green (N. J.) 195; 37 Cal. 258, 277; 41
Cal. 429; 2 Nev. 231; 6 Nev. 327; 11 Nev. 106.)
These authorities are ample to dispose of the challenges; they are conclusive, but on the
principle that the last should be the strongest and to clinch the point we cite Gen. Stats. 4222:
In a challenge for implied bias, one or more of the causes stated in section three hundred and
forty (4220) must be alleged. The defendant had the power and the right to use his
peremptory challenges as he pleased; he was free to use or not to use them, as he thought
proper, but having resorted to them they must be followed out to all their legitimate
consequences. (Freeman v. People, 47 Am. Dec. pp. 228-9; 47 Am. Dec. 238; 2 Keyes, 243;
54 Barb. 341; 6 Park. (N. Y.) 199.) He thereby voluntarily blots out all error, if any occurred,
in overruling the challenges for cause, and cannot be heard to allege any exception as to those
jurors.
In accepting Thorpe while the accused had unused peremptory challenges he is estopped
from complaining that Thorpe was not impartial. (Spies v. People, 3 Am. St. Rep. 320.)
As to juror Schutes his case was doubly cured, for before he was peremptorily challenged
he was challenged for actual bias. Triers were appointed who found the challenge untrue,
which was final as to his qualifications as a juror in the case. (Gen. Stats., sec. 4231; State v.
Gray, 19 Nev. 213; 49 Cal. 166.)
The second point made by appellant is that the juror Rapley was a qualified juror in every
way. Counsel admit that it is seldom error to excuse a juror on challenge. The supreme
court of California in People v. Murphy, 45 Cal. 137, say: The action of a trial court in
allowing a challenge to a juror for implied bias is not open to review.
The defendant peremptorily challenged Schutes. The decision of the triers is final (Gen.
Stats. 4231), and it "is not subject to exception or review upon appeals."
is not subject to exception or review upon appeals. (State v. Gray, 19 Nev. 213.)
The juror Thorpe was a qualified juror under State v. Millian, 3 Nev. 430; 16 Cal. 162; 18
Conn. 166; 9 Fla. 215; 24 Ga. 297; 18 Ga. 333; 45 Ga. 225; 3 Gilman, 368; 7 Ind. 332; 53 N.
Y. 164; 2 Dev. & Bat. 196; 42 Tex. 377.
Where a juror states that he has an opinion that it would take evidence to remove, yet, if it
appear that he could discard that opinion, and render an impartial verdict without being
influenced by the opinion, he is not disqualified. (People, ex rel. Phelps, v. Oyer & Termine,
83 N. Y. 436, affirming 19 Hun. N. Y. 91; 94 Ill. 305; 48 Cal. 253; 49 Cal. 174; Kumli v. S.
P. Co., Sup. Ct. of Or., vol. 28, p. 673, followed the sound doctrine laid down by Chief
Justice Marshall, 1 Burr's Trial, 416.)
Before a juror is disqualified his opinion must be a fixed, absolute, positive, definite,
decided, substantial, deliberate, unconditional one. The rule is almost universally laid down
by these words or words of similar import. A conditional, hypothetical, contingent,
intermediate, floating, indefinite, uncertain opinion will not do. (Schoeffler v. State, 3 Wis.
823; People v. Bodine, 1 Denio, 281; Staup v. Com., 74 Pa. St. 458; Willis v. State, 12 Ga.
444; Quiander v. Com., 3 Leigh, 780; Stout v. People, 4 Parker's Crim. Rep. 71; 1 Thomp.
Tr., sec. 78; Kumli v. S. P. Co., 28 Pac. 639; Com. v. McMillian, 22 At. Rep. 1029; People v.
McGonegal, 17 N. Y. Supp. 147.)
The case of State v. Murphy, 37 Pac. 420, cited by appellant, is not in point here. In that
case, when appellant was forced to take juror Kile, defendant's peremptory challenges were
all exhausted. State v. McClear, 11 Nev. 39, does not support the contention of appellant. The
dying declarations of Willie Litster, the deceased, were clearly admissible. (1 Bishop Crim.
Proc., 3d ed., 212, sec. 1; People v. McLaughlin, 44 Cal. 435; People v. Vernon, 35 Cal. 49; 1
Greenleaf's Ev., sec. 156, 158; Wharton's Crim. Ev., 276; Swisher v. Com., 21 Am. Rep.
330-331.)
The foundation for the dying declarations of deceased was fully laid. (9 Nev. 394; 21 Am.
Rep. 330-337; State v. Wilson, 36 Am. Rep. 257; 36 Am. Rep. 294-6; 1 Greenleaf's Ev., sec.
158 and note 2, p. 184; 1 East's P. C. 357; 1 Starke Ev. 523; Bull's Case, 14 Pratt, 613.)
In State v. Streeter, 20 Nev. 403, this court held: Objections to questions asked a witness
and ruled out by the court become immaterial and will not be considered in the appellate
court where it affirmatively appears that the witness was afterward allowed to answer
questions of the same import.
It was not error to ask Nick Rast the question: What religious denomination do you
belong to? It was brought out by the defendant.
We notice that in copying the instructions into the bill of exceptions counsel have made a
few errors and omissions. We suggest that the court use the instructions in the record that
were copied by the clerk, as they are free from error. In No. 14 counsel for appellant omit the
word mathematical entirely. The appellant alleges error in each of the twenty-seven
instructions given on behalf of the state, but argue only fifteen, and we take it that they waive
objection to those they do not argue.
We are unable to find any error in any of the instructions. From Nos. 1 to 14, inclusive,
were given by Judge Beatty in State v. Anderson, 4 Nev. 465, and by that judge in every
murder case tried before him until he left the nisi prius bench, and after that these same
instructions were given by Judges Boalt and McKenney for all the years they were judges,
and not one of those fourteen instructions have ever been unfavorably criticized by this court,
although presented to it on appeal times without number.
Instruction 15, immediately following 14, gives the statutory definition of reasonable
doubt verbatim, and this was the only definition of reasonable doubt given in the case. (State
v. Potts, 20 Nev. 389.) No. 16 is statutory; it is a copy of our statutes of 1889, p. 27, chap. 21.
Nos. 17 and 18 each state the law of this state. No. 19 is statutory. (Stats. 1891, p. 36, chap.
36.) No. 20 is not argued. No. 21 states the law correctly, and so does No. 22. No. 23 is not
argued. There is no error in No. 24; it clearly says: If from the evidence you believe that
Alfred Vaughan killed Willie Litster, * * * not in necessary self-defense, but with malice
aforethought, willfully, deliberately and premeditatedly, * * * then such killing would
constitute murder in the first degree, and you should find this defendant guilty thereof.
We ask the court to read the instructions given on behalf of defendant.
of defendant. There are twenty-nine of them and they are each fair and favorable to him. His
counsel sought and obtained every legal principle and definition known to the law to avoid to
him the awful consequences of his premeditated, willful and deliberate act of feloniously
slaying Willie Litster.
If the evidence in this case does not justify the verdict, this court will never be called upon
to review a case where it does. [Evidence reviewed at length.]
The law in its majesty demands that just punishment be meted out to Alfred Vaughan for
the killing of Willie Litster. He who shall, without authority of law, and with malice
aforethought, either express or implied, kill a human being, shall be deemed guilty of murder
in the first degree. Alfred Vaughan so killed Willie Litster; he has been duly convicted of that
crime.
The defendant was convicted of murder in the first degree for the killing of William
Litster, Jr. At the time of the homicide the defendant was 21 years of age, and the deceased
16. For some time prior to the killing, there had been trouble between the family of defendant
and the family of deceased. This seems to have been greater between defendant and deceased
than between the other members of the families, and was principally concerning the right to
free passage through a ranch owned and possessed by the father of deceased, situated in
Boone Caon, some four or five miles above the ranch owned by the father of defendant. The
Litster ranch was inclosed with a wire fence, which crossed the road running up the caon,
gates being put in at the crossings. The Vaughans claimed this to be a public road, and
sometimes, when passing along it, they left these gates open.
On the morning of the day of the homicide, the defendant, his brother Charles, and a hired
man started, with a team loaded with supplies, to go to a mining claim owned by them in the
hills or mountains above the Litster place, which they intended working. They passed into the
Litster ranch through the lower gate, and up through it, nearly to the upper side, where they
turned off the main road for the purpose of taking a road up a side caon known as "Water
Caon," which ran in the direction of the mine.
purpose of taking a road up a side caon known as Water Caon, which ran in the direction
of the mine. A few rods from where they turned off they came to a division fence crossing the
road, and through which it was necessary for them to pass. There was no gate in this fence,
but there was a place where the wires had been previously taken apart by people passing
through, though the gap was then closed. At this point they met the deceased and an elder
brother, who objected to their passing through the fence. In the difficulty which ensued both
the Litsters were killed by the defendant with a Winchester rifle, the brother dying
immediately, and William living but a few hours. As to this difficulty the testimony differs
widely; that of the state tending to show a willful and unprovoked murder by the defendant,
and that upon the part of the defendant that the Litsters were making a violent assault upon
him, one with a pistol, and the other with an axe, and that, to save his own life, he was
compelled to shoot them.
1. Several errors are assigned upon the court's rulings denying the defendant's challenges
to trial jurors who were challenged on the ground of implied bias. This is not such a
challenge as the statute requires. The term implied bias covers nine different grounds of
challenge. (Section 340 of the act regulating criminal proceedings, Gen. Stats., sec. 4220.)
Gen. Stats., sec. 4222, provides that, in a challenge for an implied bias, one or more of the
causes stated in section 340 must be alleged. This was not done, and consequently the
challenge was insufficient to raise any point for the consideration of this court. (State v. Gray,
19 Nev. 212, 218; State v. Raymond, 11 Nev. 98, 106.)
2. It is claimed that the evidence shows the juror Rapley to have been a qualified juror,
and, consequently, that the court erred in excusing him upon a challenge by the state. But the
right to reject does not include the right to select jurors. If the defendant was tried by an
impartial jury, that is all he has the right to demand; he has no vested right to be tried by some
particular juror. Besides, the action of the court in allowing challenges is not made the subject
of an exception. (State v. Larkin, 11 Nev. 314, 325; State v. Pritchard, 15 Nev. 74, 79.)
3. The third point is that the dying declarations of the deceased were not admissible, for
the reason that no sufficient foundation had been laid; that it did not appear that they
were made under a prospect of "almost immediate dissolution."
deceased were not admissible, for the reason that no sufficient foundation had been laid; that
it did not appear that they were made under a prospect of almost immediate dissolution.
The evidence shows that the boy was shot about 11 o'clock in the forenoon; that he fell at the
place where shot, or very near it, and lay there until carried to the house, where he died about
4 o'clock that afternoon; that he suffered greatly from the wound, and stated that he was
going to die, and he knew he was going to die right away; that he refused to take medicine,
saying there was no use to take it; there was nothing could do him any good. A physician had
been sent for, but he said he would be dead before the doctor could see him, and, in fact, did
die before his arrival. This evidence was uncontradicted, and, if not sufficient foundation for
the admission of the declarations, we are unable to see what would be. The fact that these
statements that he expected to die were not all made prior to his first relation of the
circumstances of the homicide is immaterial. The circumstances were told several times after
they were made, and, in fact, the only figure these statements cut is to show that his relation
of the circumstances was made under the expectation of impending death. They show that
from the first he had no hopes of recovering, and that is sufficient.
4. The officer who arrested the defendant, testifying in the case, was asked what the
defendant said at the time of the arrest, and replied: Alpheus Vaughan said, I shot Willie
Litster;' I think it was in self-defense.' The prosecution moved to strike out the later part of
this answer, presumably the part stating that the shooting had been done in self-defense, and
the motion was granted. Subsequently, however, on the same day, the prosecution asked to
withdraw the motion, and that the whole answer be permitted to stand. The court thereupon
informed the jury that the objection to the testimony had been withdrawn, and that the entire
answer was before them as evidence in the case. We see no reason to doubt that this cured the
error in the first ruling, and it is unnecessary to consider it further.
5. Charles Vaughan testified that about a year prior to the homicide, while he and another
brother, Frank Vaughan, were working at the mine, the two Litster boys had shot at them
twice, apparently either wantonly or for the purpose of driving them away.
ing them away. This evidence was, upon motion by the prosecution, stricken out. While the
practice of admitting testimony without objection, and then moving to strike it out, is one not
to be commended, particularly when done by the state in a criminal case, where about the
only effect of striking it out is the additional chance of making an error, we do not think that
the court erred in the ruling here. Evidence of collateral matters should only be admitted
when it has some tendency to throw light upon the circumstances surrounding the killing.
This is the principle upon which threats, previous attacks, etc., made by deceased upon the
defendant, are admitted. Ordinarily, assaults made upon a third person by deceased could only
bear upon his general character or disposition, and as to that it is only evidence of general
reputation, and not of particular actions, that is admissible. We do not think the evidence
shows such a feeling by deceased against Charles and Frank Vaughan and the defendant
jointly as should alter this rule.
6. The prosecution was permitted in rebuttal, over the defendant's objections, to introduce
testimony to prove that the character of deceased for peace and quietness was good. It is
argued that this was error, because his character had not been attacked. But there may be such
attacks made as will authorize the admission of evidence of good character without any
witness having testified directly that the reputation of the attacked party was bad, and that
seems to be the case here. The defendant, and others in his behalf, had testified to many facts
tending to show that the deceased possessed a quarrelsome, turbulent and violent disposition;
that he was in the habit of using very bad language towards the defendant and his family; that
he had frequently made threats against them, including defendant; that upon one occasion he
had wantonly shot at him, and at the time of the homicide was making a murderous assault
upon him. We think this was equivalent to proving his character as a quarrelsome, turbulent,
and violent boy, and fully justified the admission of the evidence of good character in
rebuttal. (Davis v. People, 114 Ill. 86, 95; Bowlus v. State, 130 Ind. 237; Fields v. State, 134
Ind. 46; Russell v. State, 11 Tex. App. 296: Everett v. State, 24 S. W. 505.)
7. The mother of defendant testified that, the day before the homicide, she had been at a
neighbor's house, and there stated, in the presence of a sister of deceased, about 10 years
of age, that her sons were going to the mine the next day.
the homicide, she had been at a neighbor's house, and there stated, in the presence of a sister
of deceased, about 10 years of age, that her sons were going to the mine the next day. No
objection was made to this testimony when offered, except that the attorneys for the state
stated that they reserved the right to move to strike it out if not properly connected. At the
close of defendant's case, they made this motion, upon the ground that it did not appear that
the girl had told her brothers of what she had heard, and the evidence was stricken out. It is
now contended that this ruling was wrong, because the jury might have inferred that she had
done so. But, before evidence of one fact should be admitted as presumptive evidence of
another fact, there should be some usual and recognized connection between them. This does
not exist here. The information may have been communicated, or it may not. There is as
much probability one way as the other. At the best, the deduction would be a mere guess,
which is not permissible. (1 Greenl. Ev., 15th ed., sec. 13, note; Douglass v. Mitchell, 35 Pa.
St. 440; Manning v. Insurance Co., 100 U. S. 693.)
8. The Catechism of the Christian Doctrine was improperly admitted in evidence, but it
was so entirely immaterial that it could not have influenced the verdict in any way, and
consequently the error was harmless to the defendant.
9. As already stated, the defendant admitted the killing by shooting with a rifle, but
claimed it had been done in self-defense. Under these circumstances, the issues before the
jury were (1) whether this defense had been made out; (2) if not, of what degree of crime the
defendant was guilty. It was in the power of the jury to find him guilty of murder in the first
degree, murder in the second degree, or of manslaughter. It consequently became highly
important that correct instructions defining the distinctions between these different degrees
should be given. In the second instruction the court informed the jury that murder is the
unlawful killing of a human being with malice aforethought, either express or implied, which
is correct. But in the eighteenth instruction, in attempting a definition of malice aforethought,
this language was used: The use of a dangerous weapon under a provocation by words only,
or under no provocation, is always evidence of malice aforethought. To constitute malice
aforethought, it is only necessary that there be a formed intention to kill.
constitute malice aforethought, it is only necessary that there be a formed intention to kill.
Malice aforethought means the intention to kill; and, where such means are used as are likely
to produce death, the legal presumption is that death was intended. This, we think, was error.
The fact that a killing was intentional does not necessarily prove that it was done with malice;
for an intentional killing may be entirely justifiable, as where it is done in necessary
self-defense, or it may be only manslaughter, as where it is done in the heat of passion caused
by a sufficient provocation. What it is must depend upon the manner of the killing and the
surrounding circumstances. The instruction was highly prejudical [prejudicial] to the
defendant, for, if guided by the law there laid down, the jury must have reasoned thus: (1) The
defendant admits the use of such means as were likely to produce death, and that did produce
death; therefore, the presumption is that death was intended. (2) An intention to kill
constitutes malice aforethought. (3) A killing with malice aforethought is murder. Therefore,
upon the defendant's own admission, without regard to anything else, he is guilty of murder.
We say without regard to anything else, because, although the law concerning self-defense
and manslaughter is correctly laid down in the instructions, they contain nothing, and, indeed,
scarcely could contain anything to correct the error made here. In the twenty-fifth instruction
the law concerning malice is correctly stated, and, as it clearly demonstrates the error of the
eighteenth instruction, we quote from it: The existence or non-existence of malice is an
inference to be drawn from all the facts in the case. If malice is found, it must be drawn as an
inference from everything this is proved taken together as a whole. Every fact, no matter how
small, every circumstance, no matter how trivial, which bears upon the question of malice,
should be considered by the jury at the same time that they consider the use of the deadly
weapon, to wit, the gun with which the defendant here admits that he shot the deceased,
Willie Litster; and it is only as a conclusion from all these facts and circumstances that malice
is to be inferred. But, of course, the giving of a correct instruction does not cure an incorrect
one, because it is impossible to determine which the jury followed. That an intention to kill
does not constitute malice is well settled by the authorities.
stitute malice is well settled by the authorities. In Dennison v. State, 13 Ind. 510, the trial
court had instructed the jury that, if there be evidence of express malicethat is, a positive
intention to killexisting in the mind of the slayer at the time of inflicting the wound, the
killing is murder in the second degree. Commenting upon this, the court said: This latter
instruction contains an error which may have misled the jury. It informs them that intention to
kill, existing at the commission of the act, constitutes express malice. This is entirely wrong.
In justifiable homicide there is intention to kill, but not necessarily malice or premeditation.
In murder in the first degree there is intention to kill, accompanied with premeditated malice,
except in certain cases in which certain acts are made murder by statute. In murder in the
second degree there is intention to kill, accompanied by malice, but without premeditation. In
manslaughter there may be intention to kill arising from the sudden transport of passion, but
it may, and must in this grade of offense, be unaccompanied by both premeditation and
malice. In Trumble v. Territory, 3 Wyo. 280, 21 Pac. 1081, the following instruction was held
to be erroneous: Where the fact of killing purposely by the use of a deadly weapon is proved,
malice is to be presumed, unless it appears from all the evidence in the case that the killing
was without malice, or was justifiable or excusable; the court saying: The jury should be
directed that it was their duty to decide from all the facts of the case, many or few, whether
the killing was malicious. In People v. Barry, 31 Cal. 357, where the instruction was in case
of a mutual combat, when one uses superior weapons to those possessed by the party slain,
malice may be inferred, and the killing amounts to murder, the court said: If A should make
an assault upon B with a deadly weapon, by the use of which he might readily accomplish his
manifested purpose to kill B, and the latter, having no other means of saving his own life
except by killing his assailant, should in necessary self-defense, slay him, could it be
seriously contended that the act done in such necessary self-defense was done with malice,
and that the killing was murder, because it happened that the weapon so used in self-defense
was superior to that in the hands of the assailant? No one, we apprehend, would deliberately
undertake to support such a proposition."
deliberately undertake to support such a proposition. To the same effect are People v. Freel,
48 Cal. 434; Quarles v. State, 1 Sneed, 407; Maher v. People, 10 Mich. 212; Erwin v. State,
29 Ohio St. 186; Cahn v. State (Tex. App.) 11 S. W. 723; 2 Bish. Cr. Law, secs. 645, 676,
695; Whart. Hom., sec. 669; Stokes v. People, 53 N. Y. 164; Kent v. People, 8 Colo. 563.
10. The jury were also instructed that any person passing through gates in fences inclosing
fields, and not shutting and fastening the same, shall be deemed guilty of a misdemeanor.
While this was substantially copied from the statute, we cannot but regard it as erroneous and
prejudicial to the defendant, under the circumstances existing here. In the first place, it is, at
least, doubtful whether the statute would apply to the case of a gate placed across a public
road, as it appears the Vaughans claimed this to be. But, disregarding that, the instruction was
upon a point that cut no legitimate figure in the case. As we have seen, the main question for
the jury to decide was whether the defendant, in killing William Litster, had acted in
self-defense. It was proper and necessary for them, in determining this question, to consider
everything admitted in evidence that would assist in coming to a correct conclusion as to
what occurred at the fence that fatal morning. That was the central point, and evidence of
collateral occurrences was only material in so far as it tended to throw light upon what took
place there. Did the defendant kill the deceased without cause or excuse, or did the Litsters
first make such a murderous attack upon him that he was justified in killing in self-defense, as
he claims? As reflecting upon this, as well as upon the question of malice, it was proper to
show the state of feeling existing between the parties. There was a conflict in the testimony as
to what occurred when they met. If the defendant had such feeling against the deceased as
might prompt him to attack and murder him without cause, this would strengthen the case of
the prosecution. On the other hand, if the feelings of the deceased toward the defendant were
such as might have caused him to make the first murderous assault, its tendency would be to
strengthen the defense. In showing this, evidence concerning the gates was necessarily
admitted, because this was the matter, or one of the matters, about which the feeling had
arisen, but the fact that, in leaving them open, the defendant had committed a
misdemeanor, had no tendency to show an increase or diminution of his animosity, nor,
indeed, that he had any animosity whatever.
the defendant had committed a misdemeanor, had no tendency to show an increase or
diminution of his animosity, nor, indeed, that he had any animosity whatever. The defendant
was not being tried for leaving gates open, and the instruction was no more relevant to the
issue before the jury than would have been an instruction that taking another's horse
amounted to larceny had there been evidence that at some time the defendant had taken some
other person's horse. It was calculated to create prejudice against the defendant, by showing
that he had committed a crime in another matter, and to divert the minds of the jurors from
the real issue in the case.
11. In regard to the fourteenth instruction concerning reasonable doubt, in view of the fact
that the case must be retried, it is only necessary to call attention to what was said by this
court in State v. Potts, 20 Nev. 389, 399, concerning the advisability of adhering strictly to
the statutory definition.
This is sufficient to dispose of the appeal; but, in view of the fact that the case will have to
be retried, it is proper for us to notice other rulings that, although they have not been
particularly called to our attention, were, some of them at least, objected to by the defendant,
and, if repeated, may be urged as error upon another appeal. As already stated, the only
evidence properly admissible is that which in some manner tends to throw light upon the
killing. Upon the opening, it was necessary for the state to introduce its evidence tending to
establish the commission of the homicide by the defendant, and such as tended to prove that it
was malicious, willful, deliberate, and premeditated. In defense, the defendant could
introduce his evidence tending to show that it was done in self-defense, including such as
might tend to prove that the feelings of deceased towards the defendant were such as might
have caused him to begin the deadly affray, or to make the first attack. Rebuttal evidence
would then be all that tended to establish that the killing was not done in self-defense.
Perhaps this general statement will not assist very materially upon a retrial; but in the face of
such a voluminous record, unassisted by argument upon the points, it is difficult to draw the
line as to all that was properly admitted and what was not. Without attempting this, it is safe
to say there was much evidence on both sides that could have no legitimate influence
upon the verdict. In our judgment, as the case is now presented, the evidence as to
whether there was any other road that the Vaughans might have taken in going to their
mine, whether the road up Water Caon was good or bad, whether they had any mine,
whether a team that had been driven up to the fence could be turned around without
passing through the gap, whether the elder Vaughan had ever asked permission of
William Litster, Sr., to pass through the fence, of the conversation between them
concerning the poisoning of the dog, of what title Litster had to his ranch, was all
irrelevant, could only tend to distract the attention of the jury from the real issue, and, so
far as objected to, should have been excluded.
attempting this, it is safe to say there was much evidence on both sides that could have no
legitimate influence upon the verdict. In our judgment, as the case is now presented, the
evidence as to whether there was any other road that the Vaughans might have taken in going
to their mine, whether the road up Water Caon was good or bad, whether they had any mine,
whether a team that had been driven up to the fence could be turned around without passing
through the gap, whether the elder Vaughan had ever asked permission of William Litster,
Sr., to pass through the fence, of the conversation between them concerning the poisoning of
the dog, of what title Litster had to his ranch, was all irrelevant, could only tend to distract the
attention of the jury from the real issue, and, so far as objected to, should have been excluded.
Of course, nothing we have said must be construed as in any way reflecting upon the
defendant's guilt or innocence. That is a question for a jury, and is one that we have not at all
considered. However guilty he may be, he is entitled to a trial in accordance with the rules of
law; and, as we find that in some respects he has not had this, the judgment must be reversed.
Judgment reversed, and cause remanded for a new trial.
____________
22 Nev. 304, 304 (1895) Wright v. Carson Water Co.
[No. 1420.]
JOHN M. WRIGHT and S. C. WRIGHT, Plaintiffs and Appellants, v. CARSON WATER
COMPANY, a Corporation, Defendant and Respondent.
Second AppealFormer Decision, Upon Same Point Distinctly Made on Same FactsRes Judicata.This
court has no power to review its own judgments in the same case upon the same facts except upon
petition for rehearing. The decision of the appellate court on a previous appeal is, on a second appeal on
substantially the same state of facts, res judicata.
Appeal from order refusing to admit a note in evidence on behalf of plaintiffs and from the
judgment, from District Court, Ormsby county, Richard Rising, District Judge.
The facts necessary to base the opinion upon appear in the opinion.
Rives & Judge and William Woodburn, for Appellants:
This is an appeal from an order of the district court refusing to admit in evidence the
promissory note to recover judgment for the amount of which the action was brought, and
also from a judgment in favor of the defendant for costs upon the objection of defendant.
Respondent's objection to the introduction of the note, as stated by counsel, is that it was
denied, first, that there was any valid subsisting debt due from defendant to plaintiff at the
time of the execution of said note, and that it is denied that it is the note of the Carson Water
Company. [Here follow several pages contesting this position.]
After a number of pages on the facts of the case: If this case had not been once appealed
to this court and the principle involved in this appeal decided in the former appeal, there
might be some strength and virtue in the position of counsel for appellants, but we deem the
decision in Edwards v. Carson Water Co., 21 Nev. 469, and the legal principles there decided
absolutely conclusive of this case. In that case this court decided the note of December 8,
1886, not to be the note of the defendant corporation. It is no longer an open question. In
addition to the decision in that case and the numerous decisions therein cited we respectfully
submit to the court that the questions in the case at bar are stare decisis. [Here follows
argument on the merits and citation of authorities.]
Rives & Judge and William Woodburn, for Respondent, as supplemental and in reply:
Counsel for respondent places great stress upon the opinion of this court in the former
appeal hereinEdwards v. Carson Water Co., 21 Nev. 469and contend that it is decisive
of every question involved in this appeal. We are unable to agree with counsel in the
conclusion at which they have succeeded in arriving. In the present case we say, without fear
of successful contradiction, that the record on appeal discloses an entirely different state of
facts from the record in that case, as a comparison of the testimony in the record in this
appeal with the testimony set out in the opinion in that case will show. [Here follows
argument of several pages to show that the facts here are not the same as in 21 Nev.,
supra.]
case will show. [Here follows argument of several pages to show that the facts here are not
the same as in 21 Nev., supra.]
Torreyson & Summerfield, for Respondent, in reply:
This case involves nothing more than the correctness of the decision of this court in the
case of Edwards v. Carson Water Company, 21 Nev. 469. [Here follows argument of several
pages to sustain the position.]
The original plaintiff, S. C. Wright, brought this action in the district court in and for
Ormsby county against the Carson Water Company, a corporation, defendant, on a certain
promissory note of date December 8, 1886, for the sum of $2,000, and interest, alleged in the
complaint to be the note of said defendant, executed by its president and secretary. The
complaint contains the usual and necessary allegations in such action. The answer of the
defendant, as to the note, is confined to specific denials of the averments of the complaint. In
March, 1892, the case was tried before the court sitting without a jury, and the plaintiff
recovered a judgment for the amount of his note, less the sum of a counter-claim set up in the
defendant's answer for water rent. The district court granted the defendant a new trial. Mr.
Wright having died, his executors were substituted as plaintiffs, and they appealed to the
supreme court from the order granting a new trial. This order of the district court was
affirmed by this court. The cause came on regularly for second trial in the court below at its
session in January, 1894, before a jury. After making such preliminary proofs as they had, the
plaintiffs offered the note in evidence; to which the defendant objected on various grounds,
among which are the following, to wit: It is denied that this is the note of the Carson Water
Company. There has been no evidence in this case, in fact, differing from the testimony or
varying the testimony that was introduced in the former trial. The supreme court of this state
decided that this note is not the note of the corporation, and that its officers who signed it had
no authority to execute the corporate note, or bind said corporation. The objections of the
defendant were sustained, the note was excluded, and judgment given against the plaintiffs
for defendant's costs, taxed at $210.
fendant's costs, taxed at $210. The plaintiffs duly excepted to the rulings of the court.
The appellants, J. M. Wright and S. C. Wright, the heirs at law of S. C. Wright, deceased,
and the distributees of his estate, bring this appeal from the order of the court excluding said
note, and from the judgment rendered against the plaintiffs for costs. The appellants urge
several assignments of error, but from the view we feel compelled to take of the case it is not
material for this court to pass upon any except the second, which goes to the vitals of the
case, and is as follows, to wit: The court erred in refusing to admit in evidence the
promissory note for $2,000, sued upon and set out in the complaint, as being invalid, and as
having been given for an outlawed note for the same amount by the president and secretary of
the company, for the reason that no such defense is set out or pleaded in defendant's answer,
the testimony showing, also, that the members of the board of trustees of the defendant had
knowledge of the manner and purpose in and for which said note was given; that interest had
been paid thereon, monthly, for more than two years after the note sued on had been given;
the testimony further showing that it was the custom of the company to transact similar
business in this same manner; and there is nothing in the testimony showing or tending to
show that said note is invalid, or that said company has ever repudiated the acts of its officers
who executed said note.
The first question to be determined is, was the same state of facts presented on the former
appeal as is presented on this one, upon the vial question at issue in the pleadings? From the
most careful examination of the evidence set out in the transcript here, and the evidence
disclosed in the opinion of the majority and minority of this court on the former appeal, we
find no material difference affecting the question of the validity of the note. It is true, as
suggested by counsel for appellants in their brief, that Mr. Helm was not examined at the
second trial as a witness on questions concerning the note, and that his testimony given on the
first trial does not appear in this appeal. We regard the testimony of Mr. Helm found in
Edwards v. Water Co., 21 Nev. 469, on the controlling issue made by the pleadings, as
favorable to the appellants in their contention on the issue of the validity of the note,
whatever its force may be as proof of payment, or on other matters presented on the
former appeal.
of the validity of the note, whatever its force may be as proof of payment, or on other matters
presented on the former appeal. So regarding it, the fact that his testimony is not in this case
now cannot be fairly urged by the appellants as showing that they have set up a different state
of facts, and more favorable to them, on this appeal, than was presented in the record on the
former one as to the validity of the note, the establishment of which is essential to the
maintenance of this action. When this case was before the supreme court under the title of
Edwards v. Water Co., reported in 21 Nev. 469, the several questions presented and argued
by the respective parties now were then before the court and determined.
The validity of the note is an issue made by the pleadings, and was properly presented,
argued, and contested on the former hearing. Both in the opinion of the majority and minority
of the court, there is an elaborate review of the evidence and the authorities, and this vital
question was fully entered into and discussed, the majority of the court holding against the
contention of the appellants. Although it does not appear upon what particular ground this
court affirmed the order granting a new trial, it did decide that the note in suit does not bind
the respondent. This went to the essence of the case, and is fatal to appellants' contention on
this appeal. Under that decision, it follows that the lower court did not err in excluding the
note. The decision is the law of the case, not only binding on the parties and their privies, but
on the court below and on this court itself. A ruling of an appellate court upon a point
distinctly made upon a previous appeal is, in all subsequent proceedings in the same case
upon substantially the same facts, a final adjudication, from the consequences of which the
court cannot depart. The supreme court has no power to review its own judgments in the
same case, except upon petition for rehearing, in accordance with the rules established for
that purpose. Such are the decisions of more than two hundred cases, decided in more than
thirty states of the Union, besides a great number of the federal courts, including the supreme
court of the United States. A list of these cases is too extended to be given here, but they may
be found in Herman on Estoppel and Res Judicata (page 118, et seq.).
From these rules, and upon these authorities, we are of opinion that the judgment of the
district court should be affirmed. It is so ordered.
In order to obviate the idea of an implied approval of the former decision, and to leave us
unembarrassed by it if similar cases are presented in other cases for consideration, it is proper
to state that the judgment on this appeal is based alone upon the ground of res judicata.
____________
22 Nev. 310, 310 (1895)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
APRIL TERM, 1895.
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22 Nev. 310, 310 (1895) Ah Tone v. McGarry
[No. 1421.]
AH TONE, Plaintiff and Respondent, v. M. McGARRY,
Defendant and Appellant.
1Money Had and Received, Answer, Denials Only.In action for money had and received where the answer
consists of denials only, the only permissible defenses are that the defendant did not receive the money,
or had paid it to the plaintiff.
2Estoppel.Where a person has been entrusted with property to sell for the benefit of the owner, and sells it
accordingly, in an action for the money so received, in the absence of a showing that some one having a
superior title has made a claim upon him for it, he is estopped to deny the plaintiff's title.
3RulingsWhen Immaterial.Where even upon the case made by defendant the verdict against him is
correct, a ruling of the court concerning the argument of counsel, and rulings upon instructions, become
immaterial.
Appeal from judgment and order overruling motion for a new trial, from District Court,
Eureka county; A. L. Fitzgerald, District Judge.
Argued orally by Thomas Wren, for Appellant, and Robt. M. Beatty, for Respondent.
Thomas Wren and F. X. Murphy, for Appellant:
The action is for money had and received. The gist of the action as gathered from the
complaint is that appellant has in his hands $692.40 belonging to respondent.
in his hands $692.40 belonging to respondent. Appellant denies that he has any money
belonging to respondent. Upon this state of the pleadings it became necessary for respondent
to establish that the appellant had in his hands the sum above stated, money of respondent. In
considering this question it may be important to keep in view the fact that the appellant acted
to a limited extent as the agent of all parties throughout the action.
It is evident from the whole of the evidence that appellant acted in the first place as the
agent of Murphy while he was the owner of the two-thirds interest, and subsequently as the
agent of his wife when she became the owner of the whole mine, in all of the transactions
with respondent in relation to the mine, and that respondent recognized him as the agent of
Murphy and of his wife, and settled all business matters between respondent and Murphy and
appellant's wife in relation to the mine and allowed appellant to retain all moneys due from
him to Murphy and to appellant's wife upon settlements. [Here follows a long statement of
facts.]
One of the counsel for respondent, in summing up, contended that from the generosity of
McGarry in gratuitously giving one-third of the mine to McCaffery and two-thirds to Murphy
and the generosity of McCaffery and Murphy in afterwards gratuitously giving their interest
to Mrs. McGarry, the jury might fairly infer that appellant owned all of the mine at the time
the lease was made and the ore was taken out and sold. Counsel for appellant objected to this
line of argument and moved the court to strike out the language used. The motion was
overruled by the court and exception taken. It would be difficult to conceive of an argument
more likely to mislead the jury in regard to the real issues in the case, especially in view of
the instruction that followed. Appellant's instruction No. 1 was to the effect that if from all
the evidence they believed that McGarry and Murphy had the right so to do, either as owners
or duly authorized agents of the owners of the Ethel mine, and leased the plaintiffs all of said
mine, etc. Now there was not a particle of evidence that Murphy, either as agent or owner,
ever leased all of the mine to respondent, and there is not a particle of testimony that
McGarry at the time Murphy leased the mine or at any subsequent time owned any
portion of it, or that he leased the mine or any portion of it to respondent.
the time Murphy leased the mine or at any subsequent time owned any portion of it, or that he
leased the mine or any portion of it to respondent. Respondent testified: Mr. McGarry never
gave me any lease; I asked him for one and he said he did not own any interest in the mine
and he could not lease it. Appellant testified: Before giving him the lease from Murphy I
told him I had no interest in the mine. That Frank X. Murphy owned two-thirds and
McCaffery one-third of the mine. I believe it is a general rule that instructions should be
based upon some evidence given in the cause. Respondent's instruction No. 2 is manifestly
erroneous. All of the evidence shows that McGarry was the agent of his wife and entitled to
receive her portion of the money received from the sale of ores. The refusal of the court to
give appellant's instruction No. 6 upon the ground that it was not applicable to the facts of the
case was manifestly erroneous, in view of the testimony and plaintiff's instructions Nos. 1 and
2 and the argument of counsel for respondent. The refusal of the court to give appellant's
instructions Nos. 3 and 4 upon the ground that they were not applicable to the case was
manifestly erroneous, for the reasons above given. Respondent's instruction No. 2 given by
the court was manifest error. It ignores the fact that appellant was the agent of his wife as well
as of Ah Tone.
One of the grounds of the motion for a new trial was that the evidence was insufficient to
justify the verdict. The evidence established the right of appellant to retain the amount that he
did retain from the proceeds of the sales of ore except the small balance of $52.86.
Robt. M. Beatty and Peter Breen, for Respondent:
(No brief on file.)
The complaint in this action is for money had and received. The answer consists of denials
only. To sustain the action under such pleadings, it was only necessary for the plaintiff to
prove that defendant had received money belonging to him, and had failed to pay it over. The
only defenses would be that defendant had not received the money or had paid it to the
plaintiff.
be that defendant had not received the money or had paid it to the plaintiff.
The plaintiff proved his case when he proved that defendant as his agent had received ore
from him for the purpose of selling it; that he had sold it, and had received on such sale
$2,077.20, of which he had paid the plaintiff only $1,384.80. The defendant in his testimony
admitted these facts to be true. These admissions were conclusive of the case as made by the
pleadings.
But, waiving this, the defendant in his testimony claimed that the ore had been extracted
from a mine belonging to the defendant's wife, of two-thirds of which the plaintiff had a
lease, but not of the other third, and that consequently one-third of the net proceeds of the ore
so extracted belonged to her by virtue of her ownership of the portion of the mine not leased.
Under this claim he asserted the right to retain the money in controversy. The defendant
proved no authority from his wife to act for her in the matter, but aside from that, having
received the ore from the plaintiff for the purpose of selling it, defendant would, in the
absence of a showing that some one having a paramount title to the ore had made a claim
upon him for it, be estopped from denying the plaintiff's title. (Bigelow, Estop. 430; 2 Herm.
Estop., sec. 893.) No showing of this kind was made here.
Under the pleadings and proof there was no controverted question of fact for the jury to
pass upon that would, if decided in the defendant's favor, have constituted any defense to the
action. The court would have been justified in instructing them to find a verdict for the
plaintiff; and consequently, whether right or wrong, the ruling concerning the argument of
plaintiff's counsel, and the instructions given or refused, worked defendant no injury.
____________
22 Nev. 313, 313 (1895) Springer v. Pritchard
[No. 1414.]
JACOB SPRINGER, Plaintiff and Respondent, v. W. L. PRITCHARD and LIZZIE
PRITCHARD, Defendants and Appellants.
