Nevada Reports 1904-1905 (28 Nev.) PDF

28 Nev.
i, i (1904)
RULES OF THE BOARD OF PARDONS.
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1. The regular meetings of the board shall be held on the Wednesday after the first
Monday in January and on the second Monday of July of each year. As amended, January,
1906.
2. Special meetings may be called by the governor at any time when the exigencies of any
case demand it, notice thereof being given to each member of the board.
3. No application for the remission of a fine or forfeiture, or for a commutation of
sentence or pardon, shall be considered by the board unless presented in the form and manner
required by the law of the state approved February 20, 1875.
4. In every case where the applicant has been confined in the state prison, he or she must
procure a written certificate of his or her conduct during such confinement, from the warden
of said prison, and file the same with the secretary of this board, on or before the day of
hearing.
5. All oral testimony offered upon the hearing of any case must be presented under oath,
unless otherwise directed by a majority of the board.
6. Action by the board upon every case shall be in private, unless otherwise ordered by the
consent of all the members present.
7. After a case has once been acted upon, and the relief asked for has been refused, it shall
not, within twelve months thereafter, be again taken up or considered upon any of the grounds
specified in the application under consideration, except by the consent of a majority of the
members of the board; nor in any case except upon new and regular notice as required by law
in case of original application.
8. In voting upon any application the roll of members shall be called by the secretary of
the board in the following order:
FirstThe Attorney-General.
SecondThe Junior Associate Justice of the Supreme Court.
ThirdThe Senior Associate Justice.
FourthThe Chief Justice.
FifthThe Governor.
28 Nev. i, ii (1904) Rules of the Board of Pardons
Each member, when his name is called, shall declare his vote for or against the
remission of the fine or forfeiture, commutation of sentence, pardon, or restoration to
citizenship.
9. No document relating to a pending application for pardon or commutation of sentence,
or to a prior application which has been denied, shall be withdrawn from the custody of the
clerk after filing, unless by consent of the board.
10. Application for pardon or commutation of sentence must be filed with the clerk at
least two days before the regular meeting of the board, at which the application is to be
considered.
11. All papers pertaining to applications for pardon, or for restoration to citizenship, must
be properly indorsed before presentation for filing; and the name of the attorney for the
applicant must appear in such indorsement on the petition and notices to the district judge and
district attorney. The indorsement on each paper must begin at the top with Board of
Pardons, and include the name of the document.
12. Attorneys shall first present their evidence through witnesses, affidavits, the record or
documents, and then argue their cases concisely and not exceeding one-half hour for each
counsel appearing, unless additional time be granted by the board, and in the event that an
attorney digresses from the evidence, or states facts not supported thereby, or reiterates in his
argument, he shall be called to order. Papers shall be filed separately, or attached before they
are read in evidence, and shall not be withdrawn without the order of the board or some
member thereof.
13. On behalf of an applicant for pardon who has been convicted of felony, evidence of
facts relating to the commission of the crime, other than that contained in the record, may be
presented only by witnesses, who know the circumstances, appearing and testifying under
oath, or by depositions or affidavits, copies of which shall have been served upon the district
judge and district attorney of the county in which the indictment was found, at least thirty
days before the hearing, unless for good cause shown this time be shortened by the board.
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28 Nev. 1, 1 (1904) State Library Regulations
NEVADA STATE LIBRARY
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Sections of the Law Relating to the Use of Books.
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From Compiled Laws of 1900.
Sec. 1518. The state librarian shall keep a register of all books, magazines, papers,
pamphlets, maps, charts and other property added to the library, and of the cost thereof, and
shall stamp the same with the library seal. He shall keep a register of all books taken from the
library, when taken out, by whom, and when returned. He shall not permit any person or
persons, except such as are authorized by law, to take from the library any book, magazine,
paper, or other property belonging thereto.
Sec. 1522. Upon assuming the duties of his office the secretary of state, as ex officio
state librarian, shall execute a receipt and deliver the same to the justices of the supreme court
for all books and other property in the state library.
Sec. 1523. All books, maps, and charts, now belonging to, or which may hereafter
come into possession of this state, by purchase or otherwise; all books, maps, charts,
pamphlets, and other documents, which, by any state officer, may be received in their official
capacity from the general government, or in exchange from other states and territories, or
received from foreign nations, or donated to the state by any person or corporation, shall be
placed in the state library, and shall be carefully preserved by the librarian.
Sec. 1525. Books may be taken from the state library by the members of the
legislature during its session, and at any time by the governor and other officers of the
executive department of this state who are required to keep their offices at the seat of
government, the justices of the supreme court and attorney-general; provided, that no person
shall be permitted to have more than two volumes of miscellaneous works from said library at
the same time.
28 Nev. 1, 2 (1904) State Library Regulations
Sec. 1526. The librarian shall cause to be kept a register of all the books issued and
returned at the time they shall be so issued and returned, and none of the books, except the
laws, journals and reports of this state, which may be taken from the library by members of
the legislature, during the session, and law books taken by the judges of the supreme court,
shall be retained more than two weeks; and all books taken by the members of the legislature
shall be returned at the close of the session.
Sec. 1527. If any person materially injure or fail to return any books taken from the
library within the time prescribed in the foregoing section, he shall forfeit and pay to the
librarian, for the benefit of the library, three times the value thereof, or of the set to which it
belongs.
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Rules of State Library.
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The number of users of the library is so small under the law that it has not heretofore
been considered necessary by those in charge to publish any rules in addition to those
included in the statute.
The office hours are from 10 to 12 o'clock in the morning, and from 1 to 4 in the
afternoon, on judicial days.
Those using books, except members of the supreme court, are requested not to replace
them on the shelves.
Books are not allowed to be taken beyond the limits of the capital city.
Books of reference, including law and miscellaneous, art works and unbound
magazines are not to be taken from the library.
The use of the library is extended to attorneys practicing before the supreme and
district courts, when in the capital city.
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28 Nev. 3, 3 (1904) Rules of Supreme Court
RULES
of the
Supreme Court of the State of Nevada
Adopted September 1, 1879; amended January 2, 1899;
amended December 17, 1902.
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rule i.
1. Applicants for license to practice as attorneys and counselors will be examined in
open court on the first day of the term.
Examination for Attorneys-at-Law.
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 counselors-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:
Examination by Committee.
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.
Examination to Embrace.
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;

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.
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.
Examination by Committee.
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.
Fee To Be Deposited Before Examination.
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.
Filing Transcript.
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.
Appeal May Be DismissedCan Be Restored.
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.
unless so restored the dismissal shall be final, and a bar to any other appeal from the same
order or judgment.
How Restored.
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 of 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 he 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.
Printed Transcripts.
1. All transcripts of record in civil cases, when printed, 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.
Transcripts in Criminal Cases.
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.
To Be Indexed.
3. The pleadings, proceedings, and statement shall be chronologically arranged in the
transcript, and each tran-script 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.
script 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.
Cannot Be Filed.
4. No record which fails to conform to these rules shall be received or filed by the
clerk of the court.
rule v.
Printing Transcripts.
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. 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.
Cost of Typewriting or Printing Transcripts.
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.
To Serve Cost Bill, When.
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.
no greater amount than such actual cost shall be taxed as costs.
Mode of Objecting to 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.
Indorsed Upon Remittitur.
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.
To Correct Error in Transcript.
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.
ExceptionsDiminution of Record.
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.
Substitution in Case of Death.
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.
Calendar to Consist ofUpon Motion.
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.
3. Causes shall be placed on the calendar in the order in which the transcripts are
filed by the clerk.
rule xi.
Time for Appellant to Serve BriefRespondent.
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.
Oral Argument.
3. The oral argument may, in the discretion of the court, be limited to the printed or
typewritten points and authori-ties or briefs filed, and a failure by either party to file points
and authorities or briefs under the provisions of the 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.
ties or briefs filed, and a failure by either party to file points and authorities or briefs under
the provisions of the 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.
Optional in Criminal Cases.
5. In criminal cases it is left optional with counsel either to file written, printed, or
typewritten points and authorities or briefs.
When Submitted.
6. When the oral argument is concluded, the case shall be submitted for the decision
of the court.
Stipulation as to Time.
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.
Printing and Paper To Be Uniform.
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.
Number of Copies To Be Filed.
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.
rule xiv.
Opinions Recorded.
All opinions delivered by the court, after having been finally corrected, shall be
recorded by the clerk.
rule xv.
RehearingRemittitur to Issue, When.
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.
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.
Opinion To Be Transmitted.
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 To Be Taken Without Order.
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.
Writ of Error, or Certiorari.
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.
Writ of Error to Operate as Supersedeas.
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.
When Returnable.
The writ of error shall be returnable within thirty days, unless otherwise specially
directed.
rule xxi.
To Apply.
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.
rule xxii.
Time Concerning Writ.
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.
Concerning Change of VenueAdditional Notice Given.
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.
Notice of Motion.
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.
Transcripts May Be TypewrittenTo Be Bound in Boards with Flexible Backs.
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.
Briefs May Be Typewritten.
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.
Copy To Be ServedTwo Copies to Be Filed.
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.
served upon each opposite party who appeared separately in the court below.
rule xxvi.
Concerning Certificate of Naturalization.
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.
rule xxvii.
Payment of Advance Fee RequiredClerk Prohibited from Filing.
No transcript or original record shall be filed or cause registered, docketed, or entered
until an advance fee of twenty-five dollars is paid into the clerk's office, to pay accruing costs
of suit. The clerk of the court is prohibited from filing or registering any record without first
having received as a deposit the aforesaid fee.
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28 Nev. 13, 13 (1904) Rules of District Court
RULES
of the
District Court of the State of Nevada.
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rule i.
The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise
ordered.
rule ii.
Calendars to ContainAttorneys.
The clerk of each county of the state shall make three calendars for the district court
of his county, upon one of which he shall place all civil causes at issue upon questions of fact
as soon as the issue is made; upon another of which he shall place all civil causes at issue
upon a question of law, and all motions of every nature, except ex parte motions, as soon as
the issue is made, or as soon as notice of motion is filed; and upon the third of which he shall
place all criminal business of every kind. The names of the attorneys of the respective parties
shall be appropriately placed on such calendars. The clerk shall, on every Saturday, forward
to the presiding judge of the court, and also to the judge who is to sit in his county, a full
statement of the condition of the business of the court as shown by the calendars.
rule iii.
Notice as to Time.
The judge who is to hold court in any county shall give the clerk of such county notice
of the time when court will sit. The clerk shall, immediately upon receiving such notice, give
all the attorneys having business in said court, as shown by the calendar, and also all attorneys
practicing in his county, notice in writing of the time when court will be held. He shall also
give notice of the time of holding court, in some newspaper printed and published at the
county seat of his county, provided it can be done without expense.
court, in some newspaper printed and published at the county seat of his county, provided it
can be done without expense.
rule iv.
When Calendar CalledOrder.
Upon the meeting of the court, as provided in Rule III, the law calendar will first be
called and disposed of. The trial calendar will then be called, and causes at issue upon
questions of fact disposed of. When the calendar is called the causes will be set for a time
certain. Parties are expected to be ready to try their causes, whether at issue upon questions of
law or fact, when the calendar is called, and in the order in which they are set. Parties may,
prior to the meeting of the court, fix the day of trial by stipulation in writing, subject to the
approval of the court or judge. The daily business of the court will be disposed of in the
following order:
FirstThe minutes of the previous day's business shall be read, approved, and signed
by the judge.
SecondEx parte motions.
ThirdProbate business, when there is no contest.
FourthIssues arising subsequent to the calling of the calendar shall be set.
FifthTrial of causes, as previously set.
SixthQuestions of law.
rule v.
Law Day.
On each Saturday of any session of court held by any district judge, law questions
shall take precedence, and be heard without previous setting or notice.
rule vi.
Relating to Motions.
When any motion or proceeding has been noticed, or set for a time certain, and for any
cause is not heard at the time appointed, the hearing of the same shall be continued without
further order, and the motion or proceeding shall be placed upon the calendar and disposed of
as other issues thereon.
rule vii.
Issues of LawDecision.
Any issue of law, and any motion of any nature or kind, may be heard orally by
stipulation of the parties, at any time or place agreed on in the state, with the consent of the
judge first having jurisdiction of the cause, or such questions of law, or motions, as the
case may be, may be submitted on briefs to such judge, with his consent, and the decision
may be filed thereafter at any time, which decision shall fix the time when the decision of
the court is to be complied with; and in all such cases the party who is required to act by
such decision, shall receive due written notice thereof from the opposite party.
judge first having jurisdiction of the cause, or such questions of law, or motions, as the case
may be, may be submitted on briefs to such judge, with his consent, and the decision may be
filed thereafter at any time, which decision shall fix the time when the decision of the court is
to be complied with; and in all such cases the party who is required to act by such decision,
shall receive due written notice thereof from the opposite party. Time for complying with
such decision shall commence to run from the time when service is made in the manner
required by the statutes for service of pleadings in a case; provided, that when the parties are
present by their respective attorneys when the decision is rendered, no notice shall be
required.
rule viii.
DemurrerSet Down for Trial.
When a demurrer is interposed in any case, if it be made to appear to the satisfaction
of the court that such demurrer has not been interposed in good faith, but merely for delay,
the defendant shall only answer upon such terms as the court may prescribe, and upon the
filing of the answer, the case shall be set down for trial for as early a day as the business of
the court will permit. In cases other than those above mentioned, ten days shall be allowed to
amend or plead, as the case may be, unless the court by its order fix a different time.
rule ix.
Documents and Pleadings.
All documents and pleadings, intended for the files of this court, shall be on paper
known as legal cap, of good quality, and without interlineations, unless noted thereon by
the clerk at the time of filing. No original pleading or paper shall be amended by making
erasures or interlineations thereon, or by attaching slips thereto, except by leave of court.
Copies of all papers issued from this court, or to be used therein, which are required by law,
or rule of court to be served, shall be upon legal cap paper in a legible hand, and in default of
so doing, the party failing shall be compelled to renew the paper, or be precluded from using
the original, as the court may deem proper.
rule x.
Motions.
Motions in all cases, except ex parte motions, motions for continuance, and motions
to amend pleadings pending a trial, shall be noticed at least five days before the day
specified for a hearing, and a copy of all papers to be used by the moving party, except
pleadings or other records of the court, shall be served with the notice of motion.
continuance, and motions to amend pleadings pending a trial, shall be noticed at least five
days before the day specified for a hearing, and a copy of all papers to be used by the moving
party, except pleadings or other records of the court, shall be served with the notice of
motion. The notice of motion shall be in writing, and shall specify the papers to be used and
the names of witnesses to be examined by the moving party, and the grounds upon which the
motion is made; provided, that the court may, upon good cause shown, shorten or enlarge the
time for hearing. For a failure to comply with this rule the motion shall be denied.
rule xi.
Hearing of Motions.
Upon reading and filing the notice of motion, with due proof of service of the same,
and of the papers mentioned therein, if no one appears to oppose the motion, the moving
party shall be entitled to have the motion decided. Upon the hearing, the affidavits to be used
by either party shall be endorsed and filed before the affidavits shall be used. The manner of
making motions shall be as follows:
FirstThe moving party shall read the moving papers, or state the contents thereof,
or introduce his oral evidence.
SecondThe party opposing shall then read or state the contents of his opposing
papers, or introduce his oral evidence.
ThirdThe moving party may then read his rebutting papers, or introduce oral
evidence, if admissible under the rules of practice in law or equity. The counsel for the
moving party shall make his argument, to be followed by the counsel of the opposing party,
and the counsel for the moving party may reply.
rule xii.
Hearing of Motions of ContinuanceTestimony of AbsenteesCounter Affidavit.
All motions for the continuance of causes shall be made on affidavit; and, when made
on the ground of absence of witnesses, the affidavit shall state:
FirstThe names of the absent witnesses, and their present residence or abiding
place, if known.
SecondWhat diligence has been used to procure their attendance, or depositions,
and the causes of a failure to procure the same. ThirdWhat the affiant has been
informed and believes will be the testimony of each of such absent witnesses, and
whether or not the same facts can be proven by other witnesses than parties to the suit,
whose attendance or depositions might have been obtained.
ThirdWhat the affiant has been informed and believes will be the testimony of each
of such absent witnesses, and whether or not the same facts can be proven by other witnesses
than parties to the suit, whose attendance or depositions might have been obtained.
FourthAt what time the applicant first learned that the attendance or depositions of
such absent witnesses could not be obtained.
FifthThat the application is made in good faith, and not for delay merely. And no
continuance will be granted unless the affidavit upon which it is applied for conforms to this
rule, except where the continuance is applied for in a mining case, upon the special ground
provided by statute. A copy of the affidavits upon which a motion for a continuance is made,
shall be served upon the opposing party as soon as practicable after the cause for the
continuance shall be known to the moving party. Counter affidavits may be used in
opposition to the motion. No amendments or additions to affidavits for continuance will be
allowed after they have been read, and no argument will be heard on motions for a
continuance, except such as relate to the sufficiency of the affidavits read on the hearing.
rule xiii.
Attorneys as Witnesses.
If the attorney or counsel of either party offers himself as a witness on behalf of his
client, and gives evidence on the merits of the cause, he shall not argue the cause, or sum it up
to the jury, without the permission of the court.
rule xiv.
Sureties.
No attorney will be received as surety on any bond or recognizance to be filed or
entered into in any action or proceeding in this court.
rule xv.
DepositionsInterrogatories, How Settled.
A party making application for a commission to take the deposition of a witness out of
the state, shall serve, with the notice of such application, a copy of the direct interrogatories;
and, at least one day before the hearing of the application, the adverse party shall serve upon
the moving party a copy of the cross-interrogatories. The direct and cross-interrogatories shall
be settled at the time of hearing the application, unless the court or judge otherwise direct;
provided, the parties may agree to the interrogatories without submission to the court or
judge, or may stipulate that the depositions may be taken without written interrogatories.
application, unless the court or judge otherwise direct; provided, the parties may agree to the
interrogatories without submission to the court or judge, or may stipulate that the depositions
may be taken without written interrogatories.
rule xvi.
Depositions.
When a deposition is received by the clerk, he shall endorse upon the envelope the
time of receiving it, and immediately file it with the papers of the case in which it was taken;
and at any time afterward, upon the application of any attorney in the case, he shall open the
same, and endorse upon the envelope the time of opening, and the name of the attorney upon
whose application it was opened, and shall then file the deposition.
rule xvii.
Amended Pleadings.
In cases where the right to amend any pleading is not of course, the party desiring to
amend shall serve, with the notice of application to amend, an engrossed copy of the
pleading, with the amendment incorporated therein, or a copy of the proposed amendment,
referring to the page and line of the pleading where it is desired that the amendment be
inserted, and, if the pleading were verified, shall verify such amended pleading, or such
proposed amendment, before the application shall be heard.
rule xviii.
To Strike Out.
The party moving to strike out any part of a pleading shall, in the notice of motion,
distinctly specify the part asked to be stricken out.
rule xix.
Withdrawal of Papers.
No paper or record belonging to the files of the court shall be taken from the office
and custody of the clerk, except upon the special order of the judge in writing, specifying the
record or paper, and limiting the time the same may be retained; but in no case shall original
documentary evidence be taken from the office of the clerk.
rule xx.
Additional UndertakingAttachments.
If the undertaking required before issuing a writ of attachment is shown to the
satisfaction of the court or judge, upon proper notice, to be insufficient to secure the party
whose property is attached, against damages, the court or judge may require an
additional undertaking to be filed, and if not filed, the attachment shall be dissolved.
property is attached, against damages, the court or judge may require an additional
undertaking to be filed, and if not filed, the attachment shall be dissolved. No attachment
shall be dissolved by reason of any defect in the attachment papers that can be amended
without affecting the substantial rights of the parties.
rule xxi.
Trials.
Upon a reference to try all the issues, both of fact and law, and to report a judgment
thereon, the referee shall set forth in his report the facts found and conclusions of law
separately, and shall, upon the day when his report is filed, serve upon the respective parties,
or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of
notice and motion for new trial shall not be deemed concluded until such notice is served.
rule xxii.
AppealsCertificate of Appeal to StateSupersedeas.
When an appeal is perfected and a proper undertaking to stay proceedings is filed, it
shall stay all further proceedings in the court below, upon the judgment or order appealed
from, or upon the matter embraced therein; and if an execution or other order shall have been
issued to the sheriff, coroner, or elisor, he shall return the same, with the cause therefor, and
his proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate,
under the seal of the court, of the perfecting of the appeal. The certificate shall state the title
of the action, the filing and service of the notice of appeal and the date of such filing and
service, together with the filing and approval of the undertaking staying all proceedings, and
the date of such filing and approval; and such certificate shall operate as a supersedeas of the
execution, or a vacation of the order.
rule xxiii.
Foreclosing MortgageService by Publication.
If, in an action to foreclose a mortgage, the defendant fails to answer within the time
allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by the
answer, the court may make an order referring it to some suitable person as referee, to
compute the amount due to the plaintiff, and to such of the defendants as are prior
incumbrancers of the mortgaged premises, and to examine and report whether the
mortgaged premises can be sold in parcels, if the whole amount secured by the mortgage
has not become due.
brancers of the mortgaged premises, and to examine and report whether the mortgaged
premises can be sold in parcels, if the whole amount secured by the mortgage has not become
due. If any of the defendants have been served by publication, the order of reference shall also
direct the referee to take proof of the facts and circumstances stated in the complaint, and to
examine the plaintiff, or his agent, on oath, as to any payments which have been made, and to
compute the amount due on the mortgage, preparatory to the application for decree of
foreclosure.
rule xxiv.
Further Time.
When an order shall be made enlarging the time to file a statement or affidavits on
motion for new trial, the adverse party shall have the same number of days to propose
amendments or file counter affidavits as was allowed by such order to file such statement or
affidavits.
rules xxv.
Settled by Referee.
When a motion for a new trial is made in a cause tried before a referee, the statement
shall be settled by the referee.
rule xxvi.
UndertakingsStay of ExecutionCertificate to State.
No stay of execution upon motion for a new trial shall be granted or allowed, nor
execution or other proceeding be stayed in any case, except upon the giving of a good and
sufficient undertaking, in the manner and form as other undertakings are given, to be
approved by the judge, with at least two sureties, for the payment of the judgment or debt, or
performance of the act directed by the judgment or order, in such amount as may be fixed by
the judge. An order to stay execution, or other proceedings in an action, shall be of no effect
until a copy of notice thereof is served upon the opposite party, or his attorney, and any other
party or officer whose proceedings are to be stayed thereby, unless said attorney or officer be
present at the time of making such order. And if an execution or other order shall have been
issued to the sheriff, coroner, elisor, or other person, he shall return the same with the cause
therefor and his proceedings thereunder endorsed thereon, upon receiving from the clerk a
certificate, under the seal of the court, of the granting of the stay of execution or other
proceedings.
the stay of execution or other proceedings. The certificate shall state the title of the action, the
order staying the execution or other proceedings, and the date of such order, together with the
filing and approval of the undertaking above required, and the date of such filing and
approval; and such certificate shall operate as a supersedeas of the execution or a vacation of
the order.
rule xxvii.
Stipulations.
No agreement or stipulation between the parties in a cause, or their attorneys, in
respect to the proceedings therein, will be regarded, unless the same shall be entered in the
minutes in the form of an order, by consent, or unless the same shall be in writing, subscribed
by the party against whom the same shall be alleged, or by his attorney or counsel.
rule xxviii
Juror, How Excused.
No juror shall be excused except in open court; and when a juror is excused, the clerk
shall immediately withdraw his name from the box for the period for which he has been
excused.
rule xxix.
Guardians.
No person shall be appointed guardian ad litem, either upon the application of the
infant or otherwise, unless he be the general guardian of the infant, or an attorney or other
officer of this court, or is fully competent to understand and protect the rights of the infant;
has no interest adverse to that of the infant, and is not connected in business with the attorney
or counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer to
the infant for any damage which may be sustained for his negligence or misconduct in
defense of the suit.
rule xxx.
Attorneys as Guardians Ad Litem.
Every attorney, or officer of this court, shall act as guardian of an infant defendant,
whenever appointed for that purpose by an order of the court. He shall examine into the
circumstances of the case, so far as to enable him to make the proper defense, and shall be
entitled to such compensation as the court may deem reasonable.
rule xxxi.
Guardian Ad Litem.
No guardian ad litem shall receive any money or property, or proceeds of sale of real
estate, until he has given security by bond, in double the amount of such property or money,
with two sureties, who shall justify as in other cases, approved by the judge and filed by the
clerk, conditioned for the faithful discharge of his trust.
rule xxxii.
To Furnish to the Clerk.
The counsel obtaining any order, judgment or decree, shall furnish the form of the
same to the clerk.
rule xxxiii.
To Be Filed.
The sheriff shall file with the clerk the affidavit and order on which any arrest is
made, within five days after such arrest is made.
rule xxxiv.
Retax Costs.
The party against whom judgment is entered shall have two days after service of a
copy of the cost bill in which to move to retax costs.
rule xxxv.
Mechanics' Liens.
In actions to enforce mechanics' liens, other lienholders coming in under the notice
published by the plaintiff, shall do so by filing with the clerk and serving on the plaintiff, and
also on the defendant, if he be within the state, or be represented by counsel, a written
statement of the facts constituting their liens, together with the dates and amounts thereof,
and the plaintiff and other parties adversely interested shall be allowed five days to answer
such statements.
rule xxxvi.
Motions.
No motion once heard and disposed of shall be renewed in the same cause, nor shall
the same matters therein embraced be reheard, unless by leave of the court granted upon
motion therefor, after notice of such motion to the adverse parties.
rule xxxvii.
Appeal from Justices' CourtDismissed, When.
When an appeal from the justices' court to this court has been perfected, and the
papers are not filed in this court within fifteen days from the day of filing the undertaking on
appeal, this court, on the production of a certificate from the justice to the effect that an
appeal has been taken and perfected, but the papers have not been ordered up, or the
proper costs not paid, or upon showing that any other necessary steps have not been
taken, shall dismiss the appeal at the cost of the appellant.
appeal has been taken and perfected, but the papers have not been ordered up, or the proper
costs not paid, or upon showing that any other necessary steps have not been taken, shall
dismiss the appeal at the cost of the appellant.
rule xxxviii.
Appeal Dismissed, When.
The plaintiff shall cause the papers in a case certified to this court under the
provisions of the 539th section of the practice act, to be filed in the office of the clerk of this
court within fifteen days from the day upon which the order of the justice is made directing
the transfer of the case. If the papers are not so filed the case shall be dismissed, upon filing a
certificate from the justice to the effect that he has certified the papers as required by said
section, but that the same have not been ordered up, or the proper costs paid; or if it shall
appear that such papers are not filed in this court by reason of the neglect of the plaintiff to
pay the fees of the clerk for filing the same.
rule xxxix.
Duties of Sheriff.
During the time the court remains in session it shall be the duty of the sheriff in
attendance to prevent all persons from coming within the bar, except officers of the court,
attorneys and parties to, or jurors or witnesses in, the cause or matter being tried or heard. The
sheriff shall also keep the passage way to the bar clear for ingress or egress.
rule xl.
Instructions To Be Settled, When.
Before the argument begins, counsel shall prepare their instructions, submit them to
the inspection of the opposite party, and then deliver them to the court. The court will hear
objections to instructions, and will, when practicable, settle the instructions in advance of the
argument, and permit counsel to use them when addressing the jury.
rule xli.
Trials.
When any district judge shall have entered upon the trial or hearing of any cause or
proceeding, demurrer or motion, or made any ruling, order or decision therein, no other judge
shall do any act or thing in or about said cause, proceeding, demurrer or motion, unless
upon the written request of the judge who shall have first entered upon the trial or
hearing of said cause, proceeding, demurrer or motion.
shall do any act or thing in or about said cause, proceeding, demurrer or motion, unless upon
the written request of the judge who shall have first entered upon the trial or hearing of said
cause, proceeding, demurrer or motion.
rule xlii.
Writs.
When an application or petition for any writ, rule or order shall have been made to a
district judge and is pending, or has been denied by such judge, the same application or
motion shall not again be made to the same or another district judge, unless upon the consent
in writing of the judge to whom the application or motion was first made.
rule xliii.
Duties of Judge.
No judge, except the judge having charge of the cause or proceeding, shall grant
further time to plead, move, or do any act or thing required to be done in any cause or
proceeding, unless it be shown by affidavit that such judge is absent from the state, or from
some other cause is unable to act.
rule xliv.
Causes Certified by State Land Register.
When a cause shall have been certified by the state land register to the district court
for trial, it shall be the duty of the first applicant, within thirty days after receiving notice of
such certification, to file and serve upon the adverse party a complaint setting forth the facts
upon which he claims to be entitled to the land. The adverse party shall, within ten days after
service of the complaint, file and serve his answer, in which answer he shall set forth the facts
upon which he relies.
rule xlv.
Vacating Judgments, Orders, Etc.Time to Amend.
No judgment, order, or other judicial act or proceeding, shall be vacated, amended,
modified or corrected by the court or judge rendering, making, or ordering the same, unless
the party desiring such vacation, amendment, modification or correction shall give notice to
the adverse party of a motion therefor, within six months after such judgment was rendered,
order made, or action or proceeding taken.
To the Honorable Judges of the District Court of the State of Nevada:
Your Committee appointed to prepare Rules of Court, submit for your approval and
adoption the foregoing rules, forty-five in number.
TRENMOR COFFIN,
ROBT. M. CLARKE,
R. H. LINDSAY,
W. E. F. DEAL,
H. F. BARTINE,

Committee.
attest: James D. Torreyson, Secretary.
____________
It is hereby ordered that the foregoing rules, forty-five in number, be and they are
hereby adopted as the Rules of Practice of the District Court of the State of Nevada, and that
they be in force in each county thirty days after the date of their filing in the clerk's office of
such counties.
RICHARD RISING,
Presiding District
Judge.
R. R. BIGELOW,
A. L. FITZGERALD,
District
Judges.
____________
28 Nev. 35, 35 (1904)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
_____________
OCTOBER TERM, 1904
____________
28 Nev. 35, 35 (1904) State v. Douglass
[No. 1668.]
In the Matter of an Application for a Writ of Prohibition against W. G. DOUGLASS,
Secretary of State of the State of Nevada, and the County Clerk of each
County of the State of Nevada. A. W. HESSON, et al., Petitioners, v.
W. G. DOUGLASS, et al., Respondents.
Original proceeding to restrain the above-designated state and county officials from
placing the names of J. M. McCormack, J. B. McCullough, and H. P. Beck on the official
ballots to be used at the general election to be held in the State of Nevada on the 8th day of
November, 1904, as silver party nominees for presidential electors, and also to restrain said
officials from using the names of said McCormack, J. B. McCullough, and H. P. Beck to be
silver party nominees for presidential electors, and the said Reinhold Sadler to be the silver
party nominee for Congress. Dismissed.
Benjamin Curler and James T. Boyd, for Petitioners.
W. G. Douglass, in pro per.
The petition for the above-entitled writ was by the court duly dismissed, with consent of
counsel for respective parties.
____________
28 Nev. 36, 36 (1904) State v. Wedge
[No. 1638.]
STATE OF NEVADA, ex rel. H. W. MILES, et al., as the Board of School Trustees of the
Delamar School District No. 18, Lincoln County, Nevada, Relators, v. SARAH WEDGE, as
School Superintendent of Public Schools of Lincoln County, Nevada, Respondent.
Dismissal of ActionNon-SuitCostsMotion to Dismiss.
1. Upon original mandamus proceedings, demurrer sustained to respondent's answer. Respondent granted
further time to file an amended answer, which she failed to do. Relators move to dismiss. Motion to
dismiss granted upon relators paying to respondent her costs up to the time of making of motion to
dismiss, and respondent to pay relators' costs after the time relators made their said motion to dismiss.
Mandamus by the State of Nevada, on the relation of H. W. Miles and others, as the Board
of School Trustees of Delamar School District, No. 18, in Lincoln County. Motion to
dismiss. Granted.
The facts sufficiently appear in the opinion.
Samuel Platt and F. R. McNamee, for Relators:
I. It has been many times decided in this state, and is universally recognized as a correct
statement of the law, that mandamus commands an action and certiorari reviews an action.
(Ency. Pl. & Pr., p. 501 and authorities.) The petitioners have endeavored by force of the
court's writ to compel the county superintendent of schools to do a certain thing. Believing
that the long lapse of time intervening since the taking of the original census and the final
decision on the demurrer would made it practically impossible to retake a census which
would tend to verify the original census (because of the changes in population), the
petitioners concluded to dismiss their action. In other words, they had determined, instead of
compelling the county superintendent to act in conformity with the desires of their petition,
that they would abandon their efforts and permit all matters relating to the question in issue to
remain in statu quo. Certainly the respondents cannot be injured by such dismissal. But
respondents contend that the original census was erroneous; that it ought to be retaken, and
that there should be another apportionment of the school funds; and that, in order to
secure the relief, the hearing in the mandamus matter should be insisted upon, with a
view of adjusting all differences in this proceeding.
28 Nev. 36, 37 (1904) State v. Wedge
there should be another apportionment of the school funds; and that, in order to secure the
relief, the hearing in the mandamus matter should be insisted upon, with a view of adjusting
all differences in this proceeding. It is respectfully submitted that, no matter whether the relief
prayed for is suggested in the original petition or in the answer thereto, this is a mandamus
proceeding, and the court has no power to review the action of an inferior tribunal in a
mandamus proceeding. The apportionment has been made, and the court has not the right to
review the conclusions of an inferior tribunal in a mandamus proceeding, after the inferior
tribunal has acted. (State v. Eureka Co., 8 Nev. 309; Floral Springs M. Co. v. Rives, 14 Nev.
166; Cavanaugh v. Wright, 4 Nev. 119; Hoole v. Kinkead, 16 Nev. 217).
II. To grant the respondent affirmative relief would be to extend the scope and function of
the writ of mandamus. The writ has always been kept within its own narrow limits and the
courts have universally been unwilling to extend its operation. (Bright v. Farmers' Canal, 3
Colo. App. 175; State v. Burbank, 22 La. Ann. 379; Bracken v. Wells, 3 Tex. 89.)
III. Suppose the court should grant respondent's prayer for relief, what would be its
judgment? By the dismissal of the petition there is nothing before the court for consideration
and the mere request to have it dismissed is equivalent to an abandonment of the court's aid in
securing a specific result. Had the application ever come to a hearing upon the merits, and
respondent's showing would have been sufficient to have defeated petitioner's right to the
writ, the judgment of the court would have been simply that the writ be denied. No authority
can be cited wherein the court have handed down a judgment denying the writ and granting
respondent affirmative relief beside. To have done so would have been to usurp the powers of
nisi prius and law courts, and to have litigated in a court of last resort by means of an
extraordinary writ an issue, the determination of which, in all probability, could have been
accomplished by means of a plain, speedy, and adequate remedy at law. It seems unnecessary
here to revert to the peculiar relief prayed for by respondent, considering the relative official
position of the county superintendent with the result sought to be secured in this
proceeding.
28 Nev. 36, 38 (1904) State v. Wedge
tendent with the result sought to be secured in this proceeding. It is respectfully suggested
that this petition for a writ of mandamus was based upon the clear provisions of the statute;
that the relief sought by it was clearly within its scope and power; that if its use as a remedy
(for good and sufficient reasons) is to be withdrawn, no possible injury can result, unless it
may be to petitioners themselves. If respondent has suffered from some breach of legal duty,
she certainly has her remedy. No court will deny her the right to employ it, if it be the proper
one; and, if she sees fit to bring her action, the constitution of this state indisputably gives her
that privilege.
Benjamin Sanders, District Attorney, for Respondent:
I. I invite the court's attention to the case of Walter N. Heldman, et al., v. United States, 1
Otto, 584-586. The court said: A judgment that the said suit is not prosecuted and be
dismissed is nothing more than non-suit, although the customary technical language is not
used, and does not preclude the institution and maintenance of a subsequent suit. There must
have been a right adjudicated or released in the first suit to make it a bar, and this fact must
appear affirmatively. The general entry of a dismissal of a suit by agreement is evidence of an
intention not to abandon the claim on which it is founded, but to preserve the right to bring a
new suit thereon if it becomes necessary. (Ray v. Adden, 50 N. H. 84.) I ask the court: Has
this respondent done any thing to justify the court to allow this charge to hang over her any
longer? I ask the court if her action justifies a dismissal of this case without prejudice, and
leaves the case open so that petitioners can at any time in the future call this matter up again,
and put the respondent on her proof, at which time, perhaps, the evidence and protection she
now has will not be available.
By the Court, Fitzgerald, J.:
This is a proceeding for mandamus to respondent to make apportionment of public school
moneys to the above-mentioned school district. On demurrer to the answer to the petition,
this court held insufficiency of the facts stated to prevent the issuance of a writ of mandate,
but permitted the respondent to amend her answer.
28 Nev. 36, 39 (1904) State v. Wedge
prevent the issuance of a writ of mandate, but permitted the respondent to amend her answer.
On the coming in of the amended answer the relators moved to dismiss the proceeding
without prejudice.
Counsel for respondent resists the motion on the ground that respondent in her amended
answer asks affirmative relief, to wit, that respondent have judgment against relators for
moneys theretofore improperly and unlawfully apportioned and paid to said district during the
term of respondent's predecessor in the office of superintendent of public schools of said
county.
In his brief counsel for respondent admits that such affirmative relief cannot be had in that
proceeding, but asks that the proceeding be not dismissed without prejudice. We think,
under the statute, relators have the right to dismissal. Section 3246, Comp. Laws, 1900, is, so
far as applicable to this matter, as follows: An action may be dismissed, or a judgment of
non-suit entered in the following cases: FirstBy the plaintiff himself at any time before
trial, upon the payment of costs, if a counter claim has not been made, etc. The fact that
respondent makes a counter claim that even her counsel admits cannot be set up in the
proceeding does not change the situation. It is precisely as if a counter claim had not been
made.
Relators' motion to dismiss without prejudice is granted on their paying to respondent her
costs up to the time of making said motion to dismiss; respondent is to pay relators' costs
after the time relators made their said motion to dismiss.
____________
28 Nev. 40, 40 (1904) Powell v. Nevada, California and Oregon Railway
[No. 1661.]
DANIEL POWELL, Respondent, v. NEVADA, CALIFORNIA AND OREGON RAILWAY,
a Corporation, Appellant.
RailroadsOperation of ShopsFrightening HorsesLiability for Personal InjuriesEvidenceExcessive
DamagesQuestion for Jury.
1. There is no fixed rule for the measure of damages for personal injuries, especially for mental anguish apart
from physical suffering, and much must be left to the jury under proper instructions.
2. While, in an action for personal injuries, testimony for defendant tended to minimize his injuries, there was
evidence that plaintiff's fall caused a concussion of the brain and an atrophic condition of the muscles
of the right arm, that his mental faculties became impaired, and he was dull and appeared distracted,
and one witness described his condition as pitiful. Held, that a verdict for $6,000 was not so excessive
as to indicate passion or prejudice.
3. In an action for personal injuries caused by a fall from a cart when plaintiff's horse was frightened by a steam
whistle in defendant's railroad shops, evidence that a team had been frightened thereby on another
occasion was admissible to show the dangerous character of the whistle at the place it was used.
4. Questions addressed to master mechanics as to whether it was necessary and convenient for defendant to
sound the whistle at stated hours to notify employees in the shops to commence and quit work were
properly excluded, as they related to a subject of common knowledge and experience.
5. The power of railroad companies under Comp. Laws, sec. 988, subd. 10, to erect and maintain all necessary
and convenient buildings, stations, depots, and fixtures and machinery for the accommodation and use
of their passengers, freight and business, etc., does not protect a company in such a use of a steam
whistle in its shops as to frighten horses and thereby injure others.
Appeal from District Court, Washoe County; B. F. Curler, Judge.
Action by Daniel Powell against the Nevada, California and Oregon Railway. From a
judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.
Dodge & Parker, Cheney, Massey & Smith, for Appellant:
I. The errors upon which the defendant asks that the order and judgment be set aside and
reversed are chiefly:
FirstExcessive damages appearing to have been given under the influence of passion or
prejudice.
SecondInsufficiency of the evidence to justify the verdict.
ThirdThat the verdict is against law.
FourthErrors in law occurring at the trial of said action and duly excepted to by said
defendant.
Excessive damages given by the jury under the influence of passion or prejudice: In his
complaint the plaintiff alleged damages for mental anguish and physical suffering in the sum
of $5,000; and, further, for permanent injury, partial loss of memory, and permanent loss of
the use of his right arm in the sum of $5,000; and for medical attendance, nursing, etc.,
$89.50.
The jury gave a verdict for $6,000. There was no evidence that the plaintiff suffered any
material mental anguish or physical pain. On the contrary, the plaintiff testified in answer to
his counsel's question, What was your physical condition so far as you know, Mr. Powell, at
the time that you first have any remembrance of being hurt? A. Well, I wasn't in much pain.
I don't know; I don't recollect what I did do or what. I wasn't in much pain. (Tr. p. 30.)
Asked as to whether any portions of his body were injured, he said: Oh, some, but then not
materially. (Tr. p. 31.)
Mrs. Wentworth, the nurse, testified for the plaintiff: Well, he suffered very little. (Tr. p.
60.) He was not confined to his bed. His arm was not in a sling. (Tr. p. 65.) Testifying as to
the wound on his head: Q. Was there anything done to it in the way of putting a stitch in it
by the doctor? A. No, I think not. I think he put strips of adhesive plaster on. (Tr. p. 66.)
Dr. Abbott, for the plaintiff, testified that he examined the plaintiff shortly before the trial
of this cause, found no scars on his arm or shoulder, noticed no scars on plaintiff's head and
saw no evidence of fracture of the skull. (Tr. p. 189.)
The jury, then, were not justified in awarding any substantial damages for mental anguish
and physical suffering; and the jury, if not actuated by passion or prejudice, must have based
their verdict upon the claims of permanent injury sustained. Is the evidence in this report
sufficient to exempt them from the charge of passion or prejudice? We think not.
II. The plaintiff had reached the age of 71 years, beyond the age, according to the
testimony of the medical experts, at which senile decay usually sets in.
the age, according to the testimony of the medical experts, at which senile decay usually sets
in. He had been failing for a number of years prior to the accident, both physically and
mentally. The loss of his memory might as reasonably have been assigned to advancing years
as to the accident. He was not confined to his bed. He suffered little physical pain at the time
of the accident, and there is no evidence that he suffered any subsequently. His right arm and
shoulder were not so badly injured but that he could use a whip in that hand to strike horses
which he was driving. There was no attempt to show that on this occasion the defendant acted
wantonly in blowing its whistle, or that it acted in any manner differently from the custom it
had observed since its shops were erected, or that its whistle was blown in a manner different
from that of other machine shops. Its only negligence consisted in sounding an ordinary
locomotive whistle for the purpose of apprising its employees when to resume work, a
whistle such as is used by the passenger locomotives of the Central Pacific railway, and such
as is sounded at every hour of the day and night in cities of the land, and at a time when
plaintiff knew from his experience, or ought to have known, that it would have been sounded.
Under such circumstances the jury awarded a verdict of $6,000. Upon no other theory than
that of passion or prejudice in the minds of the jury can this verdict be explained.
We respectfully submit that upon this ground alone a new trial should have been granted,
and that the refusal to grant a new trial is ground for a reversal of the judgment.
It is not only the power, but one of the highest duties, of a court to interfere, where
improper motives have influenced the jury in their assessment of the damages given.
(Watson, Damages for Pers. Inj., sec. 333; Louisville R. Co. v. Minogue, 14 S. W. 357, 90
Ky. 369; Spicer v. Chicago & N. W. Ry. Co., 29 Wis. 580, 586; Ill. Cent. R. Co. v. Welch, 4
Am. Rep. 593, 596, 52 Ill. 183; De Wardener v. Met. St. R. Co., 1 N. Y. App. Div. 240;
Goodno v. City of Oshkosh, 28 Wis. 300; Clapp v. Hudson R. Co., 19 Barb. 446.)
III. The question of whether the damages awarded by the jury are excessive is an original
question for the appellate court and is not to be controlled by the opinion of the trial judge.
court and is not to be controlled by the opinion of the trial judge. (Schultz v. Chicago, M. &
St. P. R. Co., 4 N. W. 399, 405, 48 Wis. 375.)
IV. Insufficiency of the evidence to justify the verdict; that the verdict is against law: The
defendant was and is a railroad corporation organized under and by virtue of the laws of the
State of Nevada, and as such it has the power and was authorized by subdivision 10 of section
988 of Compiled Laws of Nevada to erect and maintain all necessary and convenient
buildings, stations, depots, and fixtures and machinery for the accommodation and use of
their passengers, freight, and business, and to obtain and hold the lands and other property
necessary therefor.
In the prosecution of its business, as a necessary and convenient equipment, it maintained
a stationary steam whistle of a similar pattern to those placed on locomotive engines, for the
purpose of notifying its employees when to begin and when to quit work. It was not shown
that the whistle was negligently blown, or that it was louder or different from whistles
customarily used on manufacturing establishments throughout the country.
Further, the plaintiff frequently traveled along this street and knew or should have known
of the existence of the whistle, and of the hours at which it was sounded. It was placed at a
point near which locomotive whistles were constantly being sounded and where persons
driving horses liable to be frightened by noises were required to be more than ordinarily
cautious. If this whistle were liable to frighten horses, it added little if any danger at this point
where whistles were being so constantly sounded.
Plaintiff's brother, Kellum Powell, testified that the mare which the plaintiff was driving at
the time of the accident was liable to shy at a piece of paper or something blowing across the
road. (Tr. p. 200.)
It appeared from the testimony that, just before the one-o'clock whistle blew on the day of
the accident, there was an unusually large whirlwind on Fourth street carrying pieces of paper
and quantities of dust into the air, and this was met by the plaintiff at a point within a few
yards of where it was claimed the horse took fright.
claimed the horse took fright. (Tr. pp. 26, 43, 281, 285.) It was not improbable that the real
cause of the fright of the horse was the whirlwind. It was also shown that the plaintiff was
riding in a small, two-wheeled cart, having a seat with a low railing or guard, and that the cart
was not upset nor damaged in the least. We have heretofore commented upon the nature and
the extent of the plaintiff's injuries. In view of all the circumstances of the case the jury were
not legally justified in finding for the plaintiff.
V. Errors in law occurring at the trial of said action: It was error for the court to permit
the witnesses, Pollock, Fogg, and Franzen, to testify what the sound of defendant's whistle
was at any other than the time it was alleged to have occasioned the accident. Franzen
testified: Sometimes they would change the whistlegive it a different sound. It did not
have the same sound all the time. (Tr. p. 108.)
It was likewise error to permit J. R. Eason to testify that on another and different occasion
than that alleged in the complaint defendant's whistle had frightened a team which he was
driving along Fourth street and caused it to run away. The time was not even approximately
near, so far as is shown by the testimony. On cross-examination Eason testified that the fright
of his team occurred in 1900 or 1902; that he did not know the month, nor did he know
whether it was in the winter or springtime. It was not shown that the horses driven by Eason
were of the same disposition as the plaintiff's horse; nor that the circumstances were the
same; nor that any injury was sustained by Eason. Horses are not universally or even
ordinarily frightened by the sound of whistles. What will frighten one will not alarm another.
It does not follow that because one or more horses were frightened by the sound of the
whistle that it would necessarily frighten all horses.
The frightening of a horse is a thing that cannot be anticipated and is governed by no
known rules. In many instances a spirited road horse will pass in safety an obstruction that a
quiet farm horse will scare at; a leaf, a piece of paper, a lady's shawl fluttering in the wind, a
stone, or a stump by the wayside will sometimes alarm even a quiet horse."
horse. (Pittsburg Ry. Co. v. Taylor, 49 Am. Rep. 580, 585 (Pa.); Cleveland Ry. Co. v.
Wynant, 5 Am. St. Rep. 644, 648.)
This testimony by Eason, as well as that of Pollock, Fogg, and Franzen, should not have
been admitted. The sole questions in issue were whether or not the defendant was negligent in
maintaining and blowing its whistle at the time of the accident, whether the sounding of the
whistle was the proximate cause of the plaintiff's horse becoming frightened, and whether the
accident alleged resulted therefrom.
Though there are some exceptions, the general and better rule is that in actions for
damages for injuries sustained by the plaintiff through the negligence of the defendant,
evidence of other but similar injuries and accidents occurring about the same time, and at or
near the same place, caused by the fault of the defendant, is not competent. (Cleveland Ry. v.
Wynant, 5 Am. St. Rep. 644, 114 Ind. 525; Hubbard v. City of Concord, 69 Am. Dec. 520, 35
N. H. 52; Collins v. Dorchester, 6 Cush. 396; Langhammer v. Manchester, 68 N. W. 688
(Ia.); Hudson v. Chicago R. Co., 13 N. W. 735 (Ia.); Gable v. Kansas City, 50 S. W. 84
(Mo.); Phillips v. Town of Willows, 5 Am. St. Rep. 114, 70 Wis. 6; Blair v. Pelham, 118
Mass. 420; Maguire v. Middlesex Ry., 115 Mass. 239; Dean v. Murphy, 48 N. E. 283 (Mass.);
Croddy v. Chicago Ry., 60 N. W. 214 (Ia.); Mathews v. Cedar Rapids, 45 N. W. 894 (Ia.);
Whitney v. Gross, 5 N. E. 619 (Mass.); Greens v. Roark, 56 Pac. 329 (Mass.); Muller v. Hale,
71 Pac 81 (Cal.); O'Hagan v. Dillon, 76 N. Y. 170; Potter v. Cave, 98 N. W. 569 (Ia.);
Sherman v. Kartright, 52 Barb. 267; Bailey v. Trumbull, 31 Conn. 581; Aldrich v. Pelham, 1
Gray, 510; Kidder v. Dunstable, 11 Gray, 342; Edwards v. Barber Asphalt P. Co., 92 Mo.
App. 221; Langworthy v. Twp. Green, 50 N. W. 130 (Mich.); Bloor v. Delafield, 69 Wis.
273, 278; Christensen v. Union Tel. Line, 32 Pac. 1018 (Wash.); Menard v. Boston & M. R.
Co., 23 N. E. 214 (Mass.); Martinez v. Planel, 36 Cal. 578; Parker v. Portland Pub. Co., 31
Am. Rep. 262 (Me.); Boyce v. Cheshire R. R., 42 N. H. 97; Johnson v. Manhattan Ry. Co., 52
Hun, 111; City of Aurora v. Brown, 12 Ill. App. 122, 131; Jaques v. Bridgeport R. Co., 41
Conn. 61, 65.)
VI. The reasonable rule is that such testimony concerns collateral facts, which furnish no
legal presumption as to the principal facts in dispute, and which the defendants are not
bound to be prepared to meet.
collateral facts, which furnish no legal presumption as to the principal facts in dispute, and
which the defendants are not bound to be prepared to meet. (Collins v. Dorchester, supra.)
VII. The court erred in permitting Dr. C. H. Woods, over defendant's objections, to
answer the hypothetical question put by plaintiff's counsel touching the decadence of the
plaintiff's memory, in answer to which the witness replied: In my opinion he would have
suffered from concussion of the brain at that time, which had caused a deterioration in the
brain powerconsequent deterioration in the brain, for the reason that it assumes two facts
not shown by the evidence: First, that the plaintiff was a man of average clearness of memory
and of activity of intellect; second, that his answers to inquiries were incoherent or
disconnected, and for the further reason that it assumes a ground for damages not alleged in
the pleadings, viz, that the injury impaired the mental activity of the plaintiff. On the contrary,
the testimony of Pollock, when asked whether the plaintiff talked connectedly or
disconnectedly, was: Well, as far as that is concerned, he appears to talk all right. (Tr. p.
71.) On direct examination, a question which assumes any material fact which there is no
evidence to support must be excluded. (Abbott's Trial Brief, On Facts, p. 513; Bennett v.
City of Marion, 93 N. W. 558, 561 (Ia.); Rowe v. Such, 66 Pac. 862, 134 Cal. 573; Davis v.
Travelers Ins. Co., 52 Pac. 67 (Kan.); Burnett v. Wilmington Ry. Co., 26 S. E. 819 (N. C.);
State v. Cross, 26 N. W. 62, 68 (Ia.); State v. Hanley, 26 N. W. 397 (Minn.); Woolner v.
Spaulding, 3 So. 583 (Miss.); Hovey v. Chase, 83 Am. Dec. 514, 518 (Me.); Hurst v.
Chicago R. Co., 49 Ia. 76; Bomgardner v. Andrews, 55 Ia. 638; Lawson, Expert & Opinion
Evid. 152; note to Burk v. Texas, 39 L. R. A. 305, 313.)
Hypothetical questions are allowed to be put to experts; but the hypothesis upon which
they are examined must be based upon facts admitted or established by the evidence, or
which, if controverted, the jury might legitimately find on weighing evidence. (People v.
Augsberry, 97 N. Y. 501, 505.)
It was error for the court to have excluded the testimony of the witness Myers touching the
questions of whether or not it was necessary and convenient for the defendant to sound
the whistle for the purpose of notifying its employees when to commence and when to
cease work {Tr. p. 265), and whether or not it was necessary and convenient for the
defendant to maintain and operate its shops in the city of Reno for the purpose of
repairing engines and building cars {Tr. p.
not it was necessary and convenient for the defendant to sound the whistle for the purpose of
notifying its employees when to commence and when to cease work (Tr. p. 265), and whether
or not it was necessary and convenient for the defendant to maintain and operate its shops in
the city of Reno for the purpose of repairing engines and building cars (Tr. p. 267), for the
reason that the provisions of the statute under which the defendant company was chartered
grants the power to erect and maintain all necessary and convenient buildings, stations,
depots, and fixtures, and machinery for the accommodation and use of their passengers,
freight, and business, and to obtain and hold the lands and other property necessary therefor.
(Subd. 10, sec. 988, Compiled Laws of State of Nevada.)
Further, because the rejection of such evidence tended to prejudice the case before the jury
by raising a doubt in their minds as to the right of the defendant to carry on its business.
The court erred in giving instruction No. 3 (Tr. p. 311) requested by the plaintiff. The
instruction is not true as an abstract principle of law. The words which tend to increase the
danger of accident, referring to the locations of the street and whistle, and to other
circumstances, assume a danger and imply one of two propositions, namely, either that as a
matter of law a whistle is a nuisance per se and liable to cause injury, or that the facts of the
case show it to be an instrument of danger. Whichever horn of the dilemma the plaintiff
takes, the result is error. In the first case the use of a whistle in a manufacturing
establishment is not a nuisance per se. (Thompson on Negligence, new ed., sec 1261.)
In the second alternative, the evidence produced at the trial did not show the whistle to
have been a nuisance.
An instruction which embodies a hypothesis of fact in the support of which there is no
evidence, or which is decisively disproved by the evidence, ought not to be given, for such an
instruction tells the jury that they are at liberty to find such hypothesis to be true, and sends
them into the realm of speculation and surmise. (Thompson on Negligence, new ed., sec.
sec. 467; Baltimore & O. R. Co. v. Few, 26 S. E. 406 (Va.); Leak v. Rio Grande W. Ry. Co.,
38 Pac. 1045, 1048 (Utah); Dorsey v. McGee, 46 N. W. 1018, 1021 (Neb.); Herron v. Cole,
41 N. W. 765, 769 (Neb.); George v. Swafford, 26 N. W. 804, 807 (Ia.).
It was error for the court to give instruction No. 8 (Tr. p. 312), requested by the plaintiff,
for the reason that it had no application to the facts of the case.
The instructions should be confined to the issues made by the pleadings. (Thompson on
Negligence, new ed., sec. 466; Blashfield, Instructions to Juries, sec. 83; Fisher v. Central
Lead Co., 58 S. W. 1107, 1112 (Mo.); Smith v. Bank of New England, 47 Alt. 230, 233 (N.
H.); Nevada County v. Farnsworth, 102 Fed. 573, 577.)
The reason for the rule is that instructions not applicable to the case, although abstractly
correct, are apt to mislead the jury. (Blashfield, Instructions to Juries, sec. 83; Collins v. City
of Janesville, 83 N. W. 695 (Wis.); State v. Goff, 61 Pac. 680.)
Plaintiff's instruction No. 9 (Tr. p. 312) was likewise erroneous, for it embodied a
hypothesis of facts in support of which there was no substantial evidence, namely, that the
defendant maintained an object in close proximity to the street that naturally frightened
horses.
The court erred in modifying defendant's requested instruction No. 5 and giving it as
modified. (Tr. p. 316). The use of the words unusual or negligent manner in the proviso
relating to the use of a steam whistleprovided that the same is not constructed or used in
an unusual or negligent mannerin the instruction requested by the defendant, correctly
states the limitations placed upon the use of such mechanism. As modified by striking out
those words and inserting the words unreasonable manner in view of the rights and duties of
citizens who may be affected by it, it was an incorrect statement of the law, for the reasons
that an unreasonable use of the whistle might or might not constitute negligence, and from the
instruction as given the jury were led to predicate negligence upon an unreasonable use of the
whistle.
The court erred in refusing to give defendant's requested instructions Nos. 11, 12, and 13
(Tr. pp. 318, 319), respecting the power of a defendant corporation to erect and maintain all
necessary and convenient buildings, fixtures and machinery, etc., for the reasons that such
power was granted to said corporation by the statute under which it was organized.
(Compiled Laws of Nevada, sec. 988.)
It was not to be inferred, from the fact that the appellant in its points and authorities has
failed to discuss some of the errors assigned in the bill of exceptions, and has but slightly
touched others, that it has waived them. On the contrary, it asserts their validity and its rights
thereunder as fully as though they were argued and discussed at length.
Torreyson & Summerfield, for Respondent:
I. Appellant's first assignment of error, and the one upon which it apparently chiefly relies,
is that the damages found by the jury and approved by the trial court are excessive and were
awarded by the jury under the influence of passion or prejudice.
The law does not prescribe any definite rule for the determination of the amount of
damages which should be awarded in personal injury cases, but leaves their assessment to the
honest, deliberate, and unprejudiced reason of the jury, coinciding with the opinion of the
trial court, and their verdict and judgment will not be disturbed by appellate courts unless the
amount is so large as to induce a reasonable person, upon hearing the circumstances and
reviewing the evidence, to declare it outrageously excessive, or as to suggest, at first blush,
passion, prejudice, or corruption on the part of the jury. (Taylor v. N. C. O. Ry., 26 Nev. 429;
Solen v. V. & T. R. R. Co., 13 Nev. 138; Wheaton v. N. B. M. Co., 36 Cal. 590; Blair v. R. R.
Co., 43 Iowa, 676; City of Panama v. Phelps, 101 U. S. 455; Watson on Dam. for Per. Inj.
325-6.)
The mere opinion of the appellate court that the damages awarded by the jury are
excessive is not sufficient to warrant a reversal unless they are, per se, so excessive as to
obviously indicate passion or prejudice. (Taylor v. N. C. O. Ry., 26 Nev. 429; Solen v. V. & T.
R. R. Co., 13 Nev. 138; Lee v. S.
P. Co., 101 Cal. 121; Engler v. Tel. Company, 69 Fed. 187; Watson on Dam. for Per. Inj.
328.)
It is not denied but what there can be found in the recorded jurisprudence of the United
States a variety of opinions relative to what amounts of money constitute excessive verdicts
and judgments in personal injury suits, but it is confidently submitted that an analysis of these
opinions must forcibly impress the reviewer that the appellate courts, in their consideration of
particular facts of each independent case, measured to some extent the trend of policy
established in the decided cases of their particular sections of country.
The Nevada courts, both state and federal, have generally inclined toward sustaining
reasonably liberal verdicts and judgments for damages in personal injury cases rather than to
overthrow them and establish a rigidly harsh policy of decisions.
It should not be forgotten that, in addition to the permanency of respondent's merely
physical injuries, it was abundantly proven that the more serious damagethe shattering of
the mentality of the respondent, resulting from the violence to which he was subjectedis
absolutely permanent and will probably increase as long as respondent lives. For such
deplorable conditions resultant from the inexcusable neglect of another the law does not leave
the sufferer without appropriate remedy. (Railroad Co. v. Harmon, 47 U. S. 571; Engler v.
W. U. Tel. Co., 69 Fed. 188; Wedekind v. S. P. Co., 20 Nev. 301.) The verdict in this action
does not rest alone upon the deliberate judgment of the jury. After a full and complete
argument within the hearing of the trial court at the time the case was submitted to the jury
the trial judge, who had heard the witnesses testify and who personally in company with the
jury, the respective counsel, and the officers of the court, upon the express consent of all of
the counsel in the case, approved the judgment and verdict by denying appellant a new trial.
II. It is urged by counsel for appellant that no evidence was introduced to show the extent
of the respondent's earning capacity or of his expectancy of life. It was not essential that
plaintiff should prove his earning capacity either before or after his injuries, for the reason
that such proofs merely aid the court and jury in measuring the damages.
or after his injuries, for the reason that such proofs merely aid the court and jury in measuring
the damages. (Watson on Dam. Per Inj. 621; Logansport v. Justice, 74 Ind. 386; Fisher v.
Jansen, 128 Ill. 549; Rosencranz v. Railroad Co., 108 Mo. 9.)
Evidence tending to establish the probable duration of respondent's life, while properly
admissible to aid the court and jury in formulating a basis of problematical calculation, was
not at all essential to entitle respondent to recover fair and reasonable damages to be fixed by
the court and jury from the general evidence admitted at the trial. (Watson on Dam. for Per.
Inj. 634; Railroad Co. v. Binion, 107 Ala. 645; Fisher v. Jansen, 128 Ill. 549; Bartley v.
Trorlicht, 49 Mo. App. 214; Rosencranz v. Railroad Co., 108 Mo. 9; Walker v. Erie Co., 63
Barb. 260.)
In the very nature of things all testimony tending to establish a basis for determining future
earning capacity or the probable duration of human life is of merely speculative weight and
lacking in the element of approximate certainty.
In no case does the law ever require proof of a higher degree of certainty than the nature of
the particular case admits. (Thompson v. Louisville Co., 8 So. 406; Lakeshore Co. v.
Peterson, 86 Ill. 375; Squires v. Chillicothe, 89 Mo. 226; Asbury v. Charlotte Co., 34 S. E.
354; Shepard v. Milwaukee Co., 15 Wis. 318; Allison v. Chandler, 11 Mich. 548.)
The suggestion of appellant in its brief that punitive damages were an element in the case
at bar is entirely de hors the record. No such damages were claimed by respondent in his
complaint, none such were suggested by counsel in their argument, and no instructions upon
that subject were requested by any counsel in the case or given by the court. The case was
pleaded, tried, and decided upon the claim of compensatory damages and nothing else.
III. Appellant urges that the whistle was not harsh nor discordant, but that, on the
contrary, the evidence shows that it was melodious and in fact rivaled in dulcet sweetness the
harp of the sweet singer of Israel, which he was wont to hang upon the willows of the river
Jordan. That, in fact, it would have been a valuable musical instrument for the Lorelei to play
upon when she beguiled the susceptible mariners into the whirlpools at the base of her
rocky throne.
Lorelei to play upon when she beguiled the susceptible mariners into the whirlpools at the
base of her rocky throne. Yet, strange as it may appear to counsel for appellant, the
hard-headed and matter-of-fact jury and the unsentimental trial judge evidently believed the
testimony of the disinterested witnesses, Fogg and Franzen, in preference to that of the
rhapsodical employees of appellant.
Appellant seems to entertain the view that because the whistle was located upon its own
premises it possessed a legal carte blanche to use any kind of whistle it saw fit and at any
place it deemed necessary and convenient, utterly regardless of the natural rights of the
travelers upon the public streets and highways. In this apparent belief it grievously mistakes
the law of the land and does violence to the plainest dictates of common sense. Sic utere tuo
ut alienum non laedas is a maxim thoroughly ingrafted in the common law and has been
ascribed virtue by this court. (Boynton v. Longley, 19 Nev. 69; Shane v. Railroad Co., 71 Me.
245; Joseph v. Alger, 108 Cal. 108.)
No state of facts can be conceived in which this maxim of the law is more peculiarly and
forcefully applicable than in its relation to the rights of travelers upon the public streets and
highways to pass thereover without unnecessary danger.
Appellant somewhat strenuously contends that it was error for the court to permit the
witnesses to testify to what the sound of the whistle was at any other time than the exact time
of the infliction of plaintiff's injuries. It should be borne in mind that Mr. Dunaway, the
general manager of the appellant company, had already testified that for three years last past
the same whistle had been used at the same place until the change from steam to electric
power about the 20th or 25th of November last. (Tr. p. 82, 83.)
It was during this time that the witnesses were acquainted with the sound of the whistle
concerning which they testified and, as shown by the record, witness Franzen testified to its
sound on the very day of respondent's injuries. (Tr. p. 109.)
The rule of law to the effect that, where a physical condition of things is shown to exist, its
continuance for a reasonable length of time in subsequently the same condition will be
presumed in the absence of a showing to the contrary, is too well settled to be denied by
plaintiff's counsel, and for that reason a citation of the authorities in support of the
principle is deemed to be unnecessary.
be presumed in the absence of a showing to the contrary, is too well settled to be denied by
plaintiff's counsel, and for that reason a citation of the authorities in support of the principle is
deemed to be unnecessary.
The suggestion of appellant's counsel that some of the testimony shows that the whistle
had a different sound on different occasions cannot aid appellant, for the reason that it would
be negligence per se for appellant to maintain a whistle at the place in question varying in
sound from the melody of the choir invisible to the shrieking blasts of the escape valves of
inferno, and travelers upon the streets and highways should not be required to speculate upon
the character of the sound escaping from the whistle.
IV. It is urged by counsel for appellant that the court erred in admitting testimony showing
that on another and different occasion than that alleged in the complaint defendant's whistle
had frightened horses of ordinary gentleness. This is not a new point in the courts, and the
overwhelming weight of authority is opposed to appellant's contention and sustains the
proposition that such evidence is admissible, and, in fact, is the best evidence to prove the
effect of steam whistles upon horses of ordinary tractability. (Golden v. Railroad Co., 84 Mo.
App. 59; Wilson v. Town of Spafford, 10 N. Y. S. 649; Knight v. Goodyear Co., 38 Conn.
442; House v. Metcalf, 27 Conn. 631; Crocket v. McGregor, 76 Me. 282; Darling v.
Westmoreland, 57 N.H. 401; Gordon v. Railroad, 58 N.H. 396; Lewis v. Railroad, 60 N. H.
187; Piollett v. Simmers, 106 Penn. S. L. C. 111; Hill v. Railroad, 55 Me. 443; Mathews v.
Railway, 142 Mo. 657; Campbell v. Railway, 121 Mo. 348; Bloomington v. Legg, 151 Ill. 9;
District of Columbia v. Armes, 107 U. S. 519; Morse v. Railroad, 30 Minn. 465; Hoyt v.
Railroad, 118 N. Y. 399; Railroad v. Alexander, 93 Ala. 133; Brewing Co. v. Bauer, 50 Ohio
St. 560; Phelps v. Railroad, 37 Minn. 485; Colorado M. &. I. Co. v. Rees, 21 Colo. 435;
Gault v. Wolvier, 103 Ill. App. 71, 14 Am. Neg. Reports, 651.)
It may be admitted that some of the authorities cited by counsel for appellant seem to
sustain its theory, while others cited by it are not in point, but at any rate it is confidently
urged that the decided preponderance of authority sustains the admissibility of the
evidence and is in better consonance with sound reasoning.
urged that the decided preponderance of authority sustains the admissibility of the evidence
and is in better consonance with sound reasoning.
V. The question of whether an object is in its nature calculated to frighten horses of
ordinary gentleness is usually a question for the jury to determine from a consideration of its
character, situation, the amount of travel on the street, and like circumstances. (Selby v.
Vancouver Water Works Co., 14 Am. Neg. Rep. 650; 15 Am. and Eng. Ency. of Law, 446;
Cooley on Torts, 617; Elliot on Roads and Streets, 2d ed., sec. 616.)
VI. The court did not err in permitting the physicians to answer the hypothetical questions
propounded by plaintiff's counsel concerning the impairment of respondent's memory.
It is not necessary, in framing a hypothetical question, to be propounded to an expert, to
include therein a statement of all the evidence in the case, but the question may be framed
upon any theory deduced from the evidence, and the statement may assume any facts within
the limits of the evidence, upon which the opinion of the expert is desired, and omit any facts
not deemed by the questioner material to the inquiry, and where the theory of the interrogator
in questioning an expert witness upon direct examination does not accord with the theory of
the defendant, he may, on cross-examination, propound hypothetically to the witness framed
upon his theory of the evidence and take his opinion thereon, leaving to the jury as to which
theory, if either, was warranted by the evidence. (People v. Hill, 116 Cal. 562; Thompson on
Trials, sec. 604.)
Besides, the decay of respondent's mental faculties, commencing with and continuing
since the date of his injuries, was abundantly proven by the testimony of Mrs. Wentworth,
Mr. Kinney, Mr. O'Connor, and other witnesses.
VII. The trial court did not err in excluding the testimony of the non-expert witness,
Myers, relative to the claimed necessity and convenience of appellant in operating its whistle,
for the reason that any answer responsive to the questions propounded would have been
usurpative of the functions of the jury. It was for the jury to determine from all of the facts
and circumstances of the case whether the use of that character of whistle at the place
where it was situated was necessary and convenient in the operation of appellant's
business and was not a proper subject for the mere naked opinion of a witness.
from all of the facts and circumstances of the case whether the use of that character of whistle
at the place where it was situated was necessary and convenient in the operation of appellant's
business and was not a proper subject for the mere naked opinion of a witness. (Rice on
Evidence, vol. 1, par. 203a, and numerous authorities there cited; Union Pac. Co. v. Jarvi, 53
Fed. 65; Hanley v. California Co., 127 Cal. 232.)
VIII. Respondent's requested instruction No. 3, given by the court, is a correct exposition
of the law and was directly applicable to the facts in the case. Sound reason irresistibly leads
the mind to the conclusion that the degree of care and caution which should be exacted from
the operators of dangerous instrumentalities should largely be measured by the probability of
danger. Such is the common course of conduct by men of affairs as is illustrated by the
limitation of the speed of trains through cities and thickly populated sections, the
maintenance of gates at the crossing of streets over railroads, the display of danger signals at
points of greatest danger, and the placement of lights at excavations where there is much
travel. This rule of common sense is also the rule recognized and required by the law in such
cases. (Barrows on Negligence, p. 325; White v. Railroad Co., 136 Mass. 321; Howard v.
Railroad Co., 32 Minn. 214; Chicago Railroad Co. v. Dillon, 123 Ill. 570.)
IX. Respondent's requested instruction No. 8 was properly given by the court and was
clearly within the issues and the proof in the case.
X. It was not an error for the court to give respondent's requested instruction No. 9, for the
reason that the evidence was abundant that the whistle was maintained in close proximity to
the street and that it naturally frightened horses of ordinary docility.
XI. Respondent's requested instruction No. 10 was correctly given and was peculiarly
applicable to the facts as disclosed by the evidence in the case. It commends itself to reason
as being just and proper and is supported by authorities. (Knight v. Goodyear Co., 38 Conn.
442.)
The difference between the whistle causing respondent's injuries and locomotive whistles
is unmistakably shown by the evidence of Mr.
injuries and locomotive whistles is unmistakably shown by the evidence of Mr. Fogg and Mr.
Franzen.
XII. The court did not err in modifying appellant's requested instruction No. 5, for the
reason that as modified it is a correct exposition of the law that no one shall be allowed to
unnecessarily so use his own property as to endanger the security of another. As requested by
appellant the relative rights of others were utterly ignored and the phraseology, instead of
assisting the jury, was of such a nature as to mislead it.
XIII. Appellant's requested instructions Nos. 11, 12, and 13 were properly refused.
Refused instruction 11 is inapplicable to the facts in the case, for the reason that it
intermingles the operation of its locomotive engines with the operation of its shops, and the
operation of its rolling stock had no connection whatever. Refused instruction 12 is
absolutely incorrect as either an abstract proposition of law or an applicable instruction in this
case, for the reason that it assumes the right of the appellant to so maintain and operate its
shops along the street, regardless of the necessity or the convenience of its method of
operation and indifferent to the safety and the rights of travelers upon the street.
Appellant's refused instruction 13 is obnoxious, for the reason that it assumes the right of
appellant to so construct and operate its shops that the greatest advantage will result to itself
utterly regardless of the rights of the traveling public upon the street, and for the further
reason that it intermingles the operation of the rolling stock upon the railroad with the
operation of the shop.
The three refused instructions, so far as portions of them were applicable to the facts of the
case, were concisely and pointedly covered by other instructions given by the court.
XIV. It is plainly evident that appellant has little, if any, faith in the efficacy of the other
alleged errors assigned in the bill of exceptions, for the reason that such painstaking counsel
would have pointed out their infirmities had any existed. Notwithstanding their shotgun
assertion that they still rely upon them, it must be taken that they are virtually abandoned. The
industry and subtle ingenuity of the distinguished counsel for appellant would not permit
them to lightly pass over alleged errors if they could be shown by either reason or
authority to be errors in fact.
tinguished counsel for appellant would not permit them to lightly pass over alleged errors if
they could be shown by either reason or authority to be errors in fact. It will be sufficient time
for counsel for respondent to undertake to show that they are not errors when counsel for
appellant can in some effective manner disclose their erroneous character.
Cheney, Massey & Smith, and Dodge & Parker, for Appellant, in reply:
I. No liability should be imposed on any person or company for injuries resulting from the
conduct of a horse undertaken to be driven on a public street that will become uncontrollable
with an unintoxicated driver under such circumstances. Furthermore, the Powell horse was
not the docile creature counsel would have us believe, as shown by the testimony of plaintiff's
brother (Tr. p. 200, opening brief), and, as plaintiff had been driving along that road from
forty to fifty years, and was generally pretty sober, and during most all of those years of
driving over that street had become very familiar with all the shops and whistles on the street,
including the appellant's, he should, on approaching the track immediately west of the
appellant's shops over which a locomotive might have been expected to pass and sound a
whistle at that point at any hour of the day or night, have had his horse and himself under
such control that the turning around of the horse driven to a cart would not have caused him
to lose his balance and fall out; and in doing so he surely is so extremely negligent as to
preclude a right to recover from appellant. (Solen v. V. & T. R. R. Co., 13 Nev. 145.) We
think the principles of law stated therein have a direct bearing on the conduct of the plaintiff
in this action. It seems to us from the testimony that plaintiff was not in the condition of mind
he should have been in under the circumstances. (Tr. p. 35.)
II. Respondent contends that the damages awarded are not excessive and that a verdict
and judgment will not be disturbed by appellate courts unless the amount is so large as to
induce a reasonable person upon hearing the circumstances and reviewing the evidence to
declare it outrageously excessive or as to suggest, at first blush, passion, prejudice, or
corruption on the part of the jury.
excessive or as to suggest, at first blush, passion, prejudice, or corruption on the part of the
jury. As we understand the rule of law in Nevada, the word outrageously in this connection
is entirely out of place, unless it be to declare this an outrageous assumption on the part of the
respondent as to what law is. No such rule has ever been enunciated by the supreme court of
this state so far as we have been able to discover, and if it is in any other court, we for the
present reserve out opinion of it. That is equal to saying that one must be subjected to an
outrageous wrong before he is entitled to a remedy or relief from the outrage. And we do not
understand that common sense and common right, if that be the soul and essence of law,
require that one must suffer extremes before he shall be entitled to reasonable protection and
relief. The cases cited by respondent to sustain this contention we deem inapplicable to the
merits and facts in this case.
III. It may be conceded that the mere opinion of the appellate court that the damages
awarded are excessive is not sufficient to warrant a reversal unless they are, per se, so
excessive as to obviously indicate passion or prejudice. But in this case we are contending
that they are so excessive that they surely indicate prejudice on the part of the jury as that any
verdict at all was given in favor of plaintiff. We could hardly conceive a case in which we
would deem the plaintiff less liable to be entitled to recover than in this case. It is claimed
that Nevada courts, both state and federal, have inclined to sustain reasonably liberal
verdicts and judgments for damages in personal injury cases, etc., and in support of that the
Taylor and Solen cases are again referred to, also the Wedekind and the Engler cases. We
submit, however, that an examination of the records of facts in those cases shows that each
and all of those parties sustained far greater injuries, and in nearly all of them the plaintiffs
were far younger and entitled to more, if any, damages as being compensatory than would the
plaintiff in this case on the facts. An examination will show from his testimony that his
memory is no more impaired nor uncertain than is the memory of the average man of his age.
Under the evidence in this case the only element on which to base a legal verdict would be
for whatever pain and suffering he may have endured, and, according to the testimony,
the pain and suffering were comparatively slight and continued for two weeks or
thereabouts.
to base a legal verdict would be for whatever pain and suffering he may have endured, and,
according to the testimony, the pain and suffering were comparatively slight and continued
for two weeks or thereabouts. There is nothing in our view to support such an outrageous,
excessive verdict as was given in this case. It is said that the verdict in this action does not
rest alone upon the deliberate judgment of the jury, but that the trial court has approved the
verdict and judgment by denying appellant a new trial. This, by implication, means, evidently,
that, because a trial court does not grant a new trial in a case which it has tried, that therefore
a litigant, per se, is not entitled to a new trial, and that appellate courts, which are constituted
to rectify any errors or wrongs that may be committed in the trial of a case, shall not exercise
the duties for which they are formed.
IV. It is true that trial courts have the opportunity of observing the manner of the giving of
the testimony of witnesses and fully considering every phase of the case during the progress
of its trial. But that of itself is no reason why an error may not have been committed or that
litigants shall be deprived of a right to which they are legally entitled. Appellate courts may,
from the records of testimony presented to them, determine, with more time and deliberation
than is generally at the disposal of trial courts in the progress of the discharge of their duties,
whether a verdict is excessive and whether it has been obtained or secured as the result of the
erroneous admissions of testimony or the giving of instructions not supported by law. In this
case, the plaintiff being past the age of earning capacity and not having shown what his
annual or other earnings were, if any, we claim that the verdict granted must, excepting
possibly the items for physician's and nurse's expenses, have been given for physical pain and
mental suffering, and the testimony on this point, as we have before observed, shows that it
was very limited and was of shorter duration than any case we can find reported.
V. Counsel for respondent, in their reply brief, have cited a long list of authorities to the
point that, in an action for damages for negligence which is alleged to have caused an
accident with resulting injury to the plaintiff, evidence of other accidents occurring at or
about the same time and place caused by the default or negligence of the defendant are
admissible.
accident with resulting injury to the plaintiff, evidence of other accidents occurring at or
about the same time and place caused by the default or negligence of the defendant are
admissible. Many of these cases can be readily distinguished upon principle from the case at
bar. In the case of Poggenssee v. Mutual Ins. Co., cited by respondent, there was no question
of negligence. The action was on an insurance policy which insured plaintiff's property
against tornadoes, and the defendant on cross-examination of the plaintiff and his witnesses
sought to elicit from them whether or not the alleged tornado had occasioned other loss in the
vicinity, for the purpose of showing there had been no tornado and that the injury was
occasioned by other means or causes. The Missouri cases of Matthews v. R. R. Co. and
Campbell v. R. R. Co. were both cases of fires started by locomotives, and the starting of fires
by locomotives of the defendant company at other times was sought to be shown for the
purpose of proving that the fire in question was occasioned by sparks from a locomotive of
the defendant. Such testimony is generally admitted in this particular class of cases and
constitutes an exception to the general rule. A later case in Missourithat of Gable v. City of
Kansas City, 50 S. W. 84, cited in appellant's briefstated the general rule that evidence of
other accidents at the same place and from the same cause are inadmissible in an action for
damages for injury arising from an accident alleged to have been caused by the defendant's
negligence. The court says: In point of number, as well as in the strength of reason upon
which the two adverse rules have been announced, however, we think the weight of authority
favors the rule denying the admission of such testimony as evidence.
The Supreme Court of Alabama, in the case of Birmingham Co. v. Alexander, apparently
supports the rule contended for by the respondent, but they are consistent and, while
permitting the plaintiff to show other accidents at a defective railroad crossing, also permit
the defendant to show in rebuttal that a large number of persons under similar conditions
crossed the track without injury for the purpose of showing the absence of the alleged defect.
The case of Hoyt v. N. Y. R. Co. is not in point.
v. N. Y. R. Co. is not in point. In that case the plaintiff claimed injury caused by accident at
the defective crossing. Defendant claimed that the accident was caused by defect in plaintiff's
wagon, which had overturned at the crossing, and sought to show that subsequently the same
wagon had caused trouble through defects in its construction. The court rejected the
testimony, and this was held error. In that case the subsequent action of the wagon in its use
would indicate whether or not its construction were defective, its action would proximately
indicate the defect, while in the case at bar the action of other horses in a few individual
instances frightening at the defendant's whistle would not tend to prove its dangerous
character. In the former case the same wagon was involved, and the presumption would hold
that where the wagon acted in a certain manner on a particular instance it would continue to
act the same at other times while its condition remained the same. In the case of the
frightening of horses, however, the various elements of difference in the disposition of horses,
difference of drivers, and the differences in the circumstances are all to be considered in
determining whether what frightened one horse had a tendency to frighten docile horses
generally.
The case of Findlay Brewing Co. v. Bauer is similar in principle to the last
above-mentioned case. The question was asked as to the defect in an elevator, and the action
of the same elevator on other occasions was testified to and the testimony admitted to show a
defect in the mechanism. Most of the remaining matter in the respondent's brief is of such a
nature that any reply we may desire to make thereto can be made at the oral argument.
By the Court, Belknap, C. J.:
Appellant, a railway corporation, had a steam whistle on its shops six feet from the line of
the street along which respondent was driving. His horse took fright at the sounding of the
whistle and ran away. Respondent was thrown out and injured.
In an action to recover damages for the injuries a judgment was rendered for the sum of six
thousand dollars. An appeal was taken therefrom and from an order denying a motion for
a new trial upon the ground, among others, of excessive damages appearing to have been
given under the influence of passion or prejudice and of insufficiency of the evidence.
appeal was taken therefrom and from an order denying a motion for a new trial upon the
ground, among others, of excessive damages appearing to have been given under the
influence of passion or prejudice and of insufficiency of the evidence.
The complaint prays for a judgment of $10,089.50. Of this sum $5,000 is asked as
damages for mental and physical suffering; $5,000 for permanent partial loss and impairment
of memory and permanent loss of the use of the right arm, and the remainder ($89.50) for
medical attendance, nursing, and similar expenses incurred. In an endeavor to analyze the
verdict and determine the amount the jury may have ascertained as damages for mental and
physical suffering and the amount for permanent injuries appellant claims there was no
material mental anguish or physical pain shown and no permanent injuries, and that the
verdict and judgment are excessive. The evidence upon the part of respondent tended to show
that he, accompanied by Mr. Smith, was driving a horse of ordinary gentleness, attached to a
road cart, along Fourth street in the city of Reno, upon the occasion stated; that upon
approaching appellant's railway shops the steam whistle, which witness for plaintiff testified
was of unusual shrillness, was blown, the horse became frightened and, suddenly turning,
upset the cart, throwing the men out and injuring respondent. His fall caused a concussion of
the brain and an atrophic condition of the muscles of the right arm. His mental faculties,
which were fairly good before the accident, became impaired. He was dull, forgetful,
appeared distracted, and, in the language of one of his witnesses, his condition was pitiful.
Testimony on the part of appellant tended to minimize his injuries. It may be conceded that
there are passages in the testimony of respondent himself that can be construed against a
recovery, but upon the whole case we think the judgment should not be interfered with. The
evidence touching mental anguish and physical suffering is not as satisfactory as that
concerning permanent injuries. But in this class of cases there is no fixed rule for the measure
of damages, especially for mental anguish apart from physical suffering.
suffering. Much is left to the jury under proper instructions from the court. The amount of the
judgment is not so excessive as to indicate passion or prejudice on the part of the jury, and the
evidence is sufficient to support the verdict.
J. R. Eason, a witness introduced by respondent, was permitted to testify that on another
occasion appellant's whistle had frightened a team which he was driving on Fourth street, and
caused it to run away. The admission of this testimony is assigned as error, on the ground that
it tended to introduce collateral issues, and thus mislead the jury from the matter directly in
controversy. The evidence was introduced to show the dangerous character of the whistle at
the place it was used.
In Dist. of Columbia v. Armes, 107 U. S. 519, 2 Sup. Ct. 840, 27 L. Ed. 618, in a suit to
recover damages from a fall caused by a defective sidewalk, it was held competent to show
other like accidents whilst it was in the same condition. The court said: They were proved
simply as circumstances which, with other evidence, tended to show the dangerous condition
of the sidewalk in its unguarded condition. The frequency of accidents at a particular place
would seem to be good evidence of its dangerous character; at least, it is some evidence to
that effect. * * * Here the character of the place was one of the subjects of inquiry to which
attention was called by the nature of the action and the pleadings, and the defendant should
have been prepared to show its real character in the face of any proof bearing on that subject.
In Golden v. C., R. & Pac. Ry. Co., 84 Mo. App. 59, defendant, after repairing its bridge,
left a pile of boards on the side of the highway. It frightened plaintiff's horses, and they ran
away and injured her. Evidence was admitted that gentle horses had been frightened by the
same pile of boards at the same place. The court said: The evidence was offered to show the
character of the object of complaint, and was not to try collateral matter. If leaving an object
in the highway which is calculated to frighten horses is a wrong, and the question is made
whether such object is so calculated, what better evidence can be had of that than actual
experiment?
experiment? The great weight of authority favors the ruling of the trial court.
Evidence of this nature is not new in this State.
In Longabaugh v. V. & T. R. R. Co., 9 Nev. 271, in a suit against a railroad company for
damages occasioned by setting fire to cord wood by one of its locomotives, it was held that
previous fires in the same place caused by coals dropping from defendant's locomotive, and
also of the emission at the same place of sparks of sufficient size to set fire to cord wood, was
admissible.
Exception was taken to the exclusion of the answer to the question addressed to Mr.
Myers, the master mechanic of appellant, as to whether it was necessary and convenient for
the appellant corporation to sound the whistle at stated hours for the purpose of notifying the
employees in the shops to commence and quit work. The question was inadmissible. The
subject was of common knowledge and experience, and it was for the jury, and not for the
witness, to determine whether the whistle was convenient and necessary. Appellant is
incorporated under the general laws providing for the incorporation of railroad companies.
(Section 971, et seq., Cutting's Compilation.) Among its powers are: TenthTo erect and
maintain all necessary and convenient buildings, stations, depots, and fixtures and machinery
for the accommodation and use of their passengers, freight, and business and to obtain and
hold the lands and other property necessary therefor. (Section 988.) It is claimed that this
provision protects appellant in the use of the whistle.
A similar defense was made in Knight v. Goodyear Co., 38 Conn. 442, 9 Am. Rep. 406.
The court said: Their right to use a whistle must be conceded, but, like all other rights, it
must be so exercised as not to endanger and injure others. It is no answer to say that they did
not erect or blow the whistle for any such purpose, or that they had no knowledge that it
frightened horses, or that they did not suppose it was calculated to frighten them. These facts,
if they existed, they were bound to know or anticipate. When a man exercises a particular
right in a particular manner calculated to produce injury to another, he must be held to a
knowledge of the possible or probable consequences of his act, and cannot be excused
because he did not intend or expect those consequences.
of the possible or probable consequences of his act, and cannot be excused because he did not
intend or expect those consequences. It is an elementary rule that every man must be
presumed to intend the natural and necessary consequences of his acts, and there is nothing
found in this case which will exempt the defendants from the operation of that rule.
We have examined the remaining exceptions, and find no error in them.
The judgment and order denying a motion for a new trial should be affirmed.
It is so ordered.
____________
28 Nev. 65, 65 (1904) McKenzie v. Coslett
[No. 1663.]
P. A. McKENZIE, Appellant, v. GEORGE COSLETT,
Respondent.
Mining PartnershipsRights and Liabilities of Partner.
1. Plaintiff and defendant formed a partnership, agreeing to be equally interested in any mines located or found,
and in any lease taken by defendant and plaintiff. Defendant, without plaintiff's knowledge, took a lease
in partnership with others. Plaintiff learned of the lease, and that defendant needed money to operate
under it, but furnished no money and took no steps to obtain an interest in the lease until several months
thereafter, when it had been discovered that the claim leased was a profitable one. Plaintiff testified that
defendant had no power to lease property on his own judgment, but only to report propositions for
leases to plaintiff, who was to examine the property and furnish the money. Held, that plaintiff was
entitled to no interest in the property leased by defendant.
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Washoe County; B. F. Curler, Judge.
Action by P. A. McKenzie against George Coslett. From a judgment for defendant,
plaintiff appeals. Affirmed.
Mack & Farrington, for Appellant:
I. After plaintiff had introduced about one-third of his testimony the court deliberately and
arbitrarily discharged the jury. The action of the court was taken on its own motion and
without any objection by the attorneys for the defendant, but it was strenuously opposed by
counsel for plaintiff, and when the order was made due exception was taken thereto.
plaintiff, and when the order was made due exception was taken thereto. This action of the
court was taken without cause; no reason or excuse therefor appears in the record. (Tr. p. 94,
et seq.)
II. It is undoubtedly the rule that in an equity case the court may, within its discretion,
grant or refuse a jury to try the issues of fact, and the right to trial by jury cannot be claimed
unless such issues be specially framed for the jury under the direction of the court. (16 Cal.
249.) Chancery courts are not to assume jurisdiction of a cause for the purpose of depriving
parties of the right of a jury trial, but, once having taken jurisdiction because the case is one
perfectly cognizable in a court of equity, the submission of issues of fact to a jury is a matter
within the sound discretion of the chancellor. Even when a submission is made, the findings
of the jury are to be regarded merely as made in aid of the chancellor. (3 S. W. 352; Ark.) It
is a delicate matter to charge a judge with wilful abuse of discretion. Whatever may be the
opinion of the supreme court in that respect in this case, this we insist upon with great
earnestness: that there was not in this action by the lower court an exercise of sound
discretion, but, on the contrary, there was the exercise of discretion purely arbitrary and
capricious. It was, in our opinion, such an exercise of arbitrary discretion, as to clearly justify
an appeal, and calls for a decided expression of disapproval from the supreme court. There is
a distinction between sole discretion and sound discretion. We admit that it was in the sole
discretion of the court to try this case with or without a jury. The exercise of discretion in that
matter would not be appealable. But to refuse to try a case without a jury, and then, in the
midst of the trial by jury, after new counsel had come into the case, discharge the jury,
without causethis is an abuse of discretion. If such a matter were in the sole discretion of a
judge, he would arbitrarily discharge a jury, which he thought would probably decide contrary
to his own views, and call another and discharge it in turn at his pleasure. The spirit of the
law cannot be reconciled to such proceedings.
III. The attention of the court is called to the case of Norris v. Clinkscales, 25 S. E. S01
{S.C.).
Norris v. Clinkscales, 25 S. E. 801 (S.C.). There it was said: Discretion' should not be a
word for arbitrary will or unstable caprice. Nor should judicial discretion be, as Lord Coke
pronounced it, a crooked cord,' but rather, as Lord Mansfield defined it, exercising the best
of their judgment upon the occasion that calls for it,' adding that if this discretion be wilfully
abused, it ought to be under the control of this court.' (Rex. v. Young, 1 Burrows, 560.) The
courts and text writers all concur that by judicial discretion' is meant sound discretion guided
by fixed legal principles. It must not be arbitrary or capricious, but must be regulated upon
legal groundsgrounds that will make it judicial. It must be compelled by conscience, and
not by humor, so that when a judge properly exercises his judicial discretion he will decide
and act according to the rules of equity, and so as to advance the ends of justice. What was
the discharging of this jury in the midst of the trial, under the circumstances in this case, and
against the emphatic and continued protest of plaintiff's counsel, if not an act of arbitrary
will or unstable caprice? And was it exercising the best of his judgment upon the occasion
that called for it when the honorable judge discharged a jury without even an indication of
reason or explanation for so doing? Sound discretion is guided by fixed legal principles.
What legal principles, pray, guided the honorable judge's discretion in his sudden and
capricious action? It must not be arbitrary or capricious. Was ever judicial discretion
arbitrary or capricious if not in this case? What were the legal grounds upon which the
lower court regulated its discretion? What considerations moved his conscience to do such
a thing? What was it but humor that moved him; and is this deciding and acting according
to the rules of equity, and so as to advance the ends of justice to refuse to try a cause without
a jury, and then take the case away from the jury in the midst of the trial without any reason
and in a manner which showed only arbitrary will, humor, and caprice?
In re Norrington, 13 Chancery Div. 659, it was laid down that a discretion which is to be
actively exercised must be exercised honestly and intelligently. The grounds for discharging
juries are such as these: Absence of jurors, misconduct of jury, inability to agree, jurors
not coming to an agreement before end of term, illness or death.
charging juries are such as these: Absence of jurors, misconduct of jury, inability to agree,
jurors not coming to an agreement before end of term, illness or death. But in this case no
grounds whatever were assigned for the action of the judge, nor were there in fact any
reasonable or sufficient grounds for discharging the jury. So far as appears there were no
grounds whatever for so doing. If the purposes of justice were to be subserved in any manner
by the discharge of the jury in this case, we should have said nothing about this matter on this
appeal, but, far from this being so, it is perfectly manifest that injustice, not justice, was done.
(Swink v. Bone, 41 Pac. 838.)
IV. The court finds that on March 9, 1901, at Tuscarora, plaintiff and defendant entered
into a partnership agreement, the purpose of which was to operate, prospect for, discover,
locate, lease, and bond mines in Tonopah. Coslett was to give his time and attention to the
business. McKenzie was to pay him forty-five dollars per month until the venture should
become self-sustaining, the first payment to be in advance, and the others to be paid thereafter
on the 16th day of each month, beginning with May 16th. Each party should pay half the
expense, and the profits and losses should be shared equally. This was an express agreement
which contains all the elements of ordinary partnership, and it is established by the findings
of this court. The court concluded as matters of law:
(1) That plaintiff violated and abandoned this agreement by failing and refusing to go to
Tonopah to secure the option on the Clifford mines. (Tr. p. 684.)
(2) That plaintiff violated and abandoned this agreement by failing, without cause, to make
monthly payments. The payment of the forty-five dollars monthly was a condition precedent
to any obligation on the part of the defendant to perform his part of the agreement. (Tr. p.
624.)
(3) That the plaintiff was guilty of laches in enforcing his claim.
(4) That no partnership for any purpose was actually launched, and the contract of
partnership was merely executory.
(5) That there was no union between plaintiff and defendant in working the leased ground;
that plaintiff did not contribute toward the working of the lease.
(6) That defendant abandoned the agreement by taking Atkins into the locations made and
by subsequently entering into an active partnership with Stauts, Wilkerson, and Robbins.
V. The finding that plaintiff wholly neglected, failed, and refused to comply with the
agreement by refusing to go to Tonopah is not sustained by the evidence, and is not supported
thereby.
VI. The finding that plaintiff failed without cause to make the monthly payments of
forty-five dollars is also unsupported by the evidence. (Tr. pp. 18, 23, 620, 622, 623, 647.)
VII. In view of the above the finding is that in partnerships in the mining business one
man cannot sit by and allow another man to make expenditures in the mining business and
not fulfill his part of the agreement, and then, when the venture is shown to be successful, go
in and claim his rights when it is apparent, as it is in this case, that if the venture had not been
successful he would not have been heard from. While McKenzie was lulled into inactivity
by Coslett's letter of April 24th and the Clifford samples, no laches can be imputed to him.
(Kelley v. Boettcher, 85 Fed. 63.) It is only when, in cases of this sort, the delay is without
excuse and prompted by a desire to see how development work will affect the value of the
mine that laches will be imputed to the plaintiff. (Curtis v. Laken, 94 Fed. 256.) If the bar of
the statute is applicable to a suit, but that has not intervened, delay alone will not bar the
action unless it be shown that the defendant has been prejudiced by being lulled into security
thereby. Coslett was not prejudiced nor was any attempt made to show that he was. (18 Ency.
of Law, 2d. ed. 104, and cases cited.)
The lease in these matters referred to was acquired with partnership funds and capital and
is therefore partnership property. In Waring v. Cram, 12 Mg. Rep. 280-285, it is said that the
common fund or capital of the partnership may consist of labor and skill as well as money,
goods, or other property; and if one of the partners employs the partnership property or
effects, he must account to the partnership for the profits.
may consist of labor and skill as well as money, goods, or other property; and if one of the
partners employs the partnership property or effects, he must account to the partnership for
the profits. The existence of the partnership does not depend upon the fact that each party had
in all things complied with the agreement. If the contract has been made, property and labor
contributed, and the partnership business commenced and carried on to any extent, there is a
partnership. And it is a partnership even though McKenzie did not send a check for forty-five
dollars May 15th and during the subsequent months, and even though he did not pay one-half
of the expenses. No demand was ever made by Coslett for the subsequent month's wages and
expenses. (Abbott v. Smith, 32 Pac. 845; Reed v. Meagher, 9 L. R. A. 466, 24 Pac. 681;
Continental Divide M. Co. v. Bliley, 46 Pac. 634; Sears v. Collins, 5 Colo. 492, 12 Mg. R.
400.)
VIII. The fact that Coslett took a lease with Stauts, Wilkerson, and Robbins does not
deprive McKenzie of his equitable interest in said lease. Neither did the taking of Atkins into
the mining locations terminate the partnership agreement. (Abbott v. Smith, 32 Pac. 843; 4
Colo. 567; Raymond v. Johnson, 61 Am. St. R. 908.)
IX. It is true that the partnership in this case could be terminated by Coslett at pleasure,
but notice must be given to McKenzie. No notice was given in October after the lease was
taken. The notice must be communicated and without fraud. The circumstances must show an
absolute abandonment as to future enterprises; this is not shown by Coslett's letter of April
24th. That letter shows only a temporary stoppage of prospecting, while Coslett worked (for
wages), to be resumed later. (Abbott v. Smith, 32 Pac. 845; Marston v. Gould, 69 N. Y. 224;
Howell v. Harvey, 5 Ark. 270; Fletcher v. Reed, 131 Mass. 313; Chadbourne v. Davis, 13
Pac. 721; 11 Lindley on Partnership, 571; George on Partnership, 395.)
X. Even if the partnership is terminated, it could not be terminated so as to interfere with
rights and equities which had already accrued to McKenzie. (Eagle v. Bucher, 12 Mg.
Rep. 334; Lawrence v. Robinson, 4 Colo. 567.) The court erred in refusing to find that, after
acquiring said lease, defendant sent a lot of worthless samples of ore to plaintiff at Tuscarora,
and also in refusing to find that said samples arrived in Tuscarora just as plaintiff was about
to set out for Tonopah in obedience to Coslett's previous request, and in refusing to find that
lease No. 30 included but one hundred feet in length along the Mizpah vein and the adjoining
leases on each end of the above-mentioned lease were showing large quantities of valuable
ore, for the reason that said requested findings were supported by the evidence and tended to
show the fraudulent design of the defendant to prevent plaintiff from going to Tonopah and
insisting upon his rights in the lease.
XI. The court erred in sustaining defendant's objection to the following question
propounded by the plaintiff: Question by FarringtonIn that conversation in relation to the
agreement on your part, as you testify, not to prosecute the suit, was there anything said about
what his testimony would be? A.Yes, sir. Q.What did he say? Mr. CookeThat is
objected to on the ground that it is incompetent, irrelevant, and immaterial, and not proper
redirect examination, and that it is hearsay. The CourtThe objection is sustained. Mr.
FarringtonWe take an exception to the ruling of the court for the reason that the
conversation was drawn out by the defendant on cross-examinationa portion of itand we
are entitled to the remainder of it. Said ruling was an error for the reasons set out in the
exceptions.
XII. The court erred and abused its discretion in discharging the jury herein. The jury had
been selected, impaneled, and sworn to try the cause, and had heard a portion of the evidence,
and no sufficient reason was given for the discharge of said jury. It was an abuse of
discretion, preventing plaintiff from having a fair trial. The order of the court violates the
right of plaintiff to a trial by jury. Said jury was discharged by the court without the consent
of the plaintiff.
Cooke & Ayres, for Respondent:
I. Much of counsel's brief is devoted to an attempt to show the lower court guilty of an
abuse of discretion in discharging the jury, and on page 12 of their opening brief they say:
The court deliberately and arbitrarily discharged the jury. The statement is incorrect as is
shown. (Tr. pp. 95-99.) The facts partially disclosed by the transcript, and which moved the
court to discharge the jury, are that counsel for defendant insisted on the jury being kept
together; that the court house and jury apartments were then undergoing or about to undergo
repairs, and were totally unfitted for occupancy, etc. The court assigned no special reason,
thinking, no doubt, that the unreasonable conduct of counsel under the circumstances and the
conditions as they existed with reference to the great hardship and probable irreparable
damage with jury was sufficient reason. The second ground, that the right to a jury is
guaranteed by the constitution, is entirely too broad and therefore inaccurate as far as the
same is attempted to be applied to the case at bar. The authorities are all to the effect that the
right to a trial, as phrased in the constitution, refers 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.) The common law
guaranteed no right to trial by jury in equity cases, and on this point we deem it unnecessary
to cite authorities. The action of the lower court in granting a jury, and because defendant
made what, under the circumstances, was a most unreasonable demand, the court's discharge
of the jury is certainly not as unreasonable or arbitrary as the action of the court in refusing to
allow a jury, when defendant in person twice demanded one, but of such ruling this court in
Lake v. Tolles, 8 Nev. 290, has used the following language, quoted approvingly: There
must be an action at law, as contra-distinguished from a suit in equity and from a special
proceeding, or a criminal action and an issue of fact joined therein upon the pleadings, before
a jury trial can be claimed as a constitutional right. (Koppikus v. Commissioners, 16 Cal.
249.) The general rule is stated to be: The constitutional guaranty of the right of trial by jury
does not extend to the trial of equity causes; and the legislature may provide that all cases
in equity shall be tried without the intervention of a jury."
to the trial of equity causes; and the legislature may provide that all cases in equity shall be
tried without the intervention of a jury. (6 Am. & Eng. Ency. Law, 2d ed., p. 975, note 3; p.
976, and cases cited in foot notes; 31 Cent. Dig. Col. 202, secs. 35-83; see, also, 31 Cent.
Dig. Col. 205, sec. 39, and cases digested.)
II. The two principal propositions upon which the court based its decree in favor of
defendant are:
(1) That the arrangement or agreement entered into between plaintiff and defendant was an
executory agreement to become mining partners;
(2) Gross laches on the part of plaintiff in asserting his claim of interest, if any he had.
The first proposition necessarily presupposes a finding that there was an agreement
between plaintiff and defendant to become partners in respect to leasing. This was
specifically denied by defendant, and the evidence in support of plaintiff on that point is
conflicting and utterly unsatisfactory from any standpoint. In a case like this it is not enough
that the plaintiff prove his case by a mere preponderance of the evidence, but that his case
must be proven by evidence so satisfactory and convincing as to leave no reasonable doubt,
or, as some courts have expressed it, to banish all reasonable doubts from the minds of the
court. In support of our contention that a mere preponderance of the evidence is utterly
insufficient to entitle plaintiff to recover in a suit of this and kindred forms, we quote from a
case where the facts were very similar to those in the case at bar. (Rice v. Rigley, et al., 61
Pac. 290 (Idaho); Pom. Eq. Jur., sec. 1040, and cases cited in notes; Mitchell v. O'Neale, 4
Nev. 504, 514, 515; Frederick v. Hass, 5 Nev. 389, 394; 47 Cent. Dig. Col. 688, sec. 137,
and cases there digested.)
III. That the point that plaintiff's complaint is devoid of equity, and that in such cases the
objection to the same is treated as the objection ordinarily spoken of, namely, that the
pleading does not state facts sufficient, etc., we cite Bell v. Hudson, 14 Pac. 793 (Cal.):
Laches deprives the plaintiff of the right to appeal to a court of equity, and the court may
refuse to entertain a suit brought after unreasonable delay, although defendant has not in his
answer alleged that the claim is stale.
although defendant has not in his answer alleged that the claim is stale. (Harris v. Hillegass,
(Cal.) 4 Pac. 987.) That laches need not be pleaded is established by the Supreme Court of
the United States. (Sullivan v. Railroad Co., 94 U. S. 806; Rose's Notes, vol. 9, 197, where
doctrine of the principal case was applied, approved, etc., in exhaustive note.)
IV. The complaint is fatally defective in our opinion in another particular. After
proceeding to state facts which clearly establish, prima facie, a mere executory agreement
between plaintiff and defendant to become mining partners in locating and leasing mines and
operating same, the complaint proceeds to show affirmatively that in truth and in fact such
agreement was never executed and the partnership launched. It was the defendant alone who
acquired an undivided leasehold interest, etc., in and to the mining premises in dispute, and it
is affirmatively established that plaintiff never joined or cooperated with the defendant in the
working of the lease, and that it shows the defendant took the lease in his own name and
worked the same independently of and in hostility to the plaintiff and plaintiff's alleged claim.
(Prince v. Lamb, 60 Pac. 691.) It is true plaintiff himself alleges this in substance when he
charges defendant with fraud, etc., in connection therewith, and the effect of all of this is that
the complaint itself shows a condition of things on which a court of equity cannot take hold in
this form of action. (Johnstone v. Robinson, 16 Fed. 905.)
V. We believe the case of Prince v. Lamb, infra, to be in point here. There the defendant
received fifty dollars from plaintiffs under an agreement whereby defendant was to go to
Alaska to prospect for and acquire and work mines jointly for himself and plaintiffs.
Defendant went to Alaska, located mining claims there, and in pursuance of his contract
wrote to plaintiffs to come there and assist him in accordance with the agreement. Plaintiffs
received this letter and went up as soon as possible to Alaska, but defendant then refused to
allow them to stand in interest with him or participate as he had at first agreed. Of this the
court, on page 691, says: It appears that the defendant refused to carry out or execute this
agreement for working the mines together, and therefore no mining partnership was actually
perfected."
no mining partnership was actually perfected. (Prince v. Lamb, 60 Pac. 690.)
VI. Concluding this phase of the matter, we submit the complaint shows gross apparent
laches wholly unexplained or unexcused away, and that it shows affirmatively that no
partnership of any kind was actually perfected or launched, and, admitting the facts as
alleged, plaintiff cannot maintain this action, but his remedy is at law for damages for a
breach of contract.
VII. The finding of the lower court as to agreement was in effect an agreement to become
mining partners. The relations between Coslett and McKenzie could not be a grubstake, as
that simply means cotenancy without power in field partner to work the mines further than
perfect location. He is without power to contract debts binding on home partner or cotenant.
Besides, it is essential to a grub-stake that the property be acquired by means of the
grub-stake and pursuant to the grub-stake contract. Several parties grub-staked a man to go
to Alaska to prospect for mines on shares. His authority to work such mines was not clearly
proved. When his funds were exhausted, he borrowed money for further prospecting and
sought to make his associates in the contract liable as partners. It was held that there was no
such partnership relation as would confer upon the prospector an implied power to bind his
associates in the debt contracted. (2 Lindley on Mines, 2d ed., sec. 799, citing Hartney v.
Gosling, (Wyo.) 68 Pac. 689.)
VIII. The evidence and finding of the court is to the effect that the defendant had no
power to contract debts binding on the plaintiff and that the lease was not acquired by means
of the forty-five dollars, nor in pursuance of the agreement, but in violation of it, hence there
can be no grub-stake relationship, and besides, if there were, this action could not be
maintained, as cotenancy does not affect partnership. The relation cannot be a special or
limited partnership, as none of the requisite steps are shown to have been taken. (Sec. 2773,
et seq., Comp. Laws. Nev.)
IX. The general rules providing what constitutes a mining partnership are also declared by
Lindley. Where several owners unite and cooperate in working a mine they form what is
termed a mining partnership, which is governed by many of the rules relating to an
ordinary partnership." {2 Lindley on Mines, 2d ed., sec.
owners unite and cooperate in working a mine they form what is termed a mining partnership,
which is governed by many of the rules relating to an ordinary partnership. (2 Lindley on
Mines, 2d ed., sec. 796.) A mining partnership exists when two or more persons own or
acquire a mining claim for the purpose of working it and extracting the mineral
therefromactually engage in working the same. (Id., sec. 797, note 2.) Where parties took
a lease on a mine and cooperated in the working of it it was held they were mining partners,
notwithstanding they did not own the mine, but the rule of cooperative working of the mine
as essential to making them mining partners was clearly recognized and applied. (Manville v.
Parks, (Colo.) 2 Pac. 212.)
X. We submit the authorities abundantly establish the proposition here contended for by
respondent that a mining partnership consists of two essentials: (1) Two or more parties
owning or acquiring a mine for the purpose of working it to extract the mineral therefrom. (2)
Actually uniting in working the mine together for the purpose of extracting the mineral
therefrom. If either of these essentials are absent, and particularly the last, we contend that
there can be no mining partnership regardless of the agreement, as, until work is begun by or
on behalf of the parties, the agreement remains executory and unconsummated, and on this
point we cite: Anaconda M. Co. v. Butte M. Co., (Mont.) 43 Pac. 924-6; Noland v. Lovelock,
1 Mont. 224.
XI. The whole case, pleadings, testimony and evidence and conduct of both parties show
conclusively no consummation of the agreement. If the blame for this rests with McKenzie,
he is, of course, entitled to nothing in any form of action. If the blame rests with Coslett, then
McKenzie has simply mistaken his remedy, and, instead of a suit in equity for dissolution of
something that does not exist to be dissolved, his action would be in law for damages. (Prince
v. Lamb, 60 Pac. 690; Powell v. McGuire, 43 Cal. 11; Johnstone v. Robinson, 16 Fed. 905;
West v. Russell, 16 Pac. 382; Storey on Part., secs. 269, 274, 277, 290; Meagher v. Reed, 24
Pac. 685; Groves v. Tallman, 8 Nev. 180.)
XII. The lower court found that the money represented by the $45 check was exhausted
long before Coslett took the lease, and, as matter of fact, long before he arrived at
Tonopah, and that the few tools which Coslett had secured through McKenzie from the
Dexter blacksmith shop had been either lost, misplaced, or otherwise disposed of prior to
taking the lease, so that nothing furnished by McKenzie was actually used on account of
the lease.
by the $45 check was exhausted long before Coslett took the lease, and, as matter of fact,
long before he arrived at Tonopah, and that the few tools which Coslett had secured through
McKenzie from the Dexter blacksmith shop had been either lost, misplaced, or otherwise
disposed of prior to taking the lease, so that nothing furnished by McKenzie was actually
used on account of the lease. But it is argued by counsel that the check itself, being credited
in on a bill against the lease some days before June 1st, shows McKenzie contributed to the
lease expense. The answer to this is that if McKenzie is telling the truth in his complaint and
testimony the check belonged absolutely to Coslett as his first month's half-wage to April
15th, and, if so, it can in no way affect McKenzie's rights as to what the check was directly
applied as it was Coslett's money and he could do as he pleased with it. Either this is correct
or McKenzie's whole case must fall. He cannot claim in one breath to recover on strength of
half-wage agreement and then to say in substance in the next breath that, if the court
disbelieves his story on that point, to allow his claim on strength of actual application of the
check. In Raymond v. Johnson, 61 Am. St. Rep. 908, the parties formed a prospecting
agreement. Both went out in pursuance of it and worked together. Raymond prospected one
side of a hill while Johnson prospected the other side. On the other side of the hill Johnson
found a mine, and falling in with one Whitcomb located him in and excluded Raymond, who
all this time was industriously and diligently prospecting on the opposite side of the same hill.
The court found the location of Johnson's was made while the agreement existed and while
both were acting together under it, and that Johnson, in order to cheat and defraud Raymond,
had made a conveyance and a bond of his interest without knowledge or consent of Raymond,
and Raymond under those facts was decreed to be an owner of an undivided one-half of
Johnson's interest in proceeds of conveyance and bond. The only defense set up was the
statute of fraud. Partnership, abandonment, etc., was not an issue at all. The court simply held
that the statute of frauds did not apply as the mine was located while the agreement existed
and both parties engaged in work under it.
ment existed and both parties engaged in work under it. If defendant in the case at bar were
urging the statute of frauds as a defense the case supra might be in point. Counsel says that
the fact that forty-five dollars is a small sum of money cannot avail the defendant. This
statement is not borne out by authority. (Prince v. Lamb, (Cal.) 60 Pac. 690-2.)
XIII. On April 12, 1901, Coslett acquired the lease. The amount represented by
McKenzie's check had been spent a number of times over, prior to this date. Coslett and his
colessees continued working the ground. The undisputed evidence and facts are that the same
ground had been formerly worked by others, who failed to find ore after doing considerable
work and abandoned it. It is further shown that Coslett and colessees had practically nothing
when they started work, which condition continued until returns came, which was August
20th (August 10th given as date in finding is clerical error; see Tr.); that during this time they
borrowed and made shift as best they could; that finally things became so desperate that one,
at least, had to quit work on lease and work for wages; that at this time it was practically
decided to quit the lease altogether. This was shortly before June 1st. Ore was found first
about June 1st. From then on an average of fifteen men (Tr. pp. 292-7) were employed at
wages of four dollars per day. Tools, powder, fuse, etc., were approximately twice as high
there as elsewhere in the state. The lessees were compelled to go into debt, borrow money,
strain their individual and collective credit to carry on work. (Tr. pp. 110-112.) We think
evidence shows the lease did not become self-sustaining even on August 20th, as returns were
insufficient to pay back debts for some time after. From April 12th to January 16th of next
year plaintiff made no assertion of his alleged rights. The conditions in Tonopah at that time
were such that anyone having any sort of a claim, if acting in good faith, would have not
neglected it. It is no excuse for McKenzie to blame Coslett for not notifying him. Laches is
excused only by acts of positive fraud or concealment amounting to fraud. Besides it is
plaintiff's laches and not Coslett's which here affects his right of recovery. But even if such
were shown here, unless plaintiff can show further that he asserted his rights, etc., within
a reasonable time after discovery, McKenzie could not be deceived in any event after May
1st when he learned from Sewell that Coslett was in a lease and hard pressed for money.
plaintiff can show further that he asserted his rights, etc., within a reasonable time after
discovery, McKenzie could not be deceived in any event after May 1st when he learned from
Sewell that Coslett was in a lease and hard pressed for money. Besides, if Coslett had any
object in deceiving McKenzie he would have done or attempted doing so just before or when
he took the lease. Instead of that, two days before taking the lease, he writes that Tonopah
was a wonderful camp; I wish you were here. If you can do anything you had better come
on. If Coslett had realized on April 24th the necessity of protecting himself by deceiving
McKenzie, he must have realized it to the same extent on April 12th, and so arranged by
waiting three days until his alleged half-wage month was over, or by having his interest in
the lease taken in the name of some third party, which expedient is quite common; that he
could have waited three days or three weeks is certain, as there was nothing of bonanza
feature about the lease.
XIV. The feature of an unlettered and ignorant prospector like Coslett going down into a
desert without stationery and making duplicate bills to one who furnished a $45 check as
against Coslett's time, outfit, supplies, wagon, etc., is so unreasonable that it deserves ridicule
rather than argument. But when McKenzie went to Tonopah, ostensibly to pay bills, it was in
reality to find out if the lease had produced enough to pay him to sue. Instead of paying bills
he industriously devoted his time to finding out from Oddie, et al., how much Coslett's
interest had produced. The proper construction of contractual relations are radically different
in proportion as to whether the subject-matter will or will not pay, according to plaintiff's
logic. It was about this time that McKenzie made his unhallowed and unholy bargain with
Stauts whereby Stauts was to furnish or aid McKenzie with testimony against Coslett, and in
return McKenzie was to aid Stauts in another case in which a receiver had been appointed
over the same lease, etc. Then after this miserable transaction equity-seeking McKenzie goes
home to Tuscarora, and the next we hear of him he procures the appointment of another
receiver for property he knew to be already in the hands of a receiver, for the purpose and
object, as we view it, of squeezing Coslett into submission and compromise.
hands of a receiver, for the purpose and object, as we view it, of squeezing Coslett into
submission and compromise. Summed up, the facts, evidence, and conduct of McKenzie
conclusively show that he intentionally kept in the background and allowed defendant to go
on and make expenditures in the lease operations and struggle along as best he could from
April 12th to August 20th. The one-half expense arrangement really dated from March 15th,
the lease expenses from April 12th, the half-wage feature from May 16th to August 16th, at
least. McKenzie's action in saying nothing and, worse still, in doing nothing during this
period operated to mislead and deceive Coslett, and, to quote from counsel's brief,
paraphrasing, McKenzie is required to use the utmost good faith in his dealings with Coslett.
