Nevada Reports 1930-1931 (53 Nev.) PDF

53 Nev.
1, 1 (1930)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 53
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53 Nev. 1, 1 (1930) Reno Electrical Works, Inc. v. Ward
RENO ELECTRICAL WORKS, Inc. v.
WARD, Et Al.
No. 2905
September 5, 1930. 290 P. 1024
1. Judgment.
Finding and judgment of trial court that defendant had incurred item of costs on former appeal in
case, as shown by remittitur, held as solemn and binding as any other portion of the judgment.
2. Judgment.
Judgment of trial court awarding costs to successful appellant in former appeal held avoidable only by
filing a motion for a new trial and appeal from order denying same.
3. Costs.
Item incurred on former appeal and embraced in cost bill can only be attacked by objecting thereto, as
provided by statute (Stats. 1919, c. 41), and, in case of an adverse ruling, to appeal therefrom.
Appeal from second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Action by Reno Electrical Works, Inc. against T. O. Ward and another. From a judgment
for plaintiff and an order denying new trial, defendants appealed to the Supreme Court, which
reversed the judgment (51 Nev. 291, 274 P. 196, 62 A.L.R. 247). Order refusing to modify a
judgment for costs in favor of defendants, and plaintiff appeals. Affirmed.
John F. Kunz, for Appellant:
Appellant assigns as error the order of the lower court denying and overruling the motion
to modify error in judgment and costs, and seeks reversal thereof, asserting as grounds
therefor: That the error sought to be remedied and corrected by said motion appears upon the
face of the records of the trial court and is nonjudicial in character; that when the judgment
was rendered the records of the trial court showed that the remittitur of the supreme court had
been filed with the clerk of the lower court and the costs of the appellant indorsed thereon by
the clerk of the supreme court in the sum of $25; that the amount of said costs in said
appeal was by the court in its judgment of August 2, 1929, erroneously recited to be in
the sum of $130.50, excessive in the sum of $105.50, and taxed and included in the
judgment accordingly; and that the clerk in entering the judgment inserted and allowed
the said sum of $130.50 as defendant's costs on said appeal, all in violation of the said
remittitur or mandate with the correct amount of costs on appeal indorsed thereon in the
sum of $25.
the sum of $25; that the amount of said costs in said appeal was by the court in its judgment
of August 2, 1929, erroneously recited to be in the sum of $130.50, excessive in the sum of
$105.50, and taxed and included in the judgment accordingly; and that the clerk in entering
the judgment inserted and allowed the said sum of $130.50 as defendant's costs on said
appeal, all in violation of the said remittitur or mandate with the correct amount of costs on
appeal indorsed thereon in the sum of $25. The regularity of the issuance of the remittitur and
the amount of costs legally taxed by the clerk of the supreme court was not disputed. The case
of Johnson v. Schimpf (Cal.), 266 P. 597, is quite in point to the facts at bar. Our supreme
court rules specifically provide how costs can be successfully claimed, and not otherwise.
Under rule VI the procedure is fixed and must be followed; it requires the serving and filing
of a verified cost bill within five days, by the prevailing party, after the decision is rendered.
This was not done, and the appellant lost his right to any costs, excepting the fee for filing of
the record on appeal, as shown by the remittitur. Subdivision 4 of rule VI requires that the
clerk indorse on the remittitur the costs that the prevailing party is entitled to, and that such
costs shall be collected as other costs in such district court * * * and shall not be subject to
retaxation in such district court or other tribunal. The lower court, then, and its clerk, were
bound by the indorsement upon the remittitur fixing the defendant's costs on the first appeal.
Neither of them had jurisdiction to either allow or enter a different sum. Manifest error
therefore appears in the recitals of the judgment that the costs allowed to the appellant, Ward,
in the supreme court were $130.50, instead of $25.
The decision in the case of Tacoma Lumber Company v. Wolff (Wash.), 35 P. 115,
thoroughly supports our contention that the court has jurisdiction at any time to modify any
error, nonjudicial in character, appearing upon the face of the record, such as the entry of the
amount of the costs of the judgment, as required to be done by the clerk under our statute,
which is a ministerial act.
be done by the clerk under our statute, which is a ministerial act. Sec. 5278 Rev. Laws,
defines the duties of the clerk in that respect.
Sec. 5387 Rev. Laws, applies to the filing of a cost bill in the district court, not the
supreme court, and applies only to costs which the prevailing party is entitled to claim and
receive and which were incurred in the lower court.
Our supreme court, in Sparrow v. Trench, 2 Nev. 362, passes upon the right of a court of
record to amend its judgment to conform to the facts and to speak the truth. The right of the
court, and the duty of the court, to make such a correction is passed upon in the case of
National Council Knights and Ladies of Security v. Silver (Minn.), 164 N.W. 1015, 10
A.L.R. 523. Following the report of the foregoing case in 10 A.L.R. 523, at p. 526, is an
extended annotation of cases, of 123 pages in length, pertaining to correcting clerical errors
in judgments.
Cooke & Stoddard, for Respondent Ward:
Motion to modify judgment is not proper proceeding for correction of erroneous taxation
of costs. That this is not a case of clerical error or misprision of the clerk is shown by the
fact that the clerk in entering the costs in the judgment followed the directions of the
judgment as made by the judge therein. The judgment recites that $130.50 was certified and
allowed as costs in favor of Ward. Further, the cost bill which was filed on August 2, 1929,
includes the same item of $130.50, which was found and adjudicated as costs by the
judgment. The clerk, therefore, was simply carrying out the orders of the court.
Conceding for the purposes of the argument that in the instant case the clerk was not, as a
matter of law, justified in looking to Ward's cost bill of August 2, 1929, to which no
objections whatever had been made, and, conceding similarly that the clerk had no power to
tax costs incurred in the case while on appeal, still we submit, on the authority of the case of
State v. Sadler, 25 Nev. 131-195
25 Nev. 131-195, 196, 59 P. 546, 63 P. 128, that the action of the clerk in accepting Ward's
August 2, 1929, cost bill was correct because no objections thereto were made, and his act in
entering the costs so claimed in the final judgment does not entitle appellant here to a
modification of such final judgment, any more than contestant was entitled to say that
because the clerk in the Sadler case entered costs claimed by a premature cost bill the
contestant was entitled to have the judgment modified.
When a properly verified cost bill is made, filed and served, and pursuant thereto, no
objections or retax motion being made, the clerk enters the amount of such costs in the
judgment, the costs become a part of the judgment and the amount and justice thereof can no
more be attacked than any other part of such judgment. State v. Commissioners Lander
County, 22 Nev. 71-79, 35 P. 300; Howard v. Richards, 2 Nev. 128-135 (per Beatty, J.);
Whitney v. Teichfuss (Colo.), 19 P. 507-508; Cord v. Southwell, 15 Wis. 211.
The recital in the findings and judgment that in due course the remittitur in said cause
came down from the supreme court certifying an allowance and judgment for $130.50 costs
of said appeal in favor of said defendant and appellant T. O. Ward * * * is, of and in itself, a
finding of a fact and an adjudication by the court as to said item. What appellant is now
seeking is an order to the effect that the foregoing finding and adjudication be set aside. If
such finding and adjudication were erroneous, it is judicial error as contra-distinguished from
clerical error. Judicial errors cannot be corrected on mere motion, but only by new trial or
appeal. Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638; 34 C.J. 215 and n. 16; 34 C.J. 243,
sec. 468 and n. 58; Leonis v. Leffingwell, 58 P. 940; in Re Potter's Estate, 79 P. 850.
That appellant's motion herein is an attack upon the substance of the judgment of the trial
court, and not merely an effort to correct any clerical error of the clerk, is shown by
appellant's opening brief, wherein appellant complains of the form of the judgment, i.e.,
judicial error of the court.
appellant complains of the form of the judgment, i.e., judicial error of the court. Any such
objection or complaint could only be legally made by motion for new trial and appeal.
OPINION
By the Court, Coleman, J.:
This case is before us upon an appeal by the plaintiff from an order refusing to modify a
judgment for costs.
Without detailing the facts, it is the contention of the plaintiff that the item in question is
not a legal charge. A copy of the cost bill, containing the item complained of, was served
upon the then counsel for the plaintiff and filed with the clerk of the court on the day the
judgment in the case was rendered.
No objection was made to any item in the cost bill within three days after the service
thereof, as permitted to be done by Stats. 1919, p. 56, c. 41. Sixty days after the rendition of
the judgment execution was issued thereupon. For the purpose of preventing its levy the
plaintiff, with comakers, executed its note payable to respondent for the full amount of the
judgment and costs. Three months and a half after the execution of said note, the plaintiff
filed in said court its motion to modify the judgment for costs so as to strike therefrom the
item in question.
It appears from the findings of facts and the judgment, rendered by the lower court on
August 2, 1929, which is made a part of the record on appeal in this matter, that the court
found that the item in question was one incurred by the defendants on a former appeal in this
case to this court, as appeared from the remittitur from this court, and accordingly rendered
judgment in favor of the defendant therefor. On the same day the then counsel for plaintiff
acknowledged receipt of a copy thereof, and waived time and right to file objections thereto.
We need not consider all of the questions discussed upon this appeal, since it seems to us
that there are at least two good reasons why the order must be affirmed.
upon this appeal, since it seems to us that there are at least two good reasons why the order
must be affirmed.
1, 2. The finding and judgment of the trial court to the effect that the defendant had
incurred the item on a former appeal in this case, as shown by the remittitur, and the rendition
of judgment therefor, was as solemn and binding as any other portion of the judgment. There
was only one way to avoid the force and effect of that judgment, which was to file a motion
for a new trial, and to appeal from an order denying the same.
3. We think, too, that had there been no finding and judgment as there was, and had the
item been embraced in the cost bill, the only way to attack it is by objecting thereto, as
provided by statute, and, in case of an adverse ruling, to appeal therefrom.
We think the order appealed from should be affirmed.
It is so ordered.
On Petition for Rehearing
November 19, 1930.
Per Curiam:
Rehearing denied.
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53 Nev. 7, 7 (1930) Tamney v. Scheeline Banking & Trust Co.
TAMNEY v. SCHEELINE BANKING & TRUST CO.
No. 2844
September 5, 1930. 290 P. 1027.
1. Brokers.
Trustee may become liable for compensation for effecting a sale of the trust estate.
2. Brokers.
Ownership, or the character of the ownership of property, by a person from whom a broker's
compensation is claimed for effecting its sale, is immaterial and need not be alleged or proved in an
action for the recovery of such compensation.
3. Brokers.
Right of a broker to a commission for the sale of property depends upon a contract of employment,
express or implied.
4. Brokers.
One who employs a broker to find a purchaser is usually liable for the compensation, regardless of the
nature of his interest in the property, and regardless of whether or not he has any interest in it whatsoever.
5. Brokers.
Evidence held sufficient to sustain finding of promise by agent of bank allegedly holding only as
trustee to pay reasonable compensation for effecting sale.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by V. A. Tamney against Scheeline Banking & Trust Company. From a judgment
for plaintiff and order denying motion for new trial, defendant appeals. Affirmed.
James T. Boyd, for Appellant:
Under the evidence there was no possibility of the court finding an expressed contract in
favor of the plaintiff, and the findings as made by the court that there was an implied contract
could only be based upon the fact that the Scheeline Banking & Trust Company was the
owner of the property and had profited through the efforts made by the plaintiff to sell the
property. That is not supported by the evidence. The ownership of the property was not an
issue in the cause and there was no allegation that the bank at any time was ever the owner or
had any interest whatever in the property. An effort was made during the trial to show that
there was a $12,500 indebtedness due the bank from the property, but this $12,500 was
shown to be money advanced by the Scheeline Banking & Trust Company at the request
of A. D. Castro, and the bank looked to A. D. Castro and not to the property for its money,
hence the bank had no interest in the property except such interest it would have in
discharging the duties it had assumed with reference of A. D. Castro.
was a $12,500 indebtedness due the bank from the property, but this $12,500 was shown to
be money advanced by the Scheeline Banking & Trust Company at the request of A. D.
Castro, and the bank looked to A. D. Castro and not to the property for its money, hence the
bank had no interest in the property except such interest it would have in discharging the
duties it had assumed with reference of A. D. Castro. And all parties informed the plaintiff
that Mr. Castro, as the representative of the bondholders, was the one that had to be satisfied
and that Mr. McGuire was the representative of Mr. Castro here and not the Scheeline
Banking & Trust Company. The rule in these cases is correctly stated in the 23 American and
English Ency. of Law, pp. 911 and 912.
There are many cases holding that where the owner accepts a broker's services with
knowledge that he expects to be paid therefor the owner is liable. In this case it is shown that
the real owner in fact is A. D. Castro and his associates and Mr. McGuire was the
representative here of A. D. Castro. The fact that the bank advanced money, bid in the
property at the request of A. D. Castro and then forwarded moneys and offers to purchase to
Mr. Castro could, by no process of reasoning, make it liable for a broker's fee in selling the
property. Miller v. Loser, 121 P. 156; Duncan v. Borden, 13 Colo. App. 481, 59 P. 60;
Weinhouse v. Cronin, 68 Conn. 250, 36 Atl. 45; Viley v. Pettit, 96 Ky. 576, 29 S.W. 438, 16
Ky. Law Rep. 650; Nolan v. Swift, 111 Mich. 56, 69 N.W. 96; Everett Co. v. Cumberland G.
M. Co., 112 Wis. 544, 88 N.W. 597.
The only relationship the Scheeline Banking & Trust Company had to the property was
merely as trustee for the title to convey it to such persons as Mr. Castro or his agent might
designate, but no such allegation was set up in the complaint nor is there any effort made to
show an implied contract or an interest of the defendant in the property itself. Judgments
must accord with and be warranted by the pleadings of the party in whose favor it is
rendered. Black on Judgments, vol. I, sec. 183; Frebert v. Henry, 14 Nev. 191; Marshall et
al. v.
Marshall et al. v. Golden Fleece G. & S. M. Co. et al., 16 Nev. 156.
Walter M. Kennedy, for Respondent:
There is no question whatever about the following legal propositions: That a person who
employs a broker to sell a property for an undisclosed principal is liable for his compensation;
that if an agent who is authorized to sell property authorizes a broker to obtain a purchaser for
the same, the agent is liable for the services performed by the broker; that if anyone requests
another to perform services for them and the other person performs such services, the person
requesting such services is liable for the reasonable value of the same.
There is no question but what the bank held the legal title to the Nightingale property at
the time of the procuring of a purchaser and that thereafter they acquired the title free from all
encumbrance at a foreclosure sale in order that they might sell the property to the purchaser
obtained by Tamney, and that the bank, through its vice president and general manager, Mr.
Shockley, had told Tamney that McGuire was handling the property, and that McGuire had
told Tamney to go to it, in reply to Tamney's statement that he thought he could obtain a
purchaser, and that at the very time the bank had obtained title to the property so that it could
be sold they knew that the plaintiff expected to be paid for his services.
It is hardly necessary to go into any discussion of the law in regard to implied contracts.
Perhaps the case of Millard v. Loser, 129 P. 156, states the rule as well as any case.
In regard to the contention that the bank was not the actual owner of the property, the rule
stated in 9 C.J. 586 is that one who employs a broker to find a purchaser is usually liable for
compensation regardless of the nature of his interest in the property and regardless of whether
he has any interest in it whatsoever.
In addition to this, it is respectfully submitted that at the time the sale was made the bank
owned the property; that it was being conducted at a loss of $300 per month; that the
bank had approximately $12,500 invested in receiver's certificates and assignments of
wage claims, and stood to lose a very considerable amount of money if the property was
not sold, and sold quickly.
property; that it was being conducted at a loss of $300 per month; that the bank had
approximately $12,500 invested in receiver's certificates and assignments of wage claims, and
stood to lose a very considerable amount of money if the property was not sold, and sold
quickly. The amount of the judgment in this case is, according to the testimony of Mr.
McGuire, a sum equal to what it would cost to keep the property for one hundred days.
OPINION
By the Court, Ducker, C.J.:
This action was brought to recover a commission alleged to be due on account of services
rendered in effecting a sale of mining property. The parties will be referred to as designated in
the lower court. Plaintiff sued for the sum of $2,250 and recovered judgment in the sum of
$1,000. The defendant has appealed from the judgment and order denying its motion for a
new trial.
The complaint alleges that, on or about the month of March, 1927, the parties entered into
an oral agreement by the terms of which the plaintiff was employed as a broker to find a
purchaser for certain mining property situated at Nightingale, Pershing County, Nevada, in
which it was agreed that in the event the plaintiff found such purchaser the defendant would
pay him for such services an amount equal to 10 percent of the sale price received. It is
alleged that on or about the 25th of November, 1927, plaintiff found a purchaser for the
property, and the defendant sold said property to this purchaser for the sum of $22,500. As a
second cause of action it is alleged that at the special instance and request of defendant, the
plaintiff performed services as a broker for the defendant in finding a purchaser for said
mining property, and that the reasonable value of said services is the sum of $2,500. These
allegations are denied in the answer. The case was tried before the court sitting without a
jury.
the court sitting without a jury. The following facts are undisputed:
For about two years prior to the trial of this action, on April 6, 1928, W.A. Shockley had
been the receiver of the Pacific Smelting & Mines Company, and was also vice president and
general manager of the defendant bank. During the receivership the defendant had loaned the
receiver $5,000 on receiver's certificates, had taken by assignment a number of labor claims
against the insolvent company, and had made advances for taxes and care of the property
amounting in all to the sum of $12,500. On September 4, 1926, the receiver sold the real
property in his hands to the defendant for $100, and the personal property to one R.A.
McGuire for $100. There was then an outstanding indebtedness against said insolvent
company in the amount of $250,000, represented by bonds held by persons residing in
Honolulu, which bonds were secured by a trust deed of said property. Thereafter the
defendant purchased the property at a sheriff's sale on the foreclosure of said trust deed. In the
meantime the plaintiff had interested one John G. Clark, president and general manager of the
Tungsten Production Company, Inc., of Colorado, in the property, and it was subsequently
sold to this company by the defendant for the sum of $22,500 in cash. It is for bringing about
this sale that plaintiff claims a commission.
It was under an agreement made by the defendant and the representatives for the
bondholders that the receivership sale was made and the property bid in by defendant, and
under a similar arrangement by the defendant and the representatives of the bondholders and
of the Tungsten Production Company, that the foreclosure sale was made by which the
defendant became the purchaser. The receivership sale and the foreclosure sale were both
made to the defendant for the purpose of facilitating the sale of the property to the Tungsten
Production Company. The defendant retained $12,500 of the $22,500 received for the
property and distributed the balance, or $10,000, according to an agreement it had with one
A.D. Castro of Honolulu, who held a power of attorney from bondholders representing
more than $150,000 of the $250,000 indebtedness of the insolvent company.
to an agreement it had with one A.D. Castro of Honolulu, who held a power of attorney from
bondholders representing more than $150,000 of the $250,000 indebtedness of the insolvent
company. The $12,500 advanced by the defendant was advanced at the request of said Castro
acting as the representative of said bondholders. The court found as follows:
The court finds that the allegation as to the existence of an express contract set forth in
plaintiff's first cause of action is not supported by the evidence. As to plaintiff's second cause
of action, the court finds that the plaintiff was instrumental in securing a purchaser and in
making the sale of the property mentioned in plaintiff's complaint for the sum of $22,500, and
that the reasonable value of plaintiff's said services in that connection is $1,000 instead of
$2,250 as alleged in plaintiff's second cause of action. The court further finds that there was
an implied contract existing between the defendant and plaintiff for plaintiff's services in
obtaining a purchaser for the said property and that there is now due from defendant to
plaintiff the sum of one thousand ($1,000) dollars for such services * * * together with his
costs of suit.
1-4. It is contended that the finding of an implied contract on which the judgment was
rendered was unauthorized, for the reason that there is no allegation in the complaint that the
defendant was the owner of the mining property, or no evidence to prove such ownership. In
support of this contention it is argued that the evidence shows that the defendant held the title
to the property as a mere trustee for the real owners, who were the bondholders. A trustee,
however, may become liable to one for compensation for effecting a sale of the trust estate.
26 R.C.L. 1316, 1317. Ownership, or the character of the ownership of property by a person
from whom a broker's compensation is claimed for effecting its sale, is immaterial and need
not be alleged or proved in an action for the recovery of such compensation. The right of a
broker to a commission for the sale of property depends upon a contract of employment,
express or implied.
contract of employment, express or implied. 4 R.C.L. pp. 297, 298. One who employs a
broker to find a purchaser is usually liable for the compensation regardless of the nature of his
interest in the property, and regardless of whether or not he has any interest in it whatsoever.
9 C.J. p. 586. We perceive no logic in the claim that the contract may not be implied.
5. The evidence in this case shows without dispute that plaintiff was instrumental in
bringing about the sale of the property from the defendant to the Tungsten Production
Company, Inc. There is also, in our opinion, sufficient evidence from which a promise on the
part of Shockley as the agent of defendant to pay the plaintiff a reasonable compensation may
be inferred.
The judgment is affirmed.
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53 Nev. 13, 13 (1930) Chartz v. Cardelli Et Al.
CHARTZ v. CARDELLI Et Al.
No. 2909
September 11, 1930. 291 P. 311
1. Mortgages.
First mortgagee redeeming premises purchased at tax sale by second mortgagee held not to acquire
title.
Rev. Law, sec. 3651, par. 4, as amended by Stats. 1925, c. 172, sec. 9, confers only upon a
mortgagee the right of redeeming property if sold for taxes, since the language used does not purport
to confer upon the county treasurer the authority to execute a deed to one redeeming from a tax sale,
and the revenue act, Rev. Laws, sec. 3653, as amended, Stats. 1923, p. 361, c. 203, sec. 3, provides
the condition upon which and the person to whom a treasurer's deed may be executed, and the only
person to whom such deed may be executed is the purchaser at the tax sale, or his assignee.
2. Statutes.
Court must construe statute with doubtful meaning so as to avoid absurd, harsh, and unjust results.
Appeal from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge. Action by
Alfred Chartz against Carmelinda Cardelli and others.
Action by Alfred Chartz against Carmelinda Cardelli and others. Judgment of dismissal,
and the plaintiff appeals. Affirmed. (See, also, 52 Nev. 278, 286 P. 125.)
John M. Chartz, for Appellant:
The Statutes of 1925, p. 270, sec. 39, subdivision 4, provides for the redemption from
delinquent tax sales, with the following proviso: that such redemption may be made in
accordance with the provisions of the civil practice act of this state in regard to real property
sold under execution. The sections of the civil practice act referred to are secs. 5300 and
5301. Sec. 5300 is what appellant claims supports his second cause of action, if the court
cannot hold in his favor in his first cause of action. Under sec. 5301, if the debtor redeem, the
effect of the sale is terminated, and he is restored to his estate. In support of appellant's deed,
attention is called to the Statutes of 1923, at p. 361, amending sec. 41 of the revenue act. Our
supreme court has construed that statute in the case of Menteberry v. Giacometto, 51 Nev. 7.
The act of 1923 is a wise and beneficent act, and establishes an economic policy. It is not
alone in making such provision, as witness Fagor v. Campbell, 5 Watts (Pa.) 288; Strauch v.
Shoemaker, 1 Watts and S. (Pa.) 166; Glass v. Gilbert, 58 Pa. St. 266.
Rev. Laws of Nevada, 1912, sec. 3619, provides: Every tax levied under the provisions or
authority of this act is hereby made a lien against the property assessed * * *. Sec. 3675,
being sec. 53, amended Statutes 1927, at p. 272, provides that judgment may be entered
against the real estate, improvements, etc. The case of Lyon County v. Ross, 24 Nev. 102,
shows that such deeds convey the fee, and initiate a new title, and that former titles are
eliminated. See, also, Black on Tax Titles, secs. 420 and 425; Cooley on Taxation (3d ed.),
1052. Now, there is no magic in words, and the fact that the parties agreed to call the
transaction a redemption,' will not make it anything else that a sale. Black on Tax Titles,
sec. 369. Evidently it is a redemption during the period granted by statute within which a
legal redemptioner may redeem, but at the expiration of such time the transaction
automatically becomes a deed of absolute conveyance.
which a legal redemptioner may redeem, but at the expiration of such time the transaction
automatically becomes a deed of absolute conveyance.
A tax deed may be held to be a redemption as to some, and a purchase as to others. Cooley
on Taxation (4th ed.), 1566.
The cases that support the rule that a mortgagee cannot affect the rights of the mortgagor
by purchasing property at a sale for delinquent taxes accruing on the premises, are either
made in states where the common law prevails as to the character of the mortgages, or in
actions in which the mortgagee was in actual possession of the premises. Waterson v.
Devoe, 18 Kan. 232. That case is on all fours with the case at bar, and the statute of Kansas is
on all fours with Nevada statute, sec. 5518, Rev. Laws, 1912.
Green & Lunsford and Wm. M. Kearney, for Respondents:
Appellant cannot defeat the lien of the mortgage by buying the property at a sale for taxes.
Where land is incumbered by a mortgage neither the mortgagor nor a purchaser from him,
who has assumed the mortgage, can defeat the lien of the mortgage by buying the property at
a tax sale for taxes. It is also quite generally held that the mortgagee in similar circumstances
cannot oust the title of the mortgagor by a purchase at tax sale. And neither of two successive
mortgagees of the same land can divest a lien of the other by such a purchase. 37 Cyc. p.
1347. See, also, U.S.F. & G. Co. v. Marks, 37 Nev. 306; Shepard v. Vincent (Wash.), 80 P.
777.
As to Rev. Laws, sec. 3653, as amended by Stats. 1923, p. 361, which appellant charges
has not been given the full meaning by the decision of the court below, we particularly direct
attention to the fact that it is clearly limited by the context to the regularity of the proceedings
by public officers from the assessment by the assessor, inclusive, up to the execution of the
deed. It has nothing to do with the obligations which recipient of the deed has voluntarily
assumed toward third persons.
the deed has voluntarily assumed toward third persons. As to such obligations the doctrine of
constructive fraud has full application.
We submit that the language of the supreme court of Washington, in the case of Shepard v.
Vincent, supra, quoting with approval the supreme court of Illinois, states the rule to be
applied to the appellant in the case at bar, in 80 P. at p. 77, near the bottom of column 1.
Many of the authorities cited by appellant deal only with the general effect of tax deeds
and tax titles, and with these we have no need to deal for the reason that the infirmity of the
plaintiff's position grows out of the obligations which he has voluntarily assumed toward the
court in the prior action and toward the parties therein, and not out of any peculiar
construction of the statute.
We believe counsel is mistaken in stating that the cases holding that a mortgagee cannot
oust the rights of his mortgagor, or of another mortgagee, by purchasing at a tax sale are
confined to states where the common law prevails as to the character of the mortgages. We
have already cited the case of Shepard v. Vincent, 80 P. 777, decided where the code system
prevails. Moreover, the same rule prevails in California, another code state. 24 Cal. Juris.,
Taxation, p. 358, sec. 334.
OPINION
This is an action in effect to quiet title to an interest in real estate.
The complaint alleges that plaintiff held a first mortgage upon an interest in a certain
ranch, executed by Tancredi Cardelli, and that Carmelinda Cardelli held a second mortgage
thereupon; that plaintiff brought suit to foreclose his mortgage, making both Tancredi
Cardelli and Carmelinda Cardelli parties defendants, in which a judgment and decree was
entered (see Chartz v. Cardelli, 52 Nev. 1, 279 P. 761); that the interest in the real estate
covered by the two mortgages mentioned was sold for taxes in 1927 and bought in by
Carmelinda Cardelli; that in due time the plaintiff redeemed from said tax sale and the
county treasurer executed and delivered to him a tax deed conveying said interest so
covered by said mortgages; that on September 16, 192S, Tancredi Cardelli died, leaving a
will by which he left his entire estate to his widow and children.
sold for taxes in 1927 and bought in by Carmelinda Cardelli; that in due time the plaintiff
redeemed from said tax sale and the county treasurer executed and delivered to him a tax
deed conveying said interest so covered by said mortgages; that on September 16, 1928,
Tancredi Cardelli died, leaving a will by which he left his entire estate to his widow and
children. It is alleged in the complaint that said will has never been probated.
The widow of Tancredi Cardelli and his children are joined as parties defendant with
Carmelinda Cardelli.
The heirs of Tancredi Cardelli and Carmelinda Cardelli filed separate demurrers to the
complaint, urging several grounds therefor.
The demurrers were sustained, and, the plaintiff electing not to amend his complaint,
judgment was entered dismissing the suit. It is from the judgment thus rendered that the
plaintiff has appealed.
While several questions are discussed in the briefs and in the oral argument, we think it
necessary to consider but one, and that is whether the so-called tax deed vested titled in the
plaintiff.
It is the contention of the plaintiff that paragraph 4, sec. 3651, Rev. Laws, the same being
the revenue law of the state, as amended by chapter 172, sec. 9, Stats. 1925, empowered the
county treasurer to convey the interest in the property which was sold to Carmelinda Cardelli
for taxes in 1927, and redeemed by the plaintiff, as effectively as a sheriff could do pursuant
to section 359, civil practice act, Rev. Laws, sec. 5301.
The chapter, of which the section last mentioned is a portion, deals with the satisfaction of
judgments by levy and sale under execution and the redemption therefrom. Section 357 of the
act (Rev. Laws, sec. 5299) provides who may redeem from such a sale; such persons being
the judgment debtor, or his successor in interest, a creditor having a judgment lien or
mortgage on the property sold.
The section designates a mortgagee who redeems a redemptioner.
Section 359 of the act (Rev. Laws, sec. 5301), so far as here material, reads: "If the
property is so redeemed by a redemptioner, either the judgment debtor or another
redemptioner may, within sixty days after the last redemption, again redeem it from the
last redemptioner, by paying the sum paid on such last redemption with two per cent
thereon in addition, and the amount of any assessments or taxes which the said last
redemptioner may have paid thereon after the redemption by him, with interest on such
amount, and in addition, the amount of any liens held by said last redemptioner prior to
his own, with interest; provided, that the judgment under which the property was sold
need not be paid as a lien.
far as here material, reads: If the property is so redeemed by a redemptioner, either the
judgment debtor or another redemptioner may, within sixty days after the last redemption,
again redeem it from the last redemptioner, by paying the sum paid on such last redemption
with two per cent thereon in addition, and the amount of any assessments or taxes which the
said last redemptioner may have paid thereon after the redemption by him, with interest on
such amount, and in addition, the amount of any liens held by said last redemptioner prior to
his own, with interest; provided, that the judgment under which the property was sold need
not be paid as a lien. The property may again, and as often as the debtor or redemptioner is
disposed, be redeemed from the officer making the sale, within sixty days after the last
redemption, with two per cent thereon in addition, and the amount of any assessments or
taxes which the last previous redemptioner shall have paid after the redemption by him, with
interest thereon, and the amount of any liens, other than the judgment under which the
property was sold, held by the said last redemptioner previous to his own, with interest.
Written notice of the redemption must be filed with the recorder of the county; and if any
taxes or assessments are paid by the redemptioner, or if he has or acquires any lien other than
that upon which the redemption was made, notice thereof must be given to the sheriff and
filed with the recorder; and if such notice is not filed, the property may be redeemed without
paying such tax, assessment or lien. If no redemption is made within six months after the sale,
the purchaser or his assignee is entitled to a conveyance; or if so redeemed, whenever sixth
days have elapsed, and no other redemption has been made, and notice thereof given, and the
time for redemption has expired, the last redemptioner or his assignee is entitled to a sheriff's
deed. * * *
The revenue act pertains to the levying of taxes, the sale and redemption of property, and
kindred matters. Section 3651, Rev. Laws, as amended, alludes particularly to the notice of
sale and the matter which must be stated to such notice; paragraph 4 provides that the
notice of sale shall state: "That said property will be sold for all of said taxes, penalties,
and costs, specifying the time and place of said sale, and that such sale is subject to
redemption within one year after the date of sale by payment of said taxes, penalties, and
costs, together with three {3%) per cent per month thereon from date of sale until paid;
provided, that such redemption may be made in accordance with the provisions of the
civil practice act of this state in regard to real property sold under execution.
be stated to such notice; paragraph 4 provides that the notice of sale shall state: That said
property will be sold for all of said taxes, penalties, and costs, specifying the time and place
of said sale, and that such sale is subject to redemption within one year after the date of sale
by payment of said taxes, penalties, and costs, together with three (3%) per cent per month
thereon from date of sale until paid; provided, that such redemption may be made in
accordance with the provisions of the civil practice act of this state in regard to real property
sold under execution. * * *
It is this quoted language which it is claimed, by reference to Rev. Laws, sec. 5301,
conferred upon the county treasurer the authority to execute the deed in question.
1. We are not in accord with the contention that the deed executed by the county treasurer
to the plaintiff vested a title in him.
As we read the portion of paragraph 4, sec. 3651, Rev. Laws, pertaining to tax sales, above
quoted, the only right which it was intended to confer upon a mortgagee was that of
redeeming the property sold for taxes. We are of that opinion for two or three reasons. Firstly,
the language used does not purport to confer upon the county treasurer the authority to
execute a deed to one redeeming from a tax sale. Furthermore, the revenue act of this state,
section 3653, Rev. Laws, as amended, Stats. 1923, p. 361, c. 203, sec. 3, provides the
condition upon which and the person to whom a treasurer's deed may be executed, and the
only person to whom such deed may be executed is the purchaser at the tax sale, or his
assignee. The fact that the act limits the authority of the treasurer in executing a deed to the
purchaser at the tax sale, or his assignee, is conclusive on the question.
2. If there were any doubt on this question it would be our duty to construe the statute so
as to avoid absurd, harsh, and unjust results. If we were to give the statute in question the
construction contended for, it would likely result in much hardship. For instance, should a
person give three mortgages upon a property worth $25,000, the first being for $2,000,
the second for $3,000, and the third for $5,000, it would be possible for the holder of the
first mortgage to redeem from a sale for taxes to the third mortgagee and obtain a deed
for the property, thereby cutting off the rights of the second and third mortgagees,
whereas the first mortgagee might in a foreclosure suit recover every cent he paid out in
redeeming the property from the tax sale.
give three mortgages upon a property worth $25,000, the first being for $2,000, the second for
$3,000, and the third for $5,000, it would be possible for the holder of the first mortgage to
redeem from a sale for taxes to the third mortgagee and obtain a deed for the property,
thereby cutting off the rights of the second and third mortgagees, whereas the first mortgagee
might in a foreclosure suit recover every cent he paid out in redeeming the property from the
tax sale.
The conclusion which we have reached seems to be right not only from the plain wording
of section 3651, Rev. Laws, as amended, and the revenue act as a whole, but also from a
consideration of the purpose of section 5301, Rev. Laws, and the difference in the situation
which is presented under a tax deed and under a sheriff's deed issued pursuant to a sale under
an execution. One who acquires title under an execution sale would take the same subject to
the rights of a prior mortgage lien, whereas the acquisition of a valid tax deed cuts off the
rights of a prior valid mortgage. It certainly could not have been the intention of the
legislature to produce such a result.
While we do not deem it necessary to determine any of the other questions discussed in
this case, we may properly say, in view of the insistent contention of appellant based on the
fact that the will of Tancredi Cardelli has never been probated, that they have their recourse
pursuant to sections 5858 to 5882, inclusive, and section 6671, Rev. Laws.
Perceiving no error in the judgment, it is ordered that it be affirmed.
November 19, 1930.
Per Curiam:
Rehearing denied.
____________
53 Nev. 21, 21 (1930) Chessman v. Hillhouse, Sheriff, Et Al.
CHESSMAN v. HILLHOUSE, Sheriff, Et Al.
No. 2887
September 29, 1930. 291 P. 704.
1. Appeal and Error.
Transcript prepared pursuant to repealed section cannot be considered on appeal. (Rev. Laws, sec.
5356.)
Appeal from Second Judicial District Court, Washoe County; Frank T. Dunn, Judge.
Suit by Dudley C. Chessman against John D. Hillhouse, as Sheriff, and another. From an
order denying the relief prayed for, and denying a motion for a temporary restraining order,
plaintiff appeals. Affirmed.
G. Gunzendorfer, for Appellant:
The record on this appeal strictly conforms to the requirements of section 5356 Rev. Laws,
in that, this being an appeal from an order, the appellant has furnished this court with a copy
of the notice of appeal, the order appealed from and a copy of the papers used on the hearing
in the court below, the same being certified by the clerk as having been used on the hearing
and as being correct. The certification of the clerk is all that is called for by this section. The
section, it is true, also requires that there be furnished a statement, if there be one. The
wording of the section implies that there need be no statement (bill of exceptions). It is
conceded that if oral or certain documentary evidence were produced at the hearing it would
be necessary to embody the same in a bill of exceptions. But if affidavits were used, they
would be among the papers which the clerk is required to certify, and these would not have to
be incorporated in a bill of exceptions. The clerk's minute of the proceedings on the hearing,
however, clearly shows that only an argument was presented to and heard by the court. It does
not show that any witnesses were sworn and examined or that any documentary evidence or
affidavits were submitted. And this court ought not, in the face of the clerk's minute, assume
that there were any of these. Especially is this true when respondents admit in their brief that
the matter was submitted "solely upon the order issued at the request of plaintiff."
the matter was submitted solely upon the order issued at the request of plaintiff.
W.M. Kearney and Sidney W. Robinson, for Respondents:
Examination of the papers constituting the so-called record on appeal will disclose the fact
that the same is composed solely of certified copies of the pleadings on file in the district
court, together with a certified copy of the minute order from which the present appeal is
taken. This fails to meet the requirements of sec. 414 of the civil practice act (sec. 5356 Rev.
Laws, 1912), inasmuch as the so-called record on appeal does not contain anything to show
what proceedings were had before the lower court upon the hearing of the order to show
cause. There is nothing to show what papers were used upon the hearing; there is nothing to
show what testimony or other evidence, if any, was before the lower court in support of, or
against, the granting of a permanent injunction; consequently, this court on appeal is without
any record from which to determine whether or not the lower court heard any testimony. This
being the case, appellant's statements to the effect that no testimony, evidence or other proof
was presented are without foundation in the record.
In the absence of a statement or bill of exceptions, the appellate court may only consider the
judgment roll alone, and counsel is not permitted to go beyond the papers which are sent up
on appeal. Werner v. Babcock, 116 P. 357; McCausland v. Lamb, 7 Nev. 238; Neil v. Daniel,
4 Nev. 436.
OPINION
This is a suit to enjoin a sale under an execution issued against a third party who has no
interest of record in the real estate sought to be sold, upon the theory that such sale would cast
a cloud upon the title of plaintiff, who alleges that he is the sole owner of the property.
Upon the filing and reading of the verified complaint, the court below entered an order
directing the defendant to show cause why an injunction should not issue. On the day of the
hearing the court entered an order, which, omitting the formal portions thereof, reads as
follows: The court being fully advised in the premises, ordered that the relief prayed for be
not granted, and that the motion for a temporary restraining order be, and the same is denied.
It was from this order that an appeal was taken.
Counsel for respondents contend that the judgment must be affirmed, for the reason that
the so-called record on appeal is insufficient to justify this court in reversing the judgment.
The record which was filed was prepared, as stated by counsel for appellant, pursuant to
section 414 of the civil practice act, section 5356, Rev. Laws.
This court has repeatedly held that the section mentioned has been repealed and is no
longer of force and effect. Some of the decisions so holding are Water Co. v. Belmont Dev.
Co., 49 Nev. 172, 241 P. 1079; Nevada First Nat. Bank v. Lamb, 51 Nev. 158, 271 P. 693.
In view of the fact that the section pursuant to which the so-called transcript was prepared
has been repealed, such transcript cannot be considered.
Counsel for respondents insist that the so-called record is insufficient to justify the reversal
of the order, even if the section mentioned were still in force. This contention is based upon
the fact that it does not appear from the certificate of the clerk that the so-called record is full
and complete, as contemplated by the section.
For a full understanding of the situation on the day of the hearing, the respondents filed
separate demurrers to the complaint. Counsel for appellant contends that the hearing was had
upon them alone, whereas counsel for respondents contend that the matter was not considered
upon the demurrers, but upon proof, and, there being no bill of exceptions in the record, the
order must be affirmed. While it is immaterial, we may observe that the order does not
indicate a ruling upon the demurrers.
From a reading of the section in question, if it were still in force, it is clear that it must
appear from the certificate of the clerk that all of the papers, affidavits, and evidence
used upon the hearing before the lower court are in the record.
still in force, it is clear that it must appear from the certificate of the clerk that all of the
papers, affidavits, and evidence used upon the hearing before the lower court are in the
record. There being no such showing in the certificate, the record is not such as would justify
a reversal of the judgment. Lady Bryan Gold & Silver M. Co. v. Lady Bryan M. Co., 4 Nev.
414; Thompson v. Reno Sav. Bank, 19 Nev. 293, 9 P. 883.
There being no record before the court which it can consider, the judgment must be
affirmed.
It is so ordered.
____________
53 Nev. 24, 24 (1930) In Re Scott
In Re SCOTT
No. 2864
October 15, 1930. 292 P. 291.
1. Attorney and Client.
Supreme court, on review of a decision of disbarment or suspension of an attorney by the board of
governors of the state bar, is not bound by findings or recommendations made by local administrative
committee, nor their adoption by the board of governors, and shall examine the entire record anew to
ascertain whether or not any charge has been proven which merits disbarment or suspension,
uninfluenced in whole or in part by the action taken by the board or committee. (Stats. 1928, Special
Session, p. 13, c. 13, sec. 26.)
2. Statutes.
Constitutional provision against the passage of special acts conferring corporate powers applies in
strictness only to purely private corporations. (Const., art. 8, sec. 1.)
3. Statutes.
State bar act held not violative of provisions of sec. 1, art. 8 of constitution prohibiting formation of
corporations by special act except for municipal purposes. (Stats. 1928, Special Session, c. 13.)
The term municipal purposes in its broadest sense is used to include those public
corporations, the purpose of whose creation is an instrumentality of the state in the administration
of civil government, and not for the regulation solely of the local and special affairs of a compact
community. The fact that the Nevada state bar has, for the purpose of carrying into effect and
promoting the objects of the corporation, the right to enter into contracts and acquire, hold,
incumber, dispose of, and deal in and with real and personal property, does not change its public
character and purpose and make it a corporation for pecuniary benefit.
53 Nev. 24, 25 (1930) In Re Scott
4. Constitutional Law.
State bar act held not unconstitutional as investing board of governors with judicial powers. (Stats. 1928,
Special Session, c. 13, sec. 26; Const., art. 3, sec. 1.)
Decision of board of governors is merely in the nature of a recommendation, and the only
orders which have the effect of working disbarment or suspension are the final orders of the
supreme court.
Right to practice law is a privilege subject to the control of the legislature.
6.Attorney and ClientConstitutional Law.
State bar act held not void as giving board of governors power to deprive attorney of property without
due process of law. (Stats. 1928, Special Session, c. 13, sec. 26.)
Even if the right to practice law were regarded as a property right, provision is made for a full
and complete hearing of all complaints lodged against a member of the bar, and for review before
the board of governors and by the supreme court.
State bar act held not void in that those engaged in the practice of law are compelled to accept
membership in a corporation in order to practice their profession. (Stats. 1928, Special Session, c. 13.)
Supreme court only has the power to disbar or suspend an attorney. (Rev. Laws, sec. 511; Stats. 1928,
Special Session, c. 13.)
Board of governors or any local administrative committee of the Nevada state bar, in the
performance of their statutory powers, acts as merely an intermediary agency for the taking of
evidence and reporting thereon to the supreme court.
State bar act held not illegal because of provision conferring the power on board of governors or local
administrative committee to initiate and conduct investigations of charges against attorneys without the
filing and presentation of a complaint. (Stats. 1928, Special Session, c. 13, sec. 34.)
State bar act held not void because it authorizes a member of any local administrative committee, or a
member of the board of governors, to prefer charges against an attorney and then to sit as a member of
the committee, or board, for the consideration of the charges so preferred.
Attorney practicing law under a firm name which included the name of an attorney who was not
admitted to practice in the courts of the state, with whom he had not been associated in practice, and with
whom he had no relation, held guilty of misconduct.
53 Nev. 24, 26 (1930) In Re Scott
Introduction in evidence in disciplinary proceedings before board of governors of state bar of letters
which attorney did not positively deny having written or subscribed held not prejudicial, notwithstanding
claim that they were improperly obtained.
Misconduct of attorney in practicing law under firm name which included name of attorney with whom
he was not associated, and in forwarding improper letters to defendants in divorce actions, warranted
suspension for period of one year.
Proceedings by Frank B. Scott to review a resolution of the Board of Governors of the
State Bar approving findings of the Local Administrative Committee of Washoe County and
recommending that petitioner be suspended from the practice of law for a twelve months'
period. Suspension ordered in accordance with recommendation.
James T. Boyd, for Petitioner:
The petitioner believes that the record itself discloses that not only was the action of the
board of governors and the local administrative committee and their proceedings illegal, but
were also prejudicial; that they, by statements made to the petitioner, not only acted
ill-advisedly, but they led the petitioner to believe that what they were doing was
investigating his particular conduct, to determine if there were sufficient facts upon which
they could base formal charges against him. When the petitioner appeared before the
committee at the time set there was no complaint on file, nor was he ever informed by whom
a complaint or charge had been made; nor was any formal charge or complaint served upon
the petitioner, other than the notice given to him, as appears in the record.
It is evident from the transcript of the proceedings that the committee was taking in
considerable territory in the investigation of Mr. Scott's conduct, and was proceeding on the
theory from the start of the proceedings that he was actuated by improper motives and
without regard to what is ordinarily considered the ethics of the profession, and had
deliberately lowered the high tone of the Reno bar.
53 Nev. 24, 27 (1930) In Re Scott
the high tone of the Reno bar. And the findings and recommendation made by the local
administrative committee and adopted by the board of governors of the Nevada state bar are
not quite in keeping with the statements made to petitioner to the effect that it was merely an
investigation on which formal charges might be preferred.
Certainly the advertisement in the telephone directory does not either violate the laws of
the state nor the rules of the Nevada barand particularly the rules of the state bar of
Nevada, which had not been adopted at that time or at least had not been received by any of
the attorneys. There is nothing fraudulent in the advertisement; no one has been defrauded, or
if so, the record does not disclose it; nor has anyone been misled, so far as the record shows.
The only law we have in this state with reference to advertising is sec. 6462 Rev. Laws,
which relates to advertising for divorce business; and certainly there was nothing in the
telephone directory that indicated what particular specialty in the law business, if any, the
firm of Abbott & Scott practiced.
Aside from the testimony of Mr. Cooke, who stated that Mr. Shapro told him so, there
was no evidence offered showing or tending to show that the letters complained of were from
Mr. Scott's desk; and, as against this, we have petitioner's emphatic denial that he wrote the
letters and that they were ever seen or heard of by him. Nevertheless, they are the basis of
finding Mr. Scott guilty of writing threatening letters to the wives that were defendants in
certain cases.
The action of the legislature in creating the Nevada state bar is in direct contravention of
article 8, section 1, of the constitution of the State of Nevada, in that the legislature not only
attempted to create a corporation for special purposes and a special class, but also attempted
to delegate to that corporation the powers and duties of a constitutional court, giving it the
right to take away from individuals vested rights, and leaving nothing for the constitutional
court to do unless a petition for review is filed, which would be merely to give approval of
the state bar actions in taking away the vested rights of a lawyer and be merely a rubber
stamp for a corporation committee.
53 Nev. 24, 28 (1930) In Re Scott
for review is filed, which would be merely to give approval of the state bar actions in taking
away the vested rights of a lawyer and be merely a rubber stamp for a corporation committee.
A man's right to practice law in this state is a vested property right. Ex Parte Dixon, 43
Nev. 200; Ex parte Garland, 4 Wall. (U.S.) 333. Therefore section 34 of the act creating the
state bar of Nevada is absolutely unconstitutional. Under that section a man can be deprived
of a valuable civil right by members of a corporation sitting as a committee, which would be
in utter defiance of the constitutional prohibition against depriving any person of his property
except by due process of law.
John D. Hoyt and John Donovan, for Respondent:
An examination of the notice served upon petitioner indicates that he has nothing to
complain of in that respect, in that he was fully apprised as to the time and place of the
hearing, and, in addition, was informed as to the nature of the charges which he was expected
to meet. There is nothing in the act incorporating the state bar which requires a formal
summons or complaint to be served upon an attorney charged with misconduct. On the
contrary, section 34 specifically provides that the local committee may proceed at any time
and without formal charges of any kind, it being evidently contemplated by the legislature
that in the average case no charge could be made until the matter had been investigated and
the truth of the situation had been ascertained.
The fraudulent use of a fictitious firm name has been held to be ground for disbarment.
People ex rel. Deneen v. Hahn, 64 N.E. 342.
Any conduct on the part of an attorney evidencing his unfitness for the confidence and
trust which attend the relation of the attorney and client and the practice of law before the
courts, or showing such a lack of personal honesty or of good moral character as to render
him unworthy of public confidence, constitutes a ground for his disbarment.
53 Nev. 24, 29 (1930) In Re Scott
a ground for his disbarment. Boston Bar Ass'n. v. Greenhood (Mass.), 46 N.E. 568; State v.
Martin (Wash.), 87 P. 1054; State Board of Examiners v. Byrnes (Minn.), 100 N.W. 645. See,
also, Fairfield County Bar v. Taylor, 22 Atl. 441, 13 L.R.A. 767.
The right to practice law may be taken away from an attorney whenever his conduct ceases
to be consistent with membership in a generally honorable profession. It is not necessary to
show that specific acts which are denounced by a statute or other rules have been committed,
as is the case in prosecuting a person for a criminal offense.
It is a well-known canon of construction that when a statute is being assailed as being
unconstitutional that every presumption is in favor of the validity of the act, that all doubts
must be resolved in its favor, and that unless it is clearly in derogation of some constitutional
provision it must be sustained. Vineyard Land & Stock Co. v. District Court, 42 Nev. 1.
There is nothing in the use of the words vested right as used in the case of Ex Parte Dixon,
43 Nev. 200, cited by counsel, which implies that the right to practice law is to be treated as
property as that term is used in the federal and state constitutions. There is, on the other
hand, a wealth of authority that the practice of law is not property within the meaning of
these constitutional provisions. The right to practice law is not a natural or constitutional
right. Ex Parte Yale, 24 Cal. 241; State Bar Commission v. Sullivan (Okla.), 131 P. 703;
State v. Rossman (Wash.), 101 P. 357, 21 L.R.A. (N.S.) 821. It is a privilege subject to the
control of the legislature. Cohen v. Wright, 22 Cal. 293; In Re Bailey (Mont.), 146 P. 1101,
1103. The right to practice law is not a property right. Cohen v. Wright, supra; In Re O'Brien,
63 Atl. 777.
If, however, this court should be of the opinion that the right to engage in the practice of
law is a property right, of which a party cannot be deprived without due process of law, then
we submit that the procedure for suspension and disbarment as prescribed in the state bar act
of Nevada does constitute due process of law within the meaning of both the federal and
state constitutions.
53 Nev. 24, 30 (1930) In Re Scott
bar act of Nevada does constitute due process of law within the meaning of both the federal
and state constitutions. From section 26 of the state bar act it will be seen that the action of
the board of governors and of the local administrative committee is merely preliminary, and
that it becomes effectual only after the findings have been filed with the clerk of the supreme
court and after a reasonable period shall have expired without the filing of a petition for
review. In this respect the state bar act is similar to and is apparently modeled upon the
procedure prescribed by sections 29 to 32 of the water law of this state, as amended in 1915,
with reference to the findings of the state engineer in water adjudications, which were
sustained by the court in the case of Vineyard Land & Stock Co. v. District Court, supra.
In the several states the power of the legislature to regulate both the admission of the
attorneys to practice and their disbarment has long been recognized, and it is held to be
ancillary to and not in any way in derogation of the corresponding inherent power of the
courts. On this matter we cite the very recent case of The State Bar of California v. Superior
Court, reported in the advance sheets of California Decisions, vol. 77, p. 730, and published
as of June 11, 1929.
The adjective municipal, as used in section 1 of article VIII of the constitution of the
State of Nevada, and elsewhere, is generally interpreted to include any agency or body which
is in its nature public or governmental as distinguished from private. Smith v. Board of
Trustees of Roberson Grade School, 53 S.E. 524, 527, 141 N.C. 143, 8 Ann. Cas. 529;
Merchants National Bank of San Diego v. Escondido Irr. Dist., 77 P. 937, 144 Cal. 329; Kent
County Agricultural Society v. Houseman, 46 N.W. 15; Cook v. Port of Portland, 27 P. 263,
13 L.R.A. 533; Bonds of Orosi etc. v. Orosi etc., 235 P. 1004; State v. Port of Astoria, 154 P.
399; Paine v. Port of Seattle, 126 P. 628; Schubel v. Olcott, 120 P. 375; The State Bar of
California v. Superior Court, supra.
53 Nev. 24, 31 (1930) In Re Scott
There can be no doubt but that the state bar of Nevada is a public corporation. Unlike a
private corporation, the term of existence and powers of the state bar are dependent upon the
will of the legislature, and may be changed or terminated at any time by statute (sec. 2 of act).
It has no capital stock and no stockholders and pays no dividends.
OPINION
By the Court, Sanders, J.:
This proceeding was initiated in this court by petition under the provisions of an act
known as the state bar act, approved at the special session of the legislature held in 1928,
entitled:
An Act to create a public corporation to be known as State Bar of Nevada,' to provide for
its organization, government, membership and powers, to regulate the practice of law, and to
provide penalties for violation of said act. Stats. (Special Session) 1928, p. 13 (chapter 13),
Stats. 1928-1929.
Frank B. Scott, the petitioner, a duly licensed attorney, applies to this court for a review
and reversal of a resolution of the board of governors of the state bar of Nevada, which adopts
and approves the findings of the local administrative committee of Washoe County, and its
recommendation that the petitioner be suspended from the practice of law in this state for a
period of twelve months.
The petition for review is presented under section 26 of the act, which provides, inter alia:
Any person so disbarred or suspended may, within sixty days after the filing of said
certified copy of said decision, petition said supreme court to review said decision or to
reverse or modify the same. * * *
1. The first question to arise is: What is meant by the term review as used in this and
other sections of the act? We are in accord with the authorities holding that the supreme
court, on review of a decision of disbarment or suspension of an attorney by the board of
governors of the state bar, is not bound by findings or recommendations made by a local
administrative committee, nor their adoption by the board of governors, and shall
examine the entire record anew to ascertain whether or not any charge has been proven
which merits disbarment or suspension, uninfluenced in whole or in part by the action
taken by the board or committee.
53 Nev. 24, 32 (1930) In Re Scott
governors of the state bar, is not bound by findings or recommendations made by a local
administrative committee, nor their adoption by the board of governors, and shall examine the
entire record anew to ascertain whether or not any charge has been proven which merits
disbarment or suspension, uninfluenced in whole or in part by the action taken by the board or
committee. In Re Stafford (Cal. Sup.) 284 P. 670; In Re Shattuck (Cal. Sup.) 279 P. 998;
McVicar v. State Board of Law Examiners (D.C.) 6 F. (2d) 33, 35.
In view of the fact that this is the first proceeding of the kind to arise under the state bar
act, it is deemed advisable to devote extended discussion to the numerous questions of law
and fact involved for the benefit of later cases brought here for review.
The petitioner makes a number of contentions assailing the constitutionality of the state
bar act, summarized as follows:
1. That section 2 of the act is in violation of section 1, article 8, of the constitution, relating
to the creation of corporations by special acts.
2. That the act is in violation of section 8, article 1, of the constitution, relative to due
process of law.
3. That the act is in violation of article 3, sec. 1, of the constitution, relating to the
distribution of the powers of government.
4. That the act, as a whole, is inimicable to the fundamental principles of our government,
in that by legislative enactment the members of the legal profession are compelled to accept
membership in a corporation in order to follow the calling of their choice.
Section 2 of the act reads as follows:
There is hereby constituted a public corporation to be known as State Bar of Nevada,'
hereinafter designated as the state bar, which shall have perpetual succession and a seal and
may sue and be sued, and which may, for the purpose of carrying into effect and promoting
the objects of said corporation, enter into contracts and acquire, hold, encumber, dispose of
and deal in and with real and personal property. The term of existence and the powers of
said corporation may be changed or terminated at any time by an act of the legislature of
the State of Nevada."
53 Nev. 24, 33 (1930) In Re Scott
existence and the powers of said corporation may be changed or terminated at any time by an
act of the legislature of the State of Nevada.
2, 3. It is contended on the part of the petitioner that this section is in violation of section
1, article 8, of the constitution, which reads:
The legislature shall pass no special act in any matter relating to corporate powers except
for municipal purposes; but corporations may be formed under general laws; and all such
laws may from time to time be altered or repealed.
In the early case (1866) of Mayor, etc., of City of Virginia v. Chollar-Potosi G. & S. M.
Co., 2 Nev. 86, Justice Beatty, after quoting this prohibitory provision, said:
The expression, in any manner relating to corporate powers,' is a rather ambiguous
phrase, but we think the framers of the constitution meant by that language to prohibit the
formation of corporations by special acts. The subsequent language, but incorporations may
be formed under general laws,' shows that was the meaning intended to be conveyed. Then, to
use more appropriate language, the section would read in this way: The legislature shall pass
general laws for the formation of corporations; but no corporation (except corporations for
municipal purposes) shall be created by special act.'
If this is what the constitution meant to express, as transposed the section corresponds with
similar provisions contained in the early and late constitutions of several of the states, as, for
example, the constitution of California approved in 1849 provides:
Corporations may be formed under general laws, but shall not be created by special act
except for municipal purposes. Section 31, article 4.
The question for decision is narrowed to that of whether or not the act creating a public
corporation to be known as the state bar of Nevada, for the government and regulation of the
practice of the law, is within the inhibition interpreted to read: "The legislature shall pass
general laws for the formation of corporations; but no corporation {except corporations
for municipal purposes) shall be created by special act."
53 Nev. 24, 34 (1930) In Re Scott
The legislature shall pass general laws for the formation of corporations; but no
corporation (except corporations for municipal purposes) shall be created by special act.
The authorities hold that:
A constitutional provision against the passage of special acts conferring corporate powers
applies in strictness only to purely private corporations. 1 Thompson on Corporations (3d
ed.), sec. 161.
The state bar act of Nevada is stated in the title, and also in the body of the act, to be a
public corporation. It would seem, therefore, that the foregoing prohibitory provision has no
application, for the reason that the provision is held to refer only to private corporations. State
Bar v. Superior Court (Cal. Sup.), 278 P. 432, 435.
The state bar act of Nevada is conceded to be an exact reproduction of the state bar act of
California. In the case cited, it was held that the regulation of the practice of law as
contemplated by the state bar act of California (Stats. 1927, p. 38) is not such a matter of
purely private concern as to constitute an attempt to provide for the formation of a
corporation, in violation of constitution of California (1879), article 12, sec. 1, which reads:
Corporations may be formed under general laws, but shall not be created by special act.
The holding is based upon the observations contained in the opinion of Justice Richards to
the effect that the body of our citizenry known to the law as attorneys and counselors at law
form an integral and indispensable unit in our system of administering justice, and without
the constant presence and contacts of which courts could not function nor the orderly
administration of justice go on. The profession and practice of law, while in a limited sense a
matter of private choice and concern in so far as it relates to its emoluments, is essentially and
more largely a matter of public interest and concern; the membership, character, and conduct
of those entering and engaging in the legal profession have long been regarded as the proper
subject of legislative regulation and control.
53 Nev. 24, 35 (1930) In Re Scott
been regarded as the proper subject of legislative regulation and control. From these
observations, and others pointed out in the opinion, the court concludes that the state bar act
is not to be regarded and held as an attempt to provide for the formation of a private
corporation.
On the other hand, counsel for petitioner contends that the prohibitory provision that the
legislature shall pass general laws for the formation of corporations, but no corporation,
except for municipal purposes, shall be created by special act, means and has reference to the
creation of corporations for the government of a portion of the state, such as municipalities.
We are not in accord with this construction of the provision. Under constitutions which
provide that corporations shall not be created by special acts, except for municipal purposes,
the term municipal purposes within the provision has been held to be a public or
governmental purpose, as contradistinguished from private purposes. 1 Dillon, Municipal
Corporations (5th ed.), sec. 73. Therefore, the term municipal purposes in its broadest sense is
used to include those public corporations, the purpose of whose creation is an instrumentality
of the state in the administration of civil government, and not for the regulation solely of the
local and special affairs of a compact community.
Under the constitution of California approved in 1849, it was held that a public
corporation can be created, not only by the means and in the manner provided by the general
law, but also by special act, or by implication of law. People v. Reclamation District No. 108,
53 Cal. 346. The legislature of Nevada has undoubtedly, in numerous instances since the
adoption of the constitution of 1864, acted upon the construction that the prohibitory
provisions of section 1, article 8, did not constitute a limitation upon its power to create a
public corporation by special act in the interests of the public welfare or for the public good.
Our conclusion that the prohibitory provision applies only to strictly private corporations is
supported by the objects of the prohibitory constitutional provisions which are conceded to
be to render the formation of corporations convenient and speedy, to secure uniformity in
the law and equality of rights, and laws to prevent the legislature from corruptly or
improvidently granting franchises to particular individuals at the expense of the
community in general, and of making all judicial constructions of their powers, or the
restrictions imposed upon them, equally applicable to all corporations of the same class.
53 Nev. 24, 36 (1930) In Re Scott
are conceded to be to render the formation of corporations convenient and speedy, to secure
uniformity in the law and equality of rights, and laws to prevent the legislature from corruptly
or improvidently granting franchises to particular individuals at the expense of the
community in general, and of making all judicial constructions of their powers, or the
restrictions imposed upon them, equally applicable to all corporations of the same class.
Thompson on Corporations, sec. 162.
Futhermore, we are not prepared to concede that the act creating a public corporation to be
known as the state bar of Nevada is a special act within the constitutional inhibition:
It is true that in the title or body of the act it is not expressly stated in so many words to
be a general law, but it is not necessary so to be, if from the content of the act itself it appears
that it applies to all of the class of persons with respect to which it purports to legislate, and
that as to such classification it is apparently based upon a reasonable distinction. State Bar v.
Superior Court, supra.
It is deemed proper to state that in arriving at the conclusion that the corporation created
by the state bar act is not within the prohibitory provisions of section 1, article 8, of the
constitution, we have considered the Idaho cases Jackson v. Gallet, 39 Idaho, 382, 288 P.
1068; in Re Edwards, 45 Idaho, 676, 266 P. 665. In Jackson v. Gallet it was held that an act
creating the board of commissioners of the Idaho state bar, under which the board has
perpetual succession, the right to receive and grant property in its name or to purchase or hold
property, real or personal, and to have a common seal, created a corporation by special act, in
violation of constitutional article 3, sec. 19, or article 11, sec. 2, of the constitution of Idaho.
In Re Edwards, supra, it was held that the Laws of 1923, c. 211, as amended by the Laws of
1925, cc. 89, 90, creating a board of commissioners of the Idaho state bar, without the rights
incident to those private corporations, did not create a corporation by special act in violation
of the said provision of the Idaho constitution. We do not approve of either the reasoning or
conclusions of the Idaho cases for two reasons: First, the prohibitory provisions of our
constitution apply in strictness only to purely private corporations; second, the fact that
the Nevada state bar has, for the purpose of carrying into effect and promoting the
objects of the corporation, the right to enter into contracts and acquire, hold, incumber,
dispose of, and deal in and with real and personal property, does not change the public
character and purpose of the corporation and make it a corporation for pecuniary benefit.
53 Nev. 24, 37 (1930) In Re Scott
conclusions of the Idaho cases for two reasons: First, the prohibitory provisions of our
constitution apply in strictness only to purely private corporations; second, the fact that the
Nevada state bar has, for the purpose of carrying into effect and promoting the objects of the
corporation, the right to enter into contracts and acquire, hold, incumber, dispose of, and deal
in and with real and personal property, does not change the public character and purpose of
the corporation and make it a corporation for pecuniary benefit.
4. The petitioner contends that section 26 of the state bar act violates section 1 of article 3
of the constitution relative to the distribution of the powers of the government, in that the
section confers upon the board of governors judicial power with respect to the suspension or
disbarment of attorneys. Section 26 reads as follows:
The board of governors shall have power, after a hearing for any of the causes set forth in
the laws of the State of Nevada warranting disbarment, or suspension, to disbar members or
to discipline them by reproval, public or private, or by suspension from practice, and the
board shall have power to pass upon all petitions for reinstatement. The board of governors
shall keep a transcript of the evidence and proceedings in all matters involving disbarment or
suspension and shall make findings of fact and a decision thereon. Upon the making of any
decision resulting in disbarment or suspension from practice said board shall immediately file
a certified copy of said decision, together with said transcript and findings, with the clerk of
the supreme court. Any person so disbarred or suspended may, within sixty days after the
filing of said certified copy of said decision, petition said supreme court to review said
decision or to reverse or modify the same, and upon such review the burden shall be upon the
petitioner to show wherein such decision is erroneous or unlawful. When sixty days shall
have elapsed after the filing of said certified copy, if no petition for review shall have been
filed, the supreme court shall make its order striking the name of such person from the roll of
attorneys or suspending him for the period mentioned in said decision.
53 Nev. 24, 38 (1930) In Re Scott
the period mentioned in said decision. If, upon review, the decision of said board of
governors be affirmed, then said court shall forthwith make said order striking said name
from the rolls or of suspension. The board shall have power to appoint one or more
committees to take evidence on behalf of the board and forward the same to the board with a
recommendation for action by the board. Nothing in this act contained shall be construed as
limiting or altering the powers of the courts of this state to disbar or discipline members of
the bar as this power at present exists.
The contention of the petitioner is that that portion of the foregoing section which provides
that the board of governors shall have power * * * to disbar members or to discipline them
by reproval, public or private, or by suspension from practice, and the board shall have power
to pass upon all petitions for reinstatement, clearly invests the board of bar governors with
powers which are essentially judicial in character. Section 26 is identical in language to that
of section 26 of the state bar act of California. In the case of In Re Shattuck (Cal), supra, the
court in answer to this contention held that any decision which the board of bar governors
may be empowered to make in a proceeding pending before it is merely recommendatory in
character and the only orders which have the effect of working disbarment or suspension of a
person are the final orders of the supreme court, and that the section does not violate article 3,
sec. 1, of the constitution relative to the distribution of governmental powers, as the statute
does not invest the board with judicial powers. This decision meets with our approval. But
counsel for the petitioner contends that in the absence of a petition for review, the action of
the board is final and conclusive. Since the petitioner has applied for a review of the findings
and recommendation of the local administrative committee of Washoe County, adopted and
approved by the board of governors, we are of opinion that we are not called upon to
determine the question of whether or not, in the absence of a petition for a review, the action
of the board is final and conclusive.
53 Nev. 24, 39 (1930) In Re Scott
review, the action of the board is final and conclusive. This contention will be met and
disposed of when the question is raised in a proper case.
5, 6. The petitioner contends that the state bar act is unconstitutional, in that it deprives
the petitioner of his propertythe right to practice his profession without due process of
lawin violation of both the state and federal constitutions. We are not prepared to concede
that the right to practice law is a property right. It is held to be a privilege subject to the
control of the legislature and limited to persons of good moral character, with special
qualifications ascertained and certified, as prescribed by law. 6 C.J. 569, citing in support of
the text In Re O'Brien's Petition, 79 Conn. 46, 63 A. 777, 780, in which it is well said:
The inalienable right of every American citizen to follow any of the common industrial
occupations of life does not extend to the pursuit of professions or vocations of such a nature
as to require peculiar skill or supervision for the public welfare.
The case of Ex Parte Dixon, 43 Nev. 196, 183 P. 642, is cited as an authority in support of
the proposition that the right to practice law is a property right. That case simply holds that a
license to practice law is subject to an occupational tax created by a city ordinance. But, if for
the purpose of the state bar act, the right to practice law is to be regarded as a property right,
the statute meets every requirement of the constitution. Provision is made for a full and
complete hearing of all complaints lodged against a member of the bar, and for review before
the board of governors, coupled with a review by the supreme court. The facts and the law
both being subject to review and final decision by the supreme court, we do not consider that
the petitioner was denied due process of law. In Re Petersen (Cal. Sup.), 280 P. 124; In Re
Edwards, supra; In Re Bruen, 102 Wash. 472, 172 P. 1152; McVicar v. State Board of Law
Examiners, supra.
7. The petitioner contends generally that the state bar act, as a whole, is violative of the
fundamental principles of our government in that those engaged in the practice of law are
compelled to accept membership in a corporation in order to practice their profession.
53 Nev. 24, 40 (1930) In Re Scott
principles of our government in that those engaged in the practice of law are compelled to
accept membership in a corporation in order to practice their profession. This contention
furnishes the most popular criticism of the members of the profession opposed to the law. As
hereinabove stated, the membership, character, and conduct of those entering and engaging in
the legal profession has, since the inception of our state government, been regarded as the
proper subject of legislative regulation and control; the right to follow any of the common
industrial occupations of life does not extend to the pursuit of professions or vocations of
such a nature as to require peculiar skill or supervision for the public welfare. In the adoption
and approval of the legislation under review, the legislature evidently considered that the time
had come in the administration of the law that attorneys and counselors at law, who constitute
an integral and indispensable unit in the administration of justice, should be organized as a
body politic, with delegated police power subject to the control of the supreme court and the
legislature for the benefit of the public welfare in a matter of great public concern.
8, 9. It is contended that section 34 of the act regarding the procedure adopted for the
investigation of complaints made against a member of the bar is illegal in that the
administrative committee or board of governors may initiate and conduct such proceeding
without the filing or presentation of any complaint informing the attorney complained against
of the charges preferred and without trial thereof, in the manner provided by law.
The statute provides that the state bar shall be governed by a board of governors,
composed of nine members nominated by petition and elected by ballot of all members of the
bar entitled to vote. The statute provides that with the approval of the supreme court the board
has the power to formulate and enforce rules of professional conduct for all members of the
bar in the state. The board has power to create as many local administrative committees as it
may deem advisable, composed of active members of the bar; and each member of the
board of governors is ex officio a member of the administrative committee where he
maintains his principal office for the practice of law.
53 Nev. 24, 41 (1930) In Re Scott
administrative committees as it may deem advisable, composed of active members of the bar;
and each member of the board of governors is ex officio a member of the administrative
committee where he maintains his principal office for the practice of law. The statute makes
it the duty of each administrative committee, and it is given the power to receive and
investigate complaints as to the conduct of members of the bar, make findings and
recommendations and forward its report to the board of governors for action, which may
either act upon the report or may take additional evidence or set aside the report and hear the
whole case de novo. Section 34 of the act provides, inter alia:
The board, or any local administrative committee shall, of its own motion and without the
filing or presentation of any complaint, or upon any complaint, if a complaint be filed, have
power to initiate and conduct investigations of all matters affecting or relating to the state
bar, or its affairs, or the practice of the law, or the discipline of the members of the state bar.
* * *
We have had much difficulty in reconciling the foregoing provisions, apparently
legislative and judicial in character, with the constitution which provides that the powers of
the state government shall be divided into three separate departmentsthe legislative, the
executive, and the judicialthat no persons charged with the exercise of powers properly
belonging to one shall exercise any functions appertaining to either of the others. Article 3,
sec. 1.
Undoubtedly, under our law the supreme court is the only court which has the power to
disbar or suspend an attorney, and for three causes only: First, his conviction of a felony or
misdemeanor involving moral turpitude; second, willful disobedience or violation of a court
order connected with or in the course of his profession; third, for misconduct in office or for
good cause shown. Volume 1, sec. 511, Rev. Laws. It is observed that section 26 of the act
closes with this significant statement: "Nothing in this act contained shall be construed as
limiting or altering the powers of the courts of this state to disbar or discipline members
of the bar as this power at present exists."
53 Nev. 24, 42 (1930) In Re Scott
Nothing in this act contained shall be construed as limiting or altering the powers of the
courts of this state to disbar or discipline members of the bar as this power at present exists.
Section 26 forms the basis of this proceeding, and if we are correct in the conclusion that
the section is not to be construed as even partially withdrawing from the supreme court its
statutory or inherent power to disbar or suspend an attorney, that the board of governors or
any local administrative committee's acts in the performance of their prescribed powers
relating to the disbarment or suspension of an attorney as merely an intermediary agency
for the taking of evidence and reporting thereon to this court, their findings or
recommendations are merely recommendatory and not final and do not and cannot amount
to a judgment of disbarment or suspension. The procedure conforms to the common law:
At common law an attorney was always liable to be dealt with in a summary way for any
ill practice attended with fraud or corruption, and committed against the obvious rules of
justice and honesty. No complaint, indictment, or information was ever necessary as the
foundation of such proceedings. * * * No formal or technical description of the act
complained of is deemed requisite to the validity of such a proceeding. McVicar v. State
Board of Law Examiners, supra.
Furthermore, the state bar act provides that any person complained against shall be given
reasonable notice and shall have a reasonable opportunity and right to defend against the
charge by the introduction of evidence, and the right to be represented by counsel and to
examine and cross-examine witnesses. We interpret the power given the committee or board
to initiate and conduct investigations to mean that the investigations are to be simple and
informal, but thorough, with the object of ascertaining the truth concerning the matters under
investigation. We see no reason for holding the statute illegal because of the power of the
board or committee to initiate and conduct investigations without the filing and presentation
of a complaint. In this instance the petitioner was given due notice of the complaints to be
investigated and was given a full and fair hearing.
53 Nev. 24, 43 (1930) In Re Scott
this instance the petitioner was given due notice of the complaints to be investigated and was
given a full and fair hearing.
10. It is argued with vehemence that the statute is void, because it authorizes a member of
any local administrative committee, or a member of the board of governors, to prefer charges
against an attorney, and then to sit as a member of the committee, or board, for the
consideration of the charges so preferred. We are not in accord with this contention. The
powers conferred upon the board and local administrative committees relate to matters of
great public concern, in which the members of the board and committee have no personal
interest. They have no greater interest in the result of this proceeding than has any other
member of the profession or any other member of the community entitled to protection
against unscrupulous lawyers. In Re Edwards (Idaho), supra, citing McVicar v. State Board of
Law Examiners, supra, and In Re Jones, 159 App. Div. 782, 145 N.Y.S. 65.
It is argued that this court, upon examination of the evidence produced before the board of
governors, and reported to this court for review, should and will conclude that the findings
and recommendation of the board of governors are not supported by the evidence. This
contention brings us to the review of the charges preferred against the petitioner and the
evidence in support thereof.
The record discloses that the local administrative committee of Washoe County, of its own
motion, caused to be duly served upon the petitioner written notice informing him that the
committee, at the time and place specified in the notice, proposed to investigate complaints as
to the petitioner's professional conduct, particularly in regard to the following:
A. False and misleading advertising in the use of the name, Abbott & Scott and
improper conduct with reference thereto; and
B. The forwarding of improper letters to defendants in divorce actions.
53 Nev. 24, 44 (1930) In Re Scott
11. The evidence produced before the local administrative committee and reported by the
board of governors to this court for action with respect to complaint A stands uncontradicted
and admitted by the petitioner. The question for decision is: Is the evidence such as to justify
the suspension of the petitioner from the practice of the law in this state for a period of twelve
months, or at all? We are of opinion that is does.
The petitioner, as a witness in his own behalf, at one of the hearings before the local
administrative committee, admitted that upon his admission to practice in the courts of this
state he opened law offices in rooms 306-307, Byington Building, Reno, Nevada; that he
published upon one of the doors of the offices, Abbott & Scott, Attorneys-at-Law, with the
name Frank B. Scott immediately thereunder; that he made and signed a written application
to the Bell Telephone Company to have the name Abbott & Scott listed and published in
both the general and in the classified business directories of the company, of large circulation.
He was furnished by the person in charge of the office of the telephone company their
regulation application blank to which he signed the name Abbott & Scott by J.R. Abbott.
Pursuant to the application, the name Abbott & Scott was published in the telephone
directory and in the classified business directory dated May, 1928. Thereafter the petitioner
made, signed, acknowledged, and filed for record in the clerk's office of Washoe County the
following certificate:
I hereby certify that under the name of Abbott & Scott, I intend to carry on business as an
attorney. That the true and real full name of the person conducting such business is Frank
Brettle Scott and that his post-office address is 306-307, Byington Bldg., Reno, Nevada.
[Signed] Frank B. Scott.
The certificate was filed under the provisions contained in section 1 of the Statutes of
1923, p. 271, c. 156. The petitioner contends that the practice of the law is a business
within the meaning of the statute. We do not deem it necessary in this proceeding to
determine whether or not the statute applies to attorneys; the question here is whether
or not Mr.
53 Nev. 24, 45 (1930) In Re Scott
not deem it necessary in this proceeding to determine whether or not the statute applies to
attorneys; the question here is whether or not Mr. Scott was guilty of unprofessional conduct
in selecting the firm name, Abbott & Scott composed of J. R. Abbott and Frank B. Scott.
The petitioner admitted that the name J.R. Abbott was fictitious; that he at one time knew a
lawyer by that name and thought he could locate him; and that he adopted the name because it
harmonized with that of Scott, and that it began with A. As a witness in his own behalf, he
testified, in substance, that he had been an attorney for thirty-two years, a thoroughly ethical
one, and when passing on the question as to whether or not he should select the name
Abbott he was conscious of the Scriptural injunction, Shun the every appearance of evil,
and if his fellow attorneys thought there was anything out of the way in the matter, he would
be the last one to do anything that would bring reproach upon his profession. He repented of
his error and testified that when his act of selecting the fictitious firm name Abbott was
criticized as being unprofessional and unethical, it caused him mental worry and great loss of
business by publishing and advertising the name in the telephone directory and upon his
letterhead; that he blotted out the name Abbott appearing on the door of his office and upon
his letterhead, and were it possible he would cancel the name Abbott & Scott published in
the telephone directory.
We have carefully considered the extenuating circumstances which the petitioner has
presented to this court, and considering all circumstances have concluded that the petitioner
was guilty of misconduct in practicing law under a firm name which included the name of an
attorney who was not admitted to practice in the courts of this state, and with whom he had
not been associated in practice, and with whom he had no relation. In Re Gluck, 139 App.
Div. 894, 123 N.Y.S. 857.
12. In support of charge B, The forwarding of improper letters to defendants in divorce
actions, there were produced at the hearing before the local administrative committee two
typewritten letters on second paper, signed by the petitioner; one of which was addressed
to Mrs.
53 Nev. 24, 46 (1930) In Re Scott
administrative committee two typewritten letters on second paper, signed by the petitioner;
one of which was addressed to Mrs. Jessie Sturdevant, 3250 South Thirty-first Street,
Lincoln, Nebraska, and the other addressed to Mrs. Julius Posner, 45 Everett Avenue, Celsea,
Massachusetts. The letters are of the same tenor, and to avoid extending this opinion of
unreasonable length, we shall insert the shorter of the two letters:
Frank B. Scott, Lawyer
550 So. 11th East St.
Salt Lake City. Aug. 10th, 1927
Mrs. Jessie Sturdevant
3250 So. 31st st.
Lincoln, Nebraska
Dear Madam:
I have been in correspondence with your husband regarding securing a divorce from you.
I am aware of the fact of judgment for $75, per month alimony, but if the doctor gives up his
position in the U at Lincoln you will never collect any part of that money; he is at the end of
his resources now and if you do not fix this up with him he will NOT go back to Nebraska in
September and will resign his job and start practice again in another state under an assumed
name and you will never collect another dollar of that alimony; in order to do so, you would
first have to locate him, find that he was earning money and where he kept it, take a judgment
for the amount then due in Nebraska and then sue on that judgment in his new home and if
you succeed in getting the new judgment how are you going to collect it. You can't arrest him
nor punish him for contempt of court as you could if he were in Nebraska so it is up to you to
get him to Nebraska and the only way to do that is to sign the enclosed waiver. If you don't
sign it he will go ahead and bring the suit for divorce just the same and will have to serve the
papers on you and that will take so much longer that he will not be back in Nebraska in time
for the term and will lose his job there; but the divorce will go on just the same.
53 Nev. 24, 47 (1930) In Re Scott
same. So if you are wise you will sign the enclosed waiver and I will put through the divorce
for him and then he will be back in Nebraska and hold his job and pay you the $75 per month
alimony. What do you say?
Sincerely Frank B. Scott
[Signed] Frank B. Scott
Upon the hearing Mr. Scott objected to the introduction of both the letters upon the ground
that no sufficient foundation had been made for their introduction in evidence, contending
that the letters had been obtained by an enemy of his, clandestinely from his private desk and
delivered to a member of the board of governors who offered them in evidence, and who
participated as ex officio member of the local administrative committee of Washoe County,
and upon whose testimony the members of the committee were satisfied that a sufficient
foundation had been made for the introduction of the letters in evidence.
We have carefully reviewed the record and conclude that Mr. Scott, by his own testimony,
was not prejudiced by the introduction of the letters in evidence. As a witness in his own
behalf, he did not deny their authenticity with that positiveness that would make it appear that
they were not written or subscribed to by him; the letters speak for themselves, and in our
opinion are grossly unethical; they reflect the petitioner's entire misapprehension of the ethics
of his high and honorable calling.
13. We have considered the extenuating circumstances presented by the petitioner, and
after giving to him the benefit of every intendment and inference, the benefit of his previous
good character and reputation, and the benefit of the attendant degradation and probable
effect his suspension from the practice of law at his age will have upon his only means of
livelihood, we have concluded that the petitioner should be suspended from the practice of
law for the period of one year.
It is therefore ordered that Frank B. Scott be, and he is hereby, suspended from the practice
of law in this state for the period of one year from the date of entry of this order.
53 Nev. 24, 48 (1930) In Re Scott
state for the period of one year from the date of entry of this order.
Ducker, C.J.: I concur.
Coleman, J., dissenting:
I will not delay a determination of this matter by taking the time to write an opinion.
Mr. Justice Field, in Re Garland, 4 Wall. 333, 378, 18 L.Ed. 366, in discussing the
relationship of attorneys to the court, said:
Their admission or their exclusion is not the exercise of a mere ministerial power. It is the
exercise of judicial power, and has been so held in numerous cases.
It being conceded by all courts that an attorney is an officer of the court and that any order
disciplining him is judicial in character, it must follow that the act giving the state bar of
Nevada absolute power to discipline an attorney is an attempt to confer judicial powers upon
such corporation, and to that extent at least it is, in my opinion, null and void under article 6
of our constitution, which vests all judicial power in the courts.
March 25, 1931.
Per Curiam:
Rehearing denied.
Coleman, C.J., dissenting.
____________
53 Nev. 49, 49 (1930) Peri v. Jeffers
PERI v. JEFFERS
No. 2908.
October 18, 1930 292 P. 1.
Motion to dismiss appeal not showing whether it goes to appeal from judgment or appeal from order
denying motion for new trial, or both, held too general.
Appeal on judgment roll alone is good provided a notice of appeal and undertaking were given,
notwithstanding bill of exceptions must be stricken.
Where, on motion for diminution of record, appellant presented undisputed affidavit to the effect that
an undertaking on appeal was given, motion was granted and motion to dismiss appeal denied,
notwithstanding there was nothing in record as originally filed to indicate that undertaking was given.
Nothing can be made a part of record on appeal that is not a part of the judgment roll proper, except
by being incorporated in a bill of exceptions.
Where motion to strike bill of exceptions must be granted, application for order for diminution of
record to bring up order extending time for settling must be denied as not properly part of record on
appeal.
Bill of exceptions not showing that it was settled within the time provided by law must be stricken.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge, and
H.W. Edwards, Presiding Judge.
Action by Julia Peri, a minor, by C. Peri, her guardian ad litem, against Art E. Jeffers and
others. Judgment for plaintiff, and defendant Jeffers appeals. On respondent's motion to strike
the bill of exceptions and transcript except the judgment roll, and to dismiss the appeal, and
appellant's countermotion for a diminution of the record. Motion to dismiss appeal denied,
application for an order for a diminution of the record granted in part and denied in
part, and motion to strike the bill of exceptions granted.
Art E. Jeffers and James M. Frame, for Appellants.
W.M. Kearney and Sidney W. Robinson, for Respondents.
OPINION
This case is now before the court on a motion of respondent to strike from the files the bill
of exceptions and transcript herein, except the judgment roll, and to dismiss the appeal.
The appellant has interposed a counter motion for a diminution of the record.
Both of respondent's motions are based upon the same grounds, which are: (1) That
appellant did not, within twenty days after the entry of the order of the court denying
appellant's motion for a new trial, file and serve a bill of exceptions, or a transcript in lieu
thereof; (2) that the appellant did not, within the time allowed by law, file or serve any
completed record on appeal; and (3) that the appeal has not been perfected in accordance with
the provisions of the statute.
1. The motion to dismiss must be denied for three reasons. The appeal is from both the
judgment and the order denying defendant's motion for a new trial. The motion to dismiss is
too general. It does not show whether the motion goes to the appeal from the judgment or
from the order, or both.
2. Upon the argument of the motion counsel for appellant objected to the second and third
grounds of the motion, on the ground that they are too general and do not point out
specifically the defects complained of. While we are inclined to the view that this objection is
not without merit, we do not find it necessary to decide the point, for the reason that,
assuming that the bill of exceptions must be stricken, the appeal on the judgment roll alone is
good provided a notice of appeal and an undertaking on appeal were given.
3. While there is nothing in the record as originally filed to indicate that an undertaking
on appeal was given, on motion for a diminution of the record appellant presents an
affidavit, which is undisputed, to the effect that such undertaking was given.
filed to indicate that an undertaking on appeal was given, on motion for a diminution of the
record appellant presents an affidavit, which is undisputed, to the effect that such undertaking
was given. In this situation it is our clear duty to grant the application for a diminution of the
record and to deny the motion to dismiss the appeal. Orleans Hornsilver M. Co. v. Le Champ
D'Or French G.M. Co., 52 Nev. 85, 280 P. 887.
4, 5. We think the motion to strike the bill of exceptions must be granted. The bill of
exceptions shows that the case was tried on August 30, 1929, and that judgment was rendered
on that day. The bill of exceptions was filed December 26, 1929. There is nothing in the bill
of exceptions indicating that a motion for a new trial was ever made, considered, or acted
upon. Even the transcript containing the judgment roll does not contain the order denying a
motion for a new trial, nor is there anything in it indicating when, if ever, the motion for a
new trial was denied. But if a copy of an order denying a motion for a new trial, and a copy of
any order extending the time for the settling of a bill of exceptions were in such transcript, it
would avail nothing. Neither does appellant's application for an order for a diminution of the
record avail in this connection. As we have repeatedly held, nothing can be made a part of the
record on appeal that is not a part of the judgment roll proper, except by being incorporated in
a bill of exceptions. Water Co. v. Belmont Dev. Co., 49 Nev. 172, 241 P. 1079; Nevada First
Nat. Bank v. Lamb, 51 Nev. 158, 271 P. 693; Chessman v. Hillhouse, 53 Nev. 21, 291 P. 704.
In this situation the application for an order of diminution of the record so as to bring up
the order in question must be denied.
6. Since the bill of exceptions does not show that it was settled within the time provided
by law, it must be stricken.
It is ordered that respondent's motion to dismiss the appeal be denied; that appellant's
application for an order for a diminution of the record so as to bring up the undertaking on
appeal be granted; that appellant's application for an order for a diminution of the record
so as to bring up the order extending time in which to have settled a bill of exceptions be
denied; and that the motion of the respondent to strike the bill of exceptions be granted.
the undertaking on appeal be granted; that appellant's application for an order for a
diminution of the record so as to bring up the order extending time in which to have settled a
bill of exceptions be denied; and that the motion of the respondent to strike the bill of
exceptions be granted.
December 2, 1930. 293 P. 25
Even if order denying motion for a new trial were properly a part of the record, it
would not benefit appellant when no motion for a new trial is contained therein.
From order denying appellant's application for an order for diminution of the record so as
to bring up the order extending time in which to have settled a bill of exceptions appellant
files a motion for a rehearing. Rehearing denied.
OPINION
Appellant has filed a petition for a rehearing, in which it is said that we inadvertently
overlooked section 5338, Rev. Laws. We did not overlook it. It was expressly repealed fifteen
years ago. Stats. 1915, c. 142, p. 166, sec. 15.
But, if the order denying appellant's motion for a new trial were properly a part of the
record, it would not benefit appellant, since there is no motion for a new trial contained
therein. Water Co. v. Belmont Dev. Co., 50 Nev. 24, 249 P. 565.
Petition denied.
On The Merits
April 27, 1931. 298 P. 658.
1. Pleading.
Answering after overruling of demurrer to the complaint waived every ground of the
demurrer save that the complaint does not state a cause of action.
2. Replevin.
Complaint in claim and delivery must allege plaintiff's ownership of the property,
describing it; his right to its immediate possession and the wrongful taking and detention
thereof by defendants; and a demand for possession, in certain instances.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge;
H.W. Edwards, Judge presiding.
Action in claim and delivery by Julia Peri, a minor, by C. Peri, her guardian ad litem,
against Art E. Jeffers and others. From an adverse judgment, defendant Jeffers appeals.
Affirmed.
Art E. Jeffers and J.M. Frame, for Appellants:
Plaintiff having failed to allege wrongful detention and possession, either actual or
constructive, as against defendants Art E. Jeffers, John Doe, Richard Roe and Sally Moe,
failed to state a cause of action against them, thereby precluding any possibility of a judgment
being rendered against them, whether they answered or not, and the said defendants were
invulnerable to a judgment being found against them. Stahl v. Chicago, etc. R.Co., 94 Wis.
315; Johnson v. Garlick, 25 Wis. 705; Timp v. Dockham, 32 Wis. 146; Richard et al. v.
Morey (Cal.), 65 P. 886; Lamus v. Engwhicht et al., 179 P. 435; Home Payment Jewelry Co.
v. Smith et al. (Cal.), 141 P. 933; Seattle National Bank v. Meerwaldt (Wash.), 36 P. 763;
Seattle et al. v. McGraw, 29 P. 260.
It is our contention, in view of the authorities cited, that the court was in error in
overruling defendant's demurrer to plaintiff's complaint.
W.M. Kearney and Sidney W. Robinson, for Respondent:
Since appellant insisted upon defending the suit, in an effort to defeat respondent's rights,
he is properly taxed with a judgment. If he had desired to avoid a judgment against him, he
was obliged to disclaim any interest in the subject matter of the suit. Glos v. Shedd, 75 N.E.
at 890; Scott v. Aultman Co., 71 N.E. at 1114; League v. Stale, 57 S.W. at 35; Pinheiro v.
League v. Stale, 57 S.W. at 35; Pinheiro v. Bettencourt, 118 P. 941, at 945; Richards v.
Jarvis, 238 P. at 89.
We maintain, therefore, that the appeal should be dismissed and the judgment of the lower
court affirmed, upon the ground and basis that the complaint states a good cause of action as
against appellant.
OPINION
By the Court, Coleman, C.J.:
This is an action in claim and delivery. It is now before the court on the judgment roll
alone; the bill of exceptions having been stricken on motion.
1. To the complaint a demurrer was filed stating several grounds therefor, which was
overruled. Thereupon the defendants answered. By this answer they waived every ground of
the demurrer urged save that the complaint does not state a cause of action. Lonkey v. Wells,
16 Nev. 271; Hammersmith v. Avery, 18 Nev. 225, 2 P. 55; Hardin v. Elkus, 24 Nev. 329, 53
P. 854; Jones v. West End Con. M. Co., 36 Nev. 149, 134 P. 104.
2. The material facts necessary to be alleged in the complaint are: Plaintiff's ownership,
either general or special, of the property, describing it; his right to its immediate possession,
and the wrongful taking and detention thereof by defendants; and a demand for possession, in
certain instances. 34 Cyc. 1464.
These facts are all alleged in the complaint. The demurrer was properly overruled.
____________
53 Nev. 55, 55 (1930) Southwest Cattle Loan Co. v. Nevada Packing Co.
SOUTHWEST CATTLE LOAN CO. v. NEVADA
PACKING CO.
No. 2874
October 18, 1930. 292 P. 587.
1. Pleading.
A motion for judgment on the pleadings is in the nature of a demurrer, and consequently presents
purely questions of law.
2. Pleading.
New matter constituting defense, admitted by failure to demur or reply thereto, means a defense
which in law operates to defeat the cause of action. (Stats. 1915, c. 158.)
3. Chattel Mortgages.
Mortgagee of California live stock having failed to comply with provision of California statutes for
protection of such liens cannot, under the doctrine of comity between states, recover the value of the
property from innocent purchaser in Nevada, the forum to which the live stock was removed.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Action by Southwest Cattle Loan Company against Nevada Packing Company. Judgment
for defendant on the pleadings, and plaintiff appeals. Affirmed.
Wm. A. Freeman and Sardis Summerfield, for Appellant:
This author is unaware of any statute in Nevada authorizing a judgment upon the
pleadings, and that in at least two cases this court has reversed the rendition by the trial court
of judgment upon the pleadings alone. Gallagher v. Dunlap, 2 Nev. 326; Phenix v. Bijelich,
30 Nev. 257.
It is safe to assert that the courts generally do not favor judgments rendered upon pleadings
alone. Telegraph Co. v. Patterson, 1 Nev. 150; Lake Bigler Co. v. Bedford, 3 Nev. 399;
Bowles v. Doble (Ore.), 5 P. 921; 31 Cyc. p. 607; 3 Estee on Pleading, par. 4609.
It would further appear that the general rules of law applicable to judgments of nonsuit are
also applicable to judgments on pleadings. The truth of all well-pleaded and undenied facts
and all legitimate inferences derivative therefrom are deemed admitted. Phenix v. Bijelich,
supra.
But it is well settled law that immaterial matters, legal conclusions, or conjectural
averments in a pleading are not admitted by a failure to deny them, and may be disregarded.