1FindingsBased on Contradictory Evidence Not to be Disturbed Though Only in Judgment.Where on an
issue as to whether certain fraudulent representations were made on a sale the
vendee and a witness to the conversation testified that they were made, and the
vendor denied having made them: Held, that in the absence of a finding that they
were made, the appellate court must adopt the conclusion of the trial court as
shown by the judgment that the fraudulent representations were not established.
whether certain fraudulent representations were made on a sale the vendee and a witness to the
conversation testified that they were made, and the vendor denied having made them: Held, that in the
absence of a finding that they were made, the appellate court must adopt the conclusion of the trial court
as shown by the judgment that the fraudulent representations were not established.
2Exceptions to Evidence Not in Record on Appeal Not to be Reviewed.Exceptions to the exclusion of
evidence cannot be reviewed where the excluded evidence is not brought up.
3TitleEvidence of in Third PartyInadmissible.On an issue as to whether the title to water conveyed by
plaintiff was in him evidence of deeds by third persons conveying the same water is inadmissible.
4PaymentError in Applying on One of Several Notes Sued on Between Same Parties Immaterial.Where
in an action to recover on several promissory notes, defendants being liable on all of them, an error in
applying a partial payment on either particular note is immaterial.
Appeal from judgment and order denying motion for new trial, from the District Court,
Churchill county; A. E. Cheney, District Judge.
Curler & Curler, for Appellants:
The motion for a new trial was made upon the grounds: (1) Insufficiency of the evidence
to justify the decision of the court and that the same is against law. (2) Errors of law occurring
at the trial and excepted to by the defendants.
There were no findings of fact or conclusions of law other than the written decision of the
court filed in this case. [Here follows several pages of argument on facts.]
The decision of the court is contrary to the evidence and against law in this: The court, in
its decision, finds that in making examination, execution and delivery of the bond, made after
Pritchard received the notice from Brown, with respect to the water, there was no fraud,
concealment, misrepresentation or bad faith, and because there was no fraud in the execution
of this bond it was conclusive of the whole matter. This proposition cannot be law, neither do
we think this finding borne out by the proof.
The false assertion of a fact, going to the essence of a contract, by which a person is
induced to act to his damage, is fraud. (Banta v. Savage, 12 Nev. 151; Jenkins v. Long, 18
Am.
Am. Dec. 374; Mitchell v. Zimmerman, 51 Am. Dec. 717; Waters v. Mattingly, 4 Am. Dec.
631; Wyman v. Allen, 32 Am. Rep. 562; Culver v. Avery, 7 Wend. 380.) And this is so
notwithstanding the contract was in writing and the representations were verbal, and the
showing of fraud is a complete defense to an action upon the contract. (Newman v. Smith, 77
Cal. 22; Bryson v. Bryson, 75 Cal. 525; Elsass v. Institute, 77 Ind. 72; Mitchell v. Kintzer, 7
Pa. St. 216; Mallory v. Leach, 35 Vt. 156; Bean v. Herrick, 12 Me. 262; Read v. Cramer, 34
Am. Dec. 204.) A general rule of fraud in an action on a promissory note is good. (Hildreth v.
Tomlinson, 50 Am. Dec. 510.)
The issue of fraud having been raised by the pleadings, the defendants were entitled to a
full presentation of the case upon that point, and the court should have permitted all of the
testimony bearing upon the question of fraud, and this is especially so where the court
rendered its decision upon that question, and it was manifest error in the court to exclude the
testimony upon the title to the ditch and the water conveyed thereby, also the notice from
Brown to Pritchard, the deed from George E. Brown to W. J. Brandon, the deed from W. J.
Brandon to W. L. Pritchard, the deed from John P. Brown to H. C. Ackley and the records of
Churchill county, statement of water claims wherein Brandon and Brown filed sworn
statements setting forth that they and each of them were the owners of an undivided one-half
interest in the water ditch and water right in question.
This action is upon three promissory notes, two made by appellants in favor of respondent
and one made by appellants in favor of W. J. Brandon and by Brandon assigned to
respondent. The notes made in favor of respondent were given for the balance of the purchase
money for land and water ditch and water right described in the complaint, and are set out in
the bond for a deed made by respondent in favor of appellants. These notes are sought to be
defeated upon the ground that Springer was not the owner of the water ditch and water rights
described in the bond, and that the bond is fraudulent. The court below rendered its decision
particularly finding the issue of fraud against appellants.
decision particularly finding the issue of fraud against appellants. Springer was in fact the
owner of the premises described in the bond and deed. Pritchard, when he purchased, well
knew that Springer's title was questioned.
The proofs do not support the issue of fraud; on the contrary all the testimony shows that
the bond was fairly made and expressed the true understanding of the parties. As the deed
conformed to the bond and the bond to the agreement, as there was no fraud, as Pritchard has
been in the peaceable possession and enjoyment of the premises, not having been disturbed,
the notes being overdue and payment refused, there would seem to be no good reason why
respondent should not prevail. Respondent is entitled to recover upon all the notes, therefore
it is not material upon which note the $500 payment was credited; Pritchard having given no
direction as to the application of the payment, Springer had the option to apply it where he
pleased.
It was not error to deny Pritchard's offer to show title to the ditch in Brandon and Brown.
Springer never agreed to convey a perfect title to Pritchard; on the contrary his agreement was
to convey his interest merely.
Pritchard being in possession and full enjoyment of the premises in question he could not
retain the premises and defeat recovery upon the pretext that the title was outstanding in
Brandon or Brown because Brandon and Brown made a claim against the title of respondent.
The complaint consists of two causes of action. The first is upon two promissory notes
given to the plaintiff in part payment of a tract of land and water right. The second is upon a
promissory note made payable by the defendants, to the order of W. J. Brandon, and by him
indorsed to the plaintiff. The answer, among other things, alleges that respondent made false
and fraudulent representations concerning the title to the water, and thereby induced the
defendants to purchase the property. The false representations were that he was the owner of a
third interest in the water, when in fact he did not own any interest in it. Defendants seek to
avoid payment of the two notes mentioned in the first cause of action for this reason.
The defense to the second cause of action is that a payment of $500 made on the Brandon
note was erroneously credited upon one of the notes mentioned in the first cause of action.
Correcting that mistake, it is claimed that this note has been paid, except a small balance of
interest. The case was tried by the court, without a jury. Judgment was rendered for
respondent. No written findings were filed.
The principal question was whether or not the representations were false and fraudulent.
Upon this subject, Pritchard testified that, before the sale was made, plaintiff told him that he
owned a third interest in the water ditch and water; and Snyder, the only witness to the
conversation, other than the parties themselves, corroborated his testimony. But Springer
denied it. His testimony was that he only agreed to sell his interest as he had acquired it from
his grantor. This statement shows that a substantial conflict existed in the evidence, and, in
the absence of a finding to the contrary, we must adopt the conclusion reached by the district
court that the fraudulent representations were not established. In this view of the case, the
defense upon the ground of fraud having failed, and the defendants being liable for all of the
notes, it is immaterial upon which note the payment of $500 was made.
There were exceptions to the exclusion of evidence, but the evidence to which they relate
has not been brought up, so that we cannot determine whether it was admissible. Several
deeds made by persons not connected with the parties to this action were offered for the
purpose of proving that the title to the water was not in respondent. These deeds were not
competent evidence to prove that he did not own the water, for the reason that they were
transactions between third persons, with which respondent had nothing to do.
Judgment and order affirmed.
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22 Nev. 318, 318 (1895) Roberts v. Greer
[No. 1419.]
HIRAM W. ROBERTS, Plaintiff and Respondent, v. H. H. GREER and W. H. CAUGHLIN,
as Sheriff of Washoe County, Defendants and Appellants.
HomesteadNot Lost by Death of Wife.A homestead duly filed upon while husband and wife were residing
thereon, remains a homestead in his hands after her death, and as such is exempt from levy and sale for
his debts where he continues to reside upon it, although he has no children or other dependent relatives
residing with him.
Appeal from judgment and order denying motion for new trial, from District Court,
Washoe county; A. E. Cheney, District Judge:
On December 16, 1879, the plaintiff and Johanna Roberts, his wife, were living upon and
occupying the lands in controversy in this action, which were community property. On that
day Johanna duly filed a declaration of homestead thereon, and they continued to live on the
premises until October 25, 1893, when she died. Since then the plaintiff has lived upon and
occupied them. They had no children, nor has the plaintiff any dependent relatives living with
him. There has apparently been no administration upon the wife's estate. The premises do not
exceed $5,000 in value. On July 25, 1893, the defendant Greer obtained a judgment against
plaintiff, upon which, on October 27, 1893, an execution duly issued. Under this writ the
lands were sold by defendant Caughlin, as sheriff of Washoe county, to defendant Greer, and
it is alleged that upon the expiration of the period of redemption he intends to execute a
sheriff's deed for the same. Judgment was rendered in the plaintiff's favor, to the effect that
the sale was void, and enjoining the sheriff from executing any deed thereunder. The
defendants appeal.
J. L. Wines and Torreyson & Summerfield, for Appellants:
This is an action instituted by respondent to enjoin the sheriff of Washoe county from
executing a sheriff's deed upon sale formally made by him, and for relief in the way of having
such sale and the certificate issued thereunder decreed null and void.
Respondent is, and has been for several years, the owner of the legal title to the lands
described in the record and which were sold by said sheriff in satisfaction of a judgment in
favor of appellants and against the respondent Roberts.
The question is presented as to whether or not the homestead character of the property
continued after the death of the wife, and after the surviving husband ceased to be the head of
the family, or whether the judgment creditors of Roberts had a legal right to subject such
property to the payment of their judgment.
The court below held that notwithstanding the fact that Roberts had ceased to be the head
of the family the homestead character was still impressed upon these lands, and that a sale by
the sheriff was unwarranted and void.
The first inquiry is, what was the intention of the legislature as expressed in the statute on
this subject? The first act of the legislature on this subject (Laws 1861, p. 24, sec. 9) provides
that the homestead and other property exempt from forced sale upon the death of the head of
the family shall be set apart by the probate court for the benefit of the surviving wife and his
own legitimate children; provided, that the exemption as provided in this section shall not
extend to unmarried persons, except when they have charge of minor brothers or sisters, or
both, or brother's or sister's minor children, or a mother or unmarried sisters living in the
house with them. The provision in this section, where it says that the exemption shall not
extend to unmarried persons, refers to a period of time when the exemption is claimed or
asserted, and not to the time when the declaration of homestead is filed. The evident intention
of this section was that the legislature did not intend to extend the benefits of the homestead
law to any one who was unmarried at the time he asserted and alleged homestead right, even
although such person may have been the head of a family at the time the homestead
declaration was filed. It is clear, therefore, that it was not intended to exempt the homestead
from forced sale in cases where the judgment debtor had no one depending on him for
support. It would scarcely be claimed that, if the above statute was still in force in this state,
the respondent in this case would be entitled to the relief which he now seeks. It therefore
becomes pertinent to inquire whether or not the legislature has changed the law upon this
subject since the enactment of the section.
whether or not the legislature has changed the law upon this subject since the enactment of
the section. We find that the next action upon the part of the legislature resulted in the
passage of the act of March 6, Stats. 1864-65, p. 225. Section 4 of that act provides the
homestead and other property exempt from forced sale shall, upon the death of either husband
or wife, be set apart by the court for the benefit of the surviving husband or wife, and his or
her legitimate children; and in the event of there being no survivor or legitimate children of
either husband or wife, then the property shall be subject to the payment of their debts;
provided, that the exemption provided for in this act shall not extend to unmarried persons
except when they have the care and maintenance of minor brothers or sisters, or both, or
brother's or sister's minor children, or a father or mother, or both, or grandparents or
unmarried sisters living in the house with them. While the first act quoted speaks of the
death of the head of the family, and the second act speaks of the death of either husband or
wife, the second section quoted also says that in the event of there being no survivor or
legitimate children of either husband or wife, then the property shall be subject to the
payment of their debts. We might concede that if section 4, act of 1865, had been omitted,
then in this case the property would not be liable to the payment of the judgment in question,
for the reason that such property was only made liable to the payment of debts in cases where
there was no surviving husband or wife or children. There being a survivor, however, in this
case, it might, with some reason be claimed that the homestead property was not liable to the
payment of debts. The proviso in section 4 of the act of 1865 is substantially the same as in
section 9 of the act of 1861.
The purposes of a proviso in a legislative enactment is to modify, limit, or restrict the
operation of the general provision. A proviso is said to be in the nature of an exception or
reservation, and takes certain cases out of the operation of the general statute, which
otherwise would be included within it. Therefore, the proviso in the act of 1865 declares that
the exemption claimed or asserted shall not extend to unmarried persons, unless they have
some of the persons mentioned in the statute under their care or support. In other words the
exemption can only be asserted or claimed by the head of the family.
by the head of the family. The courts have frequently held that a head of a family need not
necessarily be a married person. As before stated the word exemption has reference to and
provides for the assertion of a right or privilege at a time when an effort is being made by
virtue of legal process to subject certain property to the payment of debts. While a person
may legally file a declaration of homestead, and may maintain certain homestead rights, so
long as certain relations or conditions exist, as soon as these relations or conditions have
ceased the exemption can no longer be successfully asserted, or, in other words, the
exemption shall no longer extend to the homestead property.
Was it not the intention of the legislature to provide that so long as the debtor was the head
of a family, or had persons depending upon him for support, he could assert a homestead
right, and is it not equally clear that as soon as he ceased to occupy such a position, ceasing to
be the head of a family, and having no one dependent upon him, he should no longer be
entitled to exempt his property from forced sale precisely as though he had attempted to assert
such homestead right, although never occupying the position, which entitles him to claim
such exemption?
The spirit of the homestead law is that the judgment debtor shall be entitled to claim a
homestead for the benefit and in the interest of those dependent upon him.
Subsequent to the passage of the act of 1865 some doubts were expressed by the courts or
by the profession as to the meaning and scope of the proviso contained in section 4 of that
act. It will be remembered that we have claimed under both the act of 1861 and 1865 that the
conditions and circumstances surrounding the debtor at the time he files his declaration of
homestead do not determine his right in this regard. A change in conditions and surroundings
will result in taking away or defeating a right which previously existed.
The next act of the legislature of this state, and the one in force during all the times
mentioned in the record in this case, and which is controlling upon the question now
presented, is the act of March 17, 1879, Stats. 1879, p. 140.
Section 2 of that act re-enacts substantially section 4 of the act of 1865. The act of 1879
quotes the proviso the same as in 1S65 and then adds the following: "And in all such cases
the exemption shall cease upon the cessation of the terms upon which it was granted."
same as in 1865 and then adds the following: And in all such cases the exemption shall
cease upon the cessation of the terms upon which it was granted. It will be conceded that the
right to claim an exemption is created, given or granted by the filing of a declaration of
homestead. The conditions and terms upon which a homestead right is created, given or
granted are that the person filing such declaration of homestead is the head of a family or is,
at the time of filing such declaration, residing with the family, or with certain persons, or a
person under their care or maintenance. (Sec. 1, act of 1879.)
The terms mentioned in the new proviso just quoted are the requirements which must exist
and be made to appear in the declaration of homestead. If these terms have ceased to exist,
such, for instance, as the party who had previously been in a position to file and had filed a
declaration of homestead at the time the exemption is claimed, then, by the express provision
of this proviso, the exemption, or the right to claim one, shall cease.
The statute of 1879 makes prominent two facts: First, that the right to claim as exempt
from forced sale a homestead, and, second, that this right may cease to exist, or may be taken
away from the debtor. The statute says in plain terms that the exemption shall cease upon the
cessation of the terms upon which it (the exemption) is granted. It will be seen that the idea is
kept prominently in view in all statutes quoted that only a debtor who has a family of some
character, or consisting of some of the persons mentioned in the statute, shall be entitled to
claim an exemption. That which alters the situation and condition of the debtor is a change in
the terms and conditions surrounding him at the time the homestead was created.
At one time the state of California had a statute very much like ours, prior to 1879. In the
case of Revalk v. Kraemer, 11 Cal. 66, the supreme court of that state uses this language, at
page 73: This question may be properly considered under two aspects: (1) Whether the
privilege of the homestead ceases, when the party ceases to be the head of a family. (2)
Conceding that it does, in what manner would the title inure to the benefit of the creditors?
The leading idea upon which the constitution and statute are both predicated is the
protection of the family.
both predicated is the protection of the family. To carry out this intent, the homestead of the
head of the family is protected from forced sale. Any individual of either sex may be the head
of a family. It is not necessary that the head of a family should be a married person. But,
unless the person is the head of a family, the right of homestead cannot exist. And cannot the
same person at one time be the head of a family and not at another? And if the privilege is an
incident to a certain state and that state itself ceases, why should not the incident fall with it?
At one time in California the law was that the owner of a homestead, the husband for
instance, could convey the homestead without the wife joining in the deed. The existence of
the homestead simply resulted in preventing the purchaser from obtaining possession under
his deed. As soon as the homestead ceased to exist, the purchaser could maintain an action of
ejectment under his deed, although at the time the deed was executed the premises conveyed
constituted a homestead and the wife did not join in its execution. (Gee v. Moore, 14 Cal.
472; 10 Fed. Rep. 601; 17 Fed. Rep. 887; 30 Fed. Rep. 886; 6 N. W. Rep. 40; 31 Cal. 526,
536, 537.)
Since these decisions in California the statute in that state has been changed so that at this
time, in the event of the death of either husband or wife, the title to the homestead vests
absolutely in the survivor, and shall be held by the survivor, as fully and amply as the same
was held by them or either of them immediately preceding the death of the deceased, and the
homestead shall not be subject to the payment of any debts or liabilities of the husband or
wife, or either of them, previous to or at the time of the death of such husband or wife.
(Watson v. Creditor, 58 Cal. 556, 557; Tyrrell v. Baldwin, 78 Cal. 470, 473.)
In the case of the Estate of David Walley, 11 Nev. 260, this court discussed, at some
length, and pointed out the distinction between a homestead created under the homestead law,
by the filing of a declaration, and a homestead set apart by the court during the administration
of an estate, and also discussed the meaning and effect of the proviso contained in section 4
of the act of 1865. This decision was rendered prior to 1879, and the position taken in it and
the doubts raised by the contention of counsel in that case no doubt prompted the legislature
to add the proviso found in section 2 of the act of 1S79.
doubt prompted the legislature to add the proviso found in section 2 of the act of 1879.
While it will be conceded by appellants in this case that the respondent Roberts could hold
a homestead in question, as against the personal and individual debts of his deceased wife, the
legal title of the property being in the survivor, our contention is that the survivor cannot in
this case claim an exemption as against his own personal, individual debts. This court in the
case just cited holds that the exemption, the one in favor of the survivor as against his own
debts, is excluded by the proviso.
We admit that certain language has been used in the act of 1879 which leads to some
doubt touching its correct construction, but, when the whole section is taken in consideration
and full meaning given to all of its terms, it seems that it is made to appear that the legislature
did not intend for all times to exempt the lands of the owner from forced sale.
William Webster and Goodwin & Dodge, for Respondent:
The only question presented is: Did the homestead right and exemption survive to the
plaintiff after the death of his wife? In discussing this question we do not deem an
examination of the early territorial statutes material. Section 30, article IV. of the constitution
declares that: A homestead, as provided by law, shall be exempt from forced sale under any
process of law. The statute declares to the same effect (Gen. Stats., sec. 539). This section
further provides that in a case like the one at bar from and after the filing for record of said
declaration, the husband and wife shall be deemed to hold said homestead as joint tenants.
See 1 Blackstone, book 2, chap. 12, page 181.
The law contemplates three classes of homesteads: FirstOne initiated by the husband
and wife, or either of them, upon common property. SecondOne initiated by the husband
and wife jointly, upon the separate property of one of the spouses. ThirdOne instituted by
an unmarried person, who at the time of selection is at the head of a family. As to the first, it
is held by the spouses in joint tenancy. The second is not so held, but is made to terminate at
the death of one of the spouses, and the third is made to terminate where the condition upon
which it is granted ceases; that is, when the unmarried person ceases to be the head of a
family.
the condition upon which it is granted ceases; that is, when the unmarried person ceases to be
the head of a family. The first two depend solely upon the marital relation. It is in no wise
made to depend upon the fact that there are children or other members of the family, and if
the homestead be upon the common property, it descends absolutely to the survivor, it being
held in the nature of a joint tenancy, all of the incidents peculiar to the estate thus created and
existing, necessarily continue to the surviving spouse. That there should be no doubt on this
question, the statute further provided in the same section: That if the property declared upon
as a homestead be the separate property of either spouse, and shall retain its character of
separate property until the death of one or the other of such spouses, then and in that event the
homestead right shall cease in and upon said property. This, under the well-settled rule that
Expressio unius est exclusio alterius, is equivalent to declaring that when the homestead, as
in this case, is carved out of the common property, the homestead right shall not cease upon
the death of either of the spouses. The learned counsel for appellants founds his argument
against this plain purpose of the law upon section 542 of the general laws relating to the
subject, but this cannot avail him. Should we concede that this section was intended to vest
any particular estate in the persons mentioned, still it uses language confirmatory of the right
in respondent for what we contend. It says that the homestead exemption shall not extend to
unmarried persons except when they have the care and maintenance of minor brothers or
sisters, or both, or of a brother's or sister's minor children, or of a father or mother, or of
grandparents, or of unmarried sisters living in the house with them; and in all such cases the
exemption shall cease upon the cessation of the terms upon which it is granted. Under the
familiar rule just above cited, here we find further confirmation of the intention of the
lawmakers, that the homestead of the husband and wife upon community property shall, with
all its incidents, descend to the surviving spouse. The section further emphasizes this in a
subsequent proviso, which says: That no exemption to the surviving spouse shall be allowed
in cases where the homestead declaration has been filed upon the separate property of either
husband or wife.
But this provision of the law has no application to the real question at issue here. It is a
provision regulating the procedure of courts in the administration of estates. (Smith v.
Shrieves, 13 Nev. 306, 326.)
This court expressly held in Estate of David Walley, 11 Nev. 260, that a childless widow
was embraced within the meaning of the words family of the deceased. Neither the
constitution nor the laws suggest that the spouses hold the homestead right by any different
tenure. Their rights are equal whilst living, and the right of survivorship is the same. The
husband, as the surviving spouse, has no more, nor no less, rights to the homestead than the
wife, as the survivor, would have. These laws have a humane object and demand a liberal
construction. (Thompson on Homesteads and Exemptions, sec. 7.)
In a case in Massachusetts the husband and wife acquired a homestead. They had one son;
the wife died and the son became of age and left his father; the latter continued to reside on
the premises. On the creditors seeking to apply it to the satisfaction of their demands, the
court held the homestead exempt. (Silloway v. Brown, 12 Allen, 34; Doyle v. Colum, 6 Allen,
71.)
The case of Revalk v. Kraemer, from which counsel quote extensively, is found in the 8th
California, at page 66, not in the 11th as cited by them.
As the constitution and laws of California then stood, and as is argued in that case, it was
the heads of families alone who were entitled to a homestead. These were subsequently
changed to conform more fully to the humane purposes of the provisions, and now, as in this
state, the right is made to depend mainly upon the marital relation, and is subordinate to what
is termed the heads of families. The rule in that case no longer obtains in California, nor in
but few states in the union. In Tyrrell v. Baldwin, 78 Cal. 475, the court says: The death of
one of the spouses does not alter in any way the estate or title of the homestead.
In Re Atterman, 80 Cal. 209, the question arose as to the rights of the surviving husband in
the homestead, and the court approved the doctrine as above stated in Tyrrell v. Baldwin, and
says: * * * The death of one of the spouses did not alter in any way the estate or character
of the homestead."
spouses did not alter in any way the estate or character of the homestead.
See also Bretten v. Fox, 100 Mass. 234; Kimbrell v. Willis, 97 Ill. 494; Blum v. Gains, 57
Tex. 110; Stewart v. Brand, 23 Iowa, 477; Meader v. Place, 43 N. H. 307; Town v. Rumsey,
35 Pac. Rep. 1025.
We do not deem a further citation of authorities necessary to the support of the judgment
in this case. The opinion of the learned judge, upon which the judgment in this case is made
to rest, is incorporated in the transcript on appeal, and replete with reason and authority
therefor.
The question for decision in this case is whether upon the death of the wife the homestead
of the parties upon community property remains in the hands of the childless husband as a
homestead, and as such exempt from levy and sale for his debts. The answer depends upon
the construction of our homestead law.
The first section of the act, as amended in 1879 (Stats. 1879, p. 140; Gen. Stats., sec. 539),
provides that the husband and wife, or either of them, or other head of a family, may make
and file a declaration of homestead, and that thereafter the husband and wife shall be
deemed to hold said homestead as joint tenants; provided, that if the property declared upon
as a homestead be the separate property of either spouse, both must join in the execution and
acknowledgment of the declaration; and if such property shall retain its character of separate
property until the death of one or the other of such spouses, then and in that event the
homestead right shall cease in and upon such property, and the same belong to the party (or
his or her heirs) to whom it belonged when filed upon as a homestead.
Section 4 of the act (Stats. 1879, p. 141; Gen. Stats., sec. 542) provides as follows: The
homestead and all other property exempt by law from sale under execution, shall, upon the
death of either spouse, be set apart by the court as the sole property of the surviving spouse,
for his or her benefit, and that of his or her legitimate child or children; and in the event of
there being no surviving spouse, or legitimate child or children of either, then the property
shall be subject to administration, and to the payment of his or her debts or liabilities;
provided, that the exemption made by this act and the act of which it is amendatory shall
not extend to unmarried persons except when they have the care and maintenance of
minor brothers or sisters, or both, or of a brother's or sister's minor children, or of a father
or mother, or of grandparents, or unmarried sisters living in the house with them; and in
all such cases the exemption shall cease upon the cessation of the terms upon which it is
granted; and upon the death of such unmarried person the property shall descend to his
or her heirs, as in other cases, unless disposed of by will, subject to administration and
the payment of debts and liabilities."
subject to administration, and to the payment of his or her debts or liabilities; provided, that
the exemption made by this act and the act of which it is amendatory shall not extend to
unmarried persons except when they have the care and maintenance of minor brothers or
sisters, or both, or of a brother's or sister's minor children, or of a father or mother, or of
grandparents, or unmarried sisters living in the house with them; and in all such cases the
exemption shall cease upon the cessation of the terms upon which it is granted; and upon the
death of such unmarried person the property shall descend to his or her heirs, as in other
cases, unless disposed of by will, subject to administration and the payment of debts and
liabilities.
It may be admitted that the statute is by no means clear upon the point involved in this
action. Generally it is very crude, and many of its provisions conflicting to the last degree.
Through this maze the courts must thread their way as best they may, and in endeavoring to
carry out what appears to be the spirit of the law their decisions must necessarily, sometimes,
seem to fall but little short of judicial legislation. The language used by the supreme court of
Texas is very applicable to the situation here. It said: The homestead estate was one
unknown to the common law, and is of very recent origin, having been created by statute and
under the construction given by the courts. As might have been reasonably expected in the
legislation upon a new subject matter, the statutes did not in express terms anticipate and
provide for every possible phase of the question, and the courts have been called upon to
construe and apply the law to new cases as they would arise. This construction has almost
invariably been a liberal one, and designed to carry out the beneficent purposes and intention
of the legislature. This court has repeatedly called attention to the necessity of more specific
legislation on the subject, and in the absence of it has been forced to decide cases not so much
from the letter of the law as from its evident spirit and intention. These decisions have not
been made in a spirit of judicial legislation, but in an anxious desire and effort, by analogy
and otherwise, to arrive at a proper construction of the constitution and laws. (Blum v.
Gaines, 57 Tex. 119, 121.) Viewing the law in the liberal spirit here indicated, it seems to
us there is more reason for concluding the legislature intended the homestead in the
hands of the surviving husband to be exempt from execution than the contrary.
here indicated, it seems to us there is more reason for concluding the legislature intended the
homestead in the hands of the surviving husband to be exempt from execution than the
contrary.
The constitution (sec. 30, art. IV.) provides that a homestead, as provided by law, shall be
exempt from forced sale under any process of law, and shall not be alienated without the joint
consent of husband and wife when that relation exists. Under this provision the conditions
upon which a homestead shall be granted have been left entirely to the legislature. While that
body has seen fit to limit the right to initiate a homestead to married persons, and to those
who are heads of families, there seems nothing to prevent its being extended to others who
are not in either situation. If it could do this, it could extend it to some classes and not to
others. It could provide that a homestead once created should continue under some
circumstances, and not under others.
The first section of the act quoted above provides that the husband and wife shall be
deemed to hold said homestead as joint tenants. As used in this statute, the word
homestead may be defined as meaning not only the propertythe real estateoccupied as
the home, but also the right to have it exempted from levy and forced sale. In case of a
husband and wife, the homestead is a home that cannot be taken from the occupiers for the
debts of either or both of the spouses. It is this homestead that they are to hold as joint
tenants. One of the fundamental incidents of a joint tenancy is the right of survivorship. If,
then, when the legislature provided that they should hold the homestead as joint tenants, if
they understood at all the meaning of the language used, as we must presume they did, they
must have meant that the survivor should not only succeed to the property which constituted
the homestead, but also to the right to hold it exempt from forced sale. If not, they would not
hold the homestead as joint tenants, but merely the property covered by the homestead
right.
It will be noticed, further, that the same section also provides that where the property
declared upon as a homestead is the separate property of either spouse, and shall remain such
until the death of one of the parties, the homestead right in such property shall thereupon
cease.
in such property shall thereupon cease. From this, upon the principle that what is enumerated
excludes what is not, it seems quite clear that the legislature must have intended that in case
of community property this homestead right should not cease upon the death of one of
them.
In section 4 it is again the homestead that upon the death of either spouse is to be set
apart as the sole property of the survivor, and it is further provided that, in case there is no
surviving spouse nor children, the property is to become subject to administration. This
shows that the attention of the legislature must have been particularly called to the fact that
there was a distinction between the homestead and the property upon which the homestead
right rested, and that they did not use those terms indiscriminately.
In Tyrrell v. Baldwin, 78 Cal. 470, 476, speaking of a provision of the code, the court said:
That section provides that the court may (shall) of its own motion, or on petition therefor,
set apart for the use of the surviving husband or wife, or in case of his or her death, to the
minor children of the decedent, all the property exempt from execution, including the
homestead selected, designated and recorded,' etc. Here the quality of the exemption is clearly
impressed upon the homestead set aside. It would not be a homestead, it would be wanting in
the main feature which recommends it to favor, if, upon the death of the head of the family, it
were no longer protected by the law of exemption. There is greater necessity for such
protection after the death of one of the spouses than before.
An argument leading to the same result may also be drawn from the provision that, where
there is no surviving spouse nor children, the property shall become subject to administration
and distribution to the heirs. Unless in this provision the legislature intended to provide for a
case where both husband and wife died at the same instant, which is hardly supposable, it
must have contemplated that there would be a time during which the homestead would
continue to exist, when but one of them would be alive, and it is only after the death of the
survivor that the homestead property is to be distributed to the heirs. In Smith v. Shrieves, 13
Nev. 303, this court decided that, upon the death of one of the spouses, the children took no
interest in the homestead.
If the decision is correct, then the fact that there are or are not children cannot alter the estate
that comes to the surviving husband or wife. If it would not, then no case can be thought of
where the homestead would continue after the death of one of the spouses, if it would not
here.
Defendants' counsel, admitting what is really beyond controversy, that upon the death of
the wife the title to the homestead property vested absolutely in the husband, found their
argument that it is not thereafter exempt from levy and sale for his debts principally upon the
language of the first proviso of section 4, where it directs that in all such cases the
exemption shall cease upon the cessation of the terms upon which it is granted. But the view
we take of this provision is that it really strengthens the opposite position. We are of the
opinion that this provio is simply a limitation upon the first section, wherein that section
provides for a homestead for an unmarried person who is the head of a family. Without this
limitation the first section might be construed to apply to cases where an unmarried person
had living with him others who were not relatives. This was carefully guarded againstso
carefully, in fact, that it seems to even prevent a surviving husband or wife with dependent
children from ever securing a homestead in their own right after the death of the other; and
then the clause in question was inserted for the purpose of providing for the termination of
the unmarried persons' homestead when they no longer have dependent relatives living with
them. This, we think, is all that was intended by this clause, and the care of the legislature to
provide for the termination of such a homestead may be considered an indication that they did
not intend one granted to a married person to terminate upon the cessation of the terms upon
which it was granted.
We are aware that in Estate of Walley, 11 Nev. 260, 266, the majority of the court
expressed the opinion that the construction of this statute contended for by defendants'
counsel was correct, but the point was not involved in that case, and, of course, was not
decided. What was there said was stated only by way of argument as to the proper
construction to be placed upon another statute, and probably did not receive the consideration
usually given to points actually decided. Since then, in Smith v. Shrieves, supra, the court has
held that children take no interest in a homestead; and if as heretofore remarked, this
was correctly decided, then the existence or non-existence of children cuts no figure in
the right to a homestead, and, if a childless widow or widower cannot have one, then such
a person with children cannot do so.
has held that children take no interest in a homestead; and if as heretofore remarked, this was
correctly decided, then the existence or non-existence of children cuts no figure in the right to
a homestead, and, if a childless widow or widower cannot have one, then such a person with
children cannot do so. But certainly the legislature cannot have deliberately intended to
exclude a widow, or a widower, with children, from all benefit of the homestead act, and yet,
as we have seen, if they are not granted a homestead by virtue of their survivorship, they
cannot afterwards secure one.
We think that stronger arguments against the view we have taken may be drawn from the
general policy of the homestead act, which seems to aim only at securing a homestead for a
family, and not for individuals, from the fact mentioned by Justice Beatty in his dissenting
opinion in Smith v. Shrieves, supra, that, when our legislature adopted our law of 1865, they
apparently preferred to follow the California act of 1860, which, at best, is not clear upon this
point, in preference to the California amendment of 1862, which is clear and definite that the
homestead in the hands of the surviving spouse is exempt from all debts incurred prior to the
death of the other; from the fact that the legislature clearly did not intend that a homestead in
the separate property of either of the spouses should continue after the death of one, and
consequently, as community property virtually becomes separate property after such death, no
greater reason exists for granting a homestead in that than exists in regard to property which
has always been separate; from the fact that no provision has been made for abandoning such
a homestead, and under the provisions of section 2, taken literally, if a homestead exists at all
to a surviving husband or wife, it never can be abandoned, and, as this cannot have been
intended, the legislature must have intended that no such homestead should exist at all.
But strong as some of these reasons, and perhaps others that could be suggested, are, we
consider those on the other side stronger still, and consequently hold that view to be the law.
While not strictly in point, yet as to some extent supporting the views here expressed, and
showing that other courts upon statutes more or less like our own have come to the same
conclusion, we cite Town v. Rumsey, 35 Pac. 1025; Ellis v. Davis, 90 Ky. 1S3; Keyes v.
Cyrus, 100 Cal. 322; Silloway v. Brown, 12 Allen, 34; Kimbrel v.
upon statutes more or less like our own have come to the same conclusion, we cite Town v.
Rumsey, 35 Pac. 1025; Ellis v. Davis, 90 Ky. 183; Keyes v. Cyrus, 100 Cal. 322; Silloway v.
Brown, 12 Allen, 34; Kimbrel v. Willis, 97 Ill. 494; Blum v. Gaines, 57 Tex. 110; Wap.
Homest. 82, et seq.
____________
22 Nev. 333, 333 (1895) Ex Parte Hewlett
[No. 1429.]
Ex Parte FRED HEWLETT, Petitioner on Application
for Writ of Habeas Corpus.
1Legislative Act Not Broader Than Title.Where the title states that the subject of an act is to amend one
section of a former statute, the act cannot be extended to the amendment of other sections.
2SamePartly Invalid.Where the sections of an act are so separate and independent that one section can be
made to operate in accordance with the intention of the legislature without the aid of the others, and the
invalid section could not have constituted any inducement for the first, the courts will sustain that section,
although the other sections are unconstitutional.
3SameFish Law Construed.Stats. of Nev. 1895, 83, provide that trout shall not be caught from October of
each year to June of each year: Held, that the intention of the legislature was to forbid the catching of
trout from October of one year to June of the next year.
4SameConflict of Provisions.Where there is a conflict between the provisions of the same act, and there
is nothing else to indicate which the legislature intended to be in force, the latest in position will control.
5Same.Where an act forbids the catching of trout from the rivers of a state, and also from the lakes, even if
the provision as to the lakes is so self-contradictory that it cannot be enforced, this will not invalidate the
provision against catching from the rivers.
Original proceeding on application for writ of habeas corpus. Demurrer to petition
sustained.
Torreyson & Summerfield, for Petitioner.
F. H. Norcross, District Attorney of Washoe county, and Robt. M. Beatty,
Attorney-General, for Respondent.
Oral argument. No briefs on file.
The application for the writ shows that the petitioner was convicted in the justice's court of
Reno township, Washoe county, of having willfully and unlawfully caught, with a hook and
line, on the 12th day of April, 1S95, five river trout, in the waters of the Truckee river,
under which conviction he is now imprisoned by the sheriff of said county.
county, of having willfully and unlawfully caught, with a hook and line, on the 12th day of
April, 1895, five river trout, in the waters of the Truckee river, under which conviction he is
now imprisoned by the sheriff of said county. To the application the district attorney of
Washoe county has appeared and filed a demurrer. The petitioner claims that there is no law
forbidding the taking of trout on the 12th day of April.
By Stats. 1893, p. 128, the legislature enacted an amendment to what is known as the
Fish Law, the act consisting of but two sections. Section 1 amends section 2 of the original
act, and contains the provisions as to when it shall be unlawful to catch trout, but permits
taking them after April 1st. Section 2 amends section 4 of the original act and prohibits
common carriers and others from shipping or transporting trout illegally caught. By Stats.
1895, 83, the legislature attempted to further amend the act of 1893. This amendment extends
the close season to June 1st, and the plaintiff's conviction depends upon the validity of this
amendment, as without it there is no law against taking trout after April 1st. It is claimed first
that it is invalid because the title of the act does not express its subject.
Stripped of its verbiage, the title states that it is to amend section 2 of the act of 1893.
Section 1 provides for the amendment of section 2 of that act, as stated in the title, but from
its subject matter, which is substantially, except as to dates, the same as section 1 of the act of
1893, it appears that section 1 is the section they really wished to amend. However, as the
title states that it is an act to amend section 2 of the former act, and the body of the act repeats
that statement, we are of the opinion that it must be taken just as it reads, although it would
seem that a mistake has been made.
But the most serious point is that, after stating in the title that the act is an act to amend but
one section of the act of 1893, it goes on to amend sections 4 and 8 of that act, although, as
just stated, there are but two sections to the act, and consequently no section 4 or 8 to be
amended. Under these circumstances, it would seem that the last two sections of the act of
1895 are unconstitutional, under the provisions of section 17 of article IV. of the constitution,
which directs that "Each law enacted by the legislature shall embrace but one subject, * *
* which shall be briefly expressed in the title."
which directs that Each law enacted by the legislature shall embrace but one subject, * * *
which shall be briefly expressed in the title. Having seen fit to restrict the title of the act to
amending but one section of the former act, the legislature cannot go on in the body of the act
to amend other sections. (State v. Bankers' & M. Mut. Ben. Assn., 23 Kan. 499; Suth. St.
Const., sec. 87.)
But the applicant for the writ was not convicted under either of these sections, but under
section 1, and, admitting their invalidity, the question still remains whether the provisions of
section 1 are not so separable and independent that they can be enforced, notwithstanding the
unconstitutionality of the other sections. We are of the opinion that they are.
It is the first section that provides when trout shall not be taken. The second section
forbids the shipping or transportation of trout taken during the close season, and the third
section forbids the taking of spawn without the permission of the state fish commissioner.