He will not be permitted to pursue a course of conduct which conveyed the idea that he
claimed no interest while lease was precarious, and then complain that Coslett denies his right
to participate in the profits made exclusively by the courage, efforts, and enterprise of Coslett.
The seventh finding of the court is amply supported by the evidence of McKenzie's own
conduct, independent of the testimony, and the conclusion of law is likewise supported by the
most respectable line of authorities. A court of equity will not aid in enforcing stale demands
where the party has been guilty of negligence and has slept upon his rights. (Godden v.
Kimmel, 99 U. S. 201; Piatt v. Vattier, 32 U. S. 405.) As this rule is elemental, we deem
further citation unnecessary. A party shall not claim the benefits or aid of a court of equity
who has been guilty of laches in protecting his rights unless that laches may be imputable to
the party claiming against him. (Dickerman v. Burgess, 20 Ill. 266.)
XV. Laches is not a technical defense. It goes to the merits of the cause, or, as some
judges have expressed it, to the very vitals of the action. As a defense it is as old as the
English court of chancery from which we derive our equity jurisprudence. Lord Chancellor
Camden, in speaking of the application of laches, used the following language which has
been used again and again by the Supreme Court of the United States and by text writers
without quotation marks: "A court of equity is never active in giving relief against
conscience or public convenience, and has always refused its aid to stale demands
whenever a party has slept on his rights and acquiesced for a great length of time.
marks: A court of equity is never active in giving relief against conscience or public
convenience, and has always refused its aid to stale demands whenever a party has slept on
his rights and acquiesced for a great length of time. Nothing can call forth this court into
activity but conscience, good faith, and reasonable diligence. Where these are wanting the
court is passive and does nothing. Laches and neglect are always discountenanced and,
therefore, from the beginning of this jurisdiction there has always been a limitation to suits in
this court. It is because laches goes to the very merits of this action that whenever and
however its existence is manifested to the court a court of equity will treat it as a bar to the
granting of equitable relief. Hence, if laches appear on the face of the bill, the question may
be raised on demurrer. (Badger v. Wall, 2 Wall. (U. S.) 806; Hinchman v. Kelly, 54 Fed. 63;
Curtis v. Laken, 94 Fed. 251; Bell v. Hudson, (Cal.) 14 Pac. 791.) The laches in Curtis v.
Laken was of about one year's duration and under circumstances far more excusable than in
the case at bar, and, besides, plaintiffs there excused themselves on the ground of a
partnership agreement lost for some time, and suit could not be safely maintained without this
document. 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. (South End M. Co. v. Tinney, 22 Nev. 36.)
XVI. The principle laid down in the case supra, that a mere assertion of a claim,
unaccompanied by any act to give it effect, will avail the party nothing as against laches, has
been recognized and approved by the Supreme Court of the United States, in the following
language: The excuse of the delay is that complainant protested against Casilear's claim, and
notified him that he would not submit to the sale; but the mere assertion of a claim,
unaccompanied by any act to give it effect, cannot avail to keep alive a right which would
otherwise be precluded."
claim, and notified him that he would not submit to the sale; but the mere assertion of a
claim, unaccompanied by any act to give it effect, cannot avail to keep alive a right which
would otherwise be precluded. (Mackall v. Casilear, 137 U. S. 556; 11 Law Ed. 178-182.)
That assertion of a claim means asserting his right before the court, see 18 Am. & Eng.
Ency. Law, 2d ed., p. 106, note 2. These authorities, in our opinion, effectually dispose of the
contention of the learned counsel for appellant here that the language of McKenzie to Coslett
in October, 1901, where is my interest? or what interest have I got in the lease? was an
assertion of his claim. The assertion in fact was not made until January 16, 1902, when suit
was filed, and hence his laches continued from even before beginning of lease until after its
close. If there could be a grosser or more flagrant case of laches on a mining lease having the
limited time of the one here, we confess we are unable to imagine it, and, even if McKenzie
had purposely sought to make his laches as gross as possible, we are unable to suggest
anything he could have done to make it so in addition to his course in this case. But, so far
from McKenzie's actions here prior to suit being filed constituting an assertion of his claim,
it has been held: The mere institution of a suit does not, of itself, relieve a person from the
charge of laches, and, if he fail to prosecute it with diligence, the consequences are the same
as if it had never been instituted. (Johnston v. Standard M. Co., 148 U. S. 371; 13 Law Ed.
585.)
XVII. That plaintiff's remedy, if any he has, is not in equity for a dissolution and
accounting, but at law for damages for breach of contract. That plaintiff was guilty of gross
laches, totally unjustified, unexcused, and inexcusable, and that the same precluded his
recovery.
XVIII. That the findings of the court, excepted to and complained of by appellant, are
supported by the evidence, and that the conclusions of law are supported by the authorities.
Mack & Farrington, for Appellant, in reply:
I. The granting or refusing a jury trial in an equity case is a matter of discretion.
is a matter of discretion. This is not an arbitrary discretion. It is a legal discretion. The court is
bound to exercise this discretion reasonably and properly. An abuse of this discretion is
ground for appeal and is a matter which should be reviewed in the appellate court. (Townsend
v. Graves, 3 Paige, 457; Belknap v. Trimble, 3 Paige, 601; Harris v. Mackintosh, 133 Mass.
231; Setzer v. Beale, 19 W. Va. 289.)
II. It is a very familiar rule that a trust in land cannot be created except by an agreement in
writing, or, in case there be no agreement in writing, by parol evidence where the agreement
has been partially executed. The evidence must be clear and convincing as to the existence
and the terms of the contract. It is not necessary that the contract should be proved with that
degree of moral certainty which is termed beyond a reasonable doubt.' It is sufficient if the
subject-matter and the material terms of the contract can be determined with reasonable
certainty from all the evidence. If the court can ascertain from all the proofs what the contract
really is, he must decree its execution. It is plainly the habit of the English courts, when a part
performance has been fully made out, to establish the contract, if it can possibly be done,
although the evidence may be quite conflicting and even uncertain. (Pomeroy, Specific
Performance, sec. 137.) The rule goes no further than to require clear and convincing proof of
the making of the contract and of its terms. The rule is not a blanket to be stretched over the
whole case; not one of the multitude of authorities cited by the defendant so holds. After the
contract and its terms have been clearly established, the remaining issues are to be determined
by the ordinary rule of preponderating evidence in civil cases. (See cases cited by defendant.)
III. There is no allegation in the complaint that defendant took the lease in his own
name, or that there was any disavowal or repudiation of plaintiff when the lease was
taken; on the contrary, the allegations of the complaint are that defendant acquired an
undivided lease-hold interest; that the same was so acquired in pursuance of said agreement
between plaintiff and defendant and for the use and benefit of plaintiff and defendant, and
that said defendant denies" {not denied) this plaintiff's right, title, and interest in said
lease, and in the prayer for judgment, which is incorrectly quoted on page 31 of
defendant's brief, the following language occurs.
denies (not denied) this plaintiff's right, title, and interest in said lease, and in the prayer for
judgment, which is incorrectly quoted on page 31 of defendant's brief, the following language
occurs. The brackets include the language omitted by counsel: [The plaintiff herein prays
that he have judgment against the said defendant;] that plaintiff is entitled to one-half of all
the profits accruing and arising to that interest in said lease No. 30 which has heretofore stood
in the name of said Coslett [or to which he is entitled] and to one-half of all the profits which
now [have] or hereafter may accrue to said Coslett under and by virtue of said lease; that an
accounting may be taken of the value of all ores taken out of said Mizpah vein by said Coslett
[and his cotenants under and by virtue of said lease]. We challenge counsel to point out any
allegations in the complaint which show that the plaintiff's cause of action accrued nine
months, or any other number of months, or even one month, before the commencement of
this action. There is absolutely no showing of laches on the face of the complaint. Counsel's
premises are not only desperately precarious, but they are utterly false; and the only
irresistible conclusion to be drawn from their argument is that neither they, nor either, nor
any of them have ever read the complaint.
IV. The cause of action set out in the complaint is not barred by the statute of limitation.
No laches appears on the face of the pleadings. It is therefore unnecessary to set out facts
excusing any alleged laches. The burden is on the defendant, Coslett, to show by his answer
and prove the facts which constitute the pretended laches. (Boynton v. Haggart, 120 Fed.
819-830; Kelley v. Boettcher, 85 Fed. 55-62; Beckman v. Hudson, 35 Fed. 3-11.)
V. The complaint does not show a mere executory contract. The complaint will speak for
itself. We insist that it shall be interpreted, not by garbled quotations, but by an actual
inspection and consideration of the whole document itself. It affirmatively shows that the
parties agreed that a partnership should be formed for certain purposes and that in pursuance
of said agreement the parties performed certain acts and proceeded to do the very things
which they had agreed to.
agreed to. This does not constitute a mere executory agreement. The portions of the complaint
which counsel have so carefully omitted from their quotations show that the lease was taken
in pursuance of the partnership agreement, not in hostility to it. The whole of counsel's
argument, from page 31 to page 39, inclusive, of his brief, being founded upon the premises
which in their most essential elements have no foundation in fact, must fall to the ground.
VI. The proposition that there could be no general partnership in the business of acquiring
and working mines and leasing mines is certainly not lacking in novelty. (Congdon v. Olds,
46 Pac. 262.) The agreement between Coslett and McKenzie provided for the sharing of the
profits and expenses. McKenzie was bound thereby to pay his share of the expenses. It was
understood that he should pay such share whenever Coslett presented the bills therefor. The
agreement here certainly presents all the elements of a common partnership, including the
liability of each partner for partnership obligations. (Decker v. Howell, 42 Cal. 642; Barringer
and Adams on Mines, 753; 11 Snyder on Mines, 1516-1549; 107, note, Cal. Code, 2512; 11
Lindley on Mines, 1567; Abbott v. Smith, 32 Pac. 843; Lawrence v. Robinson, 4 Colo. 567;
Hartully v. Gosling, 68 Pac. 1122; Stewart v. Adams, 26 Pac. 971.)
VII. The court found that there was an agreement to form a partnership. The agreement
contemplated that the parties should not only engage in business, but that they should share
the profits and losses. Such an agreement constitutes a partnership. (Sargent v. Collins, 3
Nev. 264.)
VIII. If this be regarded as a grub-stake contract, the plaintiff is entitled to recover, even
though there was no joint working of the mine by Coslett and McKenzie: (1) Because the
lease was acquired April 12, 1901, four days before the first month's wages had been earned;
Coslett's time belonged to the partnership; Coslett had never, at that time, notified McKenzie
that the partnership was abandoned. (2) Because the $45 checkthe identical money which
was paid by McKenzie to Coslettwas used by Coslett to pay for the first supplies used on
the lease. The finding of the court that Coslett took the lease with his own means is
misleading because there is no testimony that the acquisition of the lease cost anything
except Coslett's time, which belonged to the partnership.
because there is no testimony that the acquisition of the lease cost anything except Coslett's
time, which belonged to the partnership. The finding of the court and the statements of
counsel to the effect that the forty-five dollars was fully exhausted before Coslett took the
lease are simply idle. The very identical money paid by McKenzie to Coslett was used, and
the whole of it was used in acquiring and providing the first supplies for the lease. The lease
was acquired with partnership time and labor and partnership money during the continuance
of the partnership and belongs to the partnership. (Moritz v. Lavelle, 77 Cal. 10, 11 Am. St.
R. 229; Lawrence v. Robinson, 12 Mg. R. 388; Johnson v. Robinson, 12 Mg. R. 396; Waring
v. Cram, 12 Mg. Rep. 280-285; Harris v. Hillegass, 54 Cal. 463; Craw v. Wilson, 22 Nev.
389; Emery v. Mason, 75 Cal. 222.) Grub-stake contract is a partnership. (Berry v.
Woodburn, 40 Pac. 804; Abbott v. Smith, 32 Pac. 843; Bulcher v. Mulverhill, 12 Mg. R. 350;
Lawrence v. Robinson, 12 Mg. R. 395; 4 Colo. 567; Welland v. Huber, 8 Nev. 203; 13 Mg.
R. 363.)
IX. Counsel's fatal objections to this contention are threefold (Brief, 46, 15), to wit:
First, their relation in these claims were simply tenants in common until, in the language of
Judge Bigelow, they engaged in working the property to extract mineral. In the case of
Vietti v. Nesbit, 22 Nev. 396, referred to by counsel, Justice Bigelow says: 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. Of course, under such
circumstances Justice Bigelow could not do otherwise than hold the parties cotenants. In the
case at bar Coslett and McKenzie had entered into a partnership agreement for the purpose,
among other things, of acquiring and locating mining claims and in pursuance of that
agreement Coslett acquired a two-thirds interest in four claims. These claims were
partnership property. (Waring v. Cram, 12 Mg. R. 286; George on Partnership, p.
Partnership, p. 120, note 82; Dorsey v. Newcomer, 53 Pac. 557; Roberts v. Eldred, 73 Cal.
397; Hogle v. Lowe, 12 Nev. 295.)
X. Secondly, Coslett and McKenzie never did actually engage in working these claims
together or otherwise. No authority can be found which will hold that property obtained with
partnership money ceases to be partnership property because the owners do not work it jointly
or together. Counsel's position cannot be correct, unless it be true that there can be no
partnership for acquiring, leasing, locating, working, and developing mines except there be an
actual working of the mines by both parties.
XI. A partnership at will continues until it is dissolved by the act of one or both of the
parties. (Spears v. Willis, 45 N. E. 849, 151 N. Y. 443.) In order to dissolve the partnership
Coslett should have given a clear and explicit notice of his intention to abandon and terminate
the relationship. (See appellant's opening brief, p. 27; Eagle v. Bucher, 12 Mg. R. 334;
Crawshay v. Maule, 11 Mg. R. 230; 11 Snyder on Mines, sec. 1604.) In a partnership at will
either party may withdraw when he pleases, provided he acts without fraudulent purpose and
in good faith and at a reasonable time. (Fletcher v. Reid, 131 Mass. 313; Howell v. Harvey, 5
Ark. 270.) It is not good faith when one of the partners at will dissolves the partnership in
order to appropriate to himself profits, advantages, or property which should go to the firm.
(Howell v. Harvey, 5 Ark. 270; 11 Lindley on Partnership, 572.)
XII. Counsel says Coslett's evidence show that he sent a distinct notification to McKenzie
cutting loose from McKenzie. (Brief, 58, 18.) With all due respect to counsel we must say it
shows the contrary. An examination of the peculiar testimony of Coslett in relation to the
letter makes it in the highest degree probable that he never wrote any such letter. He was
never able to give any testimony in relation to the letter which was not contradictory, and the
court finds that he never wrote such a notice as he claims to have written on April 7th. (Tr.
650, 14 and 66, 21.)
XIII. While McKenzie was lulled into inactivity by Coslett's letters and the worthless
Clifford samples, no laches can be imputed to him.
can be imputed to him. The conversation with Sewell and Messimer did not lead him to doubt
his partner. The evidence is that McKenzie refused to believe or suspect that he was
attempting to defraud him, especially in a case like this where the confidential relationship of
partners existed. Laches does not begin to run until discovery of the fraud, but suspicion is
not knowledge. The suspicion may call for investigation, but it is not knowledge. McKenzie
talked with Sewell, but thought there must be a mistake. He talked with Messimer early in
June, but placed little reliance in what he heard. (See Tr. 139; McKneely v. Terry, 33 S.W.
953, 958; Marburg v. McCormick, 25 Kan. 38-43; Kilbourn v. Sunderland, 130 U. S.
505-519.) It must be remembered that this case does not involve equities or rights of third
parties; it is simply a question of liability between the original parties. The relation between
the parties is that of partnersa confidential and fiduciary relation. McKenzie was justified
in being slow to believe wrong of his partner. (Champion v. Woods, 12 Am. St. R.128.)
XIV. The relation of Coslett and McKenzie is a partnership. Coslett held a one-third
interest in the lease as a partner. This was an express trust, and it is presumed to continue
until it is repudiated, but when the trust is repudiated and the knowledge of the repudiation is
brought home to the cestuis que trustent, then the doctrine of laches will apply. This
repudiation did not occur until the last of October, 1901. (Curtis v. Laken, 94 Fed. 255;
Naddo v. Bardon, 51 Fed. 493-498.) McKenzie cannot be held to be guilty until after the
partnership was dissolved. The requisite notice to dissolve was not given until October, 1901,
when McKenzie met Coslett in Tonopah. (Harris v. Hillegass, 54 Cal. 463-468.)
XV. Laches does not apply when the defendant has acted in open hostility to
complainant's rights and has not been led by apparent acquiescence on the complainant's part.
In such a case no consideration of good faith requires that the plaintiff should open the legal
warfare at the earliest opportunity; when a hostile attitude is taken the complainant is
expected to be wary and deliberate in choosing his opportunity.
tunity. Coslett was in no way prejudiced by the delay. (Beale v. Chase, 31 Mich. 533; Ulman
v. Clark, 75 Fed. 872.)
XVI. Laches cannot be successfully maintained as a defense when it appears, as in this
case, that the defendant had contributed to the delay. (Richards v. Hatfield, 40 Neb. 885.)
Where there has been no change in the defendant's position by reason of the delay, the
doctrine of laches will not be applied. In the case at bar there has been no change in Coslett's
possession; he has incurred no expense which he would not have incurred if there had been
no suit. (Gibbons v. Hoag, 95 Ill. 69; Morrill v. National Bank, 173 U. S. 135; Wheeling B. &
L. Co. v. Bymann Brewing Co., 90 Fed. 194; Hamilton v. Dooley, 15 Utah, 292; Newman v.
Newman, 152 Mo. 415; Nudd v. Powers, 136 Mass. 277, delay of three years; Platt v. Platt,
58 N. Y. 646, delay of seven years in bringing suit to set aside deed on the ground of undue
influence; Townsend v. Vandewater, 160 U. S. 171-185, delay of nine years; Park v. Bethel
Hotel Co., 31 L. R. A. 713.)
XVII. It is only when the complainant has slept on his rights so long that, if relief be given
him, great and serious wrong will be done the defendant that laches will be a complete
defense. (Daggers v. Van Dyck, 37 N. J. Eq. 137; Pacific R. R. v. Atlantic R. R. Co., 20 Fed.
289; London and San F. Bank v. Dexter Horton Co., 61 C. C. A. 523, 126 Fed. 593.)
XVIII. The court erred in finding that the payment of the forty-five dollars per month and
one-half of the expense was a condition precedent to any obligation on the part of the
defendant to perform. The contract of partnership was entered into and the parties contributed
money and labor thereto. The partnership business, to wit, locating mining claims, etc., was
commenced, hence there was a partnership properly and regularly formed. (Meagher v. Read,
24 Pac. 692.) Nor could there be any condition precedent to the carrying out of the purposes
of the partnership. If McKenzie failed to comply with his engagements Coslett had his
remedy; he could have demanded performance, and when it was refused, he could have
notified McKenzie that the partnership was at an end. A precedent condition is one which
must happen before either party becomes bound by the contract."
happen before either party becomes bound by the contract. (Anderson's Dictionary.) A
precedent condition must happen or be performed before the estate, right, or interest to which
it is annexed can vest or take effect. (Soderberg v. Crockett, 17 Nev. 415.) It certainly
cannot be maintained that the payment of each installment of wages or each item of expense
is a condition precedent before either McKenzie or Coslett is bound by the partnership
agreement. If the finding of the court is correct, Coslett would never be bound by the
partnership agreement until the last installment of wages had been paid and the last item of
expense incurred and settled by McKenzie. (Plaintiff's opening brief, p. 25.)
XIX. Counsel for plaintiff asked of McKenzie the following question: If there had been
any debts which they (Coslett, Stauts, and Wilkerson) could not have paid, what would you
have done about it? The court sustained an objection on the ground that it called for a
self-serving declaration and was immaterial. It is proper for a party to testify as to his intent.
(1 Thompson on Trials, sec. 383; 1 Jones on Evidence, sec. 167.) The materiality of the
testimony is shown by its bearing upon the question of laches and the liability of the plaintiff
for the debts of Coslett contracted in operating the lease. The answer would have disclosed
how far McKenzie recognized his liability for such debts and obligations.
This is an appeal from a judgment and decree in favor of defendant in a suit for a
dissolution of partnership and an accounting of the proceeds of ores realized in operating a
portion of the Mizpah lode, in Tonopah mining district, under a lease by defendant and
others, from which plaintiff was excluded.
The answer denied partnership.
The court found, among other things, that about the 16th day of March, 1901, plaintiff was
the superintendent of the Dexter mine, at Tuscarora, and defendant was a miner in the employ
of the Dexter Company; that, intending to go to Tonopah to prospect that country, he verbally
agreed with plaintiff to locate him in any mining claims he might discover, to send him
samples of the ore of the principal mines, to inform himself concerning the opportunities
for purchasing mining properties and advise plaintiff, and, if the information justified a
personal examination, plaintiff would go there and make such examination.
plaintiff to locate him in any mining claims he might discover, to send him samples of the ore
of the principal mines, to inform himself concerning the opportunities for purchasing mining
properties and advise plaintiff, and, if the information justified a personal examination,
plaintiff would go there and make such examination. Plaintiff agreed to pay defendant wages
at the rate of $45 per month, and on or about the 16th of March paid him $45 in advance. It
was further found: That each should be equally interested in any mines located or found, as
well as in any bond, lease, or option taken by defendant and plaintiff, and should be
undivided one-half owners in any claims located or discovered, or the profits of any bond,
option, or lease taken or worked. That each should pay his proportionate share of the expense
of such venture until it became self-sustaining.
The fourth, fifth, and seventh findings are, in part, as follows:
That on or about April 12, 1901, defendant agreed to form, and did form, a partnership
with T.W. Wilkerson, E.A. Stauts, and J.H. Robbins for the purpose of taking a lease on one
hundred feet of ground of the Mizpah ledge, described in the complaint. That said parties at
once began active work together in said leased ground under a lease from the owners of said
Mizpah claim given to defendant, the said Wilkerson, Stauts, and Robbins. That the
defendant acquired and took his interest, to wit, a one-fourth interest, in said lease, with his
own means, in his own name, for his own use and benefit, and excluded plaintiff, whose
name was not used or known in the said lease, or the negotiations that led up to the taking of
the same. That defendant and the other parties named continued to work the leased ground
until on or about May 12, 1901, when the interest held by J.H. Robbins was acquired by
defendant, Wilkerson, and the said Stauts. That defendant, Wilkerson, and the said Stauts
continued to work the leased ground for about one month and a half at heavy expense, being
put to great strain for want of money to carry on the work, several of them stopping the work
on lease to work elsewhere for wages wherewith to get money to support their families, as
well as to carry on the work on the lease.
the lease. That defendant entered into said partnership with the said Wilkerson, Stauts, and
Robbins without the knowledge or consent of the plaintiff, and not in pursuance of any
agreement, expressed or implied, with said plaintiff.
(5) * * * That no ore was actually discovered in said ground until on or about some time
between May 28th and June 1st of that year. * * *
(7) That plaintiff became fairly and fully informed and advised of the fact that defendant
was in said lease, and that defendant was being pressed for money to carry on the work and
operations in said lease, at least as early as about the middle of May, 1901. That shortly
thereafter, and long prior to plaintiff's going to Tonopah, about November 1st of that year,
plaintiff was repeatedly informed of defendant's being in said lease, and shortly after and on
or about June 1, 1901, the time the ore was found in said lease, plaintiff was repeatedly
informed and advised that said lease was a paying and profitable one. That plaintiff made no
assertion of claims of any right or interest in said lease, or the leased premises, or the
proceeds thereof, nor made or asserted any claim of right or interest by reason of his
agreement with defendant, until long after ore was struck in said ground, and until long after
the lease was ascertained, beyond any doubt, to be a profitable one. That the taking out of ore
from said ground began about June 1, 1901. * * * That the first assertion of his alleged claim
or interest was not made by plaintiff until November 1, 1901, or thereabouts, and that nothing
was done by plaintiff to enforce his alleged claim in interest until the 16th of January, 1902,
when the above-entitled action was commenced.
Plaintiff testified in part as follows: In the latter part of the conversation I told Mr. Coslett
that, if he came across some good property that he could get a lease or bond on, to let me
know, and, after my personal examination of it, that I would go down there and examine the
property, and, after taking my own personal expenses and the money, whatever it was, that I
invested, that we needed, divide the rest share and share alikethat we would divide the
profits that waybut I said I would not entertain a proposition until I made a personal
examination myself."
personal examination myself. Upon his cross-examination the following occurred: Q. You
would not have taken hold of any property until you made a personal examination? A. No,
sir; not until I made a personal examination. Q. You was to manage the deal and buy the
property; Coslett was to do whatever you said? A. There was nothing said, exactly, about that.
I was to use my own judgment about that. Q. Who was to put up the money for the bond? A. I
was. Q. You were to put up the money and take the bond on it if you considered it a good
proposition, and, if you considered that it was not, you would drop it, using your own
judgment about it? A. Yes, sir; I would take a bond if I thought it was all right, and if I didn't I
would drop it. I was to use my judgment. Q. Then, no matter what Coslett did, you were to
approve of it first, and, if it was not a good proposition, according to your judgment, you
would abandon it? A. Well Q. You had the exclusive right to say as to whether the property
was to be taken or not? A. Yes, sir; that was strictly understood. In defendant's narration of
the agreement, he said: Well, he [plaintiff] said he didn't want to bother with any leases,
anyway; that he was too far away to tend to any leases, and that he didn't want to have
anything to do with them; that all he wanted to be interested in was mining locations or
claims, or jointly in bonds that I might see fit to take.
The words in the above-quoted finding, That each should be equally interested in * * *
any lease taken by defendant and plaintiff, * * * must be taken in their literal sense; that is to
say, plaintiff and defendant were not, in fact, interested in the lease. Defendant was. The
above excerpts of the testimony of the plaintiff himself show that he was not to be interested
in any lease until after examination and approval by himself. He was not informed by
defendant concerning the mine or lease. Under plaintiff's version, it was defendant's duty to
have informed him. But notice of the facts sufficient to put a prudent man upon inquiry could
have come from any other source. The district court found as a fact that plaintiff was fully and
fairly informed by others. Under these circumstances, considering the uncertain value of the
property, plaintiff should have promptly asserted his rights, and not have waited until
defendant had developed the property and demonstrated its value.
the uncertain value of the property, plaintiff should have promptly asserted his rights, and not
have waited until defendant had developed the property and demonstrated its value.
It is unnecessary to consider other questions. The plaintiff's testimony and the findings
upon the subject of notice precluded a recovery.
The judgment and order are affirmed.
____________
28 Nev. 94, 94 (1904) White Machine Co. v. Fowler
[No. 1664.]
WHITE SEWING MACHINE COMPANY, a Corporation, Respondent, v. EDWIN
FOWLER, A. J. CLARK, C. E. CLOUGH, and JOHN SUNDERLAND, Appellants.
BondsConsideration.
1. A bond reciting that it is for value received, and showing that it is to enable the principal to obtain an
extension of credit, is on a sufficient consideration to bind the sureties.
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Washoe County; B. F. Curler, District Judge.
Action by White Sewing Machine Company against Edwin Fowler and others on a bond.
Judgment for plaintiff, and defendants appeal. Affirmed.
Norcross & Orr, for Appellants:
I. This is an appeal from the judgment and from the order overruling defendants' demurrer
to plaintiff's complaint herein. Judge Thomas Wren was the original counsel for the
defendants in this action, and the present counsel did not come into the case until after his
death. He filed a demurrer to the complaint, and, not having left a brief covering the points of
law made during the course of his argument, we are left without the benefit of his
investigations and very valuable opinion upon the questions of law involved.
II. While counsel for plaintiff have included in this complaint a reference to the "bond"
given by the defendants, Clark, Sunderland, and Clough, as securities, and have attached
a copy of that document to their pleadings, their complaint has really been based upon
the notes and contract of Fowler with which the other defendants had nothing to do.
plaint a reference to the bond given by the defendants, Clark, Sunderland, and Clough, as
securities, and have attached a copy of that document to their pleadings, their complaint has
really been based upon the notes and contract of Fowler with which the other defendants had
nothing to do. This is manifest from the allegations of fact in the complaint and from the
prayer for judgment therein. This being the case, the complaint does not state a cause of
action against Clark, Sunderland, and Clough, even if it could be held to state one against
Fowler.
III. If this complaint is an action upon the bond, it clearly fails to state a cause of action
against any of the defendants, Clark, Sunderland, and Clough, for it appears upon the face of
the bond that it is void under the statute of this state. Regardless of the form of the
instrument, the bond is simply a contract of suretyship and is so considered and treated as
such in plaintiff's complaint. (Paragraphs 2 and 3 of Complaint.) As such it is an agreement
on the part of the defendants, Clark, Sunderland, and Clough, to answer for the debt, default,
or miscarriage of Fowler. (27 Am. & Eng. Ency. of Law, 2d ed., p. 431; Clark on Contracts,
p. 95.)
IV. This contract is absolutely void under the statutes of this state, for the reason it does
not express the consideration upon which it is based. The complaint alleges in paragraphs 2
and 3 what the consideration was for the making of this contract of suretyship, but the
instrument itself nowhere even hints at such a consideration, nor is it claimed there is any
other written document expressing the consideration. (Comp. Laws, sec. 2700; Van Doren v.
Tjader, 1 Nev. 387; Lightle v. Berning, 15 Nev. 389; Simpson v. Harris, 21 Nev. 375.)
V. The judgment in this case was entered by the clerk upon default of the defendants'
failure to answer. This is not a case in which the clerk without order of court could enter
judgment. In any event the judgment is entered upon the notes of the defendant, Fowler, with
which the defendants, Clark, Sunderland, and Clough, have nothing to do. It is made to bear
interest a 8 per cent as specified in the notes, while, if judgment were rendered on the account
of bond, it could only bear 7 per cent interest.
Cooke & Ayres, for Respondent:
I. Reserving the right to hereafter present authorities to the effect that the bond sued on is
an original undertaking, and therefore not within the statute of frauds, still, in order to meet
counsel squarely on their own ground, we will admit for the purposes of the argument only
that the bond in this case is a special promise to answer for the debt of another, and, as
such, should express the consideration. We must conclude that counsel have not carefully
examined the bond when they state that it does not. For the consideration is expressed twice,
first in express words, and, second, by clear and natural implication, either of which is
sufficient under the statute of fraud. For value received is a sufficient expression of the
consideration to satisfy the requirement of the statute of frauds. The binding clause in this
bond is as follows: Know all men by these presents, that Edwin Fowler * * * are held and
firmly bound severally and individually * * * in the sum of two thousand dollars * * * for
value received, etc. From the leading text books we find the following language employed:
A memorandum expressed to be for value received' is held to state the consideration
sufficiently for the purpose of the statute. (Browne on the Statute of Frauds, 5th ed., p. 542,
sec. 408, and cases cited in note 3.) But where the consideration is required to be expressed,
it need not be defined; and, therefore, the words value received' are deemed a sufficient
expression of it. (Daniel on Negotiable Instruments, sec. 1767, vol. 2, p. 797.) In England
and many of the United States the memorandum will be insufficient unless it contains the
consideration for the promise. Value received' is a sufficient statement of the consideration.
(Am. & Eng. Ency. Law, 1st ed., vol. 8, pp. 727, 729, and note 1.) To the same effect see,
also, 3 Parsons on Contracts, 16; 1 Reed Stat. Frauds, sec. 430; Brant, Suretyship, sec. 70;
Baylies, Sureties, 87. Not only are the text books unanimous upon this point, but all of the
cases, so far as we have been able to ascertain, are to the effect that the words value
received are a sufficient expression of the consideration. All the cases in the Century Digest
are to that effect, and there are none to the contrary cited in any of the American annual
digests issued subsequently to 1S96, when the Century ends.
none to the contrary cited in any of the American annual digests issued subsequently to 1896,
when the Century ends. And, until counsel for appellants cite us to such a case, we shall feel
confident, as we do now, that there is none such in existence. (See 23 Century Digest, col.
2242, sec. 214b; col. 2348, sec. 217a.) The matter is thoroughly discussed and exhaustively
treated in 60 Am. St. Rep., in a note commencing on page 432 and ending on page 441. We
quote the following from page 438: The words for value received' in a contract of guaranty
is a sufficient expression of the consideration in a contract. (Day v. Elmore, 4 Wis. 190;
Connecticut Ins. Co. v. Cleveland R. R. Co., 41 Barb. 9; Howard v. Holbrook, 9 Bos. 237;
Whitney v. Stearns, 16 Me. 394; Douglass v. Howland, 24 Wend. 35; Dahlman v. Hammel,
45 Wis. 466.) This is true in a contract for the sale of lands (Cheney v. Cook, 7 Wis. 413); or
of a contract of guaranty of a promissory note (Miller v. Cook, 23 N. Y. 495; Osborn v.
Baker, 34 Minn. 307; 57 Am. Rep. 55; Dahlman v. Hammel, 45 Wis. 466; Martin v. Hazzard
Powder Co., 2 Colo. 596; Cooper v. Dedrick, 22 Barb. 516; Woodward v. Pickett, Dual (S.
C.) 30; Emerson v. Aultman, 69 Md. 125); or in a written guaranty of the payment of a bond
and mortgage (Smith v. Northrup, 80 Hun, 65); or other written instrument (Edelen v. Gough,
5 Gill, 103; Flowers v. Steiner, 108 Ala. 440.)
Upon a point where the authorities are so numerous and unanimous we feel as if we are
encroaching upon the time and patience of the court in attempting to quote any number of
cases; but, before leaving this phase of the subject, we would like to quote from one of the
cases from a state where the statute is almost identical with our own. Beginning on page 56 of
57 Am. Rep. we find: The statute provides that no action shall be maintained upon any
special promise to answer for the debt, default, or doings of another, unless such agreement,
or some note or memorandum thereof expressing the consideration, is in writing and
subscribed by the party charged therewith. If this was a new question, we have not much
doubt but that we would hold with the respondent that the words for value received,' which
acknowledge the receipt of a consideration, do not express the consideration.
acknowledge the receipt of a consideration, do not express the consideration. But we think
that under the authorities the question is foreclosed, and is really no longer an open one. So
far as the question has ever been passed upon by the courts of this country, it has been
invariably held, so far as we can ascertain, that the words for value received' sufficiently
express the consideration to amount to a compliance with the requirements of the statute.
That this is the law in New York, the leading commercial state of the Union, would now seem
settled beyond doubt. * * * The text writers also generally state the law to be that the words
for value received' sufficiently express the consideration. (3 Pars. Cont. 16; Browne Stat.
Frauds, sec. 408a; 1 Reed Stat. Frauds, sec. 430; Brant Suretyship, sec. 70; Dan. Neg. Inst.
sec. 1767; Baylies Sureties, 87.) The result of all this is, we are satisfied that it has become
the general understanding that this is a sufficient compliance with the statute, and that the
business engagements of the country are commonly made with the understanding. Under
these circumstances we do not feel at liberty to adopt a different rule. As was said in Day v.
Elmore, supra, the mischief of attempting to do so would be much greater than that of a quiet
acquiescence in the one already established, as the latter may answer a liberal construction of
the statute. But we are satisfied, not only that the rule does not work any mischief, but also
that it is an eminently convenient one. (Osborne v. Baker, 34 Minn. 307; 57 Am. Rep. 55.)
As stated in the case last cited, the business engagements of the country are commonly
made with this understanding of the statute. And the bond in this instance bears upon its face
the fact that it was made with this understanding. It would, therefore, not only be a general
hardship to overrule this well-established construction of the statute of frauds, but would in
this particular case work a hardship and grievous inconvenience, even to the extent of
depriving plaintiff of the right to recover an indebtedness suffered to be incurred by
defendants upon a bond drawn directly in view of this construction of the statute.
II. The Encyclopedia of Law lays down the rule: A contract of suretyship to be valid
must be supported by a sufficient consideration of some benefit or value either to the
principal or surety, or some detriment to the creditor.
tract of suretyship to be valid must be supported by a sufficient consideration of some benefit
or value either to the principal or surety, or some detriment to the creditor. It is an elementary
principle that where a person contemporaneously becomes surety for a debt, or for the
performance of a duty, of a third person, the consideration is the favor the surety receives
from a compliance with his express or implied request that credit should be given to the
principal. (27 Am. & Eng. Ency. Law, 2d ed., 445-6, and notes 7 and 8, p. 445 and 1 and 2, p.
446.). If, then, it appears from the face of the bond that the principal (Fowler) received
some benefit or that the creditor (plaintiff) some detriment, or that the debt for which
the defendants, Clark, Clough, and Sunderland, became surety for Fowler was
contemporaneous with the execution of the bond and not antecedent thereto, so that the
consideration is the favor the surety receives from a compliance with his express or implied
request that credit be given to Fowler, then the bond sufficiently expresses the consideration
to satisfy the statute of frauds and is not invalid, as stated in appellants' brief. It is not
necessary that the consideration be expressed in act or affirmative words, but it is sufficient if
the same can be ascertained from necessary implication. The rule is sometimes stated to be
that it is sufficient if it appear by necessary implication from the terms of the writing.
(Browne, Stat. Frauds, p. 532, sec. 399, and note 3.)
III. If these statements above quoted are a correct statement of the law, it follows then that
the consideration of the bond in this case is sufficient, and is also sufficiently stated therein, if
the language of the bond itself shows with reasonable clearness, either positively or by
natural implication, that the bond was executed for the purpose of procuring any one of the
following: (1) Some benefit or value to the principal (Fowler); (2) Some detriment to the
creditor (plaintiff); (3) The giving of credit to the principal debtor (Fowler) by plaintiff.
Does the bond in this case contain any of the foregoing requisites? We think that all of them
appear from the bond itself. We quote from the bond: That if * * * Edwin Fowler * * * shall
well and truly * * *
and every indebtedness or liability now existing, or which may hereafter in any manner exist,
or be incurred on the part of said Edwin Fowler to the White Sewing Machine Company, * *
* whether such indebtedness shall exist in the shape of book accounts, notes, * * *
consignments of property or merchandise, * * * or whether the same shall arise out of the
purchase and sale of sewing machines, etc.
IV. Browne, in his work on the Statute of Frauds, lays down the rule: A rule of
construction, however, well established in the general law of evidence, but of comparatively
recent application, it would seem, to questions of this nature, is often called to the aid of a
memorandum of guaranty, where the terms used are ambiguous and may refer either to a
preexisting liability of a third party to the creditor, or to one which is allowed to be incurred
contemporaneously with and in confidence of the defendant's undertaking. This is the
admission of parol evidence to show the circumstances of the parties at the time of the
contracting, in order to understand the language they employ. Under this rule a memorandum
of guaranty addressed to the plaintiffs in the words In consideration of your being in advance
to the third party,' was sustained by parol evidence, showing that at the time of executing it no
advance had been made. (Browne, Stat. Frauds, sec. 403.) The remainder of the section
contains several illustrations of instances where the rule was applied and the expression of the
consideration held sufficient.
V. Now, as we understand the law, anything which it is competent or permissible to show
by parol evidence is fully and completely established by an allegation in the complaint not
denied by the defendants. As there is in this case no answer, there is, therefore, no denial of
any of the allegations of the complaint. In paragraph 3 of the complaint, among other things,
it is alleged that the bond was given by defendants to secure the credit of the defendant,
Fowler, and to enable said Fowler to purchase sewing machines from plaintiff on credit, and
in paragraph 4 that relying upon said bond and the security so furnished by said defendants,
Clark, Clough, and Sunderland, and by each of them severally, the plaintiff extended credit
to Fowler, and Fowler was permitted to and did become indebted to plaintiff in the manner
set out at length in said paragraphthe only indebtedness in said complaint alleged to be
due from Fowler to plaintiff or for which this action is prosecuted.
was permitted to and did become indebted to plaintiff in the manner set out at length in said
paragraphthe only indebtedness in said complaint alleged to be due from Fowler to plaintiff
or for which this action is prosecuted. And these, in connection with paragraph 2, settle
clearly that the bond was given for a prospective and not for a preexisting indebtedness.
From these authorities and for the reasons aforesaid we submit that the bond in this case
fulfills the requirement of our statute expressing the consideration. While authorities are
cited upon the assumption that the bond in this case is within the statute of frauds, there is at
least some doubt whether or not it is an original undertaking and therefore within the statute.
In Maddox v. Pierce, 74 Ga. 838, the court laid down the rule: Where one sells goods to one
to whom he had refused to sell on his own credit, on the request of a third party to let him
have the goods, and that he would see it paid, the promise of the latter is an original
undertaking, and not within the statute of frauds. It has been further held: A direct and
unconditional promise by one to pay for goods furnished to a third party, made prior to the
delivery of the goods to such third party, is an original undertaking, which is not within the
statute of frauds. (Wills v. Ross, 40 Am. Rep. 279; Larson v. Jensen, 53 Mich. 427; 19 N.
W. 130; Lindsey v. Heaton, 27 Neb. 662; 43 N. W. 420; Champion v. Doty, 31 Wis. 190.)
However, we deem it of little importance whether this is construed within or without the
statute of frauds, as it is in writing expressing the consideration to the very fullest intent of
the statute.
VI. We cannot quite understand the position of counsel for appellants when they say in
one sentence that the clerk could not enter judgment in this case without an order of court,
and then, in the next sentence, the judgment is entered upon the notes, etc. Section 152 of
our Practice Act (Comp. Laws, sec. 3247) provides for the entry of judgment by default by
the clerk without order of court in all actions arising upon a contract for the recovery of
money or damages only. Surely an action for money due upon a promissory note {or on
several notes) is an "action arising upon a contract for the recovery of money or damages
only."
sory note (or on several notes) is an action arising upon a contract for the recovery of money
or damages only. We cannot understand the position of counsel or reconcile their two
statements with our statute. And, from the real facts of the case, i.e., that this is an action to
recover against the defendants jointly upon the bond heretofore so often referred to, it is still
an action arising upon a contract for the recovery of money or damages only.The only thing
whatever that is in any way sought to be recovered in this action is an amount of money equal
to the indebtedness of Fowler to plaintiff, not exceeding the penalty of the bond ($2,000),
together with 10 per cent thereon in case of suit upon this bond, for counsel fees.
While appellants state that this is not a case where the clerk could enter judgment without
an order of court, they do not tell us why or point out any defect in the entry of judgment. We
are, therefore, left largely in doubt as to their position. If it is their contention that the clerk
could not enter judgment in a case where counsel fees are provided for, we are willing to
meet them upon their own ground. Not only does the bond provide that 10 per cent shall be
added to the amount of recovery in case of suit, but the notes each and all provide for a
10-per-cent counsel fee, which, in case of suit upon the notes, becomes an integral part and
portion of the indebtedness for which the bond is securityjust as much a part thereof as the
principal itself. The bond itself does not mention counsel fees, but limits the liability of the
signers thereof to $2,000, together with 10 per cent thereon in case of suit upon this bond,
or in case of suit the sureties become liable for the indebtedness of Fowler to the extent of
$2,200 instead of only $2,000. This is surely equivalent to a statement that any attorney's fees
provided for in any evidence of indebtedness of Fowler to the plaintiff (not exceeding 10 per
cent of such indebtedness) shall, in case of suit, be considered as much a part of the
indebtedness as the principal or interest, and be secured by the bond.
In California, where their statute (C. C. P., sec. 585) is almost identical with ours, it was
held that the clerk had authority to enter a judgment in a case where attorney's fees were
stipulated for in the contract sued on.
authority to enter a judgment in a case where attorney's fees were stipulated for in the contract
sued on. The court treated the contention of counsel for appellants (that the clerk did not have
such authority) with very scant courtesy, and disposed of the entire subject in the following
words: The judgment attacked was entered by the clerk under sec. 585, subd. 1, of the Code
of Civil Procedure, which provides: That in an action arising upon contract for the recovery
of money or damages only, if no answer has been filed with the clerk, * * * the clerk * * *
must enter the default of the defendant, and immediately thereafter enter judgment. * * * The
action of the clerk in estimating and adding the amount of the attorney's fees to the judgment,
under the above circumstances, was as purely ministerial as was his calculation of interest
upon the principal sum of the note in accordance with the terms and averments of the
complaint. The clerk was acting within the scope of his authority in entering judgment.
(Alexander v. McDow, 108 Cal. 25; 41 Pac. 25; also, see Wood v. Winship Machine Co., 83
Ala. 424; 3 South. 757.)
We do not apprehend that counsel will argue that an action upon a contract of suretyship
such as this one is not an action arising upon a contract for the recovery of money or
damages only, and, therefore, refrain from the submission of authorities upon that point.
VII. The notice of appeal, by which appellants sought to appeal from the district court to
this court, gives notice that defendants in the above-entitled action, and each of them, hereby
appeal to the Supreme Court of the State of Nevada, from the judgment therein entered, and,
also, from the order overruling defendant's demurrer to plaintiffs' complaint, etc.
Here are two appeals, necessitating a separate undertaking for each appeal, the only
exception to this rule being in the single case of an appeal from a final judgment and an order
denying a motion for a new trial. (Spelling on New Trials and Appellate Prac., sec. 548, and
cases cited; Granger v. Robinson, 114 Cal. 631; Sharon v. Sharon, 68 Cal. 326; People v.
Center, 61 Cal. 191; Mosely v. Shepherd, 1 Fla. 155; Clairteaux's Succession, 35 La. Ann.
1178; Harris v. Harris, 2 R. I.
538; Chambers v. Fiske, 9 Tex. 261; Sweet v. Mitchell, 17 Wis. 125; White v. Appleton, 14
Wis. 190.) There is only one undertaking on appeal in this case, and it recited both appeals as
follows: Whereas, the defendants * * * have appealed * * * from a judgment, * * * and,
also, from the order overruling defendants' demurrer, etc., and concluded with the promises
of the defendants that in consideration of the premises, and of such appeal, they will pay all
damages and costs which may be awarded against them on appeal, not exceeding three
hundred dollars, etc. This undertaking is so ambiguous that it cannot be ascertained to what
defendants refer. The appeals should both be dismissed. (Spelling on New Trials, sec. 549,
and cases cited, especially note 29.)
Norcross & Orr, for Appellants, in reply:
I. The only American states which have embodied in the statute the provision that the
consideration must be expressed in writing, are the following: Alabama, California (prior to
1874), Colorado, Idaho, Minnesota, Montana, Nevada, New York (from 1830 to 1863),
Oregon, and Utah. (Reed on Statute of Frauds, vol. 1, sec. 425.)
II. Wherever the question has been passed upon by any of the foregoing states it has
invariably been held that the consideration for the promise must be expressed in writing. (Van
Doren v. Tjader, 1 Nev. 387; Lightle v. Berning, 15 Nev. 389; Simpson v. Harris, 21 Nev.
375; Ellison v. Jackson W. Co., 12 Cal. 542-552; Crooks v. Tulley, 50 Cal. 257; Dufoit v.
Gorman, 1 Minn. 309; Wilson Sewing Mac. Co. v. Schnell, 20 Minn. 40; Taylor v. Pratt, 3
Wis. 674; Parry v. Spikes, 40 Wis. 385; Corbitt v. Gaslight Co., 6 Or. 407.)
III. It is true that in one or two states, by an admittedly strained construction, the court has
held that the words for value received would answer for an expression of the consideration.
Take, for example, the authority relied upon by counsel for respondent to establish the
principle that the words for value received sufficiently express the consideration, and the
court has to resort to the principle of stare decisis to uphold a position it admits to be
erroneous. The court says: "If this was a new question, we have not much doubt that we
would hold with the respondent that the words 'for value received,' which acknowledges
the receipt of a consideration, do not express the consideration."
court says: If this was a new question, we have not much doubt that we would hold with the
respondent that the words for value received,' which acknowledges the receipt of a
consideration, do not express the consideration. (34 Minn. 307.)
IV. In this state, were the question a new one, we submit that this court would be in duty
bound to give the statute the construction manifestly intended by the legislature, to wit, that
the writing must express the consideration. But the question not only is not new, but this
court has held that the consideration must be expressed. In Van Doren v. Tjader, supra, this
court said: The contract of guaranty is a separate and independent contract involving duties
and imposing liabilities very different from those created by the original contract, to which it
is collateral. It is a promise to answer for the debt, default, or miscarriage of another,' and by
the statute of frauds is made void unless there be some note or memorandum thereof in
writing, expressing the consideration upon which it is based. What is the consideration upon
which the bond in question in this action is based? The bond itself does not specify any of the
considerations upon which it is based, but from the allegations of the complaint we receive
enlightenment as to what some of them were. It alleges (paragraph 3) that, among other
things, to secure the credit of the defendant Fowler, and to enable said Fowler to purchase
sewing machines from plaintiff on credit constituted the consideration for Clark, Clough,
and Sunderland agreeing to answer for the debt, default, or miscarriage of Fowler. What the
other things were which formed part of the consideration for the support of the promise, we
are left totally in the dark concerning. It seems, however, that the defendant Fowler had credit
with the plaintiff company and it was to be secured; why, we do not know. The bond nowhere
recites specifically or by implication that Fowler could not have purchased sewing machines
without the guaranty of the other defendants. If we were permitted to resort to the realms of
speculation we might surmise various considerations which might have been sufficient to
have supported the promise in question. But the very object of the statute was to avoid the
complications that would surely arise from such a condition.
statute was to avoid the complications that would surely arise from such a condition.
In the civil and criminal practice of this state the bonds and undertakings universally recite
the real consideration upon which they are based. Hence, not only by judicial decision, but by
universal practice, has the real meaning of our statute been settled that the actual
consideration of a promise to answer for the debt, default, or miscarriage of another must be
expressed in exact terms, and not by a meaningless expression, such as value received.
V. Like many other of our statutes this particular statute was doubtless adopted from the
statute of California which existed in that state prior to 1874, and which received judicial
interpretation prior to its adoption into the laws of our state. (Rogers v. Schulenburg, 111 Cal.
284-5.) In the case of Crooks v. Tulley, 50 Cal. 257, the court said: It is clearly a collateral
contract, pure and simple; and, though based upon a sufficient consideration, is fatally
defective in that it fails to express the consideration in writing, as required by our statute of
frauds. (See, also, 12 Cal. 542.) A further evidence of the fact that the old California statute
required that the consideration be actually expressed in terms is shown by the fact that the
statute was amended so as to expressly provide that the consideration need not be expressed
at all.
VI. The contention of counsel that the consideration for the bond is expressed by
implication, while ingenious, is hardly convincing. Portions of the condition of the bond are
referred to to establish the consideration. The condition is one thing, and the consideration is
altogether different. From the condition of a bond we may possibly be able to guess at what
the consideration might be, but yet it may with reason be many things having not even a
remote relationship to the condition. It seems to us that the very object of our statute was to
obviate controversies such as exist here over whether there was any consideration, and, if so,
what it was.
If experience in the business affairs of our country has demonstrated that it is better not to
have the requirement contained in our statute that the consideration be expressed, the matter
can easily be corrected by amendment of our statute, as has been done in California and
New York.
the matter can easily be corrected by amendment of our statute, as has been done in California
and New York.
This court has repeatedly held, as in the case of Ash v. Parkinson, 5 Nev. 16, that with the
question of the policy or expediency of a statute the judicial department has nothing to do; in
that regard the legislature is supreme.
We are well aware that it is the policy of courts to uphold, if possible, written obligations
entered into in the ordinary course of business, but we submit that an agreement so
unconscionable as this one appears on its face to be is not deserving of any consideration
other than that which the strict letter of the law requires.
VII. The bond in this case is not an original undertaking, but is clearly within the statute
of frauds. (Wilson Sewing Mac. Co. v. Schnell, 20 Minn. 40.)
VIII. The purely technical point raised by counsel for respondent in the motion to dismiss the
appeal, we think, is clearly without merit. The appeal as taken in this case is in accordance
with the practice in this state. Precisely the same questions are involved whether we consider
the appeal from the judgment or the order overruling the demurrer. However, we think the
point is answered adversely to the contention of respondent in Edgecomb v. His Creditors, 19
Nev. 151.
By the Court, Talbot, J.:
In part it is alleged in the complaint that in order, among other things, to secure the credit
of the defendant Fowler, and to enable said Fowler to purchase sewing machines from
plaintiff upon credit, the defendants A. J. Clark, C. E. Clough, and John Sunderland, and each
and every of them, together with the defendant Edwin Fowler, did make, execute, and deliver
to plaintiff a bond bearing date the 18th day of June, 1902, in the sum of $2,000, undertaking,
among other things, that the defendant Edwin Fowler should well and truly pay any and every
indebtedness or liability which might in any manner exist or be incurred on the part of said
Edwin Fowler to plaintiff; that immediately upon the delivery to plaintiff of the hereinbefore
described bond, and relying upon said bond and the security so furnished by said
defendants Clark, Clough, and Sunderland, and by each of them, severally, plaintiff
commenced to do business with defendant Fowler, and that business relations between
plaintiff and defendant Fowler have been continued ever since upon the faith and credit of
said bond, and have never been terminated; that after the execution and delivery of said
bond the defendant Edwin Fowler became and was indebted to plaintiff in the sum of
$1,939" upon certain promissory notes, the dates, amounts, and execution of which are
detailed.
upon said bond and the security so furnished by said defendants Clark, Clough, and
Sunderland, and by each of them, severally, plaintiff commenced to do business with
defendant Fowler, and that business relations between plaintiff and defendant Fowler have
been continued ever since upon the faith and credit of said bond, and have never been
terminated; that after the execution and delivery of said bond the defendant Edwin Fowler
became and was indebted to plaintiff in the sum of $1,939 upon certain promissory notes,
the dates, amounts, and execution of which are detailed.
A copy of the bond is made a part of the complaint, and it is therein recited that Edwin
Fowler and other signers [they being the other defendants] are hereby held and firmly bound,
severally and individually unto the White Sewing Machine Company in the sum of $2,000 for
value received, to be paid the White Sewing Machine Company. * * * The condition of the
above obligation is such, that if the above bounden Edwin Fowler, heirs, executors or
administrators, shall well and truly pay, or cause to be paid, any and every indebtedness or
liability now existing, or which may hereafter in any manner exist, or be incurred on the part
of said Edwin Fowler to the White Sewing Machine Company, or its assigns, whether such
indebtedness or liability shall exist in the shape of Book Accounts, Notes or Leases,
Renewals or Extension of Notes, Accounts or Leases, Acceptances, Indorsements,
Consignments of Property or Merchandise, failure to deliver or account for the same, or any
part thereof, or otherwise, and whether such indebtedness shall be incurred under any contract
between said White Sewing Machine Company and said Edwin Fowler or otherwise; and
whether the same shall arise out of the purchase and sale of Sewing Machines, or otherwise,
hereby waiving presentment for payment, protest and notice of protest, and diligence upon all
Notes, Accounts or Leases, now or hereafter executed, indorsed, transferred, guaranteed or
assigned by the said Edwin Fowler to the White Sewing Machine Company, its agents or
assigns, then this obligation to be void, but otherwise to be and remain in full force and
effect.
From an order overruling a demurrer to this complaint, and a judgment in favor of
plaintiff, the defendants appeal, and urge that the bond is void under the statute of frauds,
because it is a contract of suretyship, and fails to express the consideration. To support this
contention, they seem to rely principally upon the authority of Van Doren v. Tjader, 1 Nev.
384, 90 Am. Dec. 498; but that case is distinguishable from this in two particulars, and a
perusal of the opinion on the petition for rehearing indicates that after an examination of
conflicting opinions the conclusion was not reached without difficulty and doubt. There the
court held that a party does not become liable as a surety by merely writing his name on the
back of a promissory note at the time of its execution. Here we may consider whether the
words for value received are a sufficient expression of the consideration, and whether it
may not be fairly implied and reasonably understood from the terms and conditions of the
bond that it was executed by the other defendants in consideration of the extension of credit
to Fowler on the purchase of sewing machines or otherwise. We think the language employed
indicates that such was the intention and purpose of the parties.
Numerous authorities cited in the briefs, and others, hold that the words for value
received are a sufficient expression of the consideration. (Day v. Elmore, 4 Wis. 190;
Cheney v. Cook, 7 Wis. 423; Douglass v. Howland, 24 Wend. 35; Edelen v. Gough, 5 Gill,
103; Flowers v. Steiner, 108 Ala. 440, 19 South. 321; Dahlman v. Hammel, 45 Wis. 466;
Emerson v. Aultman, 69 Md. 125, 14 Atl. 671; Whitney v. Stearns, 16 Me. 394; Martin v.
Hazzard Powder Co., 2 Colo. 596; Osborne v. Baker, 34 Minn. 307, 25 N. W. 606, 57 Am.
Rep. 55; Baylies on Sureties & Guaranties, 87; Siemers v. Siemers, (Minn.) 60 Am. St. Rep.
430, and cases there cited in the note.)
The rules that the surety will be bound if the consideration can be fairly implied from the
language of the instrument, and that the extension of credit is a sufficient consideration, are
supported by many decisions. (Eastman v. Bennett, 6 Wis. 232; Hutton v. Padgett, 26 Md.
228; Church v. Brown, 21 N. Y. 315; Young v. Brown, 53 Wis. 333, 10 N. W. 394; Rigby v.
Norwood, 34 Ala. 129; Highland v. Dresser, 35 Minn.
35 Minn. 345, 29 N. W. 55; Simons v. Steele, 36 N. H. 83; Bailey v. Freeman, 11 Johns. 221,
6 Am. Dec. 371; Browne on Stat. Frauds, 484-486; 1 Reed on Stat. Frauds, 430; 2 Daniel on
Neg. Instmnts. sec. 1767; 3 Parsons on Contacts, 17; annotation, Siemers v. Siemers, (Minn.)
60 Am. St. Rep. 438, 439; Violett v. Patton, 5 Cranch, 150, 3 L. Ed. 61.)
The order and judgment of the district court are affirmed.
____________
28 Nev. 110, 110 (1904) Mitchell v. Mitchell
[No. 1658.]
HATTIE MITCHELL, Respondent v. J. H. MITCHELL,
Appellant.
DivorceDefaultJudgment.
1. Under Cutting's Comp. Laws, sec. 3245, providing that the relief granted plaintiff, if there be no answer, shall
not exceed that demanded in the complaint, a complaint praying for divorce, that defendant be awarded
custody of the children, and for such other and further relief as may seem just and equitable, does not
authorize award of custody of the children to plaintiff and payments to her by defendant for support of
plaintiff and the children.
Appeal from the District Court, Esmeralda County; M. A. Murphy, Judge.
Action by Hattie Mitchell against J. H. Mitchell. From an amended judgment, defendant
appeals. Reversed.
Pyne & Mack, for appellant:
I. The modification of the decree, entered by the court on the 5th of January, 1904, was
erroneous for the reason: First, The relief granted to the plaintiff, if there be no answer, shall
not exceed that which he shall have demanded in his complaint. (Comp. Laws, 3245.) There
was no answer filed in this case, and the plaintiff demanded a decree of divorce and costs of
suit, and that the care, custody, and control of the minor child be awarded to and imposed
upon the defendant. Under the express terms of our statute the court was restricted to the
relief demanded in the complaint, and could not legally grant any further relief, and when the
court stripped the defendant of his property, gave the plaintiff permanent alimony, and took
from the defendant the care and custody of his children on the complaint and summons
served on the defendant, without an answer being filed, it transcended its powers and
granted to plaintiff that which the statute expressly forbids.
tiff permanent alimony, and took from the defendant the care and custody of his children on
the complaint and summons served on the defendant, without an answer being filed, it
transcended its powers and granted to plaintiff that which the statute expressly forbids. In the
Burling v. Gooding case, the court said: Where judgement is taken by default, the plaintiff is
entitled to the recovery of the particular amount or thing demanded in the prayer of the
complaint; * * * the reason and fairness of the rule are obvious. The defendant by his default
admits the justice of the claim, and thus consents that judgment be taken against him for what
was prayed for in the first instance, whereas, if a greater sum or a different relief were
demanded, he may appear and contest the claim as unjust and unreasonable.
In section 3247, Comp. Laws, the plaintiff, if no answer be filed, * * * may apply for the
relief demanded in the complaint. In this section the legislature repeats the rule that in case no
answer is filed the court can only give the relief demanded in the complaint. A number of the
supreme courts of the states of the Union have announced the same rule under statutes similar
to ours. Section 580 of the Code of Civil procedure of California provides that the relief
granted to the plaintiff, if there be no answer, cannot exceed that which he shall have
demanded in his complaint (Raun v. Reynolds, 11 Cal. 20; Gage v. Rogers, 20 Cal. 91;
Mudge v. Steinhart, 78 Cal. 40; Parrott v. Den, 34 Cal. 81; Lamping v. Hyatt, 27 Cal. 102;
Lattimer v. Ryan, 20 Cal. 633; Lowe v. Turner, 1 Idaho, 107; Linseed Oil Co. v. McGinnis,
32 Minn. 193; Hoh v. Hoh, 84 Wis. 378; Whitehall v. Jacobs, 75 Wis. 484, 485; McKenzie v.
Peck, 74 Wis. 208; Zwicker v. Haney, 63 Wis. 467; Clear Creek G. M. Co. v. Root, 1 Colo.
374; Johnson v. Manse, 69 Iowa, 710; McLaughlin v. O'Rourke, 12 Iowa, 459; Sinking Fund
Coms. v. Mason, (Ky. 1897) 41 S. W. R. 548; Argyle v. Pitts, 78 N. Y. 239; Peck v. N.Y.R.
Co., 85 N. Y. 246; Andrews v. Honilaws, 8 Hun (N. Y.) 65; Lancaster Mills v. Merchants'
Cotton Press Co., 89 Tenn. 1; Dunnisson v. Leach, 9 Pac. St. 164.)
II. Even if the complaint contained the necessary averments and prayer sufficient to
warrant the court granting relief given in the decree as modified on the Sth day of February,
1904, the evidence submitted by the defendant in opposing the motion is such as to show
that plaintiff's contention that the decree had been taken {1) through her mistake,
inadvertence, surprise, and inexcusable neglect; {2) fraud and deceit practiced and
perpetrated upon her, as set out in her affidavit, is wholly false and untrue, and further
shows that plaintiff is an unfit person to have the care and custody of the minor children,
issue of said marriage.
relief given in the decree as modified on the 8th day of February, 1904, the evidence
submitted by the defendant in opposing the motion is such as to show that plaintiff's
contention that the decree had been taken (1) through her mistake, inadvertence, surprise, and
inexcusable neglect; (2) fraud and deceit practiced and perpetrated upon her, as set out in her
affidavit, is wholly false and untrue, and further shows that plaintiff is an unfit person to have
the care and custody of the minor children, issue of said marriage. The plaintiff in her
affidavit claimed that Geo. S. Green, an attorney-at-law, had threatened that defendant would
defend by cross bill charging adultery. This part of plaintiff's affidavit is contradicted by the
affidavits of Geo. S. Green, Jesse Midgely, the brother of plaintiff, and J. H. Mitchell, the
defendant. The said affidavits show that said charge made by plaintiff never took place.
Plaintiff testified that said Geo. S. Green urged her not to employ Patsy Bowler as her
attorney. This false and malicious statement is contradicted by the affidavits of Geo. S.
Green, Jesse Midgely, the brother of the plaintiff, and J. H. Mitchell, the defendant, who
positively state that no such conversation ever took place.
III. The plaintiff states in her affidavit that the defendant promised to give her the house
and lot and the custody of the children. This statement is shown to be untrue and false by the
affidavits of Geo. S. Green, Jesse Midgely, brother of the plaintiff, and J. H. Mitchell, the
defendant. Plaintiff in her affidavit further claims that through inadvertence and inexcusable
neglect she allowed her attorney to set forth the prayer in her complaint asking for a decree of
divorce and costs of suit. This part of the affidavit is shown to be equally without foundation
of fact and untrue by the testimony of W. J. Henley, who brought said action for the plaintiff,
who stated under oath upon the stand that he was willing to testify as to the advice given
plaintiff by himself, if plaintiff would consent that he (Henley) might testify. The defendant
then and there applied to the court and to plaintiff to permit said W. J. Henley, an
attorney-at-law, to testify on behalf of defendant. The plaintiff then and there in open court
positively refused to permit Henley to testify in the case and closed his mouth as a
witness, and the court even refused to allow counsel for defendant to state what he
expected to prove by said Henley.
and there in open court positively refused to permit Henley to testify in the case and closed
his mouth as a witness, and the court even refused to allow counsel for defendant to state
what he expected to prove by said Henley. This shows clearly that the statement she had been
misled, and that a fraud had been practiced upon her, or that the said prayer was set forth in
her complaint through her inadvertence, surprise, and neglect, is wholly false and without
foundation of fact. Plaintiff had the evidence under her control which would have established
the contention, if it be true, or shown it to be false, and refused to court and counsel to allow
said Henley to testify on behalf of defendant. We claim the rule to be that where a party has
testimony material and relevant in a case and refuses to produce it on the application of the
other party to the suit that the statement of what the opposite party expects to prove by the
witnesses is to be proven and weighed against the party refusing to produce the testimony.
Counsel desired to prove by said W. J. Henley, plaintiff's attorney, that he (Henley) before the
commencement of said action had advised plaintiff as to her property rights and as to her
rights under the laws of the State of Nevada, and had advised her to set forth other allegations
under her complaint, and had advised her to pray for the property, permanent alimony, and for
the care and custody of the minor children, and that, notwithstanding such advice, plaintiff
had instructed him (Henley) to draw the complaint in the manner and form set out in the
transcript.
IV. Defendant testified in his affidavit that he never treated plaintiff with extreme cruelty,
except upon one occasion.
V. The evidence shows that plaintiff is an unfit person to have the care, custody, and the
education of the minor children. J. H. Mitchell testifies in his affidavit that plaintiff, his wife,
told him at their home in Hawthorne that it took a young man to do family duty every time,
etc. The foregoing demonstrates to a mathematical certainty that plaintiff is an unfit and
improper person to have the care, custody and control of said children of said marriage.
VI. In view of the provisions of section 3245, Comp. Laws, it does seem to us that if the
plaintiff is dissatisfied with the decree entered in this case on November 23, 1903, then
the proper course for her is to ask the court to set aside the decree; then apply to the
court for leave to amend her complaint, serve the amended complaint on defendant, and
give him a day in court to test her right to greater relief than she demanded and prayed
for in her complaint and as set forth in said complaint and the summons served upon the
defendant.
it does seem to us that if the plaintiff is dissatisfied with the decree entered in this case on
November 23, 1903, then the proper course for her is to ask the court to set aside the decree;
then apply to the court for leave to amend her complaint, serve the amended complaint on
defendant, and give him a day in court to test her right to greater relief than she demanded
and prayed for in her complaint and as set forth in said complaint and the summons served
upon the defendant.
VII. The court found the property to be the separate estate of the defendant, and in the face
of that fact took the possession of the property from the defendant and gave the possession of
said property to the plaintiff, notwithstanding that section 521 of the Compiled Laws provides
that only community property shall be divided between the parties.
P. M. Bowler, Jr., for Respondent:
I. The decree entered in the first instance is within the issues of the complaint, taken as
confessed by the default of the defendant. (See complaint, summons, and decree.)
II. The remedy herein is by motion, under provision of section 68, Civ. Prac. Act. (Imlay
v. Carpentier, 14 Cal. 177; Bibend v. Kreutz, 20 Cal. 114; Ede v. Hazen, 61 Cal. 360.)
The court may in furtherance of justice * * * relieve a party from a judgment, order, or
other proceeding taken against him through his mistake, inadvertence, surprise, or excusable
neglect. (Comp. Laws, 3163.)
The affidavit of Hattie Mitchell, corroborated by Jesse Midgely, accounts for the allegation
of no community property, because of the understanding, out of court, between the parties
that she should have the property as a home for herself and children. The prayer of complaint,
that the custody of children be awarded to defendant, is also accounted for by such
understanding.
There was omitted from the complaint, owing to the false, fraudulent, and deceitful
conduct of defendant, allegations affecting the substantial rights of the plaintiff. Such
omission was in consequence of the supposed settlement of the property rights out of court
and the understanding regarding the children that plaintiff should have the custody, control,
and companionship of her children and that they should abide with her continually,
though the legal custodianship should, in form only, by the decree, be vested in
defendant; the actual possession, supervision, and control of the children should be in
plaintiff, they to be by her nurtured and cared for, and that defendant would pay all costs
and expenses for their maintenance and support.
trol, and companionship of her children and that they should abide with her continually,
though the legal custodianship should, in form only, by the decree, be vested in defendant; the
actual possession, supervision, and control of the children should be in plaintiff, they to be by
her nurtured and cared for, and that defendant would pay all costs and expenses for their
maintenance and support. The legal custody was by decree awarded to defendant, but with the
positive and definite understanding that plaintiff should continue in their possession, they to
be and remain with her unless she should depart from this state, in which event her parents
should be intrusted with the care, custody, and control of the children, the defendant to pay
the necessary expenses.
Fraud and deceit were practiced upon her. The decree entered, while it determined the
marital status in her favor, hopelessly failed in every other substantial right, and left
undetermined the property rights. (See affidavit of Mrs. Mitchell and Jesse Midgely.)
A mistake of law as well as of fact will be considered and the parties relieved from its
consequence. (Love v. S. N. W. & M. Co., 32 Cal. 639; Remington v. Higgens, 54 Cal. 624.)
III. The decree before modification affected the marital status of the parties thereto; to that
extent it is a proceeding in personam.
Section 68 of our civil practice act (Comp. Laws, 3163) is remedial, especially designed
for cases such as we are considering. The decree failed in a complete settlement of the
substantial rights. Courts have inherent power, for good cause shown and in furtherance of
justice, to do that which should have been done; and in this case, there being a failure,
caused by the false, fraudulent, and deceptive representations of defendant, in the settlement
of the property rights of the parties, it became the imperative duty of the court, upon notice to
defendant and good cause being shown therefor, to convert the proceedings to modify and
reform the decree in accordance with the respective rights. And, while the judgment was of
our procurement, yet, because of the fraud of defendant, it failed as regards the property
rights, and it should be made to conform to the truth and fact, which was the purpose of
the proceeding for reformation and modification.
should be made to conform to the truth and fact, which was the purpose of the proceeding for
reformation and modification.
IV. Anyone who has been injured by a judgment or decree may have it vacated in whole
or in part, it being obtained by his procurement, although it appears to be in his favor. In fact,
the propriety and the necessity of reforming or modifying a judgment on application of him in
whose favor it is is apparent. (Freeman on Judg., secs. 91, 92, p. 94; secs. 99, 104, 107, 108;
Palace H. Co. v. Smith, 134 Cal. 384; Brackett v. Banegas, 99 Cal. 623; Kaufman v. Shain,
111 Cal. 16.)
The order entered upon the minutes of the court assigned as error is harmless; it is
non-prejudicial. No appeal nor other corrective proceeding was ever taken therefrom. The
present appeal is from the corrective proceeding to modify the decree of which defendant had
notice, and the affidavit in this proceeding should be treated as a complaint or petition setting
forth the facts in ordinary and concise language, stating a cause of action requiring the
interposition of the court as provided. (Sec. 68, Civ. Prac. Act, supra.)
The modified decree, in so far as provision is therein and thereby made, changing the
custody of the children to that of plaintiff and making provision for the children, that is to
say, for their maintenance, was not, and is not, in excess of the jurisdiction of the district
court.
The court may, at any time, before, at the time of granting, or after granting the divorce,
make an order for the support of the children. (Comp. Laws, 504, 505.)
The court, in making the order appealed from, exercised its discretion in pursuance of the
statute above cited authorizing the order. It may be done by a proceeding in the original action
before the same court, and may be modified and changed from time to time for good cause
shown, and as often as the circumstances of the case demand. The court has a continuing
jurisdiction. The children are in the custody of the law, the court exercising a supervisory
control over them; they are wards of the court, and its jurisdiction over them is continuing, to
be enforced upon application and notice and for good cause shown.
The paramount consideration always moving the court in such cases is: What is for the
best interest and welfare of the children? And so, in proportion as a necessity exists, the court
may be moved to exercise its continuing statutory power, authority, and jurisdiction.
V. The court may at all times upon proper application and notice make orders for the
maintenance and education of the children of divorced parents as it may deem just and for
their interest and welfare. The statutory provisions cited confer the authority and may be
invoked at any and all times as the occasion and necessity demand, and the exercise of the
court's authority in the matter cannot be limited or abridged by the parties. It is strictly matter
of statutory grant of jurisdiction. (McKay v. Superior Court, 120 Cal. 143; Parkhurst v.
Parkhurst, 118 Cal. 22; Wilson v. Wilson, 45 Cal. 399; Ex parte Gordan, 95 Cal. 374; Wand
v. Wand, 14 Cal. 513; Crater v. Crater, 135 Cal. 633.)
VI. The statute law of this state before cited and rules of court (District Court Rules 11
and 45) provide for modification of judgments and decrees especially in matters pertaining to
the children of divorced parents.
The innocent parent on whose prayer the divorce is granted will ordinarily have the
custody. (Bish. M. D. & Sep. 1196, vol. 2.)
A woman compelled by her husband to resort to divorce ought not to obtain it at the
expense of losing the society of her children. (Id. and note to sec. 1201; Wand v. Wand, 14
Cal. 513; Wilkinson v. Deming, 22 Am. Rep. 192.)
The order of the 11th day of November, 1903, after entry of the decree in the case, cannot
be considered on this appeal. It is supplemented and vitiated by the subsequent order,
judgment, and decree of the court had upon application regularly made upon notice, issue
joined, and trial had on the 8th day of February, 1904. Again, if such order is so utterly void,
it is not necessary to appeal therefrom, for it can have no operation or effect. (Killip v. Empire
Mill Co., 2 Nev. 34; Ranft v. Young, 21 Nev. 401.)
The affidavits of plaintiff and defendant were the pleadings, though in form and name called
affidavits. The issue was joined, trials had, and the court's decision entered, in part
favorable to defendant as well as to plaintiff.
joined, trials had, and the court's decision entered, in part favorable to defendant as well as to
plaintiff.
The modification of the decree was regularly made upon a showing of good cause therefor
and upon notice and a contra-showing by defendant.
Counsel treat the proceeding for modification as if default was entered and judgment
entered beyond the relief demanded by the complaint. Such is not the case. The affidavit of
good cause takes the place of and is in fact a complaint, a statement of facts in ordinary and
concise language which was attempted to be answered by the affidavit of defendant. Issue
was thus joined, proof submitted, and issue tried and obtained.
Counsel say: Even if the complaint, etc., the evidence submitted by defendant is opposing
the motion that plaintiff's contentions are wholly false and untrue, and further show that
plaintiff is an unfit person to have the care and custody of the children.
The statements of plaintiff are false and malicious because contradicted by others.
This is not matter for consideration by an appellate court. The weight of evidence and the
credibility of witnesses are matters for consideration by the trial court. Where the evidence is
conflicting appellate courts will not disturb the verdict of the jury, and especially will
appellate courts refuse to set aside findings of fact, judgments, and decrees on matters of fact.
The assignments of error contain no specification wherein the evidence is sufficient to
justify the decision and judgment of the trial court. Insufficiency of evidence to justify the
judgment and decision of the court may be ground of motion for a new trial, but on an appeal
from the judgment or order we respectfully submit that such a ground for reversal on appeal
from a judgment or order will not be tolerated. (Burbank v. Rivers, 20 Nev. 81.)
The decree entered in the cause, before being modified, related to the divorce and custody of
the children; it did not determine the property rights, but was of divorce simply. It, therefore,
did not conclude the parties or either of them on other matters.
on other matters. It can have no res adjudicata operation on the property rights or claims of
the respective parties, for it did not decree upon any other such question. (Greenl. Ev. 528,
529, 532; Earl v. Bull, 15 Cal. 425; Comp. Laws, 505; De Godey v. Godey, 39 Cal. 163;
Biggi v. Biggi, 98 Cal. 35; Kirschner v. Dietrich, 110 Cal. 505.)
The complaint does contain a statement that there is no community property. In view that
the statement out of court as shown by the plaintiff's affidavit and the circumstances attending
the case throughout, it explains away the statement. The decree is silent on the matter, hence
the question of property rights was never determined until the modified decree was rendered.
It is true that there was a general finding that all of the allegations of the complaint are
true, but this is not a determination of the property rights of the parties, for the findings are no
part of the judgment or judgment roll. (Comp. Laws, 3300.) Findings were unnecessary, there
being no appearance, a default being entered. (Reading v. Reading, 96 Cal. 4.) Therefore,
whatever statement may be contained in the complaint as to the existence or non-existence of
community property can be considered only as an omission of plaintiff which might have
been used for what it is worth as tending to show that the real estate was the separate property
of the defendant, being the rents, issues, or profits, or the product of property owned and
possessed by him before marriage, but, when considered in the light of plaintiff's statement of
the settlement of the property rights by the agreement, promises, and representations
specifically set forth in her affidavit and in the light of all the attendant facts and
circumstances of the case in the view that there was no community property, for by her
statements it became hers by gift from him in any event, it thereby becomes eliminated from
the case entirely.
VII. The right to divorce could be determined by jury trial; the property rights by the court
without a jury or sitting as chancellor who could call to his aid a jury to whom special issues
might have been submitted for answer to aid the court.
VIII. We respectfully submit that under the provisions of Comp. Laws, 504, providing
that the court, in granting a divorce, shall make such disposition of and provision for the
children for their best interests, it could not only deprive him of the possession for their
benefit, but could also divest him of the title for that purpose, and that is precisely what it has
done. The divorce did not destroy paternity; it did not remove paternal obligation to provide
for his children.
Pyne & Mack, for Appellant, in reply:
I. The language quoted by counsel for respondent from section 68 of the practice act
cannot, by any reasonable construction, be construed to mean that a judgment entered on
default can be amended so as to grant the party in whose favor judgment is entered greater
relief than that alleged and set out in the original judgment; the word relieve has never been
construed in that section to mean amend or modify. Taking the whole section together, the
logical construction leads to the conclusion that the word relieve means to set aside and
annul, or take away. Nowhere can any authority be found that the word relieve, as used in
that section, means to amend by increasing the amount of relief given to the plaintiff. In the
first two sentences of said section the word amend is used, and if the legislature had
intended relief to be granted by way of amendment, the word amend would have been used,
the same as in the first two sentences of this section. The authorities cited by counsel from the
14th, 20th, and 61st California Reports do not sustain his position wherein he claimed the
court had a right to amend the judgment entered on default and increase the relief beyond the
allegations of the prayer of the complaint; on the contrary, all of the three cases cited hold that
the remedy is to set aside the judgment and restore to the calendar, and not to amend or
increase without trial.
II. Counsel for respondent admits that the judgment was by respondent's procurement. We
contend that if she were dissatisfied with the judgment it was her duty to ask the court to set it
aside, amend her complaint, and serve the same upon the defendant, and give the latter his
day in court upon the amended complaint; otherwise, as was done in this case, judgment
and execution were had without a trial on the merits of the case before a jury and thus
deprived respondent of his property and his rights in direct violation of the constitution of
this state, as provided in sec.
the defendant, and give the latter his day in court upon the amended complaint; otherwise, as
was done in this case, judgment and execution were had without a trial on the merits of the
case before a jury and thus deprived respondent of his property and his rights in direct
violation of the constitution of this state, as provided in sec. 3, art. I, of said constitution. If,
as counsel contends, the judgment could have been vacated upon proper application, how can
the vacating of a judgment be tortured so as to mean the right to amend a decree of divorce
beyond the allegations of the prayer and the complaint? The authorities cited by counsel do
not sustain him in his position. In the case of Palace Hardware Company v. Smith, 134 Cal.
381, the course pursued was just what we contend should have been done in this case,
provided respondent was dissatisfied with the judgmentnamely, the judgment should have
been vacated.
III. If, as counsel for respondent suggests, the affidavit and notice are to be treated as a
complaint, then respondent should have been allowed to file his answer and go to the jury on
the issue framed, as the constitution provides. The record shows that appellant has never
waived his right to go to trial by jury. We are unable to find any provision in the practice act
authorizing the lower court to treat the notice and affidavit as a complaint, nor an affidavit as
an answer; on the contrary, sections 3131 to 3135 of the practice act, Comp. Laws, set forth
what shall be considered a complaint and an answer, and the legislature having so provided,
nothing can be substituted for them.
IV. There is no allegation in the complaint of any property, hence no issue was made in
the complaint as to the property rights of either respondent or appellant. (Howe v. Howe, 4
Nev. 472; Walton v. Walton, 32 Barb. 203; Moore v. Guest, 8 T. H. 119.)
V. The complaint alleges that the care, custody, and control of the minor children be
awarded and imposed upon the defendant, but notwithstanding this allegation it may be held
by this court that the lower court, on good cause shown and when it would be to the best
interests of the children, change the custody from the father to the mother.
We claim no good cause was shown; on the contrary, the affidavits stricken out by the court,
together with the affidavit of J. H. Mitchell, show the respondent to be an unfit person, etc.
The morals of the parents are an element of the highest importance in the question of custody,
for the influence of example, especially of parents, is controlling over children. (Bishop on
Marriage and Divorce, sec. 1197; Kremelberg v. Kremelberg, 52 Md. 553; Jackson v.
Jackson, 8 Or. 402; Uhlman v. Uhlman, 17 Abb. N. Cas. 236.) The court, in changing the
custody of children, proceeds upon new facts considered in connection with the facts formerly
established, including the change of circumstances, the conduct of the parties, and the morals
of the parents. (Crater v. Crater, 135 Cal. 633.)
VI. The complaint contained no allegation as to the character of plaintiff nor her fitness to
have the care and custody of the children; on the contrary, she showed that the defendant was
the proper person to have the care and custody of the children, hence the contention of
counsel that whatever the conduct of the respondent might have been before the decree was
granted it was merged in the judgment. In order to have this question merged in the judgment
so as to estop us from raising this question, it was necessary for the plaintiff to have made the
proper allegations in her complaint and had the question litigated and decided. (Caperton v.
Smidt, 26 Cal. 481; Black on Judgments, 2d ed., sec. 609, and authorities cited thereunder.)
VII. It was inexcusable carelessness on the part of respondent not to have set out in her
complaint all of the property owned by her husband, if she desired to have the property set
aside to her. Instead of so alleging, she set forth in her complaint that there was no property
and so testified when the decree of divorce was granted. (Champion v. Wood, 79 Cal. 17.)
VIII. Had the respondent alleged in her complaint that she was a fit and proper person to
have the care and custody of the minor children, and that she desired to have the property set
aside to her, the appellant would have appeared and defended the case, as is shown by the
affidavits of the appellant, Lucy Barlow, W. B. Mercer, Grace Roschollar, and F. B. Stewart.
lant, Lucy Barlow, W. B. Mercer, Grace Roschollar, and F. B. Stewart. The complaint states
that there was no property; the original decree made no disposition of the property. No
allegation of the property being made, the court could not dispose of the property in any
manner. (Comp. Laws, 3245; Howe v. Howe, 4 Nev. 472.) All of the authorities cited by
counsel in his brief show that respondent, in order to give the court the right to dispose of the
property in any manner, should have moved to set aside the decree, amend her complaint, and
set forth the property that she desired to have given her; otherwise the court was powerless to
dispose of the property.
In an action for divorce upon the ground of extreme cruelty, brought by the wife, the
husband defaulted. Proofs were taken, and a decree of divorce entered dissolving the marriage
and awarding the custody of the children to the husband in accordance with the prayer of the
complaint. Afterwards, and upon the 8th day of February last, upon notice to reform and
modify the judgment and decree upon the ground of mistake, inadvertence, surprise, and
excusable neglect, and for fraud and deceit practiced upon the wife, the court amended the
decree by awarding her the custody of the children, requiring the husband to pay her $50 per
month for their and her support, and allowing her to remain in a dwelling house in the town
of Hawthorne belonging to the separate estate of the husband while she remains the
custodian. The appeal is from this amended judgment.
The civil practice act provides that the relief granted to the plaintiff, if there be no answer,
shall not exceed that which he shall have demanded in his complaint. (Section 3245, Cutting's
Comp. Laws.) The allegations of the complaint in effect are that the husband has been guilty
of extreme cruelty; that there is no community property, nor any separate property belonging
to the wife; that there are children, and facts showing that the husband is able to maintain
them, concluding with a prayer for judgment of divorce, that the husband be awarded the
custody of the children, and for such other and further relief as may seem just and
equitable.
and for such other and further relief as may seem just and equitable. Under the provisions of
the above statute, the husband not having answered, the wife was entitled to a decree of
divorce, and the husband to the custody of the children, in compliance with the express prayer
of the complaint. This is the extent of the power that the court could exercise.
The portion of the prayer containing the words for such other and further relief as may
seem just and equitable cannot warrant a judgment inconsistent with the theory and
allegations of the complaint.
The amended judgment is reversed, and cause remanded.
Fitzgerald, J.: I concur.
Talbot, J., concurring:
In the prayer of her complaint the plaintiff asked for a dissolution of the marriage, and for
costs of suit, that the care and custody of the children be given to the defendant, and for
nothing more. Default and decree following this demand were regularly entered on November
11, 1903. This judgment contained no reservation for further consideration or order by the
court. Later on the same day the court, without application or notice, entered this minute
order: And it is further ordered, adjudged, and decreed that the plaintiff be and is entitled to
the sum of fifty dollars per month from said defendant as long as she has the custody and the
care of said children, for the support of her children and herself. As to this order, I concur in
the reasoning and conclusion that it was beyond the prayer of the complaint and the limitation
of relief by default under the statute. On January 20, 1904, the plaintiff served upon defendant
and filed a notice of motion and petition to modify and reform the judgment and decree upon
the grounds (1) of mistake, inadvertence, surprise, and excusable neglect, and (2) of fraud and
deceit practiced and perpetrated upon plaintiff. At the hearing affidavits were filed, and both
parties and other witnesses testified. The court, by its modified judgment, on February 8th
found and decreed that the dwelling house in Hawthorne was the separate property of
defendant, that the piano and household furniture were community property, that the
plaintiff was a fit and proper person to have the care and control of the children, that she
and the children be allowed the exclusive possession of the house and lot so long as she
remained their custodian.
was the separate property of defendant, that the piano and household furniture were
community property, that the plaintiff was a fit and proper person to have the care and control
of the children, that she and the children be allowed the exclusive possession of the house and
lot so long as she remained their custodian. As both parties were before the court, these
provisions in the modified decree are not limited or controlled by the statute confining the
relief to the prayer of the complaint when the defendant fails to appear. Section 504 of the
Compiled Laws provides that the court may, upon good cause shown, change the custody of
the children. The decisions are not uniform as to whether provisions for alimony can be
modified in the absence of authorization by statute without reservation in the decree, but it
has generally been held that modification regarding alimony or the custody of children can
only be made upon notice and for good cause shown, arising after the rendition of the
judgment, such as a change in the condition, circumstances, character, or conduct of the
parents or in the needs of the child. In this connection it is sufficient to say that this is not a
proceeding of that kind. The motion to modify the decree is based upon section 68 of our
practice act, which directs that upon affidavit showing good cause, and after notice to the
adverse party, and upon such terms as may be just, the court may relieve a party from a
judgment or order taken against him through his mistake, inadvertence, or excusable neglect.
It should be noted that the court may set aside such judgment or order, but the word modify
does not appear. She testified that he agreed to allow her to retain the children if she secured a
decree giving them to him. Without apparent contradiction the evidence indicated that he
intended to oppose her action for divorce by answer and evidence tending to show that she
had been guilty of conduct which would entitle him to a dissolution of the marriage, and that
to avoid publicity and possible disgrace he consented to have her secure the divorce on
condition that he be awarded the custody of the children and allowed to retain the property.
He was lulled into making default by a complaint which asked for a dissolution of the
marriage, and that he be given the control and care of the children, and which did not
demand property or alimony.
marriage, and that he be given the control and care of the children, and which did not demand
property or alimony. By her petition the plaintiff did not ask that the whole decree, or that
part of it dissolving the marriage, be set aside, but, retaining that portion which was favorable
to her, she secured the order of the court reversing the provisions favorable to him. If this
order were permitted to stand, he would be deprived not only of the children, but of his
opportunity to defend the action by answer and trial before court and jury. He surrendered this
right on condition that he be awarded the custody of the children, of which this order would
deprive him. If she was not satisfied with the judgment which by agreement she secured
against him by default, by having the children awarded to him, and showed good cause for
being relieved from it, if any part of it was to be set aside, in justice to him and under the
language of section 68 of the practice act, the motion and order ought not to have covered less
than the vacation of the whole judgment, and the restoration to him of the right to defend the
suit.
For the reasons indicated, I concur in the judgment reversing the orders mentioned.
____________
28 Nev. 127, 127 (1905)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JANUARY TERM, 1905
____________
28 Nev. 127, 127 (1905) Ex Parte Kair
[No. 1659.]
Ex Parte PETER KAIR.
Eight-Hour LawConstitutionalityPolice PowerHealth Regulation.
1. Act of February 23, 1903 (Stats. 1903, p. 33, c. 10,) imposing a penalty on any one working more than eight
hours a day in any mine, smelter, or mill for the reduction of ores, is not void, under Const. Nev. art. I,
sec. 1, guaranteeing the right to acquire and possess property, but is sustainable as a valid health
regulation under the police power.
2. Nor does it violate the eighth amendment to the federal constitution, forbidding the imposition of excessive
fines and cruel and unusual punishments.
3. The statute being sustainable as a valid health regulation within the police power, owing to the fact that
prolonged labor in such places is injurious, as a matter of common knowledge, evidence that
defendant's occupation was not injurious is not admissible in a prosecution under the statute.
4. Where one is imprisoned on a conviction under a statute entirely void, the remedy is habeas corpus.
Application by Peter Kair for habeas corpus to secure his release from the county jail of
Lyon County, where he was committed for a violation of Stats. 1903, p. 33, c. 10.
Applicant remanded.
28 Nev. 127, 128 (1905) Ex Parte Kair
Alfred Chartz, for Petitioner:
I. Admissibility of evidence: In general the court may hear testimony and evidence to
determine whether the prisoner should be remanded, held to bail, or discharged from custody.
(Vol. 9, Ency. of Pl. & Pr., p. 1052, and authorities cited.) Evidence may be received to show
want of probable cause to hold the prisoner. (Id., p. 1053.)
Comp. Laws, 3764, says: If it shall appear to the judge, by affidavit, or upon hearing of
the matter, or otherwise, * * * shall cause the complainant, or other necessary witnesses, to be
subpenaed to attend at such time as shall be ordered, to testify before such judge. On this
point it is submitted that all the testimony taken before the committing magistrate and the
testimony introduced before the court are part and parcel of the case.
II. Testimony is admissible to overcome the judgment of the legislature: There is a line of
decisions which holds that a legislative enactment cannot be overridden by testimony. For
instance, the constitutionality of the eight-hour law depends on the question as to whether its
provisions are within the police power of the state. If judicial knowledge fails to disclose
whether a statute is a legitimate exercise of the police power, evidence should be introduced
to enlighten the judicial mind. The abuse of power depends on facts which can be determined
as well as any other facts. Only by this means can adequate protection be extended to newly
discovered industries, and a line of decisions, unsound in the light of later experience, be
avoided by the courts. (Harvard Law Review, Feb. 1904, p. 269; People v. Marx, 99 N. Y.
377; People v. Lochner, 177 N. Y. 145; Atkin v. Kansas, 191 U. S. 207; Northern Securities
Case.)
City of Cleveland v. Clements Bros., 59 L. R. A. 781, says: The judgment of the general
assembly in such cases is not conclusive.
In re Jacobs, 98 N. Y. 98, says: Under the guise of a police regulation personal rights and
property cannot be invaded arbitrarily, and the determination of the legislature is not final or
conclusive, quoted at page 15, Ex parte Boyce, in Pacific Reporter. See, also, page 3, Ex
parte Boyce, in which, as in the New York case, judicial notice is taken of extraneous facts
in support of the law, and if admissible in support of the law, it is admissible against it.
28 Nev. 127, 129 (1905) Ex Parte Kair
as in the New York case, judicial notice is taken of extraneous facts in support of the law, and
if admissible in support of the law, it is admissible against it. So, if the rule held by this court
in the Boyce case, that the decisions of California and Ohio do not apply by reason of the fact
of later decisions, the old rule, that the judgment of the legislature could not be questioned or
varied by testimony, no longer applies by reason of the fact that the line of later decisions
vary that rule.
The decisions on the eight-hour law are practically unanimously based upon facts, and,
therefore, it is submitted that, if the facts of the case at bar show that the occupation of
working in a wet-crushing mill is healthful, the constitutional right of private individuals to
enter into contracts for labor cannot be interfered with under the guise of the police power of
the state. So, if underground mining is attended with dangers peculiar to it, laws adapted to
the protection of such miners from such danger should be confined to that class of mining,
and should not include other employments not subject to them. (Ex parte Boyce, supra, p. 5.)
So, if dry-crushing quartz-mills are attended with dangers peculiar to them, laws adapted to
the protection of those who work in them should be confined to that class of milling and
should not include wet-crushing mills not subject to such dangers. Particular attention is
called to the foregoing comparison, on the ground that it is firmly believed that the legislature
did not intend to include within the provisions of the act employments that were healthful and
safe. The object of the act is to insure safety and health of laboring men, and not to interfere
with the rights of those who enjoyed safe and healthful employments. If counsel for the state
claims that the legislature intended to take away from man his right to work more than eight
hours, in the interest of the general public in employments where the general public is not
interested, let him say so.
III. The right of a state to declare that no one working for it, or for any municipalities in it,
has been upheld by the Supreme Court of the United States, with dissenting opinions by the
Chief Justice and Justices Brewer and Peckham {Atkin v. State of Kansas), and the decision
rests solely on that ground. On the question of the right of individuals to contract one
with the other, they say it is a question of such large import that they do not decide it,
and do not need to, showing that, according to the opinion of that court, the case of
Holden v. Hardy does not decide the question.
28 Nev. 127, 130 (1905) Ex Parte Kair
ham (Atkin v. State of Kansas), and the decision rests solely on that ground. On the question
of the right of individuals to contract one with the other, they say it is a question of such large
import that they do not decide it, and do not need to, showing that, according to the opinion
of that court, the case of Holden v. Hardy does not decide the question. The right of the state
to enact laws forcing railroad companies to put on safety couplers, or mining companies to
place steel bonnets over their cages, and all similar laws, is not questioned, and they should
not be invoked in support of the case at bar. It is begging the question. The state legislature
may also have the right to enact laws affecting the welfare of women and children (and I
claim it has no such right as to women competent to contract for themselves), but, as to man,
he is the lord, and he will not permit any interference with his right to dispose of his labor as
he chooses, and there are many women who would fight for that right as bravely as man
would. It is idle to suppose and presume that a man will receive as much for eight hours' labor
as he would for more hours of labor. Such economic questions must settle themselves on the
basis of man's ability to earn money for his employer. If he has not sufficient time in
twenty-four hours to earn enough to pay for his employment, it is only a question of time
when he must be discharged or go unpaid for his labor.
IV. The law is in contravention of article VIII of the amendments to the constitution of the
United States: The petition pleads the foregoing fact. Article VIII of the amendments to the
constitution of the United States reads as follows: Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted. If the Court of
Appeals of New York took judicial knowledge from reading dictionaries, medical journals,
semi-medical journals, pseudo-medical journals, and quarterly reviews of different kinds, and
what not, the Supreme Court of Nevada will not close its eyes to legislative enactments of
this state as a basis upon which to find facts.
V. An act relating to vagrancy and vagrants (Comp. Laws, 4860) provides that any person
convicted of vagrancy may be imprisoned in the county jail for a term not exceeding ninety
days, and that means that one day would be the minimum of punishment.
28 Nev. 127, 131 (1905) Ex Parte Kair
may be imprisoned in the county jail for a term not exceeding ninety days, and that means
that one day would be the minimum of punishment. The above act is taken as a basis upon
which to decide whether an excessive fine has been prescribed by the legislature, because it is
the opposite of industry. It is most respectfully submitted that an act which prescribed as its
minimum a fine of $100 for working more than eight hours is an excessive fine, coming
within the purview of the constitutional inhibition. The attorney-general claimed such fine
was not excessive, because, he said, defendant would not have to pay it, but some one else
would. What difference does it make to this court who has to pay it? The fine seems to be
excessive and unreasonable, and, in the language of the attorney-general, absurd and
ridiculous.
VI. It is submitted that the punishment is so severe and out of all proportion to the
offense as to shock public sentiment and violate the judgment of reasonable people. (Vol. 8,
Ency. of Law, 2d ed., p. 440; art. I, sec. 6, Nev. Con.) The fine is excessive and the
punishment severe and out of all proportion to the injury the petitioner committed on society,
and the fine could not be less under the law, and the law is therefore unconstitutional. Such a
law brands industry as a crime and ennobles slothfulness, laziness, shiftlessness,
comparatively speaking, in so far as punishment is concerned.
James G. Sweeney, Attorney-General, for Respondent:
I. Where the record is complete, and it is not questioned that it is a full and correct copy of
the proceedings and testimony of the lower court, and where the return is not controverted or
denied, testimony is not admissible, nor will it be introduced on a hearing of a petition of
habeas corpus in this court; the issue raised is one of law only, which must be tried upon the
case made, and no fact de hors the record can legally be considered. (Vol. 9, Ency. Pl. & Pr.,
p. 1052; Ex parte Bird, 19 Cal. 130; Church on Habeas Corpus, sec. 350, and authorities
there cited.) It is submitted to the court that if the law were otherwise, the supreme court
would be converted from an appellate into a trial courta principle this court has in
emphatic terms, at different times in various opinions, stated it will not allow or do.
28 Nev. 127, 132 (1905) Ex Parte Kair
verted from an appellate into a trial courta principle this court has in emphatic terms, at
different times in various opinions, stated it will not allow or do. It is further submitted that it
is absurd to insist that testimony is admissible to add to or make up a different case than
that which the record discloses upon which the petitioner was convicted, it being full and
complete and not controverted.
II. The act of the legislature of Nevada, approved February 23, 1903, entitled An act
regulating the hours of employment in underground mines and smelters, and providing
penalties for the violation thereof, being a regulation within the police power of the state, is
constitutional and is conclusive in itself, although no evidence contradictory to the claim that
work in reduction works is healthful employment appears. (Sanders v. Commonwealth, 77
S. W. (Ky.) 358; In re Ten-Hour Law for Street Railways, 61 L. R. A. (R. I.) 612; State v.
Cantwell, S. W. (Mo.) 568; Ex parte Boyce, 27 Nev. 299, and authorities there cited.) That
the law may seem unreasonable, oppressive, or absurd, or that there may be objection to its
policy or expediency, is not sufficient to justify its judicial repeal. These are matters which
are solely within the discretion of the legislature. (Ex parte Boyce, 27 Nev. 299; Mayor of
New York v. Millen, 11 Pet. 138; Cooley Const. Lim. 164; Nathan v. Alabama, 8 How. 73;
Pattison v. Yuba, 13 Cal. 179-92; People v. Gillson, 109 N. Y. 406; Commonwealth v.
McWilliams, 11 Pa. St. 61-70; Sharpless v. Mayor, 21 Pa. St. 147, 161-2; Passenger Cases, 7
How. 402; Ah Lim v. Territory, 1 Wash. St. 162; Williams v. Commack, 27 Miss. 209.) In the
case of Sanders v. Commonwealth, supra, appellant was convicted of selling milk from cows
fed on still slop in violation of the statute; he gave evidence showing that still slop used
under proper conditions was not unhealthful food for dairy cows, and that their milk when
thus fed was pure and wholesome. This presents a case identically parallel with the one at bar,
in which petitioner attempts to show that the work in which he is engaged is not injurious to
health. In the Kentucky case no evidence was offered on behalf of the state, but the court held
that the law in itself was conclusive.
28 Nev. 127, 133 (1905) Ex Parte Kair
was conclusive. It is submitted that this is the only safe rule, because, if otherwise, every
person would be a law unto himself, setting up his judgment against that of the legislature,
and would render the law nugatory.
III. Counsel for petitioner has mistaken his remedy in the case at bar. In this court the
constitutionality of the law itself may be considered settled. Petitioner claims that his case
does not come within the purview of the law, in that the testimony shows the employment in
which he is engaged as being not unhealthful. The justice held that the law does apply to such
a case, which resolves the issue practically into one of statutory construction. If the justice
wrongly interpreted the law, it was error, which should have been corrected on appeal, but not
on habeas corpus. It is not denied but that the court had full jurisdiction to act in the
premises, which, as a rule, cuts out the remedy of habeas corpus. It is just the same as if a
man were convicted of murder or robbery or burglary, and set up the facts as proved did not
constitute the crime charged. And it is respectfully submitted that the remedy is one of appeal,
and not of habeas corpus. (Ex parte Winston, 9 Nev. 71; Ex parte Maxwell, 11 Nev. 428; Ex
parte Bergman, 18 Nev. 331; Ex parte Crawford, 24 Nev. 92; Ex parte Edgington, 10 Nev.
215; Ex parte Smith, 2 Nev. 338.)
Alfred Chartz, for Petitioner;
points and authorities on submission.
I. The court asks: FirstCan the statute under which petitioner was convicted be
sustained as constitutional otherwise than as a health regulation within the police power of
the state? I can comfortably permit the attorney for the state to answer that question, and let it
drop. My answer, however, is that it cannot, and the legislature of the state cannot, under the
guise of the police power of the state, deprive man of his civil and industrial liberty to
contract for the disposition of his labor, according to his inclination, his needs, and the needs
of his family. The legislature did not say that employment in mines, smelters and reduction
works is either unhealthful or dangerous, and this court, in Ex parte Boyce, has simply
assumed that it is upon the private information of one member that working in a
dry-crushing mill at Delamar was unhealthful.
28 Nev. 127, 134 (1905) Ex Parte Kair
Boyce, has simply assumed that it is upon the private information of one member that
working in a dry-crushing mill at Delamar was unhealthful.
SecondIf it can only be sustained on the ground that it is such health regulation, is the
court bound by the admission of fact in the record that the employment followed by petitioner
is not unhealthful, and, if so, should the testimony taken on the hearing, subject to the
objection of the attorney-general, be stricken out? Without the taking of testimony admitted
by the court under the objections of the attorney-general there is sufficient matter shown in
the record proving conclusively to the court that the occupation of a millman in a wet-quartz
crushing-mill is healthful, pleasant, and much sought after, and in no way calls for the
interference of police power of the state to prevent man from exercising and enjoying his
rights to dispose of his labor as best he may, according to his strength, his family, and
circumstances in life, to promote his own welfare in accordance with his own individual
judgment. The decision in Ex parte Boyce settles the second question. A decision of the
supreme court of this state is as good and binding as a statute of the state. In that case the
court accepted hearsay testimony. If this court accepted hearsay testimony in that case to the
effect that labor in a dry-quartz crushing-mill was unhealthful, why should it not accept the
testimony of the expert millmen, with great and long experience, although taken on the
hearing on the application for the writ, and although the same might not be admissible? Peter
Kair testified that he worked in quartz mills for nearly thirty years, and had very good health.
It is submitted that the appellate court should not speculate on the fact that other wet-crushing
quartz-mills are not healthful or dangerous to work in.
ThirdCan the court take judicial knowledge of the fact that employment in mills for the
reduction of ores is unhealthful, and consequently exclude the testimony and ignore the
admission of fact mentioned? Employment in mills for the reduction of ores is nowhere
recognized as healthful or unhealthful, or dangerous. It is nowhere enumerated as a fact that
any court can take judicial knowledge of.
28 Nev. 127, 135 (1905) Ex Parte Kair
of. It is an uncertain quantity and depends entirely upon proof. The legislature has not said
that it is unhealthful. It has simply singled out the industry in which the hours of labor shall
be limited, but in no way has it intimated that employment in mines, mills, ore reduction
works, or smelters is unhealthful or dangerous. It has passed no judgment on that point.
FourthIn how far is the court bound to conclude that employment in such mills is
unhealthful because the legislature has enacted that the hours of labor therein shall be
limited? It seems to me that the foregoing is a very important question. The legislature of
this state has limited the hours of labor, but has not said that any employment, anywhere, in
any capacity, is either unhealthful or dangerous. If the foregoing statement is true, wherein
does judgment lie? It lies in the supreme court of this state. What on? It must be based on
testimony. The testimony shows beyond any doubt that employment in wet-crushing mills is
preferable to any employment upon the farm. Testimony being introducible on this point, the
court should feel itself bound by the testimony introduced. No court and no decision shows or
tends to show that the judges did not base their decisions upon the facts proved to ascertain
whether the employments designated by the legislature were in fact dangerous. If it were
otherwise, in order to introduce an eight-hour day for labor in all classes of employment, all
the legislature would have to do would be to designate all classes of employment by name,
and its dicta would become law, and the miner working 3,000 feet underground would be
limited to eight hours' work per day, and ranch hands would need to work no longer, and
could not contract to work longer, because the legislature had settled the question that his
occupation was unhealthful and dangerous equally with the occupation of the miner. The
question of jurisdiction to cause a commitment or imprisonment, whether before or after a
judgment of conviction, is always a proper subject of inquiry on habeas corpus. And in order
to determine this jurisdiction, either in respect to the subject-matter or to the person, the court
will go through the whole case, if necessary, even if such an inquiry involves an
examination of facts outside of, but not inconsistent with, the record."
28 Nev. 127, 136 (1905) Ex Parte Kair
sary, even if such an inquiry involves an examination of facts outside of, but not inconsistent
with, the record. (Vol. 9, Ency. of Pl. & Pr., p. 1045, and authorities cited at notes 1 and 2.)
The indictment may be looked into so far as to ascertain whether the court had jurisdiction of
the offense charged in it. (Id., p. 1046; 100 U. S. 339.) Even ex parte affidavits could be
received by this court in evidence. (Joab v. Sheets, 99 Ind. 328.) Evidence could be received
even to contradict the return. (Vol. 9, Ency. of Pl. & Pr., p. 1052, note 6.) And the evidence
taken before the magistrate may be looked into and examined, or additional testimony
received, in order to determine the sufficiency, legality, or regularity of the commitment.
(Id., p. 1057.) The court may go behind the record in its inquiry into this question where the
tribunal is one of appellate jurisdiction in respect to the court by which the commitment was
made, or where the latter court was one of inferior or limited jurisdiction, though it seems that
in case of courts of cordinate jurisdiction only the record of the trial can be considered.
(Ency. of Law, 2d ed., vol. 15, p. 202.)
FifthIf admitted that employment in some mills for the reduction of ores is unhealthful
for a part or all of the workmen, and that the legislature may restrict the hours of labor, or
those who may be injured, does it follow that the act will be effective as to all quartz mills
and to all persons working in them, or should the court take evidence and determine in every
case whether the employment is unhealthful or dangerous? In view of the fact that if the
legislative power has any right whatever to interfere with man's right to dispose of his own
labor as he pleases, that right is based solely upon the police power of the state.
II. If both wet and dry-crushing quartz-mills are unhealthful in every class and phase of
their employments, and therefore come within the purview of the police power of the state,
we still have another class of reduction works which come under the ban of the act, and that
is cyanide plantsa practically new way of reducing ores and extracting the noble metals
from their matrix. The legislature, in its infinite wisdom, has placed such works in the same
list with smelters.
28 Nev. 127, 137 (1905) Ex Parte Kair
I doubt if there was a single man in that legislature who knew anything about a cyanide plant.
III. What is the offense under the act? Is it working over eight hours in one day? Not at
all. It is the injury the laborer may inflict upon the public by getting sick or getting hurt. It is
because of the interest the public may have, if there is any reason for the law whatever, that
the hours of employment may be regulated. The public has an interest in those only who may
offend, and not in those who do not offend. If a man is healthy and following a healthful
employment, the public has no interest in his work. Every person has his distinctive
individuality, and the law can treat him only as an individual and judge him according to his
offense.
IV. The police power of the state should be exercised only in extreme cases and when all
other remedies have failed. The eight-hour law can be upheld only under the police power of
the state. That fact shows that all other resources and recourses must first be exhausted before
the legislature can constitutionally be permitted to pass any such law. We are passing through
an industrial stage of quite general discontent on the part of employees, brought about by
unpatriotic selfishness on the part of very wealthy and very powerful employers, none of
whom live in Nevada. There has never been any reason for discontent in Nevada, and there
was never any discontent, and none now exists in Nevada on the part of employees or on the
part of employers, except such as the eight-hour law itself created. There was never any
demand for such a law. It is not born of the exigencies of any case. The farmer, the employer,
the mechanic, the man of family, and men who feel their responsibility, are against it, and
none but the loafer, floater, and politician, who cannot see beyond the present hour, can favor
it. The right of laboring men to form unions and enter into associations for their mutual
protection and advantage is not questioned in the slightest degree by me. Capital or the
employer has no greater or better right. Both must be limited in their rights by the basic law
of the land. On that charter we must live or die.
28 Nev. 127, 138 (1905) Ex Parte Kair
James G. Sweeney, for Respondent:
points and authorities on submission.
I. The court asks, first: Can the statute under which petitioner was convicted be sustained
as constitutional otherwise than as a health regulation within the police powers of the state? I
believe that it can. Under the police powers of the state I believe that it should and can be
sustained, upon both the principles that such a law promotes the general welfare of the public
as well as its public morals. The court, in discussing the subject of police powers, said:
Whatever differences of opinion may exist as to the extent and boundaries of the police
power, and however difficult it may be to render a satisfactory definition of it, there seems to
be no doubt that it does extend to the protection of the lives, health, and property of the
citizen, and to the preservation of good order and public morals. The legislature cannot, by
any contract, divest itself of the power to provide for these objects. They belong emphatically
to that class of objects which demand the application of the maxim, Salus populi, suprema
lex,' and they are to be attained and provided for by such appropriate means as the legislative
discretion may devise. That discretion may no more be bargained away than the power itself.
All rights are held subject to the police power of the state. If the public morals require the
discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed
from providing for its discontinuance by any incidental inconvenience which individuals or
corporations may suffer. (Wallace v. The Mayor and City Council of Reno, 27 Nev. 81.) It
can also be sustained under the police power of the state, upon the ground that it tends to the
preservation of good order, in repressing disturbances and maintaining public peace and
tranquility. (Ex parte Boyce, 27 Nev. 299.)
SecondIf it can only be sustained on the ground that it is such health regulation, is the
court bound by the admission of fact in the record that the employment followed by petitioner
is not unhealthful, and, if so, should the testimony taken on the hearing, subject to the
objection of the attorney-general, be stricken out and disregarded? If it can only be
sustained on the ground that it is a health-regulation statute, I emphatically answer that
the court is not bound by the admission of fact in the record that the employment
followed by petitioner is not unhealthful.
28 Nev. 127, 139 (1905) Ex Parte Kair
If it can only be sustained on the ground that it is a health-regulation statute, I emphatically
answer that the court is not bound by the admission of fact in the record that the employment
followed by petitioner is not unhealthful. The statute in itself is conclusive where the reasons
of the legislature in enacting such a law are not unreasonable, oppressive, or in direct conflict
with the constitution. I especially direct the court's attention to Sanders v. Commonwealth, 77
S. W (Ky.) 358.
There was no attempt made by the district attorney in the lower court to introduce
testimony which would prove the occupation of Kair unhealthful, nor did he attempt to secure
any witnesses who would so testify. The district attorney stood on the law as being
conclusive. He was not bound to introduce testimony to secure the conviction of Kair other
than that which would prove that he violated the law. In the Kentucky case, above referred to,
the court held, there being even no evidence offered on behalf of the state, that the law in
itself was conclusive. It is still my candid contention that the law can and should be sustained,
not only on principles of law as set out in my answer, but also that it is a health-regulating
statute under the police power of the state.
ThirdCan the court take judicial knowledge of the fact that employment in mills for the
reduction of ores is unhealthful, and consequently exclude the testimony and ignore the
admission of fact mentioned?
It certainly can and should. In the Boyce case you sustained the law as being constitutional
for the reason that it was a health-regulating statute, and stated that we are all aware in effect
that work in mines, mills, and smelters is more or less dangerous and unhealthful, and all,
save a few opposed to the law, have to admit it if they tell the truth. Having so declared, why
should we be obligated to introduce testimony proving that the same is unhealthful work?
FourthIn how far is the court bound to conclude that employment in such mills is
unhealthful because the legislature has enacted that the hours of labor therein shall be
limited?
To the extent that it is a fact, and that fact is so notoriously and commonly known by the
public and by this court that such employment is unhealthful that it is incomprehensible
to me how the court could conclude otherwise.
28 Nev. 127, 140 (1905) Ex Parte Kair
ously and commonly known by the public and by this court that such employment is
unhealthful that it is incomprehensible to me how the court could conclude otherwise.
FifthIf admitted that employment in some mills for the reduction of ores is unhealthful
for a part or all the workmen, and that the legislature may restrict the hours of labor of those
who may be injured, does it follow that the act will be effective as to all quartz mills and to
all persons working in them, or should the court take evidence and determine in every case
whether the employment is unhealthful or dangerous?
I answer no. The law in itself is conclusive. The law can and should be sustained in this
case as a health regulation and also on the principles stated in my answer to the first question
under the police powers of the state. It would be both impossible under the law, in my
opinion, and unjust to declare the law unconstitutional as to all wet-crushing mills and men
therein employed, because one man in a specific position in a single mill in this state alleges
that his particular employment is not unhealthful.
In the justice court at Dayton, petitioner was convicted, and sentenced to pay a fine of
$100, or serve an alternative of one day for every $2 thereof in the county jail, on a charge of
misdemeanor, for working more than eight hours in one day in a wet-crushing quartz-mill,
contrary to the provisions of the act approved February 23, 1903, by the terms of which the
period of employment of working men in underground mines, smelters, and all institutions
for the reduction or refining of ores or metals, is limited to eight hours per day, under
penalty which specifies a fine of not less than $100 nor more than $500, or imprisonment in
the county jail not exceeding six months, or both. (Stats. 1903, p. 33, c. 10.) Upon failure to
pay the fine imposed, he was committed to the custody of the sheriff of Lyon County, and, by
writ of habeas corpus, demands of this court his release, asserting that the statute mentioned
is unconstitutional and cannot be enforced to limit his liberty to contract or to work more than
eight hours per day, under section 1 of article I of the organic act of this state, which
guarantees the right to acquire and possess property, and that it is also in conflict with
the eighth amendment to the federal constitution, which directs that excessive fines and
cruel and unusual punishments shall not be imposed.
28 Nev. 127, 141 (1905) Ex Parte Kair
eight hours per day, under section 1 of article I of the organic act of this state, which
guarantees the right to acquire and possess property, and that it is also in conflict with the
eighth amendment to the federal constitution, which directs that excessive fines and cruel and
unusual punishments shall not be imposed.
In Ex parte Boyce, 27 Nev. 299, 75 Pac. 1, 65 L. R. A. 47, we had occasion to give the act
in question extended consideration, and held that it was constitutional, and enforceable
against one who worked longer than eight hours per day in an underground mine. After more
mature reflection, we are still satisfied with the reasoning and conclusions reached in that
opinion, and it is unnecessary to repeat them to any great extent. We there held, as a matter of
common knowledge, that prolonged labor in the places mentioned in the statute was
injurious, and, if necessary to resort to that power, that the legislature were warranted in
passing the act as a police or health regulation for the protection of the men employed in
those places, and the benefit to the state. In the present case it is sought to avoid this reason or
justification for the enforcement of the act by stipulation that the occupation followed by
petitioner was not injurious, and by testimony that labor performed in wet-crushing
quartz-mills is not unhealthful, except for the men working around pans and settlers.
Adhering to our opinion in Ex parte Boyce, we are not prepared to say that the mining,
milling, and smelting of ores are not vocations so unhealthful and hazardous that they may
not come under the protecting arm of the legislature; but to recognize these conditions, and
pass laws for their amelioration, and which may protect the health and prolong the lives of the
men so employed, we think, is within the legitimate powers of the lawmaking branch of our
government. If these matters were uncertain, when their existence is necessary to sustain the
law the doubt should be resolved in favor of the statute, for, as held by this court in several
decisions, its validity will be presumed until it is clearly shown to be unconstitutional.
As applicable here, we repeat a part of the language by the Supreme Court of Utah which
we quoted in that case, and which had been adopted by the Supreme Court of the United
States as a part of the decision in Holden v. Hardy, 169 U. S. 366, 1S Sup. Ct. 3S3, 42 L.