Hoopes v. Meyer, 1 Nev. 433; Kidwell v. Ketler, 146 Cal. 17; Street v. Sederburg (Colo.), 92
P. 31; Jordan v. Bank, 74 N.Y. 467; Kelly v. McCollum, 83 N.C. 563; 31 Cyc. pp. 209 and
210; Estee on Pleading, pars. 201 and 202.
The law of California as the lex loci will control as to all questions of record and local
requisites of a valid mortgage while the law of Nevada as the lex fori will control only as to
questions of form, process, practice and procedure. Alfritz v. Ingalls (Nev.), 83 Fed. 970;
Smead v. Chandler (Ark.), 76 S.W. 1066; Aultman & Taylor Co. v. Kennedy (Iowa), 87 N.W.
435; Mumford v. Canty, 50 Ill. 370; Fanke v. Fleming, 13 Md. 392; Langworth v. Little, 66
Mass. 109; Beckham v. Carter, 19 Mo. App. 596; Lathe v. Schoff, 60 N.H. 34; Craig v.
Williams (Va.), 18 S.E. 899; 5 R.C.L. 398; 6 Cyc. 1060.
Unlawful conversion is a tort and an action for damages therefor is transitory, not local,
and may be maintained wherever the wrongdoer is found. Christensen v. Floriston Co., 29
Nev. 565; Dennick v. Railroad Co., 103 U.S. 11.
It must be kept in mind that by the express terms of the California law when personal
property mortgaged is thereafter removed from the county in which it is situated, the lien of
the mortgage shall not be affected thereby for thirty days after such removal. It is alleged in
the complaint in substance that the sale and conversion of the mortgaged cattle sequentially
followed their removal from Mono County, California, to Reno, Nevada. It therefore clearly
appears that respondent's conversion of the mortgaged cattle occurred at a time when
appellant's mortgage lien remained unaffected by reason of the removal, utterly regardless of
whether or not a mortgage abstract certificate was on file in the office of the secretary of state
and therein indexed. Hammels v. Sentous, 151 Cal. 520, 91 P. 327.
Again, it clearly appears from the complaint that not only under the express terms of the
mortgage but also under the express provision of the California statute the appellant was
entitled to the possession of the mortgaged cattle at the very time of their conversion by
the respondent.
only under the express terms of the mortgage but also under the express provision of the
California statute the appellant was entitled to the possession of the mortgaged cattle at the
very time of their conversion by the respondent.
It is fairly plain that section 3966 of the California Civil Code must be read in connection
with the immediately preceding amended section 2965 of the same code, so that the effect is
as if it read: Unless the mortgage abstract certificate is filed and indexed in the office of the
secretary of state as aforesaid, if the mortgagor voluntarily removes or permits the removal of
the mortgaged property, * * * the mortgagee may take possession and dispose of the property
as a pledge for the payment of the debt, though the debt is not due.
It is important to keep in mind that under the California law a mortgage of personal
property is void as to third persons unless it is executed and recovered as required by law.
Sub modo, if so executed and recorded it is valid. The California act of 1923, however, does
not require the abstract certificate to be recorded in the office of the secretary of state, but
only to be filed and indexed therein. In no place, apparently, does the California law provide
that a failure to file and index the mortgage abstract certificate invalidates the mortgage as to
third persons.
Whether the California law of 1923 be considered either literally or subjective to its spirit,
it is not a recording law at all and it is clear that its main objective is to render it unnecessary
for the mortgagor to have his mortgage rerecorded within thirty days after the removal of live
stock from the county of their situs when mortgaged to another county.
It may be true that a minor incidental phase of the law is to afford interested third persons
an additional source of knowledge about encumbrances upon migratory chattels, but the law
does not visit a failure so to do with a loss of the mortgagee's mortgage rights. It is noticeable,
also, that the amended answer does not allege that respondent was misled by reason of the
failure to file and index the mortgage abstract certificate in the office of the secretary of
state.
failure to file and index the mortgage abstract certificate in the office of the secretary of state.
Price & Hawkins, C.M. Hawkins and Hester H. Mayotte, for Respondent:
In a proper case and situation, a judgment on the pleadings may be granted either to
plaintiff or defendant, upon motion, or may be entered under the inherent power of the court,
as the right may lie. 21 Cal. Jur., p. 234, sec. 163; Houck v. Carolan, 1 Cal. Unrep, 692;
Cushing v. Keslar (Cal.), 9 P. 659; Salo v. Smith (Cal. App.), 143 P. 322; LeBreton v. Stanley
Contrct. Co. (Cal. App.), 114 P. 1028; Kelly v. Kreiss (Cal.), 9 P. 129-130; Hubenthal v.
Spokane & I. Ry. Co. (Wash.), 86 P. 955, 958; Cal. State Tel. Co. v. Patterson, 1 Nev. 150,
158; Phenix v. Bijelich, 30 Nev. 257; Vickers v. Vickers, 45 Nev. 274, 288, 199 P. 76, 79,
202 P. 31, 32; Nehls v. William Stock Farming Co., 43 Nev. 253; 14 Stand. Pro. 943, and
cases cited; 21 R.C.L. p. 594, sec. 142.
A motion for judgment on the pleadings operates both as a motion and as a general
demurrer. A defendant after answer may move for judgment upon the pleadings where the
complaint fails to state a cause of action, or where there is an entire absence of some
necessary fact or facts. 21 Cal. Jur. p. 239, sec. 165; Hibernia Sav. & L. Assn. v. Thornton
(Cal.), 49 P. 573; DeToro v. Robinson (Cal.), 27 P. 671; C.C.P. No. 582 (reads same as
closing sentence of Nev. No. 5237, sec. 295).
In the absence of statute providing to the contrary, all courts have inherent power to render
judgments on the pleadings. Mires v. Hogan (Okla.), 192 P. 811, 814; Owen v. Leber (Ore.),
288 P. 927, 928, 14 Stan. Proc. p. 926.
By the failure of the plaintiff to reply to the amended answer it was admitted that the
certificate provided to be made by the recorder of Mono County, California, was not made
and sent to the secretary of state, that the extra fee therefor was not paid, and that no demand
was made by the plaintiff that such procedure be had, in compliance with the California
statutes.
It is an erroneous conception that the recordation acts, and particularly those of California,
are for the protection of the mortgageethe intent is to protect all persons. Hopper v. Keys
(Cal.), 92 P. 1017, 1020; Kahriman v. Fitzgerald (Cal. App.), 259 P. 90.
In the California cases, the courts of that state have given the world notice that its chattel
mortgage acts mean just exactly what they say, and that they must be strictly and completely
followed, or the mortgagees, as against creditors, purchasers, etc., lose their liens. Watkins v.
Wilhoit et als. (Cal.), 35 P. 646; National Bank of Bakersfield (C.C.A. 9th Cir.), 247 Fed.
913.
It is the rule that one desiring the protection of the recordation acts must follow the
statutes, and in this respect California does not stand alone. People v. Burns (Mich.), 125
N.W. 740, 742, considers the point and holds that the mortgagee has the burden and incurs all
risk of seeing to it and of failure to comply with the recording laws. See, also, Grand Rapids
Nat'l. Bank v. Ford (Mich.), 107 N.W. 76; Gordon v. Constantine Hydraulic Co. (Mich.), 76
N.W. 142; Hopper v. Keys, supra.
In the case of Ayre v. Hixson (Ore.), 98 P. 515, it was held that where a mortgage of both
realty and personalty was recorded in the realty records, but was not indexed in the general
index of chattel mortgages, it was not constructive notice to a subsequent purchaser for value.
The matter of index is regarded by California courts as of materiality and importance. As
to mechanic's liens it is the basis of the constructive notice. Diamond Match Co. v. Sanitary
Fruit Co. (Cal. App.), 234 P. 322, 325.
A correct index may be sufficient to overcome the error of record in wrong book. C.P. Ry.
Co. v. Droge (Cal.), 151 P. 663, 665; Cady v. Purser (Cal.), 63 P. 844.
It is without doubt that the holder of a mortgage, to be protected as against a purchaser for
value, must show compliance in all respects with the recordation statute, or that the purchaser
has actual notice of the mortgage.
mortgage. Bernard v. Campbell, 29 Mich. 162, 163; Chamberlin v. Bell, 7 Cal. 292; Bueb v.
Geraty, 59 N.Y.S. 249; Pierson v. Hickey (S.D.), 91 N.W. 339; Curtis v. McDougal, 26 Oh.
St. 66; Yund v. Bank (Wyo.), 82 P. 6; Turner v. Caldwell (Wash.), 46 P. 235; Richardson v.
Shelby (Okla.), 41 P. 378.
A mortgagee cannot do less than properly file his mortgage and have same recorded.
Cowart v. Allen (Okla.), 134 P. 66, 68; Porter v. Stewart (Mass.), 89 N.E. 118; Bleakley v.
Nelson (N.J. Ch.), 39 Atl. 912.
At no place have we been able to find a single case holding that as to third parties any
portion of the recording acts may be repudiated by the mortgagee and still the mortgagee be
able to avail himself of and under the doctrine of constructive notice.
It must be said that, for the failure to comply with the California recordation act, the
plaintiff never had a mortgage which was effective as against this purchaser; that the pleading
establishes no constructive, nor actual notice, and that the judgment of the trial court was
right and should be affirmed.
OPINION
Appellant sued respondent in conversion to recover the value of 331 head of cattle,
claimed under a California chattel mortgage. Judgment went for respondent upon the
pleadings; appellant appeals from the judgment upon the judgment roll alone.
The parties are Nevada corporations and will be designated plaintiff and defendant. The
plaintiff, as indicated by its corporate name, is and was engaged in the business of loaning
money secured by chattel mortgages on live stock, and has its principal office at Los Angeles,
California. The defendant, as indicated by its corporate name, is engaged in the business of
slaughtering live stock, vending and packing the products thereof, and has its principal place
of business at Reno, Washoe County, Nevada. A summarization of the material facts
contained in the pleadings follow: The complaint alleges, in substance, that in Los Angeles,
California, on June 22, 1926, one Sam B.
The complaint alleges, in substance, that in Los Angeles, California, on June 22, 1926, one
Sam B. Gentry, a resident of Clark County, Nevada, executed and delivered to plaintiff his
chattel mortgage upon 375 head of cattle then located upon pasture in Mono County,
California, to secure the payment of three promissory notes aggregating the principal sum of
$15,000, together with interest, given as evidence of his indebtedness to the plaintiff.
The complaint alleges the due execution and recordation of the mortgage in Mono County,
California, where the mortgaged property was located, and its due recordation in Clark
County, Nevada, where the mortgagor resided. The complaint alleges that between July 15,
1926, and November 5, 1926, Gentry, the mortgagor, contrary to and in violation of the terms
and conditions of his mortgage, and without the knowledge, acquiescence, or consent of the
plaintiff, removed 331 head of said mortgaged cattle from Mono County, California, and sold
and delivered the possession of same to the defendant, who unlawfully converted the same to
its own use and benefit; that at the time and place of said conversion the cattle so converted
were of the reasonable worth and value of $13,485, wherefore plaintiff demanded judgment
for said sum as damages.
In its amended answer to the complaint, the defendant denied upon information and belief
practically all its material allegations, but admitted that between the dates mentioned in the
complaint, to wit, between July 15, 1926, and November 5, 1926, one Sam B. Gentry sold to
the defendant, and the defendant purchased from Gentry, 306 head of cattle in the actual
possession of the seller in Washoe County, and delivered the same to the defendant; that said
purchase was made in good faith for value, and without any notice whatsoever of any claim
or right or interest or lien upon said cattle, or any thereof, claimed, possessed, existing, or
belonging to the plaintiff; and that by reason of said sale and purchase the defendant was and
is now entitled to the exclusive possession and title to said cattle. The answer denies that the
cattle so purchased were of the value of $13,4S5, or any sum or amount in excess of
$11,0S2.40, the amount paid therefor by the defendant.
of $13,485, or any sum or amount in excess of $11,082.40, the amount paid therefor by the
defendant.
As new matter, the defendant pleaded in haec verba various sections of the Civil and
Political Codes of California relating to the execution, recordation, and foreclosure of chattel
mortgages, and alleged in substance that by reason of the plaintiff's failure to comply
therewith its mortgage was secret, void, and unenforceable against the defendant.
The plaintiff did not within the time required by statute demur to or make reply to the new
matter contained in the defendant's answer.
The record disclosed that, upon the calling of the case for trial to the county without a jury,
counsel for the defendant moved orally for judgment upon the pleadings for plaintiff's failure
to make reply to the new matter contained in its answer. The motion came on for hearing and
was submitted for decision upon briefs. The court having time to consider of its decision on,
to wit, April 23, 1929, decided and adjudged that the defendant was entitled to judgment on
the pleadings, irrespective of the merits of the case. Thereafter the plaintiff filed and served
its notice of intention to move for a new trial, but afterwards abandoned this procedure and
perfected its appeal to this court from the judgment on the judgment roll alone.
There is much discussion in the briefs concerning the practice relating to judgments on the
pleadings for failure to reply. Our statute provides that, when the answer contains new matter
constituting a defense, the plaintiff shall, within ten days after service thereof, or within ten
days after the overruling of a demurrer thereto, serve and file a reply, and, if the plaintiff fails
to demur or reply to such new matter constituting a defense, the same shall be admitted as
true. Stats. 1915, p. 192, c. 158.
1, 2. A motion for judgment on the pleadings is in the nature of a demurrer. 49 C.J. 668.
Consequently the question of whether or not the new matter consisting of the provisions
contained in the Civil and Political Codes of California as pleaded constitute a defense is
purely one of law.
Codes of California as pleaded constitute a defense is purely one of law. We interpret the
phrase constituting a defense, as employed in our statute, to mean a defense which in law
operates to defeat the cause of action. It is held in California that a defendant is not entitled to
judgment because of the failure to reply where the admissions resulting from the failure to
reply do not defeat plaintiff's cause of action. Lubarsky v. Chavis (Cal. App.), 279 P. 205;
Bussenius v. Warden, 71 Cal. App. 717, 236 P. 371.
3. The particular sections of the California laws incorporated in the judgment include
sections 408 and 4130 of the Political Code, as amended, Stats. Cal. 1923, p. 141, sec. 1, and
page 144, sec. 1; section 2965 of the Civil Code, as amended by Stats. Cal. 1923, p. 139, sec.
2.
Section 408 of the Political Code, as amended, provides inter alia that the secretary of state
shall provide a form of certificate to be used by county recorders, as provided in section 4130
of the Political Code, in which shall be set out the names of the mortgagor and mortgagee,
date of record, amount secured by such mortgage, which such description of the live stock,
vehicles (other than motor vehicles), or other migratory chattels, as such mortgage may
contain; and that it shall be the duty of the secretary of state to receive and file such
certificates of recordation, when transmitted by the county recorders, as provided in section
4130; and to provide and keep two alphabetical indices of such certificates in manner and
form as provided in the section.
Section 4130 of the Political Code provides, in substance, that whenever a mortgage is
filed in the office of the county recorders purporting to create a lien on live stock, vehicles
(other than motor vehicles), or any other migratory chattels, then it shall be the duty of such
recorders to collect, in addition to the regular recording fee, an additional fee of 75 cents, and
thereupon make certificate over his official signature upon the forms provided by the
secretary of state, and forthwith transmit the same to the secretary of state, together with
50 cents of such additional fee so collected.
forthwith transmit the same to the secretary of state, together with 50 cents of such additional
fee so collected.
Section 2965 of the Civil Code, as amended by the Statutes of 1923, p. 139, sec. 2, reads
as follows:
When personal property mortgaged is thereafter removed from the county in which it is
situated, the lien of the mortgage shall not be affected thereby for thirty days after such
removal; but, after the expiration of such thirty days, the property mortgaged, save in the case
of live stock, vehicles (other than motor vehicles) and other migratory chattels, is exempted
from the operation of the mortgage, except as between the parties thereto, until either:
1. The mortgagee causes the mortgage to be recorded in the county to which the property
has been removed; or
2. The mortgagee takes possession of the property as prescribed in the next section.
If a mortgage of live stock, vehicles (other than motor vehicles) or other migratory
chattels has been recorded as provided in section two thousand nine hundred fifty-nine and
within thirty days thereafter a certificate of such record has been filed by the county recorder
with the secretary of state as required by sections four hundred eight and four thousand one
hundred thirty of the Political Code the property mortgaged may be removed into any county
in the state without in any way affecting the lien of the mortgage.
Section 2966 of the Civil Code, as amended by Stats. 1923, p. 140, sec. 3, referred to in
the foregoing section, provides: If the mortgagor voluntarily removes or permits the removal
of the mortgaged property save in the case of life stock, vehicles (other than motor vehicles)
and other migratory chattels from the county in which it was situated at the time it was
mortgaged, the mortgagee may take possession and dispose of the property as a pledge for the
payment of the debt, thought the debt is not due.
Section 2957 of the Civil Code of California provides: "A mortgage of personal property
is void as against creditors of the mortgagor and subsequent purchasers and
encumbrancers of the property in good faith and for value, unless:
A mortgage of personal property is void as against creditors of the mortgagor and
subsequent purchasers and encumbrancers of the property in good faith and for value, unless:
1. It is accompanied by the affidavit of all the parties thereto that it is made in good faith
and without any design to hinder, delay, or defraud creditors;
2. It is acknowledged or proved, certified, and recorded in like manner as grants of real
property.
We have thus outlined the lex loci pertaining to the validity, the execution, and the
recordation of chattel mortgages, and pertaining to the removal of mortgaged personal
property from the county where the mortgage was first recorded to another county within the
state of California, all for the purpose of determining whether the lien of the mortgage of the
live stock in question is enforceable in this forum under the doctrine of comity between
states.
The correctness of counsel's position depends upon the effect a noncompliance with the
requirements of section 2965, pertaining solely to a mortgage of live stock, has upon the
original recordation of the mortgage as constructive notice. If we were dealing with that
portion of section 2965 which pertains to the removal of mortgaged personal property other
than migratory chattels, we should be impelled to conclude that failure to comply with its
requirements would exempt, ipso facto, the property from the operation of the mortgage so
far as it affects creditors, bona fide purchasers and incumbrancers. Hopper v. Keys, 152 Cal.
488, 92 P. 1017. In that case on rehearing it was held that the requirement that the mortgage,
when the property is removed, shall be filed in the county to which such removal takes place
was for the protection of creditors and bona fide purchasers and incumbrancers, and not for
the purpose of prolonging the lien as between the parties. In Hammels v. Sentous, as reported
in 151 Cal. 520, 91 P. 327, 12 Ann. Cas. 945, Hopper v. Keys, supra, is cited in support of the
proposition that, under section 2965, the omission to do the things required by the section
destroyed the effect of the original recordation of a chattel mortgage as constructive
notice to all the world.
destroyed the effect of the original recordation of a chattel mortgage as constructive notice to
all the world. No good or sufficient reason has been advanced why a failure to comply with
the requirements of section 2965, as amended, does not have the same effect upon the
original recordation of a mortgage of live stock as constructive notice. We take it that the
meaning of the word if, as used in section 2965, imports the condition that, for the
protection of the security against creditors, purchasers, and incumbrancers, a certificate of the
recordation of a mortgage of live stock shall be filed with the secretary of state within the
time and in the manner prescribed in the section.
We are not impressed with the argument of counsel that the sole purpose of the
amendment pertaining to mortgages of live stock and other migratory chattels, as
distinguished from mortgages of other personal property, was intended to relieve the
mortgagee of the necessity of refiling his mortgage in the county to which the mortgaged live
stock may be removed, and that the amendment is merely local in its operation. The plain
import of the statute as amended, in our opinion, is that nothing but a compliance with its
terms will protect a mortgage of live stock against bona fide purchasers from the mortgagor
within or without the state.
It appearing affirmatively from the pleadings that the plaintiff failed to pursue the remedy
provided in section 2965 for the protection of the lien of its mortgage, it therefore cannot,
under the doctrine of comity between states, recover the value of the property in question
from the defendant, an innocent purchaser in good faith and for value in this, the forum to
which the live stock was removed.
Other questions are discussed in the briefs which have been considered, but they do not
require special notice. The trial court's construction of section 2965, in our opinion, was
correct.
Therefore the judgment is affirmed.
____________
53 Nev. 67, 67 (1930) Quinn v. Quinn
QUINN v. QUINN
No. 2925.
October 29, 1930. 292 P. 621
No appeal lies except when authorized by statute.
Order overruling objections to allowance and settlement of proposed bill of exceptions and to
rejection of proposed modifications and amendments was not appealable (Stats. 1913, c. 91).
Appeal from Second Judicial District Court, Washoe County; Geo. A. Ballard, Judge.
Action by Anna Quinn against Frank P. Quinn. From an order overruling defendant's
objections to allowance and settlement of plaintiff's proposed bill of exceptions and to the
rejection of defendant's proposed modifications and amendments thereof, defendant appeals.
Appeal dismissed.
Wm. M. Kearney and Sidney W. Robinson, for Appellant.
Frame & Raffetto, for Respondent.
OPINION
This matter is before the court on plaintiff's motion to dismiss an appeal by Frank P. Quinn
from an order overruling defendant's objections to the allowance and settlement of the
plaintiff's proposed bill of exceptions, and to the rejection of defendant's proposed
modifications and amendments thereof.
1, 2. The motion must be granted. It has been often held by this court that no appeal lies
except when authorized by statute. Chapter 91, Stats. 1913, enumerates the instances in which
an appeal may be taken, and the order appealed from is not one of them.
53 Nev. 67, 68 (1930) Quinn v. Quinn
The method of attaining the end desired by the defendant is pointed out in Quinn v. Quinn,
No. 2912, this day decided.
It is ordered that the appeal be dismissed.
____________
53 Nev. 68, 68 (1930) Quinn v. Quinn
QUINN v. QUINN
No. 2912
October 29, 1930. 292 P. 620
Motion to strike bill of exceptions from files, together with the transcript of record on appeal and all
other papers except the judgment roll, for the reason that appellant did not serve upon respondent a
completed record within the time allowed by law and for the further reason that the appeal was not
perfected in accordance with the provisions of the statutes, held too general.
Motion for an order affirming judgment, for the reason that appellant did not, pursuant to statute, file
or serve upon respondent a completed record on appeal, and for the further reason that the appeal was not
perfected in accordance with the provisions of the statutes, held too general.
Motion for diminution of record, supported by affidavit, to bring up notice of appeal and undertaking
on appeal, will be granted.
Method of bringing up for review all orders, papers and proceedings, other than those constituting the
judgment roll proper, is by having them embodied in a bill of exceptions.
Appellate court is without authority to correct, add to, or amend a bill of exceptions unless authorized
so to do by statute. (Stats. 1923, c. 97; Rev. Laws, sec. 5316).
Appeal from Second Judicial District Court, Washoe County; Geo. A. Ballard, Judge
presiding.
Action by Anna Quinn against Frank P. Quinn. From the judgment, plaintiff appeals. On
motion by respondent to require appellant to complete transcript of testimony and to strike
from the files the bill exceptions, together with transcript of record on appeal and all other
papers except judgment roll, and to dismiss appeal and affirm judgment, with motion by
appellant for diminution of the record.
53 Nev. 68, 69 (1930) Quinn v. Quinn
together with transcript of record on appeal and all other papers except judgment roll, and to
dismiss appeal and affirm judgment, with motion by appellant for diminution of the record.
Respondent's motion denied, and motion of appellant for diminution of record granted.
Frame & Raffetto, for Appellant.
W.M. Kearney and Sidney W. Robinson, for Respondent.
OPINION
The respondent made concurrently several motions in this case. One is to require the
appellant to complete the transcript of the testimony taken in the case so as to include matter
alleged not to have been embraced in the bill of exceptions, and to embody in the record all
the pleadings. This motion is based upon the contention that the record on appeal does not
fully or accurately state the proceedings.
Counsel also move to strike from the files the bill of exceptions on file, together with the
transcript of the record on appeal and all other papers except the judgment roll, for the reason
that appellant did not serve upon respondent a completed record within the time allowed by
law, and for the further reason that the appeal was not perfected in accordance with the
provisions of the statutes.
Counsel also move to dismiss the appeal and for an order affirming the judgment, for the
reason that appellant did not, pursuant to statute, file or serve upon respondent a completed
record on appeal, and for the further reason that the appeal was not perfected in accordance
with the provisions of the statutes.
The purported record on appeal consists of two volumes, one containing the judgment roll
and the other a purported bill of exceptions signed by the trial judge.
53 Nev. 68, 70 (1930) Quinn v. Quinn
1, 2. In the recent opinion of Peri v. Jeffers, 53 Nev. 49, 292 P. 1, we held that the motion
to dismiss was too general. We think the same may be said of both the motion to strike and
the motion to affirm the judgment in this case. The opposing party, as well as this court, is
entitled to have the grounds of such motion specified.
3. Upon the argument of this matter, counsel for respondent insisted that the appeal
should be dismissed because the notice of appeal and undertaking on appeal were not brought
up with the record, as required by law; whereupon counsel for appellant made a motion for a
diminution of the record, supported by affidavit, so as to have these documents certified up,
which application should be granted.
4. The method of bringing up for review all orders, papers, and proceedings, other than
those constituting the judgment roll proper, is by having them embodied in a bill of
exceptions. Chessman v. Hillhouse, 53 Nev. 21, 291 P. 704. The manner of settling a bill of
exceptions is pointed out in chapter 97, Stats. 1923. But, if the trial judge refuses to settle a
bill of exceptions according to the facts, the aggrieved party is not without recourse. Section
5316, Rev. Laws, provides:
* * * If the judge shall in any case refuse to allow an exception in accordance with the
facts, any party aggrieved thereby may petition the supreme court for leave to prove the same,
and shall have the right so to do, in such mode and manner and according to such regulations
as the supreme court may prescribe, or by rules impose, and such exceptions as are allowed
by said supreme court shall become a part of the record of the case.
This section was alluded to in Miller v. Miller, 36 Nev. 115, 134 P. 100.
5. It was held in State v. Warren, 18 Nev. 459, 5 P. 134, that this court is without
authority to correct, add to, or amend a bill of exceptions unless authorized so to do by
statute.
It is ordered that the various motions of respondent be denied, and that the motion of
appellant for a diminution of the record so as to bring up the undertaking on appeal and
the notice of appeal be granted.
53 Nev. 68, 71 (1930) Quinn v. Quinn
be denied, and that the motion of appellant for a diminution of the record so as to bring up the
undertaking on appeal and the notice of appeal be granted.
On Motion to Dismiss the Appeal and to Affirm
the Judgment
February 27, 1931 295 P. 1111.
Motion to dismiss appeal and affirm the judgment, because bond was not approved
and annexed to a copy of the judgment roll, denied, where good and sufficient bond
was filed on the day previous to the hearing and was duly approved by the justices of
the appellate court.
On motion to dismiss the appeal and to affirm the judgment. Motion denied.
W.M. Kearney and Sidney W. Robinson, for Respondent.
OPINION
Per Curiam:
This case is now before the court on a motion to dismiss the appeal and to affirm the
judgment.
The motion is based upon the fact that the appeal bond was not approved as required by
Statutes 1927, p. 80, c. 54, and annexed to a copy of the judgment roll, as provided by statute,
Stats. 1915, c. 142, sec. 11.
Section 5358, Rev. Laws, section 8905, Nev. Comp. Laws 1929, provides that no appeal
shall be dismissed for insufficiency of the undertaking provided a good and sufficient
undertaking, approved by the justices of the supreme court, be filed in the supreme court
before the hearing upon the motion to dismiss the appeal.
A good and sufficient bond was filed on the day previous to the hearing and was duly
approved by the justices of this court; hence the motion should be denied.
Section 2, c. 97, Stats. 1923, provides that no appeal shall be dismissed for any defect or
informality in the appellate proceedings until the appellant has been given an opportunity
to correct the same.
53 Nev. 68, 72 (1930) Quinn v. Quinn
appellate proceedings until the appellant has been given an opportunity to correct the same.
Appellant is allowed fifteen days from receipt of a copy hereof in which to attach the
original bond and the one approved by this court to the judgment roll.
Motion denied.
On Respondent's Application for an Order to
Permit Him to Prove Certain Exceptions
September 3, 1931. 2 P. (2d) 130.
1. Exceptions, Bill of.
Bill of exceptions held not subject to amendment in supreme court so as to embody
all of the evidence taken. (Sec. 8872, N.C.L.).
Respondent based application on sec. 8872, N.C.L., which provides that, if the
judge shall in any case refuse to allow an exception in accordance with the facts,
any party aggrieved thereby may petition the supreme court for leave to prove the
same, and such exceptions as are allowed by said supreme court shall become a
part of the record of case. The sole object of statute is to afford relief to a party
aggrieved when a trial judge has refused to admit by allowance that a particular
ruling was made and excepted to when in fact it was made and excepted to.
Before party can apply to supreme court for leave to prove exceptions he must
exhaust his remedy in lower court (Sec. 8872 N.C.L.; Stats. 1915, c. 142, sec. 3).
Objection to proposed bill of exceptions stating that it does not contain the
substance of the proceedings relating to the point or points involved, and similar
general objections, and offer of stenographic notes of the testimony does not comply
with statute (Stats. 1915, c. 142, sec. 3).
Appeal from Second Judicial District Court, Washoe County; G.A. Ballard, Judge
presiding.
Action by Anna Quinn against Frank P. Quinn. From the judgment plaintiff appeals. On
respondent's application for an order to permit him to prove certain exceptions. Application
denied.
W.M. Kearney, for Respondent.
53 Nev. 68, 73 (1930) Quinn v. Quinn
OPINION
Per Curiam:
Respondent has applied for an order to permit him to prove certain exceptions. The case
came on regularly for trial on May 1, 1929. Testimony was taken and stenographic notes
thereof were made by the official court reporter. After the rendition of the judgment and
ruling on motion for new trial, the appellant had made up a proposed bill of exceptions
containing so much of the testimony, objections, rulings, and exceptions as she claimed was
necessary to bring to the attention of this court for its consideration in disposing of the errors
assigned and relied upon by appellant, which she tendered and asked to be settled by the court
as a bill of exceptions. On the day set for the settlement of the bill of exceptions, the
respondent appeared and objected to the settlement of the bill of exceptions, as proposed, on
the ground that the tendered bill of exceptions did not contain the substance of the
proceedings relating to the points involved therein. Furthermore, the respondent offered at
that time the stenographic notes of all of the testimony taken in the case, as a part of the bill
of exceptions.
1. This application is based upon the portion of section 8872, Nev. Comp. Laws 1929,
which reads: * * * If the judge shall in any case refuse to allow an exception in accordance
with the facts, any party aggrieved thereby may petition the supreme court for leave to prove
the same, and shall have the right so to do, in such mode and manner and according to such
regulations as the supreme court may prescribe, or by rules impose, and such exceptions as
are allowed by said supreme court shall become a part of the record of the case.
As we understand the contention of counsel for respondent, it simmers down to the
proposition that the bill of exceptions as settled does not contain all of the evidence upon the
points involved, hence it is subject to amendment so as to bring in all of the evidence.
We do not agree with the theory of the respondent.
53 Nev. 68, 74 (1930) Quinn v. Quinn
The section here relied upon was interpreted in Miller v. Miller, 36 Nev. 115, 134 P. 100,
103, where it was said:
* * * The sole purpose and aim of the statute is to permit a party aggrieved, under a
proper application to prove an exception actually taken to a ruling actually made, and when
so proven the exception and ruling and the facts applicable thereto become a part of the
record on appeal, but not in the nature of an amendment to the bill of exceptions or statement
on appeal as settled by the trial court. * * *
The sole object of the statute is to afford relief to a party aggrieved when a trial judge has
refused to allow an exception according to the facts; that is, where he has refused to admit by
allowance that a particular ruling was made and excepted to when in fact it was made and
excepted to. * * *
So far as appears, the trial court did allow exceptions according to the facts, as provided in
the section relied upon. There is no provision in our statutes requiring all of the evidence
taken to be embodied in a bill of exceptions.
2, 3. We think, too, that before one can apply to this court under the section mentioned he
must exhaust his remedy in the lower court. In other words, if he is dissatisfied with a
proposed bill of exceptions he must object thereto within the time and in the manner pointed
out in section 3, Stats. 1915, p. 164, c. 142. We do not think the respondent proceeded in the
lower court as prescribed in that section. It is true that the objection filed to the proposed bill
of exceptions states that said proposed bill of exceptions does not contain the substance of
the proceedings relating to the point or points involved. This and similar general objections
were made. We had the section last referred to under consideration in State ex rel. Gray v.
District Court, 51 Nev. 412, 278 P. 363, 365, wherein, speaking of the requirement of said
section, we said: * * * This requirement has a very definite and precise meaning. It is
opposed to any general designation. It means that the true facts, as claimed by the adverse
party, must be stated in a particular manner.
53 Nev. 68, 75 (1930) Quinn v. Quinn
must be stated in a particular manner. They must be supplied in the statement. Nowhere in
any of the objections was this attempted to be done. Plaintiff's objections should have been
disregarded. Counsel for respondents, on the hearing in this court, first took the position that,
under the circumstances of this particular case, it was necessary for the relators to furnish the
court reporter's transcript as the bill of exceptions. * * *
The offer of stenographic notes of the testimony is no compliance with the statute.
We see no theory upon which the application can be granted, and it is hereby denied.
____________
53 Nev. 75, 75 (1930) Chiatovich v. Mercer
J.M. CHIATOVICH, LILLIAN CHIATOVICH, W.N. (Marco) CHIATOVICH, and
MARGARET CHIATOVICH, Respondents v. W.B. MERCER, Sheriff of Esmeralda
County, Nevada, and the W.M. BARNETT BANK (a Corporation), Appellants.
No. 2923
October 29, 1930 292 P. 1117.
Appeal from Seventh Judicial District Court, Esmeralda County; J. Emmett Walsh, Judge.
H.H. Atkinson, for Appellants.
Forman & Forman, for Respondents.
OPINION
This is an appeal from a judgment and from an order denying appellant's motion for new
trial. The cause is now before use upon respondents' notice of motion and motion to dismiss
said appeals, upon the following grounds:
53 Nev. 75, 76 (1930) Chiatovich v. Mercer
and motion to dismiss said appeals, upon the following grounds:
(1) That no appeal from said judgment was perfected within the time required by law.
(2) That no transcript of the record on appeal from said judgment was filed within thirty
days after the service of the notice of appeal, or at all.
(3) That no bill of exceptions has been filed or served in said cause, and that the time for
filing and serving such bill of exceptions as required by law has expired.
(4) That no transcript of the record of appeal from the order overruling appellants' motion
for new trial has been filed within thirty days after the appeal was perfected, or at all.
(5) That no bill of exceptions has been served in said cause, and that the time for filing and
serving such bill of exceptions has expired.
The motion came on for hearing at the time and place specified in the notice of motion
duly served on appellants. Appellants did not appear in response to the notice, and, on ex
parte hearing, the motion, supported by the affidavits attached to and made a part of the
notice of motion, was submitted for a ruling.
Upon consideration of the supporting affidavits, we are of the opinion that the motion to
dismiss the appeals upon all of the grounds stated in the motion must be sustained.
It is so ordered.
____________
53 Nev. 77, 77 (1930) Bates v. Bates
BATES v. BATES
No. 2881
October 29, 1930. 292 P. 298.
1. Divorce.
As a matter of comity, in the absence of any showing of fraud, judgment of English court for judicial
separation for desertion operates as a bar to other spouse's action for divorce on the ground of cruelty
occurring prior to the rendition of said decree.
Testimony of English barristers disclosed that the judgment for judicial separation was granted
by a court having jurisdiction over both spouses, and that, so long as it remains in full force in
England, it will operate as a bar to other spouse's subsequent action for divorce there on the ground
of cruelty occurring prior thereto; and it further appeared from their testimony that a like judgment
of judicial separation rendered in this forum would be accorded the same effect in England.
Action for divorce by Herbert Thomas Bates against Annie Eliza Bates. From a judgment
for plaintiff, defendant appeals. Reversed.
Thatcher & Woodburn, for Appellant:
Under the principles of international comity, and by the rules laid down in most American
jurisdictions, the decree of the English court is entitled to recognition in the courts of Nevada,
unless a lack of jurisdiction appears on the face of the record; and unless such lack of
jurisdiction appears, Mr. Bates is bound by the decree of that court as to all matters properly
before it, and all matters directly incidental to or involved in the case presented.
The depositions of the English barristers show that the jurisdiction of the English court in
an action for judicial separation is based either on (1) the domicile of the husband in England
when the suit is commenced, and/or (2) the residence of both parties in England at the
commencement of the suit. It is obvious that Mr. Bates did not reside in England at the time
the petition was filed, this fact being admitted in Mrs. Bates's petition.
53 Nev. 77, 78 (1930) Bates v. Bates
petition. Therefore the court must have found a jurisdiction based on the domicile of the
husband, unless we are going to charge the English court with entertaining a case in which no
jurisdiction at all was shown. The petition contains the allegation that he was domiciled in
England, and under rules of law that have been laid down in many American jurisdictions,
including Nevada, it is conclusively presumed, in a collateral proceeding, that the evidence
offered to the English court sustained this allegation, even though the English decree contains
no specific finding relative thereto. 2 R.C.L., p. 219, sec. 184, Appeal and Error; Jones v.
Adams, 19 Nev. 78; Confer v. District Court, 49 Nev. 18.
The depositions of the English barristers show that under all of the facts brought out in the
pleadings in our courts here in Nevada the English decree is still unassailable in the English
courts. They show that by the law of England Mr. Bates might have pleaded as a defense to
her action any conduct which the English tribunals would have * * * considered cruel and
which either injured his health or made injury a result reasonably to be expected, or any
conduct which in the opinion of the English court justified him in leaving her; and that after
having failed to do so he may not now bring forward any such facts, since a decree based
thereon would be inconsistent with the finding necessarily involved in her decree, namely,
that he had no reasonable excuse for deserting her. These depositions also prove that Mr.
Bates is now estopped per rem judicatam from alleging in the English courts any matters
relating to her conduct which would have been an absolute or discretionary bar against her
having obtained the judgment or from alleging any matters which at the time of the judgment
deprived the court of jurisdiction. In other words, the notice which was served on Mr.
Bates in Toronto was sufficient to bring him within the rule of Henderson v. Henderson
(1843), 3 Hare 100, 114, quoted in the transcript requiring him to bring forth his entire
defense to her action under penalty of being forever barred per rem judicatam from setting up
any facts relating not only to points upon which the court was actually required by the
parties to form an opinion and pronounce a judgment but to every point which properly
belonged to the subject of litigation and which the parties, exercising reasonable
diligence, might have brought forward at the time."
53 Nev. 77, 79 (1930) Bates v. Bates
was actually required by the parties to form an opinion and pronounce a judgment but to
every point which properly belonged to the subject of litigation and which the parties,
exercising reasonable diligence, might have brought forward at the time.
It is interesting to note the similarity between this English rule and the rule which prevails
in American courts, both state and federal. Firestone Tire & Rubber Co. v. Marlboro Cotton
Mills, 278 Fed. 816; Last Chance Mining Co. v. Tyler Mining Co., 157 U.S. 683, 39 L. Ed.
859; Bryan v. Kennett, 113 U.S. 179, 29 L. Ed. 908, at 914; Flynn v. Flynn (Cal.), 154 P. 837;
Sodini v. Sodini (Minn.), 102 N.W. 861; Smith v. Smith, 101 Ill. App. 187, at 189; Southern
Pac. R. Co. v. United States, 168 U.S. 1, 42 L. Ed. 355; Postal Telegraph-Cable Co. v.
Newport, 247 U.S. 464, 62 L. Ed. 1215, at 1221; Oklahoma v. Texas, 236 U.S. 70, 65 L. Ed.
831; 15 R.C.L. 976, sec. 451, Judgments.
In his complaint in the instant case Mr. Bates does not specify the time when the alleged
cruel conduct of Mrs. Bates occurred, but his testimony placed it all prior to the separation of
December 2 or 3, 1919. All of it was therefore available to him on April 18, 1925, when he
was personally served with notice of the proceedings instituted by her in London.
By American law, as set forth in the foregoing citations, his default amounts to an
admission of the charges contained in Mrs. Bates's petition, namely, that he was domiciled in
England at the time, that he deserted her, and that he had no reasonable excuse for such
desertion. These are points that were involved in and necessarily incident to the main
question presented in her petition, and fall within the embrace of the rules enunicated in the
decisions of the United States Supreme Court, and in the other authorities cited.
Roberts, Scanlan & Ingram, for Respondent:
The English decree did not operate as a bar or estoppel to plaintiff's action here, for the
reason that it was not a valid judgment in England. The uncontradicted testimony of Mr.
Bates is that he moved from England to Scotland in 1913 with the intention of making
Rothesay, Scotland, his home; he lived there till June, 1920, and then moved to Canada.
53 Nev. 77, 80 (1930) Bates v. Bates
to Scotland in 1913 with the intention of making Rothesay, Scotland, his home; he lived there
till June, 1920, and then moved to Canada. He established his home in Toronto, Canada, and
so advised defendant. Defendant started her English action on June 16, 1924, over three years
after she received this information and eleven years after plaintiff had lived or had a domicile
in England, and judgment was rendered thirteen years after Mr. Bates was domiciled in
England. The defendant falsely alleged plaintiff's domicile in England, at the time of her
English action, to confer a jurisdiction upon an English court.
The jurisdiction of a foreign court may be inquired into upon collateral attack, and when
such judgment is void it is a nullity and entitled to no credit. Grace Huston v. National City
Bank of Chicago, 51 App. D.C. 394, 280 Fed. 625; Walker v. Walker, Ann. Cas. 1916b 939,
and cases cited; Barber v. Barber, 16 U.S. (L. Ed.) 226; Haddock v. Haddock, 201 U.S. 562;
Bell v. Bell, 181 U.S. 175; Thompson v. Whitman, 21 U.S. (L. Ed.) 897; Streitwolf v.
Streitwolf, 45 U.S. (L. Ed.) 807; Andrews v. Andrews, 47 U.S. (L. Ed.) 366; Thompson v.
Whitman, 21 U.S. (L. Ed.) 897, and cases cited; 34 C.J. 1168; French Mutual General Society
v. U.S. Fidelity, 203 Fed. 558.
Under English law judgments of the courts of the various component parts of the British
Empire are looked upon in other portions of the Empire as foreign judgments merely. In
Canada a judgment rendered in one province is a foreign judgment in every other province.
34 C.J. 1125, par, 1602, and cases cited.
The presumptions indulged in support of the judgments of superior courts of general
jurisdiction are also limited to jurisdiction over persons within their territorial limits, persons
who can be reached by their process, and also over proceedings which are in accordance with
the course of the common law. Galpin v. Page, 18 Wall. (U.S.) 35, 21 L. Ed. 958; Bischoff v.
Wethered, 9 Wall. 812, 19 L. Ed. 829; 15 R.C.L. sec. 401, p. 920.
53 Nev. 77, 81 (1930) Bates v. Bates
If it is admitted for the sake of argument that the English judgment is a valid one,
nevertheless, it is not entitled to credit as a bar or estoppel to plaintiff's action here as a matter
of international comity. Hilton v. Guyot, 159 U.S. 113, 40 L. Ed. 95; Warren v. Warren,
L.R.A. 1917 Ed.; St. Sure v. Lindefelt, 19 L.R.A. 515.
To be convinced that the English court would not recognize a decree of judicial separation
granted Mrs. Bates in the State of Nevada if the respondent, Mr. Bates, had maintained his
Scottish domicile or had established an English domicile after July, 1929, the court is referred
to Warrender v. Warrender, 2 Clark & F. 541; Shaw v. Gould L.R., 3 H.L., case 55.
Using only the defendant's witnesses' testimony, it is apparent that the English court
acquired no jurisdiction to render a judgment which would be recognized under the rules of
comity by England, and it is therefore not entitled to such recognition by Nevada. Rex v.
Brinkley, 14 Ontario Law Reports 434, 10 Ant. Cases, 407, and cases cited; Dean v. Dean, 42
A.L.R. 1399, and cases under the second proposition.
The court of the domicile of the husband (Canada) at the time of the institution of this suit
would not recognize a decree in bar of this character. Rex v. Brinkley, supra; Dean v. Dean,
supra.
In England and Canada a judgment by default has been held not conclusive as to defenses
which might have been litigated. 34 C.J. 78; Howlett v. Tarte, 10 C.B.N.S. 813; 100 E.C.L.
813; Harper v. Cameron, 2 B.C. 365.
And if it is admitted for the sake of argument that the English judgment is a valid
judgment and entitled to international comity, it is not a bar to this action, in that it is on a
different cause of action. 34 C.J. 816, n. 83; 19 C.J. 176, n. 80; Cooke v. Cooke, 248 P. 102;
City of Cromwell v. County Sac., 94 U.S. 351, 24 L. Ed. 681; Keizer, Marriage and Divorce
(2d ed.), sec. 21; Richards v. Richards, 87 Misc., 134, 23 Cyc. 1534; Sweet v. Sweet, 49 Nev.
259, 243 P. 817; Cooke v. Cooke, 80 S.E. 179; Foxwell v. Foxwell (Md.), 84 Atl.
53 Nev. 77, 82 (1930) Bates v. Bates
552; Nelson on Divorce, note 4, vol. 1, p. 515; 19 C.J. 177; 42 A.L.R. 1366; Butts v. Butts,
152 Ark. 399, 238 S.W. 600; Richards v. Richards, 87 Misc. 134, 149 N.Y.S. 1028; 9 R.C.L.
270; and other authorities.
The English decree of judicial separation did not act as a bar, as it did not effect the marital
status and was not a final decree. Pettis v. Pettis, 91 Conn. 608, 101 Atl. 13, 4 A.L.R. 857;
and other authorities.
From the testimony of the English barristers, the courts of England are without jurisdiction
to grant a divorce on the grounds of extreme cruelty, and hence the plaintiff in the trial court
could not secure the relief desired upon a counterclaim against his wife's action for a judicial
separation. In courts of limited jurisdiction the right of a defendant to bring suit on the excess
of jurisdiction is universal. See cases collected in 8 A.L.R. 741. It will also be found in these
cases that where the set-off or counterclaim is in excess of the jurisdiction that the defendant
may institute distinct suit without pleading in court of limited jurisdiction. See, also,
Greenleaf on Evidence, sec. 524; 34 C.J. 867.
OPINION
This action was commenced in the court below in 1927 by Herbert Thomas Bates against
his wife, Annie Eliza Bates, for divorce on the statutory ground of extreme cruelty. After a
full hearing upon the pleadings and evidence, judgment was for the husband; the wife
appeals. The facts and the applicable law being somewhat involved, we shall for clearness
give a brief history of the case. The parties are English subjects; they intermarried at
Penshurst, County of Kent, England, on July 15, 1908. The child issue of the marriage,
Gladys Annie, now living, was born in December, 1911.
From the time of marriage up to January, 1913, their marital domicile was in England
where the husband, an electrical engineer by profession, was in the employ of an English
public utility corporation.
53 Nev. 77, 83 (1930) Bates v. Bates
an electrical engineer by profession, was in the employ of an English public utility
corporation. From January, 1913, up to December, 1919, the parties resided at Rothesay,
Buteshire, Scotland, where the husband was employed as manager of a tram railway system
in that city operated by said English public utility corporation.
Domestic differences having arisen between the parties of such nature and character as to
threaten their permanent separation, on December 3, 1919, the parties entered into an
agreement whereby it was understood and agreed that the wife should return to England and
live with her parents for a period of six months, the husband to pay during that time two
English pounds weekly for her support and the maintenance of their child. The agreement was
carried out. The avowed and confessed purpose of the agreement was that it was considered
at the time that at the expiration of six months the parties would become reconciled to each
other and resume their marital relation in peace and harmony; but unfortunately the
agreement failed of its purpose; it proved to be the climax of their conjugal life; they never
again lived together.
In July, 1920, the husband left Scotland and went to Toronto, Canada. An extended
correspondence was carried on between the parties in which there was a running discussion as
to the terms and conditions upon which their marital relation should be resumed. Many of the
letters exchanged between them are in evidence; extracts from certain of the letters which
seem to express their true feelings towards each other follow. One from the husband, dated at
Toronto, Canada, in November, 1920, reads:
Dear Annie * * * It is too late in the day for you to talk about us living happily
together. No one can act as you did in the past and make the vilest of insinuations and then
expect affection in return. Your mother instead of helping to mend matters did her best to
widen the breach, and finished up by calling me among other things a blackguard.' I think
she might have played the part of a mother better if she had shown you the folly of your
ways, and pointed out to you that your first duty was to your home and husband instead
of absenting yourself for so many months annually as you did.
53 Nev. 77, 84 (1930) Bates v. Bates
you the folly of your ways, and pointed out to you that your first duty was to your home and
husband instead of absenting yourself for so many months annually as you did. I certainly
expressed no wish' that you should come out here in any previous letter. I said if you wished
to join me for the sake of Gladysand Gladys onlyI would send your passages.' It was
merely a suggestion for her sake, and if you take it up you must clearly understand that it is
purely a business arrangement and must stop there. My personal feelings are against any
resumption of our former life and except for Gladys I would not consider sharing the same
roof with you. There is, and can be, no question of affection as you managed to kill any there
ever was a long time ago. I hope this letter makes it quite clear to you this time as I don't want
you to come out with any wrong impressions.
Yours &c. Herbert.
A letter of the wife, dated at Penshurst, England, on October 28, 1920, reads:
My dear Herbert: * * * This last year has been haunted every day by thoughts of you, & I
have always had the hope of our reconciliation before me & if you could only believe in me a
little more I think we could still live a happy life together again, if you really want me to
come. Of course I am only too anxious to join you and that we should have a happy home
together. Please let me know the address where I am to come to you and send me our tickets
for the voyage and the rail and the necessary money that I shall require for our outfit and for
the journey. Where do you think of settling in Canada or the States? Of course you will send
me further particulars before sending me the tickets &c as I shall need a little time to get
ready and must buy some warm clothing. * * * I remain
Your loving wife Annie.
In January, 1921, the wife wrote as follows:
Dear Herbert, I was very surprised and put out to get such an unkind letter from you just
before Christmas, in answer to mine, saying, I was quite willing to join you in Canada.
53 Nev. 77, 85 (1930) Bates v. Bates
willing to join you in Canada. Your know yourself that we were very happy together until you
met Mrs. Matthew and even now I am still willing to come out in Canada and try to live
happily together again.
I cannot understand why you are not more open with me and tell me what you are doing
&c towards making a home for Gladys & me, at present you have told me nothing.
And the only address I have is c/o Post Office, Toronto, surely you cannot think it right or
reasonable to ask me & Gladys to cross the ocean and come to a great city like Toronto
without knowing where you are living or what address we are to ask for. * * * I remain
Your living wife Annie.
Their correspondence seems to have ended abruptly in April, 1921. The husband never
returned to England or to Scotland, and the wife never left England.
On January 16, 1924, Annie Eliza Bates filed a petition against Herbert Thomas Bates in
the High Court of Justice, Probate, Divorce, and Admiralty Division (Divorce) England. The
petition, after reciting the marriage, the issue thereof, and the residence of the petitioner in the
County of Kent, England, proceeds as follows:
That the said Herbert Thomas Bates is an engineer that his address is c/o General Post
Office Toronto Canada and that he is domiciled in England.
That there have been no previous proceedings in this Division with reference to the said
marriage.
That the said Herbert Thomas Bates has deserted your petitioner for two years and
upwards without reasonable excuse.
Your petitioner therefore humbly prays that your Lordship will be pleased to decree:
That she may be separated from the said Herbert Thomas Bates and that she may be
granted the custody of the child of the said marriage Together with such further and other
relief as may be just.
The record discloses that a certified copy of said petition, together with the
indorsements thereon, was sealed, directed and mailed to Herbert Thomas Bates, cJo
General Post Office, Toronto, Canada, Engineer.
53 Nev. 77, 86 (1930) Bates v. Bates
petition, together with the indorsements thereon, was sealed, directed and mailed to Herbert
Thomas Bates, c/o General Post Office, Toronto, Canada, Engineer. The indorsement on the
petition was:
Take notice that you are required within forty days after service hereof upon you
inclusive of the day of such service to enter an appearance either in person or by your
Solicitor at the Divorce Registry of the High Court of Justice at Somerset House Strand in the
County of London should you think fit so to do and thereafter to make answer to the charge in
this petition and that in default of your so doing the court will proceed to hear the said
charges proved and pronounce Judgment your absence notwithstanding. * * *
(Signed) H.F.C. Norbury, Registrar.
It is conceded that the petition with the indorsements was received in due course of mail,
and that the respondent did not appear or answer the wife's petition as commanded, or at all.
On the 8th day of February, 1926, in said High Court of Justice, Probate, Divorce, and
Admiralty Division (Divorce), before the Right Honorable Lord Merrivale, the president,
sitting at the Royal Courts of Justice Strand in the County of Middlesex, England, said
petition of Annie Eliza Bates v. Herbert Thomas Bates came on for hearing. After taking the
oral evidence of the petitioner in support of the petition, and after having heard counsel
thereon on behalf of the petitioner, the president by his final decree pronounced a decree of
judicial separation between Annie Eliza Bates and Herbert Thomas Bates, by reason that the
said Herbert Thomas Bates had deserted the said Annie Eliza Bates for two years and
upwards without reasonable excuse. On the application of counsel for the petitioner, it was
ordered that the child issue of the marriage remain in the custody of the petitioner until
further order of the court.
Herbert Thomas Bates left Toronto, Canada, and arrived in the city of Reno, Washoe
County, State of Nevada, on the 13th day of October, 1926. Thereafter, on, to wit, March 23,
1927, Herbert Thomas Bates filed his bill or complaint in the court below against Annie
Eliza Bates for a divorce, on the ground of extreme cruelty, and thereafter, on, to wit,
June 9, 1927, with leave of court, filed his amended complaint.
53 Nev. 77, 87 (1930) Bates v. Bates
on, to wit, March 23, 1927, Herbert Thomas Bates filed his bill or complaint in the court
below against Annie Eliza Bates for a divorce, on the ground of extreme cruelty, and
thereafter, on, to wit, June 9, 1927, with leave of court, filed his amended complaint.
The amended complaint, after setting forth the intermarriage of the parties, the child issue
thereof, and, after alleging the necessary jurisdictional fact of the plaintiff's bona fide
residence for three months immediately preceding the commencement of the action in the
county of Washoe, State of Nevada, proceeded to allege that since their intermarriage the
defendant had been guilty of extreme cruelty to and towards the plaintiff, as follows:
1. That commencing during the year 1913, and continuing thereafter, the defendant
adopted and followed a premeditated course of conduct consisting of nagging and finding
fault with the plaintiff.
2. That the defendant became cold and distant to and toward the plaintiff and frequently
left the home of the parties and remained away for months at a time, against plaintiff's will
and consent, which conduct embarrassed the plaintiff through the gossip of plaintiff's friends
and acquaintances.
3. That the plaintiff's occupation at Rothesay, Scotland, was such that required certain
hospitality and social intercourse, and that plaintiff was required to and did accept invitations
from business and personal friends, but, owing to the unconcern and indifference on the part
of the defendant, the plaintiff was humiliated and embarrassed at his inability to return such
hospitality.
4. That on one occasion the defendant removed her personal effects and part of the
household furniture and wedding presents without any explanation to plaintiff, which conduct
caused the plaintiff much mental anguish and worry.
5. That on account of defendant's frequent and continued absence from home, the child of
the parties became almost a stranger to the plaintiff, resulting in diminishing the child's love
and affection for plaintiff.
53 Nev. 77, 88 (1930) Bates v. Bates
diminishing the child's love and affection for plaintiff.
6. That the defendant took no interest in plaintiff's affairs or social life and exhibited utter
indifference to his affairs and home life, and that such conduct caused the plaintiff mental
suffering and worry.
7. That because of the continued separation of the plaintiff and defendant, and through
defendant's absences from their home, the defendant told plaintiff that her father had said to
her in effect that, as they were not cohabiting, the plaintiff must be going with other women,
and the defendant stated that she believed such to be true, thereby insinuating that plaintiff's
conduct with other women was improper.
8. That the defendant was extremely jealous of plaintiff and frequently accused him of
posing as a single man during the defendant's absence, and stated to the plaintiff: You are
too fond of other women. And on another occasion, when the duties of the plaintiff took him
to a neighboring town where he was required to stay over night, on his return the defendant
asked plaintiff the question: What girl did you spend your time with last night?
9. That the defendant constantly assumed a haughty attitude towards plaintiff, and in the
presence of plaintiff's friends would refuse to repay the hospitality shown the plaintiff while
the defendant was absent from home, and the defendant would frequently slight plaintiff's
friends in order to hurt plaintiff's feelings.
10. That the plaintiff's occupation did not require his employment on Sunday, and that
when the family cook was off duty on Sunday the defendant refused to get plaintiff's
breakfast, which made it necessary for plaintiff to do much of the household work.
11. That on one occasion the defendant, in the presence of plaintiff's friends, made a
remark which humiliated the plaintiff, and frequently by her attitude and expressions showed
dissatisfaction and discontent with being married to plaintiff, such as declaring in substance:
It's a pity you were not sent to France as you might have been killed and I would have been a
widow.
53 Nev. 77, 89 (1930) Bates v. Bates
And also by declaring: You are a blackguard and I wish I had never married you.
The complaint concludes with the statement that plaintiff and defendant are both educated
and refined persons, and that, by reason of the aforesaid acts of extreme cruelty on the part of
the defendant to and towards the plaintiff, plaintiff suffered great and grievous mental pain,
so that plaintiff's life had become miserable and unhappy and his health had become
impaired, and that the object of the marriage had been destroyed, and that further cohabitation
of the plaintiff with the defendant was unbearable and impossible, and that there was no
possibility of a reconciliation between the parties. Wherefore the plaintiff prayed judgment
for divorce, and that the parties be restored to the status of unmarried persons.
The defendant, through her counsel, interposed a demurrer to the complaint, which was
overruled; thereupon she answered the complaint and for answer specifically denied each and
every of its allegations charging the defendant with marital misconduct and ill treatment, and,
in addition to her denials and for separate defense, set up the decree of judicial separation
pronounced by said English court hereinabove referred to. The defendant, by way of
counterclaim, alleged, in substance, the plaintiff's desertion of the defendant for a period of
more than two years immediately preceding the commencement of his action, without cause
or fault on the part of the defendant, and that for said period of time the plaintiff had failed
and neglected to provide the defendant and her child with the common necessities of life, and
that such failure and neglect was willful and not due to poverty which could not be overcome
by ordinary industry; she alleged that $100 per month was necessary for her support and the
maintenance of her child; wherefore she demanded judgment against the plaintiff for the sum
of $100 per month, payable each and every month thereafter, and prayed that she be granted a
decree for separate maintenance.
The plaintiff made reply to the new matter contained in the defendant's answer, and for
reply denied that said English decree of judicial separation between the parties operates
as a defense or bar or estoppel to the plaintiff's cause of action, for the reasons that said
English court was without jurisdiction of the subject matter and of the parties, and that
the cause of action upon which said English decree of separation for desertion was
rendered was different from that of the plaintiff's cause of action for divorce in Nevada
for cruelty.
53 Nev. 77, 90 (1930) Bates v. Bates
in the defendant's answer, and for reply denied that said English decree of judicial separation
between the parties operates as a defense or bar or estoppel to the plaintiff's cause of action,
for the reasons that said English court was without jurisdiction of the subject matter and of
the parties, and that the cause of action upon which said English decree of separation for
desertion was rendered was different from that of the plaintiff's cause of action for divorce in
Nevada for cruelty.
The plaintiff for reply also denied the allegations contained in the defendant's so-called
counterclaim, and in this connection alleged, in substance, that in December, 1913, the parties
entered into an oral agreement whereby they were to live separate and apart for a period of six
months, and during said period the plaintiff was to pay to the defendant two English pounds
per week, and that, upon the termination of said six months, the plaintiff and defendant were
to again resume cohabitation as husband and wife; that during said six months the plaintiff
did pay to the defendant said sum per week, and that at the end of said time, and ever since,
the defendant has willfully failed and refused to cohabit with the plaintiff, in accordance with
said oral agreement. The plaintiff for reply denied that the sum of $100 per month was
necessary for the support and maintainance of the defendant and their minor child, and in this
connection alleged that the defendant had an income from her own personal property of
approximately five hundred English pounds per year; wherefore the plaintiff prayed that the
defendant take nothing by her amended answer and counterclaim, and that the plaintiff have
the relief prayed in his complaint.
Upon the trial, the plaintiff testified, as a witness in his own behalf, respecting the married
life of the parties, and in support of the allegations of his complaint charging the defendant
with extreme cruelty. The defendant did not appear in person at the trial; the evidence on her
part is in form of depositions consisting of the deposition of the defendant, that of her father,
and those of two English barristers at law, Geoffrey Clifford Tyndale and Thomas Bucknill.
53 Nev. 77, 91 (1930) Bates v. Bates
The case was tried to the court, without the assistance of a jury; upon the conclusion of the
trial, the court took time to consider of its decision, and thereafter, in its opinion filed in the
cause, intimated that the case was one for reconciliation, but that, the parties not having taken
advantage of the opportunity afforded for that purpose, the court decided that the plaintiff was
entitled to judgment. In accordance with its opinion and decision, the court found in
substance that all the allegations of the plaintiff's complaint were true and supported by the
evidence; and expressly found that the English decree of judicial separation granted the wife
in evidence did not constitute a defense or bar to the plaintiff's cause of action for divorce in
Nevada on the ground of extreme cruelty. The court further found that the allegations
contained in the defendant's counterclaim or cross-complaint were not true and not sustained
by the evidence. From these findings the court concluded that as a matter of law the plaintiff
was entitled to a divorce, and that the parties should be restored to their original status as
unmarried persons. Upon the court's findings and conclusions it was so adjudged and decreed.
As many as fourteen errors are assigned for the reversal of the judgment and the order
denying the wife a new trial. So far as the appeal taken from the order denying and overruling
the defendant's motion for new trial is involved, the assignments of error are directed mainly
to the question of the legal sufficiency of the evidence to support the finding of the trial court
that the allegations contained in the plaintiff's complaint charging the defendant with
extreme cruelty are true and sustained by the evidence. So far as the validity of the judgment
is assailed, the assignments are directed mainly to the findings that the decree of judicial
separation of the parties in England pleaded as a complete defense is not a bar to the
plaintiff's securing the relief prayed for in his complaint. So far as the assignments pertain to
the finding of the trial court that the allegations contained in the defendant's counterclaim are
untrue and not supported by the evidence, the assignments are directed mainly to the point
that the evidence is not sufficient to support the findings.
53 Nev. 77, 92 (1930) Bates v. Bates
evidence, the assignments are directed mainly to the point that the evidence is not sufficient
to support the findings.
I am clearly of the opinion that the plaintiff did not allege and prove such acts of marital
misconduct or ill treatment on the part of the defendant as to entitle him to a divorce on the
ground of extreme cruelty. The most serious charge made in the complaint is, in substance,
that, commencing during the year 1913, the defendant became cold and distant to and towards
the plaintiff and frequently would leave plaintiff's home and remain away for months at a
time against plaintiff's will and consent and without informing plaintiff as to when she would
return. The evidence does not support the allegation; on the contrary, according to plaintiff's
own testimony given on cross-examination, he admits that the wife's absence from home was
with his knowledge, acquiescense, and consent. The proof shows that the absences
complained of in each instance were occasioned by the wife's visits with her parents and her
husband's relatives with the husband's approval. Furthermore, I am satisfied from the
evidence, particularly the letters in evidence, that the absences of the wife had nothing
whatever to do with the voluntary separation of the parties on December 3, 1919. This
correspondence tends to show that there was no friction or quarrelling between the parties
prior to the husband's meeting with one Mrs. Matthew, and a letter which purports to have
been written by him to said Mrs. Matthew fell into the hands of Mrs. Bates, which letter is
designated in the record as the sweetheart of mine letter.
I am further of the opinion that the allegations contained in the complaint, when taken and
considered in the light of the evidence, do not, either singly or collectively, amount to legal
cruelty.
Whether or not the judicial decree of separation granted the wife by the English High
Court of Justice on February 8, 1926, constitutes a defense to the plaintiff's subsequent cause
of action for divorce in Nevada on the ground of alleged cruelty occurring prior to the
rendition of said decree is considered by us to be a question of first and controlling
importance in the case.
53 Nev. 77, 93 (1930) Bates v. Bates
rendition of said decree is considered by us to be a question of first and controlling
importance in the case. This, aside from my individual views as to the merits of the case of
either party.
The depositions in evidence of the English barristers at law, Mr. Tyndale and Mr.
Bucknill, deal solely with the validity and effect of the English decree of separation; both Mr.
Tyndale and Mr. Bucknill are barristers at law of the Honorable Societies of the Inner and
Middle Temples, learned in the English law, and have practiced for many years exclusively in
the Probate, Divorce, and Admiralty Division of the High Court of Justice.
It is conceded, or must be conceded, that a suit for judicial separationdivorce a menso et
thorobeing instituted primarily, not for the purpose of dissolving the marriage, but for the
protection of the wife or husband, as the case may be, does not affect the marital status; it is
not a final decree, but is terminable at any time by the reconciliation of the parties. Such a
decree has no resemblance to a judgment in rem. Pettis v. Pettis, 91 Conn. 608, 101 A. 13, 4
A.L.R. 852; Piggot on Foreign Judgments and Jurisdiction (Eng. 3d ed.), page 192.
This being so, the question arises, what is the extraterritorial operation of a decree of
judicial separation? The modern tendency in this country, say annotators, is to recognize
foreign judgments in personam as conclusive, where they are rendered on the merits, in
foreign courts having jurisdiction of the parties. See Johnston v. Compangie Generale
Transatlantique, 46 A.L.R. 435, note 3, page 450, entitled Judgments in personam, not
affecting status. 242 N.Y. 381, 152 N.E. 121.
The learned barristers at law inform us that the High Court of Justice, which pronounced
the decree in question, has jurisdiction to grant judicial separation in two cases, namely: (1)
Where at the commencement of the suit both parties are resident in England; (2) Where at the
commencement of the suit the husband is domiciled in England. We also infer from their
testimony that an order for service abroad of a petition for judicial separation is permissible
under the English practice.
53 Nev. 77, 94 (1930) Bates v. Bates
separation is permissible under the English practice.
One of the cross-interrogatories propounded each of the barristers was, in substance,
referring to the purported judgment of the High Court of Justice: Does such judgment state
jurisdictional grounds or jurisdictional facts sufficient to permit it to be pleaded in bar or res
judicata if the jurisdiction of such court is questioned as to the domicile and residence of the
defendant in such judgment? The answer of Mr. Tyndale to the question was as follows:
On February 8th, 1926, Mr. Bates was a resident out of the jurisdiction (See Paragraph 5
of Mrs. Bates' Petition Exhibit C). The Petition was duly served upon him. The said
Paragraph 5 alleges, That the said Herbert Thomas Bates is an Engineer that his address is
c/o General Post Office Toronto Canada and that he is domiciled in England.'
In these circumstances the jurisdiction of the English Court depended on Mr. Bates
having been at material times domiciled in England. He did not defend and allege the
contrary. He is, therefore, estopped per rem judicata from ever alleging against his wife that at
the time of the decree he was not domiciled in England.
From this statement of the law of England, it would appear that Mrs. Bates could not and
would not have been granted a decree for judicial separation against her nonappearing
husband unless she established to the satisfaction of the English court pronouncing the decree
that Mr. Bates, her husband, at the time was domiciled in England, was duly served with
process, and that he had deserted Mrs. Bates for a period of two years and upwards without
reasonable excuse. What then, if any, is the extraterritorial operation of the decree for
separation in question? In Foote's treatise on Private International Jurisprudence (4th ed.), p.
124, a standard English authority, he states: It would appear that decrees for judicial
separation, pronounced by Courts other than those of the domicile, can have no
extra-territorial operation, and will only remain effective so long as the spouses (or at any rate
one of them) remain within the jurisdiction.
53 Nev. 77, 95 (1930) Bates v. Bates
Upon this authority it would appear that the decree for judicial separation in question,
pronounced as it was by a court of the domicile, is to be accorded extra-territorial operation
and effect, so long as one of the spouses remains within the jurisdiction. Mr. Bates, although
served with process, did not appear in the English suit to contest the jurisdiction of the
English court upon the ground that he was not domiciled in England.
Counsel for Mr. Bates insist that the decree for judicial separation in question cannot be
accorded the force of res judicata, for the reason that the English judgment or decree for
separation is based on the ground of the plaintiff's desertion without reasonable excuse,
whereas plaintiff's suit for divorce in Nevada is based on the ground of cruelty. The answer of
the English barristers to this contention is that the acts complained of in the plaintiff's
complaint here could have been pleaded in the English suit and would have constituted a
defense, if the English court held that as a matter of law the acts complained of negatived
desertion. Further in this connection, the barristers testified that extreme cruelty is not a
term known to the English law. If, however, Mr. Bates had been able to allege and to
establish against his wife conduct which the English tribunal would have in the circumstances
considered cruel, and which either injured his health or made injury a result reasonably to be
expected, he would have had an answer to his wife's petition. Further in this regard they
testified that any conduct by a wife which, in the opinion of the English court, justifies a
husband in leaving her, if pleaded and established, is conclusive answer to a petition for
judicial separation on the ground of desertion, because a wife cannot prove desertion without
reasonable excuse. The testimony of the barristers in this regard is predicated upon the
holding in Henderson v. Henderson, 3 Hare, 100, that the plea of res judicata applies, not only
to points upon which the court was actually required by the parties to form an opinion and
pronounce a judgment, but to every point which properly belonged to the subject of
litigation, and which the parties, exercising reasonable diligence, might have brought
forward at the time; in other words, we take it that, where both parties are before the
court, the decree is conclusive as to the issues of fact upon which it is based, Harding v.
Harding, 19S U.S. 317, 25 S. Ct. 679, 49 L. Ed. 1066.
53 Nev. 77, 96 (1930) Bates v. Bates
the subject of litigation, and which the parties, exercising reasonable diligence, might have
brought forward at the time; in other words, we take it that, where both parties are before the
court, the decree is conclusive as to the issues of fact upon which it is based, Harding v.
Harding, 198 U.S. 317, 25 S. Ct. 679, 49 L. Ed. 1066.
Guided as we are by the testimony of the English barristers, we are assured that the
judgment for judicial separation in question was granted by a court having jurisdiction in
personam over both spouses, and that, so long as it remains in full force in England, it will
operate as a bar to plaintiff's subsequent action for divorce thereon the ground of cruelty
occurring prior to the rendition of said decree, and, it further appearing from the testimony of
the English barristers that a like judgment of judicial separation rendered in this forum would
be accorded the same effect in England, we conclude that, in the absence of any showing of
fraud, as a matter of comity the judgment for judicial separation in question operates as a bar
to the plaintiff's action for divorce on the ground of cruelty occurring prior to the rendition of
said decree. Entertaining these views, we are of opinion that the trial court erred in finding
and adjudging that said decree for separation did not deprive plaintiff of the relief prayed in
his complaint in this action.
The judgment is reversed.
Ducker, C.J., and Coleman, J.:
We concur in the order of reversal solely on the ground that the judgment of judicial
separation rendered in the English court is res adjudicata.
March 25, 1931.
Per Curiam:
Rehearing denied.
____________
53 Nev. 97, 97 (1930) Jewell v. Jewell
JEWELL v. JEWELL
No. 2802
November 5, 1930. 292 P. 616.
1. Divorce.
Facts held to support finding of nonsupport by husband. (Rev. Laws, sec. 5838, subd. 7).
2. Divorce.
Neglect of husband to provide necessaries, if able, need not be willful in order to amount to
nonsupport within the meaning of the statute, but may arise from shiftlessness as well as from intention.
(Rev. Laws, sec. 5838, subd. 7).
3. Husband and Wife.
It is duty of husband to provide necessaries for wife, if able, unless legally excusable.
Action for divorce by Minnie M. Jewell against Isaac R. Jewell. From a decree of divorce
in favor of the wife, the husband appeals. Affirmed.
Thatcher & Woodburn, for Appellant:
The testimony in this case does not justify a finding that the defendant failed, neglected
and refused support the plaintiff for one year prior to the commencement of the action, nor
does it justify the entry of a decree of divorce upon such grounds. There is no evidence that
the plaintiff ever asked the defendant for any money during the period, nor is it shown
affirmatively that she was ever deprived of the necessaries of life. The husband had always
supported her, and testified that he was willing to provide for her, to comply with any order
that the court might feel reasonable, and give her any money that she needed for her support,
regardless of court order. The mere failure of the defendant to give his wife money is not a
failure to support. Donley v. Donley, 131 S.W. 356; 19 C.J. sec. 145, p. 72. See, also, Baker
v. Baker (Cal.), 143 P. 607 and 608; Ann. Cas. 1916a, 854, note at 856; 19 C.J., sec. 148, p.
73.
Where the earnings of the husband and wife are community property and they are retained
by the wife and are sufficient for her support, she may not secure a divorce upon the
grounds of nonsupport.
and are sufficient for her support, she may not secure a divorce upon the grounds of
nonsupport. Baker v. Baker, supra; 19 C.J., sec. 148; Rycraft v. Rycraft, 42 Cal. 444;
Washburn v. Washburn, 9 Cal. 475; Hansen v. Hansen, 150 P. 70.
Milton M. Detch and Cooke & Stoddard, for Respondent:
Under all the evidence we find that the trial court was justified in the written decision
which it filed and in adopting its findings of fact that the defendant had utterly failed,
neglected and refused to support the plaintiff for more than the statutory period of one year
prior to the commencement of the action, and was also justified in its conclusions of law
upon which its judgment was based. The failure of the husband to give his wife any money or
otherwise to provide for her support and maintenance for one year is a ground for a divorce.
The California statute is so widely at variance with the Nevada statute that a California
decision upon the question of nonsupport could have no possible bearing upon the law in the
instant case. Under a statute which requires the willful neglect of the husband, etc., a case of
simple neglect or refusal to support is not sufficient to justify a decree. 14 Cyc. 624 (II); Holt
v. Holt, 117 Mass. 202. The California statute requires that the failure to provide for his wife
the common necessaries of life shall be willful, he having the ability so to do, etc. And,
contrary to the weight of authority (14 Cyc. 624; State v. Witham, 35 N.W. 934), the
California cases hold that the term ability has reference to the possession by the husband of
the means in property to provide necessaries, and not to his capacity of acquiring such means
by labor.
Based upon the testimony, we think the opinion rendered in the case of Swain v. Swain
(Wash.), 87 P. 1126, is on all fours with the facts and is conclusive of the law to be applied in
this case. The following cases are also applicable to plaintiff's contentions in this action:
Merriman v. Merriman {Wash.),
Merriman v. Merriman (Wash.), 134 P. 1058; Garland v. Garland (Wash.), 119 P. 386; Locke
v. Locke, 94 P. 244; Wagner v. Wagner (Cal.), 37 P. 937.
OPINION
This is an appeal from a decree of divorce in favor of the wife and against the husband on
the ground of nonsupport. The trial court found that the defendant, who is appealing here,
although an able-bodied man, had failed, refused, and neglected for a period of more than one
year to provide for the plaintiff the common necessities of life, and that such refusal, failure
and neglect was not the result of poverty on the part of the defendant, which could not be
avoided by ordinary industry.
1. It is claimed by appellant that the evidence is not sufficient to establish such nonsupport
as is required by the statute to be a ground for divorce. We think that it is sufficient. The
statute provides as the seventh ground for divorce in this state as follows:
Neglect of the husband, for the period of one year, to provide the common necessaries of
life, when such neglect is not the result of poverty on the part of the husband, which he could
not avoid by ordinary industry. Rev. Laws, sec. 5838, subd. 7.
This action was commenced on October 19, 1926, and it appears from the testimony that
appellant had not given her any money for her support for more than one year prior to the
commencement of the action. He gave her $100 in July of the preceding year, and in October,
1925, before the suit was commenced, he gave her $100. She testified that she received
nothing from him after that time, either in money, clothing, or provision for her support.
During the eight years preceding the trial of the action her only income was $65 per month
derived from property which the court found to be her separate property. During this time
appellant was an able-bodied man, and was receiving a salary of $150 per month.
month. These facts are undisputed, and support the finding of nonsupport. It appears from the
testimony that respondent had not asked appellant for any money for her support during the
year immediately preceding the commencement of the action, and he testified he was willing
to support his wife; that she had never made any demand upon him for her support that he did
not meet.
2, 3. From these circumstances, and the fact that during their married life and until a few
years before the trial appellant always turned over to respondent a part of his wages for her
support, it is urged that his failure to do so during the year preceding the commencement of
the action was not willful, and consequently did not amount to nonsupport within the
meaning of the statute. There is some evidence in this case from which it could be inferred
that the neglect was willful, but, be that as it may, the statute does not prescribe willful
neglect as an element of the seventh ground of divorce. Simple neglect is the conduct
denounced by the statute. It may arise from shiftlessness as well as from intention. If the
husband is able to provide and fails to do so, his good intentions are immaterial. It is his duty
to do so unless he is otherwise legally excusable. Swain v. Swain, 45 Wash. 184, 87 P. 1126.
____________
53 Nev. 101, 101 (1930) McCulloch Et Al. v. Bianchini Et Al.
McCULLOCH Et Al. v. BIANCHINI Et Al.
No. 2900
November 10, 1930. 292 P. 617.
1. Schools and School Districts.
District school trustees have only such powers as are conferred upon them by the legislature, either
expressly or by necessary implication, to issue bonds for school purposes.
Compliance with all the requirements of the provisions of the law is essential to the validity of school
bonds.
Bond election in school district of the first class held valid regardless of fact that election board did
not furnish the deputy superintendent of public instruction a copy of certificate of the result thereof. (Rev.
Laws, secs. 3298, 3299, 3433, 3434.)
Statutory provision that a school district bond election shall be called, held, and returned in all
respects as nearly as may be in accordance with the law governing the election of school trustees,
contemplates that only such provisions of the latter law as may be deemed applicable shall apply. (Rev.
Laws, sec. 3433.)
5. Time.
Notices posted on May 27 of district school bond election held on June 6, following, held to comply
with statutory provision requiring that they be posted not less than ten days before the election. (Rev.
Laws, secs. 3284, 5482.)
Appeal from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge.
Injunction proceeding by J.R. McCulloch and others against Pete Bianchini and others, as
the Board of Trustees of the Fernley High School District No. 4, Lyon County. Judgment of
dismissal, and plaintiffs appeal. Affirmed.
Harry G. Pray and J.M. Frame, for Appellants:
It is settled law that in the case of the holding of special elections, such as a school election
voting bonds, that the provisions of the statute prescribing the procedure to be followed,
including the time and manner of giving notice, are mandatory and must be strictly followed.
In the case of Johns-Manville, Inc. v. Lander County, 48 Nev. 253, it was distinctly held
that special statutory provisions prescribing the manner of performing duties required by
the statute, which prescribed the manner thereof, must be strictly complied with.
provisions prescribing the manner of performing duties required by the statute, which
prescribed the manner thereof, must be strictly complied with.
It is the duty of the board of election to canvass the votes cast and to issue a certificate of
election to the person shown to have been elected, or, as in this case, to show what the result
of the election was, relative to the vote on the bond issue, and if they fail or refuse to do this
no candidate has a prima facie right to the office, and in this case there is no presumption as
to what the result of the election was. Hotchkiss v. Keck, 125 N.W. 519; Dale v. Johnson,
173 N.W. 417; Dingeman v. State Board of Canvassers, 160 N.W. 492; Payne v. Hodgson, 97
P. 132; Riddell v. Grimstead, 160 S.W. 1069.
Section 193 of the school laws of Nevada, of the act approved March 20, 1911, provides
that the result of the election shall be canvassed and returned in accordance with the
provisions of law now governing the election of school trustees. Chapter 6, sections 60 and
61 of the latter act, provides that the election board shall canvass and ascertain the result of
the election, and shall immediately send by mail to the deputy superintendent of public
instruction the election certificate showing the result of the election.
An official determination of the result of said election is essential to and precedent to the
jurisdiction and power of the board of trustees to issue the bonds in question. Section 194,
school laws of Nevada, as amended, Stats. 1913, p. 298. In the absence of making such return
as required by law, and in the absence of proof that such return had afterward been required to
be made by the election board, there is no legal or competent evidence of the result of the
election.
Section 46 of the act approved March 20, 1911, provides that not less than ten days before
the election held under the provisions of the act the trustees in each district shall post notices
in three public places in the district, which notices shall specify the time and place of holding
said election. This is the method of noticing special bond elections.
noticing special bond elections. (See sec. 193, same act.) The evidence, which is not disputed,
shows that the notices for the holding of the special election on June 6, 1929, were posted at
about 6:30 o'clock p.m. on the 27th day of May, 1929, and that but nine days intervened
between the 27th day of May and the 6th day of June, 1929, the day upon which the election
was held. State v. Brodigan, 37 Nev. 458; Seawell v. Gifford, 125 P. 182.
John R. Ross, for Respondents:
Respondents are of the opinion that the intent of the legislature in enacting section 193, in
which the words as nearly as may be were used, was that the boards of school trustees in
such elections should comply substantially with the sections relative to the election of school
trustees in so far as the same were applicable. Had it been otherwise the legislature would
have made the section mandatory in its nature by omitting the words above quoted.
It is the contention of the respondents that the laws relative to the election of school
trustees have been and were substantially complied with, as to both the election of 1928 and
1929, and that so far as appellants contend that the elections and bond issues resulting
therefrom are illegal, void and of no effect by reason of the failure of the school board of
certify the result of the election to the deputy superintendent of public instruction their
contention is unsupported by their argument.
Respondents contend that there was a sufficient compliance with sections 60 and 61,
relative to the election of school trustees, which, taken together with the testimony of Ruel E.
Lothrop, county clerk and treasurer of Lyon County, who testified that he had in his
possession the election returns, poll list and the abstract of the votes cast at the election held
April 7, 1928, and that he had in addition thereto the voted ballots from said election, the
same having been returned to his office, would prevent the elections from being held invalid
on this point, As to the bond election of 1929, Mr.
Mr. Lothrop again testified that the ballots were in his possession and that they tallied with
the poll sheet.
Legal and valid notice of the special election held on June 6, 1929, was given. Mayer
Misch v. H.A. Mayhew, 51 Cal. 514; Hagenmeyer v. Board of Equalization, 23 P. 14; Derby
& Company v. City of Modesto, 38 P. 900; Bates v. Howard, 38 P. 715; in Re Espinosa's
Estate and Guardianship, 175 P. 896.
Assuming (but not admitting), for the sake of argument, that the notice of election failed to
comply with the statutory requirements as to time, then the general weight of authority as to
the effect of such failure to strictly comply with conditions and statutory requirements
precedent to the election is set out in the following cases and texts: McQuillan, Municipal
Corporations (2d ed.), vol. 6, sec. 2513; School District v. Cushing (Kans.), 54 P. 925; Rich
v. Mentz, 18 Fed. 52; Sexton v. Lee, 100 W. Va. 389; East Bay Water Bonds, 196 Cal. 725,
239 P. 38; Preston v. Culbertson, 58 Cal. 198; McCrary on Elections, p. 134; Gollar v. City of
Louisville, 187 Ky. 448, 219 S.W. 421.
It is our belief that the real point decided in Seawell v. Gifford (Ida.), 125 P. 182, and State
v. Brodigan, 37 Nev. 458, is that where the thirty days' period previous to the holding of the
election falls on Sunday or a legal holiday, that the usual rule that where an action falls on
Sunday or a legal holiday it may be performed on the following business day does not apply,
but that under statutes of that sort the act must be done on the day prior to the holiday.
Statutes relating to steps to be taken prior to an election are directory where authority to
hold the election is otherwise conferred and does not depend on the taking of such steps. 20
C.J., p. 95.
OPINION
By the County, Sanders, J.:
J.R. McCulloch, J.H. Wash, and George A. Steele, qualified electors and taxpayers of the
Fernley high school district No.
school district No. 4 in Lyon County, Nevada, have appealed from a judgment entered in an
injunction proceeding instituted by them in the court below to prevent Pete Bianchini, Mary
E. Meginness, and A.R. Kramer, as the board of trustees of said Fernley high school district
No. 4, from selling certain negotiable bonds of said district amounting of $35,000.
1, 2. The principle that district school trustees have such powers, and such powers only, as
are conferred upon them by the legislature, either expressly or by necessary implication, to
issue bonds for school purposes, and that a compliance with all the requirements of the
provisions of the law is essential to the validity of such bonds, is settled by so many decisions
of the courts of last resort as that the principle may be considered to be elementary. In the
case at bar it is contended that the board of trustees of the Fernley high school district No. 4
so far digressed from the provisions of the school law relating to the calling, holding, and
return of the elections held for voting the bonds in question that they should be prevented
from issuing the same upon all the grounds urged for the reversal of the judgment.
It appears that the board of trustees of Fernley high school district No. 4, by resolution,
submitted to the qualified electors of said district, at an election called by them and held on
April 7, 1928, the question of contracting a bonded indebtedness of the district in the sum of
$20,000, for the purpose of constructing additions and other improvements to the school
buildings in said district. It appears that, upon the completion of the count, by the board of
election, of the ballots, 79 were cast for the bonds and 38 were cast against the bonds. It
appears that, upon the completion of the count, the board of election caused to be delivered to
the county clerk of Lyon County the poll list, tally sheet, registry list, and the ballots kept by
them.
It appears that the board of trustees determined that $20,000 would not be sufficient for the
purposes for which the bonds were voted on April 7, 1928, and thereafter, by resolution,
submitted to the qualified electors of said district, at an election called and held on June
6, 1929, the question of contracting an additional or supplemental bonded indebtedness
of $15,000.
resolution, submitted to the qualified electors of said district, at an election called and held on
June 6, 1929, the question of contracting an additional or supplemental bonded indebtedness
of $15,000. The proof shows that, upon the completion of the count, 70 ballots were cast at
this election for the bonds and 68 ballots were cast against the bonds. It appears that the
board of election returned the poll list, tally sheet, registry list, and all ballots kept by them
and cast at this election to the county clerk of Lyon County.
It appears that in July, 1929, the plaintiffs, appellants here, filed an injunction suit against
the defendants, respondents here, to prevent them from selling the bonds voted at said two
elections; no temporary restraining order was obtained on the filing of the complaint to
prevent the defendants from taking any steps to sell said bonds pending the suit. The
defendants demurred to the complaint, and thereafter proceeded to advertise the sale of the
bonds so voted, regardless of the suit, and on July 15, 1929, sold the bonds voted at both
elections to the highest and best bidder. The demurrer interposed to the complaint was
subsequently sustained, and thereafter, in September, 1929, the plaintiffs filed an amended
complaint to which the defendants made answer.
Upon issues thus made the case was tried to the court without a jury. After a full hearing,
the court, in accordance with its decision upon the merits, made findings of fact and
conclusions of law, upon which it was adjudged and ordered that the plaintiffs take nothing
by their action, and that their complaint be dismissed; hence this appeal.
The plaintiffs seek reversal of the judgment upon two grounds: First, that the election held
on April 7, 1928, was illegal and void, in that the election board did not issue any certificate
showing the result of the election, and did not immediately, or at all, send by mail or
otherwise a copy of any certificate of the result of the election to the deputy superintendent of
public instruction of said district; second, that the defendants did not post notices of the
election held on June 6, 1929, ten days before the day upon which the election was held.
of the election held on June 6, 1929, ten days before the day upon which the election was
held.
These propositions are predicated upon plaintiff's interpretation of the provisions
contained in the school law pertaining to school district bond elections. In chapter 15, sec.
193, of the school law, denominated School District Bonds (section 3433, 1 Revised Laws),
it is provided:
The election provided in this act [section 192] shall be called and held, and the vote
canvassed and returned, in all respects as nearly as may be in accordance with the provisions
of law now governing the election of school trustees; provided, that if there is a newspaper
published in the school district, the notice shall be published for at least once a week for two
successive weeks, preceding said election. * * *
The section then goes on to provide what the election notice shall contain.
Section 194 of the school law, chapter 15 (Rev. Laws, sec. 3434), provides:
If upon the official determination of the result of such election it appear that a majority of
all the votes cast are For the Bonds,' the board of trustees, as soon as practicable, shall issue
the negotiable coupon bonds of the district in such form and denomination as the board of
trustees may direct. * * *
3. Counsel for plaintiffs insist that the evidence offered at the trial shows indisputably that
there was no official determination by the election board and return of the results made to the
deputy superintendent of public instruction of the district of the election held on April 7,
1928, or elsewhere, as required by law.
Section 60 of the school law (section 3298, 1 Revised Laws) provides that:
The board of election in districts of the first class shall keep a poll-list and tally-sheet,
which, together with the registry list and all ballots cast, shall be delivered to the county clerk
upon the count being completed, and such returns shall be kept as the law now provides for
keeping returns of general elections. * * * The proof shows that, upon the completion of
the count of the ballots cast at the election held on April 7, 192S, the board of election
caused to be delivered to the county clerk of Lyon County the poll lists, tally sheet, and
registry lists and all ballots cast at said election.
The proof shows that, upon the completion of the count of the ballots cast at the election
held on April 7, 1928, the board of election caused to be delivered to the county clerk of Lyon
County the poll lists, tally sheet, and registry lists and all ballots cast at said election. The
case seems to have been tried upon the assumption that the Fernley high school district No. 4
is a district of the first class. The proof further shows that the return of the board of election
was made and received by the county clerk, and that the clerk canvassed the returns and
found them to be correct.
It is true that no certificate of the result of the election was mailed by the board of election
to the deputy superintendent of public instruction, but plaintiffs have not directed our
attention to any provisions of the school law which requires the board in districts of the first
class to furnish the deputy superintendent of public instruction of the district a copy of the
certificate of the result of a district school bond election.
4. It is contended that the provisions contained in section 61 of the school law (section
3299, 1 Revised Laws), relating to certificate of election of school trustees, which provides,
in substance, that the election board shall issue certificates of election to those trustees
receiving the greatest number of votes cast, and that said board shall immediately send by
mail a copy of each election certificate to the deputy superintendent of public instruction, by
analogy applies to district school bond elections, and involves a duty upon the inspectors of a
bond election to mail a certificate of the result of the election to the deputy superintendent of
public instruction. We are not in accord with this interpretation of the law. By reference to
section 193, it will be observed that a school district bond election shall be called, held, and
returned in all respects as nearly as may be in accordance with the law governing the
election of school trustees. The expression as nearly as may be manifestly contemplates that
only such provisions of the law governing the election of school trustees as may be deemed
applicable shall apply to district bond elections.
bond elections. No reason appears why the inspectors of a school bond election should make
and mail a certified copy of a certificate of the result of such election to the deputy
superintendent of public instruction; consequently we conclude that, so far as this record
shows, the election held on April 7, 1928, was called, held, the vote canvassed and returned,
as required by law.
5. It is contended on the part of the plaintiffs that the election held on June 6, 1929, was
illegal and void, in that the notices of said election were not posted ten days prior to the date
thereof, as required by section 46 of the school law (section 3284, 1 Revised Laws), relating
to the election of school trustees. This section provides that not less than ten days before the
election held under the provisions of the act the trustees shall post notices in three public
places in the district, which notices shall specify that there will be an election held at the
schoolhouse in such district and the hours between which the polls will be kept open.
In the case at bar, the notices of the election were posted on the 27th day of May, 1929;
pursuant to notice the election was held on June 6, 1929. Were the notices posted in time?
Section 540 of the civil practice act (section 5482, 2 Revised Laws) provides in part that:
The time in which any act is to be done, as provided in this act, shall be computed by
excluding the first day and including the last.
If this rule of measurement of time applies to school elections, the notices were posted as
required by the statute. In California it is held that the rule of computation of time, under a
statute identical to that of ours, applies to school election contests. Misch v. Mayhew, 51 Cal.
514, followed in Hagenmeyer v. Board of Equalization of Mendocino County, 82 Cal. 217,
23 P. 14; Derby v. Modesto, 104 Cal. 522, 38 P. 900; Bates v. Howard, 105 Cal. 182, 38 P.
715.
In the case of Antelope Valley U.H.S. Dist. v. McClellan, 55 Cal. App. 244, 203 P. 147,
which involved the validity of a school bond election, the rule of the code of civil procedure
as to the measurement of time for the publication of the notices was applied.
the publication of the notices was applied. In the early case of Mason v. School District No.
14, 20 Vt. 487, a school district election case, it was held that, in computing the length of
time during which notice of a meeting of a school district was given, the same rule should be
applied as in the case of service of processeither the day on which the notice was posted, or
the day on which the meeting was held, will be counted, the court stating that no reason
appears why such rule of measurement of the time should not be applied.
Applying the rule to the election in question, the full ten days' notice was given.
Entertaining these view, we conclude that the judgment should be affirmed.
It is so ordered.
March 23, 1931. 297 P. 503.
1. School and School Districts.
Bond election in school district of first or second class held not affected and bonds
voted not invalidated by failure of election inspectors, upon completion of the count, to
deliver the poll list, tally sheet registry list, and all ballots cast, to the deputy
superintendent of public instruction. (Rev. Laws, secs. 3298, 3299, 3433.)
School Law, sec. 60, Rev. Laws, sec. 3298, relating to the return of
an election of school trustees, provides that the board of election in
districts of the second class shall, upon completion of the count, deliver
to the deputy superintendent of public instruction for the district the poll
list, tally sheet, registry list, and all ballots cast at such election; sec. 61,
Rev. Laws, sec. 3299, relating to school trustees elections, requires that
the result of the election be forwarded to the deputy superintendent of
public instruction; and sec. 193, Rev. Laws, sec. 3433, requires that
district school bond election shall be called and held, and the vote
canvassed and returned, in all respects as nearly as may be in accordance
with the provisions of law now governing the election of school trustees.
On petition for rehearing. Petition denied. (Coleman, C.J., dissenting.)