The gist of the act is to preserve the fish of the state by establishing a season during which
they shall not be caught. This is done in the first section, and the penalty for unlawfully
catching them prescribed. If this section is not enforced, there will be no fish to be shipped,
and no means of taking spawn. The other sections are simply supplementary to the first. They
contain provisions calculated to assist in carrying out the main purpose of the law, and to
prevent trout being taken contrary to the directions of section 1; but without them there
remains an act complete in itself, and capable of being executed in accordance with the
apparent legislative intent. This being so, the courts are required to sustain that part of the law
against which the constitutional objections do not exist. Being so entirely separate and
independent, the provisions of sections 2 and 3 should not have constituted any inducement to
the enactment of section 1. (State v. Board of Com., 21 Nev. 235; Suth. St. Const., sec. 169,
et seq.)
Section 1 provides that it shall not be lawful to catch trout between the 1st day of October
of each year and the 1st day of June of each year, and it is argued that the term each year,
as used therein, means the same year, and consequently that it is only between June and
October that the catching of trout is forbidden. In view, however, of the order in which these
dates are arranged, and the practical construction that has always been placed upon the
law, we think the legislature intended the close season to run from October of one year to
June of the succeeding year.
order in which these dates are arranged, and the practical construction that has always been
placed upon the law, we think the legislature intended the close season to run from October of
one year to June of the succeeding year.
It is also said that the section is so insensible and self-contradictory as to when trout may
be taken in the lakes of the state that it is impossible to determine the meaning of the
legislature, and that, consequently, the whole section is a nullity. It must be admitted that in
this, as in most other matters, the act is not a model of careful legislation, as it contains in a
single section three different provisions concerning lake trout. But the principle that where
there is a conflict in the same act the provision which is latest in position repeals the others
(Suth. St. Const., sec. 220; Bish. Writ. Law, sec. 65) would probably apply, and at any rate,
the nullity of the law as to lake trout would not affect the provisions as to river trout. As to
them it is clear.
The writ is refused.
____________
22 Nev. 336, 336 (1895) State v. Wong Fun
[No. 1425.]
THE STATE OF NEVADA, Plaintiff and Respondent,
v. WONG FUN, Defendant and Appellant.
1InstructionMurder, First Degree.A murder not perpetrated by means of poison, lying in wait, or torture,
nor in the perpetration, or attempt to perpetrate, arson, rape, robbery or burglary, can only become
murder in the first degree by being willful, deliberate and premeditated; an instruction which ignores
these conditions, and informs the jury that if they find that the defendant unlawfully and with malice
aforethought killed the deceased, their verdict must be murder in the first degree, is erroneous.
2Malice Aforethought Not Synonymous With Willful, Deliberate and Premeditated.The words willful,
deliberate and premeditated, as used in the statute, defining murder in the first degree, are not
synonymous with malice aforethought.
3VerdictEvidence to Support.Where there is evidence to support the verdict of the jury, the supreme
court cannot reverse the judgment upon the ground of insufficiency of the evidence.
Appeal from judgment on verdict of guilty of murder in first degree and order denying
motion for new trial, from District Court, White Pine county; George F. Talbot, District
Judge.
Henry Rives and F. X. Murphy, for Appellant:
The defendant rests his application for a new trial upon the ground that the verdict is
contrary to law and evidence. If the defendant committed a crime in the killing of the
deceased, it could only amount to murder in the second degree. The evidence, without
contradiction clearly establishes that the killing was done without premeditation, or any
mixture of deliberation, when the situation of the parties was equivocal and the provocation
offered by the deceased was very great and calculated to exasperate and greatly excite the
defendant, and while the attitude of the deceased was menacing and threatening. There is no
contradiction in the evidence but that the defendant was greatly excited at the time of the
killing, and for some time thereafter. There is no contradiction in the evidence but that the
defendant for many years prior had been, and at the time of the killing continued to be,
insane, or at least of unsound mind, and hence lacking in discretion, and this, taken in
connection with the circumstances surrounding the parties, establishes that the crime, if crime
was committed, could not have exceeded murder in the second degree. The verdict, taken in
connection with the evidence, shows that it was the result of prejudice on the part of the jury.
Robt. M. Beatty, Attorney-General, and A. B. Treece, District Attorney of White Pine
county, for Respondent:
Appellant having waived all legal grounds of exception save the statutory Sixth, Crim.
Prac. Act, sec. 128, and believing that the cobwebian argument of counsel for appellant has
been successfully brushed aside, we will attempt to reply to the only point in appellant's brief
that has even a semblance of foundation upon which to be based, and will confidently submit
the case as appellant has done, upon the sole argued exception, namely, that the verdict is
contrary to law and evidence, and that the killing could amount to only murder in the second
degree, if at all a crime. That the killing was a crime cannot be gainsaid; if a crime, the killing
must necessarily have been unlawful, and if with malice aforethought, it amounted to murder
(Com. Laws, sec. 2321), and it remained for the jury to fix the degree. It has done so, and this
court will not interfere therewith. The fact being that appellant relies wholly in this court
on the "sixth" statutory ground of exception, the court will consider the appeal only upon
that question, and will, under the circumstances, not disturb the judgment of the district
court.
fact being that appellant relies wholly in this court on the sixth statutory ground of
exception, the court will consider the appeal only upon that question, and will, under the
circumstances, not disturb the judgment of the district court.
Robt. M. Beatty, Attorney-General, at request of the Court, further for Respondent:
The court having called special attention at the oral argument of this case to one of the
instructions and asked my views upon it and kindly given me permission to file the same in
writing, I herewith present this:
The indictment is for without authority of law and with malice aforethought killing
deceased by shooting him with a pistol as charged in the indictment; it must be murder in
the first degree.
It was laid down by this court in an opinion by one of the present justices as follows:
Indictments for murder charging the act to have been done with malice aforethought, is
tantamount to an averment that the act was willful, deliberate and premeditated. (State v.
Hing, 16 Nev. 308-9.)
Again, in People v. Vance, 21 Cal. 402, cited by Justice Belknap in the Hing case, supra,
the matter is set forth to the same effect simply transposed. Justice Field in this decision says:
The objection that malice aforethought is not used in the indictment is met by the fact that
words equivalent in their import to malice aforethought are used,' viz., willfully maliciously,
feloniously and premeditatedly.'
Now let us go back to the first case decided on the Pacific coast on this subject, as early as
1858, and which is the foundation of all the cases on the subject since. There we find that the
court, in passing upon malice aforethought, adopts Webster's definition of aforethought
as meaning premeditated, and declares deliberate and premeditated to be synonymous.
(People v. Dolan, 9 Cal. 583.)
And these cases, except one, all resulted in convictions of capital crimes. Hence I say if
these be all tantamount (State v. Hing), or equivalent in import (People v. Vance), and
synonymous (People v. Dolan), as used in the indictment, then without authority of law
and with malice aforethought by shooting with a pistol as charged in the indictment, as used
in this instruction, must necessarily be tantamount and of equivalent import to and
synonymous with willfully, maliciously, feloniously, deliberately and premeditatedly.
tantamount and of equivalent import to and synonymous with willfully, maliciously,
feloniously, deliberately and premeditatedly. What else could it be? Could a man possibly kill
another without authority of law and with malice aforethought by shooting him with a pistol,
as charged in this indictment, and be guilty of any less crime than murder in the first degree
when malice aforethought as used in this indictment means or is tantamount and equivalent in
import to and synonymous with willfully, maliciously, feloniously, deliberately and
premeditatedly? And can we even imagine that malice aforethought does not mean and
embrace every other one of these terms? Could the instruction have been made any more
legal by tautologizing it so that it would have read malice aforethought with all the synonyms
thus: If you believe, etc., without authority of law and with malice aforethought, willfully,
maliciously, feloniously, deliberately and premeditatedly kill, as charged in the indictment, by
shooting with a pistol. I submit that it would not, and if all not necessary, then none of these
synonyms or tantamount words were. Again deliberation and premeditation are used neither
connectively nor disjunctively, but synonymously in our statute, and if either be proven the
killing will be murder of the first degree. Under our statute, says this court in 15 Nev. 415,
express malice necessarily renders any murder murder of the first degree. There may be
murder of the first degree without it, but it cannot coexist with murder of the second degree.
In this instruction the jury is charged that it must find malice and that, too, aforethought,
i.e., premeditated. (Webster and State v. Dolan, supra), and if premeditated malice and that
malice express, it is murder in the first degree by this case of State v. Lopez, and in the case
now submitted to this court all the evidence proves beyond a reasonable doubt that the
defendant killed deceased with that deliberate and premeditated, i. e., malicious, intention
unlawfully to take away the life of a fellow creature. Manifested by external circumstances
capable of proof is defined by our statute to be express malice. (Crimes and Punishment Act,
sec. 16.)
Nowhere in the case can a scintilla of proof be found to establish implied malice, but if it
were there, it would make no difference to the defendant, because any malice aforethought
constitutes deliberation, premeditation, etc., etc.,
thought constitutes deliberation, premeditation, etc., etc., which, with the balance of the
charge and the instructions taken altogether, constitutes murder of the first degree.
If this be not all sufficient, I call the court's attention to the fact that as this court ever
construes and considers the whole case together, this questioned instruction is immediately
followed by others defining the degrees of murder and all the grades and classes of homicide,
so that even if this instruction does not state the whole law of the case, which I can never
confess in the light of the foregoing authorities, still, any evil that might have arisen from its
supposed erroneousness was wholly cured by what followed and was given in connection
with it, and the defendant could not have been prejudiced by it in the light of all the testimony
and all the instructions, and leaving the case I respectfully urge a consideration of section 33
of our crimes and punishments act.
The defendant was convicted of murder in the first degree and appeals. The charging part
of the indictment reads as follows: The said George Fong, on the 4th day of October, A. D.
1894, or thereabouts, without authority of law, and with malice aforethought, killed one Hing
Lee, a human being, by shooting him with a pistol, at said county, State of Nevada.
Under our statute dividing murder into two degrees, and the one providing a form of
indictment, this indictment is sufficient to support a verdict of murder in the first degree,
although it does not charge that the killing was done with premeditation and deliberation.
(State v. Millain, 3 Nev. 409, 439; State v. Thompson, 12 Nev. 140; State v. Hing, 16 Nev.
307.)
In the second instruction, marked State's Instruction, the court instructed the jury as
follows: The court instructs you that if, from all the evidence, you are satisfied, beyond a
reasonable doubt, that the defendant, Wong Fun, on the 4th day of October, A. D. 1894, at the
county of White Pine, State of Nevada, without authority of law, and with malice
aforethought, killed Hing Lee by shooting him with a pistol, as alleged in the indictment, your
verdict must be, Guilty of murder in the first degree.' And again, in "State's Instruction No.
State's Instruction No. 1, the jury were instructed that if they were satisfied, beyond
reasonable doubt, that he did kill the deceased at the time and place and in the manner
charged in the indictment, without legal justification, your verdict must be, Guilty of murder
in the first degree.'
These instructions are clearly erroneous. They define murder in the second degree, and
then inform the jury that, if they find those conditions to exist, they must convict the
defendant of the first degree. Section 17 of the act concerning crimes and punishments (Gen.
Stats., sec. 4581) provides that: All murder which shall be perpetrated by means of poison,
or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or
which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape,
robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder
shall be deemed murder of the second degree. As it is not claimed that the murder in this
case was perpetrated by means of poison, or lying in wait, or torture, nor that it was done in
the perpetration, or attempt to perpetrate, any of the other offenses mentioned, it could only
become murder of the first degree by having been willful, deliberate, and premeditated.
Without these constituents, the crime would only be murder of the second degree, and it is the
failure to notice these most important conditions in the definition of murder of the first degree
that makes the instructions erroneous. (State v. Millain, 3 Nev. 409, 445; State v. Anderson, 4
Nev. 265, 276; People v. Valencia, 43 Cal. 552; People v. Iams, 57 Cal. 115, 117; People v.
Gaunce, 57 Cal. 154; People v. Grigsby, 62 Cal. 482.)
The reference to the indictment does not help the instructions any upon this point, because,
as we have seen, the indictment does not allege that the killing was committed willfully,
deliberately and premeditatedly; conditions that, although not necessary to be stated in the
indictment, must be found by the jury to exist, before they are justified in rendering a verdict
of murder in the first degree.
It is argued by the attorney-general that the term malice aforethought, used in the
instruction, is equivalent to the terms willful, deliberate and premeditated, but we cannot
agree with that contention. Malice aforethought must exist in both degrees of murder, but if
nothing more is shown it is murder of the second degree.
in both degrees of murder, but if nothing more is shown it is murder of the second degree.
(Whart. Hom., sec. 194.) The adjectives willful, deliberate and premeditated, as used in the
statute, mean something over and above malice aforethought. (People v. Long, 39 Cal. 694;
People v. Doyell, 48 Cal. 85.)
There was some evidence to support the verdict of murder in the first degree, and under
these circumstances, whether it was such or not, and whether the defendant was insane at the
time of the killing, were questions pre-eminently for the jury. With their conclusions this
court cannot interfere. (State v. Raymond, 11 Nev. 99; State v. Crozier, 12 Nev. 300; State v.
Mills, Id. 403.)
The judgment is reversed, and cause remanded for a new trial.
____________
22 Nev. 342, 342 (1895) State v. Hartley
[No. 1424.]
THE STATE OF NEVADA, Plaintiff and Respondent, v.
ALICE M. HARTLEY, Defendant and Appellant.
1Constitutional LawNumber of Grand JurorsChallenging JurorsHomicideView of Premises by
JuryInsanityInstructions.Section 8 of article I. of the constitution declares: No person shall be
held to answer for a capital or other infamous offense * * * except on presentment or indictment of a
grand jury. Held, that, when the people adopted these provisions of the bill of rights, they had in view a
grand jury as it existed under the common law and the statutes at the time the constitution was adopted:
Held, further, that the acts of the legislature of 1893, providing that ten persons shall constitute the grand
jury, and that eight of the number may find an indictment, are unconstitutional.
2Under the common law, the statutes, and constitution, the defendant may waive his objections to the
qualifications of jurors; and if he fail to challenge before the jury is completed, knowing of the
disqualification, he waives his objections, and is estopped from demanding, as matter of right, a new trial
on the ground of such disqualification; and, in contemplation of the constitution, he has not in such case
constitutional grounds for the objection that he has not been tried by a constitutional jury.
3On appeal a party cannot complain of the ruling of the court in denying his challenge to a juror for cause if it
appear that, when the jury was completed, his peremptory challenges had not been exhausted.
4A view of the premises is not taking evidence in the case. It is means provided by the statute to enable the
jury more satisfactorily to weigh the evidence given in court. When the action of the court is taken
and the view is made on motion of the defendant, and no request or expression of a
desire on his part to be present was made, his absence is not ground for new trial,
nor is the absence of the judge legal cause of complaint.
the court is taken and the view is made on motion of the defendant, and no request or expression of a
desire on his part to be present was made, his absence is not ground for new trial, nor is the absence of
the judge legal cause of complaint.
5Held, that the accused is presumed to be sane until the contrary is shown; and, where there is no evidence
tending to show insanity of the defendant at the time of the commission of the alleged offense, the action
of the court in refusing to give instructions asked for by the defendant or in giving instructions of its own
motion on the subject of insanity will not be reviewed by the appellate court.
6The court instructed the jury: In considering the weight and effect to be given to her evidence, in addition to
noticing her manner and the probability of her statement, taken in connection with the evidence in the
case, you should consider her relations and situations under which she gives her testimony, the
consequences to her relating from the result of the trial, and all the inducements and temptations which
would ordinarily influence a person in her situation. You should carefully determine the amount of
credibility to which her evidence is entitled. If convincing and carrying with it a belief in its truth, act
upon it; if not, you have a right to reject it. Held, correct.
7The court instructed that if the defendant shot at the deceased with intention to kill him, and not in necessary
self-defense, then certain facts enumerated in the instruction would not constitute any defense to the
shooting. Held, as applied in this case, that the instruction was not misleading, nor prejudicial to the
defendant, because it only recited a part of the facts relied upon by defense, nor was it a charge upon a
matter of fact.
8DefenseInsanityRules Governing.See opinion.
Appeal from judgment on verdict of guilty of murder in second degree and order denying
motion for new trial and motion in arrest of judgment, from District Court, Washoe county;
A. E. Cheney, District Judge.
The facts sufficiently appear in the opinion.
Robert M. Clarke and Goodwin & Dodge, for Appellant:
Defendant herein has been deprived of her liberty without due process of law, in that she
was indicted by an illegal grand jury. The law (Stats. 1893, pp. 31-43) prescribes that twelve
persons shall be selected from the jury list who shall be summoned to appear as grand jurors,
and out of the number summoned the court shall elect ten persons who shall constitute the
grand jury, etc., etc. In this case twenty-four persons were selected and summoned, and
seventeen out of said twenty-four, instead of ten out of twelve, comprised the illegal grand
jury that found the indictment herein.
No person shall be tried for a capital or other infamous crime, * * * except on
presentment or indictment of a grand jury, * * * nor be deprived of life, liberty or property
without due process of law. (Art. I., sec. 8, Constitution.) Due process of law requires that
a party shall properly be brought into court. (Wright v. Cradlebaugh, 3 Nev. 310, 316.)
There is no constitutional provision prescribing the number of persons required to
constitute a grand jury. At common law, a grand jury may consist of any number between
twelve and twenty-three. (State v. Davis, 2 Ged. 153.) But frequent statutory departures from
this rule have been made. Thus, in Florida (Act of February 25, 1875), and in some counties
in Alabama (Sess. Acts 1878, 1879, p. 204), fifteen was fixed as the proper number. (Keech
v. State, 15 Fla. 591; Cream v. State, 70 Ala. 18; Thompson v. State, 70 Ala. 26.) In Maine
the number was originally thirteen, but was reduced to eleven. (State v. Symons, 36 Me. 128;
Rapalje's Crim. Proc., sec. 66.) In Reynolds v. U. S., 98 U. S. 145, one assignment of error on
appeal was: Is the indictment bad because found by a jury of less than sixteen persons?
(Hularde v. California, 110 U. S. 232; 8 Grey 329; 1 Idaho, 560; 30 Wis. 149; 61 Ala. 205;
22 Ark. 210; 20 Fed. Rep. 237; 33 Miss. 356; 30 Mo. 600; At Rep. 1110 (State v. Lee); 11
Richardson, S. C. 581-9; 3 Utah, 488.)
The jury was not a good jury under the constitution of Nevada. Seven of the jurors were
prejudiced against the defendant, and were disqualified under the common law, and under the
constitution and statutes of Nevada. The term jury,' as used in the constitution, means
twelve competent men who are free from all the ties of consanguinity and all other relations
that would tend to make them dependent on either party. It means twelve men who are not
interested in the event of the suit, and who have no such bias or prejudice in favor or against
either party as would render them partial to either party. (Const. Nevada, art. I., sec. 3; State
v. McClear, 11 Nev. 39, 46.) A jury for the trial of the cause is a body of twelve
menupright, well qualified and lawful men, disinterested and impartial. (11 Nev. 60.)
The jury was in fact no jury. (Thompson on Trials, sec.
116, note 1; Thompson and Merriman on Juries, sec. 223, note 1, p. 241; 6 Baxter (Tenn.)
466.)
The right to have a constitutional jury cannot be waived by defendant or defendant's
counsel. (Const., art. I., sec. 3; 11 Nev. 39, 46, 60, 68; 68 Cal. 623, 632; 17 Ill. 325; 18
Johnson, 217; 18 N. Y. 128, 135, et seq.; 1 Neb. 385; 2 Ohio St. 296; 16 Ind. 496; 16 Ark.
601; 61 Ga. 639; 17 Ark. 298; 80 Cal. 538.)
The juror Johnson was disqualified, having formed and expressed an unqualified opinion
concerning the guilt of the defendant. (Gen. Stats., secs. 4220, 4596; 12 Eng. 354, 355 and
note; Thompson & Merriman, secs. 215, 217, note 1; 11 Nev. 39, 64, 68; 3 Nev. 409, 426,
431.)
The fact that a disqualified juror believes he could lay his opinion aside and render a fair
verdict is not material. (Thompson & Merriman on Juries, sec. 220; 40 Cal. 78; 29 Cal. 635.)
The test is not what the person's mind will be after he has heard the evidence, but what it is
before he is taken as a juror. The contrary rule which prevails in New York (53 N. Y. 164; 80
N. Y. 484) depends upon a statute and is questioned. (Thompson & Merriman on Juries, 222,
223.)
It is immaterial what the source of opinion is. (Thompson on Trials, sec. 78, p. 78 and note
2; 74 N. Y. 277, 283.)
An opinion which requires evidence to remove will disqualify. (Thompson on Trials, sec.
80; 11 Cal. 68; Polk v. State, 45 N. H. 165.)
A preference in case the evidence were evenly balanced will disqualify. (Thomp. on Trials,
sec. 73, p. 64; Chicago R. R. Co. v. Alder, 56 Ill. 345; Chicago R. R. Co. v. Button, 66 Ill.
347; 73 Ill. 494; 98 Ill. 472; 42 Ohio St. 596.)
Defense of insanity should not be looked upon with disfavor. (State v. Lewis, 20 Nev.
349.)
Instructions must be applicable to the particular case. (20 Nev. 237, 349, 351.)
The court erred in denying defendant's instruction No. 1. It was given verbatim in State v.
Lewis, 20 Nev., supra. Also, Laws on Crim. Defense, p. 285, 288; 8 Abbott's Prac. N. S. 57,
72, 73, 95; 7 Abbott's N. S. 321.
The court erred in denying instruction No. 6 by defendant.
(State v. Lewis, supra; 2 Laws on Crim. Defense, supra; 8 Abbott's Prac. N. S. 57, 95, 96,
100.)
The court erred in denying the request of defendant and in giving the general charge, in
effect, that a doubt of defendant's sanity was not sufficient; that her insanity must be
established by a preponderance of evidence. (Thompson on Trials, secs. 2525, 2526; 40 Ill.
358; 66 Ind. 94, 106; 25 Kan. 213; 38 Ga. 507; Gen. Stats. 4565-7.) But it is decided to the
contrary and the court's action is supported by State v. Lewis, 20 Nev. supra.
The court erred in charging the jury specially concerning the testimony of defendant.
Under the laws of Nevada defendant is a competent witness in her own behalf. (Gen. Stats.,
sec. 4562; 19 Nev. 135, 141; 19 Nev. 290; 16 Nev. 120, 126; Thomp. on Tr., sec. 2446; 62
Wis. 705; 105 Ind. 117, 123; 107 Ind. 154; 20 Nev. 333; 16 Nev. 120, 126.)
It is error to enjoin upon the jury as a duty to consider the interest of the accused. (96 Ind.
461; 56 Ind. 179.)
The jury cannot reject defendant's evidence unless contradicted by other evidence or the
circumstances of the case. (Buckley v. State, 62 Miss. 705, 706.)
The court erred in reciting a portion of defendant's testimony and in charging that the
effect of such facts, to wit: if you believe them true, each and all of them, or any of them,
constitute (as a matter of law) no legal excuse or justification. (State v. Bond, 1 Nev. 33;
State v. Ah Hong, 7 Nev. 148, 152; State v. Fergeson, 9 Nev. 118; Wharton's Crim. Ev., secs.
337, 338, 340; 16 Nev. 416; 2 Laws on Crim. Defense, pp. 416, 422; State v. Smith, 53 Mo.
267; 46 Mo. 414; 59 Ga. 249; Thomp. on Tr., secs. 2281, 2287; 9 Allen, 276; 49 Cal. 174,
181; 75 N. C. 275; 65 Cal. 568; 23 Tex. 195, 202; 43 N. H. 224; 85 Vt. 308; 40 Conn. 139;
17 Mich. 9; 32 Mich. 1.)
The court erred in permitting the jury to view the locus in quo of the homicide without the
presence of the judge and jury. (68 Cal. 623, 630; 71 Cal. 606; 74 Cal. 569; 80 Cal. 538, 541;
53 Cal. 60; 42 Tex. 444; 30 Ark. 328, 348; 24 La. Ann. 46; 5 Neb. 32, 35, contra 20 Kan.
311, 324; 8 Or. 214, 217.)
The judge must accompany the jury. (74 Cal. 569, 570; Thomp. on Tr., sec. 884, p. 674;
61 Wis. 184.)
It was error to permit John Caughlin and L. Jameson to accompany the jury. (Thomp. on
Tr., supra.)
The objection is not waived nor is the error cured by defendant's silence. (Thomp. on Tr.,
sec. 885; Bostock v. State, 61 Ga. 635, 639; State v. Lopez, 15 Nev. 412.)
The court erred in excluding the testimony to prove efforts of defendant to leave Reno, and to
show defendant's property and calling.
At most defendant is guilty of manslaughter.
Robt. M. Beatty, Attorney-General, and W. E. F. Deal, of Counsel, for Respondent:
After full statement of the facts and argument thereon:
There was no relevant, material or competent testimony of any fact or circumstance of
anything which occurred prior to the 26th day of July, 1894. All the testimony in the record as
to matters prior to the 26th day of July was as to matters that were no part of the res gestae,
and such testimony cannot be considered except for the purpose of determining whether such
fact or thing has any bearing upon any defense made by the defendant, and the testimony as to
such matters was admitted solely on account of the statement that her defense was that she
killed deceased in necessary self-defense and that she was insane at the time she shot him.
There was no testimony even tending to show that the defendant was insane, but, on the
contrary, it appeared from the testimony that she was in full possession of her faculties at the
time and that she took the law into her own hands fearless of consequences and boasting of
what she had done.
An error in charging the jury as to a matter about which there was no evidence could not
prejudice the defendant. (People v. Wheeler, 65 Cal. 77.)
The question of the insanity of the defendant was, however, submitted to the jury by the
court below by instructions as to the law of insanity, which are in accordance with the
decisions of this court. The instructions asked by the defendant which were correct were
embodied in the instructions of the court, and those asked by defendant and refused by the
court have been held by this court to be incorrect. (State v. Lewis, 20 Nev. 333; see also
decision of Judge Cheney annexed hereto.)
The grand jury which indicted defendant was not selected under Stats. 1893, pp. 31-43, the
district court holding that law to be unconstitutional, as all the district courts of this state,
without exception, have held. The grand jury which found the indictment was constituted as
required by the laws in force at the time of the approval of the act of 1893. The constitution
does not provide what number of persons shall constitute either a petit or grand jury. This
court, in State v. McClear, 11 Nev. 45, approved the case of Dowling v. State of Miss., 5
Smede & Marshall, 682. The reason of this court, in the case of State v. McClear, against the
jury law of 1875 applies with equal force to the grand jury law of 1893. This court held the
law of 1875 unconstitutional because it destroyed or impaired the right of trial by jury as it
existed according to the course of common law. (State v. O'Flarity, 7 Nev. 157; State v.
Cohn, 9 Nev. 189; State v. McClear, supra, 59, 61.)
The legislature has no power under the constitution to deprive the defendant of his right to
have a criminal charge against him investigated by a grand jury of less than seventeen
persons, nor to be deprived of the right to have such charge ignored unless twelve of the
grand jurors concur in the indictment. See decision of Judge Cheney in denying motion for
new trial, prox., and State v. McClear, supra.
The jury which tried the defendant was composed of twelve good and lawful men accepted
by defendant after a careful examination by her counsel. Upon examination of the jurors of
their voire dire six of them stated that they had formed or expressed unqualified opinions as
to the guilt or innocence of the defendant. The defendant accepted these six jurors,
notwithstanding their testimony, and by her counsel she now claims that she did not have a
fair trial before a good jury. She cannot be heard to complain after the verdict of such a jury.
She had the right to challenge these jurymen and cannot now be heard to say that they were
prejudiced against her. A defendant in a criminal case cannot speculate as to such matters and
complain when the result proves contrary to expectations.
The defendant did not exhaust all her peremptory challenges, and no legal injury resulted
from denying her challenge to the juror Johnson as she could have discharged him by
exercising her statutory right.
lenge to the juror Johnson as she could have discharged him by exercising her statutory right.
The affidavit touching Mr. Johnson's statement before he was called as a juror is traversed
by his affidavit. The affidavit used in behalf of defendant upon motion for new trial was
insufficient, as it did not show that defendant and her attorneys were ignorant of the matters
affecting the juror's competency. (Thompson & Merriam on Juries, pp. 304, 305, and note.)
The refusal of the court to allow the challenge of the juror Johnson is not one of the
grounds for which a new trial can be granted. (Gen. Laws, sec. 4308; see, also, State v.
Marks, 15 Nev. 33.)
The instructions of the court were correct. If there was any error, it was in favor of defendant.
None of the instructions assumed any fact to have been established. See decision of Judge
Cheney denying motion for new trial and authorities cited, prox.
The instructions of the court fully covered the case and were in accordance with the
decisions of this court. No judge could more strictly have followed the principles of law
applicable to this case as laid down by this court than was done by the learned judge who
tried this case.
It is now claimed on the part of appellant that it was error to permit the jury to visit the
premises without the presence of the defendant. The order of the court was made under
sections 4257, 4258, Gen. Stats. These sections have been construed by this court in the case
of State v. Lopez, 15 Nev. 411, against appellant's contention. See, also, Jones v. State, 38 N.
E. 80, 81; 19 Minn. 211; 78 Ky. 639; Rice on Ev., vol. III. (Crim.) pp. 175-180; Gen. Stats.,
sec. 4308.
Defendant did not ask to be allowed to accompany the jury, and it is extremely doubtful
whether a defendant has any right to accompany the jury. All the jury is sent to do is to view
the premises in the custody of the sheriff. In this case no one accompanied them except the
sheriff. The sheriff's deputies were with them, but they went in their official capacity and
were in law but one person.
The verdict in this case was fully supported by the evidence. In fact, no legal defense was
made by the defendant. During the trial evidence entirely irrelevant was admitted on behalf of
the defendant, which could not but have resulted favorably to her in its effect upon the
jury.
on behalf of the defendant, which could not but have resulted favorably to her in its effect
upon the jury. This, together with the sex and condition of the defendant, resulted in a verdict
less severe than the law and evidence justified, coupled with a recommendation to the mercy
of the court, which recommendation received due consideration. There has been a trial in this
case, and a merciful one, under the law and the evidence, in its result to the defendant.
The defendant is not corroborated in her story by any one, nor by any circumstance in the
case. On the contrary, her account is so utterly improbable as to destroy itself. This court will
not disturb the verdict of a jury after a denial of a motion for new trial by the court which
tried the case where the evidence is conflicting, and much less will it do so where the
evidence is all one way and consistent only with the guilt of the defendant.
from decision of judge cheney on motion in arrest
of judgment.
No question is made about the validity of the grand jury, except that the legislature in 1893
reduced the number from seventeen to ten, and enacted that the concurrence of eight instead
of twelve should be sufficient to find an indictment (Stats. 1893, pp. 31, 43, 62), and the
grand jury which indicted the defendant exceeded that number. Unless this act of the
legislature is constitutional the motion must be denied.
At common law a grand jury could consist of any number not less than twelve or more
than twenty-three, but no bill could be found, unless at least twelve agreed thereto. An
indictment found by any less number was a nullity. (1 Chitty's Crim. Law, 306; 2 Hale Pleas
Cr. 161; 4 Black. Com. 306; 1 Wharton Crim. Law, sec. 465; 1 Bish. Crim. Prac. 854; Proff.
on Jury Trial, sec. 45; Thomp. & Mer. J. T., sec. 464, note 1; Corn v. Wood, 2 Cush. 149;
People v. Hunter, 54 Cal. 70.)
Under the territorial legislation of Nevada, a grand jury consisted of seventeen, and twelve
must consent to find an indictment. (Stats. 1861, pp. 139, 458, 459.) In the constitutional
convention of 1864 a proposition to authorize prosecution by information, without the
intervention of a grand jury, unless the legislature should otherwise provide, was defeated.
was defeated. (Const. Deb. & Proc., pp. 60, 196, 199, 774, 775.) When the people of this
state adopted a constitution and declared in section 8, article VII., that no person shall be
tried for a capital or other infamous offense, * * * except on presentment or indictment of a
grand jury, did they mean such a grand jury as was then known, both by common and
statutory law, or such a one as the legislature might see fit to create? The answer is manifest.
The right of trial by jury is secured by the same article of the constitution. This provision,
says the supreme court of this state, has reference to the right of trial by jury as it existed at
the time of the adoption of the constitution. (State v. McClear, 11 Nev. 39.)
It is therefore believed that the legislative attempt of 1893 to change the grand jury is
unconstitutional and void. (State v. English, 12 So. Rep. 689; People v. Hunter, 54 Cal. 70;
Harding v. State, 22 Ark. 211; State v. Clayton, 11 Rich. So. Car. Law, 590.)
The legislation of 1893 being unconstitutional it did not repeal the law which it attempted
to amend.
extract from judge cheney's decision denying motion
for new trial.
If a defendant willfully takes his chances with a juror, he must abide the result, else he
could always get a new trial by simply refusing to exercise his right. (State v. Anderson, 4
Nev. 265-279.)
The taking of a view of the premises is objected to because neither the defendant, judge or
clerk were present. Admitting that some authorities seem to hold the contrary, the weight of
reason and authority is that the right of defendant to be present with judge and clerk when a
view is had, if such a right exists, is statutory and not constitutional, and, whatever the right
may be, it is one which the defendant may and does waive, where the action is taken upon his
request and without objection or protest against the manner in which it was done. (17 Nev.
365; 6 Crim. Law, 182; 105 Ind. 290; 4 N. E. Rep., p. 70; 35 Pac. Rep. 706; 34 Pac. Rep.
1103; 20 Kan. 311; 15 Nev. 407; 8 Or. 217; 47 Ohio St. 234; 24 N. E. Rep. 368; 27 Iowa,
503; 19 Cal. 426; 80 Cal. 538; 5 Neb. 32; 15 Or. 262; 32 N. W. 849.)
The charge upon the question of insanity, and the burden of proof upon that issue, is
substantially the same as that in State v. Lewis, 20 Nev. 333
of proof upon that issue, is substantially the same as that in State v. Lewis, 20 Nev. 333.
The instruction respecting the evidence of the defendant, to which objection is now made, has
been three times approved by this supreme court. (15 Nev. 51; 16 Nev. 310; 19 Nev. 171.)
The existence of pregnancy was not shown to be a predisposing cause to mental instability,
and, even if it had been shown to be such, that did not dispense with proof that insanity in fact
did exist at the time of the homicide. (Sawyer v. State, 35 Ind. 80; 2 Law Crim. Defense,
790.)
No person, expert or otherwise, testified to the mental unsoundness of defendant before or
at the time of the shooting. If there was no evidence of insanity, the failure to further instruct
was not error. (65 Cal. 77.)
Complaint is also made because the court charged the jury that if certain things were
believed by them to be true they did not constitute any legal justification for firing the first
shot. In this instance, as in many others, the objection is fully answered by the decisions of
this supreme court. (State v. Anderson, 4 Nev. 266.)
Finally, * * * to permit an individual to take the life of another, not in necessary self-defense,
because he believed that another had done that which merits extreme punishment, would be
to destroy a principle of law which lies at the very foundation of all order, society and
government.
On the 26th day of July, 1894, the defendant, Alice M. Hartley, killed M. D. Foley, in her
rooms, in the building of the Nevada bank, in the town of Reno, Washoe county, Nevada, by
shooting him with a pistol, for which she was indicted for the crime of murder on the 3d day
of August, 1894, by the grand jury of that county. Subsequently she was tried in the district
court of said county, found guilty of murder in the second degree by the verdict of the trial
jury, and by the judgment of the court was sentenced to serve a term of eleven years in the
state prison. The defendant appeals from the judgment of the district court, and from the order
of the court denying her motion for new trial. The record is replete with objections made and
exceptions taken by the defendant to the proceedings and rulings of the trial court from
the beginning to the termination of the case.
taken by the defendant to the proceedings and rulings of the trial court from the beginning to
the termination of the case.
1. The Grand Jury: In the Statutes of 1893 (page 31) it is provided that twelve persons
shall be summoned to appear as grand jurors, and out of the number so summoned the court
shall select ten persons, who shall constitute the grand jury. By the same statutes (page 43) it
is provided that an indictment shall not be found without the concurrence of eight grand
jurors. The grand jury to which objection is made was selected and impaneled under the
provisions of the General Statutes (sec. 3795), which require that twenty-four persons shall be
selected and summoned, and of this number the court shall select seventeen persons to
constitute the grand jury. Sections 4106 and 4107 require the concurrence of twelve grand
jurors to find an indictment. The contention of the defendant is that the grand jury should
have been organized in pursuance of the provisions of the Statutes of 1893, and, not having
been so organized, that it was an illegal body. At common law, the grand jury may consist of
any number between twelve, as the minimum, and twenty-three, as the maximum, and an
indictment found without the concurrence of at least twelve grand jurors is invalid.
As to these common-law rules, all the elementary writers on the subject are agreed, and
they are recognized by a great number of the courts of last resort. Of these we cite 2 Hawk. P.
C. 295; Hale, P. C. 161; Co. Litt. 156b; 1 Chit. Cr. Law, 306; Forsyth, Jury Tr. 178; Cooley,
Bl. 304; Story, Const., sec. 1784; King v. Marsh, 1 Lead. Cr. Cas. 260; State v. Davis, 2 Ired.
153; Com. v. Wood, 2 Cush. 149; Low's Case, 4 Greenl. 439; Hudson v. State, 1 Blackf. 317;
People v. Hunter, 54 Cal. 65; State v. Symonds, 36 Me. 128; State v. Ostrander, 18 Iowa,
453.
No man can be convicted at the suit of the king of any capital offense unless by the
unanimous voice of twenty-four of his equals and neighbors; that is, by twelve at least of the
grand jury in the first place assenting to the accusation, and afterwards by the whole petit jury
of twelve more finding him guilty upon his trial. (Cooley, Bl., 3d ed., 304.)
At the time of the adoption of the constitution of Nevada, wherein it is declared, No
person shall be tried for a capital or other infamous offense * * * except on presentment or
indictment of a grand jury" {art. I. sec.
or other infamous offense * * * except on presentment or indictment of a grand jury (art. I.
sec. 8), the provisions of the General Statutes (secs. 3795, 4106, 4107) which are declaratory
of the common law were in force, being enacted by the territorial legislature of 1861. We,
therefore, conclude that, when the people of this state adopted this constitutional provision,
they had in view a grand jury, as it existed at common law and under the statutes at the time
of the adoption of the constitution. It is so held by this court with reference to the right of trial
by jury in construing the third section of the same article of the constitution. (State v.
McClear, 11 Nev. 39.) The reasoning in that case is applicable to the question at bar.
Defendant's counsel cite a great number of authorities to the effect that a grand jury may
consist of a less number than twenty-three, but we are not referred to any authority holding
that the number may be less than twelve, or that less than twelve can find an indictment under
the common law or constitutional provision similar to ours. The authorities cited are not in
point. So, waiving all question as to how the objection to the grand jury should have been
raised, or whether it was properly raised by the various motions and objections made in the
case, we are of the opinion that the district court did not err in holding that the said Statutes of
1893 are unconstitutional, and that the grand jury which found the indictment was a legal
body.
2. The Trial Jury: The defendant's counsel urge as objections to the trial jury that seven of
the jurors were prejudiced against the defendant, and were disqualified under the common
law and under the constitution and statutes of Nevada, and that the right to have an
impartialthat is, a constitutionaljury cannot be waived by the defendant, much less by the
defendant's attorneys. Their objections go to the jurors Kinney, Coffin, Haish, Palmer,
Fulton, Bryant, and Johnson. In answer to questions asked by defendant's counsel touching
their qualifications as jurors, several of them, each, frankly answered that he had formed an
unqualified opinion as to the guilt or innocence of the accused. Under this state of facts, the
defendant and her counsel failed to challenge any of the six jurors first above named, but
accepted them without objection.
It is now urged by counsel with great earnestness and ability that, by reason of the
disqualification of these jurors, the defendant did not have a fair and impartial triala trial by
jury as guaranteed by the constitution. This contention will not stand the test of reason and
authority. At the time of the adoption of the constitution of this state, the manner of
impaneling trial jurors, and the mode of determining their qualifications, and the right of the
defendant to waive his objections to the qualifications of the jurors, and the consequences of
such waiver under the statute and common law, were well understood.