Ed. 7S0: "Unquestionably the atmosphere and other conditions in mines and reduction
works differ.
28 Nev. 127, 142 (1905) Ex Parte Kair
the Supreme Court of Utah which we quoted in that case, and which had been adopted by the
Supreme Court of the United States as a part of the decision in Holden v. Hardy, 169 U. S.
366, 18 Sup. Ct. 383, 42 L. Ed. 780: Unquestionably the atmosphere and other conditions in
mines and reduction works differ. Poisonous gases, dust, and impalpable substances arise and
float in the air in stamp mills, smelters, and other works in which ores containing metals
combined with arsenic or other poisonous elements or agencies are treated, reduced, and
refined; and there can be no doubt that prolonged effort, day after day, subject to such
conditions and agencies, will produce morbid, noxious, and other deadly effects in the human
system. Some organisms and systems will resist and endure such conditions and effects
longer than others. It may be said that labor in such conditions must be performed. Granting
that, the period of labor each day should be of a reasonable length. Twelve hours per day
would be less injurious than fourteen, ten than twelve, and eight than ten. The legislature has
named eight. Such a period was deemed reasonable. The law in question is confined to the
protection of that class of people engaged in labor in underground mines, and in smelters and
other works wherein ores are reduced and refined. This law applies only to the classes
subjected by their employment to the peculiar conditions and effects attending underground
mining, and work in smelters and other works for the reduction and refining of ores.
Therefore it is not necessary to discuss or decide whether the legislature can fix the hours of
labor in other employments. Though reasonable doubts may exist as to the power of the
legislature to pass a law, or as to whether the law is calculated or adapted to promote the
health, safety, or comfort of the people, or to secure good order or promote the general
welfare, we must resolve them in favor of the right of that department of government. But the
fact that both parties are of full age and competent to contract does not necessarily deprive the
state of the power to interfere where the parties do not stand upon an equality, or where the
public health demands that one party to the contract shall be protected against himself. The
state still retains an interest in his welfare, however reckless he may be.
28 Nev. 127, 143 (1905) Ex Parte Kair
retains an interest in his welfare, however reckless he may be. The whole is no greater than
the sum of all the parts, and when the individual health, safety, and welfare are sacrificed or
neglected, the state must suffer.
It is a matter of common knowledge that the health of many men is impaired by labor in
quartz mills. If, by taking proof that others are not injured, the statute is to be declared void or
inoperative as to them, we enter a wide field of uncertainty and speculation, and, instead of
having the constitutionality of the act rest upon solid ground and a sure foundation, its
enforcement would become subject to the more or less speculative opinions of interested
parties and others, and to the conclusions of various justice courts and juries regarding the
probability of injury to men working longer or shorter periods in the places mentioned; and
witnesses could testify regarding the consequences to health from labor in these
employments, and thereby indirectly regarding the necessity for legislative action and the
validity of the statute, in each case as it arose. If exceptions based upon such proof are to be
made to the enforcement of the act, they might depend not only upon the character of the mill
and the distinguishing features of the work of the various men employed, but upon the age,
constitution, vitality, and probable endurance of the different employees, the ingredients used
in working the ores, such as quicksilver, cyanide, or other chemicals injurious to health, the
quantity and effect of dust and fumes, the character of the ores, and whether they contained
lead, arsenic, or other harmful substances, from day to day, or upon other conditions and
uncertainties, which would multiply litigation, and lead to doubt and difficulty in securing the
benefits intended by this legislation.
Although courts should be careful not to usurp the powers delegated to the lawmaking
branch of the government, and should not receive evidence regarding facts of which they are
satisfied by judicial knowledge, and although all reasonable doubts should be resolved in
favor of the action of the legislature and constitutionality of the statute, yet we are not
prepared to say that there is any conclusive presumption in favor of any fact essential to
support the validity of the enactment as being within the police power of the state, or that
the court having proper jurisdiction may not receive proof regarding any controlling fact
which is in doubt.
28 Nev. 127, 144 (1905) Ex Parte Kair
in favor of any fact essential to support the validity of the enactment as being within the
police power of the state, or that the court having proper jurisdiction may not receive proof
regarding any controlling fact which is in doubt. A review of the decisions indicates that the
courts have acted in cases similar to the one under consideration, generally upon judicial
cognizance, or, if in doubt, have accepted the judgment of the legislature or received proof.
Chief Judge Parker, speaking for the court in People v. Lochner, 177 N. Y. 145, 69 N. E.
373, in an opinion filed one day after ours in the Boyce case, reviewed many of the
authorities, pointed out the wide scope of the police power which the federal supreme court
has often held to be vested in the legislatures of the various states, notwithstanding the
fourteenth amendment, cited with approval People v. Havnor, 149 N. Y. 195, 43 N. E. 541,
31 L. R. A. 689, 52 Am. St. Rep. 707, which upholds an act regarding barber shops, and
found, as a matter of judicial knowledge, that work in bakeries and confectioners'
establishments was unhealthful, and for that reason sustained the New York statute restricting
the hours of labor in those places.
Twenty days after the filing of the opinion in Ex parte Boyce, and before publication of it
had likely reached there, the Supreme Court of Missouri, after a careful consideration of the
authoritiesthe case being on appealheld that the act limiting labor to eight hours a day in
underground mines in that state was constitutional; that the validity of the statute could not be
made dependent upon the opinions of experts as to the necessity for such enactment; and that
the testimony of physicians, mining engineer, and foreman, and of one who had worked
thirty-four years in the mines, could not be received to prove that such underground work was
not more injurious to health than laboring the same number of hours on the surface. Justice
Fox (all the justices concurring) said: Defendants sought to introduce testimony of expert
witnesses tending to show that the underground work contemplated by this act of the
legislature was not attended with danger to the health of those engaged in the performance of
such work. This testimony was excluded by the court, and, in our opinion, correctly so.
28 Nev. 127, 145 (1905) Ex Parte Kair
in our opinion, correctly so. The validity of laws enacted in the exercise of the police power
of the state cannot be made dependent upon the views of experts as to the necessity of such
enactment. If the constitutionality of all laws enacted for the promotion of public health and
safety can be assailed in this manner, truly and sadly would it be declared that our laws rest
upon a very weak and unstable foundation. (State v. Cantwell, 179 Mo. 245, 78 S. W. 569.)
In Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253, plaintiff in
error was convicted and fined $100 for selling packages of an article of food marked
Oleomargarine Butter, under a statute of that state prohibiting the manufacture out of
oleaginous substances, or out of any compound thereof other than that produced from
unadulterated milk or cream, of any article designed to take the place of butter or cheese, and
making it unlawful to sell the same. On the trial the accused offered to prove that the article
was made from pure animal fat; that the process of manufacture was clean and
wholesomethe article containing the same elements as dairy butter, the only difference
between them being that the manufactured article contained a smaller proportion of the fatty
substance known as butterine; that the only effect of butterine was to give flavor to the
butter, and that it had nothing to do with its wholesomeness; that the article sold to the
prosecuting witness was a nutritious article of food, in all respects as wholesome as butter
produced from pure unadulterated milk or cream; that, for the purpose of manufacturing and
selling this oleomargarine, he had invested large sums in real estate, machinery, and
ingredients; that in his traffic in this article he made large profits, and, if prevented from
continuing it, the value of his property employed therein would be entirely lost, and he be
deprived of the means of livelihood. The rejection of this proof by the trial court, and the
conviction and judgment against the accused, were sustained by the supreme courts of that
state and of the United States; and Justice Harlan, in delivering the opinion for the latter
tribunal, said: It will be observed that the offer in the court below was to show by proof that
the particular article the defendant sold and those in his possession for sale, in violation of
the statute, were in fact wholesome or nutritious articles of food.
28 Nev. 127, 146 (1905) Ex Parte Kair
and those in his possession for sale, in violation of the statute, were in fact wholesome or
nutritious articles of food. It is entirely consistent with that offer that manyindeed, that
mostkinds of oleomargarine butter in the market contain ingredients that are or may
become injurious to health. The court cannot say, from anything of which it may take judicial
cognizance, that such is not the fact. Every possible presumption, Chief Justice Waite said,
speaking for the court in Sinking Fund Cases, 99 U. S. 700, 718, 25 L. Ed. 496, is in favor of
the validity of the statute, and this continues until the contrary is shown beyond a rational
doubt. One branch of the government cannot encroach on the domain of another without
danger. The safety of our institutions depends in no small degree on a strict observance of this
salutary rule. See, also, Fletcher v. Peck, 6 Cranch, 87-128, 3 L. Ed. 162; Dartmouth College
v. Woodward, 4 Wheat. 518-625, 4 L. Ed. 629; Livingston County v. Darlington, 101 U. S.
407, 25 L. Ed. 1015 * * * And as it does not appear upon the face of the statute, or from any
facts of which the court must take judicial cognizance, that it infringes rights secured by the
fundamental law, the legislature's determination of those facts is conclusive upon the courts.
It is not a part of their functions to conduct investigations of facts entering into questions of
public policy, merely, and to sustain or frustrate the legislative will embodied in statutes, as
they may happen to approve or disapprove its determination of such questions. If all that can
be said of this legislation is that it is unwise or unnecessarily oppressive to those
manufacturing or selling wholesome oleomargarine as an article of food, their appeal must be
to the legislature or to the ballot box, not to the judiciary. The latter cannot interfere without
usurping powers committed to another branch of government.
Laws restricting the hours of labor in some form have been enacted in many of the states,
and these statutes, when relating to vocations that affect the health or safety of the people
employed, have generally been sustained by the courts as not in conflict with state or federal
constitution, except in Colorado.
28 Nev. 127, 147 (1905) Ex Parte Kair
Aside from these cases in the Supreme Courts of the United States and of Utah and
Missouri sustaining similar enactments directly limiting the hours of labor in places named in
our statute, there are many able decisions maintaining this general doctrine, and upholding
various acts similar in principle, among which are the vigorous opinion by Justice Field in Ex
parte Newman, 9 Cal. 518, later adopted by the court in Re Andrews, 18 Cal. 685, and the
numerous cases cited in People v. Havnor; State v. Cantwell; Ex parte Northrup, 41 Or. 490,
69 Pac. 445; State v. Petit, 74 Minn. 379, 77 N. W. 225; Ex parte Boyce, 27 Nev. 299;
Sanders v. Com. (Ky.) 77 S. W. 358; Butler v. Chambers, 36 Minn. 71, 30 N. W. 308, 1 Am.
St. Rep. 638; People v. Bellet, 99 Mich. 151, 57 N. W. 1094, 22 L. R. A. 696, 41 Am. St.
Rep. 589; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77.
The decisions in California and New York holding statutes that limit labor on public
works to eight hours to be unconstitutional are not considered applicable here, because such
employment was not claimed to be unsafe or injurious to health. These cases are not only
overthrown by Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148, but by the very
principle advanced to sustain them, for, if liberty of action and freedom of the individual to
contract are to control when the employment is not unsafe or unhealthful, certainly the state
ought to have the same right to regulate the terms and conditions in its own contracts and
those of its municipalities as is accorded to individuals.
If we were not satisfied, as a matter of common knowledge, that prolonged labor in the
employment restricted by the statute is injurious to the health of the workmen as a class, we
would determine regarding the admissibility of evidence in this connection to enlighten the
court and control the judgment and act of the legislature; but, being so satisfied, we do not
deem it expedient to allow testimony in particular or exceptional cases to defeat the
constitutionality of the act. It is not difficult to distinguish between employments which in
principle are not unhealthful or injurious, as a class, and those which are, and a statute
relating to the latter ought not to be nullified or rendered uncertain in its operation because
some of the employees may possibly be exempt from injury.
28 Nev. 127, 148 (1905) Ex Parte Kair
because some of the employees may possibly be exempt from injury. If the enforcement of
the statute depended upon proof of injury to the workmen in every case, it could be contended
that the justice court would have power on the trial to hear the evidence and determine the
fact; and, having jurisdiction, if it erred in finding or failing to find, or in accepting or
rejecting, proof, its action would be reviewable on appeal, and not on a writ of habeas
corpus, which would be a proper remedy if the act were entirely void, and its invalidity not
dependent upon varying proofs in different cases. (Ex parte Edgington, 10 Nev. 215; Ex parte
Crawford, 24 Nev. 91, 49 Pac. 1038; Ex parte Allen, 12 Nev. 87; Ex parte Bergman, 18 Nev.
331; 4 Pac. 209; Ex parte Kitchen, 19 Nev. 178, 18 Pac. 886; Ex parte Maxwell, 11 Nev. 429;
Ex parte Winston, 9 Nev. 71; In re Peraltareavis (N. M.) 41 Pac. 538; Ex parte Le Roy (Okl.)
41 Pac. 615; In re Black (Kan.) 34 Pac. 414, 39 Am. St. Rep. 331; Ex parte Adams (Ark.) 28
S. W. 1086; In re Rosenberg (Wis.) 63 N. W. 1065; Ex parte Belt, 15 Sup. Ct. 987, 40 L. Ed.
88; State v. Noyes (Wis.) 58 N. W. 386, 27 L. R. A. 776, 41 Am. St. Rep. 45; Ex parte
Perdue (Ark.) 24 S. W. 423.)
Naturally enough, many of the most ardent opponents of any limitation to the time for
labor in unhealthful or unsafe pursuits are actuated more by anxiety to profit by the long
hours of toil of others, than by any desire to labor so long themselves, while some of the
world's most eminent minds have favored such limitation. Before the invention of many of
the most ingenious labor-saving devices with which we are blessed to-day, and consequently
when the effort required to support the world was much greater per capita than now, our
ever-esteemed patriot, statesman, and philosopher, Franklin, proclaimed that, by the proper or
equal distribution of labor, no one would need to toil one-half so long as the time for which
petitioner contends. President Harrison, in his annual messages of 1889, 1890, 1891, and
1892, urged upon Congress the necessity of requiring appliances to prevent injuries in the
coupling and braking of cars engaged in interstate commerce, and legislation to that end was
sustained recently by the Supreme Court of the United States in Johnson v. Southern Pacific
Company, 196 U. S. 1, 25 Sup. Ct. 15S.
28 Nev. 127, 149 (1905) Ex Parte Kair
States in Johnson v. Southern Pacific Company, 196 U. S. 1, 25 Sup. Ct. 158. Count Tolstoi
favors the reduction in the hours of labor for employees in factories and mills, and President
Roosevelt, in his message to Congress last December, advocated a restriction in the hours for
trainmen. While Governor of New York he recommended and signed a bill which made an
eight-hour day for the employees of that state. He and Presidents Grant, Cleveland, and
McKinley favored the limitation to eight hours of labor on government works.
The fact that the vocations mentioned in the statute, including the one of milling ores, are
injurious to the health of many of the men following them, if not to some extent to all,
justified the action of the legislature; and we think that, in order to give due effect to its
terms, it should be enforced against all coming within the classes specified.
The defendant is remanded to the custody of the sheriff of Lyon County.
Fitzgerald, C. J.:
I concur in the result stated in the foregoing opinion, and my reasons therefor will
hereafter be filed.
This case having been submitted during the October term, Norcross, J., did not participate.
____________
28 Nev. 151, 151 (1905)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
APRIL TERM, 1905
____________
28 Nev. 151, 151 (1905) Candler v. Ditch Co.
[No. 1666.]
MRS. C. I. CANDLER and WILLIAM CANDLER, Her Husband, Respondents, v. THE
WASHOE LAKE RESERVOIR AND GALENA CREEK DITCH Company, a
Corporation, Appellant.
CropsDestructionDamagesIrrigationConstruction of ContractsAppealTime of
TakingAssignments of Error.
1. An appeal from a judgment, when not taken within one year from the time of the rendition of the judgment, as
required by Comp. Laws, 3425, will be dismissed.
2. Where the assignments of error do not include any general assignment, in accordance with Comp. Laws,
3292, that the decision or judgment is not supported by the evidence, or is contrary to the evidence, but
specify a number of particulars in which it is alleged that the evidence is insufficient to sustain the
findings and decision of the court, the supreme court's consideration of the evidence will be limited to
such portions thereof as refer to the particulars specified as insufficient.
3. A provision of a contract to supply water for irrigation, requiring defendant to deliver to plaintiffs 50 inches
of water on Section 14, near the line of Section 23, at a point to be designated on the line of a certain
ditch, merely fixes the place of delivery, and does not preclude plaintiffs from recovering damages for
the loss of crops on Section 23 in case of defendant's failure to deliver the water as required.
4. Errors not presented in the briefs of appellant's counsel nor in the oral argument will not be considered.
5. The measure of damages for the total destruction, or nearly total destruction, of growing crops which would
to a reasonable certainty have matured except for defendant's wrongful act, is the value of the probable
yield of the crops under proper cultivation when matured and ready for market, less the estimated
expense of producing, harvesting, and marketing them, including the expense of irrigation, and the
value of any portion of the crops that may have been saved.
6. Wheat seed is a necessary expense of producing a crop of wheat, and the value thereof is not an element of
damage for the destruction of the crop while growing.
7. The value of timothy and alfalfa seed, planted, not to produce a single crop, but to obtain a stand which will
produce crops for many years without further seeding, is an element of damage for the wrongful
destruction of the crops, including the seed, while growing.
Appeal from the District Court, Washoe County; M. A. Murphy, Judge.
Action by Mrs. C. I. Candler and another against the Washoe Lake Reservoir and Galena
Creek Ditch Company. From a judgment for plaintiffs and from an order denying a new trial,
defendant appeals. Appeal from judgment dismissed, and appeal from order affirmed on
condition.
I. In this case plaintiffs brought suit on an alleged breach of contract whereby plaintiffs
alleged that defendant agreed to furnish 50 inches of water upon Section 14, Township 18
north, Range 20 east, during the irrigation season, according to a written contract set forth and
made part of the complaint. Plaintiffs further alleged in their complaint that defendant failed
to furnish water according to contract and they had been damaged thereby, among other
things, by loss of crop, seed, and labor to produce the same. Defendant answered by alleging
that it had furnished the 50 inches of water according to contract up to the 8th day of August,
1902, and a smaller amount thereafter for the reason that sufficient water was not obtainable
from said creek after said 8th day of August, and also denied that plaintiffs had been damaged
in any sum whatever; and further alleged that by the terms of said contract plaintiffs had
agreed to pay defendant $2.50 per acre for the first crop and $2.50 for the second crop.
second crop. The court found that defendant had agreed to furnish 50 inches of water upon
Section 14 during the irrigating season, when obtainable. The court found that defendant
furnished 50 inches of water according to the terms of the contract from the 10th day of May
to the 8th day of August, 1902. The court found that plaintiffs relying upon the agreement of
the defendant cleared and seeded to alfalfa, timothy, and wheat 29 acres of land and seeded to
timothy and alfalfa 5 acres in addition thereto, for the purposes of pasturage, in Sections 14
and 23, expecting to irrigate and cultivate the crops so sown with the waters agreed to be
furnished, etc.
II. There is a conflict between findings 3 and 5 in this, that in finding 3 the court found
that the defendant had agreed in writing to furnish 50 inches of water on the land in Section
14, but nowhere found that defendant had ever agreed to furnish any water upon Section 23,
while in paragraph 5 the court found that defendant had cleared and sown the land in Sections
14 and 23. The court further found in said finding 5 that the loss sustained was for loss of
crops, etc., on Section 23, and this part of said finding 5 is in conflict with finding 3, and it is
not sustained by any evidence in the case. It is in direct opposition to all the evidence
introduced on the trial.
III. The court erred in giving plaintiffs damages for loss of crops raised or attempted to be
raised on Section 23, as under the findings and evidence the defendant cannot be held or
mulcted in damages for any loss for crops raised or attempted to be raised on the lands in
Section 23. The court found that the defendant fulfilled its contract up to the 8th day of
August, 1902, and furnished some water after that date, but insufficient in quantity to irrigate
all of the crops in Sections 14 and 23. We contend that in the absence of a showing to the
contrary, in the face of the finding of the court that defendant furnished some water after the
8th day of August, 1902, the law presumes the defendant furnished water sufficient to irrigate
the crops of Section 14 after the said 8th day of August, 1902, and, further than that, the
burden of proof fell on plaintiffs to show by a preponderance of the evidence that defendant
failed to supply sufficient water to irrigate the crops on Section 14 after the said Sth day
of August, 1902, and under the evidence the court erred in not finding there was
sufficient water furnished by defendant to irrigate the crops in Section 14.
ance of the evidence that defendant failed to supply sufficient water to irrigate the crops on
Section 14 after the said 8th day of August, 1902, and under the evidence the court erred in
not finding there was sufficient water furnished by defendant to irrigate the crops in Section
14.
IV. The court found that plaintiffs had been damaged by the loss of the wheat crop so
sown on Sections 14 and 23 to the amount of $362.25; by loss of fall pasture, 34 acres, to the
amount of $120.60; to the amount expended for wheat and alfalfa seed used in seeding said
land, $96.88; and to the amount of $150 expended for labor, etc. The court, on motion for
new trial, struck out the item of $150 as being an error. The court erred in finding that
defendant should pay for the seed put into the ground to raise the crop after assessing the crop
as damage against defendant. Until the trial of this case, whoever heard of a case where the
judge gave the crop to plaintiffs as a damage, then on top of that gave plaintiffs the costs of
the seed sown to produce the crop? We claim that this error is so apparent that the bare
statement is sufficient to disclose the error. This finding of the court further shows that a part
of the seed ($96.88) was sown upon Section 23 with which defendant had no concern, and we
claim is such an error as is fatal to the judgment. This finding further shows that the item,
$102.60 damages, assessed against defendant for loss of fall pasturage, was for loss of
pasturage on Section 23, which is in direct conflict with finding 3, and the verdict in the case
is wholly unsustained by any evidence. The contract and the entire evidence shows
conclusively that defendant never agreed to supply water on Section 23 under any
circumstances. Further, the assessing of the seed as a damage against the defendant was the
same kind of an error as that committed by the court in allowing the irrigator's wages against
the defendant, and should have been stricken out or a new trial granted.
V. The court found that defendant furnished plaintiffs with water according to contract to
August 8, 1902. The evidence of James Burke shows without any contradiction that the first
crop was ready to cut July 1st. Under said finding and on said evidence defendant was
entitled according to said contract to the sum of $2.50 per acre for water for irrigating the
first crop, and it was error on the part of the court to refuse defendant this sum of $95 as
an offset to the amount of damages allowed to plaintiffs, the court having given the
plaintiffs damages as follows, to wit: Value of timothy seed, $15.3S; value of alfalfa seed,
$52.50; value of wheat seed, $29; loss of pasturage of 34 acres of land at $3 per acre,
$102; 29 acres of wheat, 900 pounds to the acre, at 1 1J4 cents per pound, $362.25; the
wages of an irrigator from May 7, 1902, until the 7th day of August, 1902, at $150 per
month, $675.13.
finding and on said evidence defendant was entitled according to said contract to the sum of
$2.50 per acre for water for irrigating the first crop, and it was error on the part of the court to
refuse defendant this sum of $95 as an offset to the amount of damages allowed to plaintiffs,
the court having given the plaintiffs damages as follows, to wit: Value of timothy seed,
$15.38; value of alfalfa seed, $52.50; value of wheat seed, $29; loss of pasturage of 34 acres
of land at $3 per acre, $102; 29 acres of wheat, 900 pounds to the acre, at 1 1/4 cents per
pound, $362.25; the wages of an irrigator from May 7, 1902, until the 7th day of August,
1902, at $150 per month, $675.13. This was the value of the seed, crop, and labor of raising
the crop just as though the crop had been raised and fully matured. Under any fair ruling the
defendant was entitled to $190 for irrigating the land so long as he was held liable under the
contract for the seed, crop, and labor in raising the same.
VI. The court erred in giving plaintiffs damage for loss of wheat crop, for the reason the
contract in evidence shows that defendant agreed to furnish water for two crops, the first
being ready to cut about July 1st, and the second during September, and the fact that plaintiffs
planted a crop that would not mature within those dates should not be assessed against
defendant under the terms of said contract. The court erred in making no allowance for the
hay and wheat which plaintiffs cut and used from said lands which were raised by the water
supplied by defendant. The court erred in giving defendant the gross value of the crop value
without deducting the expenses of raising, cutting, harvesting, and marketing the same.
Cheney, Massey & Smith, for Respondents:
I. The respondents' motion heretofore filed herein to dismiss the appeal from the judgment
should be sustained. The mere suggestion of the facts is sufficient to justify this action of the
court. The judgment was entered on the 7th day of July; the notice of appeal was served on
the 19th day of September, 1904, more than a year after the judgment was entered. An appeal
is made by filing with the clerk of the court with whom the judgment is entered a notice,
and serving a copy thereof upon the adverse party or his attorney.
court with whom the judgment is entered a notice, and serving a copy thereof upon the
adverse party or his attorney. (Comp. Laws, 3426.) The appeal not having been taken from
the final judgment within one year after the rendition thereof, the motion to dismiss must be
sustained. (Comp. Laws, 3425; Sullivan v. Fuller, 13 Nev. 276.)
II. The appellant's brief herein is so incomplete and unsatisfactory as not to arise to the
dignity of an assignment of errors under the laws of this state. With one or two exceptions,
the matters suggested as a reason for the reversal of the order denying the motion for a new
trial have not even been included in the specifications of error. Most of the suggestions
offered in the appellant's brief were not even made by the pleadings. By an objection to the
evidence or by assignment of errors, and, with the appeal from the judgment dismissed, could
not, under our civil practice act, be presented an appeal from an order denying the motion for
a new trial. Only matters properly arising under section 3290 of the Compiled Laws as
grounds for a new trial, to wit; (1) irregularity in the proceedings of the court, (2) misconduct
of the jury, (3) accident or surprise, (4) newly discovered evidence, (5) excessive damages,
(6) insufficiency of the evidence to justify the decision, and (7) error in law occurring at the
trial and excepted to, can be considered by this court upon an appeal from an order denying
appellant's motion for a new trial. Subdivision 1 of appellant's brief does not even state
correctly the finding of fact therein referred to. The contract, the complaint, and all the
evidence was not to the effect, as suggested by said subdivision, that the water agreed to be
furnished by appellant should be furnished for use upon Section 14. On the contrary the
contract provided for the delivery of the water on Section 14, near the line of Section 23, at a
point to be designated on the line of the Candler Ditch during the irrigating season of each
year. There is nothing in the evidence or in the contract even suggesting that the appellant
should control or name the lands to which the water should be applied or upon which it
should be used. The complaint charges that they failed to deliver at said point, designated by
the appellant itself, the quantity of water agreed to be furnished, and that the same was
insufficient to irrigate certain lands in the possession and ownership of the plaintiffs
during the year complained of.
itself, the quantity of water agreed to be furnished, and that the same was insufficient to
irrigate certain lands in the possession and ownership of the plaintiffs during the year
complained of. It appears from the testimony of Mr. Candler, and by other witnesses who
were stockholders in the defendant company, particularly the testimony of Mr. Hardin, that
the appellant designated the point on the line of the Candler Ditch in Section 14 for the
delivery of the water and placed a box therein for its measurement, and undertook during the
season to comply with its contract by the delivery of the water at that point. It was not the
concern of the appellant as to what lands this water should be used upon. The proof shows
that after a certain date the appellant absolutely failed and refused to deliver at the point it had
designated the quantity of water contracted to be delivered and that, as a result of its failure
and refusal, the crop of wheat grown on Sections 14 and 23, which sections, this court
judicially knows, lie adjacent to each other, and the crops of alfalfa sown thereon valuable for
pasturage were utterly ruined and destroyed.
III. The second contention of appellant, found in paragraph 5 of its brief, is that there is a
conflict between findings 3 and 5 in this, that in finding 3 the court found that the defendant
had agreed in writing to furnish 50 inches of water on land in Section 14, but nowhere found
that the defendant had ever agreed to furnish any water upon Section 23, while in paragraph 5
of the findings the court found that the defendant had cleared and sowed the land in Sections
14 and 23. Again we call the court's attention to the contract. The appellant company did not
undertake to furnish water for the irrigation of any particular land. The respondents did not
designate, and were not required to designate under the contract, on what land they expected
to use or apply the water. Under the contract it was the absolute right of the respondents to
apply the water upon any lands they saw fit, and it was the duty of the company to deliver 50
inches of water on the Candler Ditch at a certain point designated. The mere suggestion of the
contract as set up and of the finding of the court shows that there is no conflict whatever.
Not only is there no conflict between the findings, but no issue was made by the pleadings as
to the liability of the defendant for failure, under the averments of the complaint, to furnish
water upon Section 23. It was not an issue in this case. There is no assignment or
specification of error suggesting a right of reversal upon that ground.
IV. As to the contention contained in the sixth paragraph of appellant's brief, that
respondents were not entitled to pay for loss of crops raised on Section 23, it is sufficient to
say, as has been heretofore said, that it was no concern, under the plain terms of the contract,
of the appellant company as to what lands respondents used the water upon. When they
delivered or attempted to deliver the water at a certain point on the Candler Ditch on Section
14, near the line of Section 23, they had complied with their contract. When they failed to
deliver the 50 inches of water during the irrigating season at the point which they designated
on the line of the Candler Ditch in Section 14, near the line of Section 23, and by such failure
caused respondents to lose crops either on Section 23 or 24, or upon any other section for that
matter, they became liable under the contract.
V. As to all matters of claim or contention respecting the crop that ought to have been
produced but for the failure of the respondent to furnish water as it agreed upon Section 23,
we have nothing more to add. As to the damages awarded, we can do no better than to refer to
the opinion of the trial judge on the motion for a new trial, from which it appears allowance
was not made for the seed, as claimed in the appellant's brief. The damages awarded are
below that justified by the testimony, based both upon quantity and value which should have
been produced had the appellant complied with his contract; neither was allowance made for
the full market value of the crop, as shown by the testimony in the record. Mr. Gibson
testified that wheat started at $1.20 per hundred, and ran up to $1.50.
VI. The contention that the evidence shows that the first crop was ready to cut on July 1st,
by the testimony of James Burke, is not a fact. Mr. Burke is testifying as to the first crop of
alfalfa, two crops of which are ordinarily produced each year.
each year. The crop of alfalfa and timothy sown upon the land in controversy was valuable,
by the undisputed testimony of Bahne, referred to by Judge Murphy in his opinion, only for
fall pasture, and he placed the price upon that crop as for pasture, at $3 per acre. There is no
other testimony in the record upon this point, and this must be taken as conclusive. Only one
wheat crop, as it appears from all the testimony, can be produced during the one season, and
it does not mature until later in the season. Judge Murphy, who visited the ground during the
progress of the trial, explains the situation when he says, in his opinion, that the alfalfa and
timothy that were sown that year with the expectation of pasturage and crops of hay during
the next year were all destroyed for the want of water, with the exception of a few acres, and
the necessity of reseeding made such failure, therefore, an element of damage. The proof as to
the wheat crop, and undisputed, as shown by the testimony of Mr. Candler on the pages above
referred to, was that no wheat at all was cut, but only a few loads of straw that were
practically valueless, the stock even refusing to eat the same.
VII. We further contend that there is not a single assignment of error upon which to base
the contention of appellant's brief, and that, therefore, the judgment should be affirmed.
I. It is true that judgment was rendered in favor of respondents on June 29, 1903, for the
sum of $675.13 and costs amounting to $120.95. Notice of motion for a new trial was served
and filed on July 10, 1903, and thereafter a statement on motion for a new trial was also filed
and settled. The court did not hear the argument on motion for new trial until June, 1904, and
on the 11th day of August, 1904, after due deliberation thereon, the court modified said
judgment by deducting therefrom the sum of $150, holding the judgment to be erroneous to
that extent. We think the proper construction of the language of section 3425, Comp. Laws,
from the final judgment in an action * * * within one year after rendition of judgment, is
one year from the time the judgment became final by the court reducing the judgment and
changing the same from $675.13 and costs to $525.13.
ment and changing the same from $675.13 and costs to $525.13. We contend that the
judgment did not become final until the said 11th day of August, 1904. Had defendant
appealed from the judgment of $675.13, and the supreme court had found no error therein and
affirmed the same, then defendant would have been compelled to pay $150 of an unjust
judgment. A judgment is final beyond question when the jurisdiction of the trial court is
exhausted and the question it decided gone from its control forever. (State v. Sutterfield, 54
Mo. 394; Kamp v. Kendrick, 130 Ind. 546; Western Union Tel. Co. v. Locke, 107 Ind. 9.)
II. Paragraph 3 of the complaint alleges that defendant agreed to furnish 50 inches of
water on Section 14. The answer denies that defendant failed or neglected to furnish
plaintiffs the amount of water agreed to be furnished to said W. M. Candler by defendant
under said agreement, etc. The same denial will be found in other parts of the answer, hence
it will be seen that whether or not 50 inches of water was furnished upon Section 14 was one
of the issues in the case. The finding of the court that defendant was to pay damages for loss
of crops on Section 23 is in conflict with the pleadings, wholly unsupported by any evidence
in the case, and excepted to by Mr. Wren.
III. Again, counsel for respondents assert that there is no assignment or specification of
error, etc., another assertion of counsel for respondents without foundation of fact. In notice
of motion for a new trial, lines 24 to 27, inclusive, p. 453 of transcript, the defendant, by its
attorney, Mr. Wren, asked for a new trial on the ground of insufficiency of the evidence to
justify the findings and decision of the court, and that the decision is against law. Section
3292 of the Compiled Laws says: 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. 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, or whether the specifications particularly point out
the finding or findings, either expressed or implied, that are not supported by the
evidence, or are contrary thereto."
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 expressed or
implied, that are not supported by the evidence, or are contrary thereto. The finding that
defendant is liable to pay damages for loss of crops on Section 23 is not supported by a
scintilla of evidence in the case, but, on the contrary, is in direct conflict with the finding 3
and also in direct conflict with all the evidence in the case. The contract is clear that
defendant was obliged to deliver water on Section 14, and the finding that defendant is liable
for loss of crops on Section 23 is unsupported by any evidence in the case. Hence, it will be
seen that the assignment of error comes clearly within the provision of the statute.
IV. In paragraph 6 counsel for respondents again assert that the findings of the court do
not show that the defendant furnished all the water on Section 14 according to contract up to
the 8th day of August, 1902. This assertion is in conflict with the findings. On page 448 of
the transcript the court can see for itself that the lower court found as follows, commencing
on line 23 of said page: Defendant placed a box for the measurement of said quantity of
water to be furnished plaintiffs under its said agreement. On or about the 10th day of May,
1902, defendant commenced to furnish and deliver said quantity to plaintiffs and continued to
furnish that quantity until about the 8th day of August, 1902, when said defendant failed and
refused upon repeated request and demand to furnish the quantity it had agreed to furnish, and
the amount furnished during said last-named period was entirely insufficient to irrigate and
cultivate said crops and lands, etc. This is just as counsel for appellant claimed the findings
to be in its paragraph 7 of opening brief. Counsel for respondents ought not to find fault with
the findings, or misquote, as the record shows they drew the findings themselves.
V. Counsel for respondents finally assert that the testimony of James Burke does not show
that the first crop was ready to cut July 1st.
ready to cut July 1st. This assertion is in conflict with the evidence; see page 372 of
transcript. We believe that the record shows beyond any question a number of errors of the
trial court prejudicial to the defendant, such errors as he who reads may readily see.
By the Court, Norcross, J.:
This action was brought by the respondents against appellant for damages in the sum of
$2,000 for breach of the conditions upon the part of appellant of a written contract to supply
respondents with 50 inches of water for irrigation, which breach resulted in the loss of
respondents' wheat and pasture crops for the year 1902, and the destruction of a considerable
part of a stand of alfalfa and timothy upon the lands of respondents situated in Sections 14
and 23, T. 18 N., R. 20 E., in Washoe County. Appellant denied liability for, and also the
amount of, the alleged damage. The case was tried before the court without a jury, and
respondents were awarded a judgment against appellant for the sum of $675.13. A motion for
a new trial was made by appellant in the lower court, and upon the hearing of the motion the
court determined that it had erroneously allowed as a portion of the damages the sum of $150,
an amount which represented the wages paid an irrigator. Respondents consented to a
reduction of the judgment by striking out therefrom the said sum of $150, and, the judgment
being so modified, the court overruled the motion for a new trial. From the judgment and
from the order denying the motion for a new trial, defendant has appealed.
Counsel for respondents have moved to dismiss the appeal from the judgment upon the
ground that the appeal was not taken within one year after the judgment was entered, as
required by Comp. Laws, 3425. Final judgment in this case was pronounced by the trial court
on the 29th day of June, 1903, and entered by the clerk in said cause on the 7th day of July
following. The appeal was taken on the 19th day of September, 1904. The appeal from the
judgment, not having been taken within one year from the time it was rendered by the trial
court, is dismissed. (Solomon v. Fuller, 13 Nev.
276; Kehoe v. Blethen, 10 Nev. 453; Comp. Laws, 3425.) The motion for a new trial was
made upon several grounds, only one of which has been urged upon this appeal, to wit,
insufficiency of the evidence to justify the findings and decision of the court, and that the
decision is against law. The assignments of error do not include any general assignment to
the effect that the decision or judgment of the court is not supported by the evidence, or is
contrary to the evidence, as provided may be done in Comp. Laws, 3292, but a number of
particulars are specified in which it is alleged the evidence is insufficient to sustain the
findings and decision of the court. This court's consideration of the evidence therefore will
be limited to such portions only as refer to the particulars specified in which it is claimed the
evidence is insufficient.
The material part of the contract between the parties to this action, in so far as it affects
questions presented on this appeal, is as follows: This agreement, made and entered into this
4th day of January, A. D. 1899, between the Washoe Lake Reservoir and Galena Creek Ditch
Company, a corporation, * * * the party of the first part, and W. M. Candler, * * * the party
of the second part, witnesseth: That the said party of the first part, for and in consideration of
the covenants on the part of the said party of the second part, hereinafter contained, hereby
covenants with the said party of the second part, that the said party of the first part will
furnish to said party of the second part, his heirs or assigns, 100 inches of water on Section
22, Township 18 N., R. 20 E., in Washoe County, Nevada, to be designated by the party of
the second part, on the line of that certain ditch known as the Candler Ditch, during the
irrigating season of each year, for the period of three years; and 50 inches of water from and
after the expiration of the said three years delivered on Section 14, near the line of Section 23,
at a point to be designated on the line of the Candler Ditch during the irrigating season of
each year. * * * And the said party of the second part, in consideration of the covenants on
the part of the first party hereinbefore contained, agrees to and with the said party of the first
part, that the said party of the second part will pay to the said party of the first part, or its
order, the sum of $2.50 per inch for all water furnished by said party of the first part to
the said party of the second part to irrigate the first crop raised by the said party of the
second part, and $2.50 per inch for water furnished by the said first party to said second
party to irrigate the second crop raised by said party of the second part during the
irrigation seasons of each year."
party of the second part will pay to the said party of the first part, or its order, the sum of
$2.50 per inch for all water furnished by said party of the first part to the said party of the
second part to irrigate the first crop raised by the said party of the second part, and $2.50 per
inch for water furnished by the said first party to said second party to irrigate the second crop
raised by said party of the second part during the irrigation seasons of each year.
It has been strenuously urged by counsel for appellant that the evidence and the provisions
of the contract show conclusively that the appellant never agreed to supply water for use on
Section 23, and hence that appellant could not be mulcted in damages for loss of crop on said
section. This contention does not seem to have been urged upon the trial of the cause, and it is
questionable, under the assignments of error, if appellant is now in position to make it.
Without passing upon the question of appellant's right to present the question, we cannot
agree with counsel in the construction they place upon this contract. It is clear, we think, that
the provision of the contract requiring appellant to deliver respondents 50 inches of water on
Section 14, near the line of Section 23 at a point to be designated on the line of the Candler
Ditch, was only intended to fix the place of delivery, and that the water, being thus delivered
to respondents, was theirs to conduct upon whatever lands they could conveniently use the
same upon for irrigation purposes. It was therefore no concern of appellant upon what lands
the water should be used.
Several alleged errors have been assigned which will not be considered, as they have not
been presented in the briefs of appellant's counsel or in the oral argument. (Gardner v.
Gardner, 23 Nev. 213; Allison v. Hogan, 12 Nev. 38.)
The following particulars are specified in which it is claimed the evidence does not support
the decision of the court, and are all that require consideration:
(2) The court made no allowance for the hay and wheat which Candler cut and used from
the land to which the water was supplied by defendant.
(4) The court made no allowance for the expense of raising, maturing, threshing, and
marketing crops that the court held would have grown upon said land had sufficient
water been supplied, but gave plaintiffs judgment for all that said crop would have
brought in the market without deducting the expense of maturing and marketing the
same."
ing, maturing, threshing, and marketing crops that the court held would have grown upon said
land had sufficient water been supplied, but gave plaintiffs judgment for all that said crop
would have brought in the market without deducting the expense of maturing and marketing
the same.
(10) There is no evidence to support that part of the finding of paragraph 5 that finds that
the failure and refusal of defendant to furnish the quantity of water it had so agreed, and that
plaintiffs were damaged by the loss of the wheat to the amount of $362.25, or in any other
sum, or to the amount expended for alfalfa seed used in seeding said land, or in any other sum
whatever, or to the amount of $150, or any sum for labor and board of one person employed
to irrigate said lands and crops, or that the total damage sustained by plaintiffs is $675.13, or
any sum greater than $225.
In passing upon the foregoing specifications it is necessary to determine whether the trial
court adopted and applied a proper measure of damage for the loss of the growing crops. The
measure of damage adopted by the trial court is expressed in its opinion, and is as follows:
The damages would be the value of the crops such as the witnesses should believe would
ordinarily have been produced that year, deducting all expenses of raising the crop.
Is this rule for the measure of damages in cases of this kind entirely correct? The
authorities do not all agree as to what is a proper rule for the measure of damages for loss or
destruction of growing crops. It is generally held, however, that the measure of damages for
the destruction of a growing crop is the value of the crop in its condition at the time of the
injury. A still wider difference of opinion exists among the authorities as to the evidence that
will be heard in determining such damage, as the following extracts will illustrate:
In Sutherland on Damages, sec. 1023, the author says: In ascertaining the value of a crop
in accordance with this rule a considerable latitude of inquiry is properly opened. The
capacity of the land to produce crops being in question, evidence of the average yield of like
crops upon similar lands in the neighborhood, under like circumstances and conditions, is
admissible, and also the average market value of the crop injured within reasonable
limitations as to time and the expense of harvesting and marketing a like crop."
tions, is admissible, and also the average market value of the crop injured within reasonable
limitations as to time and the expense of harvesting and marketing a like crop.
In Sedgwick on Damages, sec. 937, that author says: In estimating the value of the crop,
the prevailing rule seems to be to take its actual value at the time of the trespass, not its
probable value, assuming that it would have matured. On the other hand, in Smith v. Chicago
C. & D. R. R. Co., the measure of damages was stated to be the difference between the market
value of the crops when ripe and their value in an injured state, less the cost of growing them.
This rule, however, is objectionable, because it assumes without proof that the crops would
have come to maturity.
In Burnett v. Great Northern Ry. Co., 76 Minn. 465, 79 N. W. 524, in discussing the rule
as applied to the evidence in that case, the court says: If the damages to the plaintiff's crops
are to be estimated with reference to events occurring subsequent to the loss, such as the
average yield of similar crops and the market value of the grain, the evidence indicates that
they are excessive. But the measure of the plaintiff's damages for the loss of his growing
crops was the value on the day they were destroyed, to be determined by facts existing at that
time.
In the case of Railway Co. v. McGowan, 73 Tex. 362, 11 S. W. 337, that court said: The
crops were destroyed while growing, and before they had matured. As part of his evidence to
establish their value at the time and place they were destroyed, plaintiff was permitted to
prove the value of corn and potatoes of that year's crop in the fall after they had matured and
were ready for market. We think the evidence was properly admitted. The only correct
criterion for ascertaining the value of a growing crop at any period of its existence is to prove
what that character of crop was worth at or near the place where it was grown when matured,
and to make proper estimates and allowances from ascertained and ascertainable facts for the
contingencies and expenses attending its further cultivation and care.
In the case of Railroad Co. v. Pape, in the same volume of reports, at page 501, 11 S. W.
526, the court again discussing the same question, says: "It seems to us that, as a general
rule, the most satisfactory means of arriving at the value of a growing crop is to prove its
probable yield under proper cultivation, the value of such yield when matured and ready
for sale, and also the expense of such cultivation, as well as the cost of its preparation
and transportation to market.
the same question, says: It seems to us that, as a general rule, the most satisfactory means of
arriving at the value of a growing crop is to prove its probable yield under proper cultivation,
the value of such yield when matured and ready for sale, and also the expense of such
cultivation, as well as the cost of its preparation and transportation to market. The difference
between the value of the probable crop in the market and the expense of maturing, preparing,
and placing it there will in most cases give the value of the growing crops with as much
certainty as can be attained by any other method.
From an examination of many authorities we are convinced that a just and reasonable rule
for the measure of damages for the loss of growing crops in cases like the one now before this
court, where it appears that the crops have been entirely destroyed, or nearly so, and where
there appears to be a reasonable certainty that they would have matured but for the wrongful
act of the defendant, would be to allow the plaintiffs the probable yield of the crops under
proper cultivation, the value of the yield when matured and ready for market, and deducting
therefrom the estimated expense of producing, harvesting, and marketing them, and also
deducting the value of any portion of the crops that may have been saved. (Railroad Co. v.
McGowan, supra; Railroad Co. v. Pape, supra; Smith v. Chicago Ry. Co., 38 Iowa, 518;
Shotwell v. Dodge, 8 Wash. 337, 36 Pac. 254; Hopkins v. B.& M. Com. Co., 16 Mont. 359,
40 Pac. 865; Carron v. Wood, 10 Mont. 507, 26 Pac. 388; People's Ice Co. v. Steamer
Excelsior, 44 Mich. 237, 6 N. W. 636, 38 Am. Rep. 246. And see, also, Lommeland v. St.
Paul Ry. Co., 35 Minn. 412, 29 N. W. 119; Sutherland on Damages, supra.)
In the written opinion and decision of the trial court and in the findings is contained a
statement of the items which the court considered as going to make up the proper amount of
damages to be awarded the plaintiffs, and they are as follows: value of alfalfa and timothy
seed planted, $67.88; Value of wheat seed planted, $29; Value of fall pasture, $102; value of
wheat crop, $326.25; wages of an irrigator, $150making a total of $675.13. As the
judgment now stands, after deducting the $150 heretofore stricken from the judgment, the
plaintiffs have been allowed the sum of $42S.25, the market value of the estimated crops
of pasture and wheat, and including the value of the seed as above mentioned.
after deducting the $150 heretofore stricken from the judgment, the plaintiffs have been
allowed the sum of $428.25, the market value of the estimated crops of pasture and wheat,
and including the value of the seed as above mentioned. The wheat seed was a necessary
expense of producing the wheat crop, and therefore is not an element of damage. It is urged
that for the same reason the value of the timothy and alfalfa seed should also be stricken out.
This seed, however, was not planted for the purpose of producing a single crop, but to obtain
a stand which would produce, ordinarily, two crops per year for many years without further
seeding. The court found, because of the failure of the defendant to furnish water as agreed,
that the stand of alfalfa and timothy was in the main killed out. The damage thus resulting
was a damage to the realty itself, and would amount at least to the value of the seed planted to
produce the stand.
There does not appear to be any evidence in the record of what would have been the
probable cost of harvesting and marketing the wheat crop, and it does not appear that these
expenses were considered proper deductions to be made from the estimated market value of
the crop. Also, it appears that the only expense of producing the crops considered by the court
was that of the wages of the irrigator. It, however, appears from the record that, if plaintiffs'
crops had matured, a further and additional necessary expense of their production would have
been the cost of water for irrigation. While, under the findings, the defendant is not entitled to
anything in the nature of a counterclaim for water furnished, nevertheless it is necessary to
consider what the water would have cost in order to determine the net profit, which plaintiffs
should have derived from their crops, which, in brief, is the measure of their damage.
Deducting what the water would have cost, to wit, $250, and the cost of the wheat seed from
the judgment as now modified, and there would remain the sum of $246.13, from which there
should yet be deducted the cost of harvesting and marketing the wheat crop. There is also
evidence upon the part of plaintiffs that a small portion of the crop was saved, of the value of
$15 or $20, which does not appear to have been taken into account in the judgment.
the judgment. For the reasons given, we conclude that the judgment is not supported by the
evidence, and it is ordered that, subject to the consent of respondents, the judgment be
modified and reduced to the sum of $225, an amount admitted in appellant's specifications to
be proper. If respondents shall within ten days from notice of this decision file their consent
to a modification of the judgment by a reduction of the same to the sum of $225, then the
judgment will be so modified, and the order overruling defendant's motion for a new trial will
be affirmed; otherwise, the order is reversed and a new trial is granted. Appellant is entitled to
its costs on appeal.
____________
28 Nev. 169, 169 (1905) Adams v. Child
[No. 1660.]
JOHN Q. ADAMS, Appellant, v. EVALINE A. CHILD,
Respondent.
EjectmentNon-SuitStatute of Limitations.
1. Where plaintiff in an action of ejectment put in evidence only as to the ownership of the property in dispute a
mere paper title, to wit, patents from the United States to his predecessors in interest and conveyances,
mean and direct, from them to him, and then rested, and said plaintiff, upon a motion for a non-suit, was
given an opportunity to present evidence of an agreement between the parties, their grantors or
successors, and which offer plaintiff refused to avail himself of: Held, that the trial court did not
commit error in granting the motion for non-suit.
2. The authorities are abundant to the point that where coterminous proprietors of land, having established a
division line, and having acquiesced therein for at least a time prescribed by the statute of limitations,
although it may not be the true line according to their deeds, they are, nevertheless, precluded from
claiming that it is not the true line.
Appeal from the District Court of the First Judicial District of the State of Nevada,
Douglas County; M. A. Murphy, District Judge.
Action by John Q. Adams against Evaline A. Child in ejectment. From a judgment of
non-suit in said action of ejectment, plaintiff appeals. Affirmed.
28 Nev. 169, 170 (1905) Adams v. Child
Alfred Chartz, for Appellant:
I. Appellant on the trial put in evidence his title, being in the form of patents, deeds, and
judgments and decrees, which title is not disputed, and which leaves John Q. Adams the
owner in fee of the lands described in the complaint. Plaintiff then rested. Defendant, without
giving notice, moved a non-suit, and plaintiff moved the court for a decree that plaintiff is the
owner described in the complaint. Plaintiff's motion was denied, and plaintiff excepted, and
defendant's motion of non-suit was granted, and plaintiff excepted. The court offered plaintiff
to permit him to reopen his case if he desired to introduce further testimony, but plaintiff
refused the offer. The appeal is from the order dismissing the action and granting the motion
for non-suit.
II. Plaintiff claims to be the owner in fee and entitled to the possession of all the lands
described in his complaint at lines 25, et seq., page 35, of his statement. Plaintiff proved that
allegation was true, and he asked the decree of the court that he was so the owner in fee and
entitled to the possession of said lands. Plaintiff is not entitled to any judgment for damages,
because he offered no proof on that point.
It is respectfully submitted that the order dismissing plaintiff's action and non-suiting
plaintiff should be reversed, and that the appellate court should order the lower court to enter
a decree that the plaintiff is the owner and entitled to the possession of the lands described in
his complaint, and in conformity with the proofs made and undisputed.
The appellate court cannot order a new trial, because none is asked, and the question is not
involved. The only question involved is, whether under the proofs made plaintiff is entitled to
a decree that he is the owner in fee and entitled to the possession of the lands described in the
complaint.
Under Comp. Laws, 2515, this court has the power to order decree entered in accordance
with the undisputed facts of a case. There is nothing left to try. The patents are in evidence,
and the title is not in dispute.
True, defendant pleaded prescription and prescriptive title (but pleaded the same
defectively), but no testimony was offered to support such plea, and this court must assume in
the face of the record that defendant had no testimony to offer in support of her plea, or
she would have made such proof.
28 Nev. 169, 171 (1905) Adams v. Child
the face of the record that defendant had no testimony to offer in support of her plea, or she
would have made such proof.
III. Defendant has submitted herself and her contention for decision, and the lower court
held that plaintiff had not made out a case. The case made, and the issue was whether plaintiff
was the owner in fee and entitled to the possession of the lands described in the complaint.
All other questions are subordinate to that question. Minor and subordinate questions cannot
control the paramount question, if the paramount question is greater than the aggregate of all
subordinate questions.
IV. Defendant, by moving for a dismissal of the action and non-suit, stood upon the
record made, and impliedly avowed to the court that she had nothing and no testimony to
prove the record made untrue, and avowed to the court that she could not sustain the
allegations of her complaint in attempting to plead a prescriptive title. Under the facts the
appellate court is not justified in prolonging litigation, and put the parties, or either, to further
expense by simply overruling the order of the lower court, but is justified in settling the
controversy on the case made.
Samuel Platt and D. W. Virgin, for Respondent:
I. An examination of the complaint in this action will show that about the year 1856 the
plaintiff and defendant built a line fence between their respective properties. This was about
forty-seven years before the action was commenced. The complaint also shows that no effort
was made to disturb the line of this division fence until the month of May, 1903, about
forty-seven years after the fence was built. The complaint also shows that the plaintiff and
defendant, and their predecessors and grantors in interest, occupied the lands up to the
division fence under an agreement by the terms of which the line should be squared according
to the government survey, and, should the survey disclose that the fence was not on the line, it
should be removed to conform with the government line. The complaint alleges that the
government survey was made in the year 1863, and that no suggestion or effort had been
made by either party to remove the fence under the terms of the alleged agreement until
May, 1903, a period of about forty years after the survey.
28 Nev. 169, 172 (1905) Adams v. Child
no suggestion or effort had been made by either party to remove the fence under the terms of
the alleged agreement until May, 1903, a period of about forty years after the survey. The
complaint admits the possession of the defendant, her predecessors and grantors in interest,
without protest or disturbance on the part of plaintiff, his predecessors or grantors in interest,
from the year 1856 up to the year 1903, a period of about forty-seven years. The complaint
admits and alleges as above, and sets up further, as a matter of affirmative proof, that plaintiff
relies upon the agreement aforesaid to establish his right to remove the division fence in
accordance with the government survey.
II. The plaintiff offered no testimony whatever in support of his agreement. The court
permitted him to reopen his case to do so. He refused. The order granting defendant a
non-suit was then made and entered. The court was right in making the order, and abundance
of authority follows to prove it.
III. Plaintiff having admitted, and defendant not having denied, defendant's possession up
to the line fence for forty-seven years, this allegation in the complaint has the force of an
agreed statement of fact. Defendant's actual possession for the time and in the manner above
set forth was established to the satisfaction of the trial judge when the pleadings were read in
open court. Plaintiff pleaded that the fence was originally built in 1856 and that under an
agreement it was to be subsequently removed. Unless there had been such agreement,
plaintiff knew that occupation and possession by defendant up to the line fence for so long a
time (as admitted in the complaint) fixed the boundary as permanent. It was immaterial who
had paper title to the lands on either side of the fence. Such a period of acquiescence admitted
an undisputed title and fixed the boundary, whether the legal title was in plaintiff or not.
Defendant's possession had to be explained away. The burden of proof was upon the plaintiff
so to do. He simply offered proof of his legal title and rested his case. Under the agreed
statement of facts, the court could never have placed him in possession, for the admitted
occupancy and possession of the defendant established a legal boundary between the
adjacent properties, which could never have been disturbed by the mere introduction of
the testimony offered.
28 Nev. 169, 173 (1905) Adams v. Child
defendant established a legal boundary between the adjacent properties, which could never
have been disturbed by the mere introduction of the testimony offered. Plaintiff pleaded the
agreement between the parties, but offered no testimony to substantiate it. He failed to
explain the possession of the defendant. He submitted no testimony whatever upon the point.
It was an affirmative allegation and he abandoned it. He proved nothing that even tended to
establish his case, and the court was eminently justified in dismissing the suit. The
presumption is that possession of land, unexplained, is adverse.
IV. In an action for possession of land which has been held for more than twenty years,
where there is no evidence that his possession was permissive or in subordination of
plaintiff's rights, it is presumed to be adverse. (Alexander v. Gibbon, 118 N. C. 796, 24 S. E.
748; Bryan v. Spivey, 109 N. C. 57, 13 S. E. 766; Satcher v. Grice, 53 S. C. 112, 31 S. E. 3.)
Acquiescence for more than thirty years in a division line precluded either party from setting
up a new line. (Davis v. Mitchell, 65 Tex. 623.) The acquiescence by an owner of land,
manifested by silent assent or submission with apparent counsel, for a period of upwards of
sixteen years, in the location of a fence as the division line between the land and that of the
adjacent proprietor operates to estop him from questioning the correctness of the location.
(Burris v. Fitch, 76 Cal. 395, 18 Pac. 864.) A party setting up an agreement settling the
boundary line between adjacent tracts must prove affirmatively the agreement relied on.
(Jones v. Pashby, 7 Mich. 459, 35 N. W. 152.)
V. If adjoining owners occupy their lands with reference to a certain dividing line with
intent to claim up to such line, mere passive acquiescence will be sufficient to make such line
binding, it being unnecessary that there be an express agreement or acts amounting to an
implied agreement. (Linden v. Hodnett, 22 Fla. 454.) Where a division fence between
adjoining owners has been in existence and acquiesced in by the parties as on their dividing
line for more than forty years, the law will determine the line of such fence to be the true line
between the parties; and this notwithstanding the fence was originally put up under an
agreement that it was to be altered at some future time in case it should be found, upon
actual survey, not to be on the true line.
28 Nev. 169, 174 (1905) Adams v. Child
notwithstanding the fence was originally put up under an agreement that it was to be altered
at some future time in case it should be found, upon actual survey, not to be on the true line.
(Pearson v. Mosher, 30 Barb. (N. Y.) 81.) Where the parties have acquiesced in the location
of a division fence for twenty years and cultivated and improved the premises on each side of
the fence, it is binding without any formal claim or color of title, though the location is
erroneous. (Dyer v. Aldridge, 136 Ind. 654, 36 N. E. 522.) Where a boundary line has been
recognized and acquiesced in for fifteen years, it will not be disturbed on new surveys.
(Dupont v. Starring, 42 Mich. 492; Smith v. Hamilton, 20 Mich. 438; Joyce v. Williams, 26
Mich. 332.)
VI. Appellant in his opening brief expresses the opinion that this court is justified in
giving him an order compelling the lower court to enter a decree in accordance with the
prayer of his complaint. The expressed belief is as unique as it is presumptuous, and the
reasons advanced therefor are as original as they are untenable. Appellant contends that by
moving for a dismissal defendant impliedly avowed to the court that she had nothing and no
testimony to prove the record made untrue. What she did avow was that plaintiff, having
proved nothing tending to establish his case, should be thrown out of court. This avowal
appealed to the trial judge, and, in granting the motion for a non-suit, he inferentially ordered
that it was unnecessary for the defendant to submit any proof. This court cannot and would
not grant an absolute order as above, under the law of this case, even under the most
favorable conditions for appellant. The defendant must have the right to put in her case,
should this court determine that the trial judge has erred. To do otherwise would be to
override precedent in this state and in every other jurisdiction with which we are familiar. It is
only necessary to cite one authority illustrating our view: Where the court below granted a
non-suit, the case being submitted on complaint on an undertaking and answer, the supreme
court, while reversing the judgment below, refused to enter judgment for plaintiff, although
the answer presented no defense, holding that, as there was no trial below, the court could not
know what course defendants would have taken, by amendments or otherwise, by way of
defense to the action."
28 Nev. 169, 175 (1905) Adams v. Child
course defendants would have taken, by amendments or otherwise, by way of defense to the
action. (McMillan v. Dana, 18 Cal. 339.)
VII. An examination of the prayer of plaintiff's complaint will show that he did not
demand the relief that he be adjudged the owner in fee simple of the land in controversy. He
simply prays for the possession of the land and offers no testimony to show why the
defendant (whom he admits has been in possession for forty-seven years) should be ousted.
He seeks to remove a line fence, established and acquiesced in for forty-seven years, and yet
he makes no demand in the prayer of his complaint for such relief, and introduced no
evidence to show why it should be removed. The plaintiff pleaded an agreement as an excuse
for the removal of the common boundary, and yet when he comes to trial he abandons it,
candidly admitting that he cannot establish the only fact which may give him a prima facie
right to run the fence along the government line. We submit that under the circumstances of
this case, as disclosed by the record, the trial judge did not err in granting the order of
non-suit.
Alfred Chartz, for Appellant, in reply:
I. Respondent complains that appellant has cited no authorities. It is evident that counsel
for respondent do not consider the statutes of Nevada authority. It is this reckless disregard of
the statutes which brings on trouble. The proofs show that on May 2, 1870, Rufus Adams,
predecessor in interest and grantor of plaintiff, obtained patent to the S 1/2 of the SE 1/4 of
Section 34, a piece of which is in dispute. (See Statement, p.11.) That plaintiff on the 15th
day of December, 1870, obtained patent of the United States to the N 1/2 of the NW 1/4 of
Section 2, part of which is in dispute, the first described land being in T. 14 and the second in
T. 13, and both in R. 19 E. (See Statement, p. 16.) The other titles are not involved in the
case. That on the 17th day of June, 1879, a decree of distribution of the estate and will of
Rufus Adams, deceased, was duly made and entered, vesting the above-described lands in
plaintiff, subject to conditions therein named.
28 Nev. 169, 176 (1905) Adams v. Child
conditions therein named. (See Statement, p. 22, et seq.) That on the 16th day of April, 1898,
plaintiff having performed the conditions above named and referred to, a final decree was
made and entered vesting all said property in plaintiff. (Page 27, et seq.) The complaint
alleges, and the answer admits, that on May 14, 1903, plaintiff began the planting of posts,
etc., then and there interrupting any prescriptive title that might in time be set up. See page 36
of statement for allegation of complaint and pages 41-2 for allegation of answer on that
question.
The complaint alleges at paragraph 1, page 35 of statement, that plaintiff has been seized
in fee and entitled to the possession of said lands, and at paragraph 2 it describes the manner
of location made in 1856 of unsurveyed land, and describes the land subsequently patented,
including the pieces in dispute. At paragraph 3, page 36, it clearly sets up a permissive
agreement of all the parties, as follows:
3. That all the lands settled upon in Carson Valley, Douglas County, prior to the
government survey, were settled in similar manner as the lands settled upon by plaintiff and
defendant's predecessors in interest and grantors, and the settlers thereof made similar
mistakes with reference to their lines, and that upon surveys being made a general meeting of
settlers was held, and it was agreed amongst them to square their lines in accordance with the
public surveys at the pleasure of either dissatisfied party, at any time, and that said agreement
has always been lived up to up to the date of this suit, and became the common law in the
community where the lands of plaintiff and defendant are situate, and that plaintiff and
defendant's predecessors in interest and grantors understood said agreement, and agreed to
square their lines in accordance with said government surveys whenever deemed desirable by
either party.
The last clause of the foregoing paragraph is emphasized and proved by the documentary
evidence. Step by step was taken to obtain patents, without remonstrance, in accordance with
the foregoing agreement and allegation, and step by step was taken by plaintiff down to April
16, 1898, in the probate court to obtain the title of the man who obtained the patent from the
United States, and without remonstrance of any kind.
28 Nev. 169, 177 (1905) Adams v. Child
the patent from the United States, and without remonstrance of any kind. It is respectfully
submitted that this clearly established a permissive, as contradistinguished from an adverse,
holding of the lands lying north of said line fence, and that when plaintiff on May 14, 1903,
went upon the land to change the fence in accordance with his pleaded agreement, he had the
right to believe there had been no adverse holding. At least, the proofs are fully sufficient to
place defendant upon proof to the contrary, and sufficient to authorize the judgment and
decree asked for on the trial, that plaintiff is the owner of said lands.
II. But, further: The answer pleads a permissive holding. It states facts showing a
permissive holding, under different terms, and subsequently states legal conclusions that
defendant held adversely. But the statement of facts will control over the legal conclusions.
No authorities are cited in support of this position. I consider the citation of authorities on
well-settled elementary principles an insult to the court, and the offense is increased with the
ratio to the number of authorities cited. At page 41 of statement will be found defendant's
version of the permissive agreement. The facts are fully stated, according to her viewpoint. It
is respectfully submitted, under the facts stated at said page 41 with reference to the
agreement of the parties, that defendant could not and did not hold said pieces of land north
of said line fence continuously and uninterruptedly, in the actual, peaceable, open, visible,
notorious, exclusive, and adverse possession, as pleaded by her at page 42, or at all. It is
submitted that the record clearly shows a permissive occupation of the land north of the
described line fence, and that if the witnesses were all dead, on both sides, the record would
be sufficient to establish the fact of permissive agreement and holding as against adverse
holding.
The permissive agreement being alleged and admitted, its varying terms became a matter
of defense. The main question at issue was, was it permissive? It is admittedly permissive.
III. A title by prescription is matter of defense and must be specially pleaded, just like the
statute of limitations in matter of debt.
28 Nev. 169, 178 (1905) Adams v. Child
matter of debt. Of course, and I frankly admit it, if the complaint showed, as claimed by
counsel in their brief, that there was a division line fence for forty-seven years, then it might
be necessary to introduce proof that the land lying north of it was not held adversely. But in
the case at bar the pleadings on both sides show that there was a positive permissive
possession and no adverse possession, and the evidence proves it.
The numerous authorities cited by counsel tend to show that land held adversely, as
prescribed by statute and defined by a division fence, is a good defense to an action for its
recovery. But the holding must be adverse, and adverse holding is matter of defense. The
burden is on the defendant to establish it. It is not favored by the courts. No authorities
needed.
Counsel for respondent, at page 3, line 14, say, or write: Defendant's possession had to be
explained away. The burden of proof was upon the plaintiff so to do. He simply offered proof
of his legal title and rested his case.
The foregoing shows clearly that counsel for respondent did not keep run of the facts
contained in the documentary evidence, nor of the averments of the complaint and answer,
which show conclusively a permissive use and occupation of the lands lying north of said
division fence.
Counsel's mistake of the law is illustrated at page 3, lines 16 to 20, as follows: Under the
agreed state of facts the court could never have placed him in possession, for the admitted
occupancy and possession of the defendant established a legal boundary between the adjacent
properties, which could never have been disturbed by the mere introduction of the testimony
offered. Counsel are laboring under the belief that mere occupancy and possession for the
period prescribed by the statute is enough. But it is respectfully submitted that such
occupancy and possession must be adverse, and not permissive in any sense of the term. The
evidence shows a permissive possession for forty-seven years.
Suppose defendant and her witnesses should testify that the land in dispute has been held
adversely, as prescribed by statute to entitle her to the right of possession, what could she
and her witnesses answer to the question: Why did you not object to the issuance of the
patent of 1S70, and the decrees of the probate court of 1S79 and 1S9S, confirming title in
plaintiff?
28 Nev. 169, 179 (1905) Adams v. Child
what could she and her witnesses answer to the question: Why did you not object to the
issuance of the patent of 1870, and the decrees of the probate court of 1879 and 1898,
confirming title in plaintiff? The issuance of a patent masses title in the patentee, and so does
a confirmation of title by a probate court confirm the title in the petitioner. So, the evidence
shows that for forty-seven years the parties lived up to the terms of the agreement as pleaded
in the complaint at page 36, paragraph 3, of statement.
The first six lines of page 2 of respondent's brief clearly admit that the agreement of the
parties was a permissive possession of the land in dispute. I quote the admission for
convenience:
The complaint also shows that the plaintiff and defendant, and their predecessors and
grantors in interest, occupied the lands upon the division fence under an agreement, by the
terms of which the lines should be squared according to the government survey, and should
the survey disclose that the fence was not on the line, it should be removed to conform to the
government line.
It thus appears that counsel on both sides agree that the occupation of the lands lying north
of the division fence was permissive; and the patents issued for said lands since said
agreement and the judgments and decrees of the probate court, confirming the same down to
recent date, without objection, proving that said occupation was permissive, it is difficult for
me to conceive under what rule respondent can ask the court to declare that it was incumbent
on plaintiff to prove that said land was not held adversely.
Plaintiff proved his fee-simple title, and proved a permissive agreement of possession on
the part of defendant, sufficient to shift the burden of proof on defendant. Plaintiff did more:
He absolutely proved by his chain of title that defendant held possession permissively, and
that she thrice permitted plaintiff to obtain the best title the United States can grant and the
best title a probate court can grant, without objection, down to April 16, 1898. Surely such
proof can be downed only by testimony, and not by motion to non-suit.
28 Nev. 169, 180 (1905) Adams v. Child
Counsel's brief is based solely upon the point that a division fence existing for a number of
years, adversely or unknowingly, establishes the rights of the parties on either side. This rule
is not inexorable. However, that is not the question here. Permissiveness and adverse
possession are the parties plaintiff and defendant to this action. Plaintiff claims
permissiveness and defendant claims adverse possession. What do the proofs show? In the
absence of any testimony to the contrary, they show permissiveness. There is no testimony
whatever showing or tending to show adverse possession.
IV. It is respectfully submitted that under the pleadings and proofs it is firmly fixed that
plaintiff is the owner of and entitled to the possession of the lands described in his complaint,
and that to disprove it involves a denial of the allegations of the sworn answer of the
defendant with reference to a permissive agreement and consequent perjury. The defendant
swore to the allegations of the answer positively, and not on her information or belief, and to
come into court again and swear that there was no such agreement would be swearing to yes
at one time and no at another. There is no escape from the foregoing deduction.
It is therefore respectfully further submitted that the order of the appellate court should be
based upon the facts of the case as presented by the record, and that defendant should not be
permitted to change those facts and her sworn pleadings at the behest of her attorney, or at all,
and that said order should be that judgment and decree be entered in the lower court that
plaintiff is the owner of and entitled to the possession of the lands described in his complaint,
and for costs.
Estoppel: Where a defendant relies upon the defense of estoppel, he must, in his answer,
allege the facts constituting the estoppel. (Hanson v. Chiatovich, 13 Nev. 395.)
The complaint alleges that defendant held and possessed certain lands lying north of a certain
fence permissively, and the answer admits that she held it permissively, but claims that she
held permissively under different terms from the allegations of the complaint. Plaintiff did
not need to prove said land was held permissively, it being admitted, and it was for
defendant to prove the terms.
28 Nev. 169, 181 (1905) Adams v. Child
said land was held permissively, it being admitted, and it was for defendant to prove the
terms.
After admitting the land was held permissively, the answer avers that defendant held that
land continuously and exclusively, openly, visibly, and peaceably, by claim of right and title,
and adversely to and in hostility to said plaintiff and all the rest of the world. This is a
marked contradiction of the facts which she states with reference to the agreement to deed
and redeed for $1.25 an acre, and her statement of adverse holding, being mere conclusions of
law, must melt away when rubbed up against her statement of facts. She does not state nor
describe any line fence, or any use, occupation, and cultivation, upon which she seems to rely
for proof of estoppel in pais. It is evident that her counsel rely upon the existence of a line
fence, because their entire brief is devoted to the exposition of the law which follows the
establishment of such a fence. Under the law it is the line fence that would constitute an
estoppel, if it had not been maintained permissively, and therefore she has not alleged the
facts constituting the estoppel. True, the fence is referred to in the complaint, but the terms
under which it was maintained are alleged, and under the rule of this court in Hanson v.
Chiatovich, ante, it was incumbent upon her to allege the facts constituting the estoppel
which she attempted to plead.
Where an estoppel is relied upon it must be pleaded with particularity and precision; in
such plea nothing can be supplied by inference or intendment, and where the matter relied on
is not thus specially and precisely alleged, it will not be estoppel. The estoppel must be
pleaded fully and sufficiently in all respects, and with all necessary incidents. In short an
estoppel must be certain to every intent. (Vol. 8, Ency. of Pl. & Pr., p. 9, and authorities.)
I believe it is difficult to find stronger language. The plea of estoppel in the answer is, like
comprehension, left far behind. What is a continuous, exclusive, open, visible, peaceable,
adverse, hostile possession? And what is possession? They are all words used in legal
phraseology to express facts, and may be used in drawing findings of facts upon which to
base conclusions of law.
28 Nev. 169, 182 (1905) Adams v. Child
V. The defendant avers that she has owned the said lands in fee. The undisputed proof is
that plaintiff owns them by patents from the United States. It was a very careless pleading on
the part of her counsel, for which they are more to blame than she. It is hardly to be presumed
that she would have sworn that such allegation was true if she had understood the plea. The
plea of permissive holding and the plea of prescription are inconsistent and irreconcilable
pleas, and in view of the fact that the plea of permissive holding states the facts, and that the
prescriptive plea states no facts, the appellate court must adopt the permissive plea as the only
plea in the case.
By the Court, Fitzgerald, C. J.:
This is an appeal from a judgment of non-suit in an action of ejectment. Plaintiff's
complaint contained the following allegations:
1. That on the
___
day of
___
, the plaintiff was and ever since has been seized in fee
and entitled to the possession of those certain pieces and parcels of lands situate in Douglas
County, described as follows: All that certain piece lying north of a certain fence used as a
line fence by plaintiff and defendant, within the S 1/2 of the SE 1/4 of Section 34, T. 14 N.,
R. 19 E., and also that certain piece lying north of said fence within the N 1/2 of the NW 1/4
of Section 2, T. 13 N., R. 19 E., all in M. D. B. and M., and containing 20 acres of land, more
or less.
That about the year 1856 plaintiff located upon then unsurveyed lands of the United
States, and the predecessors in interest and grantors of defendant also located upon
unsurveyed lands of the United States, and built said line fence described in paragraph 1, and
that about the year 1863 said land were surveyed by the government of the United States,
upon the survey of which it was ascertained that said line fence did not correctly follow
section lines, but cut off and left to defendant's predecessors in interest and grantors the lands
described in paragraph 1, but that subsequently plaintiff obtained patents and became the
owner in fee and entitled to the possession of all the following-described lands {here follows
description of land including land in question).
28 Nev. 169, 183 (1905) Adams v. Child
(here follows description of land including land in question).
3. That all the lands settled in Carson Valley, Douglas County, prior to the government
survey, were settled in similar manner as the lands settled upon by the plaintiff and
defendant's predecessors in interest and grantors, and the settlers thereof made similar
mistakes with reference to their lines, and that upon surveys being made a general meeting of
settlers was held, and it was agreed amongst them to square their lines in accordance with the
public surveys at the pleasure of either dissatisfied party, at any time, and that said agreement
has always been lived up to up to the date of this suit, and became the common law in the
community where the lands of plaintiff and defendant are situate, and that plaintiff and
defendant's predecessors in interest and grantors understood said agreement, and agreed to
square their lines in accordance with said government surveys whenever deemed desirable by
either party.
4. That on or about May
___
, 1903, plaintiff began the planting of posts in accordance
with said government surveys and in accordance with said agreement, and defendant and her
agents forcibly ejected plaintiff from said occupation, and dug up and took away plaintiff's
posts from their positions, and ousted and ejected plaintiff from his possession, and now
unlawfully withholds the possession of the lands described in paragraph 1 of this complaint
from plaintiff, to the damage of plaintiff in the sum of five hundred dollars.
The foregoing allegations of plaintiff's complaint are all that are material in determining
the questions presented upon this appeal. Defendant, by her answer, admitted the location of
the lands of plaintiff and defendant, the erection of the line fence, the subsequent survey of
the land by the government, and the issuance of patents as alleged by plaintiff, but denied that
plaintiff was, or ever had been, seized in fee, or otherwise, or entitled to the possession of the
lands described in paragraph 1 of plaintiff's complaint, and denied particularly all the
allegations contained in paragraphs 3 and 4 of plaintiff's complaint. Further answering,
defendant averred that there was an agreement between the predecessors in interest of
plaintiff and defendant that when patents to the said land should be obtained that
plaintiff's predecessors in interest should deed the said lands to defendant's predecessors
in interest, and further that defendant and her grantors and predecessors in interest had
held said lands adversely to plaintiff and to all the world for more than forty years prior to
May, 1903, and down to this date, and that she was the owner of said land.
28 Nev. 169, 184 (1905) Adams v. Child
patents to the said land should be obtained that plaintiff's predecessors in interest should deed
the said lands to defendant's predecessors in interest, and further that defendant and her
grantors and predecessors in interest had held said lands adversely to plaintiff and to all the
world for more than forty years prior to May, 1903, and down to this date, and that she was
the owner of said land.
On these pleadings the parties went to the trial of the case. At the trial the plaintiff put in
evidence paper title to the lands, to wit, patents from the United States to his predecessors in
interest and conveyances, mean and direct, from them to him, and then rested.
Defendant thereupon moved for a non-suit on the ground that mere paper title alone under
the facts stated was insufficient for a recovery, but that in addition evidence of the alleged
agreement to surrender possession of the lands should be given, and that in the absence of
such evidence, defendant's possession, being an adverse possession, would defeat the action.
The trial court then ruled in favor of the defendant. The court then offered to reopen the
case and permit plaintiff to put in evidence of his alleged agreement for the surrender of the
possession of the lands. This offer was declined by the plaintiff, whereupon the court gave
judgment of non-suit in favor of the defendant.
This ruling and judgment are assigned as errors here. I think the court did not commit error
in either the ruling or the judgment. From the proofs and the facts admitted by the pleadings
in this case, it appears without contradiction that from about the year 1856 to the year 1903
plaintiff and defendant and their grantors and predecessors in interest had acquiesced in the
location of the line fence between their respective properties, and they had so acquiesced for a
period of forty years or thereabouts after the location of the true line was known. The
authorities are abundant to the point that where coterminous proprietors of land have
established a division line between their respective properties and have acquiesced in its
location for a time at least equal to that prescribed by the statute of limitations, although it
may not be the true line according to the calls of their deeds, they are thereafter precluded
from claiming that it is not the true line.
28 Nev. 169, 185 (1905) Adams v. Child
are thereafter precluded from claiming that it is not the true line. (Burris v. Fitch, 76 Cal. 395;
Cooper v. Vierra, 59 Cal. 282; Columbet v. Pacheco, 48 Cal. 396; Sneed v. Osborn, 25 Cal.
626; Pierson v. Mosher, 30 Barb. (N. Y.) 81; Dyer v. Eldridge, 136 Ind. 654, 36 N. E. 522;
Dupont v. Starring, 42 Mich. 492; Davis v. Mitchell, 65 Tex. 623.)
Counsel for plaintiff argues ingeniously, yet not logically, legally, or soundly, that the
defendant and her predecessors in interest were in by a permissive possession, inasmuch as
the defendant alleges that there was an agreement as to the land, and that therefore the burden
was on the defendant to show what that agreement was. The defect in this argument is this:
The agreement as alleged by the defendant was that the defendant should be left in her
possession of the lands in dispute just as she was, and in addition thereto that she should
receive the paper title, a conveyance of the lands. This, it would seem, clearly left the burden
of proof still remaining on the plaintiff to present evidence of something to overcome
defendant's possession for a time sufficient to give title under the statute of limitations for
actions of this kind.
Had plaintiff put in evidence of an agreement as he alleged it, to wit, that the defendant
was to deliver possession of the lands, then the defendant might possibly have been
compelled to put in evidence of an agreement as she alleged it to overcome plaintiff's
evidence, or been cast in the suit. But without such evidence on the part of plaintiff, he failed
to offer any evidence at all on an essential, necessary, vital, and material allegation of his
complaint, and when by the court permission and opportunity to do so were offered him and
he declined to avail himself thereof, the court properly gave judgment of non-suit against him
on motion of counsel for defendant.
The judgment of the trial court is affirmed.
____________
28 Nev. 186, 186 (1905) State v. Nevada Central Railroad Company
[No. 1662.]
THE STATE OF NEVADA, Respondent, v. THE NEVADA CENTRAL RAILROAD
COMPANY, et al., Appellants.
1. TaxationRailroadsCash ValueComputationMethod. The cash value of a railroad for purposes of
taxation must be determined mainly by its net earnings capitalized at the current rate of interest, taken
in consideration with any immediate prospect of increase or decrease in earning capacity; and if the
utility of the road, as so determined, is not equal to its cost, which is prima facie its value, then the
value must be determined by utility alone.
2. SameNet IncomeGross ReceiptsExpenditures. The net income of a railroad for purposes of taxation
is the difference between the gross receipts and expenses as they would have been under reasonably
economical and prudent management.
3. SameEarningsExpendituresClassificationEvidence. On an issue as to the earning capacity of a
railroad for purposes of taxation, classifications of items of expense by the railroad company in its
ledger or other accounts are not evidence in its favor, except as they are substantiated by the original
entries of the transactions in the railroad's books.
4. SameBooksProductionWaiver. Where, on an issue as to the earning capacity of a railroad for
purposes of taxation, the railroad's books were not placed in evidence, but each party sought to prove
a result from them through the examination and opinion of an expert, and each objected to the opinion
of the opposing witness, without making any objections as to the books themselves, the introduction
of the books was waived.
5. SamePresumptionsExpenditures. On an issue as to the earning capacity of a railroad for purposes of
taxation it would be presumed, in the absence of a contrary showing, that charges for things essential
to the operation of the road represented reasonable and economical expenditures.
6. SameExpertsOpinions. Prac. Act, 427 (Comp. Laws, 3522), provides that there shall be no evidence of
the contents of a writing other than the writing itself, except when the original is lost or destroyed, or
in the possession of the adverse party, and he fails to produce it after notice; when the original is a
record or other document in custody of a public officer or officer of a corporation; when the original
has been recorded, and a certified copy is made evidence by a statute; and when the original consists
of numerous accounts or other documents, which cannot be examined in court, and the evidence
sought by them is only the general result of the whole. Held, that where, on an issue as to the earning
capacity of a railroad for purposes of taxation, whether certain charges of expense were legitimate,
and whether earnings other than those shown should not have been received, was disputed, it was
error to permit expert accountants, who had examined the corporation's books, to give parol evidence
of their opinion as to what the railroad's net earnings should have been by such witnesses making an
arbitrary classification and exclusion of debits and credits.
7. SameClassification of ItemsSubmission to Court. Where, on an issue as to the earning capacity of a
railroad for purposes of taxation, whether certain items of debits and credits should be included was
disputed, such items should be properly classified and submitted to the court for its determination,
and opinion evidence of expert accountants as to such determination was inadmissible.
8. SameOffers to Purchase. On an issue as to the value of a railroad for taxation in 1901, evidence of an offer
of $200,000 for the road, made to its general manager in 1900 by parties who had neither the
intention nor the ability of buying for themselves, but who made the offer on behalf of certain others,
who were not shown to have been able to have consummated a sale, was inadmissible.
9. SameTaxes Paid. On an issue as to the value of a railroad for purposes of taxation, taxes actually paid by
the railroad should be added to its operating expenses and deducted from its gross income.
10. SameMortgagesBondsStock. On an issue as to the value of a railroad for purposes of taxation,
evidence that a mortgage had been given on all the railroad's property to secure bonds for $750,000,
that 7,500 shares of stock had been issued of a par value of $100 a share, and that a certain county
had issued $200,000 in bonds in aid of the road, was admissible as tending to show its cost.
11. SameTax RateValidityPresumptions. The Nevada revenue act provides that county commissioners
may levy an ad valorem tax in each county of $2 on each $100 valuation, provided that no levy in
excess of $1.50 per $100 shall be made for county purposes, unless the county is indebted for
liabilities contracted prior to January 1st next preceding the making thereof, not bonded or funded.
Held that, in the absence of proof that a county levying a tax in excess of $1.50 per $100 was not
indebted for liabilities contracted prior to the year of the levy, it would be presumed in support of the
levy that it was so indebted.
12. SameWitnessesCompetency. Where a witness had not made computations of railroad earning balances
for a series of years, as to which he was asked to testify, and did not know whether such balances
were correct, nor what items they included, he was not entitled to testify thereto.
Appeal from the District Court of the Third Judicial District, Eureka County; Peter Breen,
Judge.
Action by the State of Nevada against the Nevada Central Railroad Company and others.
Judgment for plaintiff, and defendants appeal. Remanded for new trial.
This is an action by the state for the taxes for the year 1901 on 93 miles of main track and
2 miles of side track and the other real property of the Nevada Central Railroad Company, all
situated in Lander County. The assessor placed the valuation at $158,100, and made the
assessment at $5,684.97, which, with the statutory penalties, aggregates $S,063.43, the
amount demanded in the complaint, and for which the verdict and judgment were
rendered.
$8,063.43, the amount demanded in the complaint, and for which the verdict and judgment
were rendered. After denying the allegations of the complaint, the answer sets up the defense
that the assessment was out of proportion to and above the cash value of the property, and
asserts that in the year 1901 the property was not of any greater cash value in the aggregate
than $60,944.
It is also alleged that the tax levy in that county for the year 1901 is illegal because in
excess of the rate authorized by law. Seeking to avoid penalties for delinquencies, the
defendant made and pleaded a tender of $1,835 for taxes upon this property. Upon the trial
the state introduced the delinquent list and rested. Thereupon the defendant submitted in
evidence the minutes indicating that the taxes levied by the board of commissioners for that
year for county purposes aggregated $1.57 on each $100 of taxable property, and introduced
testimony showing that the road was finished in February, 1880; that it has iron rails
weighing only 35 pounds to the yard, instead of much heavier steel rails used by all
up-to-date railroads; that the ties are in poor condition; that for the most part it is ballasted
only with sagebrush dirt; that the cost of repairs in future years will be increased, and that the
condition of business in the adjacent county will not tend to increase earnings; that, if the
Southern Pacific Railroad cuts off the curve at Battle Mountain, and runs directly by the river
as surveyed, and evidently contemplated by the purchase of rights of way, the Nevada Central
will be compelled to build two or three miles of new track in order to connect; that the
removable value of the material which constitutes the 93 miles of road and all the property
under the levy was $41,135.35 in 1901; that the rate of interest on different classes of loans in
Lander County that year varied from 6 per cent to 12 per cent; that San Francisco savings
banks paid 3 1/8 per cent; that money in New York was worth 3 1/2 per cent to 5 per cent,
and that United States bonds paid less than 2 per cent per annum. There was testimony that so
large an amount could not be placed in Lander County.
Subject to the objection and exception of counsel for the state, J. M. Hiskey, the secretary
and auditor of the Nevada Central Railroad Company, as a witness on its behalf, was
allowed to testify that he had examined the books and vouchers of the company, and that
for the calendar year 1901 the expenses from operation were $3S,372.2S, the earnings
from operation $37,737.29, the loss from operation $634.99, and that, in addition to this
loss, the company paid $953.03 for taxes on its personal property for that year.
state, J. M. Hiskey, the secretary and auditor of the Nevada Central Railroad Company, as a
witness on its behalf, was allowed to testify that he had examined the books and vouchers of
the company, and that for the calendar year 1901 the expenses from operation were
$38,372.28, the earnings from operation $37,737.29, the loss from operation $634.99, and
that, in addition to this loss, the company paid $953.03 for taxes on its personal property for
that year. Counsel for the defendant asked the witness if the company were not liable for the
amount of taxes that the jury would assess in this case. The objection to this question was
sustained. We quote from the record an important part of the examination of A. J. Maestretti,
a witness for the state, regarding the income and expenses of the road:
Q. Have you examined the books of the Nevada Central Railroad Company for 1901? A.
I have. Q. What is the result? Mr. Street: One moment; I desire to examine the witness as to
his qualification as an expert accountant. Q. You have never kept books for a mercantile
firm? A. I have not. Q. You never had any practical experience in bookkeeping, did you? A.
No, sir. Q. You took a course in Heald's Business College, did you? A. Yes, sir. Q. In that
course, did you have any instruction whatever in railroad bookkeeping? A. Yes, sir; the
course was designed to cover all branches of commercial and business bookkeeping. Q.
Respecting the result of your examination of the books of the Nevada Central Railroad
Company for 1901, I will ask you to state now if you included in this result all actual receipts
of the Nevada Central Railroad Company for that year? Mr. Mayenbaum: I object. That
question is entirely improper. Mr. Street: We desire to show by this witness that in the result
which he is now called upon to testify about that he included fictitious receipts of money or
sums which were never received by the Nevada Central Railroad Company at any time, or at
all. We desire also to show that he did not include in the result actual expenses paid out by
the Nevada Central Railroad Company during the year 1901, but used his own judgment in
excluding items of expense which were actually paid in the year 1901 by the Nevada Central
Railroad Company in the operation of its railroad, and we ask to examine the witness on
this matter before he testifies to the result, for the reason, if our information is correct,
the result would not be what is contemplated by the law, or competent in this case under
any circumstances.
Central Railroad Company in the operation of its railroad, and we ask to examine the witness
on this matter before he testifies to the result, for the reason, if our information is correct, the
result would not be what is contemplated by the law, or competent in this case under any
circumstances. Court: The question is not permitted. Mr. Street: We desire to note an
exception to the ruling of the court on the ground that we have offered to show that this result
about which the witness is asked to testify, and by the witness himself, included absolutely
fictitious items of receipts never received by the Nevada Railroad Company in 1901, and in
this result the witness did not include actual expenses of the Nevada Central Railroad
Company incurred in its operation in the year 1901. Mr. Mayenbaum: You have stated that
you examined the books of the company for 1901. I want you to tell me and tell the court and
the jury what are the net earnings of that company in the operation of their railroad in Lander
County for the year 1901. Just state to me the figures that you have arrived at as profits of the
company for that year, and nothing else. Mr Street: We desire to object, and make the same
objection and exception as to the preceding question, and, further, this question does not
show that it is any result of the entire books and figures of the Nevada Central Railroad
Company respecting the matter inquired of for 1901. Mr. Mayenbaum: I mean the result of
the entire books of the company. Mr. Street: We repeat our previous objection and exception,
with the permission of the court. A. The result of my investigation shows that the Nevada
Central Railroad Company should have made a profit of $10,645.28 for the year 1901. Mr.
Street: We object, on the ground that the witness is not testifying as an expert. Court: The
objection is overruled. Mr. Street: We take an exception on the ground stated in the objection.
I also desire to add that he has not testified as an expert on the actual result of the books of
the company, and we move to strike out the answer of the witness on the ground that it is
incompetent, and does not come within the provision of the statute. Court: The motion is
overruled. Mr. Street: We note an exception on the same ground.
Cross-examination by Mr. Street: Mr. Street: You did include in your computation from
which you figure this result a lot of items for receipts you knew never were actually received
by the Nevada Central Railroad Company? A. No, sir. Q. Will you state to the court or jury
that you included nothing in the receipts you figured up except items of actual receiptsthat
means money actually received? A. I included only what was shown by the books and papers
of the company which I examined. Q. Will you please answer my question clearly? A. There
is one item which does not show actual cash receipts. Q. What is that item? A. It is a record
of passes issued by the Nevada Central Railroad Company and used by the persons to whom
they were issued. Q. So that the result you have testified to includes fictitious receipts which
were not actually received in cash by the Nevada Central Railroad Company, does it not? Mr.
Mayenbaum: We object. He testified to the profits, and only profits, of the company of that
year, and has no knowledge only that shown by the books. Court: The question can be
answered. A. The item of passes is one of the items charged, and, if this is a fictitious receipt,
then it does include fictitious receipts. Q. Then there was no receipt of money shown at all by
the Nevada Central Railroad Company for this item on its books? A. No, sir. Q. In your
computation you used your own judgment in rejecting, and did not include in your result, a
considerable number of actual items of expense of operation of the Nevada Central Railroad
Company for the year 1901? A. I rejected items charged in the Nevada Central Railroad
Company's books as items of expense in operation. Q. So the result you are testifying to is not
the actual expense and earnings of the Nevada Central Railroad Company, is it, for the year
1901? A. No, sir; it is not the expense as shown by their books. Q. You are a railroad man?
A. No, sir. Q. Have you worked on a railroad? A. No, sir. Q. In a railroad office? A. No, sir.
Q. In machine shops? A. No, sir. Q. Never had anything to do with buying railroad supplies?
A. No, sir. Q. You are by profession a lawyer? A. Yes, sir. Q. And you were formerly district
attorney of Lander County? A. Yes, sir; and before that I was a rancher for years. Q. In this
so-called result, did you figure any taxes of the Nevada Central Railroad Company for
1901? A. No, sir. Q. You took upon yourself to exclude a voucher for taxes that you found,
did you not? A. If I encountered any, I excluded them. Q. Do you know of a voucher or
expenditure of the Nevada Central Railroad Company of $953.03, paid November 30,
1901, by the Nevada Central Railroad Company, to T. H. Dalton, treasurer and tax receiver
of Lander County, Nevada, for taxes on its item of personal property and certain land at
Clifton, also its engines and cars? A. Yes, sir; I know of such a voucher. Q. And you did not
include that in your result, did you? A. No, sir. Mr. Street: I desire to move to strike out
the answer of the witness in his direct examination as to the result of his examination
concerning the net earnings of the Nevada Central Railroad Company of 1901, for it is
shown now conclusively by his own testimony that this result is not any result of the
actual showing upon the books of the company at all; that the witness in reaching this
result took upon himself the province of all the issues in this case, taking the province of
the jury; and it is now shown conclusively that fictitious items of receipts were computed
by him to reach his result.
and before that I was a rancher for years. Q. In this so-called result, did you figure any taxes
of the Nevada Central Railroad Company for 1901? A. No, sir. Q. You took upon yourself to
exclude a voucher for taxes that you found, did you not? A. If I encountered any, I excluded
them. Q. Do you know of a voucher or expenditure of the Nevada Central Railroad Company
of $953.03, paid November 30, 1901, by the Nevada Central Railroad Company, to T. H.
Dalton, treasurer and tax receiver of Lander County, Nevada, for taxes on its item of personal
property and certain land at Clifton, also its engines and cars? A. Yes, sir; I know of such a
voucher. Q. And you did not include that in your result, did you? A. No, sir. Mr. Street: I
desire to move to strike out the answer of the witness in his direct examination as to the result
of his examination concerning the net earnings of the Nevada Central Railroad Company of
1901, for it is shown now conclusively by his own testimony that this result is not any result
of the actual showing upon the books of the company at all; that the witness in reaching this
result took upon himself the province of all the issues in this case, taking the province of the
jury; and it is now shown conclusively that fictitious items of receipts were computed by him
to reach his result. It is further shown that he purposely excluded actual items of expense
actually paid by the Nevada Central Railroad Company in 1901, and the so-called result
cannot be permitted to go to the jury in this case. Court: The motion is denied. Mr. Street: We
desire an exception on all the grounds stated in the motion. We desire to have it explicitly
understood that we do not waive any exceptions heretofore taken or objections heretofore
made to the testimony of this witness, and we desire our objections to go to all of his
testimony.
Trenmor Coffin and John A. Street, for Appellants:
I. Certain primary questions arise upon the record on appeal which under the previous
decisions of this court should in any event conclusively prevent the recovery by the plaintiff
in the action of more than taxes at the lawful rate upon a valuation of the property in question
of $50,944, being the value of said property admitted by the defendant's answer.
being the value of said property admitted by the defendant's answer. These questions relate to
the insufficiency of the evidence to justify the verdict and judgment, and that the verdict is
against law, and are fully set forth in the statement (Tr. 133 to 136), but for convenience we
restate them in our argument:
First. * * * The undisputed evidence admitted at the trial discloses that the defendant, the
Nevada Central Railroad Company, suffered a financial loss in the actual operation of its
railroad (situated wholly in Lander County, Nevada) for the year 1901, and no competent
evidence was introduced tending to show that the railroad was not prudently and
economically managed during said year, and the undisputed evidence showed that the
prospective earnings of the railroad would not only probably not increase, but might seriously
decrease, and uncontradicted evidence showed that the removable value of the property in
question in this action was only $41,135.72, therefore the verdict as to the value for
assessment of the 93 miles of main track could not lawfully exceed the sum of $50,944
admitted in defendant's answer, whereas the verdict and the judgment entered thereon fix a
valuation of $158,100, being the assessed value, which is greatly above the full cash value'
of the property for taxation purposes and is out of proportion to and above the actual cash
value of said property, as shown by all the competent evidence in the case.
(a) The question as to whether the railroad company suffered a financial loss in the actual
operation of its railroad for the year 1901 cannot fairly be disputed, although a very strange
line of testimony was introduced by plaintiff in the court below in an endeavor to rebut the
evidence of defendant which had shown the actual loss (from operation, including personal
property, taxes on rolling stock, etc., and excluding any part of the taxes involved in this suit)
to have been $1,545.70. This loss will be increased by the sum this court shall find due from
defendant for its lawful taxes on the road-bed, etc., involved in this suit.
Error is assigned upon all of the testimony introduced by plaintiff upon this question, and
we will discuss as a preliminary matter assigned errors 11 to 15, inclusive, which relate to
this subject.
inary matter assigned errors 11 to 15, inclusive, which relate to this subject.
(b) Errors No. 11 and No. 12 are assigned because the trial court refused to permit
defendant upon its examination on the vior dire of A. J. Maestretti, a witness for plaintiff in
rebuttal, to adduce the certain facts which counsel for defendant offered to show by the
witness himself which would have disclosed that the evidence to which the witness was asked
to testify was not competent, and highly prejudicial to the defendant.
Section 3522, Comp. Laws, provides: There shall be no evidence of the contents of a
writing other than the writing itself, except in the following cases: * * * FifthWhen the
original consists of numerous accounts or other documents which cannot be examined in
court without great loss of time and the evidence sought from them is only the general result
of the whole.
The witness, A. J. Maestretti, testified that he had examined the books of the Nevada
Central Railroad Company for 1901, and was asked: What is the result? Then, after the
witness testified to having taken a course in bookkeeping in a business college, counsel for
defendant, desiring to show that the requirements of section 3522, above quoted, had not been
complied with by the witness, asked whether the witness had included in the result to
which he was asked to testify all actual receipts of the Nevada Central Railroad Company
for 1901. (Tr. 78.) Objection was made to the question, and counsel then made the following
statement: Mr. Street: We desire to show by this witness that in the result about which he is
now called upon to testify he included fictitious receipts of money or sums which were never
received by the Nevada Central Railroad Company at any time, or at all. We desire to show
also that he did not include in the result actual expenses paid out by the Nevada Central
Railroad Company during the year 1901, but used his own judgment in excluding items of
expense which were actually paid in the year 1901 by the Nevada Central Railroad Company
in the operation of its railroad, and we ask to examine the witness on this matter before he
testifies to the result, for the reason, if our information is correct, the result would not be
what is contemplated by the law, or competent in this case under any circumstances."
if our information is correct, the result would not be what is contemplated by the law, or
competent in this case under any circumstances. The court refused to permit the questions, to
which rulings defendant duly excepted. It must be clear without argument that the court erred
in refusing to permit the defendant to examine the witness upon the matters it offered to show
by him.
II. The subsequent examination of the witness proved the advisability of our request to be
permitted to examine him as hereinbefore stated, for errors Nos. 13, 14, and 15 relate to the
refusal of the court to strike out the evidence of the said witness, as follows: The result of
my investigation shows that the Nevada Central Railroad Company should have made a profit
of $10,645.28 for the year 1901. An immediate motion was made to strike out this evidence
upon the grounds that it was not responsive to the question and that the witness had not
testified as an expert on the actual result of the books of the company, and that the answer of
the witness was incompetent and did not come within the provisions of the statute.
III. It should be specially noted that there was no attempt to show by any competent
witness that any item of expense of operation of the railroad whatsoever was unreasonable, or
extravagantly or improperly made. Under the rule laid down in this court in a similar case the
presumption is, in the absence of any showing to the contrary, that the owners of the railroad
operated it to their own best advantage and that they obtained all the income possible and
kept the expenses of operation as low as possible. (State v. V. & T. R. R. Co., 23 Nev. 283.)
IV. If the road does not pay current expenses and cannot be expected to do so, then it is
worth no more than the value of its movable material less the cost of taking it up and getting
it to market. (State v. C. P. R. R. Co., 10 Nev. 74, affirmed in State v. V. & T. R. R. Co., 23
Nev. 294.) The question under the Nevada statute is: What amount would the property be
appraised at, if taken in payment of a just debt due from a solvent debtor? (Comp. Laws,
1082.) The statute requires the assessment at the true cash value. (Id. 1084.)
V. The railroad having been operated at a considerable loss, including taxes (which would
necessarily be considered), and there being no showing for profits in the future, and it being
assumed, as it must be, that a solvent debtor could pay his debt in cash, and a creditor
therefore would not be obliged to take the railroad in order to save himself, it must be clear
beyond controversy that upon the showing in this case the net amount in cash which could be
realized for the movable material would be the only appraisement which could be placed
upon it, if it was taken in payment of a just debt due from a solvent debtor. It could not be
appraised as a paying investment, that is, upon the rate of interest the profits would earn upon
a capital sum, because there were no profits to be considered. In order not to send good
money after bad the creditor of a solvent debtor could look only to stoppage of operation and
to selling the movable material.
VI. The tax levy was illegal and the tax proceedings void. In the case of State v. Nevada
Central Railroad Company, 26 Nev. 357, in ruling upon a question similar, in some respects,
to that now under discussion, this court held that to successfully attack the tax levy
defendant should have introduced the proceedings of the board in making it and specifically
pointed out its illegal features and fatal defects. In the case at bar this rule was followed
precisely. The proceedings of the board of county commissioners showed that it was ordered
that the rate of taxes for the year 1901, beginning January 1, 1901, be and they are hereby
apportioned and shall be paid into the several funds of the county treasury of Lander County,
State of Nevada, as follows, to wit: On each $100 of taxable property, including the proceeds
of all mines and mining claims, within the county of Lander not exempt by law shall be paid
into the state fund $1, general fund $1.12, railroad fund 70 cents, school fund 38 cents,
hospital fund 35 cents, contingent fund 10 cents; total, $3.65. Aside from road taxes this is
the entire record respecting the levy of county taxes. The state tax was afterwards reduced to
80 cents to conform with existing laws. The statutory provisions governing the levy of these
taxes are found in Comp.
Comp. Laws, 1078, 1222, 1223, 2137. The defendant argued at length before the trial judge
and fully set forth its claims respecting the levy, said instructions raising the following
questions: (1) The levy being in excess of the lawful rate and the general and special taxes
being commingled in one gross sum upon the assessment roll, was not the whole levy illegal
and void, as stated in defendant's requested instruction No. 1? (2) If for any reason the first
question is not affirmatively sustained, then was not the levy for general purposes at $1.12
and the levy for hospital fund at 35 cents illegal and void as to the whole levy for each of
said purposes or illegal and void as to the excess? (See requested instruction No. 2.) The
court below refused to instruct as requested, and exceptions to its refusal were duly entered
and preserved. The charge is entirely silent upon the subject. The great weight of authority is
that all statutes are mandatory which expressly or by implication limit the amount of taxes
which may be levied, and where the limit fixed by law is exceeded by a sum which is spread
upon the whole roll [as in the case at bar] the whole levy is void. (1 Cooley on Taxation, 3d
ed. 1903, p. 589; Wattles v. Lapeer, 40 Mich. 624-627; Boyce v. Sebring, 66 Mich. 210;
Kemper v. McClelland's Lessee, 19 Ohio, 308-327; Gerry v. Stoneham, 83 Mass. (1 Allen)
319; Huse v. Merriam, 2 Greenl. 375-6; Drew v. Davis, 10 Vt. 506.)
VII. Concluding upon this branch of the case, we contend that the assessment roll upon
which all the taxes in question were blended in one sum was wholly invalidated by the
inclusion of illegally levied taxes, and being so invalidated the plaintiff had no standing in
court whatsoever under its complaint. The action being brought to enforce not only the illegal
taxes by sale of the property of the defendant, but to assess severe penalties for the
non-payment of illegal tax, the complaint ought to be dismissed. (Boyce v. Sebring, 66 Mich.
210.)
VIII. The trial court refused to instruct the jury as requested by defendant that, in
ascertaining the net income, if any, by the railroad company for the year 1901, or the net loss,
if any, the jurors should add any taxes actually paid by the company for that year to the other
necessary expenditures of the road and deduct the same from the receipts of that year,
and, in order to determine whether there would be any net income whatsoever, or to
determine the loss, the jurors should consider and deduct such an amount for the taxes
for 1901 as they should agree ought to be paid by the railroad company upon the property
involved in this suit.
of the road and deduct the same from the receipts of that year, and, in order to determine
whether there would be any net income whatsoever, or to determine the loss, the jurors
should consider and deduct such an amount for the taxes for 1901 as they should agree ought
to be paid by the railroad company upon the property involved in this suit. (Defendant's
requested instruction No. 7.) See State v. V. & T. R. R. Co., 23 Nev. 297. In State v. Nevada
Central R. R. Co., 26 Nev. 357, also a case like that at bar, the court said: From $17,090
profits, $6,554.25 should be deducted for taxes for the year. No other rule would receive the
sanction of any thinking man because when the state, through its taxing power, makes that
which it taxes unprofitable it destroys its value as an investment and is equitably estopped to
say that the taxes are not to be considered in determining the value of the property as an
investment, and yet the trial court refused to give the defendant any benefit of the rule. The
error is most manifest.
IX. Error is also assigned for the refusal of the court to give defendant's requested
instruction No. 9: You are also instructed in this case that the board of county
commissioners having levied taxes in excess of the amount which could lawfully be levied
and the tax collector having attempted to collect excessive taxes from the defendant, it had
the lawful right to resist the attempted collection of the excessive taxes, and that you must not
include in your verdict any penalties whatsoever. The county of Lander attempted to levy
taxes at an excessive rate and the defendant cannot be held bound to pay illegally levied
taxes. It can defend against any attempt to enforce against its property any illegal tax, and
under the provisions of the constitutions of the United States and of the State of Nevada it has
the inalienable right to protect and defend its property against any attempt to take it without
due process of law, which would be the result if it could be taken for illegal taxes. (Const. of
U. S., amendment XIV; Const. of Nevada, art. I, secs. 1 and 2.)
X. The true cash value of the property (i. e., railroad)its value for taxationshould be
determined by the same matters that would be considered by one who wished to purchase
and was simply endeavoring to ascertain what the road was worth.
chase and was simply endeavoring to ascertain what the road was worth. The presumption
being that the owners of the road will operate it to their own best advantage, the presumption
extends to the profits or losses of previous years shown by the regularly kept books of the
railroad, and an investor would consider these balances as showing the true results of the
business.
XI. There was no evidence at all that the management of the railroad in 1901 was not
reasonably economical and prudent, and the presumption must be that it was, as no item of
expenditure was questioned, therefore there was no foundation for the modification made by
the court of the instruction asked for by defendant, but denied by the court except as
modified, relative to the management of the affairs of the road. The court in its instruction
respecting the measure of damages in the case wholly failed to give the proper rule. The
instruction gave no basis whatever upon which to compute a verdict if the jury believed the
valuation of the property in the assessment roll to be excessive.
XII. We submit in good faith, as a vital point to the entire case of the plaintiff, that
blending and lumping of invalid levies with lawful levies in one gross sum upon the
assessment roll made the whole levy void and should prevent plaintiff from having any relief
in this action, and its complaint should be dismissed with costs to defendant.
James G. Sweeney, Attorney-General, H. E. Driscoll, District Attorney, and Henry
Mayenbaum, for Respondent:
I. George Watt testified that in 1900-1901 he was sheriff; that in 1900 he offered to give
$200,000 for the railroad; that he was ready to pay that; that J. A. Miller, the banker,
authorized him to offer that amount in cash; that the offer was made to A. C. Luck, manager
of the Nevada Central Railroad Company; that at the meeting of the board of equalization in
September, 1900, A. T. Maestretti, the chairman of the board, offered the same amount to the
said manager. J. A. Miller also testified that he made the same offer to the manager. The
offers were not accepted. After all the testimony of George Watt was given without objection
in relation to the offer to buy the railroad for $200,000 by Banker Miller in the year 1900,
the defendant moved to strike it out on the ground that it does not refer to the year 1901.
to the offer to buy the railroad for $200,000 by Banker Miller in the year 1900, the
defendant moved to strike it out on the ground that it does not refer to the year 1901. The
court refused to strike it out and defendant excepted thereto on the ground stated. The
defendant's assignment of error is thus: The court erred in denying the motion of defendant to
strike out the evidence of George Watt respecting an alleged offer to buy the Nevada Central
Railroad in the year 1900, the motion having been made upon the ground that the evidence
did not refer to the year 1901. But now the counsel contends in his brief that said evidence is
not competent to prove the true cash value. No such ground was stated. The law is well
settled that the objection to evidence must state the grounds of objection. The evidence is
deemed consented to upon every ground not stated. The party objecting is bound by the
ground stated at the trial, and he cannot on motion for new trial or on appeal rely on any other
ground. (McGurn v. McInnis, 24 Nev. 370; Sharon v. Minnock, 6 Nev. 377; Lightle v.
Berning, 15 Nev. 389; McNamee v. Nesbitt, 24 Nev. 400.)
II. The delinquent list proves everything necessary to sustain the tax, and whatever may be
necessary to in any way affect this prima facie case of the state must be proved by the
taxpayer to the satisfaction of the jury. Therefore, for the defendants to say that a fact
necessary to be proved to affect this prima facie case is not proved, is the same as confessing
that the defendants failed to prove such fact necessary to their defense. If there is no evidence
on the part of a defendant in a tax suit, the jury must find their verdict for the state, upon the
delinquent list alone, and no other evidence or testimony is required for the state to recover.
After the introduction in evidence of the delinquent list, the defendants have the onus
probandi throughout.
III. It is contended that the tax levy is wholly void, and therefore the taxpayers are not
bound to pay any part of the taxes assessed against them on the ground that the total levy for
county purposes, exclusive of special taxes, is $1.57 on each $100, and that the levy could not
exceed $1.50; and therefore the levy was 7 cents in excess of what the law allows, citing
section 150, revenue act, 1222 Comp.
allows, citing section 150, revenue act, 1222 Comp. Laws, and that there was apportioned to
the general county fund $1.12, but that the law allows only $1, and therefore this
apportionment was 12 cents in excess of what the law allows, and that there was apportioned
to the hospital or sick fund 35 cents, but the law allows only 25 cents, and therefore was 10
cents in excess of what the law allows, citing 2137 Comp. Laws. The distribution to
particular funds is no part of the levy and cannot be questioned by the defendant.
By section 2 of the revenue act, Comp. Laws, 1078 (Stats. 1891, p. 135), the county
commissioners are required, on or before the first Monday in March of each year to fix the
rate of county taxes for such year, designating the number of cents on each $100 of property
levied for each fund. Under this statute the amount of the county tax levied by the board of
commissioners is to be apportioned to the different funds, but the proportion or number of
cents to each fund is not provided by this statute or anywhere in the revenue act. That is
entirely left to the county commissioners.
But it is contended that by section 2137, Comp. Laws, the commissioners are required to
apportion all the moneys coming into the county treasury, except so much thereof as is not by
law set aside into special funds, as follows: Two-thirds shall go into the general county fund,
and one-sixth, or so much thereof as may be necessary, shall go into the indigent fund, and
one-sixth, or so much thereof as may be necessary, shall go into the contingent fund. This is
not in the revenue act, but in the act entitled An act authorizing the board of county
commissioners of the several counties of this state to apportion the county revenues. (Comp.
Laws, 2137.) This act is simply for the regulation of the county business, and is no part of the
revenue act. It does not prescribe or limit the levy or the amount to be levied, and the taxpayer
cannot avoid the payment of his taxes on the pretense that the amount of the levy is not
properly apportioned into the different funds. Nowhere is it provided that the levy shall be
void, in whole or in part, if such apportionment of the levy is not made. The amount of the
levy, therefore, prescribed in the revenue act, is one thing, and the apportionment of it
under section 2137, Comp.
prescribed in the revenue act, is one thing, and the apportionment of it under section 2137,
Comp. Laws, is another thing. The amount of the levy must be first determined by the
commissioners under the revenue laws before they can apportion that amount to the different
funds under the subsequent law regulating the disposition of all the county funds. The
liability of the defendant for the taxes was fixed when the levy was made and the lien fixed.
It is perfectly plain that the matter of distribution or apportioning the county money is
entirely in the power and discretion of the commissioners, for Comp. Laws, 2167, provides:
The county commissioners are authorized to transfer any surplus which may be in any of the
county funds (except the school fund) from any one or more of said funds to another, or
others, and transfer the same back to the fund or funds from which said surplus money was
taken at such times and in such manner as in the judgment of the commissioners the best
interests of the county may require. The delinquent list prima facie proves that the levy was
duly made, and therefore that the commissioners had properly apportioned the funds and had
subsequently reapportioned the same.
IV. By section 1118, Comp. Laws, the delinquent list is prima facie evidence to prove the
assessment, property assessed, the delinquency, the amount of taxes due and unpaid, and that
all the forms of law in relation to the assessment and levy of such taxes have been complied
with. This prima facie evidence must stand until it is overthrown by proof to the contrary
convincing to the jury. It is no concern of the taxpayer whether the commissioners or the
treasurer or the tax collector, or all or any of them, apportioned the money. The state, by the
delinquent list, proved that the levy was duly made, and the presumption is that the
commissioners performed their duty, and that if there is any law authorizing the levy, it is
conclusive that they made the levy by authority of such law, and if there is any condition of
facts whereby such law is claimed to be invalid or inapplicable, such facts must be proven to
the satisfaction of the jury by the party attacking the legality of such levy.
V. It is not material whether section 1222, Comp. Laws, or the amendment of 1899 (Stats.
1899, 33) is in force, because under either the levy is good and is within the limits of either.
Still, it seems the amendment supersedes entirely the original statute, notwithstanding the
amendment is made applicable only to certain counties having a certain number of votes.
(Sec. 150, Revenue Laws, replaced by the amendment.) The law of constitutional and
statutory construction is firmly established that an amendment of a statute replaces entirely
the old statute. There is but one section 150 of the revenue laws. There cannot be two sections
of 150 in the same statute. A section amended must be reenacted and published in full and the
amendment operates as a repeal of all the section amended. The amendment ipso facto
repeals the statute amended. It is substituted for it. Art. IV, sec. 17, of our constitution
provides that the section amended shall be reenacted and published at length. The amendment
of a statute declaring that it shall be as follows, repeals all the provisions not retained in the
amendment. The enacting clause of the amendment (Stats. 1889, 33) is thus: Section 150 of
said act [1222] is hereby amended so as to read as follows:.
In People v. Montgomery, 67 N. Y. 109, the court says: The amended statute operates as
if it had always been in the amended form.
Trenmor Coffin and John A. Street, for Appellants, in reply:
I. Upon this appeal the sufficiency of the evidence to justify the verdict is directly before
the court, and upon the subject of offer to buy, discussed in respondent's brief, we refer the
court to our argument in the original brief which establishes by highest and practically
unanimous authorities that such evidence cannot be considered as in any way competent or
sufficient to prove the true cash value. The evidence must be disregarded upon the question
of value and is itself of no other weight in the case. It required cross-examination to develop
the true character of the evidence, but upon the question of the insufficiency of the evidence
to justify the verdict this court is untrammeled in placing the true evidential value upon
each and every kind of testimony in the case.
justify the verdict this court is untrammeled in placing the true evidential value upon each and
every kind of testimony in the case. The inquiry is whether, taking all competent evidence
into account, it is sufficient to justify the verdict, and it is not, as counsel seems to argue,
conclusive upon this court that incompetent evidence, the evidential value of which is naught,
was introduced. The question upon this particular point is not one of admission of evidence; it
is one of sufficiency of evidence, which the court will see is entirely different from the point
attempted to be argued by respondent. That the able counsel does not cite a single authority
upon the question of the evidence being incompetent to prove true cash value illustrates the
universality of the rule against his contentions.
II. The sixth point argued in respondent's brief (p. 12, et seq.) headed Sufficiency of
Testimony, repeats the mistaken idea already discussed that the delinquent list disputes or
contradicts or affects the credibility of the testimony of defendant's witnesses. The only prima
facie force of the delinquent list is that prescribed by law, and of course a statute in
derogation of the ordinary rules of evidence will be confined strictly to its exact terms.