OPINION
Counsel for appellants have filed a petition for rehearing, in which it is contended that in
our former decision (292 P. 617) the writer overlooked the fact admitted by the pleadings that
the Fernley high school district No. 4 is a district of the second class and not one of the first
class, and that because of this mistaken or erroneous assumption, the petition for rehearing, if
for no other reason, should be granted. Conceding that the Fernley high school district No. 4
was erroneously assumed to be district of the first class, it does not follow that the petition
should be granted. It is pointed out in the petition that section 60 of the school law (section
3298, 1 Rev. Laws), relating to the return of an election of school trustees, provides that the
board of election in districts of the second class shall, upon completion of the count, deliver
to the deputy superintendent of public instruction for the district the poll list, tally sheet,
registry list, and all ballots cast at such election, which shall be kept on file in his office. It is
also pointed out in the petition that section 61 of the school law (section 3299, 1 Rev. Laws),
relating to school trustees elections, requires that the result of the election be forwarded to the
deputy superintendent of public instruction. If we were dealing in this case with a school
trustee election, it may be that the failure to comply with the provisions contained in sections
60 and 61 of the law would render the election void, but we are here dealing with a district
school bond election, be it one of the first or second class. Section 193 (section 3433, 1
Rev.Laws) provides that a district school bond election shall be called and held, and the vote
canvassed and returned, in all respects as nearly as may be in accordance with the provision
of law now governing the election of school trustees. In our former opinion and for the
reasons stated therein, it was held that the district school bond election held in Fernley high
school district no. 4 on April 7, 1928, was valid, regardless of the failure of the inspectors of
said election to forward a copy of the certificate of the result of the election to the deputy
superintendent of public instruction, as required in case of an election of school trustees.
the failure of the inspectors of said election to forward a copy of the certificate of the result of
the election to the deputy superintendent of public instruction, as required in case of an
election of school trustees. For the same reasons we now hold that the failure of the
inspectors of said election, upon completion of the count, to deliver the poll list, tally sheet,
registry list, and all ballots cast to the deputy superintendent of public instruction did not
affect the result of the election or invalidate the bonds voted at said election, according to
their tenor and effect.
It was contended on the former hearing that the district bond election held on June 6, 1929,
was illegal and void for the reason that the notices of said election were not posted ten days
prior to the date thereof, as required by section 46 of the school law (section 3284, 1 Rev.
Laws), relating to the election of school trustees. In our former decision it was held that the
proper method of determining whether sufficient notice of school bond elections was given
was by excluding the day of posting and including the election day. Counsel for appellants
contend that the holding is at variance with the opinion and decision of this court in State v.
Brodigan, 37 Nev. 458, 142 P. 520. We are not in accord with this contention. In that case the
court had under review a statute providing that whenever a secular act is to be performed on a
particular day, and the day is a nonjudicial one, the act may be performed on the next judicial
day. Stats. 1913, c. 61, 3 Rev. Laws, p. 3351. It was properly held that the act did not permit a
nominee at a primary election to be held on September 1 to file his papers on August 3,
though August 2 fell on Sunday; section 7 of the act (Stats. 1913, c. 284, subd. 3) providing
that such papers shall be filed at least 30 days prior to the primary election. There is nothing
in our former opinion which conflicts with this holding.
The petition for rehearing is denied.
____________
53 Nev. 113, 113 (1930) Coykendall Et Al. v. Gray Et Al.
COYKENDALL Et Al. v. GRAY Et Al.
No. 2930
December 1, 1930. 293 P. 436
Appellants' service on respondents' counsel of copy of transcript of record on appeal fourteen days
after original was filed in the supreme court and five days before date of expiration of extension of time
granted by justices of supreme court for such service, held timely. (Supreme Court Rule 13.)
Supreme court rule 13 requires that a copy of the transcript of the record shall be served upon
the opposite party, but prescribes no time within which it shall be served, and no other rule or
statute fixes any time limitation for such service.
Motion to dismiss, not specifying whether addressed to appeal from judgment or appeal from order
denying new trial, or both, held too broad.
Grounds alleged in support of motion to dismiss the appeal were: because no original notice of
appeal or undertaking on appeal, or order denying motion for a new trial were on file in the case;
because it did not appear from the record in the case that any order had ever been made denying
or overruling the motion for a new trial; that it did not appear from the record that the bill of
exceptions was filed within the time required by law after the decision of the court; that the
memorandum of errors relied upon by appellants upon motion for a new trial did not contain the
verified statement of the attorney for the appellants required by law; and that no copy of the
transcript or record on appeal was served upon the respondents' attorney, as required by rule 13
of the supreme court.
Motion to strike copy of notice of appeal and copy of undertaking on appeal must be granted, as such
copies are not properly a part of the record on appeal. (Stats. 1915, p. 166, sec. 11.)
The original notice of appeal and undertaking on appeal only may become a part of the record on
appeal. (Stats. 1915, p. 166, sec. 11.)
Supreme court is loathe to determine cases other than on their merits, and will not do so except in
unavoidable cases. (Rev. Laws, sec. 5358, and Stats. 1923, c. 97.)
Action by H.G. Coykendall and others against Donly Gray and others, and John Doe and
three others, being fictitious names, the real names of such persons being unknown. From the
judgment rendered, and from an order denying their motion for a new trial, defendants appeal.
On motion by respondents to strike certain parts of the record on appeal, and to dismiss the
appeal, and on a motion by the appellants to remand the record for correction and
amendment. Motion to strike certain parts of the record on appeal granted in part and
denied in part, motion to dismiss the appeal denied, and motion to remand the record
for correction and amendment granted.
Wayne T. Wilson, for Appellants.
Cole L. Harwood, for Respondents.
OPINION
This case is before us upon motions made by respondents to strike certain parts of the
record on appeal and to dismiss the appeal, and upon a motion made by appellants to remand
the record for corrections and amendments.
Five grounds are alleged in support of the motion to dismiss the appeal: (1) Because no
original notice of appeal or undertaking on appeal, or order denying motion for a new trial, is
on file in this case; (2) because it does not appear from the record in the case that any order
has ever been made denying or overruling the motion for a new trial in the case; (3) that it
does not appear from the record that the bill of exceptions was filed within the time required
by law after the decision of the court in the case; (4) that the memorandum of errors relied
upon by the defendants and appellants upon motion for a new trial does not contain the
verified statement of the attorney for the defendants and appellants required by law; (5) that
no copy of the transcript or record on appeal was served upon the respondents' attorney,
as required by rule 13 of this court.
transcript or record on appeal was served upon the respondents' attorney, as required by rule
13 of this court.
1. As to the last ground assigned, it appears that rule 13 requires that a copy of the
transcript of the record shall be served upon the opposite party, but prescribes no time within
which it shall be served. No other rule or statute fixes any time limitation for such service.
The transcript of the record on appeal was filed herein on October 15, 1930, and it appears
from the affidavit of counsel for appellants that he served a copy of the record on appeal on
counsel for respondents on October 29, 1930. Prior thereto the justices of this court had made
an order extending the time in which to serve such copy to and including November 3, 1930.
We think that under these circumstances the serving of the copy of the record on appeal was
not untimely.
2. The second, third, and fourth grounds of the motion to dismiss, and the ground that no
order denying motion for a new trial is on file in this case, must also be disregarded, for the
reason that the motion is too broad in these respects. Peri v. Jeffers, 53 Nev. 49, 292 P. 1.
These are matters affecting the appeal from the order denying the motion for a new trial. The
appeal in this case is from the judgment as well, and, as stated in Segale v. Pagni, 49 Nev.
313, 244 P. 1010, we cannot now assume that appellants may not contend that, for errors
appearing upon the judgment roll alone, the judgment should be reversed. The motion to
dismiss because no original notice of appeal or undertaking on appeal is on file is met by
appellants' motion to remand the record on appeal to the trial court for amendment and
correction in these and other respects. A sufficient showing has been made to warrant an
order pursuant to the latter motion.
The motion to strike designates the following papers and grounds of motion: (1) To strike
from the record the copy of the notice of appeal and copy of the undertaking on appeal upon
the grounds that they are not the original papers and documents filed in the court below;
{2) to strike the entire record, except the judgment roll, upon the ground that it does not
appear from the record in the case that any order was ever made denying or overruling
the motion for a new trial; {3) to strike the bill of exceptions made a part of the record on
appeal herein upon the ground that it does not appear that the said bill of exceptions was
presented and filed within the time allowed by law; {4) to strike from the record the
so-called "memorandum of errors" to be used by the defendants and appellants upon a
motion for a new trial in this case, because the said memorandum of errors does not
contain the verified statement of the attorney for the defendants and appellants required
by law.
the original papers and documents filed in the court below; (2) to strike the entire record,
except the judgment roll, upon the ground that it does not appear from the record in the case
that any order was ever made denying or overruling the motion for a new trial; (3) to strike
the bill of exceptions made a part of the record on appeal herein upon the ground that it does
not appear that the said bill of exceptions was presented and filed within the time allowed by
law; (4) to strike from the record the so-called memorandum of errors to be used by the
defendants and appellants upon a motion for a new trial in this case, because the said
memorandum of errors does not contain the verified statement of the attorney for the
defendants and appellants required by law.
3, 4. The motion to strike must be granted as to the copy of the notice of appeal and the
copy of the undertaking on appeal, as such copies are not properly a part of the record on
appeal. The original notice of appeal and undertaking on appeal only may become a part of
such record. Stats. 1915, p. 166, sec. 11. It must be denied in all other respects, inasmuch as it
appears from the affidavits of appellants' counsel on file herein, one of which was made in
support of his motion to remand the record for amendment and correction, and the other made
in answer to respondents' motion to dismiss the appeal, that an order was duly made denying
the motion for a new trial; that the bill of exceptions was filed within the time required by law
by reason of the fact that a stipulation was duly entered into by respective counsel extending
the time in which to file and serve the same to and including the 21st day of April 1928; that
the memorandum of errors used by the appellants upon the motion for a new trial contained
the verified statement of the attorney for appellant required by law; and that these are matters
which appellants are entitled to have incorporated in the bill of exceptions so that it may fully
state the proceedings had before the court below.
It is therefore ordered that the motion to dismiss the appeal be denied, that the motion to
strike be granted as to copies of the notice of appeal and undertaking on appeal, and
denied in all other respects.
the appeal be denied, that the motion to strike be granted as to copies of the notice of appeal
and undertaking on appeal, and denied in all other respects.
5. As we have repeatedly stated, we are loathe to determine cases other than on their
merits, and will not do so except in unavoidable cases. Brockman v. Ullom, 52 Nev. 267, 286
P. 417. Section 5358 of Rev. Laws, and Stats. 1923, p. 163, are designed to remedy defective
records on appeal, and, pursuant to that purpose, it is ordered that the record on appeal be
remanded to the trial court in order that the bill of exceptions may be amended and corrected
in the respects indicated, as the facts may warrant.
It appears that the original notice of appeal and undertaking on appeal by which the appeal
was perfected in the lower court were subsequently filed with the clerk of this court.
It is therefore also ordered that these documents be likewise remanded to the trial court for
their proper placement in the record on appeal.
____________
53 Nev. 118, 118 (1931) Pacific Live Stock Co. v. Malone
PACIFIC LIVE STOCK CO. v. MALONE,
State Engineer
No. 2920
January 2, 1931. 294 P. 538.
1. Waters and Water Courses.
Water law must be read and construed in its entirety (Stats. 1913, c. 140, as amended, Stats. 1929, c.
176).
State engineer is not concerned with the enforcement of a decree which is not a statutory adjudication
but an adjudication of water rights in an equity action. (Stats. 1913, c. 140, as amended.)
State engineer, by virtue of his office, is not required to take notice of all judgments or decrees
involving water rights (Stats. 1913, c. 140, as amended).
Duties of state engineer as an officer of the district court in water cases (Stats. 1927, c. 192) are of a
special nature, and plainly restricted to cases of determination or adjudication of water rights as
prescribed in the water law, and the court cannot extend his duties as such officer beyond the limitations
of the statute itself.
Original proceeding in mandamus by the Pacific Live Stock Company against George W.
Malone, State Engineer, and respondent demurs to the petition. Demurrer sustained,
alternative writ quashed, and proceedings dismissed.
J.E. Woolley and Vincent J. McGovern, for Petitioner:
The laws of Nevada require the state engineer to divide the waters of natural streams
according to the rights of the parties. Section 54 of water laws, as amended by Stats. 1929.
This duty enjoined on the state engineer is without any limitation whatsoever. Where the
petition, as in this case, sets up adjudicated rights on the stream, and a refusal of the state
engineer to conform to section 54 of the water law, it would seem mandamus would clearly
lie to force him to carry out his obvious duty. It would seem to be immaterial whether or not
the rights were adjudicated in any particular manner, or whether, in fact, they were
adjudicated at all, providing they were determined, for instance, as by contract.
determined, for instance, as by contract. The language of the statute is: According to the
rights of each, respectively, in whole or in part. From the language used by the legislature it
would not seem that there need be even a complete determination.
In the instant case before the court, the parties have, through long and expensive litigation
in the district court, obtained a decree defining their respective rights, and that decree has
been affirmed in the highest court of the state; hence it would seem that such an adjudication
comes clearly within the provisions of section 54 of the water laws.
As to defendant's demurrer, we call the court's attention to section 5695, Rev. Laws of
Nevada. All the facts are fully set forth in the petition, and there seems to be no merit in the
ground of the demurrer that it does not state facts sufficient to constitute a cause of action,
providing, of course, that our analysis of the law is correct, which we believe it to be.
M.A. Diskin, Attorney-General and Wm. J. Forman, Deputy Attorney-General, for
Respondent:
Respondent contends that sec. 54, Stats. 1913, chap. 140, as amended, Stats. 1929, p. 298,
is a part of the system of the water law of this state and must be read in connection with other
sections of such law; that the general purpose of the Nevada water law is to provide a means
whereby all streams within the state will eventually be adjudicated and the rights of all
claimants thereon settled as against the world, and that a record will be made of such rights;
that the state is to be divided into water districts when, and only when, the creation of such
districts becomes necessary after a statutory adjudication has been completed; and that the
administration by the state engineer will then be in accordance with the rights as settled by
the courts in the statutory adjudications as appears from the recorded water rights. This
contention is based upon the construction of chap. 140, Stats. 1913, as amended, construed as
a complete statute and not as a series of detached parts.
detached parts. It is a familiar rule of statutory construction that all parts of a statute must be
considered together, in order to ascertain the true meaning of its several sections. State v.
Brodigan, 37 Nev. 139. It is another familiar rule of statutory construction that statutes having
a system or scheme should be construed so as to make that system or scheme consistent in all
its parts and uniform in its operation. Howard v. Nashville R.R. Co., 284 S.W. 894.
Analyzing chap. 140, Stats. 1913, as amended, in the light of these rules of construction, it
will readily be seen that the legislature never intended the state engineer to take charge of the
distribution of waters of any system except where a statutory adjudication of the rights
thereon had been made, regardless of any decrees in personam that might have been made on
such stream systems. The judgment in the instant case, therefore, does not create a condition
bringing into being the distribution of power of the state engineer, and such power may not be
exercised until the machinery of the law as contained in the general adjudication statute has
been fully carried into effect.
Statement of Facts
This is a petition for an alternative writ of mandate against the respondent, Geo. W.
Malone, as state engineer of the State of Nevada. The petition, among other things, alleges:
that Quinn River is a natural stream and water course; that petitioner is and for more than
thirty-five years last past has been the owner and seized in fee and in the actual possession of
a large body of land situated in the county of Humboldt, State of Nevada, and commonly
known as the Quinn River ranch; that said Quinn River flows and from time immemorial has
flowed to, over, upon and through the said Quinn River ranch, and the said ranch includes the
banks, beds, and stream of said river; and the waters thereof to which petitioner is entitled
when available are used to irrigate said land, and as hereinafter shown are necessary for that
purpose.
That in 1907 the petitioner commenced a suit in Humboldt County, Nevada, numbered on
the court records of said Humboldt county district court as No. 1596; that on the 9th day of
April, 1919, said court rendered its final decree in and by virtue of which said court ordered,
adjudged, decreed, and established the water rights of said Quinn River and its tributaries,
and in said decree the water rights of each of the parties to said action were specifically set
forth so as to designate and show the amount of water appropriated by each of said parties,
the dates of appropriations, relative priorities, and the particular stream from which each
appropriation was made and the number of acres irrigated by each appropriation. A copy of
said decree is attached to the petition, marked Exhibit A, and made a part of the petition.
That after the making and filing of the aforementioned decree, an appeal was taken from
the same by certain of the defendants therein, and an appeal was taken by the plaintiff from an
order made by said second judicial district court of the county of Humboldt, State of Nevada,
permitting certain of the defendants to amend their answers so as to put in issue certain
questions of fact; that said appeal was taken to the supreme court of the State of Nevada, and
thereafter and on the 2d day of April, 1930, the supreme court, pursuant to its written opinion
(286 P. 120), made and entered its final order dismissing the appeal from said judgment,
thereby affirming the judgment and decree of said second judicial district court; that
thereafter, and on the 21st day of April, 1930, the remittitur in said cause issued from the
supreme court was filed in the second judicial district court of the State of Nevada, in and for
the county of Humboldt.
That the decree of said second judicial district court of the State of Nevada, in and for the
county of Humboldt, rendered in the above-mentioned action, was and now is a final and
complete adjudication of the water rights of each and every party to said action in and to the
waters of said Quinn River and its tributaries; that petitioner alleges on information and
belief that the plaintiff and the defendants to the above-mentioned action were and now
are the only parties claiming or asserting any rights in or to the waters of said Quinn River
and its tributaries.
petitioner alleges on information and belief that the plaintiff and the defendants to the
above-mentioned action were and now are the only parties claiming or asserting any rights in
or to the waters of said Quinn River and its tributaries.
That the aforementioned decree of the second judicial district court awards the first
priority to the waters of said Quinn River to petitioner for use on aid Quinn River ranch, but
various defendants in said aforementioned action whose lands border on said Quinn River
above said Quinn River ranch, but whose priorities were and are junior and inferior to that of
petitioner, have on many occasions prior to the filing of the petition, and do now, take and
divert the waters of said Quinn River contrary to the terms of said decree and so as to deprive
petitioner of the use of the waters of said Quinn River to which it is entitled under said decree
at times when the same are necessary for the irrigation of said Quinn River ranch; that said
last-mentioned defendants have and are now disobeying the terms of said decree to the
damage and injury of petitioner as aforesaid; that petitioner has at all times and does now
obey said decree and each and every of the terms thereof.
That for the aforementioned reasons it is necessary for said respondent to assume and take
control of said Quinn River for the purpose of dividing the waters thereof in order to carry out
the terms and provisions of said aforementioned decree; that petitioner is ready and willing to
pay any and all lawful charges proposed by said state engineer in connection with his control
of the distribution and administration of the water rights on said Quinn River.
That prior to the filing of this petition, petitioner requested said respondent to assume and
to take jurisdiction of said Quinn River and its tributaries for the purpose of dividing or
causing to be divided the waters of said river among the several ditches taking water
therefrom, according to the rights of each as set forth in said decree of the second judicial
district court of the State of Nevada, in and for the county of Humboldt, in the
aforementioned action, and to otherwise assume control and supervision of the waters of
said river so as to carry into effect the terms and provisions of said decree; that said
request was made in accordance with and in reliance upon the terms and provisions of
the water laws of the State of Nevada, and in particular sections 45 and 51, and section
54 {as amended Stats.
in the aforementioned action, and to otherwise assume control and supervision of the waters
of said river so as to carry into effect the terms and provisions of said decree; that said request
was made in accordance with and in reliance upon the terms and provisions of the water laws
of the State of Nevada, and in particular sections 45 and 51, and section 54 (as amended
Stats. 1929, c. 176), of chapter 140, Statutes of 1913.
That notwithstanding the request of petitioner as aforesaid, said respondent has failed and
refused to assume or take charge of or control of the waters of the said Quinn River and its
tributaries in order to distribute and administer the water rights of the parties to the
aforementioned action as determined in said decree or otherwise, and said respondent has
failed and refused to divide or cause to be divided the waters of said Quinn River and its
tributaries among the several ditches taking water therefrom according to the rights of each
respectively as set forth and determined in said aforementioned decree.
That petitioner has not a plain, speedy, and adequate remedy in the ordinary course of law.
The respondent thereupon demurred to the petition upon several grounds, including that
said petition does not set forth sufficient facts to constitute a cause of action against
respondent herein or to justify the granting of the relief prayed for or any relief whatsoever.
OPINION
By the Court, Moran, District Judge:
It is the contention of the petitioner that the state engineer should, upon request, take
charge of the division and distribution of the waters of the Quinn River stream system
pursuant to the decree of the Humboldt County district court.
The contention of the respondent is that, as the decree in question does not constitute a
statutory adjudication pursuant to the 1913 water law, as amended, no such duty on the part
of the respondent rises by reason of such decree.
duty on the part of the respondent rises by reason of such decree.
The petitioner urges in his brief that there are two distinct methods whereby water rights
may be determined under the statute:
One, as contemplated by sections 18 to 35, inclusive (as amended), and, two, as prescribed
in section 45.
It is immaterial for the purposes of this opinion whether the statute contemplates two
distinct methods or not; but, in passing, we express the belief that, instead of a duality of
methods, there is only a duel system in which suits for the adjudication of water rights may
originate. That is to say, either through the office of the state engineer (by his own motion or
by petition) or by complaint in the district court, with the state engineer acting as an officer of
the court in either case.
It does not follow, however, that all suits involving water rights must originate in either
way; since it is easy to conceive of many kinds of water controversies that have no
dependency on the statute.
1. It goes without saying that the water act must be read and construed in its entirelythis
is borne out by the language used by this court in the case of Ormsby County v. Kearney, 37
Nev. 338, 142 P. 803, 806, wherein Justice Norcross, who was passing upon a question of
constitutionality, said: In considering the constitutionality of sections 18 to 51, inclusive,
they should be viewed with reference to the purpose designed to be accomplished by sections
52 to 56. The latter sections are clearly administrative. Before they can be put into force, the
relative rights of water users upon a stream must be ascertained.
It is very evident that the court in the phrase the relative rights of water users upon a
stream must be ascertained could not mean anything else than to make the ascertainment or
adjudication of water rights under the statute an indispensable prerequisite for their
subsequent administration. In other words, there must first be a final adjudication of water
and water rights on a particular stream or stream system before the administrative
sections begin to apply.
particular stream or stream system before the administrative sections begin to apply.
2-4. The procedure for such a final adjudication is plainly outlined in the act. This being
so, we must examine the petition and decree in question, in order to ascertain whether the
adjudication is a statutory one as contemplated by the law. If it is, the duties of the state
engineer in connection with its administration are clearly stated by the legislature and should
be performed by him. If the decree, on the contrary, is not a statutory adjudication, but an
adjudication of water rights in an equity action, then it would follow that the state engineer is
not concerned with the enforcement of such a decree or such rights, since his duties are
special and cannot be extended by the court.
It cannot reasonably be contended that the state engineer, by virtue of his office, is
required to take notice of all judgments or decrees involving water rights. If this were so, we
would be compelled to accept the untenable position that the state engineer must interpret and
carry out all decrees of state courts wherein water or water rights were in some fashion
determined between litigants.
It has not been contended that in the Quinn River case the proceedings for adjudication
originated in the office of the state engineer, either on his own initiative or by application to
him according to law. In fact, the petition states that the action was originally instituted in the
district court of Humboldt County. Therefore, in order to determine the question as to
whether the decree before us constitutes a statutory adjudication, we must inquire whether the
procedure was in compliance with what the petitioner calls the second method whereby
adjudication of water rights may be had.
After careful examination of the decree which we are requested to enforce by writ of
mandate, we find that it is nothing more than an equity judgment between several water users
on the Quinn River and certain tributaries thereof. It contains nothing from which we could
even infer that an adjudication of water rights such as is prescribed by the statute was
contemplated by the court.
is prescribed by the statute was contemplated by the court. It does not appear that a
preliminary determination was every made by the state engineer according to the provisions
of sections 18 to 35 (as amended), both inclusive; neither does it appear that the state
engineer ever made, or was called upon to make, a hydrographic survey of the stream system,
as provided by section 20, and as directed by section 45. The petition and decree further fail
to state that the suit was every transferred or referred by the court, under section 45 of the act,
to the state engineer for determination, or that, indeed, any other administrative matter was
ever referred to the state engineer by the court at any time during the course of the action.
So that, aside from the mere request by the petitioner, after the action was closed, that the
state engineer enforce the decree, there is nothing to show that that officer had any knowledge
of the litigation or any information that such a decree ever existed.
If the procedure outlined in the water law of 1913, and amendments, were not followed in
the Quinn River case, at least to some degree, it is difficult to conceive how the judgment or
decree in question could be considered an adjudication of water right as contemplated by
statute.
In section 36 1/2 (as added by Stats. 1927, c. 192) the legislature expressly constitutes the
state engineer an officer of the district court in water cases; but his duties are of a special
nature, and plainly restricted to cases of determination or adjudication of water rights as in the
act prescribed. We cannot extend his duties as an officer of the court beyond the limitations
of the statute itself. Hence, it follows that, if section 36 1/2 is to have a special application
only in cases of adjudication under the statute, it also follows that all of the prescribed duties
of the state engineer under section 45 and section 54 (as amended) are also special duties,
which apply only to cases of adjudication as in the act provided.
Thus, if the water law be read as a whole, the interpretation is irresistible that the duties of
the state engineer in water cases are interlinked with and dependent upon the procedure
outlined in the act itself; and it would be a strained construction of the statute, as we
view it, to attempt to extend these special duties into a general obligation on his part to
administer and enforce every adjudication of water rights, regardless of compliance with
the statute.
upon the procedure outlined in the act itself; and it would be a strained construction of the
statute, as we view it, to attempt to extend these special duties into a general obligation on his
part to administer and enforce every adjudication of water rights, regardless of compliance
with the statute.
We, therefore, are of the opinion that the petition does not state facts sufficient to warrant
the issuance of an alternative writ of mandate, or sufficient to constitute a cause of action.
The views herein set out are, in a measure, sustained by the case of Wattles v. Baker
County, 59 Or. 255, 117 P. 417.
We do not deem it necessary to discuss the other questions raised by the demurrer, and we
have not overlooked the fact that section 54 of the water act was amended by the Statutes of
1929, p. 298, c. 176.
For the reasons stated, the demurrer is sustained on the ground that the petition does not
state facts sufficient to constitute a cause of action against the respondent, or facts sufficient
to entitle the petitioner to any relief. The alternative writ is quashed, and the proceedings are
dismissed.
It is so ordered.
NoteDucker, C.J., being disqualified from participating in this decision, the Governor
designated Hon. Thos. F. Moran, District Judge, to sit in his place.
____________
53 Nev. 128, 128 (1931) State Bar v. Riccardi
STATE BAR v. RICCARDI
No. 2897
On Demurrer to, and Motion to Strike Portions of,
the Petition
January 3, 1931. 294 P. 537.
A presumption of regularity in proceedings had before the state bar leading up to its authorization of
and participation in proceeding to revoke attorney's license attaches and is sufficient against an
anticipatory attack.
State bar held to have capacity to sue (Stats. 1928, Special Session, c. 13, p. 13, sec. 2).
Deceit practiced by attorney in failing to refer, in affidavit accompanying application for admission,
to his disbarment in another state, held to warrant revocation of his license. (Supreme court rule 1,
subsec. 7).
Proceedings by the State Bar of Nevada, a public corporation, to revoke the license of
Constantino V. Richardi to practice law. On demurrer to, and motion to strike portions of the
petition. Motion sustained, and demurrer overruled.
Harlan L. Heward and John S. Belford, for Petitioner.
OPINION
By the Court, Ballard, District Judge:
This is a proceeding brought by the state bar of Nevada through its board of governors by
petition seeking a revocation of the license previously granted by this court to Constantino V.
Riccardi, the respondent, authorizing him to practice law in this state. Such revocation is
asked on the grounds that in the proceedings by respondent to procure said license he had
knowingly and designedly suppressed and concealed the facts of his alleged previous
disbarment in the State of California, and the fact and particulars of his alleged unsuccessful
attempts to procure his reinstatement therein.
It appears from the allegations of the petition that the respondent was admitted to
practice in this state on December S, 192S, upon the recommendation of the board of
examiners of the state bar and upon his affidavit and credentials showing him to be a
member of the bar of the State of Missouri and of good moral standing as such therein,
and that he last practiced in said state.
the respondent was admitted to practice in this state on December 8, 1928, upon the
recommendation of the board of examiners of the state bar and upon his affidavit and
credentials showing him to be a member of the bar of the State of Missouri and of good moral
standing as such therein, and that he last practiced in said state.
1. The proceeding is before us on a demurrer and motion to strike interposed to the
petition. The motion to strike is directed to those portions of the petition wherein are set up
facts tending to establish the course, regularity, and results of the proceedings had before the
state bar leading up to its authorization of and participation in this proceeding. We think that
a presumption of regularity attaches and is sufficient against an anticipatory attach, and that
therefore the motion to strike should be and is sustained in this respect.
2. The demurrer presents the objection that the petitioner has not capacity to sue. The state
bar act expressly provides that the corporation created by it may sue and be sued. Stats.
1928 (Sp. Sess.) c. 13, p. 13, sec. 2. As the respondent has not chosen to appear in person or
by attorney and has filed no brief in support of either his motion or demurrer, we are not
disposed to look beyond the statute as to this point. We therefore hold that the petitioner has
capacity to sue.
3. The demurrer also raises the question of the sufficiency of the facts alleged in the
petition to warrant the court in granting the relief sought. Subsection 7 of rule 1 of this court
provides that the applicant for admission shall make and file an affidavit with the clerk of the
supreme court and with the secretary of the state bar, stating, among other things:
* * * Whether any disbarment or other proceedings of a like nature have ever been
instituted against him, or whether by resignation, withdrawal, or otherwise, applicant has
terminated or attempted to terminate his office as an attorney, and in either or any of the cases
above referred to, giving full particulars. * * * The affidavit filed by respondent contained
no reference one way or the other to the subject of disbarment.
The affidavit filed by respondent contained no reference one way or the other to the
subject of disbarment. A great many cases might be cited wherein such deceit as is alleged in
this petition has resulted in the revocation of the license by the courts, both under statutory
authority: In Re Pritchett, 122 App. Div. 8, 106 N.Y.S. 847; In Re Price, 226 App. Div. 460,
235 N.Y.S. 601; In Re Marx, 115 App. Div. 448, 101 N.Y.S. 680; and in the absence of a
statute: In Re Mosher, 24 Okl. 61, 102 P. 705, 24 L.R.A. (N.S.) 530, 20 Ann. Cas. 209; Dean
v. Stone, 2 Okl. 13, 35 P. 578; In Re Wells, 174 Cal. 467, 163 P. 657; In Re Olmstead, 11
N.D. 306, 91 N.W. 943; Propper v. Owens, 136 Ga. 787, 72 S.E. 242.
The demurrer is therefore overruled. Respondent may have thirty days in which to answer.
NoteSanders, J., being unable to participate in this decision, the Governor designated
Hon. G.A. Ballard, District Judge, to sit in his place.
On The Merits
March 25, 1931. 296 P. 1013.
Where petition stated good grounds for the revocation of attorney's license, and there
was no denial thereof, prayer of petition was granted.
Proceeding by the State Bar of Nevada to revoke the license of Constantino V. Riccardi to
practice law. License ordered revoked.
Harlan L. Heward and John S. Belford, for Petitioner.
OPINION
This is an original proceeding to revoke the license heretofore granted to Constantino V.
Riccardi to practice law in this state. Upon the filing of the petition an order was entered
directing the issuance of citation to the respondent directing him to show cause why his
license to practice law should not be revoked, and for service thereof at San Francisco,
California.
license to practice law should not be revoked, and for service thereof at San Francisco,
California. Service of such citation having been made, the respondent, in due time, appeared
by counsel and interposed a motion to strike and a demurrer to petition, which were disposed
of by this court in an opinion heretofore filed, wherein the motion to strike was sustained, the
demurrer overruled, and thirty days allowed the respondent in which to answer. 53 Nev. 128,
294 P. 537.
The respondent having failed to answer the petition within the time allowed, or at all, the
petitioner, by its attorneys, moved the court to enter the default of the respondent, and for
judgment on the pleadings as prayed in the petition.
Upon the hearing of the motions mentioned, the petitioner offered in evidence the written
application of the respondent for admission to the bar of this state, and the opinions of the
court in the following matters, namely: In Re Riccardi, 182 Cal. 675, 189 P. 694; People v.
Riccardi, 50 Cal. App. 427, 195 P. 448; In Re Riccardi, 64 Cal. App. 791, 222 P. 625; and In
Re Riccardi, 80 Cal. App. 66, 251 P. 650.
Without considering the evidence offered, the petition stating good grounds for the
revocation of the license granted to the respondent, and there being no denial thereof, it
follows that the prayer of the petition should be granted.
It is ordered that the license heretofore issued to the respondent be, and the same is hereby,
revoked.
Ducker, J.: I concur.
Sanders, J., not participating.
____________
53 Nev. 132, 132 (1931) Hunter Et Al. v. Downs Et Al.
HUNTER Et Al. v. DOWNS Et Al.
In Re WIGHTMAN'S ESTATE
No. 2907
February 3, 1931. 295 P. 438.
1. Executors and Administrators.
Exempt property belonging to an estate is dedicated by statute to the use of the family of the
deceased, and when an application is duly made to set apart such property the court or judge is without
any discretion in the matter (Stats. 1897, c. 106, sec. 101).
Stats. 1897, c. 106, sec. 101, provides that upon the return of the inventory or at
any time thereafter during the administration, the court or judge, of his own motion
or an application, may set apart for the use of the family of the deceased all personal
property which is exempt by law from execution. The words may set apart, used in
the statute, have been held by this court to be mandatory and to be read shall set
apart.
An application and order for an allowance made first out of general assets of estate for care of minor
dependent son of deceased could not operate to deprive him of the privilege of having exempt personal
property of estate set apart for his use (Stats. 1897, c. 106, sec. 101, 102).
Application to have exempt property and the homestead set apart for the use of the family of deceased
may be made at any time during administration (Stats. 1897, c. 106, secs. 101, 102).
Distribution of $10,000 to legatee to whom testator bequeathed the proceeds of my life insurance
policy of $10,000 did not prevent court from later granting application to set aside proceeds of two
$5,000 life insurance policies as exempt property (Stats. 1897, c. 106, secs. 101, 102).
The legatee contended that the application and order came too late by reason of the
fact that the proceeds of the life insurance policies to the extent of $10,000 had
already been distributed to legatee by order of partial distribution and duly paid over
to her. However, the $10,000 ordered distributed was not described in the decree as
life insurance proceeds, nor was it so described in the receipt filed by legatee for the
amount distributed to her.
5. Wills.
Identity of testator's two $5,000 policies with $10,000 policy bequeathed by will may not be
established by judicial construction, in the absence of anything else in the will bearing on the matter.
6. Wills.
It must be presumed that property mentioned in will has been described correctly, in the absence of
evidence to the contrary.
Appeal from Second Judicial District Court, Churchill County; Clark J. Guild, Judge.
Petition by Art L. Downs, guardian of the person and estate of Fred R. Wightman, a minor,
and Art L. Downs and another, administrators of the estate of Fred M. Wightman, deceased,
opposed by Tom Hunter and another, executors of the estate of Ida Hunter, to set apart, for
the use of the minor, proceeds of certain insurance policies on deceased's life. From orders
overruling objections and granting the petition, objectors appeal. Affirmed.
Roberts, Scanlan & Ingram, for Appellants:
We understand from sec. 5957, Rev. Laws, that the court or judge, on his own motion or
application may set aside for the use of the family of the deceased all personal property which
is exempt by law from execution, but that the widow, or minor children, may, if they so elect,
petition for and take in lieu of the exempt property an allowance out of the general assets of
the estate. We believe the term may set part is discretionary with the court and governed by
the attitude and circumstances of the minor son. The trial court seemed to be governed
entirely by the Lavendol Case (46 Nev. 181) and the Foster Case (47 Nev. 297), but it will be
noted that in both of those cases the proceeds from life insurance policies constituted
practically the entire estate, if not all of the estate, and that the application to set apart
proceeds from life insurance policies was made in due time; while in the instant case
application had been long delayed, and as the minor child had been receiving a liberal
monthly allowance for his support and as a decree of partial distribution had been made
awarding the insurance moneys to the legatee named in the will, we therefore believe that
the Lavendol and Foster Cases should not have governed the trial court in overruling the
objections made by the executors of Ida Hunter.
in the will, we therefore believe that the Lavendol and Foster Cases should not have governed
the trial court in overruling the objections made by the executors of Ida Hunter. We believe
that it is a general rule that a party claiming privileges allowed to them by law must avail
themselves of the privileges within a reasonable time, and upon failure to do so that they are
then deemed to have waived such privileges and are estopped from further asserting any
rights thereto. Estate of Pillsbury, 175 Cal. 454, 166 P. 11.
During the entire course of the proceedings in the Wightman Estate matter the minor was
represented by able counsel who had knowledge of every step in the proceedings, and failure
upon his part to assert the exemption privilege must be deemed to be a waiver of it. He cannot
hold back and permit a distribution to be made and then come in with his claim for the
proceeds of life insurance policies, to the prejudice of other rights which have intervened. 24
C.J. 257; 25 C.J. 117.
The court erred in denying appellant's objections and granting the petition of the guardian
of said minor and setting apart the proceeds from said life insurance policies, for the reason
that the proceeds derived therefrom, to the extent of ten thousand dollars, have been
distributed to the legatee by order of partial distribution and without objection by the guardian
of said minor nor objection from other interested parties, and which order is final and res
adjudicata as to the proceeds from said life insurance policies. If the guardian for the minor
was dissatisfied and aggrieved by that decree of partial distribution, then his remedy was by
motion to vacate or amend, in accordance with the provisions of section 5084, Rev. Laws,
and rule XLV of district court rules, or by appeal. Failure upon the part of the guardian for the
minor to avail himself of the remedies provided by law finally and effectually estops and bars
him from further attach on the decree of partial distribution, the same as any other order,
judgment or decree of a court of competent jurisdiction. 24 C.J. 495; Tracy v. Muir, 151 Cal.
363, 367, 90 P. 832, 833.
A.L. Haight, for Respondents:
We do not understand, as claimed by counsel, that the statute authorizes the widow or
minor children, if they so elect, to petition for and take an allowance out of the general assets
of the estate in lieu of the exempt property.
Counsel have cited no authority whatever to support the proposition that the acceptance of
payments under the order of allowance constituted a waiver of the right to claim the
exemption of the proceeds from the life insurance policies, and we know of no such authority.
In the only case cited by counsel in support of this contention (Estate of Pillsbury, 175 Cal.
454), the minor, through adoption by another, had ceased to be a member of the decedent's
family at the time the application was made, which, of course, would absolutely preclude him
from asserting any right as a member of such family, and the court denied his claim solely
upon that ground.
The rule adopted by practically all of the courts is that they (exemption laws) are to be
construed liberally so as to effectuate their beneficent purposes. 25 C.J. p. 10. See, also, 25
C.J. p. 121, p. 123.
Counsel advance their belief that the term may set apart is discretionary with the court
and governed by the attitude and circumstances of the minor son. In this respect, we would
call attention to the fact that the court in this case was governed by the showing of facts
which appear in the petition to set apart exempt personalty, which were conceded and not
questioned. Further, the statute is mandatory, and the expression may set apart must be
considered as imperative as if it had read shall set apart.
It is further suggested that the period of two years which elapsed between the time the
inventory was filed and the filing of the petition to have the exempt personalty set aside to the
minor son was an unreasonable time. In the first place, our statute expressly states that the
application may be made at any time, after the return of the inventory, during the
administration of the estate, so that no period of time could be considered unreasonable so
long as it meets the requirements of the statute.
unreasonable so long as it meets the requirements of the statute. In California, where the
question of unreasonable delay was raised in a similar case, it was held that, although the
application was not made until more than three years after the letters of administration had
been issued, this was a nonprejudicial irregularity. In Re Fretwell's Estate (Cal.), 98 P. 1058.
Counsel assert that a decree of partial distribution was made, awarding the insurance
moneys to the legatee named in the will. We do not know upon what counsel base this
statement, as there is nothing in the record to indicate that such is the case.
It does not appear from the record that the decedent had any life insurance policy of
$10,000, although he had two policies in different companies ordinarily referred to as $5,000
policies. For this reason it is not established that there was any bequest of life insurance
moneys to Mrs. Hunter.
We see noting mentioned in the appellant's brief which would tend to vary the rule
established by this court in the Lavendol Estate Case, 46 Nev. 181, or in the Foster Estate
Case, 47 Nev. 300. The principles emphasized in those cases seem to be absolutely
controlling in the instant case.
OPINION
By the Court, Ducker, J.:
Fred M. Wightman, a resident of Churchill County, Nevada, died testate on or about the
25th day of September, 1927. His will contained, among other provisions, the following:
I give and bequeath to Mrs. Ida Hunter the proceeds of my life insurance policy of
$10,000 together with eighty shares of stock of Churchill County Bank, a corporation.
I hereby give and bequeath to my son Wayne Wightman my 320 acre ranch at Fallon,
Nevada, together with the stock and equipment thereon, the same to be held in trust for my
son by H.L. Nichols until he reaches the age of thirty-five years {35).
in trust for my son by H.L. Nichols until he reaches the age of thirty-five years (35). In the
meantime the income is to be turned over by said H.L. Nichols to my said son.
I hereby give and bequeath to my son Fred Wightman, Jr., the following, Fifty Thousand
Dollars ($50,000) in notes and securities the same to be held in trust for my said son by H.L.
Nichols until he reaches the age of thirty-five years. The income from said fund is to be
turned over to my said son quarterly by said H.L. Nichols until he reaches the age of
thirty-five (35) years.
All the balance and residue of my said estate I give and bequeath equally to my two sons,
Wayne Wightman and Fred Wightman, Jr., the same to be held in trust for them in the same
manner as the aforesaid bequests.
I give and bequeath to my mother, Sarah Jane Wightman Five Thousand Dollars,
($5,000).
The will was duly admitted to probate in the district court of Churchill County on the 8th
day of November, 1927, and H.L. Nichols was nominated as executor. He acted as such until
his death on or about the 10th day of November, 1928. An inventory and appraisement was
duly filed showing that the property of the estate consisted of real, personal, and mixed assets,
amounting in value to $163,407.74. Among these assets two insurance policies were listed, to
wit: A policy of the Mutual Life Insurance Company of New York for $5,000, and a policy of
the Penn Mutual Life Insurance Company for $5,000. These policies were appraised at $5,000
each. On the 12th day of June, 1928, on petition of the executor, the court entered an order for
partial distribution and among other items ordered the executor to pay to Ida Hunter, one of
the beneficiaries named in the will, the sum of $10,000. On the 30th day of January, 1928, the
court made and entered an order directing the executor of the estate to pay to Art L. Downs,
the guardian of the person and estate of Fred Wightman, Jr., the sum of $300 per month for
the care, maintenance, and support of the minor; said payments to commence from the 1st day
of February, 1928, and to continue therefrom until the further order of the court.
the further order of the court. This monthly allowance said minor son received until the 1st
day of March, 1930. On the 28th day of January, 1930, the guardian of said minor filed a
petition to set apart for the latter's use the proceeds from the Mutual Life Insurance Company
of New York policy in the sum of $5,495; and from the Penn Mutual Life Insurance
Company policy the sum of $5,115.53; and from the Equitable Life Assurance Society of the
United States the sum of $300amounting in all to the sum of $10,910.53.
It was alleged in the petition that said sums were received by the executor and paid by said
companies as moneys growing out of life insurance policies upon the life of deceased and
payable to the estate after his death; that the annual premiums paid in connection therewith
did not exceed the sum of $500; and that the entire amount received by the executor as
aforesaid was and is personal property exempt by law from execution and not subject to
administration as a part of the assets of the estate. It is further alleged in the petition that the
decedent left no surviving widow but did leave surviving him a minor child, to wit, the
above-named Fred Wightman, Jr., who is the only minor child and was at all times wholly
dependent upon Fred M. Wightman for support and was supported by him up to the time of
the latter's death. It is alleged that after the death of H.L. Nichols, and on or about the 27th
day of November, 1928, Art L. Downs and Wayne Wightman were appointed administrators
of the estate, with the will annexed; that they qualified and have ever since acted as such, and
have in their possession and under their control all of the property and assets of said estate.
The executors of Mrs. Ida Hunter, deceased, by their attorneys filed written objections to
the allowance of the petition and appeared and argued the same at the hearing. Their
objections were overruled, and the court ordered the said proceeds of the life insurance
policies amounting in the aggregate to $10,910.53, to be set apart for the use of Fred
Wightman, Jr., a minor, and the administrators of the estate with the will annexed were
ordered to pay over said sums to Art L.
were ordered to pay over said sums to Art L. Downs, guardian of the person and estate of said
minor. It was further ordered that the total of all allowances theretofore paid unto said minor
or his guardian out of the funds of the estate should be deducted from the total of the
proceeds of the life insurance policies set apart. It was also ordered that all payments
theretofore ordered to be made by the administrators with the will annexed, to the guardian of
Fred Wightman, Jr., on account of support, maintenance, and medical attention of the said
minor, cease after the 1st day of March, 1930. These orders were made and entered on
February 25, 1930.
From the orders overruling the objections and granting the petition, this appeal is taken.
1, 2. Appellants' first contention is that the guardian of said minor waived the exemption
of said proceeds from life insurance policies by electing to petition for and accepting the sum
of $300 monthly for the minor's care, support, and maintenance.
Appellants have produced no authority to support this contention and the probate statutes
involved do not sustain it. The following sections control the matter:
Section 101 of the act concerning estates of deceased persons provides as follows:
Upon the return of the inventory or at any time thereafter during the administration, the
court or judge, of his own motion or an application, may set apart for the use of the family of
the deceased all personal property which is exempt by law from execution, and the homestead
as designated by the general homestead law now in force, whether such homestead has
theretofore been selected as required by said law or not, and the property thus directed to be
set apart shall not be subject to administration. (Stats. 1897, c. 106.)
Section 102 of said act provides:
If the whole property exempt by law be set apart, and should not be sufficient for the
support of the widow, child or children, the district court or judge shall make such
reasonable allowance out of the estate as shall be necessary for the maintenance of the
family according to their circumstances during the progress of the settlement of the
estate, which in case of an insolvent estate shall not be longer than one year after
granting letters of administration."
such reasonable allowance out of the estate as shall be necessary for the maintenance of the
family according to their circumstances during the progress of the settlement of the estate,
which in case of an insolvent estate shall not be longer than one year after granting letters of
administration.
No authority is given either expressly or impliedly by either of these sections to a family of
a deceased or member thereof to take an allowance out of the general assets of an estate in
lieu of exempt property or the homestead. It is only where there is no exempt property or it is
insufficient for the support of the family that resort may be had for such purpose to
nonexempt property. Exempt property belonging to an estate is dedicated by section 101 to
the use of the family of the deceased, and when an application is duly made to set part such
property the court or judge is without any discretion in the matter. The words may set apart,
used in the statute, have been held by this court to be mandatory and to be read, shall set
apart. In Re Walley's Estate, 11 Nev. 260.
An application and order for an allowance made first out of general assets could not operate
to deprive a family of the privilege conferred by section 101 unless on some principle of
estoppel, which is not applicable here. That the court, when it made its last order, was
conscious that exempt property alone, if sufficient, could only be set aside for the use of the
minor, is apparent from the fact that it was ordered that the total of former allowances should
be deducted from the proceeds of the life insurance money and that allowances under the
previous order should cease.
3. It is also contended that the guardian waived the privilege of having the proceeds of the
life insurance policies set apart for the use of the minor by not making a timely application. In
so far as the mere lapse of time is concerned, this contention is answered by the statute, which
says that the application to have exempt property and the homestead set apart for the use of
the family may be made at any time during administration.
The application and order were made within the time required by the statute. Consequently
no question as to whether it was filed within a reasonable time can arise.
The case of Estate of Pillsbury, 175 Cal. 454, 166 P. 11, 3 A.L.R. 1396, cited by
appellants, is not in point. It was there held that a statute like ours did not of its own force set
exempt property apart for the family of a deceased, and that the children of decedent, adopted
by third persons after the death of their parent and before application to set apart exempt
property, cease to be members of the decedent's family and lose their right of exemption. No
question of an application by a family of a deceased was present in that case.
4. But it is contended that the application and order came too late by reason of the fact
that the proceeds of the life insurance policies to the extent of $10,000 had been distributed to
legatee Mrs. Ida Hunter by order of partial distribution made on June 12, 1928, and duly paid
over to her. It is argued that the decree whereby the court distributed the proceeds from the
Mutual Life Insurance Company of New York in the sum of $5,000 and the Penn Mutual Life
Insurance Company in the sum of $5,000 to Ida Hunter, and her receipt thereof, completely
and finally closed that part of the estate; that if the guardian of the minor was dissatisifed, his
remedy was by motion to vacate and amend in accordance with the provisions of section
5084, Rev. Laws, and rule XLV of district court rules, and that not having done so, and
having made no objections to the decree of partial distribution, the matter is res adjudicata.
But it does not appear that the $10,000 distributed to Ida Hunter was the proceeds of said life
insurance policies. While the petition for partial distribution mentions the bequest to Ida
Hunter and other bequests of the will, and asks for a partial distribution in accordance with
these bequests, the petition was granted only in part. The $10,000 ordered distributed was not
described in the decree as life insurance proceeds, nor was it so described in the receipt filed
by Ida Hunter for the amount distributed to her.
Ida Hunter for the amount distributed to her. On the contrary, the court in its written opinion
which we find in the record, expressly disclaimed having distributed any moneys received
from insurance policies. The court said:
We call attention to counsel that the Court did not, by partial distribution or otherwise,
distribute any specific moneys received from insurance policies. We made a partial
distribution of certain moneys belonging to the estate. This Court at the time of said partial
distribution had no thought in mind other than to carry out, partially at least, the mind or will
of the testator, which we did, by a partial distribution of funds, under general bequests of the
will. (The italics are the trial court's.)
Furthermore, it does not appear that the testator in his will made a bequest to Mrs. Ida
Hunter of the two life insurance policies of $5,000 each, returned in the inventory. The
bequest is the proceeds of my life insurance policy of $10,000. He may not have had such a
policy at the time of his death.
5, 6. Whether in a proper case respondents would be permitted to introduce evidence to
show that the testator in the bequest of the proceeds of one life insurance policy for $10,000
intended the two policies for $5,000 each, we need not intimate an opinion. But as the case
stands now there is nothing tending to show such identity. Certainly in the absence of
anything else in the will bearing on the matter their identity may not be established by judicial
construction. In the absence of evidence to the contrary, it mast be presumed that property
mentioned in the will has been described correctly. 40 Cyc. 1427; Hopkins v. Holt, 9 Wis.
228.
We think, therefore, that the trial court committed no error in overruling the objection to
the petition to set apart the proceeds of the life insurance policies for the support of the minor
son. These proceeds were exempt property by virtue of the provisions of paragraph 14 of
section 5288, Rev. Laws of Nevada.
Affirmed.
____________
53 Nev. 143, 143 (1931) In Re Wightman's Estate
In the Matter of the ESTATE OF FRED M.
WIGHTMAN, Deceased
No. 2952
October 19, 1931. 3 P. (2d) 1115.
Appeal from First Judicial District Court, Churchill County; Clark J. Guild, Judge.
From a decree and judgment allowing final account and distributing estate, and from order
overruling a motion for a new trial, executors of the estate of Ida Hunter, deceased, appeal.
Affirmed.
Forman & Forman, for Appellants.
A.L. Haight, for Churchill County Bank, Trustee for Fred Wightman, Jr.
G.J. Kenny, for Absent Heirs.
OPINION
This case was before us on an appeal from orders overruling objections to a petition to set
apart exempt property for the use of a minor, and granting the petition. The action of the
lower court was affirmed on that appeal. Hunter v. Downs (In Re Wightman's Estate), 53
Nev. 132, 295 P. 438.
The case is now before us on an appeal from a decree and judgment allowing final account
and distributing estate in the above-entitled matter, and from the order overruling a motion
for a new trial made in said court by the executors of the estate of Ida Hunter, deceased. The
facts are set out in our former opinion and need not be restated here.
On the former appeal we held that the trial court committed no error in setting apart the
exempt property, to wit, the proceeds of the life insurance policies, for the use of the minor
heir, Fred Wightman, Jr. On this appeal the question presented is whether by taking the
exempt property he elected to take against the provisions of the will.
this appeal the question presented is whether by taking the exempt property he elected to take
against the provisions of the will. Appellants contend that he did so elect, and, as a
consequence, so much of the minor's share of the estate or shares of all the devisees and
legatees proportionally as is necessary should be used to satisfy the bequest of the life
insurance policies to Ida Hunter. The rule of law asserted by appellants as applicable to the
facts in this case, is that, where a testator in his will either expressly or by plain implication
indicates an intention that a surviving spouse or heir must elect to take under the will or what
the statute grants, he or she must comply with the testator's desire. We concede that a will
may be so framed as to compel such an election. In Re Gray's Estate, 159 Cal. 159, 112 P.
890.
That the will in this case was not so framed is settled by our opinion on the former appeal.
No additional facts are presented here, and in our former opinion we held that there was
nothing to show any identity between the life insurance policy for $10,000 mentioned in the
will and the two policies for $5,000 each, the proceeds of which were set apart by the court
for the use of the minor. We are satisfied with our opinion in that respect.
It is now contended that the trial court in its decree of final distribution made a finding that
by the life insurance policy of $10,000 mentioned in the will the testator meant the two
$5,000 policies, the proceeds of which were set apart by the court. This contention is based
upon the following statement of the trial court appearing in the decree of final distribution:
And it further appearing that the life insurance proceeds referred to in the last will and
testament of said decedent have been ordered set apart for the support and maintenance of the
above-mentioned Fred Wightman, Jr., minor child of said testator, and that neither Mrs. Ida
Hunter nor her estate is entitled to any part thereof, and that such moneys have been so
disposed of.
Even if this could be considered a finding it would be unsupported by the evidence, for no
evidence has been introduced since our decision on the former appeal.
introduced since our decision on the former appeal. But we regard the statement as a mere
recital to show why the proceeds of the life insurance policies were not distributed to the
estate of Mrs. Ida Hunter.
The judgment and order are affirmed.
____________
53 Nev. 145, 145 (1931) Cornell Et Al. v. Sagouspe Et Al.
CORNELL Et Al. v. SAGOUSPE Et Al.
No. 2896
February 4, 1931. 295 P. 443.
1. Partnership.
General rule is that one partner is not entitled to charge the other compensation for his services
without special agreement.
2. Partnership.
Where it can be fairly and justly implied from the conduct of the partners and the course of dealing
between them, or from circumstances of equivalent force, that one partner is to be compensated for his
services, his claim will be sustained.
3. Partnership.
In the absence of agreement, compensation will not follow merely because one partner renders more
service in connection with the firm's business than the other.
4. Partnership.
Although one partner rendered more service in connection with farming and livestock partnership,
held that he should not be compensated for his services in the absence of more satisfactory evidence of an
agreement than the mere fact that he had full charge of the affairs of the partnership, while the other
partner divided his attention between his individual business and that of the partnership.
5. Partnership.
Provision in written agreement of partnership that each partner should, from time to time, withdraw
amount or amounts from the firm to make them appear equal on the books, indicates that neither partner
was to have a right to claim compensation for his services.
6. Partnership.
If partner's wife was entitled to wages for services rendered the partnership, she was compensated for
her services if her wages were withdrawn from the firm business and invested in land which did not
become partnership property.
7. Partnership.
Credit due partner on account of his exchange of individual property for partnership property should
not be reduced on the ground that he thus realized more for his property than he would have realized
from a cash sale, in the absence of proof of the value of the property, or of fraud.
Appeal from Eighth Judicial District Court, Churchill County; Clark J. Guild, Judge.
Suit by E.B. Cornell and another against J.P. Sagouspe and another. From the judgment,
plaintiffs appeal. Reversed.
Clyde D. Souter, for Appellants:
Not a scintilla of evidence was introduced by the respondents to indicate that the land
traded by Cornell for the Hesse sheep was not worth the amount credited, and the
prognostications of either the referee or the trial court in that connection certainly should not
be taken as a basis, without evidence, for reducing the amount to which Cornell was entitled,
when this matter first was called in question some six year later.
As the written contract of partnership excludes any oral contract that might have been
made for the payment of wages to Sagouspe (there was, however, no evidence of any oral
contract to pay wages, and no finding that any such oral contract had been made) so it also, as
a matter of law, excludes any implied contract to do so. It amounts to an express contract that
no wages shall be paid. The written contract is the entire contract of the parties, and it is well
settled that partners, as such, are not entitled to wages, nor to additional compensation above
other partners merely because they have devoted a greater amount of time to the partnership
business. Folsom v. Marlette, 23 Nev. 459; Robertson v. Mechanics Bank and Trust
Company (Ky.), 211 S.W. 858; Batson v. Drummond (Ark.), 249 S.W. 547; Bemiss v.
Orphan's Home (Ky.), 230 S.W. 310; Efner v. Reynolds (Neb.), 181 N.W. 552; Lake v.
Brugess (Ky.), 273 S.W. 452; Rolshouse v. Wally (Pa.), 116 Atl. 474; Will v. Domer
(Wash.), 236 P. 104; Roediger v. Reid (Wash.), 234 P. 452; Maynard v. Maynard (Ga.), 93
S.E. 289; Weeks v. McClintock (Ark.), 6 S.W. 734; Hoag v. Alderman (Mass.), 68 N.E. 199;
Bradford v. Kimberly (N.Y.), 3 Johns. Ch. 451; Emerson v. Durand (Wis.), 24 N.W.
129; Godfrey v. White (Mich.), 5 N.W. 243; Mondamin Bank v. Burke (Iowa), 147 N.W.
148; Lewis v. Moffett, 11 Ill. 392; Mann v. Flanagan, 9 Ore. 429; Neville v. Moore Mining
Company et al., 67 P. 1054.
W.S. McGuire and Samuel R. Tippett, for Respondents:
It is obvious that Mr. Cornell not only profited on the Hesse sheep transaction, as found by
the referee, from one to three thousand dollars, but also misrepresented the manner in which
he obtained the sheep for the partnership. We therefore earnestly urge that it was the duty of
Mr. Cornell as a copartner to account for the ten thousand dollars he obtained from the
partnership, as well as the one-third interest in the lands, which he still owns, that was given
in exchange for the Hesse sheep, and that in lieu of being credited with one half of the interest
deduction made by the lower court on the Hesse sheep item, he should be charged with
interest on the ten thousand dollars, together with attorneys' fees and court costs which Mr.
Sagouspe was compelled to pay as the survivor of said partnership at the time the stipulation
in this cause was entered into, amounting to approximately the sum of $3,600.
The general rule as to the services and compensation of partners we find fully set forth in
20 Cal. Jur., pp. 734 and 735, sec. 50.
The courts of every state, where the question has arisen, have invariably held that a
contract for wages may be implied where the facts justify it, and we submit that nowhere in
any court, with facts similar to those in this case, have the courts failed to hold such an
implied contract.
The following cases, we submit, clearly establish respondents' right to wages: Mattingly v.
Stone (Ky.), 35 S.W. 921; Bradford v. Kimberly (N.Y.), 3 Johns. Ch. 451; Emerson v.
Durand (Wis.), 24 N.W. 129; Arthur v. McCallum (Mich.), 162 N.W. 118; Godfrey v. White
(Mich.), 5 N.W. 43; Booker v. Williamson, 60 Tex. 524; Mondamin Bank v. Burke (Iowa),
147 N.W. 148; Morris v. Griffin (Iowa), 49 N.W. 848; Rains v. Weiler {Kans.),
Rains v. Weiler (Kans.), 166 P. 235; Lewis v. Moffett, 11 Ill. 392; Cramer v. Bachman, 68
Mo. 310; In Re Levy's Estate (Wash.), 215 P. 811; Duley v. Duley (Wash.) 225 P. 401; Mann
v. Flanagan, 9 Ore. 429; Lassiter v. Jackman, 88 Ind. 119; Neville v. Moore Mining Co. et al.
(Cal.), 67 P. 1054.
In view of all these decisions it is clear that the court in Folsom v. Marlette, 23 Nev. 459,
when it said: * * * the general rule undoubtedly is that one partner is not entitled to charge
the other for his services without special agreement, undoubtedly had in mind the general
rule as laid down throughout the courts, as clearly appears from the cases just cited, for none
other existed. And when it spoke of special agreement it must have had in mind the same
universal rule and its own words in the then recent case of Beck v. Thompson, 22 Nev. 125,
368, where it denied extra compensation in the absence of an express or implied contract.
OPINION
This suit was brought on November 23, 1926, by E.B. Cornell against J.P. Sagouspe for an
accounting, settlement, and dissolution of a farming and livestock partnership conducted and
carried on by the parties under the firm name of Cornell & Sagouspe. According to the
complaint in the case, the partnership was formed under an oral contract on or about March 1,
1916, which was reduced to writing on December 11, 1917. The partnership property consists
of about 1,000 acres of land called the Heppner ranch, together with the live stock and other
personal property thereon, near Fallon, in Churchill County, Nevada. The firm business was
carried on in harmony until September, 1926, when the partnership relation became strained.
The friction occasioned by their differences resulted in the commencement of this suit in the
following November. While the suit was pending, on, to wit, February 8, 1927, the partners
and their wives entered into a stipulation and agreement, filed in the cause, which forms
the basis for the plaintiff's appeal from the judgment and from an order denying his
motion for a new trial.
and their wives entered into a stipulation and agreement, filed in the cause, which forms the
basis for the plaintiff's appeal from the judgment and from an order denying his motion for a
new trial. The agreement incorporated in the court's findings and judgment reads in part as
follows:
It is hereby stipulated and agreed by and between J.P. Sagouspe and Julie Sagouspe,
Edith M. Cornell and E.B. Cornell as follows:
That J.P. Sagouspe and Julie A. Sagouspe agree to buy from E.B. Cornell the partnership
property known as the Heppner Ranch for Twenty Thousand Dollars ($20,000.00), payable
Five Thousand Dollars ($5,000.00) in cash within thirty days time, balance to be secured by
second mortgage on the ranch real estate, bearing interest at the rate of six per cent per
annum, payable annually, and payable in installments of Five Thousand Dollars ($5,000.00)
annually, beginning at the end of the third year; said mortgage to provide that whenever
default shall occur in the payment of any interest or principal when due, and the same shall
continue for thirty days, the holder may declare the entire unpaid balance to be immediately
due and payable.
It is understood and agreed that the said mortgage shall be subject to no other lien
whatsoever, except a first mortgage to be secured from the Federal Farm Loan Bank of not to
exceed thirty-five thousand dollars ($35,000.00), or if secured elsewhere not to exceed thirty
thousand dollars ($30,000.00). This proposition shall be subject to a partnership accounting
in this action, and the sum of fifteen thousand dollars ($15,000.00) as agreed to be secured by
second mortgage hereinbefore mentioned shall be increased or diminished by the amount of
difference that such accounting shall establish between the relative interests of the partners in
said property. Each partner to pay one-half of the cost of such accounting, to be had under the
order of the court.
Upon the acceptance by the Cornells of the offer, terms, and conditions of said agreement,
the court made an order appointing one F.A. Sawyer as referee to make the accounting, as
provided in the agreement.
to make the accounting, as provided in the agreement.
On exceptions filed by both parties to the referee's accounting and report, referred to as his
findings and conclusions, it was adjudged and ordered, among other things, that the mortgage
to be given by the Sagouspes to the Cornells, as provided in said agreement, be reduced from
$15,000 to that of $2,797.84. The principal controversy on appeal arises from the reduction of
the mortgage instead of its increase. The appeal is limited to the discussion of the items of the
accounting which went to the reduction of the mortgage. One item is designated in the
assignments of error as the Hesse Sheep item, and the other is designated Wages Allowed
Sagouspes.
In the accounting Cornell was allowed a credit of $10,000 for the so-called Hesse Sheep
which was reduced by the court in its findings to that of $9,378, and in addition to the
reduction Sagouspe was allowed a credit of $211 as interest on $622, from October 16, 1922,
to February 8, 1927, the difference between $10,000 and $9,378. The reduction of the credit
and the allowance of interest is assigned as error.
In the accounting Sagouspe was allowed as wage compensation for his services rendered
the partnership, from March 1, 1916, to April 25, 1925, a period of 9 years, 1 5/6 months, the
sum of $16,475, and his wife was allowed as wage compensation for her services rendered
the partnership, covering the same period of time, the sum of $8,237.50, and Cornell and
Wife were allowed the combined sum of $3,522.50. Upon the hearing of the exceptions to the
several allowances the amounts allowed the Sagouspes were permitted to stand, and the
allowance made the Cornells was stricken out. The allowance of wages to the Sagouspes,
regardless of the amounts, is assigned as error.
1-3. Wages allowed Mr. Sagouspe$16,475. The general rule undoubtedly is that one
partner is not entitled to charge the other compensation for his services without special
agreement. Folsom v. Marlette, 23 Nev. 459, 49 P. 39; 1 C.J. 786; sec. 230. In other words,
the law presumes that the absence of an agreement for compensation necessarily implies
that each partner relies upon the profit arising from the business and his partnership
interest therein for his compensation.
presumes that the absence of an agreement for compensation necessarily implies that each
partner relies upon the profit arising from the business and his partnership interest therein for
his compensation. 1 Rowley, Modern Law of Partnership, sec. 350, p. 402. The general rule,
however, according to many decisions, is not inflexible, nor of universal application. Where it
can be fairly and justly implied from the conduct of the partners and the course of dealing
between the partners, or from circumstances of equivalent force, that one partner is to be
compensated for his services, his claim will be sustained. 1 Rowley, sec. 354; 47 C.J. 788.
There was no express agreement in this case for compensation of either partner. The inquiry
is whether the evidence is sufficient to warrant the implied conclusion of the court that there
was an agreement or understanding between the partners that Sagouspe was to be
compensated for his services rendered the partnership. According to the court's decision and
findings, Sagouspe was allowed compensation for his services solely upon the ground that,
from the beginning of the partnership in 1916, Sagouspe lived at the place of business and
devoted himself with fidelity and energy to all his duties, and by his efforts the partnership
was made to pay its own way, while his copartner, Cornell, devoted but little or no time or
effort to the partnership property or its business, and, under these circumstances, there was an
implied agreement to compensate Sagouspe for his services. In the absence of agreement,
compensation will not follow merely because one partner renders more service in connection
with the firm's business than the other. Gilmore on Partnership, sec. 133; 1 Rowley, Modern
Law of Partnership, sec. 351; 47 C.J. 786, sec. 230.
4. It was easy enough for the partners to have provided for such contingency in the
express contract entered into on December 11, 1917, if such was their intention. Conceding
that Sagouspe did render more service in connection with the partnership land than Cornell,
we think that he should not have been compensated for his services in the absence of more
satisfactory evidence of an agreement than the mere fact that Sagouspe had full charge of
the affairs of the partnership, while Cornell divided his attention between his individual
business and that of the partnership.
Sagouspe had full charge of the affairs of the partnership, while Cornell divided his attention
between his individual business and that of the partnership. The law never undertakes to settle
between partners their various and unequal services in the transaction of their private affairs,
for the reason that the attempt would be altogether impracticable. Caldwell v. Leiber, 7 Paige
(N.Y.) 483; Rowley on Modern Law of Partnership, sec. 351. In regard to the services
rendered by the partner Cornell to the partnership, the court's referee found that the
continuous efforts toward the success of the partnership from its earliest inception entitled
Cornell to at least the amount awarded him for his services. Furthermore, the accounting and
the proof shows that Cornell rendered very valuable services to the partnership, without
interruption, through a long series of years, and that he contributed to the partnership money
and property of the value of $19,000.
It is clear to us that both partners rendered services in connection with the partnership
enterprise. All that is said in the briefs concerning the services rendered by Sagouspe may be
conceded, and yet it does not support the implied conclusion of the court and its referee that
there was an understanding or agreement to compensate Sagouspe for his services. If it was
intended that either partner should have a valid claim for compensation, it is natural to
suppose that it would have been mentioned at the time the verbal agreement of partnership
was reduced to an express contract, whereby each became equal partners in both the real and
personal property of the firm. Sagouspe not only did not prefer any such claim as he now
asserts, at that time, but on the contrary it does appear that he never intimated his purpose to
do so during the existence of the partnership, and it was not until differences had arisen
between them in the year 1926, that he made any claim for compensation. It was in proof that
Sagouspe had charge of the books of the firm, kept by his wife, and that he never, during all
the various years of his supervision of the firm business, put upon record any charge for his
services, or even a line or word to that effect.
for his services, or even a line or word to that effect. It was in proof that during each year of
the partnership Cornell made up from the books of the concern, as kept by Mrs. Sagouspe, the
federal income tax reports of the partnership, and that in no report was there a charge against
liability for an income tax for wages paid either of the partners or their wives. We think that if
it was the intention of either partner to insist upon compensation, good faith required that he
should have made it known, and it is natural to suppose that, if such was the fact, the claim
would have been charged against liability for an income tax. It was also in proof that during
the existence of the partnership Sagouspe was credited with $15,000 of cash withdrawals
which he invested for his own use and benefit in certain lands located in the vicinity of the
Heppner ranch, known as section 31, or railroad land, to which he divided his time and
attention. Not a single item of the withdrawals was charged on the books as wage
compensation to Sagouspe and his wife. It was in proof that it was not until a few months
before the institution of this suit that Cornell had any knowledge of the claims for wages
allowed the Sagouspes. No sooner was this information obtained than Cornell instituted this
suit for a true accounting and dissolution of the firm. Under all these circumstances, we think
there is nothing in this case to take it out of the operation of the general rule which denies
compensation to a partner for his services unless under a special agreement. In other words,
the legal presumption is that Sagouspe relied upon the profits arising from the business and
his partnership interest therein for his compensation.
5. The cases reviewed by counsel for Sagouspe in their briefs, where, in the absence of an
agreement for compensation, one was implied, may be differentiated from this case, in that
Sagouspe did not devote his time and attention to the business of the firm at the instance of
Cornell, while Cornell devoted his attention to his individual business. It is true that the
partnership only embraced the purchase and running of a farm but it was carried on and
conducted by both partners as if it were a commercial partnership.
was carried on and conducted by both partners as if it were a commercial partnership. In the
written agreement of partnership it was provided that each partner should, from time to time,
withdraw amount or amounts from the firm to make them appear equal on the books. Such an
agreement indicates that neither partner was to have a right to claim compensation for his
services. 47 C.J. 788.
6. Wages allowed Mrs. Sagouspe$8,237.50. In explanation of this item, the referee
stated in his report that Mrs. Sagouspe was allowed wages, because, on ranches of the
character of the Heppner ranch it was customary to employ cooks, and, Mrs. Sagouspe having
willingly cooked for the partnership, both the court and the referee concluded that she, as any
other employee, should be paid for her work.
Mrs. Sagouspe, as a witness before the referee, testified, in substance, that, in the early
spring of 1920, she had a conversation with her husband in which it was understood and
agreed that she should receive wages as cook for the partnership, and that at that time her
husband offered her the firm's note for wages then due, but that she did not accept the note
and told her husband that she was willing to do the cooking and whatever sum she was
allowed as wages might be invested by him for their common use and benefit. She testified
that her wages were included in the cash withdrawals made by her husband from the firm
business, and invested by him in the land designated in the record as section 31, or railroad
land. She testified that at the time of the accounting the partnership was not indebted to her in
any sum for her services. Assuming that Mrs. Sagouspe was entitled to wages, without so
deciding, she had been compensated for her services at the time this suit was instituted, if the
railroad land purchased, as testified to, did not become partnership property.
7. Hesse sheep item$10,000. On the side of Cornell it was in proof that he accumulated
and purchased for the partnership 1,648 sheep, which number, less 14, reached the Heppner
ranch in August, 1921; that 1,563 of the sheep were purchased by Cornell from one Hesse,
at $6 per head, which totaled $9,37S; that the remaining number of sheep were
purchased from other parties by Cornell.
of the sheep were purchased by Cornell from one Hesse, at $6 per head, which totaled $9,378;
that the remaining number of sheep were purchased from other parties by Cornell. It
developed, however, in the course of the examination of Cornell, that on October 16, 1922, a
firm note was given Cornell in the sum of $10,000 for the sheep, which was hypothecated by
Cornell to a bank in Porterville, California, for his own account, in no way connected with the
sheep transaction. It developed that no money passed for the Hesse Sheep and that Cornell
conveyed, in exchange for the sheep, a two-third interest in certain of his lands located in
California. The referee found that, while there was no evidence as to the value of the interest
in the land given in exchange for the sheep, he believed that Cornell realized at least $1,000
more for his land than he would have realized from a cash sale, but, for lack of evidence as to
the value of the land, he was compelled to allow a credit of $10,000 to Cornell for the sheep,
as much as he hated to do so. The court, however, in an effort to adjust the differences in the
testimony of Cornell and Sagouspe as to the sheep transaction, and on account of its
misgivings as to the bona fides of Cornell in his dealings with the partnership respecting the
Hesse Sheep, reduced the credit of $10,000 allowed Cornell to $9,378, upon the theory that
there was a partial failure of consideration in the firm note for $10,000 given Cornell for the
sheep. In the absence of proof as to the value of the land given in exchange for the Hesse
Sheep, nothing short of a breach of good faith, amounting to fraud, would justify the
reduction of the credit of $10,000 allowed Cornell by the referee. In the absence of such
evidence, we conclude that the credit should stand.
The judgement is reversed.
April 13, 1931.
Per Curiam:
Rehearing denied.
____________
53 Nev. 156, 156 (1931) Crump v. Brentner
CRUMP v. BRENTNER
No. 2884
February 4, 1931. 295 P. 441.
1. Brokers.
In order for broker to be entitled to the commission specified in his contract of employment, or any
part thereof, it was his plain duty to procure a purchaser ready and able to comply with the exact terms of
the contract.
2. Brokers.
Payment of $1,000 cash to broker, to be applied to the purchase price, additional payment of $35,000
to be made in 30 days, held not an acceptance of owner's offer to sell land for $108,000, one-third cash,
or grant a thirty-day option for $1,000.
3. Broker.
Brokers accepting $1,000 as part of specified cash payment, balance to be paid in 30 days, held not
entitled to commission where there was no evidence that the landowner accepted or ratified such
unauthorized act.
Appeal from Tenth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action by Martha S. Crump against L.L. Brentner. From a judgment of nonsuit, plaintiff
appeals. Affirmed.
A.A. Hinman, for Appellant:
The issues presented by the pleadings required the plaintiff to establish prima facie: First,
the contract of employment; second, performance by the plaintiff, or an excuse for
nonperformance.
From the letters and telegrams in evidence it appears that defendant's land was listed with
plaintiff for sale or option for sale, and without limitation as to time. The contract of
employment is therefore fully established.
After a counter-proposition, which was rejected, plaintiff made further negotiations
pursuant to the terms of the original contract of employment and found a purchaser who paid
to plaintiff $1,000 on account of the option and the purchase price. The purchaser was able,
ready and willing to buy. But thereafter, and before the expiration of the thirty day period
limited for the option, when the first payment on the purchase price would become due and
payable, the defendant wrongfully withdrew his authorization to sell, thereby defeating
the consummation of the purchase.
would become due and payable, the defendant wrongfully withdrew his authorization to sell,
thereby defeating the consummation of the purchase.
To avoid liability for commission, the principal must notify the broker of the revocation
before performance by the latter of the contract of agency, and the principal in revoking the
agency must act in good faith * * *. If, for example, he terminates the agency after the broker
has found a person ready, willing and able to buy * * * the broker is entitled to
compensation. 9 C.J. pp. 563, 564, n. 45-47.
The contract in the case at bar did not empower nor obligate the plaintiff to complete a
sale, or to enter into a contract of sale binding on the defendant, but empowered and obligated
her merely to find a purchaser, and when that was done, her performance was complete. 9
C.J. pp. 626-628, n. 52-55; p. 591, n. 19; p. 596, n. 33; pp. 609, 610, n. 96-98.
The authorities are practically unanimous in holding that unless the broker and his
employer have expressly stipulated to the contrary, the broker is entitled to his compensation
upon the completion of the negotiations he undertook irrespective of whether or not the
contract negotiated is ever actually consummated. 4 R.C.L. p. 310, Brokers, sec. 50, n. 5.
Coleman E. Stewart and Harmon & Salter, for Respondent:
The trial court was called on to determine from the evidence whether or not the plaintiff
had produced a prospective vendee or a prospective optionee, and correctly determined that it
was the latter. Plaintiff by her own testimony is committed to the proposition that her client
was only ready, able, and willing to take an option.
It is a fundamental rule of law that a real estate broker authorized to find a purchaser for a
parcel of real property has not earned his commission by producing a person who desires to
take an option upon the property. 9 C.J. 604; Dinkelspiel v. Nason, 17 Cal.
App. 594, 120 P. 789; Breckenridge v. Claridge, 91 Tex. 527, 44 S.W. 819, 43 L.R.A. 593;
Dreyfus v. Richardson, 20 Cal. App. 800, 130 P. 161; Pehl v. Fanton, 17 Cal. App. 247, 119
P. 400; Hicks v. Christeson, 174 Cal. 712, 164 P. 395; Neal v. Northfork Land and Cattle Co.
(Colo.), 213 P. 334; California Land Company v. Ritchie, 40 Cal. App. 246, 180 P. 625;
Stelson v. Haigler (Colo.), 165 P. 265; Warnekros v. Bowman (Ariz.), 128 P. 49.
In the present case there was an entire absence of any option agreement as such, and in this
respect the case is weaker than any of the above-cited cases. The record conclusively
determines that as a matter of fact plaintiff in this case did no more than to attempt to procure
a person who was willing to enter into an option agreement with the defendant.
OPINION
This is an appeal from a judgment of nonsuit in an action for the recovery of a broker's
commission on the sale of certain real estate.
The appellant, Martha S. Crump, designated the plaintiff, was, at the time mentioned in
her complaint, a licensed real estate agent doing business at Las Vegas in Clark County,
Nevada. The respondent, L.L. Brentner, designated the defendant, at the time mentioned in
the complaint, was a resident of Carpinteria, Cal., and owner of 480 acres of land situate at or
near Las Vegas.
The complaint alleges that on the 26th day of December, 1928, the plaintiff entered into
the services of the defendant at his request, as agent to sell and dispose of certain land situate
in Clark County, Nevada, described in the complaint by its legal subdivisions; that plaintiff
negotiated the sale of said land upon the terms and conditions and at the time agreed upon
and suggested by the defendant; that the purchaser procured was then and there able, ready,
and willing to complete the purchase upon the terms and conditions fixed and agreed
upon; that the plaintiff duly performed all the conditions on her part to be performed, and
that by the terms of said contract the defendant agreed to pay the plaintiff for said
services the sum of $3,000; that said sum had not been paid, nor any part thereof; and
that there is now due the plaintiff by the defendant therefor the sum of $3,000, with
interest at 7 percent per annum, from said 26th day of December, 192S.
then and there able, ready, and willing to complete the purchase upon the terms and
conditions fixed and agreed upon; that the plaintiff duly performed all the conditions on her
part to be performed, and that by the terms of said contract the defendant agreed to pay the
plaintiff for said services the sum of $3,000; that said sum had not been paid, nor any part
thereof; and that there is now due the plaintiff by the defendant therefor the sum of $3,000,
with interest at 7 percent per annum, from said 26th day of December, 1928. Wherefore, the
plaintiff demanded judgment for said sum and for such other and further relief as the court
may deem just and proper.
In support of the allegation contained in the complaint respecting the plaintiff's alleged
employment to sell the land in question, the plaintiff, as a witness in her own behalf, adduced
in evidence the following telegrams:
Las Vegas Nev Dec 26 1928
L L Brentner Carpinteria Cal
Wire price and terms acreage and price thirty days option
Martha S Crump
Santa Barbara Cal Dec 26 1928
Mrs. Martha Crump Las Vegas Nev
Will accept one hundred eight thousand for my four hundred eighty acres terms one third
cash balance one and two years seven percent on deferred payment five percent commission
one thousand for thirty day option otherwise will do my own subdividing.
L L Brentner
In support of the allegations contained in her complaint to the effect that the plaintiff
procured a purchaser ready, able, and willing to complete the purchase of the land upon the
terms and conditions fixed and agreed upon, the plaintiff testified in substance that on
December 31, 1928, she telegraphed the defendant as follows:
Las Vegas Nev Dec 31 1928
Parties here accept proposition on your four hundred eighty acres as per your telegram
to me of December 26 stop Meet me Trinity Hotel Los Angeles eleven A M Friday January
four to go to office for closure stop Wire acceptance and approval of time and place of
meeting
eighty acres as per your telegram to me of December 26 stop Meet me Trinity Hotel Los
Angeles eleven A M Friday January four to go to office for closure stop Wire acceptance and
approval of time and place of meeting
Martha S Crump
On January 1, 1929, plaintiff telegraphed the defendant as follows:
Las Vegas Nev Jan 1 1929
Why no answer to my wire December thirty-first I have one thousand dollars deposit in
accordance with your wire of December twenty-sixth Please answer immediately
Martha S Crump
On January 2, 1929, the defendant telegraphed the plaintiff as follows:
Santa Barbara Cal Jan 2 1929
Mrs. Martha Crump Las Vegas Nev
Offer and authorization to sell my property is withdrawn
L L Brentner
The plaintiff, on her examination in chief, testified in substance as follows: That on
December 31, 1928, she procured a purchaser for the land in question for the price and upon
the terms stated in the defendant's telegram of December 26, 1928, in the person of one A.B.
Witcher, who, on or about January 1, 1929, deposited with her $1,000 for an option to
purchase the land upon the terms stated in said telegram, and that A.B. Witcher was then and
there able, ready, and willing to complete the purchase of the land upon the terms stated in
said telegram of December 26, 1928. On her cross-examination the plaintiff was asked:
Q. Now, if it is true, Mrs. Crump, as you have testified to, that Mr. Witcher accepted Mr.
Brentner's terms in his telegram of the 26th, on the 30th of December, 1928, why did you not
procure a deposit in the sum of $36,000.00, as an initial payment, instead of the sum of
$1,000.00? A. According to the usual real estate transactions, Mr.
transactions, Mr. Witcher was purchasing the option and he had thirty days to pay the
additional $35,000.00.
Q. Then you were not, at that time, attempting to secure a down cash payment of
$36,000.00 from Mr. Witcher? A. Not at that time.
On redirect examination, the plaintiff was asked:
Q. You were asked a question on cross-examination this morning, why you didn't ask for
the balance of $35,000.00 paymentwhy didn't you? A. Mr. Witcher was to pay the balance
of the down payment, which was to be $36,000.00, $1,000.00 down and the balance of
$35,000.00 to be paid within thirty days.
A. B. Witcher, a witness for the plaintiff, testified, in substance, as follows: That on
December 31, 1928, Mrs. Crump displayed a letter and telegram which convinced him that
she had authority to offer him the Brentner tract on certain terms and conditions; that he
accepted the offer and agreed to take the tract on the terms and conditions stated; and that on
the next day he paid the plaintiff $1,000. The witness was asked:
Q. I will ask you, if within thirty days after you paid her the $1,000.00, if you were ready,
able and willing to pay $35,000.00 as the first payment? A. Yes sir.
The witness further testified that according to his agreement with the plaintiff, he paid
$1,000 cash and within 30 days he was to pay $35,000. He testified that he was ready, able,
and willing at that time to pay the $36,000 which would be due under the contract. The
witness was examined at length as to his financial ability to complete the purchase. He
testified that a conservative estimate of his net worth was $20,000, and that his wife was a
partner in the deal, and that she was worth approximately $100,000. We note that all of the
testimony of Mr. Witcher as to his ability to complete the purchase, both on direct and
cross-examination, went in over the objections of counsel for the defendant as being
incompetent, irrelevant, and immaterial, and that the evidence was admitted with the
understanding that the objections to its admission would be ruled upon when the court came
to consider the law of the case.
The witness testified that the plaintiff returned to him his deposit of $1,000 on the 3d day of
January, 1929. On redirect examination the witness was asked:
Q. You stated on cross-examination that you paid $1,000.00 for an optionwhat did you
mean by that? A. I meant that I put down $1,000.00 for Mr. Brentner's Artesian acres480
acresI paid $1,000.00 on that deal.
We do not deem it necessary to further review the evidence in order to determine whether
or not the judgment of nonsuit should be affirmed or reversed. The record discloses that upon
the conclusion of the testimony of the witness Witcher, the plaintiff rested her case. The
defendant moved for a nonsuit upon the ground that the plaintiff did not make a sale or
procure a purchaser in accordance with her contract of employment, as evidenced by the
telegrams which passed between the parties on December 26, 1928, as hereinabove set out.
1. Conceding that defendant's telegram of December 26, 1928, constituted the plaintiff's
contract of employment, it is clear that in order for the plaintiff to be entitled to the
commission specified therein, or any part thereof, it was her plain duty to procure a purchaser
who was ready and able to comply with the exact terms of her contract to make a sale. 4
R.C.L. 313, sec. 52. This the plaintiff did not do.
2, 3. It will be observed that the offer contained in the defendant's telegram in answer to
that of the plaintiff was twofold: One, to accept $108,000 for the land in question, payable
one-third in cash and the balance in one and two years with 7 per cent interest on the deferred
payments; the other, to give an option for the period of 30 days for $1,000. The plaintiff
sought to recover $3,000 as compensation for her services in procuring a purchaser ready and
willing to complete the purchase for the price and upon the terms stated, who paid $1,000 to
be applied to the purchase price of the land, and as a part of the cash payment of $36,000, the
balance of which was to be paid within 30 days from December 26, 192S.
December 26, 1928. It is manifest that this was not an acceptance of the defendant's offer, as
made, and there being no evidence whatever to show that the defendant accepted or ratified
the plaintiff's unauthorized act of acceptance of $1,000 from Witcher, to be applied on the
sale price, and as a part of the cash payment required, we conclude that the judgment of
nonsuit should be affirmed.
It is so ordered.
____________
53 Nev. 163, 163 (1931) Steptoe Live Stock Co. v. Gulley
STEPTOE LIVE STOCK CO. v. GULLEY Et Al.
No. 2895
February 4, 1931. 295 P. 772.
Point made for first time on petition for a rehearing will not be considered.
2. Courts.
Decision is only an authority for what is actually decided upon a given state of facts.
3. Waters and Watercourses.
Appropriation of water for stock watering purposes without diversion or the use of any mechanical
means whatsoever, where it could be put to a beneficial use without such diversion just as well or better,
at less cost and economically, where the practice of so doing had developed into a well-established
custom, and in the absence of statutory or constitutional direction as to the manner of appropriation, held
valid.
Appeal from Fourth Judicial District Court, Elko County; E.P. Carville, Judge.
Suit by the Steptoe Live Stock Company, a corporation, against Robert F. Gulley and
others. From an order denying a motion to dissolve an injunction pendente lite, defendants
appeal. Affirmed. (Sanders, J., dissenting.)
Morley Griswold, Milton J. Reinhart and H.U. Castle, for Appellants:
There must be an actual appropriation of water by artificial means. Walsh v. Wallace, 26
Nev. 229, 67 P. 914; Kinney (2d ed.), vol. 2, p. 1216.
We are unable to find where any of the elements of an appropriation are complied with by
the turning of cattle on the public range to go where they desire, following their natural
instinct and the feed, drinking where and when they may please. Patterson v. Ryan (Utah),
108 P. 1118; Robinson v. Schoenfeld et al. (Utah), 218 P. 1941.
The honorable judge of the district court, in his opinion and decision, makes mention of
the case of Cascade Town Company v. Empire Water Power Company, 181 Fed. 1011,
stating that an appropriation of water without actual artificial means of diversion is not
without precedent in the western states. This statement is correct. Colorado, through its
legislature, passed an act changing the law of that state and the law as previously laid down in
all other western states, including Nevada, as given in the case of Walsh v. Wallace, by the
Rev. Stats. of Colorado, 1912, sec. 3621. The State of Nevada has no such statute nor are we
able to find any other state that has. Our law was laid down in the case of Walsh v. Wallace in
this respect.
Milton E. Badt and James Dysart, for Respondents:
The diversion of water, as one of the necessary elements of a valid appropriation, refers to
the fact of the diversion and not its mode; the mode of diversion is immaterial; while
ordinarily a diversion may be made by a ditch, canal, etc., any other mode which, under the
circumstances, proves effective, may be resorted to. Nevada Ditch Co. v. Bennett, 30 Ore. 59,
60 A.S.R. 777, n. 806.
In vol. 2, Kinney on Irrigation, p. 1212, et seq., the author discusses at length sundry
definitions of a valid appropriation of water by the supreme courts of various western states,
and after most careful consideration gives his own definition (Id. 1216). We desire to stress
the absence in this definition of the necessity for the construction of any particular means of
diversion, and in particular the author's requirement that the water must be taken or
diverted. The means of diverting water covers a range from the crudest to the most
scientific.
water covers a range from the crudest to the most scientific. 1 Kinney, p. 45. In 2 Kinney,
1245, will be found what will, we think, be admitted to be a fair statement as to what
constitutes a diversion. And we note therefrom that for a diversion any means may be used.
The main consideration is as to whether the means is sufficient to accomplish the result
desired, namely, the application of the water to a beneficial usein this case the watering of
the live stock. Simons v. Inyo Cerro Gordo Mining & Power Co. (Cal.), 192 P. 144; Hoffman
v. Stone, 7 Cal. 47.
It would, indeed, be a harsh rule to compel persons appropriating water for their live stock
on the public range, in the absence of statutory requirement, to engage in expensive, vain and
absolutely useless acts in diverting water from streams into adjacent troughs, which the live
stock would probably ignore in favor of the natural watering places.
Brown & Belford and Guy V. Shoup, Amici Curiae:
A review of the legislative enactments of both the State of Nevada and the United States
discloses absolutely no statutory justification for the contention that an appropriation of water
for the purpose of watering live stock could be made by the mere act of permitting or
directing such stock to water at a given place. On the contrary there is a directly expressed
denial of such right, for a period extending back to 1899 at least, and an implied denial of the
right from the inception of the laws of the State regulating water. Comp. Laws of Nev., p.
354, sec. 6; Stats. 1907, p. 30, c. XVII; Stats. 1913, p. 192, c. 140.
The court of original jurisdiction seems to base the opinion that the plaintiff in said court
had a subsisting right by appropriation on some theory of law existing independent of statute.
Absence of precedent as applicable to the specific facts under consideration necessitates a
resort to analogy and a consideration of the subject in a general way, to ascertain if the facts
presented would constitute an appropriation within the limitations of the rule.
rule. On this subject there is no dearth of authority. Various texts and numerous decisions,
hereinafter cited, define and limit the doctrine. Water and Water Rights, by Farnham, vol. 3,
p. 2054; same text, vol. 3, p. 2063, citing Nevada Ditch Co. v. Bennett, 30 Ore. 59, 45 P. 472;
same text, vol. 3, p. 2062; 40 Cyc. 709; 40 Cyc. 711, 713; R.C.L., vol. 27, p. 1258, sec. 168,
sec. 174; Wiel on Water Rights in the Western States (3d ed.), vol. 1, p. 74, sec. 73; Hewett v.
Story, 64 Fed. 510; Union Mining Co. v. Dangberg, 81 Fed. 73; Rogers v. Pitt, 129 Fed. 932;
Irwin v. Strait, 18 Nev. 436; Schulz v. Sweeney, 19 Nev. 359; Authors v. Bryan, 22 Nev. 242;
Anderson Land & Stock Co. v. McConnell, 188 Fed. 818; Walsh v. Wallace, 26 Nev. 299, 67
P. 914; Ophir Silver Mining Company v. Carpentier, 4 Nev. 534; Kimball v. Gearhart, 12
Cal. 27; Simons v. Inyo Cerro Gordo Mining & Power Co., 192 P. 144; Wyatt et al. v.
Larimer Weld Irrigation Co. et al., 29 P. 906; Moyer v. Preston, 6 Wyo. 308, 44 P. 845;
Hutchinson v. Watson Slough Ditch Company (Utah), 101 P. 1059; Duck Club v. Duck Club
(Utah), 166 P. 309; Murphy v. Kerr, 296 Fed. 536, at p. 542; Boquillas Cattle Co. v. Curtiss,
213 U.S. 339, 29 Sup. Ct. Rep. 493, 53 L. Ed. 822.
In contemplation of these authorities, no appropriation could be complete without some
physical dominion being exercised over the water which was the subject matter of the
appropriation.
Chandler & Quayle, Amici Curiae:
The possessory theory, while not universally adopted, and perhaps never adopted in
Nevada, doubtless had a strong influence in leading the courts to give undue emphasis to
possession resulting from diversion, which, of course, was usually by mechanical works of
some kind. With the passage of time and the fuller recognition of the value of water, the
actual use made of it has been given more consideration. This court early announced that
beneficial use was the criterion of a valid approprition. Dick v. Caldwell, 14 Nev. 167, 170;
Barnes v. Sabron, 10 Nev. 217, 243. In Union Mill & Mining Co. v. Dangberg, S1 Fed.
Dangberg, 81 Fed. 73, 95, Judge Hawley gave judicial expression to the necessity of the
change of theory above noted. Indeed, the language of sec. 3 of the act of May 22, 1913, R.L.
Nev. 1919, p. 3225: Beneficial use shall be the basis, the measure and the limit of the right
to the use of water, is only a legislative adoption of this advanced theory of appropriation, as
developed by the courts adhering to the Colorado doctrine, in the vanguard of which were the
Nevada courts, state and federal. That the right to water depends upon its use and not upon its
possession is, we think fully settled. Wiel, Water Rights (3d ed.), sec. 139; Id., p. 288; Id.,
sec. 395; Id., sec. 396. Upon this theory, the appropriation takes place only when the water is
beneficially used, not when it is diverted from its source. So, in Colorado, the consumer of
water purchased from a ditch company is regarded as the owner of the appropriation in the
streams, rather than the company which diverted and carried the water to the place of use for
sale to the consumer, the company being considered merely the agent of the real appropriator,
the consumer. Wheeler v. Nor. Colo. Irr. Co., 10 Colo. 582, 17 P. 487; Wyatt v. Larimer, etc.