The Common Law: When the taial [trial] is called on, the jurors are sworn as they appear
to the number of twelve, unless they are challenged by the party. Challenges may be here
made on the part of the king or on the part of the prisoner, either to the whole array or to the
separate polls, for the very same reason that they may be made in civil cases. (4 Cooley, Bl.,
3d ed., 350; 2 Hale, P. C. 293.) No juror can be challenged without consent after he hath
been sworn either in criminal or civil cases, unless it be for some cause which happened since
he was sworn. (Bac. Abr. Juries, 365.) If a party have cause of challenge, and know of it
in time enough before trial, if he do not challenge he shall not have a new trial. (Id. 366.)
The Statute: By the statute enacted in 1861, and in force at the time our constitution was
adopted, it was provided that a challenge to an individual juror must be taken when the juror
appears, and before he is sworn; but the court may, for good cause shown, permit it to be
taken after the juror is sworn, and before the jury is completed. (Gen. Stats., sec. 4214.) This
statute is confirmatory of the above common-law rules.
From the citations it is clear that, both under the common law and the statute existing at
the time the constitution was adopted, a defendant could waive an objection to a juror, and
that he did waive it unless the challenge was taken prior to the jury being completed; and
especially was this the case when the ground of challenge was then known. As already noted,
it was the right of trial by jury as it then existed that the framers of the constitution provided
should remain inviolate forever, and there is no reason to suppose they intended any change
in the rule as to waiver.
any change in the rule as to waiver. These views may be fortified by reference to the decided
cases.
The Decisions: In the case of the State v. Pritchard, 16 Nev. 101, in considering the above
section (4214) of the statutes, the court says: The state, as well as the defendant, is required
to interpose its challenges before the jury is completed. This provision of the statute must be
complied with. Whenever it appears from the examination, upon his voir dire, that a juror is
disqualified by reason of the existence of any fact which is made the ground of challenge, the
juror must be challenged, as specified in the statute; otherwise the party, whether the state or
the defendant, will be considered as having waived the right of challenge. If a defendant
accept a juror without objection whom he knows to have formed or expressed an unqualified
opinion, he cannot after verdict raise his objection. If he willfully take his chances with such
juror, he must abide the result. (State v. Anderson, 4 Nev. 265; Bronson v. People, 32 Mich.
34.) The constitution secures to an accused person the right to be tried by an impartial jury,
and the legislature has no power to deprive him of such right; but it can regulate its
administration by determining and declaring when and how a juror's partiality shall be
ascertained. (State v. Marks, 15 Nev. 33.)
Not only must the defendant make his objections and take his challenges before the jury is
completed, as appears from the above authorities, but the particular ground of challenge must
be stated. (State v. Squires, 2 Nev. 230; State v. Raymond, 11 Nev. 106; State v. Gray, 19
Nev. 212; State v. Vaughan, (decided at the last term of this court), 22 Nev. 285.)
The authorities cited by counsel are cases mainly in which the courts had under consideration
the rights of the defendant where the discovery was made after trial that a disqualified person
had sat on the jury, and in cases where the juror was challenged for cause, and his challenge
denied by the lower court. Such authorities are not in point in this case as to these six jurors,
for the defendant was fully informed of the alleged disqualification before trial, and before
the jury was completed, and no objection was raised and no challenge taken to any of them.
It is therefore evident from the great weight of the authorities, and from the statute and
common law, that a defendant can waive his objections to the qualifications of jurors, and
if he fail to challenge before the jury is completed, knowing of the disqualification, he is
estopped from demanding, as matter of right, a new trial on the ground that the jury were
not omni exceptione majores, and that, in contemplation of the constitution, he has not in
such case, after verdict, constitutional ground for the objection that he has not been tried
by a "constitutional jury."
ties, and from the statute and common law, that a defendant can waive his objections to the
qualifications of jurors, and if he fail to challenge before the jury is completed, knowing of
the disqualification, he is estopped from demanding, as matter of right, a new trial on the
ground that the jury were not omni exceptione majores, and that, in contemplation of the
constitution, he has not in such case, after verdict, constitutional ground for the objection that
he has not been tried by a constitutional jury.
3. Juror Johnson: The juror Johnson was challenged upon the ground, as it is alleged, of
having formed an unqualified opinion as to the guilt or innocence of the defendant. The
challenge was denied, and exceptions taken. The ruling of the court denying the challenge is
assigned as error. When the jury was completed, the defendant had not exhausted her
peremptory challenges, but had one left, which she did not use at all. In Thompson on Trials
(section 115) it is said: The sound and prevailing view is that a party cannot on error or
appeal complain of a ruling of the court in overruling his challenge for cause if it appear that,
when the jury had been completed, his peremptory challenges were not exhausted, since he
might have excluded the obnoxious juror by a peremptory challenge; and therefore the error is
to be deemed an error without injury. (State v. Elliott, 45 Iowa, 486; Parker v. People, 4
Neb. 68; Sharp v. State, 6 Tex. App. 650.) Many other cases might be cited holding the same
rule. In note 1 to section 115, Thompson says: There is some slight and ill-considered
authority to the effect that no obligation rests upon a party to make use of his peremptory
challenges for the purpose of excluding a juror unsuccessfully challenged for cause. Our
opinion as to the true rule of practice in such case accords with the sound and prevailing
view above named.
4. View of the Premises: In strict conformity to the provisions of section 4257 of the
General Statutes, and at the repeated requests of the attorneys of the defendant, made in her
presence, the court ordered that the jury view the place where the homicide occurred. W. H.
Caughlin, the sheriff, was designated by the court to conduct and show the jury the premises.
The sheriff and his two deputies were sworn to take charge of the jury during recess of the
court, and recess was then taken for the purpose of the jury making the view.
recess was then taken for the purpose of the jury making the view. Neither the judge, the
clerk, the defendant, nor either of her attorneys was present at the view. The defendant and
her attorneys were present in court when said orders were made and recess taken as aforesaid,
and knew that said view was about to be taken without the presence of said judge and clerk,
and without the presence of the defendant and her attorneys, and without the presence of
either of them; and no objection was made thereto, and no suggestion concerning the same
was made by the defendant or her attorneys.
It was claimed on motion for new trial, and was pressed by counsel in argument here, that
the district court committed fatal error in permitting said view to be had without the presence
of the judge and the defendant. Concerning a view of the premises made by the jury in the
absence of the judge and the defendant, there is great diversity of opinion found in the
decided cases, based upon different grounds. It is held by high authority that the judge and
officers of the court, as well as the defendant, must be present; that a view is taking testimony
in the case, and, when made in the absence of the defendant, is in violation of his
constitutional right of being confronted by the witnesses against him; and that such right
cannot be waived. Other authorities, of equal high standing, and with greater force of
reasoning, hold that the right of the defendant to be present with or without the presence of
the judge and court officers, if such right exists is statutory, and not constitutional, and may
be waived; that the defendant in a criminal case who asks the benefit of the provisions of a
statute must take the benefit just as the statute gives it; that the view is not taking evidence in
the case, and is not intended to be so, but simply to enable the jury the better to understand
the testimony given in court; that whatever the nature of the rights of the defendant may be in
such case, and from whatever source such rights may be derived, he may and does waive the
same when the action of the court is taken and the view made on his request, and without
suggestion that he desires to be present at the view; and that in such case it is too late to
complain after verdict. (Shular v. State, 105 Ind. 290; State v. Reed, 35 Pac. 706; State v. Lee
Doon, 34 Pac. 1103; State v. Adams, 20 Kan. 311; State v. Ah Lee, S Or. 217; State v.
Moran, 15 Or. 262; Blythe v. State, 47 Ohio St. 234; Carroll v. State, 5 Neb.
v. Adams, 20 Kan. 311; State v. Ah Lee, 8 Or. 217; State v. Moran, 15 Or. 262; Blythe v.
State, 47 Ohio St. 234; Carroll v. State, 5 Neb. 32.)
5. The Instructions: The defendant's counsel assign as error the action of the court in
refusing to give certain instructions asked by them, and in giving certain instructions of its
own motion, on the subject of insanity. No witness testified to any fact tending to show
insanity of the defendant on the day of the homicide, and no opinion was expressed by any
witness to that effect. No fact or circumstance was developed at the trial in indicating that she
was ever of unsound mind; but, on the contrary, in her detailed statement of the conversations
had between herself and the deceased in their last interview, and of the acts and movements
of each party, and the incidents and circumstances occurring before, during the time of, and
after, the fatal tragedy, her testimony shows that upon that day and that occasion her
reasoning faculties were in full vigor, and her keen business qualifications were unimpaired
and in full activity. The theory of the defense seems to be that the grievous wrongs and
atrocious crimes testified to by the defendant as having been inflicted by the deceased upon
her six or seven months before the fatal day, in drugging and forcing her to his illicit
embraces, upon two occasions, and his refusal on the day of the homicide to sign and give her
a paper, duly witnessed, exonerating her to her friends from blame, and acknowledging the
paternity of the child she was then carrying as the result of his said illicit intercourse with her,
ought to be sufficient to establish her irresponsibility on the ground of insanity, whether or
not there is any evidence tending to show insanity at the time of the killing. Such is not the
law. It is not sufficient that insanity may exist in the realm of imagination. The rules
governing in cases where the defense of insanity is interposed are well established. In the case
of the State v. Lewis, 20 Nev. 333, it is held, on reason and authority, that: (1) The accused
is presumed to be sane until the contrary is shown. (2) Insanity is an affirmative
proposition, and the burden of proving it is upon the defense. (3) Insanity, as a defense to
crime, must be established by a preponderance of the evidence. (4) If the defendant have
capacity and reason sufficient to enable him to distinguish right from wrong as to the
particular act in question, and has knowledge and consciousness that the act he is doing
is wrong and will deserve punishment, he is, in the eye of the law, of sound mind and
memory, and should be held responsible for his acts."
reason sufficient to enable him to distinguish right from wrong as to the particular act in
question, and has knowledge and consciousness that the act he is doing is wrong and will
deserve punishment, he is, in the eye of the law, of sound mind and memory, and should be
held responsible for his acts.
It requires pertinent, competent, and satisfactory evidence to establish insanity, as any
other alleged fact in the case. It is a well understood rule that, if there is no evidence given
tending to establish an alleged fact, no instructions need be given on the matter. Where there
is no evidence that the defendant was insane, instructions upon the subject of insanity will not
be reviewed. (People v. Wheeler, 65 Cal. 77.)
The instructions given by the court were correct as propositions of law, and the contention
of counsel that, the court having instructed the jury on the subject of insanity, it should have
given those asked for by them, is not tenable. The error, if any, was in submitting the question
of insanity to the jury when there was no evidence tending to establish that plea. The
instructions authorized the jury to consider the question of insanity raised by the defendant in
her counsel's opening statement to the jury, and raised nowhere else and in no other manner,
so far as the transcript shows. The submission of the question to the jury can certainly be no
just cause of complaint on the part of the defendant under the state of facts and the evidence.
It was giving an opportunity to the defendant to escape conviction on the plea of insanity
without any evidence to support it.
6. Instructions as to Defendant's Testimony: Counsel claim that the instructions given
concerning the defendant's testimony are error. We think not. The statutes (sec. 4562) make
the accused a competent witness in all criminal cases at his own request, but not otherwise;
the credit to be given to his testimony being left solely to the jury, under the instructions of
the court. The instructions complained of were considered and approved in State v. Hymer,
15 Nev. 49; State v. Hing, 16 Nev. 307; State v. Streeter, 20 Nev. 403; and in many cases in
other state courts.
7. Instruction on Facts Cited: The court instructed the jury that even though they should
find that at the time of the shooting, and prior thereto, the deceased had perpetrated
certain wrongs upon the defendant, enumerating them at considerable length, but that
she shot at him, not in self-defense, but with the intention of killing him, these facts
constituted no legal excuse or justification for the shooting.
the shooting, and prior thereto, the deceased had perpetrated certain wrongs upon the
defendant, enumerating them at considerable length, but that she shot at him, not in
self-defense, but with the intention of killing him, these facts constituted no legal excuse or
justification for the shooting. The defendant objects to this instruction, first, upon the ground
that it is misleading, because it recites only a part of the facts relied upon by the defendant as
constituting her defense. But, admitting that it does only recite a part of them, we do not see
that it could have worked the defendant any injury. It informs the jury that, as matter of law,
certain facts constitute no defense to the indictment. If other facts existed which did not
constitute a defense, they were not excluded from the attention of the jury; and, if they did not
constitute a defense, their omission was rather in defendant's favor, as it left the jury at liberty
to infer that they did. There is no intimation that the court considered these the only facts in
the case, nor does the language justify such an inference.
Furthermore, if the instruction is right as far as it goes, the fact that it does not cover the
whole case does not make it erroneous. If other facts existed which the defendant's attorneys
wished particularly called to the jury's attention, they should have requested an instruction
upon them.
Next, it is objected that it charges the jury as to the effect of the evidence, and charges
them that the evidence relied upon constitutes no excuse or justification. In this connection
we must remember what the issue in this case was. The killing being admitted, the only legal
excuse or justification there could be was accident or self-defense. Both of these are carefully
excluded by the instruction. The jury were told that if the defendant knowingly,
intentionally, and not in necessary self-defense, shot at deceased with the intention to kill
him, then the other facts enumerated constituted no excuse or justification. That the
instruction states the law correctly cannot be gainsaid. While it was in the power of the jury to
acquit the defendant, because of the treatment she testified to having received at the hands of
the deceased, as stated in the instruction, they had no legal right to do so. When one human
being has been killed by another what shall constitute excuse or justification for the act is
carefully stated in the statute, under the heads of "Involuntary Manslaughter" and
"Self-defense."
the act is carefully stated in the statute, under the heads of Involuntary Manslaughter and
Self-defense. These defenses the statute describes affirmatively; that is, if certain facts are
found to exist, then the party doing the killing is excused or justified. This instruction simply
puts the matter negatively; that is, that certain facts which do not march up to the standard
established by the statute were not sufficient. The court intimated no opinion as to whether
these facts existed or not, nor what their effect might be in connection with other facts. It was
in no sense a charge upon a matter of fact, but purely one of law. All instructions must be
given in view of a certain state of facts, and whether the court enumerates these facts or
leaves the jury to infer them can ordinarily make no difference, so long as no attempt is made
to influence or control their conclusions as to what the facts are. (State v. Loveless, 17 Nev.
424; State v. Watkins, 11 Nev. 30; State v. Anderson, 4 Nev. 265; Territory v. Burgess, 8
Mont. 57, 78; Hemingway v. State, 68 Miss. 371, 409; Kitchens v. State, 41 Ga. 217.)
But, while we find no error in the instruction as applied to this case, we do not wish to be
understood as unqualifiedly approving it. It approaches the border line of error, and under
some circumstances might require a reversal of the case.
Several other alleged errors are assigned, which we do not consider of such moment or
merit as to demand special attention. We have discussed the prominent points in the case,
while we have given the entire record calm and mature consideration. We have found nothing
in this militating against the correctness and legality of any of the proceedings of the trial
resulting in the judgment we are asked to reverse. While there are many matters and things
disclosed in the testimony of the defendant that may justly awaken human sympathies, the
sworn duty of the court, in its judicial administration of the matters submitted for its
consideration and final determination, requires that it shall in all cases recognize the wise
rules of law, well grounded and long established, so essential for the protection of the rights
and safety of the community and of the individual, and that it shall make no distinction
therein on account of the sex of the party involved or other personal considerations.
account of the sex of the party involved or other personal considerations.
Every reasonable request of the defendant was granted by the court below during the
progress of the trial, so far as the record shows. She was defended by able counsel of her own
choice, and tried by a jury of their selection, which to her and them, before trial, were
satisfactory. A wide range was granted to the defendant in bringing before the jury her
complaints of the wrongs and alleged crimes committed against her by the deceased, long
months before the fatal tragedy. No legal avenue was closed to her in making her defense.
Her counsel contested nearly every inch of ground traversed by the prosecution. The jury,
under the solemnity of their oaths, found the defendant guilty, from the evidence, of murder
in the second degree, for which crime the judgment of the court has been duly made and
given.
Finding no material error in the record, our duty will not allow us to stay the hand of the
law.
The judgment of the district court is hereby affirmed.
____________
22 Nev. 363, 363 (1895) Hutchens v. Sutherland
[No. 1423.]
H. H. HUTCHENS, Plaintiff and Appellant, v. JAMES
SUTHERLAND, Defendant and Respondent.
1ContractsEntire or Separable.Whether a contract is entire, or separable into several distinct and
independent contracts, is a question of the intention of the parties, to be ascertained from the language
employed and the subject matter of the contract.
2SameSeverable, Breach of One Not Breach of Other.Where a contract, although contained in the same
instrument, is severable into distinct and independent contracts, a breach of one of these contracts does
not constitute a breach of another.
3PleadingContract, Breach Must be Alleged.Where a complaint upon a contract does not show a breach
of the contract by the defendant it fails to state facts sufficient to constitute a cause of action.
4Facts and Decision of Case Epitomized.The defendant purchased a mining property from the plaintiff, for
which he agreed to pay him a certain proportion of the net proceeds of the mines, and also to employ him
as superintendent at a salary payable monthly: Held, that these contracts were separable, and that the
discharge of the plaintiff, though wrongful, constituted no breach of the contract concerning the net
proceeds.
Appeal from judgment on non-suit from District Court, Humboldt county; A. E. Cheney,
District Judge.
Curler & Curler and Thomas E. Haydon, for Appellant:
This is an appeal from the judgment of non-suit upon a part of the counts in plaintiff's
complaint. [After several pages of argument on facts and pleadings.] Defendant's ground for
non-suit, that plaintiff was discharged by defendant without objection or protest, and that he
voluntarily quit defendant's service, is a marvel of misconstruction. The facts shown entitle
plaintiff to a retrial of this cause and to a judgment in accordance with the prayer of their
complaint, without recourse to any question of law.
S. J. Bonnifield, for Respondent:
This action was brought by appellant as plaintiff in the court below to recover of defendant
(respondent) the sum of twenty thousand dollars, the alleged balance due on the purchase
price of certain mining property described in the complaint, and six hundred dollars, alleged
balance due as wages of plaintiff as superintendent of defendant. The plaintiff recovered a
judgment for the wages and the action was dismissed, on the motion of the defendant as to
the claim of twenty thousand dollars. From this latter the appeal is taken. [After several pages
of argument on the facts.] The defendant was bound only to exercise good faith, reasonable
diligence and use reasonable exertions in view of all the circumstances and surroundings. (6
N. W. 10; 19 N. W. 212; 78 Ill. 633.) The plaintiff must show that the net proceeds were
obtained before he can have a cause of action and then only to the extent of 50 per cent of
such proceeds. (36 N. Y. 578.) The complaint shows upon its face that the plaintiff has no
cause of action for the twenty thousand dollars, or for any part thereof. It does not state facts
sufficient to constitute a cause of action therefor.
On the 13th day of March, 1891, the plaintiff sold the defendant several mining claims,
together with other real and personal property, for a consideration of $10,000 in money
and 50 per cent of the net proceeds of the mines, until the sum of $20,000 more should be
paid him.
and personal property, for a consideration of $10,000 in money and 50 per cent of the net
proceeds of the mines, until the sum of $20,000 more should be paid him. An instrument in
writing was drawn up to this effect, in which it was stated that it was distinctly understood
and agreed that this money was not to be paid until there were net proceeds, and then only out
of 50 per cent of such net proceeds. The instrument also contained a provision that the
plaintiff should finish a smelting furnace, then partly erected upon the property, or, if he did
not, the defendant might complete it, and retain the expense of so doing out of any moneys
thereafter to become due plaintiff. Also that, if defendant should be dispossessed from any of
the mining claims, he could retain $2,000 for each claim so taken from him.
On March 20th another writing was entered into, whereby the plaintiff agreed to act as
superintendent of the mining operations to be carried on upon the property, said services to
commence April 1, 1891, and to continue for such time as may be required to complete the
payment in full of the purchase price for said property, and for such longer time as may be
agreed upon if so desired. In consideration of the above, said Sutherland hereby agrees to pay
said Hutchens the sum of one hundred dollars per month, payable monthly, for said services.
The plaintiff testifies that this was a part of the original agreement made for the sale of the
mines, but was left out of the first instrument by mistake, and we shall consider the case upon
the theory that such is the fact.
Mining operations were begun and carried on under the superintendency of the plaintiff
until December, 1892, when he was virtually superseded as superintendent by an agent of
plaintiff, who continued the mining until some time in March, 1893. On March 17, 1893, the
plaintiff was discharged, and he commenced this action on April 5, 1893. He sues for
$20,000, balance due on the sale, and for six months' services as superintendent, for which he
had not been paid. He obtained judgment for the balance due upon his wages, but was
non-suited on the other claim, and from that non-suit he appeals.
The complaint does not allege that there have been any net proceeds from the mines, nor
that a reasonable effort to obtain net proceeds had not been made, nor that defendant had sold
the property, or otherwise disabled himself from obtaining net proceeds; but his right to
recover is based upon the theory that the discharge of the plaintiff from his
superintendency constituted a breach of the contract, and entitled the plaintiff to
immediately recover the balance on the purchase price of the property.
had sold the property, or otherwise disabled himself from obtaining net proceeds; but his right
to recover is based upon the theory that the discharge of the plaintiff from his
superintendency constituted a breach of the contract, and entitled the plaintiff to immediately
recover the balance on the purchase price of the property.
The plaintiff's attorneys have correctly recognized that for such discharge to constitute a
breach of the contract concerning the sale of the mines it must appear that the contract was
entire. If, although contained in the same instrument, there were really two separate and
distinct contractsone for the sale, and another for the plaintiff's employmenta breach of
the latter would not constitute a breach of the former. Whether a contract is separable or
entire is a question of the intention of the parties, to be determined by considering the
language employed and the subject matter of the contract. If the part to be performed by one
party consists of several distinct and separate items, and the price to be paid by the other is
apportioned to each item to be performed, such a contract will generally be held to be
separable. (2 Pars. Cont. 517; State v. Jones, 21 Nev. 510, and cases there cited.) We think
this is such a contract as that above described. It consists of several distinct and separate
items, performed and to be performed by the plaintiff, and the price to be paid is apportioned
to each of the items. Prima facie, this makes it a severable contract, and we find nothing in
the instrument that indicates a different intention. On the contrary, the language used in other
parts of the agreement strengthens this conclusion. If the plaintiff failed to complete the
furnace, this was not to abrogate the contract, but the penalty for the failure was to be what it
would cost the defendant to complete it. Even if the title to some of the mines failed, the sale
was still to stand. The consideration for the salethe plaintiff's share of the proceedswas
fixed and determined. A fixed sum, payable every month, was to be paid him for his services.
This part of the agreement was an ordinary contract of hiring, to continue until the happening
of an uncertain event in the future. Although a part of the agreement as originally made, it
could have been as well made at any other time, and could have been contained, as it really
was, in a separate instrument.
rate instrument. Each agreement was complete in itself. The hiring of the plaintiff did not
increase the defendant's liability on the sale, nor did it increase the plaintiff's security, for
there was no provision that he was to have any particular control or management of the
mining operations; and, in its absence, we must suppose the intention was that he should act
under the control and direction of the owner, the same as any other superintendent would.
Again, it is unreasonable to suppose that the parties intended the rendition of the services
by the plaintiff to constitute a condition precedent to the payment for the mines, so that, no
matter what the mines might produce in the way of net proceeds, he would have forfeited all
claim upon them had he died, or become sick, or by reason of disagreement with his
employer, or for other reason, had ceased to work for him. But if he would not, then the
defendant did not incur a like penalty by discharging him. It would be equally absurd to
suppose, without clear language to that effect, that the defendant intended to bind himself to
keep the plaintiff employed as superintendent, whether satisfied or not with his services, or, if
he did not, to pay him immediately his full share of net proceeds that might never be
obtained. Particularly is this the case in view of the statement in the agreement that the
$20,000 was to be payable only out of such net proceeds. The equitable and fair construction
to be placed upon the instrument is that it was intended to cover two separate and distinct
contracts, for the breach of either of which the party committing it should incur only a
liability for the damages sustained by the other through that breach; and we find nothing in
the matter to indicate any different intention.
Considering it thus, the plaintiff has claimed no damages for a breach of the contract of
employment except the balance of wages due him, and for this he has obtained judgment. As
to the contract for payment for the property sold, it is not alleged that the defendant has
obtained any net proceeds, nor that he has failed in any way to comply with any of either the
express or implied conditions of his agreement. Such being the case, we are of the opinion
that the complaint fails to show any breach of this contract by the defendant, and
consequently that it fails to state facts sufficient to constitute a cause of action.
the defendant, and consequently that it fails to state facts sufficient to constitute a cause of
action.
As we understand the evidence, it is no better than the complaint, and equally fails to show
a cause of action existing upon this claim at the time of the commencement of the suit,
whatever may have been the case since. If so, it was no injury to plaintiff that his complaint
was held good upon demurrer. If anything, that was an error in his favor.
Bonnifield, J., having been an attorney in the case in the lower court, did not participate in
the decision.
____________
[No. 1428.]
H. H. BECK, Plaintiff and Respondent, v. WILLIAM
THOMPSON, Defendant and Appellant.
1PartnershipMoney Advanced by One Member to, Repaid by Firm, Debt Canceled, No Claim Thereafter
Against Firm or Co-Partner Concerning Transaction.When one of two partners advance a sum of
money to the partnership and the same is paid back to him out of firm funds, the debt is canceled and he
has no further claim against the partnership or against his co-partner with respect to the matter.
2NameServices Rendered by One Member of to Firm, Compensation For.Decision on former appeal
(Beck v. Thompson, ante, page 109) sustained and judgment modified as to amount and sustained.
Appeal from judgment and order overruling motion for new trial, from District Court,
Washoe county; A. E. Cheney, District Judge.
Torreyson & Summerfield, for Appellant:
This is a suit for a partnership accounting between respondent and appellant, and is the
second trial of this case. The case at bar in the lower court was tried upon the theory of a
continuing partnership, and it seems to us that all of the legal principles in the case were
settled by the former decision of this court, and this case involves questions of mathematical
principles rather than those of legal principles.
If we can show to this court that in the trial of this case in the court below sums were not
credited to Lake with which he should have been credited, and that Thompson succeeded to
all of Lake's interest in the business, then this court will be convinced that the judgment in the
case was erroneous and not supported by the evidence.
Beck is responsible for all of the confusion in which this business is involved, and all
doubts and uncertainty arising from such confusion should be resolved against him. (Kirvan
v. Henry, 16 S. W. Rep. 828; 2 Lindsay on Part., 536-538.)
We submit that no system of computation based upon the evidence adduced considered in
connection with the decree of this court on the former appeal warrants a judgment in favor of
respondent.
Clarke & Jones, for Respondent:
On the former appeal in this case the record was unintelligible, and this court decided it
upon the theory of a continuing co-partnership, whereas the case was tried and decided below
upon the theory that defendant elected to have an accounting, as of the day of Lake's death.
In his lifetime Lake loaned Lake & Beck $10,000, which was used in the business of the
firm and for which he took the note of Lake & Beck. When Lake died there was a balance due
on this note of $8,800, besides interest. Beck paid this note out of partnership funds.
Defendant claims he should have paid it out of his individual funds. In other words, plaintiff
claims he should pay Thompson one-half of this note, and defendant claims he should pay it
all. The trial court accepted plaintiff's and disallowed defendant's contention. (Gould v.
Emerson, 160 Mass. 438, 439.)
The court did not err in denying defendant's request for additional findings: (1) Because
the matters required are not ultimate but evidentiary facts. (2) Because such matters are
immaterial. (3) Because such refusal under section 147 of the civil practice act, as amended
by act of March 6, 1893, as construed in Beck v. Thompson, 22 Nev. 109, ante, is not
prejudicial to defendant, for the reason that the court can consider all such matters under the
general assignment.
Beck was clearly entitled to wages for managing the business of Lake & Beck for the
entire time. (Lindley on Partnership, pp.
nership, pp. 774-6; 26 Ohio St. 190, 194; 23 Cal. 422, 430, 432.) In any event he was entitled
to pay for managing the business after Lake's death and up to October 6, 1888, when the
estate was settled. (1 Bates on Part., sec. 773; 17 Ency. of Laws, p. 1183, note 4; 36 Pac. Rep.
865.)
The material facts and the several transactions involved in this case were reviewed on the
former appeal by this court, and are set forth in the case of Beck v. Thompson, 22 Nev. 109,
and need not be repeated here, except in part in considering the questions raised on this
appeal. The second trial resulted in a judgment in favor of the plaintiff for the sum of
$4,424.64, with certain interest. From this judgment and the order of the court denying his
motion for new trial, the defendant appeals. The law of the case was settled on the former
hearing by this court, and the basis upon which the second trial should be had was pointed
out.
One of the grounds specified in the notice of motion for new trial is insufficiency of the
evidence to justify the decision and judgment, and is one of the assignments of error.
Counsel for appellant claim that sums of money were not credited to Lake, Thompson's
predecessor in interest, which he should have been credited with, and that erroneous charges
for wages were allowed.
1. Our attention is called to the $30,000 transaction, including the promissory note
executed by the firm of Lake & Beck to Lake. At a certain date Lake had advanced to the firm
of Lake & Beck $30,000 more than Beck, which were used in carrying on the business of the
concern, and in acquiring property for the firm. Lake being desirous of drawing out a part of
his advances, the firm borrowed $20,000 of Paxton, for which a promissory note was
executed by and in the firm's name to Paxton, and a mortgage given on the property of the
firm. This note and mortgage were subsequently paid out of money belonging to the firm of
Lake & Beck. Lake received to his individual use the $20,000 borrowed. There still remained
in the concern $10,000 of Lake's advances. For this sum, and to adjust the capital account
between M. C. Lake and H. H. Beck, Lake received the promissory note of the firm of Lake
& Beck. This note was paid out of the firm's money.
was paid out of the firm's money. It is strenuously contended by counsel that Lake was a
creditor to the amount of $30,000, and, like any other creditor, should have received the
$30,000 advanced; that the $20,000 borrowed from Paxton and the $10,000 note given to
Lake having been paid out of partnership funds, one-half of which belonged to Lake, the two
transactions resulted in Lake receiving only $15,000 of the $30,000 advanced; and that, to
correct this error, Thompson, who succeeded to Lake's interest, should be credited with
$15,000. The fallacy of this contention is apparent. When one of two partners advances a sum
of money to the partnership concern, and the sum is paid back to him out of the moneys of the
firm, the debt is canceled, and he has no further claim against the partnership or against his
partner with respect to the matter; and we know of no rule of law governing transactions
between partners, and no rule in common arithmetic or in common philosophy, that would
give a different result.
2. Counsel claim that the evidence does not sustain the conclusions of the court as to the
rent of the mill property; that Lake & Beck should have been credited with $400 per month
from the 1st day of May, 1881, the date H. H. Beck & Co. entered under the lease. In this we
think counsel are mistaken. We find from the record that Bole paid Lake as rent $100 per
month from May 1 to October 10, 1881, when the mill was destroyed by fire. On June 1,
1892, Lake & Beck received a credit, for rent, the sum of $1,466.66, and from that date,
including June, they received a credit of $400 per month. It appears from the entries in the
company's books that no rent was charged by Lake & Beck to H. H. Beck & Co. for the
period between the date of the destruction of the mill, October 10, 1881, and the date of the
completion of the new mill, in March or April, 1882. We therefore find no error in the rent
account as settled by the court.
3. Appellant's counsel object to the allowance of the sum of $1,000 to Beck for services
rendered to Lake & Beck from February 14, 1885, the date Beck, as surviving partner,
rendered his account to the administrator of Lake's estate, up to the 8th of October, 1888, the
date of the distribution of the estate, when Thompson succeeded to the interest of the estate in
the concern of Lake & Beck and of H. H. Beck & Co.
Co. They object, on the ground that Beck rendered no services to Lake & Beck of material
value. The evidence fully establishes the value of the services in a sum greater than the court
allowed; but on the former appeal this court held that Beck was entitled to no compensation
for such services after the formation of the partnership of H. H. Beck & Co. In this respect the
judgment is erroneous. From the formation of the firm of Lake & Beck up to the organization
of H. H. Beck and Co., Beck received $100 per month salary, as manager of the business of
the concern, by agreement of the parties. After the firm of H. H. Beck & Co. was organized,
he received the same monthly salary as its managing agent, up to the dissolution of the
co-partnership; and Bole, as bookkeeper of the concern, received a monthly salary of $100 up
to the time he withdrew from the firm. The work in conducting the business of the new firm
was partly divided between Beck and Bole. After Thompson became a member of the firm,
he took considerable part in carrying on the business. It seems to us, as was said when this
case was here before, that, after the formation of the firm of H. H. Beck & Co., the old firm
of Lake & Beck ceased to exist, and consequently we have but the affairs of one partnership
to settle. After that, Lake & Beck were simply tenants in common of the mill property, for the
use of which they were to receive a certain compensation over and above the profits of the
business (of H. H. Beck & Co.), the same as Beck and Bole were to receive extra
compensation for their services; and the firm name of Lake & Beck was simply used by the
bookkeepers of the former firm for convenience of keeping the accounts of the mill. The
trial court allowed $1,000 in gross for services rendered to Lake & Beck, including the
Arcadome transaction. We take it that the court considered the value of the services rendered
in and about the Arcadome business as being but a small portion of the sum allowed for
services.
Under all the facts and circumstances of this case, and in the absence of any express or
implied agreement appearing to the contrary, we are of opinion that Beck is not entitled to
compensation for services rendered to Lake & Beck after May 1, 1881, when the new firm, H.
H. Beck & Co., entered into business, and that the judgment should be corrected
accordingly.
corrected accordingly. From Beck's credit of $7,908.74, the district court will deduct the sum
of $4,247.10, in place of $3,247.10. With this correction, and the necessary corresponding
corrections in the decision, findings, and judgment to be made by the court below, the
judgment is affirmed. Each party will pay his own costs on this appeal.
____________
22 Nev. 374, 374 (1895)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
JULY TERM, 1895.
____________
22 Nev. 374, 374 (1895) Ex Parte Ah Kee
[No. 1443.]
Ex Parte AH KEE, et al., Petitioners on Habeas Corpus.
1Habeas CorpusPower of the District Judge on, at Preliminary Examination.When an accused person is
held by a judge for examination before him, under the provisions of the habeas corpus act, he is invested
with such powers only as are conferred on other magistrates in matters of preliminary examinations.
2Preliminary Examination, Accused Entitled to Prompt.A person accused of and arrested for crime is
entitled to prompt examination by both the spirit and letter of our statutes. (Gen. Stats., secs. 4001, 4002,
4029, 4031, 4032), and the examination should not be delayed to suit the convenience, etc., of officers.
3SameDefendant Charged with Crime Entitled to Immediate Examination, and if Adjourned for More than
Six Days in All He Must be Discharged.A defendant taken before a magistrate upon arrest is entitled to
an immediate examination after appearance of counsel, if counsel be required. If an adjournment be had
even for good cause, it cannot be for more than two days at a time, nor more than six days in all, without
consent of the defendant, and if adjourned for a longer time, the defendant is entitled to be discharged.
Original application on petition for writ of habeas corpus.
Argued orally.
David S. Truman, for Petitioners.
Robt. M. Beatty, Attorney-General, against. (Cited Gen. Stats., secs. 3691-2.)
On application of the petitioners, duly made, a writ of habeas corpus was duly issued and
directed to D. J. Hadley, sheriff of Humboldt county, and made returnable before this court.
On the return of the writ, the following facts, substantially, are disclosed, to wit: Upon the
preliminary examination of the petitioners, charged with committing the crime of grand
larceny, a justice of the peace of Humboldt county ordered that they be held to answer, and
they were committed to the custody of the sheriff. Subsequently, the petitioners were taken
before Hon. A. E. Cheney, district judge of the district court of the second judicial district in
and for Humboldt county, in obedience to the commands of a writ of habeas corpus issued by
him.
Upon the hearing of the matter on the 18th day of June, 1895, the judge held that the
warrant of commitment was wholly insufficient to authorize their detention by the sheriff. It
appearing to the judge that the petitioners are guilty of a criminal offense, he committed them
to the custody of the sheriff for examination before him, and set the 15th day of July, 1895,
for such examination. The petitioners then and there, by their attorney, objected to the
adjournment of the examination to such late day, and on the next day (the 19th day of June)
applied for the modification of the order, fixing July 15th for the examination, so that it might
be proceeded with on the 22d day of June. The application was denied, on the ground that the
judge had prior official engagements. The petitioners objected, and excepted to the ruling
denying their request. The petitioners are now held and detained by the sheriff under the order
of the judge committing them for examination before him, to be held on the 15th day of July.
Is their detention illegal? We are of the opinion that it is, and that they must be discharged
from custody.
When an accused person is held by a judge for examination before him under the
provisions of the habeas corpus act, he is invested with such powers only as are conferred on
other magistrates in matters of preliminary examinations. A person accused of and arrested
for crime is entitled to prompt examination by the spirit and letter of the General Statutes, as
will appear from the several provisions. The defendant must in all cases be taken before
the magistrate, without unnecessary delay by the arresting officer {section 4002).
defendant must in all cases be taken before the magistrate, without unnecessary delay by the
arresting officer (section 4002). If the magistrate who issued the warrant of arrest be absent or
unable to act, the defendant may (must) be taken before the nearest or most accessible
magistrate in the same county (section 4001). When the defendant is taken before the
magistrate upon an arrest, he shall be immediately informed of the charge against him, and
his right to the aid of counsel (section 4029). The magistrate shall immediately after the
appearance of counsel, if counsel be required, or after waiting a reasonable time for counsel,
proceed to examine the case (section 4031). The examination must be completed at one
session, unless it be adjourned for good cause shown. The adjournment cannot be for more
than two days at each time, nor more than six days in all, unless by consent or motion of the
defendant (section 4032). A prisoner's rights are to be considered and respected. He is not
presumed to be guilty because he is under arrest. The presumptions are the other way. The
examination should not be delayed to suit the convenience or personal accommodation of the
officers of the law. (Church Hab. Corp., 2d ed., sec. 242; In re Peoples, 47 Mich. 626.)
In the case under consideration, the petitioners could have been examined before any
justice of the peace in Humboldt county when the judge was unable to proceed with the
examination on account of other official duties. The petitioners being held in custody of the
sheriff for examination since the 18th day of June, and no examination having been had, and
their examination having been adjourned for more than six days, without their consent, their
restraint is illegal, and they are entitled to their discharge from the custody of the sheriff of
Humboldt county, and such discharge is hereby ordered.
____________
22 Nev. 376, 376 (1895) Lobenstein v. Storey County
[No. 1434.]
L. LOBENSTEIN, Plaintiff and Respondent, v. THE
COUNTY OF STOREY, Defendant and Appellant.
1Acts of March 12, 1885, and March 5, 1869, Concerning Fees and Salary of Justices of the Peace as Such
and Their Ex Officio Offices, Construed.Held, that a justice of the peace in Storey county of one of the
townships therein is not entitled to the compensation provided for in section 12 of the act of March 5,
1869, to be paid registry agents, in addition to the salary named in section 11 of the act of 1885.
Appeal from judgment after demurrer to complaint overruled, from District Court, Storey
county; C. E. Mack, District Judge.
F. P. Langan, District Attorney of Storey county, and E. D. Knight, Deputy, for Appellant:
The defendant demurred on the ground that the complaint does not state facts sufficient to
constitute cause of action. The demurrer was overruled and defendant refused to answer.
Plaintiff took judgment as prayed for in the complaint.