(Sutherland Statutory Construction, sec. 333.) Section 1118, Comp. Laws, provides: The
said delinquent list, or a copy thereof, certified by the county auditor, and showing unpaid
taxes against any person or property, shall be prima facie evidence in any court to prove the
assessment, property assessed, the delinquency, the amount of taxes due and unpaid, and that
all forms of law in relation to the assessment and levy of such taxes have been complied
with. This means, and means only, that the list makes prima facie proof that the property
involved in this action was assessed at the sum stated in the list; that the taxes were not paid
by defendant and were delinquent in the amount stated in the list, and that the technical
proceedings respecting the assessment and levy were complied with. This made the prima
facie case of the plaintiff, but the statute also expressly provides that the taxpayer may rebut
this prima facie proof by evidence tending to show that the assessment is out of proportion
to and above the actual cash value of the property assessed" {Comp.
value of the property assessed (Comp. Laws, 1124), and the defendant's evidence showing
that such was the case is not rebutted in any particular. Our original brief shows this plainly.
When the defendant proved facts from which the conclusion was irresistible that the
assessment was actually out of proportion to and above the actual cash value of the property,
the burden was shifted to plaintiff to rebut the defendant's proofs, which it wholly failed to
do.
III. The current rate of interest is not material, because it relates wholly in railroad
taxation cases to the class of cases where the railroad earns a profit and not to cases where it
suffers a loss upon its year's business. If the railroad earns a profit, then its value to an
investor or a creditor of a solvent debtor is based on the net profits capitalized at the current
rate of interest, but, if it does not earn any profit, that test does not apply, the test then being
the value of its movable property. (State v. C. P. R. R. Co., 10 Nev. 74; State v. V. & T. R. R.
Co., 23 Nev. 294.)
IV. Is the act of March 4, 1899, attempting to amend section 150 of the revenue act
unconstitutional and void? Section 20 of article IV, Constitution of Nevada, provides: The
legislature shall not pass local or special laws in any of the following enumerated cases: * * *
For the assessment and collection of taxes for state, county, and township purposes. Section
21, article IV, also provides: 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. As the amendment in question stands, it is made to
apply to special counties only. As we recall it, it actually applies to only two counties of the
state. On its face it evidences the fact that it was intended to be local and special. It is not a
general act because it says it is not, and it is a local and special act because its language
expressly restricts its operation to certain localities and to the people of special counties. It is
not of uniform operation throughout the state and therefore violates section 21. The legal
logic of a comparatively recent decision of this court is directly in point and the general rules
of constitutional construction are entirely against the validity of such an act.
are entirely against the validity of such an act. (Schweiss v. District Court, 23 Nev. 266;
Sutherland on Statutory Construction, secs. 118, 128.) Existing general laws required to
have an uniform operation cannot be amended so as to interrupt their uniform operation.
(Sutherland Statutory Construction, sec. 130, and cases cited.) Therefore section 1222 (sec.
150 of the revenue act) is in full force and unaffected by the attempted amendment of Stats.
1899, 33.
V. Having the actual proceedings of levy, any prima facie evidential value of the
delinquent list gives way to the actual facts, and the levy must stand or fall upon its own
merits. The actual proceedings disclose that no levy was made for the purpose of paying any
indebtedness for liabilities contracted prior to January 1, 1901. There is no recital of any such
indebtedness and no pretense of making a levy to pay any such indebtedness. Therefore, the
levy of $1.57 for county purposes cannot be validated by any presumption arising out of the
delinquent list. In conclusion, we submit that the respondent has wholly failed to distinguish
this case from the authorities cited and quoted in our original brief, and justice requires a
reversal of the case. It must be most apparent that there was a gross overvaluation of this
railroad, which it is undisputed is a losing investment, and it must also be apparent that the
county board levied excessive taxes.
By the Court, Talbot, J. (after stating the facts):
In order that a clearer understanding may be had of the essential facts, we have detailed
important parts of the testimony relating to the main issue in the casethe true cash value of
the road in 1901. It not being shown or contended that the prospective is greater than the
present value, it depends largely upon the amount of earnings and expenses of operation.
Following decisions in other states, this court long ago laid down the rule that the cash value
of a railroad for the purposes of taxationwhich means the amount at which the property
would be appraised if taken in payment of a just debt from a solvent debtormust be
determined mainly by its net earnings, capitalized at the current rate of interest, taking into
consideration any immediate prospect of an increase or decrease in its earning capacity.
interest, taking into consideration any immediate prospect of an increase or decrease in its
earning capacity. The actual cost of the road may be shown, for, prima facie, that is the value.
But if it appears that the actual cost was in excess of the necessary cost, the necessary cost is
the proper standard. If it further appears that the net income of the road does not amount to
current rates of interest on its necessary cost, and is not likely to do so; or if, in short, the
utility of the road is not equal to its cost, then its value is less than its cost, and must be
determined by its utility alone. If the road does not pay current expenses, and cannot be
expected to do so, then it is worth no more than the value of its movable material, less the
cost of taking it up and getting it to market. (State v. C. P. R. R. Co., 10 Nev. 74; State v. V. &
T. R. R. Co., 23 Nev. 295, 46 Pac. 723, 35 L. R. A. 759.) In the latter case it was said that
railroads are bought and sold so seldom, and the value of each road depends so entirely upon
its surroundings, that in determining the amount we must resort to principles other than those
governing ordinary kinds of property which have a market value. It is apparent that a most
important question here concerns the amount the road earns or ought to earn, and the
necessary expenses of operation. As held by this court in State v. V. & T. R. R. Co., 24 Nev.
80, 49 Pac. 945, 50 Pac. 607, the net income of a railroad, when necessary to be determined
for the purposes of taxation, is the difference between the gross receipts and necessary
expense under reasonably economical and prudent management. The gross receipts to be
considered for this purpose are not necessarily those in fact received, but such receipts as
would be received under a reasonably economical and prudent management; and the expenses
to be deducted in order to determine the net income are not necessarily the expenses which
were in fact incurred, but such expenses as would be incurred under a reasonably economical
and prudent management. It is earnestly claimed for the state that it was competent for the
witness Maestretti to give the result of the items in defendant's books which he deemed
properly chargeable as the expenses of operation, and for him to reject or ignore in his
answer of other items that he did not consider so chargeable, and that he could give the
amount that, in his judgment, the company ought to have earned beyond its actual
receipts, and state the net amount that the company ought to have made that year.
ignore in his answer other items that he did not consider so chargeable, and that he could give
the amount that, in his judgment, the company ought to have earned beyond its actual
receipts, and state the net amount that the company ought to have made that year. It is said in
the brief that there are many things, such as a four-in-hand or the castle on the mountain at
Austin, that even a stupid witness would know were not necessary in the operation of a
railroad. For the defendant it is asserted that everything charged as expenses in its books is
presumed to be necessary for its operation, and that the witness for the state could not give his
conclusions which might overthrow this presumption. Are these contentions consistent with
correct legal principles? If, as said by this court (23 Nev. 294, 46 Pac. 724, 35 L. R. A. 759),
it is reasonable to suppose that the owners of a road will operate it to their own best
advantage; that they will obtain all the income possible, and keep the expenses of operation as
low as possible, this does not raise any presumptions, further than is shown by the
transactions themselves as originally entered, that moneys paid out and items charged in the
books were necessary for the operation of the road. Classification to expense or other
accounts is in the nature of a written declaration in a party's own favor, made without the
sanctity of an oath or the opportunity of cross-examination. It is as natural to conclude that a
railroad company will pay interest on its bonds and meet its fixed charges, if not also that it
will lay betterments, as it is to believe that it will meet its operating expenses. If it were the
rule of evidence that a binding or other presumption would attach in favor of a railroad
company for any items it may classify or charge in its own behalf to operating expenses, the
same self-interest which, in the absence of any contrary showing, may be presumed to result
in an economical management, might prompt the charging of doubtful and uncertain items to
the expense account if a suit for taxes were anticipated. Unless admitted without objection,
the nature of the items should be shown, or at least lumped into different classifications, in
order that the court may determine whether they are properly chargeable as expense of
operation.
able as expense of operation. (Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527, 23
L. Ed. 868; Abbott's Trial Brief, Civil, 322.) This need not result in much delay or difficulty.
Prior to the trial the accountant testifying may take the total of moneys received from fares,
freights, or other sources, and classify and ascertain the amounts of the different kinds of
expense, such as that shown by the pay roll for the usual employees of a road, for fuel, ties,
and other material and supplies, which are admittedly or clearly necessary; and doubtful items
can be separately listed or classified, and their amounts or totals brought to the attention of
the court, and allowed to go to the jury or not, as the court, and not as the witness, may
determine, unless a question of fact arise regarding the necessity for particular expenditures.
The error in allowing the answer of Mr. Maestretti giving his result regarding the net
earnings to stand after he stated that he included such items as he deemed proper and rejected
others which he thought improper is well illustrated by his failure to include the taxes as part
of the operating expenses. It was equivalent to permitting the witness to tell the jury that the
taxes ought not to be allowed as a part of the charges of operation for the yeara matter of
law for the trial judge, and one previously determined by this court contrary to the opinion of
the witness. The objection on the ground that it was a matter of law was promptly and
properly sustained to the question put to Mr. Hiskey as to whether the company was liable for
the taxes that the jury might assess for the year 1901. This witness was not permitted to
testify for the defendant that the company was liable for its taxes, and, inferentially, that they
were a necessary part of its expenses; but the witness for the state was permitted to give a
result which, in effect, said to the jury that the taxes could not be allowed as part of the
charges of operation. He included as a part of the receipts which the company ought to have
earned the amount in fares that would cover the distances traveled on passes. Although these
amounts should be included in determining what the earnings of the company ought to be
unless the defendant showed that the passes were used by its employees, or in connection
with the business of the road, and if the company wishes to be generous and carry
passengers or freight for less than schedule rates, the ordinary value of the service
rendered would be allowed in the estimate of what the road ought to earn, whether they
should be so considered was a question of law.
employees, or in connection with the business of the road, and if the company wishes to be
generous and carry passengers or freight for less than schedule rates, the ordinary value of the
service rendered would be allowed in the estimate of what the road ought to earn, whether
they should be so considered was a question of law. The witness, as an accountant, could
estimate and give the amounts or totals of those or other items specified or classified, and
then it would be for the court to determine which of these should be considered by the jury.
As to what other items the witness included or rejected in arriving at his result we are not
informed, nor were the district court or the jury further enlightened. No doubt many of the
transactions shown by the books were properly placed in his estimate; but whether others
were improperly so, whether he allowed items for expenses that ought to have been rejected,
or rejected others that ought to have been allowed, as he did the payment by the company of
the taxes on its personal property, and whether he classed as receipts anything that cannot be
legally considered such, cannot be ascertained from his testimony or the record, because the
items on which his result is based are not specified.
In this regard the testimony of Mr. Hiskey for the company is hardly more satisfactory. It is
evident that his answer that the loss from operation that year was $634.99 was based either
upon his judgment as to the items allowable or upon the way they had been classified in the
books, neither of which, as we have said, should control the province of the court in
determining which are for the consideration of the jury when objection is made.
Notwithstanding the wide discrepancy in their respective results, the estimate of a loss by the
witness for the defendant and that the company ought to have netted over $10,000 that year
by the witness for the plaintiff, both may have been entirely correct in their additions,
subtractions, and balances for which they had been called as expert accountants. So far as
appears, they differed only in the items which they considered, and which were selected in the
exercise of their judgment, instead of that of the court. If they had disagreed regarding the
result or balances from the same transactions, or if there had been a conflict in their
testimony pertaining to anything tangible, it would have been for the jury to determine
between them.
ances from the same transactions, or if there had been a conflict in their testimony pertaining
to anything tangible, it would have been for the jury to determine between them. As it is, the
testimony relating to the important issue in the case is based upon the opinion of one witness
for the state and the different opinion of a witness for the defendant, or the way the company
classified its accounts, as to whether the various items in defendant's books for that year were
legally allowable as receipts or expenses of operationverily a foundation more uncertain
and less stable than the air cushion that supports the abutment of the Brooklyn Bridge. As
said in Hammersmith v. Avery, 18 Nev. 229, 2 Pac. 55, the law requires a party to establish
his case by the best evidence of which it is susceptible. It is the first entries of transactions in
daybooks, journals, pay rolls, stubs, and books of original entry, rather than the secondary
entries, that make them admissible; and subsequent classifications of these into expense,
ledger, or other accounts are not evidence in a party's own favor, except as they are shown to
be substantiated by the original entries which control. If the witness had classified these, and
given the totals and remainders of the different groups, designating them by reference to the
books or to tabulations which he had made from the books, the items from which he derived
his results would have been apparent and fixed; so that, if any of these were in doubt, the
court could determine in regard to their relevancy, instead of leaving this judicial function to
the witness. Not only was it error to permit the witness to give his opinion on questions of
law, or, which was equivalent, a result based more or less upon his judgment in allowing or
rejecting doubtful items, but it would have been improper for him to testify regarding the
necessity for other items concerning which there was no doubt. That conductors, engineers,
other ordinary employees, fuel, and ties were necessary in the operation of the road was a
matter of common knowledge, concerning which the court and jury did not need the opinion
of any witness. The presumption would arise that any money shown by the company's books
to have been expended for these or for other purposes generally connected with the
operation of a railroad were prudently and economically expended, but if the costs for
building a castle or the payment of interest on bonds were charged in the expense
account no presumption would arise from the fact that they were so charged that they
ought to be deducted from the earnings in estimating the annual net income.
nected with the operation of a railroad were prudently and economically expended, but if the
costs for building a castle or the payment of interest on bonds were charged in the expense
account no presumption would arise from the fact that they were so charged that they ought to
be deducted from the earnings in estimating the annual net income. They would show for
themselves the contrary, and no witness should be permitted to testify that, in his judgment,
they ought to be allowed or rejected. Matters of law and of common knowledge are directly
for the court and jury. Every one knows that money expended for coal to generate steam to
propel a locomotive and for the wages of an engineer is a legitimate charge in the operation of
a railroad, and the presumption would arise that any money shown by the books to have been
paid out for these purposes was a necessary expenditure. If it were sought to overthrow this
presumption, witnesses possessing special knowledge or skill could be called to give their
opinion that the amount of coal necessary for propelling trains, or the market price of coal, or
the ordinary wages for such engineers, were less than the charges made.
The books were not placed in evidence on the trial in the district court, but, as each party
sought to prove a result from them through the examination and opinion of an expert, and
each objected to the opinion of the opposing witness without making any objection to the
books themselves, it is apparent that their introduction was waived. Without consent or
waiver, it would have been necessary to lay the usual foundation for their introduction by
proving that they contained correct and original entries of the transactions made at the time
they took place, or from permissive memoranda, before they, or evidence of their contents,
could be received. To have secured their introduction, it would not have been necessary to
prove that the various items scattered through daybooks or others of original entry had been
carried to and properly classified in the expense or other accounts in the ledger, and such
classification made by the defendant in its own behalf was not supported by any testimony as
to its correctness, and was inadmissible, except so far as shown to be relevant by the
transactions or charges themselves as originally entered.
far as shown to be relevant by the transactions or charges themselves as originally entered.
The mere classifications made by the defendant, or the conclusion of witnesses as to which
items were properly allowable, were insufficient and incompetent to overthrow the
presumption in favor of the correctness of the assessment made by the assessor under official
oath, and presumably without interest between the state and the defendant, or to overthrow
the burden cast upon the defendant to prove its allegation of overvaluation. By the admission
of the books or the waiver of their introduction only such original entries as are material to
the issue are to be considered as affecting the result. Until the contrary was shown by proof,
there would be a presumption that charges for anything essential to the operation of the road,
such as coal, ties, and ordinary supplies, and wages for usual employees, represented
reasonable and economical expenditures. When no dispute exists, and no objection is made, it
may be convenient to allow expert accountants to state the net earnings as shown by the
books, and this testimony could stand as effectually as parol evidence given of a conveyance
of real property, or a written contract where no objection is made to the non-introduction of
the writing. (Vietti v. Nesbitt, 22 Nev. 397, 41 Pac. 151; Watt v. N. C. R. R. Co., 23 Nev. 154,
44 Pac. 423, 46 Pac. 52, 62 Am. St. Rep. 772.) If it were desired to supply the testimony of
experts as to whether certain doubtful items were necessary for the operation of the road, or
were for betterments, fixed charges, or useless expenditures, they should have been specified,
so that the court and jury could have properly considered them. The witness Maestretti did
not claim to be an expert other than as an accountant, but, if it had been shown that he or the
witness Hiskey were the most experienced and eminent of railroad managers, it still would
have been incompetent for either of them, whether on behalf of the state or the defendant,
both of which should be governed by the same rules that apply to other litigants, to give their
opinions on matters of law, which are for the court, or regarding commonly known facts
concerning which the court and jury could determine as well as they. The duty of the
accountant is to save the time of the court by striking totals and balances of such items as
are relevant, but not to give his judgment as to what those items are without bringing
them to the attention of the court.
accountant is to save the time of the court by striking totals and balances of such items as are
relevant, but not to give his judgment as to what those items are without bringing them to the
attention of the court. Section 427 of our practice act, being section 3522, Nev. Comp. Laws,
is specific enough to exclude this opinion testimony. It provides that there shall be no
evidence of the contents of a writing other than the writing itself, except: FirstWhen the
original has been lost or destroyed; in which case proof of the loss or destruction shall first be
made. SecondWhen the original is in the possession of the party against whom the
evidence is offered, and he fails to produce it after reasonable notice. ThirdWhen the
original is a record or other document in the custody of a public officer, or officer of a
corporation. FourthWhen the original has been recorded and a certified copy of the record
is made evidence by statute. FifthWhen the original consists of numerous accounts or other
documents which cannot be examined in court without great loss of time and the evidence
sought by them is only the general result of the whole. The rule at common law, or in states
without this statutory enactment, is the same. (1 Greenl. Ev. 93; Burton v. Driggs, 87 U. S.
136, 22 L. Ed. 299.) The words only the general result of the whole naturally limit the
answer of the witness to the whole of the accounts and vouchers or to the whole of particular
accounts, tabulations, or items that are specified, and do not indicate that he may use his
judgment in rejecting part of these without designating them. In State v. Rhoades, 6 Nev. 376,
this court held that it was proper to ask an expert who had investigated the accounts in the
state treasurer's office: What was the result of your examination as to the amount of money
which should have been in the treasury on the 10th day of September, 1869? In this question
the word should had quite a different meaning and limitation than it had in the answer of
the witness Maestretti. The amount that should have been in the state treasury was simply the
difference shown by the books between all the receipts and all the disbursements, and did not
imply that the witness was to exercise his judgment in excluding anything. It is a
well-established rule that the opinions of experts cannot be received in regard to matters
of inquiry that may be presumed to lie within the experience and knowledge of all men of
average education moving in the ordinary walks of life.
a well-established rule that the opinions of experts cannot be received in regard to matters of
inquiry that may be presumed to lie within the experience and knowledge of all men of
average education moving in the ordinary walks of life. When the facts can be placed before
the jury, and they are of such a nature that jurors generally are competent to form opinions
and draw inferences from them, then the opinions of experts are not admissible. (Rogers'
Expert Tes. 26; Franklin Ins. Co. v. Gruver, 100 Pa. 273; White v. Ballou, 8 Allen, 408;
Hovey v. Sawyer, 5 Allen, 554; Perkins v. Augusta Banking Co., 10 Gray, 312, 71 Am. Dec.
654; Clark v. Fisher, 1 Paige, 171, 19 Am. Dec. 402; Monroe v. Lattin, 25 Kan. 351, 354;
People v. Muller, 96 N. Y. 408, 48 Am. Rep. 635; Baltimore R. R. Co. v. Leonhardt, 66 Md.
77, 78, 5 Atl. 346; State v. Anderson, 10 Or. 448; New England Glass Co. v. Lovell, 7 Cush.
(Mass.) 319; Shafter v. Eveans, 53 Cal. 32; City of Chicago v. McGiven, 78 Ill. 347;
Naughton v. Stagg, 4 Mo. App. 271; Cook v. State, 24 N. J. Law, 843, 852; Dillard v. State,
58 Miss. 368; Gavisk v. Pacific R. R. Co., 49 Mo. 274; Concord Railroad Co. v. Greely, 23
N. H. 237, 243; Nashville R. R. Co. v. Carroll, 53 Tenn. 347; Linn v. Sigsbee, 67 Ill. 75;
Veerhusen v. Chicago R. R. Co., 53 Wis. 689, 694, 11 N. W. 433; 16 Cyc. 852; 3 Wig. Ev.
sec. 1918, and cases there cited.)
Judge Campbell, in Evans v. People, 12 Mich. 35, said: It is an elementary rule that,
where the court or jury can make their own deductions, they shall not be made by those
testifying. Lord Mansfield, in Carter v. Boehm, 3 Burr. 1905: It is an opinion which, if
rightly formed, could only be drawn from the same premises from which the court and jury
were to determine the cause, and therefore it is improper and irrelevant in the mouth of a
witness. It is a good general rule that a witness is not to give his impressions, but to state
the facts from which he received them, and thus leave the jury to draw their own conclusions;
and wherever the facts can be stated it is not to be departed from. (Cornell v. Green, 10
Serg. & R. 16.) In Campbell v. Rusch, 9 Iowa, 337, it was said: In answering this question
the witness was not communicating facts, but his own conclusions, drawn from the language
used in the written instrument.
from the language used in the written instrument. This was not permissible. It was the special
duty of the jury under the instructions of the court to draw conclusions, and for the witness to
state facts. The exceptions to the rule are to be found in these cases where a witness speaks of
matters of science, trade, and a few others of the same character, but they cannot be extended
to cases like the present. Again, in Lime Rock Bank v. Hewitt, 50 Me. 267, and Lawson's Ex.
& Opin. Ev. 166: It was wholly inadmissible for the witness to state his inferences and
presumptions arising from what appeared upon the books. By the well-established rules of
law these were for the jury.
The exception to the rule as provided by the statute and the decision lies in allowing the
accountant to state the result of arithmetical calculations that could be made by the court.
When accounts are numerous, the convenience and expedition of trials demand the admission
of the testimony of competent witnesses who have perused the entire mass and will state
summarily the net result. Regarding this there is a collation of decisions in 2 Wig. Ev. sec.
1230. In Adams v. Board, 37 Fla. 283, 20 South. 271, it was said: The witness in answer to
the question detailed at length divers facts that he asserted to be shown by the records
examined by him. There was no error in excluding this evidence. The contents of records
cannot be shown by parol where the record itself is extant and accessible. In State v. Brady,
100 Iowa, 191, 69 N. W. 290, 36 L. R. A. 693, 62 Am. St. Rep. 560, a tabulated statement
prepared by an agent of railroad companies from the records showing the sales of tickets at a
station during the year was held to have been properly admitted.
It was shown on the trial that an offer of $200,000 for the road had been made to the
general manager in 1900 by residents of Austin, or that he was asked whether the company
would sell it for that amount. The witnesses who testified that they made the offer did not
have that amount of money, and did not make it with any ability or expectation of buying the
road for themselves, but pursuant to a statement made by a man named J. F. Mitchell, who
was not present nor called as a witness, but who had previously said to J. A. Miller that "he
had partiesgood, responsible partiesto take it at $200,000."
nor called as a witness, but who had previously said to J. A. Miller that he had
partiesgood, responsible partiesto take it at $200,000. There was no proof that Mitchell
or the others to whom he referred had this amount of money, or were able to buy the road, nor
that they knew anything regarding its value, nor that the general manager or any one with
authority in reply to the offer said anything in the nature of a declaration against interest.
Objection and exception were made to testimony of the offer on the ground that it did not
tend to prove the value in 1901. Counsel for the state suggested that the exception is too
narrow. It may have been intended to object only for the reason that the offer was made in
1900, instead of 1901; but it is stated more broadly as not tending to prove the value of the
road in the latter year, the one in which it was essential to determine the valuation as a basis
for the taxes sought to be recovered. If the offer were sufficient to prove the value of the road
in 1900, in the absence of any contrary testimony that value would be presumed to continue
during 1901. However, we believe that under the circumstances shown the offer was not
sufficient to show the value in 1901, or at any other time, and that the objection ought to have
been sustained. In Hammersmith v. Avery, 18 Nev. 229, 2 Pac. 55, it was said: The evidence
of the plaintiff as to the offer made him for the property should have been rejected, because,
among other reasons, the person making the offer may not have known the value of the
property; and, quoting from Fowler v. Comrs., 6 Allen, 96: The value of an offer depends
upon too many considerations to allow it to be used as a test of the worth of property. We do
not wish to be understood as holding that cases may not arise in which it is permissible to
prove an offer, or the declarations of a party in interest or authority in reply to one; but when,
as here, it is not shown that the persons who made them had the means to meet them, or
knowledge of the value of the property, we see no principle upon which they may be
considered admissible. (Sharp v. U. S., 191 U. S. 341, 24 Sup. Ct. 114, 48 L. Ed. 211, and
other cases cited in appellants' brief.)
The district court erred in refusing defendant's instruction No.
No. 7, following: You are instructed that in ascertaining the net income, if any, of the
Nevada Central Railroad, for the year 1901, or the net loss, if any, you should add any taxes
actually paid by the company for that year to the other necessary expenditures of the road and
deduct the same from the receipts of the road for that year; and in order to determine whether
there will be any net income whatsoever, or to determine the loss from operation of the road,
if a loss is shown, you must consider and deduct from the receipts of the road for 1901 such
an amount for the taxes for 1901 as you agree ought to be paid by the railroad company upon
the property described in the complaint, which, in brief, consists of 93 miles of main railroad
track and 2 miles of side track. It was held in State v. V. & T. R. R. Co., 23 Nev. 297, 46 Pac.
723, 35 L. R. A. 759, that in determining the annual net income of a railroad the taxes should
be deducted as a part of the expenses of operation. (State v. Railroad Co., 26 Nev. 357, 68
Pac. 294, 69 Pac. 1042.) In compliance with this rule, the instruction ought to have been
given. But in determining the value of the road on the basis of its earning capacity capitalized
at current rates of interest it should be given the benefit of the payment of its taxes only once,
so that in ascertaining what the current rates of interest are the net yield on other investments
after the payment of taxes on them should be taken as a guide. For instance, there was proof
on the trial that 6 per cent or 8 per cent was paid on mortgages in Lander County. If the tax on
these was paid by the mortgagee, and not by the mortgagor, they would be properly deducted
from the interest rate in arriving at the net yield of the investment and the true earning value
of the money placed in such mortgages. It could be shown whether the income from
investments other than government bonds, which command a lower rate by reason of
exemption from taxation, would be reduced by the usual tax rate.
Exception was taken to the evidence introduced on behalf of the state that the articles of
incorporation of the Nevada Central Railroad Company provided for 7,500 shares of stock of
a par value of $100 a share, and that the company had made a mortgage in 1SSS for
$750,000 on all its property to the Central Trust Company of New York, and that Lander
County in 1S79 issued $200,000 in bonds to aid the building of the road.
had made a mortgage in 1888 for $750,000 on all its property to the Central Trust Company
of New York, and that Lander County in 1879 issued $200,000 in bonds to aid the building of
the road. As said before, a railroad is different from ordinary property having a market value,
and its cost may be shown. Under the circumstances the giving of the mortgage was in the
nature of an admission that the property was worth the amount of the loan, and the value of
the corporate shares and the amount of the bonds issued by the county to aid in the
construction of the road had a tendency to show that these sums were a part of its cost, for the
same presumption would attach that these moneys were economically used in its construction
that prevails in regard to its operation. Presumably its cost is its value until the time a lesser
or different value is shown. The presumption that the road is worth its cost continues until it
is shown that it is less by reason of insufficient earning capacity to pay net current rates of
interest on its cost, or from other causes.
Defendant further contends that the levy of $1.57 for county purposes on each $100 of
valuation made the whole levy void under the following provision of the revenue act: The
board of county commissioners in each county of this state are hereby authorized and
empowered to levy annually, on or before the first Monday in March, an ad valorem tax for
county purposes not exceeding the sum of two dollars on each one hundred dollars value of
taxable property in the county and such special taxes as may be authorized and required by
law; provided, the total tax levy in any one year for all purposes shall not exceed five dollars
one each on hundred dollars value of taxable property in any county or part thereof; provided,
no levy in excess of one dollar and fifty cents on each one hundred dollars value of taxable
property therein shall be so levied in any county of this state for county purposes unless the
county is indebted for liabilities contracted prior to January 1st next preceding the making
thereof and not bonded or funded. It was not shown that the county was not indebted for
liabilities contracted prior to 1901, and the presumption is in favor of official action and the
levy. This makes it unnecessary to determine whether such levy would have been invalid if
it had been shown that no such prior indebtedness existed.
determine whether such levy would have been invalid if it had been shown that no such prior
indebtedness existed.
The defendant sought to have their witness Hiskey state the amount of the receipts and
earnings of the road for the previous ten years, as shown by the balances standing on the
books. The testimony was properly excluded, because the witness had not made the
computations, and did not know whether they were correct, nor what items they included, and
did not bring them under the rule we have hereinbefore stated.
When the case is tried again, the court can determine whether there is evidence to cover or
warrant the modification to instruction No. 5. We have examined the other specifications
treated in the elaborate and interesting briefs, but find no error in regard to them.
The cause is remanded for a new trial.
____________
[No. 1663.]
P. A. McKENZIE, Appellant, v. GEORGE COSLETT,
Respondent.
ReceiversCostsAllowanceJurisdiction of Supreme Court.
1. Costs were not recoverable at common law, and can be recovered only in pursuance of statute or rule of
court.
2. A receiver appointed by the trial court under civil practice act, sec. 146 (Comp. Laws, 3241), is an officer of
that court, and accountable to it, and any compensation to be allowed him as costs on appeal must be
allowed by the trial court, and not by the supreme court.
Petition for taxation of receiver's costs. Denied.
The facts sufficiently appear in the opinion. [Former opinion in this case reported on page
65 of this volume.]
Cooke & Ayres and E. L. Williams, for Respondent and Petitioner.
Mack & Farrington, for Appellant.
Per Curiam:
Subsequent to the decision in this cause, and prior to issuance of remittitur therein, counsel
for respondent filed herein a petition on behalf of respondent, praying this court to make an
order allowing the sum of $100 for the services of the receiver, in addition to an amount
of $300 allowed by the trial court for such services to the 3d day of June, 1903; said
allowance of $100 to cover the services of the receiver pending the appeal, and since the
date last mentioned.
to make an order allowing the sum of $100 for the services of the receiver, in addition to an
amount of $300 allowed by the trial court for such services to the 3d day of June, 1903; said
allowance of $100 to cover the services of the receiver pending the appeal, and since the date
last mentioned. The petition further prays that the order provide that the said sum of $100 be
taxed by the clerk of this court as costs, and be included with the other costs of the appeal,
and be awarded to respondent. This petition was heard by the court, and evidence offered in
support of the reasonableness of the amount prayed for; counsel for both appellant and
respondent appearing at such hearing.
Our attention has not been called to any statute or rule of court by which we would be
authorized to allow additional compensation that may be due the receiver as costs on appeal;
nor have we been able to find such, or any precedent for a proceeding of this kind. Costs were
not recoverable eo nomine at common law, and therefore can be recovered only in pursuance
of the provisions of statute or rule of court. (11 Ency. Law & Procedure, 24.)
The receiver in this case was appointed by the trial court in accordance with the provisions
of section 146 of the civil practice act (Comp. Laws, 3241), and is an officer of that court, and
accountable to it for the trust imposed upon him. He has not been discharged, and the trial
court still has jurisdiction to determine the amount of any additional compensation that he
may be entitled to, upon the matter being properly presented to the court, and to make all
necessary and proper orders in the premises. (High on Receivers, 781, 797.)
The petition is therefore denied.
____________
28 Nev. 222, 222 (1905) Devencenzi v. Cassinelli
[No. 1667.]
JOHN DEVENCENZI, Respondent, v. PIETRO CASSINELLI,
Appellant.
1. AppealConflicting EvidenceVerdict. Where, in an action on an account stated, the testimony on all
material matters was at such variance that the jury was necessarily compelled to determine as between
plaintiff and defendant, the verdict would not be disturbed on appeal as contrary to the preponderance
of the evidence.
2. SameReceiptsContradictionParol Evidence. A receipt, though evidence of payment of the highest
character, is merely prima facie evidence of the facts recited therein, and may be explained or
contradicted by parol.
3. SamePreponderance of Evidence. Where, in an action on an account stated, the testimony of plaintiff and
defendant was conflicting on every material point in the case, so that, if the jury believed either, it must
have rejected the testimony of the other as untrue, not only in reference to the giving a receipt for an
alleged payment, but as to all the remaining material portion of his testimony, it could not be said that,
as the proof with reference to the purpose of the receipt was an equipoise, the receipt itself was not
impeached, and constituted a preponderance of the evidence.
4. SameWitnessesCross-Examination. Where, in an action on an account stated, a portion of an account
contained in defendant's book had been offered in evidence on defendant's direct examination, plaintiff
was entitled to cross-examine defendant with reference to the accounts contained in the book.
Appeal from District Court, Lyon County; M. A. Murphy, Judge.
Action by John Devencenzi against Pietro Cassinelli. From a judgment for plaintiff,
defendant appeals. Affirmed.
John Lothrop and Alfred Chartz, for Appellant:
I. Appellant calls the attention of the court to the following testimony: Receipt: Dayton,
June 6, 1901. Received of Pietro Cassinelli the sum of $500 on account of labor. Giovanni
Devencenzi.
Receipt: Dayton, April 15, 1901. Giovanni Devencenzi signs to receipt $1,000 from
Pietro Cassinelli for labor. Signed from my name: Giovanni Devencenzi.
Receipt: Dayton, Nevada, April 23, 1901. Received of Pietro Cassinelli the sum of $100
on account of one note of Giovanni Devencenzi. Signed: A. Scanavino.
The receipt of April 15, 1901, bears date of the stated account, and was undoubtedly
included in said account, and has no bearing in the argument except as tending to show
that said plaintiff and defendant agreed on that day that by May 1, 1901, there would be
due plaintiff $5S4, which sum would and did include the value of two horses, fixed at the
sum of $130.
account, and was undoubtedly included in said account, and has no bearing in the argument
except as tending to show that said plaintiff and defendant agreed on that day that by May 1,
1901, there would be due plaintiff $584, which sum would and did include the value of two
horses, fixed at the sum of $130. Defendant denied that any such account, or any account,
was ever stated between them. However, there is evidence to show that such account was
stated between them, and this court cannot disturb the conclusions of the jury on that point.
We now have to deal principally with the receipt for $500 and the receipt for $100, and on
these points we refer the court to the testimony. The complaint fails to allege, and the
testimony fails to show or tend to show, that the receipt for $500 was obtained by fraud, or
that it was not honestly given for money received by the plaintiff. The defendant wrote the
receipt himself, on the book belonging to the defendant, and kept by plaintiff, as defendant is
unable to read or write. In explanation of the receipt for said sum of $500 plaintiff testified
that he never received any money for it, and that he gave the receipt as a matter of
accommodation to defendant, and at page 38 of the statement, line 9, he is asked by his own
counsel: Q. Does not Cassinelli still owe you the money represented by the $500? A. Yes,
sir, by right he does; if he don't want to pay me he don't have to. At page 18, line 5, he
testifies: Q. That $500 that you testified about, you gave him credit for that? A. I gave him
credit for that; I never got a cent, though; he never paid a cent, though. Q. You made him a
present of that $500? A. Yes, I made him a present; I never received a cent, though. Q. That is
the note that was included in the settlement on the day of the settlement? A. Yes, sir.
Plaintiff further testified that the Scanavino note for $100 was included in the settlement.
The settlement occurred on April 15, 1901, and the receipt for $500 June 6, 1901, showing
beyond peradventure of doubt that plaintiff did not tell the truth when he testified that the
receipt for $500 was included in the settlement. It was something that could not have been in
contemplation of the parties at the date of the settlement, April 15, 1901, because the
settlement is to May 1, 1901, figured on April 15, 1901, but in opposition to this
possibility we have the testimony of plaintiff, as follows: "Q.
settlement, April 15, 1901, because the settlement is to May 1, 1901, figured on April 15,
1901, but in opposition to this possibility we have the testimony of plaintiff, as follows: Q.
Did you receive any more than $15 after that? A. He paid $100 to Scanavino since, and then
he paid Quilici $150. At page 15 of the statement plaintiff very clearly shows that his claim
of $584, as settled between the parties, on the 15th day of April, 1901, was all for labor and
wages. At other parts of his testimony, under leading questions, he shows that the $100, paid
by defendant to Scanavino on a note due Scanavino by plaintiff, was agreed to be paid by
defendant on top of the $584 agreed to be due plaintiff on April 15, 1901. However, the plain
facts show that on April 15, 1901, the parties agreed that defendant owed plaintiff $584, and
no mention was made of the $100 plaintiff owed Scanavino, and on April 23, 1901, defendant
paid said note of said plaintiff to Scanavino, at plaintiff's request, and plaintiff now claims
said sum was included in the settlement that was made eight days prior to said payment,
although not mentioned in the settlement. It is therefore submitted that the settlement of April
15, 1901, on the sum of $584 as being due plaintiff by defendant, was all defendant owed
plaintiff on that date, and all he would owe plaintiff up to May 1, 1901, and that defendant is
entitled to said credit for $100 for the payment of said Scanavino note, and that there is no
testimony in the record of consideration to offset the admitted fact that said note was paid by
defendant for and on behalf of plaintiff and at his request after the parties agreed that
defendant owed plaintiff only $584. The Scanavino note of $100 was paid by defendant for
plaintiff eight days after the settlement, and there is no evidence to show that it was included
in the settlement, except the contrary evidence of the plaintiff, and the rule is well settled that
the testimony of a party to an action which he gives against himself is the most credible, and
plaintiff having testified both ways, the testimony he gave against his interests must be
accepted as the truth.
II. It must be borne in mind that there is no claim that said receipt was obtained by fraud
or undue influence; plaintiff simply testifies that he made a present of it and never
received a cent for it and defendant doesn't need to pay it if he doesn't want to.
plaintiff simply testifies that he made a present of it and never received a cent for it and
defendant doesn't need to pay it if he doesn't want to. If he made a present of it, what right did
the jury have to give judgment for it? The rule that if there is any material evidence to support
the judgment or other decision certainly does not stretch far enough to cover such a case
within its beneficent scope. Where the evidence supporting and that impeaching a receipt are
balanced, the receipt must have its prima facie effect. (23 Ency. of Law, p. 986, 2d. ed., and
authorities and entire title referred to on Receipts.)
III. A receipt must stand where the evidence is of equal weight. (Ennis v. Pullman Palace
Car Co., 165 Ill. 161; Levi v. Karrick, 13 Iowa, 344; Borden v. Hope, 21 La. Ann. 581.) The
testimony to invalidate the receipt must be convincing. (U. S. v. Jones, 8 Pet. (U. S.) 399;
Harden v. Gorden, 2 Mason (U. S.) 561; Guldager v. Rockwell, 14 Colo. 459; Neal v.
Handley, 116 Ill. 418; In re Rhodes, 189 Pa. St. 462.) If the jury believed from the evidence
that the receipt was given to help defraud creditors, as the testimony of plaintiff tends to
show, plaintiff was not entitled to consideration for his wrongful act. However, the great
preponderance of the testimony tends to show that the $500 was actually paid. Plaintiff knew
from June 6, 1901, to the date of his suit and to the date of the trial, about three years, that he
had given that receipt, and he never gave the slightest intimation that no money had been paid
for it, and he never demanded the return of his receipt.
IV. It needs no authorities to satisfy the court that when a man sues for services performed
from April 24, 1896, to the 7th day of January, 1902, he cannot recover for services
performed between 1893 and 1896, and he cannot offer testimony showing or tending to
show that such services should be considered in the suit. The probata must follow the
allegata. Proof is only admissible to establish the case made by the allegations of the
pleading. (Wheeler v. Schad, 7 Nev. 204; Hirschfeld v. Williamson, 18 Nev. 66; Carson River
L. Co. v. Bassett, 2 Nev. 249.)
V. The court admits that defendant testified there had been no settlement between himself
and plaintiff, and it is here insisted that defendant insisted there never had been a
settlement between them, showing that he was consistent in his testimony, and proving
to this court that the testimony actually obtained on cross-examination of defendant was
not directed to show whether he had testified differently on another occasion, but was
solely directed to show that from 1S93 to 1S96 he had paid plaintiff only $2S1.27 and was
entitled to $40 a month from July, 1S93, to April, 1S96, minus the time lost.
been no settlement between himself and plaintiff, and it is here insisted that defendant
insisted there never had been a settlement between them, showing that he was consistent in
his testimony, and proving to this court that the testimony actually obtained on
cross-examination of defendant was not directed to show whether he had testified differently
on another occasion, but was solely directed to show that from 1893 to 1896 he had paid
plaintiff only $281.27 and was entitled to $40 a month from July, 1893, to April, 1896, minus
the time lost. There is not a single word directed to the fact that defendant ever testified in
any former case that he ever had a settlement with plaintiff. All that testimony went before
the jury under the false pretense that it was sought to impeach the witness, in order to show to
the jury that from July, 1893, to April, 1896, plaintiff had worked for defendant for $40 per
month and board, and had received only $281.27. Defendant was clearly prejudiced by such
irrelevant testimony.
VI. It is respectfully submitted that the jury erred in ignoring the great weight of the
receipts for $100 and for $500, and that would be error on their part even though the evidence
was balanced and in equipoise. It is further submitted that defendant suffered grievous
prejudice by the introduction of testimony that he was really indebted over $1,800, instead of
$743.46, and that there would be no harm done defendant if made to pay the amount claimed,
without considering the $100 and $500 payments; that the jury could ignore those two
payments, and still feel justified in giving judgment for the full amount claimed.
Geo. D. Pyne and Mack & Farrington, for Respondent:
I. The evidence introduced at the trial was conflicting, but from the statements of the
defendant himself the jury were not only justified in finding the verdict rendered, but in
justice, according to the evidence, could have found no other verdict.
II. Appellant complains that the jury did not consider the receipt of $100 paid by
Cassinelli to Scanavino and which receipt is known as the Scanavino receipt, April 25, 1901.
The receipt bears date of the settlement of 1901, but, if the court will examine the account
stated itself, it will show that the account stated was to be a full settlement of all moneys due
and all moneys paid to May 1, 1901, and this fact, taken in connection with the testimony of
plaintiff, conclusively proves that the jury was right in its verdict that this Scanavino receipt
was included in the settlement of April 15, 1901.
III. The $500 receipt was given by Devencenzi to Cassinelli as an accommodation with
the understanding that the receipt was to be in accordance with an understanding between the
parties and was not to be considered against Devencenzi, and was given without
consideration by Devencenzi to Cassinelli. Cassinelli was in debt to various parties for money
and thought it would be a benefit to him to have Devencenzi's receipt, showing that he paid
his hired man this money, and for this reason, and to accommodate his employer, he gave
Cassinelli the receipt. The testimony of Devencenzi on page 37, line 3: Q. This is a receipt
for $500? A. Yes, but I never got a five cent for it. I will swear to it. I made that for his
accommodation; you bet I did. Q. Since the settlement? A. Yes, since the settlement. I will
swear before anything that I never got a five cent for it. * * * Q. Does Cassinelli still owe you
the money represented by the $500? A. Yes, sir, by right he does; if he don't want to pay me,
he don't have to. Counsel for appellant makes capital out of the last statement of plaintiff
that if he don't want to pay me, he don't have to. The court will consider that this plaintiff is
an illiterate man and that what he meant was that if the law did not give him his honest due
when he appealed to the courts for his right and decree that Cassinelli owed him this money
and give him judgment for the amount, then Cassinelli did not have to pay it.
IV. The jury found that an account stated had been rendered on April 15, 1901, settling all
transactions between the parties up to May 1, 1901. The jury found, as shown by its verdict,
that the Scanavino receipt was included in that settlement; the jury found that the $500 receipt
was made without any consideration; that Devencenzi gave him the receipt for his
(Cassinelli's) accommodation and at his (Cassinelli's) request, and that he was never paid a
cent for making that receipt.
sinelli's) request, and that he was never paid a cent for making that receipt. The jury found,
as shown by their verdict, that there was due and owing Devencenzi by Cassinelli on January
7, 1902, the sum of $730.46. Their finding cannot be set aside by the appellate court. Neither
the findings of fact by a judge nor the verdict of a jury will be disturbed on the ground of
insufficiency of testimony, in case of a conflict, unless the preponderance of evidence against
it be great and decided. (Reed v. Reed, 4 Nev. 395; Ophir S. M. Co. v. Carpenter, 4 Nev.
534; Roney v. Buckland, 5 Nev. 219; Clarke v. Nev. L. & M. Co., 6 Nev. 203; Simpson v.
Williams, 18 Nev. 432; Buckley v. Buckley, 12 Nev. 423; Lewis v. Wilcox, 6 Nev. 215;
Carlyon v. Lannan, 4 Nev. 156; Bryant v. Carson Lumber Co., 3 Nev. 313; State v. Yellow
Jacket S. M. Co., 5 Nev. 415; McCoy v. Bateman, 8 Nev. 126; Smith v. Mayberry, 13 Nev.
427; Duquette v. Ouilmette, 13 Nev. 499; State v. C. P. R. R. Co., 10 Nev. 47; Langworthy v.
Coleman, 18 Nev. 440; Solen v. V. & T. R. R. Co., 13 Nev. 106; Boskowitz v. Davis, 12 Nev.
446; Winter v. Fulston, 20 Nev. 260.)
Cassinelli testified that Devencenzi worked for him from July 22, 1893, until January 7,
1902, in his direct examination, at the agreed price of $40 per month, being a period of 8
years, 5 months, and 16 days; that Devencenzi lost days during that time, and that he and
Devencenzi never had a settlement. In his cross-examination he admitted that he paid for
Devencenzi up to the time the mortgage was given $281.27 and gave him about $300 in
money, besides also executing a note and mortgage to Devencenzie for $1,000. Now,
according to the testimony of Cassinelli, Devencenzi earned $2,720 from the time the note
and mortgage were executed, April 24, 1896, to January 7, 1902, being sixty-eight months at
$40 a month. Cassinelli testified that there had never been a settlement between them since
Devencenzi commenced to work for him and there had been no account stated as alleged by
Devencenzi. Then, according to his own testimony, Devencenzi earned $2, 720, less lost
days, from April 24, 1896, to January 7, 1902. Cassinelli testified that he paid Devencenzi
since that time (if you take his own evidence as the truth) the $100 Scanavino note, the
$500 paid June 6, 1901, which Devencenzi testified he had received no money for, the
$140 Cassinelli testified that he paid Joe Quilici, and the $175 Cassinelli testified that he
paid Devencenzi in cash, making a total of $915 paid Devencenzie according to Cassinelli;
as Devencenzi earned $2,720 according to Cassinelli and Cassinelli only paid him $915,
this would leave a balance due Devencenzi of $1,S05; now deduct the judgment rendered
of $730.46, and you have left $1,074.54 to be deducted for lost time, all of which
evidence was before the jury, and they had a right to consider the same.
the $100 Scanavino note, the $500 paid June 6, 1901, which Devencenzi testified he had
received no money for, the $140 Cassinelli testified that he paid Joe Quilici, and the $175
Cassinelli testified that he paid Devencenzi in cash, making a total of $915 paid Devencenzie
according to Cassinelli; as Devencenzi earned $2,720 according to Cassinelli and Cassinelli
only paid him $915, this would leave a balance due Devencenzi of $1,805; now deduct the
judgment rendered of $730.46, and you have left $1,074.54 to be deducted for lost time, all of
which evidence was before the jury, and they had a right to consider the same.
V. A receipt is merely evidence and, while it is of the highest and most satisfactory kind
and of greater probative effect than most other evidence, it is nevertheless not conclusive, but
is merely prima facie evidence of the facts revealed by it, and is open to explanation and
contradiction by parol, or by any other competent evidence. (Jenne v. Burger, 120 Cal. 446;
Comptoir v. Dresbach, 78 Cal. 15; Winans v. Hassey, 48 Cal. 635.) Evidence can be
introduced and it can be shown that the receipt was given without consideration. (Shamper v.
Hayes, 25 Ga. 546; Jones on Evidence, sec. 502.)
VI. Counsel in his brief admits that a settlement was had between plaintiff and defendant,
notwithstanding his client swore in his answer and testified on the witness stand that no
settlement was ever had between plaintiff and defendant, and then claims that the jury erred
in not believing the testimony of defendant. The moment the jury became convinced that the
defendant swore falsely as to any material matter they had a right to believe that other
portions of defendant's testimony were false. Falsus in uno, falsus in omnibus, is the guide
in considering the weight to be given to testimony offered on the trial. When the jury came to
the conclusion (as counsel for defendant claims) that defendant was testifying falsely as to the
settlement, they naturally came to the conclusion that his testimony as to his paying the $500
in gold to plaintiff for the $500 receipt was also false. Yet counsel finds fault with the jury for
not believing his client when he himself admits that his client was unworthy of belief.
belief. How, then, can the supreme court, any better than the jury, find any testimony
contradicting the testimony of plaintiff, when he testified that he never received a 5-cent piece
for the $500 receipt?
Alfred Chartz and John Lothrop, for Appellant, in reply:
I. It is a general rule in actions at law that, in order to enable a plaintiff to recover or a
defendant to succeed in his defense, what is proved or that of which proof is offered by the
party on whom lies the onus probandi must not vary from what he has previously alleged in
his pleadings, and this is not a mere arbitrary rule, but is one founded on good sense as well
as good law. (22 Ency. of Pl. & Pr. 527; Greenl. Ev. 63; Jones Ev. 235; Rice Ev. 292;
Phillips Ev. 205.)
II. It is plain from the foregoing authorities that the introduction of testimony showing that
plaintiff went to work for defendant in July, 1893, at $40 a month and board, and that he had
paid him only $281.27 during said time, which proof would show defendant indebted over
$1,800 to plaintiff, was prejudicial to him.
This action was brought by respondent against appellant for the sum of $584, alleged to be
a balance due from appellant to respondent upon an account stated between them on the 15th
day of April, 1901; said account stated to be in full settlement of their accounts to the 1st day
of May following. Respondent also alleged a further balance due him for labor and services
rendered appellant from the said 1st day of May, 1901, to the 7th day of January, 1902, in the
sum of $146.46; making a total indebtedness alleged to be due from appellant to respondent
of $730.46. Appellant denied that an account was ever stated between himself and
respondent, and denied that he was indebted to him in any sum whatever, but, upon the
contrary, alleged that respondent was indebted to him in the sum of $1,012.37, and prayed
judgment in his favor accordingly.
The case was tried with a jury, and a verdict rendered in plaintiff's favor for the full
amount prayed for in his complaint, and judgment entered in pursuance thereof.
plaint, and judgment entered in pursuance thereof. This appeal is from the judgment, and
from an order denying defendant's motion for a new trial. Two grounds are urged upon the
appeal for the reversal of the judgment and the granting of a new trial, to wit, that the verdict
was not supported by the evidence, and errors in law occurring at the trial, and excepted to by
the appellant.
There was little testimony offered at the trial bearing upon the material issues, outside of
that given by the parties to the action, and their testimony upon all material matters was at
such variance that the jury was necessarily compelled to determine as between them. The
verdict shows that the jury accepted the testimony of the plaintiff. If his testimony was true,
the plaintiff was entitled to a verdict as prayed for. As the jury was the judge of the credibility
of the witnesses, this court will not attempt to disturb its conclusions in that respect.
Counsel for appellant argues very forcibly that two receipts offered by the defendant in
evidence corroborated the testimony of the defendant, and established that payments had been
made to or on account of the plaintiff since the alleged stated account, and for which
defendant was not given credit. One of these receipts is dated April 23, 1901, for $100, and
was given by one A. Scanavino to the defendant, and acknowledged payment by the
defendant of the note of plaintiff to said Scanavino. In reference to this receipt, however, the
plaintiff testified that at the time the account was stated between the parties, on the 15th day
of April, 1901, it was agreed that the defendant should pay this note, and that the amount of
the same was then credited to the defendant and taken into consideration when the balance
alleged to constitute the stated account was arrived at. The other receipt was dated June 6,
1901, and was given by the plaintiff to the defendant, and acknowledged the receipt of $500
on account of labor. The defendant testified that he paid plaintiff $500 in coin at the time the
receipt was given him by the plaintiff. The plaintiff, in his testimony, denied repeatedly and in
positive terms that he ever received a cent from defendant as acknowledged by the receipt,
but swore the receipt was given only "for the accommodation of the defendant."
the receipt was given only for the accommodation of the defendant. The evidence of both
the parties relative to the circumstances of the giving of this receipt is very meager. The only
attempt to obtain an explanation of what the accommodation was that the defendant was to
enjoy from the giving of this receipt is shown from the following question and answer: Q.
What was the accommodation? A. That there would be no question about me getting the
money if I would sign the receipt for the five hundred dollars, but I never got five cents.
With this answer upon the part of the plaintiff, respective counsel permitted the matter to rest.
It must be admitted that the answer of the plaintiff is far from lucid as an explanation of the
accommodation to be extended the defendant. However, from all the testimony of the
plaintiff, if believed by the jury, the jury could draw the conclusion that the receipt was given
without consideration, and this the jury doubtless did.
It is well settled that a receipt, although evidence of the highest character, is not
conclusive, but is merely prima facie, evidence of the facts recited by it, and that it may be
explained or contradicted by parol. (1 Greenleaf on Evidence, 305; 2 Jones Ev. 502; 22 A. &
E. Enc. of L. 2d ed. 582; 23 A. & E. Enc. of L. 2d ed. 983; Pendexter v. Carleton, 16 N. H.
489; Gleason v. Sawyer, 22 N. H. 85; Insurance Co. v. Chappelow, 83 Ind. 429; Jenne v.
Burger, 120 Cal. 446, 52 Pac. 706; United States v. Jones, 8 Pet. 418, 8 L. Ed. 988.)
Conceding that the law in reference to receipts is as above stated, counsel for appellant
further argues that the testimony for and against the receipt is of equal weight, in that the
testimony of the defendant will balance that of the plaintiff, and that therefore the receipt
must have its prima facie effect; citing 23 A. & E. Enc. of L. 2d ed. 986, and authorities
therein cited. If the testimony of the plaintiff and defendant was of equal weight with the jury,
then undoubtedly the receipt should have controlled. If the only point in the case upon which
the testimony of the plaintiff and the defendant was in conflict was in reference to this
receipt, it might seriously be questioned if the jury would have been justified in accepting the
plaintiff's testimony as against the receipt and the testimony of the defendant; there being
no other evidence or testimony touching the receipt other than the receipt itself and the
testimony of the parties.
against the receipt and the testimony of the defendant; there being no other evidence or
testimony touching the receipt other than the receipt itself and the testimony of the parties.
But in this connection it is proper to consider the fact that the testimony of the plaintiff and
defendant was conflicting upon every essentially material point in the case, and sharply so. If
the jury believed the testimony of either of the parties to the action, it must have rejected as
untrue the testimony of the other, not only in reference to the receipt, but as to all, or
practically all, the remaining material portion of the testimony. The jury gave the plaintiff a
verdict for all he sued for. To do so, it must have believed his testimony upon several other
material matters besides that affecting this receipt, and disbelieved that of the defendant.
Under this state of facts, can it be said that the verdict of the jury would not be supported by
the evidence, when its effect was to negative the force of the receipt? My judgment is that it
cannot be so said. There is not any rule in respect to receipts different from that applicable to
any other prima facie evidence. To destroy its effect, it must be overbalanced by other
evidence laid before the jury, which is to judge whether there is such a preponderance. (23
Enc., supra.)
The term preponderance of evidence is well defined in an instruction given to the jury in
the case of Strand v. Chicago Ry. Co., reported on appeal in 67 Mich. 380, 34 N. W. 712, and
therein pronounced a correct definition of the term. The instruction as given is as follows:
The burden of proof rests upon the plaintiff to make out the facts which I have stated to you
are essential to establish his case by a fair preponderance of evidence. By this is meant such
evidence as, when weighed with that which is offered to oppose it, has more convincing
power in the minds of the jury. It is not a technical term at all, but means simply that evidence
which outweighs that which is offered to oppose it. It does not necessarily mean that a greater
number of witnesses shall be produced on the one side or the other, but that, upon the whole
evidence, the jury believe the greater probability of the truth to be upon the side of the party
having the affirmative of the issue. Further commenting upon this instruction, the court
says: "If the evidence of the plaintiff is more probable than that of the defendant, it
certainly outweighs it, and if it outweighs it the preponderance is with the plaintiff.
tion, the court says: If the evidence of the plaintiff is more probable than that of the
defendant, it certainly outweighs it, and if it outweighs it the preponderance is with the
plaintiff. * * * One version or the other was the true one. The jury, in determining between
them, had the right to weigh the probabilities of the different stories, to ascertain which was
correct. (Strand v. Ry. Co., supra; Corniff v. Cook, 95 Ga. 68, 22 S. E. 47, 51 Am. St. Rep.
55; Savannah Ry. Co. v. Wideman, 99 Ga. 245, 25 S. E. 400.)
In the case now before the court, the jury having plainly given credence to the testimony of
the plaintiff as against that of the defendant upon all the material issues of the case, his
testimony, in the minds of the jury, outweighed that of the defendant relative to the receipt,
and hence the preponderance of the evidence was by the jury determined to be against the
facts recited in the receipt.
During the progress of the cross-examination of the defendant, counsel for defendant
moved to strike out a portion of defendant's testimony elicited upon cross-examination upon
the ground that you cannot impeach a person by any matter that is not material to the issue,
and, further, that the testimony thus far elicited, or that can be elicited upon the same lines,
cannot tend to impeach his testimony, and that the only way that his testimony can be
impeached is by showing that on the former trial he testified differently from what he testifies
to now. The motion was denied by the court, and this ruling is assigned as error. Upon
examination the testimony moved to be stricken out does not appear to have been elicited for
the purpose of impeaching the witness, nor could it have tended so to do. It was for the most
part in reference to accounts contained in a book of defendant's, a portion of which had been
offered in evidence by counsel for defendant upon direct examination. I find no error in the
ruling of the court.
For the reasons given, the judgment and order appealed from are affirmed.
____________
28 Nev. 235, 235 (1905) Schlitz Brewing Company v. Grimmon
[No. 1669.]
JOS. SCHLITZ BREWING COMPANY, Appellant, v.
ROBERT GRIMMON, Respondent.
1. SalesTerms ofAssignee of PurchaserEvidence. Where defendant claimed certain beer kegs through an
assignment of a debtor's interest to his creditors, it was permissible for plaintiff brewing company to
show in replevin for the kegs that on the bills rendered to the insolvent for beer shipped him in the kegs
there was a printed condition that the kegs remained the property of plaintiff, as any right which
defendant acquired from the insolvent or his assignee was limited by the terms on which the insolvent
purchased from plaintiff, and these could be shown regardless of defendant's knowledge thereof.
2. SameEvidenceCustom. Plaintiff brewing company, when sending the bill of lading for a carload of beer,
wrote the purchaser to always return empty kegs, and the purchaser agree to follow plaintiff's
instructions. Held, that in replevin for the kegs by plaintiff against defendant, who bought them at a sale
of the purchaser's property for the benefit of creditors, evidence to show a custom to so return them was
inadmissible, the letters being too explicit to need explanation.
3. SamePrincipal and AgentAuthority of AgentProof. Where it is sought to prove authority in an agent,
the authority, if in writing, should be produced, or its loss shown, in which case only its terms may be
shown; and, if verbal, the language should be stated to the best of witness' recollection.
4. SameTestimony of Agent. Although the word authority is too much in the nature of a conclusion to use
in a question to a witness as to whether an alleged agent has been authorized, empowered, or instructed,
to do certain things, he may at least testify that there was no instruction, or nothing said or written, in
regard to the matter, by the alleged principal to the alleged agent.
5. SameRebuttal. Where defendant relies on the acts of an alleged agent of plaintiff, evidence that such agent
had no authority in the matter has no proper place in the case except in rebuttal, and not until after
defendant introduces some proof of agency.
6. SameProof of AgencyBusiness CardsDeclarations of Agent. Plaintiff brewing company sold beer in
kegs, retaining the ownership of the kegs, to one who thereafter became insolvent, and whose assignee
for the benefit of creditors sold the beer and kegs to defendant. In replevin by plaintiff for the same, the
assignee testified that he sold the kegs because one S., representing himself as plaintiff's agent, said that
plaintiff had no claim on the kegs, and no agreement with the insolvent by which they could be
recovered. Held, that such assertions by S., his representations and assumption of authority, the
production of cards bearing his name in connection with that of plaintiff company and its trade-mark
and motto, and his making out a bill to the assignee for a part of the kegs, unless authorized or ratified
by plaintiff, did not bind it.
7. Same. Sending S. out to solicit orders for beer, subject to the approval of plaintiff's officers, and thereafter
directing him to employ an attorney to replevin the kegs, did not give him power to sell them, nor make
plaintiff liable further than it had endowed him with authority.
8. Same. The fact that the cards carried by S. bore after his name the words With Jos. Schlitz Brewing Co.
did not show that he was authorized by plaintiff to sell the kegs.
9. SameTestimony of Agent. The rule that an agency cannot be established by an agent does not prevail
when he is under oath and subject to cross-examination.
10. SameEstoppel. The acceptance by plaintiff of a dividend on its claim against the insolvent, without
knowledge that any part of the money came from its kegs, or that S. had consented to a sale, or
attempted to waive plaintiff's rights thereto, did not estop it from claiming the property.
11. SameBurden of Proof. The burden of proving estoppel is on the party alleging it.
12. SameSufficiency of Evidence. In replevin for certain beer kegs, evidence examined, and held insufficient
to support a judgment for defendant.
Appeal from the District Court, Washoe County; B. F. Curler, Judge.
Action by the Jos. Schlitz Brewing Company against R. Grimmon. Judgment for
defendant, and plaintiff appeals. Remanded for new trial.
O. H. Mack, for Appellant:
I. The theory of the defense in the trial of this cause is that there was either an express or
implied agency upon the part of one A. G. Shape by whose representations and actions the
appellant was charged. There is nothing to justify such a theory; the pleadings nowhere admit
it, and there is not one scintilla of evidence to sustain it. The court excluded all of appellant's
testimony that tended to disprove such a theory. As a matter of fact it would have been
entitled to a judgment non obstante veredicto, if the motion had been made in time.
II. The testimony of Otto Benschuetz, C. H. Chon, and the respondent himself, as tending
to prove said custom, should have been admitted. (Reinhart on Agency, sec. 194; Mechem on
Agency, sec. 281; 79 Am. Dec. 196; 57 Am. Dec. 602.) Where in the trial of a case it is
sought to bind the principal by acts of a person alleged to be his agent, the principal has a
right to prove by himself and alleged agent the authority conferred upon said alleged agent as
tending to show that the principal was not responsible for his acts and the alleged agent is
responsible for his acts, and the alleged agent is a competent witness as to the scope of
his authority, and can testify in so many words whether he had or had not authority to do
a certain thing, using the conclusion "authority."
show that the principal was not responsible for his acts and the alleged agent is responsible
for his acts, and the alleged agent is a competent witness as to the scope of his authority, and
can testify in so many words whether he had or had not authority to do a certain thing, using
the conclusion authority. (Yellow Jacket M. Co. v. Stevenson, 5 Nev. 224; Edwards v.
Carson Water Co., 21 Nev. 477; Dowell v. Williams, 33 Kan. 601.)
III. The court in the trial of this case ruled out all questions as to whether Shape had
authority to bind this appellant or not. The court erred in so doing. If an agent has no authority
to perform a certain act, it is immaterial and irrelevant for him to testify as to any other
authority he may have. If there were no words passed between him and the principal giving
him authority to perform the act, he can testify in so many words he had no authority.
(Edwards v. Carson Water Co., 21 Nev. 477; Graves v. Horton, 35 N. W. 568.)
IV. The law of this state concerning persons dealing with corporations is as follows:
Persons dealing with corporations are chargeable with notice of the agent's powers, and
respondent was bound to know that Shape could not act beyond the powers invested in him
by said corporation. (Edwards v. Carson Water Co., 21 Nev. 483; Mechem on Agency, 276;
Parsons on Contracts, vol. 1, secs. 40-42; Smith v. Association, 12 Daly, 305; Mining
Company v. Frazer, 29 Pac. 669; Owings v. Hull, 9 Pet. 628.) It was incumbent upon the part
of appellant to bring its rules and regulations to the knowledge of respondent. The law
implies such knowledge upon the respondent's part and he is not allowed to dispute it.
V. The burden of proof is upon respondent relying on ratification; it is incumbent upon
him to prove that appellant knew of the contract, and not upon appellant to establish the
negative. It has been nowhere shown that appellant was so cognizant. It does not appear that
appellant received over 10 per cent of the value of its goods. It received it from the assignee;
there was no business relations shown between appellant and respondent; respondent never
paid appellant any money; appellant never accepted any benefit from debt; it was justified in
retaining all of the purchase price of said goods, and it received it without any knowledge
whatever of the circumstances of the case.
it was justified in retaining all of the purchase price of said goods, and it received it
without any knowledge whatever of the circumstances of the case. Hence, there was no
ratification and there could be no estoppel without a thorough knowledge of all the facts upon
appellant's part at the time they occurred. It could not be estopped unless respondent showed
that appellant knew at the time of the acts that Shape was undertaking to act on its behalf and
intended he would so act. Estoppel should be pleaded. (13 Nev. 109; 13 Nev. 395; 6 Nev.
377.)
VI. The court erred in not admitting evidence to prove tender of check. Appellant does not
have to plead tender in complaint; it belongs to the reply. No reply is allowed in this state,
hence it is assumed. A personal check is a legal tender for any sum if the amount only is
objected to and objection to the nature of the tender is waived. (Parsons, Notes and Bills,
620-623.) Therefore the court erred in not admitting evidence to show tender of check. (7
Ohio St. 257; 19 Nev. 379.)
VII. The court will observe that this, to say the least, was probably the most peculiar pleading
that has ever been brought to the attention of the court. Here we have a complaint properly
framed, declaring in replevin, with a sufficient bond to secure the respondent from possible
loss, the goods legally in the possession of the sheriff; now comes the respondent and
answers, ignoring said bond, and sets up conversion of said goods by appellant predicated
upon said sheriff's seizure, and frames his answer in tort and asks a judgment for the value of
the goods and not for the return thereof, evidently trying to use this court as a market place
for the disposal of goods, wares, and merchandise and a speedy payment thereof. The court
will observe the inconsistency of the answer in this, that an action in replevin is an action to
determine the rights of propertyand action in rem.
VIII. The court erred in not allowing alternative judgment. An action in trover or in
conversion is a suit in personam. The court will notice that we have an action in rem
endeavored to be answered by an action in personam, which is absolutely impossible and
against the rules of all good pleading.
is absolutely impossible and against the rules of all good pleading. The only question that this
court can possibly determine is the ownership of said property; placing it where it belongs,
together with damages for its unlawful detention, with an alternative judgment for its value if
not returned. An absolute judgment for its value, not allowing the appellant to satisfy the
judgment by return of the property with costs and damages, is erroneous. (Lambert v.
McFarland, 2 Nev. 58; 12 Nev. 423; Fitzhugh v. Wiman, 9 N. Y. 559; Comp. Laws, 3297.)
Therefore the court erred in not rendering said alternative judgment, and appellant is entitled
to a new trial.
S. Summerfield, for Respondent:
I. In this action appellant, a Wisconsin corporation, brought an action in claim and
delivery in the district court against respondent for the recovery of certain cooperage of the
alleged value of $497.50. Coincident with the institution of the suit it executed and delivered
its replevin bond, caused the sheriff to seize the cooperage in respondent's possession and to
deliver the same to appellant, which speedily caused the property to be shipped to it at
Milwaukee, Wisconsin, at which place appellant has ever since retained possession of the
same.
II. Later respondent answered appellant's complaint denying any unlawful possession or
detention of the cooperage formerly in his possession, pleaded ownership of all that was in
his possession, alleged conversion and removal of the same beyond the jurisdiction of the
court by appellant, waived return of the property, and demanded judgment against appellant
for its value in the sum of $423. On the trial of the action appellant, by leave of court,
amended its complaint respecting the amount of cooperage in controversy and the value
thereof so as to correspond with the affirmative allegations contained in respondent's
cross-complaint. The trial resulted in a verdict and a judgment therein against appellant and in
favor of respondent for the sum of $423 and for costs of suit. Appellant moved for a new
trial, and from an order denying the same it appeals to this court.
III. None of the exceptions taken by appellant to the rulings of the trial court are effective
for the reason that the point or points of such exceptions were not stated as is required by law.
(McGurn v. McInnis, 24 Nev. 370.)
IV. An agent's authority and the scope thereof is purely ultimate determination of law and fact
deducible from the evidentiary facts only in each particular case subject to the established
principles of law.
V. The private course of business between Ecker and appellant could not under any
principle of law affect respondent in the absence of knowledge by him of the nature thereof.
VI. Mr. Shape's evidence was not admitted to prove his agency before the same was
proved aliunde, but was admitted to show the actual transaction whereby respondent claimed
to have become invested with the title to the disputed cooperage. The agency of Mr. Shape
was established by various testimony and evidentiary circumstances to the satisfaction of the
jury in subordination to careful and correct instructions definitive of the law of agency from
the court.
VII. Appellant ratified the sale of the cooperage to respondent by accepting a portion of
the purchase price therefor paid by respondent. It is an invariable rule that if one accepts the
benefits of an unauthorized sale made in his behalf by another he is bound by its terms the
same as if he had entered into the contract with the contracting person or had expressly
ratified it. (Hyatt v. Clark, 118 N. Y. 563; Murray v. Mayo, 157 Mass. 348; Pattison v.
Babcock, 130 Ind. 474; Wilder v. Beede, 119 Cal. 646; Marks v. Taylor, 63 Pac. 897; Owens
v. Swanton, 64 Pac. 921; Bissell v. Dowling, 117 Mich. 646.)
VIII. No tender of the money received by appellant from Grimmon for the cooperage was
ever made to respondent. The most that is claimed is that appellant's attorney tendered to
respondent's attorney his personal check, which was refused. This does not constitute a tender
in law. (Englander v. Rodgers, 41 Cal. 420; Beauchamp v. Archer, 58 Cal. 431.)
IX. Agency need not necessarily be proven to exist by express contract, but may be
established by proof of acts and conduct calculated to induce a reasonable man to believe
in the existence of such agency.
and conduct calculated to induce a reasonable man to believe in the existence of such agency.
(Bigelow on Estoppel, chap. 17; Reynolds v. Collins, 78 Ala. 94; Hubbard v. Tenbrook, 124
Pa. St. 291; Hoppe v. Saylor, 53 Mo. App. 4; Collins v. Cooper, 65 Tex. 460; Land
Association v. Banks, 80 Minn. 317.)
X. Under the pleadings in this action the court did not err in rendering judgment for the
value of the property instead of the alternative form. In the first instance the appellant had the
right to sue in either replevin or in trover at its option. It chose to sue in replevin, and had it
prevailed in such suit the judgment would have had to be in the alternative, as has heretofore
been decided by this court in Lambert v. McFarland, 2 Nev. 58. The cooperage having been
seized by appellant and removed to Wisconsin, respondent had the right to waive a return of
the property to him and to demand judgment for its value.
XI. It is only when in such cases as this the defendant claims a return thereof that the
judgment must be in the alternative when he prevails in the suit. (Comp. Laws, 3297.) Under
a statute similar to that of Nevada the Supreme Court of Wisconsin has directly and
emphatically held that a defendant in replevin may waive a return of the property to him and
take judgment for its value. (Farmers Loan & Trust Co. v. Bank of Racine, 15 Wis. 424, 82
Am. Dec. 689; Kloety v. Delles, 45 Wis. 490.)
XII. It is only where the defendant claims a return that he cannot have judgment for the
value only. (Smith v. Coolbaugh, 19 Wis. 111; Three States Co. v. Blanks, 133 Fed. 479.) In
Farmers Loan & Trust Co. v. Commercial Bank of Racine, supra, the Supreme Court of
Wisconsin forcibly and with unanswerable logic fortified its decision in the following
language: The statute makes the alternative judgment in favor of a defendant dependent on
the condition that he claims a return'; and we can give no effect to this clause except by
allowing an option to claim a return or not. Counsel construe it as a description merely of that
class of defenses which, if established, would entitle the defendant to a return, as
distinguished from those which would not. But it does not seem to us such as would have
been used for that purpose.
pose. If that had been the design, the legislature would have said that where the defendant
succeeded on an answer which would entitle him to a return, the judgment should be in the
alternative. The language used seems much more aptly to describe the option which
defendants had in such cases, by the law in force at the time the code was adopted, to waive a
return and take judgment for the value, than it does the difference between pleas which entitle
him to a return and those which do not. And we think there is reason and justice in preserving
this option to defendants. The plaintiff has in effect the same option; for although he may not
elect, after having brought his suit to obtain the property, to take a judgment for the value
where a return can be had, he might have waived a return before bringing suit, and have sued
for the value either in trespass or trover. And where the plaintiff has unjustly taken the
defendant's property into his own possession, even though by the aid of a legal process, there
is no reason why the defendant, if he chooses, should not have the right to compel him to
abide by the consequences of his own acts and to pay for the property. Indeed, it might, in
many instances, be oppressive to defendants to compel them to receive it back. Thus, suppose
a contractor has procured certain articles with which to complete his contract, and some
plaintiff replevies them and gives the bond necessary to take possession. The litigation may
last for years, but the contractor is bound to complete his contract immediately. He provides
new articles for that purpose, and afterwards succeeds in the suit. Should he be bound then to
take back the articles when he had no longer any use for them? It seems to me not. And the
fact that plaintiffs might sometimes be compelled to pay for property, and lose it afterwards,
is no reason why the defendant should not be entitled to a judgment for the value. If the
defendant in replevin had been sued in trespass, he might have been made to pay for the
property, and yet some stranger might afterwards have taken it from him on proving a better
title than the plaintiff in the trespass suit. This is a risk that all parties have to run. But it
affords no reason why the judgment should not be according to the rights of the parties as
they are made to appear in the suit.
appear in the suit. Possession was sufficient evidence of title in the defendant until the
plaintiff showed a better title. And if that possession would be sufficient to justify a judgment
for the return of the property, it is equally sufficient to justify one for its value, and the
defendant's option to take such a one ought to be defeated for the purpose of allowing
plaintiffs to resort to legal process to get possession of their neighbors' property with the least
possible risk to themselves.
Per Curiam:
The complaint in this action is an ordinary one in replevin for 158 half and 38 quarter beer
barrels, alleged and admitted to be of the value of $423. The answer declares that one A. G.
Shape was the authorized agent of plaintiff for the transaction of its business in the State of
Nevada during the times mentioned in the complaint; that on or about June 16, 1903, Geo. L.
Ecker was a wholesale liquor dealer at Reno, and was at that time insolvent, and owing
plaintiff $869.75 for goods, wares, and merchandise previously sold and delivered by plaintiff
to Ecker, which included the personal property in dispute; that on this 16th day of June
various creditors of Ecker agreed with him that one T. M. Branton, as trustee for all the
creditors, should take possession of his property, and expeditiously dispose of the same, and
distribute the proceeds of the sale thereof pro rata among the creditors; that on July 2, 1903,
there were in storage with the Flanigan Warehouse Company at Reno, Nevada, 150 half and
38 quarter-barrels of Schlitz beer consigned by plaintiff to Ecker, and that thereupon plaintiff,
acting by and through A. G. Shape as its agent, importuned and requested defendant to
purchase this beer and the half-barrels and quarter-barrels containing the same, and
represented to and assured defendant that the same were not the property of the plaintiff, and
that plaintiff had no claim thereupon, but, on the contrary, that they belonged to Ecker, and
were a part of his assets, to be sold for the benefit of his creditors; and that defendant, in
express reliance upon these representations, purchased and received these barrels and their
contents, and paid therefor $566.75; and that on or about September 7, 1903, this money was
distributed among the different creditors; and that the plaintiff, through its attorneys,
Curler & King, received and accepted their proportionate part thereof.
1903, this money was distributed among the different creditors; and that the plaintiff, through
its attorneys, Curler & King, received and accepted their proportionate part thereof.
These allegations of the answer being deemed denied, under our statute and practice it was
incumbent upon the defendant to prove them, or such parts thereof as were necessary to be
established before he could prevail. That the cooperage was not included in the sales of beer
by plaintiff to Ecker is clearly indicated by their agreement, which was closed by letter. When
sending bill of lading for the first carload of beer, the plaintiff, under date of June 25, 1902,
after specifying extent of credit and other conditions, wrote: Please always return empties to
us in a refrigerator car, and do not send us a smaller quantity than 15,000 lbs. In his letter in
reply on June 29th, after saying he was glad they had agreed upon prices, and mentioning
other matters, Ecker stated: I shall follow your instructions as to returning empties.
Pursuant to these terms Ecker returned the other cooperage from the nine cars of beer he
received. The plaintiff offered to prove that there were printed on the back of all bills sent by
the plaintiff to its customers the following: Rules and Regulations. The attention of all
parties dealing with Jos. Schlitz Brewing Company is called to the following by-laws, rules
and regulations. Authority of agents.No one can bind this company or contract any debt on
its behalf unless a general officer of the company, or specially authorized by resolution of the
board of directors. Sale and delivery.No order or agreement for the purchase of beer will be
considered as binding upon this company until received and accepted at the general office in
Milwaukee. * * * Return of empty packages.The kegs and barrels in which the beer is sold
invariably remain the property of the brewing company. The use thereof for any purpose other
than holding beer constitutes conversion or larceny of the same. * * * By order of the Board
of Directors, August Uihlein, Secretary. Objection was made and sustained to the proffered
evidence on the ground that these rules would not be admissible against the defendant when
the bills bearing them were not sent to him, and he was not shown to have received
knowledge regarding them.
when the bills bearing them were not sent to him, and he was not shown to have received
knowledge regarding them. By his answer, as stated, and by a letter to which we refer
hereafter, defendant was claiming through an assignment of Ecker's interest to his creditors;
and regarding the extent or limitation of that interest it was permissible for plaintiff to show
that on the back of the bills rendered to Ecker there was a printed condition that the kegs
remained the property of the brewing company. Any right which defendant acquired from
Ecker or his assignee was limited by the terms on which Ecker had purchased from the
plaintiff, and these could be shown regardless of defendant's knowledge. Ordinarily, the
purchaser of property must ascertain the facts relating to its title or right, or he buys at his
peril. This evidence would have been cumulative to that we have quoted from the letters
showing that the cooperage was to be returned to the brewing company when the beer was
sold to Ecker. As the latter had no interest in the barrels or kegs except to use them until the
beer was sold and consumed, he could not convey to his assignee any greater right than he
possessed himself. By letter defendant offered to sell the casks to plaintiff, and the latter
replied from Milwaukee by claiming and demanding them. In answering defendant wrote: In
reply will say that I have the kegs I bought from the creditors and the only way you can get
them will be through the courts of Nevada. * * * I will hold or sell as I choose all the barrels I
bought from said creditors. I don't claim any others. Jos. Schlitz and Company was not known
in the transaction I had, so you will have to take them some other way than trying to bulldoze
me. From this it would seem that defendant believed that plaintiff had sold the kegs to
Ecker, which, as we have indicated, was not the fact; or that the creditors could sell plaintiff's
property to apply in payment of Ecker's debts, which is not the law. Testimony to prove that
in one instance in far away San Diego, California, so long ago as the year 1888, the empty
kegs were returned to the brewery, and other evidence offered for the purpose of showing that
this is the custom, was properly excluded. By the letters between plaintiff and Ecker
ownership of the cooperage was reserved in terms too explicit to need explanation.
tiff and Ecker ownership of the cooperage was reserved in terms too explicit to need
explanation. As notice to the world of plaintiff's ownership, these casks bore its name burnt
on the ends and sides. Defendant testified that during the seven years he was in the hotel
business at Carson City, the brewing company with which he was dealing took back the
empty kegs. It is apparent that he was aware that the cooperage might not have been included
in the sale of the beer to Ecker, but, if not so, he could not safely purchase it without first
obtaining correct information.
Notwithstanding defendant wrote that plaintiff was not known in the transaction, it is
claimed that the plaintiff, through one A. G. Shape as its agent, sold or waived its right to the
casks in favor of defendant and the assignee, and that by receiving a percentage of the money
which the defendant paid for the beer and kegs plaintiff is estopped from recovering the
cooperage. Witnesses for the defendant testified that after he had placed with Branton, as
assignee of Ecker for the creditors, a bid of $550 for the Schlitz beer on hand, the defendant
asked Branton if the cooperage went with the beer, and declined to take it without; that the
latter by phone called Shape, who was in Reno at the time, and who came to the office to see
them, and who represented himself as the Pacific Coast agent for the plaintiff, and said that
ordinarily the kegs were supposed to be returned to the brewery, but in this case the company
had no claim on them, and no agreement with Ecker by which it could recover them from his
assignee; that Shape inquired for a lawyer, and defendant introduced him to Attorney King in
Reno; that Shape made out a bill in the name of the defendant against Ecker or his assignee
for $869.75, and included therein an item of 45 half-barrels at $2.25 each, amounting to
$101.25. Shape testifies that in asking this charge he exceeded his authority, and that he did
not negotiate for the sale of the casks to defendant. There was evidence that Shape left Curler
& King's office saying he would wire to the plaintiff in regard to the cooperage, and
defendant said on the stand that he supposed Shape had gone to telegraph concerning it; and
King testified that Shape told him next morning that it was all right.
Shape presented cards bearing near the top the trade-mark of the Schlitz Brewing Company
and the motto. The Beer that Made Milwaukee Famous; at the center, A. G. Shape; and
near the bottom, With Jos. Schlitz Brewing Co., Milwaukee, Wis. These and the testimony
were admitted over objections. While the evidence was being placed in plaintiff's case in
chief, it was sought to prove by the depositions of the officers of the company that Shape had
no authority to sell or waive its right to the cooperage. The witnesses were asked whether he
had been authorized, empowered, or instructed to dispose of any cooperage. Objection was
made, and sustained on the grounds that whether he was authorized was a conclusion, and
that the witnesses could testify only to the terms of the appointment. This is a correct doctrine
in cases where it is sought to prove power or authority in an agent. If in writing, the
instrument should be produced, or its loss shown; and, if verbal, the language should be
stated to the best of witness' recollection. But when, as here, it is sought to prove a negative,
and that no authority was given, such objection cannot prevail or apply, for it is beyond
reason and impossible for a witness to state the terms of an appointment when none exist;
and, although the word authority is too much in the nature of conclusion to use in a
question to a witness, it is at least proper for him to testify that there was no instruction or
nothing said or written in regard to the matter by the party claimed to be the principal to the
party claimed to be the agent. The depositions were taken under stipulations that waived
objections to the form of the interrogatories.
On the trial objections were made to the answers which were responsive to the questions.
But this testimony ought not to have been admitted on the plaintiff's case in chief for another
reason, and its exclusion worked no injury. If the questions had been entirely unobjectionable
in form, the evidence has no proper place in the case, except in rebuttal, and not until after the
defendant had introduced some proof of agency. Under elementary rules, it was incumbent on
him to prove the allegations of his answer before the plaintiff was required to rebut them, and
it was quite unnecessary for plaintiff to prove that Shape was not empowered to make
disposition of the cooperage until after defendant had introduced some evidence tending
to show that he was.
for plaintiff to prove that Shape was not empowered to make disposition of the cooperage
until after defendant had introduced some evidence tending to show that he was. Branton
testified that, as assignee, he sold the barrels to defendant because Shape had represented
himself as the agent of the company, and he supposed he was authorized, and had said that
the plaintiff had no claim upon them, and no agreement with Ecker by which they could be
recovered. Such assertions by Shape, his representations, and assumption of authority, the
production of cards bearing his name in connection with that of the company, and its
trade-mark and motto, his statement that he would telegraph to the plaintiff, and later to King
that it was all right, and his making out a bill to the assignee for a part of the cooperage, may
have lured and deceived the defendant; but, unless these acts were in some way authorized or
ratified by the plaintiff, they would not bind it or deprive it of its property. Between the
various objections sustained, enough evidence was admitted to show that Shape, who was a
young man, had been sent out the year before by the traveling department of the plaintiff to
solicit orders for beer. Attached to the deposition of Wm. C. Mueller, correspondent for the
Schlitz Brewing Company, is a copy of a letter from plaintiff to Shape in which it was stated
that, in answer to his telegram, they had wired him to employ a good commercial attorney and
have him replevin their cooperage, and stating, The attorney perhaps does not know that the
cooperage is never sold and always remains our property and for this reason anyone who
attaches same has no right. This letter is dated June 30th, and, in answer, defendant alleges
that it was on or about July 2d, and he testifies that he thought it was July 1st or 2nd, that
Shape importuned and requested defendant to buy the beer and barrels. There is no evidence
in the record having the least tendency to show that the plaintiff ever authorized or ratified
any sale or waiver of its right to the cooperage, but, on the contrary, its every act in this
connection, its agreement by letter with Ecker, the regulations printed on the backs of its bills,
and prompt wiring to have an attorney replevin the barrels, indicate that they remained the
property of the plaintiff, and that it never intended to relinquish any right to them.
remained the property of the plaintiff, and that it never intended to relinquish any right to
them.
It would seem that the district court, in effect, assumed that, by sending Shape forth to
solicit orders for beer, it became bound by anything else he might do in connection with its
affairs. As it is not shown the Shape had any general authority to act for the company, or that
he was empowered to waive its right to the cooperage, or that his acts were ratified, his
declarations were merely hearsay, and, however much the defendant may have been lured into
relying upon them, they did not affect the rights of the plaintiff. Shape had been sent by the
plaintiff, not as its general agent, with power to dispose of the cooperage it had reserved by its
rules and by express conditions with Ecker, but to solicit orders for beer subject to the
approval of its officers in Milwaukee, and, in addition, he was specially directed by a
telegram to employ a good commercial attorney, and have him replevin the barrels; and the
plaintiff did nothing which could be construed as holding Shape out as an agent with power
to waive any right to its cooperage. Sending him forth for these limited purposes did not give
him additional power, nor make the company liable further than it had endowed him with
authority. If, by making him a traveling solicitor, the plaintiff became bound by his acts in
attempting to waive the right to its cooperage, on the same principle he could bind the
plaintiff by a sale of its brewery on credit, or a ticket agent or conductor could sell the
property of a railroad company, or a drayman or common carrier could effectually sell
merchandise when only authorized to haul it. If the defendant had wired to the plaintiff before
closing the deal, or required Shape to show a telegram or some written authorization, instead
of trusting in Shape, any trouble might have been avoided. The cards to which we have
referred, and evidence regarding them which was admitted over objection, did not tend to
prove any requisite authority in Shape. The trade-mark of the Jos. Schlitz Brewing Company,
with its girdle encircling the globe, did not have the potency of an official seal. There was no
proof that the plaintiff had printed or issued them, or authorized Shape to use them.
Shape to use them. But if it had, the words they boreA. G. Shape, with Jos. Schlitz
Brewing Co.did not define his powers, or indicate whether he was the president or the
porter of the company, or merely its traveling solicitor, and would not warrant the defendant
or the court in concluding that Shape had been authorized by the plaintiff to dispose of its
cooperage or its breweries.
If, by the assumption or pretense of authority, anyone could effectually sell the property of
another without being empowered by him, no man's holdings would be safe. Branton testified
that he got his power to sell the kegs as assignee from Shape, who was supposed to be the
agent of plaintiff. At different times, when ruling on objections to testimony, the court
recognized and stated the correct principlethat an agent's authority could not be proved by
his own acts and declarationsand still a new trial was refused, when there was nothing else
to show that he was empowered to waive the plaintiff's right to the cooperage or to support
the verdict. In sustaining an objection to a question asked Shape, in his deposition, as to
whether plaintiff had employed him as its agent, and after counsel for plaintiff had stated that
he desired to show by several witnesses that Shape was a salesman, and not an agent, and that
he had exceeded his limited authority, the court said: The principle of law is laid down that
an agency cannot be established by the agent. While this rule applies to the mere acts and
declarations of one claiming to represent another, it does not prevail when he is under oath
and subject to cross-examination, for he may testify regarding his authorization the same as
anyone else. If it had been necessary for the plaintiff to prove that Shape was not empowered
to sell the cooperage, as it sought to do, the testimony of its president that the cooperage is
and always remains the property of the brewery, and that we do not sell our cooperage, and
our traveling salesmen are not authorized to sell it, and of other witnesses to the same effect,
stands in the record uncontradicted. Shape, in his deposition, stated that he was not so
empowered, but his answer was excluded. He also stated that his charging $101.25 for 45
half-barrels was a mistake. The amount of the bill he made up roughly, and apparently
without proper data for presentation to the assignee, was $S69.75, but the bookkeeper of
the keg department of the plaintiff testified that the balance due from Ecker was $3S1.95.
the bill he made up roughly, and apparently without proper data for presentation to the
assignee, was $869.75, but the bookkeeper of the keg department of the plaintiff testified that
the balance due from Ecker was $381.95. His debts amounted to about $14,000. After
payment of expenses the assignee had $1,392.15 remaining, and paid the creditors 10 3/10
cents on the dollar. The plaintiff was paid this pro rata on $869.75, amounting to $89.58,
which was remitted to Milwaukee by Curler & King. Of this latter sum it is apparent that
about $11 was from the item for 45 half-barrels, at $101.25, which had been included, and
that the dividend paid to plaintiff was more than double what it ought to have been, and that
this occurred because Shape had made out the bill for more than twice the amount shown to
be due by the plaintiff's books.
How much defendant would have paid for the beer without the cooperage does not appear.
If he offered to sell the casks for $100, that may have been all he considered them worth to
him at the time he bought from the assignee. If it be considered that, of the amount paid by
the defendant to the assignee, $423, which is alleged in the complaint to be the value of the
kegs, and which defendant admits, while asking for a judgment for that amount and objecting
to one for their return to him, was paid for the barrels, leaving less than $150 for the beer they
contained, then that sum was distributed among all the creditors, and the plaintiff received
less than a fifteenth of the amount in its dividend from the assignee. It does not appear that
the plaintiff or its officers were informed or knew that any part of the money it received came
from its cooperage, or that Shape had consented to a sale, or attempted to waive the plaintiff's
rights to the kegs, and accepting a part of the amount due on its claim against Ecker without
such knowledge did not estop plaintiff from claiming its property. If it had been aware of all
the facts from the beginning, and had waived its right, as contended, it would have been a
poor business transaction to donate more than fourteen-fifteenths of its cooperage toward the
payment of the other creditors, which would be the result if the plaintiff could not recover, for
it never received anything from the defendant directly or knowingly, or from Ecker, for the
casks.
from the defendant directly or knowingly, or from Ecker, for the casks.
The court sustained defendant's objections to the following question in the deposition of
Henry Uihlein, president of the plaintiff company: When did you first learn that Mr. Shape
had collected a cooperage account with your beer account from Mr. Grimmon, and are you
now ready and willing to return him all money so collected for cooperage? Until the
defendant introduced some evidence tending to show that the plaintiff or its properly
authorized agents had sold or waived the company's right to the casks, or knowingly accepted
a part of the proceeds from them, it was not necessary for the plaintiff to show anything to the
contrary, for the burden of proving estoppel was upon the defendant. The same was true
regarding the check for $50.63 tendered by counsel for the plaintiff to the attorney for the
defendant, but the evidence in this connection was ruled out.
A part of the answers and letters in the depositions which we have considered in order to
give a more extended explanation were not admitted or offered in evidence, but this could not
affect the result, for they tend to prove a limitation of Shape's powers, and plaintiff did not
need to introduce them until after defendant had shown some authority in him to dispose of
the cooperage.
On behalf of the defendant it is claimed that the grounds for the exceptions taken by the
plaintiff to the action of the court in overruling objections are not specified as required by the
case of McGurn v. McInnis, 24 Nev. 370, 55 Pac. 304, 56 Pac. 94. The reason for an
objection should be called to the attention of the court once, but need not be repeated. If
objection be made to the introduction of a deed because it is not signed or acknowledged by
the grantor, or to a question upon the ground that it is hearsay, and the court overrules the
objection, and counsel simply states, We except, or, Note our exception, it is sufficient,
for the only fair implication is that he excepts to the action of the court in overruling his
objections on the grounds he has specified, and of which the court has already been made
aware. The decision in McGurn v. McInnis does not require more, but an inference might be
drawn from the syllabus in that case that the grounds of the objection must be repeated
at length in the exception, which would waste time, incumber records, and serve no
useful purpose.
an inference might be drawn from the syllabus in that case that the grounds of the objection
must be repeated at length in the exception, which would waste time, incumber records, and
serve no useful purpose. The specification regarding the insufficiency of the evidence is
definite and complete, and, if it were the only one, it would be necessary to send the case
back to the district court.
As there is no evidence to support the verdict and judgment, it naturally follows that the
instructions which assume that there is such evidence were improperly given. Other
specifications relate to questions similar to those which we have considered, or to rulings
which are not likely to occur again.
The case is remanded for a new trial.
____________
28 Nev. 253, 253 (1905) Jumbo Mining Company of Goldfield v. District Court
[No. 1670.]
THE JUMBO MINING COMPANY OF GOLDFIELD, a Corporation, Petitioner, v. THE
DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF ESMERALDA, and the HON. M. A. MURPHY, Judge of
said Court, Respondents.
1. CertiorariDismissalGrounds. Certiorari to review the action of the district court in granting an
injunction and appointing a receiver will be dismissed where, pending its disposition, the district court
has dissolved the injunction and discharged the receiver, although its action in so doing was based on
erroneous grounds, and it did not consider or determine the questions raised on certiorari.
2. Same. Where, pending the disposition of a certiorari to review an order of the district court issuing an
injunction and appointing a receiver, the district court dissolved the injunction and discharged the
receiver, the fact that it erroneously awarded costs against the petitioner for the certiorari, was not
ground for the retention of the writ, as its action in so doing was subject to appellate review.
Original proceeding. Certiorari by the Jumbo Mining Company of Goldfield, a
corporation, to review the proceedings of the District Court of the First Judicial District, Hon.
M. A. Murphy, Judge, in appointing a receiver and issuing an injunction in a certain action.
an injunction in a certain action. On order to show cause why the proceedings should not be
dismissed. Dismissed.
John Garber, for Petitioner:
I. The bill of complaint in the suit in which the receiver was appointed alleges
substantially the following facts: That the board of directors of the corporation authorized its
general manager to dispose of certain portions of surface of the mining ground of the
company, reserving all mining rights, and that under said authority said manager has sold
certain town lots without accounting for the proceeds, thereby interfering with the proper and
economical mining of that portion of the mining ground. (2) That one of the defendant
directors caused one end line of the Jumbo mining claim to be drawn in, and located the part
so left out in his own name and holds the same adversely to the corporation. (3) That the
defendant directors hold 421,000 shares of the stock of the corporation, and the plaintiff
directors 87,000 shares. (4) That H. L. Taylor is a brother of C. D. Taylor and under his
control and direction, and McClelland has been intimidated by C. D. Taylor and is under his
control, and that C. D. Taylor has held the office of general manager for the purpose of
deriving advantages and to the injury of the corporation, and to that end said C. D. Taylor,
George McClelland, and H. L. Taylor have conspired to oust the plaintiff directors, who have
been so removed by a vote of less than three-fifths of the stock voting at a stockholders'
meeting held for that purpose, whereas by the constitution of the corporation it required a
three-fifths vote to effect such removal. (5) That after such removal their places were filled by
appointing Holt and Robinson, and since that time the ousted directors have been denied all
right of participating in the actions of the board of directors. (6) That the company's mines are
rich and productive, and there is now nearly $100,000 in the treasury.
The foregoing is the substance of all the facts alleged. Indeed, to say this is conceding too
much, for some of the allegations are baldly and clearly mere conclusions and inferences,
and so may well be disregarded; for example, the statement that Taylor held his position
for improper purposes and that some of the directors were under the control of another of
them.
allegations are baldly and clearly mere conclusions and inferences, and so may well be
disregarded; for example, the statement that Taylor held his position for improper purposes
and that some of the directors were under the control of another of them. (Mulcahy v.
Hibernia, 77 Pac. 910.) The complaint contains also the statement of an inference or
conclusion of the pleader that the corporation has two rival boards of directors, which will be
in conflict, and that a receiver is necessary. These are not only mere inferences or
conclusions, but are not supported by, and in fact are inconsistent with, the facts alleged.
From these facts the only inference must be that there was but one de facto board of trustees
in full possession and use of their office, and with full possession of all the property of the
corporation. There is not one averment of fact showing any fraud, conspiracy, or
mismanagement. It is not stated that any of the defendants are solvent, nor is any fact or
circumstance alleged even tending to show any danger of loss or mismanagement, or any
necessity or propriety for the drastic remedy of a receivership. It is scarcely necessary to cite
authority to show that mere epithets or charges of conspiracy cannot supply the place of
averment of fact in a pleading. (Olds v. Chicago Board of Trade, 18 Ill. App. 465; Trimble v.
American Sugar Refining Co., 48 Atl. 914; Winchester v. Howard, 136 Cal. 432; Hardt v.
Heidweyer, 152 U. S. 547-561; Lumley v. Wabash, 71 Fed. 27-28; Ambler v. Choteau, 107 U.
S. 586; Fogg v. Blair, 139 U. S. 118.) The case presented to the respondent court was,
therefore, we respectfully submit, an ex parte application for the appointment of a receiver on
a bill the gravamen of which was an assertion that a minority of its directors were only such
de facto and not de jure.
We further submit that, consequently, to sustain the jurisdiction challenged in this
proceeding before your honors, the respondent must successfully maintain two propositions:
First, that in this state courts of equity have an inherent power to appoint receivers of
corporations in the absence of any statutory grant of such power; and, second, that such
power can be exercised in a suit instituted for the sole purpose of declaring invalid the
election or appointment of a minority of the governing body of the corporationin a suit in
which the only relief prayed for and the only final decree which can be rendered is the
ousting of the de facto claimants and the seating of those contesting their election or
appointment.
minority of the governing body of the corporationin a suit in which the only relief prayed
for and the only final decree which can be rendered is the ousting of the de facto claimants
and the seating of those contesting their election or appointment. We submit that neither upon
principle nor authority can either one of these propositions be even plausibly maintained.
In such great commercial states as New York and California, it is, we think, well settled
that power of courts of equity to appoint receivers of corporations is purely statutory; and the
opinions in these cases fully vindicate, on principle, a rule which in practice for many years
has justified itself in the practical workings of the vast corporations affected by it. In the case
of Atlas Iron Construction Co., 38 N. Y. Supp. 172, it is said: It has been the settled law of
this state, for many years, that chancery has no jurisdiction over corporations, either on
common-law principles, or through its general equitable powers, and that it is only by the
statute, and for particular causes there enumerated, that the court acquires jurisdiction. (In re
Binghampton, 143 N. Y. 263; Howe v. Deuel, 43 Barb. 507; Belmont v. Erie, 52 Barb. 668;
Gardner v. London, 2 Chy. App. 201.)
In California the French Bank case, 53 Cal. 495, is a leading case, and one, we submit,
entitled to peculiar consideration, owing to the similarity of conditions and statutes between
California and Nevada, and the ability of the court and counsel by whom it was argued and
considered and the frequent endorsement it has received when cited in other jurisdictions, and
the thoroughness with which the subject was treated and the cogency of the argument. It will
not be attempted in this presentation, which is necessarily and designedly made as brief as
possible, to repeat the reasoning of these cases. Suffice that in the opinions we cite the whole
subject is fully elaborated. In this behalf, we cite one example out of many showing that it is
recognized, not only in New York and California, but everywhere, that a receiver can only be
appointed as a measure ancillary to the enforcement of some recognized equitable right
(Vita v. Grand Island, 94 N. W. 138), and see the same case on rehearing reported in 97 N.
W., where the subject is again elaborately treated.
rehearing reported in 97 N. W., where the subject is again elaborately treated. Now, then, to
what recognized equitable right can this receivership be held auxiliarywhat final decree
does the bill pray or justify as an adjunct of which it can find support? The only possible
answer is a decree settling a disputed claim to the office of a minority director preferred by an
ousted director against a de facto incumbent in the exercise of the office. As to the prayer that
certain acts of the de facto board be declared null, and certain suits be enjoined, it is enough
to say that the receivership is in no possible way ancillary or called for.
With or without a receiver, such a final decree would be equally operative. Moreover, no
such decree could be rendered on the allegation of the bill, for it confesses the existence of a
duly qualified majority, fully competent to act. To such a decree the receivership is in no way
ancillary, but is self-evidently utterly futile and inefficacious as an aid to such a decree. In
view of such a decree, it is a misnomer to speak of the receivership as ancillary, or as a
means. It can be nothing but an end, and must stand independently, and can only be sustained
by asserting that a bill filed simply for a receivership will lie. But no such decree can be
rendered. The court had no jurisdiction to entertain a suit for any such purpose. If the plaintiff
directors were improperly ousted or their successors improperly elected, a court of equity is
not the forum in which to redress the wrong. It has most emphatically no jurisdiction of any
such controversy. (Cook on Stock and Stockholders and Corporation Laws, 2d ed., sec. 746,
p. 977; Bayless v. Orne, 1 Freeman Chy. (Miss.) 176; Supreme Lodge v. Simmering, 88 Md.
276; 40 Atl. 723; Bedford Springs v. McMeen, 161 Pa. St. 639; Mosely v. Alston, 1 Phil. Ch.
790; Neall v. Hill, 16 Cal. 145; Perry v. Tuscaloosa, 93 Ala. 364; New England Mutual v.
Phillips, 141 Mass. 535; 76 Am. Dec. 515.)
Key Pittman and Vermilyea & Bartlett, for Respondents:
I. Review upon certiorari extends only to the question whether the inferior tribunal has
kept within its jurisdiction, and mere errors not involving any excess of authority will not be
inquired into.
not be inquired into. (In re Wixom, 12 Nev. 222; 2 Nev. 313; 5 Nev. 317; 6 Nev. 100; 7
Nev. 372; 8 Nev. 359; 9 Nev. 382; 11 Nev. 213; State v. District Court, 23 Nev. 243.)
II. Distinction between error of judgment and usurpation of power. (Wilson v. Morse, 25
Nev. 376.)
III. The ultimate object of the action is to establish a legal and properly constituted board of
managers for the defendant corporation. The equity power of the court is only invoked to
preserve the property pending the determination of such question. It is in the nature of a
proceeding in mandamus, and the facts alleged in the complaint would sustain such writ. But
one form of civil action. (Comp. Laws, 3096.)
IV. Inherent power of courts of equity to appoint receivers. (Beech on Receivers, 454-456;
5 Thomp. sec. 6854.)
V. Courts of equity have power to appoint a receiver for a corporation, either because it
has no properly constituted governing body, or because there are such dissensions in the
governing body as to make it impossible for the corporation to carry on its business with
advantage to the stockholders. (Beech on Receivers, p. 100; Waterman on the Law of
Corporations, vol. 2, par. 356; 5 Thomp. on Corp. sec. 6878; Featherstone v. Cooke and
Trade Aux. Co. v. Vickers, 16 L. R. Eq. 298; Lawrence v. The Greenwich Fire Insurance Co.,
(N. Y.) 1 Paige's Chan. Rep. 587; Einstein v. Rosenfeld, 38 N. J. Eq. 309; Edison v. Edison
United Phonograph Co., 29 Atl. 195; State v. Independent Dist. Tel. Co., 39 Pac. 316.)
VI. Officers de facto as distinguished from usurpers. In order to make a person officer de
facto, he should in some way have been put into the office and have secured such a holding
thereof as to be considered in peaceable possession and actually exercising the functions of an
officer; and intrusion by force is not sufficient. (State v. Curtis, 9 Nev. 326.)
VII. Our courts have jurisdiction over foreign corporations. (3 Nev. 181; State v. Cronan, 23
Nev. 437.)
VIII. A receiver may be appointed without notice. (Maynard v. Railey, 2 Nev. 313.)
Campbell, Metson, Jackson & Brown, for Petitioner:
Campbell, Metson, Jackson & Brown, for Petitioner:
I. It will be readily seen by an inspection of the record in this case that the petitioner did
not obtain by the decision of the case in the district court the relief which he prayed for by the
petitions in the cases now pending before this court. The record shows that in an action
between stockholders and petitioner, the Jumbo Mining Company, the court did appoint a
receiver, and that the receiver did take charge of the property of the corporation. While it is
true upon a final hearing of the cause that the court did discharge the receiver at the cost of
this petitioner, this return shows that the receiver now claims $10,000 as his claim for
compensation. It is the claim of petitioner in his petitions that the court had no jurisdiction,
power, or authority to appoint a receiver in an action between stockholders, even in a
domestic corporation. This is denied absolutely by the decision and judgment of the district
court. It is further claimed that the court had no jurisdiction to interfere in the internal affairs
of a foreign corporation by appointing its officers to take charge of the affairs of said foreign
corporation, deprive the stockholders of all the rights and powers guaranteed to them by the
sovereign power of a foreign state or territory, and thus deprive them of the right to manage
and control their own property by and through agents of their own choosing, which right is
property, and to deprive them of the same without authority of law is to take away from them
their property without due process of law, in violation of the constitution of the United States.
II. The question argued and submitted to this court was the plain, unvarnished question:
Are the orders made and entered by the court of the first judicial district void by the reason of
the fact that they were made in excess of or without the jurisdiction of the court making
them? We respectfully submit that nothing decided by the court touches that point. It is true
that upon the final hearing and after said receiver had possession and charge of the property
of the petitioner for a period of four months or thereabouts, the court did, upon rendering
final judgment, discharge the receiver, but it was not upon the grounds that he had no
jurisdiction to appoint him, but for the reason that the alleged facts upon which he was
appointed were not true, and were unfounded in fact.
but it was not upon the grounds that he had no jurisdiction to appoint him, but for the reason
that the alleged facts upon which he was appointed were not true, and were unfounded in fact.
But that order discharging him was coupled with the order that petitioner, the Jumbo Mining
Company, pay all the costs of the proceeding, which costs, including the receiver's claim,
greatly exceeded $10,000. The order to show cause, issued by this court upon the 14th day of
March, 1905, recites as follows: Information having come to the justices of this court that
the trial court in the above-entitled cause has already granted to the petitioner the relief
prayed for in its petition, etc. The relief prayed for in the petition was that the order of the
trial court be declared null and void as having been made without and in excess of
jurisdiction. The relief alleged to have been granted was the discharge of the receiver upon
the grounds that the allegations of the pleadings upon which he was appointed, and which
was the foundation of his appointment, were untrue. But said order being made upon
condition that the petitioner pay all the cost, not only of the proceedings, but of the receiver
also, the effect of said judgment is I adjudge that you pay a certain sum of money as costs to
the receiver, but I also discharge himnot set aside and dissolve the order appointing him.
It may not be amiss to call the court's attention again to some of the salient facts in this
cause: (1) It will always be kept in view that this petition is made by the Jumbo Mining
Company; (2) In the original suit in which the receiver was appointed it was alleged by
complainants that the Jumbo Mining Company was being and had been despoiled of its
property by the fraudulent acts of one of its directors, C. D. Taylor; (3) That three of the five
directors of the Jumbo Mining Company had conspired together to oust the complainants
from the directory of said company, and had done so; that a receiver was necessary to protect
the property of the Jumbo Mining Company from the fraudulent acts of certain of its
directors. It was not alleged in said bill of complaint that the corporation by and through its
officers or some of them was doing or performing any corporate act whereby any of the
complainants or the corporation or any of its property was being or had been injured.
any of the complainants or the corporation or any of its property was being or had been
injured. The entire basis of the suit was that three of the officers of the corporation, as
individuals, were committing and permitting fraudulent and injurious acts upon the
complainants, and upon the corporation. The corporation itself was alleged upon the one side,
and admitted upon the other, to be an innocent entity, having no part or lot in any of the
transactions whatever, but being thus innocent it needed and required the protection of the
court in the person of one of its officers (a receiver) to protect it from the wrongful invasion
of its property rights by its own officers. Thus the matter was presented upon the pleadings in
the court below. The cause was tried upon the merits as presented; the receiver was
discharged. But the coststhat was the question. The court did not tax them against the
complainants for wrongfully bringing the suit or failing to substantiate it after being brought.
III. We wish to call the attention of this court particularly to the fact that in appointing this
receiver, the District Court of the First Judicial District of Nevada violated the constitution of
the United States, and deprived the corporation (petitioner) and its stockholders of their
property, without either authority or due process of law.
Per Curiam:
In this proceeding this court, on the 23d day of November, 1904, issued a writ of certiorari
directed to the above-named respondents, requiring that there be certified to this court for
review the proceedings had before the said Hon. M. A. Murphy, as Judge of the said First
Judicial District Court of the State of Nevada in and for the County of Esmeralda, in a certain
action pending in said court wherein John McKane and George A. Kernick were plaintiffs
and C. D. Taylor, George E. McClelland, H. L. Taylor, C. P. Holt, Thos. Robinson, and the
petitioner herein, the Jumbo Mining Company of Goldfield, were defendants, in which action
petitioner herein alleged that certain orders made therein appointing a receiver for petitioner
herein and issuing an injunction restraining certain of said defendants from performing
certain acts relative to the management of the affairs of said defendant corporation,
petitioner herein, were and are beyond the jurisdiction of said court, and therefore void.
forming certain acts relative to the management of the affairs of said defendant corporation,
petitioner herein, were and are beyond the jurisdiction of said court, and therefore void. The
writ was duly returned, and thereafter the legal questions involved were argued, and
submitted to this court for its decision. Thereafter, information having come to the justices of
this court that the trial court in the aforesaid action had already granted to the petitioner the
relief prayed for in its petition, this court made an order directing the parties to this
proceeding to appear at a time therein named to show cause why this proceeding should not
be dismissed. Counsel for petitioner answered by filing a copy of the decision of Judge
Murphy in said action, and also a copy of the return or final account of the said receiver, filed
in pursuance of the said decision of Judge Murphy, together with a brief in opposition to a
dismissal of this proceeding.
From the decision of Judge Murphy, filed by petitioner herein, we quote the following: It
is further ordered that the injunction heretofore issued against C. D. Taylor, H. L. Taylor, and
George E. McClelland and the Jumbo Mining Company be dissolved. It is further ordered,
adjudged, and decreed that within twenty days after the filing of this opinion John S. Cook,
the receiver heretofore appointed by this court, pay all claims contracted by him as such
receiver for and on behalf of the Jumbo Mining Company, and pay the same out of any
money he may have in his possession belonging to the said Jumbo Mining Company; * * *
that he shall also make out and file with the clerk of this court a true and correct account of
his receipts and disbursements while acting as such receiver for said company, together with a
claim for his own services to be presented and allowed by this court; that he shall also pay out
of the funds of the Jumbo Mining Company the costs in this court, and when he has complied
with these orders, and his said account has been allowed and approved by this court, he will
surrender to the Jumbo Mining Company all property belonging to said company of
whatsoever kind and character the same may consist, taking its receipt therefor, and file the
same in this court, and when so filed the said receiver shall be relieved from any further
liability as such receiver, and his bondsmen be released from any further liability to be
thereafter incurred."
any further liability as such receiver, and his bondsmen be released from any further liability
to be thereafter incurred.
From the brief of petitioner filed in response to the order of this court we quote the
following portions as showing the reasons contended for by counsel for petitioner why this
court, regardless of the decision of Judge Murphy, should not dismiss this proceeding: The
question argued and submitted to this court was: Are the orders made and entered by the court
of the first judicial district void by reason of the fact that they were made in excess of or
without the jurisdiction of the court making them? We respectfully submit that nothing
decided by the court touches that point. It is true that upon the final hearing, and after said
receiver had possession and charge of the property of petitioner for a period of four months or
thereabouts, the court did, upon rendering final judgment, discharge the receiver; but it was
not upon the ground that he had no jurisdiction to appoint him, but for the reason that the
alleged facts upon which he was appointed were not true, and were unfounded in fact. But
that order discharging him was coupled with the order that petitioner, the Jumbo Mining
Company, pay all the costs of the proceeding, which costs, including the receiver's claim,
greatly exceed $10,000. * * * The relief prayed for in the petition was that the order of the
trial court be declared null and void, as having been made without and in excess of
jurisdiction. The relief alleged to have been granted was the discharge of the receiver upon
the grounds that the allegations of the pleading upon which he was appointed, and which was
the foundation of his appointment, were untrue. But said order being on condition that the
petitioner pay all the costs, not only of the proceedings but of the receiver also, the effect of
such judgment is, I adjudge that you pay a certain sum of money as costs to the receiver, but
I also discharge him,' not set aside and dissolve the order appointing him.
From the argument of counsel for petitioner it will be manifest that two reasons are urged
why this court should not dismiss this proceeding, but should pass upon the merits of the
questions originally presented. The first one is, in effect, that the lower court did not
dissolve the injunction and discharge the receiver upon the ground of want of jurisdiction
to make the orders, but because the alleged facts upon which the original orders were
made were not sustained by the evidence; and, second, because the court, in discharging
the said receiver, has imposed the burden of his fees upon petitioner herein, an innocent
party.
effect, that the lower court did not dissolve the injunction and discharge the receiver upon
the ground of want of jurisdiction to make the orders, but because the alleged facts upon
which the original orders were made were not sustained by the evidence; and, second,
because the court, in discharging the said receiver, has imposed the burden of his fees upon
petitioner herein, an innocent party. We think neither of these grounds affords a sufficient
reason why this court should, in this extraordinary proceeding, now pass upon the questions
argued upon the submission of his cause upon its merits. The relief prayed for to the extent of
dissolving the injunction and ordering the discharge of the receiver has been granted.
Whether such relief was granted upon correct or erroneous grounds, so far as this proceeding
is concerned, the effect is the same. (Conley v. Chedic, 6 Nev. 222.) Conceding, for the
purposes of the argument, that the appointment of the receiver was in excess of the
jurisdiction of the court, and therefore void, ought this court to determine that fact in this
proceeding in order to pass upon the question of the receiver's fees, claimed to be taxed as
costs against petitioner? We think not. While it does not clearly appear from the decision of
Judge Murphy that the fees of the receiver have been or are to be taxed against the petitioner,
nevertheless, if they are, and the same is erroneous, the petitioner has a plain, speedy, and
adequate remedy by appeal, for this court will modify or set aside void as well as erroneous
judgments or orders upon the error being properly presented to this court. (Hastings v.
Burning Moscow Co., 2 Nev. 97.)
For the reasons given, it is ordered and adjudged that the proceedings in this court be
dismissed.
____________
28 Nev. 265, 265 (1905) Andrews v. Cook
[No. 1665.]
S. M. ANDREWS, Respondent, v. W. M. COOK, Petitioner.
CertiorariAppeal from JusticeDismissalReview. Where a district court, acting under Const. art. VI, sec.
6, giving such a court final appellate jurisdiction in cases arising in justices' courts, dismissed an appeal
from a justice's court, the action having been in the exercise of jurisdiction, it could not be reviewed on
certiorari.
Certiorari by W. M. Cook to review the action of the First Judicial District Court for
Ormsby County in dismissing an appeal to such court from a judgment of a justice in an
action against petitioner by S. M. Andrews. Writ dismissed.
I. Two points only are involved in the petitionthe construction of rule 37 of the district
court, and whether certiorari is the proper remedy:
Rule 37. When an appeal from the justice's court to this court has been perfected, and the
papers are not filed in this court within fifteen days from the day of filing the undertaking on
appeal has been taken and perfected, but the papers have not been ordered up, or the proper
costs not paid, or upon showing that any other necessary steps have not been taken, shall
dismiss the appeal at the cost of the appellant.
Is certiorari the proper remedy? An appeal would not lie because the amount involved is
not sufficient. Mandamus would not lie because Judge Murphy acted. Quo warranto would
not lie because he had authority to act. Prohibition or injunction would not lie because the
judge had acted. Certiorari reaches it because the writ shall be granted in all cases when an
inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction
of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the court,
any plain, speedy, and adequate remedy. (Comp. Laws, 3531.)
II. The district court can neither give itself jurisdiction nor divest itself of jurisdiction.
nor divest itself of jurisdiction. (Levy v. Superior Court of Yolo County, 66 Cal. 292; Hall
v. Superior Court of El Dorado County, 68 Cal. 24; Carlson v. Superior Court of Alameda
County, 70 Cal. 628; Peacock v. Leonard, 8 Nev. 84, 157; Wiggins v. Henderson, 22 Nev.
103.)