Co., 18 Colo. 298, 33 P. 144. This is likewise the doctrine of Prosole v. Steamboat Canal Co.,
35 Nev. 155, 140 P. 720.
The means of diversion are immaterial. Simons v. Inyo, etc. Co., 48 Cal. Appr. 524, 192 P.
144; Silver Peak Mines Co. v. Valcalda, 79 Fed. 886, 888; Charnock v. Higuerra, 111 Cal.
473, 44 P. 171; Miller & Lux v. Rickey, 127 Fed. 573, 584; Wiel on Water Rights, p. 418;
Utt v. Frey, 106 Cal. 393, 39 P. 897, 898; Vineyard Land & Stock Co. v. Twin Falls, etc. Co.,
245 Fed. 9, 20; Lower Tule, etc. Co. v. Ingiola Water Co., 149 Cal. 496, 498, 86 P. 1081,
1082.
Here we are confronted not with an articifial, but a natural, use of the water directly from
the source, though, under Mr. Kinney's definition (p. 1245, et seq.), the actual taking of the
water by the live stock is an artificial diversion in itself. Any mechanical contrivance would
hinder rather than aid that use.
V.H. Vargas, Amicus Curiae:
The rule that an actual diversion must be made before a water right for any purpose can be
initiated does not seem to be met in the decision of the lower court. To my mind in this case
there isn't even a theoretical diversion. Water in a running stream is in no way disturbed by
livestock trails leading into that stream. If where the trail leads into the creek there is a ledge
of rock, it can readily be seen that there would not be the slightest indentation in the bank
diverting in the least from its natural channel the flow of the creek. By no stretching of the
imagination can I conceive a diversion such as is contemplated by the law for the initiation of
a water right, where livestock merely go to drink.
OPINION
This is an appeal from an order denying a motion to dissolve an injunction pendente lite.
The complaint, after alleging the corporate existence of the plaintiff, avers that for more
than forty years last past it and its predecessors have been and now are the owners of the
waters of Canyon creek, Stag Spring creek and Cottonwood creek, and of the forks and
branches thereof, situated in Elko County, both for irrigation purposes and for the watering of
live stock; that all of the waters of said creeks are necessary and for over forty years have
been necessary for the watering of the live stock of plaintiff and its predecessors; that for
more than forty years the plaintiff and its predecessors, by means of dams, ditches, and
canals, have diverted and used all of the waters of said creeks and watercourses for the
irrigation of their lands, and that the live stock so watered comprise more than 500 head of
live stock; that plaintiff is now watering their live stock upon said watercourses in sufficient
number to utilize substantially all that portion of the public range accessible to live stock
watering upon said streams; that in May, 1929, the defendants, in disregard of the rights
of the plaintiff, and without its consent, watered approximately 2,000 head of sheep upon
said creeks, upon the public domain, without the consent and against the wishes of the
plaintiff, so as to deprive plaintiff of the grazing uses of said public domain, and
substantially interfered with and impaired the value of such grazing use and of such
water right; that defendants threaten to continue to commit and perform the acts
complained of unless restrained.
accessible to live stock watering upon said streams; that in May, 1929, the defendants, in
disregard of the rights of the plaintiff, and without its consent, watered approximately 2,000
head of sheep upon said creeks, upon the public domain, without the consent and against the
wishes of the plaintiff, so as to deprive plaintiff of the grazing uses of said public domain, and
substantially interfered with and impaired the value of such grazing use and of such water
right; that defendants threaten to continue to commit and perform the acts complained of
unless restrained. Upon the filing of the complaint the court entered a show cause order and
an injunction pending a hearing thereupon.
In due time the defendants appeared and moved a dissolution of the temporary injunction.
Upon the hearing testimony was taken, after which the order denying the motion was entered.
Incident to making the order granting an injunction pendente lite the court made specific
findings of facts. It found, inter alia, that for more than forty years last past the plaintiff and
its predecessors in interest have had and now have a subsisting right to water in excess of 500
head of live stock at and upon the water courses in question, and have watered their live stock
in sufficient number to utilize substantially all that portion of the public range available to
livestock watering at such places; that said watering places on said watercourses are natural
watering places formed by natural depressions and by the making of cattle trails into such
particular watering places on said water courses; that said watering places on said
watercourses could not have been and could not be improved by the construction of dams,
ditches, pipe lines, troughs, or other artificial means; that the use of said water and range by
such live stock of the plaintiff and its predecessors during said period was exclusive, except
as to other live stock that would drift or stray in, and that said right on the part of the plaintiff
to water their said live stock in sufficient numbers to utilize substantially all that portion of
the public range readily available to livestock watering at said places was recognized by
other owners of live stock whose stock drifted or strayed to such places.
watering at said places was recognized by other owners of live stock whose stock drifted or
strayed to such places.
The evidence taken upon the hearing of the motion to dissolve the temporary injunction
failed to show that any dam, ditch, reservoir, or other artificial means was used by the
plaintiff, or its predecessors in interest, by way of appropriation of the waters in question for
the watering of stock.
Counsel for appellant state in their opening brief: This appeal is upon the sole question of
whether or not mechanical means are necessary to appropriate water for stock-watering
purposes. The plaintiff and respondent maintain that no mechanical means are necessary to
appropriate water for live stock; that the turning of cattle upon the public domain, adjacent to
a stream system constitutes the mechanical means of appropriation. The defendants and
appellants maintain that in order to appropriate water, it is necessary that some mechanical
means be installed; that the mere turning of live stock upon the public domain does not
constitute such act or acts as will constitute an appropriation.
1. In support of this statement, which considerably narrows our labors, counsel assert that
the case of Walsh v. Wallace, 26 Nev. 299, 67 P. 914, 99 Am. St. Rep. 692, is decisive of the
point. During the oral argument one of the members of the court intimated that it was his
opinion that no point was suggested in that case which throws any light upon the question
before use. Counsel for appellant thereupon suggested that the point was urged in the petition
for a rehearing. We have read the petition for rehearing in that case and find nothing in it
justifying counsel's conclusion; however, if it were thus raised, we have consistently held in a
long line of decisions that a point made for the first time on petition for a rehearing would not
be considered. At any rate the point was not decided in the case.
Nevada is the sixth state in area in the Union, and, though some of our eastern sister
states count their population by the millions, as does our sister state to the west, we have
a mere handful, less than 100,000 inhabitants, notwithstanding the fact that our mines
have produced fabulous wealth, and from time to time have been the Mecca of soldiers of
fortune of the civilized world.
though some of our eastern sister states count their population by the millions, as does our
sister state to the west, we have a mere handful, less than 100,000 inhabitants,
notwithstanding the fact that our mines have produced fabulous wealth, and from time to time
have been the Mecca of soldiers of fortune of the civilized world.
That such an immense territory supports only a mere handful of people would seem
unbelievable to a stranger did he not know that this state, so far as rainfall is concerned, is
arid, instead of semiarid, as is sometimes said of it. When this condition is appreciated and
that one may, in sections, travel for hours without seeing a stream of water, it can readily be
understood why our population is so small. And when, in addition, it is known that the
livestock industry is our second, if not first, most stable industry, it can be fully appreciated
why the little water which we have is almost as priceless as rubies. In this situation it was but
natural that the people, from the very earliest territorial period, should put the available water
to some beneficial use. This they did for many years without statutory or constitutional
direction as to the manner of so doing, and, though statutes were finally adopted specifying
the manner whereby water might be appropriated, it was subsequent to the date of the alleged
appropriation relied upon by the plaintiff, and hence cannot influence the determination of
this case.
2. From the arrival of the earliest settler on the Pacific Coast from the east as a result of
the gold discoveries in 1849, the right to appropriate running water was recognized by the
people and was upheld at a very early date by the supreme court of California in the case of
Irwin v. Phillips, 5 Cal. 140, 63 Am. Dec. 113, in which the court observed that courts are
bound to take notice of the conditions of the country which they judicially rule. The right to
appropriate the public waters of Nevada was recognized in this state in the early cases of
Lobdell v. Simpson et al., 2 Nev. 274, 90 Am. Dec. 537; Ophir S.M. Co. v. Carpenter, 4 Nev.
534, 97 Am. Dec. 550; Covington v. Becker, 5 Nev. 281; Barnes v. Sabron, 10 Nev. 217. And
in Walsh v. Wallace, 26 Nev. 299, 67 P. 914, 99 Am. St. Rep 692, this court recognized a
vested right to water appropriated in territorial days. While it was held in Vansickle v.
Haines, 7 Nev. 249, that the doctrine of riparian rights prevailed in this state, the rule thus
enunciated was never fully accepted and was finally unequivocally overruled in the case of
Reno Smelting, Milling & Reduction Works v. Stevenson, 20 Nev. 269, 21 P. 317, 4 L.R.A.
60, 19 Am. St. Rep. 364. While the right to thus appropriate the public waters of Nevada was
recognized from the very earliest days, no specific method of appropriation was ever declared
to be necessary, other than by putting it to an economical beneficial use, except as was the
customary practice, and, since it was the custom in those days to build dams and ditches to
divert the waters of streams for agricultural, milling, mining, and fluming, it is insisted that in
prestatutory days it was necessary to use some mechanical method of diverting water by way
of appropriation for the watering of live stock. We are unable to follow this line of reasoning,
for at least two reasons. First, all the cases cited to support the contention, except as
hereinafter noted, are cases pertaining to the appropriation of water for irrigation purposes,
and, while all of those cases are founded upon a recognized custom, proponents of the rule
are willing to overthrow a custom just as long standing and well established as to watering
live stock. All of the authorities hold that no one can appropriate for irrigation purposes more
water than he can put to a beneficial use, and this element would naturally lead to a
repudiation of the contention asserted by respondents in Walsh v. Wallace, supra, under the
facts of the case. The method of diverting water from streams by the use of dams, ditches, and
the like for irrigation purposes was but the natural thing to do, since water, to be put upon a
tract of land, had to be taken out of the stream, and this could not be done except by some
artificial structure. As this court has observed, a decision is only an authority for what is
actually decided upon a given state of facts.
is only an authority for what is actually decided upon a given state of facts. Jensen v. Pradere,
39 Nev. 466, 159 P. 54.
3. While it was absolutely necessary to divert water from a stream to appropriate it to
agricultural uses in an economical manner, and the custom of so doing was recognized as an
appropriation, it would not seem necessarily to follow that it would be necessary to do so to
constitute an appropriation of the water where it could be put to a beneficial use without such
diversion, where there was a practice of appropriating the waters of the streams to a beneficial
use without such diversion, where it could be done just as well or better, at less cost and
economically, so far as the use of the water is a factor, and, where the practice of so doing has
developed into a well-established custom, we see no reason for holding that such
appropriation is not valid. Suppose, for instance, that a stream flows for twenty-five miles
through a deep gorge out upon a wonderfully fertile valley of large area, capable of sustaining
many thousands of happy people in the State of Nevada, and just before it reaches the valley
it tumbles down a fifty-foot waterfall, at which point a corporation has constructed a power
plant to utilize the power available, by placing a water wheel immediately under the fall,
thereby successfully utilizing the stream system, and another company, claiming that there
had been no appropriation because no artificial means had been used to divert the water,
undertook to divert the water from the natural stream just before it would enter the gorge, so
as to convey the water to another site to be used in the operation of a hydroelectric plant, the
power from which was to be used in California, would any reasonable person contend that the
use by the first-named company did not constitute an appropriation? We think not.
Judge Lyman Trumbull, long an honored citizen of Illinois, in Seeley v. Peters, 5 Gilman,
142, while considering a question pertaining to the use of the public domain, when the
conditions and customs were different from what they are in Nevada, observed: "The
universal understanding of all classes of the community, upon which they have acted * *
* is entitled to no little consideration in determining what the law is, and we should feel
inclined to so hold, independent of any statutes upon the subject."
from what they are in Nevada, observed: The universal understanding of all classes of the
community, upon which they have acted * * * is entitled to no little consideration in
determining what the law is, and we should feel inclined to so hold, independent of any
statutes upon the subject. This is but one of many authorities which might be cited to sustain
the view expressed. It would seem that no authority would be necessary to support such a
humane ruleone pregnant with the sense of natural justice.
But we are not without authority to support the view that to constitute an appropriation
where the statutes require no use of artificial means of diverting water, or where no diversion
was required, that such appropriation might be made independent of both or either diversion
or the use of artificial means in perfecting such appropriation. Such was the conclusion
reached in Cascade Town Co. v. Empire Water & P. Co. (C.C.) 181 F. 1011, 1018. That case
arose in Colorado, the constitution of which provides that the right to divert unappropriated
waters of any natural stream shall never be denied. It was a case growing out of an attempt of
the defendant company to divert the waters of a stream which flowed over falls, the spray
from which watered vegetation within the grounds of a summer resort, thereby beautifying
the same and contributing to its attractiveness and value. Judge Lewis, now of the circuit
court of appeals, who decided the case, held that the use of the waters to thus irrigate the
vegetation constituted an appropriation. He said: The complainant is not required to
construct ditches or artificial ways through which the water might be taken from the stream,
in order that it might appropriate the same. The only indispensable requirements are that the
appropriator, in order to constitute a valid appropriation, first, must intend to use the waters
for a beneficial use, and second, actually apply them to a beneficial use. There was less
foundation for the conclusion reached in that case than for the one we have reached in this
one, since no custom was shown to exist in Colorado recognizing the right to appropriate
waters of streams under similar circumstances, whereas in this case the court below
found that a well-established, well-recognized custom, of over forty years' duration, of
appropriating waters in the manner shown for the watering of live stock, existed in the
State of Nevada.
the right to appropriate waters of streams under similar circumstances, whereas in this case
the court below found that a well-established, well-recognized custom, of over forty years'
duration, of appropriating waters in the manner shown for the watering of live stock, existed
in the State of Nevada. We think that our conclusion is not only justified by such
well-established custom, but that it is fortified by the act of Congress referring to streams
upon the public domain, which provides that rights based upon priority of possession, which
have vested and accrued and are recognized and acknowledged by local custom, shall be
maintained and protected. U.S. Rev. Stats. 2339 (43 USCA, sec. 661).
Counsel for appellants call our attention to the case of Robinson v. Schoenfeld, 62 Utah,
233, 218 P. 1041, as being contrary to the conclusions reached by us. The case is not in point.
In its opinion the court points out that the proof failed to show an exclusive right in plaintiff
to the use of the waters in question and of the public range thereabouts. Such are not the facts
in this case.
Since the argument in this case the supreme court of Utah, in Bountiful City v. De Luca,
292 P. 194, 195, has taken a position which upon casual observation might seem antagonistic
to our views. However, the real question here presented was not involved, and, as we have
pointed out, a case is an authority only for what it holds under the facts involved.
Counsel appearing as amicus curiae, but in fact representing one of the railroads which
traverses our state and has large holdings of land along its line, urges that, since all authorities
hold that a diversion of water must be made with the intent to apply the same to a beneficial
use, if the drinking by cattle constitutes a diversion, then the necessary intent must be that of
the cattle, since the owner could not make the cattle drink. It is certainly true that the owner
cannot make cattle drink; if he built the most expensive pipe line conceivable and the most
beautiful trough that human ingenuity and skill could produce, for the cattle to drink out of,
there would be no way of compelling the cattle to drink out of the trough, instead of out of a
puddle made by the overflow from the trough.
trough, instead of out of a puddle made by the overflow from the trough. No doubt it was this
consideration which lead the hardy and practical livestock men of half a century ago to adopt
the well and widely established custom which the court found to prevail.
It is clear to our minds that the conclusion of the trial court as to the appropriation alleged
was right, and, in view of the law as enunciated in Re Calvo, 50 Nev. 125, 253 P. 671, the
judgment and decree should be affirmed.
It is so ordered.
Sanders, J.: I dissent.
____________
53 Nev. 176, 176 (1931) Mosso v. Lee Et Al.
MOSSO v. LEE Et Al.
No. 2926
February 4, 1931. 295 P. 776.
1. Vendor and Purchaser.
Even where time is of the essence of a contract to convey real estate, coupled with a provision of
forfeiture, a court of equity will grant relief from a default and a declaration of forfeiture if the condition
be subsequently performed, or tendered, without unreasonable delay, where no circumstances have
intervened that would render it unjust or inequitable to give such relief.
On appeal on judgment roll alone, appellate court must assume that the evidence justifies the findings.
3. Vendor and Purchaser.
Finding that purchaser's carelessness and neglect in not paying taxes and interest when due was not
willful, held sufficient to sustain conclusion to the effect that he should be excused from such default and
relieved from declaration of forfeiture made by vendor.
4. Contracts.
The granting of relief against forfeitures is a matter of legal discretion.
Action by Annetta Mosso against Hans Lee and others. Judgment for defendants, and
plaintiff appeals. Affirmed.
Stevens, Henderson & Nolan, for Appellant:
Tender cannot be made after default where time is essence of contract. Kentucky
Distilleries Co. v. Warwick Co., 109 Fed. 280; Kelsey v. Crowther (U.S.), 40 L.Ed. 1017.
Tender is too late after a forfeiture has been declared. Sylvester v. Holaseck (Minn.), 86
N.W. 336; Whiteman v. Perkins (Neb.), 76 N.W. 547, at 549.
At common law a tender of money which a party is bound to pay at a certain time and
place must be made on the day fixed for payment, and not thereafter. 38 Cyc. 147, subd. D.,
n. 15.
Relief against forfeiture will not be granted where time of performance is made essential
by the express terms of the contract. 68 Am. Dec. 60, 61 and 87; Drown v. Ingles (Wash.), 28
P. 759; 21 C.J. 103, n. 20, and cases cited.
A court of equity has no more right than a court of law to dispense with an express
stipulation of the parties in regard to time in contracts of this nature. Heckard v. Sayre, 34
Ill. 142; Steele v. Biggs, 22 Ill. 643; Prince v. Griffin, 27 Iowa, 514-521; Glock v. Howard &
Wilson Colony Co., 123 Cal. 1, 55 P. 713; Grey v. Tubbs, 43 Cal. 359; Missouri River F.S. &
G.R.R. Co. v. Brickely, 21 Kan. 206; note in 50 Am. Dec. 676 and 677.
One in default cannot compel specific performance without showing legal excuse for such
default. His own carelessness and negligence is not a sound basis for an excuse. Grey v.
Tubbs, supra; Boardman v. Bubert (Ill.), 155 N.E. 784, at 786.
Harley A. Harmon and Chas. Lee Horsey, for Respondents.
Clauses in contracts that time shall be of the essence thereof are presumed to be intended
as security for performance, and if the default of the purchaser consists merely in delay in
paying money, equity considers interest for the period of delay as constituting full
compensation. Note, Ann. Cas. 1913d, 932-936; note, 86 Am. St. Rep.
Am. St. Rep. 48; Merrian v. Goodlett (Neb.), 54 N.W. 686; Southern Inv. Co. v. Galloway
(Ala.), 90 So. 300; Pomeroy's Eq. Jur., vol. 5, sec. 816, and authorities cited.
Equity will relieve when the agreement is substantially performed. Pomeroy's Eq. Jur. vol.
1, sec. 451, p. 859; Eastern Oil Co. v. Coulehan, 64 S.E. 836; Bliley v. Wheeler (Colo.), 38 P.
603. Respondents contend that the contract was substantially performed by the tender of the
purchase money, interest and tax money on the date the purchase price became due; that the
interest on the interest and on the tax money was abut $1.11, therefore respondents came to
within that amount of the exact performance of the contract.
Equity will relieve from forfeiture for default in payment of money under contract for sale
of land if caused by accident, fraud, surprise, mistake, inadvertence, ignorance, or if default is
unintentional and due to neglect which is not willful. Pomeroy's Eq. Jur. (4th ed.), vol. 1,
secs. 451-455; 36 Cyc. 697-716.
Where the appeal is from the judgment roll alone and there is no evidence before the
supreme court on appeal, every presumption must be indulged that there was a showing in the
lower court warranting its holding on the particular question. Hobart Estate Co. v. Jans et al.,
51 Nev. 315. See, also, Sadler v. State, 23 Nev. 141; Jones v. Adams, 19 Nev. 78; Nesbitt v.
Chisholm, 16 Nev. 39; Kelly v. Kelly, 18 Nev. 49; Peers v. Reed, 23 Nev. 404.
Under the foregoing decisions of this court it will be presumed in this case that the allegations
of fact contained in Hans Lee's amended answer and constituting in equity defenses excusing
said defendant's failure to pay the taxes and item of interest promptly when due were proven
by the evidence.
OPINION
This is a suit to quiet title to real estate. Decree was entered in favor of the defendants, and
plaintiff has appealed.
appealed. We will refer to the parties as they were designated in the district court.
The material facts are as follows:
On June 8, 1927, one McLaurine and wife, the then owners of the land in question, entered
into an agreement to sell the same to Hans Lee and Letty Spencer for the sum of $3,200, of
which $500 was payable in cash, $150 payable July 15, 1927, and $150 on the 15th of each
succeeding month until the full purchase price was paid; that the purchasers should pay all
taxes and assessments lawfully levied upon said property, when due; that the first parties
should execute a good and sufficient deed and place the same in escrow to be delivered to
second parties upon the making of all payments as agreed. It was further agreed between the
parties that time is of the essence thereof; that second parties take possession of said premises
pursuant to said agreement.
Between June 8, 1927, and June 8, 1928, the second parties paid to said first parties on
account of said purchase price the sum of $1,850, leaving a balance due of $1,350, and made
improvements upon said premises of the value of $1,000.
On July 7, 1927, Hans Lee acquired all of the right and interest of said Letty Spencer in
said lands. Prior to April 16, 1928, the plaintiff acquired all of the rights of said McLaurine
and wife under said agreement. On the 16th of April, 1928, plaintiff and defendant Hans Lee
entered into an agreement whereby an extension of time was given the said Hans Lee to make
the payment falling due on the previous day. On June 11, 1928, McLaurine and wife
conveyed the property to this plaintiff. On the 1st day of June, 1928, in anticipation of said
conveyance the plaintiff and Hans Lee entered into an agreement whereby plaintiff agreed to
convey to said Hans Lee, in consideration of the payment on or before April 15, 1929, of the
sum of $1,350, interest, and taxes, promptly when due. In said agreement time was made the
essence of the contract, and a provision was incorporated therein that in case of defendant's
failure to make the payments promptly when due that he should forfeit all rights in and to
said property.
all rights in and to said property. Simultaneously with the execution of said agreement, a deed
was executed to the defendant Hans Lee by the plaintiff and placed in escrow to be delivered
upon full compliance with the terms of the contract.
Hans Lee failed to pay the 1928 taxes when due, amounting to about $30, and on January
15, 1929, failed to pay the quarterly interest due, amounting to $33.75. On February 12, 1929,
plaintiff caused to be served upon the defendants a notice declaring their rights in and to said
property forfeited. On the 15th of April, 1929, the date when the $1,350 was by the terms of
the contract made payable, Hans Lee tendered to the plaintiff the sum of $1,350 plus interest
to that date, together with the taxes accrued and penalties, with interest thereon, and
demanded of said plaintiff a deed to the premises in question. The defendant Hans Lee took
possession of said property pursuant to the contract with the McLaurines, and remaining
continuously in possession thereof, the plaintiff, on July 11, 1929, instituted this suit, making
the wife of Hans Lee a party defendant. Besides answering the complaint, the defendants filed
a cross-complaint and prayed for a specific performance of the contract.
The trial court found the facts as above stated, and also found:
The Court further finds that the failure of said Hans Lee to pay said taxes promptly when
due and said installment of $33.75 interest when due on January 15, 1929, was due to
inadvertence and carelessness on his part, and while he was careless and neglectful in regard
thereto, such carelessness and neglect were not willful.
As a conclusion of law the court found that said Hans Lee should be in equity excused
from said default and relieved from such attempted forfeiture, and all proceedings connected
therewith.
In consequence of the findings and conclusions of law made by the court and the payment
into court by the defendants to the credit of the plaintiff of the total amount found to be due to
the plaintiff, a decree was entered in favor of the defendants as prayed.
The main contention of the plaintiff is that the court was not asked to declare a forfeiture,
for the reason that that was a matter of agreement between the parties and had been declared
and fully effected in accordance with the terms of their agreement before the institution of
this suit to quiet plaintiff's title.
In support of the contention plaintiff relies upon the Illinois authorities, and particularly
upon the case of Summers v. Hedenberg, 198 Ill. App. 460. The supreme court of Illinois, in
affirming the judgment of the lower court (Lang v. Hedenberg, 277 Ill. 368, 115 N.E. 566),
observed that a court of equity may uphold a forfeiture declared by a party, but that it will not
declare or enforce a forfeiture where it is harsh or inequitable to do so. The supreme court
takes the position that the decree of the trial court should be based upon the equities of the
particular case. Such is the clear holding of that court in Springfield, etc. v. Warrick, 249 Ill.
470, 94 N.E. 933, 935, Ann. Cas. 1912a, 187, where it is said:
Forfeitures will be enforced by courts in clear cases, but they are not regarded with favor,
and their prevention is within the protecting care of equity whenever wrong or injustice will
result from their enforcement. * * * When equity is applied to for the rescision, cancellation
and delivery up of deeds or agreements, the court is not bound to pass upon the question as a
matter of absolute right, but it is one within the sound discretion of the court, to be exercised
in granting or refusing the relief, according to the court's own notion of what is reasonable
and proper under the circumstances of the particular case. In all cases of this sort where the
interposition of a court of equity is sought, the court will, in granting relief, impose such
terms upon the party as it deems the real justice of the case to require, and if the plaintiff
refuses to comply with such terms his bill will be dismissed. The maxim is here emphatically
applied, he who seeks equity must do equity.' 2 Story's Eq. Jur. sec. 639; O'Connell v.
O'Conor, 191 Ill. 215, 60 N.E. 1063. Where the compensation can be made in money, courts
of equity will relieve against forfeitures and compel the party to accept reasonable
compensation in money.
in money. Gallaher v. Herbert, 117 Ill. 160, 7 N.E. 511; 4 Kent's Com. (14th ed.), *130. The
application of this principle in relieving against penalties or forfeitures in chancery must
always depend upon the question whether compensation can or cannot be ascertained. Where
there can be a clear estimate of damages or just compensation for breaches of conditions or
covenants, courts of equity will relieve against forfeitures or penalties and require such
compensation to be made. Harlev v. Sanitary Dist., supra [226 Ill. 213, 80 N.E. 771]; 1
Pomeroy's Eq. Jur. (2d ed.), sec. 381; Watson v. White, 152 Ill. 364, 38 N.E. 902. * * *
We do not see that there is any difference in the view there expressed and that expressed
by the Supreme Court of the United States in Cheney v. Libby, 134 U.S. 78, 10 S. Ct. 498,
502, 33 L. Ed. 823, where the court said:
Even where time is made material, by express stipulation, the failure of one of the parties
to perform a condition within the particular crime limited will not in every case defeat his
right to specific performance, if the conditions be subsequently performed, without
unreasonable delay,and no circumstances have intervened that would render it unjust or
inequitable to give such relief. The discretion which a court of equity has to grant or refuse
specific performance, and which is always exercised with reference to the circumstances of
the particular case before it (Hennessey v. Woolworth, 128 U.S. 438, 442 [9 S. Ct. 109, 32 L.
Ed. 500]), may and of necessity must often be controlled by the conduct of the party who
bases his refusal to perform the contract upon the failure of the other party to strictly comply
with its conditions. Citing: Seton v. Slade, 7 Ves. 265; Levy v. Lindo, 3 Merivale 81;
Hudson v. Bartram, 3 Madd. 440, Lilley v. Fifty Associates, 101 Mass. 432; Potter v. Tuttle,
22 Conn. 512; Ahl v. Johnson, 20 How. 511, 15 L. Ed. 1005.
Other authorities sustaining this rule are: Mound Mines Co. v. Hawthorne et al., 173 F.
882, 97 C.C.A. 394; Shouse v. Doane, 39 Fla. 95, 21 So. 807; Burroughs v. Jones, 79 Miss.
214, 30 So. 605.
Learned counsel for appellant, in support of their contention, direct our attention to what
they call the rule in California, quoting:
A court of equity has no more right than a court of law to dispense with an express
stipulation of the parties in regard to time in contracts of this nature. Citing Grey v. Tubbs,
43 Cal. 359.
While the court in that case stated the general rule substantially as quoted, it nevertheless
recognized the exception to the rule, for it said: When it also appears that the purchaser is
without excuse for his delay, the Courts will not relieve him from the consequences of his
default. Thus the court intimated that if there is excuse for the delay a court of equity will
grant relief. The same court, in Steele v. Branch, 40 Cal. 3, expressly recognized the propriety
of granting relief from a default where sufficient excuse is shown. The court said:
Even though the contract contain a provision for forfeiture in case of a failure to perform
strictly in point of time, nevertheless, a Court of equity will examine the whole contract in the
light of the surrounding circumstances, to ascertain whether it was the real intention of the
parties that the party in default should lose the right secured to him by the contract. A
stipulation to the effect that in case of a default a party shall loss his rights under the contract,
is often inserted by way of penalty, merely with a view to induce a more prompt performance,
and not with the intention that a failure strictly to perform, in point of time, shall work an
absolute forfeiture. When such appears to have been the intention of the parties, if the party in
default afterward tenders a performance promptly and with reasonable diligence, and if the
other party has suffered no damage by the delay, and particularly if the property has not
materially enhanced in value during the time of the delay, a Court of Equity will not enforce
the forfeiture, but will decree a specific performance, notwithstanding the default, provided it
appears that the party in default has acted in good faith and gives some reasonable excuse for
the delay.
In the case of Glock v. Howard & Wilson Colony Co., 123 Cal.
123 Cal. 1, 55 P. 713, 716, 43 L.R.A. 199, 69 Am. St. Rep. 17, the court said:
It has heretofore been said that in certain cases equity will relieve the vendee from the
effect of a breach of his covenant to pay upon a day certain. * * * In the case of the vendor,
where the vendee's breach is merely a failure to pay money, under the general principle that
damages for a failure to pay money can usually be accurately measured, and compensation
made by the allowance of interest, courts have inclined to disallow stipulated damages to the
vendor, and have limited him to compensatory damages actually proved. But, where the
breach of the vendee is of some act not thus readily to be measured, stipulated damages will
be allowed the vendor. Tingley v. Cutler, 7 Conn. 297; Leggett v. Insurance Co., 53 N.Y.
394; Decamp v. Feay, 5 Serg. & R. [Pa.] 323 [9 Am. Dec. 372]; Remington v. Irwin, 14 Pa.
143; Grigg v. Landis, 21 N.J. Eq. 494. But while equity will thus, in the cases indicated,
refuse to recognize stipulated damages, and will often permit a vendee in default to excuse
his breach as to the time of payment, and, after excuse made, compel the vendor to perform, it
does not do so arbitrarily. The vendee must always show equitable grounds for relief before
equity will interpose. Pom. Spec. Perf. sec. 335.
The general rule is stated in 21 C.J. 98:
Equity, always expressing its abhorrence of penalties, first interposed to relieve against
them * * *. At first jurisdiction was not asserted beyond relieving, where the penalty was
designed only to secure the payment of money; but in Lord Thurlow's time it was held that
relief might be given when the penalty was inserted to secure the enjoyment of any collateral
object. It has since been generally considered that the jurisdiction extends to all cases, where
adequate compensation can be made.
Some courts have gone to even greater lengths. For instance, it was said in North Jersey St.
Ry. Co. v. Inhabitants of Township of South Orange, 58 N.J. Eq. 83, 43 A. 53, 56: "Relief
against penalties and forfeitures is a favored jurisdiction of a court of equity, and it rests
upon the ground that it is contrary to the first principles of justice for one party to
exercise a legal right which it holds against another party, where the result is to obtain
from that party a large sum of money as compensation for injuries which are manifestly
much less than the amount exacted."
Relief against penalties and forfeitures is a favored jurisdiction of a court of equity, and it
rests upon the ground that it is contrary to the first principles of justice for one party to
exercise a legal right which it holds against another party, where the result is to obtain from
that party a large sum of money as compensation for injuries which are manifestly much less
than the amount exacted.
And in Bliley v. Wheeler, 5 Colo. App. 287, 38 P. 603, 606, one party claimed a forfeiture
for nonpayment of an installment of $17, after having received nearly $300. The court granted
relief, saying that courts, in such cases, do not look complacently, under such circumstances,
upon what might be a technical forfeiture at law, but clearly inequitable in a case of this
kind.
1. Whatever may be the correct view to take of the expressions of the courts taking the
position stated in the last two cases mentioned, there can be no doubt in this age, even where
time is of the essence of a contract to convey real estate, coupled with a provision of
forfeiture, but that a court of equity will grant relief from a default and a declaration of
forfeiture if the condition be subsequently performed, or tendered, without unreasonable
delay, where no circumstances have intervened that would render it unjust or inequitable to
give such relief.
2, 3. The lower court found as a fact that though said Lee was careless and neglectful in
regard to making of the payments, such carelessness and neglect were not willful. Since this
case is before us upon the judgment roll alone, we must assume that the evidence justifies the
findings; hence the only question open for determination is whether the finding that such
carelessness and neglect was not willful is sufficient to sustain the conclusion to the effect
that the defendant should be excused from such default and relieved from the declaration of
forfeiture made by the plaintiff.
In Garner v. Hannah, 6 Duer (13 N.Y. Super. Ct.) 262, the court said:
The court has equitable as well as legal jurisdiction of the actions of which it has
cognizance, and I take the rule to be well settled, that equity will readily, where the
breach is not willful, relieve from a forfeiture or penalty, as where the stipulation is
intended as a mere security for the payment of money, and precise compensation can be
made.
of the actions of which it has cognizance, and I take the rule to be well settled, that equity will
readily, where the breach is not willful, relieve from a forfeiture or penalty, as where the
stipulation is intended as a mere security for the payment of money, and precise
compensation can be made.
The following authorities will be found to sustain this doctrine: Wafer v. Mocatto, 9
Mod. R. 112; Sanders v. Pope, 12 Ves. R. 282; Davis v. West, 12 Vesey R. 475; Hill v.
Barclay, 18 Vesey R. 55; Reynolds v. Pitt, 19 Vesey R. 133; Baxter v. Lansing, 7 Paige 350;
Story's Eq. secs. 1314, 1315, 1319, 1321-2-3-4. * * *
In Skinner v. White, (17 J.R.,) above cited, in the court of errors, Yates, Justice, says: I
cannot accede to the principle that a Court of Chancery is restricted in giving relief to cases
of absolute forfeiture or penalty only. Relief may be granted against the breach of an
agreement, not willful or fraudulent, where full compensation can be made, so as to render
the party perfectly secure and indemnified, and place him in the same situation as if the
occurrence had not happened.'
The court in Hancock, Adm'r. v. Carlton, 6 Gray (Mass.), 39-53, acknowledged this
doctrine as did the same court in Sanborn v. Woodman, 5 Cush. 36, and in Mactier v. Osborn,
146 Mass. 399, 15 N.E. 641, 4 Am. St. Rep. 323.
In Andrews v. Sullivan, 2 Gilman (Ill.), 327, 43 Am. Dec. 53, the court said:
The doctrine in Equity is not forfeiture, but compensation, and they frequently relieve
men who have acted fairly, though negligently, and dispense with that which would make
compliance with what the law requires oppressive. 2 Story's Eq. Jur. sec. 775.
This rule was also recognized and applied in Giles v. Austin, 62 N.Y. 486, and in the later
case of Noyes v. Anderson, 124 N.Y. 175, 26 N.E. 316, 21 Am. St. Rep. 660. In South Penn
Oil Co. v. Edgell, 48 W. Va. 348, 37 S.E. 596, 86 Am. St. Rep. 43, the court quoted
approvingly the rule stated in Garner v. Hannah, supra.
In Tibbetts v. Cate, 66 N.H. 550, 22 A. 559, it was held that plaintiff should be relieved
of a forfeiture since her refusal to pay taxes was not, in any true sense, willful.
held that plaintiff should be relieved of a forfeiture since her refusal to pay taxes was not, in
any true sense, willful.
In Jones v. Robbins, 29 Me. 351, 50 Am. Dec. 593, the court said:
The party seeking relief from a forfeiture must show, that circumstances, which exclude
the idea of willful neglect or of gross carelessness, have prevented a strict compliance, or that
it has been occasioned by the fault of the other party, or that a strict compliance has been
waived. Hipwill v. Knight, 1 Younge & Collier, 415; Brashier v. Grantz, 6 Wheat. 533 [5
L.Ed. 322]; Wells v. Smith, 2 Edw. Ch. [N.Y.] 78; Dumond v. Sharts, 2 Paige [N.Y.] 182.
The rule is laid down in 10 R.C.L. p. 333, sec. 80, as follows:
The expression is not infrequently met with that equity will not aid a party in default by
relieving him against a forfeiture, if he was negligent or careless in incurring the forfeiture, or
if his breach of the contract was willfulwillful as thus used, being synonymous with
voluntary. Doubtless in some cases where there has been a wanton and inexcusable violation
of a covenant, or gross negligence or an intention to perform only in case it suits his interest
is evidenced, a party may be precluded from obtaining equitable relief. But as a general
proposition, it seems, the mere fact that a party is negligent or willful in not performing a
contract in accordance with its conditions, will not close the doors of a court of equity to him
in the absence of bad faith, fraud, or other controlling circumstances, at least where the
covenant is merely one for the payment of money, as, for instance, a covenant to pay rent.
4. The granting of relief against forfeitures is one of legal discretion, and in view of the
fact that the evidence in the case is not before us we cannot say that the learned trial court
abused that discretion.
Upon the whole record, we feel that the judgment and decree should be affirmed.
It is so ordered.
____________
53 Nev. 188, 188 (1931) Ex Parte Douglass
Ex Parte DOUGLASS
No. 2917
February 5, 1931. 295 P. 447.
1. Statutes.
Statute should be given a fair and reasonable construction with a view to effecting its purpose and
object.
2. Master and Servant.
Statute designed to furnish protection to employees should be liberally construed (N.C.L. sec. 10480,
as amended, Stats. 1913, pp. 422 and 423.).
Mining corporation operating through vertical shaft at a greater depth than 350 feet held required to
equip with safety apparatus any cage, crosshead or skip, when either of these devices is used in lowering
or hoisting employees. (N.C.L. sec. 10480, as amended, Stats. 1913, pp. 422, 423.)
4. Criminal Law.
Allegations of complaint in criminal case in justice's court are admitted by demurrer.
Original Proceeding in habeas corpus by William C. Douglass against A.J. Stinson, to
secure release of petitioner from confinement. Writ dismissed, and petitioner remanded to
custody.
Brown & Belford, for Petitioner.
M.A. Diskin, Attorney-General, for Respondent.
OPINION
This is a proceeding upon habeas corpus. The petitioner alleges that he is illegally
restrained by A.J. Stinson, and that his confinement is illegal, in this: That said Stinson
pretends to confine petitioner under a warrant issued by the justice court of Ely Township in
the county of White Pine, State of Nevada, for the alleged crime of violating section 10480,
N.C.L., as amended, which warrant was issued by said justice court upon a complaint filed by
Stinson as mining inspector of Nevada, and that said complaint does not charge petitioner
with any crime or criminal offense under the laws of the State of Nevada.
charge petitioner with any crime or criminal offense under the laws of the State of Nevada.
A copy of the complaint is annexed to the petition, and the charging part thereof is as
follows:
That the said defendant, William C. Douglass, at all times mentioned herein, was and
now is, the managing agent of Consolidated Coppermines Corporation, which said
corporation is engaged in mining and extracting copper ore within Ely Township, White Pine
County, State of Nevada; that on July 7, 1930, said defendant, as managing agent of said
corporation, did unlawfully, willfully and knowingly work through the Emma Shaft, which
said Emma Shaft was a vertical shaft of a depth of more than five hundred (500) feet; that
said shaft was then and there used for the purpose of hoisting and lowering employees of said
company; that in the operation of said shaft skips were used upon which platforms have been
placed for men to stand on when being hoisted or lowered, which platforms are not less than
four feet from the top of said skips; that said skips are used for hoisting ore and waste and for
lowering and hoisting employees when engaged in inspecting and cleaning the shafts, and, on
occasions, a skip tender rides such skips; that the said skips so operated are not provided with
any safety devices except as aforesaid; that said shaft has five compartments; that in one of
such compartments there is an iron-bonneted safety cage with proper safety devices used in
lowering and hoisting employees, materials and supplies; that the safety apparatus is securely
fastened to said cage and is of sufficient strength apparently to hold the cage lowered at any
depth to which the shaft may be sunk; that the skips above described and used and equipped
as aforesaid are in two other compartments of said shaft:
All of which is contrary to the form of the statute. * * *
Respondent demurred to the petition upon the ground that it failed to state facts sufficient
to warrant the court in granting the writ.
Section 10480, N.C.L., as amended (Stats. of 1913, at pp. 422 and 423), upon which the
complaint is based, reads in part as follows:
It shall be unlawful for any person or persons, company or companies, corporation or
corporations, to sink or work through any vertical shaft, at a greater depth than three hundred
and fifty feet, unless the said shaft shall be provided with an iron-bonneted safety cage, safety
crosshead or safety skip, to be used in the lowering and hoisting of the employees of such
person or persons, company or companies, corporation or corporations. The safety apparatus
shall be securely fastened to the case, crosshead or skip, and shall be of sufficient strength to
hold the cage, crosshead or skip loaded at any depth to which the shaft may be sunk;
provided, that where safety crosshead is used for other than sinking purposes the same shall
be equipped with gates as provided by law for cages; and provided further, that where skips
are used for other than sinking purposes platforms for men to stand on when being hoisted or
lowered shall be placed in said skip not less than four feet from top of same and that an
overhead bar be provided for the men to hold to. * * *
It is contended that the complaint does not state facts showing an offense under the statute,
for the reason that it is alleged that there was in one of the compartments of the Emma shaft
an iron-bonneted safety cage, with proper safety devices used in lowering and hoisting
employees. It is insisted that the statute is satisfied when a vertical shaft of the depth alleged
is so equipped. This contention is based solely upon the fact that the language of the
requirement for a safety apparatus is in the alternative.
The statute, as is seen, requires that the shaft shall be provided with an iron-bonneted
safety cage, safety crosshead or safety skip, and that the safety apparatus shall be securely
fastened to the cage, crosshead or skip. There is no other language in the statute that lends
any support to the contention.
We think that the construction urged by the petitioner is too narrow to give effect to the
purpose of the statute.
is too narrow to give effect to the purpose of the statute. The sole purpose is to furnish
protection to men whose employment requires them to be lowered and hoisted in such shafts.
It was declared to be a remedial statute in Ryan v. Manhattan M. Co., 38 Nev. 92, 145 P. 907,
and its purpose to safeguard life and limb of those who, in pursuit of their vocation, are called
upon to go into places where danger is attendant every moment.
1. It is a cardinal rule of construction that the purpose of a law is to be kept in view and
the statute given a fair and reasonable construction with a view to effecting its purpose and
object. The purpose of the statute under consideration, so manifestly appearing from its terms,
would be largely defeated if petitioner's view is allowed to prevail. Employees lowered or
hoisted on any one of the three kinds of equipment described by the statute not having a
safety apparatus securely fastened to it would be without the protection which the legislature
deems such safety device is reasonably calculated to afford.
2, 3. In our opinion, the amendment of 1913 was designed to extend the protection of the
statute to employees lowered and hoisted in such shafts by other means that in a cage. The
statute prior to its amendment provided only for an iron-bonneted safety cage to be used in
lowering and hoisting employees in such shafts. Section 10480, N.C.L. Certainly it could not
have been intended by the amendment to relieve the employer working through such a shaft
with a cage and crosshead or skip from equipping the former with a safety apparatus in case
the latter were so equipped. Yet such would be the effect of the statute if it is given the
construction contended for by petitioner. He contends, as we have stated, that, because the
statute providing for an iron-bonneted safety cage, safety crosshead, or safety skip to be used
in lowering or hoisting employees is in the alternative, he has satisfied its requirements by
providing the former. If this conclusion should be granted, then the converse must be true,
and in any case where a safety skip is used for lowering and hoisting employees a cage
might also be used without the safety apparatus required by the statute.
lowering and hoisting employees a cage might also be used without the safety apparatus
required by the statute. Such a construction would be opposed to the manifestly protective
purpose of the statute.
It has been held that statutes of this character should be liberally construed. Welch v.
Kansas City Midland Coal & Mining Co., 151 Mo. App. 438, 132 S.W. 49; Osterholm v.
Boston & Montana C.C. & S. Min. Co., 40 Mont. 508, 107 P. 499.
But under any construction, strict or liberal, the language of the statute seems plainly to
indicate the intention to require a safety apparatus for a cage, crosshead, or skip, when either
of these devices is used in lowering or hoisting employees. The requirement is clearly
designed as an additional safeguard to life and limb to those required in the provisos.
4. The complaint shows that skips are used in said shaft for lowering and hoisting
employees without being equipped with the required safety apparatus. These and the other
allegations of the complaint are admitted by the demurrer. They show the commission of an
offense by petitioner.
The writ is therefore dismissed, and petitioner is ordered remanded to the custody of said
A.J. Stinson.
____________
53 Nev. 193, 193 (1931) State v. Payne
STATE v. PAYNE
No. 2902
February 5, 1931. 295 P. 770.
1. Statutes.
Main test of whether title of act conforms to the constitutional requirement that each law enacted shall
embrace but one subject and matter properly connected therewith, is whether the title is of such a
character as to mislead the public and the members of the legislature as to the subjects embraced in the
act.
2. Statutes.
Provisions of act must correspond with the subject expressed in the title to comply with constitution,
art. 4, sec. 17.
3. Statutes.
Act containing numerous provisions having one general subject, which is indicated by the title, and
are logically germane to the subject expressed in the title is not obnoxious to the constitutional
requirement that each law enacted by the legislature shall embrace but one subject and matter properly
connected therewith.
4. Statutes.
Constitutional provision requiring that each law shall embrace but one subject, which shall be briefly
expressed in the title, though mandatory, must be liberally construed.
Every statute is presumed to be constitutional and every intendment is in favor of its validity.
6. Statutes.
Title An act to provide for the inspection of hides, providing compensation therefor, and other
matters relating thereto, indicates but one subject, which does not embrace the regulation of the sale of
meat of neat cattle.
7. Statutes.
Act entitled An act to provide for the inspection of hides, providing compensation therefor, and other
matters relating thereto held wanting in that unity of title and subject necessary to a constitutional law,
where object of act was to make it a penitentiary offense to offer for sale or sell the meat of neat cattle
without first having the hide thereof and the carcass or part of carcass intended to be sold inspected,
marked and stamped as therein provided. (Stats. 1929, c. 76; Const., art. 4, sec. 17.)
Appeal from Third Judicial District Court, Lander County; Edgar Eather, Judge.
Prosecution of A.A. Payne for selling the meat of a neat cattle unlawfully. From a
judgment discharging defendant, the State appeals. Affirmed.
53 Nev. 193, 194 (1931) State v. Payne
M.A. Diskin, Attorney-General, Wm. J. Forman, Deputy Attorney-General, and Howard E.
Brown, District Attorney, for the State:
It is not necessary that the title of an act made any reference to a crime or to punishment
for a crime provided for in the act. State v. Ah Sam, 15 Nev. 27, Ex Parte Livingston, 20 Nev.
282; Ex Parte Ah Pah, 34 Nev. 283.
It is respectfully submitted that the title of chapter 76, Stats. 1929, complies with the
provisions of sec. 17 of art. IV of the constitution of the State of Nevada, and that the
provisions of sections 6 and 10 of that act are properly connected with the principal subject
embodied in the law; that the provisions penalizing the sale of meat of a neat cattle without
first having the hide thereof and the carcass or parts of carcass concerned inspected and
stamped, as provided for in the act, is a provision relating to a subject expressed in the title of
the act, and has a natural connection to and is not foreign to the subject expressed in the title
of the act. It is also respectfully submitted that all presumptions are in favor of the
constitutionality of a statute.
W.R. Reynolds, for Respondent:
It is our contention that the main subject of the body of chapter 76, Stats. 1929, is the
regulation and control of the sale and purchase of the meat of slaughtered neat cattle; that the
inspection of hides is of minor importance, and merely relates to such main subject; that the
title has been restricted to a point where it entirely fails to mention the subject matter of the
act, and gives notice merely of a subordinate matter incidental to the main subject. 36 Cyc.
1029; State v. Bryan, 50 Fla. 293; note 27, 36 Cyc. 1029; Klein v. Kinkead, 16 Nev. 194;
State v. Washoe County Commissioners, 22 Nev. 399.
With respect to the effect of such restrictive titles, see State v. Halleck, 19 Nev. 387; State v.
Gibson, 30 Nev. 353; State v. Silver, 9 Nev. 227; Ex Parte Knight, 52 Fla.
53 Nev. 193, 195 (1931) State v. Payne
Knight, 52 Fla. 144, 41 So. 786, 120 Am. St. Rep. 190, at p. 194.
OPINION
The district attorney of Lander County filed an information in the court below against A.A.
Payne, in two counts, one for offering for sale and the other for selling to Mrs. Maggie
Shovelin the meat of a neat cattle in violation of the provisions contained in an act approved
March 19, 1929, chapter 76, Stats. 1929, p. 111. The defendant's demurrer to each county was
sustained, the information was dismissed, and the defendant discharged. The state appealed.
The demurrer to each count was sustained solely upon the ground that the statute is
unconstitutional and void, because in conflict with section 17 of article 4 of the constitution,
which declares each law enacted by the legislature shall embrace but one subject, and
matters properly connected therewith, which subject shall be briefly expressed in the title.
To a proper understanding of the court's ruling on the demurrer it is necessary to review
the statute. The statute is entitled An Act to provide for the inspection of hides, providing
compensation therefor, and other matters relating thereto.
Section 1 provides: Hereafter every person before selling the meat of any neat cattle, shall
have the hide thereof, with ears attached, inspected for brands and marks, and the carcass of
part thereof desired to be sold, stamped as provided herein, by some sheriff, deputy sheriff,
constable, deputy constable, justice of the peace, or inspector of the state board of stock
commissioners.
Section 2 makes it the duty of the officers named in section 1 and the inspectors of the
state board of stock commissioners to inspect such hides and stamp such carcasses or parts
thereof in accord with the act.
53 Nev. 193, 196 (1931) State v. Payne
Section 3 provides the mode and manner of inspection and for the record to be kept
thereof.
Section 4 provides that: As evidence of inspection the inspecting officer shall remove one
ear from the hide inspected and place on the outside in the case of skinned carcasses and the
inside in the case of unskinned carcasses of at least each quarter of any carcass or part carcass
presented for inspection the imprint in indelible ink of the official inspection stamp
authorized to be adopted, supplied by, and used under instructions and authority of the state
board of stock commissioners by this act.
Section 5 provides that the state board of stock commissioners are authorized and
empowered to supervise the operation of the act.
Sections 6 and 7 read as follows:
Section 6. Hereafter it shall be unalwful for any person to offer for sale or sell the meat of
any neat cattle without first having the hide thereof and the carcass or parts of carcass
concerned inspected, marked and stamped as provided for herein.
Section 7. It shall be unalwful for any person to buy the meat of any neat cattle in
quantities of a quarter of a carcass or more, except the carcass or part carcass thereof bears
from the personal observation of such person the inspection stamp provided for herein.
Section 8 provides that the inspection of hides and meat as provided for in the statute is
restricted at county seats to sheriffs or deputy sheriffs or inspectors of the state board of stock
commissioners, and, excepting regular inspectors of the state board of stock commissioners,
those authorized to make inspections shall be, unless otherwise ordered by the state board of
stock commissioners, entitled to charge and receive for each inspection a fee of 25 cents.
Section 9 provides that the provisions of the act shall not apply to the sale or purchase of
neat cattle slaughtered and entering the channels of trade through official establishments
under the supervision of the United States Department of Agriculture and bearing the official
United States government stamp indicating such inspection.
53 Nev. 193, 197 (1931) State v. Payne
Section 10 reads as follows: Any person who shall violate the provisions of this act, or do
or perform any act or thing in this act declared to be unlawful, shall be deemed guilty of a
felony, and upon conviction shall be punished by imprisonment in the state prison of the State
of Nevada not less than one year nor more than fourteen years.
1-5. With this review of the law we are to inquire whether the title of the act conforms to
the constitutional requirement that each law enacted by the legislature shall embrace but one
subject, and matter properly connected therewith. The purposes sought to be accomplished by
this clause of the constitution have been declared in so many decisions of this court, both
early and late, that no time need be spent in their review. We may, however, at the outset,
state that commentators and judges concede that the main test of the application of the clause
to a particular statute is whether the title is of such a character as to mislead the public and the
members of the legislature as to the subjects embraced in the act, for the reason that the
public and the members of the legislature must necessarily largely depend for their
knowledge of the purposes of the proposed legislation upon the title under which they are
presented. State v. Commissioners, 22 Nev. 399, 41 P. 145; Ex Parte Mantell, 47 Nev. 95,
216 P. 509. Another important test is that the provisions of the act must correspond with the
subject expressed in the title. State v. Commissioners, supra; People v. Parks, 58 Cal. 635.
The courts say, however, that, if the numerous provisions contained in an act have one
general subject which is indicated by the title, and are logically germane to the subject
expressed in the title, the act is not obnoxious to the constitutional requirement that each law
enacted by the legislature shall embrace but one subject and matter properly connected
therewith. Galeppi v. C. Swanston & Son (Cal. App.), 290 P. 116, 119. The constitutional
requirement, though mandatory, must be liberally construed, lest meritorious legislation be
declared void by reason of inartificiality in the title. In Re Calvo, 50 Nev. 125, 253 P. 671;
State v. Ah Sam, 15 Nev. 27, 37
53 Nev. 193, 198 (1931) State v. Payne
15 Nev. 27, 37 Am. Rep. 454. The rule of liberal construction, however, cannot be extended
to the point of nullification, even though the legislative will has assumed the form of a law
which, in this instance, is a law apparently designed for the protection of cattle from theft. As
pointed out in State v. State Bank & Trust Co. (on rehearing), 31 Nev. 472, 105 P. 567, there
is a wide difference between liberal construction and nullification. Whatever the object and
scope of the legislation may be, courts would fail in their most important function if they did
not follow the mandates of the higher law, keeping in mind that every statute is presumed to
be constitutional and every intendment is in favor of its validity.
The act under consideration is entitled An Act to provide for the inspection of hides,
providing compensation therefor, and other matters relating thereto.
6, 7. Undoubtedly the title indicates but one general subject. As expressed in the title, the
whole object of the legislation is to provide for the inspection of hides and matters necessarily
or properly related thereto. Looking beyond the title to the provisions of the act, it will be
found that the act is made up of an entirely different subject, namely, the sale of meat of neat
cattle, and that its object was to make it a penitentiary offense to offer for sale or sell the meat
of such cattle without first having the hide thereof and the carcass or part of carcass intended
to be sold inspected, marked, and stamped as provided in the act.
It is suggested that the subject of the unlawful sale, offer of sale, or purchase of the meat of
any neat cattle, as provided in sections 6 and 7 of the act, conforms its provisions to the
constitutional requirement, for the reason that the subject of unlawful sale of the meat of neat
cattle is logically germane to the general subject expressed in the title, inspection of hides. To
a layman who deals in hides or to an owner of neat cattle who desires to sell the same there is
nothing in the subject of the unlawfulness to indicate that the subject expressed in the title to
provide for the inspection of hides was to be extended to the sale of the meat of any neat
cattle.
53 Nev. 193, 199 (1931) State v. Payne
be extended to the sale of the meat of any neat cattle. There is nothing in the title of the act
which suggests or gives any intimation, knowledge, or notice of an intention to make it
unlawful and punishable as a felony to offer for sale or to sell or purchase the meat of neat
cattle, except upon compliance with all the numerous provisions of the act. The act, in truth,
may have passed the legislature under colors that gave no notice of its real character to those
to be affected by it. If the subjects were germane to the subject expressed in the title and
adapted to the accomplishment of the object of the act, they may have properly been included
in the title by reasonable reference, but they were not. The truth is that the real subject of the
legislation is not stated in the title at all. That this is the fact is easily shown by the
consideration of the effect of the statute.
To our minds, it is quite clear that under the circumstances the title of the act is well
calculated to actually mislead the public and the members of the legislature by inducing the
belief that the purpose of the law was restricted to the one subject expressed in its title. For
these reasons, we conclude that the title of the act is not a fair indication of the measures
enacted, and that the act itself, when measured by its title, is well calculated to actually
mislead, not only interested parties, but also all persons concerned in the general purpose and
scope of the act. In other words, the act is wanting in that unity of title and subject necessary
to a constitutional law.
Entertaining these views, we conclude that the demurrer to each count of the information
charging the accused with the violation of the several provisions of the act was properly
sustained.
____________
53 Nev. 200, 200 (1931) State v. Watts
STATE v. WATTS
No. 2899
December 2, 1930.
Per Curiam:
Rehearing granted.
On Rehearing
February 18, 1931. 296 P. 26.
1. Homicide.
If one be present at a homicide, aiding and abetting by act or deed, he is a principal, even though he
does not fire the fatal shot. (Rev. Laws 1912, sec. 7070, as amended by Stats. 1919, c. 232, sec. 18.).
2. Homicide.
Evidence held sufficient to support verdict finding deceased's wife guilty of aiding and abetting in
homicide, and to refute theory of suicide.
3. Homicide.
Dying declarations of deceased held properly admitted in prosecution for murder.
4. Homicide.
Jury are the judges as to the probability or improbability of dying declarations and as to the mentality
of the deceased at the time of making them.
5. Homicide.
It is not for the appellate court to indulge in any speculative or conjectural theory regarding facts.
6. Criminal Law.
No judgment of conviction will be reversed upon the ground that the verdict is contrary to the
evidence, if there is any substantial evidence to support it. (Const. art. 6, sec. 4.)
Appeal from Sixth Judicial District Court, Humboldt County; L.O. Hawkins, Judge.
Former opinion adhered to, and conviction affirmed.
For former opinion, see 52 Nev. 453.
J.W. Dignan and P.A. McCarran, for Appellant.
Merwyn H. Brown, District Attorney, Gray Mashburn, Attorney-General, and Wm. J.
Forman, Deputy Attorney-General, for the State.
53 Nev. 200, 201 (1931) State v. Watts
OPINION
By the Court, Guild, District Judge:
The information in this case, filed in September, 1929, charged the defendant, Rosa Watts,
with shooting and killing Rollin Watts, nicknamed Doc Watts, her husband, at Winnemucca,
Humboldt County, Nevada, on the 18th day of June, 1929.
1. One may be a principal in a crime of homicide even though he do not fire the fatal shot.
If he be present, aiding and abetting by act or deed, he is a principal.
In a statute providing that one who aids, abets, or procures another to commit a crime
may be prosecuted the same as the principal, the word aid' means to help, assist, or
strengthen; the word abet' to encourage, counsel, induce, or assist, and the word procure'
means to persuade, induce, prevail upon or cause. 16 C.J. 130; State v. Snell, 5 Ohio Dec.
670, 2 Ohio N.P. 55.
No distinction shall exist between an accessory before the fact and a principal in the first
and second degree in cases of felony and all persons concerned in the commission of a felony,
whether they directly commit the act constituting the offense, or aid and abet in its
commission, though not present, shall hereafter be prosecuted, tried and punished as
principals, and no other facts need be alleged in any indictment or information against such
an accessory than are required in an indictment or information against his principal. R.L.
Nevada 1912, sec. 7071, as amended; Stats. 1919, p. 419, c. 232, sec. 18; section 221,
Criminal Practice Act.
A jury trial was had, and as a result the defendant, Rosa Watts, was found guilty of murder
of the first degree, and the penalty or sentence was fixed at life imprisonment. In due course a
motion for a new trial was made, and thereafter refused. An appeal from the order denying a
motion for a new trial was taken to this court, and by an opinion filed on the 6th day of
August, 1930, the judgment of the lower court was affirmed.
A rehearing in the matter was thereafter granted by this court, the matter being now
before the court on the rehearing.
53 Nev. 200, 202 (1931) State v. Watts
this court, the matter being now before the court on the rehearing.
2. The sole question presented for our consideration is: Is there any substantial evidence in
the record to support the verdict of the jury?
It is most strenuously urged upon the part of appellant that there is no substantial evidence
to support the verdict, for the following reasons: First, that Watts committed suicide; second,
that it was impossible for defendant to have aided and abetted in the commission of the
crime, (a) because of the physical improbability of her being able to hold the deceased from
rising in bed, and (b) because for her to have done so, by the nature and position of the wound
of the deceased, she would have placed herself in a hazardous position and in line with the
course of a bullet, if the deceased was shot by a person through the window situated at the
head of the bed; and, third, that because of the nature of the wound that Watts received and
his weakened condition his brain deteriorated very materially and his mentality was not
sufficient to justify the introduction of the so-called dying statements taken from him, and
there was a strong likelihood and possibility of his laboring under a hallucination by reason of
a purported weakened condition of his brain at the time said statements were made.
First, as to the theory of suicide, we are unable to reach such a conclusion from our
examination of the evidence and from the demonstration made by counsel for the appellant
before the court. It seems not impossible, but highly improbable, that one contemplating or
having a suicidal intent would have placed himself and the gun in such an awkward position
as to bring about the result of the wound and the position of the wound which Watts received.
Mr. Justice Sanders, in his opinion, 52 Nev. 462, et seq., 290 P. 732, has given quite an
extensive summary of the facts and circumstances attending upon and surrounding the alleged
homicide, but in view of the importance of the case and the strenuous and urgent argument of
counsel for the appellant, it is deemed necessary to enlarge upon this summary by
perhaps repeating and adding a few additional facts and circumstances in the case.
53 Nev. 200, 203 (1931) State v. Watts
of counsel for the appellant, it is deemed necessary to enlarge upon this summary by perhaps
repeating and adding a few additional facts and circumstances in the case.
The testimony of Dr. Chas. E. Swezy, who was qualified as a practicing physician and
surgeon over a period of time since June, 1908, as to the position of the wound, and his
testimony and that of the autopsy physician, Dr. Pope, in corroboration as to the position of
the wound, and the testimony of Prof. E.L. Heinreich, a recognized authority as a consulting
criminologist, as to the probable position of the head of the deceased upon the pillow, would
seem to discredit a speculative theory of suicide. Dr. Swezy testified, in part, as follows:
A. It (the wound) was on the summit of the head on ain a linea line drawn from the
opening of one ear to the other ear, directly over the head would pass over the center of it.
The entrance was a trifle to the right, the middle of it. The, it lapped over on the middle line.
Then down, there was a little furrow there, and an inch and a quarter to the front and a trifle
to the right was a little opening there with a little tab of scalp hanging to it, more like an
arrow point or a pencil point had come out through there; and I made my incision about 4
inches, 4 or 5 inches along over the top of the head from before backwards, and had the
tissues retracted so I could explore the condition there, and take out the minutest pieces of
bone and any tissues or anything that might have to come out.
A. And then I made an incision across the front of the head here, opened that up about an
inch and a half above the eye brows, and retracted that, and found the bone all shattered there,
cracked loose. I removed what loose pieces I thought ought to come out, and when I got it
cleaned out, pieces of brain, particles of brain, I took my gloved finger and went in there
gently and felt the bullet in the right lobe of the brain, and I tookI said to Dr. Pope and the
nurses, I said, I believe that is the bullet, and I took a small pair of forceps and went in there
and brought out this fragment of the bullet.
53 Nev. 200, 204 (1931) State v. Watts
The testimony of this witness with reference to the autopsy performed upon the body of
the deceased is to the effect that when the autopsy was performed they opened up the brain,
found the path of the wound through the right lobe of the brain, and in one place it touched
over on the left lobe a little; and found the necrosis, posterior to it, and found the effect of
superaction pus; that there was a devitalization along the path of the bullet; that other parts of
the vital organs were examined and there was no evidence of any diseased process; and that
the deceased came to his death by means of a gunshot wound which had produced infectious
meningitis. This testimony was corroborated by Dr. Pope.
Prof. Heinreich, after being qualified, testified that he had made an examination of the
revolver, cartridges, pieces of lead, or piece of bullet extracted from the wound of the
deceased, and the fragment of bullet found near the ceiling in the upper window sill by the
witness Brown, and the premises where the shooting took place, the pillow slip, and a portion
of the sheet from off the bed, and had made an examination and study of the various blood
stains appearing on the several exhibits, and had visited the patient at the Winnemucca
hospital during his lifetime, and had made a casual examination of the wound on the
deceased's head. From the examinations and calculations he was able to testify as to a
possible position of the deceased in the bed at the time of the shooting. This testimony, in
part, is as follows:
A. On the pillow, pressed into the pillow case and held in shape by the coagulation and
drying of the blood, surrounded by an area of clotted blood, there is the imprint of the back of
the head which shows the position of the head as associated with the large amount of
bleeding which covers the pillow and has been drawn through the texture of the cloth of the
pillow case. Down in front connected with the blood stain on the sheet there is the direct line
of drainage and the crease in the pillow in the front side showing the manner in which the
pillow was creased and crimped from the weight of the bleeding man upon the pillow.
53 Nev. 200, 205 (1931) State v. Watts
which the pillow was creased and crimped from the weight of the bleeding man upon the
pillow. Over beyond the blood stain, and just to the right, as you look at the pillow from the
rear of that drainage line of blood which connects the pillow case with the sheet, near the
head of the bed, there are eight tiny blood stains. These blood stains are of a different
character from the large stain on the pillow case made by flowing blood, and are the kind of
stains made by a spurt of blood from a wound. These tiny drops of blood in this position,
from these I find that the head was in this same position at the beginning as well as the end of
the bleeding. These tiny drops show the beginning of the bleeding, position of the head and
the total smear, and especially around the area mark on the pillow case by the head, show the
end position of the bleeding condition. The drip of blood across the pillow on the back, across
the edge of the sheet and across the mattress fix the position of the pillow with reference to
the sheet. The nature of the wound in the cranium in which one-half of the bullet went inside
the head, and the other portion rode along the top of the skull under the scalp and then came
out and struck a point above the foot of the bed, plus or minus 8 feet above the floor, and the
condition of the bullet itself shows that the bullet struck the curved surface of the skull at an
angle which caused it to turn and to be cut by the projection of the point of the breaking of the
skull against which the bullet was moved, allowing the bullet to be cut in such a manner that
half of it went into the skull and half was deflected by the cranium into the position near the
ceiling and that this projectory from the skull to the ceiling, following along the line of the
point of entrance and point of exit of the portion of the bullet which went into the ceiling,
Plaintiff's exhibit No. 6, I believe, fixes the direction in which the face was turned and the
head was tilted at the time of receiving the shot.
This same eminent authority, and also Dr. Swezy and others, testified that there were no
powder marks nor powder burns either upon the pillow slip, the sheet, or any part of the
head of the deceased.
53 Nev. 200, 206 (1931) State v. Watts
any part of the head of the deceased. We conclude that the jury, who heard all of the evidence
and who were the judges of the weight and credibility to be given to the testimony of the
witnesses, had ample justification in rejecting the theory of suicide.
Second, as to the physical improbability of the appellant being able to hold Watts while
being shot: This point is perhaps subjected to more speculation and conjecture upon the part
of counsel than any other point in the entire case (unless it might be the mentality of the
deceased). Appellant asks the question as to how it would be possible for a woman of the
physical build of the appellant being able to hold a strong man of the physical build of the
deceased from arising from his bed, by lying across his knees or holding his knees. Mr.
Justice Sanders has covered in his opinion a great many of the facts and circumstances, and
has inserted a copy of each of the dying statements that were made. See State v. Watts, 52
Nev. 462-467, 290 P. 732.
Dr. Swezy testified at great length and was permitted to illustrate by conversations had
with the deceased, Watts, what, in his opinion, proved the deceased to be mentally competent.
The answer to the above question is probably best found in a portion of his testimony.
A. I asked him to explain to me how it was Rosa held him down that morning he couldn't
get away from her.
Q. What explanation did he give of that? A. He said that he couldn't get her to let go of
him.
Q. Anything else? A. I told him, I said that it didn't seem to me that a woman could hold a
man and he couldn't get away. He asked me if I ever had one try it.
Q. And anything else on that? A. Well, I asked him why he didn't tear himself away from
her and he said he couldn't do it. I said, What did you do?' He said, I just begged her to let
go of me.'
3, 4. We have examined the record with the utmost care and the most minute scrutiny, and
conclude that the dying declarations of Watts were properly admitted in evidence.
53 Nev. 200, 207 (1931) State v. Watts
in evidence. Every safeguard possible was by the trial court thrown around the defendant in
the admission of these dying declarations at the time of their admission and by its instructions
to the jury, and the statements then became a matter for the jury to weigh, consider,
determine, and decide as to the probability or improbability of the statements as a whole, and
as to the mentality of the deceased at the time of making the same, and as to that part of the
statement in which the deceased claimed that the defendant, Rosa Watts, was holding him
when the fatal shot was fired.
5. The jury were the judges of the facts of the matter. They had all of the evidence before
them, and it is not for this court to indulge in any speculative or conjectural theory in this
matter.
Third, as to the condition of the mentality of Watts at the time the dying statements were
made: Dr. Swezy was the attending physician during all of the time the deceased was in the
hospital. He and other witnesses were permitted to testify as to the mentality of the deceased
before the jury in laying a foundation for the introduction of the dying statements. He had an
opportunity to and did observe the condition of the patient every day from the date of the
shooting until the death of the patient. Repeatedly throughout the testimony of this witness
there is brought forth the fact that from a period of about two or three days after the shooting,
which occurred on the 18th of June, until on or about the 23d or 24th day of July, the physical
condition of the patient progressed favorably and his mentality was quite clear; that on or
about the 27th day of July the patient was failing fast, and for four or five days prior
thereto was slipping pretty fast. Between the 27th of July and the 9th of August his physical
condition was progressively bad, but the condition of the mentality of the patient upon the
27th of July and the 9th of August, the days upon which the dying declarations were made,
was quite clear. To set forth all of the testimony of this witness would be to unnecessarily
incumber the opinion. The doctor gave illustrations for his reasons and opinion as to the
mentality, and was permitted to repeat conversations had with the patient in his
presence.
53 Nev. 200, 208 (1931) State v. Watts
for his reasons and opinion as to the mentality, and was permitted to repeat conversations had
with the patient in his presence. The doctor further testified that Watts would talk normally
and rationally. One illustration was when one of the Deihl boys was permitted to visit the
patient in the doctor's presence. A portion of the testimony is here set out:
A. I went and picked him (meaning Bobby Deihl) up and took him up there.
Q. Don't give us to much detail. Go to the point. A. All right. He said, I knew him and he
knew me. He knew Bob. Shook hand with him. Bob told him how well he was looking; how
all his friends were inquiring about him. That pleased him. He laughed; said, That was good.'
I said, I guess one thing in Doc's favor he never dissipated any.' Bob said, I saw him
dissipate once out at McDermitt.' I said, Who was with you?' He spoke up and said, Joe
Duarte,' the deceased said that himself. He said, I didn't make any disturbance,' but he said,
Bob created a whole lot of fun.' I said, Bob, is that right?' He said Absolutely right.' That
was one incident.
Another illustration is given in a conversation had with Mrs. Caledonia Swezy in the
doctor's presence. A portion of the doctor's testimony is as follows:
A. One evening I took Mrs. Swezy up, one Sunday, and he had never met Mrs. Swezy,
had only seen herI don't think she had ever met him personally, that I know of. When she
walked into the room I said, Doc, here is somebody to say hello to you.' He said, How do
you do Mrs. Swezy.' She said, How do you do Mr. Watts,' she says, how do you feel?' He
says, I am feeling pretty good.' She says, The heat bothers you doesn't it; it is pretty warm.'
He says, No, it doesn't bother me much; they keep me comfortable.' Mrs. Swezy went out. I
thought that was a reasonable rational normal response or normal action.
Q. When was it he told you he knew everything that was going on down there that
morning? A. Oh, yes, he told Mrs. Swezy at that time. I said, You know Mrs.
53 Nev. 200, 209 (1931) State v. Watts
Mrs. Swezy.' He said, Yes.' I said, Where did you see her before,' and he said, I seen her
down there,' I said, Did you see her at any other time,' or something to that effect. He said,
She came over to the house that morning.' I said, Who else was there?' Mr. and Mrs.
Spinner, Mrs. Vandermede, Miss Forde.
Another illustration is given in a conversation with reference to the shooting:
A. I asked him if he knew who shot him. He spoke about Trousdale; seemed to be afraid,
always afraid. I asked him if he was afraid of Trousdale. He said yes; and I asked him why he
thought he shot him, and he didn't answer me. I said, Was it over money?' He said yes. He
told me about going down the road the Monday preceding the shooting; went down in his car.
I asked him if he say any one. He said he saw several tourists. I said Did you see anybody
else you knew?' He said, On my way back Glen Trousdale was coming down the road very
fast.' I said, Did he stop?' He said, I don't know I came on home.' I said, What did you do
down there?' He said, I don't remember.' That was the Monday before. The afternoon before.
When ever he didn't want to tell me he would say I don't remember, or I can't remember. That
was the way he had of evading my question or any question he didn't want to tell me.
Caledonia Swezy, the wife of Dr. Swezy, testified as to a conversation had with the patient
upon a trip to the hospital, which is set out:
Q. You remember what you said to him, and what he said to you? A. When I entered the
room he said, How do you do Mrs. Swezy.'
Q. Yes. A. And put out his hand, and I think the question was asked him if he
remembered me. He said he did, and they asked him when, and he said it was the morning
that he was, I can't put in his words, but however, that he remembered Mr., myself and Doctor
Swezy, Mr. and Mrs. Spinner.
Q. Said he remembered seeing you there? A. Remembered seeing us there the morning he
was shot.
53 Nev. 200, 210 (1931) State v. Watts
Q. Did you have any other conversation with him? A. Doctor asked him to show me the
top of his head, which he did, and I told him I was pleased to see him so cheerful and bright,
and he thanked me, and I bid him good day and left.
Miss Nora Forde, one of the nurses in attendance upon the patient from shortly after the
shooting until his death, testified that his mental condition seemed to be all right after the first
few days he was shot; that he was slightly delirious on the 8th of August, but still he knew
people and knew what he was doing. She illustrated by repeating a conversation had with the
deceased wherein Watts, when asked if he shot himself, said, No, I didn't, and she asked
him why he didn't run away, and he said he couldn't because Rose was holding him down.
There are a few other facts which we desire to briefly point out. When the doctor was
summoned on the morning of the shooting, it was the defendant herself who undertook to
have the deceased tell the doctor that he shot himself. It was the defendant who, a little later,
told Mrs. Swezy that she guessed she would phone to Trousdale as he (Watts) wanted to talk
to Glenn. It was Trousdale's mother who told District Attorney Brown: Please don't make
this hard on Glenn. It was the defendant who related that she retired for bed shortly after 9
o'clock, and the witness Bogart testified that he had a conversation with the defendant as late
as 10:15 o'clock the night before the shooting. The witness Laura Campbell testified that she
heard the door of the Trousdale home open and the screen door open and close, and the gate
slam, somewhere between the hours of 3 and 4 o'clock on the morning of the shooting. The
defendant told the district attorney that she and Watts had agreed to get a divorce. The
defendant denied that she went out the back door of her residence when going for the doctor.
Other witnesses testified that she went out the rear door and hesitated for a few moments
before proceeding across for the doctor. The witness Bogart testified that he heard someone
climbing and heard scraping noises like someone drawing "themselves" over the shed or
fence, and the sound coming from the front of his cabin which faced the back of the Watts
residence, and that he also heard a gate close shortly after he woke up, and sounds of
walking on the gravel in the court outside the cabin and at the rear of the Watts
residence. Dr. Swezy testified that the deceased had a fear of Glen Trousdale, and also
that the defendant here was not wanted at the hospital by the deceased and that he had
to entreat with Rollin Watts to let the defendant come to see him.
53 Nev. 200, 211 (1931) State v. Watts
themselves over the shed or fence, and the sound coming from the front of his cabin which
faced the back of the Watts residence, and that he also heard a gate close shortly after he
woke up, and sounds of walking on the gravel in the court outside the cabin and at the rear of
the Watts residence. Dr. Swezy testified that the deceased had a fear of Glen Trousdale, and
also that the defendant here was not wanted at the hospital by the deceased and that he had to
entreat with Rollin Watts to let the defendant come to see him. And the evidences discloses
that the defendant was seen riding and talking with Trousdale upon two or three occasions
before the morning of the fatal shooting.
We conclude from the evidence and the exhibits before us, and the facts and surrounding
circumstances, as pointed out in the record, that there is substantial evidence to justify the
verdict of the jury, and that the defendant here could have aided and abetted in the
commission of the crime in the way and manner related in the dying declaration of Watts.
6. Over a long period of time the courts of our state have adhered to the well-settled and
established rule that no judgment of conviction will be reversed upon the ground that the
verdict is contrary to the evidence, if there is any substantial evidence to support it.
Constitution, State of Nevada, article 6, sec. 4; State v. Mills, 12 Nev. 403; State v. Buralli,
27 Nev. 41, 71 P. 532; State v. Hunter, 48 Nev. 367, 23 P. 778, 235 P. 645; State v. Boyle, 49
Nev. 386, 248 P. 48.
The former opinion by Mr. Justice Sanders is adhered to, and the judgment and order
appealed from are again affirmed.
NoteDucker, J., being unable to participate because of illness, Hon. Clark J. Guild,
Judge of the First Judicial District Court, was designated by the Governor to sit in his place
and stead.
____________
53 Nev. 212, 212 (1931) Martin v. Duncan Automobile Co.
MARTIN v. DUNCAN AUTOMOBILE CO.
(STUART El Al., Interveners)
No. 2921
February 27, 1931. 296 P. 24.
1. Statutes.
Statute enacted subsequent to and changing law expounded in judicial decision must be presumed to
have been enacted to meet situation in that case and the ruling of the court therein, and to remedy the
objection theretofore existing.
2. Statutes.
Statute broad in its scope should be liberally construed to effectuate its purpose.
3. Evidence.
To introduce testimony of witnesses given in previous proceeding in the same cause, it was not
necessary to prove that their absence from jurisdiction is permanent. (N.C.L. 1929, sec. 9019.)
4. Evidence.
Word proceeding following trial in statute providing for reading in evidence of official
stenographic report of prior testimony of deceased or absent witness in the same cause was clearly
intended to include practically every inquiry which might invoke the attention of the court. (N.C.L. 1929,
sec. 9019.)
5. Evidence.
Official transcript of testimony given upon hearing of application for appointment of receiver was
admissible for what it was worth in subsequent trial upon merits in same cause, when witness was then
beyond jurisdiction.
6. Evidence.
Layman's opinion is incompetent to prove value of attorney's services.
Appeal from Second Judicial District Court, Washoe Court; Thomas F. Moran, Judge.
Suit by Eli L. Martin, sometimes known as E.L. Martin, against the Duncan Automobile
Company, in which Charles G. Stuart and another intervened. From a judgment ordering a
foreclosure and an order denying a motion for a new trial, defendant and interveners appeal.
Judgment and order reversed.
LeRoy F. Pike and Cooke & Stoddard, for Appellants:
The court erred in overruling interveners' objections to the plaintiff giving opinion
evidence as to what was a reasonable attorney's fee to be allowed plaintiff on the foreclosure
as to the Stuart car, when there was not the slightest attempt made to even seemingly
qualify him by showing he was to any extent familiar with attorneys' charges or that he
knew anything whatever about the amount or character of the legal work, etc., performed
by his attorney. 6 C.J. 763 and note; Hart v. Vidol, 6 Cal. 56; Howell v. Smith {Mich.), 66
N.W. 21S; Frye v. Estes, 52 Mo.
the foreclosure as to the Stuart car, when there was not the slightest attempt made to even
seemingly qualify him by showing he was to any extent familiar with attorneys' charges or
that he knew anything whatever about the amount or character of the legal work, etc.,
performed by his attorney. 6 C.J. 763 and note; Hart v. Vidol, 6 Cal. 56; Howell v. Smith
(Mich.), 66 N.W. 218; Frye v. Estes, 52 Mo. App. 1; Central, etc. Railway Co. v. Goelzer
(Ark.), 123 S.W. 781; Rogers Exp. Test, pp. 380, 381; Chamberlayne on Evidence, sec. 2163;
State ex rel. Bank v. Flarsheim (Mo.), 119 S.W. 17; Jones Com. on Ev., sec. 287, vol. 2, p.
960; 2 Enc. of Ev., p. 169; Mock v. Kelly, 3 Ala. 387; Kappler v. Storm (Okla.), 153 P. 1142,
1143; Coca Cola Co. v. Moore (C.C.A. 8th), 256 Fed. 640 (syll.); Fast v. Austin (Md.), 107
Atl. 540.
Section 5472, Rev. Laws, was enacted, we believe, to get away from the unsatisfactory
rule laid down in the case of Gerhauser v. North British, etc. Co., 7 Nev. 178, 188, 189, 190,
and to modernize and bring the Nevada rule into harmony with what is undoubtedly the
general and strong majority rule. Emerson v. Burnett et al. (Colo.), 52 P. 752-754. The rule as
to deceased witnesses is equally applicable to witnesses who are outside the jurisdiction of
the court and out of the reach of its process. 1 Greenl. Ev. sec. 163; Gilmore v. Butts (Kan.),
59 P. 645; Atchison, etc. Ry. Co. v. Osborn, 91 A.S.R., note at p. 195.
The mere absence of the witness is sufficient, and no showing need be made of diligence
to procure his deposition or personal attendance. Minneapolis Co. v. Railway Co. (Minn.), 53
N.W. 639-642; McGovern v. Smith (Vt.), 53 Atl. 326; Giberson v. Mills Co. (Pa.), 41 Atl.
525; Reese v. Morgan Mining Co. (Utah), 54 P. 759; Reid v. Uhr. (N. Dak.), 174 N.W. 71, 6
A.L.R. 586-588; Schwalbe v. Postle (Colo.), 249 P. 495, 496; Toledo, ext. Co. v. Cameron
(C.C.A. 6th), 127 Fed. 48-57.
The absence of the witness need not be of a permanent character. Inspiration, etc. Copper
Co. v. Bryan (Ariz.), 252 P. 1012-1015; 2 Wigmore, sec. 1404.
The statute, Rev. Laws, sec. 5472, was intended to cover any and all proceedings in the
same cause. In Re Colberts Estate (Mont.), 153 P. 1022-1024; Keating v. Keating (Cal.), 147
P. 974, 975; Tregambo v. Comanche Mining Co., 57 Cal. 501, 504, 505; Redington v.
Cornwell (Cal.), 27 P. 40-43; McPike v. McPike, 10 Ill. App. 332; Joseph v. Schnepper
(Ind.), 27 N.E. 305; Watts v. Billings, etc. Co. (Mont.), 253 P. 260-263; Finn v. Spagnoli
(Cal.), 7 P. 746; Goldtree v. Spreckels (Cal.), 67 P. 1091, 1092.
William M. Kearney and Melvin E. Jepson, for Respondent:
It is our contention that whatever error may have crept into the record in the testimony of
plaintiff upon the question of attorney's fee, that error, if such existed, was not prejudicial or
reversible error, and was at the same time cured by the introduction, without objection, of the
testimony of Mr. Jepson, who was admittedly a competent witness upon the question of
attorney's fees. McCormick v. Roberts, 13 P. at p. 828; Jones v. Tallant, 27 P. at 306; 13 Cyc.
pp. 1430, 1423.
The offer of the former testimony by intervener L.F. Weaver Company does not come
within the purview of the statute, since the L.F. Weaver Company was not a party to the
record at the time of the taking of said former testimony. The statute specifically provides that
either party to the record may read in evidence the testimony of said witness. Marshall v.
Hancock, 22 P. 62; Patty v. Salem Flouring Co., 96 P. at p. 1108; Madden v. Stegman, 127 P.
at p. 525.
The intervention of L.F. Weaver Company not only prevented identity of parties, but also
introduced new issues into the case, so that at the subsequent hearing or trial the issues were
entirely different from those presented at the former hearing upon the motion for the
appointment of a receiver.
As to intervener Stuart, the whole case is a moot question, since he has no further interest
in the action or its subject matter, in that he forfeited all of his right, title and interest in and
to the automobile represented by the sum of one thousand dollars now held by the
receiver, and since this lack of interest on the part of intervener Stuart existed at the time
of the trial herein.
right, title and interest in and to the automobile represented by the sum of one thousand
dollars now held by the receiver, and since this lack of interest on the part of intervener Stuart
existed at the time of the trial herein.
In construing a statute such as ours, we must view it in the light of existing rules of
procedure and legislative intent. We find the rule in this jurisdiction to be well set forth in the
case of Gerhuaser v. North British and Mercantile Insurance Co., 7 Nev. 174, at 188. This
case fully supports our contention that a deposition must be taken if it is at all possible. We
do not believe that our present statute in any way attempts to repeal or modify the common
law rule as expressed in the Gerhauser Case. It is merely a declaration of what was the
majority rule at common law, and as such carries with it all of the rules of evidence which
were applicable under the common law rule. Reynolds v. Fitzpatrick, 72 P. at p. 511;
Kennedy v. Canadian Pacific Ry. Co. (Wash.), 151 P. 252.
OPINION
This suit was instituted by Eli L. Martin, as plaintiff, against Duncan Automobile
Company, as defendant, to foreclose chattel mortgages upon four automobiles. In due time
Charles G. Stuart intervened, alleging that he had purchased the car in controversy upon this
appeal, from the defendant, who was the regular agent at Reno, Nevada, for the make of car
in question, and paid in cash $1,000, the balance payable in monthly installments. Later the
L.F. Weaver Company also intervened.
Pending the hearing of the case upon its merits, an application for the appointment of a
receiver to take possession of the cars was made, and upon the conclusion thereof the court
appointed such receiver, from which order an appeal was taken to this court. Martin v.
Duncan Automobile Co., 50 Nev. 91, 252 P. 322.
Thereafter the case came on for trial upon the meritsupon the question of the foreclosure
on the chattel mortgagesand it is from the judgment rendered ordering a foreclosure and the
order denying a motion for a new trial that this appeal is taken.
Only two questions are now urged. One is as to the correctness of the ruling of the court in
rejecting the testimony of intervener Stuart which was given upon the hearing of the
application for the appointment of a receiver.
Section 5472, Rev. Laws, section 9019, N.C.L., reads:
Whenever in any court of record the testimony of any witness in any case shall be
stenographically reported by an official court stenographer, and thereafter said witness shall
die, or be beyond the jurisdiction of the court in which the cause is pending, either party to
the record may read in evidence the testimony of said witness, when duly certified by the
stenographer, to be correct, in any subsequent trial of, or proceeding had, in the same cause,
subject only to the same objection that might be made if said witness were upon the stand and
testifying in open court.
It will be seen that testimony taken in any case and stenographically reported, when duly
certified by the stenographer to be correct, may be introduced in evidence in any subsequent
trial, or proceeding, in the same cause, upon the existence of one of two conditions, viz: (1)
That the witness who gave the testimony is dead, or (2) is beyond the jurisdiction of the court
in which the cause is pending.
It was shown upon the trial that Stuart and his wife were in Arizona at the time of the trial.
The parties who are interested in this proceeding participated in the former one.
Counsel for the plaintiff contends that this case is controlled by the opinion in Gerhauser
v. North British & Merc. Ins. Co., 7 Nev. 174-188, wherein it was held that the rule
applicable to the testimony of a dead witness did not apply to one who is beyond the
jurisdiction of the court.
1, 2. The section which we have quoted was enacted subsequent to the decision of the
case mentioned, and it must be presumed that it was enacted to meet the situation which was
presented in that case and the ruling of the court therein. The statute quoted should be
construed in accordance with the views expressed in Escalle v. Mark, 43 Nev. 172, 183 P.
387, 5 A.L.R. 1512, to the effect that it was the purpose of the legislature to remedy the
objection theretofore existing. This was clearly the purpose of the section in question. It is
broad in its scope and should be liberally construed to effectuate its purpose.
The learned trial judge, in passing upon the objection, said:
The evidence would be sufficient to show that they (two witnesses) are without the
jurisdiction of the court, but unless we take the telegrams of the parties the evidence would
not be sufficient to show that their absence from the jurisdiction is permanent.
3. The court having found that the evidence showed that the witnesses were without the
jurisdiction of the court, which is amply supported by the evidence, nothing more was
necessary to entitle the defendant to have the evidence admitted. The condition of the statute
is not that such witnesses be permanently beyond the jurisdiction.
4. The section provides that such evidence may be admitted in any subsequent trial or
proceeding. The word proceeding is comprehensive. It is comprehensive when used alone,
but when it follows the word trial as in the section quoted, it is clear it was intended to
include practically every inquiry which might invoke the attention of the court.
This court quotes approvingly in Sherman v. Southern Pac. Co., 31 Nev. 285, 102 P. 257,
258, as follows:
In Irwin v. Bank of Bellefontaine, 6 Ohio St. 86, it is said: The word (proceeding) is
generally applicable to any step taken by a suitor to obtain the interposition or action of a
court.' In Wilson v. Allen, 3 How. Prac. (N.Y.) 371, the court said: The term proceeding is
generally applicable to any step taken by a party in the progress of a civil action.
generally applicable to any step taken by a party in the progress of a civil action. Anything
done from the commencement to the termination is a proceeding.' Stonesifer v. Kilburn, 94
Cal. 42, 29 P. 335.
5. We think the testimony should have been admitted for what it is worth.
6. We come now to a consideration of the ruling of the court in admitting the testimony of
a layman as to the value of legal services, over the objection of counsel for the defendant. The
court erred in admitting the testimony in question.
The opinion of one who is not an attorney is incompetent to prove the value of any
attorney's services. Rogers Expert Testimony, pp. 380, 381. See, also, 6 C.J. 763 and note;
Hart v. Vidal, 6 Cal. 56; Howell v. Smith, 108 Mich, 350, 66 N.W. 218; Fry v. Estes, 52 Mo.
App. 1; Central, etc. Ry. Co. v. Goelzer, 92 Ark. 569, 123 S.W. 781; Chamberlayne on Ev.,
sec. 2163; 2 Jones Com. on Ev., sec. 287, p. 960; 2 Ency. of Ev. p. 169; Mock v. Kelly, 3
Ala. 387.
Judgment and order reversed.
____________
53 Nev. 219, 219 (1931) Costley v. Nevada Industrial Insurance Comm'n
COSTLEY v. NEVADA INDUSTRIAL INSURANCE
COMMISSION
No. 2911
March 23, 1931. 296 P. 1011.
Accident may be within scope of employment, though the hour of work has not arrived nor the work
actually begun. (3 Rev. Laws, p. 3126, sec. 7 1/2a.)
Provision of industrial insurance act which defines employer and employee must be construed as
liberally to effectuate the purpose of the legislation as any other exception found in the act. (3 Rev. Laws,
p. 3126, sec. 7 1/2a.)
Injuries sustained by miner while cutting lumber to fasten his tent down, preparatory to going to work
the next morning for a mining company, pursuant to employment, held injuries sustained by employee
arising out of and in the course of the employment.
Action by W.E. Costley against Nevada Industrial Insurance Commission. Judgment for
plaintiff, and the Commission appeals. Affirmed.
M.A. Diskin, for Appellant:
The Nevada industrial insurance act defines an employee to be a person in the service of
an employer. The existence of a contract for hire in itself is not sufficient to establish this
relationship, but in addition to the contract there must be the actual service. In the instant case
the contract was entered into on November 2. By the very terms of the contract Costly was
not to go to work until the morning of November 3. Therefore, when the alleged accident
occurred on November 2, he was not in the service, as defined by the act, and would not be in
the service of the company until the next day. It is necessary that one shall have actually
begun to earn his wage or he cannot be said to be in the service of the employer as the statute
requires. Bloomington D. & C.R. Co. v. Industrial Board, 114 N.E. 517.
Board, 114 N.E. 517. Snyder on Workmen's Compensation, vol. I, sec. 281, in dealing with
this question, refers to certain cases cited in vol. XIII American and English Negligence
Cases, p. 491. The two cases referred to in this authority are the cases of Luxenile, decided by
the industrial commission of Ohio, No. 65516, and the case of Tucker, No. 36145. We desire
also to call the court's attention to the following cases: Susnik v. Alger Logging Co., 147 P.
922; Bargey v. Massan Marcaroni Co., 112 N.E. 406; Hogan v. The State Industrial
Commission, 207 P. 303.
In putting up the tent Costley was doing a gratuitous act, one that he himself suggested,
and it was agreed that so far as the company was concerned Costley was not to begin his
services until the next day.
J.W. Dignan, for Respondent:
It was expressly agreed between the parties that the service of constructing living quarters
for respondent on the afternoon of November 2 be performed by the employee as a part of his
contract of employment and as a condition to be fulfilled by the employee under the
directions of and upon the premises of the employer before the commencement of his general
duties as a laborer and miner. The understanding and intent of the parties are plain and clear,
and the conduct of the parties after entering into the contract show that both the employer and
employee understood the contract and that the services agreed upon were being rendered in
accordance with its terms.
We submit that when any question arises at all as to the right of an employee to
compensation, the courts almost unanimously hold that both the law and the facts must be
liberally construed in favor of the payment of the compensation. Technical constructions must
be avoided where possible, in order that the benefits of this humane legislation may be
accorded to the unfortunate workman. Chandler v. Industrial Commission (Utah), 184 P.
1020; Frandsen v. Industrial Com. (Utah), 213 P. 197.
OPINION
This action was brought by W.E. Costley against the Nevada Industrial Insurance
Commission to recover compensation in the sum of $792 for an injury by accident alleged to
have arisen out of and in the course of his employment as a miner by the C.G. Dennis Leasing
Company, a company subject to the provisions of an act known as the Nevada Industrial
Insurance Act. 3 Rev. Laws of Nevada, p. 3123. The case was tried to the court without a
jury. Judgment went for Costley for the full sum of $792. The commission appealed.