The demurrer should have been sustained. The complaint does not state facts sufficient to
constitute a cause of action. (a) Because the said justice of the peace for his term was entitled
to receive only a monthly salary from the county and with fees in civil cases collected from
litigants was in full for all services and ex officio services by him performed. Of said ex
officio services, see Gen. Stats., sec. 1501, Stats. 1885, p. 96; Stats. 1889, p. 92; Stats. 1891,
p. 129; Stats. 1893, p. 16. (b) Even if the said justice were entitled to receive the fees claimed
as registry agent upon allowance by the board of county commissioners, he must have repaid
the same to the county treasurer as fees collected in his official capacity; and the courts will
not enforce, by judgment, the doing of an idle act. (Gen. Stats., sec. 1501; Stats. 1885, p. 96.)
A county cannot be compelled to pay any claim not expressly made chargeable against it
by law. And this is particularly so of fees claimed by officers. (Washoe Co. v. Humboldt Co.,
14 Nev. 131; 4 Am. & Eng. Ency. of Law, 539.)
The judgment appealed from is not supported by the pleadings or otherwise and should be
reversed.
The justice of the peace of Virginia township is required by law to perform the duties of
three distinct officesjustice, coroner, and registry agentthe duties of each office being
distinct from the others, and, prior to 1885, distinct fees and compensation were attached to
each office.
By section 1501, Gen. Stats. (Act of March 5, 1869, sec. 1), said justice is made ex officio
registry agent and section 12 of that act, unless repealed by implication, provides the
compensation sued for.
of that act, unless repealed by implication, provides the compensation sued for.
Section 2087, Gen. Stats., provides that justices of the peace in any township wherever
the legal number of votes cast at the last general election equaled or exceeded the number of
twelve hundred shall be ex officio coroner. This section makes the justice of the peace ex
officio coroner of Virginia township.
Section 2090, Gen. Stats., provides that the salaries in this act provided shall be the whole
and only compensation allowed and paid to the officers herein named for all official services
by them rendered as said officers, and section 5 of the act provides that after the first
Monday in January, 1887, the officers named in the act shall pay all fees to the county
treasurer. Section 11 provides that the annual salaries shall be in full for all services and ex
officio services required of the officers named in the act. Section 12 provides that officers of
Storey county named therein shall receive in full payment of all services rendered by them the
salaries mentioned. Section 13 of this act repeals all acts and parts of acts so far as they
conflict with or are repugnant to the provisions of this act.
It will be observed that the registry agent is not named in this act at all and that there is no
statute which by its terms expressly provides that the compensation provided for by section
1512, Gen. Stats., shall not be paid to the justice as registry agent. As to every other officer
mentioned in the act except the justice of the peace all the ex officio offices held by them are
mentioned. It is contended, however, by general provisions quoted and contained in the act,
that the legislature intended that the justice of the peace for this township should perform all
the duties imposed upon him by law for the salary of $900 per year and fees in civil cases;
that by necessary implication the section of the statute providing for his compensation as
registry agent has been repealed. It has been repealed, if repealed at all, in no other way. It is
not expressly repealed because by the repealing act no acts or parts of acts are repealed,
unless they are in conflict with or repugnant to its provisions.
Repeals by implication are not favored, and are only held to have occurred in cases of
irreconcilable repugnancy between the latter and the former enactments, where the two
cannot stand together.
the latter and the former enactments, where the two cannot stand together. (Estate of
Walley, 11 Nev. 260; State v. Donnelly, 20 Nev. 214.) The principle upon which it has been
decided by our supreme court that a new statute revising the whole subject matter of a law
repeals that law, though containing no express words to that effect, does not apply in a case
like this. (Thorpe v. Schooling, 7 Nev. 15; State v. Rogers, 10 Nev. 319.)
When a statute enumerates the persons or things to be affected by its provisions there is an
implied exclusion of others. There is then a natural inference that its application is not
intended to be general. (Miller v. Miller, 44 Pa. St. 170, 172; Sutherland on Stat.
Construction, par. 327.)
The office of registry agent, being established by law, and its duties having been imposed
upon the justice of the peace, the mentioning of the offices of justice of the peace and coroner
in the statute, and the omission of that of registry agent, excludes the latter office and its
compensation from the statutes. (Sutherland on Stat. Constr., par. 325; V. T. R. R. Co. v.
Elliott, 5 Nev. 364.)
The two acts are not necessarily repugnant. The first gives the justice of the peace his
compensation as registry agent, the last his compensation as justice and coroner. The law
will not allow the revocation or alteration of a statute by construction when the words may
have their operation without it. (Sutherland, par. 217; Torreyson v. Board of Ex., 7 Nev. 19.)
There is nothing either in the affirmative or negative words touching the justice of the peace
to oppose the upholding of both statutes. The duties of register do not constitute a civil or
criminal case.
It is the officers named in the act and none others who are affected. The registry agent
being omitted from the act is excepted from it, and the justice of the peace, being that officer,
is entitled to his compensation as such. (Sutherland, par. 219.)
It will be no violence to legal principles to construe the two acts in such a way as to uphold
both. (Ex Parte Crow Dog, 109 U. S. 570; U. S. v. Langston, 118 U. S. 393.)
Langan & Knight, for Appellant, in reply:
There is no reason or necessity for naming the registry agent in the salary act of 1SS5, for
the reason that a prior statute made him such.
agent in the salary act of 1885, for the reason that a prior statute made him such. The justice
of the peace was made ex officio coroner by the act in question, hence, the necessity for
mentioning that office.
The manifest intention of the salary act of 1885 was to make the compensation named in
the act the only remuneration of the county and township officers named for all their services
and ex officio services, and the subsequent amendments have shown a like disposition. Prior
to the passage of this act the officers of Storey county were working under the fee system.
Certain officers, among them the justice of the peace, are named in section 1 of the salary
act of 1885. Section 4 provides that the salaries in this act provided shall be the whole and
only compensation allowed and paid to the officers herein named for all official services by
them rendered as such officers.
If this provision stood alone and the office of (ex officio) registry agent was not mentioned
in the section fixing compensations, the effect might be to leave that officer in the exact
position respondent claims that he now is. But sections 5-8 show the intention that such
should be the case, and section 11 absolutely provides that no officer named in the act shall
receive any compensation not therein provided for. The limitations of this section must have
the effect contended for by appellant or be entirely inoperative.
There is here no question of repeal by implication, the only question being whether section
1501, Gen. Stats., conflicts with the express provision and intention of the salary act, and
particularly section 11 thereof, in so far as it relates to the compensation fixed for the justice
of the peace of township No. 1, Storey county.
The authorities cited by respondent are not in point.
The plaintiff, as justice of the peace and ex officio registry agent of township No. 1 in said
county, registered the names of 1,445 voters for the general election held in the year 1894.
For this service he presented his claim to the board of county commissioners for the sum of
$361.25. The board refused to allow the same, and the plaintiff brought suit in the district
court of the State of Nevada in and for Storey county against the defendant to recover
said sum.
the district court of the State of Nevada in and for Storey county against the defendant to
recover said sum. The defendant, by its district attorney, demurred to the complaint on the
ground that it does not state facts sufficient to constitute a cause of action. The demurrer was
overruled. The defendant refused to answer, but elected to stand on its demurrer, and
judgment was given against it for the amount claimed in the complaint. This appeal is taken
from the judgment.
The contention of the district attorney is that the act of the legislature entitled An act
consolidating certain county offices in the State of Nevada and fixing the salaries of the
officers thereof and other matters relating thereto, approved March 12, 1885, and the acts
amendatory thereof, fix the salary of the justice of the peace of said township, which is in full
for all services and ex officio services required of that officer, and that therefore the
complaint shows no cause of action, and the judgment is erroneous. These several acts apply
only to Storey county. Before the act of 1885 took effect, the officers therein named were
under the fee system.
Section 1 of said act makes the sheriff ex officio assessor; the county clerk ex officio
treasurer; the district attorney ex officio county superintendent of public schools; and the
justice of the peace of township No. 1, ex officio coroner. The plaintiff was the justice of the
peace of said township in the years 1893 and 1894. Section 12 of the act provides that the
officers of Storey county shall receive in full payment for all services rendered by them the
following salaries: The sheriff, for services as sheriff and ex officio assessor, $3,000; the
county clerk, for services as county clerk and ex officio treasurer, $3,000; the county
recorder, for services as county recorder and ex officio auditor, $2,400; the district attorney,
for services as district attorney and ex officio county superintendent of public schools,
$2,500; and the justice of the peace, for services as justice of the peace and ex officio coroner,
$2,000. Sec. 4. The salaries in this act provided shall be the whole and only compensation
allowed and paid to the officers herein named for all official services by them rendered as
such officers. Section 11 provides that the salaries named in the act shall be in full for all
services and all ex officio services required of the officers herein named.
Counsel for respondent claims that the justice's salary is for services as justice of the peace
and for services as ex officio coroner, and not for services as ex officio registry agent. He
argues: It will be observed that the registry agent is not named in this act at all, and there is
no statute which by its terms expressly provides that the compensation provided by section 12
of the act of March 5, 1869 (Gen. Stats., sec. 1512), shall not be paid the justice as registry
agent. It will also be observed that as to every other officer mentioned in the act, except as to
the justice of the peace, all ex officio offices held by them are mentioned. * * * So that the
question for the court to decide is, has the section of the act giving the compensation as
registry agent been repealed by implication? * * * The office of registry agent being
established by law, and its duties having been imposed upon the justice of the peace, the
mentioning of the office of justice of the peace and coroner in the statute, and the omission of
that of registry agent, exclude that office and its compensation from the statute.
There would have been no propriety in consolidating the offices of justice of the peace of
said township and registry agent by this act, because they had been consolidated by the
registry act. Counsel is mistaken in saying that as to every officer mentioned in the act,
except as to the justice of the peace, all ex officio offices held by them are mentioned. The
office of collector of licenses is an ex officio office held by the sheriff, and it is not
mentioned in the act. The office of clerk of the district court and the office of clerk of the
board of county commissioners are respectively ex officio offices held by the county clerk.
(Const., art. IV., sec. 32.) Neither of them is mentioned in the act, and there is no statute
which by its terms expressly provides that the compensation provided for these offices shall
not be paid to the officers performing the duties thereof. But we do not think that counsel
would seriously contend for a moment that the sheriff is entitled to a percentage of the
amount of his collections for licenses, or that the county clerk, in addition to his salary of
$3,000, is entitled to the fees of the office of clerk of the district court, which would doubtless
amount to several thousand dollars. It cannot be reasonably supposed that such was the
intention of the legislature.
lature. If the plaintiff is entitled to the fees he claims, then the sheriff and the county clerk are
entitled to their fees above named under the same act and by the terms thereof, and by the
same course of reasoning adopted by respondent's counsel in this case.
The manifest object of the act and the explicit terms of the act themselves demonstrate the
fallacy of the respondent's contention. It is declared in section 11 that the salaries named in
the act shall be in full for all services and all ex officio services required of the officers
herein named. The officers herein named include the justice of the peace of township No.
1, and his services in registering voters are ex officio servicesservices required of him by
virtue of his office of justice of the peace. The terms of the act not only embrace his services
as justice of the peace and his ex officio services when acting as coroner, but his ex officio
services when acting as registry agent. In 1894, the plaintiff being the justice of the peace of
township No. 1, he was one of the officers included in the act, and as such officer he
performed the ex officio services of registering the voters of his township, the full
compensation for which has been provided by the salary act.
In the foregoing we have been considering the act of 1885, to which the counsel mainly
directed his discussion. (Gen. Stats., sec. 2089, et seq.) This act was amended in 1889, 1891,
and 1893. These amendments further show the legislative intent, and that the plaintiff's claim
is wholly without merit. The act of 1889 (Stats. 1889, p. 92) does not change the salary or
compensation of the justice of township No. 1, but gives the justice of the peace of township
No. 2 a salary of $480 a year, and it provides that in addition thereto he shall receive such
fees as are now provided by law, but he shall have no claim against the county for fees in
civil or criminal cases. The act of 1891 (Stats. 1891, p. 129) reduces the salary of the justice
of township No. 1 from $2,000 to $900, and allows him such fees in civil cases only as are
now allowed by law. This act does not change the salary or compensation of the justice of
township No. 2. The act of 1893 (Stats. 1893, p. 16), which was in force when the plaintiff
performed his services as ex officio registry agent, simply re-enacts the provisions of the act
of 1891 as to the salary and fees of these two officers, except it declares that the justice of
township No.
salary and fees of these two officers, except it declares that the justice of township No. 1
shall have no claim against the county for fees in civil or criminal cases. It is evident from
the very terms of these amendatory acts that the legislature intended to confirm the
compensation of the justice of township No. 1 to the salary of $900 and the fees in civil cases,
which fees do not include the fees for the registration of voters; but as to the other justice,
with a salary of $480, it was not intended to so confine him, but to allow him fees as now
provided by law, which include the fees for said registration. Thus it will be seen that the
legislature in each of four sections has clearly manifested its intention, which is adverse to the
plaintiff's claim.
Counsel argues that the section of the registry act giving compensation to registry agents
has not been repealed by any act in express terms; that repeals by implication are not favored;
that section 13 only provides that all acts and parts of acts heretofore passed, so far as they
conflict with or are repugnant to the provisions of this act are hereby repealed; and that the
registry act, wherein the fees for registering voters are provided, does not conflict with and is
not repugnant to the provisions of these later acts above named. It is admitted that it was not
the intention of the legislature to repeal these provisions of the registry act, but to let them
remain in force for the benefit of all registry agents who are not excluded therefrom by the
several acts under discussion. But when the registry act provides that justices of the peace
shall be ex officio registry agents in their respective townships, and provides their fees for
registering voters, and subsequent acts provide that the justice of the peace of a certain
township shall receive a certain salary, and such fees in civil cases only as are now provided
by law, in full payment of all services rendered by him, and declare that such salary and such
fees shall be in full for all services and all ex officio services required of him, the
imagination is not greatly exercised in discerning a conflict and repugnancy between the
former and the subsequent acts. Whether the former act is repealed in express terms or by
implication, in so far as it conflicts with or is repugnant to the provisions of the subsequent
acts, is immaterial, for by the spirit and terms of these several later acts the plaintiff is denied
fees for registering the voters of his township.
is denied fees for registering the voters of his township. He has no cause of action in this case.
The judgment of the district court is reversed.
____________
22 Nev. 385, 385 (1895) Craw v. Wilson
[No. 1426.]
CHARLES CRAW, Plaintiff and Appellant, v. FRANK
WILSON, Defendant and Respondent.
1Mining PartnershipStatute of FraudsPartnership Capital.Unless partnership capital is employed in the
acquisition of a mining claim, the partnership agreement, unless in writing, is within the statute of frauds.
Equitable relief may be given against the partner holding the legal title when the property has been
acquired by partnership property upon the theory that a resulting trust existsa trust arising by operation
of law and, therefore, within the exception of the statute.
2TestimonyConflicting, Findings Under, Not to be Disturbed.Where the trial court under conflicting
evidence decides upon a certain finding under well-settled rules, this court cannot disturb such finding.
Appeal from judgment and order denying motion for new trial, from district court, Lincoln
county; A. E. Cheney, District Judge, presiding.
George S. Sawyer and Richards & Macmillan, for Appellant:
This action was brought to obtain a judgment of the lower court declaring plaintiff and
defendant partners in a mining venture. * * * The findings of fact upon which the decision is
based, are outside of the issues made by the pleadings. The issue was the partnership, not its
dissolution or abandonment.
A fact contained in the findings of the court, which contradicts the admissions of the
pleadings will not be regarded; and no presumption that it was founded upon competent
evidence will be indulged in. (Burnett v. Stearns, 33 Cal. 474; Gregory v. Nelson, 41 Cal.
284; Hicks v. Murray, 43 Cal. 522; Bradbury v. Cronise, 46 Cal. 288; Hill v. Den, 44 Cal. 20;
Tracy v. Craig, 55 Cal. 93; Orlig v. Cordero, 88 Cal. 225; Silvey v. Meary, 59 Cal. 98; Swan
v. Smith, 13 Nev. 260; Welland v. Huber, 8 Nev. 207; Marshall v. G. F. M. Co., 16 Nev. 177;
Gould v. Stafford, 18 Pac. 879; 77 Cal. 66; Morrell v. Irving Ins. Co., 33 N. Y. 443; Estee's
Plead., sec.
22 Nev. 385, 386 (1895) Craw v. Wilson
v. Irving Ins. Co., 33 N. Y. 443; Estee's Plead., sec. 4640, note 8, and sec. 4643 and cases
cited; Piercy v. Sabine, 10 Cal. 22; Geazier v. Clift, 10 Cal. 304; Gaskill v. Moore, 4 Cal.
234; Pomeroy's Code Remedies, sec. 702.)
The court in the decision failed to grasp the scope of the action, which was for the
dissolution of a partnership and resulting accounting and settlement of its affairs, with a
division of its property, and not an action for specific performance, or for violation of a
partnership agreement. It ignores the principles governing partners, although a partnership
was found to exist. (Murley v. Ennis, 2 Cal. 300; Gore v. McBrayer, 18 Cal. 582; Settembre
v. Putnam, 30 Cal. 490; Southmayd v. Southmayd, 5 Pac. 322, 1 Mont. 100; Skillman v.
Lachman, 23 Cal. 199; Duryea v. Burt, 28 Cal. 569.) As partner, therefore, the appellant was
also tenant in common, and it is well settled that the possession of one tenant in common is
possession of all. (Southmayd v. Southmayd, supra; Warring v. Crow, 11 Cal. 367; Smith,
Real Property, 392; Warring v. Cram, 12 Mor. Mg. Rep. 285, and cases cited.) Here the
partnership tools were used in locating and working the properties in dispute. (Huberer v.
Ruding, 11 Mor. Mg. Rep. 514; Parsons on Part., pp. 6, 7, 8, 9, and notes; Welland v. Huber,
8 Nev. 203; 1 Greenleaf Ev., sec. 42; Warring v. Cram, 12 Mor. Mg. Rep. 285; Lawrence v.
Robinson, Id. 387; Sears v. Collins, Id. 401.) The allegation of partnership is complete.
(Groves v. Tallman, 8 Nev. 180.)
The decision is contrary to the evidence: (1) Because the decision is based upon the
dissolution and settlement of the partnership alleged and proven to exist. The complaint
alleges that it never was annulled or dissolved and that it existed at the commencement of this
action. The answer does not deny this in any way; it is admitted by the pleading, and a finding
contrary to the admissions of the pleadings is against evidence, and a judgment based upon
such a finding is erroneous. (Ortega v. Cordew, 88 Cal. 255, and citations.) The allegations
and proof of partnership is complete, i.e., the agreement, and action under it, which is the
consummated agreement. (Groves v. Tallman, 8 Nev. 178; Bradbury v. Cronis, 46 Cal. 287.)
(2) The partnership agreement and acts under it, which shows a consummation, are proven
and found. A partnership at will can only be dissolved at the instance of one of the parties
on proper notice.
22 Nev. 385, 387 (1895) Craw v. Wilson
solved at the instance of one of the parties on proper notice. (Crawshay v. Maule, 11 Mor.
Mg. Rep. 230; 17 Am. & Eng. Ency. of Law, 1095, 1108.)
The court erred in allowing any testimony as to dissolution or abandonment of partnership
under the denials of the answer. Confession and avoidance under the reform procedure comes
under the head of new matter and cannot be proven unless pleaded. (Pomeroy's Code
Remedies, sec. 691; Wright's Remedies and Prac., sec. 3481; 1 Ency. of Pl. & Prac., sec. 13,
notes, p. 830-1.) And a special denial is the same as a general. (Horton v. Rhuling, 3 Nev.
505; Coles v. Soulsby, 21 Cal. 47; 13 Nev. 260; 30 Cal. 473; Osborne & Co. v. Evans, 58
Mo. 920; Landis v. Morrissey, 69 Cal. 86, and citations; Pomeroy's Code Rem., 962; Moss v.
Shear, 30 Cal. 472; 18 Am. & Eng. Ency. of Law, p. 556, sec. 3; Civil Prac. Nev. 46;
Pomeroy's Code Rem., 659; McKyring v. Bull, 16 N. Y. 307; Bliss on Code Pl., sec. 327, and
note 2, 339; Weaver v. Barden, 49 N. Y. 286.)
The rule heretofore acted upon as to presumptions in favor of the findings is abrogated by
Stats. 1893, p. 89. The existence of a partnership does not depend upon the fact that each
partner has in all things complied with his agreement. If the contract has been made, property
and labor contributed, and the partnership business commenced, or carried on to any extent,
there is a partnership. (Abbott v. Smith, 32 Pac. 845; Megher v. Reed, 24 Pac. 691.)
Henry Rives and T. J. Osborne, for Respondent:
No statement on motion for new trial was filed or served within the time required by
statute.
It is not the duty of counsel to inform their opponents that they are about to omit some
steps in the proper management of their side of the case. (Killip v. Empire M. Co., 2 Nev.
34.)
It is incumbent upon a party who wishes to avoid the consequences of error in legal
proceedings, upon the ground of waiver by the opposite party to show such waivernot upon
the party insisting on the error to establish that he did not waive. (McWilliams v. Hirschman,
5 Nev. 263; White v. White, 8 Nev. 20.)
The notice having been once served and filed, the plaintiff was compelled to file his
statement within five days thereafter, unless the time was extended, and the transcript
on appeal in this case show no such extension.
22 Nev. 385, 388 (1895) Craw v. Wilson
was compelled to file his statement within five days thereafter, unless the time was
extended, and the transcript on appeal in this case show no such extension. (Gen. Stats., sec.
3219; Corbett v. Swift, 6 Nev. 194.) Both the notice and the statement must be filed within
due time. (Killip v. Empire M. Co., 2 Nev. 34; State v. Nat. Bank, 4 Nev. 358.)
The decision of the judge who tried the case shows that he does not find that any partnership
ever existed. The answer certainly denies that any partnership ever existed. The court
distinctly found that none ever existed concerning any mines in Ferguson district, and this is
the vital point.
In conclusion, it is submitted that the amendment which was made to the statute of Nevada
in 1893, p. 89, does not alter the well-established doctrine in this state that all presumptions
are in favor of the findings of a court and the verdict of a jury, and that the amendment in no
way alters or affects this rule.
This is a suit in equity for the purpose, among other things, of obtaining a decree
determining that plaintiff is a half owner with defendant in certain mining property standing
in the name of defendant. The case was tried by the court without a jury. The decision was in
favor of defendant.
The complaint alleges that, in consideration of the mutual advantages to be derived
therefrom, the parties promised and agreed to and with each other to combine their efforts and
means in prospecting for and locating water rights, timber claims, and mines and mining
claims, and that they should be equal partners in all such locations; that said agreement has
never been annulled in any way, but still remains in full force and effect.
The answer denies the partnership; admits defendant's ownership in the mines, but denies
that such ownership was acquired by virtue of any agreement of partnership, or by the aid of
any means, tools, or equipments furnished by the partnership, and alleges that defendant's
interest was acquired entirely independently of it.
The facts, so far as material to the contention, are that the parties formed a mining
partnership by oral agreement, and under it some mining locations were made, and other
property acquired.
22 Nev. 385, 389 (1895) Craw v. Wilson
and under it some mining locations were made, and other property acquired. These matters
were of small value, and all of them had been settled long prior to the commencement of this
suit. If there was anything left out, it was, according to appellant's testimony, the Hidden
Treasure claim, called in the complaint, by mistake, the Keystone Claim. No effort was
made to amend the complaint so as to embrace the Hidden Treasure claim, probably because
no value was attached to it, and it was afterwards relocated by a stranger. In the spring of
1892 the defendant went to the Ferguson mining district, and, in connection with others,
located the property in dispute.
The important question is whether the Ferguson district mines were located under the
partnership. Unless partnership capital was employed in their acquisition, the partnership
agreement is within the statute of frauds, and void. The statute declares: Sec. 55. No estate
or interest in lands other than leases for a term not exceeding one year, nor any trust or power
over or concerning lands, or in any manner relating thereto, shall hereafter be created,
granted, assigned, surrendered or declared unless by act or operation of law, or by deed or
conveyance in writing subscribed by the party creating, granting, assigning or declaring the
same, or by his lawful agent, thereto authorized in writing. (Stats. 1861, p. 11.) Equitable
relief may be given against the partner holding the legal title when the property has been
acquired by partnership capital upon the theory that a resulting trust existsa trust arising by
operation of law, and within the exception of the statute. (Colly. Partn., sec. 135, and note;
Edgar v. Donally, 2 Munf. 387; Sigourney v. Munn, 7 Conn. 11.) The district court, however,
in its decision, under conflicting testimony, held that the mines were not located with
partnership capital, and enforced its conclusion by many circumstances in its support. Under
well-settled rules, we cannot disturb the finding, but take this occasion to approve of it, as
being fully supported by the evidence.
A number of exceptions were taken to the admission of evidence touching the dissolution
of the partnership. The admission of this evidence could not have prejudiced the appellant,
as the decision against him, as we have seen, was placed upon other grounds.
22 Nev. 385, 390 (1895) Craw v. Wilson
appellant, as the decision against him, as we have seen, was placed upon other grounds.
The judgment and order of the district court are affirmed.
____________
22 Nev. 390, 390 (1895) Vietti v. Nesbitt
[No. 1433.]
JOHN VIETTI, Plaintiff and Respondent v. JAMES NESBITT and GEORGE NESBITT,
Partners, etc., Firm Name of J. NESBITT & CO., Defendants and Appellants.
1Tenancy in CommonPartnership.The defendants, with others, were the owners of a mine which was
being worked by the plaintiff under an agreement that the ore extracted should be worked in a mill
belonging to defendants, and the proceeds divided as follows: The defendants were to be paid $25 per ton
for milling; the plaintiff was then to be paid the expense of extracting the ore; and the balance was to be
divided equally between him and the owners of the mine: Held, that these parties were simply tenants in
common of the ore and its proceeds, and no partnership existed between them.
2Evidence Conflicting, Findings.Facts found by the trial court upon conflicting evidence are conclusive
upon appeal.
3Parol EvidenceAs to Written Agreement, Admitted Without Objection, Competent.Where parol
evidence of the contents of a written agreement is admitted without objection, no advantage of the fact of
its incompetency can be taken afterwards. Under such circumstances the parol evidence is competent to
establish what the terms of the contract were.
4Relevancy of Testimony Under Facts of Case.Upon a question of the amount of moisture contained in the
ore, evidence of the amount found in other ore taken from the same ore body and worked under similar
circumstances, is relevant.
5Value, Assay Value, What Is, Determined Under Facts.Where by the agreement the millmen were to
return to a certain per cent of the assay value of gold ore worked in the mill, this meant the standard
assay value of gold as known everywhere, and not the value of gold bullion at the place where produced.
6Interest, as Such, to be Collected Only Where Authorized by Statute.Interest, as such, can only be
collected where authorized by statute. In an action upon contract, where there has been no settlement and
the balance due upon the contract is uncertain and unascertained, interest cannot be collected.
Lincoln county; G. F. Talbot, District Judge.
George S. Sawyer and Richards & Macmillan, for Appellant:
This was an action in assumpsit in the nature of an action for money had and received. The
defendant demurred to plaintiff's complaint on the grounds that it stated no cause of action,
and was ambiguous, etc., and urged that the complaint showed that plaintiff's remedy, if he
had any, was in equity for an accounting, and that an action at law could not be maintained.
The court overruled the demurrer, the defendants excepted and filed an answer denying nearly
all the allegations of the complaint, and the case was tried by the court without a jury, and
judgment rendered against defendants. Motion for new trial overruled and appeal taken.
I. The judgment is void for the reasons: (1) The complaint does not state facts sufficient to
constitute a cause of action at law. It is a jumbled recital of disconnected occurrences, from
which it is apparent that the cause of action, if any, arose from partnership transactions which
have never been settled or adjusted, and which can only be settled by an accounting. The
mine owners were mining partners in the profits of the working of the mine. (15 A. & E.
Ency. of Law, 609, et seq.; 30 Cal. 93; 26 Cal. 69.) If plaintiff was to share in the net profits
as he alleges, he thereby became a partner. (17 A. & E. Ency. of Law, 841, et seq.; Parsons on
Partnership, chap. V. and notes; Henderson v. Allen, 23 Cal. 519; Settembre v. Putnam, 30
Cal. 490; Quinn v. Quinn, 81 Cal. 14.) If Cohen and McFadden, admitted to being mining
partners with the defendants, could not sue the defendants at law, neither could the assignee
of their partnership interest. (Bullard v. Kinney, 10 Cal. 60.) Neither partners nor assignees of
partners can sue other partners in actions at law upon matters arising within the partnership
until its affairs have been settled and a balance struck and agreed upon. (Parsons on
Partnership, 278; Ross v. Cornell, 45 Cal. 133; Bullard v. Kinney, supra.) (2) If the action at
law could not be maintained, the court as a court of law had no jurisdiction to render the
judgment. (3) The item of interest in the judgment has no foundation.
II. The decision is not supported by the evidence, and is contrary thereto.
contrary thereto. The burden of proof was upon the plaintiff to establish every material
allegation of his complaint. This must be done by a preponderance of evidence, for if the
weight of evidence was equal, pro and con, the parties would stand as they did upon their
pleadings, and the plaintiff could not recover. (1 Greenleaf's Ev., sec. 74; Scott v. Wood, 81
Cal. 398.) There will be no evidence of the contents of a writing other than the writing itself
except, etc. (Gen. Stats., sec. 3449.) When a contract is reduced to writing, all oral
negotiations and agreements are merged in the writing, and the instrument must be treated as
containing the whole contract. (Gage v. Phillips, 21 Nev. 153.) Verbal admissions are
unreliable and should be received with great caution. (1 Greenleaf's Ev., 12th ed., sec. 200.)
III. Stats. 1893, p. 89, provides that where it appears that the evidence, taken together,
does not support the verdict, or decision, or judgment, or decree of the court, a new trial shall
be granted, or, upon appeal, the case shall be reversed without regard to whether there are
express findings upon all the issues, or whether the specifications particularly point out the
finding or findings, either express or implied, that are not supported by the evidence, or are
contrary thereto.
T. J. Osborne and Henry Rives, for Respondent:
This is in assumpsit for money had and received by the defendants for the use and benefit
of plaintiff and his assignors.
Appellants have waived any ambiguity and uncertainty in the complaint by answering
over. The complaint certainly states a cause of action. A complaint may contain a statement
of a defective cause of action which is fatal upon demurrer, but if it contains a defective
statement of a good cause of action, this irregularity, if such exists, is waived by answering
over. (Treadway v. Wilder, 8 Nev. 91; Lonkey v. Wells, 16 Nev. 271; Sweeney v. Schultes, 19
Nev. 54; Cal. St. Tel. Co. v. Patterson, 1 Nev. 151; Levy v. Fargo, 1 Nev. 415; State v. C. P.
R. R. Co., 7 Nev. 99; Jones v. Goodenough, 7 Nev. 324; Skyrme v. Occidental M. & M. Co., 8
Nev. 218; Bates Law of Part., p. 46; Quackenbush v. Sawyer, 54 Cal. 439; McManus v. Ophir
M. Co., 4 Nev. 15.)
There can be no partnership without an agreement to become such among all the parties
interested.
become such among all the parties interested. (Groves v. Tollman, 8 Nev. 178; Parsons on
Part., p. 59; Chase v. Barrett, 4 Paige, 148; Hazard v. Hazard, 1 Storey, 371.)
Sharing profits as compensation for services does not create a partnership. (17 Am. &
Eng. Ency. of Law, 845-9, and cases cited on note 3, pp. 849, 850.)
The court acquired jurisdiction to settle and determine the last remaining account between
all of the parties. (Quackenbush v. Sawyer, 54 Cal. 439; 17 Am. & Eng. Ency. of Law, 853, et
seq.)
Parties may be held and bound as partners so far as third parties are concerned, yet in no
way partners among themselves. (17 Am. & Eng. Ency. of Law, 849-50, note 1, et seq.) The
case of Henderson v. Allen, 23 Cal. 519, does not define what constitutes a mining
partnership. The case of Settembre v. Putnam, 30 Cal. 490, is a clear example of a mining
partnership. The case of Quinn v. Quinn, 81 Cal. 15, is similar to Ross v. Cornell, and is a
clear case of partnership as contradistinguished from a mining partnership which is usually
equivocal and susceptible of doubt.
In reply to the case of Bullard v. Kinney, 10 Cal. 60, the plaintiff makes the same
confession and avoidance as the last and contends that it is not applicable to the case at bar.
If there is any evidence to sustain the judgment or verdict of a court of first instance,
appellate courts never disturb their conclusions. All presumptions are completely indulged in
favor of judgment where there is any conflict of evidence. In support of these last two
propositions, the plaintiff refers from and including the first of the Year Books to the Pacific
Reporter, vol. 40, June 20, 1895.
In reply to the citation, Gage v. Phillips, 21 Nev. 153, plaintiff submits that it is irrelevant
and immaterial. The doctrines laid down in Parsons on Partnership and Greenleaf on
Evidence, quoted by appellants, are modified in each of those works as is the doctrine in 15
Am. & Eng. Ency. of Law, 809, et seq., by the qualifications found in 17 Id. 849, et seq., and
especially in the authorities quoted in note 3 on said last-mentioned page.
There is a material conflict of evidence upon every important question of fact in this case.
[Here follows a long argument on the facts and cites the proceedings in the California
case of Fox v. Hale & Norcross, and sets forth a number of tabulated statements.]
The Jim Crow mine, owned by a number of persons, was held by the plaintiff under what
the complaint designates a lease, and was producing ore.
proceedings in the California case of Fox v. Hale & Norcross, and sets forth a number of
tabulated statements.]
The Jim Crow mine, owned by a number of persons, was held by the plaintiff under what
the complaint designates a lease, and was producing ore. While the lease was in force, the
defendants purchased a half interest in the mine. The defendants were also the owners of a
quartz mill. In October, 1893, while this state of facts existed, a contract or agreement was
entered into by all the parties in interest, whereby the defendants were to haul the ore so
produced to their mill and there reduce it to bullion, they to account for 85 per cent of the
assay value of the ore. Of the proceeds, the defendants were first to be allowed $25 per ton
for hauling and working the ore, and then plaintiff was to be paid the expense of extracting it
from the mine. There is no question upon either of these items. Fifty per cent of the balance
was to be paid to the plaintiff, and the rest divided among the owners of the mine in
proportion to their interests therein. Except as to the percentage to be accounted for, there
seems to have been no serious controversy that these were the general terms of the agreement.
The questions in the case are principally concerning matters incidental to the agreement.
Several of the co-owners have assigned their claims under it to the plaintiff, and the action is
brought to recover the 50 per cent due him, and the amount due those co-owners upon the
reduction of the ore. Judgment was rendered in the plaintiff's favor for $25,266.08, and
defendants appeal.
They first contend that the owners of the mine and the plaintiff were partners, and that
consequently no action at law can be maintained by one against the others until there has been
a settlement of partnership affairs, and a balance struck. This contention is based upon the
allegations of the complaint; but, while that document is by no means a model, and is in some
respects confused and self-contradictory, we are unable to find that it states such a state of
affairs as would constitute a partnership between the parties here.
Whatever may have been the terms of the original lease, which are not stated, no question
is made but that the rights of the parties are to be determined under the agreement of October,
1S93.
October, 1893. The owners of the mine were, as such, tenants in common, pure and simple.
They were not engaged in working the property; so there was no mining partnership between
them. The mere fact that they, either jointly or severally, made a lease of the mine, under
which each was to receive his proportional share, had certainly no tendency to establish that
relationship. Each seems to have acted for himself, and defendants were to account to each
for his portion of the proceeds, individually. The plaintiff was, in the first instance, to mine
the ore at his own expense, and it does not appear that the owners were to have anything to do
with that part of the business. While the plaintiff was to be repaid that expense out of the
proceeds, this was simply one of the terms of the agreement under which the ore was being
extracted. If no ore had been found, or it had paid nothing over milling expenses, the plaintiff
must have sustained the entire loss. After the ore was mined, the plaintiff and several owners
of the mine became the joint owners of it, in accordance with their several interests under the
contract. It became personal property, in which they were tenants in common. (Freem. Coten.,
secs. 16, 100.) A mere joint ownership in personal property does not constitute the owners
partners. (Quackenbush v. Sawyer, 54 Cal. 439.) In Hudepohl v. Water Co., 80 Cal. 553,
speaking of a similar contract, the court said: As we construe the agreement, it was one for
the working of the mine on shares, and the parties became tenants in common of the products
of the mine when taken out. Such a contract does not create the relation of landlord and
tenant, but fixes a rule for compensation for services rendered. It is, in all its essential
features, a contract for labor to be performed, and to be paid for by a share of the profits
realized from such labor. See, also, Stuart v. Adams, 89 Cal. 367. Certainly no partnership
existed so far.
Then, as to the hauling and milling of the ore. That was done the same as defendants might
have done similar work for any one else, and upon terms the same as those upon which the
owners of the ore might have had it worked at any other mill. The mill men were paid a
certain price therefor, and were to return a certain per cent of its assay value. Whatever profit
they made upon the working was their own, and any loss must have been sustained by
them.
their own, and any loss must have been sustained by them. Of course, under the terms of the
agreement, both the expense of milling and the expense of mining the ore would reduce the
net proceeds which would in the end go to the several parties, but it was the proceeds of ore
which they held as tenants in common, and not as partners. The question here is one of actual
partnership between the parties, and not as to what might render them liable, as partners, to
third persons. Actual partnership depends upon the intention of the parties. The true test of
partnership, then, is the intention of the parties. They have agreed together for a certain
purpose. If the purpose was the formation of an associated body, different from the individual
parties, for which they were thereafter to act, they have formed a partnership. (Pars. Partn.,
sec. 54.) There need not necessarily be a formal agreement of partnership, but it must appear
that the parties intended to enter into that relation which the law denominates a partnership.
Without trying to define what would constitute such a relation, it is sufficient to say that the
elements of one do not exist here. There was no such association of the individuals, either
intentional or unintentional, as would constitute a firm. In fact, there seems to have been no
association of them, whatever. The only relation was the accidental one that they owned
undivided portions of the same property. There was no agreement to do business jointly, and
no community of interest. Each represented his own interest; and no one of them, nor even a
majority, had any right to dispose of the property, nor even to make any contract concerning
any portion but his own. In Dwinel v. Stone, 30 Me. 384, the court says: One essential
element of a partnership is a community of interest in the subject-matter of it. Tenet totum in
communiet nihil separatim per se, has been the keystone of the arch since the days of
Bracton. From this arises the right of each partner to make contracts, to incur liabilities,
manage the whole business, and dispose of the whole property of the partnership, for its
purposes, in the same manner, and with the same power, as all the partners could when acting
together. No such power over the common property existed here, and there was no mutual
agency between the parties. It follows that there was no partnership.
There is some conflict in the evidence as to whether defendants were to pay plaintiff 50
per cent of the net proceeds of the ore. The defendants deny that they so agreed; but, as they
do not state what the agreement was, and it is beyond controversy, upon the showing made,
that plaintiff had some interest in the ore, their testimony is not very satisfactory. However,
the trial court having, upon conflicting evidence, found for the plaintiff, that finding becomes
conclusive upon appeal. The same must be said concerning the percentage of the assay value
for which the defendants were to account. The evidence was conflicting, and we are
controlled by the finding that it was 85 per cent.
The defendants contend that, as it appeared that the agreement was in writing, parol
evidence of its contents, which is all that was offered, was incompetent, and should not now
be considered. The ground, however, upon which parol evidence of the contents of a writing
is rejected is that it is not the best evidence. If the instrument has been destroyed, or the party
offering it is, under certain other circumstances, unable to produce it, parol evidence of its
terms may be the best and only evidence obtainable, and then it becomes strictly admissible.
If the defendants were not satisfied with the parol proof, they should have objected, and had
the writing produced or accounted for. Not having done so, they are concluded now from
objecting that the evidence is incompetent to establish what the agreement was. It is settled
that if a party permits his adversary to prove his case by secondary evidence, he cannot
afterward object that better evidence should have been produced. The secondary evidence is,
under such circumstances, sufficient. (Wright v. Roseberry, 81 Cal. 87, 91.) If evidence
secondary or hearsay in its character be admitted without objection, no advantage can be
taken of that fact afterwards; and the jury mayindeed, shouldaccept it as if it were
admissible under the strictest rules of evidence. (Sherwood v. Sissa, 5 Nev. 349, 355.)