III. In the case at bar petitioner asks to have a question of law reviewed only, and claims it is
apparent on the record. As before observed, the common-law office of the writ of certiorari
has been much extended in many of the states by statute and judicial enlargement, and it has
been said that in any case where the rights of an individual have been invaded by the acts of
persons clothed with authority and who exercise that authority illegally, the person aggrieved
must seek redress by this proceeding. So, under the enlargement and modification of the
common-law doctrine, the writ is held to be the appropriate process, not only to review
jurisdictional errors, but also to review and correct illegalities and irregularities in
proceedings. (Am. & Eng. Ency. of Pl. and Pr., vol. 4, p. 100, and authorities cited.) And
the erroneous dismissal of an appeal may be reviewed and corrected by certiorari. (State v.
Tinsman, 38 N. J. L. 210; Hall v. Superior Court, 71 Cal. 550.)
E. E. Roberts, for Respondent:
I. Respondent submits that the supreme court on certiorari cannot review the judgment of
the district court unless said court exceeds its jurisdiction. The only question which can be
inquired into on certiorari is whether the inferior court or tribunal had jurisdiction to do the
act sought to be reviewed. (State v. Washoe Co., 5 Nev. 317; Maynard v. Railey, 2 Nev. 313;
Fall v. Com. Humboldt Co., 6 Nev. 100; Phillips v. Welch, 12 Nev. 158; In re O'Rourke, 13
Nev. 253; Hetzel v. Con. Eureka Co., 8 Nev. 359; Esmeralda Co. v. District Court, 18 Nev.
438; In re Wixom, 12 Nev. 219; Maxwell v. Rives, 11 Nev. 213; Fletcher v. Osburn, 24 Nev.
187) The question then is, did the district court exceed its jurisdiction in dismissing the case?
Respondent's contention is that the district court acted clearly within its jurisdiction in
dismissing the appeal.
II. The case at bar was dismissed by the district court upon the ground that the costs of the
justice of the peace, W. H. Stone, had not been paid, said justice having filed a certificate
with the clerk of the district court to that effect. The statutes of the state and the rules of the
district court make the payment of the costs of the justice of the peace a necessary and vitally
essential step in the perfection of an appeal. Every court of record has an inherent power
irrespective of statute to make rules for the transaction of its business. (Am. & Eng. Ency. of
Law, vol. 8, p. 29.)
III. A strong case in point is that of Phillips v. Welch, 12 Nev. 170, wherein the court says:
The court, after acquiring jurisdiction for that purpose, had the undoubted right to decide the
question upon the law and the evidence. It may have erred. Whether it did or did not, it is not
our province, in this proceeding, to inquire. We are prohibited by the statute from
investigating this question. Even admitting that the court erred in the conclusions it reached,
yet all the authorities above cited hold that error in judgment, in respect to a question which
the court is authorized to investigate and determine, does not, by any means, constitute an
excess of jurisdiction. If it did, then every error committed by an inferior court or tribunal
would be an excess of jurisdiction, and the writ of certiorari would be converted into a writ
of error instead of remaining where the statute has placed ita writ of review; and every case
brought before us under the writ would have to be heard and determined in the same manner
as if the right of appeal existed.
IV. Who was then authorized to investigate and determine whether or not the appeal in the
case at bar should have been dismissed? The district court, we submit, was in duty bound to
investigate and determine whether or not the appeal was properly perfected and whether or
not it should be dismissed. The court erred not in its judgment in dismissing the appeal, but
acted in strict accordance with the rules of court and the statutes of this state. Even admitting,
for the sake of argument, that the court erred in the conclusions it reached, yet that, according
to the decisions of the supreme court, does not constitute excess of jurisdiction. If not, how
then can petitioner on certiorari invoke the aid of this court to disturb the judgment of the
district court?
not, how then can petitioner on certiorari invoke the aid of this court to disturb the judgment
of the district court? In the same case (Phillips v. Welch, 12 Nev. 171) the court says: We
cannot in this proceeding furnish a panacea for all the ills that flesh is heir to,' nor can we
correct any errors of law or fact not jurisdictional in their character.
V. Again, the supreme court of this state can only issue the writ of certiorari in the
exercise of its appellate jurisdiction, and only then when the inferior court or tribunal has
exceeded its jurisdiction. The district court has final appellate jurisdiction in cases arising in
justices' courts.
VI. The case at bar began in the justice's court. Can it be logical that in the exercise of its
final appellate jurisdiction, the district court's order in dismissing the appeal taken was an
excess of jurisdiction and falls within the supreme court's appellate jurisdiction to review?
We contend not.
VII. Respondent respectfully submits that the district court had jurisdiction to decide the
question sought to be reviewed, and that the supreme court under our statute is not authorized
to review the same.
Petitioner appealed to the first judicial district court in and for Ormsby County from a
judgment rendered against him and in favor of the plaintiff, Andrews, in the justice court of
Ormsby County. The papers upon appeal were duly filed by the justice with the clerk of the
district court. Thereafter, upon motion of counsel for the respondent, and upon a showing that
the costs of the justice had not been paid, the district court made an order dismissing the
appeal, basing its order on an erroneous construction of rule 37 of the district courts, which
rule reads as follows: When an appeal from the justice court to this court has been perfected,
and the papers are not filed in this court within fifteen days from the day of filing the
undertaking on appeal, this court, on the production of a certificate from the justice to the
effect that an appeal has been taken and perfected, but the papers have not been ordered up, or
the proper costs not paid, or upon showing that any other necessary steps have not been
taken, shall dismiss the appeal at the cost of the appellant."
not been taken, shall dismiss the appeal at the cost of the appellant.
Conceding that the district court erred in its ruling, was such error in excess of jurisdiction,
or within the power of this court to correct? Counsel for petitioner has cited four decisions
from the Supreme Court of California sustaining his contention that the supreme court has
such power, and also, to the same effect, the case of State v. Tinsman, 38 N. J. Law, 210. The
latter case need not be considered, for the reason that the State of New Jersey has no
constitutional provision like that of this state giving to district courts final appellate
jurisdiction in cases arising in justices' courts. (Const. Nev. art. VI, sec. 6.) The California
decisions cited have all been expressly overruled in the case of Buckley v. Superior Court, 96
Cal. 119, 31 Pac. 8, in an able opinion by Garoutte, J., to which Patterson, J., filed a strong
dissenting opinion, which was concurred in by Beatty, C. J. We think, however, that the
weight of reason and authority is in support of the prevailing opinion in the case last cited,
and is in consonance with an early decision of this court upon the precise question now
presented. In the case of State ex rel. Treadway v. Wright, 4 Nev. 119, which was an original
proceeding in mandamus to compel the respondent, as judge of the first judicial district, to
proceed with the trial of a cause appealed to his court from a justice's court, and which he had
dismissed for what he deemed to be an irregularity in the appeal, in passing upon the
question, the court, by Lewis, J., said: But how is this court to determine whether the court
below rightly dismissed the appeal or not? We have no means of ascertaining that fact, except
by reviewing all the proceedings upon the motion to dismiss, and examining the evidence
produced to sustain it. To do so, however, would be to review the judicial action of the lower
court, precisely as if an appeal had been taken from the judgment of dismissal, which cannot
be done in a proceeding of this character. The case could not be brought to this court by
appeal, because the sum involved is not sufficient to give it jurisdiction; but upon the
application for this writ we are asked to review an order or judgment of the court below,
adjudge it to be erroneous, set it aside, and direct the court to proceed with the trial.
adjudge it to be erroneous, set it aside, and direct the court to proceed with the trial. To do so
would simply convert the writ of mandamus into a writ of error. The court below having
made an order disposing of the cause, no matter how erroneous it may have been, it cannot be
reviewed in this court.
The case of State ex rel. Treadway v. Wright, supra, has been cited as authority by courts
and text writers, as in the cases of People v. Garnett, 130 Ill. 343, 23 N. E. 331, and Ewing v.
Cohen, 63 Tex. 485, and in High's Ex. Leg. Rem. 173, 191, and the law, therein decided,
followed. In the concurring opinion of Hawley, J., in the case of Floral Springs W. Co. v.
Rives, 14 Nev. 435, after giving it as his opinion that the case of State ex rel. Treadway v.
Wright, was correctly decided, that distinguished jurist said: In every case where an appeal
has been taken from the justice's court it is the duty of the district judge, upon proper request,
to make such disposition of the case as, in his judgment, the law and facts may warrant. If he
proceeds and disposes of the case, the writ of mandamus cannot be used to review his action;
but, if he refuses, the writ will be issued to compel him to act.
While this proceeding is in certiorari, and several of the decisions herein referred to were
rendered in proceedings in mandamus, the reasoning set forth for denying the issuance of the
writ applies with equal force to both procedures. In fact, the majority of courts that have
granted relief against erroneous dismissals of appeals from inferior courts have held that
mandamus was the proper remedy instead of certiorari. (See 13 Enc. of Pl. & Prac. 537.)
Hence an examination of the question presented has occasioned a review of authorities under
both procedures. The reason for denying power in the supreme court to correct, by original
proceedings, errors committed by the district courts in erroneously dismissing appeals from
justices' courts, is concisely stated in the following extract from the opinion of the court in the
case of Buckley v. Superior Court, supra: The vital question was, did the superior court
exceed its jurisdiction in dismissing the appeal? not, was the appeal erroneously dismissed?
When an appeal is regularly taken, the court not only has jurisdiction to try the cause upon
its merits, but it has entire and complete jurisdiction of the cause for any and all
purposes.
only has jurisdiction to try the cause upon its merits, but it has entire and complete
jurisdiction of the cause for any and all purposes. It has jurisdiction to hear a motion to
dismiss the appeal as fully as it has jurisdiction to hear and determine the cause upon its
merits; and to erroneously dismiss the appeal is no more jurisdictional than to erroneously
decide the merits of the cause. It follows that, if the court erred in dismissing the appeal, it
was done in the exercise of jurisdiction, and not in assuming jurisdiction which did not exist.
It was a mere error in the exercise of its poweran error of law which will not be reviewed
by an original proceeding. (Buckley v. Superior Court, 96 Cal. 121, 31 Pac. 8; Crooks v.
District Court, 21 Utah, 98, 59 Pac. 529; Nev. Cent. R. R. Co. v. District Court, 21 Nev. 411,
32 Pac. 673.)
For the reasons given, the writ is dismissed.
____________
28 Nev. 273, 273 (1905)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JULY TERM, 1905
____________
[No. 1667.]
JOHN DEVENCENZI, Respondent, v. PIETRO CASSINELLI,
Petitioner.
1. AppealReviewAssignments of Error. Only such errors as are embraced in the assignments of error will
be reviewed on appeal.
2. SameHarmless ErrorEvidence. Where, in an action on an account stated, a portion of an account
contained in defendant's book had been offered on defendant's direct examination, the admission of
evidence on cross-examination with reference to the accounts contained in the book was not prejudicial
to defendant, as authorizing the jury to infer therefrom that a certain $500 covered by a receipt in
controversy had in fact been paid, and yet allow plaintiff the full amount sued for, because of a showing
of other indebtedness by such evidence; it appearing that the jury were duly instructed.
3. TrialReception of Evidence. Where, in an action on an account stated, plaintiff's counsel at no time
claimed that certain evidence objected to was offered for impeachment purposes, and the court, in
finally ruling on the evidence, denied a motion to strike on the ground that the testimony of the witness
concerned his qualifications as a bookkeeper, the admission of such evidence was not error, though
inadmissible for impeachment purposes.
Petition for rehearing. Denied. [Former opinion herein rendered reported in this volume on
page 222.]
I. The court has admitted the premises and reached a wrong conclusion.
wrong conclusion. The court admits, as matter of law, that when the evidence is of equal
weight the receipt shall be given it prima facie effect. The receipt was written by plaintiff
himself on the book of defendant on June 6, 1901, for the sum of $500 for labor. He was
discharged early in January, 1902, knowing that receipt was there, and he never demanded it
back and never pleaded it, and never brought his action to trial until about two years later.
Now, a receipt must be explained to overcome its prima facie value, because it is evidence of
the highest character, though not conclusive. The explanation must explain; it must be
reasonable; it must preponderate not with reference to other matters pleaded in the complaint
but with exclusive reference to the receipt and the giving of the receipt. The purpose for
which it was given must be stated, and it must be reasonable, and not foolish; what influence,
coercive or otherwise, must be stated and should be alleged; what was the object should be
made clear.
II. The court says: It must be admitted that the answer of the plaintiff is far from lucid as
an explanation of the accommodation' to be extended to the defendant. Is it not ludicrous,
absurd, and contrary to its object? Defendant's attorney was fully justified in dropping the
subject at that point, and it devolved upon plaintiff's attorney to clear that matter up, and give
a better explanation if possible, and, if impossible, it was wise to drop the subject. He
dropped the subject. The court proceeds: However, from all the testimony of the plaintiff, if
believed by the jury, the jury could draw the conclusion that the receipt was given without
consideration, and this the jury doubtless did. How could the jury draw any conclusion that
defendant had not paid the $500 from the testimony of the plaintiff on that point? As between
the oral testimony of the plaintiff and the defendant the jury could say arbitrarily or otherwise
that the Scanavino note had been included in the settlement, and that plaintiff had never been
paid for the horses, and that plaintiff drew only $15 from the day of settlement to the day of
discharge (leaving out the $500 item), and that there had been a settlement. But each one of
these items were separate and distinct matters, supported only by the affirmative of
plaintiff and denied by defendant, except with reference to the Scanavino note, and with
reference to that payment defendant testified that it was not paid, and plaintiff not
charged with it, and plaintiff testifies that it was included in the settlement.
and distinct matters, supported only by the affirmative of plaintiff and denied by defendant,
except with reference to the Scanavino note, and with reference to that payment defendant
testified that it was not paid, and plaintiff not charged with it, and plaintiff testifies that it was
included in the settlement. There is nothing unreasonable in the statement of the plaintiff that
they did have a settlement on May 15, 1901, and that in such settlement defendant agreed to
pay the Scanavino note, and the same was deducted. In such cases the rule cited by the court
in the case of Strand v. Chicago R. Co., 67 Mich. 380, would apply, also the authorities cited
in support thereof. But all of those cases rest upon the preponderance of the evidence on the
particular matters testified to, and not upon the question of an independent item in a cause of
action wherein the evidence is eventhe oral evidenceand there is a receipt freely given
and unexplained in a way which proves its own falsity.
III. The court erred in refusing to strike out all the testimony of Pietro Cassinelli, brought
out on cross-examination at pages 63 and 64 of the statement on motion for new trial, with
reference to transactions that occurred prior to April 23, 1896, being prior to any of the
accounts sued upon. The purpose of such examination was to impeach the witness upon
immaterial matters, and it was not in cross-examination. The motion was denied, defendant
duly excepting. The court has denied that certain evidence was introduced to impeach the
witness, in the face of the fact that the lower court stated that it was introduced for that
purpose, and admitted for that purpose, and acted upon by the jury. The foregoing is assigned
as one of the reasons why this court should grant a rehearing, and in support of the error of
this court in particular, I cite the court to the testimony contained in the transcript on appeal,
beginning on page 57, and running down to and including page 65, line 15, and made a part
thereof. Said pages clearly show that plaintiff was permitted to show that defendant was
indebted to plaintiff $1,320 more than claimed in the complaint, and for labor performed
prior to the settlement. Said pages further show that the testimony was allowed for the
purpose of impeaching the witness.
the purpose of impeaching the witness. It is confidently submitted that the proofs should have
been confined to said allegations, to wit: That on April 15, 1901, a settlement was reached
between the parties and it was ascertained that at that time there was due from defendant to
plaintiff the sum of $584, and that it was positive error to show that plaintiff worked for
defendant from July, 1893, at $40 a month, and that plaintiff was paid by defendant during
that time only $281.27. If this court believes otherwise, then put it down and record it, so that
we will all know it.
IV. The court argues that the jury believed the plaintiff and discredited the defendant with
reference to the other matters because they gave the verdict for the whole amount. No one
knows why they gave a verdict for the whole amount, but it is fair to presume that it was
because plaintiff was permitted to show that defendant really owed $1,800 anyhow. However,
take each separate item contended for by defendant, and his testimony is the most reasonable.
He introduced the Scanavino note in evidence as having paid it, and charged plaintiff only
$100 for it. The note and the interest amounted to over $200. But he had bought it for only
$100, and that is all he charged. Plaintiff had won a lottery prize and received $1,250 on a
25-cent investment and had failed to pay his debt to Scanavino, and his excuse was that
Scanavino had removed to Reno. Those two facts show clearly common honesty and
common dishonesty, and that is all there is about it. Defendant testified that he had paid that
$100 and was entitled to credit for it, and plaintiff testified that it had been included in the
settlement. How did they know at the time of the settlement what defendant would have to
pay for the note? However, the jury believed the plaintiff. Take every other item, and it will
be found that one says yes and the other says no. Now, then, bring them both down to yes and
no as to each separate transaction until we reach the receipt for the $500. Is not then the
evidence in equipoise? While the evidence is very much in favor of defendant, it is submitted
that the court cannot find it any more favorable to plaintiff than in equipoise on June 6, 1901,
the date of the receipt. When did they destroy the rule that when the evidence is evenly
balanced the receipt shall be given its prima facie effect?
rule that when the evidence is evenly balanced the receipt shall be given its prima facie
effect?
V. The cases cited by appellant in his brief are clear and to the point. A written receipt
may be explained by parol, yet it is prima facie evidence of the most satisfactory character of
the facts recited therein, and to impair its force the proofs must be made clear. (165 Ill. 161;
13 La. Ann. 581; 13 Iowa, 344.) To impair the force of a receipt the proofs must be clear.
Take all the proofs, even with reference to all other matters involved in the case, and the court
itself admits that there is nothing clear about it, but hinges its opinion solely upon the fact that
the jury gave a verdict for the full amount. That of itself is not proof. It is only proof that the
jury rendered the verdict. That is not the proof called for by the rule. The proof called for is
the evidence. This court must go to the evidence for the proof. It cannot go to the verdict for
the proof. It is respectfully submitted that a new trial should be granted on the grounds and
for the reasons stated.
Counsel for appellant have filed a lengthy petition for rehearing in this cause (see opinion,
page 222 of this volume) setting forth three grounds why, in the opinion of counsel, a
rehearing should be granted, to wit: (1) The court has admitted the premises, and reached a
wrong conclusion. (2) The court has overlooked the strongest point urged by appellant. (3)
The court denied that certain evidence was introduced to impeach the witness, in the face of
the fact that the lower court stated that it was introduced for that purpose, and admitted for
that purpose, and acted upon by the jury. The labor evidently expended by counsel in the
preparation of the petition, the manifest sincerity of belief in the correctness of the position
taken, and the zeal with which it is presented, warrant a statement of the reasons why this
court deems that the petition should be denied.
1. The first point urged is in reference to the evidence concerning the receipt for $500. No
points are raised in the petition, however, that were not very carefully considered before
arriving at a decision with reference to this receipt.
petition, however, that were not very carefully considered before arriving at a decision with
reference to this receipt. Much deliberation was given to this question and a further
consideration of the point does not shake our belief in the correctness of the conclusion
heretofore reached.
2. It was urged in the briefs of counsel for appellant, and in the oral argument of the case,
and again in the petition, that the trial court erred in admitting certain evidence upon
cross-examination of the defendant, which is claimed to be in relation to facts not within the
pleadings, and from which the jury could draw the conclusion that the appellant owed the
respondent a large amount of money beside that sued for in the action, and hence that the
admission of such testimony was prejudicial to the appellant, in that the jury might be
satisfied that the $500 covered by the receipt had in fact been paid to respondent, and yet
allow the respondent the full amount sued for, because of the showing of this other
indebtedness. It is now contended that this, the strongest point urged by appellant, was
overlooked by the court in its opinion. The point was not overlooked by the court, but was not
touched upon in the opinion for the reason that, in the judgment of the court, there was no
assignment of error that warranted its consideration. In the opinion heretofore rendered by
this court, every assignment of error contained in the statement on appeal was passed upon.
This court has repeatedly held that it will consider only such alleged errors as are embraced in
the assignments of error. The evidence complained of is the same as that contended to have
been erroneously admitted for the purpose of impeaching the witness, and the only objection
made to it that has been brought before this court for consideration under the assignments of
error was in reference to this alleged attempt to impeach the witness. Even if the admission of
the testimony complained of was erroneous, we hardly see how the jury could have been
misled by it, under proper instructions from the court. The instructions given are not made a
part of the transcript on appeal, but it contains a statement that the jury were duly instructed
by the court.
3. During the cross-examination of the defendant, objection being made by defendant's
attorney to the line of interrogation, the court, in ruling upon the objection, stated: "It is
for the purpose of impeaching the witness, if I understand Judge Mack, that they must
have had a settlement.
tion being made by defendant's attorney to the line of interrogation, the court, in ruling upon
the objection, stated: It is for the purpose of impeaching the witness, if I understand Judge
Mack, that they must have had a settlement. If I remember, he testified in his examination in
chief that they never had a settlement. Counsel for plaintiff at no time claimed such to be the
purpose of the cross-examination, although, from the questions asked the witness thus far, the
court might have drawn the conclusion that such was the purpose of the examination of the
witness. When, however, counsel moved to strike out the evidence elicited, upon the grounds
which are set out in full in the opinion theretofore rendered, the court, in denying the motion,
put it upon the ground that the testimony of the witness complained of is touching his
qualifications as a bookkeeper. From this and other statements of the trial judge made at the
time, it would appear that the trial court, from further examination of the witness, considered
that its purpose was not that of impeachment, or at least that it had not such tendency.
For the reasons given, a rehearing is denied.
Talbot, J.: I concur.
Fitzgerald, C. J., did not participate in the foregoing decision.
____________
28 Nev. 280, 280 (1905) Bell v. District Court
[No. 1680.]
WILLIAM BELL, J. E. DAVIDSON, and JAMES RUSSELL, Petitioners, v. THE FIRST
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE
COUNTY OF ESMERALDA, and HON. M. A. MURPHY, Judge Thereof, Respondents.
1. OfficersMalfeasanceRemovalStatutesConstitutionalityProhibition. Where petitioners were sought
to be removed from office for malfeasance, under Comp. Laws, 1642-1645, authorizing the filing of a
complaint by a private complainant, the hearing of the matter by summary proceedings, and declaring
that, if an appeal is taken from an order of removal, the officer removed shall not occupy the office
pending appeal, and it was claimed that such sections were unconstitutional, petitioners' remedy by
appeal was not adequate, and they were therefore entitled to a determination of the constitutionality of
the statute on writ of prohibition to restrain the further prosecution of the removal proceedings against
them.
2. SameTitle of ActScope. Act of March 12, 1873, p. 209, c. 121, secs. 59-62 (Comp. Laws, 1642-1645),
is entitled An act relating to elections, but provides that, in case any officer shall be guilty of
malfeasance, he may be removed by summary proceedings on complaint of a private prosecutor,
whereupon his successor shall be appointed, and, in case an appeal shall be taken, the officer removed
shall not exercise the rights of his office pending the appeal. Held, that since the trial of an officer after
his election for malfeasance in office, his removal, and the appointment of his successor, has no proper
connection with the subject of elections, such sections were in violation of Const. art. IV, sec. 17,
requiring each law to embrace but one subject and matter properly connected therewith, briefly
expressed, in the title.
Original proceeding. Prohibition, on petition of William Bell and others, against the
District Court of the First Judicial District, in and for the County of Esmeralda, and Hon. M.
A. Murphy, Judge thereof. Writ allowed.
P. M. Bowler, Jr., for Petitioners.
Geo. S. Green, for Respondents:
I. The history of this case is stated in petitioners' opening brief. None of the objections
urged against this proceeding are new ones. They have often been resorted to before to
impress courts with the futility of any attempt to bring dishonesty to book, and to convince
the public that the miserable drag net of the law is too tight and yet too loose, its meshes
too large and yet too small, and its whole fabric too tattered and torn and tangled and
twisted to be effective in the capture of political squid or the official lobster.
bring dishonesty to book, and to convince the public that the miserable drag net of the law is
too tight and yet too loose, its meshes too large and yet too small, and its whole fabric too
tattered and torn and tangled and twisted to be effective in the capture of political squid or the
official lobster. Verily he doth protest too much in assuming that the laws were framed in
the interest of law breakers, totally ignoring the highest interests of the public; that public
office is paramount to the public itself, the created greater than the creator, and the eggs wiser
than the chickens. But fortunately all of these questions have been determined by the supreme
courts of our sister states adversely to petitioners. It matters little whether the action is of a
civil or criminal nature, but after a labored attempt to show that it is criminal, counsel seeks
to apply to it the rule that Every civil action shall be prosecuted in the name of the real party
in interest. We think that the proceeding is entirely dependent upon statute and should be
prosecuted as provided in section 1643 of the Compiled Laws, under which it was instituted.
Moreover, the constitution clearly provides for the enactment of such a law for the removal of
civil officers. Provision shall be made by law for the removal from office of any civil officer,
other than those in this article previously specified, for malfeasance or nonfeasance in the
performance of his duties. (Const. art. VII, sec. 4, Comp. Laws, 133.)
II. It has been uniformly held by the Supreme Court of Idaho that the proceeding for
summary removal of civil officers is a civil action. In Ponting v. Isaman, 62 Pac. 680, the
court said: This is not a criminal action. It was expressly decided in Rankin v. Jauman
(Idaho), 36 Pac. 502, 39 Pac. 1111, that a proceeding of this kind is not a criminal action. If it
be a criminal action, then it would necessarily follow that the action must be prosecuted in the
name of the state, and that the prosecution must be upon indictment by the grand jury, or
upon information of the public prosecutor, after commitment by a committing magistrate,
under the express provisions of our constitution. The object of the statute under which this
proceeding is had is to protect the public from corrupt officials, not to punish the offender.
Under the provisions of section 9, article V of the constitution, and the provisions of section
4807, Rev. Stats., an appeal will lie to this court from the final decision of the district court
on behalf of either party in a proceeding of this kind. To hold otherwise would be to overturn
the theory upon which the court entertained jurisdiction in the following cases, to wit: Rankin
v. Jauman, 39 Pac. 1111; Hays v. Simmons, 59 Pac. 182; Hays v. Young, 59 Pac. 1113; Smith
v. Ellis, 61 Pac. 695; Miller v. Smith, 61 Pac. 824.
III. Whether the action is civil or criminal the defendant has the right of appeal from the
judgment, and prohibition will not lie. (Civ. Prac. Act, Comp. Laws, 1645; Low v. Crown
Point M. Co., 2 Nev. 77; Walcott v. Wells, 21 Nev. 47; Strouse v. Police Court, 24 Pac. 747;
Murphy v. Superior Court, 24 Pac. 310; People v. Hills, 16 Pac. 405; Powelsor v. Lockwood,
23 Pac. 143; Agassiz v. Superior Court, 27 Pac. 49; Mines v. Superior Court, 27 Pac. 532;
State v. Jones, 27 Pac. 452; Ducheneau v. Ireland, 13 Pac. 87; Mancello v. Bellrude, 11 Pac.
501; People v. District Court, 19 Pac. 541; Walker v. District Court, 35 Pac. 982; Levy v.
Wilson, 10 Pac. 272; Childs v. Edmunds, 10 Pac. 130; Rust v. Stewart, 64 Pac. 222;
McDonald v. Agnew, 55 Pac. 125; State v. Superior Court, 59 Pac. 505; State v. Benson, 58
Pac. 1066; State v. Hogg, 62 Pac. 143; State v. Moore, 62 Pac. 441; White v. Superior Court,
42 Pac. 471; Leonard v. Bartels, 4 Colo. 95; Bellevue Water Co. v. Stockslager, 43 Pac. 568;
State v. District Court, 39 Pac. 749; Tomboy Gold Mines Co. v. District Court, 48 Pac. 537.)
IV. The authorities cited by counsel completely overturn the argument that the proceeding
must be prosecuted in the name of the state. (Rankin v. Jauman, 36 Pac. 502; In re Marks, 45
Cal. 644; Triplett v. Munter, 50 Cal. 644; Smith v. Ling, 68 Cal. 324; Fraser v. Alexander, 75
Cal. 147; Woods v. Varnum, 83 Cal. 46; In re Stow, 98 Cal. 587; Crossman v. Lesher, 97 Cal.
383; Woods v. Varnum, 85 Cal. 639; Thurston v. Clark, 107 Cal. 288; Ponting v. Isaman, 62
Pac. 680; Smith v. Ellis, 61 Pac. 695; Rankin v. Jauman, 39 Pac. 1111.) The authorities cited
by counsel in his contention that a proceeding of this nature must be prosecuted by a criminal
action do not bear him out.
do not bear him out. In Thurston v. Clark, 107 Cal. 288-9, cited by counsel, the court said:
There are two methods of prosecution for wilful or corrupt misconduct in office provided by
chapter 2. One is by an accusation in writing, presented by the grand jury. * * * The other
method is the summary method provided by section 722 of the same chapter, supra. As said
by the court in Fitch v. Board of Supervisors, 122 Cal. 293: It is thus apparent that the doors
are left wide open by the constitution for the legislature to provide for the trial of municipal
officers for misdemeanor in office in any way that body may see fit. Under the very terms of
the constitution the power of the legislature in such matters is exclusive and supreme.
Nor do we think that sections 56 and 60 of An act relating to elections are in conflict
with section 17 of article IV of the constitution of this state. Section 58 of said act has not, in
effect, by implication or otherwise, been declared unconstitutional by this court in the case
of State v. Sadler, 25 Nev. 165-6, Cutting to the contrary notwithstanding. The
unconstitutionality of that section was not questioned or determined, but merely construed.
Sections 59 and 60 are no more incongruous to the title of the act than sections 52 to 57,
inclusive, and they have been the settled law of the state for many years.
It is only necessary in the title to express the principal subject embodied in the law, while
the matters properly connected therewith are not required to be mentioned. (Humboldt Co. v.
Churchill Co., 6 Nev. 35; State v. Davis, 14 Nev. 442; Klein v. Kinkead, 16 Nev. 201, and
cases cited; State v. Commissioners, 17 Nev. 96, 102.) It was definitely decided in Humboldt
Co. v. Churchill Co., 6 Nev. 30, that no statute will be annulled by a court on the ground of
unconstitutionality unless it be clearly in conflict with the constitution, and a liberal
construction of the constitution has always been followed in this state in favor of the
presumed constitutionality of the statutes. We contend that this statute deals with matters
properly connected with the subject briefly expressed in the title, namely electionsof
what? Obviously elections of officers. What else could they elect? Prohibition is not an
appropriate remedy to determine the constitutionality of law. "A question involving the
constitutionality of a statute should be determined only when it is impossible to dispose
of a cause on its merits otherwise, and a court will be especially reluctant to investigate
or determine the constitutionality of a statute on preliminary motions or on applications
for provisional remedies."
Prohibition is not an appropriate remedy to determine the constitutionality of law. A
question involving the constitutionality of a statute should be determined only when it is
impossible to dispose of a cause on its merits otherwise, and a court will be especially
reluctant to investigate or determine the constitutionality of a statute on preliminary motions
or on applications for provisional remedies. (6 Am. & Eng. Ency. of Law, 1084-1085;
Havemeyer v. Ingersoll, 12 Abb. Pr. N. Y. Sup. Ct. 301; Morton v. Broderick, 118 Cal. 482.)
In the latter case Judge Henshaw, speaking to the question of the constitutionality of the act
therein questioned, said: These questions are passed, not as being unimportant, but as being
more appropriate on the appeal from the judgment.
The unconstitutionality of a statute must be clear and manifest before a court should
declare it, so that where any reasonable doubt exists as to its constitutionality it should be
upheld. (6 Am. & Eng. Ency. of Law, 1085, and cases cited.)
Every presumption is in favor of the constitutionality of a legislative enactment, and the
judicial department will be justified in pronouncing it unconstitutional only when it becomes
a manifest usurpation of power. (6 Am. & Eng. Ency. of Law, 1086, and cases cited.)
We think that the cases cited sufficiently refute the argument that the prosecution in this
case must be in the name of the state, and the complaint or accusation not being a process,
the only remaining contention does not apply. The right to be charged and accused by the
grand jury, and the right to be prosecuted in the name and by the authority of the State of
Nevada, are inconsequential rights to the defendants, if any rights at all. There is no showing
that defendants have been deprived of a trial by jury (even though they have no right of trial
by jury) or that they have been, will be, or can be compelled to answer, or to become
witnesses against themselves in the action. The acts of the defendants far more certainly and
unerringly lead to mob violence than the innocent provisions of sections 1642 and 1643 of
the Compiled Laws, which have been the accepted and unchallenged law of the land for
more than thirty-two years.
and unchallenged law of the land for more than thirty-two years. No honest man ever has or
ever will fear the provisions of that statute, and it always has been, and ever will be, the
purveyors of official prostitution who sing this little doleful jeremiad anent constitutional
rights.
P. M. Bowler, Jr., for Petitioners, in reply:
I. Respondents' counsel concedes the truth of the facts contained in the petition and admits
the correctness of the statement of facts constituting the history of this case. He makes two
points in his brief, to wit: That prohibition is not the remedy, for the reason that petitioners
have a plain, speedy, and adequate remedy in the ordinary course of law by appeal from the
judgment. That the proceedings in the respondent court are entirely dependent upon the
statutes of Nevada (Comp. Laws, 1643) and it is therefore immaterial whether the proceeding
sought to be restrained is criminal or not. That the provisions of the section cited control.
II. To the first point we reply that petitioners have no plain, speedy, and adequate remedy
in the ordinary course of law. The objection and motions of defendants in the nisi prius court
having been overruled and denied, thereupon the court by order fixed a time certain for
defendants therein (petitioners herein) to answer the accusation; also set a day for the trial
thereof. There is no provision of the statute or common law authorizing an appeal from such
ruling of the court. The orders made are not appealable. The petitioners must undergo a
hearing in a summary manner, and we use the statutory language; we use it advisedly
because such is the statutory mandate, and indulging in the presumption that respondent will,
as indicated by its ruling, proceed, it will do so in the manner provided, that is to say,
summarily, without jury, therefore it is immaterial whether this case proceed to judgment in
the respondent court; it can make no difference; the action would not be changed in any
particular from its present legal status; it would be then, precisely as it is now, in the same
situation. The legal status of this case as disclosed by the petition, which is admitted, shows
that respondent is proceeding to, and will hear, as the statute prescribes in a summary
manner, the accusation, at the instance and in the name of an individual who has no
interest in the matter, save such interest as has any other citizen of the community,
charging petitioners with the crime of wilful and corrupt misconduct in office, the
punishment for which, upon conviction, is removal from office.
a summary manner, the accusation, at the instance and in the name of an individual who has
no interest in the matter, save such interest as has any other citizen of the community,
charging petitioners with the crime of wilful and corrupt misconduct in office, the
punishment for which, upon conviction, is removal from office. There is no other
alternativeanswer the complaint, plead not guilty, subpena witnesses, yet no provision for
compelling their attendance, save as in a civil action, and that the action in the court below is
not such has heretofore been demonstrated; proceed to trial or allow judgment to be taken as
if by default. This is the precise condition we find the case. Petitioners have no plain, speedy,
and adequate remedy, and it can make no substantial difference whether this case proceeds to
judgment in the district court, and then by appeal to this court, so far as the legal status of the
case is concerned. The same identical legal propositions involved are still undetermined; the
unconstitutionality of the provisions of sections 1642 and 1643 would still remain to be heard
and decided by this court. The case would be then, after a long, tedious trial, expensive,
harassing and annoying, unsettled and undetermined, and as it is now, in the same condition,
so far as the question of jurisdiction to hear and determine in the manner and form attempted.
III. The proceeding complained of is that facts are set forth charging defendants therein
(petitioners herein) with that which materially concerns the public only, and based upon
so-called law designed, intended, and calculated for the protection of the public, and which
can be enforced and conducted for and only in the name and by authority of the state in its
sovereign capacity, and not in the name and by the authority of an individual; that if the truth
of the facts set forth in the accusation is to be established it can be done only by and in the
name of the State of Nevada; that the validity of the proceedings had and to be had in the
district court can be more speedily and adequately investigated and determined by petitioners'
application for the peremptory writ of prohibition than it can in any other way; that to proceed
with (what occurs to us) a farce of hearing and then appeal is a vain, idle, and foolish
method of determining the legal questions involved.
appeal is a vain, idle, and foolish method of determining the legal questions involved.
(Kilburn v. Law, 11 Cal. 237; White v. Superior Court, 126 Cal. 247; Ex parte Phoenix
Insurance Co., 118 U. S. 610; U. S. v. Peters, 3 Dall. 121-129; People v. House, 4 Utah,
369.)
IV. If the respondent has not the right to entertain a case of the character and in the manner
indicated by the conceded facts, a judgment upon the merits either way would settle nothing;
the questions involved would still remain untouched. (Levy v. Wilson, 69 Cal. 105; Grangers'
Bank v. Superior Court, 33 Pac. 1095; Modoc Land Co. v. Superior Court, 122 Cal. 216;
Siebe v. Superior Court, 114 Cal. 555; L. L. L. Mg. Co. v. District Court, 38 Pac. 580; South
Carolina R. R. Co. v. Ellis, 40 Ga. 87; James v. Stokes, 77 Va. 225; State ex rel. Millard v.
Judges Ct. App., 40 La. Ann. 771; North Yakima v. Superior Court, 30 Pac. 1053; N.
Bloomfield Gravel Co. v. Keyser, 58 Cal. 315; Bruner v. Superior Court, 92 Cal. 240.) The
last two cases cited above are illustrations of precedents established by courts in similar cases
to this, and are instructive.
V. We strenuously contend that it is for this court to determine whether from the admitted
facts there is or is not a conspicuous want of jurisdiction in the district court. The power of
the district court to hear and determine is but a legal discretion, a sound discretion, governed
and controlled by law, constitution, or statute; that is what is meant and understood by
jurisdiction; and whenever the jurisdiction of a court is restricted and limited by law,
constitution, or statute, there jurisdiction ceases; the court then and there has no power even
to say that jurisdiction exists. The jurisdiction of any court at any time, in any proceeding,
may be challenged, and if from the admitted facts, as it does here, it appears that the court has
no jurisdiction, the action should be instantly dismissed, and if it is not, by a decision that it
has jurisdiction, such decision is in violation of law and an abuse of legal discretion. As an
instance of the correctness of our views as above expressed we invite attention to the Bruner
case, supra. In that case the petitioner was indicted for a felony, the supreme court had the
power to hear and determine, that is to say, a strict legal discretion to try defendant for
felony upon a valid indictment, and not otherwise.
determine, that is to say, a strict legal discretion to try defendant for felony upon a valid
indictment, and not otherwise. The supreme court therein held that the indictment was void,
and though petitioner could by repeal be released from any judgment that might be rendered
against him by the slow, tedious, expensive, harassing, and vexatious process of appeal, that
the remedy was not speedy and adequate; that the court exceeded its jurisdiction and granted
the writ. The character and sufficiency of the pleading upon which the respondent proposes to
and will exercise jurisdiction over the petitioners and the subject-matter thereof is not to be
determined by its name, not because the provisions of section 1643, supra, so provide, but
from the facts alleged in it and the entire law applicable to such subject-matter, including the
criminal practice act and the constitution of our state. When the facts stated in the accusation
are substantially those which are required to and do support the commission of crimes
committed by the party accused, material facts constituting a crime or crimes, which have
been stated in ordinary or concise language, the complaint necessarily assumes a form as it
does here, that of a criminal nature, founded upon a statute of penal character designed for the
protection of the public. Therefore the court will consult the whole body of the law,
constitutional and statutory, to determine the questions involved thereby and therein. The
subject-matter of this proceeding is criminal in character; the provisions of section 1643 are
penal, though found in an innocent election law; it is therefore immaterial where such
provisions may be found; the place of their abode does not determine its character; the
essence of the subject-matter is to exact faithful performance of official duty to protect the
public and punish the offenders, and such is the intent and purpose of the provisions of
section 1643, supra, which we are considering. It appearing from every standpoint from
which the subject-matter of this action may be viewed that it is penal, of a criminal character,
having been repeatedly so decided, the respondent has no jurisdiction thereof because of the
constitutional objections noted in our opening brief, and petitioners are entitled to the
absolute dismissal thereof, and prohibition therefor will lie and is the only appropriate
remedy for the relief demanded, notwithstanding there may be a remedy by appeal,
which is not speedy and is not adequate.
and prohibition therefor will lie and is the only appropriate remedy for the relief demanded,
notwithstanding there may be a remedy by appeal, which is not speedy and is not adequate.
VI. Each law enacted by the legislature shall embrace but one subject, which subject
shall be expressed in the title. It will be perceived from a reading of the above constitutional
requirement that all legislative enactments are restricted to but one subject and to such
matters connected with that subject. The title is thus restricted to a certain subject and the
body of the act must likewise be restricted. The title of the act in question restricts the subject
to elections only. The constitution studiously avoids saying anything about matters and things
connected with the objects and purposes of the act, but only matters connected with the
subject, with emphasis on the subject. The subject is elections, the object and purpose of
elections, obviously elections of officers, not the removal of them, for that is an entirely
separate and distinct subject, and it cannot without torturing the language be referable to the
removal of officers. It is apparent that the only subject the legislature had in view was the
election of officers, not the removal of them; to hold otherwise would in effect be saying that
the legislature had two subjects before them, one to elect, the other to remove, separate and
distinct acts requiring different methods of accomplishment; for the one, that of elections,
there was an absolute, imperative necessity, while the other, removal, depended entirely upon
a contingency rarely occurring. The evident primary object, purpose, or subject, call it what
you may, the legislature had in view, which is manifest by reference to the title of the act, was
to provide ways and means for the selection of the officers to carry on and conduct the
government by the qualified voters of the state. By the title of the act the legislature gave
notice to that effect, and to none other, and, as remarked, no lawyer would consult an act so
entitled in the investigation of crime of malfeasance, misfeasance, nonfeasance, or any other
crime listed in the catalogue of crimes; neither would he consult such a law if inquiring for
the duties of officers as prescribed by law. Suffice it to say that object, purpose, and intent of
the provisions of sections 1642, 1643, et seq., are in no way connected with the subject of
the act as entitled. {State v. Silver, supra; State v.
1643, et seq., are in no way connected with the subject of the act as entitled. (State v.
Silver, supra; State v. Hallock, 19 Nev. 384; State v. Hoadley, 20 Nev. 317; State v. Com.
Washoe Co., 22 Nev. 400.)
VII. The caption of this part hereof is a plain requirement of the constitution, the power from
which the legislature and the courts derive authority, which should not be frittered away. The
object of the requirement, as, in fact, is also the purpose of every constitutional provision, is
to protect the rights of the people, to prevent fraud, delusion, and deception, to prevent
vicious legislation under the guise of a sugar-coating. And if constitutional provisions and
requirements are to be applied and enforced at all, they must be held mandatory, and by no
fair intendment can An act relating to elections be considered to include or cover legislation
having no necessary or proper connection with the crimes of malpractice or malfeasance in
office, or prescribing the duties of officers and defining punishment for violations thereof.
The act is broader than its title, and the provisions herein assailed, by no fair or reasonable
intendment, are indicated by its title.
VIII. Provision shall be made by law for the removal from office of any civil officer,
other than those in this article previously specified, for malfeasance or misfeasance in the
performance of his duties. (Const. art. VII, sec. 4.) Counsel for respondent contends that the
above constitutional provision is a grant of unlimited and unrestricted power to the
legislature; that the power of the legislature is exclusive and supreme. In fact, such was the
opinion of Garoutte, J., in Fitch v. Board of Supervisors, 122 Cal. 293, in his specially
concurring opinion, in substance and effect saying that while provision shall be made by law
for the removal from office of any civil officer for malfeasance or nonfeasance in the
performance of his duties, such law must be made in conformity with and under limitations
and restrictions elsewhere imposed by the constitution; not that the legislature is supreme and
that it has exclusive power in such matter, but, as was contended in the oral argument, that
the constitution, like a statute or a contract, must be considered in its entirety, each provision
thereof given effect, and, from a consideration of the whole, ascertain its meaning and
intent. The opinion of Garoutte, J., while assuming to concur, in reality dissents, and
therefore cannot be considered influential or controlling.
provision thereof given effect, and, from a consideration of the whole, ascertain its meaning
and intent. The opinion of Garoutte, J., while assuming to concur, in reality dissents, and
therefore cannot be considered influential or controlling. We agree with counsel for
respondent in that the proceeding sought to be prohibited is entirely dependent upon the
statute (Comp. Laws, 1643), but we contend that the provisions thereof are dependent for
validity upon the legislative restrictions imposed by the state constitution, as expressed in art.
IV, sec. 17, art. VI, sec. 13, art. I, secs. 3, 8.
This is an original proceeding to obtain a writ of prohibition restraining and prohibiting
respondent, the district court above named, and Hon. M. A. Murphy, judge thereof, from
further proceeding, other than to make an order of dismissal, in a certain action in said court
pending, entitled A. Summerfield, Complainant, v. William Bell, J. E. Davidson, and James
Russell, Defendants. Accusation. The issuance of the writ is demanded upon the grounds,
first, that said court has no jurisdiction of the parties, or the subject of said action; second,
that said court has no jurisdiction of the parties, or of the subject of said action in the manner
and form therein assumed to be exercised by said court.
The defendants in said action, petitioners herein, are regularly elected, qualified, and
acting officers of the said county of Esmeralda, as follows: The said William Bell and James
Russell are the justice of the peace and constable, respectively, of Goldfield township, and the
said J. E. Davidson is the district attorney of the county. The action sought to be prohibited by
this proceeding was instituted by the complainant, A. Summerfield, a citizen and taxpayer of
said county, for the purpose of removing said petitioners from office for alleged malfeasance.
The proceeding was brought under the provisions of sections 59 to 62 of an act entitled An
act relating to elections, approved March 12, 1873 (Stats. 1873, p. 209, c. 121; Comp. Laws,
1642-1645), which sections read as follows:
Sec. 59. If any person now holding or who shall hereafter hold any office in this state,
who shall refuse or neglect to perform any official act in the manner and form as now
prescribed by law, or who shall be guilty of any malpractice or malfeasance in office, shall
be removed therefrom as herein prescribed.
after hold any office in this state, who shall refuse or neglect to perform any official act in the
manner and form as now prescribed by law, or who shall be guilty of any malpractice or
malfeasance in office, shall be removed therefrom as herein prescribed.
Sec. 60. Whenever any complaint in writing, duly verified by the oath of any
complainant, shall be presented to the district court, alleging that any officer within the
jurisdiction of said court has been guilty of charging and collecting any illegal fees for
services rendered or to be rendered in his office, or has refused or neglected to perform the
official duties pertaining to his office as prescribed by law, or has been guilty of any
malpractice or malfeasance in office, it shall be the duty of the court to cite the party charged
to appear before him on a certain day, not more than ten nor less than five days from the time
when said complaint shall be presented, and on that day, or some subsequent day not more
than twenty days from that on which said complaint is presented, shall proceed to hear, in a
summary manner, the complaint and evidence offered by the party complained of, and if, on
such hearing, it shall appear that the charge or charges of said complaint are sustained, the
court shall enter a decree that said party complained of shall be deprived of his office, and
shall enter a judgment for five hundred dollars in favor of the complainant and such costs as
are allowed in civil cases.
Sec. 61. It shall be the duty of the clerk of the court in which such proceedings are had to
transmit, within three days thereafter, to the governor of the state, or board of county
commissioners (as the case may be) of the proper county, a copy of any decree or judgment
declaring any officer deprived of any office under this act; and it shall be the duty of the
governor or such board of county commissioners (as the case may be) to appoint some person
to fill said office until a successor shall be selected or appointed and qualified; and it shall be
the duty of the person so appointed to give such bond and security as are prescribed by law
and pertaining to such office.
Sec. 62. In case judgment of the district court, as herein provided, shall be against the
officer complained of, and an appeal taken from the judgment so rendered, the officer so
appealing shall not hold the office during the pending of such appeal; but such office shall
be filled as in case of a vacancy."
provided, shall be against the officer complained of, and an appeal taken from the judgment
so rendered, the officer so appealing shall not hold the office during the pending of such
appeal; but such office shall be filled as in case of a vacancy.
It is contended by petitioners that the foregoing sections of the act, under which the said
proceedings were instituted, are violative of the state constitution, and hence void, and that
therefore the court had no jurisdiction in the premises. Upon the other hand, counsel for
respondent takes the position that prohibition is not an appropriate remedy to determine the
constitutionality of an act or provisions thereof, and that therefore this proceeding should be
dismissed, without passing upon the merits of the legal questions presented. Unquestionably
this proceeding would be improper, if petitioners have a plain, speedy, and adequate remedy
in the ordinary course of law; but no authorities are cited by counsel that go so far as to hold
that an appellate court will refuse to grant relief by prohibition simply because to do so would
necessitate the passing upon a constitutional question.
In the case of Walcott v. Wells, 21 Nev. 51, 24 Pac. 367, 9 L. R. A. 59, 37 Am. St. Rep.
478, which was a proceeding in prohibition, it is manifest from the majority opinion of the
court that a constitutional question would have been passed upon if necessary to a
determination of the case, while the dissenting opinion of Belknap, J., was predicated upon
his view of the unconstitutionality of the act therein brought in question.
The case of Ex parte Roundtree, 51 Ala. 42, referred to in the Walcott v. Wells Case,
supra, was a proceeding wherein a writ of prohibition was issued to the judge of the fourth
judicial circuit of Alabama to prohibit him from proceeding in a case in the law and equity
court of Morgan County; the issuance of the writ being based upon the unconstitutionality of
the act creating the court.
Among other cases in which the constitutionality of statutes have been passed upon in
proceedings in prohibition may be cited the following: Levy v. Superior Court, 105 Cal. 600,
38 Pac. 965, 29 L. R. A. 811; Connecticut River R. Co. v. Franklin Co.,
Franklin Co., 127 Mass. 50, 34 Am. Rep. 338; McInerney v. Denver, 17 Colo. 302, 29 Pac.
516; Sweet v. Hulbert, 51 Barb. (N. Y.) 312.
In the case of Walcott v. Wells, supra, this court said: The writ of prohibition is an
extraordinary remedy, and should be issued only in cases of extreme necessity. Before it
should issue, it must appear that the petitioner has applied to the inferior tribunal for relief.
The object of the writ is to restrain inferior courts from acting without authority of law in
cases where wrong, damage, and injustice are likely to follow from such action. It does not lie
for grievances which may be redressed, in the ordinary course of judicial proceedings, by
appeal. It is not a writ of right, but one of sound judicial discretion, to be issued or refused
according to the facts and circumstances of each particular case. Like all other prerogative
writs, it is to be used with caution and forbearance, for the furtherance of justice, and securing
order and regularity in judicial proceedings in cases where none of the ordinary remedies
provided by law are applicable. The writ should not be granted, except in cases of usurpation
or abuse of power, and not then, unless the other remedies provided by law are inadequate to
afford full relief. If the inferior court has jurisdiction of the subject-matter of the controversy,
and only errs in the exercise of its jurisdiction, this will not justify a resort to the
extraordinary remedy by prohibition.
It appears from the petition herein that petitioners applied to the lower court for relief, and
that the questions herein presented were urged upon that court upon motions to quash and to
dismiss the proceedings. If the proceedings in the lower court would be void because of the
unconstitutionality of the sections of the act under which it is instituted, I think it is a case for
the proper interference of this court by prohibition, unless it appear that there is another plain,
speedy, and adequate remedy. If decision is rendered against petitioners in the proceeding in
the lower court, a decree is entered removing them from office, and judgment for $500 in
favor of the complainant may be imposed, as well as costs, as in civil cases. If appeal is taken
from such judgment, no matter how meritorious the appeal may be, there is no way by
which the judgment, at least so far as the decree of removal is concerned, may be stayed
pending the appeal; for the statute particularly provides that an appellant "shall not hold
the office during the pending of such appeal."
matter how meritorious the appeal may be, there is no way by which the judgment, at least so
far as the decree of removal is concerned, may be stayed pending the appeal; for the statute
particularly provides that an appellant shall not hold the office during the pending of such
appeal. Petitioners are charged with gross misconductacts which are cognizable as crimes
and punishable as such; in fact, malfeasance in office itself has all the attributes of crime.
These accusations, grave as they are, are not, under the sections quoted, required to be made
under the solemnity of an investigation of a grand jury and presented by a body of that
character, but may rest upon the accusation of any complainant. After summary hearing and
a judgment and decree which may impose a great financial hardship, the accused is deprived
of holding office and of receiving its emoluments pending the appeal, and the duties of the
office are performed and the salary enjoyed by another person appointed as in the act
provided. Not only this, but in a case like that of the district attorney, his appointed successor
may become his legal prosecutor.
If the entire proceedings are without authority in law, and void because of the
unconstitutionality of the sections of the act providing for this mode of procedure, certainly
the remedy to be obtained by the slow process of appeal, which could only follow a vain,
fruitless, and perhaps expensive, trial, could not be considered an adequate remedy. But more
injurious to the defendant than loss of office and money would be the obloquy fastened upon
him by such a decree, which an appeal in such a case could not remedy. It is hard to conceive
of a greater legal wrong which might be imposed upon a person charged with a grave and
serious offense than to compel him to undergo trial by a court or under a procedure wholly
void in law. Even if guilty, his conviction would not be a bar to further trial before a
competent court and under a lawful proceeding. If innocent, he would be subject to possible
conviction, against which he never could obtain adequate relief; for if the lower court had no
jurisdiction to consider the merits of the case, the appellate court would not, and all that could
properly be accomplished by an appeal in such a case would be a dismissal of the cause,
with no opportunity for a new trial, or a further chance to overcome the effect of the
wrongful conviction.
plished by an appeal in such a case would be a dismissal of the cause, with no opportunity for
a new trial, or a further chance to overcome the effect of the wrongful conviction. For cases
of this character, no other remedy could be adequate, and reason and justice dictate the
restraining of such a trial by writ of prohibition. (Bruner v. Superior Court, 92 Cal. 267, 28
Pac. 341; People v. Spiers, 4 Utah, 395, 10 Pac. 609, 11 Pac. 509.)
Are the sections of the act relating to elections under which the proceeding was
instituted unconstitutional? It is urged by counsel for petitioners that they are in several
particulars, and the following specifications are made wherein the organic act of the state is
declared to be violated: The subject of the sections in question is not mentioned in the title of
the act, and has no proper connection with the subject that is mentioned, elections, but,
upon the contrary, is foreign thereto, in violation of article IV, section 17; that the proceeding,
in reality being a prosecution criminal in its nature, can only be prosecuted in the name of and
by the authority of the state, and the authorization of a prosecution in the name of an
individual is violative of article VI, section 13; that the authorizing of such a proceeding
otherwise than upon presentment or indictment of a grand jury is violative of article I, section
8; that the provision requiring a summary proceeding deprives the accused of the right of trial
by jury, in violation of article I, section 3.
All of the constitutional questions specified have been very ably presented by counsel, but
I shall only discuss the first mentioned, for I deem it clearly decisive of the case, making it
unnecessary to pass upon the other interesting questions submitted.
The purpose of section 17 of article IV of the state constitution, which provides that 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, etc., has been so frequently
considered by this court and so well settled that it would accomplish no useful purpose to
enter upon a further discussion of a matter so thoroughly covered by former opinions. As was
said in the case of State v. Stone, 24 Nev. 310
case of State v. Stone, 24 Nev. 310, 53 Pac. 497, that a compliance with this provision of the
constitution is essential to the validity of every law enacted by the legislature has been so
often decided by this court that it is not worth while to cite the cases. The subject of the act
in question is elections. Its purpose and object is the orderly electing of public officials by
the qualified voters of the state. The trial of an officer, after he has been so elected, for
malfeasance in office, his removal, and the appointment of his successor because of such
removal, has no proper connection whatever with the subject of elections. But counsel for
respondent says: Sections 59 and 60 are no more incongruous' to the title of the act than
sections 52 to 57, inclusive, and they have been the settled law of this state for many years.
Sections 52 to 57, inclusive, relate to contests for members of the legislature. A comparison
of sections 59 to 62, inclusive, with sections 52 to 57, inclusive, of the act in question, only
serves to show more clearly the distinction between what matters have a proper connection
with the general subject of the act and what have not. It is manifest that the purpose of an
election contest is to determine who has been legally elected in case of controversy. Such
contest necessarily relates to the election. Its ultimate object is to determine which of the
contesting parties has been duly elected. While it may result in determining that the person
holding the office has not been elected thereto and should be ousted therefrom, and that the
contestant, or person for whom the contest is instituted, should be invested with the office,
such ouster upon the one hand and investiture upon the other is based primarily upon the true
result of the election. The removal of an officer for malfeasance in office has no necessary
relationship to the question of his election. Probably in the great majority of cases the
malfeasance in office, like the malfeasance charged against petitioners, has not even the
remotest relationship to the election of the officer. If the office is an elective one, the election
at which the officer became entitled to hold the office is a thing of the past before the
malfeasance is committed. An officer appointed to fill a vacancy existing in an elective office
may as readily commit a malfeasance in office as he could had he been elected to the
office, and so an officer holding an office that is only appointive may be just as liable to
commit such an offense.
commit a malfeasance in office as he could had he been elected to the office, and so an officer
holding an office that is only appointive may be just as liable to commit such an offense. The
object of legislation like that attempted to be accomplished by the sections of the act relating
to elections, herein in question, is to protect the public from corrupt and neglectful officials
by removing them from office. (Thurston v. Clark, 107 Cal. 288, 40 Pac. 435; Ponting v.
Isaman (Idaho) 62 Pac. 680.) That this purpose has no proper relationship to that of elections,
is too clearly manifest to require any extended discussion.
Counsel for respondent argues, however, that by reason of the provisions of section 4 of
article VII of the state constitution, the legislature has power to enact legislation for removal
of officers guilty of malfeasance or nonfeasance in office in whatever manner it sees fit, and
that therefore the sections of the act relating to elections, herein in question, having been
enacted in pursuance of this provision of the constitution, are valid. The constitutional
provision referred to is as follows: Provision shall be made by law for the removal from
office of any civil officer, other than those in this article previously specified, for malfeasance
or nonfeasance in the performance of his duties. While the framers of the constitution
recognized the importance of specifying in the organic law of the state a provision requiring
the legislature to enact laws for the removal of all officers guilty of malfeasance or
nonfeasance in office, other than those whose removal was specified in the constitution to be
accomplished by impeachment, it was never intended that such law or laws could be enacted
differently from the method prescribed for the enactment of laws generally. Under the
constitutional provision mentioned, the legislature is free to provide whatever proceedings for
the removal of guilty public officers it deems most advantageous for the public good, so long
as it does not in such enactment violate other constitutional provisions. There is nothing in
the constitution itself indicating any other purpose, and reason does not dictate why there
should be any exception in the case of this character of a law.
While the conclusion reached is that the sections of the act under which the proceedings
sought to be prohibited were instituted relate to a subject foreign to that expressed in the
title of the act in which they are found, and that hence they are void, it is proper to note
that the effect of this decision is not to hold invalid all provisions of law enacted for the
trial of those charged with, and the punishment of those found guilty of, malfeasance or
nonfeasance in office.
under which the proceedings sought to be prohibited were instituted relate to a subject foreign
to that expressed in the title of the act in which they are found, and that hence they are void, it
is proper to note that the effect of this decision is not to hold invalid all provisions of law
enacted for the trial of those charged with, and the punishment of those found guilty of,
malfeasance or nonfeasance in office. Some of the acts relating to particular county officers
contain provisions for the indictment and removal from office of the official who may be
found guilty of a misdemeanor in office. (State v. Borowsky, 11 Nev. 119.) The act relating to
officers generally contains many provisions definitive of offenses thereunder and providing
punishments therefor. The general criminal practice act of this state provides in its first
section that a crime or public offense is an act or omission forbidden by law, and to which is
annexed on conviction: * * * Fourth, Removal from office. (Comp. Laws, 3986.) Section 63
of the act last mentioned provides that an accusation in writing against any district, county,
or township officer, for wilful or corrupt misconduct in office, may be presented by the grand
jury of the county for which the officer accused is elected or appointed. The sections
immediately following (Comp. Laws, 4038-4051, inclusive) provide for the hearing of
objections to the sufficiency of the indictment, for a trial by jury, for judgment upon
conviction of removal from office, and the right of appeal to the supreme court. Should these
various provisions of law to which attention has been directed be deemed inadequate by the
legislature to provide a sufficient remedy for the public against unworthy or corrupt officials,
additional legislation upon the subject will doubtless be enacted.
The writ will issue as prayed for.
____________
28 Nev. 300, 300 (1905) State v. Hancock
[No. 1684.]
THE STATE OF NEVADA, Respondent, v. JOHN
HANCOCK, Appellant.
1. Criminal LawFinding of Trial CourtConclusiveness. Where, in a prosecution for crime, defendant
claimed a certain witness was incompetent to testify because she was his common-law wife, the finding
of the trial court, as a matter of fact, that the witness was not defendant's wife was conclusive on this
point.
2. WitnessesCompetencyCommon-Law Wife. Where, in a prosecution for crime, it appeared that a woman
who was called as a witness against defendant had lived with him for a number of years, but had never
been married to him, and was during all the time the wife of another person, she was not incompetent to
testify, on the ground that she was defendant's common-law wife.
Appeal from the District Court of the Fourth Judicial District of the State of Nevada,
Lincoln County; Geo. S. Brown, Judge.
John Hancock was convicted of murder and appeals. Affirmed.
Geo. W. Keith, for Appellant.
I. The rule of evidence excluding the wife from being a witness for or against a husband is
applicable only where the relation of husband and wife legally exists, and does not extend to
the case of a woman cohabiting with a party as his wife, but not married to him. (Dennis v.
Crittenden, 42 N. Y. 542.) Where persons in good faith believe they are married, but are
disqualified by reason of a former marriage, either is a qualified witness against the other. (30
Am. & Eng. Ency. of Law, 951-952, and authorities cited; People v. Schoonmaker, 119 Mich.
242; Clark v. Illinois, 178 Ill. 37; Johnson v. State, 95 Ga. 305; Wyre v. State, 95 Ga. 446;
Cartwright v. McGowan, 121 Ill. 389.) The rule as to the exclusion of the wife as a witness
for or against her husband is applicable solely to cases where the lawful relation of husband
and wife exists. Persons having a husband or wife living are not competent to contract
marriage, and no presumption of marriage can be indulged from the cohabitation of such
parties.
sumption of marriage can be indulged from the cohabitation of such parties. (Hebblewaite v.
Hepworth, 98 Ill. 126; Stolz v. Doering, 112 Ill. 234.) Cohabitation on a promise of marriage
cannot constitute a marriage, even when continued after obstacle is removed. (Foster v.
Hawley, 8 Hun, 71; Duncan v. Duncan, 10 Ohio, 181; Williams v. Williams, 46 Wis. 464.)
The marriage of a man and woman, where one of them has a husband or wife by a prior
marriage who is then living and undivorced, is void and not merely voidable, and, being so,
no valid second marriage can take place or exist. (Janes v. Janes, 5 Blackf. 141; Reeves v.
Reeves, 54 Ill. 332; Drummond v. Irish, 52 Iowa, 41; Glass v. Glass, 114 Mass. 563; Martin
v. Martin, 22 Ala. 86; Tefft v. Tefft, 35 Ind. 44.)
The defendant was convicted in the District Court in and for Lincoln County of the crime
of murder in the first degree, and subsequently judgment of death was by said court
pronounced upon him. He appeals to this court from the said judgment.
There is no regular assignment of errors in the record filed here, but treating the two
statements of errors claimed by defendant, as made in his bill of exceptions presented by him
to the judge of the trial court for allowance and settlement, as performing the functions of an
assignment of errors, two questions arise on the bill of exceptions as settled by said judge:
First, did the trial court err in the admission of the testimony of the witness Mrs. Gross? and,
second, did said court err in admitting the testimony of the witness Archie Gross?
The second question is entirely out of the case, as the defendant's counsel admits, because
no exception to said testimony was taken.
On the first question, the bill of exceptions settled and allowed by the said judge is as
follows: One Mrs. Kate W. Gross was sworn as a witness on behalf of the prosecution, and
testified, among other things, that she met the defendant, Hancock, in 1895, and went to live
with him, and that she was then a married woman, having a husband named Keen living.
living. After the witness had testified to various occurrences prior to the alleged crime, the
defendant's counsel, T. J. Osburn, Esq., objected to the witness testifying against the
defendant; alleging that the witness was the wife of the defendant, and therefore incompetent
to testify against him, and asked leave to examine her, to ascertain whether or not she was
competent. Such leave being granted by the court, the said witness, on her examination on
voir dire, in answer to questions by defendant's and plaintiff's counsel, testified: That she was
living and cohabiting with the defendant at the time the alleged crime charged in the
indictment was committed; that she had lived and cohabited with the defendant for months
previous to the alleged crime and for months afterward, and that in most places at which
defendant resided at various times the witness passed as, and was considered as, the
defendant's wife, but that at Sacramento, California, where she went to live with the
defendant, and while living with him, she did not go by the name of Hancock, but by the
name of her husband, Keen, to whom she testified she was married in 1892 in Salt Lake City,
Utah; that at Perris, California, where she and Hancock resided for some time, and where
Hancock's mother, brother, and sister lived, the witness passed by the name of Mrs. Hancock,
but that everybody there knew she was not Hancock's wife; that in Milford, Utah, when she
was there, after the time of the alleged crime, with Hancock, and where she had friends who
knew her as Mrs. Keen, she went by the name of Keen; and that in Oregon, where she and the
defendant were for some months, the defendant passed her off as his sister; and further, that
she never said she would be true to the defendant, and never was; that she could not tell him
she would be true to him when she had a living husband; that she passed as Hancock's wife in
various places simply to avoid the shame of being known as his mistress; and further, that she
never agreed or promised to marry Hancock or to be his wife, and that she never expected to
be his wife, because she was never divorced from her husband, Keen. Thereupon the court
found that the witness Mrs. Kate W. Gross was not the wife of the defendant, and not
incompetent to testify against him, and overruled the defendant's objection to her testifying
further, to which ruling defendant by his counsel took an exception."
ruled the defendant's objection to her testifying further, to which ruling defendant by his
counsel took an exception.
The defendant presented to the trial judge what he denominated Statement to Act as Bill
of Exceptions. The trial judge refused to allow the statement as the bill of exceptions, giving
his reasons therefor as follows: Which so-called Statement to Act as Bill of Exceptions' has
been found by me to be incorrect in the following particulars: * * * In alleging that the
witness Mrs. Gross testified that said witness was considered and accepted as appellant's
(defendant's) wife by the community in which appellant (defendant) resided at various times
and at the time charged in the indictment, when in fact said witness testified that there were
several places in which she and the defendant resided where she was neither considered not
accepted as his wife. (3) In not stating sufficiently the evidence upon which the court ruled
that the witness Mrs. Gross was not incompetent to testify, to which ruling the exception was
taken. The defendant claimed that the witness Mrs. Gross was his common-law wife, and
that she should not have been allowed to testify against him without his consent. This is what
he claims as reversible error.
The question whether or not she was his common-law wife was one for the trial court to
determine, before admitting her as a witness against the defendant over the objection of
defendant. It will be perceived from the bill of exceptions settled and allowed by the court on
this point that the trial judge found as a fact that she was not the defendant's common-law
wife; and, as the record stands in this court, this fact, so found, would determine the case
against the defendant. But inasmuch as the life of a human being is involved in the matter, we
have read with care the whole proceedings at the trial, including the testimony of the
witnesses, both that given touching the question of admissibility and that given after being
ruled admissible, although these proceedings are filed here with no other authentication than
the certificate of the shorthand reporter, who was sworn to take down and report the matter,
that they were taken and reported correctly.
We do not deem it necessary to quote or substantially state the testimony given on the
question raised, for undoubtedly the testimony showed that Mrs. Gross was not defendant's
common-law wife. She emphatically stated she was not, but was at all times that she was
living with him the lawful wife of another man, and that the relation that existed between her
and the defendant was meretricious and adulterous. She further testified that at the time she
was testifying against the defendant she was the wife of a man other than the defendant, to
wit, Mr. Gross, she having married Mr. Gross since her relations with the defendant had
ceased; her previous husband, Keen, having died before her marriage with Mr. Gross. The
defendant's own testimony shows that the witness Mrs. Gross was not his common-law wife.
The defendant testified that he and the witness Mrs. Gross were not legally and lawfully
married, but that they had intended at some future time to be legally and lawfully married.
Under the foregoing circumstances, there was no error in the admission of the testimony of
the witness. Upon this doctrine the following authorities are cited: Dennis v. Crittenden, 42
N. Y. 542; People v. Schoonmaker, 119 Mich. 242, 77 N. W. 934; Clark v. Illinois, 178 Ill.
37, 52 N. E. 857; Johnson v. State, 95 Ga. 499, 22 S. E. 639; Wyre v. State, 95 Ga. 466, 22 S.
E. 273; Cartwright v. McGowan, 121 Ill. 389, 12 N. E. 737, 2 Am. St. Rep. 105; Hebblewaite
v. Hepworth, 98 Ill. 126; Stolz v. Doering, 112 Ill. 234; Foster v. Hawley, 8 Hun, 71; Duncan
v. Duncan, 10 Ohio St. 181; Williams v. Williams, 46 Wis. 464, 1 N. W. 98, 32 Am. Rep.
722; Janes v. Janes, 5 Blackf. 141; Reeves v. Reeves, 54 Ill. 332; Drummond v. Irish, 52
Iowa, 41, 2 N. W. 622; Glass v. Glass, 114 Mass. 563; Martin's Heirs v. Martin, 22 Ala. 86;
Tefft v. Tefft, 35 Ind. 44; 30 Am. & Eng. Enc. of Law, 951; 2 Kent, 79.
There was no error in this ruling of the court. This appeal has no merit, and it would seem
that the only object of it was for delay.
The judgment of the trial court is affirmed.
____________
[No. 1661.]
DANIEL POWELL, Respondent, v. NEVADA, CALIFORNIA AND OREGON RAILWAY,
a Corporation, Appellant.
RailroadsOperation of ShopsFrightening HorsesLiability for Personal InjuriesEvidenceExcessive
DamagesQuestion for JuryNegligenceSteam WhistleAppealRehearingStatute Enacted
After Hearing.
1. There is no fixed rule for the measure of damages for personal injuries, especially for mental anguish apart
from physical suffering, and much must be left to the jury under proper instructions.
2. While, in an action for personal injuries, testimony for defendant tended to minimize his injuries, there was
evidence that plaintiff's fall caused a concussion of the brain and an atrophic condition of the muscles
of the right arm, that his mental faculties became impaired, and he was dull and appeared distracted,
and one witness described his condition as pitiful. Held, that a verdict for $6,000 was not so excessive
as to indicate passion or prejudice.
3. In an action for personal injuries caused by a fall from a cart when plaintiff's horse was frightened by a steam
whistle in defendant's railroad shops, evidence that a team had been frightened thereby on another
occasion was admissible to show the dangerous character of the whistle at the place it was used.
4. Questions addressed to master mechanics as to whether it was necessary and convenient for defendant to
sound the whistle at stated hours to notify employees in the shops to commence and quit work were
properly excluded, as they related to a subject of common knowledge and experience.
5. In an action for personal injuries caused by a fall from a cart, resulting from plaintiff's horse being frightened
by a steam whistle in defendant's railroad shops, an instruction that there is a distinction between the
nature of a locomotive whistle and a stationary whistle for the purpose of notice only; the former being
necessary for the purpose of frightening animals off the track, etc., so that its usefulness depends on the
alarming and frightening character of the noise it makes, while with respect to the latter there is no
necessity for constructing or operating them so as to alarm an animal of ordinary gentleness, so that any
unnecessary alarming or frightening use of them is wrongful, was proper.
6. The power of railroad companies under Comp. Laws, sec. 988, subd. 10, to erect and maintain all necessary
and convenient buildings, stations, depots, and fixtures and machinery for the accommodation and use
of their passengers, freight and business, etc., does not protect a company in such a use of a steam
whistle in its shops as to frighten horses and thereby injure others.
7. Questions not raised on the original hearing will not be considered on the rehearing.
8. If the judgment of the district court and opinion on appeal were correct at the time they were made, they
cannot be invalidated on rehearing by a statute passed subsequently, even if, for the purposes of the
argument, its constitutionality be conceded. It is manifest that the rehearing was not granted for that
purpose.
9. If a judgment was correct at the time it was rendered, and was properly affirmed at the time it was passed
upon by the supreme court, the propriety of its decision cannot be affected on rehearing by a statute
passed after the decision on appeal.
Petition for rehearing by appellant upon the Supreme Court affirming the judgment of the
District Court. Petition denied. Original opinion affirmed. [For former opinion, see page
40 of this volume.]
Dodge, Parker & Arnold, and Cheney, Massey & Smith, for Appellant and Petitioner:
I. The evidence is insufficient to justify the verdict, which is excessive, and contrary to
law. The appellate court, in determining the questions here presented as to the insufficiency
of the evidence, should weigh the evidence taken altogether, and, even if there be substantial
conflicts therein, should render its decision in accordance with the fair preponderance thereof.
The history of legislation with regard to the retrial of causes in Nevada clearly shows that
the people of this state, as represented in their legislature, have come, with increasing
enlightenment, more and more to favor careful and searching consideration, by the appellate
court, of questions as to the miscarriage of justice in the trial courts.
Thus, the statute in force prior to 1893that is, sections 195 and 196 of the act of March
8, 1869 (see pp. 345 and 348 of the compilation of 1873)provided that insufficiency of the
evidence to justify the verdict or other decision should be ground upon which to base a
motion for a new trial, and that 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,
the statement shall specify the particulars in which such evidence is alleged to be
insufficient. The expression insufficiency of the evidence" or "not supported by the
evidence" is equivalent to the expression "against the weight of evidence" {Wilson v. Eau
Claire, S9 Wis.
dence or not supported by the evidence is equivalent to the expression against the weight
of evidence (Wilson v. Eau Claire, 89 Wis. 47), and, under the provisions of the act of 1869,
it was, of course, the duty of the trial court, upon a motion for a new trial, to consider and
weigh the evidence taken altogether to determine where the preponderance thereof lay. (14
Ency. of Pl. & Pr. 769-771.) Inasmuch, however, as the act of 1869 was silent as to what
evidence should be considered by the appellate court in rendering its decisions upon appeals
from orders of the trial courts denying motions for new trials, the appellate court was bound
by the well-established general rule that, upon appeal, it might not weigh the evidence, but
that, if there were a substantial conflict in the evidencethat is, if there were any substantial
evidence tending to justify the verdict or other decision belowthen it might not disturb the
order of the lower court, even though the evidence, taken altogether, did not seem to the
appellate court to justify such order. For the general rule see 14 Ency. of Pl. & Pr. 770.
See, also, Welland v. Williams, 21 Nev. 230: There was a substantial conflict in the
evidence, * * * and, even if not satisfied with the finding, this prevents us from looking into
the evidence for the purpose of determining where its weight lies.
And see Pinschower v. Hanks, 18 Nev. 103; State v. Yellow Jacket Co., 5 Nev. 415;
Treadway v. Wilder, 9 Nev. 67; Margaroli v. Milligan, 11 Nev. 96; Carlyon v. Lannan, 4
Nev. 156; Quint v. M. Co., 4 Nev. 304; Reed v. Reed, 4 Nev. 395; Covington v. Becker, 5
Nev. 281.
It is, of course, hardly necessary to recall to this court the general rules that it followed, under
the act of 1869, in rendering decisions on appeals from orders denying motions for new trials,
when such motions were based on points as to the insufficiency of the evidence. It may be
well, however, to point out that the said act, therein differing diametrically from the act now
in force, expressly provided that the specifications of error upon appeal from an order
denying a motion for a new trial on the ground of insufficiency of the evidence must
designate each particular relied upon to establish the contention that the said evidence was
insufficient, hence that no particular not so specified would be considered by the
appellate court.
contention that the said evidence was insufficient, hence that no particular not so specified
would be considered by the appellate court. For the general rule in this regard see 2 Ency. of
Pl. & Pr. 428-431.
See, also, Warren v. Quill, 9 Nev. 259, 264; Solomon v. Fuller, 14 Nev. 63; Champion v.
Sessions, 2 Nev. 273; Nosler v. Haynes, 2 Nev. 55; Mining Co. v. Mining Co., 4 Nev. 414;
Mitchell v. Bromberger, 2 Nev. 345.
Also, it may be well to recall to this court that, under the act of 1869, if the record contained
no evidence or finding whatever as to an issue material to a verdict or other decision in favor
of the successful party, it must nevertheless be presumed that such issue had actually been
found, by the trial court, in favor of the successful party. For the general rule in this regard see
2 Ency. of Pl. & Pr. 432-433.
See, also, More v. Lott, 13 Nev. 376, 380; Champion v. Sessions, 2 Nev. 273.
II. It is not suggested that the said rules formerly observed by this court were not proper
under the act of 1869indeed, as indicated above, they are the well-established rules
generally observed in other jurisdictions where acts similar to that of 1869 are still in force,
and are in accord with the presumption that judicial tribunals act according to the law, and
that, therefore, every fact essential to the regularity of proceedings below may be presumed to
have been regularly shown, unless the record shows error, and shows such error affirmatively.
The said rules have here been reviewed merely for the purpose of emphasizing the changes
therein brought about by the amendment of 1893. The act of 1893 (Comp. Laws, 3292)
amended the act of 1869 by omitting the words the statement shall specify the particulars in
which such evidence is alleged to be insufficient, and by adding the provisions following: 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. 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 should be granted, or,
upon appeal, the case shall be reversed without regard to whether there are express
findings of fact 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."
case shall be reversed without regard to whether there are express findings of fact 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. The
change here made in the previously existing law is radical, but also it is very clearly
expressed. The point to which the attention of this court is particularly directed is the change
as to the duties of this court upon appeal from an order denying a motion for a new trial,
when such motion is based on a point as to the insufficiency of the evidence.
III. By the amendment of 1893 the trial court is expressly directed to consider the
evidence, taken altogether, and if, taken altogether, such evidence be insufficient, then the
trial court shall grant a new trial, otherwise the case shall be reversed by the appellate court;
that is, upon appeal, the case shall be reversed unless it appears that the evidence, taken
altogether, does not support the verdict, or other decision. The necessary implication, in fact
the expressed direction, contained in the amendment of 1893, is that the appellate court shall
weigh all the evidence upon an appeal from an order denying a new trial, for the reversal of
the case by the appellate court is made the alternative of the granting of a new trial by the trial
court, in any case where it appears that the evidence, taken altogether, is insufficient to
support the verdict, or other decision. That the intendment of the amendment of 1893 is that
the appellate court shall consider and weigh all the evidence, is further and conclusively
shown in that the said amendment provides that upon appeal this court shall no longer
apply certain of the presumptions which, under the act of 1869, used to operate in favor of the
regularity of the proceedings below, for it is expressly enacted that this court shall not have
regard as to whether or not there are express findings upon all the issues; that is, the fact
that there is no finding upon a material issue no longer raises a presumption that such issue
was duly found for the successful party below. Again, in contradistinction to alleged errors of
law, which, under the new law, must still be particularly specified, or else be disregarded, it is
enacted that erroneous findings of fact need not be expressly specified in the statement,
but, whether so specified or not, are to be considered by this court.
erroneous findings of fact need not be expressly specified in the statement, but, whether so
specified or not, are to be considered by this court.
Arguments might be multiplied to show the intendment of the amendment of 1893 to be
that this court, upon appeal from an order denying a new trial, shall weigh all the evidence,
but it would seem sufficient, in itself, merely to invoke the well-established rules that, when
the wording of a statute is changed, some change in the operation of the statute must be
presumed to have been intended (26 Am. & Eng. Ency. 625, 649), and that, in interpreting
statutes, courts of law must seek to give meaning and effect to every word; no matter may be
excluded, as surplusage, to which any reasonable meaning can be attached; a construction
which would leave without effect any part of the language used in the statute must be rejected
if any interpretation of such language can be found which will give it effect. (State v.
Parkinson, 5 Nev. 19; Dulton v. Shelton, 3 Cal. 206; 26 Am. & Eng. Ency. 618, 619.) On
examination of the amendment of 1893, in the light of these rules of interpretation, it appears
that the express provision of the amendment to the effect that the consideration of evidence
shall be of the evidence taken altogether would be mere surplusage and of no effect unless
made applicable to the consideration of the evidence by the appellate court, for, as pointed
out above, it is the duty of the trial court to weigh the evidence taken altogether, even in the
absence of express legislation to that effect. (14 Ency. of Pl. & Pr. 769: Duties and Functions
of Trial Court as to Weight of Evidence, and cases cited under that heading.)
In Watt v. N. C. R. R. Co., 23 Nev. 171, 172, it was said: The duty of the supreme court to
look into the evidence and grant a new trial in cases where it appears that the evidence taken
altogether does not support the verdict or decision or judgment of the court,' is made clear by
Stats. 1893, p. 88, as authoritatively construed in Beck v. Thompson, 22 Nev. 121. In that case
the court, while recognizing the rule applicable in case of conflict of evidence as given above,
said: As already remarked, this statute (1893) 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.
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 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 a
case where substantial justice has been done. * * * Where there is a substantial conflict in the
testimony, the appellate court should undoubtedly not substitute its judgment for that of the
trial court, and should only interfere where, upon all the evidence, it is clear that a wrong
conclusion has been reached.'
IV. Not satisfied even with the sweeping changes wrought, by the amendment of 1893, in
the law regulating the consideration of evidence by the appellate court, the legislature of this
state, during its recently adjourned session, still further amended the act of 1869 by reenacting
the amendment of 1893, and by adding thereto the still more specific direction that the
appellate court shall reverse the case when it appears that the evidence taken altogether,
does not, by a fair preponderance, support the verdict or other decision below. (Stats.
1905, chap. 21.)
Regard being had to the above-mentioned rules of interpretation, it is submitted that this
amendment of 1905 has cleared the path of the appellate court of the last obstacle standing in
the way of its consideration of cases wholly upon their merits. The long-established rule that
this court will not disturb verdicts, or other decisions below, when there is a substantial
conflict in the evidence, is at last abrogated. The express direction that this court is to reverse
any finding which does not appear to be supported by a fair preponderance of the evidence
must mean that, when there are substantial or other conflicts in the evidence, the conflicting
parts of such evidence are to be weighed, the one against the other, and that a decision is to be
made in accordance with that part of the conflicting evidence which is the stronger.
This is the meaning of the amendment of 1905, or the said amendment means nothing.
V. It is in accordance with the provisions of this last amendment that this court is called
upon to determine the questions here presented.
Statutes which are designed to change the mode of judicial procedure, where such change
relates to the method of enforcing a right and does not affect the right itself, are construed to
apply to causes of action which accrued before enactment as well as to those to accrue
thereafter. And such statutes are generally held to apply also to actions pending at the time of
enactment, in the absence of a saving clause. (26 Am. & Eng. Ency. 695.)
The legislature can change a rule of practice making the change applicable to all cases
brought before or after the passage of the act (citing cases). And where there is no saving
clause as to existing legislation in a repealing act which provides a new procedure, all rights
of action will be enforced under the new procedure, without regard to whether suit had been
instituted or not (citing cases). (6 Am. & Eng. Ency. 950, note 2.) There is no vested right
in a rule of evidence, and, as such rules affect only the remedy, it is within the constitutional
power of the legislature to modify them. (Id. 950.) For other authorities see another brief
filed herewith.
VI. A fair preponderance of the evidence, taken altogether, does not justify the verdict, for
a fair preponderance thereof does not establish the contention of the plaintiff as to the mental
anguish suffered by the plaintiff.
It is not suggested that, in cases based on physical injuries, it is necessary to establish
mental anguish, or mental suffering, by evidence specifically directed to that end; on the
contrary, it is conceded that, where severe physical injury is proved, mental suffering may be
regarded as inseparably connected therewith, and that juries may presume or infer mental
suffering from severe physical injury, without direct proof that such suffering was undergone.
(Hale on Damages, note on p. 95; 8 Am. & Eng. Ency. 659, note 2). But since evidence
affirmatively to establish mental suffering, even though unnecessary, may properly be
adduced {Telegraph Co. v.
though unnecessary, may properly be adduced (Telegraph Co. v. Adams, 75 Tex. 531), it
seems equally clear that the presumption of mental suffering resulting from physical injury
may properly be overcome by positive evidence to the contrary. It is confidently asserted,
furthermore, that the evidence positively establishes the fact that the plaintiff in this case
suffered no mental suffering. Mental suffering, thought it may be presumed from physical
suffering, is, of course, to be distinguished therefrom. If, for example, a man is thrown from a
cart, and his arm is thereby permanently injured, the fright which he underwent at the time of
the accident, as well as the pain of the thought that he has been crippled or disfigured for life,
is quite distinct from the physical pain induced by the injury itself.
Even the primary, or basic, question as to whether or not mental suffering, in actions based
on physical injuries, should be taken into consideration, under any circumstances whatever, is
one upon which the courts of the various states have split (Hale on Damages, 92-93). In most
of the states, however, it has been established that damages for mental suffering may be
assessed in actions based on injuries to the person. In some of the states in which this view is
held the damages for mental suffering have been restricted to the fright undergone by the
complainant at the time of the occurrence of the injury.
Where damages have been allowed for mental pain as an element of damage distinct from
bodily suffering, it will be found that it was for mental agony at the time of the accident.
(Johnson v. Wells, Fargo & Co., 6 Nev. 236, and see cases cited on p. 231.)
In other states the doctrine of damages for mental suffering, in actions based on physical
injuries, has been extended to include suffering occasioned by the thought of permanent
injury, where the injury is actually permanent (8 Am. & Eng. Ency. 660, 664.)
Now, in the case in hand, it is submitted that, even under the rules obtaining in those
jurisdictions which are most liberal in allowing compensatory damages for mental suffering
in actions based on physical injuries, the testimony not only fails to show that this plaintiff
underwent any mental suffering, but even positively established that he underwent no
mental suffering.
fails to show that this plaintiff underwent any mental suffering, but even positively
established that he underwent no mental suffering.
The only testimony to be considered with a view to determining whether or not the
plaintiff underwent any mental suffering is to the effect:
(a) That the suddenness with which the plaintiff was thrown from his cart, at the time of
the occurrence of the injury, was such that there was no time to experience fright, and that he
did not, in fact, experience any fright at that time.
The plaintiff's own testimony in this regard is as follows: Drove right through the
whirlwind. Q. Now, what is the next thing that you remember after that? A. Well, that is
about the last thing that I remember. Well, after I got about a hundred yards from it (the
railroad crossing); I guess that is about the last thing that I know of. I do not recollect of being
thrown out of the cart at all. Certainly there is no evidence here to show such fright,
apprehension, or terror and alarm at the prospect of the threatened danger as has been held, in
some jurisdictions, to form a basis for damages for mental suffering. (8 Am. & Eng. Ency.
666.)
(b) That the plaintiff did not suffer great physical pain, and therefore, even if mental
suffering be indeed a necessary incident to physical suffering, that mental suffering may not
be presumed. I wasn't in much pain, said the plaintiff; and his nurse, Mrs. Wentworth,
testified to the same effect: He suffered very little, or complained of suffering very little, for
he was in a dazed condition.
(c) That the plaintiff did not suffer mental anguish based on the permanency of his injury,
for he said: I thought I was going to get well pretty soon. Well, it (his arm) seemed to
improve a while, and the last month or two it don't seem to improve at all any more. If it is
warm, why it feels better. If it is cold, why it is dumbnumbcan't use it.
Inasmuch, therefore, as the evidence affirmatively shows that the plaintiff underwent no
such mental suffering as is taken cognizance of in law, it is submitted that this plaintiff is
entitled to no damages whatever for mental suffering.
At this point it is desired to call the attention of the court to a matter which, it is submitted,
is unanswerable to show that a new trial should be granted on the ground of excessive and
improperly found damages. The said matter is one purely of mathematical calculation. The
total amount in which the complaint demands for physical injuries is $5,000. The amount of
the verdict is $6,000. The amount in which damages are demanded for medical attendance is
$89.50. Thus, if it be held that the jury contemplated granting the total amount of damages
demanded for physical injuries, and also the total amount demanded for medical attendance,
there would still remain a surplus of $910.50, which amount, at least, must necessarily,
therefore, have been granted under the plaintiff's demand for damages for acute and
long-continued mental anguish and physical suffering.
VII. But not only is it shown on the face of the complaint itself that the verdict is
excessive, but, on the same evidence, it is shown that the verdict is contrary to law, for it
necessarily appears therefrom that at least $910.50 was allowed as damages for mental
suffering separate and distinct from bodily suffering.
In this connection it is important to bear in mind the fact that this court recognizes the
well-established distinction between damages for mental suffering in actions based upon
physical injuries, and damages for mental suffering in actions based upon such torts as
assault, false imprisonment, slander, libel, breach of promise, failure to deliver telegrams, and
the like, where injury to the feelings, as distinguished from injuries to the body, is the real or
main injury complained of.
In the case of Johnson v. Wells, Fargo & Co., 6 Nev. 224, it was definitely established, as
the rule to obtain in this jurisdiction, that, in actions for physical injuries, mental suffering
may never be assessed as an element of damage separate and distinct from bodily suffering.
In Barnes v. Western Union Tel. Co., 27 Nev. 438, it was as definitely established, as the rule
to obtain in this jurisdiction, that, in actions for failure to deliver telegrams, and the like,
where the main injury caused by the tort complained of is injury to the feelings, mental
suffering may be assessed as an element of damage distinct from the pecuniary loss
occasioned by the wrong.
age distinct from the pecuniary loss occasioned by the wrong. That the court in the Barnes
case did not mean to overrule the Johnson case is clearly shown in that the latter case was not
even mentioned in the former. The distinction thus established in this jurisdiction between
actions based on injuries to the body and those based on injuries to the feelings is one very
generally recognized by the authorities. (Young v. Western Union Tel. Co., 9 L. R. A. 669.)
VIII. After an exhaustive discussion of the authorities bearing on the question of damages
for mental suffering in actions based upon physical injuries, the court in the Johnson case, as
stated above, established the rule to govern in this state to be that mental suffering in such
cases may not be considered as a distinct element of damages. In that case the judgment
below was reversed by this court on the ground that, in instructing the jurymen as to what
matters they might consider in their assessment of damages, the trial judge erred in directing
them to take into consideration the plaintiff's pain of mind. The holding in that case, in this
regard, is, therefore, definite, and is controlling in the case in hand. In Johnson v. Wells,
Fargo & Co., however, it was said: The law is well settled that in an action like the present a
plaintiff may recover for bodily suffering; though, were it a new question, it may well be
doubted whether any satisfactory reason could be given for the rule.
If it be true that bodily suffering may not be considered as a separate and distinct element
of damage, then that part of the complaint which asks the court so to consider it is as void as
that part which asks the court to consider mental suffering as a distinct element of damage,
and the total amount of the plaintiff's demand for damages, apart from disbursements for
medical attendance, must be held to have been only $5,000. This question, however, is here
immaterial, for the reason that, as pointed out above, the only evidence on the subject is
wholly to the effect that the plaintiff did not suffer physical agony. The evidence being as it
is, it is unnecessary even to invoke the rule stated by the statutes of 1893 and 1905, discussed
above, to the effect that, upon appeal, this court may not presume an issue essential to the
plaintiff's recovery to have been found in the plaintiff's favor by the trial court, for, as
already stated, there is evidence directly on this point, and said evidence is not even
conflicting, but is wholly to the effect that the plaintiff's injuries did not cause him
physical suffering.
the plaintiff's recovery to have been found in the plaintiff's favor by the trial court, for, as
already stated, there is evidence directly on this point, and said evidence is not even
conflicting, but is wholly to the effect that the plaintiff's injuries did not cause him physical
suffering. Inasmuch, therefore, as the plaintiff was not entitled to damages for physical
suffering, the conclusion is irresistible that at least $910.50 was awarded by the jury as
damages for mental suffering.
IX. As to the comparison of the mental condition of the plaintiff before the accident with
his mental condition afterward, the evidence is conflicting. The witness Kinney testified that,
after the accident, the plaintiff was a very different man; that he acted like a man who was
demented, losing his mind. It was shown, however, that this witness had not seen much of
him for the three years preceding the trial, and had met him during that time only
occasionally; also it was shown that this witness could not say whether or not the plaintiff's
mind had deteriorated prior to the accident. Upon this showing counsel for the defendant
objected to the introduction of the testimony of this witness on the ground that the effect it
might have upon the jury would be in disproportion to its value as evidence, and over this
objection, though without exception taken, this testimony was admitted. The witness
O'Connor testified as follows: Well, I consider that ever since he has been a different man to
what he was before. I never heard his memory or mind in question; never heard of its being
noticed as being any different from most men. In fact, I always thought he was a little sharper
than I was. I do not know whether he was or not, but I always thought he was. The plaintiff's
brother testified that, prior to the accident: As far as I noticed him he seemed to be all right
enough. Of course, he was not probably as quick mentally as when he was younger, but then
he was all right; and that, since the accident, he has been pretty weak-minded; his memory
was not good at all. Can't remember anything scarcely any length of time. The testimony of
this witness on cross-examination has already been considered. The witness Little testified
that he is not the man he was before the accident; that he don't seem to recollect anything
when you are talking"; that before the accident "I never noticed anything wrong with
him," but that "he is getting older all the time," and that he couldn't say when he first
noticed any difference in the plaintiff's mental condition; that he had not noticed the
change at "any particular time."
when you are talking; that before the accident I never noticed anything wrong with him,
but that he is getting older all the time, and that he couldn't say when he first noticed any
difference in the plaintiff's mental condition; that he had not noticed the change at any
particular time.
It is noticeable that the foregoing is the only testimony, except Pollock's, elicited by the
plaintiff's attorney on questions as to a comparison of the mental condition of the plaintiff
some considerable time before the accident with his mental condition a reasonable time after
the accident.
In sharp contrast to the foregoing is the testimony of Pollock, a witness called by the
plaintiff. It was shown that Pollock had known the plaintiff intimately, both before and after
the accident. On his direct examination by counsel for the plaintiff, the witness Pollock
testified as follows: Up to the time of the accident, with reference to his memory and his
conduct of business affairs, the mental condition of the plaintiff seemed to be all right, but
that he could not say as to whether his memory was as good immediately prior to the accident
as it had been in former years; that the plaintiff's memory might not have been as good in
1902, at the time of the filing of his petition in bankruptcy, as it had been previously; that
since the accident his memory seems to be rather poor, but the coherency of his
conversation was all right after the accident.
X. It is submitted that the mental wanderings of the plaintiff while he was in the
hospitalthat is, before he was discharged from the hospital by his attending physician (a
period of a little less than two weeks)is comparatively unimportant. Considerable
testimony, however, was introduced to show that, during the said two weeks, the plaintiff
wandered in his mind, and was quite incoherent in his talk. Yet even on this point there is a
strong conflict in the testimony, for his attending physician, Dr. Gibson, called by the
defendant, testified as follows: When the plaintiff was taken to the hospital, immediately after
the accident, I talked with him; his conversation was coherent and responsive to the
questions asked; he was not semi-conscious because he answered all questions intelligently
and slowly, nor did it irritate him to ask him questions; the next morning his talk was
rational."
nor did it irritate him to ask him questions; the next morning his talk was rational.
Severity of the plaintiff's physical injuries: The evidence shows that the plaintiff suffered
two physical injuries: (a) a blow on the head, and (b) an injury to the right arm. Counsel for
the plaintiff sought to show that the blow on the head was sufficient to derange the plaintiff's
mind, and that the blow on the arm was sufficient permanently to cripple it. In this connection
it is suggested that any jar to the head, however slight, produces what is technically known to
the medical profession as a concussion of the brain.
(b) The injury to the arm: The preponderance of the evidence on this point is undoubtedly
to the effect that, in being thrown from his cart, the plaintiff suffered an injury to his right
arm, which injury produced a slightly atrophied, or wasted, condition of the said arm not to be
wholly accounted for by the atrophy of old age. That the said slightly atrophied condition of
the right arm, however, does not cause the plaintiff physical pain, and is not, in itself, very
serious to a man of the plaintiff's age, clearly appears.
(c) In general: There is a good deal of evidence to the effect that, during the two weeks
that the plaintiff was under medical care, he was somewhat flighty and deranged in mind. It
further appears, however, according to Mrs. Wentworth's testimony, that he was not even
confined to his bed: This man was able to walk about all the while. Physically he seemed
well, except that arm. He would get up and walk about and look about. He was not confined
to his bed. We could not keep him in bed. That was one trouble. That, within less than three
days after the plaintiff had been taken to Mrs. Wentworth's private hospital, Mrs. Wentworth
moved all her patients to the general hospital, and at that time, while the other patients were
transferred in hacks and busses, etc., this plaintiff was well enough to be driven to the general
hospital by Mrs. Wentworth herself in a buggy, and to hold a conversation with Mrs.
Wentworth on the way, and that, before the expiration of a full fortnight, Dr. Gibson having
visited him only six times, he was discharged by Dr. Gibson because he did not need further
medical attendance.
All the evidence on the subject is to the effect that the plaintiff had always been a slight,
spare man. The witness O'Connor testified: Anybody that knew Powell fifteen, or even
twenty, years ago would know him now.
It is submitted that, considered in the light of all the corroborative evidence on this point,
the plaintiff's own admission that his physical injuries did not amount to much is of some
weight. Do you remember whether or not any portions of your body were injured? he was
asked by his own counsel. Oh, some, he replied, but then not materially. In fact, so far as
that gotof course, they was hurt some, but not very materially.
XI. Upon the showing made above it is submitted that the verdict for $6,000 was so
greatly in excess of proper compensatory damages for injuries, such as the preponderance of
the evidence shows to have been suffered by the plaintiff, as clearly to establish that the nine
jurors who made this finding did so under the influence of passion or prejudice.
In this connection is expressly applicable the well-established rule that, in assessing
compensatory damages for permanent physical injuries, greater compensation may be allowed
to a young, vigorous man, with a long life and earning capacity before him, than to an aged
man who has already outlasted his physical and mental vigor, and whose life is drawing to a
close. (13 Cyc. 142.) It is submitted that the jury did not consider, in the cold light of reason,
what effect the age of the plaintiff should have upon its award of compensatory damages, and
did not find its verdict upon a calm, unimpassioned consideration of the testimony, but that,
on the contrary, the age of the plaintiff created a prejudice in his favor, and inflamed the
minds of the jurors with an active sympathy which should not have been expressed in their
findings.
XII. Nature of the sound produced by the whistle: It is undoubtedly the law, as indicated
in defendant's instructions and in the opinion rendered by this court on the first hearing of this
appeal, that, provided the steam whistle on the defendant's shops was not constructed or used,
so far as concerns the rights of others, in an unreasonable or negligent manner, the
defendant's right to maintain said steam whistle upon its said shops must be conceded.
the defendant's right to maintain said steam whistle upon its said shops must be conceded.
And further, in accordance with the well-worn rule that he who alleges negligence must prove
negligence, no presumption of negligence arises upon proof of the bald fact that the blowing
of the defendant's whistle, by causing plaintiff's horse to run away, caused injury to the
plaintiff. An issue essential to the plaintiff's recovery of damages in this case, then, is
affirmative proof that the plaintiff's runaway, caused by the blowing of the defendant's
whistle, was due to the fact that, on the particular occasion in question, the said whistle was
blown negligently. Now, under the statutory rule discussed at the beginning of this argument
this court may not presume this essential issue to have been found in favor of the plaintiff by
the trial court, but must weigh the evidence, taken altogether, to ascertain whether or not a
preponderance of the evidence in fact sustains the finding.
The only negligence charged by the plaintiff against the defendant, as causing the runaway,
is that the steam whistle in question was improperly connected with the boiler, wherefore, in
sounding the whistle, clouds of steam were necessarily discharged through the sides of the
building on which the whistle was placed, and also that the said whistle was of excessive,
unusual, and unnecessary shrillness, loudness, harshness, and discordance. It is unnecessary
to consider the first of these charges. It was absolutely disproved. What the plaintiff took to
be leakage from the whistle was in fact a discharge from an exhaust pipe leading under the
north side of the building, and had nothing whatever to do with the whistle. The negligence
charged against the defendant, then, reduces itself to this, that, on the particular occasion in
question, the said whistle was blown with excessive and unnecessary shrillness, loudness,
harshness, and discordance, which resolves itself simply into a question as to the nature of
the sound of the said whistle.
The testimony on the question is as follows: The witness Frandsen testified that this
whistle was louder than any other whistle he had ever heard, a statement that, in the light of
the evidence that this was an ordinary railroad whistle, and in the light of common sense,
was, on its face, so grossly exaggerated as to show bias on the part of the witness.
in the light of common sense, was, on its face, so grossly exaggerated as to show bias on the
part of the witness. This same witness testified that the sound of the whistle was very loud
and penetrating, so much so that he himself had often been startled by it, but admitted, on
cross-examination, that this may have been because he lived within little more than 160 feet
of it. The witness Fogg testified that there wasn't any whistle [in his neighborhood] that was
so loud and shrill and rasping as this one was. Consequently when it started all conversation
ceased that was going on around us. We could not hear one another without speaking in a
very loud tone. We generally waited until the whistle stopped. That is the only explanation I
can give of it. It is submitted that this is not very strong evidence to show the whistle to have
had an unusual sound, especially in view of his other testimony to the effect that he lived
within about 160 feet of this whistle, much nearer than to other whistles in his neighborhood,
and that the reason that conversation ceased when the whistle began was because the witness
thought it is better to stop than to have to talk in a way-out tone of voice, and not know
whether you would be understood. Moreover, there is affirmative evidence by this witness
that he did not consider the quality of the tone of this whistle to be shrill, for, in describing
the variations in tone produced by various whistles, he testified that some have a shrill sound
and some have a roar, and that the sound produced by this whistle was a roar. The witness
Robert Smith testified, in response to the leading question as to how the whistle sounded
with reference to shrillness, or anything of that kind, that it sounded pretty loud, shrill,
something like a ferry-boat whistle. It is suggested that few whistles are so variously toned
as ferry-boat whistles, being purposely given readily distinguishable tones, so that in fogs the
boats to which they are attached may be identified by the navigators of other boats.
XIII. Frightening of the plaintiff's horse: In the absence of affirmative evidence proving
negligence on the part of the defendant, the question as to whether or not the plaintiff's horse
was actually frightened by the blowing of the defendant's whistle is, as has already been
argued, immaterial.
ant's whistle is, as has already been argued, immaterial. It appears, however, that the evidence
is not clear even as to this secondary question.
The witness Robert Smith, who was driving with the plaintiff at the time of the accident,
testified the horse was all right until we got to where the whistle blowed. When the whistle
blowed, she wheeled around short, and that is where he got thrown out. Later this witness
testified that the horse swung, and threw the plaintiff out of the cart just exactly when it
commenced to whistle and the steam came out. This would seem to argue that the few
seconds which must necessarily elapse before a horse gets completely out of his driver's
control must have elapsed before the whistle began to blow. Indeed, this witness laid less
stress on the theory that the mare was frightened by the sound of the whistle than on the
theory that she was frightened by the sight of the steam, which, he testified, blew across the
road, the latter theory being the more plausible in view of the fact, to be discussed later, that
the mare was apt to shy at a bit of paper blown across the road. Thus, he said When we got
about 50 or 60 yards from the railroad crossing the whistle blowed and the steam came out,
blowed half across the road; the steam was right at the west end of the power house. He
testified further, under questions upon cross-examination, that the steam came from the west
end of the building, not more than three feet from the ground, turned the southwest corner of
the building, and went half way across the street. Now, in the first place, it may be pointed
out that the complaint alleges no negligence against the defendant in that it maintained a
steam exhaust pipe, but only that steam escaped from defective connections in the whistling
apparatus, and therefore that no evidence as to negligence in maintaining a steam exhaust is
competent, and, in the second place, that it is manifestly impossible that the statements made
by this witness as to the steam can be true. The evidence is positive to the effect, as already
discussed, that no steam ever escaped from the whistle connections.
The plaintiff testified that he drove right through the whirlwind."
whirlwind. In this the plaintiff was corroborated by no other witness, but was contradicted
both by Robert Smith, who testified that Mr. Powell pulled the horse around; he did not
drive through the whirlwind; and by the witness Hutchinson, who testified that the cart
turned out. The plaintiff did not remember having heard the whistle after he passed the
whirlwind, and the witness Hutchinson testified as follows: Q. Did you hear any sounds
about that time, between the time you saw the horse pass the house going east and then when
next you saw it running back? A. No, sir. It was from his house, which was just about
opposite the whistle, that this witness saw plaintiff's horse pass and repass. The whistle in
question had been blown four times a day for about three years before the accident. The
plaintiff frequently traveled Fourth Street to get to his home at Glendale. There was no
testimony offered to show that this horse had ever before been frightened by this whistle.
Upon this showing it is submitted not only that the preponderance of the evidence fails to
show any negligence on the part of the defendant, but even that it is not clear that the
plaintiff's horse was frightened by the blowing of the defendant's whistle, wherefore the
verdict is contrary to law.
XIV. There were errors in law occurring at the trial, which errors were excepted to by
the defendant. The errors in law occurring at the trial, to which the attention of this court is
especially directed, were (a) the admission of the testimony of the witness Eason, and (b) the
giving of plaintiff's instruction No. 10.
(a) The admission of the testimony of the witness Eason: It must be conceded that there is
much authority to the contrary of the general rule that admission of evidence of res inter alios
acta is improper. Some of the reasons upon which the said general rule is based are well
stated in Phillips v. Willow, 70 Wis. 6, 5 Am. St. Rep. 114. It was there said: To hold such
testimony admissible would be to open the door to numerous and perplexing side issues,
which is always to be avoided. Issues would be made not raised by the pleadings, and which
presumably neither party would be prepared to try. It must be admitted that the cases are not
in accord upon this question.
upon this question. It is apparent that if this testimony was relevant it would also have been
relevant to show that hundreds had passed over this highway in safety with carriages,
notwithstanding the alleged defect. So, issue after issue would be raised, and facts collateral
to the issue made by the pleadings would multiply; the main issue forming new ones, and the
suit itself expanding like the banyan tree of India, whose branches drop shoots to the ground,
which take root and form new stocks, till the tree itself covers great space by its
circumference. We think it a much safer rule to confine the evidence to the issue or real fact
put in controversy by the pleadings.
As stated above, however, it is conceded that there is much authority to the contrary of the
res inter alios acta rule, and that, in actions for damages for injuries resulting from
negligence, evidence of other injuries resulting from the same cause has often, by eminent
authorities, been held to be admissible. That such evidence is essentially dangerous as tending
to divert the attention of the jury from the issues raised by the pleadings, and that, therefore,
such evidence should be admitted, if at all, only with great caution, has already been argued
upon the first hearing of this appeal. It is here again contended that, though evidence of res
inter alios acta may be proper in some cases, it should never be admitted in cases concerning
the frightening of horses. It is, however, earnestly desired that the court should not
misunderstand the defendant's main contention upon this rehearing to be against the propriety
of the res inter alios acta rule as applied to this case. On the contrary it may be conceded, for
purposes of argument only, that if a proper foundation therefor had first been laid, the
admission of the testimony of the witness Eason would not have been error, yet, even
conceding this, it is confidently asserted that the said testimony was not properly admitted
because the necessary foundation therefor had not been laid.
The rule admitting res inter alios acta evidence is modified by another rule, namely, that
even though evidence be somewhat relevant to the matter in issue, it is nevertheless
inadmissible if it be of such a nature that its probable effect upon the jury will be in
disproportion to its value as evidence, and in this connection it is submitted that in all the
best considered cases in which res inter alios acta evidence has been admitted convincing
proof has been required, before the admission of the evidence, that the conditions under
which the prior happening occurred were substantially the same as the condition under
which the happening in question occurred, "but to render such evidence competent, it
must appear, or at least the evidence must necessarily tend to show, that the instrument
or agency whose condition is in issue was in substantially the same condition at such
times as it was at the time when the accident complained of occurred."
upon the jury will be in disproportion to its value as evidence, and in this connection it is
submitted that in all the best considered cases in which res inter alios acta evidence has been
admitted convincing proof has been required, before the admission of the evidence, that the
conditions under which the prior happening occurred were substantially the same as the
condition under which the happening in question occurred, but to render such evidence
competent, it must appear, or at least the evidence must necessarily tend to show, that the
instrument or agency whose condition is in issue was in substantially the same condition at
such times as it was at the time when the accident complained of occurred. (Morse v. Minn.
Ry. Co., 30 Minn. 465, 16 N. W. 358, 361.)
Now, at the time when the witness Eason was permitted to testify, not only was there no
evidence before the court to show that the sound of the whistle was the same at the time of
Eason's runaway as it was at the time of the plaintiff's runaway, but, on the contrary, the only
evidence before the court in this regard was to the effect that this whistle did not have the
same sound all the time. In this connection it is to be borne in mind that the nature of the
sound of the whistle was the main, in fact virtually the only, ground on which the plaintiff
sought to establish negligence against the defendant; that the witness Fogg had testified that
sometimes this whistle was blown without much steama point to be considered in the
light of the later contention of counsel for the plaintiff that it is well known that the tones of
whistles are moderated and regulated and varied by the pressure of steam; and that the
witness Frandsen had testified that sometimes they would change the whistle, give it a
different sound. From this it clearly appears that a foundation for the admission of Eason's
testimony had not been laidrather that a foundation had been laid for its exclusion. In
admitting Eason's testimony it is believed that the trial court had under consideration the case
of Hill v. Portland R. Co., 55 Me. 438, 92 Am. Dec. 601. In that case testimony was admitted
to show that horses other than the plaintiff's had been frightened by a certain whistle. It
cannot be presumed, however, that the evidence before the trial court in that case was to
the effect that the particular whistle in question sounded differently at different times.
sumed, however, that the evidence before the trial court in that case was to the effect that the
particular whistle in question sounded differently at different times.
The tendency of the trial court to admit evidence of this character, upon improper
foundation, is illustrated in the admission of the testimony of the witness Lucas. This witness
had testified that his horse was frightened by any and all kinds of whistles, and therefore
proof that the said horse had been frightened by the defendant's whistle was not in any way
competent to show the defendant's whistle to have been of a negligently dangerous character,
yet Mr. Lucas was permitted to testify that his horse had once run away upon hearing the
defendant's whistle. It is true, upon proof that another whistle had been sounded at the same
time, and that the witness could not tell which whistle it was that had frightened his horse,
that the said testimony was stricken out. It must, however, have had an undue effect upon the
jury.
(b) Plaintiff's Instruction No. 10: This instruction, it is submitted, almost amounted to a
direction of a verdict for the plaintiff; it fairly bristles with implied findings of fact, the
finding of which was strictly within the province of the jury, not of the court. Thus, for
example, the jury was instructed that one of the purposes for which locomotive whistles are
used is, specifically, to frighten horses. The usefulness of the (locomotive) whistle, it was
stated, depends upon the alarming and frightening character of the noise it makes, and one of
the purposes for which it is used is to frighten and alarm. Now, in view of the fact that the
whistle in question had been shown to be an ordinary locomotive whistle, it is clear that this
instruction amounted to a statement that the whistle in question was of a frightening and
alarming character. The very point in issuethe only point on which the plaintiff could hope
to show negligence on the part of the defendantwas as to whether or not the sound of this
whistle was such as to frighten and alarm.
It may be pointed out that no testimony was offered on the trial, and there was no evidence
in the case of any kind, to show that locomotive whistles are necessarily of an alarming and
frightening character," yet this vital point was given to the jury as a rule of law by which
it was to be bound.
ing and frightening character, yet this vital point was given to the jury as a rule of law by
which it was to be bound. It is hard to conceive that courts of law could come to recognize a
legal presumption to the effect that locomotive whistles are specially designed to frighten
and alarm. Indeed, in Hill v. Portland R. Co., supra, the court said: The whistle seems
particularly adapted to give notice of the approach of a train to a crossing of a highway. The
object, then, is to warn all persons of such approach in season to enable them to stop at a safe
distance, and thus avoid the risk of alarm to horses.
Let it be supposed, for example, that the accident sued upon in the case in hand had been
occasioned by the blowing of a whistle on one of the defendant's locomotives. Can it be
supposed, in such event, that no proof would have been required to show that the sound
produced by such whistle was in fact of a nature to frighten a gentle horse? Can it be
supposed that, in the face of evidence introduced to show a contrary fact, the court might
have instructed the jury that a legal presumption operated to establish that the sound of such
whistle, since the whistle was on a locomotive, was in fact of a nature to frighten and alarm
the horse? These questions are answered by the case of Hill v. Portland R. Co., supra. In that
case a horse had been frightened by a locomotive whistle sounded on a locomotive which was
standing at a crossing. The whistle was sounded as a signal that the train was about to start.
The court said: It would seem that there may be a decided difference in whistles' in their
suddenness, loudness, and brevity, and consequently in their liability to alarm horses. (92
Am. Dec. 603.) It was competent to show the jury * * * the characteristics of the sound
emitted, and its effects on horses of ordinary steadiness. Specific proof, therefore, was
necessary to show that the nature of the sound produced by the particular locomotive whistle
concerned in that case was such as would frighten an ordinarily gentle horse. Specific proof
of said fact would hardly have been necessary if a legal presumption had operated to establish
it.
The discussion herein is not made in ignorance of the fact that the language of the
instruction criticized is, in parts, copied verbatim from the opinion of the court in Knight v.
Rubber Co.,
copied verbatim from the opinion of the court in Knight v. Rubber Co., 38 Conn. 438, 9 Am.
Rep. 406, 408. In that case it is stated, as the opinion of the court, that the usefulness of the
locomotive whistle depends upon the alarming and frightening character of the noise it
makes, and one of the purposes for which it is used is to frighten and alarm. * * * But the rule
should be different in respect to whistles used upon factories. It may be pointed out,
however, that the court in that case did not state its opinion in this regard to be one generally
recognized by courts of law. In fact, Knight v. Rubber Co. is an isolated case which cites no
authorities. The opinion is dissented from by one judge, another judge being absent.
Furthermore, the nature of the sound produced by locomotive whistles was not involved in
the Knight case, the remarks of the court thereon being mere expressions of opinion. It need
hardly be pointed out that such ex cathedra remarks by one appellate court, in reviewing
testimony, can hardly be construed as establishing presumptions of law, and are remarks not
properly to be made by a trial judge to a jury.
After having found a presumption of law to the effect that locomotive whistles are
especially constructed with a view to producing a sound of an alarming and frightening
character, plaintiff's instruction No. 10 goes on to find that stationary whistles are
necessarily of a different construction and of a different character. But, the said instruction
reads, the rule is different in respect to stationary whistles intended for notice only, and that
if used if there is no necessity for constructing or operating them in such a way as to alarm or
frighten any person or animal of ordinary gentleness, any unnecessary alarming or frightening
use of them, if productive of injury to another, is wrongful, and the proprietors should be
holden responsible for the injury.
This part of the instruction is objectionable on various grounds. In the first place, it implies
that the law draws a distinction between the unnecessary and negligent use of whistles on
locomotives and the unnecessary and negligent use of whistles on stationary objects; that, in
the latter case, but not in the former, damages may be found. That this is not law hardly
needs to be shown by the citation of some of the many cases in which damages have been
recovered, against railroad companies, for injuries resulting from the frightening of
horses by the unnecessary and negligent blowing of locomotive whistles.
not law hardly needs to be shown by the citation of some of the many cases in which damages
have been recovered, against railroad companies, for injuries resulting from the frightening of
horses by the unnecessary and negligent blowing of locomotive whistles. (Hill v. Portland R.
Co., supra; R. R. v. Box (Tex.) 17 S. W. 375; Weil v. R. R. (Ark) 9 Am. & Eng. R. R. Cas.
721: The sound of the second whistle was peculiar and extraordinary; Ochiltree v. R. R.
(Iowa) 9 Am. & Eng. R. R. Cas. 30: It was because of these short, sharp blasts from the
whistle that the team was frightened; Everett v. R. R. (N. C.) 8 Am. & Eng. R. R. Cas. 523;
R. R. v. Barnett, 59 Pa. St. 259; Bittle v. R. R. (N. J.) 23 L. R. A. 283: Never heard a shriller
whistle. It was a great deal louder than the usual whistle. The legal right to blow the whistle
may be conceded, yet it does not by any means follow that this right could be exercised in a
negligent manner. The question here is whether this whistle was so negligently blown as to
have caused injury to the plaintiff, citing many cases; Mitchell v. R. R. (Tenn.) 40 L. R. A.