There is no dispute as to the facts, and there is no controversy as to the procedure. The
facts, omitting details, are substantially as follows:
Prior to November 2, 1928, the C.G. Dennis Leasing Company was engaged in developing
and operating a mine prospect located on Canyon creek in Humboldt County, Nevada. Prior
to said date W.E. Costley had been engaged in prospecting a mining claim of his own located
on said creek some distance below the property of the C.G. Dennis Leasing Company. Oscar
L. Cash was superintendent of the company and H.J. Coss was foreman of its operations, with
authority to hire and discharge men. On and prior to said date the company furnished sleeping
quarters to its employees. On said date Costley applied to Coss for a job, representing that
Mr. Cash had told him that he thought that Coss could furnish him with work for a few days.
Coss said to Costley that he had a little work, but that he had no sleeping quarters for him.
Costley said: I will furnish my own tent. Coss said: That is all right, if you want to bring
your own tent up here and set it up, you can go to work tomorrow morning. Costley said:
Alright, I will do it.
Thereupon, Costley left the premises and within a short time returned with his tent and
outfit on his automobile. He asked Coss where he should set up the tent. Coss pointed out the
place, and Costley went about the work of setting up his tent, preparatory to going to work
the next morning pursuant to his employment.
work of setting up his tent, preparatory to going to work the next morning pursuant to his
employment. While Costley was cutting lumber to fasten the tent down, he accidently cut his
foot, which resulted in the loss of a greater part of the second toe, and the greater toe was left
stiff, which, according to the testimony of Dr. Hough, his attending physician, permanently
disabled him from engaging in his occupation as a miner or any employment that required
him to be on his feet much and to that extent his injury, in the opinion of Dr. Hough, was
permanent.
The superintendent testified that Costley's name did not appear on the payroll of the
company for the reason that he was hired to go to work the next day and that, at the time of
the accident, he felt that Costley hadn't commenced any employment for the company at that
time. The superintendent, however, reported the accident to the Nevada industrial insurance
commission. It appears that Dr. Hough made reports to the commission of his treatment of
Costley from time to time from November 2, 1928, up to the forepart of June, 1929. Costley
made application to the Nevada industrial insurance commission for compensation for his
injury, which was refused. Thereupon, he commenced this action in the court below against
the commission to recover the sum of $792 as compensation for his injury.
Upon the trial Costley did not take the stand as a witness, but made and rested his case
upon the testimony of his witness Coss and that of his physician, Dr. Hough. The commission
made and rested its case upon the testimony of said witnesses and that of its witness, Mr.
Cash, the superintendent of the leasing company.
The record discloses that upon the conclusion of the testimony, it was stipulated in open
court that, if the court should find and hold that Costley was accidently injured while in the
employ of the leasing company, and that the injury arose out of and in the course of his
employment, then and in that event Costley should have judgment against the commission for
the sum of $792 together with costs.
$792 together with costs. Judgment followed in favor of Costley.
By appropriate assignments of error the attorney-general, who ex officio is attorney for the
commission, presents the following propositions: (1) That Costley was not an employee of
the leasing company as the term employee is defined by the Nevada industrial insurance
act; (2) that the accident in question did not arise out of and in the course of the employment
as provided in the act.
Upon consideration of the argument advanced in support of these propositions, we think
they are resolvable into the single question: Had the relation of employer and employee
begun before the occurrence of the accident? In other words, Did the accident arise out of
and in the course of the employment? The learned attorney-general says that it did not. In
support of his conclusion he cites a ruling of the Ohio industrial insurance commission (1914)
entitled In Re Claim of Tucker. In that case it appeared that Tucker was employed by the
Giraud Iron Company on Saturday, February 2, 1914, and under his contract he was to begin
work on the following Monday morning. Tucker was without funds and was sent by his
employer to a boarding house under its management and control and while there, at about 6
o'clock on Saturday evening, he fell downstairs and sustained an injury. The commission held
that an employee injured between the time he was employed and actually entering upon the
execution of the work for which he was employed, the injury being in nowise occasioned by
the work to be performed, was not an injury arising out of and in the course of the
employment.
1. In line with In Re Tucker ruling, one member of the court has brought to the attention
of the writer the English case of Whitbread v. Arnold, 99 L.T.R. 103. The English case is
cited because the language of our statute with reference to the recovery of compensation
where an employee is injured by accident arising out of and in the course of the employment
is identical with the language of the British workmen's compensation act of 1906, and
therefore cases in that jurisdiction are useful in construing the same language in our act.
the language of the British workmen's compensation act of 1906, and therefore cases in that
jurisdiction are useful in construing the same language in our act. Whitbread v. Arnold was a
case where the deceased, a shepherd, had been newly engaged by a farmer. The latter sent a
wagon and horses to convey the shepherd with his family and furniture to the farm. When
some 40 yards from the cottage which he was to occupy the shepherd was thrown under the
wheels of the wagon and killed. It was held that, although there was a contract of service
between the farmer and the shepherd, the latter had not yet entered upon the employment.
Consequently, the accident did not arise out of and in the course of the employment of the
deceased. The authority of the Ohio and the English cases is clearly distinguishable from
Costley's case inasmuch as their determining features are not the same. It is true that Costley
had not commenced the work he was employed to perform when he was injured, but the
beginning of a man's work is not necessarily the beginning of his employment. The moment
of beginning the actual work is not the true test of the time when the employment begins.
Knowle's Workman's Compensation (Eng.) 1906, p. 28. It is not necessary that the hour of
work shall have arrived and that the work shall have been actually begun in order to bring an
accident within the scope of the employment. Annotation-Workmen's Compensation, L.R.A.
1916a, page 235, citing in support Hills v. Blair, 182 Mich. 20, 148 N.W. 243; Milwaukee v.
Althoff, 156 Wis. 68, 145, N.W. 238, L.R.A. 1916a, 327.
2, 3. The attorney-general argues that to constitute an employee as defined by the statute,
section 7 1/2(a), the person employed must be in the service of an employer under a contract
of hire, and that Costley at the time of the accident being engaged in the performance of an
act independent of the relation of master and servant or employer and employee, his injury as
a matter of law is not compensable. The argument is not persuasive. The provision of the
statute which defines employer and employee must be construed as liberally to effectuate
the purpose of the legislation as any other exception found in the act.
defines employer and employee must be construed as liberally to effectuate the purpose of the
legislation as any other exception found in the act. Honnold, Workmen's Compensation, sec.
58, p. 191. Upon consideration of all the circumstances and the conditions of Costley's
contract of employment, it is apparent that the relation of employer and employee had not
only begun before the occurrence of the accident, but that at the time thereof Costley was
engaged in the performance of a service incidental to and connected with his employment.
Costley's motive for offering to furnish and erect his own tent on the premises of is employer
is immaterial, if the furnishing and the erection of the tent was connected with the
employment. It is neither fair nor just to assume that Costley was employed out of favor to
him or that the furnishing and erection of the tent was for his own accommodation or
personal convenience. The element of personal convenience or friendly accommodation was
not present in this case, as it was in the Ohio and the English rulings. At the time of the
accident Costley was not engaged in voluntarily doing something entirely outside of his
employment. Neither can it be said that his injury was caused by a fortuitous circumstance
unconnected with the employment. Under all these circumstances we can see no ground upon
which to hold that the accident in question did not arise out of an in the course of the
employment. Consequently, the case is one clearly within the terms of the statute, which, it is
conceded, must be liberally construed to effectuate the purposes of the legislation. Virden v.
Smith, 46 Nev. 208, 210 P. 129; Rep. Nev. I. I. Comm. 1913-1914, p. 19.
Coleman, C.J., concurring:
While I feel that the better reasoning and the weight of authorities lead to a contrary
conclusion to that reached in the foregoing opinion, it must be conceded that the line of
demarcation between the two lines of authorities is very fine; hence I yield my judgment
to that of my associates, and concur in the order of affirmance.
conceded that the line of demarcation between the two lines of authorities is very fine; hence
I yield my judgment to that of my associates, and concur in the order of affirmance.
____________
53 Nev. 226, 226 (1931) Padilla v. Mason
PADILLA v. MASON
No. 2933
March 27, 1931. 296 P. 1083.
1. Costs.
Appeal by party that did not appear and contest matter in the lower court and failed to prosecute
appeal, held taken for the purpose of delay only, and that damages should be assessed. (N.C.L. 1929, sec.
8906; rule XI of supreme court.)
No answer was filed to complaint in partition proceeding, and appellant at no time
filed a brief and assignment of errors in support of the appeal, nor asked for further
time in which to do so. Rule XI of supreme court provides that brief and assignment of
errors shall be filed and served within fifteen days after the filing of the transcript on
appeal, and N.C.L., sec. 8906, provides that, when it appears that the appeal was taken
for delay, the appellate court may add to the costs such damages as may be just.
Appeal from Tenth Judicial District Court, Clark County; J. Emmett Walsh, Judge
presiding.
Action by Jose Padilla against Leona M. Mason, sometimes known as and called Leona M.
Padilla. Decree for plaintiff, and defendant appeals. Affirmed.
Louis Cohen, for Appellant.
Ham & Taylor, for Respondent.
OPINION
Respondent has made a motion to dismiss the appeal from the interlocutory decree made
and entered herein and from the order directing the sale of the property described in the
decree, to affirm the order, and for damages.
described in the decree, to affirm the order, and for damages.
This is a partition proceeding. No answer was filed to the complaint. Upon the hearing the
court ordered the property sold at public auction.
The motion is based upon the following grounds: (1) That there has not been filed and
served a proper transcript on appeal; (2) that there has not been filed or served any bill of
exceptions; (3) that no memorandum of errors or brief has been filed or served; and (4) that
the attempted appeal is without merit.
The so-called transcript on appeal was filed in this case on November 24, 1930.
Appellant has at no time filed a brief and assignment of errors in support of the appeal, nor
asked for further time in which to do so. Rule XI provides that these shall be filed and served
within fifteen days after the filing of the transcript on appeal. Respondent served his notice of
motion on December 23, 1930, and filed it on the 26th of that month.
It has been repeatedly held by this court that, when an appellant fails to prosecute his
appeal, the judgment appealed from may be dismissed. Goodhue v. Shedd, 17 Nev. 140, 30 P.
695.
Section 8906, Nev. Comp. Laws 1929, provides that, when it appears to the appellate court
that the appeal was taken for delay, this court may add to the costs such damages as may be
just.
The appellant not having appeared and contested this matter in the lower court, and having
failed to prosecute her appeal here, we can reach no other conclusion than that this appeal
was taken for the purpose of delay only, and that damages should be assessed. Paroni v.
Simonsen, 34 Nev. 26, 115 P. 415; Escere v. Torre, 14 Nev. 51; Gammans v. Rousell, 14
Nev. 171; Wheeler v. Floral M. & M. Co., 10 Nev. 200; Kercheval v. McKenney, 4 Nev. 294.
It is ordered that the decree and order appealed from be affirmed with costs, and damages in
the sum of $100.
____________
53 Nev. 228, 228 (1931) Duffill v. Bartlett
DUFFILL v. BARTLETT, District Judge Et Al.
No. 2931
March 30, 1931. 297 P. 504.
1. Divorce.
Statute limiting place for the commencement of divorce actions must be read in connection with
statute providing for the place of trial of personal actions generally. (Rev. Laws, sec. 5838, as amended
by Stats. 1927, c. 96; Rev. Laws, sec. 5014.)
2. Divorce.
Defendant in divorce action is entitled to a change of venue to the county of his residence,
notwithstanding a statute provides that actions for divorce shall be brought in the county where the
plaintiff shall have resided for three months before the action be commenced.
Application for a writ of prohibition by Albert Duffill against Hon. George A. Bartlett,
Judge of the Second Judicial District Court, in and for Washoe County, and such District
Court. Alternative writ made permanent. (Ducker, J., dissenting.)
McNamee & McNamee and Samuel Platt, for Petitioner:
It must be admitted from the outset that attorneys and courts in Nevada have assumed that
a defendant in a divorce action has as strong and equitable a right to have the case tried in the
county of his residence as any other defendant in any other character of action in personam.
Experience will sustain the first contention, and supreme court of Nevada adjudications the
second. In fact, this justifiable and equitable right in actions in personam is so generally
recognized that an examination of the statutes of many of the states will disclose that in those
jurisdictions a court will not even acquire original jurisdiction in such an action unless it be
brought within the forum of which the defendant is a resident. It has likewise been very
generally declared in many jurisdictions that a statute providing that an original action in
personam shall be brought within the county of the defendant's residence, or that such an
action shall be removed, upon proper application, to the county of the defendant's residence,
is a mandatory and peremptory statute and permits of no discretion upon the part of the
court.
statute and permits of no discretion upon the part of the court. In so far as this principle
applies to motions for change of venue upon the basis of the residence of the defendant, it is a
well-recognized rule in Nevada. Williams v. Keller, 6 Nev. 141, 144; Salsberry v. Connolly,
183 P. 391.
Under fair and liberal application of statutes and rules of procedure there seems to be no
reason in law or equity why such a right should not be granted in a divorce case. It has been
held that such a statute is remedial and should be liberally construed. Buck v. City of Eureka
(Cal.), 31 P. 845.
The statute upon which the defendant relies for a removal of the cause is sec. 5014, Rev.
Laws. There is no exception made in this statute to divorce cases or actions; and certainly, if
the legislature intended such an exception it would have so declared. This statute, together
with the statutes for a change of venue, must be urged in pari materia. If there should be a
conflict, which is not conceded, the well-recognized rule of liberality should be applied, so
that the defendant would not be denied the right to have the case tried within the forum of his
residence.
The California cases on divorce fully support our contention that a change of place of trial
to the county of defendant's residence is proper. Warner v. Warner, 34 P. 523; Usher v.
Usher, 35 P. 8; Hennessy v. Nichol, 38 P. 649. The California change of venue statute is
identical with ours.
This court, in a very early case, held that it is quite proper to remove an action for divorce
to another county upon the proper showing that the convenience of the witnesses demand it.
Sheckels v. Sheckels, 3 Nev. 404. This case expressly overrules the contention of plaintiff
that under the divorce statute a decree of divorce may only be obtained in the county in which
the case is filed. It also disposes of the contention that the original forum is the proper forum
in which to try and dispose of the case, and that, therefore, under the change of venue laws,
the case may not be removed.
L.D. Summerfield, for Respondents:
Under the plain terms of the divorce act, it must be admitted that the county where the
plaintiff has resided for three months is a proper county, both for bringing the action and
obtaining the divorce. Therefore, the provisions of sec. 5014, Rev. Laws, granting a change of
venue in certain instances, cannot be invoked, as is here sought, on the ground that it is not
the proper county. The divorce act has carved out an exception from the general provisions,
and has made the county of plaintiff's residence a proper county for obtaining the divorce.
The law is settled that where a special act on divorce provides the venue for such actions, the
general provisions of law on venue do not apply. 19 C.J. 36. This rule was applied in the case
of State v. Superior Court (Wash.), 283 P. 689. This is, of course, an application of the rule
that a special act controls against a general act. The situation is strengthened, too, by the fact
that the 1927 amendment is the last expression on the subject by the legislature, whereas the
general provisions on venue were an enactment of 1911. Hence, the statute on change of
venue cannot be held applicable.
The fact that by statute a certain action may be brought in a certain county gives no
absolute right to a change of venue to such county if it may also properly be tried in the
county where it is brought. 49 Cyc. 129.
In Nevada, under the 1927 divorce act, the plaintiff is permitted to obtain a divorce (and a
trial must necessarily precede this obtaining) either in the county of his residence or in the
county of defendant's residence. It can make no difference whether this venue for a particular
class of cases is fixed by an amendment to the venue act itself, or by a special act which
accomplishes the same result. It is submitted that the ruling of the supreme court of California
in Gridley v. Fellows, 166 Cal. 765, 138 P. 355, is determinative of the case at bar. That
ruling was approved and followed in Rains v. Diamond Match Co., 171 Cal. 326, 153 P. 239;
Mansfield v. Pickwick Stages (Cal), 215 P. 389.
The legislature has provided the plaintiff with the option of fixing venue in different
counties in cases other than divorce.
option of fixing venue in different counties in cases other than divorce. Sec. 5011, sub. 3, and
sec. 5012, sub. 1, Rev. Laws. In said sec. 5012, sub. 1, the word brought is used
interchangeably with shall be tried in fixing venue. The same word brought is used in the
1927 divorce act, so it is apparent that even if the word obtained had not been used, it
would still have given the plaintiff the option to fix the venue in the county of her residence.
The added use of the word obtained simply placed it beyond question as a special venue
provision.
The position here taken is that under the terms of the Nevada divorce act the plaintiff is
given the right to have the case heard and determined in the county in which he shall have
resided for three months or more, and that the defendant is not entitled to a change of venue
to the county of his residence.
There is good authority that the venue of a divorce action cannot be changed under statutes
not nearly as strong as our own. Puckett v. Puckett, 174 Ala. 315, 56 So. 585; Pfeuller v.
Super. Ct., 14 Wash. 115, 44 P. 123.
OPINION
From the petition and alternative writ of prohibition it is made to appear that Phyllis
Chamberlin Duffill, on her complaint to the second judicial district court of the State of
Nevada, in and for Washoe County, sought divorce and alimony from her husband, Albert
Duffill, alleging in her complaint her residence in said county of Washoe for the period of
three months before suit brought. Upon service of the summons and complaint, the defendant
made demand in writing upon the plaintiff that the place of trial of the cause be changed to
Clark County, his residence, and notified the plaintiff that he would, on the date specified,
move therefor in open court, upon his affidavit of the fact accompanying the notice. Upon the
hearing the court made an order that the demand and motion be refused and denied.
that the demand and motion be refused and denied. Thereupon the defendant petitioned this
court for a writ to prohibit respondents from continuing jurisdiction of the case and order its
transfer to Clark County for trial. Upon consideration of the petition, an alternative writ was
issued commanding the respondents to show cause why the prayer of the petition should not
be granted. For return the respondents, through the attorney of record for Phyllis Chamberlin
Duffill interposed a demurrer to the petition upon the general ground that it did not state facts
sufficient to authorize the issuance of the writ.
1, 2. The petitioner bases his right to a change of the place of trial of the divorce action
brought against him to the county of his residence upon section 72 of the civil practice act,
section 5014 Rev. Laws, which provides: In all other cases, the action shall be tried in the
county in which the defendants, or any one of them, may reside at the commencement of
action; * * * subject, however, to the power of the court to change the place of trial, as
provided in this act.
Section 73 of the act, section 5015 Rev. Laws, provides, in substance, that, if the county
designated in the complaint be not the proper county, the court may, on motion, change the
place of trial.
Section 5838 Rev. Laws, the civil practice act relating to divorce, as amended by the Stats.
of 1927, p. 126, c. 96, reads as follows: Divorce from the bonds of matrimony may be
obtained, by complaint, under oath, to the district court of the county in which the cause
therefor shall have accrued, or in which the defendant shall reside or be found, or in which
the plaintiff shall reside, if the latter be either the county in which the parties last cohabitated,
or in which the plaintiff shall have resided three months before suit be brought, for the
following causes. * * *
We are of the opinion that section 5838, as amended, must be read in connection with
section 72 of the practice act, heretofore quoted. Section 5838, as amended, is a limitation as
to the place for the commencement of actions of divorce, but section 72 provides for the
place of trial of personal actions generally.
actions of divorce, but section 72 provides for the place of trial of personal actions generally.
Hence there is no inconsistency in the different provisions. 9 Cal. Jur. 698. It will not do to
say, as argued by counsel for respondents, that, because on action for divorce is required by
statute to be brought in the county where the plaintiff shall have resided for three months
before suit be brought, the action must be tried therein. The authorities hold that the
defendant in a divorce action is entitled to a change of the place of trial to the county of his
residence, notwithstanding a statute provides that actions for divorce shall be brought in the
county where the plaintiff shall have resided for three months before the action be
commenced. Warner v. Warner, 100 Cal. 11, 34 P. 523; Usher v. Usher, 4 Cal. Unrep. 521,
36 P. 8; Hockett v. Hockett, 34 S.D. 586, 149 N.W. 550, Ann. Cas. 1917a, 938; 19 C.J. 36.
Being of the opinion that section 72 of the practice act upon which the petitioner bases his
right to a change of the place of trial of the case in question applies to divorce actions, we
conclude that the demurrer to the petition should be overruled and that the alternative writ
issued thereon should be made permanent.
It is so ordered.
Coleman, C.J.: I concur.
Ducker, J., dissenting:
I dissent. The right of a party to a change of venue is regulated in this state by statute.
Section 5015 Rev. Laws of Nevada. In civil cases such change may be made: (1) When the
county designated in the complaint is not the proper county. (2) When there is reason to
believe that an impartial trial cannot be had therein. (3) When the convenience of witnesses
and the ends of justice would be promoted by the change.
Where the legislature has undertaken to prescribe the cases wherein a change of venue
may be had, its directions are generally taken to be exclusive on the subject. 27 R.C.L. pp.
811-819.
The application for a change of venue was made upon the sole ground of residence of the
defendant in Clark County. It is stated in the moving papers that at the time of the
commencement of this action, defendant was a resident of the city of Las Vegas, County of
Clark, State of Nevada, and has ever since been, and continues to be, and still is a resident of
said City of Las Vegas, County and State aforesaid, and that said County of Clark, in said
state, is the proper place of trial of the above-entitled cause.
But, as before noted, it is only when the county designated in the complaint is not the
proper county that a change is allowed on that ground; not when it appears that the county to
which removal is sought is the proper county.
It appears from the complaint that plaintiff has resided in Washoe County for three months
before this action was brought. Consequently, by virtue of the provisions of section 5838 of
the Rev. Laws, as amended by Statutes of 1927, p. 126, c. 96, Washoe County was a proper
county for the commencement of the action, and is a proper county for the trial thereof.
So far as material here, said last-mentioned section reads: Divorce from the bonds of
matrimony may be obtained, by complaint, under oath, to the district court of the county in
which the cause therefor shall have accrued, or in which the defendant shall reside or be
found, or in which the plaintiff shall reside, if the latter be either the county in which the
parties last cohabited, or in which the plaintiff shall have resided three months before suit be
brought, for the following causes.
So it seems that the change of venue is granted in this case by the majority ruling on some
ground not authorized by statute. In my opinion section 5014 of the Rev. Laws has no
application to an action for divorce. But, even if such contention were conceded, the section
does not provide an additional ground for a change of venue. The case of Connolly v.
Salsberry, 43 Nev. 182, 183 P. 391, cited by petitioner, is not in point, and the language there
used by the court, which is stressed by petitioner, must be considered with reference to the
point decided.
petitioner, must be considered with reference to the point decided. It is what is decided that is
binding, not what is said.
May 22, 2931.
Per Curiam:
Rehearing denied.
Ducker, J.: I dissent.
____________
53 Nev. 235, 235 (1931) State v. Soares
STATE v. SOARES
No. 2937
March 31, 1931. 296 P. 1081.
1. Criminal Law.
Jury had a right to disbelieve testimony of defendants and accept that of state's witness.
2. Criminal Law.
Where there is substantial evidence to support the verdict of jury, supreme court cannot weigh it.
3. Criminal Law.
Defendant held not entitled to new trial for robbery on ground of newly discovered evidence to effect
that prosecuting witness believed defendant robbed him on spur of moment and that defendant's associate
had nothing to do with robbery.
The newly discovered evidence was an affidavit of prosecuting witness to effect
that, on night of robbery of gasoline service station, affiant knew that defendant's
associate could not see from where automobile was situated what was going on, that
affiant felt and believed that defendant's associate had nothing to do with robbery,
and that robbery was committed on spur of moment by defendant after he got out of
automobile; an affidavit of one Burns to the effect that prosecuting witness stated to
him that defendant's associate was innocent, because the robbery was committed on
the spur of the moment by defendant after he got out of the car; and an affidavit by
one of the jurors to effect that had he known that prosecuting witness believed
defendant's associate to be innocent, and had known that robbery was committed on
spur of moment by defendant and was not preconceived by both defendants, he
would not have voted to convict defendant's associate.
George Soares was convicted of robbery, and he appeals. Affirmed.
William S. Boyle, for Appellant:
If the verdict was contrary to the evidence as far as Brennan, the codefendant, was
concerned, and the trial judge so ruled that it was, it is contrary to the evidence as far as
appellant is concerned, likewise. There was not a scintilla of difference in the evidence, and if
any it favored appellant. There appears to be a gross discrimination under our laws and a
violation of the 14th amendment to the constitution of the United States. Granting a new trial
to Brennan and denying a new trial to Soares was a gross abuse of discretion on the part of
the trial judge. Those in similar circumstances are entitled to due consideration and equal
consideration and protection under the laws. People ex rel. Williams Engineering &
Contracting Co. v. Metz, 85 N.E. 1070, 1072, 193 N.Y. 148, 24 L.R.A. (n.s.) 201; Duncan v.
Missouri, 152 U.S. 377, 382, 14 Sup. Ct. Rep. 570, 38 L. Ed. 485; Philbrook v. Newman
(U.S.), 85 Fed. 139, 143; State v. Cadigan, 50 Atl. 1079, 1081; 57 L.R.A. 666, 87 Am. St.
Rep. 714; Northern Pac. R. Co. v. Carland, 3 Pac. 134, 152; In Re Grice (U.S.), 79 Fed. 627,
645; Connolly v. Union Sewer Pipe Co., 22 Sup. Ct. Rep. 431, 439, 184 U.S. 540, 46 L. Ed.
679; State v. Montgomery, 47 Atl. 165, 168, 80 Am. St. Rep. 386; Ward v. Flood, 48 Cal. 36,
50, 17 Am. Rep. 405; Ho Ah Kow v. Nunan (U.S.), 12 Fed. Cas. 252; Pace v. Alabama, 1
Sup. Ct. Rep., 637, 638, 106 U.S. 583, 27 L. Ed. 207.
The newly discovered evidence favored Brennan, but the pictures that aided the state so
greatly, as showing or portraying a preconceived plan of robbery and a concerted effort on the
part of both defendants, as testified to by the chief witness for the state and so argued by the
district attorney, and thus aided in general in the conviction of both men, could not be used
at all in a subsequent trial, as they became highly prejudicial when the chief witness
stated upon oath after the trial that the robbery alleged was committed on the spur of the
moment, virtually stating that the pictures should not have been used, because they
presented another and untrue state of facts.
general in the conviction of both men, could not be used at all in a subsequent trial, as they
became highly prejudicial when the chief witness stated upon oath after the trial that the
robbery alleged was committed on the spur of the moment, virtually stating that the pictures
should not have been used, because they presented another and untrue state of facts.
Consequently it is fair to presume that with the conflicting testimony a jury would acquit both
men if a new trial were granted.
Gray Mashburn, Attorney-General; Wm. J. Forman, Deputy Attorney-General; Melvin E.
Jepson, District Attorney, and A.P. Johnson, Deputy District Attorney, for the State:
If the verdict was contrary to the evidence as to Brennan, it does not follow as a matter of
course that the verdict should also be contrary to the evidence as to Soares. It appears from
the testimony of Mr. Foster that Soares played an active part in the commission of the offense
and that Brennan remained passive.
The jury heard the testimony. It is apparent from their verdict that they believed the
testimony of Foster and disbelieved that of the defendants. The jury are the sole judges of the
credibility of the witnesses. State v. Clark, 38 Nev. 304.
Conceding, for the sake of argument, that the robbery was committed on the spur of the
moment, and that Brennan was innocent as far as any preconceived notion of the robbery was
concerned, how does that exculpate Soares? The testimony regarding the commission of the
crime by Soares is neither eliminated nor diminished in its effect by reason of the fact, if it is
a fact, that Brennan was ignorant of the intention of Soares to commit a robbery.
What is claimed to be newly discovered evidence is not evidence at all, as far as Soares is
concerned, but merely the opinion of the witness. Opinion evidence is not admissible. State v.
Tideman, 207 N.W. 143; State v. Paiz, 277 P. 966; State v. Grayson, 270 P. 405, 409; State v.
White, 33 La. Annual 1218, 1221.
OPINION
George Soares, alias George Miller, and Dan Brennan were jointly charged by information
with the crime of robbery by means of putting the person robbed in fear, and upon the trial
were both convicted. A motion for a new trial was filed in behalf of both, upon the hearing of
which a new trial was denied Soares and granted as to Brennan.
From the order denying Soares a new trial, and the judgment, an appeal has been taken.
It is insisted that the court erred in denying the motion, for two reasons: (1) Because the
verdict is contrary to the evidence, and (2) upon the ground of newly discovered evidence.
The defendant drove up to a service station in Reno between 6:30 and 6:40 p.m. on
September 27, 1930, and Brennan, the owner of the car, ordered three gallons of gasoline.
Howard Foster, who was in charge of the service station at the time, testified, in substance,
that Soares got out of the car and handed him in payment of the gasoline a $1 bill; that he
went to the cash register, got the change, and handed it to Soares, who had his right hand in
his coat pocket in a menacing position and said to Foster, Open her up, referring to the cash
register; that he opened up the cash register, and just at that moment the headlights of a car
which was driving up flashed upon them; that Soares grabbed a $5 bill, got into Brennan's
car, and they drove off hurriedly. The defendants admitted buying the gasoline, but gave an
entirely different version of the money transaction.
Foster also testified that the occupant of the car which drove up merely inquired for a
certain street, and drove off; that he made no statement to the occupant of the car of having
been robbed, but immediately telephoned police headquarters of the robbery.
The defendants had been in Reno about a month and had no employment. They had known
each other for a couple of years and had worked in several "clubs" in Salt Lake City for a
time.
a couple of years and had worked in several clubs in Salt Lake City for a time. After they
left the service station they first visited a gambling resort in Reno, and later drove to Sparks,
about three miles distant, where they were arrested and taken back to Reno, and were later
formally charged with the crime.
1, 2. It is very evident that the jury disbelieved the testimony of the defendants and
accepted that of Foster. This they had a perfect right to do. No doubt the jury correctly
estimated the type of men the defendants were and took into consideration the fact that their
liberty was in jeopardy. We have read the testimony carefully. The testimony of Foster, who
had held positions with responsible concerns in Reno from time to time, was straightforward
and bears the earmarks which justified the jury in accepting it. We have often pointed out that
in a criminal case where there is substantial evidence to support the verdict of the jury this
court cannot weigh it. State v. Watts, 52 Nev. 453, 290 P. 732; State v. Ryan, 12 Nev. 403, 28
Am. Rep. 802; State v. McGinnis, 6 Nev. 109.
We are now brought to a consideration of the contention that the trial court erred in denying
Soares a new trial since newly discovered evidence justified such new trial.
3. The so-called newly discovered evidence is an affidavit of Howard Foster, the
prosecuting witness, and two other affidavits which will later be mentioned. Omitting the
preliminary portion of Foster's affidavit, it reads:
* * * That on the night of the robbery affiant knows that Brennan could not see from
where the car was situated what was going on and affiant feels and believes that Brennan had
nothing to do with the robbery; affiant further believes that the robbery was committed on the
spur of the moment by Soares, after he got out of the car.
It will be seen from a reading of this statement that Foster stated nothing in his affidavit
but what he feels and believes, except that Brennan could not on the night of the
robbery" see what was going on.
night of the robbery see what was going on. This affidavit is based on the proposition that a
robbery was committed, and aside from that it is a statement of mere conclusions, which
could not have been properly testified to upon the trial, hence could not be evidence newly
discovered or at all. The affiant concedes, however, that there was a robbery. If this be true,
and if upon any theory Brennan was not guilty, there was none who could have been guilty
but Soares.
The affidavit of Burns is merely to the effect that Foster stated: Brennan is innocent, Mr.
Burns, because the robbery was committed on the spur of the moment by Soares after he got
out of the car and it looked to me like Soares was going to pull a trick on me but finding out
that he could not get away with it he made a quick grab for the register. This affidavit,
presented and relied upon by Soares, certainly fastens the crime upon this appellant, by his
own showing.
The other affidavit is by one of the jurors who sat in the case, in which he stated that had
he known that Howard Foster, the chief witness for the prosecution in the above-entitled
case, believed Brennan to be innocent, and had affiant known that the robbery was committed
on the spur of the moment by Soares after he stepped out of the car, and was not preconceived
by both defendants, we would not have voted to convict Dan Brennan.
This affidavit does not aid Soares. That part about Foster's belief in the innocence of
Brennan is not competent to be considered, and it is nowhere stated that the juror would not
have voted for the conviction of Soares.
A significant thing about this case is that though Brennan testified upon the trial that from
where he was at the moment of the alleged holdup he was in full view of the interior of the
service station in question and the general vicinity of the cash register, yet on his motion for a
new trial he impeached that testimony by presenting the affidavit of Foster, wherein he stated
that on the night of the robbery affiant knows that Brennan could not see from where the car
was standing what was going on" at the time the robbery was committed.
was going on at the time the robbery was committed.
We have carefully read the very elaborate briefs filed in behalf of appellant; but since the
affidavits filed fail to show any competent new evidence available, we do not think it
necessary to dwell upon the propositions discussed.
In our opinion no injustice has been done the appellant.
The court did not err in denying the motion for a new trial. The order and judgment are
affirmed.
____________
53 Nev. 241, 241 (1931) Bengoa Et Al. v. Reinhart
BENGOA Et Al. v. REINHART
In Re BENGOA'S ESTATE
No. 2918
April 4, 1931. 297 P. 507.
Evidence of copartnership between deceased and another was not necessary at hearing on
administrator's final account, in view of previous finding by trial judge that there was such copartnership
existing.
2. Partnership.
Existence of copartnership between deceased and another held sufficiently established at hearing on
administrator's final account.
Although evidence was not introduced at hearing on final account showing
partnership, the trial judge had previously found that there was an existing
partnership between deceased and another, and petition filed by objectors asking
probate court to order accounting of partnership, referred to by trial court in its
decision, was conclusive that objectors knew of existence of partnership; various
opinions appearing in the probate record indicate that there were three or four
lawsuits tried in the district court, in which there was at least some element bearing
upon the question of partnership; and in the case of Yturriaga v. Cobeaga, 47 Nev.
61, the supreme court found, at least by implication, and recognized the existence of
such partnership.
3. Partnership.
Death of partner dissolves firm unless otherwise specifically agreed in articles of copartnership.
4. Partnership.
Community of interest may subsist for some purposes after death of a partner long enough to enable
the survivor to wind up and settle partnership affairs.
5. Partnership.
Representatives of deceased partner have the right to have the firm affairs liquidated within a reasonable
time and to compel the surviving partner to account therefor. (N.C.L. 1929, secs. 9765, 9768.)
6. Partnership.
Surviving partner had duty of winding up affairs of partnership existing between himself and deceased
partner at as early a date as possible. (N.C.L. 1929, secs. 9765, 9768.)
Finding of probate judge that there was no undue or unreasonable delay on the part of administrator of
estate of deceased partner in demanding an accounting from surviving partner should not be disturbed.
8. Partnership.
Administrator of estate of deceased partner having accepted partnership accounting, it was then a matter
for the heirs or parties interested, it they thought there was unfairness or fraud in the partnership
accounting, to pursue or follow the matter through a court of equity.
Administrator of estate of deceased partner held not chargeable, under circumstances, with appraised
value of estate because of delay in attempting to settle partnership affairs.
Although partnership accounting was not filed until some eight years after the
appointment of the administrator, testimony was introduced that the copartnership
was insolvent soon after appointment of administrator; that half of the partnership
sheep were lost two years after his appointment, and that many actions of law had
been instituted against the copartnership, in some of which the administrator had
been joined as party defendant.
Appeal from Sixth Judicial District Court, Humboldt County; E.P. Carville, Judge
presiding.
Final accounting by Moses Reinhart, administrator of the estate of Domingo Bengoa,
deceased, wherein Francisco Bengoa de Arrieta, surviving widow of Domingo Bengoa,
deceased, and others filed objections. Order settling the account and discharging the
administrator and denying a motion for new trial, and the objectors appeal. Affirmed.
Thomas A. Brandon and N.J. Barry, for Appellants:
The administrator having alleged that there was a partnership, the burden was certainly
upon him to prove such to be the case.
such to be the case. There was not one word of evidence introduced at the hearing on this
final account to prove such partnership.
If we were to concede that there was a partnership, it was the duty of the administrator to
settle the same without unnecessary delay. Under sec. 6025, Rev. Laws of Nevada, the
administrator was endowed with ample power to have settled up the partnership if there ever
was one. He let the matter slumber along from January, 1919, until May, 1930, and never
made an effort anywhere to settle up the estate appraised in excess of $94,000. He had the
power to have called in Cobeaga, if he were a partner, by attachment, if necessary, or by suit,
and compelled a sale and a settlement of the partnership affairs.
In the case at bar the administrator is chargeable with the property shown in the inventory
whether it came into his possession or should have come into his possession, unless he can
show it was lost through no fault of his. Rev. Laws, sec. 6035; Estate of Sandorson, 74 Cal.
199, 15 P. 753; In Re Loheide, 17 Cal. App. 475, 120 P. 56. The foregoing cases establish the
rule that an administrator is liable for uncollected debts of the estate unless he was without
fault. It seems to us that the rule should be the same as to taking possession of any partnership
property. In the present case, with full power at law to compel a settlement of the partnership
affairs, the administrator let the estate drag for eight years, and the contention is now made
that he is not liable in any sense. See, also, Woerner's American Law of Administration, vol.
II, secs. 306, 310 and 324; Estate of Roach, 92 P. 118; Estate of Kennedy, 120 Cal. 461, 52 P.
820.
The rule as to the measure of care and diligence required of executors and administrators is
laid down in 11 R.C.L. sec. 140, p. 153, and it is defined to be that which an ordinary prudent
man would exercise under like circumstances in his own affairs. What ordinary prudent man
would sit down for eight years and let property become wasted? See, also, 11 R.C.L.
sec. 141; Traver v. Torrence, 12 Am. St. Rep. 311.
An administrator is liable for failure to collect assets. 23 C.J. 1203, sec. 461; Tuttle v.
Robinson, 33 N.H. 104.
The laws of the State of Nevada require certain things of an administrator. (Rev. Laws,
secs. 6021, 6025). It being the duty of the administrator to take possession of the property,
and the means for getting possession being provided, he is clearly negligent for not doing so.
Estate of Millonovich, 5 Nev. 151; McNabb v. Migam, 7 Nev. 830; Estate of Delaney, 41
Nev. 384.
The appraised value of the property was $94,750, total claims presented $74,101.17, leaving a
balance of $20,648.83 for which no account is made. It seems to us that this is a violation of
very intent of the law.
J.W. Dignan, for Respondent:
The petition for letters of administration sets forth the facts of the existence of a
partnership existing between deceased and Cobeaga; the inventory likewise inventories the
property as that of a partnership; this account was heard and settled by the court and a finding
made of the existence of a partnership; and upon the hearing of the second account, which
was designated a final account, and which appears in the record, the trial court made a
specific finding of the existence of such a partnership. The record before this court thus
shows that the question of the existence of the partnership, being contested upon the former
trials and hearings, was foreclosed by the decision of the trial court, and that there was not
only proof, but conclusive proof, of the existence of the partnership at the time of the hearing
and trial of the account now before this court.
Appellant says that it is the duty of the administrator to settle up estate matters without
unnecessary delay. As an abstract proposition of law this is correct. But what is there in this
record that shows that this was not done? This record fails to show any facts in evidence or in
the proceedings upon the settlement of the administrator's first account, set forth in this
record, wherein it appears that these very questions were not necessarily before the trial
court and were finally settled and determined in favor of the administrator and no appeal
taken from the decision of the trial court.
necessarily before the trial court and were finally settled and determined in favor of the
administrator and no appeal taken from the decision of the trial court. The first account, in
detail, accounts for all of the property shown by the inventory, and this account was settled,
and the judgment settling the same became final, so that all of the questions sought to be here
raised by counsel were disposed of and foreclosed.
The law is too well settled to question that whatever is settled in one account is finally
disposed of and cannot be considered by the court in settling a subsequent account, except in
the case of a fraud or mistake. Upon the settlement of the first account all of the questions
attempted to be raised on this appeal were finally, conclusively and forever determined, and
any attempt to again raise them upon the hearing of the account now in question is not
warranted by the record before this court and is against the law.
OPINION
This is an appeal from the district court of the sixth judicial district court, in and for
Humboldt County, of an order settling the final account of the administrator, with the will
annexed, of said estate, and denying a motion for a new trial.
Domingo Bengoa died in Humboldt County, Nevada, on October 21, 1918, and at the time
of his death was a resident of said county and left estate therein. Deceased left a last will and
testament nominating one Miguel Cobeaga as executor thereof, but the said Miguel Cobeaga
filed his renunciation and nominated Moses Reinhart, who was, upon said nomination and the
further nomination of the surviving widow, upon the 22d day of January, 1919, appointed
administrator of said estate, with the will annexed. Thereafter, and on or about the 19th of
February, 1919, the administrator, together with the appraisers previously appointed, filed
an inventory and appraisement of said estate, which said inventory and appraisement
showed a total value of real and personal property of $94,750.
with the appraisers previously appointed, filed an inventory and appraisement of said estate,
which said inventory and appraisement showed a total value of real and personal property of
$94,750. The inventory and appraisement further disclosed that the estate had an undivided
one-half interest in said appraised property, subject to the debts of a copartnership existing
between Bengoa and Cobeago; that the bulk of the estate consisted of (item No. 3) 9,000 head
of sheep, of which 6,500 head were ewes and 2,500 head were lambs, amounting to the sum
of $76,500; real property situated in the city of Winnemucca of the value of $7,500; 50 head
of range cattle, $1,750; 14 head of horses and mules, $350; 3 old automobiles, $1,500;
household goods and personal property, $150; 15 shares of the capital stock of the
Winnemucca State Bank & Trust Company, $1,500; 300 tons of hay, $6,000; and certain
interests in promissory notes, and a claim in an estate of one John Saval, deceased, all subject
to the debts of the copartnership of Bengoa and Cobeaga, of which the petition for letters of
administration mentions a part of said indebtedness to be approximately in the sum of
$65,000, not including current bills.
From the record before us, nothing transpired in the administration of this estate from the
date of filing the appraisement until the first account of the administrator was filed under
order of court on or about the 18th of March, 1927. To this report and account the heirs of the
decedent apparently filed their objections.
This, the first account and report of the administrator, contained, among other things, a
summary of the administration and contained statements among which were the following:
That, at the time of the death of the deceased, there was a copartnership existing between the
deceased and Miguel Cobeaga; that the said surviving partner, since the death of the
deceased, has, and at the time of the rendering of the account had, in his possession and under
his control all of the partnership property; that certain claims had been filed against the estate
which had been paid by Miguel Cobeaga, as surviving partner; that on April 1, 1919, an
order had been made setting aside certain exempt property to the widow of the deceased
and allowing the widow $100 a month, and that these payments had been made by the
surviving partner out of the partnership funds.
Cobeaga, as surviving partner; that on April 1, 1919, an order had been made setting aside
certain exempt property to the widow of the deceased and allowing the widow $100 a month,
and that these payments had been made by the surviving partner out of the partnership funds.
We assume from the record that the court had ordered an accounting to be made by the
surviving partner, and at the time of the filing of the first account the same had not yet been
completed, but was completed and filed before hearing was had upon the first account. On
December 10, 1927, the probate judge rendered its opinion and decision, in which it is related
that the objections that had been made to the account recite in part that the account was not
complete; that the administrator never demanded an accounting from the surviving partner for
a period of over eight years; that the expenditures made by the surviving partner were illegal;
that the partnership business was not conducted in good faith; that certain notes were given
illegally and without authority; that illegal sales were made of the partnership property; and
that there were certain illegal claims paid.
The trial court found: That while it appears to the Court the length of time allowed to
elapse by the administrator before taking an accounting from the surviving partner might be
unreasonable, yet the Court does not feel that it can so find when considering this issue in
connection with this particular hearing, and Upon the evidence given thus far, the Court
could not say but that it might have taken this length of time to settle the partnership affairs.
As to the account of the administrator, there would seem to be no reason why it should not
be allowed, approved and confirmed, excepting in so far as it makes the Cobeaga account
(should be accounting), a part of it. The court further found and pointed out in its decision
the right of the heirs to attack the Cobeaga partnership accounting; that the administrator was
evidently satisfied with the accounting, and had accepted the same, and that it was the right of
the heirs to take such action as they deemed necessary to challenge said accounting in a
court of equitybut not in the probate proceedings.
of the heirs to take such action as they deemed necessary to challenge said accounting in a
court of equitybut not in the probate proceedings.
Thereafter a purported final account was filed by the administrator on the 15th of
December, 1928, and set forth that there had been an accounting of the partnership assets
made by Miguel Cobeaga, the surviving partner, which said account showed the partnership
to be insolvent, and that there were no moneys or property in his control or possession in
which this estate had any interest. Further, that the legal title to certain lots in the city of
Winnemucca stood of record in the name of the deceased, but that the same had been sold
under execution upon judgments obtained against the partnership; that all of the money,
property, and assets of the partnership have been subjected to payments of claims, demands,
and judgments against the partnership, including the sale of and interest of the partnership in
the real property described in the inventory, leaving only as assets of the said estate the
interest of said deceased and the said estate in certain real property. The account further
showed that the administrator had incurred and paid in part, and had become personally liable
for the sum of $4,710, most of which was for attorneys' fees paid to various parties in
connection with services rendered to the estate; that there were no assets remaining other than
the interest as related in the real estate above mentioned, and the administrator prayed for an
order of sale of said real estate. This account was objected to by the heirs.
The trial court rendered its decision on September 3, 1929, upon the account and the
objections to the petition for order of sale. The trial court found that there was at the time of
the death of the deceased a partnership existing between Bengoa and Miguel Cobeaga, and in
so finding did not consider the testimony of the administrator or Cobeaga as being admissible
to prove the same, but pointed out that the objections and petition, filed January 9, 1927, of
Mrs. de Arrieta had recognized the existence of a partnership, and upon her motion the court
had ordered an accounting from the surviving partner.
court had ordered an accounting from the surviving partner. The court refused to pass upon
the question of the administrator's liability, but again set forth the reasons that, if the heirs of
the deceased were not satisfied with the accounting as made, they had their remedy, and, in
order to give them opportunity to avail themselves of the opportunity, refused to consider the
report of the administrator as a final account, and refused to approve the same, and refused a
sale as prayed for by the administrator.
Thereafter the administrator's third account, treated as a final account by the district judge,
was filed on the 29th of November, 1929, and set forth practically the same facts as were set
forth in the second account; namely, that there had been no funds or property come into the
possession or under the control of the administrator by reason of the fact that all of the
property of which the deceased died possessed of was partnership property, and that the same
had remained under the control and disposition of the surviving partner; that the surviving
partner had made an accounting to the administrator under order of the court, and that the
accounting showed the partnership to be wholly insolvent, and that the surviving partner,
Cobeaga, had no money or property in his possession or under his control, or any assets
belonging to the estate; that all of the property and assets of the partnership had been
subjected to the payment of claims, demands, and judgments against the partnership,
including the sale under executions and judgments of all of the interests of the partnership in
all of the real property described in the inventory.
There was set out against the expenses which the administrator had paid in part and had
become personally liable for, consisting mostly of attorneys' fees in the sum of $4,710; and
that there were no assets or property belonging to the estate, and the prayer was that the
account be settled and allowed and that the administrator be discharged.
On the 19th of December, 1929, Francisco Bengoa de Arrieta, surviving widow of
Domingo Bengoa, deceased, Thomas A.
de Arrieta, surviving widow of Domingo Bengoa, deceased, Thomas A. Brandon, as guardian
ad litem of Josephine Bengoa and Emilia Bengoa, and John de Arrieta, as guardian of the
estate of Domingo Bengoa de Arrieta and Joseph Bengoa de Arrieta, minors, duly filed their
objections in writing to the third (afterwards designated final) account of said administrator,
and their objection to the registration and discharge of Moses Reinhart, administrator, with
the will annexed. The matter was by the court heard on the 8th of May, 1930, and on May 9,
1930, the presiding judge of said district court entered its order settling said account,
designating the same as a final account, and discharging the administrator. In due course of
time the objectors filed a notice of intention to move for a new trial, which was, on the 26th
of June, 1930, by the court denied, and from said order the objectors have appealed.
The appellants contend: First, that there was no evidence introduced to prove a partnership
between Domingo Bengoa and Miguel Cobeaga; second, that if there was a partnership it was
the duty of the administrator to settle or compel a settlement of the same without unnecessary
delay; and, third, that the administrator of the estate was chargeable with the appraised value
thereof.
1, 2. First. The appellant contends that there was no evidence introduced at the hearing of
the final report showing a partnership. It was not necessary to introduce such evidence at this
hearing. The trial judge had long since found that there was an existing partnership between
Bengoa and Cobeaga. The petition filed by the objectors asking the probate court to have an
accounting of the partnership, and referred to by the trial court in its decision, is conclusive
that the appellants here knew of the existence of a partnership. From the various opinions that
we have quoted, and that are in the record of the probate judge, we are lead to believe that
there were three or four lawsuits tried in the district court of the sixth judicial district, in
Humboldt County, in which there was at least some element bearing upon the question of
partnership.
there was at least some element bearing upon the question of partnership. In the case of
Yturriaga v. Cobeaga, 47 Nev. 61, 214 P. 27, this court found, at least by implication, and
recognized the existence of a partnership between Bengoa and Cobeaga, when it affirmed the
findings and judgment of the trial court in an action upon a promissory note for services
rendered to Cobeaga as the surviving partner in closing up the partnership business. We
believe that there can be no question as to the existence of a copartnership between Bengoa
and Cobeaga.
Second. As to the duty of the administrator to settle said partnership without unnecessary
delay.
Third. That the administrator is chargeable and liable with the appraised value of the
property. Our statutes provide:
Section 9768. When there was a partnership existing between the testator or intestate at
the time of his death and any other person, the surviving partner shall have the right to
continue in possession of the effects of the partnership, and to settle its business, but the
interest of the deceased shall be included in the inventory, and appraised as other property.
The surviving partner shall proceed to settle the affairs to the partnership without delay, and
shall account to the executor or administrator, and pay over such balance as may from time to
time be payable to him in right of his testator or intestate. Upon the application of the
executor or administrator the district judge may, whenever it may appear necessary, order the
surviving partner to render an account, and in case of neglect or refusal may, after notice,
compel it by attachment; and the executor or administrator may maintain against him any
action which the deceased could have maintained.
Section 9765. Actions for the recovery of any property, real or personal, or for the
possession thereof, or to quiet title thereto, or to determine any adverse claim thereon, and all
actions founded upon contracts, may be maintained by and against executors and
administrators in all cases in which the same might have been maintained by or against their
respective testators or intestates."
maintained by or against their respective testators or intestates.
3, 4. It must be conceded that upon the death of a partner the firm is dissolved unless
specifically agreed in the articles of copartnership, and, yet, the community of interest may
subsist for some purposes long enough to enable the survivor to wind up and settle the affairs
of the partnership.
The surviving partner not only has the right but it is his duty to liquidate the affairs of the
firm. The right to liquidate is exclusive and the duty must be performed expeditiously or with
reasonable diligence within a reasonable time, or without unnecessary delay and honest.
Although the survivor is vested with some discretion as to how he shall proceed, it is the duty
of the administrator of the deceased partner's estate to bring the matter to the court's attention
if the surviving partner unnecessarily delays the settlement of the firm's affairs. In Re
Grivel's Estate, 199 Cal. 351, 249 P. 184; 23 C.J. 1147.
5. The right of representatives of deceased partner is to have the firm affairs liquidated
within a reasonable time and to compel the surviving partner to account therefor.
The right of the surviving partner to wind up the firm affairs carries with it the right to
continue the partnership business for such limited time and to such limited extent as is
necessary in order to wind up the affairs of the firm properly and without unnecessary loss.
47 C.J. 1066, par. 650; Bancroft's Probate Practice, vol. 3, sec. 1008; In Re Auerbach's Estate,
23 Utah, 529, 65 P. 488.
6. We think the authorities are all in accord that, under a statute similar to ours, the court
has power to compel an accounting, and it was the duty of the surviving partner to wind up
the affairs of the partnership existing between Bengoa and Cobeaga at as early a date as
possible. In the case of Yturriaga v. Cobeaga, 47 Nev. 61, 214 P. 27, 29, this court had the
following to say concerning this matter: At the time of the death of Bengoa, the partnership
was indebted to the extent of many thousands of dollars, and while it was the duty of the
surviving partner to close up the business of the partnership without delay, what
constitutes delay is a question of fact in a particular case.
extent of many thousands of dollars, and while it was the duty of the surviving partner to
close up the business of the partnership without delay, what constitutes delay is a question of
fact in a particular case. A surviving partner is allowed some latitude in the exercise of his
discretion in such matters. As was said by the supreme court of Kansas in Big Four Imp. Co.
v. Keyser, 99 Kan. 8, 161 P. 592, L.R.A. 1917c 166: The surviving partner is vested with
some discretion as to the manner of closing the business and the time to be taken for that
purpose. He may continue the business long enough to close it up without sacrificing the
assets and long enough to make an advantageous disposition of the stock.' If the defendant
has unduly delayed closing the partnership, the administrator of Bengoa, who was also
president of the bank which was the main creditor of the partnership, could have taken steps
to compel a speedy closing up thereof. There is no suggestion of delay on the part of the
surviving partnership in closing up the affairs of the partnership by any one.
There may be extenuating circumstances that we know nothing of. The record before us, as
admitted, does not contain any of the records of the proceedings had in the partnership
accounting of Bengoa and Cobeaga.
The probate judge is presumed to have had before him all of the facts and circumstances
connected with the entire administration proceeding. He correctly pointed out in his decision
upon the objections to the first account of the administrator the right of the parties interested
to except to said accounting and to go thoroughly into the matter is an equitable proceeding
separate from the administration proceeding.
As above pointed out, the trial court was satisfied that no unreasonable delay had occurred
on the part of the administrator in demanding an accounting from the surviving partner. He
was in possession of all the facts and circumstances. No one interested had in the eight years
previous made any intimation of delay, so far as the record shows.
7. We are of the opinion that the matter in its entirety being before the probate judge, and
he having exercised his discretionary power, after hearing all the evidence, in refusing to
find any undue or unreasonable delay, his finding should be undisturbed.
exercised his discretionary power, after hearing all the evidence, in refusing to find any undue
or unreasonable delay, his finding should be undisturbed.
8. Third. Is the administrator chargeable and liable with the appraised value? The trial
court's viewpoint was that, the administrator having accepted the partnership accounting,
which under the law he had a right to do, it was then a matter of the heirs or parties interested
who thought there was unfairness or fraud in the partnership accounting to pursue or follow
the matter through a court of equity. The trial court was correct.
The trial court, in its decision of August 30, 1929, upon the hearing of a purported final
account filed December 15, 1928, again pointed out to the parties their right to pursue the
matter of the partnership accounting in an equitable proceeding, and refused to entertain the
report of the administrator as a final report until such time as the partnership accounting had
been settled by the court.
So far as we are able to discover in the record before us, neither the heirs nor any other
party interested have seen fit to have the partnership accounting set aside, nor have they
disputed the same before the trial court in a proper action, although frequently told they might
do so by the judge sitting in probate.
The appellants state in their brief: We are not asking for an account of the partnership * *
* but we ask this Court to determine incidentally whether or not in fact there was a
partnership, and if there was, as Reinhart has taken no steps to settle with the surviving
partner or secure possession of the property, we hold that he should be personally liable for
what reasonably could have been obtained for the partnership property had he made an
attempt to settle it.
True, the inventory and appraisement fixes a value of the estate of some $94,750, but it
also relates that the entire property is partnership property, subject to an indebtedness of some
$65,000, not including current bills.
Mr. Reinhart testified, on the hearing of the third account, that the copartnership was
insolvent as early as 1919, or soon after his appointment as administrator.
He also testified that half of the sheep were lost in 1921; further, that many actions of law had
been instituted against the copartnership, and in some he had been joined party defendant as
administrator. None of this testimony was disputed, nor was any testimony offered in support
of any of the objections of the heirs.
It is a matter of common knowledge that the sheep industry was in a hazardous condition
throughout the entire country during the early years following the World War, and that it has
not yet fully recovered and is still in a very precarious condition.
Under such circumstances, can it be said that the administrator did not exercise due care,
or that he should be charged with the appraised value of an estate not any of which ever came
into his possession?
An administrator is not liable for losses when he acts in good faith and exercises ordinary
prudence. In Re Pedroli's Estate, 47 Nev. 322, 221 P. 244.
9. We are not prepared to say that the administrator, under the facts and circumstances
before us in the record, is at this time chargeable with the appraised value of this estate. The
administrator reported to the court and gave evidence that the partnership was insolvent as
early as 1919, or shortly after he was appointed. Under the order of the court the surviving
partner filed his accounting. It was the right and duty of the heirs, if they were not satisfied
with this accounting, and as was pointed out by the trial court, to take exceptions to the same
and to pursue their remedy further in a court of equity.
No evidence was offered so far as is in the record before us upon the part of the heirs or
any other person challenging or denying the testimony of the administrator as to the
insolvency of the copartnership.
From that part of the reported testimony of Mr. Reinhart, given at the hearing of the third
account, it would appear that the court had considerable evidence before it, both upon direct
and cross examination, as to the status of the copartnership between Bengoa and Cobeaga at
the beginning of the administration, and there is some enlightenment as to the insolvency of
the copartnership and what became of the estate.
and what became of the estate. Transcript, page 27.
Q. Well, Mr. Reinhart, did you ever tell him (Cobeaga) that you wanted him to sell? A. I
do not know whether I did or not.
Q. You mean by that A. I can't recall that, but I don't think there ever was a time that it
would have been good policy to sell.
Q. Well, why not? A. Well, the thing wasn't solvent, that is why.
Q. Not in 1919? A. I do not know whether it was or not. I don't remember any time that it
was.
Q. And isn't it true, Mr. Reinhart, that if the property had been sold in 1919 that it would
have paid all the debts and left money besides for the price sheep were then bringing? A. I do
not know whether it would or not.
Cross-examination:
Mr. Reinhart, isn't it true that right after 1919, the winter of 1920, that bunch of sheep got
caught on the desert and lost about half of them? (On cross-examination the year was
changed to 1921.) A. I think it is true.
Q. And that following, or about the same time, the United States Government assessed
you for income tax one hundred five thousand, no eighty odd thousand, and following that up,
in 1921 the prices of sheep, in 21 and 22 went down to practically nothing, didn't they? A.
Yes.
Q. And any of those years if they had sold them off they wouldn't paid ten cents on the
dollar, the obligations, would they? A. I do not know that. They wouldn't paid twenty-five
cents anyway.
The income tax controversy, according to the testimony, was not concluded until some
time in 1925, then afterwards a gentleman named Scott sued the partnership for some
seventeen or eighteen thousand dollars, and this was not concluded for a couple of years.
Several other suits were brought against the partnership and the administrator was made a
party defendant.
Under our Revised Laws of 1912, secs. 5963, 5964, 5967, 6041 (Nevada Compiled Laws
1929, secs. 9706, 9707, 9710, 97S4), the duties of the administrator of an estate are
clearly set forth, and, as was said by this court in Re Delaney's Estate, 41 Nev. 3S4
9707, 9710, 9784), the duties of the administrator of an estate are clearly set forth, and, as
was said by this court in Re Delaney's Estate, 41 Nev. 384, 171 P. 383, L.R.A. 1918d, 1022,
expedient administration is required.
Every executor and administrator shall be chargeable in his account with the whole of the
estate of the deceased which should come to his possession at the value of the appraisement
contained in the inventory, except as hereinafter provided, and with all the interest, profit and
income of the estate. Section 9778, 1929 Compiled Laws.
He shall not make profit by the increase nor suffer loss by the decrease or destruction of
any part of the estate without his fault. He shall account for the excess when he shall sell any
part of the estate for more than the appraisement, and if any be sold for less than the
appraisement he shall not be responsible for the loss if the sale has been justly made. Section
9779, 1929, Compiled Laws.
At the conclusion of the hearing of the objections to the third account, the trial court,
among other things, said: This matter has been going on three or four years before me. I had
many hearings. The administrator seems to be satisfied with this accounting as filed by the
surviving partner, and the heirs seem not inclined to take any action to test whether the
account is proper or not, and the Court cannot see that any advantage is being gained by
carrying this on from time to time and hearing accounts when there is no money coming into
the hands of the administrator.
The administration of an estate of a deceased person is a sacred trust, and one imposing
upon the party appointed by the court grave and responsible duties, especially when the rights
of minor heirs and surviving widows are at stake. But in this case we feel that they were ably
represented by counsel, and at no time during the eight years did they raise their voice or ask
the court to compel an accountinguntil 1927then when the accounting had been made
and filed they made no effort (even though importuned by the probate judge to do so) to take
any exceptions to the same or pursue the same further by testing its validity or
truthfulness in an equitable proceeding.
to take any exceptions to the same or pursue the same further by testing its validity or
truthfulness in an equitable proceeding.
There is nothing in the record before us to substantiate the position of the objectors or
appellants.
In many cases cited us by the objectors in their brief, we do not find any of them analogous
to the situation here. We are in strict accordance and sympathy with the long line of decisions
in our own state with reference to the duties, responsibilities, and trust reposed in
administrators of estates of deceased persons. In the matter now before us, there is no
evidence of any neglect of duty upon the part of the administrator Reinhart. Can it be said that
his failure to file a written account and report over a period of eight years from and after the
date of his appointment is sufficient of itself to fasten upon the administrator the charge of
fraud or to make him accountable for the difference in the inventoried value of the estate, less
the indebtedness listed at the time of his appointment and in the inventory, when his
explanation for delay and the insolvency of the estate are not refuted by any evidence? We
think not. So far as the record before us is concerned, the estate was insolvent shortly after his
appointment as administrator. If the objectors have offered any proof or testimony to the
contrary, it is not before us. Under all of the circumstances, as we review the proceedings, the
testimony and the record, the order allowing and approving the account and report, and
discharging the administrator, as made and entered in the lower court, should be affirmed.
It is so ordered.
Ducker, J., being unable to participate because of illness, the Governor designated Hon.
Clark J. Guild, Judge of the First Judicial District Court, to sit in his place and stead.
____________
53 Nev. 259, 259 (1931) Gerlach Live Stock Co. v. Laxalt
GERLACH LIVE STOCK CO. Et Al. v. LAXALT
No. 2792
April 27, 1931. 298 P. 413.
Power of appellate court to modify judgment upon the hearing of an appeal is statutory (Rev. Laws,
sec. 5359).
Plaintiffs, though having filed with lower court a statement of their acceptance of judgment as
modified on appeal, held not precluded, on rehearing granted on petition of both parties, from contending
that judgment should be affirmed in its entirety.
3. Trespass.
Where trespass was committed willfully, wantonly, or maliciously, exemplary damages may be
recovered.
4. Animals.
Where defendant at all times knew where his sheep were being herded, he must be deemed to have
ratified the acts of his servants in trespassing on plaintiff's land.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
On rehearing granted on the petition of both parties. Former judgment affirmed.
(Ducker, J., dissenting.)
For former opinion, see 52 Nev. 191, 284 p. 310.
William M. Kearney and Sidney W. Robinson, for Appellant:
We feel, after an examination of the authorities, that the case as it stands in affirming the
award of exemplary damages without any actual or compensatory damages is against the
weight of authority. Western Union Telegraph Co. v. Garrett, 158 P. 619; Friedly v. Giddings,
119 Fed. 438; Graham v. Fulford, 73 Ill., 596; Cole v. Gray, 79 P. 654; Western Union
Telegraph Co. v. Lausen, 76 P. 283; Gannsly v. Perkins, 30 Mich. 492; Hoagland v. Forest
Park Highland Amusement Co., 70 S.W. 878; Adams v. St. Louis Railway Co., 130 S.W. 48;
Gerard v. Moore, 26 S.W. 945; Maxwell v. Kennedy, 7 N.W. 657; Ramey v. Western Union
Telegraph Co., 146 P. 421; Schippel v. Norton, 16 P. 804.
It having been determined, therefore, that there were no actual damages and that no actual
damages are recovered, it would seem to naturally follow that the exemplary damages
should fall as a result.
are recovered, it would seem to naturally follow that the exemplary damages should fall as a
result.
The court in its opinion quotes from 3 C.J. 149, to the effect that exemplary damages may
be recovered in addition to actual damage when the trespass is within the knowledge of the
owner and is committed willfully, wantonly and maliciously. The cases cited in the text in
support of the rule quoted, in paragraph 473 under the heading of exemplary damages, do not,
in our opinion, cover the situation here.
On the question of the wantonness, willfulness and maliciousness, the testimony shows
that the defendant was unaware of the situation and that neither of the plaintiffs were
subjected to insult or oppression in the sense that exemplary damages are recoverable for a
trespass upon realty; the general rule being that vindictive or exemplary damages will not be
given where the injury complained of is connected with real property, it being held that more
than a mere conscious disregard of the rights of others is necessary. Wilkingson v. Searcy, 76
Ala. 176.
Respondents have waived any further right to be heard in the supreme court, for the reason
that they have accepted the decision of the supreme court and filed with the clerk of the
district court, within the fifteen-day period specified, an acceptance of the judgment as
modified by the supreme court.
John S. Sinai, for Respondents:
It is apparent that this court in its majority opinion predicated the same upon a statement
made by the lower court in its written decision, from which this court came to the conclusion
that the lower court relied solely upon the special damage element in the case in basing its
judgment of $1,800 as actual damages. We again emphasize that the lower court particularly
had in mind the evidence of a general damage nature in its decision. We know as a matter of
law that the decision of the lower court was and is no part of the record on appeal. 2 R.C.L.
129; Werner v. Babcock, 34 Nev. 42, 116 P. 357.
The findings of fact signed by the judge of the trial court contain no reference whatsoever
to the special damage evidence, namely, the value of the hay, as a basis for the judgment of
$1,800 actual damages allowed by the lower court. The decision of the court is not a finding,
and the findings of fact supersede the decision.
The lower court no doubt had in mind other testimony of a general damage nature, and so
stated in its decision.
Inasmuch as there is plenty of evidence of a general damage nature to support the finding
of the lower court in the matter of actual damages, we submit that, even if the court did render
his decision on the basis of hay used, a correct judgment based upon erroneous reasoning
should not be reversed. Scott v. Haines, 4 Nev. 426; Thomas v. Sullivan, 13 Nev. 242; Jensen
v. Pradere, 39 Nev. 466.
The very cases cited by counsel support our contention that no actual damages need be
actually found in order that exemplary damages may be awarded, if the cause of action for
actual damages is found. See, particularly, McConathy v. Deck, 83 P. 135. This supreme
court in its opinion did not find that the plaintiff had no cause of action for actual damages,
but simply that the lower court predicated its decision upon testimony as to special damage,
which was not pleaded. The rule is also stated in 8 R.C.L. 593.
We have heretofore in our answering brief recited sufficient authorities, we believe, upon the
proposition that the principal is bound by the acts of his agents who are acting within the
scope of their authority. However, we now call attention to Forrester v. Southern Pacific
Company, 36 Nev. 247.
OPINION
In this case a rehearing was granted (52 Nev. 475) upon the petitions of both parties.
The action was brought in February, 1925, to recover compensatory and exemplary
damages for the alleged wrongful, willful, malicious, and unlawful herding and grazing of
defendant's sheep upon the plaintiff's uninclosed detached quarter sections of mountain
land, situated in the northern part of Washoe County, and used by plaintiffs as a range for
their cattle during the grazing season, whereby the grasses and browse growing thereon
were destroyed and consumed, the water thereon polluted, and plaintiffs' cattle grazing
thereon driven from the land, onto land where there was but little or no water, and but
little pasturage of inferior quality, and, as a result of being driven from the land, plaintiffs'
cattle became emaciated, poor, and deteriorated in value, to plaintiffs' injury and
damage.
compensatory and exemplary damages for the alleged wrongful, willful, malicious, and
unlawful herding and grazing of defendant's sheep upon the plaintiff's uninclosed detached
quarter sections of mountain land, situated in the northern part of Washoe County, and used
by plaintiffs as a range for their cattle during the grazing season, whereby the grasses and
browse growing thereon were destroyed and consumed, the water thereon polluted, and
plaintiffs' cattle grazing thereon driven from the land, onto land where there was but little or
no water, and but little pasturage of inferior quality, and, as a result of being driven from the
land, plaintiffs' cattle became emaciated, poor, and deteriorated in value, to plaintiffs' injury
and damage. Such, in substance, was the complaint. Plaintiffs demanded judgment for the
sum of $2,500 actual damages, and, in addition, $5,000 exemplary damages.
The defendant, in his answer, denied the allegations of the complaint, and defended upon
the ground that the acts and things complained of in the complaint were committed by the
defendant's agents or servants, for which the defendant was not responsible; that, prior to the
commencement of the action, one of the plaintiffs had agreed to accept from the defendant
the sum of $250 as full compensation for the injury complained of, which sum defendant
offered to pay, but was refused. The plaintiffs for reply denied the new matter contained in
the answer, and reiterated their prayer for judgment for the sums demanded in their
complaint.
The action was tried without the assistance of a jury. It appears that, within 30 days after
the submission of the cause for decision, the trial court filed with the clerk of the court below
its written decision, in which it was ordered that plaintiffs, in accordance with the decision,
have judgment for the sum of $1,800 actual damages and for the additional sum of $1,000
exemplary damages. Upon the filing of the decision, both parties prepared and submitted for
the court's approval findings of fact and conclusions of law. The court approved and adopted
the findings as presented by counsel for the plaintiffs, with certain amendments, as
proposed by counsel for the defendant.
with certain amendments, as proposed by counsel for the defendant. The court found, in
substance, that the allegations of the complaint were true, and that plaintiffs were entitled to
$1,800 actual damages and $1,000 exemplary damages; that the $1,800 was the pasturage
value of the land trespassed upon by the defendant. Judgment was entered upon the court's
decision, findings of fact, and conclusions of law.
The defendant appealed from the judgment and also from an order denying his motion for
a new trial. Upon appeal the judgment was affirmed (52 Nev. 191, 284 P. 310), by requiring
the plaintiffs to waive that portion of the judgment for $1,800 as a condition against reversal
and a new trial.
It appears that, upon receipt of a copy of the order of affirmance of the judgment
conditionally, the plaintiffs filed with the clerk of the court below, within the time and as
required by the order, a written statement of their acceptance of the judgment as modified. It
appears that, within the time allowed by rule of the supreme court, plaintiffs petitioned for a
rehearing, to which petition the defendant filed a reply. It also appears that the defendant,
being dissatisfied with the affirmance of the judgment conditionally, petitioned for a
rehearing. Their petitions were granted in July, 1930, without limitations. Thereafter the case
took the course of a new appeal, was reargued, and submitted for decision de novo.
It is unnecessary to review the pleadings and the facts in detail, as they are set out in the
former opinion, to which reference is now made. Gerlach Live Stock Co. et al. Laxalt, 52
Nev. 191, 284 P. 310.
The rehearing having been granted without restrictions, we are in limine confronted with
the question of whether the judgment should be reversed, affirmed, or modified. We are
immediately concerned with the question of whether the judgment as modified in the former
opinion was error. It is suggested in argument on the part of counsel for the appellant, who
was the defendant below, that the modification of the judgment by requiring respondents,
plaintiffs below, to waive that portion of the judgment for $1,S00 actual damages leaves
the defendant with a judgment against him for $1,000 exemplary damages, without any
actual damages to support it.
requiring respondents, plaintiffs below, to waive that portion of the judgment for $1,800
actual damages leaves the defendant with a judgment against him for $1,000 exemplary
damages, without any actual damages to support it. In other words, it is insisted that actual
damage is an essential predicate to the imposition of punitive damages. It is true that there are
respectable authorities which support the proposition. On the other hand, there is a line of
authority which vigorously dissents from the rule that actual damages must be found or
recovered to permit the imposition of punitive damages. See Gilham v. Devereaux,
annotation IV, 33 A.L.R. 410. The writer of the former opinion endeavored to make it clear
that, where failure to recover actual damages for trespass is due solely to defect in pleadings,
where all the elements of exemplary damages are present, exemplary damages may be
recovered, citing Favorite v. Cottrill, 62 Mo. App. 119. Further in support of this holding we
cite the case of McConathy v. Deck, 34 Colo. 461, 83 P. 135, 4 L.R.A. (N.S.) 358, 7 Ann.
Cas. 896.
From the former opinion it is made to appear that the only error found in the record was in
the admission of evidence of the expense of feeding the plaintiffs' cattle hay after they were
driven from the land, over the objections of the defendant. It was held that the value of the
hay constituted special damages not pleaded. Consequently the evidence was inadmissible as
bearing upon the value of the pasturage destroyed and consumed by the defendant's sheep. In
this situation, it was ordered that the judgment be affirmed conditionally.
1, 2. In this jurisdiction the power of the court to modify a judgment is statutory. It has
been held that the fact that a judgment is an entirety does not affect the power of this court,
upon the hearing of an appeal, in view of Rev. Laws, sec. 5359, to modify the judgment, or
affirm it as to some issues and reverse it as to others. Sorge v. Sierra Auto Supply Co., 47
Nev. 222, 218 P. 735, 221 P. 521. In the instant case the proof shows that plaintiffs sustained
actual damages, and, all the elements of exemplary damages being present, this court had the
power to order that, unless the plaintiffs waive or remit that portion of the judgment for
actual damages, the judgment would be reversed and a new trial ordered.
had the power to order that, unless the plaintiffs waive or remit that portion of the judgment
for actual damages, the judgment would be reversed and a new trial ordered. The plaintiffs
having complied with the order by filing with the clerk of the court below a statement of their
acceptance of the judgment as modified, it is argued that they are in no position to contend
that the judgment should be affirmed in its entirety. Since a rehearing was granted on the
petitions of both parties, we do not think that plaintiff's acceptance of the judgment as
modified should be treated on this hearing as an absolute acceptance.
It is argued on the part of the respondents that, even though evidence of the expense of
subsequently feeding the plaintiffs' cattle hay was inadmissible under the pleadings,
nevertheless the evidence supports the finding of the trial court, viz: That the Eighteen
Hundred Dollars ($1,800.00) to which plaintiffs are entitled by way of actual damage is the
pasturage value of the lands upon which defendant trespassed. We are not in accord with this
contention. The rulings upon the evidence bearing upon the value of the pasturage destroyed
and the court's written decision satisfy us that the court was influenced to make the finding
quoted solely upon the amount and value of the hay as bearing upon the value of the
pasturage destroyed and consumed by the sheep. We cannot say that, exclusive of the
evidence as to the amount and value of the hay, the evidence supports the finding that the
$1,800 was the pasturage value of the land trespassed upon. Upon reexamination of the
record, we conclude that, for all the reasons stated in the former opinion, no error was
committed in the modification of the judgment as a condition against reversal and a new trial.
The plaintiffs having signified their willingness to have the judgment modified, rather than
submit to its reversal and a new trial, it is so ordered that the judgment be and is hereby
reversed, with directions to the trial court to allow plaintiffs to amend their complaint so as to
plead special damages, unless the plaintiffs file with the clerk of the court below, within 10
days after receipt of copy of the order, a written statement to the effect that the lower
court may modify the judgment so that it may be in favor of the plaintiffs for the sum of
$1,000 exemplary damages.
copy of the order, a written statement to the effect that the lower court may modify the
judgment so that it may be in favor of the plaintiffs for the sum of $1,000 exemplary
damages.
3, 4. On this hearing we have considered all the grounds urged by counsel for the
defendant to influence us to recede from the affirmance of that portion of the judgment for
$1,000 exemplary damages. We had thought that an order so favorable to the defendant
would meet with his approval and serve to end this litigation, which was begun in 1925. We
are satisfied from the evidence that the trespasses complained of were knowingly, willfully,
and wantonly committed. It is held that, where a trespass is committed willfully, wantonly, or
maliciously, exemplary damages may be recovered. 3 C.J. sec. 473, p. 149. The evidence
shows that the defendant at all times knew where his sheep were being herded, and must,
under the circumstances, be deemed to have ratified the acts of herding by his servants.
Hammond v. McMurray Bros., 49 Idaho, 207, 286 P. 603.
The affirmance of the judgment as above ordered will stand.
It is so ordered.
Ducker, J.: I dissent.
On Costs
July 31, 1931.
1. Costs.
Where judgment is modified and no order is made in judgment relative to costs,
party obtaining any relief shall have his costs. (N.C.L. sec. 8928.)
2. Costs.
Where respondent consented to reduction of judgment in lieu of reversal, held
appellant was party obtaining relief and ruling of clerk of supreme court allowing
appellant's costs on appeal was correct.
From a ruling of the clerk of the supreme court allowing appellant's costs on appeal,
respondents appeal. Affirmed. (Sanders, J., dissenting.)
John S. Sinai, for Respondent:
The ruling of the clerk is based upon error because the court did make an order as to costs,
as in its opinion it said that if the respondents consents to the striking of $1,800 from the
judgment of the lower court, the judgment will be affirmed, but on failure so to do the
judgment will be reversed in all things with costs.
W.M. Kearney, for Appellant:
The only mention of costs in the opinion in this case is the sentence which covers the
alternative proposition that upon failure of respondent to accept the modified judgment that
the judgment be reversed in all things with costs. I take it that in the absence of an express
order denying a party costs when any relief is obtained, that the judgment by force and effect
of the statute itself carries costs. N.C.L., sec. 8928; Sorge v. Sierra Auto Supply Co., 48 Nev.
60, 227 P. 320; Richards v. Vermilyea, 42 Nev. 300; Dixon v. Southern Pacific Co., 42 Nev.
90, 91, 180 P. 1921.
OPINION
This matter is now on appeal from the ruling of the clerk allowing costs to appellant as
demanded in his cost bill. In our opinion on rehearing finally disposing of this case it was
ordered that the judgment appealed from be reversed with directions to the trial court to allow
plaintiffs to amend their complaint so as to plead special damages, unless the plaintiff filed
with the clerk of the court below, within ten days after receipt of a copy of the opinion, a
written statement to the effect that the lower court modify the judgment so that it may be in
favor of the plaintiffs in the sum of $1,000 exemplary damages. 53 Nev. 259, 298 P. 413.
Thereafter the plaintiffs filed with the clerk of the lower court within the time specified a
written statement that the judgment might be modified so as to be in their favor in the sum of
$1,000.
1. It is provided by statute that where a judgment is modified and no order is made in the
judgment relative to costs, the party obtaining any relief shall have his costs.
is modified and no order is made in the judgment relative to costs, the party obtaining any
relief shall have his costs. (N.C.L. sec. 8928.)
In Dixon v. Southern Pacific Co., 42 Nev. 90, 91, in disposing of a similar state of facts,
we said:
In the opinion on rehearing the court made no order as to costs; consequently, since
appellant obtained relief, it necessarily follows that it should recover its costs. This is not
open to debate. The statute is clear, emphatic, and peremptory to the effect that the party
obtaining any relief shall have his costs.' The judgment against the appellant was ordered
reversed, unless respondent agreed to a reduction from $2,121.70 to $287.28. Certainly it
cannot be said that appellant did not obtain relief.
2. In the instant case the respondents consented to a reduction of the judgment in the sum
of $1,800. The appellant certainly obtained relief.
The Dixon-Southern Pacific opinion has been followed consistently in several cases. In
Page v. Walser, 47 Nev., on p. 394, 223 P. 1079, speaking through Sanders, J., we said:
We are of the opinion now, as we were then, that the modification of the judgment
without an order carries costs.
See, also, Sorge v. Sierra Auto Supply Co., 48 Nev. 60, 227 P. 320; Richards v.
Vermilyea, 42 Nev., on p. 300.
It is also said that the amount of the costs obtained is excessive. The clerk figured up this
item, and we do not find any error therein.
We think the ruling of the clerk in allowing appellant's costs as claimed is correct, and it is
therefore ratified and affirmed.
Sanders, J.: I dissent.
____________
PADILLA v. MASON
No. 2938
April 27, 1931. 298 P. 657.
On appeal from order, with no bill of exceptions annexed to it, the only record properly before the
appellate court was said order, notice of appeal and undertaking on appeal, and all else should be stricken
(N.C.L. 1929, sec. 9394.)
Appeal from order made upon entire record is not governed by statute which provides that, on appeal
from order made upon affidavits, certified copies of the affidavits shall be used in place of a bill of
exceptions (N.C.L. 1929, sec. 9395).
Appeal from Tenth Judicial District Court, Clark County; J. Emmett Walsh, Judge
presiding.
Suit by Jose Padilla against Leona M. Mason, sometimes known as and called Leona M.
Padilla. From an order denying defendant's motion to set aside a default decree of partition,
she appeals. On respondent's motion to dismiss the appeal and strike the transcript. Parts of
transcript stricken, and order affirmed.
Ham & Taylor, for Respondent:
As this is an attempted appeal from an intermediate order and not a final judgment, it was
incumbent upon the appellant to annex his original bill of exceptions to the order attempted to
be appealed from, and cause the same to be filed in the supreme court, and it would then
become the record on appeal.
Nothing can be reviewed in this case until appellant cause to be filed a bill of exceptions
settled and allowed as provided by sec. 9398, N.C.L. 1929. Garred v. Garred, 51 Nev. 335;
Stats. 1923, p. 163, c. 97; Barbash v. Pitt, 48 Nev. 108; Shirk v. Palmer, 48 Nev. 451; Water
Co. v. Tonopah Belmont Dev. Co., 49 Nev. 172; Markwell v. Gray, 50 Nev. 427.
The purported transcript on appeal is a fugitive document and should be stricken from the
record for the reason that the same is not a transcript or bill of exceptions within the
contemplation of the court rules and statutes.
Louis Cohen, for Appellant:
Supreme court rule II clearly shows that a bill of exceptions is not necessary in every case.
The language if there be one, referring to the bill of exceptions, is significant.
Sections 9394 and 9399, N.C.L., do not make it mandatory to take a bill of exceptions in
every case. This being an appeal from an order made upon affidavits, no bill of exceptions is
required or necessary and the record and transcript on appeal is sufficient. N.C.L. sec. 9395;
Water Co. v. Belmont Dev. Co., 49 Nev. 172, 183.
Section 8874, N.C.L., designates the matters deemed excepted to, and among them is an
interlocutory order or decision finally determining the rights of the parties, or some of them.
Whatever the statute deems to have been excepted to is not necessary to be embodied in a bill
of exceptions. Miller v. Walser, 42 Nev. 505.
OPINION
This is a motion to dismiss the appeal, to strike the transcript on appeal, and for other
relief. The parties will be referred to as plaintiff and defendant. Plaintiff obtained an
interlocutory decree of partition on default in the lower court, from which defendant
appealed. Her appeal was dismissed by this court. Padilla v. Mason, 53 Nev. 226, 296 P.
1083. The present appeal was taken by defendant from an order denying her motion to set
aside said decree of partition. Plaintiff's motion to dismiss and strike is based on a number of
grounds, among which are the following: (1) That there has not been served or filed any
proper transcript on appeal; (2) that there has not been served or filed any bill of exceptions
on appeal. The so-called transcript on appeal in this case consists of what would constitute
the judgment roll on an appeal from a judgment; minutes of the court subsequent to entry of
the decree; a copy of the notice of motion to set aside the decree; copies of affidavits of
defendant in support of the motion; a copy of the proposed answer; the ruling of the court
on motion to set aside the decree; and the notice of appeal and undertaking on appeal.
defendant in support of the motion; a copy of the proposed answer; the ruling of the court on
motion to set aside the decree; and the notice of appeal and undertaking on appeal.
1. As this is an appeal from an order and no bill of exceptions was annexed to it, the only
record properly before us is said order, the notice of appeal, and undertaking on appeal. It
follows that all else contained therein should be stricken. The case is governed by section
9394, Nev. Comp. Laws 1929. The section reads: The original bills of exceptions herein
provided for, together with a notice of appeal and the undertaking on appeal, shall be annexed
to a copy of the judgment roll, certified by the clerk or by the parties, if the appeal be from the
judgment; if the appeal be from an order, such original bill shall be annexed to such order
and the same shall be and become the record on appeal when filed in the supreme court. A
party may appeal upon the judgment roll alone, in which case only such errors can be
considered as appear upon the face of the judgment roll.
We have italicized the portion of the section which controls this case.
2. Counsel for defendant contends that the case is governed by section 9395, Nev. Comp.
Laws 1929, which provides that an appeal from an order made upon affidavits, certified
copies of the affidavits shall be used in place of a bill of exceptions. He is in error in this
contention. The order denying the motion to set aside the default was made upon the entire
record before the lower court. Section 9395, supra, does not contemplate such a case. The
case of Water Co. v. Belmont Dev. Co., 49 Nev. 172, 241 P. 1079, and other Nevada cases
cited by defendant are not in point.
It is ordered that all parts of the so-called transcript on appeal save the order denying the
motion to set aside the decree, the notice of appeal, and undertaking on appeal, be and the
same are hereby stricken. As no error appears on the face of the record before us, the order
appealed from is hereby affirmed.
____________
53 Nev. 272, 272 (1931) State v. Ceja
STATE v. CEJA
No. 2924
April 27, 1931. 298 P. 658.
1. Indictment and Information.
Information charging murder in first degree, substantially in the language of the statute which
provides what it shall contain, held sufficient (N.C.L. sec. 10849).
2. Jury.
Defendant who plead guilty to murder charge held not denied constitutional right in that he was not
afforded the right of trial by jury.
3. Criminal Law.
Point that a fundamental error was committed in admitting depositions, in that defendant was entitled
to be confronted by the witnesses, could not be considered where there was no showing that any
objection was made to their admission.
4. Criminal Law.
Appellant court must presume conditions prescribed by statute as warranting admission of depositions
given at preliminary hearing existed.
5. Criminal Law.
Defendant in murder prosecution held not deprived of any legal right because no counsel was
appointed to represent him until after his plea, and because he entered his plea at time of arraignment,
where he had stated he did not desire counsel and consented to be arraigned without being represented by
counsel (N.C.L. secs. 10883, 10886).
6. Criminal Law.
Where no objection was made at time of hearing testimony of witness whose name was not indorsed
on information until after he had testified, error could not be urged on appeal.
7. Criminal Law.
Appellate court must presume that witness whose name was indorsed on information after he had
testified was one within statute permitting the calling of witnesses not theretofore learned of. (Stats. 1913,
c. 209.)
8. Criminal Law.
Court, in announcing conclusion adjudging defendant guilty of murder in first degree, was not required to
announce finding that crime was committed in perpetration of robbery (N.C.L. sec. 10068).
9. Criminal Law.
Where defendant pleaded guilty and the court fixed degree of crime after hearing evidence, defendant
was not denied jury trial in violation of constitution of United States. (N.C.L. sec. 10068).
10. Criminal Law.
Assignment of error not discussed by counsel on appeal held waived.
53 Nev. 272, 273 (1931) State v. Ceja
L. Ceja was convicted of murder in the first degree, and he appeals. Affirmed.
John W. Burrows and Frame & Raffetto, for Appellant:
The information is not sufficient in law and does not state facts sufficient to constitute the
crime of murder of the first degree. Life or liberty cannot be taken without due process of
law, and that due process requires, in the first instance, an indictment or information
sufficient on its face to inform a person of common understanding what is intended thereby
and the nature and cause of the accusation. This is a fundamental right and not a mere
technicality. Cooper v. State, 74 So. 753, 754; State v. Villa, 102 Atl. 935; 31 C.J. sec. 170, p.
650; Foster v. State, 19 Ohio St. 415-417; State v. Algor, 73 Atl. 76; State v. Crouse, 104 Atl.
525; Rev. Laws of Nev., secs. 7050-7052; State v. Logan, 1 Nev. 110; People v. Gregg, 13
N.Y. Supp. 114.
The information having failed to allege the fact which brought the case within the
definition of murder of the first degree, to wit, perpetration in the commission of robbery,
which the court found, it is plain to be seen that all of the facts necessary to a complete charge
of murder of the first degree were not contained in the information, but only left to the merest
inference.
The right to trial by jury is a part of that due process of law to which every citizen is
entitled and guaranteed by both the state and federal constitutions. Amendment 14,
Constitution of United States; sec. 3, art. 1, and sec. 12, art. 6, Constitution of Nevada. It will
thus be observed that, in criminal cases within the class of felonies, the determination of the
facts constituting the guilt of the accused, either as to the offense or as to the degree of the
offense of which the defendant is guilty, is within the exclusive province of the jury and
cannot be exercised by the court without a jury.
53 Nev. 272, 274 (1931) State v. Ceja
jury and cannot be exercised by the court without a jury.
It was fundamental error to admit the testimony contained in the two depositions. It was a
distinct violation of the defendant's right to be confronted by the witnesses against him even
if the proceeding was one before the court to determine a question of fact. The record in this
instance presents the same flagrant violation of both the state and federal constitutions
heretofore quoted. 6 C.J., sec. 2114 and notes.
In a case like the one at bar, a special duty rests upon the court to fully and adequately
protect every legal right of the accused. It is manifest that the guarantee by the constitution of
the right to a speedy and public trial implies necessarily a fair and impartial trial. It implies
everything in the nature of information to the accused, opportunity to make his defense, the
right to assistance of counsel, and the right to a jury trial. This being so, when the accused is
at the bar without counsel, the special duty to afford him counsel rests upon the court, for it is
only such a proceeding as is fair and impartial and accords to the accused that due process of
law to which he is entitled. Mislik v. State, 110 N.E. 551.
There was another proceeding, the propriety of which might be doubted in a case of this
kind. After the plea of the defendant and the taking of the testimony, a rebuttal witness was
called, whose name was for the first time indorsed on the information by permission of the
court after the witness had testified. This proceeding savors of unfairness, and we think
amounted to an abuse of discretion in the trial court in permitting the name to be so indorsed
and the witness to testify on behalf of the state.
The court does not, in his findings of fact as contained in the record, make the finding that
the crime was committed in the perpetration of a robbery, but in the judgment and sentence
the court recites a fact that was neither found by him as a fact or charged in the information,
as a basis of his judgment in fixing the extreme penalty.
53 Nev. 272, 275 (1931) State v. Ceja
extreme penalty. In this connection, let us call attention to the case of People v. Hall, 12 N.W.
665, holding that where murder is charged without specifying the degree, and the jury, having
the right to find the degree, did not find it murder in the first degree, a sentence for murder in
the first degree is error.
M.A. Diskin, Attorney-General; Wm. J. Forman, Deputy Attorney-General; and Merwin H.
Brown, District Attorney, for the State:
The form of the information in this case is one that has been used for many years in the
State of Nevada on charges of first degree murder. It is the statutory form provided for
indictments. Sec. 7051, Rev. Laws, 1912, as amended. The question raised by defendant is
that the information does not point out specifically that the charge is murder committed in the
perpetration of robbery. This particular point was raised and disposed of in this state in the
case of State v. Mangana, 33 Nev. 511. In numerous other cases similar indictments and
informations have been passed on by this court. See the case of State v. McLean, 15 Nev.
345, wherein the facts and the indictment are almost identical with those in the case at bar.
See, also, State v. Johnny, 29 Nev. 215; State v. Kruger, 34 Nev. 302; State v. MacKinnon,
41 Nev. 182; State v. Raymond, 34 Nev. 198.
The defendant could not have been prejudiced by not having an attorney at the time of the
arraignment, for the reason that the attorney thereafter appointed could have, if he saw fit,
asked permission to withdraw the plea of guilty and could have had the defendant then plead
not guilty. Evidently neither defendant nor his counsel saw fit to do so.
This court cannot consider the admission of the depositions of the two witnesses, taken on
the preliminary hearing, for the reason that their admission was not objected to. State v.
Blaha, 39 Nev. 115; State v. Lawrence, 28 Nev. 440.
Stats. 1913, p. 293, sec. 2, provides that the names of the witnesses known to the district
attorney should be indorsed upon the information, but also provides in part: "but this
shall not preclude the questioning of witnesses whose names or the materiality of whose
testimony are first learned by the district attorney upon the trial."
53 Nev. 272, 276 (1931) State v. Ceja
the witnesses known to the district attorney should be indorsed upon the information, but also
provides in part: but this shall not preclude the questioning of witnesses whose names or the
materiality of whose testimony are first learned by the district attorney upon the trial. The
same question here presented was presented in the case of State v. Monahan, 50 Nev. 35, and
this court rule that, inasmuch as defendant was given an opportunity for a continuance, any
error it committed was cured and that the indorsement of names upon the information when
first learned at the trial is largely a matter within the discretion of the trial court.
Sec. 6386, Rev. Laws 1912, as amended, requires the court and not the jury to determine
the degree of the crime and the punishment after a defendant has pleaded guilty; it is specific
upon this point. Such statutes have uniformly been held constitutional, for, when a person
pleads guilty to a charge he admits the truth of the facts charged, and the only question left to
be settled is the degree of the crime and the penalty, which can be determined by the court.
Hallinger v. Davis, 146 U.S. 314; West v. Gammon, 98 Fed. 426; Craig v. State, 30 N.E.
1120; State v. Almy, 28 Atl. 372; In Re Opinion of the Judges, 197 P. 547; In Re Watkins,
205 P. 192; People v. Roberts, 178 N.W. 692; People v. Noll, 20 Cal. 164; Daily v. State, 4
Ohio St. 57.
The court having found the crime to be first degree murder and that there were no
mitigating circumstances, it was not only within the discretion but was the duty of the court to
sentence the defendant to death. People v. Paraskevopolis, 183 P. 587; People v. Manriquez,
206 P. 65; People v. Bellon, 182 P. 420; State v. Russell, 47 Nev. 271.
In this class of cases the presumption of validity attaches to the proceedings in the lower
court, where there has been a plea of guilty and there is no bill of exceptions before the
supreme court. State v. Arnold, 229 P. 748; State v. Bronzo, 30 Nev. 311; People v. Noll,
supra.