One question in the case was the amount of moisture which should be deducted from the
gross weight of the ore, the plaintiff admitting 3 per cent, and defendants contending for 8 per
cent. The court allowed 5 per cent; and, again recalling the rule where the evidence is in
conflict, we certainly cannot say that any error was committed. As one method of
determining the amount of moisture, evidence was admitted, over defendant's objections,
as to the amount contained in ore taken from the same ore body, and near where the ore
in question came from, but in an adjoining mine, and shipped and worked under
somewhat similar circumstances.
of determining the amount of moisture, evidence was admitted, over defendant's objections,
as to the amount contained in ore taken from the same ore body, and near where the ore in
question came from, but in an adjoining mine, and shipped and worked under somewhat
similar circumstances. We think this was some evidence upon the question in this case, and,
consequently, that it was admissible. Defendants' criticisms upon it go more to its weight than
to its relevancy. The same ruling applies also to the evidence concerning the assays of the
battery samples taken by the plaintiff. His evidence tended to show that they had been
carefully preserved, and had not been tampered with. The fact that they were not assayed until
some months after they were taken might reflect upon their reliability, but, certainly, under
the proofs, would not have justified their rejection.
Apparently as a part of the agreement, or, at least, with the consent of all parties, the
defendants had converted the bullion, which was gold, into money. They contend that the
bullion, where produced, was of the value of only $19 per ounce, whereas judgment has been
rendered against them upon a valuation of $20.6718 per ounce, which we understand to be
the standard assay value of gold. As defendants do not claim that they did not receive that
amount for it, and as they were allowed the expense of marketing, no injustice seems to have
been done, and the valuation appears to be strictly in accordance with the agreement. As the
ore was gold ore, when the contract called for a certain per cent of assay value, some standard
by which to estimate the value of the gold must have been understood, and this seems to be
the only standard recognized anywhere. It was not shown that assay value is not the same in
one place as in another. Or, if the term was intended to mean only the number of ounces of
gold found in the rock, and the defendants saw fit to convert it into money instead of
returning it in kind, in the absence of an agreement to the contrary no reason is suggested why
they should not return to its owners the amount of money received by them, less the expense
of the conversion.
Included in the judgment is a direction that the sum for which it is rendered shall draw
interest from August 1, 1894, to the rendition of the judgment, on March 20, 1895. We are of
the opinion that this item is erroneous.
of the opinion that this item is erroneous. If interest was permissible at all, it should have
been computed and included in the judgment when entered (Bibend v. Insurance Co., 30 Cal.
79); but, without stopping to inquire whether, as this was not done, it ever became a part of
the judgment, and assuming that it did, we think no interest should have been allowed prior to
the time judgment was rendered. At common law, no interest was allowed, and it is only
permissible now when authorized by statute. (11 Am. & Eng. Enc. Law, tit. Interest, p.
379.) Although interest is frequently allowed in actions involving torts to property, it is
simply by way of damages, and in actions where the amount of damages is more or less in the
discretion of the court or jury. In such cases, in the absence of special circumstances of fraud
or oppression, the legal rate of interest from the time of the commission of the wrong is a safe
and uniform measure of damages. (Glass Factory v. Reid, 5 Cow. 587, 609.) But this is not
that kind of a case, and interest was not included as a part of the plaintiff's damages, but as an
incident to the amount due him under the contract, and allowed as a matter of law. As such, it
does not come within the terms of our statute (Gen. Stats., sec. 4903, as amended, Stats.
1887, p. 82), and consequently was improper. But, as this mistake would doubtless have been
corrected, upon motion, in the court below, we do not think it should affect the question of
costs upon this appeal.
Some other points are made by appellants' counsel; but what we have said above
sufficiently indicates our views concerning them. No error appearing except that concerning
interest, the judgment will be modified by striking that out; and, as thus modified, it will be
affirmed, respondent to recover his costs of appeal.
It is so ordered.
____________
22 Nev. 399, 399 (1895) State v. Comm'rs Washoe County
[No. 1432.]
THE STATE OF NEVADA, ex rel. F. H. NORCROSS, as District Attorney of Washoe
County, Relator, v. THE BOARD OF COUNTY COMMISSIONERS OF WASHOE
COUNTY, Respondent.
1Statutes 1895, 107, Unconstitutional.The act of March 16, 1895 (Stats. 1895, 107), to amend an act
concerning the purchase and preservation of newspapers, in so far as it attempts to
regulate the matter of legal advertising and printing, is in conflict with the
provisions of the constitution {art. IV., sec.
preservation of newspapers, in so far as it attempts to regulate the matter of legal advertising and printing,
is in conflict with the provisions of the constitution (art. IV., sec. 17), requiring that each law shall
embrace but one subject, which shall be briefly expressed in the title.
2ConstitutionArt. IV., Sec. 17 of, Discussed, and Intent of Determined.The purpose of that provision of
the constitution was to prevent the combination in one act of incongruous and distinct subjects, and also
imposition upon the members of the legislature and the public, by covering up, under innocent titles,
vicious and harmful provisions.
3Legislative ActNot Broader than Title.Where, by the title, the subject of an act is restricted to a certain
purpose, the purview of the act cannot be extended to other purposes not indicated in the title. The act
can be no broader than the subject expressed in the title.
4ConstitutionLiberally Construed.While this clause of the constitution should be liberally construed, to
the end that there may be no unnecessary hampering of legislation, this liberal construction should not go
to the extent of nullifying the constitution. Where an act clearly embraces two distinct and independent
subjects, or the real subject of the act is not expressed in the title, it is the duty of the courts to declare the
act void.
Original proceeding to obtain writ of certiorari.
F. H. Norcross, in pro. per., and Alfred Chartz, William Webster and Robert M. Clarke,
for Relator:
The facts of this case were presented before the supreme court on oral argument. The
question before the court is whether the act entitled An act to amend an act entitled An act
for the purchase and preservation of public newspapers printed and published in the several
counties of this state,' approved February 1, 1865, is constitutional or not. Four objections
are raised against the constitutionality of the amendatory act; that more than one subject is
embraced in the amendatory act; that the title does not express the subject; that the
amendatory act is not germane to the original act, and that it interferes with the duties of
judicial officers. But the fact is this: Only one subject is embraced in the amendatory act, i.e.,
a means of giving the public better and more certain legal notice, and the only fault to be
found (a purely technical fault) is that the recorder and the commissioners are used by the
legislature to accomplish that single object, instead of either the recorder or the board of
commissioners.
of commissioners. Again, the mandatory wording of the act makes it the act of the legislature
itself.
The amendatory act has a general purpose or object, a better use of the paper to be
subscribed for and a better notice to the public of all legal advertising, and all matters fairly
and reasonably connected with that object, and all necessary measures which will facilitate its
accomplishment, are proper to be incorporated in the act, and are germane to its title, and the
general purposes of sec. 17, art. IV. of the constitution is accomplished when the law has but
one general object, which is fairly indicated by its title. (Klein v. Kinkead, 16 Nev. 194;
Cooley's Const Lim. 143, 146, and a long list of authorities quoted in Klein v. Kinkead,
supra, 198.)
The truth is that neither the original nor the amendatory act fully expresses its object, but
the real object is fairly implied and deducible from the title, and with absolute certainty. With
the provisions of law and the common knowledge of the people that certain newspapers are
the official newspapers of the counties wherein published, in which must appear all legal
notices, how could the district judges obey the law by naming any other paper in which to
publish legal notices? is a question which fully answers the objection raised on that point.
This court will endeavor to uphold the act, if it can do so within the constitution. (State, ex
rel. Lewis, v. Doran, 5 Nev. 399; State, ex rel. Ash v. Parkinson, 4 Nev. 17; State, ex. rel.
Clark, v. Irwin, 5 Nev. 111; Humboldt Co. v. Churchill Co., 6 Nev. 30.) If the language of the
act in question admits of two constructions, this court will adopt the construction which will
save the act. (V. & T. R. R. Co. v. Henry, 8 Nev. 165.) The statute must be sustained if, after
striking out any unconstitutional portions, there is enough left that can be executed wholly
and independently of that which is rejected. (8 Nev. 322; 9 Nev. 325; 11 Nev. 128; 3 Nev.
173.) The court, in construing the amendatory act of 1895, will look at the mischief of the old
law, and the object of the legislature in amending it, and the benefit sought to be obtained.
(Odd Fellows' Bank v. Quillen, 11 Nev. 109; State v. Ross, 20 Nev. 61; State v. Dayton and
V. & T. R. R. Co., 10 Nev. 155; Brown v. Davis, 1 Nev. 409.)
The constitutional provision that each law shall embrace but one subject, which shall be
briefly expressed in the title, is mandatory, but should be liberally construed.
but one subject, which shall be briefly expressed in the title, is mandatory, but should be
liberally construed. (State v. Ah Sam, 15 Nev. 27.)
The act of the legislature in controversy is an attempt of the legislative and executive
departments by statute to confer a judicial function, to wit, the control of legal advertising,
upon an executive and merely ministerial officer, to wit, the county recorder, and is violation
of sec. 1, art. III. of the constitution of Nevada; also of sec. 17, art. IV., in the following
particulars: (1) It contains three distinct and independent subjects, viz.; (a) the subscription
for newspapers by county recorder; (b) the designation of such newspapers by boards of
county commissioners as the official papers of counties; (c) the regulation and control of legal
advertising. (2) The amendatory matter contained in the act is not matter properly connected
with the subject expressed in its title, or in the title of the original act which it purports to
amend. (3) The subject of said act is not briefly, or at all, expressed in its title.
This section of the constitution is mandatory. (State v. Hallock, 19 Nev. 386; State v. Ah
Sam, 15 Nev. 27; State v. Silver, 9 Nev. 227.)
Under the general title of acts to amend other acts, no matter can be incorporated by the
amendment which would not have been properly connected with the subject of the original
acts or would not have been germane to such subject. (19 Nev. 388; 10 Neb. 476; 11 Neb.
377; 9 Neb. 507; 6 Neb. 474; 17 Neb. 85; In re White, 33 Neb. 812; Trumble v. Trumble, 55
N. W. 869; 74 Cal. 553; 41 Mich. 67; 76 Mich. 579; 77 Mich. 203; 23 Am. & Eng. Ency.
268, and authorities cited.)
Where the title of an act is restrictive the courts will not seek to extend its scope so as to
embrace subject matter in the body of the act which might be held to be germane to a general
title. (Ex parte Hewlett, 22 Nev. 333; State v. Hallock, 19 Nev. 384; Cooley's Const. Lim.
149; Ex parte Livingston, 20 Nev. 282.)
An act will not be so construed as to extend its operations beyond the subject expressed in its
title and matter properly connected therewith.
connected therewith. In other words, the act must not be broader than the title. (9 Nev. 227;
19 Nev. 384; 49 Mich. 459; Sutherland on Stat. Constr., sec. 87.)
One of the principal objects of the mandatory provision of sec. 17, art. IV. Const. Nevada,
was to prevent the perpetration of fraud, or surprise, upon the members of the legislature and
the people by requiring the title of laws to be so worded as to impart some degree of notice as
to the character of their contents. (State v. Commrs., 21 Nev. 235; State v. Hallock, 19 Nev.
389; Waldee v. Cummings, 86 Mich. 402; People v. Maheney, 13 Mich. 494; School Dist. v.
Hall, 113 U. S. 135.) [Here follows argument on the application of above authorities.]
Original application for a writ of certiorari. By Stats. 1895, p. 107, the legislature enacted
a law entitled An act to amend an act entitled An act for the purchase and preservation of
public newspapers printed and published in the several counties of this state,' approved
February 1, 1865. The body of the act is as follows: Section 1. The recorders of the several
counties of this state are hereby authorized and required to subscribe for one newspaper
printed and published at the county seat of each county of the state, and the board of county
commissioners of the respective counties shall designate the paper so subscribed for as the
official paper of the county, wherein all legal advertising and printing shall be done;
provided, the rate for such work shall not exceed the rate now established by law. No paper
shall be so subscribed for and designated unless it shall have been established for at least one
year, and is printed and published in its entirety at its place of establishment. Pursuant to this
statute the county recorder of Washoe county, on the 3d day of May, 1895, subscribed for the
Nevada State Journal, a newspaper coming within the terms of the act, and notified the board
of his action. June 3, 1895, the respondents, as such board, made the following order: It is
hereby ordered that the county printing of Washoe county, Nevada, be and hereby is awarded
to the Reno Evening Gazette until otherwise ordered by this board. The relator, as district
attorney of Washoe county, has applied for a writ to review this order, upon the ground
that it is in conflict with the foregoing statute.
for a writ to review this order, upon the ground that it is in conflict with the foregoing statute.
Although several interesting questions might be raised upon that statute, and as to whether
the order of the board is in conflict with it, the point which has been principally argued, and
to which we shall confine this opinion, is whether the act is in conflict with section 17 of
article IV. of the constitution, which provides that each law enacted by the legislature shall
embrace but one subject, and matter properly connected therewith, which shall be briefly
expressed in the title. As originally enacted in 1865 (Gen. Stats., sec. 2197, et seq.), the law,
the first section of which was amended as above stated, clearly embraced but one subject,
which was correctly stated in the title to be the purchase and preservation of public
newspapers printed and published in the several counties in this state. Section 1 requires the
recorders to subscribe for not less than one nor more than three such county papers as the
board of commissioners may select. Sections 2 and 3 direct how the papers shall be preserved
and paid for, what the recorder shall be paid for his services, and the penalty for a failure to
discharge his duties in that regard. Section 4 provides a punishment for abstracting or
defacing the papers purchased under the act.
Under the liberal construction of this clause of the constitution adopted by the courts (State
v. Board of Commrs. of Humboldt Co., 21 Nev. 235), this was undoubtedly a homogeneous
and valid law. While it contains many details, they are all of matters connected with the
purchase and preservation of the newspapers, the subject stated in the title, and consequently
are unobjectionable.
But into this comparatively unimportant act, involving an expenditure of probably not to
exceed $30 or $40 a year, this amendment, without anything in the title to indicate the
purpose to do so, injects the matter of legal advertising and printing, amounting to hundreds
and perhaps thousands of dollars, whether we regard that term as applying to all legal
advertising and printing or simply to that to be done for the counties. As so amended, it seems
to us that the act clearly embraces two separate and independent subjects, only one of which
is stated in the title; and that the one not stated is the real subject, while the other is merely
the incident.
The object sought to be accomplished by the constitutional provision is not difficult to
discover, and has been many times stated by the courts. It was to defeat log-rolling
legislation, or the combining in one act of incongruous and distinct subjects, and to prevent
fraud upon members of the legislature and the general public by covering up, under innocent
titles, vicious and harmful provisions, of which the titles gave no hint, and of which,
consequently, no knowledge might be obtained until they were enacted into laws. (State v.
Silver, 9 Nev. 227; State v. Board of Comrs. of Humboldt Co., supra.) Among the great
number of bills that are introduced every session, both members of the legislature and the
people must necessarily largely depend for their knowledge of the purposes of the proposed
measures upon the titles under which they are presented, and experience has amply
demonstrated that the constitutional provision, if fairly and liberally construed, is a great aid
to good legislation, and an embarrassment only to that which is not, or at least may not be,
open and above board.
Certainly, prima facie, the subject of legal advertising and printing, and the subject of
purchasing and preserving newspapers, are disconnected and independent matters. If they can
be shown to be related in any manner it must be through some subtle reasoning that does not
occur at first blush. The only argument seriously made in support of the law as amended is
that the real purpose of the legislature in enacting it was that a record of current events, legal
advertisements, etc., should be preserved, and that the better to accomplish that purpose it
was germane to that object to provide that the paper to be preserved should contain all such
advertisements. But that argument will not bear examination.
In the first place, the subject of the act must be the subject stated in the title; and, next, the
constitution does not say that all matters connected with the purposes or objects of the act
may be contained therein, but only matter connected with the subject so stated. For instance,
in Ex parte Hewlett, 22 Nev. 333, the object of the legislature in enacting the amendment then
under consideration was to afford better protection to the fish of the state, and all the
provisions of the amendment were properly connected with that purpose; but, as in the title
its subject was stated to be the amendment of one particular section of the original act,
the constitution did not permit its being extended to the amendment of other sections.
but, as in the title its subject was stated to be the amendment of one particular section of the
original act, the constitution did not permit its being extended to the amendment of other
sections. If the title is restricted to certain purposes, the purview or body of the act must also
be restricted to that subject. The act can be no broader than the subject expressed in the title.
(Suth. St. Const., sec. 87.) The title here restricts the subject to the purchase and
preservation of newspapers, and consequently the act cannot be extended to a regulation of
what they shall contain. But the truth is the real subject of the amendment under consideration
is not stated in the title at all. That subject is legal advertising and printing, or, as restricted to
its narrowest limits, county advertising and printing. The statement that the purpose of the act
is to amend the act concerning the purchase and preservation of newspapers is a mere cover.
That this is the fact is easily shown by a consideration of the effect of the amendment.
Previous to its enactment, the power to designate in what paper ordinary legal advertisements
should be placed rested in the district judges and other officers, and county commissioners
controlled the county printing. It was the duty of such commissioners, and certainly was
within their power, where the possibility of competition existed, to let such contract to the
lowest bidder. It may even be questionable whether the order of the board here is not in
conflict with the statute, upon the ground that it constitutes the letting of a contract, without
advertising, that amounts to more than $500. (Gen. Stats., sec. 1972; Sadler v. Board of
Comrs. of Eureka Co., 15 Nev. 39.) At any rate, they could advertise and let it to the lowest
bidder, and, where they have acted with an eye single to the interests of the taxpayers, we may
suppose they have done so. They could at least have some understanding about the prices to
be charged, and if not satisfactory could go elsewhere. But by this simple amendment all this
is changed. All power over legal advertising is taken from all the other officers, and vested in
the county recorder alone. That officer simply subscribes for a paper, and, following that, the
commissioners must designate it as the official paper, and all legal advertising and printing
must be done therein. This, too, without regard to the prices to be charged, or how poor an
advertising medium it may be.
prices to be charged, or how poor an advertising medium it may be. We say without regard to
price, for although the act provides that the rate shall not exceed the rates established by
law, if that means the prices to be charged for such work, we find no such rates established
for the great mass of county printing or legal advertising. Every county, every newspaper, and
every individual in the state is, or may be, affected by the provisions of the act upon that
subject, and when, as compared with these important changes in the law, we remember that
the only change made by the act as to the purchase and preservation of newspapers is that,
instead of the recorder subscribing for from one to three papers, to be selected by the
commissioners, he is to subscribe for but one to be chosen by himselfan immaterial change,
made only to facilitate the changes in the matter of advertising and printingthe real subject
of the act becomes clearly apparent, and the statement in the title that its subject is the
purchase and preservation of newspapers, decidedly ironical. It well illustrates the wisdom of
the constitutional provision, and the necessity of a reasonable adherence to its directions. The
title was concerning a matter of but little importance, and well calculated to escape attention.
The bill, in truth, passed the legislature under false colors that gave no notice of its real
character to those to be affected by it.
We have often held, and still hold, that the constitution is to be liberally construed, to the
end that there shall be no unnecessary hampering of legislation, but there is a wide difference
between liberal construction and nullification, which would be the effect of deciding that an
act, passed under a title so misleading as this, is, notwithstanding, a valid law. The section
might as well be stricken from the constitution at once as a dead letter. This distinction is well
illustrated by cases heretofore decided by this court. Those of State v. Ah Sam, 15 Nev. 27; Ex
parte Livingston, 20 Nev. 287, and State v. Board of Comrs. of Humboldt Co., supra, of
which we entirely approve, and which, in our judgment, contain nothing in conflict with what
is here held, were all cases in which, by liberal construction, the court was able to uphold the
validity of the acts then under consideration; while, on the other hand, the cases of State v.
Silver, supra, State v. Hallock, 19 Nev. 3S4, and State v. Hoadley, 20 Nev. 317
State v. Hallock, 19 Nev. 384, and State v. Hoadley, 20 Nev. 317, fell on the other side of the
line, and, notwithstanding the rules of liberal construction, the acts then being reviewed were
held to be unconstitutional.
Speaking of a similar provision in the constitution of New York, the supreme court of that
state used language which we consider quite applicable here. It said: The manifest intention
of the constitutional provision was to require sufficient notice of the subject of proposed
legislation of a private or local character to be so expressed in the title as to put not only
interested parties, but also all persons concerned in the proposed legislation, upon their guard,
and to inform all persons reading it of the general purpose and scope of the act. While this is
not required to be done by pursuing any formula, or with much detail of specification, and
great liberality of construction should be indulged in by the courts to uphold the
constitutionality of legislation, yet a due regard to constitutional requirements demands that,
when its plain and obvious purposes are disregarded or evaded, the judgment of the court
should give effect to its provisions. (Johnson v. Spicer, 107 N. Y. 185, 202.)
To our minds it is quite clear that this title not only gave no such notice as is required in
that case of the intention to deal with the matter of legal advertising and printing, but that it
was well calculated to actually mislead by inducing the belief that it did not refer to any such
subject. It follows that, as passed, the act is evasive in both the letter and spirit of the section
of the constitution under consideration. It embraces the very evil against which the provision
was directed, and under such circumstances the court would fail in its most important
function if it did not follow the mandates of the higher law.
The act being unconstitutional, and consequently no law, so far, at least, as the subject of
legal advertising is concerned, the order of the board cannot be in conflict with it, and the writ
will therefore be dismissed.
It is so ordered.
Bonnifield, J., dissenting:
By following the logical course of reasoning adopted by this court heretofore in cases
similar to this, and adhering to the well-established rules of interpretation for considering
the question of the constitutionality of statutes, a proper solution of the matters in hand
may be arrived at.
this court heretofore in cases similar to this, and adhering to the well-established rules of
interpretation for considering the question of the constitutionality of statutes, a proper
solution of the matters in hand may be arrived at. In order to keep the subjects under
consideration more clearly in view, the title of the amendatory act and the provisions of the
act are here given: An act to amend an act entitled An act for the purchase and preservation
of public newspapers, printed and published in the several counties in this state.' Approved
February 1, 1865. Section 1. * * * The recorders of the several counties of this state are
hereby authorized and required to subscribe for one newspaper printed and published at the
county seat of each county of the state, and the board of county commissioners of the
respective counties shall designate the paper so subscribed for as the official paper of the
county wherein all legal advertising and printing shall be done; provided, the rate for such
work shall not exceed the rate now established by law. No paper shall be subscribed for and
designated unless it shall have been established for at least one year, and is printed and
published in its entirety at its place of establishment.
It is claimed that this act is in conflict with the provisions of section 17, article IV., of the
constitution, which are as follows: Each law enacted by the legislature shall embrace but one
subject and matter properly connected therewith, which subject shall be briefly expressed in
the title. It is argued that there is more than one subject embraced in the act, to wit: (1) The
subject of the purchase and preservation of public newspapers; (2) the subject of legal
advertising and printingand that the second subject is not matter properly connected with
the first subject which is expressed in the title. This is, as I understand it, the substance of the
argument, and the essence of the contention raised against the validity of the law.
Before proceeding to the specific consideration of the act in question, and its title, it may
be well to call attention to the substance of certain rules adopted and recognized by the courts
in passing upon such questions as are involved in this case, and to other preliminary matters:
FirstThe presumption is that the legislature had an honest intent and had in view a
meritorious object in passing the act.
honest intent and had in view a meritorious object in passing the act.
SecondIt will be presumed that the members had average intelligence, and understood
the object of the act and the object expressed in the title.
ThirdNo legislative act will be annulled by the courts unless it clearly appears to be in
conflict with the constitution; that every reasonable construction and intendment will be
indulged to harmonize the two instruments, and, if there be a rational doubt as to the
invalidity of the act, the doubt will be solved in favor of its validity.
FourthIf the matters in the act are not independent, separate, incongruous, and
disconnected matters from, and bear no proper connection with or relation to, the general
subject of the act as indicated, or briefly expressed in the title, the act will stand the
constitutional test of said section 17 of article IV., no difference how many separate matters it
may contain. This latter rule is illustrated in the case of State v. Board of County Comrs., 17
Nev. 101, in which the court, by way of illustration, say: An act concerning crimes and
punishments is not unconstitutional for the reason that it treats of different crimes. Escape,
larceny, robbery, and murder are different crimes; but they are upon the same subject, viz.,
crimes.
In Ex parte Livingston, 20 Nev. 287, in illustration of this rule, the court said: Take, for
example, the general appropriation act. Every section, in fact, most every line, in a strict
sense, refers to a different subject, as different appropriations and for different purposes. * * *
It is not designed to require the body of the act to be mere repetition of the title. Neither is it
intended to prevent including in the bill such means as are reasonably adapted to secure the
object indicated by the title. It is intended to prevent legislators from being entrapped into the
careless passage of bills on matters foreign to the ostensible purpose of the statute as
entitled.
In case of State v. Board of Comrs. of Humboldt Co., 21 Nev. 235, the title of the act is,
An act fixing the salaries of the officers of Humboldt county and consolidating certain
offices. It was the contention on the part of the relator that both the act and the title
embrace more than one subject, to wit, the subject of salaries and the subject of
consolidating offices, and is therefore in contravention of section 17 of article IV. of the
constitution of Nevada."
ject, to wit, the subject of salaries and the subject of consolidating offices, and is therefore in
contravention of section 17 of article IV. of the constitution of Nevada. The court properly
held that the act was valid. The rules of interpretation are so concisely stated, and the logical
line of argument so clear, in the opinion, which is so pertinent and applicable to the case at
bar, that large quotations are here given and adopted as a part of this opinion. After specifying
the objects of section 17, art. IV., of the constitution, the court said: This, then, being the
mischief against which this clause of the constitution is directed, it should be so construed as
to correct the evil, but at the same time not to needlessly thwart honest efforts at legislation.
There is scarcely any subject of legislation that cannot be divided and subdivided into various
heads, each of which might be made the basis of a separate act, and in which the connection
between them may be made a matter of controversy. The reports show that seldom, indeed,
has the validity of a law come seriously in question without its being claimed that it was in
conflict with this clause of the constitution. This shows how necessary it is to adopt liberal
rules of construction in order to sustain laws not coming within the spirit and meaning of the
constitutional prohibition. If the provisions of a statute all relate directly or indirectly to the
subject expressed in the title, it is permissible to unite them in the same act. Citing Coal &
Iron Works Co. v. Brown, 13 Bush. 685; Phillips v. Bridge Co., 2 Metc. (Ky.) 222; State v.
Kinsella, 14 Minn. 524 (Gill. 395). The insertion in a law of matters which may not be
verbally indicated by the title, if suggested by it or connected with it, or proper to the fuller
accomplishment of the object so indicated, is held to be in accordance with its spirit. All
presumptions are in favor of the constitutionality of a statute, and it will be held valid until
the mind of the court is clearly convinced to the contrary. Citing Evans v. Job, 8 Nev. 322;
Railroad Co. v. Morris, 65 Ala. 193. In all cases of doubt, every possible presumption and
intendment will be made in favor of the constitutionality of the act in question. The courts
will only interfere in cases of clear and unquestioned violation of the fundamental law.
Citing State v. Irwin, 5 Nev. 120; People v. Parks, 58 Cal. 635. The objections should be
grave, and the conflict between the constitution and statute palpable, before the judiciary
should disregard a legislative enactment upon the sole ground that it embraces more than
one subject."
the conflict between the constitution and statute palpable, before the judiciary should
disregard a legislative enactment upon the sole ground that it embraces more than one
subject. (Citing Montclair v. Ramsdell, 107 U. S. 155; Suth. St. Const. sec. 82. It is only
the subject of the act which must be stated in the title; matters properly connected with the
subject need not be mentioned. Citing Humboldt Co. v. Churchill Co., 6 Nev. 30. If they
are mentioned it simply makes the title unnecessarily prolix.
If the legislature that passed the original act in 1865 could have, under the title given,
properly incorporated the provisions contained in the act of 1895, certainly no one will deny
that it was competent for the legislature of 1895 to do so, unless the title of the late act is
restrictive, and this precludes it; that is, unless it specifies some particular part of the original
act as the object of amendment, as was done in the title of the act considered in Ex parte
Hewlett, 22 Nev. 333. But the title of the act of 1895 is not restrictive. It does not specify any
particular in which it is proposed to amend the old act, nor does not limit the amendment to
any particular matter. The whole scope of legislation is left open to such matter as would
have been proper to enact by the former legislature.
In State v. Ah Sam, 15 Nev. 31, and in several other cases, the subject of an act and the
object of an act are treated as synonymous terms by this court, and they will be so regarded in
this opinion.
Now, bearing the foregoing rules of interpretation in mind, let the vital questions in this
case be examined. The title of the old act is the substance of the title of the amendatory act.
What, then, is the subject of the act, or, in other words, what was the object the legislature
had in view in passing it, and what object is indicated by its title, to wit, An act for the
purchase and preservation of public newspapers?
What is a newspaper? A newspaper is a sheet of paper printed and circulated, at short
intervals, for conveying intelligence of passing events; a public print that circulates news,
advertisements, proceedings of legislative bodies, public documents, and the like. (Webst.
Dic.) This definition accords with the general understanding of the public. There could have
been no disagreement among the members of the legislature, and no member could have
been forgetful as to what newspapers are while reading the title or considering the bill.
legislature, and no member could have been forgetful as to what newspapers are while
reading the title or considering the bill. It is manifest that the object the legislature had in
view in passing it (the original as well as the amendatory act) was not simply to preserve
printed sheets of paper, but to preserve, in newspaper form, intelligence of passing events, for
public use. To subserve this object there could not have been any legislation more appropriate
than to provide for the purchase and preservation of newspapersthe instruments containing
the intelligence desired to be preserved. And what more appropriate title than the one
adoptedexpressive of, and clearly indicating, the general object of the actcould have
been devised?
The general object of the act being clear, and the title of the act clearly indicating the
object, it seems to me that no room is left for the assumption that any member of the
legislative body or any member of the general community might have been misled by the
title. The general object of the act being to preserve intelligence of passing events in
newspaper form, and the title of the act clearly indicating that object in specifically giving the
object to be for the purchase and preservation of public newspapersthe very instruments
containing such intelligenceit follows that the provision of the act requiring that all legal
advertising and printing shall be done in these newspapers is not legislating upon a matter
that is not germane to and properly connected with the general object of the act, as clearly
indicated by the title. Legal advertising or printing is intelligence of one class of passing
events. The legislature having exclusive control of legal advertising and printing, it certainly
is matter properly connected with the subject or object above named to require that this class
of intelligence or current news shall be preserved in manner and form as the other classes.
This class is not only matter properly connected with the general subject, but is a part of the
general intelligence of passing events, the preservation of which is the object of the act. If the
object of the act and the object as expressed in the title can be reasonably construed in two
ways, one militating against the constitutionality of the act and the other sustaining the law, it
is imperatively required of the court to adopt the latter construction.
In State v. Ah Sam, 15 Nev. 27, the title of the amended act is An act to regulate the sale
or disposal of opium and to prohibit the keeping of places of resort for smoking or otherwise
using opium. The act prohibits the sale of opium, unless upon the prescription of a
physician, and in that case only allows druggists and apothecaries to sell it. It prohibits the
keeping of places of resort for smoking opium, prohibits the leasing of houses for such
purposes, and finally it prohibits all persons from resorting to places kept for such purposes,
and provides severe penalties for reporting thereto. It will be observed that the subject of
resorting to such places is not expressed in the title in terms. Ah Sam was convicted under
this act, not for selling opium, not for keeping a place of resort for smoking it or otherwise
using it, but for simply resorting to such a place. On appeal to this court his counsel claimed
and urged that the act embraced two or more subjects: (1) The regulation of the sale of
opium; (2) the prohibition of keeping places of resort for smoking opium; (3) makes it
criminal for any one to resort to a place kept for smoking opiumand that the latter subject is
not embraced in the title. The court held the act to be constitutional, and the conviction of Ah
Sam proper. It said: Clearly it does not embrace more than one subject, and if its title had
been An act for the suppression of opium dens' we think no one could be found to question
its constitutionality. It is apparent that the legislature, in passing the act in question, had but
one object in view, viz., the suppression of places commonly known as opium dens, and
nothing is contained in the law that is not conducive to that end. So it may be said with equal
force in this case, on the same line of argument, and by the same logical course of reasoning,
that clearly the act does not embrace more than one subject, and if the title had been An act
to preserve intelligence of passing events or current news contained in newspapers we think
no one would have been found to question its constitutionality. It is apparent that the
legislature is passing the act in question had but one object in view, viz., to preserve
intelligence of passing events or current news, found in newspapers, and nothing is contained
in the law that is not conducive to that end. The court in that case further said: The title of
the act does not profess in explicit terms to aim at the suppression of opium dens by every
legitimate means, but merely to prohibit the keeping of such places, and upon strict rules
of interpretation it would be difficult to maintain that the latter expression is as broad as
the former, or that it will cover anything besides provisions for punishing the keepers of
such resorts."
act does not profess in explicit terms to aim at the suppression of opium dens by every
legitimate means, but merely to prohibit the keeping of such places, and upon strict rules of
interpretation it would be difficult to maintain that the latter expression is as broad as the
former, or that it will cover anything besides provisions for punishing the keepers of such
resorts. That is, upon strict rules of interpretation, the title embraces the prohibition of
keeping such places of resort, and the punishment of the owners and keepers thereof, and
does not embrace the matter of making it a criminal offense for any one to resort to such
places. And the court said: In dealing with this particular objection to parts of statutes,
which, as a whole, embrace but one subject of legislation, the courts of the different states
have adopted an exceedingly liberal rule of construction in favor of their validity. * * * It is
not inconsistent with these provisions [of the constitution] to give some slight enlargement to
the literal meaning of the title of a law. So, applying what the court said in that case to this
one, it may be said here that the title of the act does not profess in explicit terms to aim at the
preservation of intelligence of passing events or current news by every legitimate means, but
merely to preserve newspapers containing such intelligence or news, and it is not inconsistent
with the provisions of the constitution to give some slight enlargement to the literal meaning
of the title of the law, and the said liberal rules adopted by the courts of the several states
should be adopted in this case.
The constitution does not require that the title of an act shall be the most exact expression
of the subject which could be invented. The general purpose of section 17, article IV., of the
constitution, is accomplished when the law has but one general object, which is fairly
indicated by its title. The different steps by which the result is to be accomplished are not
different subjects, but minor parts of the same subject. (Kline v. Kinkead, 16 Nev. 194.) It is
submitted that in this case there is but one general object of the act, which has been pointed
out herein, and which is fairly indicated in the title; that the step of publishing legal
advertising and printing in the designated paper is a step by which the result is to be
accomplished, and is not a different subject, but a minor part of the same subject.
which the result is to be accomplished, and is not a different subject, but a minor part of the
same subject.
If the cases of Esser v. Spaulding, 17 Nev. 289; State v. Atherton, 19 Nev. 332; and Ex
parte Livingston, 20 Nev. 282, be examined and the interpretations there given and the
reasoning therein contained be applied in this case, the constitutionality of the act of 1895
will further clearly appear. The objection that the act regulates legal advertising and printing
is not a valid objection to its constitutionality. This is simply an incident to and not the object
of the act. Notice by publication is required to be given in the following matters: Delinquent
tax suits, sale of property for delinquent taxes, notice to creditors of deceased persons, notice
of elections, expiration of time of registration, meeting of the board of equalization, and in
many other matters. These notices are legal advertisements or legal printing, and are simply
incidents to and not the subject of the several acts wherein their publication is required. The
objections that the act requires legal advertising and printing to be done in these papers
without regard to the price to be charged, and that no rates are fixed by law, are not well
taken. There are rates fixed by law for some legal advertisements.
If the paper should refuse to do any given work at the rate fixed for similar work, it
certainly would leave the matter open for competition, and to the lowest bidder; for the act
provides that legal advertising and printing shall be done in the designated papers; provided,
the rate for such work shall not exceed the rate established by law. If there be no rate
established for the particular work, certainly it is not required that such work shall be done in
these papers, unless terms can be agreed on by the officers and the proprietors of the papers,
otherwise they would have to do the work without compensation, if at all. The matter of rates,
in all cases where rates are not fixed by law, is left exactly where it was before the law was
passed. The county recorder only designates the paper; he has nothing to do with the rates,
nor with legal advertising and printing, but they are left in the hands of the respective officers
as before. It is not probable that the respondents, or any officer having such printing to be
done, would agree with the designated paper for higher rates than those asked by a
competitive paper.
From the foregoing views it follows, not only that the public interest cannot be injured by
the law, but that the act is clearly constitutional, and upon the latter ground the proceedings of
the respondents in the premises should be annulled.
I therefore respectfully dissent from the judgment of the court.
____________
22 Nev. 417, 417 (1895) State v. LaGrave
[No. 1430.]
THE STATE OF NEVADA, ex rel. GEORGE D. PYNE, Relator, v. CHARLES A.
LaGRAVE, State Controller, Respondent.
1Statutes 1895, page 109, Section 11, Construed.Under section 11 of the Statutes of 1895, page 109,
declaring it the duty of a county to provide an armory for militia companies within it, and providing for
payment of claims for expenses of procuring the same, such claims to be audited and approved by a
board of military auditors, and the presentment of such claims to the state controller and payment thereof
by the state treasurer, the expenses provided for are actual expenses incurred in procuring an armory.
On this point the petition in this case, being silent, is insufficient, as it fails to state facts showing that the
demand was a legal one against the state.
2Militia ClaimAuditing and Approval of by Board of Military Auditors, Do Not Constitute It a Legal Claim
Against the State.A claim against the state for expense of providing an armory, if not shown to be
properly chargeable against the state, does not become a legal demand against it simply because the claim
has been regularly audited and approved by the board of military auditors.
3MandamusPetition For, What Must Affirmatively Appear In.A petition for mandamus must show on its
face a clear legal right to that for which it is sought in the proceeding.
Original proceeding on application for writ of mandamus.
The facts are sufficiently set forth in the opinion.
Argued orally
J. Poujade, for Relator.
Robt. M. Beatty, Attorney-General, for Respondent.
This is an application for a writ of mandamus requiring respondent as controller of state, to
draw his warrant in favor of relator, as secretary of Company B, first regiment, Nevada
National Guard, for the rent of an armory for the company for the month of April, 1S95.
Nevada National Guard, for the rent of an armory for the company for the month of April,
1895. The statute under which the claim is made is as follows: Sec. 11. It shall be the duty of
the board of county commissioners of any county in which public arms, accoutrements, or
military stores are now had or shall hereafter be received for the use of any volunteer
organized militia company to provide a suitable and safe armory for organized militia
companies within said county. All claims for the expense of procuring and maintaining
armories shall be audited and approved by the board of military auditors, and upon approval
of such claims they shall be presented to the state controller, who shall draw his warrant upon
the state treasury for the amount so approved, and upon presentation of said warrant, the state
treasurer shall pay the same out of the general fund. Such expenses shall not exceed
seventy-five ($75) dollars per month for any company except that each company regularly
drilling with field pieces or machine guns, and using horses therewith, may be allowed an
additional sum not to exceed twelve and 50-100 ($12.50) dollars per month for each piece or
gun. (Stats. 1895, p. 109.) In his petition relator states that the county commissioners of
Storey county provided an armory for the use of the company during the period mentioned,
and that a claim amounting to the sum of $75 therefor was audited and approved by the board
of military auditors and the state board of examiners, etc. It will be observed that the statute
provides that the county commissioners shall provide a suitable and safe armory, but whether
they, or the owners of the armory building, or the company, shall present the claim for the
expense of so doing, is not clear. But, aside from this, it is beyond controversy that it is only
the actual expense incurred in procuring and maintaining an armory, not to exceed $75 a
month, that shall constitute a charge against the state. Upon this point the petition is silent. It
says nothing about the actual expense, nor that any such expense has ever been incurred; and
without such statement the petition fails to state facts showing that the demand is a legal one
against the state.