426.) And see, for many other cases, note on Frightening Horses, in 5 Am. & Eng. R. R.
Cas. 283.
S. Summerfield, for Respondent:
I. Fundamentally a rehearing is what the ordinary signification of the word itself implies.
It is a hearing again of the same questions which were fairly presented upon the original
hearing. Questions which were not raised on the original hearing will not be considered on a
rehearing. (Republic Ins. Co. v. Swigert, 135 Ill. 150; Schafer v. Schafer, 93 Ind. 586; Manor
v. Jay County, 137 Ind. 367; Tubbesing v. Burlington, 68 Iowa, 691; Goodenow v. Litchfield,
59 Iowa, 226; Minneapolis Trust Co. v. Eastman, 47 Minn. 301; Chamberlain v.
Northeastern R. Co., 41 S. C. 399; Mount v. Mitchell, 32 N. Y. 702; Kellogg v. Cochran, 87
Cal. 192; San Francisco v. Pacific Bank, 89 Cal. 223; Marine Bank v. National Bank, 59 N.
Y. 73; Giant Powder Co. v. California Powder Co., 5 Fed. 197; Railway Mfg. Co. v. North
Hudson R. Co., 26 Fed. 411.) The fact that the last two cases cited involved rehearings in
equity cases in nowise affects the general principle in view.
eral principle in view. No suggestion whatever was made at the original hearing that it was
the duty of this court to weigh the evidence in the case with the object of determining the
preponderance thereof. It was urged that the evidence taken altogether was not sufficient to
support the verdict and judgment, but that contention was necessarily subordinate to the
well-established rules governing the consideration of evidence in this court at the time the
decision was rendered.
II. The amendment to the practice act approved February 25, 1905, besides being
judicially iconoclastic and inherently vicious, is unconstitutional, null, and void. It is violative
of the requirements of section 17 of article IV of the constitution of the State of Nevada. The
provision of the organic law of this state, above cited, requires that 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. The title of the act approved February 25, 1905,
restrictively declares it to be An act amendatory of an act entitled An act to regulate
proceedings in civil cases in the courts of justice of this state, and to repeal all other acts in
relation thereto,' approved March 8, 1869. (Stats. 1905, 33, et seq.) It is convincingly
apparent that the real act to be amended was section 1 of An act to amend an act entitled An
act to regulate proceedings in civil cases in the courts of justice of this state, and to repeal all
other acts in relation thereto,' approved March 8, 1869, approved March 6, 1893. Section
197 of the act of March 8, 1869, the one purporting to be amended by the act of February 25,
1905, was not in existence when the latter act was passed, but had been entirely superseded
by section 1 of the act approved March 6, 1893.
As above noted the title of the act approved February 25, 1905, is restricted to a purported
amendment of the act approved March 8, 1869, and cannot be extended to the amendment of
other sections of other acts. (Ex parte Hewlett, 22 Nev. 333.) It may be contended that a
statute reenacting a former statute, and simply providing that certain sections thereof shall be
amended so as to read as follows, reenacts all contained in the original act, and that there is
no hiatus in the force and effect of the original act and of the amendatory act reenacting
the original act.
no hiatus in the force and effect of the original act and of the amendatory act reenacting the
original act. If such contention is made, it is probably supported by the weight of authority.
The contention, however, if made, fails to sustain appellant's position in this case.
III. Omitting inconsequential verbal changes without legal import or effect, the act of
March 6, 1893, omitted from the act of March 8, 1869, the following words: The statement
shall specify the particulars in which such evidence is alleged to be insufficient, and
superseded the same with the following words: 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. 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, 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. There can be no doubt but that the
broadest possible intendment of the act of March 6, 1893, was to simplify the procedure
relative to the degree of particularity required in assignments of errors based upon the
evidence and to emphasize the duty of the appellate court to reverse judgments where there is
no evidence, taking the evidence altogether, to support the verdict. This, however, was in
nowise suggestive of a duty imposed upon the appellate court to balance the scales and
determine upon which side, in its opinion, the preponderance of evidence prevailed.
There is no avoiding the conclusion that the act of February 25, 1905, in so far as it
interpolated new matter in the practice act, was germane only to the act of March 6, 1893, and
was wholly ungermane to the act approved March 8, 1869.
The form in which amendments, both of the code and of the revised statutes, have
generally been made by declaring that particular sections shall be amended so as to read in a
given way, was adopted for the purpose of adjusting them to the original enactments, so
that when the system should, after repeated amendments, become complete, the
different parts might be put together without further revision, and thus form a perfect
code.
the original enactments, so that when the system should, after repeated amendments, become
complete, the different parts might be put together without further revision, and thus form a
perfect code. The portions of the amended sections which are merely copied without change
are not to be considered as repealed and again enacted, but to have been the law all along; and
the new parts, or the changed portions, are not to be taken to have been the law at any time
prior to the passage of the amended act. (Ely v. Holton, 15 N. Y. 598; C. P. R. R. Co. v.
Shackelford, 63 Cal. 261.)
IV. The act of February 25, 1905, is violative of section 1 of article III and of section 4 of
article VI of the constitution of the State of Nevada. By section 1 of article III of the
constitution of the State of Nevada, the powers of government are divided into the legislative,
the executive, and the judicial branches and no persons charged with the exercise of powers
properly belonging to one of these departments shall exercise any functions appertaining to
either of the others, except as provided in the constitution. Under section 4 of article VI of the
constitution of Nevada it is provided that the supreme court shall have appellate jurisdiction
* * * in all cases at law in which * * * the value of the property in controversy exceeds three
hundred dollars. It will be observed that the jurisdiction of the supreme court in cases of the
character of the one now under consideration by the organic act is made strictly appellate. It
could not have meant that the trial court and the jury were simply referees before whom the
testimony should be taken preliminary to its being reported to the supreme court to weigh the
same, determine its preponderance, and render judgment accordingly. The word appellate had
a well-recognized meaning at the time of the adoption of the constitution, as much so as did
the words the right of trial by jury shall be secured to all and remain inviolate forever meant
a trial by jury of twelve persons, as was declared by this court in State v. McClear, 11 Nev.
39, et seq.
The statute of March 6, 1893, embraced all of the provisions of antecedent laws relating to
the subject of the consideration of evidence by the supreme court and repealed all statutes on
that subject thereby revised without any express provision to that effect.
statutes on that subject thereby revised without any express provision to that effect. (State v.
Rogers, 10 Nev. 322; Thorpe v. Schooling, 7 Nev. 15.) Notwithstanding the fact that the
constitution of the State of Nevada does not expressly inhibit retrospective laws, yet it is
submitted that such laws are disfavored by the courts irrespective of whether such
constitutional inhibition exists or not (Ely v. Holton, 15 N. Y. 595; Satterlee v. Matthewson,
2 Pet. (S. C.) 380; Oriental Bank v. Freese, 18 Me. 109; Wires v. Farr, 25 Vt. 41; Plumb v.
Lawyer, 21 Conn. 351; Garrett v. Beaumont, 24 Miss. 377; Trustees v. McKaughey, 22 Ohio
St. 142; Central Trust Co. v. Sheffield Co., 60 Fed. 16; Patterson v. Philbrook, 9 Mass. 151.)
V. Instruction No. 10 closely follows the decision of the Supreme Court of Connecticut in
Knight v. Goodyear Co., 38 Conn. 442, 9 Am. Rep. 406, which case is closely analogous to
the facts in this case, and if counsel for appellant are able to find any case so nearly
approximating the facts in this case as that last cited, their industry will supply that which
counsel for respondent has been unable to find.
The law does distinguish the necessary nature and construction of a locomotive whistle,
used as such, and a mere stationary whistle. Taking into consideration the danger of operating
trains and locomotives, and of which a whistle is an integral part, it imposes upon the
operators thereof many duties and requirements not at all applicable to the use of whistles
stationary in character and merely intended for notice.
But independent of the custom and the statute we are clearly of the opinion that it is the
duty of a railroad company at all times, when moving its locomotives or trains through the
public streets of a city, to give some signal of their approach. To move its locomotives or cars
through the streets at night, or on dark, stormy, and windy days, without giving any signal,
would be gross negligence. (Solen v. V. & T. R. R. Co., 13 Nev. 122.)
This high measure of duty on the part of the railroad company, the statute, prescribing
notices by sign-boards at road or street crossings, the ringing of the bell or the blowing of the
whistle, has not relaxed in any degree.
ing of the whistle, has not relaxed in any degree. As a rule of duty it stands as stringent and
inflexible, founded in common law and the plainest right, as if there were no such statute.
Compliance with the statute is, of course, one of the circumstances under which they run their
trains; and, incidentally, such compliance may make it consistent with due care and caution to
do what, without using such signals, would, even if there were no such statutes, be
negligence. But the rule stands and the statute stands with it; both must be satisfied. And
hence, it is properly said, the statute does not constitute the sole rule of duty. The common
law still requires the exercise of care and prudence in the running of their ponderous engines
and heavy trains through an inhabited country; and that care and prudence increases in degree
as they enter towns, villages, and cities and cross their thoroughfares. (Grippen v. N. Y. R.
Co., 40 N. Y. 42.)
Appellant apparently rests in the belief that the statutes alone prescribe the degree of care
and precaution required of railroad companies in the mechanism, location, and operation of
their whistles and mechanical contrivances. This is far from the truth for the reason as
indicated in the foregoing citation. The common law in all respects where not inconsistent
with express statutes must be observed by the courts as a rule of decision.
But even if we should concede that the instruction was to some extent inapplicable to the
facts, it would not necessarily follow that the judgment should be reversed; certainly not, if it
is apparent from a consideration of all the instructions that the jury could not have been
misled thereby. (Bunting v. C. P. R. R. Co., 16 Nev. 286.)
In all earnestness it is submitted that neither the law, the facts, nor the ingenuity of counsel
for appellant have disclosed substantial reasons why the verdict of the jury, the judgment of
the court thereon, the order of court denying a new trial, and the original opinion of this court
should be overthrown upon this rehearing.
Cheney & Massey, for Appellant and Petitioner, in reply:
I. There is no merit in the claim of respondent that the statute of 1905, directing the
supreme court to grant a new trial when the evidence fairly preponderates against the
decision or verdict, is unconstitutional because it invades the province of the jury.
statute of 1905, directing the supreme court to grant a new trial when the evidence fairly
preponderates against the decision or verdict, is unconstitutional because it invades the
province of the jury. It has long been the law of this state that it is the duty of the trial judge to
set aside a verdict if the weight of the evidence is against it. (Phillpotts v. Blasdel, 8 Nev. 61;
Solen v. V. & T. R. R. Co., 13 Nev. 107; Albion M. Co. v. Richmond M. Co., 19 Nev. 231.)
The reason of the rule that the trial judge should weigh the evidence and ascertain upon which
side the preponderance lies and the appellate court could not was stated to be found in the
better opportunities of the trial court to determine the credibility of the witnesses. But the
province of the jury was invaded just as much when the trial judge set aside a verdict as if the
supreme court had done so. If it is solely the province of the jury to weigh the evidence, then
it is immaterial what tribunal reverses the jury's action because its decision is contrary to the
weight of the evidence. The constitution gives the right to a jury trial, but it does not and
could not give a right to a mistrial by a jury. The law must ever determine whether there has
been a mistrial.
But the rule has prevailed when the reason ceased. It has been held that the same rule
applies when a motion for a new trial is decided by a judge other than the one who tried the
case. (Welland v. Williams, 21 Nev. 230.)
II. We do not controvert the proposition that statutes are not to be given a retroactive effect
unless an intention is manifested that they shall be so construed. But we are not seeking to
give the act of 1905 any retroactive operation. That amendment provided a rule of decision
for this court to be thereafter applied. We are seeking to have it applied in this court now,
after, not before, the passage of the act. The principal case relied upon by respondent states
the rule aptly. When Ely v. Holton was before the Supreme Court of New York its decision in
that case was final. That court decided the case definitely and finally. Subsequently the
legislature gave a right of appeal in that class of actions. Thereafter an appeal was taken in
that cause, and the court said: The case had been determined by the court of last resort in
such cases, according to the arrangements of the law then in force.
cases, according to the arrangements of the law then in force. Then the legislature intervenes
by declaring that judgments in that class of cases are subject to another review. But they are
not to be understood by this to refer to cases where the litigation has been ended, but to
actions thereafter to be prosecuted, and to such as were then pending and undetermined.
(Ely v. Holton, 15 N. Y. 595, 600.)
There is one decision of this court apparently adverse to our contention, which we think, in
fairness, should be brought to its attention. In Poujade v. Ryan, 21 Nev. 449, 451, the
amendment of the practice act in question of 1893 was brought to the attention of the court
and claimed to have an application to a statement on motion for a new trial made before the
passage of the act. The court said: It is further urged that the amendment to the practice act
(Stats. 1893, p. 88) has changed this rule, but, without pausing to determine whether that is or
is not the case, it is sufficient here to say that the amendment is not retroactive, and does not
apply where the motion for a new trial has been made and disposed of before its passage.
(Hancock v. Thom, 46 Cal. 643; Caulfield v. Doe, 45 Cal. 222.)
We think it may fairly be said that Judge Bigelow, in making that statement not only did
not pause to consider whether the statute had changed the rule, but he did not pause and
consider whether the authorities which he cited sustained the law which he declared. The
most cursory examination of the two cases cited from California would have shown that they
had no application whatever, because the code of California, which was under consideration
in each of these cases, expressly provided that the code should not apply to actions pending at
the time of its adoption, and the same rule was applied to amendments to the code as to the
code itself. The very fact that the judge fell into this error shows that the point was not
considered necessary to determine the case, or in fact considered at all.
III. Counsel in his argument has said much respecting the restrictive character of the title
amending section 197 of the civil practice act (Comp. Laws, 3292).
We fail to see anything restrictive in the title. On the contrary, it seems to be general.
contrary, it seems to be general. If there had been included in the title language restricting the
amendment to section 197, and the legislature under such an amendment had enacted separate
and distinct sections thereto, the argument of counsel would have made the case cited from
this court applicable to the act in controversy. There being no restrictive language used in the
title, and the title to the original act passed in 1869 being general, and the amendment being
germane to that general title, counsel's contention must necessarily fail. It is a rule of law,
well supported by authority in states having a constitutional provision similar to ours, that it
is not important that the title of an amendatory act shall do any more than recite the title or
substance of the act amended, provided the amendment is germane to the subject of the
original act and is embraced within the title of such amended act. (Hyman v. State, 87 Tenn.
109; Brandon v. State, 16 Ind. 197; People v. Parvin, 74 Cal. 549.)
The following titles have been held sufficient: An act to add an additional article to the
code of public laws, to be entitled Garrett County' (State v. Fox, 51 Md. 412). An act to
amend the several acts incorporating the Town of Lawrenceville (Bagwell v. Lawrenceville,
21 S. E. 903). And, even though the title of the amendatory act declares that it is to amend a
specific section or other subdivision, when there is no such section or subdivision, the title
will be treated as sufficient, by disregarding as surplusage the designation of such subdivision
or section and treating the title as though merely declaring the act to be one to amend the code
in question. (State v. Robinson, 32 Or. 43.)
The subject of titles proposing amendments to general or revised statutes is very
thoroughly treated in the note to the case of Crookstown v. County Commissioners, 79 Am.
St. Rep. 480-485, in which note there has been collected a large number of authorities, all of
which sustain the contention of the appellant in this case. As a matter of law the title of an
original act or the title of an amendatory act is valid if it is sufficient to indicate the
subject-matter of the act itself, and, if the subject-matter is germane either to the title of the
general act or the amendatory act, the courts have invariably held such acts to be valid.
eral act or the amendatory act, the courts have invariably held such acts to be valid.
Dodge, Parker & Arnold, for Appellant and Petitioner, in reply:
I. There can be no doubt as to the meaning of the act of 1905. When the language of a
statute is clear its letter must prevail; if the language admits of but one meaning, there is no
room for construction. The act of 1905 expressly states that the case shall be reversed,
upon appeal, if it appears to this court that the decision below is not supported by a fair
preponderance of all the evidence. That this court, on this rehearing (as has already been
fully argued in our prior briefs herein), is bound by the provisions of the act of 1905,
notwithstanding that the said act became law subsequent to the original hearing herein, is
equally clear. The argument of respondent, accordingly, is chiefly directed to calling into
question the constitutionality of the act of 1905. It is true that this court will not pass upon
constitutional questions except where absolutely necessary to the proper disposition of a case.
(State v. Curler, 26 Nev. 347.) It is true, also, that we have urged that the preponderance of
the evidence in this case is so strong against the verdict that a new trial should be granted,
even under the provisions of the act of 1893, therefore that a determination of a question as to
the constitutionality of the act of 1905 is here unnecessary. But the question having been
raised, we are constrained to discuss it.
It is argued by respondent that the effect of the amendment of 1905 is a usurpation by the
legislative branch of our government of the functions of our judiciary. The said amendment is
merely an enlargement of the judicial functions of this court by broadening the rules of
evidence under which it is to render its decisions. It is hardly supposable that counsel for
respondent seriously contends that our legislature has not power to regulate the jurisdiction of
the state courts, and to enact laws establishing rules of evidence to be observed therein, yet it
is hard otherwise to account for counsel's contention.
for counsel's contention. The act in question, so far as any interference with the functions of
this court is concerned, actually enlarges its powers. It is an act which enlarges the powers of
this court for the purpose of remedying an existing law which operated mischievously, and
such an act should be liberally construed. Larkin v. Saffarans, 15 Fed. 149, 150: The first
obvious suggestion here is, can the statute, in conferring jurisdiction over suits then pending,
be said to act retrospectively in any proper sense? It acts immediately on a thing then in
existence, and from that moment gives the court a power to act on that thing. * * * And it will
be found that, both in the civil and common law, the repugnance to retrospective legislation
was not understood to extend to remedial legislation of that character. * * * This is only in
accordance with the general rule that all remedial legislation shall be liberally construed, and
particularly should this be so * * * with reference to the bestowal of jurisdiction on the
courts. See, also, Bissell Co. v. Goshen Co., 72 Fed. 545, 553.
II. If it was unconstitutional in the legislature of 1905 to enact that this court shall reverse
verdicts not supported by a preponderance of the evidence, then it was unconstitutional in
the legislature of 1893 to enact that this court should reverse verdicts not supported by the
evidence taken altogetheryet, in many years, it has not been held that the act of 1893 was
unconstitutional. It is argued, further, that the act of 1905 is void in that the title of the said
act recites that it is amendatory of the act of 1889, whereas the last-named act has not been in
existence since 1893, at which time it was repealed by the act of that year. That is, if the act
of 1905 had been entitled: An act to amend an act entitled An act to amend an act entitled,
etc., instead of being entitled: An act amendatory of an act entitled, etc., counsel would
have found no objection. Being entitled as it is, however, counsel urges that a just and
reasonable conclusion is that the legislature and the executive were misled by grossly
falsifying the title of the bill. That this contention has no merit is not only self-apparent, but
it is even admitted by necessary implication from counsel's own statements. It is
convincingly apparent," he states, "that the real act sought to be amended" was the act of
1S93.
convincingly apparent, he states, that the real act sought to be amended was the act of
1893. If this is true, then the clear intention of the legislature must be given effect. Precisely
the same question raised here was raised in Reynolds v. Board of Education (Kan. 1903, 72
Pac. 274, 276). In that case an act passed in 1879 purported to amend an act passed in 1868
which had already been repealed by a prior amendment. The court said: It is further urged
that the act of 1879 cannot stand, because the title is insufficient. If the law of 1868 had not
been repealed, no doubt whatever would exist that the title sufficiently expressed the subject
of the act, and such repeal cannot render that subject any more indefinite.
III. Thus it appears that the constitutional provision that statutes shall be so entitled as
briefly to denote the subject of legislation, is intended to safeguard those who read the title
from being misled as to the substance of the act, and does not find its purpose in defeating
legislation on highly technical grounds. That the clear intention of the legislature was to
amend the act of 1869 as amended in 1893 is apparent from the fact that the amendment of
1905 follows the language of the amendment of 1893 as to all provisions not contained in the
act of 1869, and changes said amendment only by inserting the words by a fair
preponderance. (Wilkinson v. Ketler, 59 Ala. 306; Allison v. Corker, 67 N. J. L. 601; White
v. Inebriates' Home, 141 N. Y. 123, 35 N. E. 1092; Brigel v. Starbuck, 34 Ohio St. 280;
Kamerick v. Castleman, 21 Mo. App. 590.)
IV. With regard to plaintiff's instruction No. 10, counsel for respondent reiterates his
assertion that the general remarks of a Connecticut court concerning locomotive whistles,
which remarks were not germane to the issue in the case in which they were uttered, but were
mere dicta, and which were not supported by the citation of any authority whatever, not even
of Connecticut authority, have established a presumption of law, operative in this state,
practically to the effect that it is negligence per se to maintain locomotive whistles on
factories. Our objections to the said instruction, as indicated in our former briefs, may be
formulated as follows: Plaintiff's instruction No.
lated as follows: Plaintiff's instruction No. 10 is improper because (1) it invades the province
of the jury in that it finds, as matters of fact, directly or indirectly, that the sound produced by
a locomotive whistle is of an alarming and frightening character, and also that the
construction of proper stationary whistles is different from the construction of locomotive
whistles; (2) in both of these regards, also, it assumes material facts controverted by the
defendant; (3) in the first of these regards, further, it assumes the existence of a fact not in
evidence, there being no testimony offered in court to show that locomotive whistles are
intended to frighten and alarm; (4) in the second of these regards it assumes the existence of a
fact which the evidence shows, or tends to show, does not exist; (5) it misstates the law in
that it implies that the law knows a distinction between the negligent use of locomotive
whistles, and the negligent use of stationary whistles; and (6) it is involved, ambiguous, and
argumentative.
The decision of this court herein was rendered December 24, 1904 (see page 40 of this
volume). A petition for rehearing was filed January 23, 1905. The order granting the
rehearing did not limit the purposes for which the rehearing might be had, although the main
inducement for granting one was the statement in the petition that this court had omitted to
particularly consider in its opinion plaintiff's instruction No. 10, the giving of which to the
jury is said by the appellant to be the basis of one of its main assertions that the district court
erred. The briefs and the arguments on rehearing, presented last April and May, covered the
contentions previously advanced and more, and have gone beyond the petition itself, and
further than the questions involved on the appeal.
It is now urged that under the statute approved February 25, 1905, p. 33, c. 21, purporting
to amend section 197 of the civil practice act, and which was passed after the determination
of the appeal and after the filing and granting of the petition for rehearing, this court ought to
remand the case, because it does not appear that the judgment is supported by a fair
preponderance of the evidence.
because it does not appear that the judgment is supported by a fair preponderance of the
evidence. In opposing this contention the validity of the amendment is assailed by respondent.
As indicated in the opinion, the evidence is ample to support the verdict under the statute as it
stood before the passage of this late act. Following the usual precedent, the constitutional
questions advanced by counsel will not be considered, when their adjudication is not
necessary for a proper determination of the cause.
The attorney for respondent asserts that questions which were not raised on the original
hearing will not be considered on rehearing, and cites the following cases so holding: Schafer
v. Schafer, 93 Ind. 586; Manor v. Jay County, 137 Ind. 367, 34 N. E. 959, 36 N. E. 1101;
Tubbesing v. Burlington, 68 Iowa, 695, 24 N. W. 514, 28 N. W. 19; Goodenow v. Litchfield,
59 Iowa, 226, 9 N. W. 107, 13 N. W. 86; Minneapolis Trust Co. v. Eastman, 47 Minn. 301,
50 N. W. 82, 930; Mount v. Mitchell, 32 N. Y. 702; Kellogg v. Cochran, 87 Cal. 192, 25 Pac.
677, 12 L. R. A. 104; San Francisco v. Pacific Bank, 89 Cal. 23, 26 Pac. 615, 835; Marine
Bank v. National Bank, 59 N. Y. 73, 17 Am. Rep. 305.
Other decisions sustaining this rule are: Jacksonville, T. & K. R. Co. v. Peninsular Co., 17
L. R. A. 33, 66, 27 Fla. 1, 157, 9 South. 661; Cloud v. Malvin, 108 Iowa, 52, 75 N. W. 645,
78 N. W. 791, 45 L. R. A. 209; McDermott v. Iowa Falls R. Co., 85 Iowa, 180, 52 N. W. 181;
Farrell v. Pingree, 5 Utah, 530, 17 Pac. 453; Evansville v. Senhenn, 151 Ind. 42, 47 N. E.
634, 51 N. E. 88, 41 L. R. A. 734, 68 Am. St. Rep. 218; Payne v. Treadwell, 16 Cal. 247;
Dougherty v. Henarie, 49 Cal. 686; Lake Erie R. R. Co. v. Griffin (Ind. App.) 57 N. E. 722;
Lybarger v. State, 2 Wash. St. 552, 27 Pac 449, 1029; Tolman Co. v. Bowerman, 6 S. D. 206,
60 N. W. 751; Robinson v. Allison, 97 Ala. 596, 12 South. 382, 604; Florida Nat. Bank v.
Ashmead, 23 Fla. 391, 2 South. 657, 665; Weld v. Johnson Mfg. Co., 84 Wis. 537, 54 N. W.
335, 998; Moore v. Beaman, 112 N. C. 558, 17 S. E. 676; Hudson v. Jordon, 110 N. C. 250,
14 S. E. 741; Western News Co. v. Wilmarth, 34 Kan. 254, 8 Pac. 104; Chamberlain v. N. E.
R. R., 41 S. C. 399, 19 S. E. 743, 996, 25 L. R. A. 139, 44 Am. St. Rep. 717; Coulter v.
Portland Trust Co.,
Coulter v. Portland Trust Co., 20 Or. 469, 26 Pac. 565, 27 Pac. 266; Merchants' National
Bank v. Greenhood, 16 Mont. 395, 41 Pac. 250, 851; Cincinnati v. Cameron, 33 Ohio St.
336; Hatto v. Brooks, 33 Miss. 575; Broom's Succession, 14 La. Ann. 67; Ryerson v. Eldred,
18 Mich. 490; Hayne, New Trial and Appeal, 879; Beck v. Thompson, 22 Nev. 421, 41 Pac. 1.
As illustrative of this doctrine, we quote a few extracts from some of these opinions:
Manor v. Board, 137 Ind. 394, 36 N. E. 1101: Questions waived by silence of the original
brief cannot be presented to this court on a petition for rehearing. (Fleetwood v. Brown, 109
Ind. 567, 9 N. E. 352, 11 N. E. 779; Union School Tp. v. First Nat. Bank, 102 Ind. 464, 2 N.
E. 194; Thomas v. Mathis, 92 Ind. 560.) Goodenow v. Litchfield: We feel constrained to
hold that after a cause has been submitted, determined, and a rehearing granted, it is too late
to raise for the first time such a vital question as that now made in the argument filed in aid of
the petition for rehearing; the same not being filed as a matter of right, but simply as a matter
of grace and favor of the court. Kellogg v. Cochran: We have decidedand with manifest
proprietythat we will not grant a rehearing in order to consider points not made in the
argument upon which the case was originally submitted. Schafer v. Schafer: The appellant,
in order to avail himself of a question upon which to secure a judgment, must present that
question in his brief upon the original submission. The Supreme Court of Florida in
Jacksonville, T. & K. R. Co. v. Peninsular Co.: The proper function of a petition for
rehearing is to present to us any omission or cause for which our judgment is supposed to be
erroneous. No new ground or position not taken in the argument submitting the cause can be
assumed. Payne v. Treadwell: The second ground upon which a rehearing is asked was not
taken in the argument or in any of the briefs of counsel. It is too late to urge it now for the
first time after the case has been considered upon the points to which the attention of the
court was called, and a decision has been rendered.
We understand that appellant, by citing Beck v. Thompson, concedes this to be the
practice, and suggests that it ought not to apply to a matter that could not have been
advanced or waived at the time of the first argument.
concedes this to be the practice, and suggests that it ought not to apply to a matter that could
not have been advanced or waived at the time of the first argument. We have cited more cases
to show the uniformity of the rule, as a stronger reason for not departing from it.
If the judgment of the district court and our opinion on appeal were correct at the time they
were made, they cannot be invalidated on rehearing by this statute, passed subsequently, even
if, for the purposes of the argument, its constitutionality be conceded. It is manifest that the
rehearing was not granted for that purpose.
The instruction which we have mentioned as being under special objection is as follows:
No. 10. The jury is instructed that the law distinguishes the necessary nature of a locomotive
whistle from that of a stationary whistle, intended for the purpose of notice only; that
locomotive whistles are necessary, among other purposes, for the purpose of frightening
animals off the track, and to give notice of the approach of trains to persons about to cross the
track at such a distance that the bell cannot be heard or the trains readily observed; and that in
these and other cases their use upon railroads is both sanctioned and required by law; and that
in such cases the usefulness of the whistle depends upon the alarming and frightening
character of the noise it makes, and one of the purposes for which it is used is to frighten and
to alarm. But the court instructs the jury the rule is different in respect to stationary whistles,
intended for notice only, and that if used, if there is no necessity for constructing or operating
them in such a way as to alarm or frighten any person or animal of ordinary gentleness, any
unnecessary alarming or frightening use of them, if productive of injury to another, is
wrongful, and the proprietors should be holden responsible for the injury.
That this instruction draws a correct distinction is apparent upon its face. The right of the
appellant to maintain its shops within the city limits, and to use such a whistle as will not
endanger people traveling on the street, for the purpose of calling, dismissing, or notifying its
employees, is not assailed or denied. That the company may operate its machinery with all
necessary fixtures and appliances is conceded, but this right must be exercised with
reasonable care, and so as not to injure or imperil the safety of others.
machinery with all necessary fixtures and appliances is conceded, but this right must be
exercised with reasonable care, and so as not to injure or imperil the safety of others. Streets
are for the use of the public for travel and transportation. The harm and damage lies in the
sounding of a whistle of unusual and unnecessary loudness and discordance in such proximity
to a frequented thoroughfare as to frighten horses of ordinary gentleness when rightfully
driven there. Locomotive whistles are usually blown at long distances from crossings, to warn
and alarm before the bell can be heard. When nearing the track, people with teams are
generally on the alert with ear and eye to detect the whistle, noise, or coming of trains, and on
their approach either turn away, or have their horses under tighter rein and better control than
is usual or is to be expected or required when driving at other places. In traveling the street
away from crossings, drivers are not so liable to expect and guard against the frightening of
horses by whistles of exceptional volume and discordance. If the use of such be proper on
locomotives, as well as of fog-horns at lighthouses, it is not necessary to maintain either on
stationary engines so near to the street as to endanger people driving horses of ordinary
gentleness. There is a place, as well as a time, for everything under the sun. Whether the
appellant maintained and blew a whistle that was unnecessarily alarming, and a menace to
defendant's right to drive an ordinarily gentle horse along the highway undisturbed, and which
occasioned the accident and injury he sustained, were questions of fact for the jury. (Topeka
Water Co. v. Whiting, 58 Kan. 642; Hill v. P. & R. R. Co., 55 Me. 442.)
In the latter case the court said: The whistle seems to be particularly adapted to give
notice of the approach of trains to a crossing of a highway. The object then is to warn all
persons of such approach in season to enable them to stop at a safe distance, and thus avoid
risk of collision and of alarm to horses.
To make the instruction law it was not necessary for any other court or legislature to have
approved a similar one. As new conditions and circumstances arise in the affairs of men,
decisions based on reason and justice must be made and promulgated to meet them.
men, decisions based on reason and justice must be made and promulgated to meet them.
This theory and elasticity has long been the boast of the common law. By way of illustration
and comparison, the court assumed and stated that the purpose of locomotive whistles was to
frighten and alarma matter of common knowledge, and of which proof was not necessary,
as claimed by counsel.
Still urging that the district court erred in admitting evidence that another horse had been
frightened at a different time by the blowing of the whistle, appellant brings to our attention
the case of Cleveland Ry. v. Wynant, 114 Ind. 525, 17 N. E. 118, 5 Am. St. Rep. 644, in
which admission of proof that other horses had shied at freight cars on the crossing was held
to be error. This decision has been criticized as a refutation of its own reasoning, and is not in
accord with the weight of authority.
In addition to Knight v. Goodyear Co., 38 Conn. 442, cited in the opinion, numerous cases
hold that the fact that other horses were alarmed or shied has a tendency to show the
frightening character of the object, and these decisions also indicate the liability for damages
resulting from accidents arising under circumstances similar to those existing here. In Hill v.
Portland & R. R. Co., 55 Me. 440, 92 Am. Dec. 601, plaintiff, driving a quiet horse, stopped
near the crossing because the train was at the depot, the engine being only fifteen or twenty
feet from the highway, and he did not think it prudent to pass. The engineer, according to the
custom on the road, sounded the whistle twice very sharply and briefly. The horse suddenly
turned, and threw the plaintiff out of his carriage. The company was held liable for his
injuries. Proof that the sounding of the whistle had a similar effect on other horses was
received to show its tendency, and the maxim, So use your own property as not to injure the
rights of another was applied.
In Gordon v. Boston & Maine R. R., 58 N. H. 396, plaintiff was driving about twenty feet
from the crossing when steam was allowed to escape suddenly from a locomotive on a side
track about two rods from the highway. The noise frightened the horse, and it overturned the
carriage. The court refused to instruct the jury that the defendant was not liable for an
injury from the fright of the horse in consequence of the ordinary or necessary or
reasonable use of the locomotive upon its own land, not in the highway, but charged that
the company, in the management of its engines and machinery, was bound to exercise
towards persons traveling the highway crossing the care, skill, and diligence that men of
ordinary prudence would use under the circumstances, having due regard to the rights of
those attempting to pass.
to instruct the jury that the defendant was not liable for an injury from the fright of the horse
in consequence of the ordinary or necessary or reasonable use of the locomotive upon its own
land, not in the highway, but charged that the company, in the management of its engines and
machinery, was bound to exercise towards persons traveling the highway crossing the care,
skill, and diligence that men of ordinary prudence would use under the circumstances, having
due regard to the rights of those attempting to pass. Evidence that other horses were
frightened by the noise of the steam from the locomotive was held to be proper.
In Crocker v. McGregor, 76 Me. 283, 49 Am. Rep. 611, there was a verdict for the
plaintiff for an injury caused by the fright of her horse by steam escaping from the defendant's
mill, situated on the margin of the public highway. Witnesses were properly allowed to testify
that other horses when passing were frightened by the escaping steam.
In Bemis v. Temple, 162 Mass. 342, 38 N. E. 970, 26 L. R. A. 254, the case was reversed
because the trial court rejected evidence that other gentle horses had been frightened by a
campaign flag suspended across the street, and the principle that proof of other accidents will
not be received was held inapplicable. The court said: This precise question has been
decided in favor of the plaintiff's contention by many courts of the highest respectability, and
we have been referred to no decision to the contrary. In Brown v. Eastern & Midlands
Railway, 22 Q. B. D. 391, 393, which was an action for an injury caused by the shying of the
plaintiff's horse at a heap of dirt, the Court of Queen's Bench held that the plaintiff was rightly
permitted to show that various other horses had previously shied at the same place, and all the
judges of the Court of Appeal were clearly of opinion that the evidence was admissible, and
affirmed the decision of the queen's bench division.' House v. Metcalf, 27 Conn. 631, was a
suit for maintaining a wheel which frightened the plaintiff's horse. The court says the plaintiff
had a right, not only to show the facts regarding its size, form, location, exposure to view,
and mode of operation, from which the jury might infer what effects it would naturally,
necessarily, or probably produce, but also to prove what effects it had produced in fact.
produce, but also to prove what effects it had produced in fact. * * * The inquiry in every
such case is not whether the evidence offered is sufficient to prove the fact claimed, but
whether it tends to prove it.' In Darling v. Westmoreland, 52 N. H. 401, 13 Am. Rep. 55, a
suit for damages caused by the fright of a horse at a pile of lumber, evidence was received
that other horses had been frightened by the same pile. The justices of the Supreme Court of
New York who sat in Champlin v. Penn Yan, 34 Hun, 33, 37, unanimously sustained the
admission of evidence that on another occasion, prior to this accident, a flag similar to this in
appearance, suspended over the same street and in a similar manner, did frighten other horses
when driven along the street under the same.' The Court of Appeals of New York takes a
similar view of the law. (Quinlan v. Utica, 11 Hun, 217; Id., 74 N. Y. 603; Wooley v. Grand
Street & Newtown Railroad, 83 N. Y. 121.)
In Topeka Water Co. v. Whiting, 58 Kan. 639, 50 Pac. 877, 39 L. R. A. 90, the plaintiff
was driving on the street when the horse became frightened at the water spurting from a
hydrant about one hundred feet away, turned suddenly, and capsized the buggy. She received
a broken arm and other injuries. The flowing water could have been seen five hundred feet
away, but was not noticed by her until the time the horse turned. There was proof that three
other driving horses had been frightened. It was held that the license granted by the
municipality to the water company to place mains and hydrants and to flush carried with it the
obligation to do so with reasonable care and in such a manner as not to imperil the safety of
those passing, and that whether an object is calculated to frighten a gentle horse is usually a
question for the jury. A verdict for $5,000 was sustained.
Other cases upholding proof of the behavior of other horses and sustaining the recovery of
damages are Folsom v. R. R., 68 N. H. 461, 38 Atl. 209; Thomas v. Springville, 9 Utah, 431,
35 Pac. 503; Crocker v. McGregor, 76 Me. 284, 49 Am. Rep. 611; Potter v. Natural Gas Co.,
183 Pa. 575, 39 Atl. 7; Stone v. Pendleton, 21 R. I. 333, 43 Atl. 643; House v. Metcalf, 27
Conn. 632; Tomlinson v. Derby, 43 Conn. 563; Smith v. Sherwood, 62 Mich. 159, 2S N. W.
S06; Darling v. Westmoreland, 52 N. H. 401, 13 Am.
v. Sherwood, 62 Mich. 159, 28 N. W. 806; Darling v. Westmoreland, 52 N. H. 401, 13 Am.
Rep. 55: Nye v. Dibley, 88 Minn. 466, 93 N. W. 524.
Nor are we able to say that the verdict is excessive. (13 Cyc. 136, 137.) There was
evidence indicating some mental suffering, as well as the injury to the arm and physical
disability, and, saddest of all, tending to show an impairment of the mind, which probably no
rational men would want to undergo for the amount of the judgment. It is unnecessary to
revert to other suggestions made in the elaborate and interesting briefs.
We are still satisfied with the correctness of the opinion as originally rendered herein, and
it and the judgment and order of the district court are affirmed.
Remittitur forthwith.
Fitzgerald, C. J.: I concur.
Norcross, J., did not participate in the foregoing decision.
____________
28 Nev. 350, 350 (1905) State v. Roberts
[No. 1673.]
THE STATE OF NEVADA, Respondent, v. FRED ROBERTS, J. P. SEVENER,
and T. F. GORMAN, Appellants.
1. HomicideEvidenceDying DeclarationsSense of Impending Death. The sense of impending death
necessary to render a dying declaration admissible may be shown, not only by what the injured person
said, but by his conduct and condition, and by the nature and extent of his wounds; and, if these show
that the declaration was made without expectation of recovery, the declaration is admissible, though the
declarant may not have said that he was without hope, or that he was going to die.
2. SameSufficiency of Predicate. In a prosecution for murder, it was shown as a predicate for the
introduction of a dying declaration that deceased had been shot through the lungs and stomach the night
before the declaration was made, and had said then, and several times afterwards, that he was going to
die. The morning after the shooting a physician probed the wound and removed a quantity of blood,
which enabled deceased to breathe more easily, so that he thanked the physician and said that he felt
better, but still shook his head when it was intimated that there was hope of recovery. Held, that it
sufficiently appeared that deceased was without hope of recovery, so that his written statement was
admissible as a dying declaration.
3. SameEvidenceIdentification of Assailant by Deceased. In a prosecution for murder, evidence that
deceased, who had been shot by men who were at the time unknown to him, had on the next day, and
while under such a sense of impending death as to render a dying declaration admissible, recognized
defendants as the men who shot him, and picked them out from a number of other men, all of whom
were strangers to deceased, was admissible.
4. SameAdmitted FactsHarmless Error. In a prosecution for murder committed by shooting deceased
through the stomach, evidence that after the shooting deceased said to a companion that he was shot
through the stomach was harmless, even if it was not so connected with the shooting as to be part of the
res gestae.
5. Same. In a prosecution for murder, in which it was admitted that deceased had been robbed and murdered by
some one, and the only defense was an alibi, evidence by a companion of deceased as to what he did
after deceased was shot was harmless.
6. Criminal LawEvidence of Independent Crime. In a prosecution for murder committed on a west-bound
freight train at a point a short distance east of a certain station, defendants claimed that they had been at
this station during all the evening and night of the murder, while the state claimed that defendants had
left the station on an east-bound train, and had dismounted from it where it slowed to pass the
west-bound train, and had returned on the latter. The train schedule was such that, if defendants had left
on the east-bound train, they could not have returned to the station in question, except on the
west-bound train, on which the murder was committed; and it was admitted that defendants were at this
station shortly after the arrival there of the west-bound train. Held, that evidence that defendants had on
the night of the murder robbed a man on the east-bound train and taken from him certain coins, which
were found in their possession the next morning, was admissible, although it related to an independent
crime.
7. SamePhotographs of Wounds. In a prosecution for murder, photographs showing the nature of deceased's
wounds before their appearance had been altered by surgical operation were properly admitted.
8. SameWitnessesExaminationHarmless Error. In a prosecution for murder, defendant as a witness in
his own behalf testified on a direct examination that he had served a term in a state prison, and on
cross-examination was asked if he had ever been arrested for any other offense, to which he replied that
he had been arrested for being drunk. The prosecuting attorney then said that as that was a
misdemeanor he did not care anything about it, but only wanted to ask if defendant had been convicted
of any other felony. Only a general objection was made to the question as to other offenses, and no
motion was made to strike out the answer. Held that, under civil practice act, 377 (Comp. Laws, 3472),
and act relating to crimes and punishments, sec. 12 (Comp. Laws, 4667), providing the conviction of a
felony may be shown to affect the credibility of a witness, and under the objection made, permitting the
question to be asked was not prejudicial error.
9. HomicideEvidenceSufficiency. In a prosecution for murder, evidence held sufficient to support a
conviction.
Fred Roberts and others were convicted of murder, and appeal. Affirmed.
Huskey & Martinson and Wm. Woodburn, for Appellants:
I. It is respectfully submitted to this court to admit as a dying declaration by Jack Welsh,
the written statement introduced in the case and marked State's Exhibit J. This statement was
offered as a written dying declaration of the deceased. To that offer, the defendants objected
in substance as follows: That the declarations are hearsay; that their admission would violate
the constitutional right of these defendants to be confronted by the witnesses against them;
that they do not come under the exception to the hearsay rule, known as dying declarations;
that declarant was not in extremis; that declarant was not conscious of immediate death; that
declarant had not abandoned all hope or expectation of recovery; that a belief that declarant
will ultimately die is not sufficient, and no more than this has been shown; and that this is not
a written statement by Welsh, signed by him. Dying declarations as evidence are viewed with
disfavor. Greenleaf, in treating this subject, remarks: Credit is not in all cases due to the
declarations of a dying person; for his body may have survived the powers of his mind, or his
recollection, if his senses are not impaired, may not be perfect; or for the sake of ease, and to
be rid of the importunity and annoyance of those around him, he may say, or seem to say,
whatever they choose to suggest. (1 Greenleaf, 16th ed. sec. 156a.) Clearly these are matters
that go to the weight of the evidence, and not primarily to the question of admissibility. Yet
these or like considerations have restricted the scope of dying declarations as evidence. They
are not admissible in civil cases, nor in any criminal case other than that of homicide. The
apparent infirmities of this class of evidence have been relied upon to exclude the dying
declarations from use in the vast majority of cases, and permitted it only upon one question,
the causes and circumstances of the death of the deceased, where such death is the
subject of the trial.
it only upon one question, the causes and circumstances of the death of the deceased, where
such death is the subject of the trial.
Because of their inherent infirmities as evidence dying declarations should be closely
scrutinized and great care and caution exercised in determining them to be admissible. They
should not be admitted unless the prerequisites which are essential to their admissibility are
clearly established. (10 Am. & Eng. Ency. of Law, 387; People v. Hodgdon, 55 Cal. 72;
People v. Sanchez, 24 Cal. 24; People v. Taylor, 59 Cal. 646; Boyle v. State, 55 Am. Rep.
218; Nelms v. State, 53 Am. Dec. 94; State v. Skepton, 64 Am. Dec. 587.)
The preliminary requisites to the admissibility of dying declarations as evidence in
homicide cases like the present one, are, in syllabus, as follows: (1) The declarant must be in
extremis; (2) the declarant must have been under a sense of impending death, and hope must
have been abandoned; (3) death must result. The declarations must concern the circumstances
of the homicide which is the subject of the charge. (Greenleaf on Evidence, 16th ed. vol. 1,
chap. 14; 10 Am. & Eng. Ency. Law, 2d ed. 364-373.) The objection of the defendants that
Jack Welsh, at the time he made the declaration, was not under a sense of impending death
and had not abandoned all hope of recovery, should have been sustained. The time of death is
not a part of the statement. We must look to the surrounding circumstances and to other
declarations of the deceased to determine whether he believed he was in danger of almost
immediate dissolution. That the declaration must be made under a sense of impending death,
and of almost immediate dissolution, is amply sustained by the authorities. (People v.
Hodgdon, 55 Cal. 72; People v. Ah Dat, 49 Cal. 652; Whittaker v. State, 3 S. E. 403; 1
Greenleaf, 16th ed. sec. 153.)
Welsh did not state in his declaration in so many words that death was near. A belief in
death is not enough. Declarations must apprehend almost immediate dissolution. (10 Am. &
Eng. Ency. of Law, 2d ed. 365, 368; People v. Sanchez, 24 Cal. 17; People v. Ah Dat, 49 Cal.
652; People v. Gray, 61 Cal. 64; Whittaker v. State, 3 S. E. 403; Tracy v. People, 97 Ill.
People, 97 Ill. 101.) The proof must clearly show that the deceased was at the very point of
death, and that he was fully aware of the fact. (Morgan v. State, 31 Ind. 193.)
Although the declarant need not be literally breathing his last, he must understand that his
injuries are fatal, and believe that death is near at hand. (Com. v. Haney, 127 Mass. 455.)
Greenleaf, in dealing with this topic, after stating that it is not the length of time which
elapses between the declaration and the death that furnishes the test, continues: It is the
impression of almost immediate dissolution, and not the rapid succession of death in point of
fact, that renders the testimony admissible. Therefore, where it appears that the deceased, at
the time of the declaration had any expectation or hope of recovery, however slight it may
have been, and though death actually ensued in an hour afterwards, the declaration is
admissible. On the other hand, a belief that he will not recover is not itself sufficient, unless
there be also the prospect of almost immediate dissolution. (1 Greenleaf, 16th ed. 158.)
Dying declarations are admissible only upon the theory that the solemnity of the moment
of death creates an obligation equal to that which is imposed by a positive oath in a court of
justice. Can it be said that Welsh was impressed by the solemnity of the moment of death
when he said that death was not imminent, but only a matter of time? He did not feel at that
time that he was on the point of death; he said in effect it was not a matter of the instant, but a
matter of time. It does not clearly appear that at the time the statement was made Welsh had
abandoned all hope of recovery. Immediately after the operation he said he felt better, and the
only expression that he made as to his condition after the operation was in response to the
district attorney's question, and is embodied in the written declaration. He got immediate
relief; he expressed the relief he felt; and it is significant that he no longer said he was going
to die, except upon the suggestion of the district attorney, who was trying to get a statement
that could be used in evidence. Added to the expression of relief from suffering, we find that
later in the day he asks the doctor if he is going to get well.
get well. Welsh's condition may be shown by statements made both before and after the
declarations in question. Before the operation Welsh was in desperate condition. He stated
several times that he was going to die. After the operation he felt better and was better. He
said so. He ceased saying that he was going to die. He said he felt better, and he thanked the
doctor. Do indications of feeling better and expressions referred to indicate a condition of
hopelessnessa settled conviction of death? If deceased had the slightest hope of recovery,
the declaration is not admissible. (10 Am. & Eng. Ency. of Law, 2d ed. 367; People v.
Hodgdon, 55 Cal. 72; Graves v. People (Colo.) 32 Pac. 63; Matherly v. Com., 19 S. W. 977;
Com. v. Bishop, 165 Mass. 148, 42 N. E. 560; Bell v. State (Miss.) 17 South. 232; Peake v.
State (N. J.) 12 Atl. 701; State v. Bannister (S. C.) 14 S. E. 678; Irby v. State (Tex.) 7 S. W.
705.)
II. It was error to admit the statements of Jack Welsh identifying the defendants as the
men who robbed and shot him. It appears from the evidence in the case that after the
defendants were arrested they were taken to the bedside of the deceased for the purpose of
identification, and that Welsh said they were the men who robbed and shot him. The offer of
the state is as follows: The state offers it as a dying declaration; and further it offers the
testimony of the verbal declarations of the deceased as connected with the body of the crime
charged, and as evidence tending to show the conduct of the defendants at the time they were
identified by the deceased and accused of the crime, and as evidence tending to show that
before his death Welsh identified each of these defendants as being present and concerned in
the crime which resulted in his death. The state offers this testimony as a verbal dying
declaration of the deceased, and also as part of the res gestae of the crime and as evidence
tending to show the conduct of the defendants at the time they were identified by the deceased
and accused by him of the crime. To that offer the defendants objected that the proper
foundation had not been laid to its introduction as a dying declaration; that it was not res
gestae; that it was not properly an admission of confession on the part of the defendants; that
mere silence of an accusation of guilt is not an acquiescence so as to amount to an
admission; that it does not appear that the defendants were given an opportunity to
reply.
silence of an accusation of guilt is not an acquiescence so as to amount to an admission; that
it does not appear that the defendants were given an opportunity to reply.
III. The term res gestae is defined in the case of Lund v. Tyngbourough, 9 Cush. 36, as
follows: When the act of a party may be given in evidence, his declarations made at the time,
and calculated to elucidate and explain the character and quality of the act, and so connected
with it as to constitute one transaction, and so as to derive credit from the act itself, are res
gestae. (24 Am. & Eng. Ency. of Law, 2d ed. 662; 1 Greenleaf, 16th ed. sec. 108; 2 Jones on
Evidence, sec. 347; State v. Daugherty, 16 Nev. 376.)
IV. No inference of guilt is warranted by silence on the part of defendant when under arrest.
(Wharton's Crim. Ev. 9th ed. sec. 680; Com. v. Kenney (Mass.) 46 Am. Dec. 622; Com. v.
McDermott (Mass.) 25 Am. Rep. 120; Com. v. Walker (Mass.) 13 Allen, 570; Gardner v.
State (Tex.) 34 S. W. 945.)
V. We conceive that it is clear that it is not relevant nor proper to show that the defendant
has committed other similar acts or crimes which are not connected in any way with the one
in question. (Boyd v. U. S., 142 U. S. 450; Ogle v. Brooks (Ind.) 44 Am. Rep. 778; Com. v.
Jackson, 132 Mass. 16; State v. Lapage (N. H.) 24 Am. Rep. 69; People v. Gibbs, 93 N. Y.
470.) Such evidence may be admissible to show fraud or a fraudulent intent, to rebut the
inference of accident, or to establish a plan. The facts in this case do not raise any of these
questions. It is contended that it is admissible for the purpose of showing that the defendants
were in the vicinity of the crime at the time of its commission. Admitting that the state may
prove by the witness that the defendants were on train No. 220, it was error to show what
occurred at that time and place. (Com. v. Grief (Ky.) 27 S. W. 814; State v. Flynn (Mo.) 27 S.
W. 1105; People v. Jones, 31 Cal. 565; Com. v. Campbell (Mass.) 83 Am. Dec. 705; People
v. Schweitzer, 23 Mich. 301; State v. Hoyt, 13 Minn. 132; Roper v. Territory (Ariz.) 33 Pac.
1014; Marshall v. State (Tex.) 22 S. W. 878.)
It was error to admit in this case the pictures of the body of the deceased, and of the
mutilated portions thereof, to wit, plaintiff's exhibits D, E, and F.
of the deceased, and of the mutilated portions thereof, to wit, plaintiff's exhibits D, E, and F.
The state offers the pictures as photographs of the wounds upon the body of Jack Welsh.
They were not offered as independent testimony, but for the purpose of illustration. The
defendants' objection is as follows: We object to these cards as evidence in this case upon
the ground that a proper foundation has not been laid for their introduction, and on the ground
that photographs are, at the best, only secondary evidence, and we call the attention of the
court to 22 Ency. of Law, 2d ed. 772, note 3, etc., and we object on the further ground that the
photographs appeal to the prejudice and passion of the jury, and do not in any way aid the
witness in giving his testimony. The objection was overruled and the pictures admitted.
Photographs are, at best, only secondary evidence, and are admissible when better evidence
cannot be had or has not been produced. (White Sewing Machine Co. v. Gordon (Ind.) 19
Am. St. Rep. 109; Baustian v. Young (Mo.) 75 Am. St. Rep. 462; Eborn v. Zimpelman (Tex.)
26 Am. Rep. 315; Church v. Milwaukee, 31 Wis. 512; Perkins v. Bauss (Tex.) 32 S. W. 240;
22 Am. & Eng. Ency. of Law, 2d ed. 772.) Photographs appealing to the passion of the jury
and neither necessary nor instructive are inadmissible. (Ludlein v. Meyer, 95 Mich. 586;
Selleck v. Janesville (Wis.) 76 Am. St. Rep. 892; Baxter v. Chicago R. R. Co. (Wis.) 80 N.
W. 644; Fore v. State (Miss.) 23 South. 710; State v. Miller (Or.) 76 Pac. 666.)
VI. For the numerous errors committed this cause must be reversed and a new trial
granted.
I. Both the dying and written declarations of Jack Welsh were clearly admissible. The
evidence shows beyond any question of a doubt that at the time of making the declarations he
was fully conscious of impending death; that he had abandoned all hope and expectation of
recovery; that at the time of making the declarations he was entirely conscious, and in full
possession of his intellectual faculties. The declarations were admissible upon the ground of
identification. (Mattox v. U. S., 146 U. S. 140; Commonwealth v. Roddy, 184 Pa. St. 274;
Brotherton v. People, 75 N. Y. 159; State v. Freeman, 1 Spears {S. C.) 57; McLean v. State,
16 Ala.
Pa. St. 274; Brotherton v. People, 75 N. Y. 159; State v. Freeman, 1 Spears (S. C.) 57;
McLean v. State, 16 Ala. 672; 10 Am. & Eng. Ency. 2d ed. 383; Transcript, pp. 76 and 77.)
The dying declarations were admissible in evidence, they having been made in the presence
of defendants, and were admissible for the purpose of showing defendants' conduct and
behavior when identified and charged as being his assailants and accused of the crime, for
which purpose they were specifically offered. (State v. Nash and Redout, 7 Iowa, 347; State
v. Gillick, 7 Iowa, 287; State v. Brunetto, 13 La. Ann. 45; Kendrick v. State, 55 Miss. 436;
Powers v. State, 74 Miss. 777; Donnelly v. State, 26 N. J. L. 463; 10 Am. & Eng. Ency. Law,
2d ed. 360.) The rule as to the admissibility of dying declarations does not require that they
should have been made while the sufferer was literally breathing his last. If the declarations
were made under a sense of impending dissolution, it does not matter if death failed to ensue
until a considerable time after the declarations were made. (10 Am. & Eng. Ency. Law, 2d ed.
369, and authorities there cited.)
The length of time elapsing between the making of the declarations and the declarant's
death is, however, one of the elements to be considered in determining whether the
declarations were made under a sense of impending death. (10 Am. & Eng. Ency. of Law, 2d
ed. 369, and authorities cited.) In this instance the deceased died within three hours of the
rendition of the dying declarations. Even admitting, for the sake of argument, that deceased
was partially unconscious, and which we strenuously deny, and refer to the evidence, the
declarations were admissible, and the objections should go to their credibility and not their
admissibility. (Hays v. Commonwealth (Ky. 1890) 14 S. W. Rep. 833; 10 Am. & Eng. Ency.
of Law, 376, under note, Narcotics.) A positive statement by the victim identifying the
defendants as his assailants is not an expression of opinion, but a statement of fact where the
victim had opportunities for observation. (10 Am. & Eng. Ency. Law, 2d ed. 378.) Dying
declarations of deceased as to the state of declarant's mind are proved by the express or direct
language of the declarant.
(10 Am. & Eng. Ency. Law, 2d ed. 388.) We submit to the court that the evidence shows that
the dying declarations made by Welsh were as plain, concise, and intelligent as the English
language could make them; that his answers in response to queries put to him were direct,
responsive, and relevant. The condition and conduct of declarant as to the sense of impending
dissolution may be inferred from the apparent condition and nature of his injuries and his
conduct and deportment. (10 Am. & Eng. Ency. Law, 2d ed. 389.) We submit that his
condition, conduct, and deportment were those of a dying man in full possession of his
intellectual faculties, but resigned to his fate.
II. The photographs admitted in this proceeding were properly admissible upon several
grounds. They were clearly admissible for the purpose of identification. (People v. Smith, 121
N. Y. 578; Crane v. Horton & Co., 5 Wash. 479; United States v. Pagliano, 53 Fed. 1001;
United States v. Lot of Jewelry, 59 Fed. 684; Travelers Ins. Co. v. Sheppard, 85 Ga. 751;
Beavers v. State, 58 Ind. 530; Brooke v. Brooke, 60 Md. 524; Commonwealth v. Campbell,
155 Mass. 537; 22 Am. & Eng. Ency. Law, 2d ed. 773, note 5.) They were admissible upon
the ground that they aided the jury in applying the evidence. (People v. Durant, 116 Cal. 179;
Rice, Crim. Ev. 154; Wharton, Crim. Ev. 9th ed. 544; Thomson on Trials, sec. 869;
Udderzook v. Commonwealth, 76 Pa. St. 340; Bishop, New Crim. Proc. sec. 1097; People v.
Fish, 135 N. Y. 136; Commonwealth v. Campbell, 155 Mass. 537; Ortis v. State, 30 Fla. 256;
Dederichs v. Salt Lake City Ry. Co., 14 Utah, 137; Reddin v. Gates, 52 Iowa, 210, 213;
Transcript, pp. 126-130.) They were admissible as explanatory or illustrative evidence in
enabling witnesses to make their testimony clearer, and to enable jurors to understand it
better. (Alberti v. N. Y. L. E. & Western R. R. Co., 6 L. R. A. 765; Reddin v. Gates, 52 Iowa,
213; 22 Am. & Eng. Ency. Law, 2d ed. 774.) The court's attention is particularly directed to
the fact that Dr. Giroux in testifying made use of these photographs for the purpose of better
illustrating his testimony, so that the jury was better enabled to understand his testimony, and
also for the purpose of identifying the body of the deceased. It is a matter of discretion with
the trial judge to admit or exclude photographs offered in evidence.
matter of discretion with the trial judge to admit or exclude photographs offered in evidence.
(22 Am. & Eng. Ency. Law, 2d ed. 776.)
They are admissible if they are instructive to the jury and it is within the discretion of the
trial judge to admit or exclude them on the question of whether or not they are instructive.
They were instructive. They were admitted in evidence for the purpose of the identification of
Jack Welsh; for the purpose of identifying the deceased as a person on whom Dr. Giroux
performed the autopsy, and as the person whom he treated in the hospital at the time of which
he was testifying; for the purpose of illustrating and showing the nature, character, course,
and extent of the wounds that were inflicted upon the body of Jack Welsh, and as illustrative
of the testimony of Dr. Giroux and several witnesses in reference thereto. (Verran v. Baird,
150 Mass. 141; Gilbert v. West End Street Ry. Co., 160 Mass. 403; Harris v. Quincy, 171
Mass. 472; Carey v. Inhabitants of Hubbardston, 172 Mass. 106.) If photographs are
admissible, the sole question to be determined is whether or not they represent faithfully that
which they are intended to portray. The photographs were true representations, and faithfully
represented what they portrayed. It does not make any difference who took the photographs.
Photographs taken by amateurs are admissible if proven to be correct. (Underhill on Crim.
Ev. par. 51, and authorities cited.) Photographs of the head and neck of a man, showing the
wound, when proved to be the true representations of the location of the wound, were held
admissible. (People v. Fish, 125 N. Y. 136; Reddin v. Gates, 52 Iowa, 210; Alberti v. N. Y. L.
E. & W. R. Co., 6 L. R. A. 765.) It is respectfully submitted that the errors assigned by
appellants are devoid of legal merit and that the judgment of the lower court must be
affirmed.
Wm. Woodburn, for Appellants, in reply:
I. It appears from the record on appeal that J. P. Sevener, one of the defendants, after the
state rested its case, became a witness in his own behalf, and on his cross-examination by the
prosecuting attorney the following questions were propounded to him: Ever arrested for any
other offense except the one in California?
propounded to him: Ever arrested for any other offense except the one in California?
Defendant's attorney objected to said question. The court overruled the objection. Defendant's
attorney excepted to the ruling of the court. Answered by defendant: I was a machinist in the
navy yard at Vallejo, and was arrested for being drunk. Question by prosecuting attorney: I
want to ask you if you were ever convicted of a felony except the one which you served for.
You know what a felony isa penitentiary offense, not a county jail offense. I didn't care
anything about that. These questions were clearly inadmissible because they did not tend to
impeach the credibility of the witness, and were not in cross-examination of any matter
testified to in the direct examination, and tended to prejudice the minds of the jurors against
the defendants; their admission is error. (State v. Hoff, 11 Nev. 18; Newcomb v. Griswold, 24
N. Y. 298; Gale v. People, 26 Mich. 158; 1 Greenleaf Ev. sec. 458.)
II. The testimony is insufficient to warrant the conviction of Fred Roberts, one of the
defendants. Albert Waldman, the companion of Jack Welsh on train No. 219 on the 19th day
of August, 1903, testified that he recognized the defendant as being in company with Sevener
and Gorman and he asked him for a match. He said he had no matches; that he could get
matches over there, pointing to the other car; that Roberts had no arms and went to get
matches to the other car. After Roberts disappeared the other three drew pistols, exclaiming:
Throw up your hands, you sons of b-. Then they assaulted and robbed them; then yelled
to the latter: You sons of b-. Waldman, in clear and unmistakable language, swears that
Roberts inflicted no injury upon him or Welsh. T. T. Townsend, who was assaulted and
robbed on train No. 220, identified Sevener, Gorman, and Williams as his assailants, but did
not see Roberts. The evidence of Mohn, the brakeman on train No. 220, given at the first trial
of this cause and read at last trial, shows that Roberts was seated on a flat-car loaded with
lumber, and he flashed his lantern to ascertain who it was. The dying declaration of Jack
Welsh, even if admissible, fails to show that Roberts on train No. 219 on the night of August
19, 1903, assaulted or robbed Waldman or Welsh or either of them, or in any way aided or
assisted the perpetrators of the crime.
or robbed Waldman or Welsh or either of them, or in any way aided or assisted the
perpetrators of the crime. In view of the testimony of Waldman and Townsend and the
condition of Welsh at the time, it is claimed he identified the four defendants, and all of the
circumstances connected with such identification renders it extremely unreliable as far as
Roberts is concerned; his presence does not make him an accomplice or accessory.
III. The most common use of photographs is to enable witnesses to make their testimony
clearer and juries to understand it better. They are admissible when the identification of the
accused is in issue to show his changed appearance at different times. They are like maps and
diagrams permitted as evidence showing the scene of the homicide and the facts surrounding
the homicide in support of the theory of the prosecution. (People v. Whalen, 123 Cal. 551;
People v. Crandall, 125 Cal. 133.) At best photographs are but secondary evidence, only
admissible when lack of better evidence compels a resort to them. (Rice on Ev. vol. 3, sec.
151.) They were not introduced for any legitimate purpose, because the identity of Welsh was
never questioned. The witnesses Kelley and Albert Waldman, the companions of Welsh, were
on the freight train and witnessed the assault on Welsh and identified him. The man for
whom Welsh worked identified him before he died. Welsh told who he was, and therefore
there was no necessity for the introduction of his photograph. The wounds on the body of
Welsh and the course of the bullets were accurately described by Dr. Giroux, Welsh's
physician, and the pain he suffered. The photographs were not taken until the day after Welsh
died; they were taken by one Kenyon, an employee of the Southern Pacific Railroad
Company, who was not following the business of a photographer, and who was not shown to
have learned the art of photograph. They were not substantially necessary or instructive to
show any material facts or conditions, and are of such a character as to arouse sympathy or
indignation, or divert the minds of the jury to improper or irrelevant considerations. (Selleck
v. City of Janesville, 104 Wis. 575; Sebert v. West End St. R. R. Co., 160 Mass. 403-405;
Harris v. Quincy, 171 Mass.
Mass. 472; Fore v. State, 75 Miss. 527; State v. Miller, 74 Pac. 653; Dobson v. Philadelphia,
7 Penn. 321.)
IV. Upon these two foregoing assignments of error we respectfully submit that the
judgment of the court below should be reversed and a new trial ordered.
James G. Sweeney, Attorney-General, for Respondent, in reply:
I. Both the dying and written declarations of deceased were clearly admissible. The
evidence shows beyond any question that at the time of making the declarations he was fully
conscious of impending death; that he had abandoned all hope and all expectation of
recovery; that at the time of making the declaration he was entirely conscious, and in full
possession of his intellectual faculties. The evidence shows clearly and beyond any question
of doubt that Welsh was in a dying condition from the time he was brought to the hospital on
the day he made the oral and written dying declarations until he died, and the evidence shows
clearly that he was treated and considered as a dying man. Every witness who saw him
testified to that effect. The transcript is one mass of evidence in favor of the above legal
requisites necessary to the admission of dying declarations. The declarations were admissible
upon the ground of identification. (Mattox v. U. S., 146 U. S. 140; Commonwealth v. Roddy,
184 Pac. 274; Brotherton v. People, 75 N. Y. 159; State v. Freeman, 1 Spears (S. C.) 57;
McLean v. State, 16 Ala. 672; 10 Am. & Eng. Ency. 2d ed. 383.)
The dying declarations of deceased were admissible in evidence, they having been made in
the presence of defendants, and were admissible for the purpose of showing defendants'
conduct and behavior when identified and charged as being his assailants and accused of the
crime, for which purposes they were specifically offered. The declarations were clearly
admissible, not for the purposes argued by counsel to show that the silence of the prisoners
was tantamount to a confession of guilt, but tending to show the demeanor and bearing and
behavior of the defendants at the time that they were identified by the deceased. For instance,
Mr.
Stanton, Sheriff Lamb, Judge Robbins, and others testified that when the defendants were
identified their faces turned pale, and they trembled and showed signs of nervousness. (State
v. Nash and Redout, 7 Iowa, 347; State v. Gillick, 7 Iowa, 278; State v. Brunetto, 13 La. Ann.
45; Kendrick v. State, 55 Miss. 436; Powers v. State, 74 Miss. 777; Donnelly v. State, 26 N.
J. L. 463; 10 Am. & Eng. Ency. Law, 2d ed. 360.) The rule as to the admissibility of dying
declarations does not require that they should have been made while the sufferer was literally
breathing his last. If the declarations were made under a sense of impending dissolution, it
does not matter if death failed to ensue until a considerable time after the declarations were
made. The length of time elapsing between the making of the declarations and the declarant's
declarations were made under a sense of impending death. (10 Am. & Eng. Ency. Law, 2d ed.
369, and authorities there cited.)
In this instance the deceased died within three hours of the rendition of the dying
declarations. Even admitting, for the sake of argument, that deceased was partially
unconscious, but which we strenuously deny, and refer to the evidence, the declarations were
admissible, and the objections should go to their credibility and not their admissibility. (Hays
v. Commonwealth (Ky. 1890) 14 S. W. 833; People v. Beverly, 108 Mich. 509; 10 Am. &
Eng. Ency. Law, 2d ed. 376, under note, Narcotics.) A positive statement by the victim
identifying defendants as his assailants is not an expression of opinion, but a statement of fact
where the victim had opportunities for observation. (10 Am. & Eng. Ency. Law, 2d ed. 378.)
Dying declarations of deceased as to the state of declarant's mind are proved by the express or
direct language of the declarant. (10 Am. & Eng. Ency. Law, 2d ed. 388.) We submit to the
court that the evidence shows that the dying declarations made by Welsh were as plain,
concise, and intelligent as the English language would make them; that his answers in
response to queries put to him were direct, responsive, and relevant. The condition and
conduct of declarant as to the sense of impending dissolution may be inferred from the
apparent condition and nature of his injuries, and his conduct and deportment.
lution may be inferred from the apparent condition and nature of his injuries, and his conduct
and deportment. (10 Am. & Eng. Ency. Law, 2d ed. 389.) The court's attention is particularly
invited to pages 510 to 513 of the transcript wherein Mr. Warren properly lays the foundation
for the admission of the declarations through Dr. Giroux. We submit that the condition, his
conduct, deportment, and behavior were those of a dying man in full possession of his
intellectual faculties, but resigned to his fate. Further, that at the time of the making of the
oral and written dying declarations, the testimony shows unmistakably that Welsh not only
knew and believed he was going to die, but that he was actually dying at the time, and was so
treated by all who attended him.
II. The photographs admitted in this proceeding were properly admissible upon several
grounds. They were clearly admissible for the purpose of identification. (People v. Smith, 121
N. Y. 578; Crane v. Horton & Co., 5 Wash. 479; United States v. Pagliano, 53 Fed. 1001;
United States v. Lot of Jewelry, 59 Fed. 684; Travelers Ins. Co. v. Sheppard, 85 Ga. 751;
Beavers v. State, 58 Ind. 230; Brooke v. Brooke, 60 Md. 524; Commonwealth v. Campbell,
155 Mass. 537; 22 Am. & Eng. Ency. Law, 2d ed. 773, note 5.) The court's attention is
directed to the testimony of Conductor La Point, wherein he specifically identifies Jack
Welsh from a photograph handed him as being the man whom he picked up on August 20th
on the end of some ties near Zola siding. The court's attention is further directed to the
testimony of Mr. N. S. La Point, wherein he states that he never saw Jack Welsh before nor
since that date, thereby making the photograph a necessity in so far as identifying Jack Welsh
was concerned as the man he picked up on the morning following the tragedy. The court's
attention is further directed to Dr. Giroux's testimony, wherein he not only identifies Jack
Welsh as the party upon whom he operated for the wounds received from the assault of the
defendants, but also as to how he used the photographs as a means of making his testimony
clearer to the jury. They were clearly admissible upon the ground that they aided the jury in
applying the evidence. (People v. Durrant, 116 Cal.
rant, 116 Cal. 179; Rice, Crim. Ev. 154; Wharton's Crim. Ev. 9th ed. sec. 544; Thomson on
Trials, sec. 869; Udderzook v. Commonwealth, 76 Pa. St. 340; Bishop's New Crim. Proc.,
sec. 1097; People v. Fish, 125 N. Y. 136; Commonwealth v. Campbell, 155 Mass. 537; Ortis
v. State, 30 Fla. 256; Dederichs v. Salt Lake City Ry. Co., 14 Utah, 137; Reddin v. Gates, 52
Iowa, 210, 213.)
They were admissible as explanatory or illustrative evidence in enabling witnesses to make
their testimony clearer, and to enable jurors to understand it better. (Alberti v. N. Y. L. E. &
Western R. R. Co., 6 L. R. A. 765; Reddin v. Gates, 52 Iowa, 213; 22 Am. & Eng. Ency. Law,
2d ed. 774.) The court's attention is particularly directed to the fact that Dr. Giroux in
testifying made use of these photographs for the purpose of better illustrating his testimony,
so that the jury was enabled better to understand his testimony and also for the purpose of
identifying the body of deceased, Jack Welsh.
IV. It is a matter of discretion with the trial judge to admit or exclude photographs offered
in evidence. (22 Am. & Eng. Ency. Law, 2d ed. 776.) They are admissible if they are
instructive to the jury, and it is within the discretion of the trial judge to admit or exclude
them on the question of whether or not they are instructive. They were instructive. They were
offered and admitted in evidence for the purpose of illustrating and explaining the testimony
of the witnesses; for the purpose of the identification of Jack Welsh; for the purpose of
identifying the deceased as the person on whom Dr. Giroux performed the autopsy and as the
person he treated in the hospital at the time of which he was testifying; for the purpose of
illustrating and showing the nature, character, course, and extent of the wounds that were
inflicted upon the body of Jack Welsh, and as illustrative of the testimony of Dr. Giroux and
several witnesses in reference thereto. (Verran v. Baird, 150 Mass. 141; Gilbert v. West End
Street Ry. Co., 160 Mass. 403; Harris v. Quincy, 171 Mass. 472; Carey v. Inhabitants of
Hubbardston, 172 Mass. 106.)
If photographs are admissible, the sole question to be determined is whether or not they
represent faithfully that which they are intended to portray. The photographs were true
representations and faithfully represented what they portrayed.
true representations and faithfully represented what they portrayed. (Testimony of Giroux,
Kenyon, and La Point.) It does not make any difference who took the photographs.
Photographs taken by amateurs are admissible, if proven to be correct. (Underhill on Cr. Ev.
par. 51, and authorities cited.) Photographs of the head and neck of a murdered man, showing
the wound, when proved to be true representations of the location of the wound, were held
admissible in People v. Fish, 125 N. Y., 126. And subject to like limitations, the same rule
was applied by the court in Reddin v. Gates, 52 Iowa, 213, and in Alberti v. N. Y. L. E. & W.
R. Co., 6 L. R. A. 765.
V. The admission of the testimony of Townsend was clearly admissible upon several
grounds. It was admissible and competent to show by Townsend that defendants accused of
this crime were in the vicinity of the perpetration of that crime a short time before or at the
time the crime was committed. It was admissible and competent to show by testimony of
Townsend that defendants had an opportunity to commit the crime. The evidence of
Townsend giving reasons why he could identify the defendants as being the parties who were
near the scene of the tragedy at the time of its occurrence is clearly admissible. The court's
attention is particularly directed to the reasoning of the lower court before ruling on the
objection interposed to the admission of the testimony of Townsend. The court most
elaborately instructed the jury on the cardinal principle of law, founded on common justice,
that the commission of one crime by a person or persons is no evidence of itself of the
commission of another crime at a different time or place. Relevant evidence is not
admissible because indirectly proving or tending to prove another crime. All evidence is
relevant which throws or tends to throw any light upon the guilt or innocence of the prisoner,
and relevant evidence which is introduced to prove any material fact ought not to be rejected
merely because it proves or tends to prove that at some other time the accused has been guilty
of some other independent crime, etc. (Underhill on Cr. Law, 112 to 190.) If evidence
establishes a link in the chain of proof, it is relevant. (Jones on Evidence, sec. 143, vol 1.)
VI. The evidence of Waldman objected to by the defendants is also clearly admissible; the
same coming clearly within the rules covering res gestae. It is not necessary, as counsel
insists, that all evidence to be admissible as a part of the res gestae should pertain to that
which immediately happened before or at the time of the commission of the act; the great
mass of authorities hold that it is competent and proper to show any accompanying facts and
circumstances which are actually or substantially contemporaneous with it and calculated to
elucidate and explain its character. (24 Am. & Eng. Ency. Law, 662-665.) The simple reading
of the evidence of Waldman objected to will clearly demonstrate the same being
unmistakably connected with the commission of the crime in issue, and necessarily becoming
res gestae.
VII. Defendant Sevener having placed his character in issue after voluntarily admitting
that he had been arrested in Vallejo for the commission of a misdemeanor, it was clearly
proper under the most elementary principle of criminal law that the district attorney had the
right to show up defendant's character, and not only had the right to ask it of himself whether
or not he had ever been convicted of any other felony than the one for which he served in San
Quentin, but had the right by other witnesses to have gone into detail in the criminal record of
any of the other defendants. The instructions of the court instructing the jury that they should
not take into consideration the commission of the other offenses by the defendants in
determining the guilt or innocence of defendants of the crime for which they were on trial,
would in itself have sufficiently cured this error, if error it was admitted to be.
VIII. Not only did Jack Welsh in his dying statement assert that Roberts shot him, Roberts
being referred to as the heaviest and shortest one of the lot, but also identified him the day
after the tragedy as one who took part in the commission of the crime. Waldman also testified
that Roberts was present.
The defendants are three of the four who were convicted of murder in the first degree in
Humboldt County, and on a former appeal were granted a new trial by this court because
a juror who had expressed an unqualified opinion regarding their guilt or innocence had
been allowed to serve.
of murder in the first degree in Humboldt County, and on a former appeal were granted a new
trial by this court because a juror who had expressed an unqualified opinion regarding their
guilt or innocence had been allowed to serve. (27 Nev. 449.) Later the case was transferred to
Washoe County, and Frank Williams, who had been indicted, tried, and convicted jointly
with these defendants, was there given a separate trial. They have again been convicted of
murder in the first degree, and again appeal.
On August 19, 1903, Jack Welsh quit work in a hay field near Winnemucca, and about 8
o'clock, or half past, that evening, in company with Albert Waldman, left that town on
west-bound freight train No. 219. About 11:45 that night, after stopping at Mill City and
Humboldt House, this train slowed to a speed of from two to four miles per hour, and passed
freight train No. 220, east bound, at Zola, a side track about four miles east of Oreana, the
first station east of Lovelock. Directly after leaving Zola, four men appeared on the tops of
the box cars and robbed Welsh and Waldman, and forced them off the train about two miles
west of Zola, when it had reached a speed on the down-grade of from thirty to thirty-five
miles an hour. As Welsh clung to the ladder on the side of the car and begged for his life, they
stamped on his hands and shot him, until he fell to the ground. He called to Waldman, who
had fallen first, and who, after a brief unconsciousness, came to him and went for assistance,
but did not return until after he had been taken up and put in the caboose on a freight train
about 7:30 in the morning, and taken to Winnemucca, where he arrived and was placed in the
hospital a little after 9 o'clock that forenoon, and where he died at 7:15 that evening, nineteen
and a half hours after he had been shot, and about twelve hours after he had been taken from
the track, where he had lain for about seven and a half hours.
1. It is urged that the district court erred in admitting in evidence the following written
dying declaration of the deceased: My name is Jack Welsh. I am 20 years old. My home is in
Palisade. I have no brothers. I know who shot me when I see them. The heaviest and shortest
one of the lot shot me.
lot shot me. There were five men who attacked me. Al. Waldman was with me. There were
five men that attack me. Give me a match,' they says. I have no match,' says I. Throw up
your hands, you son of a bitch,' and I did. They went through my pockets. The one that shot
me had some kind of shawl around his neck. I saw the fellow when he shot me the first two
times. I was only four feet from him. This happened between 11 and 12 last night. I never saw
them before that I know of. The tallest man shot at me, too. I never had any weapons of any
kind. I was shot through the lungs, because the wound whistled when I moved. After I
jumped off the train the heavy-set fellow shot me. I know it was him, because he was on the
edge of the train and stamped on my hands. I believe I am going to die, and so I make this
statement. J. C. Welsh.
Counsel for defendants objected to this statement upon the grounds that it was hearsay;
that its admission would violate the constitutional right of the defendants to be confronted by
the witnesses against them; that it does not come under the exception to the hearsay rule
known as dying declarations, for to be admissible as such it must be made by one in extremis
and fully conscious of impending death, and who has abandoned all hope of recovery; that
dying declarations by one who was partially unconscious at the time he made them are
inadmissible; and that Welsh did not sign his complete signature to the statement, because,
when he had written to the last letter in his name, another at his request had made the h.
That dying declarations must be made under a sense of impending death in order to be
admissible is well illustrated by the cases cited in defendants' brief, and by many others; but
this may be shown, not only by what the injured person said, but by his conduct and
condition, and by the nature and extent of his wounds, and it is sufficient if these show that
the declarations were made without expectation of recovery and under a sense of impending
death, notwithstanding the declarant may not have said that he was without hope or that he
was going to die. (Mattox v. U. S., 146 U. S. 151, 13 Sup. Ct. 50, 36 L. Ed. 917; Anthony v.
State, Meigs {Tenn.)
Meigs (Tenn.) 279, 33 Am. Dec. 143; State v. Evans, 124 Mo. 397, 28 S. W. 8; State v.
Schmidt, 73 Iowa, 469, 35 N. W. 590; White v. State, 111 Ala. 92, 21 South. 330; State v.
Sullivan, 20 R. I. 117, 37 Atl. 673; People v. Simpson, 48 Mich. 474, 12 N. W. 662; State v.
Russell, 13 Mont. 164, 32 Pac. 854; People v. Taylor, 59 Cal. 640; Bell v. State, 72 Miss.
507, 17 South. 232; Com. v. Matthews, 89 Ky. 292, 12 S. W. 333; Puryear v. Com., 83 Va.
54, 1 S. E. 512; Johnson v. State, 47 Ala. 9; Com. v. Casey, 11 Cush. 417, 59 Am. Dec. 150;
Morgan v. State, 31 Ind. 194; State v. Fletcher, 24 Or. 295, 33 Pac. 575; Dixon v. State, 13
Fla. 639; Lester v. State, 37 Fla. 382, 20 South. 232; Jackson v. State, 56 Ga. 235; State v.
Wilson, 24 Kan. 189, 36 Am. Rep. 257; Com. v. Haney, 127 Mass. 459.)
The controlling point here is a question of fact for the courtthe state of mind of the
deceased at the time he made the statement; for, if he were not then under a sense of
impending death, the declarations would lack that solemnity and support which are necessary
to make them admissible. In addition to other wounds, a bullet had entered the back about
three inches from the spine, pierced the left lung and two walls of the stomach, shattered the
seventh rib, and lodged in the intestines. The doctor probed, removed a splinter of bone, and
opened the wound, so that about two pints of blood, which evidently came from the bullet
hole in the lung, escaped from the pleura. This relieved a discharge of blood from the mouth,
enabled the patient to breathe on the left side, eased his suffering to some extent, and
prolonged his life, so that he lived for about eight hours after the operation. He thanked the
doctor, and said he felt better; but, as he was aware of the serious nature of his wounds, this
does not indicate that he had any expectation that he would survive. It is easy to distinguish
between relief from pain and hope of recovery. (State v. Evans, 124 Mo. 397, 28 S. W. 8.)
In view of the injuries he had received and of which he was evidently aware, and of the
various statements he made, a feeling and expression of relief from suffering does not imply
that he expected to recover. Later, when in reply to questions the doctor gave him words of
encouragement, which no one aware of the gravity of his condition likely believed, he
shook his head as an implication that he was without hope of recovery.
questions the doctor gave him words of encouragement, which no one aware of the gravity of
his condition likely believed, he shook his head as an implication that he was without hope of
recovery. To render the statement admissible, it was not necessary for him to predict the hour,
or the day, or the specific time he would die. It is apparent that he was conscious of his
hopeless condition and that death was near, and, when he said in his written and verbal
statements that he was going to die, he meant and realized that dissolution was close at hand.
He had told Waldman that fatal night that he was shot through the stomach, and Merchant
and others in the forenoon that he could not live, and other witnesses in the afternoon that he
was going to die because he was shot through the lungs and could hear the wind whistle. It
would seem that only his youth, his unusual vitality, and the hand of fate enabled him to
survive long enough to make a statement and identify the defendants. If his dying declarations
are not admissible, it is difficult to conceive of but few cases in which they could be accepted.
Considering all he said, the mortal nature of his injuries, and his dying, yet conscious,
condition, it is reasonable to conclude that he was aware of the near approach of death, and
consequently that his statement was made under that sense of impending dissolution which
leads to a belief in its truth and sanctions its admission.
2. The four defendants indicted were arrested at Lovelock, taken to Winnemucca, and two
at a time, mingled with twelve or more other men, strangers to Welsh, arranged around his
bed. When touched, he opened his eyes and was asked: Do you recognize any of these
men? When his gaze came to Roberts, he looked him straight in the face and said: You shot
me. When he saw Sevener, he said: You are one, too. You helped to hold me up last night.
And when he saw Gorman, he said: You are one of them, too, that helped hold me up last
night. It is claimed that the admission of these declarations of Welsh, identifying the
defendants as the men who shot and robbed him, was error for different reasons. What we
have already said in relation to the written statement makes them admissible as dying
declarations.
declarations. As such they are as definite and entitled to at least as much consideration as if
Welsh had previously known them and had in their absence called them by name and asserted
that they were the men who had shot and robbed him. The evidence does not indicate that
Welsh was unconscious to any degree that would affect the admissibility or credibility of his
statements. Although there was an indication of the approach of the lethargy which divides
life from eternity, he was quick to recognize the good Samaritan who had given him a glass
of water, and others, as well as the defendants, and his mind appears to have been clear. It is
unnecessary to review the other objections to this testimony, when it is admissible for the
reasons stated.
3. Exception on the ground that it was not res gestae was taken to the testimony of
Waldman that, after they had been thrown off the train and it had gone so that he could barely
see the red lights and the end of the caboose, Welsh said: For God's sake, Al., run and get
help. I am shot through the stomach. If there be a doubt as to whether this was a part of the
res gestae, or properly admissible as a statement explaining Welsh's physical condition, and
showing that he was aware of the fatal nature of his injuries, as an aid to the introduction of
his dying declarations made later, the testimony would still be harmless as the hearsay
statement of a fact, the wound through the stomach, which was shown by competent
testimony without contradiction, and which counsel for defendant openly admitted on the
trial. It tended to prove nothing material which was not clearly established and frankly
conceded. It brought no doubtful matter to the attention of the jury to influence their verdict
against the defendants.
4. After Waldman had testified that after the robbery he went for assistance to Rye Patch,
and there fell down, exhausted from the loss of blood, and knew nothing until the next
morning, when he continued on to Oreana, objection was made, but there was no motion to
strike out this testimony. The same is true in regard to the answer by the witness that he had
received a wound upon the head. If it be conceded that this evidence was improper, and that
the court ought to have stricken out the answers, if a motion to that end had been made,
still it does not appear to have been prejudicial to the defendants, in view of their
admission upon the trial, that Welsh had been robbed and shot, and had died from the
injuries he received, and of the fact that they rested upon an alibi and conceded that the
deceased had been wounded, as claimed by the prosecution.
court ought to have stricken out the answers, if a motion to that end had been made, still it
does not appear to have been prejudicial to the defendants, in view of their admission upon
the trial, that Welsh had been robbed and shot, and had died from the injuries he received,
and of the fact that they rested upon an alibi and conceded that the deceased had been
wounded, as claimed by the prosecution. The only question for the jury was whether the
defendants were the perpetrators of a crime which was acknowledged to have been
committed, and in view of this and all the circumstances the testimony did not have a
tendency to influence the jurors on this issue.
5. The district court admitted the testimony of a witness named Townsend, who stated that
money, including three Mexican coin pocket-pieces, had been taken from him by these men
that night a few miles west of Zola siding, on east-bound freight train No. 220. These coins
were found upon one of the defendants when they were searched in the jail in Lovelock the
next morning. In this connection it is claimed, and authorities are cited in their brief holding,
that it is not proper to show that the defendants have committed other crimes not connected
with the one for which they are on trial. It will readily be seen that this correct legal principle
does not apply to the circumstances in this case. This testimony was not introduced for the
purpose of showing an independent robbery, and the fact that it had that tendency did not
prevent its proper admission as one of the strongest and most material facts directly
connecting the prisoners with the robbery and killing of Welsh. They claimed that they were
in Lovelock all that night, and not on any train, and that it was too dark for them to be
identified by the deceased and the witnesses, and consequently that the crime must have been
committed by other persons unknown. It was the theory of the prosecution that the defendants
had taken train No. 220, east-bound, from Lovelock, left it as it slowed at Zola siding, and
returned on train No. 219. If they were upon No. 220, as the coins taken from Townsend
thereon and found with them the next morning would indicate, they must have returned on
No. 219, the train upon which Welsh was robbed and shot, for the evidence indicates that
they were back in Lovelock soon after its arrival, and before they could have reached
there in any other way.
Welsh was robbed and shot, for the evidence indicates that they were back in Lovelock soon
after its arrival, and before they could have reached there in any other way. The testimony
was most material, direct, and important to show the presence of the defendants at the scene
of the crime, and admissible, regardless of whether it indicated another offense, the robbery
of Townsend. The court was particular to instruct the jury that they were not to consider the
defendants guilty by reason of any crime not charged in the indictment. In Hope v. People, 83
N. Y. 418, 38 Am. Rep. 460, it was said: But, where the evidence is relevant and material on
the question of the guilt of the prisoner of the crime for which he is upon trial, it cannot be
excluded merely because it also proves him guilty of another crime. In State v. Kepper, 65
Iowa, 745, 23 N. W. 304, evidence of a distinct offense was involved in proving the identity
of the defendant, and in Kernan v. State, 65 Md. 253, 4 Atl. 124, evidence of the movements
of the accused was held not incompetent because proof of another crime. Other cases, holding
that evidence showing the defendant guilty of an offense not charged is not on that account
inadmissible if it tends to prove any fact which is an element in the crime for which he is on
trial, are State v. Adams, 20 Kan. 311; McCartney v. State, 3 Ind. 353, 56 Am. Dec. 510;
Swan v. Com., 104 Pa. 218, and many decisions cited in Abbott's Trial Brief (Crim.) p. 411,
and pp. 514 to 523, covering numerous offenses. In State v. McMahon, 17 Nev. 365, 30 Pac.
1000, on a trial for arson, evidence of other fires was properly admitted to show that the one
for which the defendant was indicted was not accidental. A number of the decisions cited by
the appellants are in cases where proof of the presence of the accused at the place of the crime
could have been given as fully and clearly without evidence of facts indicating another
offense.
6. Of the four photographs offered on the trial, the one of the wound in the back after it
had been opened by the knife of the surgeon was properly excluded by the court, because the
bullet hole was no longer in the condition caused by the defendants. Of the three admitted,
one shows the face of the deceased in the repose of death, and in it Conductor La Point was
able to recognize the features of the man that was picked up at the end of the ties near
Zola in the morning and taken to Winnemucca in the caboose on his train, and the others
showed the entrances of the bullets on the arm and leg, and were illustrative and
instructive in connection with the testimony of the doctor and other witnesses.
La Point was able to recognize the features of the man that was picked up at the end of the
ties near Zola in the morning and taken to Winnemucca in the caboose on his train, and the
others showed the entrances of the bullets on the arm and leg, and were illustrative and
instructive in connection with the testimony of the doctor and other witnesses. If their
tendency was to give a more vivid realization of the wounds than a verbal description, they
were less gruesome than an exhibition of the man's injuries to the jury in his real flesh and
bone, which would have been permissible, if practicable. They had been taken the day after
Welsh died, and were not especially repulsive, and there was testimony to their correctness.
We are cited to some extreme cases where photographs were rejected on the grounds that
witnesses had described what they would show, or that they would inflame and prejudice the
jurydoctrines that we are not able to sanction, and which are not supported by the weight of
authority. If juries cannot be intrusted with the pertinent facts for which litigants and
offenders are responsible, however appalling they may be, and with the most accurate,
instructive, and convincing evidence of those facts, it is time to abolish the jury system.
Photography, engraving, and the art of picture-making are important factors in our
civilization, and the courts in their search for truth should not be averse to accepting the
benefits they bring. A glimpse at a photograph may give a more definite and correct idea of a
building or of a person's features than the most minute and detailed testimony. A child may
learn more regarding the appearance of an animal it never saw by the sight of its picture than
by listening to a lecture or reading a volume of description. When photographs are shown to
be correct representations, and give a better and clearer understanding of relevant facts, it
would seem on reason and principle that their use as evidence should be favored. It is
generally held that they need not be taken by a professional photographer, and that any one
who knows may testify regarding their correctness. That photographs of proven fidelity are
properly received for the purpose of identification, for illustrating testimony and for giving a
better impression of persons, places and things, and for more clearly showing material
facts, has often been determined, as appears by the numerous cases cited in respondent's
brief, and at section 792 of Wigmore's elaborate work on Evidence, at pages 414 to 419 of
17 Cyc., at page 513 of Abbott's Criminal Trial Brief, and in Dederichs v. Salt Lake City R.
R. Co.,
and things, and for more clearly showing material facts, has often been determined, as
appears by the numerous cases cited in respondent's brief, and at section 792 of Wigmore's
elaborate work on Evidence, at pages 414 to 419 of 17 Cyc., at page 513 of Abbott's Criminal
Trial Brief, and in Dederichs v. Salt Lake City R. R. Co., 14 Utah, 137, 46 Pac. 656, 35 L. R.
A. 802.
Photographs of deceased persons were properly admitted in Wilson v. U. S., 162 U. S. 613,
16 Sup. Ct. 895, 40 L. Ed. 1090 (murder); Ruloff v. People, 45 N. Y. 213 (of deceased
burglars after their bodies had been in the water two days); Com. v. Keller, 191 Pa. 122, 43
Atl. 198; State v. Windohl, 95 Iowa, 470, 64 N. W. 420 (of deceased after he was shot); Smith
v. Territory, 11 Okl. 669, 69 Pac. 805 (corpse and wounds); People v. Fish, 125 N. Y. 136,
26 N. E. 319 (head and neck showing wounds); Marion v. State, 20 Neb. 240, 29 N. W. 911,
57 Am. Rep. 825; Lamb v. State (Neb.) 95 N. W. 1050; State v. Hossock, 116 Iowa, 194, 89
N. W. 1077. And of features, in Com. v. Morgan, 159 Mass. 375, 34 N. E. 458; State v.
Ellwood, 17 R. I. 763, 24 Atl. 782; State v. McCoy, 15 Utah, 136, 49 Pac. 420; People v.
Durrant, 116 Cal. 179, 48 Pac. 75; Beavers v. State, 58 Ind. 535; Taylor v. Warner, 88 Tex.
642, 32 S. W. 868; Com. v. Connors, 156 Pa. 147, 27 Atl. 366; Cowley v. People, 83 N. Y.
477, 38 Am. Rep. 464; State v. Holden, 42 Minn. 354, 44 N. W. 123. And of wounds, in
Reddin v. Gates, 52 Iowa, 213, 2 N. W. 1079 (taken three days after injury).
And in Franklin v. State, 69 Ga. 42, 47 Am. Rep. 748, Chief Justice Jackson said: A
photograph of the wound of the deceased was admitted as evidence over the objection of
defendant. The throat of deceased was cut, the character of the wound was important to
elucidate the issue, the man was killed and buried, and a description of the cut by witnesses
must have been resorted to. We cannot conceive of a more impartial and truthful witness than
the sun, as its light stamps and seals the similitude of the wound on the photograph put before
the jury. It would be more accurate than the memory of witnesses, and, as the object of all
evidence is to show the truth, why should not this dumb witness show it?
show it? Usually the photograph is introduced to prove the identity of person, but why not to
show the character of the wound? In either case it is evidence. It throws light on the issue. (1
Bish. Crim. Proc. 1097; Wharton's Crim. Ev. 544, and cases cited in both texts.)
7. The defendant Sevener testified on his direct examination that he had served a term in
the state prison at San Quentin, California, and had been released on July 20, 1903, one
month previous to the commission of the crime with which he here stands charged. On
cross-examination he admitted that he had been convicted and was known there under the
name of Lawson. The court sustained an objection to the question: What other pens have
you been in, Mr. Sevener, besides the California San Quentin pen? Exception is taken to the
allowance of the next question: Ever arrested for any other offense, except the one in
California? To this he answered that he had been arrested in Vallejo for being drunk with a
bunch of shipmates. The district attorney replied: If that is a misdemeanor, I do not care
anything about it. I want to ask you if you were ever convicted of a felony, except the one
which you served fora penitentiary offense, not a county jail offense. I do not care anything
about those. The objection to the question did not specify the ground that the witness could
be interrogated only as to whether he had been convicted of felonies, and, if it had, we must
presume that the court would have sustained the objection, and that the district attorney
would have modified the question so as to limit it to convictions of felony, regarding which
he evidently was seeking information. If the answer that he had been arrested for being drunk
was harmful, which is not likely, under the disclaimer of the district attorney and the
voluntary statement of the witness that he had served for a felony, and the defendant did not
want it to stand, he ought to have moved to strike it out for the reason that it did not show
conviction of a felony, the ground which he had failed to specify in his objection to the
question. The common-law rule, which prohibits any one from testifying who has been
convicted of an infamous crime, was in force in this state prior to 1881. (State v. Foley, 15
Nev. 73, 37
15 Nev. 73, 37 Am. Rep. 458.) Since that year section 377 of our civil practice act (Comp.
Laws, 3472) has provided that no person shall be disqualified as a witness by reason of his
conviction of felony, but such conviction may be shown for the purpose of affecting his
credibility. (State v. Ellwood, 17 R. I. 763, 24 Atl. 782.) Section 12 of the act relating to
crimes and punishments (Comp. Laws, 4667) makes the rules for determining the
competency of witnesses in civil proceedings applicable to criminal actions.
8. It is claimed that the evidence does not warrant the conviction of the defendant Roberts.
The written statement of the dying man, made in the forenoon, that the shorter one shot him,
was corroborated by his identification in the afternoon, when he singled Roberts out of more
than a dozen strangers, looked him in the eye, and said: You shot me. Although Townsend
did not see him, a brakeman saw him and three others on train No. 220 a short time before it
reached Zola, and there is testimony that he was in Lovelock that evening. On the stand he
stated that he was in Lovelock all that night with the other defendants. When cross-examined
regarding his whereabouts between 11 and 12 o'clock that night, he said they were around
different saloons in Lovelock during that hour, and not on any train. If so, it is probable that
he and the other defendants could have clearly established an alibi. Waldman testifies that he,
as well as the others, had his face partly covered by a cloth around his chin. Waldman did not
see him shoot Welsh; but, if he shot after Welsh fell to the ground, as declared in the dying
statement, Waldman had already fallen from the train a half or quarter of a mile away, and it
was not necessary for him to have taken an active part at the time of the robbery. The
testimony that Roberts was in Lovelock in the evening, and was on train 220, and was not
seen on train 219 until he appeared there with the other defendants, indicates that he left and
returned to Lovelock with them, which could have been done in less than one hour. It is
apparent that the evidence was quite sufficient to justify the jury in finding that he was one of
the conspirators and participants in this midnight expedition of robbery and assassination.
The cause was carefully tried by court and counsel, the rights of the accused were well
guarded, and the record shows no error prejudicial to them.
The judgment and order are affirmed, and the district court will fix a time for having its
sentence carried into effect, and make the proper order for the execution of its judgment of
death.
____________
28 Nev. 380, 380 (1905) State v. Lee
[No. 1682.]
THE STATE OF NEVADA, ex rel. JOSEPH WEYERHORST, Relator and
Appellant, v. S. L. LEE, Secretary of the Nevada State Board of Medical Examiners,
Respondent.
Practice of MedicineTemporary LicenseStatutesImplied Repeal.
Act of March 15, 1899 (Stats. 1899, p. 88, c. 73; Comp. Laws, 1542), creating a state board of medical
examiners, regulating the practice of medicine and surgery, and authorizing the issuance of temporary
certificates entitling applicants to practice medicine until the next regular meeting of the board, is wholly
repealed by Stats. 1905, p. 87, c. 63, also entitled An act regulating the practice of medicine, declaring
all acts and parts of acts in conflict therewith repealed, providing that it shall be unlawful for any person
to practice medicine without first obtaining a license from the state board of medical examiners, and
making no provision for a temporary license.
Appeal from the District Court, Nye County; Peter Breen, Judge.
Mandamus by the State, on relation of Joseph Weyerhorst, against S. L. Lee, as Secretary
of the Nevada State Board of Medical Examiners. From a judgment and order sustaining a
demurrer to the petition, relator appeals. Affirmed.
George A. Clark, for Relator and Appellant:
I. This is an appeal from the order and judgment of the district court sustaining the
demurrer to the amended application and affidavit in mandamus, which, for the sake of
brevity, we will refer to as the complaint. As the demurrer specifies that the only grounds of
objection to the complaint are that it does not state facts sufficient to constitute a cause of
action, this review of the judgment and order on demurrer is confined to the question of the
sufficiency of the complaint.
28 Nev. 380, 381 (1905) State v. Lee
(Comp. Laws, 3136.) The act of 1899 concerning physicians and surgeons contained this
clause: When the board is not in session its secretary may issue a temporary certificate
whenever an applicant shall have deposited the usual fee and filed his diploma or license with
him, and such temporary certificate shall entitle the holder to practice until the next regular
meeting of said board. The act of May 3, 1905 enacted various provisions on the same
subject. Upon the subject of temporary certificates its provisions are silent. It contains this
express repealing clause: Sec. 18. All acts and parts of acts in conflict with this act are
hereby repealed. Appellant contends that the lower court erred: (1) In denying the motion for
an order permitting appellant to practice until the further order of the court; (2) in sustaining
the demurrer to the complaint; (3) in rendering judgment upon the order sustaining the
demurrer, for the reason that each is against law.
II. Appellant submits, first, that the express repealing clause of the act of 1905 does not
repeal the temporary certificate clause of the act of 1899. Appeals and the rules of law
governing their construction are divided into two classes: (a) Express repeals. (b) Repeals by
implication. Repeals by implication occur only where the later statute contains no express
repealing clause repugnant to and inconsistent and irreconcilable with prior enactments
relating to the same subject-matter. (Am. & Eng. Ency. Law (O. S.), vol. 23, p. 479; Id. (N.
S.), vol. 26, p. 717.) In the act of 1905, the repealing clause is in conflict with. No conflict
can be predicated as between two statutes in relation to a subject legislated upon in the one
and omitted in the other. (Conflict defined, Webster's Dict., Am. & Eng. Ency. Law (O. S.),
vol. 23, p. 479; Id. (N. S.), vol. 26, p. 717, and cases cited; Barden v. Wells, 14 Mont. 462;
People v. Durick, 20 Cal. 94; In re Yick Wo (Cal.), 9 Pac. 139; U. S. v. Greathouse, 166 U. S.
601.)
III. Where an act is passed covering the whole of a particular field of legislation it is
customary to insert a general clause repealing all acts and parts of acts inconsistent
therewith.' Such a clause is effective in repealing acts inconsistent therewith.
28 Nev. 380, 382 (1905) State v. Lee
therewith. Only those acts on the same subject or parts of such acts clearly inconsistent and
irreconcilable with the provisions of the repealing act are rendered invalid and only to the
extent of the conflicting provisions. (Am. & Eng. Ency. (O. S.), vol. 23, p. 477.) Barden v.
Wells, cited above, is squarely on all-fours with the case at bar. A number of decisions will be
noted in which the general premise is stated to the effect that when the latter act appears by its
provisions to have been intended to supersede all previous enactments on the same subject, it
will be held to have repealed them in toto. A careful examination of these decisions will
disclose that in all the cases either that the entire subject of both acts and all the provisions of
the earlier acts were expressly covered by the provisions of the later enactment, or that the
intent of the legislature to wholly supersede the former enactments was justly, fairly, and
reasonably to be inferred from the provisions of, and the language used in, the later act. In the
case at bar the act of 1905 does not cover the subject of temporary certificates or even allude
to it. By its terms regular meetings of the board, at which applications to practice are heard
and passed upon, are held on the first Mondays of May and November only. Can it be
inferred in justice, fairness, or reason that the Nevada Legislature intended that persons
applying between sessions of the board, for example, on the first Tuesdays of May and
November, and exhibiting to its secretary diplomas, licenses, or other prima facie evidences
of their qualifications to be entitled to the right to practice their profession, should be
arbitrarily denied their right, under penalty of prosecution for a misdemeanor, during the six
months intervening before the next regular meeting of the board? We submit that to impute
such an intention to the Legislature of Nevada would be as unfair to that body as its
expression and effect would be to this appellant and other applicants.
IV. The clause of the act of 1899 relating to the issuing of temporary certificates did not
confer upon the secretary of the board a judicial power or the exercise of a discretion. It
charged him with the performance of a purely ministerial duty, upon the filing by an applicant
of his diploma or license, and the word "may" is mandatory and to be construed as
"must."
28 Nev. 380, 383 (1905) State v. Lee
license, and the word may is mandatory and to be construed as must. The power is
conferred upon the secretary as an individual member of the board. If the legislature had
intended to confer a judicial power or the exercise of a discretion, it would have reposed it in
the board and not in the secretary. What a public corporation or officer is empowered to do
for others, and it is beneficial to them to have done, the law holds he ought to do. This
forceful statement of the rule, in the language of the Supreme Court of the United States, is
reiterated in many decisions. (Mason v. Fearson, 9 How. (U. S.) 247; Thompson v. Carrol,
22 How. 422; Kohen v. Hinshaws, 20 Pac. (Or.) 629; Estate of Walley, 11 Nev. 260;
Ballantine's Estate, 45 Cal. 696; Supervisors v. U. S., 4 Wall. 445; Bank v. Neill, 13 Mont.
382; M. O. P. Co. v. Lindsay (Mont.) 63 Pac. 71; Rex v. Thurston, 7 Hawaii, 523; Am. &
Eng. Ency. Law (O. S.), vol. 15, p. 979, and cases there cited.) The lower court possessed the
power, inherent in all courts of record for the purpose of promoting justice, and undoubtedly
conferred upon it under the provisions of the Nevada constitution, to make an order
permitting appellant to practice. This court possesses the same power. (Const. Nev., Comp.
Laws, 115-117.)
Wm. M. Forman and W. B. Pittman, for Respondent:
I. The lower court had no power to make an order permitting the appellant to practice
medicine and surgery pending the determination of the mandamus proceeding. The
mandamus proceeding is a legal action, the state board of medical examiners alone having
power in the first instance to grant certificates to practice medicine and surgery in the State of
Nevada. Had the appellant complied with the law and the board refused to act, then appellant
might have invoked the aid of the court to compel action, but the court could not authorize
the appellant to continue violating the laws of the state pending the determination of his rights
in the mandamus proceeding. The action of the court in sustaining the demurrer to the
complaint was legal and proper. The ordinary rules of pleading in other actions apply to a
demurrer in mandamus proceeding. A demurrer on motion to quash should as a general rule
be made before answer or reply.
28 Nev. 380, 384 (1905) State v. Lee
to quash should as a general rule be made before answer or reply. (Ency. Pl. & Pr. vol. 13, pp.
698-700.) A demurrer does not admit conclusions or inferences set up in the pleading
demurred to. Thus the construction of a statute is not admitted. (Ency. Pl. & Pr. vol. 13, pp.
698-700.) The applicant assumes in his complaint and contends in this court that the act of
March 15, 1899, so far as the same relates to the issuance of temporary certificates by the
secretary of the state board of medical examiners, is not repealed by the act of 1905, p. 87.
Even were this true, then the complainant does not bring himself within the provisions of the
act of March 15, 1899, p. 88, so as to entitle him to such a temporary certificate.
Section 4 of the act of March 15, 1899, provides: Said board shall also issue a certificate
to any person who shall have been regularly engaged in the practice of medicine and surgery
within this state for five years immediately preceding the passage of this act, and who after an
examination by said board shall be found to be qualified to practice medicine and surgery. It
shall also issue a certificate to any person who has had issued to him a diploma or license
from any reputable school or college of medicine and surgery which is located without the
United States, upon the applicant being found competent after having passed a satisfactory
examination by said board. When the board is not in session its secretary may issue a
temporary certificate whenever an applicant shall have deposited the usual fee and filed his
diploma or license with him, and such temporary certificate shall entitle the holder to practice
until the next regular meeting of said board. This section further provides that all
examinations shall be thorough and searching and prescribes the branches upon which such
examinations shall be had. The appellant in the case at bar does not come within the
provisions of this section so as to entitle him to a license to practice nor to a temporary
certificate. His complaint shows that he has resided in this state since April 21, 1905, nor
does his complaint allege that he offered to submit to an examination so that the board might
ascertain whether or not he was competent.
28 Nev. 380, 385 (1905) State v. Lee
It appears from the amended complaint that the applicant is a graduate of a college in
Belgium. This being true, then, under the law of 1899, before the applicant could be admitted
to practice medicine and surgery in this state, he must have passed an examination. The
respondent, therefore, under the law of 1899, would have had no right to issue a temporary
certificate. It follows that, even had the law of 1899 not been repealed by the act of 1905, the
appellant has no standing in court, and had the respondent issued to the applicant a temporary
certificate he would have done what the whole board, when in regular session, would not
have been authorized to do. It cannot be assumed that the legislature intended to delegate to
the secretary greater power than that conferred upon the whole board. Moreover, the
complaint alleges that applicant made his application to the board on April 29, 1905, and a
temporary certificate, had it been issued, would only have been good until the regular meeting
of the board, which, under the law of 1899 (sec. 2), was on the first Monday in MayMay 1,
1905at which time the applicant could have presented his application and diploma, and, if
entitled to practice, a certificate would have been issued. Respondent insists that, even though
the applicant had brought himself within the strict letter of the statute, and even though the
act of 1905 did not repeal the act of 1899 in relation to the granting of the temporary
certificate by the secretary, yet it was discretionary with the secretary whether or not he issued
a temporary certificate.
In construing a statute the whole statute and all its parts are to be taken together, and the
intention so ascertained will prevail over its literal import and strict letter. In construing a
section of an act regard must first be had to the language of the clause itself, and that
construction should be adopted which consistently makes the whole act stand together or
reduces the inconsistency to the smallest possible limit. (Am. & Eng. Ency. Law, vol. 26, p.
616.) The secretary of the board of medical examiners, under the acts of 1899 and 1905, is
also one of the members of the board. The law then was evidently intended to give him some
discretion in the matter of issuing a temporary certificate to one whose diploma and
application does not bring him within the provisions of the statutes.
28 Nev. 380, 386 (1905) State v. Lee
one whose diploma and application does not bring him within the provisions of the statutes.
Hence, in the light of the act of 1899, construed as a whole, the words may issue a temporary
certificate do not mean must issue a temporary certificate. In a statute the word may' can
be construed in a mandatory sense where such construction is necessary to give effect to the
clear policy and intention of the legislature, and, where there is nothing in the connection of
the language or in the sense or policy of the provision to require an unusual interpretation, its
use is merely permissive and discretionary. (Am. & Eng. Ency. Law, vol. 20, p. 237, and
cases cited.)
II. There can be no doubt whatever of the intent of the legislature to repeal the act of
March 15, 1899, by the act of March 4, 1905. In the title of the act of March 4, 1905, p. 87, it
provides for the repeal of all acts or parts of acts in conflict therewith. Also, section 18 of
this act is as follows: All acts or parts of acts in conflict with this act are hereby repealed.
The law of 1905 nowhere makes provision for the issuance of a temporary certificate to
practice medicine and surgery, either by the secretary or by any other person or persons. The
act provides (sec. 4) that the board shall meet on the first Monday in May, 1905, and
organize, and that thereafter said board shall meet on the first Monday in May and November
of each year, and may also hold special meetings. Section 5 of the act provides that the board
shall receive, through the secretary, applications for the certificates provided to be issued
under the act. The act of 1899 nowhere provided for any special meeting of the board, and
hence the reason in giving the secretary authority to issue a temporary certificate to
applicants, while, under the act of 1905, section 4 provides that special meetings may be held
at the call of the president by giving notice of such meeting. It is plain, therefore, that the
legislature intended that certificates should only be granted by the board.
If two statutes on the same subject are mutually repugnant, the latter act, without any
repealing clause, operates in the absence of expressed intent to the contrary as a repeal of the
earlier one, on the obvious principle that the enactment of provisions inconsistent with
those previously existing manifests a clear intent to abolish the old law."
28 Nev. 380, 387 (1905) State v. Lee
enactment of provisions inconsistent with those previously existing manifests a clear intent to
abolish the old law. (Thorpe v. Schooling, 7 Nev. 15; Am. & Eng. Ency. Law, vol. 26, p.
723.)
In mandamus it must appear that the defendant yet has it in his power to perform the duty
required of him; and the writ will be refused if it be manifest that it would be vain and
fruitless or cannot have a beneficial effect. (State v. Waterman, 5 Nev. 326.) The act of 1905
(sec. 17) provides that every person practicing medicine, surgery, or obstetrics in the State of
Nevada on the first Monday of May, 1905, shall submit his or her diploma or his or her
certificate to the board for registration, and if the diploma be from a medical college in good
standing a certificate to practice may be granted. This the applicant has failed to do, else he
would have so pleaded. Statutes similar to the one under consideration, denying to all
physicians in the state lawfully engaged in practice the right to continue such practice until
they conform to the requirements of the statute, and restricting the practice of medicine to
persons who are able to demonstrate their qualifications, have been held a proper exercise of
the police power of the state in nearly every state of the Union. (State v. Webster, 150 Ind.
607, and cases therein cited.)
The applicant is not entitled to the relief he asks, but must do like all others are required to
dosubmit his credentials, make the affidavits required by section 7 of the act of 1905, show
by the affidavit of two freeholders of the county that he is the identical person named in the
diploma which he files, and that he is of good moral character and standing and reputable,
and if he has not been guilty of any unprofessional conduct, no doubt he will be permitted to
practice medicine and surgery in all its branches. The fact that he has failed to do this shows
clearly that he has doubts as to his ability to show himself competent to obtain a license, and
the court should refuse him aid unless he has clearly shown he is entitled to it, which he has
wholly failed to do. The complaint states no cause of action, hence the lower court properly
sustained the demurrer.
28 Nev. 380, 388 (1905) State v. Lee
This is an appeal from a judgment and from an order sustaining a demurrer to appellant's
petition to the Third Judicial District Court of the State of Nevada, in and for the County of
Nye, for a writ of mandate to be directed to respondent requiring him, as the secretary of the
state board of medical examiners, to issue to appellant a temporary certificate entitling
appellant to practice his profession of medicine and surgery in this state until the next regular
meeting of the state board of medical examiners. Relator, by his petition, claims to be
qualified to have issued to him by the state board of medical examiners a certificate or license
entitling him to practice his profession in the State of Nevada, and that under the provisions
of section 4 of an act entitled An act providing for the creation of a state board of medical
examiners, and to regulate the practice of medicine and surgery in the State of Nevada,
approved March 15, 1899 (Stats. 1899, p. 89, c. 73; Comp. Laws, 1542), it is the duty of the
respondent, as the secretary of the state board of medical examiners, to issue to him a
temporary certificate entitling relator to practice until the next regular meeting of the board.
The only material question presented upon this appeal is whether or not that portion of the
said act of 1899 providing for the issuance of temporary certificates by the secretary of the
state board of medical examiners has now any force as a part of the law of this state
regulating the practice of medicine and surgery. The legislature of this state at its last session
passed an act entitled An act regulating the practice of medicine, surgery, and obstetrics in
the State of Nevada; providing for the appointment of a state board of medical examiners and
defining their duties; providing for the issuing of licenses to practice medicine; defining the
practice of medicine; defining certain misdemeanors and providing penalties; and repealing
all other acts, or parts of acts, in conflict therewith, approved March 4, 1905. (Stats. 1905, p.
87, c. 63.) The court below held that the effect of the act of 1905 was to repeal the act of
1899, and, as the act of 1905 contained no provision for the granting of temporary
certificates to applicants to practice medicine, surgery, or obstetrics, there remained
nothing upon which to base a writ of mandate.
28 Nev. 380, 389 (1905) State v. Lee
of temporary certificates to applicants to practice medicine, surgery, or obstetrics, there
remained nothing upon which to base a writ of mandate. The correctness of the decision of
the trial court is maintained by counsel for respondent, while counsel for appellant takes the
position that the provision of the act of 1899, authorizing the issuance of temporary
certificates by the secretary of the state board of medical examiners, is not in conflict with
any provision of the act of 1905, and, as the latter act does not contain any clause expressly
repealing the act of 1899, the provision in question is still in force.
A careful comparison of the two acts, however, leads to the conclusion that, under a
well-settled rule of statutory construction, the entire act of 1899 is repealed by the act of
1905. The act of 1905 is a comprehensive measure, complete in itself, revising the whole
subject-matter of the act of 1899, and evidently intended as a substitute for it, although it
contains no express words to that effect. In the case of Bartlett et al. v. King, Executor, 12
Mass. 537, 7 Am. Dec. 99, the rule applicable to this case was stated as follows: A
subsequent statute, revising the whole subject-matter of a former one, and evidently intended
as a substitute for it, although it contains no express words to that effect, must, on the
principles of law, as well as in reason and common sense, operate to repeal the former. This
court has heretofore twice quoted with approval the rule as above declared in the Bartlett
case, and it is supported by abundant authority from other courts. (Thorpe v. Schooling, 7
Nev. 15; State v. Rogers, 10 Nev. 319; Mack v. Jastro, 126 Cal. 132, 58 Pac. 372; State
Board of Health v. Ross, 191 Ill. 87, 60 N. E. 811.) See, also, 26 Am. & Eng. Ency. Law, 2d
ed. 731, and authorities cited in note 4.