It appears throughout the course of the trial in the lower court that defendant was
afforded all the legal rights given him by law.
53 Nev. 272, 277 (1931) State v. Ceja
lower court that defendant was afforded all the legal rights given him by law. The court even
went farther than the law required in appointing an attorney for the defendant on the hearing
to determine the degree of the crime, when defendant did not desire counsel on the
arraignment.
OPINION
The defendant was charged in the lower court by information with the crime of murdering
only Charley Fong by stabbing him with a sharp instrument. Upon being brought into court
for arraignment the court asked the defendant if he had an attorney to represent him. The
defendant stated that he had no attorney, whereupon the court informed him that he was
entitled to be represented by counsel and that it was the duty of the court to appoint an
attorney to represent him. The defendant stated that he did not desire counsel, and consented
to be arraigned without being represented by counsel. The formality of arraignment then took
place, and after the information was read to the defendant and a copy thereof handed him,
with the indorsements thereon, including the list of witnesses, he entered his plea of guilty to
the charge. It being the duty of the court to fix the punishment and to examine witnesses, the
court thereupon appointed Thomas A. Brandon, Esq., as counsel for the defendant. In due
time the testimony of witnesses was taken and certain depositions were read into the record.
Thereafter arguments of counsel were heard by the court. After due deliberation, the court
entered an order finding the defendant guilty of murder in the first degree, and there being no
mitigating circumstances, fixed the penalty at death, and according made its order.
The defendant has appealed. No bill of exceptions containing the evidence is before us,
only the bare court record.
1. The first point made by the defendant is that the information does not state facts
sufficient to constitute murder of the first degree.
53 Nev. 272, 278 (1931) State v. Ceja
information does not state facts sufficient to constitute murder of the first degree. We cannot
agree to the contention. The information is substantially in the language of section 10849,
N.C.L., which provides what it shall contain. The point made was raised and disposed of by
this court adversely to defendant's contention in the case of State v. Mangana, 33 Nev. 511,
112 P. 603, wherein it was carefully considered.
2. There is nothing to the contention that the defendant was denied a constitutional right
in that he was not afforded the right of trial by jury. There was no issue to try. The plea of
guilty obviated that necessity.
3, 4. It is asserted that a fundamental error was committed by the court in admitting the
depositions of two witnesses, in that the defendant was entitled to be confronted by the
witnesses. There is no showing that any objection was made to the admission of the
depositions, hence we cannot consider the point. State v. Lawrence, 28 Nev. 440, 82 P. 614.
Furthermore, the so-called depositions are nothing more than testimony of two witnesses
given at the preliminary hearing, which, pursuant to statute, when duly certified to, may be
read in evidence under certain conditions. We must presume that the conditions existed. No
right of the defendant was violated in this connection.
5. Considerable criticism is indulged in by counsel for the defendant because of the fact
that no counsel was appointed to represent the defendant until after his plea, and of the further
fact that the defendant was required to plead at the time of the arraignment, instead of on a
subsequent day. Section 10886, N.C.L., provides that on arraignment a defendant must be
allowed further time in which to plead, if he requires it, and section 10883 provides that upon
arraignment a defendant must be informed by the court of his right to have counsel before
being arraigned, and must be asked if he desires the aid of counsel, and if he desires and is
unable to employ counsel, the court must assign counsel to defend him.
Both of the provisions of the statute were complied with, hence the defendant was not
deprived of any legal right.
53 Nev. 272, 279 (1931) State v. Ceja
with, hence the defendant was not deprived of any legal right. We think, however, that in a
case so serious as one involving the death penalty, and even in others in which grave
consequences are involved, it is the better practice to appoint counsel before the defendant is
asked to enter his plea.
6, 7. It is further urged in behalf of the defendant that the court committed prejudicial
error in hearing testimony of a witness whose name was for the first time indorsed upon the
information by permission of the court after the witness had testified. It does not appear that
any objection was made to the procedure at the time, hence, according to strict rules
governing such matters, the contention cannot now be urged; however, we do not think the
defendant was denied a right materially affecting his cause, in view of Stats. 1913, p. 293,
which permits the calling of witnesses not theretofore learned of. We must presume that it
was such a witness that gave testimony.
8. The contention that the court in announcing its conclusion after the hearing of the
evidence, wherein it adjudged the defendant guilty of murder in the first degree, failed to find
that the crime was committed in the perpetration of robbery and therefore omitted a vital act
which must result in a reversal of the judgment, is without merit.
Our crimes and punishment act (section 10068, N.C.L.) provides that all murder
committed in the perpetration or attempted perpetration of any arson, rape, or robbery shall be
deemed murder of the first degree. A jury in bringing in a verdict in a murder case in which it
is contended that the murder was committed in the perpetration of robbery, under the
instructions of the court, considers the evidence, and if it finds therefrom that murder was
committed in the perpetration of robbery, may bring in a verdict finding the defendant guilty
of murder of the first degree, without stating in its verdict that the crime was committed in the
perpetration of robbery. The finding of the existence of the robbery is a prerequisite to the
fixing of the crime as of the first degree, and hence it is not necessary that the jury state
in its verdict that it finds that the crime was committed in the perpetration of robbery.
53 Nev. 272, 280 (1931) State v. Ceja
the crime as of the first degree, and hence it is not necessary that the jury state in its verdict
that it finds that the crime was committed in the perpetration of robbery. The section
mentioned also provides that in case of confession in open court of his guilt by the defendant
the court shall proceed to examine witnesses to determine the degree of the crime. The
section also provides: Every person convicted of murder in the first degree shall suffer death
or confinement in the state prison for life, at the discretion of the jury * * *; or upon a plea of
guilty the court shall determine the same.
The finding by the court in the instant case that the crime was committed in the
perpetration of robbery was also a prerequisite to the fixing of the crime as of the first degree,
hence the finding of the court is sufficient.
9. It is the contention of defendant that the court in fixing the degree of the crime assumed
one of the prerogatives of the jury, and, in effect, that the statute conferring that authority
upon the court is in conflict with the constitution of the United States, in that the defendant
was denied a trial by a jury. One weakness of the contention is in the fact that there was no
issue to try. That was eliminated by the plea of guilty. But a conclusive answer to the
contention is that the supreme court of the United States rejected the contention in Hallinger
v. Davis, 146 U.S. 314, 13 S.Ct. 105, 36 L.Ed. 986. Numerous other courts have so held,
among them: West v. Gammon et al. (C.C.A.) 98 F. 426; Craig v. State, 49 Ohio St. 415, 30
N.E. 1120, 16 L.R.A. 358; State v. Almy, 67 N.H. 274, 28 A. 372, 22 L.R.A. 744; People v.
Roberts, 211 Mich, 187, 178 N.W. 690, 692, 13 A.L.R. 1253; People v. Noll, 20 Cal. 164;
Dailey v. State, 4 Ohio St. 57.
10. Error is also assigned on behalf of the defendant in that the statute relative to crimes
and punishments, as amended by Stats. 1919, c. 248, is unconstitutional because the title of
the act is misleading and does not clearly express the object and purpose of the act, in that it
relates merely to procedure in criminal cases, and not to crimes or the punishment thereof,
and also that the act relates to more than one subject, which is not expressed in the title.
53 Nev. 272, 281 (1931) State v. Ceja
the act relates to more than one subject, which is not expressed in the title. This assignment of
error is not discussed by counsel and hence may be held to be waived; however, we may say
that a similar contention was made in State v. Davis, 14 Nev. 443, 33 Am. Rep. 563, and
there held to be without merit.
No error appearing, the judgment appealed from is affirmed, and the lower court is
directed to fix the time and make the proper order for the carrying into effect by the warden of
the state prison the judgment rendered.
August 5, 1931.
1. Criminal Law.
When defendant pleads guilty to a charge there is no issue to try and a jury will not
be called for the purpose of establishing his guilt.
2. Criminal Law.
Defendant having pleaded guilty to information charging murder, it was unnecessary
that the facts of the case be submitted to a jury to determine the degree of the offense
(N.C.L. sec. 10068).
Appearances on petition for rehearing are limited to the petition and the reply
thereto, in criminal as well as civil cases.
No new point may be presented in a petition for a hearing.
5. Statutes.
Every statute and every word of a statute must be construed in the light of the
evident intention of the legislature.
6. CourtsCriminal Law.
Word court as used in statute authorizing the court, upon a plea of guilty to a
charge of murder, to determine the punishment, did not contemplate the presence of a
jury (N.C.L. sec. 10068).
Provision of state constitution which permits prosecutions by information is not
violative of constitution of United States.
Rehearing denied.
John W. Burrows, for Appellant:
Gray Mashburn, Attorney-General; W.T. Mathews, Deputy Attorney-General; and Merwyn
H. Brown, District Attorney, for the State.
53 Nev. 272, 282 (1931) State v. Ceja
OPINION
A petition for a rehearing has been filed in this case, aggregating something over 24,000
words and citing many decisions.
The burden of the petition is to the effect that our government is divided into three
branches, legislative, judicial and executive, and that article 1, section 3, of our state
constitution guarantees a trial by jury, and that the petitioner has had none. Without following
the devious course of counsel, or considering any of the authorities cited, we desire it
understood that we thoroughly agree with the contention that a trial by jury in a criminal case
is guaranteed, if a trial is had. What we sought to point out in our former opinion was that
there was nothing to try, hence there was no necessity for a trial.
We did not undertake in our former opinion to elaborate. The American bar association
nearly twenty years ago went on record in favor of concise opinions, for the reason that
neither courts nor lawyers have the time to read long, rambling ones. We have sought to
conform to the view of the association, and if that body could only induce members of the
profession to do likewise we think those lawyers who have a good cause would profit by it.
1. We have always understood it to be Hornbook law that when one pleads guilty to a
charge there is no issue to try, hence a jury will not be called for the ridiculous purpose of
establishing what the defendant, in the most solemn manner, has admitted.
Clark's Criminal Procedure (Hornbook Series), second edition at paragraph 129, says:
A confession of the defendant may be either express or implied. An express confession is
where he pleads guilty, and thus directly, in the face of the court, confesses the accusation.
This is called a plea of guilty, and is equivalent to a conviction. The court must, however,
pronounce judgment and sentence as upon a verdict of guilty, but it will hear the facts of the
case from the prosecuting officer, and any statement that the defendant or his counsel
may wish to make.
53 Nev. 272, 283 (1931) State v. Ceja
of guilty, but it will hear the facts of the case from the prosecuting officer, and any statement
that the defendant or his counsel may wish to make. In the absence of a statutory provision to
the contrary, the defendant may plead guilty in a capital case as well as in any other, and the
court must pronounce the proper judgment and sentence, though it may be death. It cannot
compel him to plead not guilty, and submit to a trial, but it may, and generally will advise him
to withdraw his plea, and plead not guilty, and, instead of immediately directing the plea to be
entered, will give him a reasonable time to consider and retract it.
Sir William Blackstone, for whom we have always entertained a very high regard,
speaking nearly two hundred years ago, said:
The other incident to arraignment, exclusive of the plea, is the prisoner's confession of the
indictment. Upon a simple and plain confession, the court hath nothing to do but to award
judgment. Vol. IV, Blackstone's Com., p. 324, Ed. 1769.
Mr. Chitty, in his work on Criminal Law, says:
The last incident of the arraignment is confession. This may be either express or implied.
An express confession of the indictment is where the party pleads guilty, and thus directly, in
the face of the court, confesses the accusation. This is the highest kind of conviction of which
the case admits. 1 Chitty's Criminal Law (Ed. 1847), p. 428.
In Hawkins Pleas of the Crown (Vol. II, Ed. 1824, p. 466), it is said:
An express confession is where a person directly confesses the crime with which he is
charged, which is the highest conviction that can be, and may be received after the plea of
not guilty,' recorded.
If a plea of guilty is the highest conviction, what can be the necessity of a further
conviction?
Counsel call our attention to the case of People v. Bruner (Ill.), 175 N.E. 400, which, they
say, decides the precise question involved in the instant case. Counsel then say of the opinion
in that case: "In that case the Court pointed out that the vesting of the judicial power of
the state in certain courts was an exclusive grant of power, and that the Court consisted
of the judge, who at the time of the adoption of the constitution was the exclusive judge
of the law, and the jury, which was also a common law institution, were the sole judges of
the questions of fact."
53 Nev. 272, 284 (1931) State v. Ceja
In that case the Court pointed out that the vesting of the judicial power of the state in
certain courts was an exclusive grant of power, and that the Court consisted of the judge, who
at the time of the adoption of the constitution was the exclusive judge of the law, and the jury,
which was also a common law institution, were the sole judges of the questions of fact.
In that case the defendant pleaded not guilty and had a trial before a jury. Certainly the jury
in such a situation was the sole judge of the questions of fact involved. The distinction
between that case and this one is that there an issue was raised by the plea of not guilty
whereas in the instant case there was a confession, a plea of guilty to the crime charged. If the
court in that case had decided the identical question here involved contrary to the conclusion
we have reached it would have no weight with us, as it would be clearly erroneous. In our
former opinion we cited several authorities supporting our position, among them Hallinger v.
Davis, by the supreme court of the United States, which passed upon the constitutional phase
of the question; and the decision of that court is the last word on federal questions. Another
case, which we did not cite in our former opinion but which goes at length into the question
here presented and sustains our conclusion, is that of Green v. Commonwealth, 12 Allen
(Mass.), 155. The opinion in that case is by Bigelow, C.J., a very learned and distinguished
author, professor and jurist.
The law as stated is not questioned by any court or law writer. It is said in the petition:
It was decided by the court, in State v. Rover, 10 Nev. 388, that an indictment simply for
murder without specifying the degree did not specifically charge murder of the first degree,
inasmuch as both murder of the first degree and murder of the second degree were included in
the charge, and that the indictment did not specify which of the degrees or a particular
degree.
2. Basing their contention upon this statement, it is urged that it was necessary that the
facts of the case be submitted to a jury to determine the degree of the offense.
53 Nev. 272, 285 (1931) State v. Ceja
case be submitted to a jury to determine the degree of the offense.
In the first place let us say that counsel are in error as to what was held in the case
mentioned. It was a case in which the defendant was charged with murder. He was tried by a
jury, which returned a verdict in which the defendant was found guilty as charged. The
statute then provided, as it now does, that when a jury finds one guilty of murder it must
designate by its verdict whether the defendant is guilty of the first or second degree murder.
The distinction between that case and the instant one is that it was a case of an issue being
raised by a plea of not guilty and a trial thereupon, wherein the statute was not complied with,
whereas in this one the defendant entered a plea of guilty, leaving nothing remaining to be
done but the taking of testimony, fixing the degree of the crime and the passing of sentence,
pursuant to a statute similar to one held constitutional in Hallinger v. Davis, supra.
Chief counsel for petitioner has sought to make in his supplemental petition for a rehearing
two points not made when the matter was originally submitted for our consideration.
3. First we wish to point out that rule XV limits the appearances on rehearing to the
petition for rehearing and the reply thereto. This rule applies to criminal as well as civil cases.
State v. Jon, 46 Nev. p. 438, 439. In Stockgrowers and Ranchers Bank v. Milisich, 52 Nev.
475, 290 P. 1025, we condemned the filing of briefs not authorized on rehearing. We invite
attention to that decision.
4. Furthermore, it is a well-acknowledged practice that no new point may be presented in
a petition for a rehearing Carroll v. Carroll, 51 Nev. 190, 272 P. 3.
5. However, we may say, as to the contention that the word court in the portion of
section 10068, N.C.L., authorizing the court upon a plea of guilty to a charge of murder to
determine the punishment, must be construed as consisting of judge, jury and other officers,
that we are clearly of the opinion that counsel is in error.
53 Nev. 272, 286 (1931) State v. Ceja
Every statute and every word of a statute must be construed in the light of the evident
intention of the legislature. In certain cases court has been held to be synonymous to
judge, though such would not be a correct holding in this connection. Newby v. Bacon, 208
P. 1005; 7 R.C.L. p. 973; 15 R.C.L. p. 512; United States v. Curtis, 4 Mason 232, 25 Fed.
Cases 726.
6. No one has ever been so rash as to assert that the word court in section 10883,
N.C.L., and other sections pertaining to arraignment, contemplated the presence of the jury.
The word is used in section 10068 in the same sense as in the sections pertaining to
arraignment and the entry of a plea by a defendant charged with a crime.
7. The further contention made by the chief attorney for appellant to the effect that the
provision of the constitution of Nevada which permits prosecutions by information is
violative of the constitution of the United States and void is without merit. Bolin v. Nebraska,
176 U.S. 83, 44 L. Ed. 382.
The petition for a rehearing is denied.
____________
53 Nev. 287, 287 (1931) Brockman v. Ullom
BROCKMAN v. ULLOM
No. 2890
June 5, 1931. 299 P. 677.
1. Mortgages.
Mortgage does not transfer the legal title to the mortgagee.
2. Escrows.
Recording of deed, deposited with bank for delivery upon payment of full amount of sale price, after
death of grantee named therein and before completion of payment, did not pass title.
Decree quieting title against administratrix of legal owner, when heirs were not made parties to suit,
did not confer any right.
Suit by J.M. Ullom against Henrietta L. Brockman and others. From a judgment for
plaintiff and an order denying a motion for new trial, defendant named appeals. Reversed.
See, also, 52 Nev. 263, 267.
Ham & Taylor and Forman & Forman, for Appellants:
The deed to George L. Ullom having been recorded long after the death of the grantee, in
the absence of presumptions of delivery, it was incumbent for the plaintiff to show that there
had been a delivery during the lifetime of the decedent. There can be no deed without
delivery. 8 R.C.L. 973, 975, secs. 45, 46.
In order to establish a cause of action to quiet title, the plaintiff must prove a title to the
property. 32 Cyc. p. 1329.
A decree quieting title against a party does not place the plaintiff in the position of a
transferee from such party. Lockwood v. Meade Land and Cattle Co., 81 P. 496.
There is no evidence anywhere in the record that anyone every transferred the property to
respondent by deed or in any other manner.
The recording of a deed by an escrow depository will not constitute a delivery unless the
conditions of the escrow have been fully complied with.
not constitute a delivery unless the conditions of the escrow have been fully complied with.
Beaumont Car Works v. Beaumont Improvement Co., 23 S.W. 274.
A.A. Hinman, for Respondent:
The contract of sale between defendant Brockman and George L. Ullom and Norma F.
Ullom provides for a total payment of $2,700. Appellant admitted she received on account
thereof $1,340, as near as she could recall. She also admitted the collection of rents
amounting to $180 which she credited on the contract. The balance of the rents collected by
her she paid to George L. Ullom. She also states no other credits were received on the
contract to the best of her knowledge. However, she refused to deny that George L. Ullom
had made other payments by check, and states: I don't say he didn't. Appellant also, after
she vacated the property at the request of Mabel R. Ullom and went to live with George L.
and Norma F. Ullom, stated to Mabel R. Ullom that she agreed to credit $25 per month on the
indebtedness for her board. Appellant's indebtedness at the bank, with interest, amounting to
$1,410.79, was paid by George L. Ullom, but she gave him no credit therefor. Thus it appears
that the admitted credits amount to $2,930.79, an amount in excess of the contract price,
without taking into consideration the practical admission of appellant that she might have
received other payments by check, and the credits she did not allow for board, and the
probabilities are that her claims were more than fully paid.
Respondent had no actual notice of appellant's claims before the exchange of the
properties and was, therefore, a bona fide purchaser.
OPINION
J.M. Ullom, as plaintiff, brought suit against Henrietta Brockman, First State Bank of Las
Vegas, and others, to obtain a decree quieting his title to lots 25 and 26, block 35, of Clark's
Las Vegas town site.
and 26, block 35, of Clark's Las Vegas town site. From a judgment in favor of the plaintiff
and an order denying a motion for a new trial, defendant Brockman has appealed. We will
refer to the parties as plaintiff had defendant.
On June 26, 1918, George L. Ullom and Norma F. Ullom, his wife, conveyed the property
in question to Henrietta L. Brockman, this defendant. On September 18, 1922, defendant and
Norma F. Ullom executed to the bank a deed, which was recorded on the same day,
conveying the property. That this deed was a mere mortgage to secure a loan of $1,400 is
agreed by all parties. On May 12, 1924, defendant, as party of the first part, entered into an
agreement with George L. Ullom and Norma F. Ullom, as parties of the second part, whereby
the party of the first part agreed to sell the property mentioned to second parties, for the sum
of $2,700 and the assumption of the $1,400 mortgage mentioned, $500 payable June 1, 1924,
and the balance at the rate of $25 per month, with interest at 8 per cent on deferred payments.
Time is made the essence of the agreement, and forfeiture by George L. Ullom in case of
nonpayment is one of its terms.
On June 2, 1924, Henrietta Brockman, George L. Ullom, and Norma F. Ullom executed
their joint note for $1,900, payable to the bank, as security for which the deed of September
18, 1922, to the bank, was allowed to stand. On the date the $1,900 note above mentioned
was executed to the bank, Henrietta Brockman and Norma F. Ullom executed their joint deed
to George L. Ullom, conveying the property in question. This deed was placed in escrow with
the bank, to be delivered when Henrietta Brockman was fully paid. This deed was recorded
by the bank after the death of George L. Ullom.
On July 24, 1925, George L. Ullom executed his note payable to Mrs. Brockman, in the
sum of $2,000. At the bottom of this note, in the hand of George L. Ullom, is written: This
note guaranteed by lots & apartment house. Lots 25 & 26 Block 35.
On May 18, 1926, J.M. Ullom and George L. Ullom obtained a loan from the bank in the
sum of $5,500, and to secure its payment the bank took a deed from George L. Ullom and
Norma F. Ullom to the property in question. This $5,500 note was paid in due time by J.M.
Ullom.
George L. Ullom died, and Norma F. Ullom, his wife, was appointed administratrix.
Thereafter J.M. Ullom brought suit against her as such administratrix to quiet in him the title
to the property in question, and, the defendant in that suit failing to appear, the court in due
time entered its decree as prayed.
George L. Ullom left surviving him as heirs his wife and several children.
The agreement of sale between defendant Brockman and George L. Ullom and Norma F.
Ullom, and the $2,000 note of July 24, 1925, were admitted in evidence, when offered, on
condition that they be connected up. Thereafter they were stricken. The order of the court in
striking these exhibits is assigned as error.
We have not the benefit of the theory upon which the court made its order; however, we
think it erred.
While no written instructions were given the bank when the deed of June 2, 1924, was
deposited with it, the undisputed evidence is to the effect that the deed was not to be
delivered until the full amount payable to Henrietta Brockman under the terms of the contract
of sale of May 12, 1924, was paid. This was never done, nor was anything paid on the note of
$2,000 dated July 24, 1925. Notwithstanding, the bank, some time after the death of George
L. Ullom, had the deed recorded, though it was never delivered to George L. Ullom nor to
any one else for him.
Both the $1,400 and the $1,900 notes payable to the bank were fully paid long before
George L. Ullom's death.
1, 2. In this state a mortgage does not transfer the legal title to the mortgagee (Southern
Pacific Co. v. Miller et al., 39 Nev. 169, 154 P. 929); hence the legal title to the property in
question was in Henrietta Brockman at the time this suit was brought, unless title passed,
pursuant to the recording of the deed to George L.
passed, pursuant to the recording of the deed to George L. Ullom after his death. The bank
could not properly have delivered the deed to George L. Ullom had he been alive at the time
it was recorded, unless all of the payments called for in the agreement of May 12, 1924, had
been made. This had not been done.
Something is said in plaintiff's brief about his being an innocent purchaser for value, and
of a trade between him and George L. Ullom. There is no evidence of either, but, if such were
the fact, George L. Ullom could only acquire title by complying with his contract of purchase.
3. Nor do we see that the plaintiff strengthened his position by the decree quieting his
title, in the suit which he instituted against Norma F. Ullom as administratrix. The title to the
property in question, upon the death of George L. Ullom, if he had the legal title at the time of
his death, vested in his widow and children (Wren v. Dixon, 40 Nev. 170, 210, 161 P. 722,
167 P. 324, Ann. Cas. 1918d, 1064) subject to the payment of debts. The heirs were not made
parties to that suit; hence we fail to see wherein the plaintiff's decree conferred any right.
Under the facts of this case, the question of adverse possession is not involved.
It appearing that both the legal and equitable title to the property in question is vested in
Mrs. Brockman, the judgment and order appealed from should be reversed.
It is so ordered.
____________
53 Nev. 292, 292 (1931) Ratliff v. Sadlier Et Al.
RATLIFF v. SADLIER Et Al.
No. 2910
June 5, 1931. 299 P. 674.
1. Trial.
Statute requiring court trying question of fact to give decision within thirty days after cause is
submitted held directory (Rev. Laws, sec. 5227).
2. Judgment.
Judgment in trial of question of fact was not void because court took more than thirty days after
submission of cause to render decision (Rev. Laws, sec. 5227).
Order of trial court resubmitting case without the knowledge, stipulation or consent of counsel held
not reversible error (Stats. 1913, c. 222, secs. 5, 6).
Stats. 1913, c. 222, secs. 5, 6 only affect right of judge to draw salary; moreover, it is difficult
to see how appellant was in any manner injured by the resubmission of the case, and it would be
very unjust to penalize a successful party for action of court in this regard.
In action for compensation for services rendered decedent, findings held sufficient to support
judgment for defendants, though some were immaterial.
The court found that plaintiff worked on the farm of decedent and lived upon the premises as a
member of her household; that decedent died testate, leaving a will under which she left plaintiff
a life estate in certain ranch property; that plaintiff went to work upon the farm of decedent
without any agreement whatsoever with her as to compensation for his services; that plaintiff
made no demand during the lifetime of decedent for any specific wage for his services; that said
services were and are of the reasonable value of $50 a month; that within and during the course
of the rendition of said services the decedent, in her lifetime, gave to the plaintiff the sum of
$169; that the claim was filed against the estate and rejected; and that the allegations of the
complaint were not sustained by the evidence.
No assignment of error being predicated upon finding, appellate court must assume that the evidence
supports it.
6. Work and Labor.
Where one lives with another as a member of his or her household, and at the same time perform
services for such other, the presumption arises that the services were rendered gratuitously.
Where no demand for compensation was made during lifetime of deceased person, there is presumption
that services rendered deceased were gratuitous.
In action for compensation for services rendered decedent, finding that plaintiff went to work upon the
farm of decedent without any agreement whatever as to compensation for his services held justified by law
and evidence.
There was no evidence in the record tending to show that plaintiff expected compensation, he
made no demand during decedent's lifetime for any wages, and he lived on premises as a
member of decedent's household. Declarations of decedent were just as consistent with intention
to make plaintiff an object of bounty as a faithful and serviceable member of her household as of
intention to compensate him for labor pursuant to any contract.
In action for compensation for services rendered decedent, findings held sufficient to negative any
expectation of compensation by plaintiff.
Although trial court did not expressly find that plaintiff expected no compensation for his
services, there were findings that he lived upon the premises as a member of decedent's
household during the time for which compensation was claimed, and that he went to work upon
the farm of decedent without any agreement whatsoever as to compensation for his services.
In action for compensation for services rendered decedent, finding that plaintiff expected no
compensation for such services would be implied, under circumstances, if necessary to sustain judgment.
Error occurring in written decision of trial court, which was no part of findings, could not affect
judgment.
Action by James B. Ratliff against Louise J. Sadlier and another, as executrices of the last
will and testament and of the estate of Frances A. Frey, deceased. From a judgment for
defendants and an order denying plaintiff's motion for a new trial, plaintiff appeals.
Affirmed.
Sardis Summerfield, for Appellant:
Our statute specifically commands that: Upon a trial of a question of fact by the court
its decision must be given within thirty days after the cause has been submitted for
decision."
trial of a question of fact by the court its decision must be given within thirty days after the
cause has been submitted for decision. Stats. 1915, p. 219. Notwithstanding the mandate of
the statute, seven months elapsed from the submission of this cause before the trial court
decided the facts of the case. It is difficult to see why the same principles of time limitations
that are applied to judgments should not also apply to decisions. And this court has advisedly
held that it is indispensable to the validity of a judgment that it be rendered at the time and
place prescribed by law, and because the judgment was not so rendered held it to be coram
non judice, reversed it, and remanded the cause for a new trial. State v. Roberts, 8 Nev. 242.
See, also, Dalton v. Libby et al., 9 Nev. 195; Ex Parte Gardner, 22 Nev. 284.
The trial court erred in ordering this case resubmitted without the knowledge, stipulation or
consent of the counsel in the case. Stats. 1913, p. 313. It may be that the statute only affects
the right to draw salaries, but it is clear from the title of the act that the intent was to prevent
unnecessary delay in rendering judicial decisions.
The undisputed facts in this case clearly bring it within a well-established rule of implied
contracts. 9 Cyc. p. 242; Lacy Co. v. Los Angeles Co. (Cal.), 106 P. 413; Casey v.
McFarlane, 82 Conn. 442; Middlebrook v. Slocumb, 152 Mich. 286; Kostuba v. Miller, 137
Mo. 161; Asher v. Martin (Cal.), 279 P. 812; In Re McLain's Estate (Ore.), 270 P. 534.
Appellate performed his labor upon the ranch pursuant to consultations with decedent and in
accordance with her desires.
We do not dispute the soundness of the numerous precedents cited by respondent to the
effect that members of a decedent's family may not recover for services in the absence of
express contract. However, they are inapplicable to the instant case, because the evidence
clearly negatives any suggestion of a family relationship existing between decedent and
appellant. There were no ties of kinship between them, and because he was furnished with
board and room by decedent did not make him, legally speaking, a member of her family.
were no ties of kinship between them, and because he was furnished with board and room by
decedent did not make him, legally speaking, a member of her family.
The written decision of the trial court, while it is labeled opinion, is essentially composed
of informal findings of fact and is a judgment of dismissal. The formal findings of fact and
judgment are obviously based thereon and are in accord therewith. This court has in effect
held that such written opinion, although not a part of the judgment roll, may function as an
aid to the court in the determination of the appeal. Werner v. Babcock, 34 Nev. 44.
Thatcher & Woodburn and John Donovan, for Respondents:
We do not feel that there is any merit whatsoever in appellant's contention that the trial
court erred in failing to decide the facts of the case within thirty days of the submission of the
case to it for decision, in view of the fact that the supreme court of California has uniformly
held that their statute, which is identical with ours in that respect, is directory and not
mandatory. City of Los Angeles v. Hannon et al., 251 P. 247. The State of Montana has
similar provisions in its code. See Hoppin v. Land, 74 Mont. 558, 241 P. 636, 644; In Re
Bradfield's Estate, 69 Mont. 247, 221 P. 531; Brown v. Porter (Wash.), 34 P. 1105.
The litigants are not responsible because the trial court resubmitted the case on its own
motion, and to reverse the judgment of the trial court on this ground would be a manifest
injustice. There was no objection made, no action taken by either party from the time when
the case was submitted until after the court made and entered its findings of fact. We feel that
the trial court did not lose jurisdiction by such action. City of Los Angeles v. Hannon, supra.
We submit that the finding of the trial court that the plaintiff went to work upon the farm
of decedent without any agreement whatsoever with her as to compensation for his services is
supported by the evidence. Under circumstances almost identical with the facts in this
case, the supreme court of Connecticut decided that justice did not require that a contract
to pay should be implied.
circumstances almost identical with the facts in this case, the supreme court of Connecticut
decided that justice did not require that a contract to pay should be implied. Appeal of
Gillette, 82 Conn. 500, 74 Atl. 762.
The evidence would justify a finding that plaintiff did not expect compensation for his
services, and in this event findings will be implied to sustain the judgment. Murray v.
Osborne, 33 Nev. 267, 111 P. 31; Edwards v. Jones, 49 Nev. 342, 246 P. 688.
In this case there is no evidence to show that the alleged services were performed at the
request of the decedent; that payment was expected; that payment was demanded by plaintiff
from decedent in her lifetime; or that payment was not made. And it is uniformly held that
each of the foregoing factors must be proved by clear and convincing evidence, otherwise
recovery will be denied. Brunnert v. Boeckmann's Estate (Mo. App.), 258 S.W. 768; Benge's
Adm'r v. Fouts, 174 Ky. 654, 192 S.W. 703; Hartje v. Borstelman (Ia.), 179 N.W. 88; Haslam
v. Perry, 115 Me. 295, 98 Atl. 812; Gordon v. Keene, 118 Me. 269, 107 Atl. 849; Smith v.
Davis' Estate, 206 Mo. App. 446, 230 S.W. 670; In Re Gross' Estate, 284 Pa. 73, 130 Atl.
304; Hedrick v. Hedrick, 48 Ind. 658, 94 N.E. 728; Broughton v. Nicholson, 150 Ia. 119, 129
N.W. 814; Rose v. Mayes, 139 Mo. App. 246, 122 S.W. 769; Frean v. Hudson, 87 N.J. Law,
244, 93 Atl. 582; In Re Goldrick's Estate (Wis.), 224 N.W. 741; Swieczkowski v.
Sypniewzki, 144 Atl. 141.
Evidence to establish a claim for services against a decedent's estate, not made during his
lifetime, must be other than mere loose declarations and must clearly and distinctly establish
a contract between claimant and decedent. In Re Weaver, 38 Atl. 12; Wise v. Martin, 81 Atl.
184; Howd v. MacGregor, 128 Atl. 518; Douglas v. Beebe, 195 N.W. 165.
The opinion of the lower court is no part of the judgment roll and can only be used to aid
the supreme court in the proper determination of the appeal. Werner v. Babcock, 34 Nev. 42,
116 P. 357.
It is our contention that the written decision of the trial court is the one filed pursuant to
sec. 285, and not to sec. 414, of the civil practice act, and therefore it has no proper place in
the record on appeal. Reno W.L. & L. Co. v. Osburn, 25 Nev. 53, 56 P. 945.
OPINION
Plaintiff brought this action to recover compensation for services, and prayed judgment for
the sum of $2,211. The trial court rendered judgment against him. This appeal is from the
judgment and the order denying his motion for a new trial.
The complaint alleges: That commencing on the 24th day of May, 1926, and ending on or
about the 16th day of May, 1928, plaintiff, at the special instance and request of Frances A.
Frey, now deceased, continuously between and including said dates rendered services as
manager, laborer, carpenter and builder upon the farm of the said Frances A. Frey, now
deceased, in Washoe County, Nevada; that there was at no time any specific contract,
agreement or understanding between the plaintiff and the said Frances A. Frey, now deceased,
respecting the amount or rate of compensation which should be paid to plaintiff for his
services; that said services were and are of the reasonable worth and value of $2,380. Then
follows other allegations, including the payment on account of said services by Frances A.
Frey in her lifetime of divers small sums amounting in all to $169; that $2,211 was due and
unpaid; that said Frances A. Frey died testate; that defendants were appointed executrices of
her last will and testament, and qualified as such; that plaintiff duly filed his claim again her
estate; and that defendant rejected the same.
The answer denies all of the allegations of the complaint save the last four mentioned, and
alleges as an affirmative defense that, if any services were performed by the plaintiff as
set forth in his complaint, he received compensation for the same by reason of a devise to
him of a life estate in the ranch property on which the said services are alleged to have
been performed.
affirmative defense that, if any services were performed by the plaintiff as set forth in his
complaint, he received compensation for the same by reason of a devise to him of a life estate
in the ranch property on which the said services are alleged to have been performed.
The case was tried to the court without a jury, and the court found as follows: (1) That
plaintiff worked on the farm of Frances A. Frey, deceased, caring for the usual and ordinary
necessities in farm activity, also in excavating a cellar and building a house upon the
property, and lived upon the premises as a member of decedent's household during the whole
period between the 24th day of May, 1926, and May 16, 1928; (2) that Frances A. Frey died
testate on the 16th day of May, 1928, leaving a will under which she left plaintiff a life estate
in certain ranch property appraised at the valuation of $20,000; (3) that the plaintiff went to
work upon the farm of decedent without any agreement whatsoever with Frances A. Frey as
to compensation for his services; (4) that plaintiff made no demand during the lifetime of
Frances A. Frey for any specific wage of his services; (5) that said services were and are of
the reasonable value of $50 a month; (6) that within and during the course of the rendition of
said services the said Frances A. Frey, in her lifetime, gave to plaintiff the sum of $169; (7)
that the claim was filed against the estate and rejected; (8) that the allegations in said
complaint are not sustained by the evidence. Counsel for plaintiff prepared and requested of
the court findings in conformity to the allegations of the complaint, which were rejected.
1, 2. It appears that the case was submitted to the trial court for decision not later than
May 2, 1929, and that the court did not decide the case until December 6, 1929. Appellant
assigns this as error, and suggests that the decision and findings and judgment based thereon
are coram non judice, because of the requirement of section 5227 of the Rev. Laws. The
requirement contained in that section reads: Upon a trial of a question of fact by the court its
decision must be given * * *
within thirty days after the cause is submitted for decision.
Statutes the same as this have always been held directory merely. City of Los Angeles v.
Hannon et al., 79 Cal. App. 669, 251 P. 247; McLennan v. Bank of California, 87 Cal. 569,
25 P. 760; Hoppin v. Long, 74 Mont. 558, 241 P. 636; Lynch v. Coviglio, 17 Utah, 106, 53 P.
983.
We find no dissent from the doctrine of these cases, and it has long been the established
practice of this state. A construction of the statute in conformity with this practice seems most
consonant with the ends of justice. And such construction does no violence to the wording of
the statute. State ex rel. Baker v. Wichman, 52 Nev. 17, 279 P. 937. As the statute is
directory, the judgment is not void because of the time taken by the trial court to render its
decision, nor was it error for the court to do so.
3. The trial court ordered the case resubmitted for consideration without the knowledge,
stipulation, or consent of counsel. Error is assigned as to the action of the court in this regard
because of the provisions of chapter 222, Statutes of 1913, at page 313. Section 5 of the act
provides: Each district judge shall, before receiving any monthly salary, file with the clerk of
each county within his district and with the state controller, an affidavit, in which shall be set
forth the number of cases, motions or other matters submitted to him as such district judge in
and for each county embraced within his district which remain undecided and that no such
case, motion or matter remains undecided which has been submitted for a period of more than
ninety days.
Section 6 of the act prescribes: A case, motion or other matter submitted to the supreme
court, or to a district judge for decision, shall not be ordered resubmitted so as to affect the
provisions of this act, except by stipulation or consent of counsel in the case, filed or entered
of record.
The purpose of this statute is to prevent the rendering of decisions from being deferred
longer than ninety days without the consent of counsel.
of decisions from being deferred longer than ninety days without the consent of counsel. It is
sought to effect this purpose by withholding, after the time and until a decision is rendered,
the salary of the judge to whom a case has been submitted. It is doubtful if the statute serves
its purpose, as it is rarely that counsel does not readily consent to a resubmission. It is clear
that the statute only affects the right of a judge to draw his salary. Counsel for defendant
admits that this may be the only effect. We feel quite certain of it. Moreover, it is difficult to
see how appellant was in any manner injured by the resubmission of the case. Furthermore, it
would be very unjust to penalize a successful party for the action of the court in this regard.
The other assignments of error go to the insufficiency of the evidence to support certain
findings of the court, to the refusal of the court to adopt plaintiff's proposed findings, and to
the decision and ruling that the devise of a life estate to the ranch constituted payment to
plaintiff for his services.
4-7. We have carefully considered all of them, and reach the conclusion that the judgment
must be affirmed. Some of the findings are immaterial, but there are sufficient to support the
judgment. Such as are essential in this respect are sustained by substantial evidence, or must
be assumed to be so sustained. The court found, as we have seen, that during the period for
which compensation is claimed plaintiff lived upon the premises as a member of decedent's
household. No assignment of error is predicated upon this finding; consequently we must
assume that the evidence supports it. Where one lives with another as a member of his or her
household, and at the same time performs services for such other, the presumption arises that
the services were rendered gratuitously. The presumption which justifies an implied contract
does not exist under such circumstances. Smith v. Davis' Estate, 206 Mo. App. 446, 230 S.W.
670; Broughton v. Nicholson, 150 Iowa, 119, 129 N.W 814, 816; Hoskins v. Saunders, 80
Conn. 19, 66 A. 785; In Re Peiffer, 261 Pa. 209, 104 A. 576; 24 C.J. p.
C.J. p. 281, 282. The rule is well stated in Smith v. Davis' Estate, supra: Where one accepts
valuable service from another, the law implies a promise to pay therefor; but the presumption
which justifies an implied contract does not exist where the service is performed by one from
whom the family relation existing between the parties raises a presumption that the services
were gratuitous.
In Broughton v. Nicholson, supra, where the plaintiff, who had been living with the
decedent as a member of her family and receiving support therein, brought an action to
recover for services rendered during that period, the court said: A presumption would arise
that such services were gratuitous, and that plaintiff must overcome this presumption by
showing either that such services were rendered under an express promise on the part of
decedent to pay therefor, or that they were rendered by plaintiff and received by decedent in
the expectation that payment therefor would be made.
The rule applies when the family relation actually existed between claimant and decedent,
although there was neither consanguinity, affinity, nor adoption. 24 C.J. 282. The same
presumption obtains as to claims against estates of deceased persons where no demand is
made during the lifetime of the deceased.
But where a claim for services or board is first made after the decease of the alleged
debtor, the presumption obtains that payment was made or that it was not intended to demand
payment, and evidence to establish a claim for services against a decedent's estate not made
during his lifetime must be other than mere loose declarations, and must clearly and distinctly
establish a contract between claimant and decedent. 24 C.J. 279; Douglas v. Beebe, 46 S.D.
559, 195 N.W. 165; In Re Weaver, 182 Pa. 349, 38 A. 12; Vogl v. Goldrick's Estate, 198
Wis. 500, 224 N.W. 741.
8. In view of the foregoing legal standards, and after a careful consideration of the
evidence, we are of the opinion that the finding of the court that the plaintiff went to work
upon the farm of the decedent without any agreement whatever with Frances A.
went to work upon the farm of the decedent without any agreement whatever with Frances A.
Frey as to compensation for his services cannot be disturbed. He made no demand during her
lifetime for any wages. The trial court found that as a fact, and the finding is not attacked on
this appeal. While plaintiff worked on the ranch doing the usual things to be done in farm
work, and, in addition, excavated and constructed a cellar, and put together upon the premises
a house of the Alladin type, he also lived upon the ranch during the entire period, and, as the
court found, as a member of decedent's household. There is no evidence anywhere in the
record tending to show that he expected compensation. The declaration of Frances A. Frey,
testified to by the witnesses Shellhorn and Durly, are of little probative value. These
declarations are substantially that if at any time he (plaintiff) did not care to stay on the place
she would pay him for his labor if she had to sell the place to do it; that she had looked out
that he would always have a home; that he would always be taken care of; and that she had
fixed it that way; that she did not know what she would have done without Jim (plaintiff);
that he had done everything for her; that he had stood by her through everything; that she
intended to pay Jim for what he was doing for her; that in case anything happened to her that
she had everything fixed for him. In our opinion, these declarations are just as consistent with
her intention to make plaintiff an object of her bounty as a faithful and serviceable member of
her household, as of her intention to compensate him for labor pursuant to any contract. As
remarked in Howd v. MacGregor, 102 Conn. 331, 128 A. 518, 519: * * * That the line of
demarcation is shadowy between those expressions of a decedent which are meant and
understood merely to denote an intention to give of his bounty, and those which may fairly
arouse an expectation of compensation for services rendered. * * *
9, 10. In this case there is no proof from which it can be inferred that plaintiff did
anything relying on these statements.
these statements. There is nothing to show that they were ever made in his presence. The trial
court did not expressly find that plaintiff expected no compensation for his services, but we
think the findings that he lived upon the premises as a member of decedent's household
during the time for which compensation is claimed, and went to work upon the farm of
decedent without any agreement whatsoever as to compensation for his services, are
sufficient to negative any such expectation. Bawden v. Kuklinski, 48 Nev. 181, 228 P. 588,
232 P. 782. However, under the circumstances, a finding of that character will be implied, if
necessary to sustain the judgment.
11. It is contended that the trial court erred in holding that the devise of a life estate to the
ranch land constituted payment to appellant for his services rendered. We are not called upon
to determine that question. The error, if such, occurs in the written decision of the trial court,
which is no part of the findings, and cannot therefore affect the judgment. Moreover, the
court did not find that there was any contract for services, but, as we have seen, found to the
contrary. It follows from what we have said that there was no error in rejecting plaintiff's
proposed findings.
____________
53 Nev. 304, 304 (1931) Musser v. Los Angeles & Salt Lake R.R. Co.
MUSSER v. LOS ANGELES & S.L.R. CO.
No. 2914
June 5, 1931. 299 P. 1020.
Instruction that leaving of switch open contrary to rule of railroad constituted a failure to furnish a
reasonably safe place to work was not erroneous as making railroad guarantor of safety of place of work
(Federal Employers' Liability Act, 45 USCA, secs. 51-59).
Rules of railroad provided that switches must be left in proper position after being
used and must not be left open for following train unless in charge of a trainman of
such train. Track motorcar operator was injured by derailment of car by switch which
had been left open for following train. Court instructed that law required employer to
furnish reasonably safe place to work, and that if switch was left open contrary to
rules of railroad, or left in charge of trainman who failed to perform his duty, such
conduct constituted failure to furnish a reasonably safe place to work.
Generally, when rule is not ambiguous, its construction is for court, but when ambiguous is question
for jury upon proper evidence.
Whether rule of railroad as to leaving switches open applied inside yard limits, where plaintiff was
injured, held question for jury.
Instruction that it was duty of railroad to furnish its employees a safe place to work, instead of
instruction that it was its duty to use reasonable care to furnish its employees a reasonably safe place in
which to work, having due regard to the circumstances, held erroneous (Federal Employers' Liability Act,
45 USCA. secs. 51-59).
Instruction construing rule of railroad that open switch must be left in charge of trainman to mean that
such trainman must remain sufficiently near the switch to enable him to operate it to prevent danger, was
proper where rule was not claimed ambiguous in that respect.
6. Negligence.
In case involving contributory negligence, court should define contributory negligence and leave to
the jury the application of the facts, as found by them, to the law as given by the court.
7. Negligence.
Contributory negligence is such an act, or omission of precaution, on the part of the plaintiff,
amounting in the circumstances to such want of ordinary care as, taken in connection with the
negligent act, or omission of precaution, on the part of the defendant, proximately
contributes to the injury complained of.
with the negligent act, or omission of precaution, on the part of the defendant, proximately contributes to
the injury complained of.
Erroneous instruction on contributory negligence held not prejudicial, where based on defense pleaded
and jury found plaintiff was negligent and returned verdict for reduced damages.
9. Negligence.
Assumption of risk arises out of an implied contract.
Instruction on assumption of risk ordinarily incident to employment as risk that does not arise from
negligence of employer or employees unless employee knows of such risk or it is obvious, held proper
(Federal Employers' Liability Act, 45 USCA. secs. 51-59).
11. Trial.
Where court read proper instruction to jury and handed it to them with instructions admittedly given,
marking of instruction not given was error.
12. Release.
Voluntary release, if obtained without semblance of imposition, for a valuable consideration, from one
capable of fully appreciating its full force and effect, is valid.
13. Appeal and ErrorRelease.
Instruction that release is void if it is probable that the injured party did not understand its nature and
effect held prejudicial error, question being could he and did he understand.
Appeal from Tenth Judicial District Court, Clark County; Wm. E. Orr, judge.
Action by Gerald D. Musser against Los Angeles & Salt Lake Railroad Company.
Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant appeals.
Reversed, with directions to grant new trial.
F.R. McNamee, Leo A. McNamee and Frank McNamee, Jr., for Appellant:
The federal employers' liability act, under which this action is brought, adopts the common
law rule of negligence, as established and applied by the federal courts. The given
instructions No. 1 and No. 2 made it the absolute duty of the defendant to furnish plaintiff a
reasonably safe place to work. There is no absolute duty on the part of the master to furnish
a safe place to work, or even a reasonably safe place to work.
the part of the master to furnish a safe place to work, or even a reasonably safe place to work.
The master's only duty in this respect is to use ordinary care to provide for the servant a
reasonably safe place to work, and any instruction enlarging that duty is reversible error.
Seaboard Air Line v. Horton, 58 L. Ed. 1062, L.R.A. 1915c 1; M.P.R.R. v. Aeby, 72 L. Ed.
351; Delaware L. & W.R. Co. v. Koske, 73 L. Ed. 578-581; Yazoo & M.V.R. Co. v. Mullins,
63 L. Ed. 754-756; B. & O.R.R. Co. v. Carroll, 74 L. Ed. 279; Smith v. Seaboard Air Line,
109 S.E. 22 (N.C.); Armour & Company v. Russell, 144 Fed. 614.
The purport of given instruction No. 1 was to make the defendant an insurer of the
plaintiff's safety and a guarantor of the safety of the place of work, regardless of the degree of
care used by the defendant in marking the danger by the red signal board on the switch stand,
or the degree of care used by the trainmen of the following train, in whose charge said switch
was left, to see that the signal target on said switch clearly displayed its warning, and
regardless of whether defendant's rule 104 applied only outside of the terminal yards, as the
uncontradicted testimony of the defendant showed, which was error. Toler v. N.P.R. Co., 162
P. 538; 39 C.J. 313, 378, 379.
By said instructions No. 1 and No. 2 the court construed rule 104 of defendant beyond its
purport and read into it an additional precaution which was not intended nor required,
namely, to the effect that the words in charge of a trainman of such train meant that such
trainman must remain sufficiently near the switch to enable him to operate it to prevent
danger to the life and limb of plaintiff, and thus took away from the jury its duty to determine
whether the leaving of said switch open in the manner and under the circumstances in which
it was left open constituted negligence. Toledo St. Louis & Western R. v. Allen, 72 L.Ed.
513-516.
Instruction No. 3 is misleading to such an extent that it was error for the court to submit it
to the jury. It confuses contributory negligence with both simple negligence and
assumption of risk.
confuses contributory negligence with both simple negligence and assumption of risk. The
jury, by the quoted definition therein, could be mislead into rendering a verdict for the
plaintiff even though no negligence were proved on the part of the defendant, because the
word contributory assumes negligence on the apart of the defendant.
Instruction No. 4 assumes as a fact that the defendant was negligent in leaving the switch
open, assumes that plaintiff was adjusting the carburetor at the time of the accident, and
confuses the defense of contributory negligence with that of assumption of risk, which is
error. So. Ry. v. Jacobs, 81 S.E. (Va.), 99; Hines v. Bannon (Tex. Civ. App.), 221 S.E. 684;
Jacobs v. So. Ry. Co., 60 L. Ed. 970; 2 Roberts Federal Liabilities (2d ed.) 1625, sec. 837.
If instruction No. 12, offered by defendant, was proper, then the inadvertent action of the
court in marking it not given and giving it to the jury with the other instructions, marked
given, is reversible error. 38 Cyc. 1771; Terre Haute R.R. Co. v. Hybarger, 67 Ill. App. 480.
Said instruction No. 12 was proper, because where the defense of assumption of risk is
pleaded and supported by the evidence, it is the duty of the court to instruct thereon, and the
failure to submit such question to the jury's consideration is error. 2 Robert's Fed. Liab. of
Carriers (2d ed.), p. 1605 and 1649; Barker v. R.R. (Kan.), 129 P. 1151, 43 L.R.A. (N.S.)
1121; Dileski v. Bldg. Co., 146 Ill. App. 192; Beuhler v. R.R., 124 Atl. (Pa.) 325; Cosden
Pipe Line Co. v. Berry (Okl.), 210 P. 141; Voorhees v. R.R., 14 Fed. (2d ed.) 899, 901; White
v. Utah Milk Co. (Utah), 167 P. 656; R.R. v. Finke, 190 S.W. (T.C.A.) 1143; Hupfer v.
Payne, 223 Ill. App. 386; 39 C.J. p. 726 and 733.
When a release is admitted in evidence and the signature thereon is not denied, it is prima
facie valid. The plaintiff would than have the burden of proof to show that there was no
reality of consent, or that there was fraud. 13 C.J. 262, n. 66. But under instructions No.
No. 7 and No. 8 the release is not prima-facie evidence, but is deemed invalid if signed by
one who probably (and not actually) did not know what he was doing.
Under the circumstances of this case and the evidence produced, the verdict was excessive.
Maloney v. Winston Bros. Co. (Ida.), 111 P. 1080, 47 L.R.A. (N.S.) 634; Lemm v. Great No.
Ry. Co. (Minn.), 199 N.W. 20; Jackson v. Chicago Ry. (Minn.), 205 N.W. 689; Brier v.
Chicago Ry. (Ia.), 168 N.W. 339; Lackey v. Mos. Ry. (Mo.) 264 S.W. 807; St. Louis, etc. R.
v. Hodge (Okl.), 157 P. 60; Jordan v. R. Co., 271 S.W. 997; Hart v. Kessler (Mo. App.), 263
S.W. 462; Galveston R. v. Summers, 278 S.W. 881 (T.C.A.); Miller v. Shaff (Mo.), 228 S.W.
488.
Chas. Lee Horsey, for Respondent:
Under the common law of negligence, as established and applied in the United States
generally, and in Nevada, the leaving of a main line railroad switch open and unprotected
constitutes negligence. Kansas City M. & O. Railway Co. of Texas v. Finke (Tex.), 190 S.W.
1143.
In this case the cause of action arose primarily because the leaving of a main line switch
open and unprotected under the circumstances and in the manner in which the switch
involved in this case was left open, constituted a breach of that duty which, under the law of
negligence, the defendant master owed to the plaintiff servant to use ordinary care to furnish
to the plaintiff a reasonably safe place to work, and to use ordinary care to provide for
plaintiff as its employee reasonably safe methods of operation of its railroad. Furthermore, it
is the duty of a master engaged in a complex or dangerous business to adopt such rules and
regulations for the conduct of its business and the government of its servants in the discharge
of their duties as will afford reasonable protection. 39 C.J. 470; De Atley v. Chesapeake, etc.
R. Co., 210 Fed. 591; Potlatch Lumber Co. v. Anderson, 199 Fed. 742; Seaboard Air Line R.
Co. v. Shanklin, 148 Fed. 342.
The adoption of a rule by the master for the protection of its employees admits its
necessity; the breach thereof is negligence, and the master will not be heard to assert that the
rule is not necessary. Topore v. Boston & Maine R.R., 103 Atl. 72.
But the mere adoption of rules and regulations will not exempt the master from liability
for negligence. 39 C.J. 481; Southern R. Co. v. Craig, 113 Fed. 76.
The interpretation of defendant's rules 104 and 93 was for the court. The testimony of
those familiar with train operations may be considered by the court in aiding it to a correct
interpretation, but same is not controlling. Chadwick v. Oregon-Washington R. etc. Co.
(Ore.), 144 P. 1165; 39 C.J. 1167; Little Rock, etc. R. Co. v. Barry, 84 Fed. 944; Syme-Eagle
& Co. v. Joplin Grocer Co., 229 S.W. 246; 39 C.J. 885.
The purport of instruction No. 1 was not to make the defendant an insurer of the plaintiff's
safety and a guarantor of the safety of the place of work, as contended by appellant. The
instruction meant only that if the master had not done those concrete things which rule 104
required, his failure was tantamount to a failure to use ordinary care. True, it incorrectly used
the expression failure to furnish a reasonably safe place to work, instead of the phrase
ordinary care to furnish a reasonably safe place to work, but that error was cured by
instruction No. 13, wherein the rule was correctly stated. 14 R.C.L. 728 and 813. In the
instant case, as in the case of Brough v. Baldwin (Minn.), 121 N.W. 1111, the charge on the
whole was clear and eminently fair to the defendant, and it is apparent that the jury could not
have been misled. In this case, as in the case of Forrester v. Southern Pac. Co., 36 Nev. 247,
the error in instructions consisted of stating a higher degree of care than the rule justified. In
each case, if the degree of care had been correctly stated, the result should have been the
same, for there was a failure to use ordinary care. See, also, 14 R.C.L. 815; Cosden Pipe Line
v. Berry (Okla.), 210 P. 141; Texas Company, Inc. v. Washington B. & A. Electric R. Co.
{Md.),
R. Co. (Md.), 127 Atl. 752; Kelley-Clarke Co. v. Leslie (Cal.), 215 P. 699; Chicago &
E.T.R. Co. v. Kneirim (Ill.), 39 N.E. 324; Josephine Sullivan v. Jefferson Avenue Ry. Co.
(Mo.), 32 L.R.A. 167; Fowler v. Fowler (Okla.), L.R.A. 1917c, 89; Peterson v. Silver Peak
Gold Mng. Co., 37 Nev. 115.
There is no material error in instruction No. 3. It does not confuse contributory negligence
with simple negligence or with assumption of risk. The definition of contributory negligence
used is taken verbatim from the case of Seaboard Air Line R. Co. v. Horton, 58 L. Ed. 1070,
and, being adopted by the supreme court of the United States, is undoubtedly correct. So
eminent an authority as Judge Taft, in the case of Narramore v. Cleveland, Cincinnati,
Chicago & St. Louis Ry. Co., 48 L.R.A. 68, evidently had the same conception which is
claimed to be error in this instruction No. 3. See, also, Louisville & N.R. Co. v. Paschal (Ga.),
89 S.E. 620.
Instruction No. 4 does not assume that leaving the switch open was negligence; it merely
deals with the question in a hypothetical manner, assuming it will not be applied unless, as
stated in substance in instruction No. 1 relative to all instructions as to defenses, plaintiff's
negligence is established, which is a precedent condition to the application of any instruction
as to a defense. St. Louis-Southwestern R. Co. v. Rogers, 266 S.W. 281. Neither does the
instruction assume the fact that plaintiff was adjusting the carburetor; that is admitted in
defendant's answer to the amended compliant. And the trial court therein has not confused the
defense of contributory negligence with assumption of risk. The portion of the instruction
copied from Chesapeake R. Co. v. De Atley, 60 L. Ed. 1016, incorporates only so much of
the language of that case as is properly applicable to contributory negligence.
In the case at bar there was absolutely no foundation from the evidence or in legal
principle upon which to submit the question of assumption of risk to the jury; therefore, the
inadvertent leaving of the word not at the conclusion of instruction No.
the conclusion of instruction No. 12, even if such inadvertence could be material error in
relation to an instruction which defendant had the right to have given, could have no harmful
effect as to said instruction No. 12.
Neither instruction No. 7 nor instruction No. 8 is incorrect. From the language of
instruction No. 7, before the jury could apply the principle of probability, they must first
believe from the evidence that plaintiff did not sufficiently understand the character of
such instrument, and the consequences of signing same to the extent as to enable him really to
consent to the terms of such instrument, or knowingly to enter into such contract; then, under
such circumstances (the rule of probability being then applicable) the signing of such
instrument should be treated as absolutely void and of no effect whatsoever.
In instruction No. 8, the jury, according to the language of the instruction, before finding
the purported release null, void and of no effect, would have to find from the evidence
(meaning all of the evidence) either (1) that no valuable consideration was given for such
release, or (2) that plaintiff was, as a proximate result of his injuries, in such condition of
mind and body, when such purported release was signed by him, that it is not probable that he
understood the nature or effect of the instrument he signed.
We do not believe this honorable court will apply the law of averages to the damages in the
case at bar, when the flagrant violation of the defendant of its duty under the law of
negligence and of its own rule 104 is so apparent. See Forrester v. Sou. Pac. Co., 36 Nev.
247.
OPINION
This action was instituted to recover damages, pursuant to the federal employers' liability
act (45 USCA. secs. 51-59), for injuries sustained in defendant company's yard at Las Vegas,
Nevada. Judgment was rendered in favor of the plaintiff, from which and an order denying a
motion for a new trial an appeal has been taken.
denying a motion for a new trial an appeal has been taken. We will refer to the parties as
plaintiff and defendant, as designated in the trial court.
The plaintiff, on September 5, 1927, in the course of his employment as a track motorcar
operator, while starting on a trip from Las Vegas to Caliente, Nevada, ran his motorcar
through an open switch within the yard limits of the defendant at Las Vegas. The motor car
was derailed, resulting in an injury to plaintiff's ankle, known as a Pott's fracture.
On the morning mentioned the plaintiff took his car from its shed and ran it up in front of
the defendant's dining room, when he observed a freight train pulling out, going in the
direction of Caliente, and, preferring not to trail it, decided to have his breakfast before taking
his departure. In due time he started his motorcar and proceeded to adjust the carburetor while
the car was moving, and it was while thus engaged, or immediately thereafter, that the
plaintiff was injured.
The switch in question had been left open by the train crew of the freight mentioned, at the
suggestion of the head brakeman of another freight train which was soon to follow, so that
said first freight could proceed without stopping to close the switch and the second freight
could proceed through the switch without stopping to open it.
Prior to the accident the defendant had promulgated certain rules relative to the operation
of engines, trains, and track motorcars, which were in force at the time of the accident, and
introduced in evidence upon the trial.
The theory of the plaintiff is that defendant was negligent in leaving the switch open,
which resulted in his injuries. The defendant in its answer denied the allegations of the
complaint alleging negligence on its part, and affirmatively pleaded a release; that the
plaintiff was guilty of contributory negligence, and also that he assumed the risk.
In support of its defenses of contributory negligence and assumed risk, defendant pleaded
that the switch in question was plainly marked and guarded by a red target on the switch
stand, thereby giving warning that it was open; that said target was visible for more than
1,000 feet and could have been seen by the plaintiff; and that his failure to observe that
the switch was open was due to his carelessness and negligence.
it was open; that said target was visible for more than 1,000 feet and could have been seen by
the plaintiff; and that his failure to observe that the switch was open was due to his
carelessness and negligence. It also pleaded certain of its rules, which we may have occasion
to refer to.
As grounds for reversing the judgment and order appealed from defendant relies chiefly
upon alleged errors of law committed by the trial court.
It is contended by defendant that the court erred in giving instructions 1 and 2. Counsel
quote in their brief the portion of the instructions mentioned to which they take exception, as
follows:
* * * The law imposes upon an employer the legal duty to furnish his or its employees a
reasonably safe place to work and to provide reasonably safe methods of operation. * * * and
if you find * * * that the main line switch was left open and was not left in charge of a
trainman of a following train, within the meaning of Rule 104 of Defendant's rules of its
transportation department, or left in charge of such trainmen, he failed to perform his duty by
not remaining at or sufficiently near such main line switch to enable him to close the same, or
do such other act as may be necessary to avert danger to human life or limb, then the leaving
of such main switch open, under such circumstances constitutes a failure to furnish a
reasonably safe place to work.
* * * The promulgation and adoption of such rule recognizes its necessity, and if later the
defendant corporation permitted or acquiesced in repeated violations of such rule, such
acquiescence by it in such violation would not relieve the defendant of its primary duty under
the law to furnish its employees a safe place to work. * * * You are instructed that
notwithstanding it may have been a custom to violate such rule the primary duty imposed by
the law of furnishing a safe place to work would remain in full force and effect and could not
be changed by custom nor by any rule of the defendant attempting to modify or lessen the
degree of care required to furnish such safe place to work, as required by law.
care required to furnish such safe place to work, as required by law. * * *
It is said that these instructions are erroneous, in that they instruct the jury that it was the
absolute duty of the defendant to furnish the plaintiff a reasonably safe place in which to
work, instead of charging the jury that it was the duty of the defendant to use reasonable care
to furnish the plaintiff a reasonably safe place in which to work, having due regard to the
circumstances. Delaware, L. & W.R. Co. v. Koske, 279 U.S. 7, 49 S. Ct. 202, 73 L. Ed. 578;
Baltimore & O.S.W.R. Co. v. Carroll, 280 U.S. 491, 50 S. Ct. 182, 74 L. Ed. 566.
It is also contended by appellant that the latter portion of instruction 1, dealing with the
leaving of a switch open and not leaving it in charge of a trainman of a following train, within
the meaning of rule 104, is erroneous.
It is generally held to be the duty of the master to furnish his servant reasonably safe
instrumentalities with which, and place wherein, to work (39 C.J. 308), and such has been
accepted as the correct rule in this state, except as to cases coming within the federal
employers' liability act. Burch v. Southern Pacific Co., 32 Nev. 75, 104 P. 225, Ann. Cas.
1912b, 1166; Peterson v. Pittsburg Silver Peak G.M. Co., 37 Nev. 117, 140 P. 519. A
different rule is recognized, however, in Ames v. Western Pacific R. Co., 48 Nev. 78, 227 P.
1009, where it was held that it is the duty of the master, operating under the act mentioned, to
see that ordinary care and prudence are exercised to the end that reasonably safe appliances
and a reasonably safe place in which the servant is to work are furnished, having due regard
to the circumstances. However, in the late case of Baltimore & Ohio S.W. R. Co. v. Carroll,
280 U.S. 491, 50 S. Ct. 182, 74 L. Ed. 566, and in Missouri P.R. Co. v. Aeby, 275 U.S. 426,
48 S. Ct. 177, 72 L. Ed. 351, the supreme court of the United States held that the employer,
being a railroad company operating under the federal employers' liability act, is liable only
for the exercise of "reasonable" care in the furnishing of reasonably safe appliances and
place in which to work, having due regard to the circumstances.
liability act, is liable only for the exercise of reasonable care in the furnishing of reasonably
safe appliances and place in which to work, having due regard to the circumstances.
Counsel for plaintiff concedes that the instruction is erroneous, but contends that such
error was not prejudicial.
It is further contended that the court in instruction No. 1 told the jury, in effect, that
regardless of whether defendant's rule No. 104 applied only outside of the terminal yards of
defendant, as contended by it, and regardless of whether a reasonable and prudent person
ordinarily under the circumstances would have left the switch open, and regardless of whether
rule 104 was promulgated only for the protection and guidance of trains and trainmen, and
not for the protection of the operators of motorcars, the defendant was guilty of negligence
because the switch was left open.
1. Counsel for the defendant say that the purpose of this instruction was to make the
defendant an insurer of plaintiff's safety and a guarantor of the safety of the place of work,
regardless of the degree of care used by the defendant in marking the danger by the red signal
board (target) on the switch stand, or the degree of care used by the trainmen of the following
train in whose charge said switch was left.
We are unable to accept the contention made. Rule 104 reads:
Switches must be left in proper position after having been used. Conductors are
responsible for positions of switches used by them and their trainmen, except where switch
tenders are stationed, but, when practicable, the enginemen must see that the switches nearest
the engine are properly set.
A switch must not be left open for a following train unless in charge of a trainman of
such train.
The rule quoted is the only one, so far as appears, which pertains to the leaving open of a
switch. It states the conditions upon which a switch may be left open and the precautions to
be taken when one is left open.
open. We do not think the construction and operation of the red target properly plays a part in
this connection. It was put in operation as a signal or warning to employees, and if it plays a
part in this case it is upon another theory, the defense of contributory negligence, or assumed
risk.
It is also contended by the defendant in this connection that rule 104 has no application
inside of yard limits, where plaintiff was injured.
2, 3. It is the general rule that when a rule is not ambiguous its construction is a question
for the court, but when it is ambiguous it is a question for the jury upon proper evidence. The
court heard evidence on this point, pro and con, and we think it was a question for the jury.
4. Instruction No. 2 is erroneous, in that it in substance instructed the jury that it was the
positive duty of the defendant to furnish its employees a safe place in which to work, instead
of advising them that it was the duty of the defendant to use reasonable care to furnish its
employees a reasonably safe place in which to work, having due regard to the circumstances.
It is further said that by these instructions (1 and 2) the court erred, in that they told the
jury that the words of rule 104 to the effect that an open switch must be left in charge of a
trainman means that such trainman must remain sufficiently near the switch to enable him to
operate it to prevent danger to life and limb, thereby taking from the jury its duty of
determining whether the leaving of said switch open in the manner and under the
circumstances under which it was left open constituted negligence.
5. There is no contention that the rules in question, or either of them, are ambiguous upon
the point in question, nor is it contended that any evidence was offered to aid the jury in
interpreting the rules so far as this phase of the case is concerned. In this situation it was
proper for the court to construe the rules as to the question suggested. We think it did not err
in its construction.
It is next contended that instruction No. 3 is a definition of negligence and not of
contributory negligence; that it is misleading, in that it confuses contributory negligence with
simple negligence and assumption of risk.
The court instructed the jury, so far as is necessary to state, as follows: The jury are
further instructed that contributory negligence is sometimes defined as a failure to use such
care for his safety as ordinarily prudent employees in similar circumstances would use.
The instruction then goes on to state that one of the defenses pleaded by the defendant is
that plaintiff was guilty of contributory negligence, quoting the acts which defendant pleaded
as constituting the defense of contributory negligence, among other things rule 1808 of the
defendant, which reads: Track Cars. Adjustments must not be made to engine or car while
the car is moving, except that carburetor may be adjusted, providing sharp look-out is kept
ahead and there is no hazard of accident.
The instruction concludes its recital of the defenses as follows: That the injury sustained
by plaintiff as alleged in said amended complaint was without any fault whatever on the part
of said defendant or any of its other employees and that the carelessness and negligence of the
plaintiff as herein above set forth was the sole and proximate cause thereof.
The instruction then concludes with directions to the jury as to its application to the facts,
without further defining contributory negligence.
6. The instruction does not define contributory negligence correctly. In fact, it does not
purport to do so. The instruction says that contributory negligence is sometimes defined,
without giving a definition. Courts should in such cases define contributory negligence, and
leave to the jury the application of the facts, as found by them, to the law as given by the
court.
7. Contributory negligence is such an act, or omission of precaution, on the part of the
plaintiff, amounting in the circumstances to such want of ordinary care as, taken in
connection with the negligent act or omission of precaution on the part of the defendant,
proximately contributes to the injury complained of.
taken in connection with the negligent act or omission of precaution on the part of the
defendant, proximately contributes to the injury complained of.
8. As we read the instruction, it did not correctly inform the jury of the essential fact
which they should find before they could say that the plaintiff was not guilty of contributory
negligence.
However, we do not think the defendant was prejudiced in this particular, in view of the
answers by the jury to specific questions, to the effect that the injury received by the plaintiff
was due to some extent to the negligence of the plaintiff, and its finding that he sustained
damage in the sum of $20,000, and the reduction of the verdict to $15,000.
In view of the matter pleaded as constituting contributory negligence we cannot say that
the instruction was prejudicial, since it was based upon the defense pleaded.
Defendant contends that instruction No. 4 is erroneous in several respects. The chief
contention is that the court in this instruction assumes that the defendant, by leaving the
switch open, was guilty of negligence. We do not think the contention stated is well founded.
That portion of the instruction down to the semicolon states a general proposition of law,
followed by a statement to the effect that the plaintiff was not guilty of contributory
negligence if the plaintiff did not know of the existence of the open switch, and that an
ordinarily careful person in plaintiff's situation would not have observed the existing
conditions. The court could not give all of the law of this case in one instruction, and sought
in the instruction in question to tell the jury that under certain conditions contributory
negligence could not be imputed to the plaintiff. Nor do we think this instruction assumes the
plaintiff was adjusting the carburetor at the time of the accident, as contended, nor at any
specific time.
9. We do not think instruction No. 4 confuses the defense of contributory negligence with
that of assumed risk. Theoretically, at least, there is a clear distinction between the two
defenses.
between the two defenses. The one arises out of a tort and presupposes negligence on the part
of the defendant coupled with the negligence of the plaintiff which contributes proximately to
the injury. Assumption of risk, on the other hand, arises out of an implied contract, and is
governed in cases of this kind by the principles stated by us in Ames v. Western Pacific R.
Co., 48 Nev. 78, 227 P. 1009. Following the case just cited, we are clearly of the opinion that
there can be no confusion arising out of the instruction in question.
10, 11. It is contended, and we think correctly, that the court erred in the matter of
instruction 12, requested by the defendant. This instruction was marked by the court as Not
given, and yet it read it to the jury and handed it, with the instructions admittedly given, to
the jury. It is said that since the instruction was one proper to be given the court erred in
marking it Not given. The instruction reads: You are instructed that the plaintiff while in
the employment of the defendant assumed as a matter of law all of the risks of his
employment, and if you believe from the evidence that the plaintiff's injury grew out of risks
that were ordinarily incident to his employment as a track motorcar operator, then your
verdict should be for the defendant, but you are further instructed in this connection that by
the use of the expression A Risk Ordinarily Incident to the Employment' is meant a risk of
injury that does not rise or grow out of an act of negligence on the part of the defendant or its
employees, and that whenever a risk is created by an act of negligence on the part of the
defendant or its employees this is not a risk ordinarily incident to the employment. If,
however, the plaintiff knows of such risk created by an act of negligence of the defendant or
its employees, or if the risk and danger are so obvious that an ordinarily prudent person under
similar circumstances would have known the risk and appreciated the danger arising
therefrom, then the plaintiff assumes such risk arising from the negligent act of the defendant
or its employees.
We think this instruction correctly states the law.
The supreme court of the United States, in Chesapeake & O.R. Co. v. De Atley, 241 U.S.
310, 36 S. Ct. 564, 566, 60 L. Ed. 1016, states the controlling rule to be: * * * According to
our decisions, the settled rule is not that it is the duty of an employee to exercise care to
discover extraordinary dangers that may arise from the negligence of the employer or of those
for whose conduct the employer is responsible, but that the employee may assume that the
employer or his agents have exercised proper care with respect to his safety until notified to
the contrary, unless the want of care and the danger arising from it are so obvious that an
ordinarily careful person, under the circumstances, would observe and appreciate them.
The same court, in Chesapeake & O.R. Co. v. Proffitt, 241 U.S. 462, 36 S. Ct. 620, 622,
60 L.Ed. 1102, states, however: The employee is not obliged to exercise care to discover
dangers not ordinarily incident to the employment, but which result from the employer's
negligence. * * * Even if plaintiff knew and assumed the risks of an inherently dangerous
method of doing the work, he did not assume the increased risk attributable not to the
method, but to negligence in pursuing it.
The real question is whether or not the defendant was injured by the instruction being
marked Not given. It is not contended by the plaintiff that the court gave any other
instruction relative to assumption of risk, hence it was proper that the court give the
instruction.
In the case of Terra Haute & I.R.R. Co. v. Hybarger, 67 Ill. App. 480, it was held that the
court committed reversible error in such circumstances. The court in that case said:
Another objection urged is that the court marked as refused an instruction asked by
defendant and read it to the jury, and that the instruction so read by the court and so marked
refused was taken by the jury with the other instructions which were given. The instruction
referred to was upon an important branch of the casethe duty of the plaintiff to exercise due
care in approaching the crossing, and it is not denied that it correctly stated the law upon the
point. So the question is, what should be said of this, probably inadvertent, action of the
court in marking as refused a correct proposition of law and giving it so marked to the
jury.
is, what should be said of this, probably inadvertent, action of the court in marking as refused
a correct proposition of law and giving it so marked to the jury. The other instructions taken
by the jury were all marked given, and if the jury took the trouble to examine the instructions
they must have discovered that while the others were marked given, this was marked refused,
and it is presumable, at least, that they understood the court did not approve of this
instruction. * * *
It is impossible to say that the case of the defendant was not prejudiced by this action of
the court. It could not be so said unless it were known that the jury did not discover that the
instruction was so marked. This is not known. The judgment will be reversed and the cause
remanded.
See, also, Delisky v. Leonard, 189 App. Div. 623, 179 N.Y.S. 112.
It is next contended that the verdict is excessive. We think we should be controlled in
disposing of this contention by what the court said in Forrester v. S.P. Co., 36 Nev. 247, 299,
134 P. 753, 136 P. 705, 48 L.R.A. (N.S.) 1.
The next assigned error which we will consider is the one relative to instructions 7 and 8
concerning an alleged release of the defendant from liability as a result of the injuries
received.
The release in question was obtained either on the day the injuries were received or on the
following day, and while the plaintiff was still suffering great pain from his injuries. The
instructions in question are as follows:
Instruction No. 7. You are hereby further instructed that if an injured employee is induced
to sign a paper purporting to be a release of the right to claim damages for personal injuries,
and when he signed same he was suffering such physical pain and mental distress as a result
of such injuries as to render it probably that he acted without deliberation and that he was
then incapable of understanding the character of the instrument and the consequences of
signing same, such instrument should be treated as inoperative and void.
Therefore, if in this case you find from the evidence that the plaintiff on the 5th day of
September, 1927, or on the 6th day of September, 1927, did sign a paper which purports
to be a release of the right to claim damages for personal injuries under circumstances
such as above related, and you believe from the evidence that he did not sufficiently
understand the character of such instrument and the consequences of signing same to the
extent as to enable him really to consent to the terms of such instrument or knowingly to
enter into such contract, then under such circumstances, the signing of such instrument
should be treated as absolutely void and of no effect whatsoever.
that the plaintiff on the 5th day of September, 1927, or on the 6th day of September, 1927, did
sign a paper which purports to be a release of the right to claim damages for personal injuries
under circumstances such as above related, and you believe from the evidence that he did not
sufficiently understand the character of such instrument and the consequences of signing
same to the extent as to enable him really to consent to the terms of such instrument or
knowingly to enter into such contract, then under such circumstances, the signing of such
instrument should be treated as absolutely void and of no effect whatsoever.
Instruction No. 8. The Court hereby further instructs the jurors that in the case now on
trial, if you believe from the evidence that a paper was signed by the plaintiff purporting to be
a release of defendant from all liability for negligence for having caused the injuries to the
plaintiff that are the basis for plaintiff's alleged cause of action for damages in this case, such
purported release would be null, void and of no effect, if you find from the evidence either:
1. That no valuable consideration was given by the defendant for such release; or
2. That plaintiff was as a proximate result of his injuries in such condition of mind and
body when such purported release was signed by him that it is not probable that he
understood the nature or effect of the instrument he signed; or
3. That plaintiff did not understand when signing such release the nature or character of
the paper or instrument he was signing and did not intend or consent to settle or release any
cause of action or liability which he might have against the defendant corporation, and that,
therefore, there was no reality of consent to his act.
12. While we think it a reprehensible practice for individuals, copartnerships,
associations, or corporations to encourage their agents to endeavor to procure from an
employee a release from liability while suffering from injuries received while in such
employment and while experiencing mental or bodily pain, or both, and while such an
employee is burdened with the anxieties of raising a family, the vicissitudes of life, and
the problems accompanying old age, and that such conduct is a circumstance indicating
its lack of due regard for the injured one and those dependent upon him, yet if a voluntary
release is obtained without the semblance of imposition, for a valuable consideration,
from one capable of fully appreciating its full force and effect, it is valid.
while experiencing mental or bodily pain, or both, and while such an employee is burdened
with the anxieties of raising a family, the vicissitudes of life, and the problems accompanying
old age, and that such conduct is a circumstance indicating its lack of due regard for the
injured one and those dependent upon him, yet if a voluntary release is obtained without the
semblance of imposition, for a valuable consideration, from one capable of fully appreciating
its full force and effect, it is valid.
13. Coming now to a consideration of the instructions in question, we are of the opinion
that instruction 8 is erroneous. It embodies three alternatives; one to the effect that if it is
probable that the plaintiff at the time of executing the release did not understand its nature
and effect it is void and of no effect. Such is not the law. The question is: Could he and did he
at such time understanding its nature and effect? This instruction is not only erroneous, but
prejudicial.
The first paragraph of instruction 7 is erroneous and prejudicial for the same reason.
While it may be true that some of the errors pointed out were without prejudice, in view of
the entire record we feel that the defendant as prejudiced, and that the judgment and order
appealed from should be reversed, with directions to grant a new trial.
It is so ordered.
____________
53 Nev. 324, 324 (1931) Friedman v. Goodin Et Al.
FRIEDMAN v. GOODIN Et Al.
No. 2916
June 5, 1931. 299 P. 1017.
1. Trusts.
Evidence showed that it was intention of parties that beneficial interest in stock subscribed for by
deceased in articles of incorporation was not to be enjoyed with legal title.
2. Trusts.
Where corporate stock is subscribed for at solicitation of another in order to complete number of
incorporators required by law, a trust results in favor of person for whom the equitable interest is
assumed to have been intended.
Inventory or appraisement is not conclusive evidence either for or against administrator or appraiser
filing it, but is open to denial or explanation.
Appraisement, as officer of court, of stock listed in inventory of deceased's estate held not
inconsistent with appraiser's claim that deceased held stock in trust for appraiser.
5. Trusts.
That five years elapsed after death of holder of legal title to corporate stock before party claiming
beneficial interest instituted suit to establish and enforce trust held not to constitute laches under
circumstances.
Uncontradicted testimony of party claiming beneficial interest by reason of his
having furnished consideration for which legal title had been transferred to deceased
was that he was ignorant of fact that stock certificate had not been indorsed by
deceased, whose death occurred on December 1, 1922, until in the year 1927, and
that he had no knowledge or information that stock was claimed by deceased's
representatives until in July, 1929; his suit was brought within 30 days thereafter.
Appeal from Sixth Judicial District Court, Pershing County; E.P. Carville, Judge
presiding.
Suit by L.A. Friedman against W.H. Goodin and another, as administrators of the estate of
James T. Goodin, deceased. Judgment for defendants, and plaintiff appeals. Reversed and
remanded, with directions.
John A. Jurgenson and Cooke & Stoddard, for Appellant:
We contend for the application here of the rule that on the naked fact of legal title to
property being taken in the name of one person but the consideration therefor is paid by
another, a resulting trust immediately arises in favor of the person furnishing the
consideration, and irrespective of any agreement as to the use or trust.
on the naked fact of legal title to property being taken in the name of one person but the
consideration therefor is paid by another, a resulting trust immediately arises in favor of the
person furnishing the consideration, and irrespective of any agreement as to the use or trust.
39 Cyc. 118-120; Boskowitz v. Davis, 12 Nev. 446-458; 26 R.C.L. 1214, sec. 57; 25 Cal. Jur.
191; Tryon v. Huntoon (Cal.), 7 P. 741-743; Root v. Kuhn (Cal.), 197 P. 150; Meagher v.
Harrington (Mont.), 254 P. 432; Lynch v. Herrig (Mont.), 80 P. 240.
And if from the evidence the court believes that plaintiff was in possession of the
certificate after issuance on the books, then the presumption is wholly against deceased and
those claiming through him. Lynch v. Cox, 23 Pa. St. 265; Howard v. Howard (Ky.), 118
S.W. 367.
Plaintiff's prima-facie case is made by merely showing that he furnished the consideration
for the purchase, and that paper title was taken in the name of deceased. 26 R.C.L. 1231, sec.
77; 39 Cyc. 152-153 and n. 13, 14 and 15; Wright v. Wright (Ill.), 89 N.E. 789, 26 L.R.A.
(N.S.) 161-166; 26 R.C.L. 1231, sec. 77 and n. 6; 25 Cal. Jur. 178, sec. 46.
The equitable rule of resulting trust applies to personal property such as shares of stock. 39
Cyc. 125 and n. 49; McClung (Tenn.), 64 S.W. 89, 89 Am. St. Rep. 961-966; 25 Cal. Jur.
181, sec. 49.
The certificate for the stock was received and held by plaintiff without objection or claim
therefor by deceased in his lifetime. See Costa v. Silva (Cal.), 59 P. 695.
There was no laches here because plaintiff was in possession of the stock certificate and
there was no hostile claim asserted until recently. Dorman v. Dorman (Ill.), 58 N.E. 235, 79
Am. St. Rep. 210; Moultrie v. Wright (Cal.), 98 P. 258 (Syll. No. 12); 25 Cal. Jur. 261, sec.
123 et seq.
C.E. Robins, for Respondents:
We believe the law to be as asserted by plaintiff, that the naked fact of legal title being
taken in the name of one person, but the consideration therefor is paid by another, a
resulting trust immediately arises in favor of the person furnishing the consideration.
one person, but the consideration therefor is paid by another, a resulting trust immediately
arises in favor of the person furnishing the consideration. But that consideration must be paid
or furnished at or before the time the title passes. Hellman v. Messmer (Cal.), 16 P. 766;
Levy v. Ryland (Nev.), 109 P. 907; Boskowitz v. Davis, 12 Nev. 458; Frederick v. Haas, 5
Nev. 389, 394; Woodside v. Hewel (Cal.), 42 P. 997; 25 Cal. Jur. 184; Ducie v. Ford (U.S.)
34 L.Ed. 1094; 39 Cyc. 129; 26 R.C.L. 1223; Eisenberg v. Goldsmith (Mont.), 113 P. 1128;
Lynch v. Herrig (Mont.), 80 P. 240.
Here the title passed December 19, 1921, and the consideration was paid or furnished on
January 25, 1922. It was furnished after the corporation was organized, after a meeting of the
stockholders, after a board of directors had been elected.
Goodin's rights and title and obligations were fixed when the secretary of state issued his
certificate or charter. If plaintiff had not deeded the mining claims, still Goodins' obligation
existed. Rev. Laws of Nev., secs. 1132, 1135; 14 C.J. 514; sec. 767; 1 Thompson on
Corporations, secs. 513, 1138; 1 Purdy's Beach Corp., sec. 205; Utah Hotel Co. v. Madsen
(Utah), 134 P. 580; Thompson on Corporations (3d ed.), sec. 588; M. & S.V.R.R. Co. v.
Hildreth, 53 Cal. 129, 6 Cal. Jur. 920.
To establish a resulting trust, the evidence must be clear, satisfactory and convincing. 5
Nicholas Applied Evidence, 4534; 26 R.C.L. 1231; Babcock v. Colegrove, 131 Am. St. Rep.
82.
The stock in question, the only stock of the company standing in the name of James T.
Goodin, was listed in the inventory and appraisement of his estate. The plaintiff was one of
the appraisers and knew that the estate claimed 25,000 shares of stock in the company. No
objection was made by him to the listing of the stock as a part of the assets of the estate. The
administrators went on with the administration of the estate and its property without an
intimation that plaintiff claimed the stock. In fact, notices of meetings of stockholders, after
that time and for several years, were sent to the representatives of the estate.
after that time and for several years, were sent to the representatives of the estate.
OPINION
This is a controversy over the ownership of 25,000 shares of corporate stock of the Seven
Troughs Gold Mines Company, registered on its corporate books in the name of James T.
Goodin, who died intestate at his home in Lovelock, Nevada, on December 1, 1922. The
contest is between L.A. Friedman, the holder of the unindorsed original certificate for the
stock issued in the name of the deceased, and his brother and widow, as administrators of his
estate. At the suit of Friedman the shares of stock were found to belong to the estate, and
consequential relief was granted against the defendant corporation, who disclaimed having
any interest in the stock. Friedman appeals.
It will be presumed that corporate stock registered in the name of deceased belonged to
him. It will also be presumed that, where corporate stock is assigned to one person, a trust
therein results in favor of the person who advances the consideration of the transfer. With
these presumptions in mind we approach the consideration of the real question in this case,
Who is the owner of the stock?
The facts are undisputed. The uncontradicted proof is that in 1921 and several years prior
thereto Friedman was the dominate owner and manager of two mining corporations, one the
Seven Troughs Mining Company, and the other the Seven Troughs Coalition Mining
Company. Rather than consolidate the corporations, Friedman caused to be formed and
organized a local corporation called the Seven Troughs Reorganized Mines Company, for the
declared and avowed purpose of taking over the combined holdings of said corporations,
which consisted of fifty or more lode mining claims situate in the Seven Troughs Mining
District, Pershing County, Nevada.
claims situate in the Seven Troughs Mining District, Pershing County, Nevada.
It is conceded that, in order to establish a private corporation under the local law, it is
necessary to have at least three persons act as incorporators, and, under the law as it then
stood it was necessary to set out in the articles of incorporation the amount of subscribed
capital stock with which the corporation would commence business, which could not be less
than $1,000. It was also necessary, under the law, to set out in the articles or certificate of
incorporation the name of each original subscriber to the capital stock and the amount
subscribed by each.
The projected corporation was duly created on December 19, 1921, with a capital stock of
2,500,000 shares of the par value of 1 cent per share. To meet the requirements of the law,
C.H. Jones, an employee of Friedman, A.V.Twigg, and James T. Goodin, a personal friend
and business associate of Friedman's of long standing, at Friedman's special instance and
request acted as incorporators of the company, and upon his solicitation subscribed in the
articles the minimum amount of capital stock with which the corporation would commence
business, namely, 100,000 shares of the par value of 1 cent per share. Jones subscribed for
50,000 shares, and Twigg and Goodin subscribed for 25,000 shares each. It is inferable from
the evidence that it was the common understanding of all the parties that the stock so
subscribed would be paid for by Friedman, he, as between the parties, being the beneficiary of
the corporation. In so far as the record shows, neither incorporator nor subscriber had any
interest in the corporations dominated by Friedman.
On January 25, 1922, the incorporators met in the office of Friedman at Lovelock, Nevada,
and organized the corporation by the election of seven directors, including themselves and
Friedman. On the adjournment of the organization meeting the directors met, elected officers,
and adopted by-laws. The directors present were Jones, Twigg, Goodin, Friedman, and H.E.
Loufek.
H.E. Loufek. At this meeting Friedman, in pursuance of and to carry out the purpose for
which the corporation was created and organized, made an offer to the directors in writing,
which reads in part as follows: Gentlemen: Subject to immediate acceptance I offer to
convey, or secure conveyance, to you by good and sufficient deed, all of the right, title, estate
and interest of the owners of, in and to the following mining claims in Seven Troughs Mining
District, Pershing County, Nevada, to-wit, * * * for the sum of $56,250.00, or in lieu of cash
money, at your option, I agree to accept 2,250,000 shares of stock in your company, subject to
the following conditions: (This offer to be considered payment for subscriptions of
organizers.) * * * The board, by resolution, accepted that portion of the offer to transfer to
Friedman 2,250,000 shares of stock in exchange for the conveyance to the corporation of the
mining claims described in the offer, which constituted the entire holdings of said former
corporations, with the understanding that the conveyance was taken and accepted as payment
for the stock subscribed for in the articles of incorporation. It appears that, on the acceptance
of the offer, certificates of the shares of stock so subscribed were then and there issued in the
name of each subscriber for the respective amounts subscribed. It is inferable from the
evidence that at the time of the issuance of the certificates they were detached from the stock
certificate book and delivered to Friedman. It is conceded that certificate No. 3, for 25,000
shares, issued in the name of James T. Goodin, was not indorsed by him. These are the shares
which form the basis of this suit.
On the death of Goodin, which occurred on December 1, 1922, the administrators of his
estate, on November 19, 1923, filed with the court below, on the probate side thereof, their
inventory of the estate which had come to their possession and knowledge. C.H. Jones, A.V.
Twigg, and L.A. Friedman were duly appointed appraisers of the estate. On said date, to wit,
November 19, 1923, the appraisers filed with the clerk of the court their appraisement of
the property exhibited in the inventory.
1923, the appraisers filed with the clerk of the court their appraisement of the property
exhibited in the inventory. There was listed in the inventory, among other shares of stock, in
this language: 25,000 shares Seven Troughs Reorganized Mines Co. $1,000.00. In so far as
the record shows these shares of stock were not in the possession of the administrators at the
time, and there is nothing to show that the shares were ever reduced to their possession.
In September, 1927, the name Seven Troughs Reorganized Mines Company was
changed by amendment of its articles to that of Seven Troughs Gold Mines Company.
No steps other than as stated were taken in the matter of the estate of James T. Goodin,
deceased, until on July 23, 1929, when an order was made therein authorizing and directing
the sale of all the personal property of the estate. On July 30, 1929, demand was made upon
the secretary of the corporation to issue to the administrators a proper certificate showing the
estate of James T. Goodin, deceased, to be the owner of 25,000 shares of the capital stock of
the corporation, which demand was refused.
On August 21, 1929, Friedman began this suit in the court below, with the result above
stated.
No claim was made upon the trial of the case that the unindorsed certificate issued in the
name of Goodin was secretly or fraudulently delivered to Friedman on the date of its
issuance, to wit, January 25, 1922. No claim was made that Friedman was not a holder of the
certificate for value and in good faith. The case was tried and decided upon the theory that
plaintiff sought to have the shares of stock impressed with a resulting trust in his favor, free
from the claim or claims of the representatives of the estate of Goodin.
1, 2. We are of the opinion that the evidence is not sufficient to support the finding that the
shares of stock in suit belongs to the estate of James T. Goodin, deceased. On the contrary,
we are of the opinion that the proof shows that it was the intention of the parties, presumed,
if not expressed, that the beneficial interest in the stock subscribed for by Goodin in the
articles of incorporation on the solicitation of Friedman to meet the requirements of the
law {Comp.
presumed, if not expressed, that the beneficial interest in the stock subscribed for by Goodin
in the articles of incorporation on the solicitation of Friedman to meet the requirements of the
law (Comp. Laws 1929, sec. 1602) was not to go or be enjoyed with the legal title. In such
case, a trust is implied or results in favor of the person for whom the equitable interest is
assumed to have been intended. 3 Pomeroy Equity Jurisprudence (4th ed.), sec. 1031.
It is argued on behalf of the respondents that to effectuate a trust of the type which
involves cases where shares of stock are assigned to one person, while the purchase price is
paid by another person, it is absolutely indispensable that the payment should be actually
made by the beneficiary at or before the time of transfer. From this description it is contended
that the legal title to the stock in suit passed to Goodin on the date the corporation was
created, to wit, on December 19, 1921, and, the consideration not having been furnished by
Friedman for the stock until on January 25, 1922, some 40 days after title passed to Goodin,
no resulting trust could arise. To effectuate a trust under the rule invoked, there must be a
transfer. Under the terms of the disposition made of the stock, no transfer could have been
made except by the proper officers of the corporation on its organization. There is no
connection between the date on which a corporation is created and the date on which
disposition is made of its stock.
If we were dealing with a question of When does a subscription for stock in a projected
corporation become valid and binding as between the corporation and the subscriber? it
might be said that there is a formidable array of authority to the effect that the formation of
the corporation without any positive act of acceptance by the corporation of the subscription
or its payment amounts to such an acceptance of the subscription as will render it binding and
irrevocable. See annotations following Coleman Hotel Co. v. Crawford, 61 A.L.R. page 1459.