Claims that are not properly chargeable to the state do not become legal demands simply
because audited and approved by the boards mentioned.
by the boards mentioned. All the decisions agree that the writ will not issue unless the
applicant shows a clear legal right to the relief demanded. Thus, in Illinois & M. Canal
Trustees v. People, 12 Ill. 248, where a question involving a similar principle arose, the court
said: It is insisted that the alternative mandamus is too defective to sustain the judgment. An
alternative mandamus becomes the foundation of all the subsequent proceedings in the case.
It answers the same purpose as the declaration in ordinary actions. It must show on its face a
clear right to the relief demanded by the relator. It must distinctly set forth all the material
facts on which he relies, so that the same may be admitted or traversed. The defendant is
called upon to perform the particular act sought to be enforced, or by a return deny the facts
alleged in the writ, or state other matters sufficient to defeat the relator's application. * * * In
this case, the alternative mandamus is fatally defective. It does not set forth the facts on which
the relators rely. * * * This is like the case of a writ of error brought to reverse a judgment
entered on a declaration showing no cause of action. * * * The proceedings fall, for want of a
proper foundation to sustain them. Again, in Lavalle v. Soucy, 76 Ill. 467, it is said: A writ
of mandamus will be awarded only in a case when the party applying for it shows a clear right
to have the defendant do the thing which he is sought to be compelled by mandamus to do.
(People v. Glann, 70 Ill. 232.) The petition must show upon its face a clear legal right to the
relief demanded, and every material fact on which the petitioner relies must be distinctly set
forth.
Having reached the conclusion that the writ must be dismissed, it is not necessary now to
determine the further question whether an appropriation for its payment has been made. Writ
denied.
____________
[No. 1428.]
H. H. BECK, Plaintiff and Respondent, v. WILLIAM
THOMPSON, Defendant and Appellant.
1RehearingNew Matters Not to be Considered On.All the points raised in the petition herein, except as to
rent, are new matters, and under the decision of a line of authorities they should not be considered on
petition for rehearing. Points cannot be raised for the first time on motion for rehearing.
2PresumptionAs to Original Argument.Counsel are presumed to have presented on the original argument
all the grounds upon which they rely for affirmance or reversal of the judgment appealed from. Rehearing
denied.
Petition for rehearing.
Torreyson & Summerfield, for the petition.
Robert M. Clarke, contra.
The appellant has filed a petition for rehearing. On this appeal, the counsel for appellant
presented and argued the following points, to wit: (1) The $30,000 transaction, including the
$10,000 note; (2) the question of rental; (3) the question of wages. In the petition for
rehearing, the second point above named (the question of rent) is again presented, as follows:
We respectfully submit, also, that this court erred, upon this appeal, in holding that there was
no error in the rent account, as settled by the lower court. Nowhere in the evidence can an
agreement be found that no rent was to be paid in case of destruction of the mill by fire. The
evidence shows that rent was paid to Lake by Bole up to the date of the destruction of the
mill, on the 10th day of October, 1881; that, on June 1, 1882, Lake and Beck received a credit
for rent in the sum of $1,466.66, and that from then forward they received a credit of $400 per
month, including the month of June. From October 10, 1881, to June 1, 1882, there are seven
and two-thirds months. The $1,466 66 paid the rent for three and two-thirds months, leaving
four months for which no rent was charged on the books by Lake & Beck to H. H. Beck &
Co., and none was paid. Evidently this period of four months was the period during which the
new mill was being built by Lake & Beck. It appears from the evidence that Lake did not die
till more than two years after the expiration of these four months. And there is no evidence
that Lake made any complaint about there being no charge made for rent for the four months,
or that he claimed that rent should be paid therefor. These facts tend to show that it was
agreed and understood by the parties that no rent was to be paid for the four months the new
mill was being constructed. We see no reason to change the conclusion we arrived at
heretofore on the question of rent.
no reason to change the conclusion we arrived at heretofore on the question of rent.
All the points raised in the petition, except as to the rent, are new matters, and, under the
decisions of a long line of authorities, they should not be considered, on petition for
rehearing. A rehearing in the supreme court will not be granted in order to consider points
not made in the argument upon which the case was originally submitted. (Kellogg v.
Cochran, 87 Cal. 192.) The supreme court will not consider a petition for rehearing that
attempts to discuss the case upon grounds which were not presented in the original argument
or discussed in its opinion. (San Francisco v. Pacific Bank, 89 Cal. 23.) New questions
cannot be raised for the first time on motion for rehearing. (2 Enc. Pl. & Prac. 386, and
authorities cited in note 1.) Counsel are presumed to have presented on the original
argument all the grounds upon which they rely for the affirmance or reversal of the judgment
appealed from. (Id., and note 2.) We fully concur with the above-named authorities.
A rehearing is denied.
____________
22 Nev. 421, 421 (1895) State v. Tyrrell
[No. 1444.]
THE STATE OF NEVADA, ex rel. W. J. WESTERFIELD, State Treasurer, Relator, v.
GEORGE A. TYRRELL, County Treasurer of Ormsby County, Respondent.
1County OfficersSalariesLiability of State.Under section 21 of the salary act of 1885, the state is liable
to a county for her proportion of the salaries of the assessor, auditor and treasurer.
2SameNot Repealed by Revenue Act of 1891, pp. 182-3.The statute of 1885, page 85, section 21, is not
repealed by the revenue act of 1891, pp. 182-3, the latter act being simply a re-enactment of the revenue
act of 1865, except that it omits its provisions for liability of the state for part of certain county officers'
salaries, and is not intended as a repeal of said act of 1885.
Original proceeding on petition for writ of mandate.
Robt. M. Beatty, Attorney-General, for Relator:
This is a proceeding to enforce the payment into the state treasury of moneys withheld by
respondent, as county treasurer of Ormsby county, under a claim that said money belongs of
right to Ormsby county as part of the salaries of its assessor, auditor and treasurer legally
payable by the state.
assessor, auditor and treasurer legally payable by the state. The question involved is whether
or not the state is in law required to pay a part of the salaries of those officers.
From 1865 to 1891 the state was by the so-called revenue act of 1865 so required (Gen.
Stats., sec. 1163); but on March 23, 1891, that act was repealed wholly and by title (Stats.
1891, p. 187, sec. 154). The act of 1891 re-enacted much of the act of 1865, but did not
re-enact any part of it concerning payment by the state of any portion of county officers'
salaries. The revenue law as now, and since March 23, 1891, in force is silent on the subject
of the state's paying any county officers' salaries unless the restriction in section 153 of the act
of 1891, p. 187, be in point as inhibiting payment except as provided in that act.
From the foregoing I claim that under no general law in force since March 23, 1891, is the
state responsible for any part of any salary of any county officer, and that no special act can
be enforced under the constitution either as it was before or since its amendment in 1889 by
the terms of which the whole people of the state by or through the revenue of the whole state
are to be made to pay the salaries of any of the officers of any special or particular county.
(Const., art. IV., sec. 20.)
Respondent relies on section 9 of an act of the legislature entitled An act to regulate the
compensation of officers in the county of Ormsby and to fix the fees which may be charged
by them, approved March 5, 1887 (Stats. 1887, p. 130), by which it was attempted to make
the state liable for portions of the salary of certain county officers of Ormsby county. This
section was in effect merely a reiteration of the provisions of the general revenue law of 1865
then in force, except that the section designated the proportion of salaries upon which the
state should be liable. Therefore, until the general revenue act of 1891 became law, the
special act of 1887 was in reality covered by the general revenue act of 1865, and no attention
was therefore paid to said section 9.
Section 9 of the special act of 1887 cannot be enforced, it being unconstitutional and void
under the restriction of legislation embodied in art. IV., sec. 20.
That a general law could be made applicable on the subject cannot be better ascertained
than by the fact that one, namely, the general revenue act of 1S65, was enacted and
remained in full force from 1S65 to 1S91.
namely, the general revenue act of 1865, was enacted and remained in full force from 1865 to
1891.
Alexander J. McGowan, District Attorney of Ormsby county, for Respondent:
This court, judging by the light of past decisions, will not declare an act unconstitutional
that can in any way be upheld. As far as Ormsby county is concerned, she relies mainly upon
the act of 1887. Ever since its adoption she has been settling with the state upon the basis set
out in that law. The officers of the state have accepted the terms of that law in making their
semi-annual settlements with her officers. If the act of 1887 is declared by this court to be
null and void, then Ormsby county will have to take her chances along with her sister
counties.
Special legislation is the creation of a special law, where a general one could be made to
apply. If this be so, the intention of the legislature must be considered, and if the court arrives
at the conclusion that the legislature deemed in this matter that a general law would not
suffice, then the act of 1887 is not a law that can be set aside under the claim that it is special
legislation. (Eicholtz v. Martin Co. Clerk, 36 Pac. 1064.)
The Attorney-General, in his oral argument, suggested that the court go into the whole
matter and find out if the State of Nevada is responsible to any county for the part payment of
fees of county officers under any act of the legislature. On this point section 21 of the act of
March 11, 1885, provided that the state shall pay to the auditor, assessor and treasurer of each
county of the state a sum which shall be in proportion of the state tax to the whole tax levied
by the county. (Stats. 1885, 92). This act was in force at the time of the passage of the
revenue act of 1891 and has never been repealed by implication or otherwise.
Section 153 of the revenue act of 1891 provides that, except as specified in said act, no
officer shall receive to himself any other compensation than the salaries fixed by law. (Stats.
1891, 187.) Sections 136 and 137 of the revenue act of 1891 provide for the manner in which
settlements shall be made with the state, and reaffirms section 21 of the act of March 11,
1885. (Stats. 1891, 182-3.)
The repealing clause of the revenue act of 1891 in no way affects nor in manner repeals
any part of the act of 1885. (Stats. 1891, 187-8.) Neither does it repeal any act fixing the
salaries of the county officers of any county in this state.
If this be law, and we maintain that it is, the revenue act of 1891 is in nowise affected and
does not control the mode of settling with the State, as that duty is performed by the act of
1885, and if the act of 1887 is void, the general act of 1885 should be upheld as being the
only mode pointed out by statute for making settlement with the State by county officers.
The Attorney-General, in reply:
Respondent having to some extent changed front as to his authority and legal right to
retain the money in dispute, and now, for the first time, placed his reliance upon a statute not
before cited or referred to in oral argument, namely, section 21 of the act of 1885, I am
perforce, though unwillingly, necessitated to call attention to the exact language of said
section 21. It refers and can refer only to the revenue act as it existed in 1885, i.e., the
revenue act of 1865, and the allowance in said section 21 provided for is for salaries allowed
by the act. What act? Why, the revenue act of 1865, which has already been shown to have
been repealed wholly and by title. And the present revenue act of 1891 cannot be the act
referred to in section 21, because the revenue act of 1891 makes no provision for any
salaries. And moreover the act of 1885 is repealed by implication at least by the statute of
1891, p. 188, among all other acts and parts of acts passed and approved prior to the year
1891 in conflict therewith. Therefore, the act of 1865 being repealed, and the act of 1891
making no provision for the payment by the state of any county officer's salary, section 21 of
the act of 1885, relating to the revenue act of 1865, is not now, nor can it reasonably be, in
force or of any effect in this proceeding.
Application by the relator, as state treasurer, for a writ of mandamus to compel the
respondent, as treasurer of Ormsby county, to pay over to him the sum of $285.69, alleged to
be a part of the state's revenue, unlawfully detained by respondent.
be a part of the state's revenue, unlawfully detained by respondent. As we understand it, the
respondent claims the right to retain such moneys, under sections 136, 137 of the revenue act
of 1891 (Stats. 1891, pp. 182, 183), as a part of the compensation due to Ormsby county from
the state on account of the salaries of the assessor, auditor, and treasurer of that county. The
question presented is whether the state is liable for any part of those salaries.
It appears that the revenue act of 1865 provided for the state's paying a portion of such
salaries, but that, when that act was revised and re-enacted in 1891, the sections to that effect
were left out. Under these circumstances, the old act being repealed, it was supposed, upon
the argument, that the liability of the state depended upon section 9 of the act of 1887 (Stats.
1887, p. 126), regulating the compensation of the officers of Ormsby county; and the
constitutionality of this act was attacked, on the ground that it was local and special
legislation. This was the question principally argued; but it now appears that the state's
liability is equally established by section 21 of the salary act of 1885 (Stats. 1885, p. 85), the
validity of which is in nowise attacked or questioned, except upon the ground that it has been
repealed, by implication, by the revenue act of 1891.
We, however, find no conflict between the two acts, and consequently are of the opinion
that section 21 of the act of 1885 is still in force. We are also of the opinion that, when that
section provides that the sum to be allowed by the state to the various counties shall be the
proportion of the state tax to the whole tax levied by the county, on the basis of the salaries
allowed by the act, it refers to the salary act of which that section is a part, and which had
just fixed the salaries of county officers, instead of to the revenue act of 1865, which, so far
as it fixed officers' salaries, was then impliedly repealed.
This being so, and it nowhere appearing in the pleadings, or otherwise, that the county is
claiming or withholding more than is justly due her under that section, there is no necessity to
determine the constitutionality of the law of 1887; as, whether valid or not, the same result
would follow. If the county is retaining more, it must be made to appear in a legal manner
before notice can be taken of it.
Writ denied.
____________
22 Nev. 426, 426 (1895) Lynip v. Buckner
[No. 1436.]
B. F. LYNIP, Contestant and Respondent, v.
L. A. BUCKNER, Contestee and Appellant.
1Election ContestAppeal.A judgment of the district court in an election contest declaring the election of
a candidate whom the official returns showed had been defeated, is not an annulment of an election
within the meaning of Gen. Stats., sec. 1569, so as to require the dismissal of an appeal taken more than
thirty days after the rendition of the judgment.
2SameNew Trials and Appeals.New trials and appeals in contested election cases are regulated by the
civil practice act.
3Australian Ballot LawBallots.Where the inspectors of an election failed to remove the strips containing
the numbers from the ballots of a precinct before placing them in the ballot box, but it satisfactorily
appeared that this was done through an innocent mistake on their part, they supposing that they had
removed them, and that the fact that the numbers were being left on the ballots was unknown to the
voters, or to any one, until after the close of the polls, and that it consequently was not, and could not
have been, used for the purposes of bribery or intimidation: Held, that this should not have caused the
rejection of the ballots. (Belknap, J., dissenting.)
Humboldt county; C. E. Mack, District Judge, presiding.
The points sufficiently appear in the opinion.
Thomas E. Haydon and Robert M. Clarke, for Appellant:
Appellant relies on the proposition that the ignorance, mistake, or even fraud, of the
members of the election officers (in this case there is not even a pretense of fraud) cannot
deprive the voter of his constitutional right to vote and have his vote counted. (Stinson v.
Sweeney, 17 Nev. 310-322.)
Punctuating the inviolability of this constitutional privilege of the lawful voter, after due
observance on his part of the requirements of registry and election laws, to cast his vote and
have it counted, where there is no delinquency on his part, we cite: Davis v. McKeeby, 5 Nev.
370; Clayton v. Harris, 7 Nev. 64; State v. Findley, 20 Nev. 200.
Section 29 of the Australian ballot law makes it a felony for any public officer to willfully
neglect or refuse to perform any duty enjoined on him by the act. Yet, if he does so, that does
not make void the ballots of qualified electors.
that does not make void the ballots of qualified electors. (McCreary on Elections, sec. 500.)
Very little attention is given to irregularities of election officers. Where only lawful
electors are allowed to vote the malconduct of officers will not make void the votes.
(McCreary, sec. 187-205.)
As to the spirit in which the election laws should be construed in favor of the lawful voter,
see McCreary, 135, 138, sec. 208, and Bowers v. Smith, 11 Mo. 45.
This case is on the Australian ballot law and Bristol's Decisions of other courts of last
resort, all tending to show that the trial court erred in rejecting the ballots of Rebel Creek, and
all tend to show that the decision in Stinson v. Sweeney, supra, though made before the
adoption of the Australian ballot is still the law of the land in this and many other states with
similar constitutions. (17 Col. 338; 31 Am. St. Rep. 304 and note; 130 Ind. 561; 30 Am. St.
Rep. 254; 12 Col. 256; 129 N. Y. 395; 102 N. C. 456; 11 Am. St. Rep. 767; 30 Fla. 668; 32
Am, St. Rep. 46; 78 Mich. 545; 18 Am. St. Rep. 458; 146 Pa. St. 592; 28 Am. St. Rep. 814;
53 Kan. 594; 42 Am. St. Rep. 306, 313, 315.)
There are no marks on either of the rejected ballots such as to furnish any proof or
apparent indication that they were placed thereon for the purposes of identification, but they
simply show an erasure of a mark or cross inadvertently placed opposite the name of the
candidate the voter did not intend to vote for. (Ruttledge v. Crawford, 91 Cal. 526; 63 Tex.
390; 51 Am. Rep. 646; 135 N. Y. 522; 12 Col. 256; 92 Cal. 135.)
The burden of proof is always on the contestant of an election to show that he received
more lawful votes for the office in question than his opponent, who is declared by the proper
canvassing board to have been elected. (McCreary on Elections, sec. 424.)
The presumption of law is that the board of elections did its duty lawfully and correctly in
deciding the number of lawful votes received by each of the contesting candidates and
correctly decided which received the majority, and the burden of proof was on the contestant
to overcome this prima facie case. (McCreary, sec. 465.) [Here follows argument on the facts
and points not passed upon.] David S.
David S. Truman, for Respondent:
After a full hearing upon the merits the lower court found and adjudged that the contestant
was duly and legally elected. The contestee, being desirous of having a review of this case,
prepared his statement on motion for a new trial and filed the same in the cause. The
respondent then asked the court to refuse to allow said statement, on the ground that the
statute regulating contests of election does not provide for a new trial motion, but only for an
appeal. Thereupon the lower court, after considering the matter fully, determined that there
had been no errors sufficient to warrant the granting of a new trial in case a new trial was a
proper proceeding in this character of action, and secondly that he had no power or authority
under the statutes of this state to grant a new trial at all, and that to do so would be going
beyond his jurisdiction in the case.
There are two preliminary motions made by respondent: FirstOne to dismiss this appeal,
and if this motion is well taken, the case must be at an end in this court. SecondIn the event
that said motion for a dismissal does not prevail, then the motion for a diminution of the
record is to be considered, and should this motion prevail, then there is only the judgment roll
before this court for its consideration, and in the event that neither motion should prevail,
then the appeal, of course, must be determined and considered on the merits.
The court is asked to dismiss the appeal: (1) Because the appeal is not taken in the time
required by the statutes governing election contests, and (2) because of the appeal not being
taken within thirty days after the rendition of the judgment of the court. (Steel v. Steel, 1 Nev.
27; 7 Nev. 106.)
The intention which is declared by all of the courts that have been called upon to
adjudicate on contested election laws is that it is a summary remedy to speedily determine
who are the duly elected officers of the people. (Webster v. Byrnes, 34 Cal. 277; Keller v.
Chapman, 34 Cal. 635; Minor v. Kidder, 43 Cal. 229-237, in which the court says: It is,
therefore, not an ordinary adversary proceeding, for, as against the high public interest
concerned, there can be no recognized adversary.) Another rule of interpretation applicable
here is that where the later statute makes a special provision different from the former,
the latter will govern. {V. & T. R. R. Co. v. Ormsby Co.,
Another rule of interpretation applicable here is that where the later statute makes a special
provision different from the former, the latter will govern. (V. & T. R. R. Co. v. Ormsby Co.,
5 Nev. 341; Gillette v. Sharp, 7 Nev. 245.)
It must be considered here that if the legislature desired that the practice act relative to
appeals should apply where the decision was against the person holding the certificate, it
would have added no further provision in the election law changing the provision of such
practice act relative to appeals in the case mentioned. (14 Cal. 503.)
The design of the election statute is determined in Saunders v. Haynes, 13 Cal. 145-151;
Gerrard v. Gallagher, 11 Nev. 386; Thorpe v. Schooling, 7 Nev. 15; Arnold v. Stevenson, 2
Nev. 234; 6 Nev. 108; 7 Nev. 19; 24 Cal. 449; 29 Cal. 416.
The district courts of this state have no jurisdiction of election contests by virtue of the
general jurisdiction conferred upon them by the constitution or statutes. (Gen. Stats. 2439;
Const., art. VI., sec. 6; Gen. Stats., sec. 137.) The jurisdiction is only conferred by the statutes
governing election contests. (Gen. Stats., sec. 1563.) Neither the constitution nor the statutes
give any right of appeal, in so many words, as our constitution and statutes do, in the state of
California. (Code of Civil Procedure, sec. 963; Knowles v. Yates, 31 Cal. 83.) The position
taken by counsel that this is a case within the meaning of the constitution and laws of this
state is erroneous. (Dorsey v. Barry, supra; Hayne on N. T. & Ap., sec. 172.)
The position also taken by counsel that the word annulled as used in sec. 1569, Gen.
Stats., means the entire abrogation of a general election, is not sustainable or reasonable when
considered in connection with the other sections of the act. This is more clearly shown by
reference to section 1561. Section 1560 is also directly contradictory to counsel's contention.
See, also, sections 1562, 1567, 1569. Section 1695 does not declare the election shall all be
set aside, but that the office becomes vacant, * * * and the certificate, if any has been issued,
is void.
The foregoing motion failing, there should be a diminution of the record in this case by
striking out the statement on motion for a new trial and everything but the judgment roll.
In support of this, see Hayne on N. T. & Ap., sec. 5; Dorsey v. Barry, 24 Cal. 449; 24 Cal.
457.)
When our legislature so adopted their law and did not make any provision for a new trial
being had in these special proceedings, there can be no doubt of the intention of the
legislature that there should be no new trial had (2 Nev. 199; 8 Nev. 312; 1 Nev. 533; 5 Nev.
24; 18 Nev. 254-63.)
The action of the lower court on this matter is coram non judice, and the same should be
stricken from the records of the case because a new trial not being proper no such statement
can be of any avail to appellant. It does not purport to be a statement on appeal and cannot be
treated as such by the court. (Robinson v. Benson, 19 Nev. 331; Nesbitt v. Chisholm, 16 Nev.
40; Williams v. Rice, 13 Nev. 234.)
There is no error appearing upon the judgment roll, and the repeated decisions of this court
are that in such case the judgment appealed from will be affirmed.
When the ballot was given to the voter the number of such ballot was written by the clerk
upon the registry list in compliance with section 19 of the act of 1891, p. 44, and all being
done in compliance with that and section 20 up to this point everything appears to have been
regular and in conformity with law concerning the Rebel Creek precinct. The remaining
portion of section 20 regarding the disposition of the ballot and numbered strip being
destroyed was not done, and now counsel for the appellant asks this court to declare such a
ballot to be legal and to be counted. The lower court was right in excluding such ballots and
refusing to count them. To uphold counsel's contention is to destroy the intention of the law,
as well as the very language of the statute.
What is the constitutional right of the voter? Certainly, to cast his ballot without the
knowledge of any one as to how he has cast it or for whom he has voted. That which destroys
the secrecy of the ballot destroys his constitutional right. The leaving of this number upon the
ballot, whether done ignorantly, willfully or maliciously by the inspector, is absolutely
destructive of this right.
The legislature intended to prevent the counting of a ballot upon which the strip with the
number was left and not detached before going into the ballot box, and is evidenced by the
prohibition of section 26 where it is enacted that no ballot with marks printed, except as
in the act provided, shall be counted.
by the prohibition of section 26 where it is enacted that no ballot with marks printed, except
as in the act provided, shall be counted. That this language is mandatory goes without saying.
(Williams v. Stein, 38 Ind. 89.)
Counsel lay some stress on the burden of proof lying with contestant. Originally it did, but
when we gave to the court sufficient legal reason for the exclusion of the vote and rested our
case, certainly the burden of proof was shifted.
Counsel claim that certain illegal votes were cast at Kennedy precinct. If so, we have made
our case, they should have shown that they voted for the respondent. It devolved on them and
not on us to do so. (Littlefield v. Newell, 27 Am. Rep. 156.)
It cannot be successfully claimed that all these votes which are alleged to be illegal should
be deducted from respondent's vote in Kennedy precinct. (McCreary on Elections, 2d ed.,
secs. 298-9, 300; Ellis v. May, 58 N. W. Rep. 483.)
Thomas E. Haydon and Robert M. Clarke, for Appellant, in reply:
Respondent took no appeal from the failure of the lower court to dismiss the motion for
new trial, nor its failure to refuse the settlement of such statement. Even if the motion for new
trial is overruled on the grounds that no motion for new trial lies in a contested election case,
yet the statement can be used to review the judgment in the case, and, if any error is thereby
disclosed, the judgment will be reversed. (Towdy v. Ellis, 22 Cal. 630; 17 Cal. 518; 18 Cal.
203; 23 Cal. 530; 25 Cal. 154; 68 Cal. 363; 81 Cal. 399; 83 Cal. 622; 86 Cal. 235.) Compare,
also, sec. 340 of our present civil practice act and sec. 284 of the practice act of the territory
of Nevada (Stats. 1861, p. 363); sec. 346 of the California practice act and section 950 of the
California code of civil procedure of 1874.
The court will perceive that the question of the validity of the ballots cast at Rebel Creek
can be legitimately raised upon the demurrer to respondent's amended complaint as a matter
of law, also upon the opinion and decision of the judge as a matter of fact. But the attorney of
appellant by no means abandons his position that appellant has all the rights and remedies
under the civil practice act that any litigant has in any other action.
gant has in any other action. In all cases of contested elections for county or township officers
the district courts of the respective districts have original jurisdiction to try and determine
such cases. (Gen. Stats., sec. 1563.)
Where the district court has jurisdiction to try and determine a case in the first instance, the
supreme court has jurisdiction to review its decision on appeal. (Klein v. Allenbach, 6 Nev.
162.)
The complaint in ordinary actions and the statement in an election case is the test of
jurisdiction of the district court below and in the supreme court on appeal. Section 330 of the
practice act (Gen. Stats. 3352), as amended in 1887, page 92, gives the right of appeal from a
final judgment in an action or special proceeding within one year.
The intent of the legislature must be deduced from the language used, and the courts have
no right to look beyond the language. (State v. Washoe Co., 6 Nev. 104; Thorpe v. Schooling,
7 Nev. 15; State v. Ross, 20 Nev. 61; Maynard v. Newman, 1 Nev. 271.) If section 1569, Gen.
Stats., is ambiguous, the whole act should be examined to explain or remove that ambiguity.
(2 Nev. 25, 234; 11 Nev. 109; 7 Nev. 191; 6 Nev. 283.)
Failure to appeal in thirty days would not rob the person declared ineligible of his right to
appeal within the required time, nor prevent him from moving for a new trial within such
time as provided by the procedure of the election laws, or, if not provided for in the election
laws, then within the time provided for in the general civil practice act.
The fault of respondent's argument is that he insists on applying the civil code of
California that does provide an exact code of procedure to a county court, a court of limited
and inferior jurisdiction that had no power except in term time, and no power to continue its
term or make an order out of term.
If the board of election does not perform the several acts imposed upon it, and puts the
ballot in the box with the strip number on it, if such ballots are not counted, it will be left in
the power of every election board in the state at every precinct to defeat and defraud every
elector in the state of his constitutional right to vote and have it counted and be defeated of
such constitutional right without any fault of his own.
his own. Could such an act of the legislature possibly be held constitutional? Davies v.
McKeeby, 5 Nev. 369; Clayton v. Harris, 7 Nev. 64; Stinson v. Sweeney, 17 Nev. 309; State
v. Findley, 20 Nev. 198, all answer emphatically no. See, also, State v. Board of Ex., 21
Nev. 69.
The strip, by force of the provisions of the statute, is not a part of the ballot, and the words,
marks and names that under the statute prevent a ballot from being counted are such as appear
on the ballot. [Here follows argument on the facts applicable to the points.]
Under the constitution the district courts have jurisdiction in all cases in equity. (Gen.
Stats. 137.) They have also the same jurisdiction under the statute (Gen. Stats. 2439), and to
make such other orders as may be necessary and proper in the exercise of the jurisdiction
conferred upon them by law. (Id. 2448.)
When there is a constitutional right, and no machinery provided to enforce it, the
constitution, by necessary implication, confers on the court of chancery jurisdiction to protect
and enforce the will of the people by suitable and proper procedure. (80 Cal. 362-4.) The
cases cited by contestant24 Cal. 449; 24 Cal. 457; 34 Cal. 635are practically overruled
by 79 Cal. 483-6. This case also shows that the supreme court ordered a new trial (Id. 489). If
the supreme court had jurisdiction to order a new trial it follows as a corollary that the
superior court (which is now in California the co-equal of our district courts) had the
jurisdiction and power to have granted a new trial in the first instance.
The supreme court ordered a new trial in Russell v. McDowell, 83 Cal. 82. Is it possible
that an appellate court can order a new trial in the lower court, and that such lower court
cannot correct its own errors on a motion and statement for new trial? In Coffey v. Edmunds,
58 Cal. 521, a motion for a new trial was made and overruled and an appeal taken from the
judgment and order overruling the motion for new trial. Judging from the eminence of
counsel engaged respondent would certainly have objected to any consideration of such
motion for new trial had it not been a proper proceeding.
Statutes as to contesting elections are to be liberally construed that the will of the people
be not defeated.
(McCreary on Elections, sec. 396.) The case must be heard on the merits and show the
incumbent was not elected in fact. (Id., sec. 397.) The weight of authority in this country is
that the courts have general and original jurisdiction to inquire into the regularity and validity
of elections. (Id. 345-7.) The court has the power to declare the election and order void and
order a new election. (Id., sec. 461.)
[Here follows a long argument on the right of appeal.]
Opinion on motion to dismiss appeal and strike out statement:
This is an election contest.
The parties were candidates for the office of district attorney for Humboldt county at the
general election of November, 1894. According to the official returns, Gen. Buckner received
the highest number of votes, and a certificate of his election was issued. Thereafter a contest
was inaugurated by respondent, Lynip, and such proceedings had as resulted in a judgment of
the district court in his favor, and against Buckner. A motion for a new trial was made in the
district court by appellant, and denied by that court; and from the judgment, and the order
denying the motion for new trial, this appeal is taken.
Respondent moves in this court to dismiss the appeal upon the ground that it was not taken
within the time required by the statutes of the state for an appeal to be taken in election
contests. The motion is made upon the provisions of section 46 of the act relating to elections
(Gen. Stats., sec. 1569), which reads as follows: 1569. Sec. 46. Whenever an election shall
be annulled and set aside by the judgment of the district court, and no appeal has been taken
therefrom within thirty days, such certificate, if any has been issued, shall thereby be rendered
void, and the office become vacant.
The judgment was rendered February 20, 1895. The motion for new trial was denied upon
the 11th day of Maymore than thirty days thereafter. The judgment was to the effect that
Lynip was the duly elected district attorney of the county, and, upon his doing the acts
required by the statutes to be done in such cases, was entitled to the office, etc.
etc. This judgment is not one in which an election has been annulled and set aside. The result
of the election has been reversed in this: that Lynip, who was shown by the returns to the
board of county commissioners to have been defeated, was declared elected by the judgment
of the district court. But the election itself has neither been annulled nor set aside, but, on the
contrary, it has been upheld. If it had been annulled, the statute declares, the office becomes
vacant, and, if there is a vacancy, it must be filled as required by law. We do not understand
counsel to admit that a vacancy does exist, but if the provisions above quoted are applicable
to this case, and the election had been annulled, a vacancy in the office must be the result.
Our attention has been called to the meaning of the words annulled and set aside, as
employed in section 1561, Gen. Stats. The section is as follows: 1561. Sec. 38. When any
election held for an office exercised in and for a county, is contested on account of any
malconduct on the part of the board of inspectors of any precinct, or any member thereof, the
election shall not be annulled and set aside upon any proof thereof, unless the rejection of the
vote of such precinct shall change the result as to such office in the remaining vote of the
county. This provision is unimportant to the matter in hand. It states a principle applicable to
all election contests; that is to say, that the person officially declared elected shall not be
disturbed by vain and fruitless contests, and, unless a different result of the election can be
reached, his election shall not be contested.
Respondent also moves the court to strike out all of the record in the case, except the
judgment roll, upon the ground that the district court had no jurisdiction of the case after the
entry of the judgment. The statute relating to elections (sec. 1524, et seq., Gen. Stats.) confers
original jurisdiction upon district courts in this class of cases (sec. 1563), and provides that a
certified copy of the judgment of the supreme court may be used as proof in certain cases;
but, with these exceptions, it is silent upon the subject. Nothing is said, in direct terms, upon
the subject of new trials or appeals; and, under these circumstances, we must look elsewhere
for the mode of procedure. The civil practice act was adopted long before the passage of the
act relating to elections. It provides a mode for review upon motion for new trial or appeal
in all cases tried by district courts, and in enacting the election law, it was unnecessary to
provide for any further mode of procedure than the practice act furnished.
vides a mode for review upon motion for new trial or appeal in all cases tried by district
courts, and in enacting the election law, it was unnecessary to provide for any further mode of
procedure than the practice act furnished.
The decisions from California to which we have been referred are inapplicable to our
statute concerning contested elections.
The motions are denied.
Opinion on the merits:
The contestant and contestee, who, for convenience, we shall call plaintiff and defendant,
were rival candidates for the office of district attorney of Humboldt county at the election of
1894. Upon the returns, as canvassed by the board of county commissioners, the defendant
had a majority of five votes; but, upon the trial of this contest in the district court, it was
found that the plaintiff had received three more votes than his opponent, and he was
accordingly declared elected. From this judgment, and an order refusing a new trial,
defendant appeals.
In Rebel Creek precinct, in that county, it appears that defendant received 15 votes; the
plaintiff 1; and another candidate (H. Warren), 12. The court rejected all the votes of that
precinct, cast under the following circumstances: The ballots were printed, as required by
law, with a strip on the left side, intended for a stub, separated from the ballot proper by a
perforated line, and with a like strip on the right side, also separated by a perforated line.
Upon each of these strips the number of the ticket was printed. By some accident, the binding
of the stubs into book form had become broken, permitting the ballots to separate into loose
sheets. When a voter applied for a blank ballot, the entire sheet was given him by the
inspector, including the stub, which should have been separated from the ballot, and retained
by the inspectors. When the ballot was returned to them for deposit in the ballot box, the
inspectors removed the strip intended for a stub, but failed to remove the other strip. It is not
charged that this was done by the inspectors fraudulently or intentionally, and the evidence is
clear and uncontradicted that it was the result of a mistake upon their part; they, and
apparently every one connected with the election, supposing that they had removed
everything from the ballot that the law required to be removed.
part; they, and apparently every one connected with the election, supposing that they had
removed everything from the ballot that the law required to be removed. It does not appear
when the mistake was discovered, but certainly not until after the polls had closed
Our statute, adopting what is popularly known as the Australian ballot law (Stats. 1891,
p. 40, sec. 11), provides that the secretary of state shall furnish to the county clerks the paper
on which the ballots are to be printed, which is to be water-marked with a design to be chosen
by the secretary. The ballots are to be printed under the direction of the county clerks. They
are to contain the names of all candidates whose nomination has been certified and filed
according to the provisions of the act, and no other name. The names are to be arranged under
the designation of the office, and the political designation of each candidate is to be printed
opposite his name. When a ballot is handed to a voter, the number of the ballot is to be
written on the registry list, opposite his name. He must prepare his ballot by marking with a
black lead pencil a cross or X after the name of the person for whom he intends to vote. Upon
handing the ballot to the inspector, that officer shall separate the strip bearing the number
from the ballot, and shall deposit the ballot in the ballot box. Sections 24 and 26 of the act,
read as follows:
Sec. 24. No ballot shall be deposited in the ballot box unless the water mark, as
hereinbefore provided, appears thereon, and unless the slip containing the number of the
ballot has been removed therefrom by the inspector.
Sec. 26. In counting the votes any ballot not bearing the water mark as provided in this
act shall not be counted, but such ballots must be preserved and returned with the other
ballots. When a voter marks more names than there are persons to be elected to an office, or if
for any reason it is impossible to determine the voter's choice for any office, his vote for such
office shall not be counted. Any ballot upon which appears names, words or marks written or
printed, except as in this act provided, shall not be counted.
Any officer willfully neglecting or refusing to perform any duty devolved upon him by the
act is, upon conviction, to be imprisoned in the state's prison for from one to five years.
It will be noticed that the statute does not expressly direct that a ballot upon which this
strip has been left shall not be counted, but these ballots were rejected upon the ground that
they came within the latter part of section 26, which inhibits the counting of ballots upon
which appears names, words, or marks written or printed, except as in this act provided; and
this is the point to be determined upon the appeal, so far as they are concerned. It is, perhaps,
a close question, and one upon which courts and judges may easily disagree. It is to be
observed that the voters of this precinct were themselves in no wise in fault. They possessed
every qualification for voting, and had complied with every requirement of the law as to
registration, marking their ballots, etc.; and it is earnestly pressed upon us by defendant's
counsel that if this law is to be construed as preventing the counting of their votes, either for
the willful fraud or innocent mistake of the inspectors, in not removing the slip, it is
unconstitutional, within the principles of Stinson v. Sweeney, 17 Nev. 309; Davies v.
McKeeby, 5 Nev. 369; Clayton v. Harris, 7 Nev. 64; and similar cases. See, also Moyer v.
Van De Vanter (Wash.) 41 Pac. 60 (recently decided). As we are, however, of the opinion that
that is not the correct interpretation of the act, it is unnecessary to consider this argument any
further than as it throws light on the proper construction of the statute. It seems to us that
ballots cast under the circumstances existing here should not be rejected, and we will now
state, as briefly as possible, the reasons upon which our conclusion is based:
The right of voting, and, of course, of having the vote counted, is one of most transcendent
importance, the highest under our form of government. That one entitled to vote shall not be
deprived of his privilege by action of the authorities is a fundamental principle. (Cooley,
Const. Lim., 6th ed., 775.) We need not go outside the decisions just cited from our own
court, to show how jealously this right is guarded. But while the legislature cannot directly
deprive the elector of this privilege, section 6, art. II. of the constitution specially authorizes it
to enact laws for the registration of electors, to preserve the purity of elections, and to
regulate the manner of holding and making returns of the same. Such laws will necessarily
sometimes have the effect of preventing the elector from voting.
of preventing the elector from voting. For instance, a law for the registration of voters, to be
effectual, must provide that one not registered shall not vote; and, to guard the purity of the
election, it may require him to mark his ballot in a certain way, and to comply with many
other conditions. But in all these matters the voter had the privilege of voting, by a
compliance with the law, and his failure to do so is somewhat owing to his own negligence or
misfortune. Whether he can also be deprived of it through the fraud, negligence, or mistake of
others would involve the constitutional question suggested, and upon which we find it
unnecessary to pass in this case.
At least, this great constitutional right is not to be taken from him upon any doubtful
construction of a statute. Assuming the constitutionality of the law, before it should be
construed to work his disfranchisement it must be clear that, under the circumstances then
existing, the legislature intended such to be the case. The spirit in which such laws are to be
construed is well stated by Andrews, J., in Talcott v. Philbrick, 59 Conn. 485, as follows:
All statutes tending to limit the exercise of the elective franchise by the citizen should be
liberally construed in his favor, and, unless the ballot comes within the letter of the
prohibition against a particular kind of ballot, it should be counted. A great constitutional
privilegethe highest under the governmentis not to be taken away on a mere technicality,
but the most liberal intendment should be made in support of the elector's action, whenever
the application of the common-sense rules which are applied in other cases will enable the
courts to understand and render it effectual. All statutes tending to limit the citizen in his
exercise of this right should be liberally construed in his favor. Unless the ticket comes within
the letter of the prohibition it should be counted. (Owens v. State, 64 Tex. 500, 509.) To the
same effect are State v. Saxon, 30 Fla. 668; State v. Phillips, 63 Tex. 390; Boyd v. Mills, 53
Kan. 594; Kellogg v. Hickman, 12 Colo. 256; Bowers v. Smith, 111 Mo. 61; Parvin v.