The case of State Board of Health v. Ross, supra, is particularly in point, and we quote a
brief extract from the opinion in that case: An examination of the act of 1887 shows that it is
a complete revision of the whole subject-matter of the former act of 1877, is a complete and
perfect system in itself, and, as we have seen, was an act to regulate the practice of medicine
in the State of Illinois, and gave power to the board of health to revoke certificates of
persons licensed under the act for unprofessional or dishonorable conduct.
28 Nev. 380, 390 (1905) State v. Lee
the board of health to revoke certificates of persons licensed under the act for unprofessional
or dishonorable conduct. This being so, the act of 1887 operated as a repeal of the act of
1877, without any reference to the express repealing clause contained in the former act.
(Culver v. Bank, 64 Ill. 528, and cases there cited: Devine v. Board of Commissioners, 84 Ill.
590; People v. Town of Thornton, 186 Ill. 162, 57 N. E. 841; Sutherland on Statutory Const.
156; Norris v. Crocker, 13 How. 438, 14 L. Ed. 210.) In the Devine case the court say: A
subsequent statute revising the whole subject of a former one, and intended as a substitute for
it, although it contains no express words to that effect, operates as a repeal of the former.' In
the very recent case of People v. Town of Thornton, supra, the supreme court say: Where the
legislature frames a new statute on a certain subject-matter, and the legislative intention
appears from the latter statute to be to frame a new scheme in relation to such subject-matter
and make a revision of the whole subject, there is, in effect, a legislative declaration that
whatever is embraced in the new statute shall prevail, and that whatever is excluded is
discarded. The revision of the whole subject-matter by the new statute evinces an intention to
substitute the provisions of the new law for the old law upon the subject.' It follows that the
claim that the act of 1877 is still in force is untenable, as it is repealed by the act of 1887.
In the case of Mack v. Jastro, supra, the question involved was whether the county
government act of 1897 operated as a repeal of the county government act of 1893. The court
in that case say: We think, however, that a reading of the two sections at once discloses that
the legislature in the county government act of 1897 designed and devised a new and
complete scheme for the issuance of county bonds, and, while it is true that repeals by
implication are not favored, whenever it becomes apparent that a later statute is revisory of
the entire matter of an earlier statute, and is designed as a substitute for it, the latter statute
will prevail, and the earlier statute will be held to have been superseded, even though there be
found no inconsistencies or repugnancies between the two. Frequently these cases arise where
the later statute covering the whole subject-matter omits or fails to mention certain terms
or requirements found in an earlier, and it is insisted, as here, that those particular
provisions of the earlier statute should be held to be still in force.
28 Nev. 380, 391 (1905) State v. Lee
later statute covering the whole subject-matter omits or fails to mention certain terms or
requirements found in an earlier, and it is insisted, as here, that those particular provisions of
the earlier statute should be held to be still in force. But, as is said by the Supreme Court of
the United States in Murdock v. Mayor, 20 Wall. 590, 22 L. Ed. 429, where a like question
was presented to that tribunal: It will be perceived by this statement that there is no repeal by
positive new enactments inconsistent with the old law. It is the words that are wholly omitted
in the new statute which constitute the important feature in the questions thus propounded for
discussion. * * * A careful comparison of these two sections can leave no doubt that it was
the intention of Congress by the latter statute to revise the entire matter to which they both
had reference, to make such changes in the law as it stood as they thought best, and to
substitute their will in that regard entirely for the old law upon the subject. We are of opinion
that it was their intention to make a new law so far as the present law differed from the
former, and that the new law embracing all that was intended to be preserved of the old,
omitted what was not so intended, because complete in itself, and repealed all other law on
the subject embraced within it. The authorities on this subject are clear and uniform.' After
citing a number of additional authorities the court further say: The facts in the case above
quoted and in the one at bar are strictly analogous, and the principle declared is pertinent and
decisive. It would unduly and unnecessarily prolong this consideration to set forth the two
statutes for purposes of comparison and contrast; but, as has been said, a mere reading of the
two will at once disclose that the legislature, by the latter, formulated a plan for the issuance
of bonds, full and complete in itself, and therefore a plan which superseded its earlier
declaration on the matter. It is not so much a repeal by implication as it is that, the legislature
having made a new and complete expression of its will upon the subject, this last expression
must prevail, and whatever is excluded therefrom must be ignored.
Counsel for appellant, while admitting the correctness of the rule relied on, argues that it
is not applicable to statutes like that of 1905 in question, for the reason that, the
legislature having in the repealing clause of the act expressed its intention as to the
extent the act should operate as a repeal of former statutes or provisions of law, such
repealing clause is controlling.
28 Nev. 380, 392 (1905) State v. Lee
the rule relied on, argues that it is not applicable to statutes like that of 1905 in question, for
the reason that, the legislature having in the repealing clause of the act expressed its intention
as to the extent the act should operate as a repeal of former statutes or provisions of law, such
repealing clause is controlling. Section 18 of the act of 1905 contains this repealing provision:
All acts and parts of acts in conflict with this act are hereby repealed. From this position
counsel argues that the provisions of the act of 1899, relative to the granting of temporary
certificates by the secretary of the board of medical examiners, are not in conflict with the
provisions of the act of 1905, and hence are still in force and impose the duty upon
respondent to grant the temporary certificate demanded of him. Counsel has cited one or two
authorities which seem to support his contention, particularly the case of Barden v. Wells, 14
Mont. 462, 36 Pac. 1076. In the case last mentioned the court gave a literal construction to a
repealing clause similar to that contained in the act of 1905 in question, and virtually held that
it alone was determinative of the intention of the legislature in so far as the repealing effect of
the statute was concerned. If it was the intention of the Montana court to hold the rule applied
in the Barden case to be an inflexible one, to be applied in all cases where statutes containing
similar repealing clauses are to be construed, then it becomes a rule of interpretation to which
we cannot subscribe. Where the rule which we have held to be governing in this case has
been applied by the courts generally, repealing provisions of a general nature like that herein
in question have not been given controlling effect in determining the intention of the
legislature as to the extent the act should operate to repeal former statutes or provisions
thereof. If from the entire body of the statute the legislative intent is plainly manifest, that
intent is controlling and will be given effect, even though a single section, taken alone, might
be so construed as to manifest a different intent. The same rules of construction are applicable
to repealing clauses as to other portions of a statute. (Smith v. People, 47 N. Y. 339; 26 Am.
& Eng. Ency. Law, 2d ed. 720.) In the case of Smith v. People, supra, the court say: "A clause
in a statute purporting to repeal other statutes is subject to the same rules of
interpretation as other enactments, and the intent must prevail over literal interpretation.
28 Nev. 380, 393 (1905) State v. Lee
A clause in a statute purporting to repeal other statutes is subject to the same rules of
interpretation as other enactments, and the intent must prevail over literal interpretation. One
part of an act of the legislature may be referred to in aid of the interpretation of other parts of
the same act. In the cases of Mack v. Jastro, State Board of Health v. Ross, and Thorpe v.
Schooling, supra, cited in support of the rule held applicable to this case, all contain repealing
sections practically identical with section 18 of the act of 1905.
Even if the rule we have held governing in this case were not applicable, nevertheless,
appellant could not prevail, for the reason that the provisions of the act of 1899 relative to the
granting of temporary certificates are in conflict with certain of the provisions of the act of
1905. By section 1 of the latter act it is provided: That it shall hereafter be unlawful for any
person, or persons, to practice medicine, surgery, or obstetrics in this state without first
obtaining a license so to do as hereinafter provided. By section 7 it is provided: After this
law goes into effect, any person desiring to practice medicine, surgery, or obstetrics, or any of
the various branches of medicine in this state, shall, before beginning to practice, procure
from the state board of medical examiners a certificate that such person is entitled to practice
medicine, surgery, or obstetrics, in this state, etc. If, under the provisions of the act of 1905
quoted, it is necessary to obtain a license from the state board of medical examiners before
lawfully becoming entitled to practice, how can it be argued that one can also be entitled to
practice upon a certificate issued simply by the secretary of the board, and upon the issuance
of which the state board has not passed? The act of 1899 did not contain any similar provision
making it incumbent to obtain a license from the board of medical examiners before
beginning to practice. It authorized such board to issue licenses at regular meetings, and
permitted the secretary of the board to grant temporary certificates between the regular
meetings good until the next regular meeting of the board. Taking the act of 1905 as a whole,
we think it is clearly manifest that it was the intention of the legislature to provide that no one
should be permitted to practice medicine, surgery, or obstetrics in this state, except after
obtaining a license so to do from the state board of medical examiners.
28 Nev. 380, 394 (1905) State v. Lee
mitted to practice medicine, surgery, or obstetrics in this state, except after obtaining a license
so to do from the state board of medical examiners.
It is argued that, as only two regular meetings of the board are provided for per annum, a
construction of the statute as here given will impose a great hardship on those seeking to enter
the practice between such regular meetings, and to impute such intention upon the legislature
would be unfair to that body. Doubtless the legislature in the passage of the act of 1905 was
considering the public good, rather than the convenience of private individuals; but the
legislature also doubtless intended to obviate the inconvenience that applicants to practice
might experience from being unable to longer obtain temporary certificates by the provision,
not found in the act of 1899, permitting special meetings of the board to be held at the call of
the president of the board upon two weeks' published notice.
The conclusion we have reached upon the main question makes it unnecessary to consider
others presented in the record.
The judgment and order of the trial court are affirmed.
____________
28 Nev. 395, 395 (1905) State v. Williams
[No. 1677.]
THE STATE OF NEVADA, Respondent, v. FRANK
WILLIAMS, Appellant.
1. HomicideRobberyFirst Degree Murder. Where a homicide occurred as part of a continuous assault
about two minutes after a robbery, and was for the apparent purpose of preventing detection, defendant
was guilty of murder in the first degree.
2. JurorsQualificationOpinion. Where a juror had formed a qualified opinion as to defendant's guilt, based
largely on newspaper reports and hearsay statements of others, which did not purport to be made by
witnesses who knew the facts, and he testified that he was able to decide the case on the evidence
introduced, and, unless convinced of defendant's guilt from the evidence beyond a reasonable doubt,
would acquit him, he was not subject to challenge.
3. HomicideEvidenceDying Declarations. In a prosecution for homicide, a written dying statement made
by deceased was not objectionable because it was in a narrative form and did not include the questions
asked.
4. Criminal LawProsecuting AttorneyArgumentMisconduct. Where, in a prosecution for homicide,
defendant's counsel did not avail himself of the privilege of securing an alleged confession in the
possession of the state and offer it in evidence, the fact that the prosecuting attorney in his opening
statement erroneously referred to such confession as having been voluntarily made by defendant, and
stated some of the facts contained therein, and that he might introduce it in evidence, which he
subsequently failed to do, did not constitute reversible error.
5. SameFailure to Testify. Where a prosecuting attorney, in reply to the argument of defendant's counsel that
an alleged confession, if introduced, would have been beneficial to accused, stated that defendant could
have taken the stand and testified with reference to the confession, referred to by the state but not
introduced in evidence, if he had so desired, and the court, in response to an objection, stated that the
fact that defendant was not a witness could not be considered against him, the argument of the
prosecuting attorney was not reversible error.
Frank Williams was convicted of murder in the first degree, and he appeals. Affirmed.
Hummel & Hartson, and P. N. Packard, for Appellant:
I. The evidence is insufficient to justify the verdict in that it appears from said evidence
that the killing was done without premeditation, premeditation being a requisite for murder in
the first degree.
murder in the first degree. The evidence of Albert Waldman, the state's only eye-witness to
the killing, was to the effect that the shooting occurred at least two minutes (it might have
been longer) after the perpetration of the robbery, and upon another car, and at another place;
and was therefore, by reason of the lack of premeditation, murder in the second degree.
(Comp. Laws, 4672.)
II. The court erred in refusing to strike out the alleged dying declaration of Jack Welsh.
The testimony of C. E. Robbins shows that Jack Welsh, at the time he made the alleged dying
statement, was in a comatose condition. The said declaration consists simply of a lot of
answers to direct questions propounded by the district attorney, and answered in the manner
and form indicated by the state's attorney. As a matter of fact the said Welsh made no
declarations. It was simply the testimony, unsworn, of Mr. Warren, assented to by Mr. Welsh
at Warren's instance. Declarations of one to be admissible as dying declarations must have
been made under the sense or belief of his impending death. The explicit statement of the
declarant that he was going to die is not always enough to show that the declaration was
really made under the belief of impending death. The alleged statement shows on its face that
it is simply a lot of answers to direct questions propounded by the district attorney. Dying
declarations founded upon questions and answers must contain the questions as well as the
answers. (Abbott's Crim. Cases, 2d ed. 486; Titus v. State, 117 Ala. 16, 23 South. 77; Starr v.
Com., 97 Ky. 193, 30 S. W. 397; Taylor's Med. Jur. 454-455; People v. Brady, 14 Cal. 202.)
III. The court erred in not compelling the state to produce the alleged confession of the
defendant, as set forth in the prosecuting attorney's opening statement to the jury. The
statement of the prosecuting attorney in the opening of the case to the jury, in the presence of
the court, is an official statement made under the solemnity of his official oath. In this
statement the prosecuting attorney used the following language: Now, there may be, and
probably will be, another feature of this case introduced on the part of the state, and it will be
evidence to show that this defendant was duly convicted in Humboldt County, in
conjunction with Sevener, Roberts, and Gorman, of murder in the first degree, and
sentenced to be hanged for that crime; that, while they were confined in the Nevada
Penitentiary awaiting the execution of that sentence, this defendant, without solicitation,
without promise of reward, without any condition attached thereto, made a written
statement; that he declared to the warden of the penitentiary, Mr.
was duly convicted in Humboldt County, in conjunction with Sevener, Roberts, and Gorman,
of murder in the first degree, and sentenced to be hanged for that crime; that, while they were
confined in the Nevada Penitentiary awaiting the execution of that sentence, this defendant,
without solicitation, without promise of reward, without any condition attached thereto, made
a written statement; that he declared to the warden of the penitentiary, Mr. Considine, that he
wished to make a written statement concerning that crime, not through expectancy of a
reward, or of clemency, but for the sole purpose of relieving his mind and letting the world
know the exact conditions that surrounded the commission of that crime; that he was warned
of his rights, and still persisted in making a written statement; that statement will probably be
read to you in evidence, and in that statement this defendant declares what was done with the
plunder that they received off of Jack Welsh and Albert Waldman, tells what was done with
the plunder that was taken off of Townsend on the east-bound train, tells where it was cached
down near Lovelock, tells how they went from there into the town of Lovelock, how they
were arrested, and gives the full particulars of the commission of the crime.
If there was such a confession and the prosecution had it in its power to produce the same
as indicated by the prosecuting attorney, then it was highly important that the same should
have been produced and read to the jury, for the reason that said evidence went to the entire
transaction and to every detail thereof. It was the testimony of one who was present during
the entire transaction and who knew who fired the fatal shot that terminated the existence of
Jack Welsh. In a criminal case the prosecution cannot select one part of a transaction and ask
a conviction thereon when testimony showing the whole thereof is within its reach. Having
stated officially to the court and jury that he would probably produce said confession, and the
legal effect thereof, the prosecution ought to have produced the same or made some
satisfactory explanation to the court why he did not, otherwise a suggestion is raised that
there was design and purpose in omitting to produce said confession. The refusal by a
prosecuting attorney to call as a witness, when available, one who was present during the
commission of the crime, and so stated as present by such attorney, to the jury, is ground
for a reversal of judgment.
by a prosecuting attorney to call as a witness, when available, one who was present during the
commission of the crime, and so stated as present by such attorney, to the jury, is ground for a
reversal of judgment. (Maher v. People, 10 Mich. 226; Territory v. Hanna, 5 Pac. 252; Hurd
v. People, 25 Mich. 415; Weller v. People, 30 Mich. 23.) When the confessions of the
accused are given in evidence against him, all that he said in said confessions explanatory
thereof, intending to discharge him from its effect, is competent in his behalf. (Abbott's Trial
Brief, 2d ed. 454; Real v. People, 42 N. Y. 270-279.) In the case at bar the prosecuting
attorney presumably stated the incriminating facts only of said confession, which practically
amounted to his having read that much thereof to the jury and to having suppressed any
explanatory facts that might have been contained in said confession. (Law Notes, vol. 9, no.
3, p. 43.)
IV. When the attorney on the part of the state in his closing argument refers to the fact that
the defendant failed to testify on his own behalf, or uses language calculated to call the
attention of the jury to such facts, a motion for a new trial should be granted. The court erred
in allowing the prosecuting officer to comment on the fact that the defendant did not testify
on his own behalf, and in overruling defendant's objection thereto. Comp. Laws, 4653-4654,
provide that in the trial of all indictments, complaints, and other proceedings against persons
charged with the commission of crimes or offenses, the person so charged shall, at his own
request, but not otherwise, be deemed a competent witness. * * * Nothing herein contained
shall be construed as compelling any such person to testify; and further provides that, if he
declines to testify, the court shall specifically instruct the jury that no inference of guilt is to
be drawn against him for that cause. The statute preserves to the accused that provision in
the declaration of rights that no person shall be compelled in any criminal case to be a
witness against himself. (Const. Nev. art. I, sec. 8; State v. Chisnell, 36 W. Va. 569;
Morrison v. State, 76 Ind. 388; State v. Banks, 78 Me. 490; State v. Black (Kan.) 2 Pac. 609;
Com. v. Scott, 123 Mass. 123; People v. Tyler, 36 Cal. 522; Ruloff v. People, 45 N. Y. 213;
Crandall v. People, 2 Lans. {N. Y.)
N. Y. 213; Crandall v. People, 2 Lans. (N. Y.) 309; Wilson v. United States, 149 U. S. 60;
Austin v. People, 102 Ill. 264; McDonald v. People, 126 Ill. 155; Quinn v. People, 126 Ill.
452; State v. Moxley, 102 Mo. 374; Staples v. State, 89 Tenn. 23; Jordan v. State, 29 Tex.
App. 395; McPherson v. State, 15 S. W. 174; 28 Tex. App. 140; Martin v. State, 79 Wis.
165; State v. Howard, 35 S. C. 197.)
I. The Legislature of Nevada has declared that there are certain kinds of murder which
carry with them conclusive evidence of premeditation; these the legislature has enumerated in
the statutes, and has taken upon itself the responsibility of saying that they shall be murder in
the first degree. One of these classes of murder is where it is committed in the perpetration or
attempt to perpetrate a robbery, and where a jury finds a murder has been thus committed it
has no option other than to find the perpetrator or perpetrators guilty of the murder guilty in
the first degree. The whole transcript of this case conclusively proves that the defendant in
this case, in conjunction with three other parties, attempted and committed the crime of
robbery on the night of the tragedy, and that, while perpetrating that crime of robbery on the
deceased (Jack Welsh) and one Al. Waldman, Jack Welsh was shot to death. The evidence
shows conclusively that every act of the defendant and his associates on that fatal night
pointed out that the robbery was planned and premeditated willfully and deliberately. The
premeditation appearing in the crime of the robbery which they were perpetrating, it did not
make it necessary to show premeditation after the murder. The statute in itself makes
premeditation unnecessary to find a verdict of murder in the first degree where it is shown
that the murder was committed during the perpetration of the crime of robbery. No specific
length of time is required for premeditation, and the fact that the murder of Jack Welsh did
not occur until a couple of minutes after he was robbed cannot alter the verdict of murder in
the first degree. The evidence shows that immediately after Jack Welsh was robbed he was
thrown off the train, and, while climbing down from the train, was shot to death, the
robbery and murder being coupled distinctively together.
and, while climbing down from the train, was shot to death, the robbery and murder being
coupled distinctively together. (Comp. Laws, 4672.)
II. The court did not err in refusing to sustain defendant's challenge to the juror A. C.
Helmold on the ground that he had formed and expressed an unqualified opinion as to the
guilt or innocence of the accused of the crime charged. The examination of the juror Helmold
on his voir dire discloses that he had neither formed nor expressed an unqualified opinion of
the guilt or innocence of defendant for the crime charged. The evidence shows that the
opinion was neither fixed, settled, nor positive. The juror testified that he could lay aside any
opinion he may have formed and render an opinion upon the evidence given and the law
given by the court. The juror having only a qualified opinion as to the guilt or innocence of
the defendant, and that qualified opinion being founded on newspaper accounts and rumors, it
was not such opinion as would disqualify him to act as a juror. Our statute provides that the
opinion of a juror, to disqualify him, must be unqualified opinion or belief that the prisoner is
guilty of the offense charged, and that such unqualified opinion shall not have been formed or
expressed or based upon the reading of newspaper accounts of the transaction. (Comp. Laws,
4305.)
The real question to be determined as to the qualification of a juror on the question of
having formed and expressed an opinion is the ability of the juror to set aside the opinion
formed and render an impartial verdict on the law and evidence. (State v. McClear, 11 Nev.
39, 66, 68; State v. Simas, 25 Nev. 432, 451; State v. Millain, 3 Nev. 371, 379, 384; State v.
Raymond, 11 Nev. 98; State v. Davis, 14 Nev. 439, 448, 450; State v. Carrick, 16 Nev. 120,
128; People v. Wong Ark, 96 Cal. 125; State v. Smith, 49 Conn. 376; Coughlin v. People, 114
Ill. 140; Elliot v. State, 73 Ind. 14; State v. Revells, 35 La. Ann. 302; Brown v. State, 57 Miss.
424, 430; State v. Bronstine, 147 Mo. 520; Bolln v. State, 51 Neb. 581; State v. Jones, 80 N.
C. 415; Commonwealth v. Crossmire, 156 Pa. St. 304; People v. O'Loughlin, 3 Utah, 133;
State v. Meaker, 54 Vt. 112; Dejarnette v. Commonwealth, 75 Va. 867; State v. Baker, 33 W.
Va. 329; 17 Am.
33 W. Va. 329; 17 Am. & Eng. Ency. Law, 2d ed. p. 1141, and authorities cited.)
The courts of all the states of the Union hold that jurors will not be excluded on account of
opinions which they may possess if they are founded on rumors and newspaper reports. (17
Am. & Eng. Ency. Law, 1143; Comp. Laws, 4305, subd. 8, Crim. Pr. Act.)
In this case Juror Helmold testified, in answer to a query of the court, that the opinion he
had formed and entertained was formed on general rumor, or what might be more commonly
termed street rumor or street talk, and from what he had read in the newspapers. (People v.
Owens, 123 Cal. 482; Gallet v. United States, 87 Fed. 446; State v. Williams, 3 Stew. (Ala.)
454; Hardin v. State, 66 Ark. 53; People v. Brown, 59 Cal. 345; People v. Irwin, 77 Cal. 494;
State v. Hoyt, 47 Conn. 530; United States v. Barber, 21 D. C. 456; Brown v. State, 40 Fla.
459; Myers v. State, 97 Cal. 94; Plummer v. People, 74 Ill. 361; State v. Butler, 97 Ind. 378;
State v. Young, 104 Iowa, 730; State v. Dent, 71 Md. 295; State v. Bussey, 58 Kan. 679;
People v. Foglesong, 116 Mich 556; State v. Bronstine, 147 Mo. 520; State v. DeGraff, 113
N. C. 688; State v. Saunders, 14 Or. 300; Commonwealth v. Eagan, 190 Pa. St. 10; Woods v.
State, 99 Tenn. 182; Morrison v. O'Laughlin, 3 Utah, 133; State v. Meyers, 58 Vt. 457; State
v. Carey, 15 Wash. 549; Wright v. Commonwealth, 32 Gratt. (Va.) 941.)
In order to discover whether a juror is qualified or disqualified to act as a juror, his whole
examination on his voir dire, and not upon a part thereof, or by use of particular or catch
expressions, must be considered. (State v. Cunningham, 100 Mo. 382; Clark v. Com., 123 Pa.
St. 555; Butler v. State, 97 Ind. 378; Pemberton v. State, 11 Ind. App. 297; U. P. Ry. Co., v.
Motzner, 8 Kan. App. 431; State v. Bailey, 50 La. Ann. 533; Burlington v. Beebe, 14 Neb.
463; Hall v. Com., 89 Va. 179; 17 Am. & Eng. Ency. Law, 2d ed. 1150.)
III. Where it is expressly declared by statute, as it is in our own state and in nearly all of
the states of the Union, that, if opinions of jurors be founded on rumors or newspaper reports,
such opinions will not disqualify them from acting as trial jurors, providing the judge of the
trial court be satisfied from the statements of the juror that he can and will act
impartially.
be satisfied from the statements of the juror that he can and will act impartially. (Coughlin v.
People, 144 Ill. 140; Commonwealth v. Eagan, 190 Pa. St. 10; State v. Cunningham, 100 Mo.
383; State v. Roddy, 184 Pa. St. 274; Thiede v. Utah Territory, 159 U. S. 510; Hopt v. Utah,
120 U. S. 430; People v. Miller, 125 Cal. 44; People v. Wells, 100 Cal. 227; People v.
Collins, 105 Cal. 504; People v. Jones, 2 Colo. 351; Thompson v. People, 59 Pac. 51; Spies
v. Illinois, 123 U. S. 131, 169; Shields v. State, 149 Ind. 395; Smith v. Com., 100 Ky. 133;
State v. Burgess, 78 Mo. 234; State v. Sheerin, 12 Mont. 539; State v. Bolln, 51 Neb. 581;
State v. Ekanger, 8 N. Dak. 559; Palmer v. State, 42 Ohio, 596; State v. Ingram, 23 Or. 434;
Woods v. State, 99 Tenn. 182; State v. Ashland, 31 Tex. 479; 17 Am. & Eng. Ency. Law, 2d
ed. 1150.)
If the opinion is not based on such character of information as is necessary to involve
disqualification and is not such as is necessary to affect the impartiality of his action, a
statement by the venireman upon his examination that he can do impartial justice according
to the law and the evidence is considered sufficient to justify his acceptance as a juror. (State
v. De Graff, 113 N. C. 688; Hopt v. Utah, 120 U. S. 430; State v. Morse, 35 Or. 462; Com. v.
Egan, 190 Pa. St. 10; Sims v. Jones, 43 S. C. 91; Woods v. State, 99 Tenn. 182; Trotter v.
State, 37 Tex. (Crim.) 468; State v. Meyer, 58 Vt. 457; Com. v. Lyles, 88 Va. 396; State v.
Baker, 33 W. Va. 329; Baker v. State, 88 Wis. 140; Bryant v. State, 7 Wy. 311; 11 Am. &
Eng. Ency. Law, 1152, and authorities cited under note 3.)
IV. The dying declaration of Jack Welsh was clearly admissible. The evidence shows
beyond any question that, at the time of making the declaration, he was fully conscious of
impending death; that he had abandoned all hope and all expectation of recovery; that he was
entirely conscious and in full possession of his intellectual faculties. The declaration was
admissible upon the ground of identification. (Mattox v. U. S., 146 U. S. 140; Commonwealth
v. Roddy, 184 Pa. St. 274; Brotherton v. People, 75 N. Y. 159; State v. Freeman, 1 Spears (S.
C.) 57; McLean v. State, 16 Ala. 672; 10 Am. & Eng. Ency. Law, 2d ed. 383.) The dying
declarations were admissible in evidence, they having been made in the presence of the
defendants, and were admissible for the purpose of showing defendants' conduct and
behavior when identified and charged as being his assailants and accused of the crime,
for which purpose they were specifically offered.
admissible in evidence, they having been made in the presence of the defendants, and were
admissible for the purpose of showing defendants' conduct and behavior when identified and
charged as being his assailants and accused of the crime, for which purpose they were
specifically offered. (State v. Nash and Redout, 7 Iowa, 287; State v. Brunetto, 13 La. Ann.
45; Kendrick v. State, 55 Miss. 436; Powers v. State, 74 Miss. 777; Donnelly v. State, 26 N.
J. L. 463; 10 Am. & Eng. Ency. Law, 2d ed. 360.) The rule as to the admissibility of dying
declarations does not require that they should have been made while the sufferer was literally
breathing his last. If the declarations were made under a sense of impending dissolution it
does not matter if death failed to ensue until a considerable time after the declarations were
made. (10 Am. & Eng. Ency. Law, 2d ed. 369, and authorities cited.)
The length of time elapsing between the making of the declarations and the declarant's
declarations were made under a sense of impending death. (10 Am. & Eng. Ency. Law, 2d ed.
369, and authorities there cited.) In this instance Jack Welsh died within three hours of the
rendition of the dying declarations. Even admitting, for the sake of argument, that deceased
was partially unconscious, and which we strenuously deny, and refer to the evidence, the
declarations were admissible, and the objection should go to their credibility and not to their
admissibility. (Hays v. Commonwealth (Ky. 1890) 14 S. W. 833; People v. Beverly, 108
Mich. 509; 10 Am. & Eng. Ency. Law, 2d ed. 376, under note, Narcotics.) A positive
statement by the victim identifying the defendants as his assailants is not an expression of
opinion, but a statement of fact where the victim had opportunities for observation. (10 Am.
& Eng. Ency. Law, 2d ed. 378.)
Dying declarations of deceased as to the state of declarant's mind are proved by the express
or direct language of the declarant. (10 Am. & Eng. Ency. Law, 2d ed. 388.) Dying
declarations are not rendered inadmissible by reason of the fact that they were brought out by
questions; nor is it necessary that the statement should contain the questions propounded.
it necessary that the statement should contain the questions propounded. The form and
manner of giving dying declarations is immaterial; it is not even necessary that a declaration
should be expressed in words; it may be communicated by signs, and be either oral or in
writing. When the dying declaration is taken down in writing, and then read over to the
declarant, and the declarant assents and affixes his name to the declaration, if all the other
prerequisites to giving a dying declaration are present, the same is clearly admissible. (10
Am. & Eng. Ency. Law, 2d ed. 369-371, and authorities there cited.) A dying declaration is
admissible if it is clearly drawn and a fair statement of the declarant's statement given; it is
even immaterial that the exact language of deceased is not used, or that there may have been
some omission; and a long line of authorities sustain this assertion, but such was not the case
in the case at bar, as the dying declaration of Jack Welsh was taken from his lips, then read
over to him, to which he assented and signed.
V. The court did not err in not compelling the state to produce the alleged confession of
the defendant alluded to by the district attorney in his opening statement to the jury. The state
had the perfect right to produce such evidence as in its judgment was necessary, and because
it failed to produce the alleged confession of Williams it was not error. Defendant had the
right, and he was not prevented by the court or counsel for the state in explaining away the
confession referred to by the district attorney, if he so desired. The defendant was present in
court to speak for himself, and if, by reason of any neglect of his own, he damaged his case, it
was entirely his own fault. The district attorney in his opening statement did not state
positively that the confession would be used; he stated that the same might be introduced.
The defendant was thereby notified through this statement that such a confession was in
existence, and if they had any desire to rebut the statement concerning the confession, or to
take any exceptions to the matters contained in the confession, or to show under what
circumstances the same were given, it was their privilege to do so. If the state in a criminal
prosecution were compelled to give in evidence statements or alleged confessions made by
criminals, every criminal in the land would make some sort of a statement or confession,
simply for the purpose of getting some views before the jury which might not be
admissible otherwise.
ments or alleged confessions made by criminals, every criminal in the land would make some
sort of a statement or confession, simply for the purpose of getting some views before the jury
which might not be admissible otherwise.
VI. The court did not err in allowing the district attorney to comment on the argument of
counsel for defendant when counsel for defendant was arguing as to why the defendant had
not taken the stand. Our statute provides that in all cases wherein the defendant to a criminal
charge declines to testify, the court shall specially instruct the jury that no inference of guilt is
to be drawn against defendant for that cause. This the court did in its instructions to the jury
in the case at bar. The statute does not provide that no comments by the district attorney shall
be made in answer to the counsel for the defendant; it simply states that the fact that a person
is not a witness cannot be considered against him in the trial of the case. (Comp. Laws,
4653-4654.)
D. H. Hartson and P. N. Packard, for Appellant, in reply:
I. The court erred in overruling the objections of the defendant to the remarks of the
prosecution relative to defendant not taking the witness stand in his own behalf. The court
could not cure the error by a charge to the jury because section 4654 of the Compiled Laws
makes the giving of the instruction mandatory, and allowing the counsel for the state to make
the comments complained of neutralized and nullified the effect of the mandatory charge. The
position the defendant was placed in was this: The court by its ruling held the remarks of
counsel proper and legal, but, after they were given, the general instruction of the court
pursuant to statute could not cure the error. The statute above cited implies that no remarks or
comments such as complained of shall be made by counsel for the state; it makes him a
witness at his own request only; if he refuses or neglects to take the stand in his own behalf,
his constitutional rights are preserved; the statute commands the court, in case he fails to
exercise his statutory privilege, to specially instruct the jury that no inference shall be drawn
against him for that cause. The court committed the same error that the trial court did in the
cases of People v. Tyler, 36 Cal. 522; Com. v.
error that the trial court did in the cases of People v. Tyler, 36 Cal. 522; Com. v. Scott, 123
Mass. 239; Wilson v. United States, 149 U. S. 60, and other cases cited in appellant's brief.
II. After a careful examination of the authorities, the only cases we have been able to find
laying down a different rule than that contended for by this appellant are State v. Bartlett, 55
Me. 220, State v. Lawrence, 57 Me. 574, and State v. Cleaves, 59 Me. 299, but these cases
have been overruled, and the case of State v. Banks, 78 Mo. 499, holds the same views as all
other courts where a similar statute exists. We find none of the statutes of other states whose
language is exactly the same as the statutes of this state. A number of the statutes of different
states forbid any comment, while a number of the statutes provide that the failure or the
neglect of the defendant to be a witness in his own behalf shall not create any presumption
against him.
III. The only construction that can with any reason be applied to the statute of this state is
that, on the part of the state, the prosecution must be silent on the failure of the accused to
take the witness stand on his own behalf, and, as a further safeguard, the court shall
specifically instruct the jury that no inference shall be drawn as a result of said failure, not
alone restricting the state, but especially restricting the constitutional rights of the accused by
providing for a special instruction. (Comp. Laws, 4653-4654.)
IV. Courts have no power in criminal cases to affirm a judgment merely because the
judges are persuaded upon the merits of the case that the judgment is right. If an error
intervenes in the proceeding, it is presumed to be injurious to the prisoner, and generally he is
entitled to a reversal of the judgment; it is his constitutional right and privilege to stand upon
his legal rights, and to be tried a according to law. (People v. Williams, 18 Cal. 187; Hatch v.
State, 8 Tex. App. 416; People v. Divine, 44 Cal. 460; People v. Benson, 51 Cal. 382.)
Jointly with three others, Fred Roberts, J. P. Sevener, and T. F. Gorman, this defendant
was convicted of murder in the first degree in Humboldt County, and on a former appeal
with them was granted a new trial by this court.
first degree in Humboldt County, and on a former appeal with them was granted a new trial
by this court. (27 Nev. 449.) Later, and after the case against all of them had been transferred
to Washoe County, Williams was given a separate trial, which again resulted in his
conviction and sentence of death. He appeals from the judgment and order denying a new
trial. The facts are stated in the opinion which we have rendered against the other three. (See
page 350 of this volume.)
It is said that the evidence is insufficient to justify the verdict of murder in the first degree
because the shooting was not done until about two minutes after the robbery. It occurred as
part of a continuous assault, lasting from the robbery to the shooting, and apparently was
done for the purpose of preventing detection. The court properly instructed the jury that under
the statute all murder committed in the perpetration of robbery is of the first degree. If there
had been no robbery, there was sufficient time for premeditation to justify the verdict. (State
v. Gray, 19 Nev. 218; State v. Lopez, 15 Nev. 407; State v. Millain, 3 Nev. 409; State v. Ah
Mook, 12 Nev. 369.)
It is claimed that one of the jurors, A. C. Helmold, was incompetent by reason of having
formed and expressed an unqualified opinion in regard to the guilt or innocence of the
accused. He stated on his voir dire that he had heard the case discussed and what purported to
be the facts, that he had not discussed it himself and had not talked with the witnesses
regarding it, that from rumor and reading the newspapers he had formed an opinion regarding
the guilt or innocence of the defendant, that his opinion was not unqualified, and that it would
require evidence to change it. After he had been challenged by the defendant, the court gave
him the following examination: Q. Mr. Helmold, from what source did you get your
information? A. Why, through the papers and through hearing talk generally. Q. Do I
understand you to say you have not discussed the case yourself? A. I have not; no, sir. Q. And
do I understand that the opinion you have formed is not a fixed, settled, positive opinion? A.
It is not. Q. Has any one purported or attempted to detail to you what evidence was in this
case? A. No, sir. Q. Have you ever heard any of the witnesses talk on the case that you
know of? A. No, sir. Q. Have you any firm, fixed opinion as to whether what you heard or
what you read was the truth or not? A. Well, I could not say that, judge.
heard any of the witnesses talk on the case that you know of? A. No, sir. Q. Have you any
firm, fixed opinion as to whether what you heard or what you read was the truth or not? A.
Well, I could not say that, judge. I listened in a hearsay kind of a way. I could not express an
opinion of a man innocent or guilty unless I heard evidence. Q. Until you had heard the
evidence? A. No. Q. Well, now the opinion that you have got, as I understand it, depends
entirely upon the truth or falsity of what you have heard? A. Exactly. Q. Well, now,
supposing that there were no facts detailed upon the trial of this case such as you have heard
on the outside; what effect would what you have heard on the outside have upon your mind in
determining this case? A. It would not have very much. Q. Would it have any? A. It would
have some until I heard the evidence. Q. Then do I understand that you could not divest
yourself of any opinion that you might have and decide this case upon the evidence as it was
produced here? A. I could. Q. You could. And would you do so? A. I would. Q. Well, now,
supposing it would make no difference as to what you had heard, or supposing upon the trial
of this case the state did not prove to your satisfaction beyond a reasonable doubt by the
evidence adduced here upon the stand, that this man was guilty of any offense included in or
charged in the indictment; what would you do then in a case of that kind? A. I would give the
defendant the benefit of the doubt. Q. If they had not proved it beyond a reasonable doubt,
you would acquit him? A. Beyond a reasonable doubt, I would. Q. You would acquit him? A.
Yes, sir. Q. You understand, Mr. Helmold, in law, that an acquittal may simply amount to
this: that the state has not proven the defendant guilty beyond a reasonable doubt? A. I
understand that. Q. Now, if you were chosen as a juror in this case, could you divest your
mind of all opinion that you have in the case, and hear evidence and determine it solely upon
that and the law as given to you by the court? A. Certainly. Q. Is your mind made up that this
man is either innocent or guilty? A. Well, I could not say as it is made up, but I have an
opinion from what I have heard talked of. Q. Well, are you prepared to say that this man is
either guilty or innocent? A. I am not. Q. Did the persons who talked about this case
pretend to have been listeners to the evidence, or know what the evidence was in the
case? A. Well, I could not say that. Q. You do not know whether they did or not? A. No. Q.
Is your opinion based upon what would be termed street rumor or street talk? A. That is
it.
say that this man is either guilty or innocent? A. I am not. Q. Did the persons who talked
about this case pretend to have been listeners to the evidence, or know what the evidence was
in the case? A. Well, I could not say that. Q. You do not know whether they did or not? A.
No. Q. Is your opinion based upon what would be termed street rumor or street talk? A. That
is it. The Court: Challenge is denied.
The condition of the juror's mind should be determined from the whole of his examination,
and doubts should be resolved in favor of the accused, as in other matters, to the end that he
may be tried by twelve fair and unbiased men. (State v. Buralli, 27 Nev. 41, 71 Pac. 532.)
Considering all the juror said, it is apparent that from reading the papers and talking with
others, who are not shown to have had any direct knowledge of the facts or any information
acquired from sources other than newspapers, he had formed an opinion regarding defendant's
guilt or innocence such as any one might have acquired who read the news usually published
regarding such crimes. In this era of education, intelligence, and diffusion of knowledge,
when the telegraph and cable flash information from the most distant parts of the earth in a
few seconds, when an army of men are employed in gathering and reporting the important
happenings of the world, and improved printing presses, invented and operated by ingenious
minds and cunning hands, are publishing millions of papers daily, the man who does not read
and think and form opinions regarding such crimes as murders committed in his locality is
better fitted to have lived in the Dark Ages than to serve on juries in the twentieth century.
Still, in order to be a good juror, any opinion he may have must be a qualified one, and he
must conscientiously feel that he can discard it in arriving at a verdict, and realize that under
our system of jurisprudence persons charged with crime are not to be prejudged or convicted
upon newspaper reports or hearsay, or found guilty by anything excepting evidence
introduced in court under the sanctity of an oath or in conformity to legal practice. Every one,
however humble or great, accused of crime, is entitled to be tried by jurors whose minds
will be guided by such evidence only in arriving at their verdict.
great, accused of crime, is entitled to be tried by jurors whose minds will be guided by such
evidence only in arriving at their verdict. It is apparent that the juror was not disqualified
under this test, that the opinion he possessed was only such an one as any disinterested,
intelligent citizen who reads and thinks might form, and, although that opinion would
naturally remain in his mind until something occurred to remove it, it appears to have been
qualified by a doubt as to the truth or falsity of the information on which it was based, and
that it was not a settled conviction regarding the defendant's guilt which would weigh with
him in considering the testimony or swerve or influence his mind in arriving at a verdict. The
case in regard to this juror is not, as contended in the brief, similar to that relating to the one
the denial of whose challenge on the first trial was cause for reversal. The record indicated
there that, after talking with persons who purported to know the facts, he had expressed an
unqualified opinion, which, under the statute, rendered him incompetent. Here it merely
appears that the juror had formed a qualified opinion based largely on newspaper reports,
which the criminal practice act provides shall not disqualify, and that, regardless of the source
of his information, his mind was not in a condition that rendered him incompetent to serve.
Exception was taken to the admission of the dying declarations of the deceased, Jack
Welsh. The evidence showing their admissibility appears to have been quite as strong as that
on the trial of the three defendants indicted with this one, and for the reasons stated in the
opinion in their case the declarations were properly admitted against Williams.
The written dying statement was in narrative form, and it is further objected here that the
questions were not included in the writing. It is sufficient to say that they were proven
verbally on the trial, and the written declaration was complete without them.
In his opening statement to the jury, the attorney acting for the prosecution said: Now,
there may be, and probably will be, another feature of this case introduced on the part of the
state, and it will be evidence to show that this defendant was duly convicted in Humboldt
County, in conjunction with Sevener and Roberts and Gorman, of murder in the first
degree, and sentenced to be hanged for that crime; that while they were confined in the
Carson Penitentiary, awaiting the execution of that sentence, that this defendant, without
solicitation, without promise of reward, without any conditions whatever attached
thereto, made a written statement; that he declared to the warden of the penitentiary,
Mr.
with Sevener and Roberts and Gorman, of murder in the first degree, and sentenced to be
hanged for that crime; that while they were confined in the Carson Penitentiary, awaiting the
execution of that sentence, that this defendant, without solicitation, without promise of
reward, without any conditions whatever attached thereto, made a written statement; that he
declared to the warden of the penitentiary, Mr. Considine, that he wished to make a written
statement concerning the crime, not through expectancy of a reward, or of clemency, but for
the sole purpose of relieving his mind and letting the world know the exact conditions that
surrounded the commission of that crime; that he was warned of his rights, fully protected in
his rights, and still persisted in making a written statement. That statement will probably be
read to you in evidence, and in that statement this defendant declares what was done with the
plunder that they received off of Jack Welsh and Albert Waldman; tells what was done with
the plunder that was taken off of Townsend on the east-bound train; tells where it was cached,
down near Lovelock; tells how they went from there into the town of Lovelock, how they
were arrested; and gives the full particulars of the commission of the crime.
The purpose of an opening statement is to relate the facts that will be offered in evidence,
so that the court and jury may better and more readily understand the testimony when it is
introduced. It behooves all attorneys, but is especially incumbent on those representing the
state, to limit their opening remarks to the facts they in good faith expect to prove. It was
improper to detail the particulars of a confession, or to state that one had been made, and
thereby bring to the attention of the jury matters prejudicial to the defendant, unless or until it
was the intention to prove them. When the attorney for the state said they might or might not
offer proof of the confession, it was in order for defendant's counsel to object, and for the
court, on its own motion, to strike out and restrain any allusion to it until the prosecution gave
direct assurance that they intended to prove it. (Thompson on Trials, 958.) An attorney who is
prosecuting may be excused for stating facts which he expects and believes he will prove,
but which later cannot be shown because they are irrelevant, or for some good reason
unknown to him at the time cannot be established later.
believes he will prove, but which later cannot be shown because they are irrelevant, or for
some good reason unknown to him at the time cannot be established later. (State v. Crafton,
89 Iowa, 109, 56 N. W. 257; People v. Gleason, 127 Cal. 323, 59 Pac. 592; 12 Cyc. 570, note
50.)
No exception was taken to this objectionable detail of a confession at the time it was
made. (State v. McMahon, 17 Nev. 376, 30 Pac. 1000; numerous cases cited in the note in
People v. Fielding, 46 L. R. A. 642.) No evidence was offered to sustain these statements
made by the attorney after he had brought them to the attention of the jury, and yet he ought
to have been well aware that no fact, and especially one so vital to the defendant, should be
stated unless it was his intention to support it by evidence. It was his duty to seek conviction
only on facts proved or earnestly sought to be presented by proper evidence, and not by
reference to any others in his opening statement or in the presence of the jury. The use of
every fair and honorable means is commendable in the effort to win cases, but in the heat and
anxiety of trials even eminent counsel have too often so far forgotten their duty to themselves,
to a worthy profession, and to the court as to seek to prejudice or influence juries by bringing
to their attention facts which they are well aware could not be proven or presented under
proper practice and the ordinary rules of evidence. Every high-minded attorney should scorn
and rise above such petty and reprehensible methods. Closing an eloquent dissertation
regarding the impropriety of statements made by counsel which were not supported by the
evidence, the Supreme Court of Georgia said: But let nothing tempt them to pervert the
testimony or surreptitiously array before the jury facts which, whether true or not, have not
been proven. (Berry v. State, 10 Ga. 523.)
The right of discussing the merits of the cause, both as to the law and the facts, is
unabridged. The range in discussion is wide. He may be heard in argument upon every
question of law. In his address to the jury it is his privilege to descant upon the facts proved
or admitted in the pleadings; to arraign the conduct of the parties; to impugn, excuse, justify,
or condemn motives, so far as they are developed in evidence; to assail the credibility of
witnesses when it is impeached by direct evidence or by the inconsistency or incoherence
of their testimony, their manner of testifying, their appearance upon the stand, or by
circumstances.
excuse, justify, or condemn motives, so far as they are developed in evidence; to assail the
credibility of witnesses when it is impeached by direct evidence or by the inconsistency or
incoherence of their testimony, their manner of testifying, their appearance upon the stand, or
by circumstances. His illustrations may be as various as the resources of his genius; his
argumentation as full and profound as learning can make it; and he may, if he will, give play
to his wit or wings to his imagination. To this freedom of speech, however, there are some
limitations. His manner must be decorous. All courts have power to protect themselves from
contempt, and indecency in words or sentences is contempt. This is a matter of course in the
courts of civilized communities, but not of form merely. No court can command from an
enlightened public that respect necessary to an even administration of the law without
maintaining in its business proceedings that courtesy, dignity, and purity which characterize
the intercourse of gentlemen in private life. So, too, what a counsel does or says in the
argument of a cause must be pertinent to the matter on trial before the jury, and he takes the
hazard of its not being so. Now, statements of facts not proven and comments thereon are
outside of the case. They stand legally irrelevant to the matter in question, and are therefore
not pertinent. If not pertinent, they are not within the privilege of counsel. (Tucker v.
Hennekir, 41 N. H. 323; Hatch v. State, 8 Tex. App. 423; 34 Am. Rep. 751; Thompson on
Trials, 750; State v. Berry, 10 Ga. 522.)
The profession of the law is instituted for the administration of justice. The duties of the
bench and bar differ in kind, not in purpose. The duty of both alike is to establish the truth
and to apply the law to it. It is essential to the proper administration of justice, frail and
uncertain at best, that all that can be said for each party, in the determination of fact and law,
should be heard. Forensic strife is but the method, and a mighty one, to ascertain the truth,
and the law governing the truth. It is the duty of counsel to make the most of the case which
his client is able to give him; but counsel is out of his duty and the right, and outside of the
principal object of his profession, when he travels out of his client's case and assumes to
supply its deficiencies.
case and assumes to supply its deficiencies. Therefore it is that the nice sense of the
profession regards with such distrust and aversion the testimony of a lawyer in favor of his
client. The very fullest freedom of speech, within the duty of his profession, should be
accorded to counsel; but it is license, not freedom of speech, to travel out of the record,
basing his argument on facts not appearing, and appealing to prejudices irrelevant to the case
and outside of the proof. It is the duty of courts, in jury trials, to interfere in all proper cases
of their own motion. This is due to truth and justice. And if counsel persevere in arguing upon
pertinent facts not before the jury, or appealing to prejudices foreign to the case in evidence,
exception may be taken by the other side, which may be good ground for a new trial, or for a
reversal in this court. (Brown v. Swineford, 44 Wis. 293, 28 Am. Rep. 582; Thompson on
Trials, 965.)
We approve the language of the Supreme Court of California in People v. Lee Chuck, 78
Cal. 328, 20 Pac. 723: We have been called upon many times to caution, sometimes to
rebuke, prosecuting officers for the over-zealous performance of their duties. They seem to
forget that it is their sworn duty to see that the defendant has a fair and impartial trial, and that
he be not convicted except by competent and legitimate evidence. Equally with the court, the
district attorney, as the representative of law and justice, should be fair and impartial. He
should remember that it is not his sole duty to convict, and that to use his official position to
obtain a verdict by illegitimate and unfair means is to bring his office and the courts into
distrust. We make due allowance for the zeal which is the natural result of such a legal battle
as this, and for the desire of every lawyer to win his case; but these should be overcome by
the conscientious desire of a sworn officer of the court to do his duty, and not go beyond it.
In Coleman v. State, 111 Ind. 563, 13 N. E. 100, it was held that where the prosecuting
attorney, in his opening statement, is guilty of misconduct prejudicial to the substantial rights
of defendant, the latter, in order to avail himself of the error, must move to set aside the
submission and discharge the jury. At the close of the testimony for the prosecution, counsel
for the defendant moved the court "that the state be required to produce the confession
that they alleged was made at the state prison, and introduce it in evidence, or, in lieu of
that, that the court grant the defendant permission to introduce the same."
cution, counsel for the defendant moved the court that the state be required to produce the
confession that they alleged was made at the state prison, and introduce it in evidence, or, in
lieu of that, that the court grant the defendant permission to introduce the same. The judge
replied: The court will not make either one of the orders that have been asked. If you want
the document itself, you can ask the state's attorney for it; and if you want to offer it in
evidence you may do so, and when it is offered the court will rule upon the offer. After
further discussion the court said: Now, if you want an instruction upon what it is the duty of
the jury to do in a case of this kind, you may prepare your instruction and present it to the
court.
Counsel for the defendant did not avail themselves of the privilege of securing the
confession and offering it in evidence, subject to the inspection of the court, and until it was
presented and could be examined, and its contents ascertained, the refusal to make an order
for its admission was quite proper. If the contention of counsel were correct, and if, as
claimed, it were error for the court to refuse to order the confession introduced in evidence
under these circumstances and without knowing its contents, it may still be said that there is
no copy of it in the record, and nothing indicating that it was different from or more favorable
to the defendant than what had been stated by the attorney for the state, or that it contained
anything beneficial to the accused, or that its exclusion could have injured him in any degree.
During the closing argument of the attorney for the state, while he was making his remarks
in answer to the argument of counsel for defendant in relation to the failure of the state to
produce the alleged confession of the defendant, the following occurred: Mr. Pike: The
defendant is here. He could have taken the stand. If the statement is good reduced to writing,
why isn't it good when given from the stand? Mr. Packard: If your honor please, we object to
the statement of counsel in regard to the defendant not taking the stand. The statute says it
shall not be used against him. Mr. Pike: The statute also says, may it please the court and
gentlemen of the jury, that a self-serving declaration has no value and cannot be used in
court.
cannot be used in court. The state's attorneys never at any time declared that they would use
that statement, that declaration, or that statement reduced to writing. They said they might use
it, and they might not; and after consulting together we concluded to might not, and we have
not used it, but that throws no injury upon the defense. That reverts no damage to them. Their
man is here, and if he has anything to say to this jury, why in the name of common sense
hasn't he taken the witness stand, as he had a right to do, and declared it. Mr. Packard: Your
honor, we object to that. The Court: I suppose you want a ruling of the court upon this
question? Mr. Packard: We want a ruling of the court on this question, that no comments
shall be made upon this witness not taking the witness stand. Mr. Pike: None made, excepting
in connection with your own allegations. The Court: Well, the statute does not provide that no
comments in answer to arguments by counsel for the defendant can be made. It says that the
fact that a person is not a witness cannot be considered against him in the trial of the case.
But in view of the argument made by counsel for the defendant, it is proper for counsel for
the state to reply thereto. But no inference can be taken against the defendant by reason of his
not testifying in the case. The objection to the argument is overruled. Mr Packard: We note an
exception on the ground stated in the objection.
We are cited to numerous decisions reversing cases because the prosecuting attorney had
commented upon the failure of the accused to take the stand. In several states, statutes
different from ours provide that no comment shall be made in that regard, and in a number of
these and in some states without such a provision, but with one more like that in force here,
reference by the prosecuting attorney to the defendant's omission to testify has been deemed
reversible error. In State v. Harrington, 12 Nev. 129, this court, following the language of the
opinion in People v. McGungill, 41 Cal. 430, said: If he does not choose to avail himself of
the statutory privilege, unfavorable inferences cannot be drawn to his prejudice from that
circumstance. And, quoting Judge Cooley: What we intend to affirm is that the privilege to
testify in his own behalf is one the accused may waive without justly submitting himself
to unfavorable comments."
privilege to testify in his own behalf is one the accused may waive without justly submitting
himself to unfavorable comments. The act of Congress provides that a defendant in a
criminal action may appear as a witness in his own behalf and that his failure to testify shall
not create any presumption against him.
In Wilson v. U. S., 149 U. S. 68, 13 Sup. Ct. 765, 37 L. Ed. 650, it was held that the refusal
of the court to condemn the reference of the district attorney and to prohibit any subsequent
reference to the failure of the defendant to appear as a witness tended to his prejudice before
the jury, and that this effect should be corrected by a new trial. Other cases holding directly
that it was error for the state's attorney to comment on the failure of the accused to testify are
cited in defendant's brief. The jury were properly instructed that the defendant was under no
obligation to testify, that the statute expressly declares that his neglect to take the stand shall
not create any presumption of guilt against him, and that they should decide the case with
reference alone to the evidence actually introduced before them, and without reference to
what might or might not have been proved if other persons had testified. The decisions are
not uniform, but a number hold that comment by the prosecuting attorney on the failure of the
accused to testify is error that cannot be cured by the instructions of the court. There is a
review of cases in State v. Chisnell, 36 W. Va. 667, 15 S. E. 412, and those in Ohio and
Indiana adhering to this rule are there disapproved. It was said that, where the court corrects
the error by excluding the comment and admonishing the jury to disregard it, the authorities
fairly sustain the proposition that it will not be ground for setting the verdict aside.
It will be noticed that the district judge sustained the alleged objectionable remarks only
upon the ground that they were in answer to what the defendant's attorney had said in his
argument, something that does not appear in the record, but which must be presumed to have
justified a reply. (Hoffman v. State, 65 Wis. 46, 26 N. W. 110; State v. Buralli, 27 Nev. 41,
71 Pac. 532.) The text and citations at section 960 of Thompson on Trials are to the effect
that an objection by the opposing counsel, promptly interposed, followed by a rebuke and
admonition from the trial judge to the jury to disregard the prejudicial statements, is
generally, but not always, held sufficient to cure the prejudice.
the opposing counsel, promptly interposed, followed by a rebuke and admonition from the
trial judge to the jury to disregard the prejudicial statements, is generally, but not always, held
sufficient to cure the prejudice. (1 Spelling, N. T. & App. P. 90; Parrott v. Commonwealth,
47 S. W. 452, 20 Ky. Law, 761; Livingston v. State, 141 Ind. 131, 40 N. E. 684; State v.
Hutchinson, 95 Iowa, 566, 64 N. W. 610.) If it be conceded that the spirit of our statute
prohibits unfavorable comment, when unprovoked, by prosecuting attorneys on the failure of
accused persons to testify, and that such comment is reversible error, which cannot be cured
by the instructions of the court, nevertheless it seems that under the weight of authority the
rule does not apply if the statements of the attorney prosecuting are in legitimate reply to
remarks made by the defendant or his counsel. Under a statute providing that the failure of the
defendant to testify shall not be taken as a circumstance against him, nor be alluded to nor
commented upon by counsel in the cause, it was deemed that any comment on the part of the
state regarding his omission to appear as a witness, and even if in reply to statements of his
counsel, was ground for a new trial, and that the error could not be cured by the instructions
of the court. (Hunt v. State, 28 Tex. App. 149, 12 S. W. 737, 19 Am. St. Rep. 815.)
The cases do not generally go so far, even under enactments more stringent than ours. In
Ohio, under a statute providing that the defendant's neglect or refusal to testify shall not
create any presumption against him, nor shall any reference be made to, nor any comment
upon such neglect or refusal, it appeared that on the trial of the case in the court below,
after the close of the evidence, and while the counsel for the state was arguing the case to the
jury, and commenting on what he claimed to have been established as matter of fact, the
prisoner interrupted him by speaking out and asserting the fact to be otherwise. Whereupon
the counsel turned to him and said in the hearing of the jury: Mr. Calkins, you had an
opportunity to testify in this case, and did not do so.' The retort, having been provoked, was
held not to be error. (Calkins v. State, 18 Ohio St. 372, 98 Am. Dec. 121.)
In State v. Balch (Kan.) 2 Pac. 611, the court stated: It must be remembered that this
statement of the county attorney was not provoked or called forth by anything said by the
defendant or his counsel; nor was it said incidentally in some argument addressed to the
court. In Parker v. State (Tex. Cr. App.) 45 S. W. 812: We hold that, when appellant brings
this matter to the attention of the jury, he cannot complain if the state, in reply, remarks upon
his suggestion. State v. Hyland, 144 Mo. 302, 46 S. W. 195: He had no right to inject that
issue into the argument and complain if it was promptly met and refuted. (Barkman v. State
(Tex. Cr. App.) 52 S. W. 73; Crumpton v. U. S., 138 U. S. 364, 11 Sup. Ct. 355, 34 L. Ed.
958; Moore v. State (Tex. Cr. App.) 28 S. W. 686; State v. Glave, 51 Kan. 330, 33 Pac. 8;
Baker v. State, 69 Wis. 32, 33 N W. 52; State v. Potts, 83 Iowa, 317, 49 N. W. 845.) In
Siberry v. State, 133 Ind. 677, 33 N. E. 681, it was held that where, in a criminal action,
counsel for the defendant steps outside the bounds of legitimate argument, and discusses
matters not proper to be considered, the defense is in no position to complain if counsel for
the state follow them without such bounds and reply to such argument, although discussion
ought to be confined to matters properly within the case. At page 582 of 12 Cyc. it is said
that remarks of the prosecuting attorney which ordinarily would be improper are not ground
for exception, if they are provoked by defendant's counsel and are in reply to his statements;
and a long list of cases in support of this text is given in note 26, and in 14 Cent. Dig. at
section 1881, and at page 671 of 46 L. R. A.
There is another reason why the comments of the attorney for the state are not ground for
reversal. If they were admittedly improper, the case ought not to be remanded on errors and
technicalities which could not have injured the defendant. He was recognized on the fatal
night by Townsend, Waldman, and the deceased at the time he and the others indicted with
him robbed them. He was traced with the others by the Mexican coins taken from Townsend.
The evidence, direct and circumstantial, showing their guilt, was clear, conclusive, and
uncontradicted. His only witness, a physician and surgeon, did not refute any of the
pertinent facts.
physician and surgeon, did not refute any of the pertinent facts. Regardless of the impropriety
of the remarks of the attorney for the state, there could be no doubt of his guilt and no
opportunity for the jury to find any verdict, except the one of murder in the first degree. The
result would have been the same, and consequently there was no injury to the accused. If
there had been a substantial conflict in the evidence, or any uncertainty regarding the case
proved by the state, a doubt might arise in favor of the defendant as to whether the jury had
been prejudiced or influenced in finding the verdict by these comments; but the undisputed
facts point so conclusively to the guilt of the prisoner that they could not have arrived at a
different conclusion. Under such circumstances neither reason nor justice demands a reversal
of the case and the incurrence of the delay and expense of a new trial.
In Wilson v. U. S., 149 U. S. 70, 13 Sup. Ct. 768, 37 L. Ed. 650, the supreme court,
quoting from the decision in Austin v. People, 102 Ill. 264, said: We do not see how this
statute can be completely enforced unless it be adopted as a rule of practice that such
improper and forbidden reference by counsel for the prosecution shall be regarded good
ground for a new trial in all cases where the proofs of guilt are not so clear and conclusive
that the court can say affirmatively the accused could not have been harmed from that cause.
The criminal code of Illinois provided that the neglect of the defendant to testify should not
create any presumption against him, nor should the court permit any reference or comment to
be made to or upon such neglect.
The difference in our statute leaves room for a distinction, and for the exception we have
noted in regard to remarks in reply to statements made by the defendant or his attorney. In
State v. Ahern, 54 Minn. 197, 55 N. W. 960, the court stated: The county attorney
commented upon the fact that the defendant had not testified in his own behalf. This is
admitted on the part of the state to have been error. It was a violation of an express provision
of the statute passed for the protection of defendants in criminal cases. But it was harmless in
this case, from the fact that the evidence so conclusively showed the defendant's guilt that
the jury could not have returned a verdict for the defendant without willfully disregarding
their duty, and it is not to be supposed that they would have done that.
clusively showed the defendant's guilt that the jury could not have returned a verdict for the
defendant without willfully disregarding their duty, and it is not to be supposed that they
would have done that. The evidence on the part of the state was complete, positive, and
uncontradicted, and nothing appears to raise a doubt as to its credibility. It is unreasonable to
suppose that the result might have been different if counsel had not made the improper
remark referred to.
In a recent case, People v. McRoberts (Cal.) 81 Pac. 735, certain statements of the district
attorney were held to be a gross and reprehensible violation of duty, but the court said: The
question remains, should the judgment be set aside for this misconduct? The homicide was
admitted, and the evidence was such as to make it reasonably certain that the jury was not
misled by the misconduct of the district attorney to return a verdict which they otherwise
would not have found. And again, in Patterson v. Hawley, 33 Neb. 445, 50 N. W. 326: All
appeals to the jury upon matters outside of the case tend to defeat the true administration of
justice, and any statement of an alleged fact outside of the evidence prejudicial to one of the
parties may be sufficient to cause a reversal of the judgment. A court of justice does not
condemn unheard, nor upon ex parte statements of opposing counsel, and it will not permit
one of its officers to abuse his position by such unauthorized statements. We are satisfied,
however, that the verdict in this case is the only one that the jury should have returned under
the evidence, and the error will be disregarded. (State v. Shawn, 40 W. Va. 11, 20 S. E. 873,
and cases cited; also note in People v. Fielding, 46 L. R. A. 672; State v. Zumbunson, 86 Mo.
111; Thompson on Trials, 960.)
The judgment and order are affirmed, and the district court will fix a time for having its
sentence of death carried into effect.
____________
[No. 1666.]
MRS. C. I. CANDLER and WILLIAM CANDLER, Her Husband, Respondents v. THE
WASHOE LAKE RESERVOIR and GALENA CREEK DITCH COMPANY, a Corporation,
Appellant.
1. CostsAward on Appeal. An appellant, to whom costs have been awarded on appeal, must comply with the
statute and rules of the court governing the taxation of costs, in order to make the decision effectual.
2. SameTaxationRule of Court. The method of taxing costs in the Supreme Court is governed by Supreme
Court Rule VI (see page 6 of this volume), and not by Civil Practice Act, sec. 486 (Comp. Laws, 3581),
which is applicable to district courts only.
3. SameCost BillNecessity. Supreme Court Rule VI, subdivisions 1 and 2, allowing as costs taxed in the
bill of costs the expense of printing transcripts, affidavits, briefs, etc., authorizing the clerk to tax other
costs in accordance with the fee bill, and providing that either party desiring to recover costs for
printing, shall before the cause is submitted file with the clerk and serve on the opposite party a verified
cost bill, requires the filing of a cost bill for expenses of printing in the time specified, or the same
cannot be allowed, in the absence of agreement by counsel, made in open court or by stipulation filed;
but the other costs, including the costs in lower court, may be taxed without a bill of costs, according to
the fee bill.
On Motion to strike out cost bill. Granted.
Cheney & Massey, for Respondents:
I. The cost bill in this action was not filed within the time prescribed by the laws of the
State of Nevada.
II. Said cost bill was not filed within the time prescribed by subdivision 2 of rule VI of
this court.
I. There is no provision of the statute requiring cost bills to be filed in the supreme court
within two days.
II. Section 3581 of the Compiled Laws of Nevada does not apply to the practice in the
supreme court. (Gray v. Palmer, 11 Cal. 341.)
III. When the legislature adopts the laws of another state, it is presumed to adopt the
construction placed upon it at the time of its adoption. Section 3581, Compiled Laws of
Nevada, was taken from the laws of California, hence the construction placed upon that
section by the Supreme Court of California ought to prevail in this state.
construction placed upon that section by the Supreme Court of California ought to prevail
in this state. (State v. Robey, 8 Nev. 320; McLane v. Abrams, 2 Nev. 206; Williams v.
Glasgow, 1 Nev. 537.)
IV. It does seem to us that where a new trial is ordered or decisions modified the lower court
should be commanded to carry out the order of the supreme court, and, when it does so,
section 3581 would be applicable.
The appellant in this case was awarded its costs upon appeal. (See page 151 of this
volume.) Subsequent to the filing of the opinion and decision in the case, but before the time
had elapsed for issuance of remittitur, counsel for appellant filed with the clerk of this court a
cost bill, covering the fees and charges of the clerk of this court, the cost of typewriting the
transcript on appeal, and what doubtless is the costs of the clerk of the lower court in
perfecting the appeal. Counsel for respondent have moved to strike this cost bill from the
files, upon the ground that it was not filed within the time prescribed by statute or rule of
court.
While the decision in this case gave the appellant its costs upon appeal, appellant must
come within the laws or rules regulating the matter of costs, to make the decision in respect to
costs effectual. Costs can only be recoverable in pursuance of the provisions of statute or rule
of court. (McKenzie v. Coslett, 28 Nev. 220, 80 Pac. 1070.) Subdivisions 1 and 2 of rule VI of
this court (see page 6 of this volume) read as follows: (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.
The method of taxing costs in this court is governed by rule VI; section 486 of the civil
practice act (Comp. Laws, 3581) being applicable only to district courts. (Gray v. Gray, 11
Cal. 341; Ex parte Burrill et al., 24 Cal. 350.) In the absence of an agreement by counsel,
made in open court or by stipulation filed, the provisions of rule VI relative to the time of
filing cost bills must be complied with to entitle a party to recover those costs which are
required to be embraced within a cost bill, to wit, the expense of printing or typewriting
transcripts, affidavits, etc. All other costs are to be taxed by the clerk in accordance with the
fee bill, and for such costs a cost bill is not requisite. Rule VI is broad enough to allow the
clerk of this court to tax the costs made in the court below upon the appeal in accordance with
the fee bill. The record on appeal will show what costs have been made in the lower court in
perfecting the appeal; but, for convenience of the clerk, appellants may provide the clerk with
a memorandum of such costs, which he can verify by a reference to the fee bill.
The cost bill in this case, not having been filed within the time required by the rule, will be
stricken out.
____________
28 Nev. 425, 425 (1905)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
OCTOBER TERM, 1905
____________
28 Nev. 425, 425 (1905) Ex Parte Kair
[No. 1659.]
Ex Parte PETER KAIR.
1. EvidenceRelevancyEight-Hour LawConstitutionality. On an attack on the constitutionality of the act
of February 23, 1903 (Stats. 1903, p. 33, c. 10), imposing a penalty on any one working more than eight
hours a day in any mine, smelter, or mill for the reduction of ores, on the ground that such labor was not
dangerous to health, evidence that particular reduction works and mills, including the one in which
petitioner worked, were healthful, as distinguished from the healthfulness of mills in general throughout
the country, was inadmissible.
2. Constitutional LawDeprivation of PropertyRight to Labor Due Process of Law. The act of February 23,
1903 (Stats. 1903, p. 33, c. 10), regulating the hours of labor in mines, smelters, and mills for the
reduction of ores, is not unconstitutional as depriving the miner of liberty and property without due
process of law.
Petition for rehearing. Denied.
Original decision affirmed. [For original decision, see page 140 of this volume.]
Alfred Chartz, for Petitioner.
James G. Sweeney, Attorney-General, for Respondent.
In the petition for rehearing it is said that we determined that the petitioner's imprisonment
was not in violation of the civil rights guaranteed to him by the constitution of the State of
Nevada, but that we did not decide the questions raised as to whether his detention was
in violation of the rights guaranteed to him under the fourteenth amendment to the
constitution of the United States, and as to whether he was imprisoned without due
process of law, and whether his fine was excessive.
28 Nev. 425, 426 (1905) Ex Parte Kair
State of Nevada, but that we did not decide the questions raised as to whether his detention
was in violation of the rights guaranteed to him under the fourteenth amendment to the
constitution of the United States, and as to whether he was imprisoned without due process of
law, and whether his fine was excessive.
The petition further states: That, since the rendition of the opinion of the Supreme Court
of the State of Nevada declaring an eight-hour law constitutional under the police power of
the state, the Supreme Court of the United States has declared such law unconstitutional in
the case of Lochner v. State of New York, 25 Sup. Ct. 539, 49 L. Ed. 937, on the ground that
no state can deprive any person of life, liberty or property without due process of law,' and
the right to purchase or to sell labor is part of the liberty protected by this document, unless
there are circumstances which exclude the right,' and the general right to make a contract in
relation to his business is part of the liberty of the individual protected by the fourteenth
amendment to the constitution.' Statistics were quoted to show that the occupation of baker
was not particularly unhealthful, showing that outside evidence can be introduced to vary the
judgment of the legislature. Justice Harlan, in dissenting, said it was the most important
decision rendered by the Supreme Court of the United States within a century, proving that
the case of Holden v. Hardy, 169 U. S. 368, 18 Sup. Ct. 383, 42 L. Ed. 780, did not decide
the question of the right of men sui juris to contract one with the other. That your petitioner is
not fully informed of the decision of the Supreme Court of the United States in the case of
Lochner v. State of New York, but believes the same to be controlling in the case at bar.
At the time the rehearing was ordered the press dispatches indicated that the Supreme
Court of the United States had reversed the decision of the New York Court of Appeals in the
Lochner case, 69 N. E. 373, 101 Am. St. Rep. 773, but the publication of the full text of the
decision had not arrived. From a review of that case (25 Sup. Ct. 539, 49 L. Ed. 937) it
appears that the New York statute providing a ten-hour day for bakers was upheld by the
Oneida County court, by three of the five judges of the supreme court, and by four of the
seven justices of the court of appeals of that state, and that it was finally declared
unconstitutional by five of the nine justices of the Supreme Court of the United States.
28 Nev. 425, 427 (1905) Ex Parte Kair
three of the five judges of the supreme court, and by four of the seven justices of the court of
appeals of that state, and that it was finally declared unconstitutional by five of the nine
justices of the Supreme Court of the United States. It will be seen that twelve of these judges
deemed the act valid, and that ten of them considered it unconstitutional. The decisions being
by a bare majority in every court through which the case passed, no question has ever
presented a sharper diversity of opinion among able jurists than the validity of this statute
concerning bakers. The same cannot be said regarding the acts limiting the hours of labor in
mines and mills for the reduction of ores. The legislative enactment from which ours is
copied was sustained by the full bench in Utah, and by seven of the nine justices of the
Supreme Court of the United States in Holden v. Hardy.
The Supreme Court of Missouri, in the Cantwell case (78 S. W. 569) unanimously upheld
the law, making an eight-hour day for underground miners in that state, and all agreed that
testimony tending to show that the work was not unhealthful could not be received to
overthrow the statute. The only decision found to the contrary is the strained one in Re
Morgan (Colo. Sup.) 58 Pac. 1071, 47 L. R. A. 52, 77 Am. St. Rep. 269, which led to so
much trouble, suffering, and loss of life in Colorado. The opinions of the majority, as well as
those of the minority, in the Lochner case, refer to and approve the decision in Holden v.
Hardy, which sustains the Utah act similar to ours, and Justice Brown, who wrote the opinion
of the court in the last-named case, concurred with the majority in the other. The court of last
resort was careful to distinguish between the two.
In the decision of the United States Supreme Court in Lochner v. New York, it is said:
Among the later cases where the state law has been upheld by this court is that of Holden v.
Hardy, 169 U. S. 366, 42 L. Ed. 780, 18 Sup. Ct. 383. A provision in the act of the
Legislature of Utah was there under consideration; the act limiting the employment of
workmen in all underground mines or workings to eight hours per day, except in cases of
emergency, where life or property is in imminent danger. It also limited the hours of labor in
smelting and other institutions for the reduction or refining of ores or metals to eight
hours per day, except in like cases of emergency.
28 Nev. 425, 428 (1905) Ex Parte Kair
of labor in smelting and other institutions for the reduction or refining of ores or metals to
eight hours per day, except in like cases of emergency. The act was held to be a valid exercise
of the police powers of the state. It was held that the kind of employment and the character of
the employees in such kinds of labor were such as to make it reasonable and proper for the
state to interfere to prevent the employees from being constrained by the rules laid down by
the proprietors in regard to labor. * * * There is nothing in Holden v. Hardy which covers the
case now before us. * * * The case differs widely, as we have already stated, from the
expressions of this court in regard to laws of this nature, as stated in Holden v. Hardy. And
in the dissenting opinions Justice Holmes said: The law sustaining an eight-hour day for
miners is still recent. And Justice Harlan: So, as said in Holden v. Hardy, this right of
contract, however, is itself subject to certain limitations, which the state may lawfully
interpose in the exercise of its police powers.'
The cases are distinguished on a question of fact, work in bakeries not being considered
more unhealthful than in ordinary employments by the majority of the court, while evidently
the opposite was held in regard to labor in mines and mills for the reduction of ores. Justice
Peckham, in the opinion of the court, said: We think there can be no fair doubt that the trade
of a baker, in and of itself, is not an unhealthful one to that degree which would authorize the
legislature to interfere. In looking through statistics regarding all trades and occupations, it
may be true that the trade of a baker does not appear to be as healthful as some other trades,
and is also vastly more healthful than still others. To the common understanding the trade of a
baker has never been regarded as an unhealthful one. * * * It seems to us that the real object
and purpose were simply to regulate the hours of labor in a private business not dangerous in
any real and substantial degree to the health of the employees.
The conclusion of the Supreme Court of the United States was quite different regarding
the effect of labor in quartz-mills, where, in adopting the language of the Supreme Court of
Utah in Holden v. Hardy, it was said: "Poisonous gases, dust, and impalpable substances
arise and float in the air in stamp-mills, smelters, and other works in which ore containing
metals, combined with arsenic or other poisonous elements or agencies, are treated,
reduced, and refined; and there can be no doubt that prolonged effort, day after day,
subject to such conditions and agencies, will produce morbid, noxious, and other deadly
effects in the human system.
28 Nev. 425, 429 (1905) Ex Parte Kair
of Utah in Holden v. Hardy, it was said: Poisonous gases, dust, and impalpable substances
arise and float in the air in stamp-mills, smelters, and other works in which ore containing
metals, combined with arsenic or other poisonous elements or agencies, are treated, reduced,
and refined; and there can be no doubt that prolonged effort, day after day, subject to such
conditions and agencies, will produce morbid, noxious, and other deadly effects in the human
system. Some organisms and systems will resist and endure such conditions longer than
others. That the legislature may regulate and limit the hours of labor in employments that are
dangerous and especially unhealthful is no longer open to doubt. That underground mining,
and the smelting, milling, and reduction of ores, are occupations of that kind and subject to
reasonable legislative regulations such as this act provides, we think is well settled by these
decisions in Missouri and Utah, and by the Supreme Court of the United States in Holden v.
Hardy, and in New York, and by this court in Ex parte Boyce, 27 Nev. 299, 75 Pac. 1, 65 L.
R. A. 47.
The question remains whether the particular mill and employment in which petitioner
worked should be exempted from the operation of the statute under his claim that labor there
is not unhealthful. Subject to objection and to the admissibility of the evidence being
determined later, witnesses have been sworn and interrogated before us regarding this mill
and a few other wet-crushing ones in that vicinity. On behalf of petitioner they testified that
labor in wet-crushing quartz-mills is perfectly healthful and preferable to outside work; that
the danger depends upon the construction of the mill; that there is no dust in the Dazet and
other wet-crushing mills in that vicinity, and no danger in amalgamating, if the men do not let
the pans get too hot and are careful about raising the lid; that they do not need to get their
hands and feet wet; and that work around cyanide plants is unusually healthful. On
cross-examination witnesses admitted that some mills are unhealthful because improperly
constructed, that dust may arise from rock breakers in wet-crushing mills, that they had
known men to become salivated, that the constant din of the battery may affect the hearing,
that cyanide produced sores on the skin of men who were careless in shoveling out tanks,
and that work around the pans in considered unhealthful.
28 Nev. 425, 430 (1905) Ex Parte Kair
produced sores on the skin of men who were careless in shoveling out tanks, and that work
around the pans in considered unhealthful. For the petitioner a physician of twenty-eight
years' experience stated that he knew of no specific disease peculiar to millmen, except
possibly, miner's consumption, which might arise from the dust floating in the mills; that the
din may injure the hearing in some cases; that the jar would not affect the kidneys of a strong
man; that during seven years' experience at a mining town in the eastern part of the state he
found that men engaged with free-milling ores were generally healthy, and those engaged
with base ores containing lead and such substances were liable to be injured; that work in
underground mines was more injurious than in mills; and that men had become afflicted with
miner's consumption on the Comstock.
A witness for the state testified that he had worked in the Dazet Mill, the one in which
petitioner was employed; that a car of ore is run onto and dumped over a grizzly about every
fifteen minutes, and quite a dust arises, that a rock breaker with large jaws makes flinty dust,
and after a man works there awhile he can spit it out in chunks, and that the dust settled over
the mill; that he never saw a man clean the battery that did not get wet; that he had worked
with hundreds of men in mills, and had heard them complain, and knew their hearing and
nerves were affected; that the jar injured his kidneys; that he knew a man who had been
stricken with paralysis in a cyanide plant; and that his brother-in-law died from working in
mills. Other witnesses testified that men became salivated, and that prolonged employment in
mills had a tendency to cause deafness and nervousness and to break down the system; that
the men who perform the labor in these institutions generally consider the work unhealthful;
and that they knew of deaths resulting.
The testimony does not extend to the mills and reduction works generally throughout the
state, and is conflicting, and does not show clearly that prolonged labor in them and in the
particular employment of a general millman, followed by the petitioner, would not result in
real and substantial injury to workingmen of ordinary vitality. However, feeling still in
accord with the Supreme Court of Missouri in the Cantwell case, we think this evidence
cannot be received or considered to affect the constitutionality of the statute.
28 Nev. 425, 431 (1905) Ex Parte Kair
in accord with the Supreme Court of Missouri in the Cantwell case, we think this evidence
cannot be received or considered to affect the constitutionality of the statute. If, for the
purpose of the argument, it be conceded that no one has been seriously affected in health by
laboring in this particular mill during the past few years, and that the petitioner has followed
with impunity his avocation for a period longer than the usual life, this does not prove that
months and years of labor in this and other quartz-mills may not disable or greatly injure men
of common physical powers. The evil results are not always immediate nor easily ascertained
in advance. Minds may honestly differ as to whether they will ever occur. Under certain
conditions some, and especially those who are interested, may earnestly believe that particular
mills and part of the labor in them should be immune from this enactment; but the future may
prove the wisdom of the legislature in regard to them, as the past has done concerning
underground mines and institutions generally for the reduction of ores. If exceptions were to
be made, based on the peculiarities of the mill or its method of operation, or on the chemicals
used, or on the ingredients of the ore, or on the ability of some workmen to maintain their
health longer than others, there would be great uncertainty and much litigation in securing the
benefits of the act, and it could thereby be nullified to a great extent.
The fact that controls the decision in the Lochner casethe finding of the majority of the
court of last resortthat the trade of a baker is not more unhealthful than ordinary
occupations, appears to be based on judicial knowledge aided by statistics and general
information, and not upon testimony. Essentially the same is true of the conclusion of this
court in this case and in Ex parte Boyce, and of the opinion reached in Holden v. Hardy by
the court in Utah, and followed and approved by the Supreme Court of the United States,
holding that labor in mines, smelters, and institutions for the reduction and refining of ores is
so hazardous and unhealthful as to justify the legislature in limiting the hours of labor in
those places. We held it was a matter of common knowledge that men sickened and died as a
result of labor in underground mines and quartz-mills, and by way of example referred to
the well-known fact that in one of the largest plants in the state the most of the men died
in from a few months to two years from the effects of flinty dust from quartzite ores.
28 Nev. 425, 432 (1905) Ex Parte Kair
of labor in underground mines and quartz-mills, and by way of example referred to the
well-known fact that in one of the largest plants in the state the most of the men died in from
a few months to two years from the effects of flinty dust from quartzite ores. Recently, and
since the submission of this case, there casually appeared before this court, as a spectator
during the argument of a water suit, a man in the advanced stages of miner's consumption,
sallow, emaciated, and with hollow cough; an impressive exhibit of the frequent effect of
work in underground mines. Testimony cannot be received to establish nor to overthrow these
or other matters of judicial cognizance. If it could be taken to overturn the conclusion that
labor in these places is unhealthful, for the same reasons it ought to be accepted to reverse the
finding that work in bakeries is not more unhealthful than in ordinary employments.
If evidence were to be considered for the purpose of showing that a particular mill or the
labor performed by some of the workmen in the reduction of certain ores is not unhealthful,
and that, therefore, it should be excepted from the operation of the act, testimony should also
be admissible to prove that the conditions existing in a few particular bakeries in the State of
New York made them especially injurious to the health of the employees therein, and that as
to them the statute ought to be enforced, notwithstanding it has been declared
unconstitutional as to the bakeries generally in that state. If, regardless of the reasons and
difficulties indicated here and in the opinion, testimony were receivable to limit the operation
of the statute in exceptional cases, the evidence would have to be clear to render the act
unconstitutional or ineffective as to them, and would have to be presented in the court having
jurisdiction of the offense, and not on petition for writ of habeas corpus. If questions of fact
not conclusively shown by judicial knowledge were to vary or restrict the control of the
statute in some cases, the state and the defendant would be entitled to have them submitted to
a jury in the court having jurisdiction of the offense, and the proper method for the correction
of errors in that tribunal would be by appeal.
28 Nev. 425, 433 (1905) Ex Parte Kair
We do not find the statute to be in conflict with the fourteenth amendment, nor with any
provision of the state or federal constitutions, nor do we deem the fine excessive. We realize
the importance of the question involved, and that it borders on the line that divides the right
of the individual to work, contract, and act as he may please from the power of the legislature
to restrain or limit him in this regard for his benefit, and that of the community by the
enactment of laws for the protection of his health, safety, morals, and the common welfare.
After mature reflection we feel confirmed in the correctness of the conclusions reached in the
opinion, and that the statute controls the employment followed by petitioner. If this will work
unnecessary hardships without corresponding benefits in exceptional cases, application
should be made to the legislature, and not to the courts, for relief.
The petitioner is remanded, as ordered before.
Fitzgerald, C. J. (concurring):
I concur in the judgment reached by Justice Talbot in this case, and at some time in the not
distant future hope to embody my views in an opinion to be filed.
Norcross, J. (concurring):
I concur in the judgment and in the opinion of Talbot, J., in so far as the same is not
inconsistent with certain views of this case which I here express. I do not think that this court
can say that as a matter of common knowledge prolonged labor in all classes of ore-reduction
works is injurious to the health of the workmen of each respective class. That there is a
difference in degree between the unhealthfulness of labor in underground mining, and in that
of labor in smelters, quartz-mills, cyanide plants, and other ore reduction works, seems to be
unquestioned. It would seem, also, that the legislature itself has placed labor in underground
mines in a different class than labor in smelters and other ore-reduction works, for the
prohibition against the employment of labor in underground mines for a longer period than
eight hours is embodied in a separate section from the section containing a general provision
concerning labor in smelters and all other ore-reduction works.
28 Nev. 425, 434 (1905) Ex Parte Kair
a general provision concerning labor in smelters and all other ore-reduction works.
When the court has said it will take judicial notice that labor in underground mines,
smelters, and dry ore-crushing quartz-mills is unhealthful, I think it has gone as far as it can
go in this respect, considering the general knowledge respecting the various occupations
which the court can take judicial notice of. The flinty dust which escapes from the battery in
the dry ore-crushing quartz-mill, and which is largely responsible for the unhealthfulness of
such mill, is largely, if not entirely, removed in the wet-crushing mill. In the cyanide process,
which is comparatively a recent process for the extracting of the metals from ore, the
conditions are naturally different from those which ordinarily exist in the quartz-mill. It is a
matter of common knowledge that changes and improvements have been made in
ore-reduction processes and are continually being made, and it is too much to say that these
changes and improvements may not also have affected the healthfulness of the employment.
While I think it cannot be said that it is a matter of common knowledge that prolonged labor
in wet-crushing quartz-mills (a large and distinctive class of ore-reduction mills) is generally
productive of ill health or disease, upon the other hand we cannot say that as a matter of
common knowledge it is not unhealthful to a degree which would authorize the interference
of the legislature.
In the absence of authoritative knowledge to the contrary, we must presume that the
legislature acted intelligently and in the interest of the public welfare, with the object in view
of improving the conditions of health of a considerable class of people. The difficulty in
determining what may be said to be common knowledge regarding the effect upon the health
of employees engaged in any particular ore-reduction process is that there are many different
processes of ore reduction, some of which are unquestionably unhealthful, while others may
or may not be so; and yet, when the matter of ore-reduction processes are considered as a
whole, they may readily be said to be unhealthful. Our attention has not been called to any
statistics that would throw any light upon the relative healthfulness of labor in various
ore-reduction processes.
28 Nev. 425, 435 (1905) Ex Parte Kair
healthfulness of labor in various ore-reduction processes. It has not been contended, either in
the briefs or in the oral argument, that as a matter of common knowledge labor in
wet-crushing quartz-mills was comparatively healthful.
Upon the trial of petitioner, evidence was offered showing that petitioner's occupation was
an exceptionally desirable one, and that there were no conditions existing in the mill in which
he was employed that might be conducive to ill health. The petition on file in this case shows
that upon the trial petitioner testified regarding the nature of his employment as follows: All
I have to do is to work the machine and see that everything goes along all right, pour
quicksilver in the motor [mortar] every half an hour, and then sit down and see that
everything goes along all right. I have very little to do. I have a good comfortable room with a
stove in it, sit down and readplenty of newspapers to read and magazines. He testified
further, that there were no fumes or gases, or anything like that; that he was raised on a farm
and preferred the work in the quartz-mill to farm work; that it was as healthful as open-air
work. All of the testimony offered at the trial was to the effect that work in the Dazet
quartz-mill, in which petitioner was employed, was under perfectly healthful conditions.
In addition to the testimony offered, counsel for the state and for the defendant entered into
a stipulation evidently intended (if it could be accomplished in that way) to cover the facts
that might be involved in a consideration of the case. This stipulation, in so far as it refers to
the character of petitioner's employment, is as follows: That defendant's employment and the
employment of his co-servants in said Dazet quartz-mill is not unhealthful, and is not
dangerous to either life or limb, and that it consists in taking care of gold plates, and feeding
batteries, and attending to machinery; that there is no dust and no fumes or gases of any kind
to breathe, and the air is pure and the room comfortable; that the process used for the
reduction of ores in said mill is known as and is called the copper-plate process,' which
consists of crushing the rock with water in the batteries and running the pulp over copper
plates, and the work is not hard; that the machinery furnishing the power consists of belts
and pulleys, and is similar to ordinary machinery used for grinding flour, and not any
more dangerous than machinery used in farming operations."
28 Nev. 425, 436 (1905) Ex Parte Kair
hard; that the machinery furnishing the power consists of belts and pulleys, and is similar to
ordinary machinery used for grinding flour, and not any more dangerous than machinery used
in farming operations. If labor in wet-crushing quartz-mills generally was of the character
described as existing in the Dazet mill, I do not believe it could be argued, in the light of the
recent decision of the Supreme Court of the United States, that such conditions would support
legislation restricting the hours of labor therein, based upon the police power of the state
exercised in the interest of public health.
But if we are to presume that labor in such quartz-mills generally is unhealthful to a degree
that would warrant the interference of the legislature (and under the present state of
intelligence upon the subject we must so presume), can evidence of conditions out of the
ordinary be shown to make an exception in the application of the rule? I think not. I think the
principle involved here is precisely the same as that involved in the case of Powell v.
Pennsylvania, 127 U. S. 684, 8 Sup. Ct. 992, 32 L. Ed. 253, cited in the original opinion in
this case (see page 140 of this volume), where a statement of the facts of that case will be
found. Justice Harlan, in delivering the opinion of the Supreme Court of the United States in
that case, said: It will be observed that the offer in the court below was to show by proof that
the particular article that defendant sold, and those in his possession for sale in violation of
the statute, were in fact wholesome or nutritious articles of food. It is entirely consistent with
that offer that manyindeed, that mostkinds of oleomargarine butter in the market contain
ingredients that are or may become injurious to health. The court cannot say, from anything of
which it may take judicial cognizance, that such is not the fact. Under the circumstances
disclosed in the record, and in obedience to settled rules of constitutional construction, it must
be assumed that such is the fact. Every possible presumption,' Chief Justice Waite said,
speaking for the court in Sinking Fund Cases, 99 U. S. 700, 25 L. Ed. 496, is in favor of the
validity of a statute, and this continues until the contrary is shown beyond a rational doubt.
One branch of the government cannot encroach on the domain of another without danger.
28 Nev. 425, 437 (1905) Ex Parte Kair
government cannot encroach on the domain of another without danger. The safety of our
institutions depends in no small degree on a strict observance of this salutary rule.' * * * And
as it does not appear upon the face of this statute, or from any facts of which the court must
take judicial cognizance, that it infringes rights secured by the fundamental law, the
legislature's determination of those facts is conclusive upon the courts.
It will be observed in the Powell case that the court did not take judicial notice that many
or most kinds of oleomargarine butter in the market contained ingredients that are or may
become injurious to health, but simply that the court could not say, from anything of which it
may take judicial cognizance, that such is not the fact, and that, until the contrary is shown
beyond a rational doubt, every possible presumption is in favor of the validity of the statute.
Applying this reasoning to the case at bar, it is clear why this or any other court cannot act
upon the evidence offered upon petitioner's trial. I agree with counsel for petitioner that
evidence may be offered in doubtful cases to establish the fact whether or not a certain
occupation is or is not unhealthful, and, if unhealthful, whether or not it is unhealthful to a
degree that would warrant the exercise by the legislature of the police power of the state.
Such evidence, however, must be directed to the character of the occupation generally
throughout the territory covered by the statute, and cannot be confined to an individual case
or a district that might be exceptional. If in matters of this kind courts can act upon judicial
knowledge, which amounts simply to taking notice of the existence of a fact recognized as of
common knowledge, and hence the necessity of proof of the same not required, I see no good
reason why they may not act upon facts established by competent proof.
Taking judicial notice of a fact simply does away with the necessity of offering evidence to
support that fact. While a court may refuse to hear evidence offered to contradict the
existence of a fact which it can say it knows of common knowledge, I am unable to see upon
what theory a court could refuse to hear evidence upon a fact of which it could not take
judicial notice.
28 Nev. 425, 438 (1905) Ex Parte Kair
not take judicial notice. To so hold would be the equivalent of saying that in some cases the
rights of an individual, guaranteed him by the constitution, could be taken away from him,
because the court did not happen to take judicial notice of a fact or facts necessary to a
determination of the case. If judicial knowledge fails to disclose whether a statute is a
legitimate exercise of the police power, evidence should be introduced to enlighten the
judicial mind. (Harvard Law Review, Feb. 1904, p. 269.)
The question, then, presents itself in this case: When and where should proof of these facts
be offered? Upon the hearing of this petition, counsel for petitioner, subject to objection,
offered testimony for the purpose of establishing his theory of the case that labor in wet
ore-crushing quartz-mills was not an unhealthful occupation. Counsel contends that this court
should consider this testimony, and in support of his contention cites a number of decisions.
In none of the decisions cited did the appellate court hear the testimony of witnesses. In some
of the cases cited the court referred to the testimony taken at the trial, while in others the
court simply referred to certain statistics and reports outside of the record, which procedure
upon the part of the court is supported by ample authority. Courts take judicial notice of many
facts, which, in order to apply, require an investigation of some authority. For example, courts
will take judicial notice of the time of the rising of the sun or moon upon any particular day,
but it will hardly be expected that any court will be able to apply this knowledge without first
making a satisfactory investigation. So, in matters affecting the public health, reference may
be made to authoritative tables or statistics. (16 Cyc. 922.) Evidence upon an issue of fact
necessary to a determination of the merits of a case should be offered upon the hearing of the
case in the trial court. The testimony offered in this court upon the hearing of this proceeding
was inadmissible, and to review it would be to no purpose.
In the recent case of Lochner v. New York, relied on by counsel for petitioner, it will be
observed that the New York statute was, by the opinion of the Supreme Court of the United
States, held to be in violation of the fourteenth amendment of the constitution of the
United States, because the court was able to say: "To the common understanding the
trade of a baker has never been regarded as an unhealthful one."
28 Nev. 425, 439 (1905) Ex Parte Kair
United States, held to be in violation of the fourteenth amendment of the constitution of the
United States, because the court was able to say: To the common understanding the trade of
a baker has never been regarded as an unhealthful one. Had the majority of the court
expressed a doubt upon the question, as did the minority, the statute would have been upheld;
for the Supreme Court of the United States, in line with all appellate courts, has repeatedly
held that questions of doubt must be resolved in favor of the statute.
The question presented in this case is one of power in the legislature to enact a certain law.
It is a fundamental principle that courts will not interfere to annul an act of the legislature,
unless plainly and beyond reasonable doubt in violation of organic law. The constitution has
made the legislature the exclusive judge of the wisdom, policy, and expediency of laws.
When a statute is questioned before the court, its sole province is to measure it by the limits
fixed by the state and federal constitutions. Tested by this rule and the facts as shown by the
record, it cannot be said that the section of the act in question is void.
____________
28 Nev. 440, 440 (1905) State v. Lawrence
[No. 1674.]
THE STATE OF NEVADA, Respondent, v. H. C.
LAWRENCE, Appellant.
1. Criminal LawTrialObjections to EvidenceFailure to Specify GroundsFailure to Except. The
overruling of a general objection to evidence, the grounds of which are not specified, and to which
ruling no exception is taken, is not error.
2. WitnessesImpeachmentConviction of Crime. Where defendant, in a prosecution for felony, offers
himself as a witness in his own behalf, convictions of other felonious crimes committed by him may be
shown on cross-examination to affect his credibility, although they may not be competent as substantive
evidence against him.
3. Criminal LawAppealHarmless ErrorAdmission of Evidence. Error in permitting a question to be
answered over objection is harmless, where the same question has been previously asked and answered
without objection.
4. SameErrors ReviewableFailure to Object. The propriety of the admission of evidence, which is not
objected to in the lower court, need not be considered on appeal.
5. SameMatters Not Apparent in Record. Alleged errors which do not appear in the bill of exceptions need
not be discussed by the supreme court.
Appeal from the District Court, Churchill County; B. F. Curler, Judge.
H. C. Lawrence was convicted of assault with intent to kill, and appeals. Affirmed.
B. R. McCabe, for Appellant:
I. The court erred in permitting the prosecution to attempt to prove the general and
specific bad character of the defendant, when the defendant had not put his character either
specifically or generally in issue. The defendant went on the stand as a witness in his own
behalf. His testimony was confined entirely to the time he resided in this state, about a year
and a half. On cross-examination he was asked by counsel for the state the following
questions:
Mr Pike: How many have you killed altogether in your lifetime, Mr. Lawrence? A. I have
not killed any yet, sir. Q. How many have you tried to kill? A. One. Q. Who is that? A.
Garrison. Q. Is that the only one? A. Yes, sir; only one I ever had any cause to kill. Q. You
have been in California? Mr. McCabe: That is objected to.
California? Mr. McCabe: That is objected to. The Court: Objection overruled. Mr. Pike: You
have been in California? A. Yes, sir. Q. Have you ever been in Northern California? A. No,
sir. Q. Never was around Fort Jones? A. No, sir. Q. Fort Bragg? A. No, sir. Q. You have been
in Mendocino County? A. No, sir. Q. Ever know a man up there in that country by the name
of Fred Heldt? A. No, sir. Q. Never did; are you sure of that? A. I never was up in that part of
the country. Q. Did you ever know a man in California by the name of Fred Heldt? A. I do
not remember. Mr. McCabe: That is objected to, if your honor please; it is not
cross-examination, not relevant to this case. The Court: Objection overruled. Mr. McCabe:
Exception, please. Mr. Pike: How long is it since this desire possessed you to kill Mr.
Garrison? A. Oh, perhaps a month. Q. Perhaps a month before you undertook to kill him? A.
Yes, sir. Q. You had made up your mind to kill him? A. I only made up my mind to kill him
the last week. I kept thinking I ought to. Q. What for? A. Because he was working against me.
Q. What was he doing against you? A. He intended to kill me. Q. How do you know that? A.
Kept telling people that I was tricky. Q. How did you know that he intended to kill you? A.
Mary told me so. Q. Who is Mary? A. Mary? That is my old sweetheart. Q. Your old
sweetheart? Where is she? A. She was with me. She used to come and see me every day. Q.
Where from? A. I used to know her way back in New Hampshire. That is where I first got
acquainted with her thirty-five years ago. Q. How long? A. Thirty-five years. Q. Living or
dead? A. Living. Certainly, she is living; been right here in jail to see me a thousand times. Q.
Your old sweetheart told you that Garrison was going to kill you. A. Yes, sir. Q. Any one
else? A. No, sir. Didn't need any one else. Mary always knowed what was going on. She
never makes a mistake. Q. What did Mr. Garrison ever say to you about it that led you to
believe that he was going to give you any injury? A. Well, Mr. Garrison is pretty cunning. He
would not say anything himself. Q. Would not say anything? A. No, he is pretty deep. Q. Did
Mary tell you to kill that man Heldt over in Fort Bragg? A. I never saw a man Heldt. Q. You
didn't? A. No, sir. Q. Didn't you kill a man named Heldt over in Mendocino County? Mr.
McCabe: That is objected to, if the court please.
Fort Bragg? A. I never saw a man Heldt. Q. You didn't? A. No, sir. Q. Didn't you kill a man
named Heldt over in Mendocino County? Mr. McCabe: That is objected to, if the court
please. That is irrelevant. Mr. Pike: I am trying to find out what Mary told him. Mary told him
one thing. I want to find The Court: Objection overruled. Mr. McCabe: Exception. The
Court: Note the exception. Mr. Pike: Did Mary tell you to kill old man Heldt up there in
Mendocino County? A. No, sir, I never saw an old man Heldt. Q. Didn't you serve twelve
years in Folsom Penitentiary for forging his name to a will? A. No, sir. Q. You didn't? A. No,
sir. Q. Did Mary tell you to forge old man Heldt's name to a will for an estate of $50,000 that
he had up in the vicinity of Fort Bragg? A. No, sir; I don't know Fort Bragg, nor Mr. Heldt,
nor anything else. Q. Do you know where Mendocino County is? A. No, sir; I do not. Q. Do
you know where Folsom Penitentiary is? A. Yes, sir; I know where it is. Q. How long did you
live there? A. No, sir. Q. You have lived in the Folsom Penitentiary? A. No, sir. Q. Is that
your picture? (Handing same to the witness.) Isn't that your picture? A. No, sir; that is not my
picture. Q. Is that yours? A. No, sir. Q. It ain't your picture? A. Well, I should hope not. Q.
Ain't this your picture, with the head shaved? A. No, I should say not. Q. You deny it? A.
Certainly I deny it.
II. The questions above no doubt were asked with a view to create in the minds of the
jurors a prejudice against the defendant. They were not admissible for the purpose of
impeaching the defendant's character, either generally or for truth and veracity. They could
have no other effect than the dire object of holding him up before the jury as a dangerous
criminal whom it was their duty to convict on general principles. How easy it was for the jury
to say to themselves: So I heard. So-and-so was right when he told me he served a term in
the pen. And why would the counsel for the state be permitted to ask these questions? Such
questions satisfied and filled those preconceived ideas that were inculcated from the day of
his arrest in a rural community by every one from the editor of the little newspaper down to
the boy in the street.
the boy in the street. But let me reserve this for oral argument, and cite the honorable court to
the law, which is the best argument. (State v. Huff, 11 Nev. 17; People v. O'Brien, 66 Cal.
602; People v. Bishop, 81 Cal. 113; People v. Wong Ah Leong, 99 Cal. 440; People v.
Crowley, 100 Cal. 478; People v. Baird, 104 Cal. 462.)
III. In this case the defendant admitted the assault, but set up for his defense the plea of
insanity. And, indeed, I think all the actions of the defendant on the 13th day of July, the day
of the assault, as shown by the evidence, were those of an insane man. The prosecution
undertook to show, as a motive for the desire of the defendant to kill Garrison, that Lawrence
owed Garrison something like $185, and undertook to kill Garrison to liquidate the debt. Let
us go over the route with this man Garrison and see how careful he was to bring his would-be
slayer to justice: Q. How much did he owe you on the 30th day of July for work? A.
Nineteen dollars. Q. The day that you received the wound? A. I believe that it was $19.75. Q.
Had you ever asked him for it? A. I had not particularly asked him for what he owed me for
work. I asked him for another little bill that he owed me. Q. What was the other bill that he
owed you? A. Sixty-five dollars. In the very next question he is asked by counsel for the
state to state to the jury fully and in detail how he happened to owe this money. And near the
last of the same page he makes the statement: Well, he got another hundred somehow. I got
thirty-five dollars of the hundred. And the next question takes him entirely from the subject
until page 22 is reached: Q. Now state to the jury how much you ever received out of that
$200 certificate of deposit. A. Thirty-five dollars. Q. Now state to the jury what, if anything,
Mr. Lawrence had told you with relation to the balance of that money due on the certificate of
deposit. A. I never heard of it. I thought it was back there. I thought there were sixty-five
dollars here out of the hundred and the other hundred was still back. And so it goes. Note the
explanation of the witness as to the second hundred dollars.
IV. The question is, did the prosecution prove a motive for the act?
for the act? Let us take the evidence, and this is all we can take in this court, for the jury
doubtless judged as physiognomists, and does not the evidence show that his actions were
those of an insane man? (Taylor's Med. Jur. 664.)
I. The lower court did not err in allowing the district attorney to cross-examine defendant
as the record discloses. No person accused of crime can be compelled to testify against
himself, nor can any witness be compelled to give evidence which would tend to incriminate
him, but these are rights which may be waived, and when a defendant in a criminal action
testifies in his own behalf he waives his right and becomes a witness subject to be examined
and cross-examined as any other witness. By availing himself of the privilege of testifying in
his own behalf, the defendant thereby voluntarily assumed the character of a witness, and he
became subject to every rule adopted by the court for the purpose of cross-examination.
(Keyes v. State, 122 Ind. 527; Com. v. Bonner, 97 Mass. 587; Fletcher v. State, 49 Ind. 130;
Wigmore on Evidence, vol. 11, pp. 1013-1014; State v. Murphy, 45 La. Ann. 938; Underhill
on Evidence, 497-498, and authorities cited; Bell v. State, 31 Tex. Cr. Rep. 276; U. S. v.
Brown, 40 Fed. 457.)
II. The defendant did not object to answering any of the questions asked by the district
attorney on the ground that they would tend to criminate him, and, as the questions put by the
district attorney tested his mental condition as to his homicidal tendencies, the defendant
having placed in issue his mental condition claiming to be a monomaniac with homicidal
tendencies, the questions asked by the district attorney were legitimate questions in
cross-examination. The defendant in this case having interposed a plea of insanity, assuming
to be a monomaniac with homicidal tendencies, and having testified in his direct examination
that he was under the hallucination that his victim (Garrison) was plotting against him and
that he felt it necessary to kill him and put him out of the way, the district attorney in
cross-examination was certainly privileged to cross-examine him at length as to his memory
and his homicidal desires and tendencies in order to ascertain whether or not his mind
was diseased to the extent that he became a monomaniac with homicidal tendencies, as
interposed in his defense, or whether he was simply feigning insanity for the purpose of
avoiding punishment for the crime charged.
at length as to his memory and his homicidal desires and tendencies in order to ascertain
whether or not his mind was diseased to the extent that he became a monomaniac with
homicidal tendencies, as interposed in his defense, or whether he was simply feigning
insanity for the purpose of avoiding punishment for the crime charged. The questions
complained of were clearly relevant to his insanity and were plainly competent. (State v. Tice,
131 N. Y. 651; Spies et al. v. People, 122 Ill. 2; Underhill on Evidence, p. 498.)
III. The jury in the case at bar evidently believed the convincing evidence introduced at the
trial that defendant's motive for attempting to kill Garrison was to avoid payment of a debt
which was due and owing to Garrison from the defendant and for the purpose of covering up
a crime of embezzlement committed against Garrison; whether or not they believed the
further theory of the prosecution that, in the event the defendant succeeded in murdering
Garrison, he would attempt to forge his will and secure the money of Garrison deposited in
the bank in Steelville, Missouri, is immaterial. The fact remains that the defendant admitted
the assault, and, having interposed for his defense the plea of insanity, the jury, under the
evidence adduced and the instructions of the court, did not believe him insane and found him
guilty. Even admitting, for the sake of argument, that no motive was shown in the case, it is a
well-established principle of law that in criminal cases the absence of any apparent motive for
the commission of an offense is only a circumstance to be considered in connection with
other evidence of insanity, but it does not of itself prove insanity, as counsel for defendant
assumes in his brief. (16 Am. & Eng. Ency. Law, 609, and authorities cited.)
B. R. McCabe, for Appellant, in reply:
I. I wish here only to cite the honorable court to further authorities that have come to my
notice since filing the original brief. (People v. Wells, 100 Cal. 459; People v. Mullings, 83
Cal. 138; People v. Devine, 95 Cal. 227; Taylor's Med. Jur. 632-4.)
II. In a similar case to the one at bar (Gale v. People, 26 Mich.
Mich. 161) Judge Cooley, delivering the opinion of the court, says: A review of the evidence
in the case suggests very forcibly that, however full may be the explanation, a list of questions
which assume the existence of damaging facts may be put in such a manner, and with such
persistency and show of proof, as to impress a jury that there must be something wrong, even
though the prisoner fully denies it, and there is no other evidence. Holding that these
questions were erroneous, and that they might, and probably did, prejudice the prisoner, the
conviction must be set aside, and a new trial ordered.
The defendant was convicted in the Second Judicial District Court in and for the County of
Churchill of the crime of assault with intent to kill. He made a motion for a new trial. The
court denied the motion, and sentenced the defendant to the penitentiary for the period of
fourteen years. Defendant appeals to this court from both the order denying his motion for a
new trial and also from the judgment pronounced upon him by the court.
In his bill of exceptions defendant makes four assignments of error; but his counsel, in the
brief filed in this court, relies only upon the following: The defendant was a witness in his
own behalf. Mr. Pike (assisting the district attorney) was cross-examining the defendant.
After some questions the following occurred: Mr. Pike: Q. You have been in California? Mr.
McCabe: That is objected to. The Court: Objection overruled. Up to this point certainly no
error was committed by the court. Counsel did not point out or specify any error to the court;
neither did he take any exception to the ruling of the court. Mr. Pike proceeded as follows:
Mr. Pike: Q. You have been in California? A. Yes, sir. Q. Have you ever been in Northern
California? A. No, sir. Q. Never was around Fort Jones? A. No, sir. Q. Fort Bragg? A. No,
sir. Q. You have been in Mendocino County? A. No, sir. Q. Never was in Mendocino
County? A. No, sir. Q. Ever know a man up there in that county by the name of Fred Heldt?
A. No, sir. Q.
Never did? Are you sure of that? A. I know I was never up in that part of the country. Q. Did
you ever know a man in California by the name of Fred Heldt? A. I do not remember. Mr.
McCabe (attorney for defendant): That is objected to, if your honor please. It is not
cross-examination, not relevant to this case. The Court: Objection overruled. Mr. McCabe:
Exception please. As will be seen counsel objected to the foregoing on two grounds: First,
that it was not cross-examination; and, second, that it was not relevant to the case.
Properly to determine these questions it is necessary to make a brief statement of the
condition of the case when the objections were interposed.
The defendant was on trial for an assault with intent to kill. His defense was the plea of
insanity. The evidence, when the objections were interposed, had not only tended to show,
but, it might perhaps truthfully be said, had shown, that the defendant had requested Mr.
Garrison, the man upon whom it was charged the assault had been made, to go with him into
the country to aid in the making of a survey of some land; that Mr. Garrison accompanied the
defendant, and, when they were out some distance in the country, defendant walked behind
Garrison and shot him in the back of the head with a pistol; that Garrison fell to the ground;
that defendant went a short distance to a somewhat elevated place, and there stopped and
looked back at Garrison; that he saw Garrison rising up from the ground; that defendant
returned near Garrison, and fired two more shots at him, these shots emptying defendant's
pistol; that Garrison then made some resistance to the attacks of the defendant; that defendant
then returned to the town; and that Garrison also made his way back to the town, but by a
route different from that taken by the defendant. Under the crime charged, the defense
pleaded, and the above-stated conditions of the evidence, we think it cannot be successfully
claimed that the evidence to which the objection was made was not proper cross-examination.
The defendant had offered himself as a witness in his own behalf; and although it may be true
that in his capacity of defendant no other crime than that for which he was undergoing trial
could be shown in evidence against him, yet in his capacity of witness convictions of
felonious crimes could be so stated on cross-examination as going to his credibility.
him, yet in his capacity of witness convictions of felonious crimes could be so stated on
cross-examination as going to his credibility.
As throwing much light on the doctrine here laid down we cite the following: Keyes v.
State, 122 Ind. 527, 23 N. E. 1097; Com. v. Bonner, 97 Mass. 587; Fletcher v. State, 49 Ind.
130, 19 Am. Rep. 673; Wigmore on Evidence, vol. 2, pp. 980-982, 1013, 1018, 1270; State v.
Murphy, 45 La. Ann. 958, 13 South. 229; Underhill on Evidence, 497, 498, and authorities
cited; Bell v. State, 31 Tex. Cr. R. 276, 20 S. W. 549; U. S. v. Brown (D. C.) 40 Fed. 457;
People v. Tice, 131 N. Y. 651, 30 N. E. 494, 15 L. R. A. 669; Spies et al. v. People, 122 Ill. 2,
12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320; 14 Am. St. Rep. 480-482; Cream City Glass
Co. v. Friedlander (Wis.) 54 N. W. 28, 21 L. R. A. 135, 36 Am. St. Rep. 895-898. On the
first ground assigned we think the court did not commit error. On the second ground of
objection, to wit, irrelevancy, it should be kept in mind that the defendant was in a double
capacitythat of defendant, and that of witness. As defendant pure and simple, the testimony
was, it may be granted for the purpose of this argument, irrelevant, and therefore improper;
but as witness it was not so. It was relevant to the question of his credibilitya question that
his testifying in his own behalf put in issue before the jury. The cases above cited, and
doctrine laid down, likewise dispose of this question adversely to the contention of counsel
for the defendant.
Further along in the cross-examination, and after counsel had pursued for a time a different
line of interrogation, the following occurred: Q. Did Mary tell you to kill that man Heldt
over in Fort Bragg? A. I never saw a man Heldt. Q. You didn't? A. No, sir. Q. Didn't you kill
a man by the name of Heldt over in Mendocino County, California? Mr. McCabe: That is
objected to, if the court please. That is irrelevant. Mr. Pike: I am trying to find out what Mary
told him. Mary told him one thing. I want to find The Court: Objection overruled. Mr.
McCabe: Exception. The Court: Note the exception. Mr. Pike: Did Mary tell you to kill old
man Heldt up there in Mendocino County? A. No, sir; I never saw an old man Heldt."
saw an old man Heldt. It will be observed that the question to which objection was directed
was not answered. The question which followed was somewhat different from the question
objected to; and, even if it were error to have admitted it over a proper objection, the error
would have been harmless, for the same question had previously been asked and answered
without objection.
It will also be observed that the answers given to the questions were favorable to the
defendant. In this respect the case is not like that of State v. Huff, 11 Nev. 17, cited by
counsel for defendant in support of his position. In that case the defendant was asked upon
cross-examination with reference to a number of assaults and batteries, and over the objection
of defendant's counsel was allowed to testify that he had committed a number of such
offenses, for which he had been convicted. In referring to these questions and answers, the
court said: We cannot doubt that the answers he gave must have excited more or less
prejudice against him in his character of defendant in the minds of the jurors who tried him.
Following the examination last above quoted, counsel for the state asked the defendant a
number of questions relative to imprisonment in the Folsom Penitentiary in California. The
defendant denied repeatedly that he had ever been so imprisoned. It is contended that this line
of examination tended to prejudice the defendant in the minds of the jury. No objection was
interposed to this line of examination, and whether or not it would have been error to have
permitted it over objection does not require consideration.
There are some other matters claimed as errors by counsel for the defendant in his oral and
written arguments, but these, not appearing in the bill of exceptions, need not be discussed
here.
There being no error in the judgment or order appealed from, the said judgment and order
are affirmed.
____________
28 Nev. 450, 450 (1905) Gulling v. Washoe County Bank
[No. 1672.]
ROSAN GULLING, Executrix, and CHARLES GULLING, Executor of the Estate of Charles
Gulling, Deceased, Respondents, v. THE WASHOE COUNTY BANK, a Corporation,
Appellant.
1. PleadingIssuesMatters Arising after Commencement of Suit. As between codefendants an answer does
not put in issue new matter set up in an answer to the complaint, of a codefendant subsequently filed,
especially where such codefendant was not mentioned in the former answer.
2. SameAllegations Deemed Denied Without Answer or Reply. If it be conceded that new matter alleged
against a defendant in the answer of a codefendant is deemed denied under the statute, without answer
or reply thereto, the rule is not applicable where the answer setting up the new matter is not served on
such defendant.
3. JudgmentRes Judicata. An answer directed against the complaint, but which seeks affirmative relief
against a codefendant, raises no issue as to the latter, where it is not served on him, and he files no
demurrer, answer, or reply thereto, and therefore that part of the judgment which grants such
affirmative relief is not res judicata as against such codefendant.
4. AppealPresumptionsRes Judicata. Where the judgment roll and papers in a former suit are introduced in
evidence in the trial court and brought into the record on appeal, the determination of the question
whether the subject-matter of the latter suit was adjudicated in the former suit rests upon the showing by
the record and not upon presumption.
Fitzgerald, C. J., dissenting.
[Petition for rehearing was filed during the October term of 1905, and
subsequently granted during the January term of 1906, but up to the present time
(July, 1906) no further steps have been taken in the matter.]
Action by Rosan Gulling, Executrix, and Charles Gulling, Executor, against the Washoe
County Bank. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.
Cheney & Massey, for Appellant:
I. The judgment and decision of the court in this action is contrary to law, for the reason
that all matters sought to be litigated in this action were fully litigated and determined by the
court in the action of the Farmers' and Mechanics' Savings Bank v. Pollock and Others, as
shown by the pages of the record herein referred to.
Savings Bank v. Pollock and Others, as shown by the pages of the record herein referred to.