Here, however, we are dealing with an entirely different question.
entirely different question. Counsel having invoked the rule, he should bring his facts within
it and no so interpret it as to make it serve as a barrier to defeat its application. We think the
argument advanced to defeat the application of the rule to the admitted facts falls by its own
unreason.
3, 4. The learned trial court was influenced to refuse to establish a resulting trust in the
stock for the reason that it appeared that Friedman, an interested party, appraised the stock as
the property of the estate of James T. Goodin, deceased, which act of appraisement was
inconsistent with his claim of trust. An inventory filed by an administrator is not conclusive
evidence either for or against him, but is open to denial or explanation. McNabb v. Wixom, 7
Nev. 163. The same may be said of an appraisement. Friedman's appraisement of the stock as
an officer of the court, under the circumstances, was not an act inconsistent with his claim of
trust and was in no sense and a disavowal or repudiation thereof.
5. The court was further influenced to refuse to establish the trust for the reason that
upwards of five years elapsed after the death of Goodin before the bringing of the suit to
establish and enforce a trust in the stock. Under the circumstances the listlessness of
Friedman was not laches. According to his uncontradicted testimony, he was in ignorance of
the fact that the certificate had not been indorsed by Goodin until in the year 1927, and that he
had no knowledge or information that the stock was claimed by his representatives until in
July, 1929. His suit was brought within 30 days thereafter. We are not disposed to condone
the listlessness of either of the parties concerning stock claimed by Friedman to be worth
$12,500, and claimed by the administrators of the estate of Goodin to be worth $25,000. This
indifference operates as much against one party as the other. We have considered the bill of
exceptions from every viewpoint presented by counsel. Our conclusion is that, under the facts
and circumstances as disclosed by the record, the court erred in finding the stock in equity
belonged to the estate of James T.
the estate of James T. Goodin, deceased, and not to Friedman. The judgment in favor of the
administrators of the estate of Goodin is therefore reversed, and the cause is remanded, with
directions to the court below to enter judgment in favor of Friedman, in accordance with the
prayer of his complaint.
It is so ordered.
November 25, 1931.
Per Curiam:
Rehearing denied.
____________
53 Nev. 333, 333 (1931) Hough v. Nevada Treasure Mining Co.
HOUGH v. NEVADA TREASURE MINING CO. Et Al.
No. 2935
July 1, 1931. 300 P. 948.
Appeal from order vacating and setting aside judgment held appeal from special order made after
final judgment, and not appeal from final judgment, therefore within sixty-day appeal statute (N.C.L.
1929, secs. 8794, 8885, 8909).
Nevada Compiled Laws 1929, sec. 8885, provides that appeal may be taken from a
final judgment within six months after rendition of judgment, and appeal may be
taken from any special order made after final judgment within sixty days after order
is made and entered in minutes of court. Section 8794 defines judgment as the final
determination of the rights of the parties, and section 8909 provides: Every
direction of a court or judge made or entered in writing, and not included in a
judgment, is denominated an order.
Appeal from Third Judicial District Court, Eureka County; E.P. Carville, Judge presiding.
Action by M.J. Hough against Nevada Treasurer Mining Company, a corporation, wherein
Catharine M. Gallagher intervened. From an order vacating a default judgment against
defendant, plaintiff appeals. On motions to dismiss the appeal and to strike the record on
appeal.
record on appeal. Motion to dismiss the appeal granted.
Harwood & Diskin, for Respondent:
The affidavit of the clerk of the lower court establishes conclusively that the order of the
court of which appellant complains was made and entered on the minutes of the court on the
9th of June, 1930. The order vacates the judgment rendered on January 10, 1930, quashes
the execution issued on said judgment, and restrains the sheriff from proceeding further on
said execution. It is elementary, of course, that the action taken by the court constitutes and is
an order made after judgment. N.C.L. 1929, sec. 8885.
The appeal from the order in this case not having been perfected within the sixty days as
required by statute, said appeal must be dismissed. Ballard v. Purcell, 1-2 Nev. 290; Reinhart
v. Company D, 23 Nev. 369; Maynard v. Johnson, 2 Nev. 16.
Clyde D. Souter, James T. Boyd and Sardis Summerfield, for Appellant:
It is true that the court in this cause made its decision and signed a judgment after the entry
of the original judgment, but we do not believe it to be the fact that the decision and the
written decree is what is usually contemplated to be an order made after judgment. The whole
proceeding to set aside the original judgment was at the instigation of Catharine M.
Gallagher, who was not a party to the original proceeding and never participated in it,
therefore she was a stranger to it. It was necessary for said Catharine M. Gallagher to
commence an action of some sort to get standing in the cause, and this she attempted to do by
her petition filed therein. After considering the affidavits, the court made its decision in a
written opinion and subsequently made its findings of fact and conclusions of law and signed
a judgment, although the judgment was labelled Order. It must be clearly apparent that the
court rendered a judgment when it directed the vacating of the judgment rendered against
the Nevada Treasurer Mining Company, restrained the sheriff from proceeding further and
awarding costs to Catharine M.
rendered against the Nevada Treasurer Mining Company, restrained the sheriff from
proceeding further and awarding costs to Catharine M. Gallagher, for the so-called order
could not have gone to that extent. A decision that determines the rights of the parties in an
action or proceeding is a judgment, and is not a direction. N.C.L. 1929, secs. 8794, 8909.
OPINION
The appeal was perfected on December 3, 1930. Omitting its formal parts, the notice of
appeal reads as follows:
1. From that certain order and judgment, and the whole thereof, made and entered in the
minutes of the Court in the above-entitled action and Court on the 6th day of June, 1930,
wherein and whereby it was ordered that the Judgment heretofore entered in the
above-entitled cause in favor of M.J. Hough and against Nevada Treasure Mining Company,
aforesaid, be vacated and set aside and for nothing holden; that the default of the Defendant,
Nevada Treasurer Mining Company, be set aside and vacated and for nothing holden; and
whereby a judgment in favor of the Defendant, Nevada Treasure Mining Company, aforesaid,
and the intervening petitioner and stockholder, Catharine M. Gallagher, was entered, and the
prayer of the petitioner granted.
The minute order and judgment, so called, referred to in the notice of appeal, reads as
follows:
It will therefore be the order of the Court that the Motion to strike made by plaintiff be
and the same hereby is denied that the objections of plaintiff to the introduction of the
petition of Catharine M. Gallagher notice of Motion. affidavits in support of the motion order
to shoe cause. certificate of the Secretary of State of the State of Washington and to the
hearing of the Motion be overruled.
It is further ordered adjudged and decreed that the judgment in this case be vacated and
set aside. That the execution issued thereon be quashed and declared of no effect and that the
sheriff of Eureka County Nevada be restrained from proceeding further on said execution.
Plaintiff is given an exception to the Court's rulings and the petitioner is hereby awarded
costs.
Dated this 6th day of June, 1930.
The respondent Catharine M. Gallagher moves to dismiss the appeal upon the ground that
it was not taken in time. She moves to strike the record on appeal upon the ground that the
papers, documents, and files constituting the transcript on appeal are not incorporated in a bill
of exceptions in conformity to the statute. If it be determined that the motion to dismiss the
appeal is well taken, it will be unnecessary to pass upon the motion to strike.
The question raised by the motion to dismiss is resolvable into one of whether the appeal
is taken from a final judgment in an action or special proceeding, or whether it is an appeal
from a special order made after final judgment, entered in the minutes of the court. Section
8885, N.C.L. 1929, provides that an appeal may be taken from a final judgment in an action
or special proceeding in which the judgment is rendered, within six months after the rendition
of judgment; an appeal may be taken from any special order made after final judgment within
sixty days after the order is made and entered in the minutes of the court.
The statutes point out for us the distinction between a judgment and an order. A
judgment is the final determination of the rights of the parties in the action or proceeding.
Section 8794, N.C.L. 1929. Every direction of a court or judge made or entered in writing,
and not included in a judgment, is denominated an order. An application for an order is a
motion. Section 8909, N.C.L. 1929.
The court is of one mind that the appeal herein was taken from an order vacating and
setting aside a final judgment made and entered in the minutes of the court on the 6th day
of June, 1930, upon the motion and petition of the respondent, Catharine M.
judgment made and entered in the minutes of the court on the 6th day of June, 1930, upon the
motion and petition of the respondent, Catharine M. Gallagher. As the appeal was not
perfected until the 3d day of December, 1930, or more than sixty days after the minute order
and judgment was entered in the minutes of the court, the appellant's right of appeal was lost.
Weinrich v. Porteus, 12 Nev. 102; Reinhart & Co. v. Company D., 23 Nev. 369, 47 P. 979.
The motion to dismiss the appeal is sustained.
It is so ordered.
September 9, 1931.
Per Curiam:
Rehearing denied.
____________
53 Nev. 337, 337 (1931) Holman v. Vieira Et Al.
HOLMAN v. VIEIRA Et Al.
No. 2859
July 2, 1931. 300 P. 946.
1. Frauds, Statute of.
Courts of equity will enforce parol agreements respecting the sale of lands in cases of mistake of
fraud, and in furtherance of this end will reform deeds and other written instruments.
2. Reformation of Instruments.
Court will reform deed or other written instrument only in clear case of mistake or fraud.
Before a court of equity will declare that a parol agreement creates an obligation and confers a
remedial right not within the statute of frauds, mistake or fraud must be clearly proven and the precise
terms of the oral agreement definitely established; otherwise it will refuse to decree a reformation of the
written instrument.
Evidence held insufficient to show such a definite parol agreement between parties regarding right of
way across land retained by grantor as to authorize reformation of deed.
Action by Julia Holman, an unmarried woman, against John J. Vieira, sometimes known
as Jack Vera, John Doe, and Richard Roe. Judgment for plaintiff, and defendants appeal from
judgment and order denying motion for new trial. Reversed.
N.J. Barry, for Appellant:
There is only one way in which a deed can be reformed, and that is on account of mistake
of the partiesand it must have been a mutual mistakeor it must have been on account of
fraud, and refusal to perform an oral agreement which the law required to be in writing is not
fraud. Moore v. Bernardini, 47 Nev. 33.
To reform a deed the evidence must be clear and convincing. Leonis v. Lazzarovich, 53 Cal.
54; 23 R.C.L. p. 365, 367.
In this case plaintiff says she was to have a right of way; defendant flatly denies it. The
burden of proof is not established by plaintiff. Besides, there are circumstances that
corroborate defendant's testimony.
John S. Sinai, for Respondent:
Mutuality of mistake is a matter of proof, as is any other element of a case, and the fact, as
here, that appellant denies the mistake does not make it any less a mutual mistake if the
parties, as the evidence shows, understood and agreed that the right of way should be
conveyed with the other real property to which it adjoined and formed an integral part.
Parchen v. Chessman, 164 P. at 532; Wilson v. Wilson, 23 Nev. 26, 45 P. at 1010; Cox v.
Beard, 89 P. 671.
The pleadings and evidence in the case at bar clearly indicate a situation wherein
respondent was induced to act to her prejudice by the false representations of appellant.
Taylor v. Deverell, 23 P. 629; Holson v. Butler, 218 P. at 57; Ruhling v. Hackett, 1 Nev. at
369.
At the very best, there is but a conflict of evidence, which is not sufficient upon which to
predicate a successful appeal. Carey v. Clark (Nev.), 161 P. at 715.
OPINION
This is a suit in equity for the reformation of a deed. The amended complaint alleges in
part: That John J. Vieira is the owner of lots 3, 4, 5, and 6, in block 8, Morrill Smith's
addition to the city of Reno, county of Washoe, State of Nevada; that plaintiff is the owner of
lots 9, 10, and 11 in said block; that on or about the 26th day of January, 1926, defendant
Vieira sold to plaintiff said lots 9, 10, and 11 now occupied by her as a dance hall and
residence; that, previous to the time said sale was made, defendant by oral agreement and
understanding gave plaintiff a right of way from Fourth Street to her said premises; that said
right of way had been in existence for over twenty years and the said dance hall and residence
had been in existence and operated by defendant Vieira for a number of years and before the
land was sold to plaintiff; that said right of way extends from lots 9, 10, and 11 in block 8 to
the southerly line of Fourth Street and across a portion of defendant's above-described
property; that defendant Vieira represented to plaintiff that the permanent right of way would
exist to the said property; that said property would not have been purchased had she not relied
upon the said representations and agreement by said defendant Vieira affecting the right of
way; that at the time he executed and delivered to plaintiff the deed to said property he well
knew that the description contained in said deed did not include the said right of way. Here
follows a legal description of the right of way and other allegations, among which are
averments of fraud practiced by defendant Vieira upon plaintiff, and injury and damages
sustained by her.
In the prayer of the amended complaint it is asked among other matters that the court make
an order that the deed of conveyance executed by defendant to plaintiff be reformed and
corrected according to the real intent of the parties; that, when so reformed said deed should
convey the right of way described as fully as if the same had originally been described
therein; that said defendant Vieira, within thirty days after the entry of said order and
judgment and service upon him of a notice of entry thereof, execute and deliver to
plaintiff a deed of said premises conforming to said order and judgment; that, in case of
his failure so to do, the title to said premises pass from him to and vest in plaintiff in fee
simple, as fully as if property conveyed in said deed.
should convey the right of way described as fully as if the same had originally been described
therein; that said defendant Vieira, within thirty days after the entry of said order and
judgment and service upon him of a notice of entry thereof, execute and deliver to plaintiff a
deed of said premises conforming to said order and judgment; that, in case of his failure so to
do, the title to said premises pass from him to and vest in plaintiff in fee simple, as fully as if
property conveyed in said deed.
A demurrer to the amended complaint for insufficiency of facts was overruled, and
defendant answered. The case was tried by the court sitting without a jury. All of the
allegations of the amended complaint were found to be true except as to damages. Judgment
was rendered in favor of plaintiff as prayed for except as to damages. Defendant Vieira has
appealed from the judgment and order denying his motion for a new trial. We will hereinafter
refer to the parties as plaintiff and defendant.
1. It is well settled that courts of equity will enforce parol agreements respecting the sale
of lands in cases of mistake or fraud, and in furtherance of this end will reform deeds and
other written instruments. This rule has been recognized and applied in this state for over half
a century. Ruhling v. Hackett, 1 Nev. 360; Wainwright v. Dunseath, 46 Nev. 361, 211 P.
1104.
2. But it is equally well settled that a court will administer this high equitable remedy only
in a clear case.
3. Before a court of equity will declare that such a parol agreement creates an obligation
and confers a remedial right not within the statute of frauds it will require cogent proof. 23
R.C.L. 309. The decisions which support this proposition are numerous. Not only must the
mistake or fraud be so proven; the precise terms of the oral agreement claimed must be made
equally clear. If the terms of the previous agreement claimed are not definitely established by
the evidence, a court of equity will refuse to decree a reformation of the written
instrument.
a court of equity will refuse to decree a reformation of the written instrument. Guilmartin v.
Urquhart, 82 Ala. 570, 1 So. 897; Slobidisky v. Phenix Ins. Co., 52 Neb. 395, 72 N.W. 483;
Bishop v. Clay Ins. Co. 49 Conn. 167; 23 R.C.L. p. 310.
4. Putting aside other objections of defendant and applying the foregoing rule to the
evidence in this case, we are convinced that the evidence fails to show such a definite parol
agreement between the parties as to authorize the judgment of the trial court reforming the
deed.
Defendant in his testimony denies that he agreed to give or grant a permanent right of way
across lots 4 and 5 in said block 8 or at all. Be that as it may, it nowhere appears from the
evidence that he agreed to convey a right of way as described in the complaint and judgment.
The right of way as so described, while somewhat narrower at the bridge across a ditch, is
about 46 feet wide at one end and about 40 feet wide at the other. It includes the major part of
said lot 4 and a portion of the southwest corner of said lot 5. Plaintiff testified that she had set
up in her complaint such description of the right of way and that as far as she knew it was a
proper description. But she did not testify that defendant had agreed to convey this particular
tract of land as the right of way, nor are there any facts in the record from which it is made to
appear that the defendant agreed to this particular tract of land.
When asked by her counsel at the time as to what her conversation with defendant was
regarding the right of way, she answered: That I was buying the whole business clear to
Fourth Street. Again she said that he said that the right of way went with the premises and
that it had been open for twenty-one years. But at no time did she testify to anything from
which it could be inferred that his idea of what constituted the right of way was the same as
her understanding of it. So far as appears to the contrary, he may have considered the right of
way to be no wider than was necessary for an automobile or wagon to pass over; yet the
trial court on such an indefinite state of the evidence awarded her a tract of land almost
as large as an entire 50-foot lot and through the heart of his property.
for an automobile or wagon to pass over; yet the trial court on such an indefinite state of the
evidence awarded her a tract of land almost as large as an entire 50-foot lot and through the
heart of his property. She testified that she put a fence along the right of way on the west side
to where it runs into the alley between her property and his, graveled it, and filled it in and
fixed the bridge, and that defendant was present when the gravel was filled in on the right of
way. Whether she meant she had gravel placed over the entire width of the right of way as
described in the complaint and that defendant was a witness to all of this improvement is not
clear. Anyhow, this kind of testimony is altogether too indefinite either alone or considered in
connection with the other testimony mentioned to establish the allegation of the complaint as
to the right of way.
The judgment is reversed.
September 1, 1931.
Per Curiam:
Rehearing denied.
____________
53 Nev. 343, 343 (1931) State Ex Rel. Hinckley v. Court
STATE Ex Rel. HINCKLEY v. SIXTH JUDICIAL
DISTRICT COURT in and for Humboldt
County, Et Al.
No. 2915
July 3, 1931. 1P. (2d) 105.
Water law must be interpreted in light of intention of legislature that people who are entitled to use of
waters of stream system actually get it without needless waste or controversy (N.C.L. 1929, sec. 7890 et
seq).
2. Statutes.
Intent of statute will prevail over its literal sense.
Water commissioner held authorized to open spillway so as to permit water improperly or illegally in
ditch to return to stream system (N.C.L. 1929, sec. 7890 et seq.).
4. Statutes.
Whenever a power is given by statute, everything lawful and necessary to the effectual execution of
the power is given by implication of law.
No title can be acquired to the public waters of the state by capture or otherwise, but only a
usufructuary right can be obtained therein (N.C.L. 1929, sec. 7890 et seq.).
Waters of stream system can be properly and legally distributed by officers only when done in
accordance with terms of order of determination of relative rights by state engineer, in absence of decree
of court (N.C.L. 1929, secs. 7926, 7928).
Section 38 of water law, as amended (Stats. 1915, p. 381, 382, sec. 8; sec. 7928,
N.C.L.), provides that from and after the filing of the order of determination by state
engineer and during the time the hearing of said order is pending, the water of the
stream system shall be distributed in accordance with the terms of said order of
determination; and sec. 36 1/2 of the water law, as amended (Stats. 1927, p. 337; sec.
7926, N.C.L.), provides that from and after the filing of such order of determination
the distribution of the water of such stream system by the state engineer, his
assistants, the water commissioners or their assistants, shall be under the supervision
and control of the court, and they shall be deemed officers of the court in distributing
water under and pursuant to the order of determination or pursuant to a decree of the
court.
7. Contempt.
Where waters of stream system could only be properly and legally distributed by officers in
accordance with terms of order of determination, replacing of boards previously removed from spillway
of ditch by water commissioner as officer of court would not constitute contempt, if
water commissioner was not acting in accordance with terms of order of
determination {N.C.L. 1929, sec.
spillway of ditch by water commissioner as officer of court would not constitute contempt, if water
commissioner was not acting in accordance with terms of order of determination (N.C.L. 1929, sec. 7890 et
seq.).
8. Certiorari.
Authority of supreme court upon writ of certiorari shall not be extended further than to determine whether
the inferior tribunal regularly pursued its authority (sec. 9237, N.C.L.).
9. Contempt.
In proceedings for contempt based on interference with officer of court distributing waters of stream
system, exclusion of testimony tending to show legal right to use of water appropriated, though error, held
not in excess of jurisdiction of court so as to render contempt order null and void (N.C.L. 1929, sec. 9237).
Although there could be no contempt if defendant was taking water he had a right
to take, the lower court proceeded regularly, had jurisdiction of the subject matter
and of the defendant, hence it had authority to proceed, and did not divest itself of
jurisdiction by an incorrect ruling.
10. Contempt.
Finding of relator guilty of a contempt not charged held not to render judgment absolutely void where
it appears that he was also found guilty of the contempt charged.
11. Contempt.
Portion of judgment for contempt, directing incarceration until fine imposed is paid, held void
(N.C.L. 1929, secs. 8950, 8951).
Nevada Compiled Laws, sec. 8950, provides that, where one is adjudged guilty of
contempt, a fine may be imposed not to exceed $500, or that he may be imprisoned
not exceeding twenty-five days, or both; sec. 8951 provides for imprisonment until
the act ordered to be performed is complied with, but that does not apply.
Appeal from Sixth Judicial District Court, Humboldt County; Frank T. Dunn, Judge
presiding.
Original proceeding in certiorari by the State, on the relation of Grayson Hinckley, to
review an order of the Sixth Judicial District Court in and for Humboldt County and the
Honorable Frank T. Dunn, presiding Judge thereof, adjudging relator guilty of contempt of
court. Judgment affirmed in part, and in part annulled.
Milton B. Badt and James Dysart, for Relator:
While the writ of certiorari is not a writ of error, `it is nevertheless,' as suggested in
Schwarz v. Superior Court, 111 Cal.
`it is nevertheless,' as suggested in Schwarz v. Superior Court, 111 Cal. 112, 43 Pac. 582, a
means by which the power of the court in the premises can be inquired into; and for this
purpose the review extends, not only to the whole of the record of the court below, but even
to the evidence itself, when necessary to determine the jurisdictional fact.' If, then, by looking
at the evidence, we can see that the court exceeded its power, we have a right to examine the
evidence for that purpose. McClatchy v. Superior Court (Cal.), 51 P. 696.
Hinckley appeared in court and said: I offer to prove that certain orders were made by this
district court and by Hon. George A. Bartlett, presiding judge thereof, in the exercise of the
supervision and control of the distribution of the waters, vested in him by statute, and that the
very act of the state engineer, which I am accused of interfering with, was contrary to those
orders.
The court, in refusing to permit such showing, acted identically as did the lower court in
the McClatchy case, wherein the refusal to permit the testimony was held to be more than
mere error and an absolute violation of the defendant's right to be heard, and the judgment
based on such record was held to be void. See, also, Van Hoosear v. Railroad Commission
(Cal.), 207 P. 903, 907; Ex Parte Lake (Cal.), 224 P. 126; Hotaling v. Superior Court (Cal.),
217 P. 73, 74.
Nowhere in the water law of the State of Nevada is authority given to the state engineer to
regulate water by manipulating spillways. As far as the legislature has gone, it has not given
to the state engineer the right to break open a man's ditch and take the water out of that ditch
without even alleging that the water was unlawfully in that ditch. That control, under all of
the sections of the water law, is to be exercised at the headgate. In a proceeding criminal in its
nature, such as this proceeding in contempt, there can be no additional implied powers to the
state engineer not given him by statute.
As appears from the petition, the plaintiff, over defendant's objection, introduced evidence
to show not only that the defendant had replaced boards in the spillway of his ditch, that
had been removed by the state engineer, but also that the defendant had opened up and
admitted water from the Humboldt river into the headgate of his ditch, over one and
one-half miles from said spillway and not mentioned or referred to or charged as a
contempt in the complaint or order to show cause, and that thereafter the court, in its
opinion, decision and judgment, although holding specifically that the state engineer had
not the right to open up the spillway, found the defendant guilty of contempt in
permitting the water to flow out of the river into his headgate.
the defendant had replaced boards in the spillway of his ditch, that had been removed by the
state engineer, but also that the defendant had opened up and admitted water from the
Humboldt river into the headgate of his ditch, over one and one-half miles from said spillway
and not mentioned or referred to or charged as a contempt in the complaint or order to show
cause, and that thereafter the court, in its opinion, decision and judgment, although holding
specifically that the state engineer had not the right to open up the spillway, found the
defendant guilty of contempt in permitting the water to flow out of the river into his headgate.
Hence, we say that the one act for which the defendant was held guilty of contempt by the
court was in no matter charged against him in the affidavit or order to show cause.
Errors in admitting evidence against defendant in support of matters not charged in the
affidavit, and errors in refusing the defendant's offer to introduce evidence to sustain his
innocence are certainly errors at law, but are much more than that; they go to the jurisdiction
of the court itself to adjudge him guilty of contempt. State v. New Mexican Printing Co.
(N.M.), 177 P. 751; Lindsley v. Superior Court (Cal.), 245 P. 212, 214.
The court finds that half of the water in the ditch was there lawfully and that the other half
was there unlawfully, and we are confronted with the fact that the state engineer, in opening
up the spillway, took out of the defendant's ditch not only the water that was unlawfully in the
ditch at that point, but also the water that was there lawfully. The state engineer's act in so
doing was without authority in law, and he was as much a trespasser as any private individual
who took water from a ditch under circumstances under which the court itself holds that it
was lawfully there.
It is evident from the language of the lower court that it was mislead as to the purport and
intent of the ruling of this court in State ex rel. Malone v. District Court, 52 Nev. 270.
Assuming for the moment that it was not necessary to allege in the complaint that the
distribution of the waters of the Humboldt river stream system was under the supervision
and control of the court, the defendant was most certainly deprived of his opportunity to
be heard when he was denied the right to show that the court had exercised its right of
supervision and control contrary to the orders and actions which the state engineer was
attempting to enforce.
that it was not necessary to allege in the complaint that the distribution of the waters of the
Humboldt river stream system was under the supervision and control of the court, the
defendant was most certainly deprived of his opportunity to be heard when he was denied the
right to show that the court had exercised its right of supervision and control contrary to the
orders and actions which the state engineer was attempting to enforce. State ex rel. Olson v.
Allen (Wash.), 45 P. 644.
The rule with regard to punishments for contempt and the review of judgments of
contempt by certiorari has been laid down by this court in the case of Lutz v. District Court,
29 Nev. 152; Maxwell v. Rives, 11 Nev. 213, 221.
The court had no jurisdiction to impose a fine in excess of $500, or imprisonment not
exceeding twenty-five days in jail, pursuant to N.C.L. sec. 8950.
Gray Mashburn, Attorney-General, and W.T. Mathews, Deputy Attorney-General, for
Respondents:
The complaint for criminal contempt herein is sufficient. The charges against the
defendants therein named were stated with clearness and amply charged contempt. Philips v.
Welch, 12 Nev. 158. So that, if evidence was adduced before the lower court sufficient to
satisfy the court that the contempt charged in the complaint had been committed, the court
could enter its judgment of conviction.
The evidence is clear that by regulating the ditch by means of the spillway that a complete
stoppage of water would be had and that it would be returned to the river. The water
commissioner was regulating the flow of water in this ditch and was lawfully denying the use
of water to the relator, and by taking out the boards in the spillway and thereby returning the
water to the river had fastened the ditch within the meaning of the statute, just as much so as
though a dam had been constructed in the ditch, turning the water back into the main stream,
as was done in State ex rel. Malone v. District Court, 52 Nev. 270
Court, 52 Nev. 270; and, in so doing, such commissioner was an officer of the court, and an
unlawful interference with such officer constitutes a contempt. Malone v. District Court,
supra.
We respectfully submit that nowhere in the court's decision does it appear that relator was
held guilty of opening the headgate, but, on the contrary, the court expressly said: Legally, I
must find that he has been guilty of contempt in interfering with an officer of this Court.
And, while the court discussed some of the evidence in his decision, nowhere is it said that he
relied solely or at all on the evidence of acts in contempt at the headgate.
The court below had complete jurisdiction of the contempt matter before it, and, having
such jurisdiction, it had the jurisdiction to enter the judgment and order it did enter, and, if it
did commit any error therein (which is not conceded), still such error will not be considered
by this court. Kapp v. District Court, 31 Nev. at p. 446; State v. District Court, 32 Nev. 189.
The matter before the court was that of criminal contempt alleged to have been committed by
relator, not a matter of passing upon the right in water or the adjudicating of that right.
Whether or not the state engineer may have denied the right in respondent to use the water,
and whether such denial was correct, had no bearing in the case then at bar. The state
engineer was charged with the duty to divide or cause to be divided the waters of the
Humboldt river, and, under the law, he had the right to shut or fasten the headgates or ditches
and regulate the flow of water therein. Any interference with such acts, when lawfully
performed by him, by reason of section 36 1/2 of the water law, becomes a contempt.
The intent of the law is clearit is to provide a reasonable means of regulating and
dividing the waters of natural streams among the users thereof and to place someone in
control thereof to so far as possible administer the law. To fasten a ditch can only mean one
thing in this law, that is to prevent water continuing to flow through it.
to flow through it. If the language of the statute is somewhat uncertain, it should be so
construed as to give it effect, rather than to nullify it. Malone v. District Court, supra.
The court's decision does not sustain relator's contention that the court affirmatively finds
that one-half of the water in the ditch was lawfully there by reason of a natural overflow from
the Humboldt river and the other half unlawfully admitted through the headgate. But, if the
finding is as contended for by relator, then all the more reason for regulating the ditch at the
spillway, for if the water of the stream got into the ditch at a point between the headgate and
the spillway and this condition was not remedied by relator and the water of the river
continued to flow down the ditch, surely, to get that water back into the river, the water
commissioner was within his rights in using the spillway. The relator cannot do indirectly
what he could not do directly under the law, and, at a time that law was being administered
by the proper officer and an officer of the court, divert the waters of the stream through and
past a point on the ditch that had been regulated and was in the control of the officer.
From the early days of this state this honorable court has consistently held that certiorari
extends only to the question of whether the board or court acted within its jurisdictional
powers. Such was the holding in Maynard v. Railey, 2 Nev. 313, and such was the holding in
the recent case of Mack v. District Court, 50 Nev. 318. During this time many cases on
certiorari have been passed upon by this court, and we have found none that has departed
from the holdings just stated.
OPINION
This is an original proceeding in certiorari to review an order adjudging relator guilty of
contempt of court for violating an order of determination in the matter of the determination
of the relative rights of the appropriators of the waters of the Humboldt river stream
system, made pursuant to the water law of the state.
of the determination of the relative rights of the appropriators of the waters of the Humboldt
river stream system, made pursuant to the water law of the state. Stats. 1913, p. 192, as
amended. See N.C.L. sec. 7890 et seq.
On June 27, 1930, contempt proceedings were instituted in the sixth judicial district court
of Nevada, in and for Humboldt County, upon the complaint of one J.A. Millar, wherein it is
alleged that on January 17, 1923, there was filed with the clerk of said court by the then state
engineer a final order of determination in the matter of the determination of the relative rights
of the claimants and appropriators of the waters of the Humboldt river stream system and its
tributaries; that W.V. Hollan was at all times mentioned in the complaint a duly appointed,
qualified, and acting water commissioner, and as such an officer of the court in distributing
the waters of the Humboldt river stream system and its tributaries; that prior to June 15, 1930,
there had been constructed a ditch known as the Highline ditch, which diverted water from
the Humboldt river, in which had been constructed a spillway and floodgate; that on the 15th
day of June, 1930, W.V. Hollan, acting as water commissioner as aforesaid, removed the
boards from said spillway and floodgate and thereby prevented the waters of said river from
passing down and through said ditch and past said spillway and floodgate, and simultaneously
posted a notice at said point, as such water commissioner, of his action, and warning all
persons not to interfere with said spillway; that thereafter on said 15th day of June, 1930,
James McDermott and John Doe Welch did unlawfully, knowingly, wilfully and
contemptuously replace and caused to be replaced the boards in said spillway and floodgate,
and did thereby cause the waters of said Humboldt river to flow through said ditch and below
the point in said ditch where said spillway and floodgate were constructed and down to and
upon the lands of the Humboldt Land & Cattle Company, a corporation; that Grayson
Hinckley did on said day knowingly, unlawfully, willfully, and contemptuously encourage
and order said defendants McDermott and Welch to do said contemptuous act; that the
acts of said defendants, and each of them, prevented said Hollan, as such water
commissioner and officer of the court, from distributing the waters of the Humboldt river
pursuant to the said final order of determination.
on said day knowingly, unlawfully, willfully, and contemptuously encourage and order said
defendants McDermott and Welch to do said contemptuous act; that the acts of said
defendants, and each of them, prevented said Hollan, as such water commissioner and officer
of the court, from distributing the waters of the Humboldt river pursuant to the said final
order of determination.
Upon the filing of the complaint aforesaid, an order directing the defendants to show cause
why they should not be punished for contempt of court was entered.
In due time the defendants appeared and demurred to the complaint. The demurrer having
been overruled, the defendants filed a joint answer to the complaint, in which they denied that
they had committed any act constituting contempt and affirmatively alleged matters which
will be hereinafter referred to.
The ditch in which is the spillway mentioned has its headgate something over one and
one-half miles above the spillway, and it is contended by relator, among other things, that
between the headgate and the spillway a portion of the water which was in the ditch found its
way therein at a point about one-third of the distance between the headgate and the spillway,
because of the fact that the river is higher at that point than is the ditch. It is also a fact that
the relator removed or caused to be removed a portion of the obstruction placed in the
headgate to enable a portion of the water of the stream to flow into the ditch, after the officer
had undertaken to close such headgate and posted a notice thereon to that effect, though the
complaint in the contempt proceedings does not so charge. In this connection it is said that
the water which thus got into the ditch is captured water, and hence the water commissioner
had no control over it and no right to remove the boards from the spillway. In support of this
contention it is urged that the authority of the officer was limited to the provisions of section
7939, N.C.L. The section mentioned, so far as it is material, reads:
It shall be the duty of the state engineer to divide or cause to be divided the waters of
the natural streams * * * among the several ditches and reservoirs taking water
therefrom, according to the rights of each * * * and to shut or fasten, or cause to be shut
or fastened, the head gates or ditches.
or cause to be divided the waters of the natural streams * * * among the several ditches and
reservoirs taking water therefrom, according to the rights of each * * * and to shut or fasten,
or cause to be shut or fastened, the head gates or ditches. * * *
The statute does not expressly authorize the officer to open a spillway so as to permit
water improperly or illegally in a ditch to return to the stream system.
1-3. In determining this question, we must look to the intention of the legislature in
enacting the water law. In Vineyard Land & Stock Co. v. District Court, 42 Nev. 1, 171 P.
166, we held that the proceeding under the water law is a quasi public proceeding, wherein all
claimants to the use of water of a stream system may have their claims adjudicated, to the end
that the waters of the stream may be distributed under public supervision without needless
waste or controversy. In other words, it was the intention of the legislature that the people
who are entitled to the use of the waters of a stream system actually get it without needless
waste or controversy. The statute must be interpreted in the light of that intention. This court,
in State v. Ross, 20 Nev. 61, 14 P. 827, and other cases, has held that the intent of a statute
will prevail over the literal sense. Such is the well-recognized rule. 2 Lewis' Sutherland, Stat.
Const. p. 694. Interpreting the statute according to its obvious intent, we must hold that the
officer had the right to open the spillway.
4. It is a well-known rule of statutory construction that, whenever a power is given by
statute, everything lawful and necessary to the effectual execution of the power is given by
implication of law. State v. Great Northern Ry. Co., 68 Wash. 257, 123 P. 8.
5. The water thus flowing into the ditch was a portion of the water of the stream system.
Under a long line of decisions in this and other western states no title can be acquired to the
public waters of the state by capture or otherwise, but only a usufructuary right can be
obtained therein. If there were any foundation for the contention as to "captured" water, all
that a man has to do in certain situations, to get more water than he is legally entitled to
use, is to blast down a side of the mountain at a precipitous point into the river bed,
which might require weeks to remove, and thus "capture" the entire flow of the river for
the irrigating season.
the contention as to captured water, all that a man has to do in certain situations, to get
more water than he is legally entitled to use, is to blast down a side of the mountain at a
precipitous point into the river bed, which might require weeks to remove, and thus capture
the entire flow of the river for the irrigating season. The statute makes it the duty of the state
engineer, and the water commissioner working in pursuance of his order, to distribute the
waters of the stream system, and it makes no exceptions in favor of any one or of any
condition which may exist or be produced to defeat the purpose of the law.
It was the evident contention of the state in the lower court, in which the respondent court
apparently acquiesced, that any interference on the part of relator with the water comissioner
in the distribution of the water of the Humboldt river constituted a contempt of court, even
though the water commissioner was not distributing the water in accordance with the order of
determination. And such is the contention of the present attorney-general. We do not approve
of this theory of the law.
Section 38 of the water law as amended (Stats. 1915, p. 381, 382, sec. 8; section 7928,
N.C.L.) provides that from and after the filing of the order of determination and during the
time the hearing of said order is pending, as in the instant matter, the water of the stream
system shall be distributed in accordance with the terms of said order of determination; and
section 36 1/2 of the water law as amended (Stats. 1927, p. 337; section 7926, N.C.L.),
provides that from and after the filing of such order of determination the distribution of the
water of such stream system by the state engineer, his assistants, the water commissioners or
their assistants, shall be under the supervision and control of the court, and they shall be
deemed officers of the court in distributing water under and pursuant to the order of
determination or pursuant to a decree of the court.
6, 7. From a reading of the two amendments referred to, it is seen that the water of the
Humboldt river could be properly and legally distributed by the officers mentioned only
when done in accordance with the terms of the order of determination.
to, it is seen that the water of the Humboldt river could be properly and legally distributed by
the officers mentioned only when done in accordance with the terms of the order of
determination. If this was not being done by the officer, it was no contempt to replace the
boards in the spillway. There is nothing in State v. District Court, 52 Nev. 270, 286 P. 418,
intimating the contrary.
Upon the hearing in the contempt matter, the defendants sought to introduce evidence
tending to show that their principal was entitled to the use of the amount of water which was
flowing in the ditch, and hence was not guilty of any contempt.
8, 9. The court sustained an objection to this line of testimony, and it is now contended
that the court in so ruling not only committed error, but denied to the defendants the right to
be heard in presenting their defense, and hence exceeded its jurisdiction, and that therefore
the judgment is null and void.
In support of the contention put forth, relator relies upon the opinion in McClatchy v.
Superior Court, 119 Cal. 413, 51 P. 696, 39 L.R.A. 691, and other California cases based
upon it.
It was certainly error for the court to refuse to hear the evidence, for, if relator were taking
water he had a right to take, there could be no contempt, and the only way for the court to
determine that question was by the taking of testimony; however, we are not prepared to say
that the court by its ruling divested itself of jurisdiction, or thereby so exceeded its
jurisdiction as to render its order null and void.
The opinion in the McClatchy Case, supra, is not convincing. Three of the seven justices
dissented from the main opinion. One of the justices merely concurred in the judgment
annulling the order under review, and observed that the case was a very close one, whereas
Beatty, C.J., concurred in the judgment annulling the order for a reason not given in the main
opinion; hence it will be seen that the opinion laying down the rule relied upon here is of but
little weight, in fact of none, except in so far as the reasoning thereof appeals to us.
except in so far as the reasoning thereof appeals to us.
It is true that the supreme court of California subsequently seemed to have accepted the
opinion in that case as controlling, but with us there is a long line of decisions laying down
the rule which should guide this court in determining the extent of its inquiry on certiorari.
This question is settled by our civil practice act, which provides that our authority upon writ
of certiorari shall not be extended further than to determine whether the inferior tribunal
regularly pursued its authority. (Section 9237, N.C.L.)
The question before us seems to be a simple one. Did the lower court proceed regularly?
The complaint charging contempt was filed, citation issued, and the defendants appeared. The
court had jurisdiction of the subject matter and of the defendants; hence it had authority to
proceed. The court heard testimony in support of the contempt charge, after which testimony
in behalf of the defendants was offered, amounting to many thousand words. During the
taking of the testimony, both for and against the defendants, numerous objections were made
and ruled upon, as was the objection to the testimony in question.
It is not contended that the court did not have jurisdiction to rule upon objections to
tendered evidence as a general proposition, but that the court ruled incorrectly in the matter in
question and by so doing divested itself of jurisdiction. This court has often taken the contrary
view. In Phillips v. Welch, 12 Nev. 158, 170, it was said, in speaking of a determination by
the district court in a contempt proceeding: 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 any inferior tribunal, in the
course of judicial investigations, would be in excess of jurisdiction, and the writ of
certiorari would be converted into a writ of error instead of remaining, where the statute
has placed it, a writ of review.
committed by any inferior tribunal, in the course of judicial investigations, would be in excess
of jurisdiction, and the writ of certiorari would be converted into a writ of error instead of
remaining, where the statute has placed it, a writ of review. * * *
These reviews are sustained by many decisions of this court, as shown in State v. District
Court, 32 Nev. 189, 105 P. 1022. See, also, State v. McFadden, 43 Nev. 140, 182 P. 745.
We do not think the court exceeded its jurisdiction in rejecting the tendered evidence.
10. It is also contended that the court exceeded its jurisdiction in finding the relator guilty
of a contempt not charged, in that he was found guilty of opening the headgate to the ditch,
with which he was not charged. This contention seems to be well founded, but we think it
appears that he was also found guilty of the act charged. This being true, the judgment is not
absolutely void.
It is further urged that the court found that half of the water in the ditch was legally there;
hence the court could not adjudge relator in contempt. We do not so interpret the finding of
the court. It is true that the court stated that, if a certain contention is true, half the water was
illegally in the ditch. But the court went no further. We think there is no merit in this
contention.
11. The court, after finding relator guilty of contempt, ordered that he pay a fine, and for
failure to do so that he be incarcerated in the county jail until the fine be paid. It is insisted
that the court was without jurisdiction to render such a judgment. Section 8950, N.C.L.,
provides that, where one is adjudged guilty of contempt, a fine may be imposed not to exceed
$500, or that he may be imprisoned not exceeding twenty-five days, or both. Section 8951
provides for imprisonment until the act ordered to be performed is complied with, but that
does not apply in the instant case.
The judgment assessing the fine is valid, but that portion of it directing that the relator
be incarcerated until the fine is paid is void.
portion of it directing that the relator be incarcerated until the fine is paid is void. So much of
the judgment as imposes a jail sentence is hereby annulled.
It is ordered that the proceeding as to the fine be and remain in full force and effect.
____________
53 Nev. 357, 357 (1931) State Ex Rel. Trathen v. Dunkle
STATE Ex Rel. TRATHEN, Sheriff v. DUNKLE,
County Treasurer
No. 2944
July 8, 1931. 1 P. (2d) 108.
1. Licenses.
Sheriff is not entitled to retain commissions for collection of licenses under open gambling law of
1931, notwithstanding provisions of license tax act of 1915 authorize sheriff, as ex officio license
collector, to retain commission except when he is required to turn same into the county treasury for
county purposes (N.C.L. 1929, sec. 6697; Stats. 1931, c. 99, sec. 4).
2. Licenses.
Since open gambling law is a complete legislative enactment repealing all acts and parts of acts in
conflict with it, there is no implied obligation on the part of the state and municipalities to compensate
sheriff as ex officio license collector, as provided in prior license tax act (N.C.L. 1929, sec. 6697; Stats.
1931, c. 99, sec. 4).
Original proceeding in mandamus by the State, on the relation of Russell Trathen, as
Sheriff of Washoe County, against D.W. Dunkle, as Treasurer of Washoe County. Petition
denied and proceeding dismissed.
L.D. Summerfield, for Petitioner:
Petitioner's claim for commissions is based upon the provisions of sec. 6697, N.C.L. 1929.
That this act is prospective in its operation, applying to licenses collected under other and
later statutes, is clear, both under general rules of statutory construction and under the express
terms of the act itself. Said sec. 6697 is worded in the present tense and comes within the rule
stated in 36 Cyc. as follows:
Where a statute is expressed in general terms and in words of the present tense it will as
a general rule be construed to apply not only to things and conditions existing at its
passage, but will also be given a prospective interpretation, by which it will apply to such
as come into existence thereafter."
words of the present tense it will as a general rule be construed to apply not only to things and
conditions existing at its passage, but will also be given a prospective interpretation, by which
it will apply to such as come into existence thereafter.
The rule is also expressed in 25 R.C.L. 778.
The act of which said sec. 6697 is a part, clearly indicates that its operation is not confined
to the licenses therein named, but includes license money collected under other statutes.
There is noting in the gambling act itself which indicates that the license collector shall not
receive the same commission on those licenses as on others.
It is petitioner's contention that the offices of sheriff and ex officio license collector are
separate and distinct. The petitioner's compensation as sheriff is fixed by a special act (Stats.
1907, p. 104). His compensation as license collector is fixed by sec. 6697, N.C.L. He is, as a
matter of law, entitled to both. State v. LaGrave, 23 Nev. 373; Bradley v. Esmeralda County,
32 Nev. 159.
Gray Mashburn, Attorney-General, and W.T. Mathews, Deputy Attorney-General, for
Respondent:
The gambling act of 1931 is not an act providing salary or emoluments of office for
sheriffs. It is an act to legalize the gambling games and devices therein mentioned. Nowhere
in said act is the sheriff made ex officio license collector. On the contrary, the terms of the act
are clear that he performs the duties devolved upon him as sheriff, and no mention is made of
a right to retain or receive a commission for the collection of the license fees, as is provided
with respect to other county licenses.
It is noted that relator's claim for commissions is based upon the provisions of sec. 6697,
N.C.L. 1929. It may be, as contended by relator, that this act is prospective in its operation,
and we have no quarrel with the principle of law quoted from 36 Cyc. and 25 R.C.L. 778 on
this point. But relator has overlooked the provisions of sec. 6664, N.C.L., which is section 1
of the act of which said sec.
act of which said sec. 6697 is sec. 33. Said sec. 6664 provides that: The sheriff of each of the
several counties shall be ex officio collector of licenses as provided in this act. There shall be
levied and collected the following licenses: * * *. The act then goes on to provide licenses
for various amusements mentioned in the statute, cigarette license, liquor license, and sheep
grazing license; but nowhere in the act is a license provided for gambling and gambling
games and devices, and the sheriff, as ex officio license collector or as sheriff, could not
under this statute issue a gambling license or collect a fee therefor.
The enumeration of certain matters in a statute is an exclusion of all matters not
mentioned. Ex parte Arascada, 44 Nev. 30.
The rule as to basis of compensation of public officers is well stated in 22 R.C.L., sec. 216.
And the legislature has full control of such matters. 22 R.C.L. 532, sec. 227.
Statutes relating to the fees and compensation of public officers must be strictly construed in
favor of the government, and such officers are entitled to only what is clearly given by law.
46 C.J. 1019, sec. 250; Clover Valley Land Co. v. Lamb, 43 Nev. 375.
OPINION
This is a proceeding in mandamus, instituted in this court on the petition of Russell
Trathen, as sheriff of Washoe County, for the purpose of obtaining an authoritative
determination in his favor of his disputed right to retain as ex officio license collector 6 per
cent of the gross amount of license moneys collected by him within the boundaries of the
incorporated cities of Reno and Sparks, in Washoe County, under the provisions of an act
approved by our last legislature commonly known as the Open Gambling Law. Stats. 1931,
c. 99, p. 165.
1. The facts are undisputed. The question involved in the pleadings is whether the relator
as sheriff of Washoe County is authorized to retain the commission provided for in section
33 of the license tax act of 1915 {section 6697, N.C.L. 1929), which provides as follows:
"The sheriff, as ex officio license collector, shall receive, and is hereby authorized to
retain {except when he is required to turn same into the county treasury for county
purposes), as compensation for the collection of licenses, excepting sheep-grazing
licenses, six per cent of the gross amount on each business license sold.
in the pleadings is whether the relator as sheriff of Washoe County is authorized to retain the
commission provided for in section 33 of the license tax act of 1915 (section 6697, N.C.L.
1929), which provides as follows: The sheriff, as ex officio license collector, shall receive,
and is hereby authorized to retain (except when he is required to turn same into the county
treasury for county purposes), as compensation for the collection of licenses, excepting
sheep-grazing licenses, six per cent of the gross amount on each business license sold.
Twenty per cent shall be allowed for the collection of sheep-grazing licenses according to the
provisions of section 21 of this act.
The question involved is one purely of statutory construction. Section 2 of the open
gambling law provides as follows: Any person, firm, association or corporation desiring to
conduct, operate, or carry on any gambling game, slot machine, or any game of chance
enumerated or provided for in section one of this act shall, upon proper application to the
sheriff of the county wherein it is proposed that such slot machine, game or games shall be
conducted or operated, be issued a license for each particular device or game or slot machine
under the following conditions and regulations. * * *
Section 3 provides: Licenses shall be prepared by the county auditor and shall be issued
and accounted for as is by law provided in respect to other county licenses. * * *
Section 4 provides: On the first Monday of each month the sheriff shall pay over to the
county treasurer all moneys received by him for licenses and take from the treasurer a receipt
therefor, and he shall immediately on the same day return to the county auditor all licenses
not issued or disposed of by him as is by law provided in respect to other county licenses; it is
hereby made the duty of the sheriff in his county to demand that all persons, firms,
associations and corporations required to procure licenses in accordance with this act take out
and pay for the same, and he shall be held liable on his official bond for all moneys due for
such licenses remaining uncollected by reason of his negligence."
held liable on his official bond for all moneys due for such licenses remaining uncollected by
reason of his negligence.
Section 5 provides: All moneys received for licenses under the provisions of this act shall
be paid, twenty-five (25%) per cent to the state treasurer for general state purposes, and
seventy-five (75%) per cent to the county treasurer of the county wherein the same is
collected for general county purposes; provided, where the license is collected within the
boundaries of any incorporated city or town the county shall retain twenty-five (25%) per cent
of said moneys, and the incorporated city or town shall receive fifth (50%) per cent of said
moneys so collected, and the same shall be paid into the treasury of such incorporated city or
town for general purposes; provided further, where the license is collected within the
boundaries of any unincorporated city or town that is under the control of the board of county
commissioners under and by virtue of an act entitled An act providing for the government of
the towns and cities of this state,' approved February 26, 1881, the county shall retain
twenty-five(25%) per cent of said moneys, and fifty (50%) per cent of said moneys so
collected shall be placed in the town government fund for general use and benefits of such
unincorporated city or town.
Section 15 provides: All acts and parts of acts in conflict with the provisions of this act
are hereby repealed.
Russell Trathen, as sheriff of Washoe County, contends and insists that under section 33,
supra, it was the duty of D.W. Dunkle, as treasurer of Washoe County, under section 4 of the
open gambling law, supra, to allow him to retain 6 per cent of the gross amount of moneys
received for licenses from within the boundaries of the incorporated cities of Reno and
Sparks, in Washoe County, to wit, the sum of $720.45.
The learned counsel for petitioner contends that the open gambling law is a license tax
measure and must be construed in connection with the license tax act of 1915; that section
33, supra, is a general law, prospective in its operation, and applies alike to all persons,
subjects, and business within its general purpose and scope coming into existence
subsequent to its passage.
be construed in connection with the license tax act of 1915; that section 33, supra, is a general
law, prospective in its operation, and applies alike to all persons, subjects, and business
within its general purpose and scope coming into existence subsequent to its passage. 25
R.C.L. 778. From this rule of statutory construction counsel insists that the compensation of
sheriffs as ex officio license collectors as provided in section 33 refers to and applies to the
compensation of sheriffs as license collectors under the open gambling law of 1931.
With all respect, we are of the opinion that there is no force or effect to the argument. It
will be observed that under the open gambling law nothing more is required of sheriffs than
that they shall receive the license fees tendered by applicants therefor and pay over all of the
moneys so received to the treasurer of the county on the first Monday of each month and take
from him a receipt therefor, and immediately on the same day return to the county auditor all
licenses not issued or disposed of by him as is by law provided in respect to other county
licenses. The licenses are dealt with as county licenses. The duty to pay over to the county
treasurer all moneys received is unconditional. This provision affords evidence of the
construction that sheriffs, in the performance of duties so simple and easy of performance, are
not authorized to retain any part or portion of the moneys received by them for licenses. In
other words, the duties are imposed as a part of the office of sheriff, and not as sheriffs as ex
officio license collectors.
The fact that the moneys so received are payable to the state, county, city, or town,
incorporated or unincorporated, as the case may be, for general purposes, is of no concern or
interest to sheriffs, whose duties begin and end with the receipt of the moneys and their
payment over to the treasurer of the county unconditionally.
2. It is suggested in argument that since the additional duties imposed upon sheriffs by the
open gambling law are separate and distinct from the office of sheriff, there is an implied
obligation on the part of the state, its municipalities and quasi municipalities, to
compensate sheriffs for the collection of licenses as ex officio license collectors as
provided in section 33 of the license tax act of 1915.
sheriff, there is an implied obligation on the part of the state, its municipalities and quasi
municipalities, to compensate sheriffs for the collection of licenses as ex officio license
collectors as provided in section 33 of the license tax act of 1915. The argument at first seems
plausible, but when it is considered that the open gambling law is a complete legislative
enactment repealing all acts and parts of acts in conflict with it, furnishes sufficient ground
for the construction that the legislature intentionally omitted to provide compensation for the
additional duties imposed as a part of the office of sheriff.
From the foregoing considerations, it follows that the petitioner is not entitled to retain the
commissions provided for in section 33 of the license tax act of 1915 for the collection of
licenses under and by virtue of the open gambling law of 1931.
It is ordered that the petition for the writ of mandate be denied, and the proceeding
dismissed, with costs.
____________
53 Nev. 364, 364 (1931) State Ex Rel. Grimes v. Board
STATE Ex Rel. GRIMES Et Al. v. BOARD OF COM-
MISSIONERS OF CITY OF LAS VEGAS Et Al.
No. 2943
July 8, 1931. 1 P.(2d) 570.
1. Pleading.
Demurrer admits well-pleaded facts.
2. Gaming.
Power of board of commissioners to restrict number of gambling licenses in city held necessarily
implied from statutory power to license and regulate gambling (Stats. 1931, p. 165 et seq.; p. 374, sec.
10).
3. Gaming.
On account of nature of business of gambling, a very wide discretion in restricting number of licenses
is conferred by statute empowering city to license and regulate gambling (Stats. 1931, p. 165 et seq.; p.
374, sec. 10).
4. Municipal Corporations.
Statutory power to license and regulate gambling confers wide discretion to city authorities in passing
reasonable rules and regulations concerning it as they deem necessary for police government of
municipality (Stats. 1931, p. 165 et seq.; p. 374, sec. 10).
5. Gaming.
Denial by board of city commissioners of application to conduct, in the city of Las Vegas, a gambling
game known as craps held in the exercise of sound discretion (Stats. 1931, p. 165 et seq.; p. 374, sec. 10).
6. Gaming.
Fact that board of city commissioners, in resolution denying application for gambling license, stated
number of such licenses already granted and their belief that public interest required that no additional
licenses be granted, together with presumption that officers who are acting under oath will act lawfully,
held sufficient, in absence of any evidence to contrary, to rebut claim of unlawful discrimination (Stats.
1931, p. 165 et seq.; p. 374, sec. 10).
7. Gaming.
Board of city commissioners held empowered to adopt ordinance authorizing board to refuse to grant
or renew gambling licenses, in its discretion, notwithstanding they were empowered to exercise such
discretion independently thereof (Stats. 1931, p. 165 et seq.; p. 374, sec. 10).
Original proceedings in mandamus by the State, on the relation of Roy Grimes and others,
against the Board of Commissioners of the City of Las Vegas and others. Writ denied.
(Sanders, J., dissenting.)
Chas. Lee Horsey, for Petitioners:
The noted author of the law on municipal corporations, Mr. Dillon, in Dillon on Municipal
Corporations, vol. II, sec. 675, p. 1020, footnote, states the rule to be: But when the statute
prescribes the qualifications of the persons who may be licensed, the city cannot by ordinance
prescribe additional qualifications under its power to restrain, license, etc. Territory v.
Robertson, 19 Okla. 149, 92 P. 144.
It will be noted from the language used that the board of city commissioners of the city of
Las Vegas attempted by section 7 of its ordinance to reserve unto themselves an arbitrary
discretion to refuse to grant or renew each or any license. They fix no standard of additional
qualifications, even if they had the power so to do. Such standard would have to be general in
its nature, apply equally and with uniformity. The attempt to reserve the power to reject
without regard for the right of the applicant or regardless of any reason for their acts is void.
By such method there is no safeguard to preclude them from acting from ulterior motives, nor
to prevent their following their mere whim and caprice. 43 C.J. 243; Smith v. Hosford
Building Inspector (Kans.), 187 P. 685; Yick Woo v. Hopkins, 30 L. Ed. 220; Cicero Lumber
Co. v. Town of Cicero, 176 Ill. 9, 51 N.E. 758, 42 L.R.A. 696; 28 Cyc. 368.
From the language used in the resolutions adopted by the board of city commissioners in
their meeting of April 17 it is apparent that their phraseology and ideas in their application of
their power under section 7 of ordinance 165 are, almost verbatim, from the opinion in the
Nebraska case of In Re Jugenheimer, 116 N.W. 966, 18 L.R.A. (N.S.), 386. It is respectfully
urged that the said Nebraska decision is not in accordance with the great weight of authority,
nor with sound constitutional principles. Marksville v. Worthy, 123 La. 432, 49 So. 11, 131
Am. St. Rep. 353; 43 C.J. 228; Curran Bill Posting, etc. Co. v. Denver, 47 Colo. 221, 107 P.
107 P. 261, 27 L.R.A. (N.S.) 544; Robinson v. Wood, 196 N.Y.S. 209; State v. Stahlman, 81
W. Va. 335; 94 S.E. 497, L.R.A. 1918c, 77; Fruth v. Charleston, 75 W. Va. 456, 84 S.E. 185,
L.R.A. 1915c, 981; 43 C.J. 229; Dobbins v. Los Angeles, 195 U.S. 223, 49 L.Ed. 169.
The board had authority to prohibit gambling in all its various forms, but did not see fit to
exercise such power as a matter of public policy, but on the contrary clearly adopted a
different policy by permitting open gambling in the city of Las Vegas and issuing six licenses
therefor. Not having exercised its power to prohibit generally, it cannot deny equal protection
of the law and equal privileges by arbitrarily granting some licenses and refusing others when
the latter are equally worthy and qualified. 43 C.J. 232; Tuggman v. Chicago, 78 Ill. 405,
under Discussion of Rule; Franz Gunnarssolin v. The City of Sterling, 92 Ill. 5696; Zenome
v. Mound City, 103 Ill. 552; Monmouth v. Popol, 183 Ill. 634; Cairo v. Feuchter, 159 Ill. 155;
People v. Van Cleave, 183 Ill. 330, 55 N.E. 698, 47 L.R.A. 795.
Under the guise of regulation the city board has no authority to prohibit as to certain
persons and allow as to others similarly situated, as same would create and foster a monopoly.
Dillon Municipal Corporations (5th ed.), vol. II, sec. 661, p. 994; sec. 676, p. 1021; 19 R.C.L.
sec. 4, p. 10, 11; Melos v. Milwaukee, 149 N.W. 882; Eubank v. City of Richmond (U.S.), 57
L.Ed. 1567; Bear v. Cedar Rapids (Ia.), 126 N.W. 324, 27 L.R.A. (N.S.) 1150; City of
Richmond v. Douglas (Ind.), 13 L.R.A. 587, and footnote, Municipal ordinances, etc.; City
of Montpelier v. Mills (Ind.), 85 N.E. 6.
Such discrimination as is attempted by said ordinance 165 and by the resolutions and
actions of the city board pursuant thereto, and in the case at bar, constitutes an invasion of the
rights of petitioners under art. 14 of the amendments to the constitution of the United States,
and is a violation of similar rights of petitioners under secs.
petitioners under secs. 1 and 8 of art. I of the constitution of the State of Nevada. Ex Parte
Levy, 43 Ark. 42, 51 Am. Rep. 550; 15 R.C.L. on p. 307; State of Louisiana ex rel. Edward
Galle v. City of New Orleans, 67 L.R.A. 70.
F.A. Stevens, for Respondents:
Since section 13b of the 1931 gambling act reserved to incorporated cities the power only
to fix, impose and collect a license tax in such cases where such powers were conferred by
the charter or organic law of such incorporated city, the 1931 amendment to the city charter
expressly conferred upon the board of city commissioners the additional express powers of
regulation and prohibition of gaming carried on within the limits of the incorporated city of
Las Vegas. This special act relating to the city of Las Vegas differs from the general gambling
act with respect to such powers of regulation and prohibition, and the effect is to suspend in
the city of Las Vegas the operation of the general act with respect to such difference. Tilden
v. Esmeralda County (Syl. 2), 32 Nev. 319; 19 R.C.L. sec. 112, p. 805, n. 9; Joyce on
Intoxicating Liquors, sec. 204, p. 240, 241, n. 1, and cases cited; State ex rel. Crumpton v.
Montgomery, 177 Ala. 212, 59 So. 294.
We submit that the case of Smyth v. Butters (Utah), 112 P. 809, 32 L.R.A. (N.S.) 393, is in
itself decisive of the case at bar. Neither the provisions of the city charter or of ordinance No.
165 are mandatory upon the board to grant a license; in fact, the ordinance specifically
provides that the board of city commissioners, in the exercise of their discretion, may refuse
to grant or renew the license provided for in this ordinance, etc. The proceedings of the
board of city commissioners, set forth as exhibits to the petition, show examination,
consideration, and inquiry respecting the application, and further show the exercise of a
reasonable discretion in the rejection of the petitioner's application. There is nothing whatever
in the record, except the conclusions and opinions of the pleader to show that the rejection
of petitioners' application was wrongful, unlawful, unreasonable, arbitrary, whimsical
andJor capricious.
the conclusions and opinions of the pleader to show that the rejection of petitioners'
application was wrongful, unlawful, unreasonable, arbitrary, whimsical and/or capricious.
The court should assume that public officers will act from proper motives until the
contrary appears. Perry v. Salt Lake City (Utah), 25 P. 739, 11 L.R.A. 446, at p. 448; New
York ex rel. Lieberman v. Van De Carr (U.S. Sup. Ct.), 50 L.Ed. 305, at p. 310; State ex rel.
Crumpton v. Montgomery, 177 Ala. 212, 59 So. 294, at 302.
From the foregoing it clearly appears that the respondents have not failed to perform an act
which the law especially enjoins as a duty resulting from an office, trust or station, nor that
the petitioners have been denied a right to which they are entitled. There being no mandatory
provisions in the charter of the city nor in its ordinance No. 165 as to the issuance of gaming
licenses, then the right to carry on the business of gaming is a mere privilege and not a vested
right. Such is the rule with respect to licenses to engage in the sale of intoxicating liquors, and
by analogy the same rule applies to gaming licenses.
Section 7 of ordinance No. 165 purports to confer a broad discretion on the board of
commissioners to refuse to grant a license, and does not prescribe therein a rule of action. We
contend that the power so conferred was proper, and that the ordinance is valid and
enforceable. 12 A.L.R. p. 1435 et seq., p. 1453.
For illustration of uncontrolled discretion granted licensing boards, see, Darby v. Pence
(Ida.), 107 P. 484, 27 L.R.A. (N.S.) 1194; Downes v. McClennan (Colo), 210 P. 397; 38 C.J.
689; n. 97 and cases cited; 33 C.J. 552; Black on Intoxicating Liquors, sec. 170, p. 211, 212;
sec. 171, p. 214, 215; Joyce on Intoxicating Liquors, secs. 268, 269, p. 318-321; 33 C.J. sec.
148, p. 553; 33 C.J. sec. 494, p. 554; Perry v. Salt Lake City (Utah), 25 P. 739, 11 L.R.A.
446; State v. Gray (Conn.), 22 Atl. 675; Engel v. O'Malley, 182 Fed. 365.
The record in this proceeding clearly shows that a reasonable discretion was exercised by
the city board in rejecting the application of petitioners. What constitutes arbitrary action is
clearly defined in the case of Smyth v. Butters, supra.
The rule is well settled that local authorities may, in the exercise of reasonable discretion,
limit the number of licenses to be granted for the sale of intoxicating liquor. Brown v.
Jugenheimer (Neb.), 116 N.W. 965, 18 L.R.A. (N.S.) 386; People v. Harrison (Ill.), 99 N.E.
903.
OPINION
1. This is an original proceeding in mandamus wherein petitioners seek to have this court
compel the respondents to grant them a gaming license to open, conduct, and carry on in the
city of Las Vegas a gambling game known as craps. A demurrer was filed to the petition,
which of course admits the well-pleaded facts. Among these facts are the following: On the
30th day of March, 1931, the respondent board of city commissioners adopted an emergency
ordinance to prohibit gaming and the operation of slot machines in the city of Las Vegas,
without first obtaining a license therefor. This ordinance is designated as ordinance No. 165,
and contains seventeen sections.
Petitioners filed their application for said gambling license with the city clerk of the city of
Las Vegas on the 7th day of April, 1931. On the same day and subsequent to the filing of
petitioners' application the board laid over for future consideration the applications of one
Ethel W. Genther and one C.H. Mackay for gambling licenses, and granted gambling licenses
to the following names applicants: The Boulder Club, the Las Vegas Club, A.T. McCarter at
the Exchange Club, and to Sticker and Morgan at the Northern Club, and adopted the
following resolution: Resolved: That this Board of the City Commissioners of the City of
Las Vegas not grant any gambling licenses except to those places of business that held
gambling licenses in the previous quarter and that new licenses not be considered until a
zone is established for the operation of gambling houses, and a policy is adopted by the
Board governing the issuance of new licenses."
of the City Commissioners of the City of Las Vegas not grant any gambling licenses except to
those places of business that held gambling licenses in the previous quarter and that new
licenses not be considered until a zone is established for the operation of gambling houses,
and a policy is adopted by the Board governing the issuance of new licenses.
On the 17th day of April, 1931, the board adopted a resolution rejecting petitioners'
application for a gambling or gaming license. In this resolution rejecting petitioner's
application the following reason for such refusal is given, to wit: For the reason that under
Ordinance No. 165 of said City six gaming licenses (exclusive of licenses issued solely for
the operation of slot machines) have already been issued in this city and upon careful
consideration of the question we believe that public interest requires that no additional
licenses (other than licenses solely for the operation of slot machines) and for additional
games, at the location for which license is already granted, under the provisions of section 9
of said Ordinance No. 165, Any licensee holding a valid existing license from the City of Las
Vegas and from the County of Clark, State of Nevada, for a current quarter may, during such
current quarter, secure a license for additional slot machines, games or devices, as the case
may be, over and above the particular number of slot machines, games or devices for which,
he, they or it holds a license, for the remainder of the quarter by paying to the City Clerk the
license fee above provided, for the additional particular slot machine, game or device, as the
case may be, and for which the City Clerk shall issue an additional license for the remainder
of such quarter, and the additional license shall be upon the same terms and conditions as
though issued under the provisions of section 8 of this Ordinance,' be granted in this city in
excess of the number already granted, until the further order of this Board and until further or
other gaming licenses (other than licenses solely for the operation of slot machines) are
reasonably necessary for the accommodation of the public and the granting of such
further or other licenses will not contravene public interest and will not require an
excessive amount of police protection for a city the size of Las Vegas, Nevada, having in
mind the funds provided for police protection under the City's 1931 and 1932 Budgets
heretofore adopted, and the state of the City funds applicable to police protection."
machines) are reasonably necessary for the accommodation of the public and the granting of
such further or other licenses will not contravene public interest and will not require an
excessive amount of police protection for a city the size of Las Vegas, Nevada, having in
mind the funds provided for police protection under the City's 1931 and 1932 Budgets
heretofore adopted, and the state of the City funds applicable to police protection.
Section 7 of ordinance No. 165 provides as follows: The Board of City Commissioners,
in the exercise of their discretion, may refuse to grant or renew the license provided for in this
Ordinance, to any person, firm, association or corporation, and may also revoke any license
granted hereunder, if in their judgment or discretion it should appear to them that the licensee
is not a proper person, firm, association, or corporation to carry on or conduct the slot
machine, device and/or game for which the license is granted, or that such slot machine,
device and/or game is not being properly or fairly conducted. Upon such revocation the City
of Las Vegas shall be entitled to retain the license fee theretofore paid for such license.
It is alleged that petitioners have no right of appeal from the action of the board, or any
other plain, speedy, or adequate remedy at law. It is further alleged that petitioners possess all
of the qualifications prescribed by law or any ordinance of said city of Las Vegas for
gambling or gaming licenses, and the refusal to grant them a license was arbitrary and
unlawful. The same contention was made by petitioner in his oral argument and in his
memorandum thereof filed herein.
The argument is this: That, inasmuch as the 1931 gambling act prescribes no qualifications
other than that the applicant must be a citizen of the United States, the council is powerless to
prescribe additional qualifications, but must on proper application grant a license to any such,
or, if they have any discretion, must exercise it through some prescribed standard general in
its nature, which will apply equally to all; that otherwise the issuance of a license would rest
within the power of the council to grant or refuse at their mere whim or caprice and
therefore amount to a discrimination unlawful under the constitution.
issuance of a license would rest within the power of the council to grant or refuse at their
mere whim or caprice and therefore amount to a discrimination unlawful under the
constitution.
It is argued that section 7 of the ordinance is void for the reason that it gives the council
the power to discriminate in the matter of issuing licenses.
The contention that the discretion to grant or withhold a license must be exercised through
some prescribed uniform rule of action finds support in the leading case of Yick Wo v.
Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, and a number of state decisions accepting
the doctrine there announced. It is to be noted that the case of Yick Wo and those adhering to
its doctrine were dealing with some useful business or calling in which a property right or
vested interest could be acquired. Even among such, exceptions to the establishment of some
uniform rule of action have been recognized, as in cases where it was difficult or
impracticable to lay down a definite comprehensive rule; St. Louis Consolidated Coal Co. v.
Illinois, 185 U.S. 203, 22 S.Ct. 616, 46 L.Ed. 872; Ex Parte Whitley, 144 Cal. 167, 77 P. 879,
1 Ann. Cas. 13, or where the determination of personal fitness was involved, State ex rel.
Minces v. Schoenig, 72 Minn. 528, 75 N.W. 711.
But it has been held that, for the carrying on of a business of a character regarded as
tending to be injurious, such as dealing in intoxicating liquor, a wide discretion may be given
to licensing officers to grant or withhold a license without prescribing definite and uniform
rules of action. State ex rel. Crumpton v. Montgomery et al., 177 Ala. 212, 59 So. 294; Perry
v. City Council, 7 Utah, 143, 25 P. 739, 740, 998, 11 L.R.A. 446; In Re Jugenheimer, 81 Neb.
836, 116 N.W. 966, 969, 18 L.R.A. (N.S.) 386.
We think the distinction drawn between a business of the latter character and useful trades,
occupations, or businesses is substantial and necessary for the proper exercise of the police
power of the state. Gaming as a calling or business is in the same class as the selling of
intoxicating liquors in respect to deleterious tendency.
intoxicating liquors in respect to deleterious tendency. The state may regulate or suppress it
without interfering with any of these inherent rights of citizenship which it is the object of
government to protect and secure. 12 R.C.L. 709.
The legislature of 1931, by an act approved March 19, 1931, has sanctioned divers forms
of gambling under license. Stats. 1931, p. 165 et seq. The only qualification prescribed by the
statute is that the applicant for a license must be a citizen of the United States. Section 1.
2-4. The legislature has, however, by amendment enacted subsequently to the passage of
the 1931 gambling act, to wit, on March 27, 1931, clothed the board of commissioners of the
city of Las Vegas with power in the premises. Stats. 1931, p. 374, 381, 382. In section 10 of
the amendment appear the following delegations of power to the board of commissioners:
To fix, impose and collect a license tax on all * * * games and gaming houses; to license and
regulate gambling as allowed by law and to prohibit gambling in all its various forms. That
the board of commissioners has power under this amendment to regulate gambling in the city
of Las Vegas, and has power, notwithstanding the legislature has legalized gambling, to
absolutely prohibit it within the city limits, or prohibit it in part by zoning, cannot be denied.
The power to restrict the number of licenses in the city is, we think, a very necessary
implication from the power to license and regulate gambling. This discretion is derived from
the police power of the state. It is necessarily incidental to the delegated power to license and
regulate. On account of the nature of the business of gambling, which is capable of being so
conducted as to be a source of evil, a very wide discretion is thus conferred, not only to
restrict the number of licenses in the city, but to pass all reasonable rules and regulations
concerning it which the city authorities may deem necessary for the police government of the
municipality.
The wide discretion conferred upon a city in the power to regulate a business of this
character and the reasons for it are well discussed in Perry v. City Council, supra.
power to regulate a business of this character and the reasons for it are well discussed in Perry
v. City Council, supra. The court said in the body of the opinion:
The question now comes, has the council any further discretion with respect to granting
such licenses? [Licenses to sell intoxicating liquors.] Under its power to regulate, has it any
discretion as to the person to whom licenses shall be granted, as to the place of business, or as
to the number of licenses to be granted? * * *
It is apparent from the act under consideration that the intention of the legislature in
conferring on the council the power to regulate the sale of liquor was to enable that body to
protect society from the evils attending it. * * *
The authority is delegated to the councilmen as reasonable men, and with the expectation
that they will employ reasonable means. To intrust the privilege of selling intoxicating liquors
to persons whose antecedents, habits, and characters are such as to inspire confidence in
them, and warrant the belief that they would not violate the law by selling to minors, habitual
drunkards, or intoxicated persons, and would be likely to conduct their business in other
respects with due regard to good morals and the peace and happiness of society, would appear
to be within that discretion included in the right to regulate. * * *
A saloon along-side of a school-house or a church would be very undesirable, and to
establish one alongside of a man's home would be regarded as very objectionable. To
authorize the retailing of liquors in the midst of the homes of the people would be palpably
wrong. Neighborhoods infested with liquor saloons are not suitable communities for boys and
girls to grow up in; and so a limitation of the number of places for retailing intoxicating
liquors in a city would be a reasonable regulation.
Because the council may be authorized to license liquor sellers it does not follow that
they must license all who may apply. * * *
General tests might be established by ordinance, by which to determine the fitness of
persons to be intrusted with the business of selling liquor, and ordinances might be
adopted designating localities in which the business may be conducted, and limiting the
number.
which to determine the fitness of persons to be intrusted with the business of selling liquor,
and ordinances might be adopted designating localities in which the business may be
conducted, and limiting the number. But we are not prepared to say that the business may not
be regulated in such respects without ordinance.
The charter confers the power to regulate the traffic upon the city, without expressly
requiring it to be exercised by ordinance. But it is said that the councilmen may act from mere
whims, caprice, partiality, or prejudice unless the regulation is by ordinance. The court should
assume that public officers will act from proper motives until the contrary appears.
It is also claimed that the court must presume that the council acted arbitrarily or without
sufficient reason in refusing the license, because no reason appears upon its record. The court
will not assume that the council refused the license arbitrarily, and without sufficient reason,
without some proof. Being public officers, and acting under the sanction of an oath, the court
will assume that they acted lawfully until the contrary appears.
In concluding its opinion, the court decided: After a careful consideration of the statutes,
the ordinances, and the cases cited, we hold that the defendant possesses the power to license,
regulate, and tax the liquor business, and that in the use of such authority it may exercise a
reasonable discretion in determining who are suitable persons to intrust the business to, the
places where it may be conducted, and the number of licenses it will issue, and that the
council may exercise that discretion when the application is made, when it has not done so by
ordinance before, and that the court will not assume that the council acted arbitrarily, or from
any improper motive, without some evidence to that effect. The writ of mandamus is denied.
The section of the statute under which the foregoing decision was rendered, aside from
certain prohibitions and details, reads: The city council shall have the following powers: (40)
To license, regulate, and tax the manufacturing, selling, giving away, or disposing of in any
manner, any * * * intoxicating liquors."
manufacturing, selling, giving away, or disposing of in any manner, any * * * intoxicating
liquors.
It is said in Crowley v. Christensen, 137 U.S. 86-91, 11 S. Ct. 13, 15, 34 L.Ed. 620, as to
the sale of intoxicating liquors: The police power of the state is fully competent to regulate
the business, to mitigate its evils, or to suppress it entirely. * * * As it is a business attended
with danger to the community, it may, as already said, be entirely prohibited, or be permitted
under such conditions as will limit to the utmost its evils. The manner and extent of
regulation rest in the discretion of the governing authority.
In the instant case the manner and extent of regulation within the city limits has been
delegated to the discretion of the governing authority of the city, and, unless we can say that
that discretion has been exercised in an arbitrary manner, the writ of mandamus must be
denied. In the case of In Re Jugenheimer, supra, the power of a city council to limit the
number of saloons in a city was squarely before the court, and squarely decided in favor of
such power. The court in its opinion in the Nebraska case cited, among others, the case of
State ex rel. Howie v. Common Council of City of Northfield, 94 Minn. 81, 101 N.W. 1063,
which held: The question whether a license for the sale of intoxicating liquors shall be
granted to an applicant therefor within the city of Northfield rests in the sound judgment and
discretion of the common council, in the exercise of which they act judicially, and not
ministerially, and their action cannot be controlled or reviewed by mandamus. The council
may, if in its judgment the best interests of the inhabitants of the city demand it, limit the
number of saloon licenses to be granted.
The Nebraska court quoted approvingly from the body of the opinion of the Minnesota
court as follows: The provisions of the charter vest in the common council authority to
regulate and control the sale of intoxicating liquors within the city, and, in exercising that
authority, the council is clothed with discretionary powers, the exercise of which cannot
be controlled by the courts.
authority, the council is clothed with discretionary powers, the exercise of which cannot be
controlled by the courts. The power to regulate and control includes the power to do all that is
deemed, in the judgment of the council, for the best interests of the municipality and its
inhabitants. It necessarily confers the power to refuse a license, or to limit the number of
licenses to be granted, when, in the judgment of the council, the welfare of the city suggests
such action.
As to the claim made in the instant case that the city authorities must prescribe some
general standard of action, the court, in the case of In Re Jugenheimer, said: While it might
be better to formulate a rule limiting the number of saloons prior to the time set for applying
for a license, and then to devise some equitable way in which the licenses shall be awarded,
we cannot say that the failure of the board to proceed in this manner is so objectionable as to
require a reversal of its action.
The generality of the doctrine of the foregoing cases is mentioned by Mr. Black in his
work on Intoxicating Liquors. He says: The rule obtains in a few of the states that if a person
who desires a liquor license brings himself within the terms of the law, by complying with all
the statutory preliminaries, and possessing the requisite moral and other qualifications, he is
entitled as a matter of law to be licensed, and the license cannot be withheld from him. But in
far the greater number of states, the doctrine is now well settled that the court or board
charged with the duty of issuing licenses is invested with a sound judicial discretion, to be
exercised in view of all the facts and circumstances of each particular case, as to granting or
refusing the license applied for. The principle is, that the licensing authorities act judicially,
and not merely in a ministerial capacity. In determining the nature, as well as the existence, of
this discretion, much will depend upon the language of the local statute, and this, of course,
should be carefully scrutinized. But the general disposition, under all the diverse forms of
statutory provisions, is to leave a wide margin of discretion to the court or board hearing
the application."
wide margin of discretion to the court or board hearing the application. See Muller v.
Buncombe County Com'rs., 89 N.C. 171.
5. We conclude that the denial of petitioners' application for a license to conduct in the
city of Las Vegas a gambling game known as craps was in the exercise of a sound discretion,
and that the writ prayed for should be denied. In so holding we would not have it understood
that we are of the opinion that the board could have granted the six licenses and denied
petitioners' application by the process of selection merely. They could not do so in a case of
this character any more than they could in the case of a harmless business useful in its
tendency, without being guilty of that discrimination which is inhibited by our constitution.
In the case of In Re Jugenheimer, supra, the excise board, in the resolution denying the
application, stated the number of licenses already issued, and stated it was their belief that the
public interest required that no additional licenses be granted. This was a statement of a legal
reason for denying the application.
6-8. The same reason was given by the board in the case before us. It is evidence showing
that the board did not act arbitrarily in granting six licenses in the city and denying petitioners'
application. This, together with the presumption that officers who are acting under the
sanction of an oath will act lawfully, is sufficient, in the absence of any evidence to the
contrary, to rebut the claim of unlawful discrimination. While the board of commissioners
was empowered to exercise such discretion independently of section 7 of ordinance No. 165,
we are of the opinion that it was within the power of the board to adopt this section.
The writ of mandamus is denied.
Sanders, J., dissenting:
This case in mandamus brings under review the proceedings and resolutions of the board
of commissioners of the city of Las Vegas respecting the issuance and refusal to issue
gambling licenses following the enactment by our last legislature of the so-called "Open
Gambling Law" providing for the operation of slot machines, gambling games, and
gambling devices enumerated therein under license; providing for certain license fees and
the use of the moneys obtained therefrom.
of the city of Las Vegas respecting the issuance and refusal to issue gambling licenses
following the enactment by our last legislature of the so-called Open Gambling Law
providing for the operation of slot machines, gambling games, and gambling devices
enumerated therein under license; providing for certain license fees and the use of the moneys
obtained therefrom. Stats. 1931, p. 165. The act became effective from the date of its
approval on March 19, 1931, and repeals all acts and parts of acts in conflict with it. Section
13b of the act provides that nothing contained therein shall affect the powers conferred by the
provisions of the charter of any incorporated city to fix, impose, and collect a license tax.
Prior to the enactment of the open gambling law it was made a felony to conduct or
operate in this state the gambling games and gambling devices involved in this proceeding for
profit.
The admitted facts of the case are substantially as follows:
Upon the adoption and approval of the so-called open gambling law, the city of Las Vegas
at the same session of the legislature on, to wit, March 27, 1931, procured an amendment to
certain sections of its articles of incorporation. Section 31, subsec. 10, was amended so as to
give the board of commissioners the power to license and regulate gambling as allowed by
law, and to prohibit gambling in all of its various forms. Stats. 1931, p. 374.
Pursuant to the state law and said amendment, the board of commissioners on, to wit,
March 30, 1931, proposed an ordinance entitled An Ordinance to Prohibit Gaming and the
Operation of Slot Machines in the City of Las Vegas, without first obtaining a license
therefor, regulating the same, fixing the amount of such licenses, providing penalties therefor,
and repealing Ordinances Nos. 77, 82, 88, 103, and 115, and all Ordinances and parts of
Ordinances in conflict therewith. Section 7 of the ordinance is as quoted in the opinion of
Justice Ducker. It appears, in fact it is conceded, that the ordinance did not and could not,
under the city charter, become effective until on May 5, 1931.
ordinance did not and could not, under the city charter, become effective until on May 5,
1931. In the meantime a number of persons and association of persons, on and prior to April
7, 1931, filed with the clerk of the board of commissioners applications for licenses to
conduct and operate the gambling games and gambling devices allowed by law. On said date
there were on file the applications of petitioners and applications of the Boulder Club, the Las
Vegas Club, the Exchange Club, and the Northern Club. Upon consideration of these
applications it was moved, seconded, and carried that the applications of said clubs be
approved and allowed. Upon this approval a discussion arose as to granting other licenses.
This discussion was participated in by a number of citizens of Las Vegas who were present,
and upon discussion of the following resolution was adopted: Resolved: That this Board of
City Commissioners of the City of Las Vegas not grant any gambling licenses except to those
places of business that held gambling licenses in the previous quarter, and that new licenses
not be considered until a zone is established for the operation of gambling houses, and a
policy is adopted by the Board governing the issuance of new licenses.
On April 9, 1931, at a recessed regular meeting of the board, a number of citizens being
present, the board again entered upon the discussion of granting of gambling licenses and
placing of a zone. On motion it was resolved as follows: Resolved: That until the further
order of this Board it be and is hereby established as the policy of this Board that no further
gambling licenses be granted except those already granted for this quarter, and to those who
held gambling licenses for the immediately preceding quarter; provided that this resolution
shall not be construed to prevent the consideration of an application for and the granting of a
license to a person of the Ethiopian Race for the conduct of a game or games in a place
catering exclusively to persons of the same race only.
On April 17, 1931, the minutes of a recessed regular meeting of the board show that upon
motion gambling licenses were granted Leo Kind and Thomas Rowan and the Big Four Club.
At this meeting on motion duly made and carried a blanket resolution was adopted, the
preamble of which reads as follows: Whereas six gaming licenses under Ordinance No. 165
of this City (exclusive of licenses solely for slot machines) have already been issued in the
City of Las Vegas, or a provision for about one licensed gaming house (exclusive of places
where slot machines only are operated) to every one thousand five hundred (1500) of our
population.
At this meeting the following resolution was adopted: Resolved: That the application of
Roy Grimes, D.J. McCauley and R.H. Davenport for gaming licenses to be operated under at
Lorenzi Resort, in the City of Las Vegas, County of Clark, State of Nevada, be and the same
is hereby denied for the reason that under Ordinance No. 165 of said City six gaming licenses
(exclusive of licenses issued solely for the operation of slot machines) have already been
issued in this City, and upon careful consideration of the question we believe that public
interest requires that no additional licenses (other than licenses solely for the operation of slot
machines, and for additional games, at the location for which license is already granted, under
the provisions of Section 9, of said Ordinance No. 165, Any licensee holding a valid existing
license from the City of Las Vegas, and from the County of Clark, State of Nevada, for a
current quarter may, during such current quarter, secure a license for additional slot machines,
games or devices, as the case may be, over and above the particular number of slot machines,
games or devices for which he, they or it holds a license, for the remainder of the quarter by
paying to the City Clerk the license fee above provided, for the additional particular slot
machine, game or device, as the case may be, and for which the City Clerk shall issue an
additional license for the remainder of such quarter, and the additional license shall be upon
the same terms and conditions as though issued under the provisions of Section S of this
Ordinance,' be granted in this city in excess of the number already granted, until the
further order of this Board and until further or other gaming licenses {other than licenses
solely for the operation of slot machines) are reasonably necessary for the
accommodation of the public and the granting of such further or other licenses will not
contravene public interest and will not require an excessive amount of police protection
for a city the size of Las Vegas, Nevada, having in mind the funds provided for police
protection under the City's 1931 and 1932 budgets theretofore adopted and the state of
the City funds applicable to police protection."
license shall be upon the same terms and conditions as though issued under the provisions of
Section 8 of this Ordinance,' be granted in this city in excess of the number already granted,
until the further order of this Board and until further or other gaming licenses (other than
licenses solely for the operation of slot machines) are reasonably necessary for the
accommodation of the public and the granting of such further or other licenses will not
contravene public interest and will not require an excessive amount of police protection for a
city the size of Las Vegas, Nevada, having in mind the funds provided for police protection
under the City's 1931 and 1932 budgets theretofore adopted and the state of the City funds
applicable to police protection.
At this meeting a number of applications for licenses were for the same reason rejected by
resolution.
I am of opinion that the resolution rejecting the application of petitioners is invalid and
illegal in this:
First, the resolution purports to be based upon the authority of ordinance No. 165, which
admittedly was not in effect at the time the resolution was adopted. Consequently the
disallowance of the petitioners' application was upon the authority of a resolution, and not
ordinance No. 165. A resolution is not the equivalent of an ordinance, but rather an act of a
temporary character, not prescribing a permanent rule of government, but is merely
declaratory of the will of a corporation in a given matter, and in the nature of a ministerial act.
43 C.J. 519.
Second, the resolution was invalid and illegal in that it purports to grant licenses only to
those who held gambling licenses for the immediately preceding quarter. It is inferable from
this that the board had, prior to the enactment of the open gambling law, issued gambling
licenses to the Boulder Club, Las Vegas Club, Exchange Club, and the Northern Club without
authority of law, as under the law existing at the time no such license could legally have been
granted.
Third, the resolution was invalid and illegal in that it gives a monopoly of the gambling
concessions in the city of Las Vegas to the Boulder Club, Las Vegas Club, Exchange Club,
Northern Club, and the Big Four Club, by providing that the licenses granted are to continue
until in the opinion of the board it is reasonably necessary for the accommodation of the
public that further or other licenses be granted. In that event the holders of the licenses
granted are privileged to increase the number of gambling games as public necessity in the
opinion of the board may require.
Fourth, the resolution was not adopted in the exercise of the police power, but for revenue
purposes.
It is a fundamental principle of our system of government that the rights of men are to be
determined by the law itself, and not by the let or leave of officers or boards acting in an
administrative capacity. This principle cannot be surrendered or in effect nullified for the sake
of expediency. Thompson v. Smith (Va.), 154 S.E. 579, 71 A.L.R. 604.
I quite agree with my associates that a state or a city has the power to prohibit the doing of
an act altogether. It has the power to permit the doing of an act upon any condition, or subject
to any regulation, however arbitrary or capricious it may be. Thompson v. Smith, supra, and
cases cited.
Before the passage by Congress of the Volstead act this doctrine was pronounced more
often in cases involving the granting, refusing, and revoking of licenses to sell intoxicating
liquors or do things, which, because of their character, are, to tend to be, injuries, as, for
instance, keeping a gambling house or a bawdy house, or operating a junk or pawnshop.
In Nevada, however, a gambling house is a privileged institution operated under the
sanction of the law. The city of Las Vegas, although it had under its charter the power to
prohibit gambling and gaming in all of its forms as allowed by law, did not chose to do so.
On the contrary, its board of commissioners, not in the exercise of its police power,
undertook by resolution to arbitrarily grant licenses for revenue purposes to some and
refuse to grant licenses to others of like character, under like conditions and
circumstances.
exercise of its police power, undertook by resolution to arbitrarily grant licenses for revenue
purposes to some and refuse to grant licenses to others of like character, under like conditions
and circumstances.
I concede that the city of Las Vegas has by legislative enactment under its police, power to
grant, refuse, and revoke under rules of general application gambling licenses, but may not by
an arbitrary resolution of its board of commissioners arbitrarily refuse or revoke or grant a
license to one and refuse a license to others of like qualifications, under like circumstances
and conditions. Thompson v. Smith, supra. In other words, its board under the guise of police
powers cannot say that a gambling license shall be granted to A and the same right denied to
B.
The opinion of Justice Ducker concludes with this language: The same reason was given
by the board in the case before use. It is evidence showing that the board did not act
arbitrarily in granting six licenses in the city and denying petitioners' application. This,
together with the presumption that officers who are acting under the sanction of an oath will
act lawfully, is sufficient in the absence of any evidence to the contrary to rebut the claim of
unlawful discrimination.
Here the contrary is shown by the board's own resolutions to the end that one person is
granted a license and another of like qualifications, under like circumstances and conditions
is denied a license. Where an ordinance or resolution is enacted in pursuance of legitimate
exercise of police power and it is manifest therefrom that there is an unjust discrimination,
courts interfere. The policy of the board of commissioners in the instant case as declared by
its resolution in refusing a license to petitioners is that public morals, the public welfare, and
police protection will best be served by conferring all of the gambling privileges in the city of
Las Vegas on those who held licenses prior to the enactment of the open gambling law.
The argument that the resolution in question as a police regulation was a legitimate
limitation upon an occupation inherently injurious to public morals and public welfare is
without force.
occupation inherently injurious to public morals and public welfare is without force. The
resolution upon its face shows that it was not motivated by any such high ideals. Upon the
contrary, it is made to appear therefrom that, so long as the fortunate six are able to cope
with the public demand for gambling, there will be no necessity for granting other licenses or
creating a zone for gambling houses. In this respect the legal effect of the resolution is to limit
the number of gambling houses but not the number of gambling games, thus giving the
proprietors of six gambling houses the exclusive right and privilege of carrying on and
conducting all gambling games as public interest in the judgment of the board of
commissioners shall require. Some better or stronger reason than that shown in the resolution
must appear to support the contention that the board had the authority or right to grant six
licenses and reject the seventh application to conduct one more game allowed by law at a
place not shown to be objectionable.
The argument that the resolution limiting the number of gambling houses and not the
number of gambling games is in the interests of economy in the matter of the cost of police
protection is also without force. The tax imposed under the proposed ordinance is essentially
a license tax for revenue purposes and not for police regulation. It is a matter of common
knowledge that legalized gambling in this state is supposed to result in a continuous source of
increased revenue by day and by night for the benefit of the state, the counties, municipalities,
and quasi municipalities within the state, for their general purposes.
It is fair to assume that the city of Las Vegas will share in the benefits in proportion to the
number of licenses issued the several persons or associations of persons, as the case may be,
as in the opinion of the board of commissioners of the city public necessity may require. Thus
the veil of good morals and public welfare is torn from the face of the resolution, and its real
policy, purpose, and effect is laid bare.
Under the admitted facts I am compelled to conclude that no valid or legal reason is
assigned for the refusal of the board of commissioners to allow petitioners' application for a
license to conduct one more gambling game in the city of Las Vegas as allowed by law, and
that the action of the board in denying the application was arbitrary and discriminative; that
the denial of the application was an abuse of power and not the exercise of a reasonable
discretion in a lawful manner. I think the wrong done should be remedied by mandamus.
____________
53 Nev. 386, 386 (1931) State Ex Rel. Progress v. Court
STATE Ex Rel. PROGRESS v. FIRST JUDICIAL DISTRICT COURT, in and for Storey
County, Et Al.
No. 2948
September 1, 1931. 2 P. (2d) 129.
1. Statutes.
General rule is that statutes are prospective only unless it clearly, strongly and imperatively appears
from the act itself that legislature intended that it should be retrospective in its operation.
2. Divorce.
Statute authorizing divorce when parties have lived apart for five consecutive years without
cohabitation, and providing that act should take effect and be in force from and after its passage and
approval, held clearly retrospective, as well as prospective (Stats. 1931, p. 180, c. 111).
Original proceeding in prohibition by the State, on the relation of Amelia Progress, against
the First Judicial District Court in and for the County of Storey, and another, seeking to
prevent Joseph Progress, who had instituted a suit for divorce against the relatrix in the
respondent court, from obtaining permission to amend his complaint. Proceeding dismissed.
(Ducker, J., dissenting.)