Wimberg, 130 Ind. 561; State v. Russell, 34 Neb. 116; Stackpole v. Hallahan, 40 Pac. 80.
Laws are also to be construed according to their spirit and meaning, and not merely
according to their letter. It is a familiar canon of construction that a thing which is within
the intention of the makers of a statute is as much within the statute as if it were within
the letter, and a thing which is within the letter of the statute is not within the statute
unless it be within the intention of the makers."
familiar canon of construction that a thing which is within the intention of the makers of a
statute is as much within the statute as if it were within the letter, and a thing which is within
the letter of the statute is not within the statute unless it be within the intention of the
makers. (Riggs v. Palmer, 115 N. Y. 506.) It is one of the great maxims of interpretation to
keep always in view the general scope, object, and purpose of the law, rather than its mere
letter. (Rutledge v. Crawford, 91 Cal. 533.) A rigid and literal reading would, in many
cases, defeat the very object of the statute, and would exemplify the maxim that the letter
killeth, while the spirit keepeth alive.' Every statute ought to be expounded, not according to
the letter, but according to the meaning. * * * And the intention is to govern, although such
construction may not, in all respects, agree with the letter of the statute. The reason and
object of a statute are a clue to its meaning, and the spirit of the law and the intention of its
makers are diligently to be sought after, and the letter must bend to these. (Tracy v. Railroad
Co., 38 N. Y. 433, 437.) This meaning is undoubtedly to be ascertained from the language of
the act, viewed in the light of the circumstances under which it is used. If plain and
unambiguous, it must be construed as it reads, no matter how unreasonable its operation may
be. But as it is not to be presumed that the legislature intended to enact an unreasonable or
unjust law, where such would be the result of its operation, if construed in a certain way, and
the language is not positive and direct to that effect, it is the duty of the courts to cast about to
see if it is not susceptible of some other construction, and in doing this they should consider,
not only the language used in some particular section, but the whole scope and purpose of the
act, and adopt, if possible, such a construction as will harmonize the various sections with
this purpose, and with the demands of justice.
What was the object and purpose of the enactment of the Australian ballot law, the
essential features of which have now been adopted by nearly every state in the Union? This
question has often been answered by the courts, and sometimes in language that we shall not
attempt to improve upon. In one case the supreme court of Connecticut said: The object of
the statute of 1889 is obvious. It is to secure an honest vote, correctly expressing public
sentiment, by preventing fraud, corruption, and intimidation."
an honest vote, correctly expressing public sentiment, by preventing fraud, corruption, and
intimidation. After speaking of certain provisions of the Connecticut law, the court resumed:
This would seem to effectually preclude any opportunity for fraud or imposition. Corruption,
by making it impossible for any one who would bribe or otherwise corrupt a voter to know
that the required vote was actually deposited. Intimidation, by giving to each voter an
opportunity to select and prepare his ballot, and to deposit it, free from observation, and in
such manner that no one but himself can possibly know how he votes, unless he chooses to
disclose it. (Talcott v. Philbrick, 59 Conn. 472, 478.) In another case it was said: A study of
the statute upon the subject of elections leaves no doubt that the purpose is to secure a fair
expression of the will of the electors of the state, by secret ballot, uninfluenced by bribery,
corruption, or fraud. The disfranchisement of whole precincts by reason of an honest mistake
on the part of the election officers is inconsistent with that purpose. (Parvin v. Wimberg, 130
Ind. 561.) And again: The evident intent of this provision was to provide against voters
marking the individual ballot which they cast in such manner as to distinguish it. (Lindstrom
v. Board, 94 Mich. 467.)
This being the object of the law, it should be so construed as to remedy the evil against
which its provisions are directed, and, at the same time, not to disfranchise voters further than
is necessary to attain that object. It would be almost the work of omniscience to enact a law in
such language that it would not, under any circumstances, do more nor less than was intended
by the lawmaker. Even words most carefully chosen will, in some unanticipated situation,
overrun that intention, and in others fall short of it. It is the duty of the courts to keep that
intention, once it is ascertained, steadily in view, and to endeavor to apply the law where it
was intended to apply, and to except those cases where it was not.
It being, then, the purpose of the law to effectually prohibit and prevent intimidation and
vote buying, all its provisions were enacted with that end in view. Where it is forbidden to
count ballots containing names, words, or marks other than those provided for in the act,
notwithstanding the generality of the language, only such as tend to distinguish the ballots
were intended, and such as were, or may have been, placed upon the ticket for that
purpose.
ing the generality of the language, only such as tend to distinguish the ballots were intended,
and such as were, or may have been, placed upon the ticket for that purpose. For instance, all
nominations for state officers are to be filed in the office of the secretary of state, and he is to
certify them to the various county clerks. It certainly never was intended that if he should,
either by inadvertence or design, certify the name of a person who had not been nominated,
and which was therefore wrongfully printed upon the ballots, this should invalidate, and
require the rejection of, every vote cast in the state; and yet this would be the result of a strict
adherence to the letter of the law, for it would be a name on the ballot not provided for by the
act. The same may be said of the wrongful printing of a name on the ballots by order of the
county clerk, or the insertion by the printer of a word or mark not provided for by the law,
and which would be on all tickets alike. This would in no manner tend to distinguish one
ballot from another, and could not be used for a fraudulent purpose. Such a word or mark
would not be within the spirit of the law, although within its letter; and in such case the law
should be liberally construed in favor of the voter, and not so as to disfranchise a whole
county. This simply illustrates the proposition that there are situations in which the legislature
could not have intended that ballots with forbidden words or marks upon them should not be
counted. They are instances of where the language has overrun the intention.
But in the case we have to deal with here the marks upon the ballots (admitting that marks
upon the strip attached to the ballot are marks upon the ballot itself, as is doubtless within the
intention, if not the letter, of the law), although not placed thereon intentionally, nor with the
voter's knowledge or consent, are such as to identify the ballots. Does this alter the case?
Under the circumstances existing here, could this fact have been used for the purposes of
intimidation or bribery? It is not possible to intimidate a man into voting for men or measures
against his will, unless he has reason to believe that if he does not so vote it will become
known to the intimidator. Here the voter knew that if the law was complied with no one could
ever ascertain how he had voted. It is not shown that any knew that it was not being complied
with, and in fact the fair inference from the testimony is that it was not known to any one
until after the polls had closed.
being complied with, and in fact the fair inference from the testimony is that it was not known
to any one until after the polls had closed. All supposed that the slips were being removed,
and it follows that none could have been intimidated by the fact that they were left on the
ballots.
But the principal reason for forbidding these distinguishing marks was undoubtedly to
defeat bribery. It was believed that the vote buyer would not invest money in the purchase of
votes if there was no way by which he could ascertain whether the voter had voted as agreed.
The only way in which this could be done by means of marks would be by some mark being
placed upon the ballot which had been agreed upon between them; and it must be done either
by the voter himself, or by some one else with his knowledge and consent. It is clear that this
slip was left on the ballots accidentally, and not for any such purpose as that; and therefore it
is not within the spirit or meaning of the law, so far as corruption is concerned. By the
blunder of the inspectors, the strips and numbers were left upon the ballots, whereby it was
possible to ascertain just how each one had voted. This was done unintentionally, and without
the voters' knowledge. Consequently, as we have tried to show, it could not have been made
the means of intimidation, nor the agent of corruption. But by reason of it, without being at all
in fault themselves, the voters have incurred all the odium and disadvantage of having the
knowledge of how they voted made public. What reason can there be for adding to their
punishment that of disfranchisement? To so hold would be like piling Ossa upon Pelion, and,
it would seem, was clearly not intended by the law. To hold that it was, would be not to
liberally construe the act in favor of the voter, but strictly against him.
In addition to what we have said of the scope and spirit of the ballot law, we think there is
that in the letter of the act which strengthens our conclusion very much. By section 24,
already quoted, it is provided that no ballot shall be placed in the ballot box upon which the
water mark does not appear, nor from which the slip has not been removed. But, while
section 26 provides that ballots found in the box not bearing this water mark shall not be
counted, it says nothing about the slip being left on. Considering the juxtaposition of these
terms in section 24, it is hardly probable that the omission to mention the slip in section
26 was accidental.
of these terms in section 24, it is hardly probable that the omission to mention the slip in
section 26 was accidental. If not, it clearly indicates an intention that leaving the slip on
should not cause the rejection of the ballot. There is reason, too, why such a distinction
should be made. If a citizen votes a ballot not bearing the water mark, he is somewhat in fault
himself; and, besides, there could be but one purpose for substituting such a ballot for the one
that was genuine, and that would be fraud. On the other hand, the slip is to be removed by the
inspector after the ticket is surrendered to him, and with this the voter has nothing to do; and
very often, as in this case, it might be left on the ballot by oversight or accident.
In this connection we quote from the recent decision by the supreme court of Washington,
already mentioned. Speaking of the decisions that have been rendered under the ballot laws of
the different states, the court said: These cases cannot all be harmonized, but the general
trend thereof has been to recognize a clear distinction between those things required of the
individual voter and those imposed upon election officers. There is a disposition to hold the
former valid and mandatory; but where there has been a substantial compliance with the law
on the part of the individual voter, and it is made to appear that there has been in fact an
honest expression of the popular will, there is a well-defined tendency to sustain the same,
although there may have been a failure to comply with some of the specific provisions of the
law upon the part of the election officers, or some of them. (Moyer v. Van De Vanter, 41
Pac. 60.) In that case the law required the inspector, or one of the judges, to write his initials
on the ballot before it was delivered to the voter, and directed that any ballot not bearing
those initials should be void, and not be counted. But it was held that the law was
unconstitutional, and, where the official had failed to so mark any of the ballots of a precinct,
that they should still be counted.
There are decisions conflicting with the views we have expressed, but we believe the
greater in number, and the better-considered cases, support our conclusions. We have
examined them all, but it would be an endless and unprofitable task to review them, and we
shall not attempt it. Our conclusion concerning these ballots renders it unnecessary to pass
upon the other ballots objected to by appellant.
conclusion concerning these ballots renders it unnecessary to pass upon the other ballots
objected to by appellant.
Judgment and order refusing a new trial reversed, and cause remanded.
Bonnifield, J.: I concur.
Belknap, J., dissenting:
The law of 1891 directs that the number of each ballot shall be the same as that of the
corresponding stub (sec. 12), and that the number of the ballot shall be written upon the
registry list, opposite the name of the voter receiving it (sec. 19). After preparing the ballot, it
must be delivered to the inspector, who shall separate the strip bearing the number from the
ballot, and deposit the ballot in the ballot box (sec. 20).
At Rebel Creek precinct, the inspector, through ignorance of the law, and not willfully,
neglected to separate the strip bearing the number from the ballot. The entire vote of the
precinct was cast in this way. The act of the inspector was in direct disobedience to the
requirements of the law, which, in section 20, declares that the strip and number shall be
destroyed before the ballot is cast; and by section 24, that no ballot shall be deposited in the
ballot box unless the slip containing the number of the ballot has been removed by the
inspector.
I refer to these provisions, not as authorizing the canvassers to throw out the ballots, but as
illustrating the intention of the legislature in passing the statute providing for a secret ballot.
The prohibition against counting ballots is contained in the twenty-sixth section of the act, as
follows: Sec. 26. In counting the votes any ballot not bearing the water mark as provided in
this act, shall not be counted, but such ballot must be preserved and returned with the other
ballots. When a voter marks more names than there are persons to be elected to any office, or
if for any reason it is impossible to determine the voter's choice for any office, his vote for
such office shall not be counted. Any ballot upon which appears names, words or marks,
written or printed, except as in this act provided, shall not be counted. Under the last
sentence of this section, these ballots should not be counted. The purpose of the act, as
expressed in its title, is "An act relating to elections and to more fully secure the secrecy of
the ballot."
An act relating to elections and to more fully secure the secrecy of the ballot. No act of the
inspectors was so well calculated to expose the vote, and defeat the intention of the
legislature, as their neglect to destroy the number on the slip. Any person, upon inspection of
the registry list, could have ascertained the vote of each elector.
I admit that if my views are to be adopted the voters of the precinct at that election will be
disfranchised, but I am confronted with what I think are clear and imperative provisions of
law, incapable of judicial construction. Under the English law of 1872, the presiding officer
at the polling station marked upon the face of the ballot given to each the number of the voter
appearing on the burgess roll, which would enable any one, upon inspection, to identify the
way in which the party had voted. It was held that these ballots were void, and should not
have been counted; but the error did not affect the result of the election; the prevailing
candidate having been elected, irrespective of the contested ballots. (Woodward v. Sarsons, L.
R. 10 C. P. 733.)
In West v. Ross, 53 Mo. 350, the law of Missouri required the ballots to be numbered, and
provided that any ballot not numbered should not be counted. The judges of election, through
inadvertence, neglected to number any of the ballots; but the court held that the statute was
mandatory, and all of the ballots were rejected. The court said: This case may be a hard case,
and doubtless is; but the legislative enactment is clear, and although it may deprive a portion
of the citizens of the county of their right to be heard in the election of a clerk at one election,
it is better that they should suffer this temporary privation than that the courts should
habituate themselves to disregard or ignore the plain law of the land in order to provide for
hard cases. In the present case the legislature has provided and required that the ballots should
be numbered, and then provides, in express terms, that no ballot not numbered shall be
counted. Can we say that such ballots shall be counted, without an attempt at judicial
legislation? I think not, and it would be a misapplication of terms to say that such a statute is
only directory.
For these reasons I dissent from the judgment.
____________
22 Nev. 447, 447 (1895) Dennis v. Caughlin
[No. 1442.]
JOHN H. DENNIS, Plaintiff and Appellant, v. W. H.
CAUGHLIN, Defendant and Respondent.
1AppealWhat to be Considered Upon.Such errors only as the appellant complains of can be considered
upon appeal.
2Australian Ballot LawBallotsDistinguishing Marks.One purpose of the ballot law was to exclude
from the count all ballots containing distinguishing marks or marks that may have been placed thereon for
the purpose of distinguishing the ballots, but marks satisfactorily appearing to have been inadvertently or
accidentally made, and not for an evil purpose, are not within the meaning of the statute, and should not,
within the meaning of the statute, be construed as identifying or distinguishing marks. Ballots examined,
and distinctions drawn as to what constitute distinguishing words or marks, and what do not.
Appeal from judgment and order overruling motion for new trial from District Court,
Washoe county; George F. Talbot, District Judge, presiding.
Thomas E. Haydon and Robert M. Clarke, for Appellant:
The only question in this case is whether John Hayes received more lawful votes than the
561 found by the judge at the trial to have been cast for him for the office. Respondent may
attempt to urge errors in the court below against him, but such errors, if any, cannot be
considered by this court, as respondent has not appealed. (Chittenden v. Brewster, 2 Wall.
191; Martin v. Northern Trans. Co., 12 Wall. 31; The Stephen Morgan v. Good, 94 U. S.
591; Clarke v. Killian, 103 U. S. 766; Loudon v. Taxing List of Shelby Co., 104 U. S. 771;
Gage v. Pumpelley, 115 U. S. 454; 14 Cal. 9; 15 Cal. 12, 304, 483; 65 Cal. 639.)
Appellant concedes that upon the lawful construction of the act of the legislature of 1891,
pages 40 to 47, the success of his contest in this case entirely depends, and that no ballot cast
for him without the water mark upon it can be counted for John Hayes. That where any voter
marked more names than one upon his ballot for the office, or where for any reason it is
impossible to determine the voter's choice for sheriff, the ballot cannot be counted for Hayes.
The statute being constitutional where it is plain and unambiguous, there is no room for
construction; its meaning must be deduced from its language.
must be deduced from its language. (Browne v. Davis, 1 Nev. 409; State v. Washoe Co., 6
Nev. 104; Odd Fellows Bank v. Quillan, 11 Nev. 109.)
The most liberal decision of the courts declare that if the law itself declares an irregularity to
be fatal to the validity of the election, or ballot cast, or thing to be accomplished, the courts
must follow that command irrespective of their views of the importance of such requirement.
(Bowers v. Smith, 33 Am. St. Rep. 501; Ziller v. Chapman, 54 Mo. 502; Leadbetter v. Hall,
62 Mo. 422; State v. Saxon, 32 Am. St. Rep. 46.)
If a mark placed by a voter upon his ballot, by which it may be afterwards identified, by
some third person, as the ballot voted by such person who voted it by preconcerted agreement
with such third person, were forbidden by the act to be counted, which it is not, but is merely
punished as a misdemeanor, even then such mark would have to be so distinct that it could be
distinguished readily from all other marked ballots; or were such mark intended to be a
facsimile, then it would have to be an exact copy of a number or class bribed to so vote and
so mark their ballots.
A mark cannot be construed to mean cancelation or erasure, as a mark means something to
indicate something else; and a cancelation or erasure means to blot out, expunge, efface or
obliterate something that did indicate something before its erasure or cancelation. Mark
means to make; erasure and cancelation to unmake.
When lawful voters who have complied, under all the lights before them, with all the
substantial requirements of the registry and election laws, our courts from their inception
have swept aside all acts of the legislature that placed barriers between the voter and his
constitutional right of suffrage. See cases above cited and State v. Board of Ex., 21 Nev. 69,
70, 91. Upon the general subject of the spirit in which election laws should be interpreted and
executed, see the able opinion of the judges of the supreme court of Maine, sec. 208, pp. 137,
138, McCreary's Election Laws.
Our statute was evidently framed to forbid any marks upon a ballot by which it could be
distinguished by others than the voter. (McCreary, secs. 502, 504, 505; Druliner v. State, 29
Ind. 308; Napier v. Mayhew, 35 Ind. 276.) Scratching a name is not a distinguishing mark.
ing a name is not a distinguishing mark. (Wyman v. Lemon, 51 Cal. 273; Coffey v. Edmunds,
58 Cal. 521; Steele v. Calhoun, 61 Miss. 536; Oglesby v. Sigman, 58 Miss. 502; Applegate v.
Egan, 74 Mo. 258.)
No ballot on which names or words, either written or printed, not provided for in the statute,
can be counted. Neither can any ballot be counted upon which any mark appears by which
any third person can distinguish who voted it.
[After argument on the particular ballots.]
The foregoing argument is fully borne out by Bowers v. Smith, 33 Am. St. Rep. 491; Allen
v. Glynn, 31 Am. Rep. 304; 30 Am. St. Rep. 254; 12 Col. 256; 129 N. Y. 395; 11 Am. St.
Rep. 767; 32 Am. St. Rep. 46, and notes to all such decisions; 51 Cal. 273; 91 Cal. 526; 51
Am. Rep. 646 and note; 92 Cal. 135, will show that any marks made by lawful voters through
ignorance, inadvertence, want of skill, and otherwise, not indicative of bribery, fraud, or
corruption, will not prove fatal to the exercise of their constitutional right of suffrage.
In the above appeal respondent has submitted two motions which are now pending, to wit:
(1) To dismiss the appeal upon the ground that the same was not taken within thirty days
from the rendition of judgment. (2) To diminish the record by striking therefrom everything
therein contained relating to appellant's motion for a new trial upon the ground that new trials
in contested election cases are not authorized nor contemplated by law.
These two preliminary motions are submitted by stipulation upon the exhaustive
arguments and briefs made and filed upon the same character of motions in Lynip v. Buckner,
pending in this court upon appeal.
Respondent is entitled to the correction of all errors committed against him in the trial
court to which he duly excepted, notwithstanding the fact that he has not taken a cross-appeal.
Courts have always recognized the fact that the general public have as great, if not greater,
interest in the supremacy of the popular voice in elections than have the contestant or
contestee for an office.
of the popular voice in elections than have the contestant or contestee for an office. (Minor v.
Kidder, 43 Cal. 237-8; Searcy v. Grow, 15 Cal. 119; Lord v. Dunster, 79 Cal. 488; Budd v.
Holden, 28 Cal. 139; McCreary's Am. Law of Election, par. 316; Mann v. Cassidy, 1
Brewster, 43; Kneass' Case, 2 Parsons, 570; Collins' Case, Brightley's Election Cases, 513.)
Respondent therefore insists that upon this appeal the court should consider any error
committed by the trial court against him to which he duly excepted.
The court erred in rejecting the entire vote of Salt Marsh precinct, of which appellant
received three votes and respondent nineteen.
[After argument on Salt Marsh vote.]
Voters may rely on the regularity of ballots prepared by the proper officers. (Bragdon v.
Navarre (Mich.) 60 N. W. 277; McCreary's Am. Law of Election, par. 303; Kirk v. Rhoads,
46 Cal. 398.)
The Salt Marsh ballots should not be counted for the offices of justice of the peace and
constable, but they should be counted for the candidate for sheriff for whom cast by the
electors without any fault of their own.
Appellant's contention that a cancelation is not a mark is ingenious, but fallacious and
without real merit. How a cancelation can be effected without the instrumentality of marks,
appellant does not pretend to explain.
The statute defines the cross which shall be made by designating it as the cross or X. It
is submitted that an X in the proper sense of the word, and as it is also made in the statute
itself, can contain or consist of no more than two intersecting lines.
For a very full and complete decision upon the marking and preparation of ballots the
court is respectfully referred to the case of Ellis v. Glaser (Mich.), 61 N. W. 648.
Respondent submits that all of the decisions under the various Australian ballot laws of
the various states hold that in all matters over which the electors have control the law is
mandatory and not directory. In matters over which the voters have no control nothing short
of the destruction of the secrecy and the purity of the ballot will warrant rejection.
Thomas E. Haydon and Robert M. Clarke, for Appellant, in reply:
In many cases in California where an appeal from an order granting or refusing a new trial
is dismissed at the same time in the same case there is also an appeal from the judgment, the
court will look into the statement on motion for new trial and use it on the appeal from the
judgment, and any errors appearing therefrom affecting the judgment may be reviewed and
corrected, the statement on motion for new trial being considered and treated as a bill of
exceptions. (Towdy v. Ellis, 22 Cal. 650; Hanscom v. Tower, 17 Cal. 518; Louck v. Edmonds,
18 Cal. 203; Walsen v. Murdock, 53 Cal. 550; Carpentier v. Williamson, 25 Cal. 154; Craig
v. Fry, 68 Cal. 363; Scoot v. Wood, 81 Cal. 399; Somers v. Somers, 83 Cal. 622; Mix v. San
Diego, 86 Cal. 235.)
It will be noted that these decisions are all based on section 950 of the code of civil
procedure of California. Our section 340, civil practice, covers section 950, California civil
code, in all its substantial requirements and goes further, requiring the written opinion of the
judge to be furnished, so adopting the California statute and decisions as published before the
enactment of our statutes. (Hunter v. Truckee Lodge, 14 Nev. 35.)
The foregoing seems conclusive against both motions of respondent.
The court has no discretion to dismiss this case which is prosecuted like any other action
instituted by a private citizen subject only to the provision of the statute. (Searcy v. Grow, 15
Cal. 122.)
Errors against respondent will not be considered on appeal; and the supreme court will
only consider such errors as are assigned by the appellant. (Maher v. Swift, 14 Nev. 324;
Moresi v. Swift, 15 Nev. 215; Nesbitt v. Chisholm, 16 Nev. 40; Dougherty v. Henarie, 47 Cal.
9; Emric v. Elvarado, 90 Cal. 444; Seward v. Malotte, 15 Cal. 304; Tavers v. Crane, 15 Cal.
12.)
[Here follows several pages of argument on particular ballots.]
That a distinguishing mark upon a ballot is a marking or embellishing of the ballot which
will distinguish it from others, or convey knowledge of the person who voted it, see sec.
others, or convey knowledge of the person who voted it, see sec. 504, p. 340, 2d ed.,
McCreary on Elections, and note 1. Wigmore's Australian Ballot System, 2d ed., pp. 190,
194, holds that if the mark or irregularity was the result of awkwardness or a stiff, heavy,
trembling hand, or of carelessness, or an attempt to correct a supposed defect, or to make a
line more clear, or straight, or where it appears that the additions to the cross are owing to
unskillfulness, rather than an attempt to identify oneself, the vote in all such cases is held
good. Alleyn, J., in case 14, id., holds the marking of the ballot, to invalidate it, must furnish
clear evidence of an improper agreement, such as the voter's initials, or a mark known to be
his. (Case 17, Benholme, J.) Whenever the mark evidences an attempt or intention to make a
cross or an X, it should be counted. (Ritchie, C. J., in case 12.)
It is possible that evidence of a corrupt arrangement should be required to be shown, to
invalidate a ballot irregularly marked. Too much precaution disfranchises too many honest
voters to exclude a possibly corrupt one. (Wigmore's Australian Ballot System, 2d ed., pp.
192, 194, and many cases cited in appellant's original brief, particularly Bowers v. Smith, 111
Mo. 45, as reported in 33 Am. St. Rep. 501-3, and note as to construction of election laws,
page 510.)
The statute in prescribing the method of preparing a vote uses the indefinite article a
instead of the definite article the, consequently any cross or any X complies with the
statute. See cases cited and their application in Wigmore, pp. 190 to 194.
This is a contest brought by John H. Dennis, an elector of Washoe county, against the
respondent, to determine whether John Hayes or W. H. Caughlin is legally entitled to the
office of sheriff of Washoe county. According to the official returns, respondent received the
highest number of votes, and was declared elected by the board of canvassers. At the trial it
was stipulated that all returns and all ballots of each and every precinct in the county should
be examined and considered, and legal ballots counted for whom cast, and under this
stipulation the trial was had. Respondent recovered judgment.
One of the first questions to be determined is whether we can review all the rulings of the
district court or only such as have been assigned as error by the appellant. It has frequently
been decided that a party who has not appealed from a judgment cannot, on appeal by the
opposite party, obtain a review of the rulings of the court against him. In Dougherty v.
Henarie, 47 Cal. 9, the plaintiff offered to dismiss the action as to one of the defendants, who
objected, and the court thereupon denied the motion to dismiss, the plaintiff excepting. Said
the court: But he cannot avail himself of his exception on this appeal. Having submitted to
the judgment, and prosecuted no appeal from it, he cannot, on an appeal by the defendant,
review the rulings of the court which he claims are to his prejudice. (Maher v. Swift, 14 Nev.
324; Moresi v. Swift, 15 Nev. 215; Nesbitt v. Chisholm, 16 Nev. 40.) Again, in Whittam v.
Zahorik, 59 N. W. 57, the supreme court of Iowa said in an election contest case: The
appellee complains that ballots similar in marking to some of those we hold should have been
excluded were offered by the contestant, and counted for him; but, as the incumbent does not
appeal, we cannot determine the question he thus presents. Our conclusion is that only such
errors as the appellant complains of can be considered upon this appeal.
The errors assigned by the appellant embrace the rulings of the district court upon
thirty-two ballots. These rulings involve a construction of the statute of 1891 generally known
as the Australian ballot law. The provisions of the statute relating to the preparation of the
ballot by the elector, and its rejection in certain cases, are as follows:
Sec. 20. On receiving his ballot the voter shall immediately retire alone to one of the
places, booths or compartments. He shall prepare his ballot by marking a cross or X after the
name of the person for whom he intends to vote for each office. In case of a constitutional
amendment or other question submitted to the voters, the cross or X shall be placed after the
answer which he desires to give. Such marking shall be done only with a black lead pencil.
Before leaving the booth or compartment the voter shall fold his ballot in such manner that
the water mark and the number of the ballot shall appear on the outside, without exposing
the marks upon the ballot, and shall keep it so folded until he has voted.
of the ballot shall appear on the outside, without exposing the marks upon the ballot, and
shall keep it so folded until he has voted. Having folded his ballot, the voter shall deliver it to
the inspector, who shall announce the name of the voter and the number of his ballot. The
clerk having the registry list in his charge, if he finds the number to agree with the number of
the ballot delivered to the voter shall repeat the name and number, and shall mark opposite
the name the word Voted.' The inspector shall then separate the strip bearing the number
from the ballot, and shall deposit the ballot in the ballot box. Said strip and number shall be
immediately destroyed.
Sec. 26. In counting the votes any ballot not bearing the water mark, as provided in this
act, shall not be counted, but such ballot must be preserved and returned with the other
ballots. When a voter marks more names than there are persons to be elected to an office, or if
for any reason it is impossible to determine the voter's choice for any office, his vote for such
office shall not be counted. Any ballot upon which appears names, words or marks written or
printed, except as in this act provided, shall not be counted.
Statutes more or less similar in their nature have been adopted in many of our sister states,
and a reference to some will aid in the construction to be placed upon our law.
In Re Vote Marks, 21 Atl. 962, the supreme court of Rhode Island said: A cross is the
only mark authorized by the statute to be used to designate the person voted for, and it is only
by force of the statute that it gets its significance for that purpose. If another mark be used,
there is nothing to certify its meaning. It might be conjectured that it was used inadvertently
instead of a cross, but, in our opinion, such a conjecture would not justify the counting of it.
The statute declares: No voter shall place any mark upon his ballot by which it may be
afterwards identified as the one voted by him.' If marks other than crosses were counted, they
might be used both to answer the purpose of crosses and to identify the ballots.
In Whittam v. Zahorik, 59 N. W. 57, in considering a law of this nature adopted in Iowa,
the court said: It is not practicable to adopt a rule in regard to identifying marks which
would be applicable in all cases.
which would be applicable in all cases. It will not do to say that all ballots which bear marks
not authorized by law should be rejected. All voters are not alike skillful in marking. Some
are not accustomed to using a pen or pencil, and may place some slight mark on the ballot
inadvertently, or a cross first made may be clumsily retraced. It is evident that in such cases,
and in others where the unauthorized mark is not of a character to be used readily for the
purpose of identification, the ballots should be counted; but where the unauthorized marks are
made deliberately, and they may be used as means of identifying the ballot, it should be
rejected.
In Indiana it was provided that the voter should indicate his choice by stamping a certain
square opposite the candidate's name, and, if he desired to vote for all candidates of one party,
should place the stamp on the square preceding the party designation. The court held that the
provision concerning the use of the stamp was mandatory, the stamping of the square being
the only method prescribed by which the voter can indicate his choice. The statute was
amended at the next session of the legislature so that a stamp placed upon a ballot which does
not touch a square thereon was declared to be a distinguishing mark, and was not to be
counted. The court said: This amendment was intended, we think, to make certain that
which, prior to its passage, was left in some measure, to construction; but it only makes
certain that which was intended by the legislature when it passed the original section.
(Parvin v. Wimberg, 130 Ind. 561.)
In Maine the statute provides that the voter shall prepare his ballot by marking on the
appropriate margin or place a (X) as follows: He may place such mark opposite the name of a
party or political designation; or he may place such mark opposite the name of the individual
candidates of his choice for each office to be filled. (Stats. Me. 1891, c. 102, sec. 24.) The
court said of this provision: Its distinguishing feature was its careful provision for a secret
ballot. The leading purpose of it was to give the elector an opportunity to cast his vote in such
a manner that no other person would know for what candidate he voted, and thus to protect
him against all improper influences, and enable him to enjoy absolute freedom from
restraint and entire independence in the expression of his choice." "If it be conceded that
the intention of the voter may be correctly inferred from the mark actually made by him in
each of these instances, it is still a fatal objection to the ballot that such an irregular and
unauthorized mode of marking it might readily be, and probably would be, agreed upon
with the voter as a distinguishing mark to identify the ballot cast by him, whenever
identification was desired.
him to enjoy absolute freedom from restraint and entire independence in the expression of his
choice. If it be conceded that the intention of the voter may be correctly inferred from the
mark actually made by him in each of these instances, it is still a fatal objection to the ballot
that such an irregular and unauthorized mode of marking it might readily be, and probably
would be, agreed upon with the voter as a distinguishing mark to identify the ballot cast by
him, whenever identification was desired. Such a palpable disregard of the plain requirements
of the act strikes at the root of the secret-ballot system. (Curran v. Clayton, 86 Me. 42.)
These decisions show that the only way the voter can indicate his choice is by a cross or X,
used in the manner required by the statute. The statute of this state is less liberal in its terms
than those of the other states, and if its provisions relating to marks, in the twenty-sixth
section of the act, are to be literally enforced, many voters would be disfranchised. This
section provides that any names, words or marks, except as in the act provided, shall
invalidate the ballot. Under the terms of the statute, any mark, although innocently or
accidentally made, would come within its provisions. The evils against which the statute was
directed were bribery and intimidation, and to repress these the secret ballot was adopted. Its
aim was that the ballot should not disclose by whom it was cast, and for this reason all of the
means by which it may be identified were interdicted.
Courts should construe statutes with such liberality, if practicable, as to advance the object
and correct the evils which the legislature had in view. A mark satisfactorily appearing to
have been inadvertently or accidentally made, and not for an evil purpose, is not within the
meaning of the statute, and should not be construed as an identifying or distinguishing mark;
and we think the statute should be read as if this qualification were attached to it. Adopting
this view, a ballot written by a hand unaccustomed to the use of a pencil, or awkwardness in
its use, or carelessness, or an apparent attempt to retrace a clumsily made cross X, or an effort
to make it more certain, and in doing so employing more lines than are necessary to
properly make a cross, or a slightly blurred spot to correct a mistake, not indicating an
intention to identify the ballot, or a slight erasure for the same purpose, or cross made
when the ballot paper was defective, and to avoid the defect, and make the vote more
certain, a second cross was made, or a slight pencil mark, clearly made by accident, and
not design, or a stain of tobacco, will not avoid the ballot
more lines than are necessary to properly make a cross, or a slightly blurred spot to correct a
mistake, not indicating an intention to identify the ballot, or a slight erasure for the same
purpose, or cross made when the ballot paper was defective, and to avoid the defect, and
make the vote more certain, a second cross was made, or a slight pencil mark, clearly made
by accident, and not design, or a stain of tobacco, will not avoid the ballot
There are fifteen ballots numbered as follows: 45, 49, 50, 78, 68, 73, 74, 53, 27, 72, 59,
75, 40, 36, 66, to which these objections were made, and we think that all of them should be
counted for the appellant. But blurred spots, plainly made by a lead pencil, which may have
been made for the purpose of canceling a cross, but which might have been made also for
identification, or a cross not opposite the name of any candidate, or two or more crosses
instead of one, or a number of crosses in a bunch, or a mark not a cross, or the use of a blue
lead pencil instead of a black one, or a straight line, thus, , over the word No, or
writing a word instead of employing a cross, are grounds for rejecting the ballot.
There are seventeen ballots to which these objections apply, and we think the court
properly rejected them. These ballots were numbered as follows: 30, 39, 44, 69, 33, 38,
60-1/2, 71, 41, 48, 66-3/4, 37, 52, 35, 54, 57, 77.
The district court found that Hayes was entitled to 558 votes, and Caughlin 561. Adding to
Hayes' vote the fifteen votes that we have found for him, changes the result of the election.
Similar motions were made in this case as those in Buckner v. Lynip, 22 Nev. 426, and
upon the authority of that case the motions are dismissed.
Judgment reversed and cause remanded for a new trial.
Bonnifield, J.: I concur.
Bigelow, C. J., concurring:
As held in Buckner v. Lynip, 22 Nev. 426, the spirit and purpose of the ballot law was to
exclude only ballots bearing distinguishing names, words, or marks, and not those where it
satisfactorily appears that the marks were not intended for distinguishing marks and were not
placed thereon with the knowledge or consent of the voter.
with the knowledge or consent of the voter. Doubtless, in the first instance, the presumption
should be that all marks not authorized by law were placed thereon for the purpose of
identification, and, in the absence of satisfactory evidence to the contrary, should exclude the
ballot from the count. But clearly it was not the intent of the lawmakers that marks that do not
identify the particular ballot, or that clearly appear to have been accidental or inadvertent, as
where made by the slip of a pencil, by soiled fingers, through awkwardness in making the
cross, or by other unintentional means, and that are not such as to be readily used for purposes
of identification, should cause the rejection of the entire ticket.
On the other hand, where the marks were apparently made intentionally, and are such as to
readily distinguish the ticket, and such as may have been made for the purpose of
distinguishing it, it should not be counted.
Of course, this rule calls for the exercise of some discretion in the canvassers, and is not so
simple as it would be to follow the letter of the law, and reject all ballots upon which any
unauthorized mark appears; but we believe it to be more in consonance with the spirit of the
statute and with the genius of our institutions. Our government is founded upon manhood
suffrage, and in the effort to prevent intimidation and corruption in the elections, although a
most commendable purpose, and one we would encourage by every means possible, it will
not do to adopt rules so strict as to practically disfranchise a considerable number of innocent
voters. This would be too heroic a remedy. If the sole, or even the main, purpose be to
prevent fraud in the elections, this could be best accomplished by permitting no one to vote.
The marking upon a ballot may be such as to prevent its being counted for a particular
candidate upon two grounds: Where it is not so marked as to indicate the voter's choice as to
that office, and where it bears distinguishing marks. Upon the first ground, no other mark
than that of a cross or X, placed after the candidate's name, will suffice; but a failure to mark
upon some office, or a defective marking, should not usually be classed as a distinguishing
mark. Probably a cross or an X could be so made as to constitute an identifying mark, but we
should be very certain that such was the purpose before we would be justified in rejecting
the ballot on that ground.
ing mark, but we should be very certain that such was the purpose before we would be
justified in rejecting the ballot on that ground. The statute recognizes that there may be
defective marking upon some particular office that is still not sufficient to reject the entire
ballot, by providing that when, for any reason, it is impossible to determine the voter's choice
for any office, his vote for that office shall not be counted. All men do not make crosses and
X's alike, nor do all possess the same degree of skill in making them. It would seem that any
honest attempt to make the proper mark, and nothing else, even if insufficient to authorize
counting the vote for that candidate, should not be treated as sufficient to cause the ballot's
rejection.
The following examples will illustrate the distinctions we think should be drawn: Ballot
No. 27 has a faint cross, very nearly erased, opposite the name of McNees, another candidate
for the same office. It was evident that this mark was made inadvertently, and that the voter
sought to change his vote from McNees to Hayes. It is perfectly clear for whom he wished to
vote, and, as the faint outline of the cross does not constitute a distinguishing mark, no reason
appears why it should not be counted as intended. No. 49 has a mark opposite the name of a
state candidate intended for an X, but the second stroke only comes down to, but does not
cross, the first. While this was a failure to make a cross, so that probably the vote should not
have been counted for that candidate, it was clearly unintentional. Had the second stroke been
extended the thirty-secondth part of an inch, it would have been a cross. No. 50 has a light
third line across the X opposite the name of a state candidate, doubtless made through
accident or carelessness. No. 53 has a light mark, apparently made by a dirty finger, or in an
attempt to erase a cross in a square, but which was again made and allowed to remain. No. 73
has crosses made with lines across the top and the bottom of the X's, intended to be the same
as the X is made in the statute. As the act does not provide how the cross shall be made, we
do not see why that is not as correct as one made simply with two straight lines crossing. We
think that such ballots as these, and similar ones, should be counted.
On the other hand, No. 35 has in two places a number of crisscrossed lines nearly filling a
square. No. 37 has the printed word No crossed out with a pencil. No. 38 has crosses not
opposite the name of any candidate. No. 39 has a heavy round spot, made with a pencil,
apparently for the purpose of covering up or blotting out a cross in a square opposite the name
of a candidate. Very likely in all these instances, the marks were made innocently, and not for
the purpose of distinguishing the tickets; but they were made intentionally, and not by
accident or inadvertence, and are such as might have been placed there for identification.
They were, therefore, properly rejected.
All questions concerning the manner of making a cross, or of where it shall be placed, can
be avoided, and an advantageous change made in the law, by the legislature adopting an
amendment providing for the use of a rubber stamp instead of a lead pencil, as is directed by
the statutes of Indiana and some other states.
I concur in the conclusions announced by Justice Belknap as to the ballots that should or
should not be counted.
____________

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