The court decided by this action that the respondents were not estopped from the
foreclosure of the mortgage in this action by reason of the judgment and decree rendered in
the former action set out in the defendant's answer, for the reason that in said former action
the court did not have jurisdiction of the subject-matter and of the parties thereto so as to
quiet the title of the defendant to said property, as was therein attempted to be done. It is a
general rule of lawand upon this rule respective counsel did not disagree on the trialthat
a right, question, or fact distinctly put in issue and directly determined by a court of
competent jurisdiction cannot be disputed in a subsequent suit between the same parties or
their privies; and, even if the second suit is for a different cause of action, the right, question,
or fact once determined must be, as between the same parties or their privies, taken as
conclusively established, so long as the judgment in the first suit remains unmodified.
(Southern Pacific Co. v. U. S., 168 U. S. 1; McLeod v. Lee, 17 Nev. 103; Brown v. Ashley, 16
Nev. 311; Sherman v. Dilley, 3 Nev. 21.)
There can be no question as to the jurisdiction of the district court, under the constitution of
this state, to quiet title to real estate or to render a decree of the foreclosure of a mortgage.
Upon the trial of the issues the contentions of counsel for respondents were that in the former
action of the Farmers' and Mechanics' Savings Bank v. Gulling and Others, an action to
foreclose a trust deed given to secure the payment of a loan, and in effect a mortgage, the
district court of this state had no power or jurisdiction to decree that the sale under the trust
deed by Cummings and Steinman to the Washoe County Bank operated as a foreclosure of
the equity of redemption of the mortgagee (Gulling) and vested title to the property in this
appellant, and that for that reason the judgment was absolutely void for want of jurisdiction.
The basis of the contention made by respondents upon the trial was to the effect that the
district court of this state, under the settled rules of equity procedure, could not determine, in
a proceeding to foreclose a mortgage, paramount title to the property.
title to the property. In support of this contention a large number of cases from various states
was cited, in which it was held upon appeal to higher courts, where the question had been
properly reserved, that the trial court did not possess the power or jurisdiction to hear and
determine such titles in foreclosure proceedings, but, as we remember now, under the reform
procedure, as it exists in this state and in nearly all of the states of the American Union, no
case was found in which it was held that, where a court had without objection litigated and
determined such questions in proceedings of foreclosure, such determination was absolutely
null and void and rendered the judgment and decree of the court absolutely void. It appears
that, in the cases cited in support of the contention of the respondents, and which will no
doubt be cited in their brief on this appeal, the decisions have gone to the extent only of
holding the decision or determination of titles in proceedings to foreclose such an irregularity
only as to justify or authorize the appellate court to reverse the judgment. This question has
never been presented to this court, but courts in other states, under procedure similar to the
procedure prevailing here, have held unanimously, where the matter has come up for
consideration, that the litigation of titles in proceedings to foreclose is a mere irregularity and
does not render the judgment of the court absolutely void for want of jurisdiction or power in
the court to so hear and determine the question.
II. In Beronio v. The Ventura County Lumber Company, 129 Cal. 232, 61 Pac. 958, a case
where the question of the power of a court to hear and determine title in foreclosure
proceedings was under discussion, the supreme court of that state says: If, however, the
plaintiff makes the holder of an adverse title a party defendant to the foreclosure suit, setting
forth facts from which he claims that such title is subordinate to his mortgage, and issues
upon these facts are presented for adjudication, without objection on the part of the
defendant, the judgment of the court thereon will not be void. The court may decline to pass
upon the question as not germane to the suit for foreclosure, or it may determine that such
claim of the defendant is unfounded, or that his interest in the premises is subordinate to
the mortgage, or it may render a decree of foreclosure subject to the prior rights of such
defendant.
interest in the premises is subordinate to the mortgage, or it may render a decree of
foreclosure subject to the prior rights of such defendant. The subject-matter of such
controversy will be within the jurisdiction of the court, and, if the parties thereto submit the
controversy to its determination, the judgment thus rendered will be as conclusive upon them
as if rendered in an action especially brought for that purpose, and will not be subject to
collateral attack. (Goebel v. Iffla et al., 111 N. Y. 170, 18 N. E. 649, 651; Jordan v. Van
Epps, 85 N. Y. 427; Barnard v. Onderdonk, 98 N. Y. 150; Frost v. Koon, 30 N. Y. 428;
Cromwell v. MacLean, 123 N. Y. 274, 25 N. E. 932; Helck v. Reinheimer, 105 N. Y. 473, 12
N. E. 37; Masters v. Templeton, 92 Ind. 447; Maynard v. Waidlich, 60 N. E. (Ind.) 348;
DeWolf v. Sprague Mfg. Co., 49 Conn. 282; Bradley v. Parkhurst, 20 Kan. 462; Lego v.
Medley, 79 Wis. 211; Wicke v. Lake, 21 Wis. 410; Roche v. Knight, 21 Wis. 329; Newton v.
Marshall, 62 Wis. 8; Oates v. Shuey, 66 Pac. (Wash.) 58, 59; Const. Nev. sec. 14, art. VI,
Comp. Laws, 125.)
III. If the legal or equitable title of the property was in some person other than the person
of the mortgagor at the time of the execution of the mortgage, and such person is either made
a party to the foreclosure proceedings or voluntarily appears thereto and sets up title to the
property which shows that no valid lien exists or could have been created against the specific
property, we can see no reason why the court, under this constitutional provision, should not
hear and determine that fact, rather than to say that the question of title which would operate
to defeat the mortgagee's lien cannot be heard and determined in this action. It will, therefore,
enter a decree foreclosing the mortgage and directing sale of the mortgaged premises, and
postpone to another time and to other actions the determination of the question of title to this
property between the purchaser under the decree of foreclosure and the legal owner thereof.
Such a proposition, we submit, is not in harmony with the theory of code procedure, and is in
direct conflict with the express provisions of the constitution of this state. The legislature of
this state, for the very purpose of carrying out this express provision of the constitution, as a
matter of procedure, has enacted that any person may be made a party defendant to an
action who has or claims an interest in the controversy adverse to the plaintiff, or who is
a necessary party to a complete determination or settlement of the question involved
therein.
provision of the constitution, as a matter of procedure, has enacted that any person may be
made a party defendant to an action who has or claims an interest in the controversy adverse
to the plaintiff, or who is a necessary party to a complete determination or settlement of the
question involved therein. (Comp. Laws, 3108.)
IV. The court possessed jurisdiction to render the decree as between the Washoe County
Bank and Martin Gulling.
Not only has the constitution of this state changed the rule as to what may be heard in an
action, and abrogated the old rule limiting equitable relief to equitable actions and relief
within the strict rule of law to actions at law, as above indicated, but the legislature of this
state, in the practice act, in harmony with the provisions of the constitution above cited, has
expressly decreed that a judgment in an action may, when the justice of the case requires it,
determine the ultimate rights of the parties on each side as between themselves. (Comp.
Laws, 148.) The district court, in the case of Farmers' and Mechanics' Savings Bank v.
Gulling, et al., by its decree, did nothing more than to determine the ultimate rights between
Gulling and the bank. This determination was based upon the issues made by the pleadings,
and such issues were made in strict compliance with the provisions of the civil practice act of
this state. Upon an examination of the answer filed by the Washoe County Bank in the case of
Farmers' and Mechanics' Bank v. Gulling, it will be observed that the bank set up its right to
the property covered by the Gulling mortgage under its purchase at the sale by the trustees.
The answer of the Washoe County Bank in that action was full and complete, and the prayer
for relief as against the defendant Gulling was expressly granted by the decree. It is well to
note in this connection that under the practice act of this state it is expressly declared that all
forms of pleadings in civil actions, and the rule by which the sufficiency of the pleadings
shall be determined, shall be those prescribed in the act. (Comp. Laws, 3132.) By a
subsequent section of the act the legislature has declared the only pleadings on the part of the
plaintiff shall be the complaint or demurrer to the defendant's answer, and the only pleadings
on the part of the defendant shall be the demurrer or answer.
part of the defendant shall be the demurrer or answer. (Comp. Laws, 3133.)
The Washoe County Bank in the former action, by the only method prescribed by the civil
practice act of this state, and limited by that act to that method only, set up its rights, not only
as against the plaintiff, the Farmers' and Mechanics' Savings Bank, but also as against its
codefendant, Martin Gulling, and asked the court to determine its rights, not only as against
the plaintiff, the Farmers' and Mechanics' Savings Bank, but as against its codefendant,
Martin Gulling, and the decree of the court, based upon the issues made, under the provisions
of section 3243, determined the ultimate rights of the codefendants as between themselves.
No other pleadings were necessary on the part of the defendant, Gulling, or the defendant,
Washoe County Bank, in the former proceeding to authorize the trial and findings and decree
of the court establishing the rights of the Washoe County Bank as between it and Martin
Gulling. The provisions of our practice act declare that the allegation of new matter in the
answer shall, on the trial, be deemed controverted by the adverse party. Therefore all new
matter set up in the answer of the Washoe County Bank under the provisions of the civil
practice act, in so far as that matter might have affected the plaintiff, the Farmers' and
Mechanics' Bank, or Martin Gulling, a codefendant, in that action, was deemed controverted
under the provisions of the act. The assertion of rights by the Washoe County Bank as against
plaintiff, and as against Gulling, its codefendant, made both the plaintiff and Gulling adverse
parties as against the Washoe County Bank, within the meaning of that provision.
V. The district court on the trial of this case expressly found that this court did not have
jurisdiction of the person of Martin Gulling and of the person of the Washoe County Bank in
the former action. The record discloses the following facts, and these facts are not
controverted:
(1) That the defendant, Martin Gulling, appeared in the former action in response to the
summons served upon him in that action. His answer filed in that action recites: The
defendant, Martin Gulling, in obedience to summons herein issued and served upon him,
and answering the summons and complaint herein, declares and alleges as follows:
issued and served upon him, and answering the summons and complaint herein, declares and
alleges as follows:
(2) The answer of Martin Gulling in the former action, made a part of the judgment roll
under the provisions of this act, shows his appearance thereto.
(3) The findings of the court in the former case recite the appearance of Martin Gulling by
R. M. Clarke and Thos. V. Julien, Esqs. It appears by the uncontradicted recitals in the
decision of the court that the plaintiff, having before hearing filed a disclaimer of all interest
in the action, offered no evidence and made no proofs therein, the Washoe County Bank,
defendant, having succeeded to the interests of the plaintiff; that Martin Gulling, defendant,
offered and submitted evidence and proofs and thereupon rested; that Washoe County Bank,
defendant, offered and submitted evidence in support of the issues made by its answer and
rested.
(4) The decision of the court, found in the record, shows the precise questions decided by
the court upon the issues made by the pleadings and the evidence offered in support of the
same, and therein the court states that the material question presented is whether a sale under
and in accordance with the terms of the power of sale created by the trust deed foreclosed the
equity of redemption and invested in the purchaser, Washoe County Bank, at such sale, when
regularly and fairly made, the title to the mortgage property free from any and all
incumbrances placed thereon by the mortgage subsequent to the recording of the mortgage
under which the lien was made. In this connection we suggest to the court that the findings of
the court as to the want of jurisdiction over the defendant are so palpably contrary to the facts
that a citation of law is hardly necessary. The defendant was served, he appeared in the
action, went to trial upon the issues made in the manner prescribed by law, contested all
issues made, and upon what theory of the law and upon what fact the trial court based its
finding and conclusion as to the want of jurisdiction over the persons is absolutely beyond
our comprehension. Jurisdiction is acquired over persons in this state by service of summons,
and where no summons has been served the civil practice act provides that a voluntary
appearance of a defendant shall be equivalent to personal service of summons upon him.
appearance of a defendant shall be equivalent to personal service of summons upon him.
(Comp. Laws, 3130; Rose v. Richmond M. Co., 17 Nev. 26; Frankel & Co. v. Creditors, 20
Nev. 49.) We respectfully submit that it is a novel proposition, to say the least, for a person to
appear in court, and under the terms prescribed by law ask the court to determine some matter
in his favor, and, after the court has determined the matter against him, to say in another
proceeding that that determination was void because the court had no jurisdiction over his
person.
U. S. Webb and E. R. Dodge, for Respondents:
I. It was contended on the argument that Martin Gulling was in court and therefore subject
to the jurisdiction of the court. He was in court, it was true, but there for the purpose of the
original action commenced by the Farmers' and Mechanics' Savings Bank to foreclose its lien,
and to which he had been made a party. He was there to represent his interests as a lien
holder, as shown by his answer of March 8, 1897. In other words, he was there to represent
the interests as they stood at the date of the filing of his answer and upon the facts appearing
in the complaint of the Farmers' and Mechanics' Savings Bank and in the answer filed by him,
and he can complain now of no judgment that was proper under the issues as made by the
original complaint and his answer thereto, for jurisdiction over him had been acquired by the
court for the purpose of such a judgment, but it is for the purpose of such judgment only that
jurisdiction had been acquired. In fact, the purpose of this appearance of Martin Gulling in
the original action is plainly stated in the answer filed by him. That statement of his purpose
in appearing is plainly stated, is quoted in appellant's brief, and is as follows: The defendant,
Martin Gulling, in obedience to the summons herein issued and served upon him, and
answering the summons and complaint herein, declares and alleges as follows. Any relief,
therefore, against Gulling granted upon the complaint of the Farmers' and Mechanics' Savings
Bank and the answer thereto of Martin Gulling would conclude him and those claiming
under him.
claiming under him. The relief, however, in that action granted by the court was not measured
by the answers of the various witnesses to the complaint to foreclose the trust deed filed by
the Farmers' and Mechanics' Savings Bank. As before suggested, on July 31, 1897, the
Washoe County Bank appeared in that action and filed a pleading which it denominated an
answer, and which, by it, is in the answer in this case repeatedly denominated an answer and
cross-complaint. In this pleading is set out the purchase by it from Pollock, Pollock &
Powell of the property in question on February 23, 1897; also the purchase by it at the
trustees' sale of March 20, 1897; it alleged itself to be the owner in fee of said property free
and clear of all liens and incumbrances and asked a decree accordingly. The only relief
justified by that pleading, and prayed for therein was affirmative in character and particularly
directed against the plaintiff in this action, Martin Gulling.
It will be remembered that the action was brought for the purpose of foreclosing the lien in
favor of the Farmers' and Mechanics' Savings Bank, and that the Washoe County Bank was a
necessary party defendant by reason of the conveyance to it of February 23, 1897, by Pollock,
Pollock & Powell, and that Gulling, perhaps, was a proper party thereto by reason of his
junior mortgage of August 31, 1895. Prior to the filing of the so-called answer of the Washoe
County Bank on July 31, 1897, however, the indebtedness pleaded in the original complaint
had been paid, satisfied, and discharged, and the bank had gotten its money. All that it sought
to have accomplished in that action had been accomplished through another proceeding and
there remained nothing to litigate. The lien of the trust deed having been so extinguished
through that extinguishment and through the conveyance of Pollock, Pollock & Powell to the
Washoe County Bank of February 23, 1897, the Washoe County Bank became the owner in
fee of the premises, subject only, so far as this case is concerned, to the lien of plaintiff's
mortgage. This was the condition at the time the so-called answer of the Washoe County
Bank was filed, and in that so-called answer the fact that the claim of the Farmers' and
Mechanics' Savings Bank had been satisfied was made to appear, as well as were the two
conveyances to the Washoe County Bank referred to.
ings Bank had been satisfied was made to appear, as well as were the two conveyances to the
Washoe County Bank referred to. No relief was asked against the plaintiff in that action, but
the so-called answer did ask that the bank be decreed the owner of the property in fee, free
and clear of all incumbrances, and particularly of the lien of plaintiff's mortgage. Thus it was
sought to convert an action for the foreclosure of a lien into an action to determine and
adjudicate title. More than that, not only was it so sought to change the character of the
action, but it was sought to change the relation and attitude of the parties by eliminating
entirely from the proceedings the plaintiff and obtaining from codefendants the only relief
prayed for. If Gulling had pleaded to this cross-bill, it may be that he would have been bound
by any decree based upon the issues raised by the cross-bill and his answer thereto. For the
purposes of this case it need not be disputed that, had he been served with process issued
upon this cross-bill and had he made default, he would have been bound by any relief granted
proper under such cross-bill. These admissions, however, are made solely for the purpose of
illustration. Gulling was not served. Therefore default could not be taken against him. He did
not appear. Therefore there were no issues joined upon which the court could measure rights
and grant relief. Repeating, Gulling, it is true, was in court and in that case for the purposes of
the original action, but it seems quite apparent that he had never been brought into court nor
into that case for the purposes of the cross-bill of the Washoe County Bank, and, not having
been so brought in, he cannot be bound by relief granted in a proceeding to which he was not
made a party.
II. If plaintiffs are at this time not entitled to have their mortgage foreclosed, it is because
they are estopped therefrom by a former adjudication, but the judgment relied upon here was
pronounced in a proceeding to which the holder of the mortgage was not made a party, and
therefore the court so pronouncing that judgment had no jurisdiction over the person of
Gulling, or over the subject-matter of his lien. Res judicata is whatever has been finally
decided by a court of competent jurisdictionproceeding according to the forms of
lawby a valid sentence on a matter alleged, and either denied or expressly or impliedly
confessed by the other; and it is conclusive evidence of that which it decides, between the
same parties or those that represent them, litigating over the thing, under the same title
and in the same quality."
of competent jurisdictionproceeding according to the forms of lawby a valid sentence on
a matter alleged, and either denied or expressly or impliedly confessed by the other; and it is
conclusive evidence of that which it decides, between the same parties or those that represent
them, litigating over the thing, under the same title and in the same quality. (1 Van Fleet's
Former Adj. p. 11.) Ordinarily the defendants in an action are not, as between themselves,
adversary parties. They may become adversary parties only when one files a pleading in the
nature of a cross-complaint upon which affirmative relief is asked against another. When this
is done, the parties to a cross-complaint lose their identity as defendants and for the purposes
of such cross-complaint assume the relation of plaintiff and defendant. When this relation is
created, for the purposes of the subject-matter of the cross-complaint they become adversary
parties, and the defendant to the cross-complaint is entitled to all the rights of an adversary,
among which will be found the right to be served with, and the right and opportunity to plead
to, such cross-complaint. Until these rights and opportunities are afforded, jurisdiction for the
purposes of the cross-complaint has not been acquired and any judgment rendered cannot
conclude the defendant to the cross-complaint. (24 Am. & Eng. Ency. Law, 731.) Adversary
parties, as here used, does not mean adversary in point of interest in the subject of the suit,
but does mean parties whose interests are placed in opposition or made adverse to the
pleadings. (Ostrander v. Hart, 130 N. Y. 413; 24 Am. & Eng. Ency. Law, 732; Jones v. Vert,
121 Ind. 140.)
III. Counsel, in their opening brief, and at the oral argument, contended that under certain
conditions paramount title could be determined in an action to foreclose a mortgage. This we
do not dispute. In no foreclosure, however, can the question of paramount title in a defendant
be litigated except by the consent thereto of such defendant, and this consent can be evinced
in no other way than by a pleading on his part which tenders or joins issue upon that question.
When this is done the authorities are uniform upon the proposition that the court of its own
motion may decline to entertain the question; in other words, that, when issue has been
so joined, the court may entertain jurisdiction of the question, or the court may decline so
to do.
to entertain the question; in other words, that, when issue has been so joined, the court may
entertain jurisdiction of the question, or the court may decline so to do. With the many cases
cited by appellant in its brief and recited on oral argument to this point we have no complaint.
They are cases of lien foreclosure where paramount title of defendant was determined, but in
each of them, issue between plaintiff and defendant by the pleadings was joined upon that
question. To this last statement, Goebel v. Iffla, 111 N. Y. 170, constitutes an exception. That
was foreclosure, and the complaint averred that the defendants claim an interest, etc., which
was subsequent and inferior to the lien of plaintiff's said mortgage and is subject and
subordinate thereto. It appeared affirmatively that defendants were regularly served with
process and made default. Upon this state of facts the court held that the judgment holding
that defendants' interests were subsequent was valid, thereby treating their action in defaulting
as a consent to the court's jurisdiction. This, however, is the only case cited, and the only one
which we have found where judgment by default is held conclusive against paramount title
and is opposed to the entire current of authority on the subject. It may be advantageous to
consider some of the other cases relied on by appellant. Helck v. Reinheimer, 12 N. E. (N. Y.)
37: Defendant answered, pleading paramount title, and upon this plea issue was joined. The
parties went to trial, the court entertained jurisdiction and rendered judgment pleaded by the
defendant. On appeal it was claimed that the court erred in trying title in foreclosure suit. The
appellate court held that, issue having been joined upon that question, it was the privilege of
the trial court to say, or refuse to try it. The court having heard the evidence addressed to this
issue and rendered judgment thereon, such judgment was valid and binding. The parties
having voluntarily submitted to the court this issue for determination were estopped to
question its jurisdiction thereafter.
Beronio v. Ventura County Lumber Co., 129 Cal. 232, was an action to quiet title, and it
was contended that plaintiff had lost title by reason of the fact that, in some prior foreclosure
suit, he had been made defendant under an averment that the interest claimed by him
was subsequent and subject to the lien of plaintiff's mortgage.
closure suit, he had been made defendant under an averment that the interest claimed by him
was subsequent and subject to the lien of plaintiff's mortgage. The court uses the language
quoted by appellant to the effect that, where issues are joined and parties consent to litigate
the question of paramount title, the decree will be binding. It appeared that, in the mortgage
foreclosure, defendant had answered denying that his title was subsequent or subject to that of
plaintiff's mortgage, but the court held that this denial did not present an issue upon which the
priority of title could be determined. Thus, in each of these cases, except in 111 N. Y., the
pleadings had joined issue upon the question of paramount title, and thereby each party had
not only consented to the court's determination, but had presented that issue to the court and
prayed that it be determined. In the case at bar, no relief was granted upon, or in conformity
with, the complaint of plaintiff, nor granted to or against such plaintiff. The only relief
granted by the judgment was in favor of one defendant and against codefendants, and the only
pleading upon which it can be claimed such relief was granted was the pleading filed by the
Washoe County Bank, which was not a pleading adversely to the plaintiff in the action, but
was in nature and purpose an original complaint in which the Washoe County Bank assumed
the role of plaintiff, claiming upon matters wholly and entirely new affirmative relief against
its codefendants and particularly against the defendant, Gulling. Gulling did not plead to this
new matter and no default was taken against him, for he had not been served with process,
and therefore the necessary steps to put him in default had not been taken. Gulling's answer
was filed at the proper time, but he could not have in that answer pleaded to the new matter
set up by the Washoe County Bank, for some of the matters set up were events occurring after
his answer was filed, and the bank did not file its pleading until almost five months after
Gulling had appeared. Upon this state of facts it certainly appears that if there ever was a case
where a defendant should have an opportunity to answer an attack made upon his rights by a
codefendant, this is preeminently such a case. The question of title was not put in issue by
the pleadings, nor was the question of the rights of Gulling under his mortgage put in
issue, and therefore the judgment of the court thereon cannot now be successfully
pleaded against him.
tion of title was not put in issue by the pleadings, nor was the question of the rights of Gulling
under his mortgage put in issue, and therefore the judgment of the court thereon cannot now
be successfully pleaded against him. It is a judgment upon a matter at issue in that case and in
no sense res adjudicata.
IV. It was contended in the oral argument and in the brief for appellant that the pleading
filed by the Washoe County Bank in the original action was an answer pure and simple, and,
as such, no process issued thereon was required to bring codefendants into court in order to
gain jurisdiction over them for the purposes of such answer and to bind them by judgment
awarding affirmative relief thereunder. In support of this contention section 3133, Comp.
Laws, is cited. This section provides that the only pleadings on the part of the plaintiff shall
be the complaint and demurrer to defendant's answer, and the pleadings on the part of the
defendant shall be the answer and the demurrer to the complaint. Section 3141, after making
provision for denials, provides that the answer may contain a statement of any new matter or
counter-claim, constituting a defense, in ordinary and concise language. Section 3142
provides that the counter-claim mentioned in the preceding section shall be one existing in
favor of the defendant and against a plaintiff, and the closing provisions of the section define
clearly what may be pleaded as counter-claim. It will be observed that section 3141 provides
that the new matter stated in the answer may be such as constitutes a counter-claim or a
defense. Under the plainest use of language this surely means that the defendant may
counter-claim against the plaintiff, and that he may offer in his answer such new matter as
constitutes a defense against the pleaded rights of the plaintiff. It would surely being doing
violence to the term counter-claim to suggest that the section means that one defendant
could counter-claim against a codefendant when no rights had been asserted against the
counter-claimant by such codefendant, and equal violence would it do to suggest that the new
matter mentioned in section 3141 as constituting a defense could be set up as the basis for
affirmative relief against a codefendant. It is quite true that the civil practice act contains
no express authorization for a cross-complaint.
quite true that the civil practice act contains no express authorization for a cross-complaint. It
is also true that the Constitution of Nevada, sec. 6, art. VI, provides that district courts have
jurisdiction in cases of both law and equity, and by section 14 of the same article it is
provided that there shall be but one form of civil action, and that law and equity may be
administered in the same action. The case instituted by the Farmers' and Mechanics' Savings
Bank in 1897 was an action in equity, and the court had undoubted right to measure and
determine the rights of all the parties to that action, so far as the pleadings therein set forth
those rights. The pleading of the Washoe County Bank, we think, clearly was not the answer
of the Nevada statute, but, on the contrary, it was the equitable cross-bill, pure and simple.
Though not expressly authorized by the Nevada statute, it was entertained by the court, and
judgment thereon pronounced, and for the purposes of the present case will, we apprehend, by
this court be regarded as it was evidently regarded by the trial court. It cannot be regarded as
pleading a counter-claim, for nothing is asked against the plaintiff in the action, nor can it be
regarded as pleading new matter by way of defense, for in it no defense is sought to be made
against the complaint or plaintiff. (Rose v. Treadway, 4 Nev. 460; Ency. Pl. and Pr. vol. 5, pp.
625-6.)
V. We have contended that Gulling cannot be bound by the judgment in this case because
he was not made a party to the answer or cross-bill of the Washoe County Bank in the
original case, nor had he been served with process therein so that this default could be
entered. (Ency. Pl. and Pr. vol. 5, p. 658.) It is also the duty of a defendant filing a cross-bill
to take the necessary steps to obtain the answer of the defendants thereto. (Ency. Pl. and Pr.
vol. 5, p. 661.) The constitutional and code provisions of the State of Nebraska on the
question at issue are in all substantial particulars the same as are the constitutional and
statutory provisions of this state. Though the statute there does not in terms authorize a
cross-bill, it has been held by the court repeatedly that in the absence of statutory provisions
governing the practice and procedure the rules of chancery practice shall control.
tice shall control. (Armstrong v. Mayer, 95 N. W. (Neb.) 52; Pomeroy's Code Rem. sec. 684.)
VI. It appears from the records that the property is worth $14,000. At the time Gulling
made his loan, so far as the records show, the only lien upon the property was that of the
Farmers' and Mechanics' Savings Bank to secure an indebtedness due them of $8,000 and
interest. Gulling's was a second mortgage, and the property then was ample security for both.
It appears in the transcript in several places, and particularly in the findings, that Pollock,
Pollock & Powell were indebted to the Washoe County Bank upon unsecured demands
aggregating $5,200. If plaintiff be denied a foreclosure then, through a species of
legerdemain, the Washoe County Bank has succeeded in placing its unsecured demands
ahead of the Gulling mortgage. Whether the purchases by the Washoe County Bank, shown
by the record and hereinbefore referred to, place the title in the Washoe County Bank, free
and clear of the lien of the Gulling mortgage, is not the question in this case. All that we here
ask is that the plaintiff's mortgage be foreclosed. What plaintiffs will get under a sale
pursuant to such decree is another question and to be determined at another time. Plaintiffs
ask here simply that by the decree of foreclosure they be placed in a position to subject the
mortgaged premises to the satisfaction of their lien, if on the facts the law entitles them so to
do. The facts are that Gulling loaned his money and took a mortgage upon property which
was then ample security therefor; that he commenced his action to foreclose within time and
obtained a decree of foreclosure, and this appeal is prosecuted to defeat that judgment. We
believe that the rights of the parties and the principles of equity entitle us to an affirmance of
the judgment appealed from.
Cheney & Massey, for Appellant, in reply:
I. In the oral argument and the brief filed herein respondents have abandoned the decision
of the trial court and undertake, by shifting their position, to sustain the order denying the
motion for a new trial and the decree entered herein. The decision of the trial court, expressed
in clear and trite language, based upon the facts of the case and the law as then
presented, was that in said former action the court did not have jurisdiction of the
subject-matter and of the parties thereto so as to quiet the title of the defendant to said
property as was herein attempted to be done.
and trite language, based upon the facts of the case and the law as then presented, was that in
said former action the court did not have jurisdiction of the subject-matter and of the parties
thereto so as to quiet the title of the defendant to said property as was herein attempted to be
done. Respondents abandon the court in this conclusion. They now say it was not so much a
matter of jurisdiction of the subject-matter and of the parties, but the power to render the
particular judgment, because no issue was made by the pleadings between Gulling and the
Washoe County Bank in the former action. They contended that Gulling was in court for all
the purposes of the complaint filed by the Farmers' and Mechanics' Savings Bank, but for
those purposes only; and, after floundering in their brief upon this proposition, have cited no
provisions of our statute in support of this contention, and have cited no rule of law, statutory
or otherwise, upon which they or this court could base any such conclusion. To sustain any
such conclusion the court must not only ignore the absolute and express provisions of the
civil practice act of this state, but must also do some legislationa thing, we apprehend, this
court will not undertake. Our practice act has abolished in express terms all pleadings except
such as are therein mentioned. The only pleadings on the part of the plaintiff shall be the
complaint, or demurrer to the defendant's answer; and the only pleadings on the part of the
defendant shall be the demurrer, or the answer. (Comp. Laws, 3133.) The labored idea of
respondents with respect to cross-bills and cross-complaints absolutely ignores this provision
of the statute. The word only, as used in our statute, is exclusive in its meaning, and limits
absolutely and unqualifiedly the pleadings to those mentioned in the sections cited. If it does
not mean this, if it is not exclusive of cross-bills and cross-complaints, then the legislature
and years of practice in the courts of this state meant and mean nothing whatever.
II. The statute, then, declares what the answer shall contain: First, denial of each
allegation of the complaint, if verified; if not verified, a general denial of each allegation.
Second, a statement of any new matter or counter-claim constituting a defense, in ordinary
and concise language.
stituting a defense, in ordinary and concise language. (Comp. Laws, 3141.) The subsequent
section of the practice act defines a counter-claim. The answer of the Washoe County Bank in
the former action comes within the definition of this section. It is a cause of action arising out
of the transaction set forth in the complaint as the foundation of plaintiff's claim, or connected
with the subject of the action. A reference to the answer of the Washoe County Bank in the
former action discloses the fact that it set up the purchase of the property covered by the
respondents' mortgage at public sale made by the trustee under the powers of the trustee,
which the Farmers' and Mechanics' Savings Bank was seeking to foreclose in this action. In
the language of the statute, it was a cause of action arising out of the transaction set forth in
the complaint of the Farmers' and Mechanics' Savings Bank, and connected with the subject
of that action. The prayer for relief by the Washoe County Bank in the former action was for a
decree against Gulling, its codefendant, and as against the Farmers' and Mechanics' Savings
Bank, the plaintiff, and such sale operated as a foreclosure of the trustee and as a bar to any
equity of redemption that Gulling may have in the property under his mortgage, and vested
the title to the property in the Washoe County Bank as completely and fully as though the sale
had been made under the decree of foreclosure and the time for redemption had expired. This
the court decided in favor of the Washoe County Bank, not only as against the Farmers' and
Mechanics' Savings Bank, but as against Martin Gulling and the other defendants to that
action. No other pleadings than those on file and offered in evidence in this action were
necessary to enable the court to herein determine the question of law and fact as it was so
heard and determined. Every material allegation of the complaint, when it is verified, not
specifically controverted by the answer, shall, for the purpose of the action, be taken as true.
The allegation of new matter in the answer shall on the trial be deemed controverted by the
adverse party. (Comp. Laws, 3160.) No pleading was necessary as against the answer of the
Washoe County Bank. In a former proceeding to make or raise an issue between the plaintiff
and the Washoe County Bank, or between Gulling and the Washoe County Bank, every
allegation of the bank's answer in that action, under the section of the statute above
quoted, was deemed controverted by the adverse party.
issue between the plaintiff and the Washoe County Bank, or between Gulling and the Washoe
County Bank, every allegation of the bank's answer in that action, under the section of the
statute above quoted, was deemed controverted by the adverse party. Gulling could not, under
our statute, have filed any pleading to this counter-claim had he so desired, either by way of
answer or otherwise. The plaintiff could not have filed any pleading by way of answer or
reply to the answer of the Washoe County Bank, had it so desired. Any such pleadings were
unauthorized by the terms of the statute above cited. The pleading was not necessary under
our practice. The law stated in section 3160, above cited, tendered the issue without pleading,
and pleadings were limited, by the section first referred to, to complaints, demurrers, and
answers. The power of the court under the proceedings of the civil practice act, which is the
question now presented to the court, to render the decision it did in the former action, is
unquestioned; and the contention in respondents' brief that the court had no power to render
the decree in the former action because no issue was made, there being no pleadings filed by
Gulling in response to the answer of the Washoe County Bank, is met and completely
answered by the express provisions of our statute in the following language: Judgment may
be given for or against one or more of several plaintiffs and for or against one or more of
several defendants; and it may, when the justice of the case requires it, determine the ultimate
rights of the parties on each side, as between themselves. (Comp. Laws, 3243.)
III. This provision follows the provisions before cited with respect to the pleadings
required under the civil code of this state, and, after declaring the only pleadings necessary
and the only pleadings that can be filed by the respective parties to the action, the legislature
has declared that the court may, in furtherance of justice, determine the ultimate rights of the
parties to each side as between themselves. This the court did in a former action. It
determined the ultimate rights between the Washoe County Bank, the purchaser under the
trust deed, to the property as against Gulling, its codefendant, claiming an interest therein by a
mortgage that he confessed in his answer was subsequent and subordinate to the rights
of the Farmers' and Mechanics' Savings Bank, holding the trust deed under which the sale
was made.
mortgage that he confessed in his answer was subsequent and subordinate to the rights of the
Farmers' and Mechanics' Savings Bank, holding the trust deed under which the sale was
made. To contend, in the face of this express provision of our statute, that the court had no
power to determine the ultimate rights as it did as between the Washoe County Bank and
Gulling in the former action is simply to ignore the provisions of the section last cited. To
insist that the court, in order to determine the ultimate rights as between Gulling and the
Washoe County Bank, must have before it cross-bills and cross-complaints, with answers and
replies thereto, upon the part of the respective parties to the suit, is simply to ignore those
express provisions of the statute conferring upon the court the power which it actually
exercised in that action, and which Gulling, the Farmers' and Mechanics' Savings Bank,
plaintiff, and the Washoe County Bank asked it to exercise. It must be remembered that all
the parties appeared on that trial, as shown by the record in evidence, and submitted the very
issue that was actually determined by the court. It must also be remembered that nowhere
within the civil practice act of this state is found the words cross-bill, cross-complaint,
reply, answer to the cross-bill or cross-complaint, or reply thereto. Many of the states
of the Union have retained the cross-complaint known to that old equity practice and require
by provisions replies to the answer, to the complaint, and answer to the cross-bill. Our code
has simplified the matter and made such pleadings unnecessary in order to form an issue
between codefendants as to their ultimate rights as to the property or question in controversy,
but has in effect tendered the issue itself. In New York, under the code of civil procedure, and
which our code now more nearly represents than any other of the code states, a case was
never at issue until a reply by the plaintiff had been filed to the defendant's answer. The New
York code also conferred upon the courts the power to determine the ultimate rights of the
parties on each side as between themselves, and to grant to the defendant any affirmative
relief to which he may be entitled. This is the substance of the provisions of our act. The
courts of New York, in construing this provision of their act, substantially the same as our
act, have held that it was proper to grant relief as between defendants in reference to the
claim made against them by the plaintiff, and as a part of the adjustment of that claim
based upon the facts involved in and brought out by the litigation and investigation of
that claim.
struing this provision of their act, substantially the same as our act, have held that it was
proper to grant relief as between defendants in reference to the claim made against them by
the plaintiff, and as a part of the adjustment of that claim based upon the facts involved in and
brought out by the litigation and investigation of that claim. (Mechanics' and Traders'
Savings Institute v. Roberts, 1 Abb. 381; Woodworth v. Bellows, 4 How. 24; Norburry v.
Seeley, 4 How. 73; Kay v. Whitaker, 44 N. Y. 566.) Such relief is given in order to do
complete justice. (Livingstone v. Mildrum, 19 N. Y. 440.)
Under the decisions above cited, the decision of the trial court in the former action was
justified. It was a part of the adjustment of a claim of the Farmers' and Mechanics' Savings
Bank under its trust deed, based upon the facts involved, in and brought out by the litigation
of that claim. The question there determined was whether the Washoe County Bank,
purchaser under the trust deed containing power of sale, whether sale was made by Steinman
and Cummings, the trustees named, operated as a foreclosure of the trust deed and barred any
equity of redemption which Gulling had under his mortgage, which mortgage Gulling
admitted to be subordinate to the claim of the Farmers' and Mechanics' Savings Bank. The
decree was proper, under the rule announced in the New York cases, in order to do complete
justice. If the sale, in effect, was a foreclosure, and operated as a bar to the equity of
redemption of Gulling and vested the title of the property in the Washoe County Bank, free
from and discharged of the lien of the second mortgage of Martin Gulling, it was proper and
right for the court so to determine. It did so determine, and, as stated before, the only
question, is whether or not the trial court had the power to determine that question under
section 3243 of our statutes and the other sections relating to pleadings, cited and found in the
civil practice act.
IV. There has never been any controversy between counsel in this case as to what is res
adjudicata. The only controversy that has arisen has been respecting the application of the
rule of res adjudicata to the facts of this case. We make no claim that all parties to the suit
are necessarily concluded by the judgment or decree according to the rule set out by the
authorities cited in respondents' brief.
make no claim that all parties to the suit are necessarily concluded by the judgment or decree
according to the rule set out by the authorities cited in respondents' brief. Only those matters
are concluded which were actually adjudicated in the action, and only those parties are
concluded who actually litigated the matters in the suit. The adversary parties in the former
language of the Farmers' and Mechanics' Savings Bank, by the plaintiff's complaint and the
answer of the Washoe County Bank, under the provisions of our practice act, were Martin
Gulling, the plaintiff, and the Washoe County Bank. The answer of the Washoe County Bank
in that action tendered an issue to Martin Gulling and to the plaintiff in the action. An issue
was actually, as shown by the undisputable evidence, litigated and determined, and the court,
under the section of the law above cited, determined, upon the litigation had, the ultimate
rights of the Washoe County Bank as against Martin Gulling. Hence, the citation of
authorities as to who are adversary parties, from New York and from the Am. & Eng. Ency.
of Law in respondents' brief, cannot change the rule as it exists here under our statute, and
can have no application to the facts of this case. Stress has been laid upon the case of Jones v.
Vert, 121 Ind. 141, as supporting their contention that the questions presented by the answer
of the Washoe County Bank in the former action were not and could not have been
adjudicated by the court. The citation of this case was unfortunate, because it appears from
the record in the action of Farmers' and Mechanics' Savings Bank v. Gulling that the four
elements were present. There was a suit. There was a final judgment. The subject-matter of
the suit, as shown by the answer of Gulling, the plaintiff's complaint, and the answer of the
Washoe County Bank concerned the same subject-matter, and, fourth, there is the identity of
parties in the adjudication there that there is in the action at bar, and the court, in the case of
Jones v. Vert, say of that case: The facts pleaded show all these elements were absent except
the judgment. This statement is of itself sufficient to distinguish that case from the case at
bar, for in the case at bar there was a suit, a final judgment, identity of subjectmatter, and
identity of parties, and also an absolute and uncontradicted showing that these matters
were actually litigated between all the parties.
matter, and identity of parties, and also an absolute and uncontradicted showing that these
matters were actually litigated between all the parties.
V. Much has been said in respondents' brief and oral argument respecting cross-bills and
cross-complaints and bringing in the defendant, Gulling, by service. There is no provision of
our statute for process upon any pleadings other than a complaint. When a complaint has been
filed and summons issued, the suit has been filed and summons issued; the suit has been
instituted. (Comp. Laws, 3117.) From the time of the service of a summons in a civil action
the court shall be deemed to have acquired jurisdiction and to have control of all subsequent
proceedings. A voluntary appearance of the defendant shall be equivalent to personal service
of summons upon him. (Comp. Laws, 3130.) Under these provisions the moment the
summons was served upon Gulling, based upon a complaint filed with the clerk, the court
acquired jurisdiction of Martin Gulling. It had jurisdiction of the subject-matter. Nowhere in
the statutes of this state is there a provision making any other process necessary to give
jurisdiction over subject-matter and person. Martin Gulling appeared in that action, and if
process had been issued upon the answer of the Washoe County Bank and served upon him,
such process would have been unauthorized and should have been stricken from the files on
motion. It is not, therefore, necessary to go to the decisions of other courts where the practice
act is different for the purpose of finding authority sustaining the jurisdiction of the court. No
one, to our knowledge, in the history of the jurisprudence of this state has ever heard of a
process issued upon a counter-claim for the purpose of acquiring jurisdiction to grant
affirmative relief against a codefendant. It is something absolutely new. Even if there were
any authority in this state for process upon an answer against a codefendant, under the section
last cited a voluntary appearance of the codefendant was equivalent to personal service of the
summons upon him, and the record herein shows that Martin Gulling not only voluntarily
appeared to the original complaint, but, upon the trial of the proceeding, appeared and
contested the Washoe County Bank's right to the relief it sought.
and contested the Washoe County Bank's right to the relief it sought.
VI. The appearance of Martin Gulling to the action, and his voluntarily submitting all
issues that could have been raised between himself and the Washoe County Bank upon the
bank's answer, was a waiver of any right to plead thereto, and was not even an irregularity
which should have reversed that judgment on appeal to this court. Conceding, for the purpose
of the argument, and for that purpose alone, that Martin Gulling should have, under the
practice act of this state, filed some kind of a pleadingjust what no one seems to knowto
the answer of the Washoe County Bank in the former action in order to make an issue
between the bank and him, his appearing thereto, as shown by the record, and his submission
to the court for trial of every issue that could have been raised by any pleading he could have
filed thereto, operated as an absolute waiver as against him of any irregularity for the want of
such pleading. This contention is supported by an abundance of authority. In California,
where cross-complaints are allowed by the practice act, the supreme court of that state has
held that where a case is tried upon the theory that the issues are properly joined in the trial
court and no objection or exception taken there, it is too late to raise such objections in the
supreme court. (Kirsch v. Kirsch, 23 Pac. 1082; Hiatt v. Board, 65 Cal. 481; Spiers v. Duane,
54 Cal. 176; Cave v. Crafts, 58 Cal. 141; Van Maren v. Johnson, 15 Cal. 313; cited and
approved in Ennor v. Raine, 27 Nev. 216.) In the State of Iowa it has been decided by the
supreme court that, where all parties proceeded on the theory that the facts stated in the
cross-bill were properly in issue, it cannot on appeal be contended that they were not. (Ware
v. Delehaye, 64 N. W. 640; Medland v. Walker, 64 N. W. 797.)
The Supreme Court of Idaho under their practice act has held that when a cross-complaint
is not answered and the defendant proceeds to trial as though answer had been filed, he
thereby waives answer. (Conant v. Jones, 32 Pac. 250.) The Supreme Court of Indiana has
held that where parties go to trial before the case is actually at issue they waive all questions
which would otherwise be available to them because of necessary pleadings.
questions which would otherwise be available to them because of necessary pleadings.
(Citizens' Bank v. Bolen, 23 N. E. 147; Lange v. Dammier, 21 N. E. 749; Trentman v.
Eldridge, 98 Ind. 525; June v. Payne, 107 Ind. 307; Johnson v. Driscoe, 92 Ind. 367; City of
Warsaw v. Dunlap, 112 Ind. 576; Casad v. Holdridge, 50 Ind. 529; Lewis v. Bortsfield, 75
Ind. 390.) The authorities upon this point (not specifically sighted because of their number)
are collected in the 39th volume of the Century Digest, secs. 1351, 1376, 1389, and 1393.
How, then, can it be for one moment contended, under the facts of this case, that the
judgment rendered in the former action was not conclusive? Under the authorities cited, if
Gulling had appealed to the court from the judgment in the former action and had raised
objection to the judgment upon irregularity, for the reason that he had filed no pleading
thereto, this court would not have been justified in holding that such failure was even an
irregularity for which the judgment should be reversed. If not an irregularity justifying
reversal, how can it be claimed in this action that the failure of Gulling to plead to the answer
in the nature of a counter-claim of the Washoe County Bank in the former action renders the
judgment a nullity and subject to collateral attack in this action? The court must remember
that it is undisputed, and not only undisputed, but shown by the record in this action, that
Gulling appeared to the former action and filed his answer asking the foreclosure of his
mortgage, admitting therein that the claim of the Farmers' and Mechanics' Savings Bank
secured by the trust deed was a prior lien and claim against the same property; that pending
said action the trustees, Cummings and Steinman, sold the property under the powers
continued in the trust deed, after due notice as required by the trust, and actual notice to
Martin Gulling of such sale to the Washoe County Bank; that the Washoe County Bank
having been served in the former action with summons, appeared to that action, and filed its
answer, as heretofore indicated, asking for affirmative relief against the Farmers' and
Mechanics' Savings Bank and against Martin Gulling; that Gulling, the Washoe County Bank,
and the Farmers' and Mechanics' Savings Bank appeared before the court at the time set for
trial and went to trial; upon Gulling's answer asking for a foreclosure, upon the answer of
the Washoe County Bank asking that its purchase be declared a foreclosure and a bar of
any equity of redemption in the property, contested every point that could be made by the
answers of the Washoe County Bank and Gulling, and submitted those matters to the
court and the same were decided in favor of the Washoe County Bank.
court at the time set for trial and went to trial; upon Gulling's answer asking for a foreclosure,
upon the answer of the Washoe County Bank asking that its purchase be declared a
foreclosure and a bar of any equity of redemption in the property, contested every point that
could be made by the answers of the Washoe County Bank and Gulling, and submitted those
matters to the court and the same were decided in favor of the Washoe County Bank. The
record shows conclusively that the case was tried by Gulling and by the Washoe County Bank
upon the theory that every issue tendered by the bank by its answer to Gulling and the other
defendants and the plaintiff in the action was at issue. That judgment was not appealed from.
It remains in full force and effect, and any irregularity therein, if such exists by reason of the
want of a pleading by Gulling to the answer of the Washoe County Bank, under the
authorities, by his own conduct he waived, and he could not even have been heard on an
appeal from that judgment to this court to say that the case should be reversed by reason of
the fact that the case was not at issue for the want of such pleading. He invoked the decision
of the court upon the points it decided. He asked for relief of the court and for its decision
upon the points that the court decided, and having submitted his case upon the theory above
indicated, and having asked the relief of the court, upon the theory of the facts and the law
presented, he cannot be heard to say, after the decision has gone against him, that the
judgment is an absolute nullity because he failed to interpose a pleading, after having every
question upon trial decided against him that could have been raised by any pleading he could
have filed in response to the answer of the Washoe County Bank.
VII. There is another view which may be taken of the pleadings in the former action as
shown by the record which, under conditions most favorable to the respondents, shows
conclusively that the case was at issue, and this view may be supported upon the theory that
pleadings such as claimed by respondents were necessary. The Farmers' and Mechanics'
Savings Bank, plaintiff in the former action, commenced its suit to foreclose a trust deed.
Gulling was made a party to that action and, in response to a summons, came and by
answer in the nature of a counter-claim admitted the priority of plaintiff's rights as set up
in its complaint, and affirmatively alleged an interest in the property under his mortgage,
and asked that it be foreclosed, the land sold, and out of the proceeds, after satisfying
plaintiff's claim, if there were sufficient funds, that he be paid.
that action and, in response to a summons, came and by answer in the nature of a
counter-claim admitted the priority of plaintiff's rights as set up in its complaint, and
affirmatively alleged an interest in the property under his mortgage, and asked that it be
foreclosed, the land sold, and out of the proceeds, after satisfying plaintiff's claim, if there
were sufficient funds, that he be paid. The Washoe County Bank, in response to the
summons, subsequently filed an answer in the way of counter-claim to plaintiff's complaint,
asking for affirmative relief against the plaintiff, and which was also an answer to the
counter-claim of Martin Gulling, in which answer the Washoe County Bank set up the sale
and purchase of the property at the trustees' sale, and claimed as a matter of law that by virtue
of such sale Gulling was not entitled to a foreclosure of his mortgage as sought by him in his
counter-claim, for the reason that the sale so made under the powers in the trust deed
foreclosed any equity of redemption which Gulling had in the property. Here, then, was an
issue tendered in the first instance by Martin Gulling in his counter-claim, an issue involving
his right to have a foreclosure of his mortgage and the sale of the property for its satisfaction.
That issue was accepted by the Washoe County Bank by its answer upon facts claimed by it,
if established, barring the right of Gulling to have the mortgage foreclosed. Then, as between
Gulling and the Washoe County Bank there was an actual issue of law and fact tendered by
Gulling and made by Gulling's counter-claim and the answer of the Washoe County Bank.
Gulling, having asked a foreclosure, and the bank, upon the facts set up in its answer, having
said he was not entitled to such foreclosure, as between these codefendants the case was
actually in issue, and the record in the former action discloses the fact that that issue was a
actually tried between Gulling and the Washoe County Bank. The decision of the court in the
former action, which is a part of the record in this case, shows precisely what was heard and
what was determined. Quoting from the decision, the court said:
There is no serious controversy concerning the facts of this case. The real issue is one of
law between the defendants, the Washoe County Bank as purchaser under the trustee sale,
and Martin Gulling as mortgagee under a mortgage made subsequent and subject to the
conveyance called a trust deed and by virtue of which the sale was made.
ants, the Washoe County Bank as purchaser under the trustee sale, and Martin Gulling as
mortgagee under a mortgage made subsequent and subject to the conveyance called a trust
deed and by virtue of which the sale was made. Whether the instrument made by defendants,
James Pollock and wife and James Powell, March 1, 1893, to Steinman and Cummings in
trust for the plaintiff, is, in legal effect, a trust deed or mortgage with power of sale, is not
deemed material. The most favorable contention that could be urged for defendant Gulling is
that it is the latter. Conceding, for the purposes of this decision without deciding it, that that
instrument is a mortgage within the meaning of the provisions of the practice act of this state,
the material question is presented whether a sale created by that instrument forecloses the
equity of redemption and invests the purchaser at such sale, when regularly and fairly made,
with a title to the property mortgaged and sold free from any and all liens or encumbrances
placed thereon by the mortgage subsequent to the record of the mortgage under which the sale
is made.
It is well here to call the court's attention to the fact that in the former action the court
decided a question not involving paramount title which now has been abandoned by
respondents, but a question which it had a right to decide even in foreclosure, and that
question was whether or not Gulling, by virtue of the sale under the trust deed, was barred of
his right of foreclosure and any equity of redemption in the premises. That question was
squarely tendered by the answer and counter-claim of Martin Gulling, asking for a foreclosure
of his mortgage. It was squarely and fairly raised by the answer of the Washoe County Bank,
setting up its rights as purchaser under the trustees' sale. Every question affecting the validity
of that sale and the right of the purchaser thereunder was put in issue by the counter-claim
and answer of the Washoe County Bank, and it seems to us absurd for respondents to come
into this court and claim that, after tendering an issue of law and fact by a counter-claim,
which issue is squarely met and made by answer to that counter-claim, on the part of the
Washoe County Bank, and having come into court and offered evidence in support of those
issues, having submitted the question to the court for its decision, and having had the
question decided adversely upon that proposition, to now, for one moment, in view of the
pleadings presented and the record in the former case, declare that no issue was ever
presented, and that therefore the judgment was absolutely void.
dence in support of those issues, having submitted the question to the court for its decision,
and having had the question decided adversely upon that proposition, to now, for one
moment, in view of the pleadings presented and the record in the former case, declare that no
issue was ever presented, and that therefore the judgment was absolutely void.
VIII. By the answers of Martin Gulling and the Washoe County Bank in the former suit a
direct issue was made of the right of Gulling to have the mortgaged property sold to pay his
debt. Gulling had a second mortgage on the property described in the trust deed set forth in
plaintiff's complaint in the former suit. By his answer he sought to foreclose that mortgage. In
his answer he prayed: That his rights be adjudicated and determined in this action; that he
have judgment against said defendants; * * * that the usual decree be made; that the premises
described in said mortgage be sold; * * * that the proceeds of said sale be applied in payment
and satisfaction of any judgment this defendant may obtain herein.
In the answer of the Washoe County Bank, subsequently filed, it is alleged: That all other
equities in and to said property are foreclosed and barred, and particularly all the equities of
the defendants, M. Gulling, James Pollock, * * * if any there are in their favor, foreclosed and
barred. * * * That any claim, lien, or demand in and to or against the property above
described, by any of the defendants, be foreclosed and barred except claim of defendant
herein, and particularly that claim, lien, or demand of Martin Gulling, James Pollock, * * *
and any claim, lien, or demand of each of them against said property be declared to have been
foreclosed at the time and date of the sale of said property, on the 20th of March, 1897, and
that from said sale, time, and date, they and each of them and any claim, lien, or demand that
they or any of them had preceding said sale, time, and date, was then barred, and is
foreclosed.
Here are two distinct pleadings: (1) Gulling alleging that he had the right under his second
mortgage to have the mortgaged premises sold and the proceeds applied in payment to his
debt; {2) the Washoe County Bank in its pleadings alleging that by reason of the sale by
the trustees under the trust deed the right of every person, and particularly Gulling, to
have the property or any part of it sold to satisfy his debt, had been foreclosed and
barred; and that is the issue which the court in its decision not only says it tried, but says
it was the material issue which there was to try or which it did try.
ment to his debt; (2) the Washoe County Bank in its pleadings alleging that by reason of the
sale by the trustees under the trust deed the right of every person, and particularly Gulling, to
have the property or any part of it sold to satisfy his debt, had been foreclosed and barred; and
that is the issue which the court in its decision not only says it tried, but says it was the
material issue which there was to try or which it did try. Two defendants to an action asserted
adverse rights, one by its pleading claiming it had a right to do a certain thing, the other
claiming it had not the right. If that does not present an issue, especially when the parties
accept it in the form in which it was pleaded and go to trial upon it without questioning the
sufficiency of the pleading, it is difficult to understand how an issue can be raised; and this
question, to wit, the right of Gulling to have the property described in his mortgage sold to
satisfy the debt, is the only question raised by the present action, and if he may now again
litigate that question, we see no reason why he may not do so subsequently, notwithstanding
any decision which may be rendered in this suit.
IX. Much was said upon the argument respecting the equities of Gulling under his
mortgage, and something has been said by counsel in their brief respecting the same matter. It
is well that this court should have its attention called to the actual equities of the parties
existing under the facts of this record. Martin Gulling's equities, by his own admission, were
subject and subordinate in time, by many years, to the rights of the Farmers' and Mechanics'
Savings Bank. This he admitted in his answer, and the same fact is conclusively shown by the
record. The Washoe County Bank, upon an expenditure of nearly $10,000, succeeded to the
rights of the Farmers' and Mechanics' Savings Bank in order to protect its unsecured claim
against the Pollocks and Powell. Gulling had actual notice of the sale by the trustees under
the trust deed, and paid no attention whatever to such sale. To protect his interests he should
have attended the sale and succeeded, as did the Washoe County Savings Bank, to the
interests of the Farmers' and Mechanics' Savings Bank.
The rights of the Washoe County Bank were not only set up by its answer as superior to
any rights of Gulling in the former action, but by a separate answer in this action those
rights were again pleaded, and in the former and last action the record discloses the
superiority of the rights of the Washoe County Bank as to the amount of nearly $10,000
paid out by it in 1S97.
up by its answer as superior to any rights of Gulling in the former action, but by a separate
answer in this action those rights were again pleaded, and in the former and last action the
record discloses the superiority of the rights of the Washoe County Bank as to the amount of
nearly $10,000 paid out by it in 1897. As against its claim no proof was offered, and in
support of its claim the record establishes conclusively every superior and prior right in this
action. Notwithstanding the fact that the Washoe County Bank had succeeded to those rights,
Gulling makes no tender, either by pleading or otherwise, of any amount sufficient to satisfy
the claim of the Washoe County Bank. Not only does he not make any tender, but makes no
offer for the ascertainment of the rights of the Washoe County Bank for the money paid out in
discharge of the lien that he admits was superior to any lien or claim of his. The court and
counsel absolutely ignore the rights of the Washoe County Bank in this action, and, without
requirement of satisfaction of any claim to which the Washoe County Bank was entitled, it
having been subrogated to the rights of the Farmers' and Mechanics' Savings Bank by its
purchase, the court decrees absolutely the sale and foreclosure of this property, without regard
to any equity which the Washoe County Bank has; and we therefore confidently submit that,
upon the equities of the case, upon the pleadings, upon the former adjudication of the matter,
the respondents are not entitled to a foreclosure and sale of the property. If so, litigation,
which the constitutional laws of the state intended to be speedy and adequate for the
determination of conflicting rights between parties, becomes interminable, and judgments by
a court of competent jurisdiction, having jurisdiction of the person and subject-matter,
deciding issues upon pleadings and the only pleadings known to law, where the issues are
tendered and certain, and where absolute and exact justice has been done, and where the case
has been determined according to the equities of the parties, would become absolutely
worthless and determine nothing whatever.
X. In the opening of our brief, in the discussion of the question as to whether or not the
former action was at issue between Gulling and the Washoe County Bank, we omitted to
call the attention of the court to a provision of our statute in support of the contention
that the only pleadings authorized by the law were the complaint, answer, and demurrers
provided for in the sections heretofore cited.
between Gulling and the Washoe County Bank, we omitted to call the attention of the court to
a provision of our statute in support of the contention that the only pleadings authorized by
the law were the complaint, answer, and demurrers provided for in the sections heretofore
cited. That the legislature of the state intended to exclude the idea of cross-bills or any other
form of pleading other than those mentioned, is expressly declared in section 3132 of the
Compiled Laws in the following language:
All the forms of pleadings in civil actions, and the rules by which the sufficiency of the
pleadings shall be determined, shall be those prescribed in this act.
Had the legislature intended that other forms of pleadings were essential for the purpose of
presenting an issue between codefendants, the above section of the statute would never have
been enacted. The language of the provision is mandatory. Shall be means must, and when
construed with the subsequent sections of the statute which say that the only pleadings shall
be so-and-so, the matter, independent of the decisions of the courts of other states, has been
determined by the legislature of this state, and authorities from other states where the statutes
are silent, or contain no such mandatory terms as are found in ours, have no application
whatever.
XI. We conclude, therefore, all matters in this action having been litigated in the former
action between the parties upon issues properly made under the practice act of this state, and
having been actually tried and determined by the court, that the right of Gulling to a
foreclosure is barred, and that the trial court erred in entering the decree of foreclosure in this
action and in denying appellant's motion for a new trial.
On March 1, 1893, James Pollock, his wife, Delia, and Daniel Powell, who are admitted to
have been the owners at that time, executed to B. U. Steinman and C. H. Cummings, as
trustees, a trust deed for certain property near Reno to secure the payment of a promissory
note of the same date, given by the Pollocks and Powell to Farmers' and Mechanics' Saving
Bank of Sacramento, for $S,000 and interest.
same date, given by the Pollocks and Powell to Farmers' and Mechanics' Saving Bank of
Sacramento, for $8,000 and interest. This deed directed the trustees, in case of default in
payment, to sell the property at Sacramento after giving notice, to apply the proceeds in
satisfaction of the note and costs of sale, and to pay any excess to the grantors. On August 31,
1895, the Pollocks and Powell executed to Martin Gulling a mortgage on the same premises
for $2,082.60 and interest thereon from that date at 8 per cent per annum, which is sought to
be foreclosed in this action, and which specified that it was given subject to the trust deed. On
February 23, 1897, the Pollocks and Powell conveyed their interest in the property to Washoe
County Bank for a stated consideration of $14,000, which comprised the amount of $8,800,
estimated to be due the Farmers' and Mechanics' Bank of Sacramento on the note secured by
the trust deed, and $5,200 due from the Pollocks and Powell to the Washoe County Bank on
unsecured notes which were surrendered to them. On February 26, 1897, the Farmers' and
Mechanics' Savings Bank commenced suit to recover the amount due on its note stated at
$8,639.73, and for a foreclosure of the trust deed and sale to satisfy that amount against the
Pollocks, Powell, Thomas E. Haydon, Henry Anderson, John Doe, Richard Roe, Michael
Doe, B. U. Steinman, and C. H. Cummings. Neither Martin Gulling nor the Washoe County
Bank were named as parties in the complaint, but both were served with summons under the
fictitious designations of defendants who were alleged to have some title, claim, or interest
which was second and subordinate to the right of the Farmers' and Mechanics' Bank arising
from the trust deed. On March 8, 1897, Martin Gulling filed an answer in that action, in
which the name of Washoe County Bank is not mentioned in the title, body, or prayer. It
stated that its allegations were made in obedience to summons therein issued and served
upon him and answering the complaint therein. In this answer he admitted the priority of the
claim of the Farmers' and Mechanics' Savings Bank under the trust deed, thereby avoiding
any real issue with the plaintiff, but he alleged the execution of the mortgage to him by the
Pollocks and Powell, and that other persons claimed an interest in the premises which
was subsequent to his mortgage, and he asked for judgment against the mortgagors for
principal, interest, and attorney's fees, for the usual decree of sale, and that the proceeds
be applied, first, to the satisfaction of any judgment which Farmers' and Mechanics' Bank
might obtain, and, second, to the payment of any judgment he might recover, that he
have execution for any deficiency against the Pollocks and Powell, and that they, Thomas
E.
mortgage to him by the Pollocks and Powell, and that other persons claimed an interest in the
premises which was subsequent to his mortgage, and he asked for judgment against the
mortgagors for principal, interest, and attorney's fees, for the usual decree of sale, and that the
proceeds be applied, first, to the satisfaction of any judgment which Farmers' and Mechanics'
Bank might obtain, and, second, to the payment of any judgment he might recover, that he
have execution for any deficiency against the Pollocks and Powell, and that they, Thomas E.
Haydon, Henry Anderson, B. U. Steinman, and C. H. Cummings, and all persons claiming
under them subsequent to the execution of his mortgage, be barred and foreclosed of all right,
claim, or equity of redemption. On March 20, 1897, twelve days after Gulling filed his
answer, Steinman and Cummings, acting as trustees, and after notice given, sold the property
at the courthouse door at Sacramento to the Washoe County Bank for $9,100, the amount due
the Farmers' and Mechanics' Bank on the note secured by the trust deed and the sum
estimated for costs. Over four months later, and on July 31, 1897, Washoe County Bank filed
its answer without naming Gulling in the title, and prefaced its averments with the recital that,
as required by summons served on said bank, and answering said summons and the
complaint filed in said action, it made its allegations setting out the execution of the trust
deed, the sale thereunder, and the deeds from Steinman and Cummings, as trustees, and from
the Pollocks and Powell to Washoe County Bank. These facts, and they controlled the court
later in its decision in that case, do not purport to be stated against Gulling. But directly after
their statement, as so alleged in answer to the complaint, follows an allegation in the nature of
a conclusion of law, that the equities of all the other defendants, including Gulling, were
foreclosed and barred, and a demand for a decree accordingly against them and the plaintiff.
This answer does not in any part of it purport to allege as a cross-complaint, or in terms as
against Gulling, the sale under the trust deed by the trustees to Washoe County Bank, nor
does it appear to have been served upon him. He filed no demurrer, answer, or reply to it,
and the record indicates that he offered no evidence regarding it.
answer, or reply to it, and the record indicates that he offered no evidence regarding it. The
case came to trial on January 14, 1898. The plaintiff, Farmers' and Mechanics' Savings Bank,
and the defendants, Washoe County Bank, Gulling, and Anderson, each appeared by counsel
and defendant Haydon in person.
It is stated in the findings that the plaintiff, having before the hearing made and filed a
disclaimer of all interest in the action and an admission that Washoe County Bank had
succeeded to the interest of plaintiff, thereupon rested, that Martin Gulling offered and
submitted evidence and proofs and thereupon rested, and that Henry Anderson, Washoe
County Bank, and the defendants and each of them having submitted evidence and proofs in
support of the issues made by them in their answers, the case was submitted to the court.
The fair inference from the language and from the fact that he was the first to submit proofs is
that he introduced evidence to support the allegations of his answer which averred the
execution and non-payment of his mortgage, but that he did not offer any in relation to other
facts alleged in the answer of Washoe County Bank. The findings and decree in that action
disposed of the claims of these other defendants, and found and declared that the sale and
deed made by the trustees was in accordance with the terms of the trust deed and that by such
sale and deed all the interest in the property was conveyed to Washoe County Bank clear of
Gulling's mortgage, and that the latter was entitled to a judgment against the Pollocks and
Powell for the amount due on his note, but not to a decree of foreclosure. The findings recite
that defendant Gulling was made a party to the action and was duly served with process
therein, and in due time filed his answer to plaintiff's complaint, but it does not appear that
there was any other service upon him, or issue made that rendered him liable beyond the
allegations and demands of the complaint, or that would cut off his rights by reason of the
sale by the trustees, which did not take place until after he had filed his answer. The court
found in both actions that $8,800, estimated to be the amount due Farmers' and Mechanics'
Bank, and notes held by Washoe County Bank against the Pollocks and Powell for $5,200,
unsecured after the execution of the mortgage by them to Gulling, constituted the
consideration expressed at $14,000 for the deed from them to Washoe County Bank, and
that the property was worth about that sum at the date of the trustees' sale and the time
of trial.
and notes held by Washoe County Bank against the Pollocks and Powell for $5,200,
unsecured after the execution of the mortgage by them to Gulling, constituted the
consideration expressed at $14,000 for the deed from them to Washoe County Bank, and that
the property was worth about that sum at the date of the trustees' sale and the time of trial. A
blank space in the decree in the first action for judgment in the amount owing by the Pollocks
and Powell to Gulling on his note and mortgage remains unfilled. The case now before the
court was brought by Martin Gulling on June 9, 1902, against Washoe County Bank, as
grantee, to foreclose his mortgage so executed on the premises by the Pollocks and Powell
before they deeded to the defendant, and is now prosecuted by the representatives of his
estate. The defendant pleads, by way of estoppel, the judgment in the former action, and
claims that by it Gulling was, and his executors are, barred and foreclosed of all right to
proceed against Washoe County Bank. The district court was of the opinion that in the earlier
suit it did not have jurisdiction to make the judgment effective in quieting the title of
appellant against Gulling, and it has now entered a decree of foreclosure and sale to satisfy
his mortgage, from which this appeal is taken.
The important questions under the record and elaborate and interesting briefs are whether
the matters relating to the trustees' sale, determined in the former action, were within the
issues as between Gulling and appellant, and, if they were not, whether he waived the framing
of issues so that he became bound by the decree. The facts stated in the complaint of Farmers'
and Mechanics' Savings Bank averring the execution of the trust deed were not denied by any
of the parties. The statute, at least in favor of the plaintiff, raised denials of the facts alleged
in Gulling's answer. These were in regard to the execution and non-payment of his mortgage,
and did not relate to the trustees' sale which took place after his answer had been filed, and
therefore, if any issue existed regarding this sale it must have been founded on the answer of
Washoe County Bank. On its behalf it is urged that the answers of Gulling and the bank made
a direct issue of his right to have the property sold to pay his claim, but this is dealing with
conclusions, and not with facts on which issues are based.
dealing with conclusions, and not with facts on which issues are based. Gulling did not raise
any issue regarding the trustees' sale, for his only answer was filed before the sale and before
the answer of Washoe County Bank in which it was alleged, and did not mention the name of
the latter.
On behalf of appellant it is urged that the only pleadings provided or allowed by the
practice act for the allegation of facts are a complaint by the plaintiff and an answer by a
defendant, and that in determining the rights of codefendants between themselves an answer
is the only pleading permissible, and that its allegations are deemed denied by statute when it
states a cause of action against a codefendant, the same as if it relates new matter against a
plaintiff. For the respondent a different view is taken, and it is claimed, under Rose v.
Treadway, 4 Nev. 460, 97 Am. Dec. 546, and other cases cited that ordinarily the defendants
in an action are not, as between themselves, adversary parties; that they become such only
when one files a pleading in the nature of a cross-complaint seeking affirmative relief against
another; that, when this is done, they lose their identity as defendants, and for the purposes of
the cross-complaint assume the relation of plaintiffs and defendant; that the one against
whom the cross-complaint is filed is of necessity entitled to all the rights of an adversary,
including that of being served with, and of having an opportunity of pleading to, the
cross-complaint; and that, as the statute has failed to designate the methods of pleading
between codefendants, equity practice must be followed. If it be conceded for the argument
that the statute, as claimed for appellant, denies any new matter which one defendant may
allege against a codefendant, and that no answer or reply thereto is required, it would still be a
dangerous precedent, which we would be reluctant to establish, to hold that the statute denies
for a codefendant facts not alleged against him, but stated in the answer of another defendant
to the complaint, or that an issue would be raised against a codefendant by the mere filing
without service of an answer containing new matter alleged against the complaint of the
plaintiff. The answer of Washoe County Bank in the former suit not having been served upon
Gulling, and he having filed no demurrer, answer, or reply to it, which would have been a
waiver of service, we feel constrained to hold that it raised no issue against him, and if we
concede for the purposes here that denial by statute without any pleading in reply is
sufficient between codefendants, such denial ought not to become operative before
service.
upon Gulling, and he having filed no demurrer, answer, or reply to it, which would have been
a waiver of service, we feel constrained to hold that it raised no issue against him, and if we
concede for the purposes here that denial by statute without any pleading in reply is sufficient
between codefendants, such denial ought not to become operative before service. (White v.
Patton, 87 Cal. 151, 25 Pac. 270; Clements v. Davis, 155 Ind. 631, 57 N. E. 905.) To hold
otherwise or establish a different practice might cause litigants to suffer great injustice. An
answer to a complaint ought to be served upon the plaintiff; but, if it is not, he may be
expecting it, or, to secure a default, he could not obtain judgment without being aware of it,
and would not be likely to go to trial without being prepared to meet the statutory denial in
his behalf of any new matter it alleged. It is different between codefendants. Usually their
interests are not adverse, except to the plaintiff, and one defendant may not expect that
another defendant will set up a cause of action and seek a judgment against him, and, if he
does, he should not be required to watch the court records, as Gulling could have done for
more than four months after his answer was filed, to ascertain whether any of his
codefendants filed a cross-complaint against him, in order that he might be prepared to meet
it. Until he is warned by service of the pleading and demand or waives service or issue, he
ought not to be bound by any judgment based upon it. If the Farmers' and Mechanics' Savings
Bank, instead of Washoe County Bank, had bought the property at the trustees' sale and relied
upon its purchase, necessarily it would have pleaded the facts by supplemental complaint, and
they would not have been considered denied by Gulling's answer to the original complaint,
and without service upon or waiver of service by him a valid judgment, based upon facts
occurring after he had been served with the original complaint and filed his answer thereto,
could not have been taken by default against him. In Mitchell v. Mitchell, 28 Nev. 110, 79
Pac. 50, we set aside the action of the district court whereby it granted a plaintiff relief not
demanded in the complaint served upon the defendant.
That was pursuant to statute, but there is no more reason for holding a defendant liable on a
judgment based on a cross-complaint or pleading of a codefendant without service than on
one resting on a complaint of a plaintiff which has not been served. In neither case should the
rights of the parties be concluded without service or a waiver thereof.
It is said that service of the answer of the Washoe County Bank will be presumed, if
necessary, to support the judgment. The judgment roll and the papers in the first case were
introduced on the trial and are brought here in the statement on appeal, and the case rests
upon them, and not upon presumptions, and the burden of establishing estoppel is upon the
defendant. If any admission or affidavit of service was made, it should be among those
papers, but none appears, and therefore we must conclude that the answer was not served.
The return of the sheriff and recital in the findings indicate that Gulling was served with
summons, and the findings state that in due time he appeared and filed his answer to the
complaint. Under these circumstances further service will not be presumed. (Galpin v. Page,
18 Wall. 366, 21 L. Ed. 959.) Beyond that appellant's answer in the present case does not
allege that the answer of Washoe County Bank was served upon Gulling in the other suit and
is defective in this vital respect. Its allegations follow the facts disclosed by the record of the
former action which show no service, and it states the conclusion that by the filing of the
former answer an issue was raised against Gulling.
Numerous cases are cited by appellant holding that, by going to trial on new matter alleged
in the answer without a reply thereto, a reply is waived, even in states where the statute
provides for one. If this be the rule ordinarily in actions between a plaintiff and defendant or
where by cross-complaint new matter is alleged against a codefendant, and the latter appears
and introduces evidence in regard to it, the rule ought not to apply to cases like the present
one, where the codefendant is in court for other purposes and the answer is in reply to the
complaint, and does not state the new facts as a cross-complaint, or cause of action against
the codefendant is not served or replied to by him, and he introduces no evidence concerning
it, and other parties participate in the trial.
duces no evidence concerning it, and other parties participate in the trial. There being no
service upon Gulling, no demurrer, answer, reply, or testimony by him in relation thereto, the
allegations in the answer of Washoe County Bank, stating the facts in relation to the sale and
deed by the trustees, which controlled the court and which are directed against the complaint,
and not against Gulling, are too slender a thread to sustain the judgment against him. As
respondent contends he could be in court for some purposes, and not for others. He could be
bound as far as process or proper allegations and demands had been served upon him and to
the extent that he had waived them or made other issues himself without becoming liable
further. This is well illustrated by the finding, conclusion, and direction of the court that
Gulling have judgment against the Pollocks and Powell for the amount due on his note and
mortgage. If the space left for this in the judgment had been filled, or if the court had made a
decree of foreclosure in favor of Gulling, both would have been void against the Pollocks and
Powell for lack of service, as is the judgment against them based on the trustees' sale, and it
has been held that, if one of the parties to a judgment is not bound, the other is not. They had
been served by the savings bank with complaint or summons seeking the foreclosure of the
trust deed and filed a demurrer. For the purposes of that complaint, and to the extent of its
demands, they were in court or were bound, but a judgment against them for the amount or
foreclosure of the Gulling note and mortgage, when they had not been served with pleading or
process regarding these, would have been void. The court had jurisdiction of the
subject-matter of all questions involved in this litigation, but of the parties no further than
they presented themselves or were served with pleadings or process or waived service or
issues. If a complaint and summons on a demand for $1,000 is served upon a defendant, a
judgment for $10,000 would be void, because the district court would have jurisdiction over
him to the extent of only $1,000, while, so far as subject-matter is concerned, it has
jurisdiction in any amount.
The facts were quite different and the principle involved distinguishable in Maples v.
Geller, 1 Nev. 236
distinguishable in Maples v. Geller, 1 Nev. 236. There an answer which did not demand
judgment upon new matter was filed to the complaint, but not served. The question was not
between codefendants. The court said that the filing of the answer gave it jurisdiction over the
defendant. Stripped of dicta, that decision properly determined that the filing of an answer to
the complaint without service prevents a judgment for the plaintiff by default, while here we
hold that property rights cannot be lost or adjudicated upon an answer or pleading by a
defendant seeking affirmative relief on new facts against a codefendant without service, or an
issue or waiver.
Questions are presented upon the record in this case whether or not, under the provisions
of the practice act of this state, the answers filed by Martin Gulling and the Washoe County
Bank, in the suit instituted by the Farmers' and Mechanics' Savings Bank, in so far as they
sought affirmative relief against codefendants, are answers as contemplated by our statute, or
whether they are, in fact, equitable cross-bills. If the latter, whether or not, under the practice
act, they are permissible pleadings, and, further, if permissible pleadings, whether or not the
dismissal of the plaintiff's complaint would not require the dismissal of the entire proceeding.
These questions, however, under the view we have taken of this case, are not deemed
necessary to be determined.
The judgment and order of the district court are affirmed.
Norcross, J.: I concur.
Fitzgerald, C. J.: I dissent.
[Rehearing pending. See syllabus, page 450, ante.]
____________
28 Nev. 491, 491 (1905) In Re Kelly
[No. 1688.]
In Re KELLY, On Behalf of OSUNA.
1. Criminal LawEvidenceStatements of ProsecutrixRes Gestae. Statements made by prosecutrix the day
after an alleged rape are too remote to constitute part of the res gestae.
2. SameConfessionsEvidenceSufficiency. On a preliminary examination on a charge of rape, evidence
by a medical expert that from an examination of prosecutrix soon after the alleged offense he thought
she had had intercourse with some one, and by other witnesses that they had seen marks of violence on
her person, was sufficient, when coupled with an admission by defendant shortly after the offense that
he had committed it, to justify the commitment of defendant to answer for the crime.
3. SamePreliminary ExaminationProof Required. In order to justify a committing magistrate in holding an
accused to answer to a charge, the evidence need not show guilt beyond a reasonable doubt.
Original proceeding. Application by Frank P. Kelly, on behalf of H. Osuna, for a writ of
habeas corpus. Writ dismissed.
Wm. Woodburn, for Petitioner:
I. The statement made by the prosecutrix, Harry Averill, on the night of the 4th of
October, the crime of rape being alleged to have been committed the preceding night, reduced
to writing in the presence of Lovegrove, farmer of the Indian Reservation, and one Hance, a
telegraph operator, and signed by them as witnesses, was hearsay and should not have been
admitted in evidence at the preliminary examination. The law provides that the witnesses
shall be examined in the presence of the defendant, and may be cross-examined in his behalf.
(Comp. Laws, 4121.)
II. The testimony of Lovegrove and Hance was clearly inadmissible, on the ground that it
is hearsay. (State v. Campbell, 20 Nev. 126; People v. Mayes, 66 Cal. 597, cited in 114 Cal.
556; People v. Stewart 90 Cal. 213.)
III. The complaint of the prosecutrix, made at noon of the day after the crime was alleged
to have been committed, even if she had testified as a witness, was no part of the res gestae,
and was as inadmissible as the statement made on the night following. It was incumbent on
her to excuse or justify the delay in making the complaint.
28 Nev. 491, 492 (1905) In Re Kelly
tify the delay in making the complaint. (People v. Lambert, 120 Cal. 172; People v. Stuart,
97 Cal. 238; State v. Ah Loi, 5 Nev. 99.)
IV. The record shows that the prosecutrix did not testify at the preliminary examination, and,
therefore, no complaint of the crime made by her, no matter how recent, is admissible in
evidence. (State v. Campbell, 20 Nev. 126; Hughes, Crim. Law and Procedure, 85; State v.
Meyers, 46 Neb. 152; State v. Mitchell, 68 Iowa, 116.)
V. The testimony of Wilson and Jones, deputy sheriff, as to the admissions of the
defendant to his wife on a railroad car after his arrest is clearly inadmissible because there
was no proof that a crime had been committed, and the corpus delicti cannot be established
by the confession of the defendant. (Hughes, Crim. Law and Procedure, sec. 3093; People v.
Simonsen, 107 Cal. 346.)
VI. Upon the authorities before cited I respectfully suggest that Osuna was held to answer
a criminal charge not proved to have been committed, and on purely hearsay testimony.
James G. Sweeney, Attorney-General, for the State:
I. Under the circumstances and the peculiar nature of the crime of rape alleged in this case
the statement made by complainant, signed by her in the presence of witnesses, and the
testimony of said witnesses to what complainant informed them of the perpetrated rape within
twelve hours after the commission of the crime are so contemporaneous in point of time with
the commission of the crime under all the circumstances disclosed by the record, that said
statement and testimony of witnesses Hance and Lovegrove become part of the res gestae and
is therefore not hearsay evidence as contended by counsel for petitioner. (State v. Ah Loi, 5
Nev. 89; Jones on Evidence, secs. 340, 347, 349; Am. & Eng. Ency. Law, p. 523.)
II. In view of the complaint filed, written statement of complainant, and sworn testimony
of Hance and Lovegrove being part of the res gestae, sufficient proof of corpus delicti was
proved to have made the confession of defendant, Osuna, as overheard and testified by
Sheriff Jones and Wilson, clearly admissible.
28 Nev. 491, 493 (1905) In Re Kelly
as overheard and testified by Sheriff Jones and Wilson, clearly admissible. (See full review of
authorities found in notes in 6 Am. St. Rep. 242-251.)
III. The complaint filed and proven by sworn testimony of witnesses as disclosed in record
on file, and the defendant having waived his privilege of making a statement, thoroughly
warranted the committing magistrate in binding defendant to appear before the grand jury,
and under the ruling of this court in State v. Ah Bau, 10 Nev. 264, the application of
petitioner for release should be denied.
IV. The testimony of Dr. Pasch and the direct testimony of witnesses Hance and
Lovegrove, wherein they testified to seeing marks of ropes on wrists and finger-nail scratches
on neck and nose of complaining witness, in itself was sufficient legal admissible support of
the complaint filed to have warranted the justice of the peace, if there was no other testimony,
to believe sufficient probable cause existed of the guilt of the accused, and to have warranted
the committing magistrate in binding over the defendant to appear before the grand jury.
Upon the application of Frank P. Kelly, in behalf of H. Osuna, a writ of habeas corpus was
issued returnable before this court.
It appears from the return of the writ that H. Osuna is held in the custody of J. F. Bradley,
sheriff of Esmeralda County, upon a commitment of the justice of the peace of Hawthorne
Township, to answer the charge of rape committed upon one Harriett Averill on the night of
the 3d of October, 1905. It is complained by petitioner that this commitment was issued
without reasonable or probable cause, and in support of this contention the following specific
charges are made respecting the testimony introduced upon the preliminary examination of
the defendant: That the said prosecuting witness, Harriett Averill, upon whom the said crime
of rape was alleged to have been committed, failed to appear and testify at said examination,
but a written statement, signed by one Harry Averill, and attested by two wit-nesses, a day
after the commission of said alleged offense, was admitted in evidence by the said justice
of the peace against the objection of the attorney of the said Osuna; that no legal
testimony was given showing that Harry Averill, who signed said statement, was the
same person as Harriett Averill, mentioned in said complaint, and upon whom the said
rape was alleged to have been committed; that no legal evidence was introduced by the
state at said examination, which is shown by a certified copy of the testimony taken at
said examination, and which is hereunto annexed, and made a part of this petition; that
there was no proof that the crime of rape, or any other offense, had been committed on
Harriett Averill or upon Harry Averill, or that there was sufficient cause to believe the said
Osuna guilty of committing a public offense."
28 Nev. 491, 494 (1905) In Re Kelly
nesses, a day after the commission of said alleged offense, was admitted in evidence by the
said justice of the peace against the objection of the attorney of the said Osuna; that no legal
testimony was given showing that Harry Averill, who signed said statement, was the same
person as Harriett Averill, mentioned in said complaint, and upon whom the said rape was
alleged to have been committed; that no legal evidence was introduced by the state at said
examination, which is shown by a certified copy of the testimony taken at said examination,
and which is hereunto annexed, and made a part of this petition; that there was no proof that
the crime of rape, or any other offense, had been committed on Harriett Averill or upon Harry
Averill, or that there was sufficient cause to believe the said Osuna guilty of committing a
public offense.
It appears from the record that Osuna was arrested and brought before the justice of the
peace at Hawthorne on the 6th day of October, 1905, and the complaint of the prosecuting
witness, charging him with the crime of rape, read to him. At the request of the defendant, the
examination was continued until October 10th, at which time the defendant appeared with his
attorney, and the examination was proceeded with. It appears that the complaining witness
was not present, and her name was called at the door without response. The deputy sheriff, A.
N. Jones, was then called and sworn as a witness, and testified that, when he brought the
defendant to Hawthorne, the complainant and her mother accompanied them. Upon being
asked, Where is Harry Averill now? answered, I think she has gone. The absence of this
important witness, who is called in the testimony both as Harriett and as Harry Averill, and
who is shown at one time to have been within reach of the process of the court, is not
accounted for in the record, nor does it appear what steps were taken to procure her testimony
at the hearing. Upon this showing of the absence of the witness Harriett Averill, the district
attorney offered in evidence what purported to be a written statement of the facts of the
alleged rape, signed by the said Harriett Averill on the evening of the 4th of October, in the
presence of witnesses, and declared in their presence to be a true statement of the facts of
the alleged crime.
28 Nev. 491, 495 (1905) In Re Kelly
and declared in their presence to be a true statement of the facts of the alleged crime. This
written statement was admitted in evidence over the objection of the defendant's attorney. A
witness to this written statement, Robert A. Lovegrove, farmer, in charge of the Walker Lake
Indian Reservation, was permitted, over defendant's objection, to testify that he had written
this statement for the complainant as she detailed the facts, and that he read the same over to
her before she signed it, and that he warned her of the seriousness of the charge she was
making against the defendant. S. W. Hance, a telegraph operator, residing at the place where
the crime is alleged to have been committed, was also permitted to testify, over defendant's
objection, that he was a witness to this written statement, and heard the complainant detail the
facts therein stated; also, that at noon of the same day the said Harriett Averill had come to
his office and had made the same charge against the defendant to him, and that at her
solicitation he dictated a telegram to her mother, who was then in San Francisco, relative to
the assault, and requesting her to come home at once. A copy of this telegram was offered,
and admitted in evidence over defendant's objection. Dr. F. C. Pasch, a physician residing at
Hawthorne, was also permitted to testify, over defendant's objection, that at the time of
making an examination of the person of the complainant, some days after the alleged offense
was committed, she informed him that the defendant had made a criminal assault upon her,
and with violence accomplished his purpose.
The position taken by counsel for the petitioner that these statements of the complainant
were made at a time too remote to form a part of the res gestae, were hearsay, and for that
reason were inadmissible, must be sustained. (State v. Campbell, 20 Nev. 126, 17 Pac. 620.)
It appears, however, from the record that after the complainant had signed the written
statement, the witness Lovegrove called in the defendant, and that the witness read the
statement over to him; that at the same time the witness warned the complainant that it was a
serious charge she was making, and that she had better be careful what she said; that she said
it was true; that he then told the defendant that he would place him under arrest, to
appear before a court to answer the charge; that he asked the defendant what he had to
say to the charge, and that the defendant said he "would answer before a court, or when
it was time to make them."
28 Nev. 491, 496 (1905) In Re Kelly
said it was true; that he then told the defendant that he would place him under arrest, to
appear before a court to answer the charge; that he asked the defendant what he had to say to
the charge, and that the defendant said he would answer before a court, or when it was time
to make them. This portion of the testimony of the witness does not seem to have been
considered by counsel upon either side in the presentation of this case, as standing in a
different position from the testimony relative to the statements of the complainant heretofore
referred to, made without the presence of the defendant. We think, however, it presents a
question worthy of careful consideration of court and counsel, but, as it has not been
presented in the briefs or argument in this matter, and as, in the view we take of the case, the
action of the magistrate, in holding the defendant to answer, can be sustained upon other
portions of the testimony alone, the question will not now be determined.
It is urged by counsel for petitioner that, with the statements made by the complainant
excluded, there is no competent proof of the corpus delicti. Two witnesses, C. O. Wilson and
A. N. Jones, the deputy sheriff, gave testimony relative to an admission made by the
defendant while he was being taken upon the train from the place where the offense is alleged
to have been committed to Hawthorne. That portion of the testimony of the witness Wilson
relative to the admission is as follows: This defendant was brought into the car at a place
called Schurz, between here and Reno, with Mr. Jones and a young lady I afterwards found to
be Harry Averill, and they took possession of a seat I had occupied up to that time. I took the
seat across the aisle. Seeing the man with bracelets on excited more or less curiosity, and
when he came into the car the young lady went into the car behind, and got another lady,
which I learned was her mother. This mother came in, and was talking to the defendant. The
mother asked him what made him do it. The defendant says, I don't know.' The mother was
hysterical, and she made the remark, I ought to kill you.' He assented; he did, yes. Well,' she
says, why don't I do it?' and repeated the remark several times, and about that time she
fainted and swooned away."
28 Nev. 491, 497 (1905) In Re Kelly
and swooned away. The testimony of the deputy sheriff relative to this admission was
substantially to the same effect.
Counsel for petitioner say in their brief: The testimony of Wilson and Jones, deputy
sheriff, as to the admissions of the defendant to his wife on a railroad car after his arrest are
clearly inadmissible, because there was no proof that a crime had been committed, and the
corpus delicti cannot be established by the confession of the defendant. It will be conceded
that the overwhelming weight of authority in this country is to the effect that an extrajudicial
confession or admission of a prisoner, not corroborated by independent proof of the corpus
delicti, will not justify conviction. It is not requisite, however, that the crime charged be
conclusively established by evidence independent of the confession or admission. It is
sufficient if there be other competent evidence tending to establish the fact of the commission
of the crime.
In People v. Badgley, 16 Wend. (N. Y.) 53, Nelson, C. J., said: Full proof of the body of
the crimethe corpus delictiindependently of the confession is not required by any of the
cases, and in many of them slight corroborating facts were held sufficient.
In the case of State v. Hall, 31 W. Va. 505, 7 S. E. 422, the court said: We know of no
decisions anywhere that hold the admissions of the defendant are not competent evidence
tending to prove the corpus delicti. Such admissions may not be sufficient proof of the corpus
delicti, but they certainly are competent evidence tending to prove that the crime charged has
been committed.
In the case of Matthews v. State, 55 Ala. 187, where many authorities are cited and
reviewed, the court, by Bricknell, C. J., says: Nor must we be understood as affirming that
the proof of the corpus delicti must be as full and conclusive as would be essential if there
was no confession to corroborate it. Evidence of facts and circumstances attending the
particular offense, and usually attending the commission of similar offenses, or of facts to the
discovery of which the confession has led, and which would not probably have existed if the
offense had not been committed, or of facts having a just tendency to lead the mind to the
conclusion that the offense has been committed, would be admissible to corroborate the
confession.
28 Nev. 491, 498 (1905) In Re Kelly
having a just tendency to lead the mind to the conclusion that the offense has been
committed, would be admissible to corroborate the confession. The weight which would be
accorded them, when connected with the confession, the jury must determine, under proper
instructions from the court.
The case of People v. Simonsen, 107 Cal. 346, 40 Pac. 440, cited in petitioner's brief, is in
line with the authorities above quoted. The court in that case say: The term corpus delicti'
means exactly what it says. It involves the element of crime. Upon a charge of homicide,
producing the dead body does not establish the corpus delicti, it would simply establish the
corpus; and proof of the dead body alone, joined with a confession by the defendant of his
guilt, would not be sufficient to convict, for there must be some evidence tending to show the
commission of a homicide before a defendant's confession would be admissible for any
purpose. * * * To be sure, the appearance of the dead body, the nature of the wounds, the
evidences of a struggle, the physical circumstances surrounding the affair, may furnish
evidence of the corpus delictithey may indicate that a crime has been committedbut there
must be proof of the fact from some source other than the defendant's admissions. The court
cites other examples, and then, referring to the case under consideration, says: Laying aside
the evidence of defendant's admissions, there is nothing whatever in the record even pointing
toward the commission of a crime.
See, also, People v. Jones, 31 Cal. 567; State v. Lamb, 28 Mo. 219; State v. Guild, 10 N. J.
Law, 180, 18 Am. Dec. 414.
In the case of State v. Ah Chuey, 14 Nev. 92, 33 Am. Rep. 530, this court held that proof
of the corpus delicti may be established by circumstantial evidence, provided it is
satisfactory.
In the case before us we think there was competent evidence, independent of the
admissions of the defendant, tending to establish the corpus delicti. Dr. Pasch testified that on
Saturday, four days after the alleged offense was committed, he made an examination of the
person of the complainant, Harriett Averill, who is shown to be but slightly over 15 years of
age; that he found that her hymen was inflamed, and at some time evidently had been
lacerated; that the young lady was rather hysterical; and would only permit ocular
inspection and digital examination, on account of the extreme tenderness of the parts.
28 Nev. 491, 499 (1905) In Re Kelly
inflamed, and at some time evidently had been lacerated; that the young lady was rather
hysterical; and would only permit ocular inspection and digital examination, on account of
the extreme tenderness of the parts. He further testified: From the evidence I found, I would
state that in all probability Miss Averill at some time had had intercourse with a member of
the opposite sex. There was other testimony of the witness relative to what appeared to be
blood stains upon the complainant's skirt. The witness Hance, who saw the complainant at
noon of October 4th, testified that she was then agitated and nervous, and appeared to have
been crying; that he observed marks of violence upon her nose and upper lip; that she showed
him marks upon her wrists; also a mark on the side of her throat, and that her throat seemed
to be swollen and red. The witness Lovegrove also testified to observing on the evening of
October 4th a mark upon the nose and on the side of complainant's throat, apparently
scratches. It also may be gathered from the evidence that the defendant, a man of but 21 years
of age, and the complainant, his stepdaughter, were at the time of the alleged assault
occupying a box car as a home (the defendant being in the employ of the railroad), the
defendant's wife, mother of the complainant, being absent, and the complainant being left in
defendant's care. We think these facts and circumstances tended to prove the corpus delicti,
and were sufficient, together with the defendant's admissions, to justify the magistrate in
holding the defendant to answer.
We are not called upon on this hearing to pass upon the sufficiency of this evidence to
warrant the conviction of the defendant, and upon that question express no opinion. In this
connection it is proper to observe that a magistrate, in holding a defendant to answer for a
crime, is not required to have submitted evidence sufficient to establish the guilt of the person
charged beyond a reasonable doubt. As was said in a recent decision (In re Mitchell [Cal.
App.] 82 Pac. 347): In order to hold defendant and put him on his trial, the committing
magistrate is not required to find evidence sufficient to warrant a conviction. All that is
required is that there be a sufficient legal evidence to make it appear that a public offense
has been committed, and there is sufficient cause to believe the defendant guilty thereof.'
"
28 Nev. 491, 500 (1905) In Re Kelly
public offense has been committed, and there is sufficient cause to believe the defendant
guilty thereof.'
The writ issued herein is dismissed.
____________
28 Nev. 500, 500 (1905) Brandon v. West
[No. 1681.]
WILLIAM J. BRANDON, Appellant, v. N. H. WEST, as Administrator of the Estate of B. G.
Clow, Deceased, et al., Respondents.
1. Specific PerformanceExecuted ContractBurden of Proof. Where, in a suit to compel the execution of a
deed on an executed oral contract for the sale of land, there was a doubt as to whether the vendor
intended to sell the land in fee or only the sand thereon, the court properly refused to enforce a
conveyance of the freehold to complainant, the burden being on him to clearly establish an executed
sale.
2. SameLiability of Heirs. Where the owner of land granted to complainant by an executed oral sale all the
sand on the land, the legal title to the land having passed to such owner's descendants by operation of
law, it was incumbent on them to convey to complainant the right purchased.
3. EquityPleadingVariance. Where complainant sued to enforce the execution of a deed under an alleged
executed oral contract for the sale of certain land, but his proofs showed that only an easement entitling
complainant to remove the sand from the property had been sold, the variance was not fatal, but
complainant was entitled to relief to conform to the proof to prevent a multiplicity of suits.
4. CostsAppealTranscribing RecordsTypewriting Briefs. Under Supreme Court Rule VI (see page 6 of
this volume) providing that the expense of printed transcripts on appeal in civil cases and papers
constituting the record in original proceedings required by the rules to be printed shall be allowed as
costs, the cost of transcribing the record on appeal and of typewriting briefs are properly taxable against
the losing party.
Fitzgerald, C. J., dissenting.
Suit by William J. Brandon against N. H. West, as administrator of the estate of B. G.
Clow, deceased, and others. From a decree in favor of defendants, plaintiff appeals.
Reversed.
I. In this action plaintiff sought to compel defendants as the administrator and heirs-at-law
of B. G. Clow, deceased, to execute a deed to plaintiff of a piece of land, less than one acre in
extent, near Reno, being a piece of land plaintiff purchased from B. G. Clow just before the
death of the latter. The evidence shows clearly that plaintiff purchased the land in question
from B. G. Clow a short time before the death of the latter; that the plaintiff paid for the land;
that the purchase price was delivered to and accepted by said B. G. Clow; and that said B. G.
Clow placed plaintiff in possession of said land.
II. The plaintiff after purchasing said land improved the same at least to the extent of
$300. The evidence given by the witnesses for plaintiff shows, without contradiction, that
plaintiff purchased, paid for, took possession, and improved said land under the terms of said
purchase, and was afterwards locked out from said land.
III. The evidence shows that the administrator of the estate of B. G. Clow, deceased, is a
proper party to the action, and the action can be maintained against the estate. (Comp. Laws,
2951.)
IV. A contract relating to land will be enforced as a matter of course if it is fair and
definite in its terms and stands upon a sufficient consideration. (Young v. Daniels, 2 Iowa,
126; Throckmorton v. Davidson, 68 Iowa, 643; Fowler v. Marshall, 29 Kan. 665; Poplin v.
Foley, 61 Md. 381; St. Paul Div. v. Brown, 9 Minn. 157; Aston v. Robinson, 49 Miss. 248;
Johnson v. Dodge, 17 Ill. 433; Modiscott v. Johnson, 2 Blackf. (Ind.) 431; Shriver v. Seiss, 49
Md. 384; Ensign v. Kellogg, 3 Pick. 5; Bogan v. Daughdrill, 51 Ala. 312; Chambers v.
Alabama Iron Co., 67 Ala. 353; McClure v. Otrick, 118 Ill. 320.)
V. The evidence shows plaintiff fully performed his part of the contract and is entitled to
the relief prayed for in the complaint; also shows that the contract is certain, fair in all its
parts, just, and equitable, for a valid consideration, and capable of being performed. And it
also shows that the performance on the part of plaintiff and improvements of the same took it
out of the statute.
same took it out of the statute. (Schroeder v. Gemeinder, 10 Nev. 355; Hyatt v. Hunt, 15 Pac.
410.) The court having found that plaintiff had purchased and paid for the sand and the
exclusive right to remove the same, it was the duty of the court to decree a conveyance to
plaintiff and the right to take the same, so as to adjust all rights of plaintiff and make the
relief complete. The court should also have given plaintiff judgment for his costs, and it was
error in the court to refuse to grant said relief. (16 Cyc. subd. C, p. 478; McCaughey v.
Brown, 46 Ark. 34; Craft v. DeForrest, 53 Cal. 656; Walker v. Logan Heirs, 5 B. Mon. (Ky.)
530; Ames v. Gilmore, 59 Mo. 541; Wilson v. Crowell, 32 Wis. 662; Sutherland v. Rose, 47
Barb. 144; Smith v. Doak, 3 Tex. 215.) Even if the plaintiff had failed to show he was entitled
to the relief prayed for in his complaint the court should have given him such other relief as
the bill and proof showed him entitled to, under the general relief prayed for in his prayer. (16
Cyc. 487, 488; Rogers v. Brooks, 30 Ark. 612; Harville v. Blair, 8 W. C. Rep. 214; Rollins v.
Forbes, 10 Cal. 300; Mock v. City of Santa Rosa, 58 Pac. 826; and many other authorities
cited in 19th Century Digest under heading Equity, sec. 1011.) The court having found that
plaintiff was entitled to a lesser relief than prayed for in his complaint, and at the same time
found that defendants were entitled to a judgment against plaintiff for their costs, it is such a
conflict as cannot be reconciled, and when compared shows conclusively that plaintiff was
entitled to at least a lesser relief and costs.
VI. The power to specifically enforce verbal agreements for the sale of lands is not to be
exercised as a matter of right to the party demanding it, but only under a sound legal
discretion resting in the court in view of all the circumstances of the case. A decree for the
specific performance of a contract for the sale of real estate does not go as a matter of course,
but is granted or withheld according as equity and justice seem to demand in view of all the
circumstances of the case. (McCabe v. Matthews, 155 U. S. 550.) This form of relief is not a
matter of absolute right to either party; but a matter resting in the discretion of the court, to be
exercised upon a consideration of all the circumstances of each particular case.
to be exercised upon a consideration of all the circumstances of each particular case. (Willard
v. Talce, 8 Wall. 557.) It is not always a matter of course to decree a specific performance of
contracts. Much depends upon the sound discretion of the chancellor, upon a view of all the
circumstances of the case, but this discretion must not be arbitrary nor capricious, but must be
regulated upon grounds that make it judicial. (Schroeder v. Gemeinder, 10 Nev. 355; Purcell
v. Miner, 4 Wall. 513.) As further illustrating the requirement that the oral contract sought to
be specifically enforced by virtue of part performance must be certain, definite, and free from
ambiguity, see the following: Colson v. Thompson, 2 Wheat. 336; Poland v. O'Connor, 93
Am. Dec. 327; Evans v. Lee, 12 Nev. 393; Seitman v. Seitman, 68 N. E. 461; In re Shaffer's
Estate, 54 Atl. 711; Stone v. Hill, 43 S. E. 92; Lorentz v. Lorentz, 14 W. Va. 761; Henley v.
Cottrell, 43 S. E. 191; Rankin v. Maxwell, 12 Am. Dec. 406; Robbins v. McKnight, 45 Am.
Dec. 406; Walcott v. Watson, 53 Fed. 429; Williams v. Morris, 95 U. S. 444; Minturn v.
Bayliss, 33 Cal. 133. In a suit for specific performance of an oral contract for the sale of lands
evidence of declarations and admissions made to third parties sought to be charged are not
sufficient when unsupported by other evidence to establish the contract. (Berry v. Hartsell, 3
S. W. 582; Kinney v. Murray, 71 S. W. 197; Walcott v. Watson, 53 Fed. 429; In re Shaffer's
Estate, 54 Atl. 711; Wolfinger v. McFarland, 54 Atl. 866; Rodman v. Rodman, 88 N. W.
218.)
VII. Where the description by the witness of land to be conveyed under an oral contract is
so indefinite as to afford no intelligible guide to a surveyor in discovering its location, or
establishing its lines, specific performance cannot be decreed. A recent decision by the
Supreme Court of the State of Iowa presents a case almost on all-fours with the case at bar.
(Kirkpatrick v. Pettis, 103 N. W. 956.)
VIII. The proof establishes beyond reasonable doubt that the possession of the premises
by appellant was not referable to the contract specifically pleaded in the complaint. (Foster v.
McGinnis, 26 Pac. 828; Andrew v. Babcock, 26 Atl. 716; Pomeroy's Specific Performance of
Contracts, sec. 107.)
IX. Possession sufficient to take a verbal grant of the use of lands out of the statute of
frauds must be open, notorious, and exclusive, taken under the contract, and referable to it.
(Lake Erie & W. R. Co. v. Michigan Cent. R. Co., 86 Fed. 840; Lewis v. North, 87 N. W. 312;
People's Pure Ice Co. v. Trumbull, 70 Fed. 166; Rodman v. Rodman, 88 N. W. 218; Latimer
v. Hamill, 52 Pac. 364; Kinney v. Murray, 71 N. S. 197; Gorham v. Dodge, 14 N. E. 144.)
X. When possession of land is not in pursuance of a contract to convey, or if such
possession and the improvements made by the party holding it, can be reasonably accounted
for in some other way than by such contract between the parties, then such possession and
improvements will not ordinarily avail as a part performance. (Meigs v. Morris, 37 S. W.
303.)
Cheney & Massey, for Respondents. [No brief for respondents submitted by compiler for
printing.]
I. Section 2698, Compiled Laws, reserves to the court the power to enforce specific
performance in cases of part performance of agreements, and section 2951, Compiled Laws,
provides that an action can be maintained against the administrator in case the action could
have been maintained in the lifetime of the deceased. Hence, it will be seen that the
legislature intended in cases of part performance of a contract that actions for specific
performance should be maintained, and particularly so if the action against Barney Clow
could have been maintained in his lifetime. Hence, we contend that, under the evidence in
this case, the lower court should have followed the law and the facts, and decreed a specific
performance.
II. In their brief counsel for defendants state, as a rule of equity, declarations and
admissions of parties to be charged are not sufficient, when unsupported by other evidence to
establish the contract. The correct rule, as we understand it, is in specific performance such
case must stand with reference to the particular facts established by the evidence," and
declarations and admissions of parties to be charged, if sufficient to establish the sale of
the land, specific performance will be decreed; however, in this case the declarations of
Clow are supported by other evidence which shows the declarations made by him to have
been the truth.
the evidence, and declarations and admissions of parties to be charged, if sufficient to
establish the sale of the land, specific performance will be decreed; however, in this case the
declarations of Clow are supported by other evidence which shows the declarations made by
him to have been the truth.
III. Notwithstanding the assertion of counsel for defendants to the contrary, the evidence
clearly establishes the possession of the land by Brandon under his purchase. His possession
was complete, open, notorious, peaceable.
IV. Where the purchase money has been paid and possession taken in pursuance of a parol
contract, it will be specifically enforced. (Tibbs v. Barker, 1 Blackf. 58; Ramsey v. Liston, 25
Ill. 114; Stevens v. Wheeler, 25 Ill. 300; Green v. Jones, 76 Me. 563.)
V. Equity regards vendee in possession who has paid the price as the real owner, and will
compel a full conveyance of the legal title to him, if withheld, on being demanded. (Astor v.
L'Amoreux, 8 N. Y. 107, 4 Sandf. 524.)
VI. It is well-known rule that in cases of specific performance the property may be shown
and identified by extrinsic evidence. (Easton v. Thatcher, 25 Pac. 728; and cases cited by the
Supreme Court of Utah; Jones on Evidence, sec. 435.) It will thus be seen that the lower court
erred in refusing plaintiff a decree directing defendants to convey said land, and also erred in
refusing plaintiff a new trial. After the lower court found that plaintiff had purchased the sand
and the right to remove it, then to refuse plaintiff a decree directing defendants to convey and
give title to the sand and the right to remove it was an error so apparent as to show prejudice
on the part of the lower court.
This action was brought against the defendant West as administrator, and the other
defendants as heirs, of the estate of B. G. Clow, deceased, to compel the execution of a deed
to plaintiff for a triangular piece of land, marked with three iron pins and less than one acre in
extent, as described in the complaint.
the complaint. The uncontradicted testimony of several witnesses introduced by the plaintiff
shows that Clow in the year 1901, and a considerable time before his death, sold to plaintiff a
sand hill or sand pit which is identical with or embraced in the boundaries of the parcel of
land mentioned; that he went upon the premises, marked and pointed out the boundaries to
the plaintiff, put him in possession, and accepted a cow in payment. Thereafter plaintiff
hauled and sold sand from the pit exclusively, and his right to the same was expressly
acknowledged upon different occasions by Clow, who directed to the plaintiff persons
applying for sand. No evidence was offered by the defendants. The court was in doubt as to
whether the proofs showed a sale of the land, but, at the request of the plaintiff, found that he
purchased the sand situated upon and in the sand hill described in plaintiff's complaint and
the exclusive right to take sand therefrom; that Clow received and retained possession of the
cow, and that prior to and long after his death plaintiff was in possession of the property and
taking sand. From a judgment in favor of defendants for their costs, and an order overruling a
motion for a new trial, this appeal is taken.
The burden being upon the plaintiff to establish clearly an executed sale, and there being a
doubt as to whether Clow intended to sell the land in fee, or only the sand, leaving the land
for him or his estate when stripped of it, the court properly refused to enforce a conveyance of
the freehold to plaintiff, but it having been plainly indicated by the evidence and the court
having found that there was an executed sale of the sand by Clow to the plaintiff, the latter
was entitled to relief to that extent. In principle, the plaintiff has an interest in the land like
the right to remove stone or cut timber or maintain a roadway or other easement, or like a
lease or term for life or years, and, although less than freehold, the plaintiff, after being placed
in possession and making payment, became entitled upon demand to a conveyance to the
extent of his purchase, which could be recorded, and which would give notice of his
ownership from Clow, who held that part of the title for him as a trustee, the same as Clow
would have retained the whole title if the sale had been of the freehold.
would have retained the whole title if the sale had been of the freehold. This legal title having
passed to his successors by operation of law, it is incumbent upon them to convey it to
plaintiff. (Schroeder v. Gemeinder, 10 Nev. 367; Lake v. Lewis, 16 Nev. 94; Powell v.
Campbell, 20 Nev. 233, 20 Pac. 156, 2 L. R. A. 615, 19 Am. St. Rep. 350; 1 Tiffany, Modern
Law of Real Prop. 10; Thompson v. Smith, 63 N. Y. 303, and cases there cited; Kerr v. Day,
14 Pa. 112, 53 Am. Dec. 526, and annotation; Felch v. Hooper, 119 Mass. 52; Masterson v.
Pullen, 62 Ala. 146; Wehn v. Fall, 55 Neb. 547, 76 N. W. 13, 70 Am. St. Rep. 397; Swepson
v. Rouse, 65 N. C. 34, 6 Am. Rep. 735; Adams v. Harris, 47 Miss. 144; Corson v. Mulvany,
49 Pa. 88, 88 Am. Dec. 485; Morgan v. Morgan, 2 Wheat. (15 U. S.) 302, 4 L. Ed. 242;
Massie v. Watts, 6 Cranch, 148, 3 L. Ed. 181; Newton v. Bronsin, 67 Am. Dec. 89; W. U. Tel.
Co. v. Pittsburg, C., C. & St. L. Ry. Co. (C. C.) 137 Fed 435; 5 Pom. Eq. Jur. 3d ed. secs.
12-16, and cases cited, volume 1, Id. 367.)
If the proofs had indicated the sale of sand on land different from that described in the
complaint, there would have been a fatal variance; but when they establish that the plaintiff is
entitled to an interest in or a part of the estate, quantity, or amount of land, money, or
personal property claimed under the allegations and demand in the complaint, he should be
given, under such circumstances as exist here, relief to that extent, and not be forced to
further litigation. That the plaintiff may recover less than the whole of that which he demands
without being relegated to another action is according to usual practice, and any other rule
would tend to a multiplicity of suits, and occasion unnecessary delays and hardships.
In Bogan v. Daughdrill, 51 Ala. 316, the bill averred a contract for the sale of more than
four hundred acres, and the decree of the chancellor enforcing it as to eighty acres only was
sustained, and it was said that it is a general rule at law and in equity that a plaintiff may
recover a part only of what he claims.
In Drury v. Conner, 6 Har. & J. 288, cited in that opinion, the plaintiff claimed the
conveyance of the whole of a piece of land, but the proofs entitled him to an undivided
one-fourth only, which was decreed to him.
of land, but the proofs entitled him to an undivided one-fourth only, which was decreed to
him.
In Vicksburg R. R. Co. v. Ragsdale, 54 Miss. 215: We know of no rule of equity which
denies relief to a party altogether, because he has made a false claim as to part of it. In so far
as he has shown title to relief, to that extent he should be redressed.
The sand is a part of the land for which the plaintiff seeks a deed in his complaint the same
as ore, marble, or stone before removal is a part of the realty. (State v. Berryman, 8 Nev. 268;
Kingsley v. Holbrook, 45 N. H. 319, 86 Am. Dec. 173; Stevenson v. Bachrach, 170 Ill. 256,
48 N. E. 327; State v. Pottmeyer, 33 Ind. 402, 5 Am. Rep. 224; Cary v. Daniels, 8 Metc. 480,
41 Am. Dec. 532; Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; 2 Blackstone Com. 18; Lime
Rock R. R. Co. v. Farnsworth, 86 Me. 130, 29 Atl. 957.)
The defendants were aware that the plaintiff demanded a conveyance of the whole of the
land, and they could have avoided costs by tendering a deed for that part of it comprising the
sand, and the right of its removal, in the same way that immunity from costs may be secured
by an offer to allow judgment for a less sum or estate, or for a smaller quantity of land or
personal property than that demanded in the complaint. In Schroeder v. Gemeinder, Justice
Hawley, speaking for this court, said: We are satisfied that the objection urged, upon the
ground that the premises described in the deed were not the same as described in the lease, is
not well taken, for the reason that no such objection was made at the time the deed was
presented. If that was the only objection, the respondent ought to have so stated at the time of
the tender. But, in any view, this objection could only be urged upon a question of costs, and
not to defeat appellant's rights. Courts of equity ought to determine the rights of the parties
according to the broad principles of justice and fair dealing, and not by the technical and
refined distinctions of the law.
The judgment and order are reversed, and the district court is directed to decree the
execution on the part of the defendants of the proper deed conveying to the plaintiff the
sand on the premises described in the complaint, and the exclusive right to remove the
same, to which he is entitled as shown by the uncontradicted evidence and findings, with
his costs, if the proper memorandum thereof is filed within two days after the entry of the
decree under the usual practice and section 35S1 of the Compiled Laws.
defendants of the proper deed conveying to the plaintiff the sand on the premises described in
the complaint, and the exclusive right to remove the same, to which he is entitled as shown by
the uncontradicted evidence and findings, with his costs, if the proper memorandum thereof is
filed within two days after the entry of the decree under the usual practice and section 3581 of
the Compiled Laws. Pursuant to the motion of respondents the items of expense in the lower
court are striken out of the cost bill filed here, but the reporters' fees of $34, for transcribing
notes for the record on appeal, and the cost of typewriting briefs, are allowed to stand under
rule VI (p. 6 of this volume) and the decision in the recent case of Candler v. Ditch Co., 28
Nev. 422, 82 Pac. 458.
Norcross, J.: I concur.
Fitzgerald, C. J., dissenting:
Finding myself unable to concur in the prevailing opinion, I deem it proper to make a brief
statement of my view of the case as it appears from the transcript filed in this court. This is a
suit for specific performance of an alleged contract to convey land. The contract was in the
complaint of plaintiff alleged to have been made by plaintiff with one B. G. Clow in the
lifetime of said Clow; and the suit is against N. H. West, as administrator of the estate of said
Clow, and also against others named in said complaint as claiming under said Clow. The case
was tried without a jury, and the trial court gave judgment against plaintiff. The plaintiff
appeals from said judgment, and also from the order of the court denying his motion for a
new trial.
The question before us on this appeal is: Does the evidence sustain the judgment and
order? I think it does. The plaintiff sued for land, specifically describing it, alleging a contract
with defendants' intestate to convey the same; but his evidencethe defendants not having
put in any other than to cross-examine plaintiff's witnessesshows that he had no contract to
convey land, but merely the sand on the premises described. I deem it unnecessary to quote or
minutely state the evidence here.
minutely state the evidence here. It is deemed sufficient that the general statement be here
made that no one of plaintiff's witnesses gives evidence of a buying or selling of land, or a
contract for buying or selling land. All the evidence is as to buying and selling the sand pit
or the sand hill on certain premises described in said evidence; or contracting to sell such
sand pit or sand hill. Under such state of facts this court would not be justified in disturbing
the finding of fact made by the trial court that there was no contract for buying, selling, or
conveying land; and without such contract there was nothing of which the court could decree
specific performance. The court, however, did find, as a fact, that there was a contract
between plaintiff and defendants' intestate to sell to plaintiff the sand on a certain piece of
land described in plaintiff's complaint; and on this finding, appellant claims that it was error
in the court not to give plaintiff judgment for this sand and for plaintiff's cost of suit. Under
the pleadings and evidence in the case I think the court could not have properly so adjudged.
There was no allegation in the complaint of a denial on the part of defendants, or any one
of them, of this right of plaintiff to the sand; or any allegation of refusal by the defendants, or
any one of them, to permit plaintiff to take the sand in accordance with the contract as stated
in said finding. It is true the court made a finding of such contract; but it made no finding of
any breach of said contract. So far as anything that appears in said finding is concerned the
defendants may have always permitted plaintiff to take the sand in accordance with the
contract found to have been made with plaintiff by defendants' intestate. Under such
circumstances the court could not have adjudged against the defendants for either the sand or
the costs of the suit, because plaintiff had failed to prove defendants to have been in default.
Should defendants hereafter refuse to permit plaintiff to take the sand in accordance with the
contract, as stated in the said finding, it may be that plaintiff would have his action to enforce
said contract; for then it may be that he could allege, not only a contract to take the sand, but
also breach thereof by defendants.
also breach thereof by defendants. But as the case now stands here there is no breach of such
contract, either alleged in the complaint or proved by the evidence.
Therefore, finding no error in reference to either the judgment or the order appealed from,
I think said judgment and the said order should be affirmed.
____________

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