Harlan L. Heward, for Petitioner:
From a consideration of the pronounced policy of the law against retrospective legislation,
there has been evolved a strict rule of construction in this regard.
evolved a strict rule of construction in this regard. There is always a presumption that statutes
are intended to operate prospectively only, and words ought not to have a retrospective
operation unless they are so clear, strong, and imperative that no other meaning can be
annexed to them, or unless the intention of the legislature cannot be otherwise satisfied. Every
reasonable doubt is resolved against a retroactive operation of a statute. If all of the language
of a statute can be satisfied by giving it prospective action only, that construction will be
given it. 25 R.C.L. 787-789; Milliken v. Sloat, 1 Nev. 573; Wildes v. State, 43 Nev. 388-393;
Virden v. Smith, 46 Nev. 208; Barrington v. Barrington, 76 So. 81; Pierce v. Pierce (Wash.),
181 P. 24.
A statute declaring the causes for which divorces may be granted is ordinarily to be given
a prospective operation only, and does not authorize a divorce for a specified cause which
occurred before the statute was enacted. 19 C.J. 38. See, also, Barrington v. Barrington,
supra; Scott v. Scott, 6 Ohio, 535; Buckholts v. Buckholts, 24 Ga. 238; Burt v. Burt (Mass.),
46 N.E. 622; Sherburne v. Sherburne, 6 Me. 210; Tufts v. Tufts (Utah), 30 P. 309; Giles v.
Giles, 22 Minn. 348.
The legislature of the State of Nevada is presumed to have known that the instant statute
would be given a future operation only. Clover Valley Co. v. Lamb, 43 Nev. 375, 383.
Opposing counsel might attempt to make something of the provisions of section 2 of the
act, but the court can at once realize that section 2 merely makes the effective date of the
statute March 23, 1931, instead of July 1, 1931, as it would have been if section 2 had not
been attached.
William S. Boyle, for Respondent:
In interpreting doubtful statutes, the primary object is to ascertain the intent of the
legislature. This intent is to be gathered, first, from the language of the statute, next from the
mischief intended to be suppressed, or benefits to be attained. Maynard v. Johnson, 1-2 Nev.
549; Virden v. Smith, 46 Nev. 208; 19 C.J. p. 38, sec. 62, n. B.
The words have lived apart in the statute refers to past matter and directly makes the bill
retroactive by the wording thereof, and shows the intention of the legislature by passing the
bill reading have lived apart, which is third person, plural, perfect tense, indicative mood,
the same as have been living, etc. Heydenfeldt v. Davey G. & S.M. Co., 10 Nev. 290-295;
Webster's Unabridged Dictionary, perfect tense, p. 969; tense, p. 1364; p. 611, Have, as
an auxiliary verb, is used with the past participle to form preterit tenses, etc.; Century
Dictionary, vol. IV, p. 4391, perfect tense; New Dictionary of English Language, 1923 ed.,
p. 612, perfect tense.
A decision directly to the point before us is Worthington v. District Court, 37 Nev. 243.
The power of the legislatures of the several states to grant divorces has been generally
recognized, and on both principle and authority it seems that the legislature may authorize the
granting of divorces for causes which occurred prior to the enactment of the statute and which
occurred prior to the prevailing view. Such statutes are not unconstitutional as impairing the
obligation of any contract or as ex post facto laws. Jones v. Jones, 2 Overt (Tenn.), 2, 5 Am.
Dec. 645; 9 R.C.L. 270.
Albert D. Ayres, Amicus Curiae:
It would seem that the law is accurately stated in 19 C.J., p. 38, Divorce, sec. 62. From
the text therein, it appears that the statute is either retroactive or not so, according to the
intention of the legislature. This intent, we understand, may be shown from either the
language of the statute itself, from peculiarities concerning its contents, the time and method
of its enactment, the general public policy of the state as shown in other acts, and by those
things generally by which statutes are interpreted.
We find only one case in Nevada Reports which has ever discussed the question of
whether a divorce act is retrospective. That case is Worthington v. District Court, 37 Nev.
212. The references to the question before this court are found on pages 242 and 243.
There is, however, another manifestation of public policy, which consists of the generally
recognized retrospective effect of new grounds for divorce given to the statute of 1927 (Stats.
1927, p. 26, sec. 9460, N.C.L.). That statute became effective March 18, 1927, and from that
day to this has been continuously, in all the district courts of the State of Nevada, given a
retrospective effect.
Why should the legislature do that which is the equivalent of declaring that an emergency
existed which required this act to become effective immediately, if the real effect thereof was
to be delayed for five years? We call attention that the legislature did not stop by saying this
act shall take effect from and after its approval, but added the additional words and be in
force. It seems to us that the words be in force mean that there is a remedy existing and
immediately open to those who come within its provisions.
A.E. Painter, Amicus Curiae:
Acts of parliament and wills ought to be alike construed according to the intention of the
parties who made them. Page 568, 569, Broom's legal Maxims, referring to the common law
of England, which has been adopted by the State of Nevada as effective where legislative
matters are not to the contrary. Hence, the common law of England should be of more
importance and influence in the interpretation of legislative matters than that of other states of
the United States, where public policy, constitutions and varied judicial interpretations exist.
Have lived, grammatically, as indicated in the briefs and as understood by the ordinary
Nevada individual and the members of the legislature, has a ring and meaning of no
uncertainty that means the past.
ring and meaning of no uncertainty that means the past. And since the ninth ground of divorce
is added by the act under consideration to the other eight grounds theretofore existing, and is
controlled and dominated by the same rules and regulations as the other eight grounds, which
are now available to any person, it cannot be taken therefrom, without inserting words that are
not in the act, and if a full and clear meaning be given to each word it makes the act
retrospective.
The words take effect and be in force, as briefed by Mr. Ayres, appears to be an
expression of the legislature to make the ninth ground available, as well as the other eight
grounds, as soon as act was approved by the governor.
OPINION
This is an original proceeding in prohibition.
On November 6, 1930, Joseph Progress instituted a suit for divorce in the respondent
court. On April 20, 1931, he sought to amend his complaint by adding thereto a third cause of
action, alleging that the plaintiff and defendant, since they were intermarried and for more
than five consecutive years last past, have lived apart without cohabitation.
The last legislature enacted a bill creating an additional cause for divorce, which provides
that a divorce may be granted when a husband and wife have lived apart for five
consecutive years without cohabitation. The act provides that it should take effect and be in
force from and after its passage and approval. It was approved March 23, 1931. Stats. 1931,
p. 180, c. 111.
The only question for our determination is whether the act is retrospective in its operation.
If it is, the writ must be denied.
1. It is the general rule, recognized by this court, that statutes are prospective only unless
it clearly, strongly, and imperatively appears from the act itself that the legislature
intended that it should be retrospective in its operation.
strongly, and imperatively appears from the act itself that the legislature intended that it
should be retrospective in its operation. Milliken v. Sloat, 1 Nev. 573; Wildes v. State, 43
Nev. 388, 187 P. 1002; Virden v. Smith, 46 Nev. 208, 210 P. 129.
Counsel for the petitioner, in support of his contention that the act in question is
prospective only, cites the following cases arising out of statutes authorizing the granting of
divorces, namely: Scott v. Scott, 6 Ohio, 535; Buckholts v. Buckholts, 24 Ga. 238; Sherburne
v. Sherburne, 6 Me. (6 Greenl.) 210; Tufts v. Tufts, 8 Utah, 142, 30 P. 309, 16 L.R.A. 482;
Burt v. Burt, 168 Mass. 204, 46 N.E. 622; Pierce v. Pierce, 107 Wash. 125, 181 P. 24;
Barrington v. Barrington, 200 Ala. 315, 76 So. 81; Giles v. Giles, 22 Minn. 348.
We are unable to see that the first three cases can be of any aid to this court in deciding the
question before us, since neither of them state the terms of the statute under consideration.
The statute construed in Giles v. Giles is so clearly prospective that it is no aid in reaching a
conclusion in this matter. The opinions in Tufts v. Tufts and Burt v. Burt throw no light upon
the question before us. The other two cases cited by counsel support his contention, but there
is a strong dissenting opinion in each of them.
There are many cases growing out of divorce statutes in which it was held that, the statute
being prospective, the divorce could not be awarded, but they are not cases in which there
could be a doubt as to the application of the general rule which we acknowledge as being
controlling in determining if a statute is retrospective.
While it is the general rule that statutes are to be given a prospective, rather than a
retrospective, operation, like all other rules of interpretation it is indulged to give effect to the
presumed and reasonably probable intention of the legislature, when the terms of the statute
do not of themselves make the intention clear and certain, and cannot be invoked to change or
defeat the intention when it is made obvious or manifest by the terms of the statute.
terms of the statute. Lamb v. Powder River Live Stock Co. (C.C.A.) 132 F. 434, 67 L.R.A.
558.
2. We think the statute in question is clearly retrospective, as well as prospective. By its
terms it went into effect on the day it was approved and it refers to married couples who
have lived apart for five consecutive years without cohabitation. We are at a loss to see how
the legislature could more clearly, strongly, and imperatively have expressed its intention that
the act should be given a retrospective effect. The words who have lived apart must be
given their plain ordinary meaning. It is not our duty to seek to give to the words in question a
cryptic meaning simply because the marriage state is one which is looked upon as sacred. In
fact, while no authority seems to have offered the suggestion, historically, it occurs to us that
much may be said in opposition to any such idea. In England, at common law an absolute
divorce could be granted only by Parliament, which power is still exercised by that body. In
the early history of our states an absolute divorce was granted by the legislature. Virginia did
not adopt a general divorce law conferring jurisdiction upon a court until March, 1841, and it
is fair to presume that the hearing of such matters became so burdensome that the legislatures
were driven to this step, the amazing thing being that it was so long deferred. In the very
nature of things such legislative divorces were for past offenses.
The supreme court of Louisiana, in Hurry v. Hurry, 141 La. 954, 76 So. 160, 161, had
under consideration a statute which authorized the granting of a divorce when married
persons have been living separate and apart for a period of seven years or more. In an
unanimous opinion the court held that it was impossible to say that the legislature intended to
refer only to married persons who shall hereafter live separate and apart.
Other decisions supporting the conclusion we have reached are Long v. Long, 135 Minn.
259, 160 N.W. 687, L.R.A. 1917c, 159; Cole v. Cole, 27 Wis. 531.
For the reasons given, it is ordered that this proceeding be, and the same is hereby,
dismissed.
Sanders, J.: I concur.
Ducker, J., dissenting:
With all due respect for the judgment of my associates, I think that their conclusion that
the statute enacted by the last legislature creating an additional cause for divorce was
intended to be retroactive in its operation is not warranted by the language of the statute. The
statute in part (Stats. 1931, c. 111) reads:
Section 1. Divorce from the bonds of matrimony may be obtained * * * When the
husband and wife have lived apart for five consecutive years without cohabitation the court
may at its discretion grant an absolute decree of divorce at the suit of either party.
It may be conceded that the language have lived apart is broad enough to admit of
retroactive operation, but, as said in regard to the same language in Barrington v. Barrington,
200 Ala. 315, 76 So. 81, it does not necessarily or clearly include such a case.
In Nelson on Divorce and Separation, vol. 1, in section 12, the author says: A divorce law
will not be given a retrospective operation even though the terms might admit of it.
Whether the statute was designed to reach into the past and make an innocent act a ground
for divorce is, of course, the business of the legislature; ours is to determine whether, under
well-settled rules of construction, the legislature intended a throw-back of this character, for
there is no constitutional inhibition as to retroactive legislation.
But in fact of the strong presumption to be indulged in favor of the prospective operation
of a statute, something more than the broad scope of general language ought to be required to
make clear and unmistakable the intent to give a law a retroactive effect.
It the absence of a specific designation or language from which the implication is absolute
that retroactive operation was intended, prospective construction should be the rule.
operation was intended, prospective construction should be the rule. This rule has been
almost universally recognized and has been recognized and declared by this court for over
half a century. Milliken v. Sloat, 1 Nev. 573; Wildes v. State, 43 Nev. 388, 187 P. 1002,
1003; Virden v. Smith, 46 Nev. 208, 210 P. 129. In Milliken v. Sloat, supra, the court said:
The settled and approved doctrine at this day is, that such power exists [power to enact
retrospective legislation] outside of an express and positive constitutional inhibition in certain
enumerated cases (as for instance, laws of a criminal nature, or laws impairing the obligation
of contracts, which are positively inhibited), and that the only check upon this power seems to
be that the courts will not give a retrospective interpretation to statutes unless the intention of
the law-makers is so plain, either by express words, or by unavoidable implication, as not to
fairly admit of the opposite construction. To state the proposition with all the clearness we
can command, and to avoid misapprehension, our understanding of the law on this subject as
now settled is, that the primary rule of construction is to give a statute a prospective effect,
but that the rule must yield if the retroactive intention is so plainly expressed or manifest as to
leave no doubt upon the mind.
Does this presumption yield to the words have lived apart? Do they remove all doubt
from the mind that retroactive effect was intended? I am doubtful. My associates say: We are
at a loss to see how the legislature could more clearly, strongly, and imperatively have
expressed its intention that the act should be given a retroactive effect. It is not difficult for
me to see how language more certain could have been employed to express the intent to give
the new ground for divorce retroactive operation. If the legislature had said, this statute shall
be retroactive as well as prospective in its operation, or had said, a husband and wife who
heretofore have lived apart, or, who hereafter shall live apart, the intent would have been
clear.
clear. Had such terms been employed, the awakening of the female spouse in this case, who is
presumed to know the legal effects of her acts as affecting her marital status, and who
therefore knew that her living apart from her husband was innocent so far as furnishing any
cause for divorce, to a realization that her innocent act is now a ground for divorce, for which
she is held accountable, would not have been so rude.
This court in Wildes v. State, supra, quoted approvingly the words of Paterson, J., in
United States v. Heth, 3 Cranch, 399, 2 L.Ed. 479, as follows: This rule ought especially to
be adhered to, when such a construction (retrospective operation) will alter the pre-existing
situation of parties, or will affect or interfere with their antecedent rights, services, and
remuneration, which is so obviously improper that nothing ought to uphold and vindicate the
interpretation but the unequivocal and inflexible import of the terms and the manifest
intention of the Legislature. I have supplied the italics.
And from this judicial declaration of our highest court it is clear that there should be no
relaxation of the rule in divorce cases. Authority in support of its application generally in
such cases, or particularly to a case of this character, is ample and satisfactory. 19 C.J. p. 20,
26, 38; Barrington v. Barrington, 200 Ala. 315, 76 So. 81, 84; Pierce v. Pierce, 107 Wash.
125, 181 P. 24, 25; Carson v. Carson, 40 Miss. 349; Jarvis v. Jarvis; 3 Edw. Ch. (N.Y.) 462;
Scott v. Scott, 6 Ohio, 535; Buckholts v. Buckholts, 24 Ga. 238; Sherburne v. Sherburne, 6
Me. (6 Greenl.) 210; Given v. Marr, 27 Me. 212; Tufts v. Tufts, 8 Utah, 142, 30 P. 309, 16
L.R.A. 482; Burt v. Burt, 168 Mass. 204, 46 N.E. 622; Giles v. Giles, 22 Minn. 348.
In 19 C.J. p. 38, it is said: A statute declaring the causes for which divorce may be
granted is ordinarily to be given a prospective operation only and does not authorize a divorce
for a specified cause which occurred before the statute was enacted.
The cases of Barrington v. Barrington and Pierce v. Pierce are strong cases and are both
directly in point with the case at bar. Each was a divorce case and in each divorce was denied.
In the Barrington Case the statute construed read: Or when the wife without support from
him has lived separate and apart from the bed and board of the husband for five years next
preceding the filing of the bill, and she has bona fide resided in this state during all of said
period. In the Pierce Case the statute read: Divorces may be granted by the superior court
on application of the party injured, for the following causes: * * * 8. Where the parties are
estranged and have lived separate and apart for eight years or more and the court shall be
satisfied that the parties can no longer live together. In each of these cases the court applied
the rule that has been stated and held that retroactive effect could not be given to the statute.
In the majority opinion in the instant case stress is placed upon the fact that there was a
dissenting opinion in each of the foregoing cases. It appears, however, that in the Pierce Case
four of the five justices participating concurred in the prevailing opinion, and in the
Barrington Case three of the four justices participating concurred.
The majority opinion in the instant case cites the cases of Hurry v. Hurry, 141 La. 954, 76
So. 160, 161; Long v. Long, 135 Minn. 259, 160 N.W. 687, L.R.A. 1917c, 159; and Cole v.
Cole, 27 Wis. 531. In the Wisconsin case the statute involved was different from ours in that
it read, shall have voluntarily lived entirely apart, instead of have lived apart as ours is
phrased. But be that as it may, it appears from the opinion in Cole v. Cole that there was
applied a different rule that that which has been recognized and applied in this jurisdiction for
more than fifty years. The court reversed the presumption. The court said There is nothing in
the language of this statute which would seem to require that the five years' separation must
have occurred after the law took effect, and we must presume that it was intended to
apply to present separations as well as future ones."
occurred after the law took effect, and we must presume that it was intended to apply to
present separations as well as future ones.
As stated in Barrington v. Barrington, supra, the value of the case of Cole v. Cole as an
authority is destroyed by reason of the fact that the Wisconsin court applied a rule of
construction which is the exact antithesis of ours, viz, retrospective operation is there
presumed because it is not forbidden by the language of the act itself. In the case of Long v.
Long the statute involved was not one dealing with the separation of husband and wife. In the
case of Hurry v. Hurry the statute construed reads: That when married persons have been
living separate and apart for a period of seven years or more. * * *
I am not satisfied with the reasoning upon this statute. The court said it is impossible to
say that the legislature in act No. 269 intended to refer only to married persons who shall
hereafter live separate and apart for a period of seven years or more. This seems to be viewing
the statute in the same way as in Cole v. Cole. The rule is, not that prospective operation will
be presumed when it cannot be said that it was not intended, but that retroactive operation
will not be presumed unless the intent to give a statute such effect is manifest.
There is nothing on the face of the statute before us to relate back beyond the date of its
enactment except the words have lived apart. They do not meet the requirement of the rule.
The provision that the act should take effect and be in force from and after its passage and
approval, as stated by counsel, merely makes the effective date of the statute in question
March 23, 1931, instead of July 1, 1931.
For the reasons given I have been impelled to dissent from the majority opinion of the
court.
____________
53 Nev. 398, 398 (1931) Lewis v. Lewis
LEWIS v. LEWIS
No. 2932
September 5, 1931. 2 P. (2d) 131.
1. Divorce.
Court reserving jurisdiction in divorce decree to make further orders concerning alimony and support
money may so modify the decree, notwithstanding it was based on separation agreement of parties
(Const. art. 6, sec. 6; secs. 1463, 9465, N.C.L.).
2. Divorce.
Court is not bound by written agreement of parties to divorce action concerning alimony or support
money, but may or may not adopt it as part of decree.
Action by Grace Hegger Lewis against Sinclair Lewis. Decree for plaintiff, and, from an
order modifying and amending the decree, plaintiff appeals. Affirmed. (Sanders, J.,
dissenting.)
P.A. McCarran, for Appellant:
It was beyond the authority of the trial court to modify the provisions of the original
decree. The motion to modify the decree was filed one year and eight months after the entry
of the original decree. Under the law of this State (Rev. Laws, sec. 5080, rules of district
court) the time within which a judgment or decree may be modified by motion is fixed at six
months; the powers of the court must be set in motion by proceedings instituted during the
time fixed by statute. Daniels v. Daniels, 12 Nev. 118; Jones v. San Francisco Sulphur
Company, 14 Nev. 172; Clark v. Straus, 11 Nev. 79; Sweeney v. Sweeney, 42 Nev. 431;
Lindsay v. Lindsay, 52 Nev. 26.
Reservation of jurisdiction to make further orders relative to support money does not carry
this power over indefinitely. Daniels v. Daniels, supra.
The order appealed from in this instance is an order varying the terms of the written
agreement executed by the parties, and that order is based solely on a motion made by one of
the parties to the contract, and not upon an action in equity.
53 Nev. 398, 399 (1931) Lewis v. Lewis
made by one of the parties to the contract, and not upon an action in equity. It is the
contention of appellant that the court had no right or power to make the order, and in this
respect we assert the law to be: Where alimony is based on consent of all parties or on
contract the court has no power to modify the terms agreed upon for alimony. Pryor v. Pryor,
129 Am. St. Rep. 102; Mathews v. Mathews, 192 P. 586; Henderson v. Henderson (Ore.), 82
Am. St. Rep. 741.
Green & Lunsford, for Respondent:
The authorities seem to indicate that a statute limiting the time for modifying decrees does
not apply to a case where jurisdiction to modify is reserved in the decree. Sweeney v.
Sweeney, 42 Nev. 431; Dechert v. Dechert, 46 Nev. 140; Ruge v. Ruge (Wash.), 165 P. 1063;
19 C.J. 270, Divorce, sec. 616.
In the case of Lindsay v. Lindsay, 52 Nev. 26, it appears from the language of the decree as
quoted in the opinion that the court had not made any reservation of jurisdiction in the decree.
In the case at bar there was a very full and explicit reservation of jurisdiction inserted in
the decree by the trial court. The power which the district court thus reserved consisted of
nothing else than a part of the jurisdiction originally conferred upon it by art. 6, sec. 6,
constitution of Nevada, and by the statutes of Nevada, including particularly secs. 9460-9467
N.C.L. The jurisdiction thus retained arose out of the constitution and statutes of Nevada, not
out of any rule of court, and it is respectfully submitted that such jurisdiction cannot be cut
off or abridged by rule of court. 15 C.J. 907. The statute granting authority to make and
publish rules of court (sec. 8377, N.C.L.) expressly requires the rules to be not inconsistent
with the constitution and statutes.
We feel sale in saying that an examination of the long note in 58 A.L.R., commencing on
p. 639, will convince this court that whatever the rule may have formerly been, it is now
settled by the great weight of authority that decrees in divorce actions, though based
upon agreement of the parties, may be later modified as to payment of alimony or support
money, especially, as in this case, where the parties themselves contemplated subsequent
modifications.
53 Nev. 398, 400 (1931) Lewis v. Lewis
been, it is now settled by the great weight of authority that decrees in divorce actions, though
based upon agreement of the parties, may be later modified as to payment of alimony or
support money, especially, as in this case, where the parties themselves contemplated
subsequent modifications.
OPINION
This is an appeal from an order made and entered on the 30th day of January, A.D. 1930,
modifying and amending the judgment and decree of divorce of the respective parties made
and entered in the district court of Washoe County on the 16th day of April, 1928.
The appellant here was the plaintiff in the court below, and the respondent was the
defendant in the court below. The parties will be referred to as plaintiff and defendant.
Previous to the granting of the decree, and during the pendency of the divorce action,
plaintiff and defendant, upon March 15, 1928, entered into a written property settlement
agreement, a portion of the language of which is as follows:
Third: The parties hereto shall, on the execution of this agreement transfer, assign and set
over to the Guaranty Trust Company of the City of New York as trustee certain securities,
representing part of the earnings and savings of the party of the first part and having a present
market value of at least fifty thousand (50,000) dollars, the names and amounts of said
securities being set forth in a schedule hereto annexed and made part hereof. Said trust
company shall hold said securities under a trust deed to be executed by it and the parties
hereto, and to be made a part of this agreement. The substance of the trust is as follows:
The trustee is to receive, hold, manage, sell, invest and reinvest the trust fund and every
part thereof, and to collect, recover and receive the issues, interest and income thereof, and
after deducing its lawful commissions and disbursements, to pay the issues, interest and
income to the party of the second part for the use and benefit and for the support,
education and care of Wells Lewis until he shall attain the age of twenty-five {25) years;
after the said Wells shall attain the age of twenty-five {25) years, or should he die prior to
that time then upon his death the said trustee shall pay the issues, interest and income to
the party of the second part for her own use for the term of her natural life and whether
or not she may remarry.
53 Nev. 398, 401 (1931) Lewis v. Lewis
income to the party of the second part for the use and benefit and for the support, education
and care of Wells Lewis until he shall attain the age of twenty-five (25) years; after the said
Wells shall attain the age of twenty-five (25) years, or should he die prior to that time then
upon his death the said trustee shall pay the issues, interest and income to the party of the
second part for her own use for the term of her natural life and whether or not she may
remarry.
Upon the death of the party of the second part after the said Wells Lewis shall have
attained the age of twenty-five (25) years, or upon the death of the party of the second part
and of Wells Lewis before he shall have attained the age of twenty-five (25) years, the trust
hereby created shall forthwith cease and determine, and the trustee shall transfer, assign, pay
over and deliver the principal thereof unto the party of the first part or his executors,
administrators or assigns. Upon the death of the party of the second part before Wells reaches
the age of twenty-five (25) years, then the trust company itself shall apply the income for the
support, education and maintenance of Wells until he attains the age of twenty-five years.
The details for carrying out the trust will be set forth in the separate trust deed or
agreement hereinbefore referred to. The trustee is to have sole control of the fund and of the
character of the investments to be made thereunder, subject, however, to the approval of the
party of the second part.
Fourth: The party of the first part has already given to the party of the second part toward
her support and maintenance the sum of Fifty thousand (50,000) dollars in cash and
securities, the receipt whereof she hereby acknowledges.
Fifth: The party of the first part further agrees to continue to pay to the party of the
second part while the parties remain alive the sum of one thousand (1,000) dollars monthly or
twelve thousand (12,000) dollars annually. In the event of the remarriage of the party of the
second part this obligation shall forthwith cease and the party of the first part shall no
longer be obligated to make any further payments.
53 Nev. 398, 402 (1931) Lewis v. Lewis
second part this obligation shall forthwith cease and the party of the first part shall no longer
be obligated to make any further payments.
It is understood and agreed, however, that the foregoing payments are based on an
average gross annual income of the party of the first part of forty-eight thousand (48,000)
dollars, and that should at any future time said gross annual income fall below forty-eight
thousand (48,000) dollars the party of the first part shall have the right to apply to the court
for a reduction in the payment of alimony to a sum equal to one-fourth of the then gross
annual income of the party of the first part, such payments to continue as reduced until his
gross annual income shall again reach forty-eight thousand (48,000) dollars or more. In no
event, however, shall the present allowance of one thousand (1,000) dollars a month to the
party of the second part be increased.
The decree when to the plaintiff in the court below, and the court in its findings, among
other things, found:
That there is no community property belonging to the plaintiff and the defendant to be
divided by the court, but that the said parties have entered into an agreement under date of
March 15, 1928, wherein the plaintiff is awarded full custody of the said child with certain
rights of visitation being reserved unto the defendant.
The court further finds that under said agreement a trust fund of Fifty Thousand Dollars
has been established with the Guaranty Trust Company of New York City, the income of
which shall be applied to the care, support and maintenance of the said child, Wells, until he
reaches the age of twenty-five years, or in the event of the death of the said child, Wells, the
income from said trust fund shall be paid to the plaintiff during her natural life.
That said agreement further provides that the defendant will pay to the plaintiff the sum
of One Thousand Dollars a month on the first day of each and every month so long as the
plaintiff shall not remarry; but that should the income of the defendant at any time fall
below the sum of Forty-eight Thousand Dollars a year, the defendant will have the right
to apply for a reduction of said monthly alimony to a sum equal to one-fourth of his
annual income.
53 Nev. 398, 403 (1931) Lewis v. Lewis
the income of the defendant at any time fall below the sum of Forty-eight Thousand Dollars a
year, the defendant will have the right to apply for a reduction of said monthly alimony to a
sum equal to one-fourth of his annual income.
The Court further finds that said agreement is for the best interests of the said child and
makes reasonable provision for the support of the plaintiff and of the said child, Wells
Lewis.
That the said agreement entered into between the plaintiff and the defendant under date of
March 15, 1928, be, and the same is hereby ratified and confirmed and made a part of the
decree of this court; that the plaintiff is hereby awarded custody of the said child, Wells
Lewis, as provided in said agreement, with all reasonable rights of visitation being reserved
unto the defendant, and that the defendant shall have the right to have said child, Wells
Lewis, visit him at such time as may be mutually agreeable to both parties;
It is further ordered that the defendant make the payments provided for in said agreement,
to-wit:
That the income of the trust fund of Fifth Thousand Dollars ($50,000.) established with
the Guaranty Trust Company of New York City, shall be paid to the plaintiff to be applied to
the care, support and maintenance of the said child, Wells Lewis, until he reaches the age of
twenty-five (25) years, or in the event of the death of the said child, Wells Lewis, the income
from said trust fund shall be paid to the plaintiff during her natural life.
That the defendant pay to the plaintiff the sum of One Thousand Dollars ($1,000.) a
month on the first day of each and every month so long as the plaintiff shall not remarry, and
provided that the income of the defendant is at least Forty-eight Thousand Dollars ($48,000.)
per year, but if the income of the defendant shall fall below the sum of Forty-eight Thousand
Dollars ($48,000) per year the defendant shall have the right to apply to the court for a
decrease in the alimony hereinabove provided to be paid to the plaintiff, to an amount equal
to one quarter of the defendant's said income.
53 Nev. 398, 404 (1931) Lewis v. Lewis
to be paid to the plaintiff, to an amount equal to one quarter of the defendant's said income.
The Court reserving unto itself the right to make such further or additional orders relative
to the payments to be made to the plaintiff for her support, and to the custody and control of
the said child or to the support of said child, as the court may in the future deem proper.
On January 13, 1930, the defendant made application to the court below and filed a motion
to amend the judgment and decree of divorce as originally entered by striking therefrom the
following language contained in the judgment and decree, to wit: That the defendant pay to
the plaintiff the sum of One Thousand Dollars ($1,000) a month on the first day of each and
every month so long as the plaintiff shall not remarry, and provided that the income of the
defendant is at least Forty-eight Thousand Dollars ($48,000.) per year, but if the income of
the defendant shall fall below the sum of Forty-eight Thousand Dollars ($48,000) per year the
defendant shall have the right to apply to the court for a decrease in the alimony hereinabove
provided to be paid to the plaintiff, to an amount equal to one quarter of the defendant's said
income; and to substitute therefor the following language: that the defendant pay to the
plaintiff annually an amount equal to one-fourth of defendant's gross annual income from all
sources, on a basis of not to exceed Forty-eight Thousand Dollars ($48,000.00) as defendant's
gross annual income, the said amounts to be payable as follows: 200.00, on account, on the
first day of each and every month beginning with January 1st, 1930, and continuing at said
rate monthly thereafter, and the balance, if any, payable not later than the 10th day of January,
1931, and on the 10th day of January of each and every subsequent year thereafter, at which
time the said defendant shall pay to the plaintiff in addition, any sum in excess of $2,400.00
that shall equal one-fourth of defendant's gross annual income for the year just past, between
Nine Thousand Six Hundred Dollars {$9,600.00) and Forty-eight Thousand Dollars
{$4S,000.00) as the minimum and maximum basis of his said gross annual income; said
payments shall continue in the manner aforesaid until the plaintiff shall remarry, if ever."
53 Nev. 398, 405 (1931) Lewis v. Lewis
($9,600.00) and Forty-eight Thousand Dollars ($48,000.00) as the minimum and maximum
basis of his said gross annual income; said payments shall continue in the manner aforesaid
until the plaintiff shall remarry, if ever.
Among the reasons given in the petition and motion for an order modifying the decree are
the following: That the original decree and the terms thereof are indefinite and uncertain,
varying in amounts of $9,600 or less to $48,000. It is impossible for the defendant in advance
to know or even approximate what the amount of his gross annual income will be for any one
year, and with the decree in its present form he is required to pay to the plaintiff the sum of
$1,000 per month, regardless of the actual amount of his said income, and then to look to the
plaintiff for a refund, return, or reimbursement if the payments made exceeded one-fourth of
the defendant's gross annual income; that the annual income of the defendant has been greatly
diminished; and that the approximate income of the defendant for the year 1930 will not
exceed $9,600.
To the petition and motion asking for a modification of the decree the plaintiff filed a
demurrer and certain objections setting forth that the court has no jurisdiction over the
subject-matter of the motion; that the same was made without proper or any service, and that
the service made was contrary to the order and direction of the court; that the motion is not
based upon fact but upon mere conjecture; that the same was not made within the time
provided by law; that the same was premature; and that it is not shown by the affidavits that
there is any actual falling off of the income of the defendant, and no change is shown in the
conditions of the defendant as they existed at the time of the making of the property
agreement and settlement, or as they existed at the time of the making and entry of the
divorce decree; that the decree is based upon an agreement mentioned in the decree; and that
the agreement does not base the $1,000 monthly payments to be made by defendant to
plaintiff upon his income for one single year, but based it upon his average annual
income.
53 Nev. 398, 406 (1931) Lewis v. Lewis
by defendant to plaintiff upon his income for one single year, but based it upon his average
annual income.
The motion was duly noticed for hearing, the plaintiff served with a copy of said notice,
thereafter an extensive hearing was had, certain affidavits of plaintiff and various witnesses,
the affidavit of the defendant and the oral testimony of the defendant, and the counter
affidavits were submitted to the court. The lower court, on the 30th of January, 1930, made
and entered its order modifying the original judgment and decree of divorce as prayed for in
the motion and in the manner hereinbefore related, to the effect that the defendant pay to
plaintiff the sum of $200 per month on the first day of each and every month beginning
February 1, 1930, on account, and that not later than the 10th day of January of each and
every subsequent year thereafter the defendant pay to the plaintiff such additional sum in
excess of $2,400 that shall equal one-fourth of the defendant's gross annual income for the
year just past, between $9,600 and $48,000 as the minimum and maximum basis of said gross
annual income, the court again reserving unto itself the right to make such further or
additional orders relative to the payments to be made to the plaintiff for her support and to the
custody and control of said child or the support of said child as the Court may in the future
deem proper.
In proper time an appeal was taken from the order of the trial court made and entered as
above.
In support of the appeal, the plaintiff contends, first, that it was beyond the authority of the
trial court to modify the provisions of the original decree; second, the alimony and support
granted by the decree was one based on contract between the parties, and was therefore
without the power of the court to modify or change by way of motion; third, the order
appealed from is an order in violation of the express terms of the executed agreement of the
parties adopted by the court in its findings and decree; fourth, the order appealed from is an
order in violation of the express language of the decree; fifth, the modification asked for in
the motion and granted in the order appealed from is one of substance and not of form;
sixth, in the original decree the court did not reserve the right to make the change in the
award of alimony; seventh, it is a change in the contract rather than a change in the
decree that is sought by defendant.
53 Nev. 398, 407 (1931) Lewis v. Lewis
decree; fifth, the modification asked for in the motion and granted in the order appealed from
is one of substance and not of form; sixth, in the original decree the court did not reserve the
right to make the change in the award of alimony; seventh, it is a change in the contract rather
than a change in the decree that is sought by defendant.
1. Was the trial court without authority to modify the provisions of the original decree?
Without again repeating the language of the decree in the court below, and as hereinabove set
forth, the court reserved unto itself the right to make such further or additional orders, not
only relative to the payments to be made to the plaintiff, but also the custody and control of
the child or the support of the child as the court may in the future deem proper. The plaintiff
submits to this court as authority for her contention above recited the case of Sweeney v.
Sweeney as found in 42 Nev. at page 431, 179 P. 638, 639. It is our opinion that the above
case is the authority, or one of the authorities, for the trial court to have assumed jurisdiction
over the motion, and to have, after a hearing, granted the same. This court held in the
Sweeney Case, in effect, that: There can be no change in the award of alimony, unless the
right to make such a change is reserved by the court in its decree, as it may be, or is given by
statute, as it often is. Again, in the case of Dechert v. Dechert, 46 Nev. 140, 205 P. 593, this
court said: The decree of divorce provides that it may be modified as to the allowance
mentioned, and hence the court would have authority to modify it upon a proper showing.
While we have not heretofore ruled upon this identical question, yet this court has
established the precedent by implication that, if the right is reserved by the trial court to make
additional or further orders, or to modify its findings and decree with reference to custody and
control of minor children, and the support of said children, and also alimony payments, and if
a proper showing is made, the trial court has ample power and authority to modify and
amend its decree in divorce cases in the foregoing respects.
53 Nev. 398, 408 (1931) Lewis v. Lewis
authority to modify and amend its decree in divorce cases in the foregoing respects. The great
weight of authority seems to be in accord with this viewpoint, as is pointed out, discussed,
and analyzed in the case of Ruge v. Ruge, 97 Wash. 51, 165 P. 1063, L.R.A. 1917f, 721. We
quote with approval extracts from the above case. In this case the court in its opinion makes a
careful analysis and distinction between various cases; each class being based upon a sound
fundamental principle.
One of the classifications pointed out by the learned judge in the above case is in the
following language: IV. Comprising this class are the cases where the court by express
provisions in its decree reserves to itself either all or a portion of its power to provide alimony
for the wife or maintenance for the children. In such cases the decree is not final and
conclusive as a matter of law, because it does not purport to be final and conclusive as a
matter of fact. The reservation in the decree plainly indicates an unfinished determination of
the judicial mind; that is, the court has not completely disposed of the case. The power of the
court not having been exhausted, it reserves to itself the right to exercise the unexhausted
portion of its power in such manner as changed conditions and circumstances may indicate to
be just. As a judgment in any kind of action thus inconclusive and incomplete is not final, so
also it is not final in a decree relating to alimony. The cases are in harmony that, where the
power to modify is thus expressly reserved in the decree, the tribunal reserving it has the
power to exercise it to meet changed or changing conditions thereafter arising. Ruge v.
Ruge, 97 Wash. 51, 165 P. 1063, 1065, L.R.A. 1917f, 721.
Says Mr. Bishop in his treatise on Marriage, Divorce, and Separation: Because the
procedure of a court always bends with the right to which it gives effect, it early became and
it remains the doctrine in the country whence our laws are derived, and it is accepted and
practiced upon by a considerable proportion of our American tribunals that the court may at
any time and from time to time, on any change in the circumstances of the parties,
increase or reduce the sum allotted for alimony temporary or permanent."
53 Nev. 398, 409 (1931) Lewis v. Lewis
and from time to time, on any change in the circumstances of the parties, increase or reduce
the sum allotted for alimony temporary or permanent.
We feel that the authority handed us by the plaintiff in the case of Daniels v. Daniels, 12
Nev. 118; Jones v. San Francisco Sulphur Co., 14 Nev. 172; and Clark v. Strouse, 11 Nev.
79, are not cases applicable or analogous to the situation or the facts or circumstances here
presented.
This matter is very extensively portrayed by the learned author of Corpus Juris as found in
19 C.J. p. 270: Where the court has preserved its jurisdiction by a reservation in the final
decree, it may modify the amount awarded, notwithstanding the reservation was to the wife
alone.
It will thus be seen that the rule is sufficiently broad to bring the present case within its
purview, and where in states like Nevada we have a statute limiting the time for modifying a
court decree, the rule does not apply to actions of this kind where jurisdiction to modify is
reserved in the original decree of the lower court.
But here, also, by the very language of the agreement itself, the parties, plaintiff and
defendant, contemplated that such a condition might arise wherein it would become necessary
to ask for a modification of the decree. We quote from the agreement and decree the
following language: And that should at any future time said gross annual income fall below
forty-eight thousand (48,000.00) dollars the party of the first part shall have the right to apply
to the court for a reduction in the payment of alimony.
In the case of Lindsay v. Lindsay, cited by plaintiff, 52 Nev. 26, 280 P. 95, 67 A.L.R. 824,
this court held in effect that, where order of court altered decree for divorce in substantial
way by reducing amount which defendant husband was required to pay wife for support and
maintenance of minor children, changes were unauthorized under Rule 45 of District Court,
requiring notice to adverse party within six months. * * * It would appear from a perusal of
this case and of the court's review of the decree of the trial court that jurisdiction was not
retained in the original decree as in the present case.
53 Nev. 398, 410 (1931) Lewis v. Lewis
It would appear from a perusal of this case and of the court's review of the decree of the
trial court that jurisdiction was not retained in the original decree as in the present case.
What was said in the Lindsay Case has no specific application to the facts and the law
applicable here.
It will be seen from an examination of our statutes, sections 9463, 9465, Nev. Comp. Laws
1929, that the trial court has a right conferred upon it to make such property settlements as
may seem just and equitable. It will be seen further that the court may, on proper showing for
cause, enter an order changing the payment of alimony to the minor children. Can it then be
said that, if an application in such instance was made, rule 45 of the district court rules of the
state would not permit the entering or the granting of an order by the trial court making such
change in payment of alimony as is permitted by the foregoing sections of our statute? We
think not. The statute is an enactment of the legislature. The rule is one made by a court by
permission of a statute. The constitution of the State of Nevada, art. 6, sec. 6, and the various
statutes of the State of Nevada relating to marriage and divorce, have permitted, in our
opinion, the district court to reserve jurisdiction in matters of this kind, and, when the
jurisdiction has been thus retained, it would be an infringement for this court to make a rule
for the district courts in conflict with the constitution and the statute; and, indeed, the very
statute permitting the supreme court to make rules for the district court expressly provides
that the rules so made shall not be inconsistent with the constitution and laws of the state.
However, we do not believe there is a conflict here or that the Lindsay Case, above quoted,
applies for the reasons above set forth.
And, further, there are many kinds of judgments, and the reason for rule 45 of the district
court is obvious where it concerns judgments of a trial court which, by reason of their very
nature, should not be subjected to modification or change, but decrees or judgments
concerning the custody of minor children and the award of alimony in divorce cases,
particularly where jurisdiction is reserved, do not fall within that class of judgments
where rule 45 is meant to apply.
53 Nev. 398, 411 (1931) Lewis v. Lewis
reason of their very nature, should not be subjected to modification or change, but decrees or
judgments concerning the custody of minor children and the award of alimony in divorce
cases, particularly where jurisdiction is reserved, do not fall within that class of judgments
where rule 45 is meant to apply.
Can it be said that an agreement of separation entered into between parties, and afterwards
found by a trial court to make ample provisions for the plaintiff and the minor child, can cut
off or impair or infringe upon the power of the trial court to subsequently alter it, providing
the trial court has reserved unto itself jurisdiction for such purpose? I am of the opinion that it
cannot. The statute of our state gives the trial court authority and power to make provision for
the maintenance, support, and education of minor children, and provides for the allowance of
alimony in divorce actions. Sections 9463, 9465, Nev. Comp. Laws 1929.
2. It is our opinion that the trial court in no instance is bound by the written agreement of
the parties to a divorce action. It may or it may not adopt, according to its judgment, wisdom,
and discretion, such written agreement if it deems the same to satisfactorily care for the
interests of the respective parties to the action and the minor children, if any. It is not bound
to do so, however, and may, in its discretion, cast aside and refuse to adopt any such
agreement which the parties might have, with the utmost good faith, entered into. The mere
fact that the trial court does occasionally, and perhaps in most instances, adopt as a part of its
findings and decree an agreement which the respective parties might have entered into
settling and adjusting their property rights and differences, and even payments of alimony,
does not, of itself, signify that it cannot, if it so desires, adopt its own.
The trial court is not bound in the first instance by any agreement made between parties
concerning the amount of alimony to be allowed a wife or the support or maintenance money
for the wife or minor children.
53 Nev. 398, 412 (1931) Lewis v. Lewis
A trial court may, in its wisdom and discretion, adopt as a part of its findings and decree and
judgment an agreement made and entered into between the respective parties concerning this
most important matter (or it may ignore such agreement), if the court in its judgment and
discretion deems that the agreement properly protects the rights of the respective parties and
appears to the court to be fair.
There is a vast difference, too, in agreements entered into with reference to the fixing of an
amount of alimony and agreements entered into with respect to the maintenance and
education of minor children, but in the instant case the very parties themselves contemplated
that a change might be made necessary in the future. The very nature of the vocation of the
defendant would contemplate such a change, and, the court having retained jurisdiction to
modify its decree, and the agreement itself being merged in the decree and having been
adopted by the court, we can see no real serious merit to the plaintiff's contention that the trial
court had no power or authority to modify or change the decree because the same was based
upon contract between the respective parties.
It is immaterial whether the decree for alimony and the support of children is
incorporated in the decree by the consent of the parties, or by a determination of the court.
When once incorporated in the decree, the court obtains jurisdiction to revise it at any time
thereafter. Skinner v. Skinner, 205 Mich. 243, 171 N.W. 383, 385.
The above citation is from a state which has a statute making provision for a court from
time to time revising and altering divorce decrees, etc. A like and similar situation seems to
exist in the State of Illinois where, in an action for divorce, an agreement of the parties was
incorporated in the decree of the court, and the supreme court of that state said: If the decree
was entered, the rights of the parties rested upon it and not upon the agreements. Herrick v.
Herrick, 319 Ill. 146, 149 N.E. 820, 824.
53 Nev. 398, 413 (1931) Lewis v. Lewis
In the instant case the parties to the agreement contemplated the change from time to time
in the earning capacity of the plaintiff, and in the amount to be paid by the defendant, and, as
above indicated and pointed out, the court reserved expressly the right to make any necessary
modifications upon a proper showing had, and retained unto itself jurisdiction for such
purpose.
A very interesting discourse upon this important matter is had in the supreme court of
Minnesota in the case of Warren v. Warren, as found in 116 Minn. 458, 133 N.W. 1009, and
in this case the theory is advanced and adopted that stipulations and agreements entered into
between parties to a divorce action pending the action became merged in the judgment when
entered, and are not, in the absence of statute upon the subject, sufficiently of a contractual
nature as to preclude the court subsequently from changing and modifying the judgment upon
application of one of the parties.
As we have above pointed out, the court is not controlled or obligated by the stipulation of
the parties, and may adopt or reject or modify such a stipulation or agreement to suit its own
version of the entire case as made upon the facts presented.
Massachusetts, New York, Minnesota, Illinois, and the courts of many, many other states
have adopted the broad and reasonable rule that the court may modify its decrees, irrespective
of the fact that it might have adopted an agreement and property settlement of the respective
parties entered into prior to and pending the divorce action. Wilson v. Caswell (Mass. 1930),
172 N.E. 251; Stewart v. Stewart, 198 App. Div. 337, 190 N.Y.S. 369.
It is the contention of the appellant that the order appealed from is an order in violation of
the express terms of the executed agreement of the parties adopted by the court in its findings
and decree. It will be noted that the agreement in question uses the word average with
reference to the husband's gross annual income, and we think, if there is no other reason than
this use of the word "average," without enlarging upon the same or making provision as to
what years might be averaged or how many, that, in fairness to each of the parties, the
court should have granted the motion to modify the original decree.
53 Nev. 398, 414 (1931) Lewis v. Lewis
of the word average, without enlarging upon the same or making provision as to what years
might be averaged or how many, that, in fairness to each of the parties, the court should have
granted the motion to modify the original decree. We ask ourselves the questions: The
average of what? What average? For how long a period? When must the average be made,
and how? Could the average be made in one year so as to exclude certain earnings of the year
following, or what particular year would be taken as an average of the gross annual income of
the defendant in the action? Fortunately for the respective parties, the words average gross
income are contained only in the fifth paragraph of the agreement, and the meaning of the
same might be enlarged upon by reading the next paragraph in the agreement which leaves
out the word average. To accept the plaintiff's viewpoint, we would have to average the
income over a definite period of time. It is not suggested for how many years or how long a
period the average should be figured upon. It must be conceded that the parties to the
agreement understood the terms thereof and that the sixth paragraph clarifies the entire
situation.
In fact, from a reading of the agreement between the plaintiff and the defendant, we are led
to believe that the parties contemplated that a condition of some kind would arise whereby it
would become necessary to apply to the court for a modification of the judgment. The
agreement so states, and we see no cause to again repeat that portion of the same with
reference to this matter.
Was the order modifying the decree prematurely made? The contention of the appellant is
that the time for making the application for the order of modification, if the court had
jurisdiction, was at the end of the year 1930, or at a time when the defendant could show the
court that the income for the then previous year had fallen below the sum of $48,000, and not
at a time when the defendant could only contemplate what his earnings would be for the
forthcoming year of 1930.
53 Nev. 398, 415 (1931) Lewis v. Lewis
The testimony upon this matter was before the trial court. The oral testimony of the
defendant, supported by the affidavit of his publishers, clearly shows that the earnings of the
much talked abut author of Main Street, Elmer Gantry, and Babbit, to say nothing of
the winner of the Nobel prize, were carefully computed by his publishers and his bankers to
be far less than the contemplated sum of $48,000. This matter was before the trial court upon
the evidence, and the court, after hearing the same, reached a decision from said evidence. It
may be said in passing that the original agreement and the decree in the case gave the parties
no authority, nor did it vest the defendant with any right, to make application from the
plaintiff for a refund if his earnings had fallen below $48,000 per year and he had continued
his payments of $1,000 per month. It must be conceded that the modification as entered by
the lower court is one that can easily be understood, because there is no ambiguity, and the
rights of the plaintiff are amply or fully protected, in that the defendant must, within a given
period after the end of each year, submit an accounting to the plaintiff of his earnings for the
then previous year, and, should the gross earnings be more than $9,600 per annum, the
plaintiff is to receive one-fourth of all such additional gross earnings, in addition to the $200
paid her on the first of each month by the defendant.
The trial court heard all of the evidence between the respective parties. The affidavits are
very lengthly, and the oral testimony of the defendant is in detail as to his finances and
earning capacity. The plaintiff, who is the author of Half a Loaf and other modern fiction,
had the same opportunity and right to appear in the trial court and testify orally before the
judge. However, she chose to submit her proof by affidavit. Her affidavit is very enlightening,
and quite fully covers her objections to the modification of the decree. The same is
substantiated in part by affidavits of other witnesses. However, the trial court was the judge
of the testimony, and, where there is substantial testimony to justify the conclusions
reached by the trial court, this court is bound to accept the same, and will not disturb the
trial court's findings.
53 Nev. 398, 416 (1931) Lewis v. Lewis
and, where there is substantial testimony to justify the conclusions reached by the trial court,
this court is bound to accept the same, and will not disturb the trial court's findings. Black v.
Black, 48 Nev. 220, 228 P. 889; Duplantis v. Duplantis, 50 Nev. 234, 255 P. 1014.
The plaintiff to the action was present at the time of the granting of the decree and testified
in the case. The defendant was then sojourning in Italy, at Naples, in which country he
executed the written agreement, and it was transmitted to the plaintiff and by her counsel
asked to be incorporated in the findings in the action, and by her accepted in the court's
decree. Certainly it cannot now be said that the plaintiff was not cognizant of the terms of the
agreement; namely, should the income of the defendant at any time fall below the sum of
$48,000 per year, the defendant will have the right to apply for a reduction of said monthly
alimony to a sum equal to one-quarter of his annual income.
If the facts upon which the motion was based were within the knowledge of the moving
party, as in the instant case, we do not think the motion was premature.
It is in testimony that at the time of the divorce, or previous thereto, and the agreement and
property settlement made and entered into between the plaintiff and defendant during the
pendency of the divorce action, the defendant set aside the sum of $50,000 to the plaintiff
herein. It may be true, as related in the plaintiff's brief on appeal, that this was a division in
part of the earnings of the community interests during the period of their marital life. It is safe
to assume that, from whatever source the same was provided or earned, the fact remains that
the plaintiff in the action had previously had said sum set aside to her for her use over and
above and in addition to the monthly payments mentioned in the court's decree.
What we have said disposes of all contentions of the plaintiff.
The district court having reserved jurisdiction for the purposes mentioned in the motion,
and no error appearing in the record, and the evidence before us being ample to support
the order of the district court modifying the decree, it follows that the order appealed
from should be affirmed.
53 Nev. 398, 417 (1931) Lewis v. Lewis
appearing in the record, and the evidence before us being ample to support the order of the
district court modifying the decree, it follows that the order appealed from should be
affirmed.
It is so ordered.
Coleman, C.J., concurring:
I concur in the order of affirmance, but not with all that is said in the foregoing opinion.
The appellant assigned six errors; the first four in effect challenging the power of the court
to modify the decree. The fifth assignment is to the effect that the decree did not reserve the
right to make a change in the award of alimony, and the sixth is that the modification is a
change in the agreement and not in the decree.
The original complaint in the case does not plead the agreement, but does plead according
to its legal effect, as interpreted by the plaintiff, the paragraph of the agreement pertaining to
the monthly payments to be made by the defendant to the plaintiff, in words and figures as
follows: Said agreement further provides that the defendant will pay the plaintiff the sum of
One Thousand ($1,000.) Dollars a month on the first day of each and every month so long as
the plaintiff shall not remarry; it being understood, however, that should the income of the
defendant at any time fall below the sum of Forty-eight Thousand ($48,000.) Dollars per year,
the defendant will have the right to apply for a reduction of said monthly alimony to a sum
equal to one-fourth of his annual income.
The court in its decree followed the interpretation of the plaintiff of the paragraph
mentioned.
It is clear that the court had the power to modify the decree.
There is no merit in assignment 6. The court's order of modification did not change the
terms of the contract.
Sanders, J., dissenting:
I dissent. The manner of vacating or setting aside judgments in this state is regulated by
statute, which must be complied with in order to authorize the court to act.
53 Nev. 398, 418 (1931) Lewis v. Lewis
judgments in this state is regulated by statute, which must be complied with in order to
authorize the court to act. Our attention has not been called to any provisions of the civil
practice act that authorizes the court to set aside the judgment in a case like this upon a mere
motion. The case does not come within any of the provisions of section 142 of the civil
practice act (section 8640, Nev. Comp. Laws 1929, section 5084, Rev. Laws 1912.).
The defendant, however, based his right to maintain his motion upon the power reserved to
the court in its original decree to make such further or additional orders relative to the
payments for the plaintiff's support. This being so, under our divorce statute, section 27,
section 9465, Nev. Comp. Laws 1929, it was the duty of the court to allow such sum for the
wife's support as was just and equitable under the circumstances of the case and the
surroundings of the parties.
It is held that, in the absence of fraud or collusion, an agreement or arrangement between
the parties entered into before, and not for the purpose of facilitating the granting of a
divorce, may be adopted by the court in granting permanent alimony, if such an agreement is
just and equitable, but the court is not bound by the agreement and may disregard it,
especially where it is unfair and inequitable, or the amount is inadequate. 19 C.J. p. 251, sec.
586. There is nothing in our statute giving jurisdiction to incorporate into the judgment such
agreements. They are, however, sometimes included in the judgment if they appear fair,
rendering it unnecessary to take proof. The parties, by their agreement, decided to submit to
the court the questions of the reduction of the payments required for the wife's support, in
case the defendant's gross annual income fell below that of $48,000 per year, in which event
the wife agreed to accept a sum equal to one-fourth of his annual income. The court, upon
motion, struck this provision from the judgment. I am of opinion that, when the defendant
elected to move the court to make a new arrangement between the parties as to the
payments for the wife's support of $1,000 per month, so as to conform to his reduced
gross annual income, the court was not bound by the agreement of the parties.
53 Nev. 398, 419 (1931) Lewis v. Lewis
between the parties as to the payments for the wife's support of $1,000 per month, so as to
conform to his reduced gross annual income, the court was not bound by the agreement of the
parties. Under the power reserved to it in its original decree to make such further or additional
orders relative to the payments as the court in the future might deem proper, its jurisdiction
was limited to make such an allowance for the wife's support as was just and equitable under
the circumstances of the case and the surroundings of the parties. As a result of the
defendant's motion, the court assumed jurisdiction to take hold of one of the provisions of the
agreement of the parties and make an order which, in my opinion, is so manifestly unjust and
unfair to the plaintiff wife that it should not be sustained.
We know of no principle, and we have been cited to no authority, which authorized the
court, under the facts and circumstances as disclosed by this record, to so arrange the
payments for the support of the wife as to make it possible for the defendant, by deliberate
intent, disinclination, or otherwise, to defeat or avoid his marital obligation of support of the
plaintiff.
Ducker, J., being unable to participate by reason of illness, the Governor designated Hon.
Clark J. Guild, Judge of the First Judicial District, to act in his stead.
____________
53 Nev. 420, 420 (1931) Ellison Ranching Co. v. Bartlett
ELLISON RANCHING CO. v. BARTLETT
No. 2957
October 2, 1931. 3 P. (2d) 151.
1. Prohibition.
Relator's maximum liability of one-half a cent per acre of land subject to irrigation held too
infinitesimal to justify writ of prohibition on that ground (N.C.L. sec. 9036).
District judge, about five days before term of office expired, filed opinion and
decision in proceedings adjudicating relative water rights, but his term of office
expired before findings were prepared. Section 9036, N.C.L., was thereafter so
amended as to authorize a retiring district judge to make and enter findings of fact
and decree in a case in which he had, while in office, rendered a decision, within
twelve months after termination of his term of office, instead of within sixty days as
theretofore provided. Proceeding in prohibition was instituted by one of water users,
who does not show that he will in any way be damaged except by allowance of judge
of $100 per day for not to exceed fifteen days in disposing of objections to proposed
findings and decree. So far as can be known there might be no objections or
exceptions, and if there were, judge might not take over a day to dispose of them; but
if he takes fifteen days, the entire sum of $1,500 will be equally levied upon
approximately 300,000 acres subject to irrigation, or one-half a cent per acre.
2. Prohibition.
Where state engineer's order of determination of water rights, statements of claims of claimants and
exceptions made to order of determination, which constitute the pleadings in district court, were omitted
from petition in prohibition, court would not undertake to say that judge's decision was indefinite, as
contended (N.C.L. sec. 7922).
Decision adjudicating relative water rights could be made certain, in the noncontested cases at least,
by looking to state engineer's order of determination (N.C.L. 7922).
Decision in question contained following order: Except where specifically in this
decision otherwise ordered, the order of determination made, filed and caused to be
entered in the office of the State Engineer * * * and thereafter filed * * * in the
District Court * * * is affirmed.
4. Prohibition.
Writ of prohibition issues only in the exercise of sound judicial discretion and for the furtherance of
justice.
Original proceeding in prohibition on the relation of the Ellison Ranching Company
against George A. Bartlett, to arrest certain proceedings before the respondent as a former
district judge, wherein the respondent and others filed a motion to quash. Motion granted.
J.D. Skeen and E.J. Skeen, for Relator.
The act of February 20, 1931, Stats. of Nevada, 1931, p. 28, and the act of March 30,
1931, Stats. of Nevada, 1931, p. 413, are violative of art. 6, secs. 1 and 6 of the constitution
of the State of Nevada, in that they attempt to vest judicial power in an individual who is not
a judge defacto or dejure. Meagher v. County of Storey, 5 Nev. 244; State v. Hallock, 14 Nev.
202; Williamson v. Morton, 50 Nev. 145; Wallcott v. Wells, 21 Nev. 47; Norton v. Shelby
County, 118 U.S. 425; Hallam v. Tillinghast (Wash.), 52 P. 329; Cooley's Constitutional
Limitations (8th ed.), p. 139; Van Slyke v. Trempealeau County, etc. Co., (Wis.), 20 Am.
Rep. 50; Bank of the State v. Cooper (Tenn.) 24 Am. Dec. 517; Case of Supervisors of
Election, 114 Mass. 247.
The making of findings, drawing conclusions and the entry of a final decree in the
Humboldt river adjudication litigation are all essentially judicial acts.
The so-called decision is in no sense an adjudication of the water rights. It is not even an
indication of what the court proposes to do; for vital matters involved in the litigation are left
unnoticed or are referred to the attorney-general to be decided and incorporated in proposed
findings.
The acts in so far as they provide for compensation are in violation of art. 6, secs. 10, 15
and 16, and art. 15, secs. 9 and 11, of the constitution of Nevada. Tumey v. Ohio, 273 U.S.
510, 71 Law Ed. 749.
The statutes cited and quoted are unconstitutional and void under the 14th amendment of
the Constitution of the United States, in that by the procedure authorized petitioner would be
deprived of its property without due process of law, and is denied the equal protection of the
laws. Cooley's Constitutional Limitations {7th ed.), p.
of the laws. Cooley's Constitutional Limitations (7th ed.), p. 589; Winchester v. Ayres, 4
Greene (Ia.), 104; Chandler v. Nash, 5 Mich. 409; Hall v. Marks, 34 Ill. 358; Durkee v. City
of Janesville, 28 Wis. 464.
The statutes involved are not retroactive by their terms and cannot be made applicable to
pending litigation. Cooley's Constitutional Limitations (7th ed.), p. 134; Coleman v. Moore,
49 Nev. 139.
Any instrument signed and filed in the said Humboldt river litigation by the respondent would
be wholly without authority of law and void, would encumber the titles to petitioner's real
estate and water rights, and would seriously interfere with the equitable division of the waters
of the Humboldt river stream system, by reason of which petitioner would suffer great and
irreparable damages.
No appeal would lie from such a void judgment, and even if attempted would entail
expenses unreasonable in amount and greatly disproportionate to the value of individual
rights.
Petitioner has no plain, speedy and adequate remedy at law, and prohibition by this court is
the proper remedy. Esmeralda County v. Third Judicial District Court, 18 Nev. 438;
Hoagland v. Creed, 81 Ill. 506.
Gray Mashburn, Attorney-General, and M.A. Diskin, Special Deputy Attorney-General,
for Respondent:
It is rather difficult to understand how the petitioner can, with sincerity, urge the
contention that Judge Bartlett in his decision and opinion has not decided all the matters
submitted for decision in the litigation, when petitioner has failed absolutely to present to the
court as a basis for his request for the writ a sufficient record from the proceedings to enable
this court to determine just what the issues were before Judge Bartlett. Section 35 of the water
code, sec. 7922 N.C.L., states that the order of determination by the state engineer and the
statements of claims of claimants and exceptions made to the order of determination shall
constitute the pleadings, and there shall be no other pleadings in the cause."
cause. Admittedly, no such documents are before this court, and the application for the writ
is not bottomed upon the use of any of these documents by the court.
It is not urged by petitioner that any exception presented by it or any other claimant has
remained undetermined by Judge Bartlett.
It appears that prohibition is not the proper remedy. The law affords to the petitioner a
remedy for each complaint he urges, and that remedy is either a motion to retax costs or a
motion for a new trial.
Morley Griswold and Milton J. Reinhart, for John E. Marble and T.S. Cattle Co.:
Prohibition is an extraordinary remedy to be issued with greatest caution and only when
the way is quite clear. State v. Richards, 102 Ohio St. 455, 132 N.E. 23; Stafler v. State, 112
Tex. 61, 244 S.W. 1064; State v. District Court, 31 Wyo. 413, 227 P. 378.
It may be denied in certain cases where the proceeding has not terminated in a final order
or judgment, and also in such cases even though the proceedings are challenged on
constitutional grounds. Union Portland Cement Company v. Public Utilities, 56 Utah 175,
189 P. 593, 598.
It must be clearly shown that petitioner is without other remedy. Hammond Lumber Co. v.
United States District Court of Oregon, 240 Fed. 924. And the case must be urgent. Arascada
v. District Court, 44 Nev. 37.
Prohibition may issue only to restrain the performance of acts judicial or quasi judicial in
their character. It will not lie to prevent acts of a ministerial nature. In Re Cowles, 52 Nev.
171.
The following-named attorneys also participated in the oral argument, but did not file briefs:
Badt & Dysart, for numerous parties.
E.J.L. Taber, for Filippini Ranching Company.
Cooke & Stoddard, John A. Jurgenson and Prince A. Hawkins, Amici Curiae.
OPINION
This is an original proceeding in prohibition to arrest proceedings before the respondent.
It grows out of the proceedings instituted many years ago to have adjudicated the relative
rights of the water users of the Humboldt river stream system.
Pursuant to preliminary steps theretofore taken, the state engineer, on January 17, 1923,
filed in said matter his order of determination with the clerk of the district court of the sixth
judicial district of Nevada, in and for Humboldt County. Thereafter certain water users along
said stream system filed their objections and exceptions to said order of determination;
among them was this petitioner. In due time the matter came on for hearing upon said
objections and exceptions before the Honorable George A. Bartlett, then a duly elected,
qualified, and acting district judge in the State of Nevada. Final hearing having been had in
said matter, said Bartlett, as district judge, on December 31, 1930, filed with the said clerk his
opinion and decision in said matter, wherein, among other things, he ordered:
Except were specifically in this decision otherwise ordered, the order of determination
made, filed and caused to be entered of record in the office of the State Engineer on the 29th
day of September, 1922, by James G. Scrugham, State Engineer, and thereafter filed on the
17th day of January, 1923, in the Sixth Judicial District Court of the State of Nevada, in and
for the County of Humboldt, is affirmed.
Findings will be prepared in accordance with this decision.
Let Judgment be entered herein accordingly.
The term of office of respondent, as district judge, terminated on January 5, 1931.
At the late session of our legislature, section 9036, Compiled Laws of Nevada, was so
amended as to authorize a retiring district judge to make and enter findings of fact and
decree in a case in which he had, while in office, rendered a decision, within twelve
months after the termination of his term of office, instead of within sixty days as
theretofore provided.
of fact and decree in a case in which he had, while in office, rendered a decision, within
twelve months after the termination of his term of office, instead of within sixty days as
theretofore provided.
The relator contends that the decision rendered by Judge Bartlett on December 31, 1930, is
so indefinite that findings and decree cannot be based upon it, and that to enable the
respondent to enter such findings and decree it will be necessary that he exercise judicial
powers, which he cannot now do.
It is also contended that the act is prospective and not retrospective, and hence does not
empower the respondent to act.
Other contentions are also based upon the allegations of the petition.
The respondent and some of the interested water users answered and also moved to quash.
We think the motion to quash should be sustained.
In determining this matter it is not our intention to pass upon the legal points urged by
petitioner and the other party who has appeared in support of the petition.
1. The relator does not allege that the decision is indefinite and uncertain in determining
its rights, nor does it show that the petitioner will in any way be damaged except as to the
question of the allowance to Judge Bartlett of $100 per day for not to exceed fifteen days in
disposing of objections to the proposed findings and decree.
So far as can be known there may be no objections or exceptions to the proposed findings
and decree, and if there are Judge Bartlett may not take over a day to dispose of them. But if
he takes fifteen days, the entire sum of $1,500 will be equally levied upon and collected from
approximately 300,000 acres subject to irrigation, or one-half a cent per acre, making the
amount for which relator would be liable so infinitesimal as not to justify this writ upon an
theory as to that point.
Relator and other counsel seem to concede that if the decision is definite and certain
enough to enable the preparation of findings and decree therefrom that the act of passing
upon the objections thereto and signing the same would not be judicial, and while such
seems to be the view sustained by the great weight of authority, we do not find it
necessary to determine the point.
the preparation of findings and decree therefrom that the act of passing upon the objections
thereto and signing the same would not be judicial, and while such seems to be the view
sustained by the great weight of authority, we do not find it necessary to determine the point.
2, 3. We may observe that in view of the fact that the order of determination of the state
engineer and the statements of claims of claimants and exceptions made to the order of
determination, which constitute the pleadings in the district court (section 7922, Nev. Comp.
Laws; Vineyard L. & S. Co. v. District Court, 42 Nev. 1, 171 P. 166), are not incorporated in
the petition, we will not undertake to say that the contention as to the indefiniteness of the
decision is well founded. We held in Norcross v. Cole, 44 Nev. 88, 189 P. 877, that that is
certain which is capable of being made certain. Such is recognized as the law in the following
cases: Walsh v. Wallace, 26 Nev. 299-330, 67 P. 914, 99 Am. St. 692; In Re Senate File 31,
25 Neb. 864, 41 N.W. 981-988; Starling v. Blair, 4 Bibb (Ky.), 288; Armstrong v. Mudd, 10
B. Mon. (Ky.) 144, 50 Am. Dec. 545. Such being the law, all that is necessary to do, in the
noncontested cases at least, is to look to the order of determination.
If we were to determine the question as to whether the amendment authorizing the passing
upon objections to proposed findings and decree is retrospective, we would necessarily have
to determine if it pertain to a matter of procedure, a question not discussed by counsel. The
law seems to be that an act pertaining to procedure is viewed in a different light from statutes
pertaining to antecedent rights. Boucofski v. Jacobsen, 36 Utah, 165, 104 P. 117, 26 L.R.A.
(N.S.) 898; 2 Lewis' Sutherland Stat. Const. (2d ed.), sec. 674; Dickson v. Alabama
Machinery & Supply Co., 18 Ala. App. 164, 89 So. 843; Nash v. Robinson, 226 Mich. 146,
197 N.W. 522; Dakota Cent. Tel. Co. v. Mitchell Power Co., 45 S.D. 462, 188 N.W. 750.
It does not appear to what extent, if at all, any of the complaining parties can be injured.
4. The rule which should control this court upon an application for this writ was clearly
and strongly stated in Walcott v. Wells, 21 Nev. 47, 24 P. 367, 9 L.R.A. 59, 37 Am. St. Rep.
478, and adhered to in Bell v. District Court, 28 Nev. 280, 81 P. 875, 1 L.R.A. (N.S.) 843,
113 Am. St. Rep. 854, 6 Ann. Cas. 982; Turner v. Langan, 29 Nev. 281, 88 P. 1088; Silver
Peak Mines v. District Court, 33 Nev. 97, 110 P. 503, Ann. Cas. 1913d, 587; State ex rel.
Hatch v. District Court, 50 Nev. 282, 257 P. 831; and in Metcalfe v. District Court, 51 Nev.
253, 274 P. 5, where it was said, among other things, that the writ issues only in the exercise
of sound judicial discretion and for the furtherance of justice.
Waiving aside other objections that are made to the issuance of the writ, we are convinced
that sound judicial discretion and the furtherance of justice demands that these proceedings be
dismissed and that the complaining parties be left to pursue their legal remedy.
It is so ordered.
[Reporter's Note: The Supreme Court of the United States on January 25, 1932, entered the
following per curiam opinion in the case of Ellison Ranching Co. v. Bartlett, No. 522,
October term, 1931:
The appeal herein is dismissed for the reason that the judgment of the State court is based
upon a non-Federal ground adequate to support it. Doyle v. Atwell, 261 U.S. 590, 592;
McCoy v. Shaw, 277 U.S. 302, 303.]
____________
53 Nev. 428, 428 (1931) State v. McNeil
STATE v. McNEIL
No. 2922
November 14, 1931. 4 P. (2d) 889.
1. Homicide.
Instruction regarding intent in use of deadly weapon, requested by defendant in homicide prosecution,
held properly refused (sec. 9956, N.C.L.).
Requested instruction was: If the person accused use a weapon designed to be
deadly and use it in such a manner in which such weapon is ordinarily used to kill,
then the law will presume an intention to kill, but if such weapon was not used in the
manner designed, that is to say for shooting, then such presumption is not a
presumption of law, but leaves the intent as a question of fact for the jury; and to
strike one with the barrel of a pistol instead of shooting him with the weapon, not
being the ordinary way of using the weapon for killing, the intention to kill will be a
question of fact unassisted by any presumption, and, taken in connection with the
other testimony, the presumption may be against an intention to produce death, for
having the means of killing, the actor has chosen to avoid that end.
2. Homicide.
Question of intent to kill, including query as to deadliness of weapon, is for jury, subject to court's
instruction giving legal definition of a deadly weapon (sec. 9956, N.C.L.).
3. Criminal Law.
Defendant could not complain on appeal, for first time, of alleged misconduct of district attorney
during trial.
4. Criminal Law.
It is not obligatory upon a district attorney to call all of the eyewitnesses to a transaction charged to be
a crime.
5. Criminal Law.
Though district attorney's opening statement that he would prove premeditation totally failed of
fulfillment, defendant held not prejudiced where jury returned a verdict of second degree murder.
It was evident from verdict that question of premeditation and deliberation was wholly
disregarded by jury in favor of defendant.
6. Criminal Law.
Mere admissibility of newly discovered evidence is not sufficient to meet requirement on motion for
new trial if it does not appear that it possesses the requisite materiality.
7. Criminal Law.
Granting of new trial on ground of newly discovered evidence is discretionary.
8. Criminal Law.
Denial of new trial on ground of newly discovered evidence will not be reversed unless it
clearly appears that court abused its discretion.
will not be reversed unless it clearly appears that court abused its discretion.
9. Criminal Law.
In homicide case, denial of new trial on ground of newly discovered evidence mainly tending to
contradict state's witnesses held not abuse of discretion.
10. Jury.
Challenge to venireman who stated that he could not give both the state and defendant an impartial
hearing, that he was prejudiced and that such prejudice would remain with him during the trial, and that if
he were in the position of the state or defendant he would not care to be tried by a jury composed of twelve
men in his frame of mind, held properly allowed (sec. 10945, N.C.L.).
11. Witnesses.
Sustaining, on cross-examination, of objection to questions not relating to direct testimony but to test
memory or credibility of witnesses held clearly within court's discretion.
12. Criminal LawWitnesses.
When object of cross-examination is to ascertain the accuracy or credibility of witness, its method and
duration are subject to discretion of trial judge, and, unless abused, its exercise is not reviewable.
13. Criminal Law.
Rebuttal evidence need not completely and entirely contradict the evidence of the defense, if it has a
tendency to contradict or disprove it.
14. Criminal Law.
State's rebuttal of matters rather remotely connected with case in chief or tending to contradict statements
of defendant on cross-examination held properly allowed, as within discretion of court.
15. Homicide.
Evidence held sufficient to support conviction of second degree murder (sec. 11266, N.C.L.).
16. Criminal Law.
In criminal cases, when there is any substantial evidence to support the verdict, the evidence will not be
weighed on appeal.
Appeal from Fifth Judicial District Court, Nye County; Frank T. Dunn, Judge.
Wallace McNeil was convicted of second degree murder, and he appeals. Affirmed.
A. Grant Miller, W.R. Gibson and H.C. Price, for Appellant:
The court erred in refusing to give to the jury defendant's requested instruction F, for the
reasons: 1.
1. That the instruction embodies well-settled law upon the subject matter, without any
admixture of error.
2. That it is well-settled law as held by appellate jurisdictions that a gun is held per se to be
a deadly weapon only when used as a gun is intended to be used, by shooting it.
3. That it is the law that where a person, having the present ability and means to kill
another by shooting with a gun, elected not to shoot or use the gun in its ordinary deadly
manner, but did strike with it to disable his adversary only, that he is entitled to the benefit of
this instruction. 13 R.C.L. 742-744.
4. That in this case the evidence of the state by some of their witnesses shows or attempted
to show that the defendant struck the deceased with the barrel of the gun.
5. That all of the evidence in the case taken together furnishes a basis, and a proper basis,
for the instruction requested.
6. That the theory of the defendant in his defense in this action entitles him to the
instruction requested.
7. That the refusal of the court to give it is contrary to law.
Intent to kill must necessarily have been a serious factor in the minds of the jury, and if
resolved in defendant's favor must necessarily have resulted in a verdict of manslaughter only.
State v. Newton, 4 Nev. 410; State v. Davis, 14 Nev. 413.
The trial court erred in denying a new trial on the ground that new evidence has, since the
rendition of the verdict, been discovered, which newly discovered evidence is material to the
defendant and which he could not, with reasonable diligence, have discovered and produced
at the trial.
The trial court erred in allowing the challenge of the prosecution to the venireman Steve
Andrews, who stated in answer to questions propounded by defendant's attorney that he based
his answers to the district attorney upon hearsay, and that he would not take, as a juror, such
hearsay and it would have no weight with him as a juror.
such hearsay and it would have no weight with him as a juror. 16 R.C.L. sec. 82, p. 265.
The court erred in sustaining the district attorney's objection to questions propounded by
counsel for defendant in cross-examination of the witnesses Walter Bowler and Sanford
Galvin, confining the cross-examination strictly to questions and answers brought out in the
examination in chief, which we submit was an improper limitation of cross-examination.
People v. Manasse, 94 P. 92; People v. Davenport, 110 P. 318; Enterprise Lumber Co. v.
Porter, 46 So. 773; People v. Teshara, 75 P. 338; Witworth v. Thomas, 3 Am. St. Rep. 725;
People v. Long, 15 N.W. 105; Faulkner v. Burch, 120 Ill. App. 281; Commoford v. Pauls, 33
N.W. 741; Chandler v. Allison, 10 Mich. 460.
The court erred in refusing to strike out, on motion of defendant's counsel, the testimony of
the witnesses Pearl B. Harvey, Henry Wenzel and Elizabeth Walthers, upon the ground that it
was not rebuttal testimony and, with a single exception, the same testimony as brought out in
the State's case in chief.
The intemperate language used by the district attorney in addressing the jury, together with
the deliberate suppression of evidence in defendant's favor, warrant very serious
consideration and, taken in connection with the other assignments of error in this case, show
that the defendant did not have a fair and impartial trial.
The district attorney in his opening statement to the jury proposed to prove: That on
December 8th, the defendant awaited in the Mizpah Hotel for Gordon to come at his usual
time to Southworth's Store. The only evidence that the prosecution introduced in that respect
was: That just before the altercation defendant was in the Mizpah Hotel looking out of the
windows, that Gordon came to Southworth's store in his car, and that he was in the habit of so
doing and buying goods there. There is not one iota of evidence to show that defendant ever
knew of Gordon's trading in the store, and no previous acquaintance was shown except by
defendant's own testimony that he knew the man by sight.
defendant's own testimony that he knew the man by sight.
M.A. Diskin, Attorney-General; Wm. J. Forman, Deputy Attorney-General; and Walter
Rowson, District Attorney, for the State:
Defendant's requested instruction F states only part of the law on the particular question
involved in the mode or manner of using the weapon which was the immediate cause of
death, and injects a considerable admixture of error.
Shooting does not constitute the sole and only method by which a gun may be used as a
deadly weapon.
The undisputed testimony in this case shows that the victim of appellant's assault was
disabled and felled to the ground at the first blow struck by appellant, and that appellant then
stood over his victim and mercilessly beat him over the head with a gun while he was lying
prone on the ground and helpless.
There is no distinction as between the butt and the barrel of a gun where the weapon is
used as a club.
Dependent upon the circumstances of its use, a club may be a deadly weapon per se. State
v. Phillips, 104 N.C. 786, 10 S.E. 463; Brill's Cyclopedia of Criminal Law, vol. 1, sec. 416.
The jury are the judges as to whether the weapon was or was not a deadly weapon. Scott v.
State (Tex.), 62 S.W. 419; State v. Archball, 139 N.C. 537, 51 S.E. 801; Price v. State, 87
Tex. Cr. 163, 220 S.W. 89; Acers v. U.S., 41 L. Ed. 481; 13 Cyc. 283; 30 C.J. 352; People v.
Lopez, 66 P. 966.
It has even been held that if the jury are convinced beyond a reasonable doubt that
deceased came to his death at the hands of defendant it makes no difference what sort of
weapon he was killed with, or how the weapon was used. 30 C.J. 352.
Requested instruction F was properly refused, on the general principle that it assumed as
a fact a question which it was directly within the province of the jury to decide. That is to say,
it assumed that the defendant did not intend the natural and reasonable consequences
which resulted from the blows inflicted on his victim, and which the evidence conclusively
shows were the immediate cause of death.
defendant did not intend the natural and reasonable consequences which resulted from the
blows inflicted on his victim, and which the evidence conclusively shows were the immediate
cause of death. Acers v. U.S., supra.
The principle enunicated in 13 R.C.L. 744, urged by counsel, relates to an entirely
different class of cases from that presented by the testimony in the case at bar.
An intent to commit murder is manifested by the circumstances connected with the
perpetration of the offense, and the sound mind and discretion of the person accused. State v.
Muldoon, 51 Nev. 322, 274 P. 922; 21 Cyc. 897.
The jury had every reason to find appellant guilty of at least second decree murder, for the
seriousness of the offense as second degree murder would not be minimized even though the
evidence had shown that appellant intended only to assault the deceased and not to kill him.
State v. Raymond, 11 Nev. 98.
It is not necessary to consider here the question of whether appellant was lying in wait prior
to the attack, as appellant was adjudged guilty of murder in the second degree only. State v.
Olivieri, 49 Nev. 75.
All of the so-called newly discovered evidence referred to by appellant is for the purpose of
impeaching testimony adduced by the State. Newly discovered impeaching evidence is not
ground for a new trial. Spalding v. State, 162 Ind. 297; State v. Leuth, 128 Iowa, 189; State v.
Lackey, 72 Kan. 95; State v. Lucas, 147 Mo. 70; Smiley v. Oklahoma, 15 Okla. 314; State v.
Gardner, 33 Ore. 149; State v. Hill, 39 Ore. 95; State v. Matkins, 45 Mont. 58; State v. Scott,
37 Nev. 449.
The state's challenge of venireman Steve Andrews for actual bias was well taken under
subsection 2, sec. 7147, Rev. laws 1912, and properly allowed. State v. Kelz, 1 Nev. 224.
While considerable latitude is permissible in cross-examination in a criminal case, the extent
of such latitude is within the sound discretion of the court. There was no abuse of such
discretion in the instant case.
The questions asked of witnesses Harvey and Wenzel, objected to by appellant as not
rebuttal, were merely preliminary to testimony which was admittedly proper rebuttal.
It was wholly within the discretion of the trial court to permit the calling in rebuttal of the
witness Elizabeth Walthers to explain statements made by appellant.
Having failed to request that the jury be appropriately instructed by the trial court to
disregard any improper or objectionable statements or misstatements indulged by the
prosecutor in his argument, appellant cannot now be heard to claim reversible error. 16 C.J.
915; State v. Hunter, 48 Nev. 358, 367; State v. Boyle, 49 Nev. 402.
The charge is made that evidence favorable to the defendant was suppressed by the
prosecution. In all the voluminous record in this case there is nothing that would even
remotely indicate that the State did other than to bend every effort to see that all of the
material evidence was presented to the jury.
Applications for a new trial are not granted as a matter of right, the granting or refusing
resting entirely in the sound discretion of the court. An application for a new trial on the
ground of newly discovered evidence is viewed with suspicion. Such evidence must in fact be
new, and not merely cumulative or impeaching. State v. Wilberg, 48 Nev. 192; Stats. 1917, p.
423; 16 C.J. 1182; State v. Randolph, 49 Nev. 241.
OPINION
By the Court, Thomas F. Moran, District Judge:
The various assignments of error relied upon by the appellant will appear as we take them
up in our discussion of the case.
1. One of the points that has been well briefed and earnestly argued in this court by
appellant is assignment No. 3; that is to say, the alleged error of the trial court in refusing to
give defendant's proposed instruction F to the jury.
the jury. The instruction in questions reads as follows: You are instructed that if the person
accused use a weapon designed to be deadly and use it in such a manner in which such
weapon is ordinarily used to kill, then the law will presume an intention to kill, but if such
weapon was not used in the manner designed, that is to say for shooting, then such
presumption is not a presumption of law, but leaves the intent as a question of fact for the
jury; and to strike one with the barrel of a pistol instead of shooting him with the weapon, not
being the ordinary way of using the weapon for killing, the intention to kill will be a question
of fact unassisted by any presumption, and, taken in connection with the other testimony, the
presumption may be against an intention to produce death, for having the means of killing,
the actor has chosen to avoid that end.
It may be that in certain jurisdictions some parts of this instruction could properly be
given, possibly in a case in which the evidence indicated a striking with a loaded gun upon
some nonvital part of the body. But we cannot see how it could have been given under the
statutes of this state, the decisions of this court, or the evidence in the present case.
2. It is provided in section 9956 of Nevada Compiled Laws 1929, that intention in
criminal cases is manifested by the circumstances connected with the perpetration of the
offense, and the sound mind and discretion of the person accused. In the case of State v.
Davis, 14 Nev. 410, this court held, in harmony with the statute, that it is the character of the
weapon and the manner in which it is used, not the purpose for which it is carried, taken in
connection with the facts and circumstances of the assault, that indicates the intention of the
party. Thus the whole question of intent to kill, including the query as to the deadliness of the
weapon, must be left to the jury, under the particular facts and circumstances of each case,
subject, of course, to the usual instruction of the court, giving a legal definition of a deadly
weapon. State v. Rigg, 10 Nev. 290; Acers v. U.S., 164 U.S. 3SS, 17 S. Ct. 91, 41 L. Ed. 4S1;
People v. Lopez, 135 Cal.
v. U.S., 164 U.S. 388, 17 S. Ct. 91, 41 L. Ed. 481; People v. Lopez, 135 Cal. 23, 66 P. 965,
966; State v. Archbell, 139 N.C. 537, 51 S.E. 801; State v. Napper, 6 Nev. 113; State v.
Buralli, 27 Nev. 41, 71 P. 532.
The case of Delk v. State, 135 Ga. 312, 69 S.E. 541, Ann. Cas. 1912a, 105, cited by
appellant as authority for the requested instruction, is not in conflict with the opinions of this
court. The decision does not contain a statement of the facts in the case, but merely holds that,
under certain conditions, if a given weapon is not used in the ordinary manner in which such
a weapon produces death, then the intent to kill is not a presumption of law, but purely a
question of fact under the evidence.
In State v. Collyer, 17 Nev. 275, 30 P. 891, Chief Justice Hawley properly held that:
When there is any doubt as to whether the instrument used in committing the assault was a
deadly weapon, it is a question for the court and jury to decide, which cannot have any other
meaning than that the question is one of fact for the jury to determine under proper
instructions, as to the statutory definition of intention, and as to what is legally considered a
deadly weapon.
We believe this attitude is eminently sound, for we can easily conceive of many
circumstances in which a given weapon could be equally deadly in many ways, regardless of
the purpose for which it is mainly intended to be used. For example: A and B are out hunting;
A is carrying a loaded rifle; an argument ensures between them; A becomes angry, and strikes
B violently on the top of the head with the rifle, and breaks his skull, killing him instantly.
Can it be logically contended that A would be entitled to such an instruction as the one
offered in the present case, giving him a presumption of mitigation of the offense, merely
because he did not choose to shoot with the weapon? If we remember that every person is
presumed to intend the natural consequences of his acts, we must answer the question with an
emphatic negative. Yet the hypothetical case that we have just propounded is infinitely
stronger in favor of the instruction that is the case at bar. We have postulated that A was
carrying a loaded rifle, while in the present case there is no evidence whatever in the
record upon which to base an assumption that the pistol wielded by the appellant was
loaded.
A was carrying a loaded rifle, while in the present case there is no evidence whatever in the
record upon which to base an assumption that the pistol wielded by the appellant was loaded.
It was properly held in State v. Napper, supra, that no presumption exists that any given gun
is loaded. Thus, aside from its other inherent defects, the instruction in question is predicated
upon something not in evidence, and rests upon a presumption not recognized by the law of
this state.
Under the evidence in this case, the jury evidently found that the weapon as wielded by the
defendant was deadly, and that there was an intent to kill. We are not inclined to dispute the
deductions of the jury. Although the weapon itself is not in evidence, the record shows that it
was a .44 or .45 caliber pistol, and that the defendant struck the deceased with it repeatedly on
the face or head with such violence that the victim fell to the ground. The defendant himself
admitted that he struck the deceased twice on the face with the gun before the victim fell.
Other witnesses testified that the defendant continued to strike the deceased after the latter
had fallen.
In view of the foregoing considerations, we must conclude, not only that the requested
instruction was properly refused, but also that the giving of it would have been erroneous.
3. We have given particular attention to assignment No. 13, as to the alleged misconduct
of the district attorney, which we are urged to consider of such a reprehensible nature as to
deprive the defendant of a fair and impartial trial. While we are not indorsing in this opinion
everything that was said or done by the district attorney at the trial of this action, we cannot
agree with appellant that the officer's conduct was so extreme as to be prejudicial to the
defendant, or to warrant a reversal of this case. But, even if the conduct complained of was of
the most serious consequence, the appellant could not here, for the first time, be heard to
complain. The record does not disclose that any objection was interposed, or exception taken,
to the alleged misquotations, misstatements, or other misconduct of the district attorney
during the trial.
alleged misquotations, misstatements, or other misconduct of the district attorney during the
trial. Neither did counsel for appellant, at the time of the conduct complained of, request the
court to admonish the prosecuting officer, or to caution the jury to disregard his unfair
conduct. Only after refusal by the trial court to grant such a request of appellant could the
appellant urge this court to consider any assignments of error of this nature. State v. Hunter,
48 Nev. 358-367, 232 P. 778, 235 P. 645; State v. Boyle, 49 Nev. 402, 248 P. 48; 16 C.J. 915.
4. The appellant further complains of the district attorney, in that the officer failed to
summon all the witnesses who were present at the time and place of the offense, and
especially one Inman who visited the district attorney some time before the trial, and who was
told by him that he was not needed as a witness. It is true that under the old English rule there
was a duty on the part of the prosecuting officer to call as witnesses all persons present at the
time of a transaction charged as a crime. But this ancient doctrine has undergone considerable
modification in England during modern times, while a great number of American courts,
including our own, have consistently looked upon it with disapproval. In the case of State v.
Milosovich, 42 Nev. 274, 175 P. 139, it was contended by the defendant in that case that the
district attorney was guilty of conduct during the trial necessitating the granting of a new trial,
in that he had failed to call one Daisy Reeves, who was present during most of the time when
the events leading up to the homicide took place. A number of authorities were cited in that
case to sustain the defendant's theory. But this court, in passing on the question, said very
positively: It is not obligatory upon a district attorney to call all of the eyewitnesses to a
transaction charged to be a crime. See, also, State v. Barrett, 33 Or. 194, 54 P. 807; Ross v.
State, 8 Wyo. 351, 57 P. 924, 929.
5. It has been argued by appellant that certain portions of the opening statement of the
district attorney were prejudicial to the defendant, in that the prosecuting officer
promised to prove premeditation by representing the defendant as having waited at the
Mizpah Hotel, shortly before the trouble, for Capt.
portions of the opening statement of the district attorney were prejudicial to the defendant, in
that the prosecuting officer promised to prove premeditation by representing the defendant as
having waited at the Mizpah Hotel, shortly before the trouble, for Capt. Gordon to appear.
But his objection becomes very trivial, in view of the fact that there is some testimony in the
record that justifies the statement. But, even if the statement had totally failed of proof, we
cannot understand in what manner the defendant in this case has been injured or prejudiced
by it. From the fact that the jury returned a verdict of second degree murder, it is evident that
the question of premeditation and deliberation was wholly disregarded by the jury, in favor of
the defendant. State v. Olivieri, 49 Nev. 75, 236 P. 1100.
6. The appellant also complains, under assignment of Error No. 6, of the refusal of the
lower court to grant a motion for a new trial on the ground of newly discovered evidence. It
appears from the affidavits before us that the new evidence in question is mainly concerned
with facts that tend to contradict the positive testimony of several witnesses for the state, to
wit, Dr. Cowden, Sanford Galvin, Walter Bowler, and Ross Moon, to the effect that the
victim's right hand was in his right back pocket when each of these witnesses, respectively,
reached the scene of the trouble. Although such evidence would very probably be admissible,
it is well established that its mere admissibility is not sufficient, if it does not appear that it
possesses the requisite materiality. According to many authorities, including Wharton on
Criminal Evidence, vol. 1, p. 272, 273, newly discovered evidence must be material, and not
merely cumulative, corroborative or impeaching. Hence the mere fact that the new evidence
would be relevant falls quite short of meeting the requirement on a motion for new trial based
on this ground.
7-9. The same reasoning is contained in State v. Willberg, 45 Nev. 183, 200 P. 475, where
it has been held by this court that, when the new evidence is for the sole purpose of
contradicting or discrediting other witnesses, such evidence does not warrant a new trial.
held by this court that, when the new evidence is for the sole purpose of contradicting or
discrediting other witnesses, such evidence does not warrant a new trial. The granting of a
new trial, furthermore, on the ground of newly discovered evidence, is discretionary with the
lower court, and a denial of a new trial upon this ground will not be reversed on appeal unless
it clearly appears that the court abused its discretion. The record noes not disclose any such
abuse.
10. It is contended, under assignment No. 7, that the court erred in allowing the challenge
of the prosecution to the venireman Steve Andrews. That this venireman did not come up to
the standard required by law to be a juror was made manifest by his answers to questions on
voir dire. He stated, according to the transcript, that he could not give both the state and the
defendant an impartial hearing; that he was prejudiced, and that such prejudice would remain
with him during the trial; that, if he were in the position of the state or the defendant, he
would not care to be tried by a jury composed of twelve men in his frame of mind. We cannot
conceive of a more complete disqualification of a trail juror that appears from the answers of
this venireman as shown by the record. It may be true that on cross-examination his answers
tended to contradict his previous statements, but we believe that his very self-contradictions
do not increase his fitness as a juryman. Under the circumstances disclosed in the
examination of this venireman, we are of the opinion that the court could very properly have
excused him, even in the absence of a challenge. Hence the challenge was properly allowed
according to section 10945, Nevada Compiled Laws 1929, which provides for
disqualification for the existence of a state of mind on the part of the juror which leads to a
just inference, in reference to the case, that he will not act with entire impartiality, which is
known in this act as actual bias.
In State v. Kelly, 1 Nev. 224, it is held that: When there is any probability that a juror is
disqualified, and the Court is unable to determine it by reason of its inability to establish the
fact constituting such disqualification, it is not required to hazard the regularity of its
proceedings by permitting such person to sit as a juror, but may excuse him at any time
before he is charged with the case."
inability to establish the fact constituting such disqualification, it is not required to hazard the
regularity of its proceedings by permitting such person to sit as a juror, but may excuse him at
any time before he is charged with the case. See, also, State v. Buralli, 27 Nev. 49, 71 P.
532.
11. Under assignment of error No. 8 the appellant contends that the court erred in
sustaining the district attorney's objection to a question propounded to the witness Walter
Bowler, thereby shutting off the cross-examination of said Walter Bowler, who was then a
witness on the part of the state. The court by its ruling confined the cross-examination strictly
to matters brought out in the district attorney's examination of the witness in chief. It appears
from the record that the question propounded to the witness by appellant's counsel was not
one on cross-examination, but one to test the memory or credibility of the witness, to wit:
When you arrived there did you see Gordon's car? There was nothing said about a car on
direct examination, and the court was clearly within its exercise of discretion in shutting off
the examination as to such matters.
12. The rule is laid down in many authorities to the effect that, when the object of the
cross-examination is to ascertain the accuracy or credibility of a witness, its method and
duration are subject to the discretion of the trial judge; and, unless abused, its exercise is not
the subject of review. See Langley v. Wadsworth, 99 N.Y. 63, 1 N.E. 106. Hence we find no
error in the trial court's ruling on this point.
What we said about the discretion of the court in matters of cross-examination applies
with equal force to appellant's assignment No. 9. Here the witness whose cross-examination
is claimed to have been erroneously limited is Sanford Galvin. The testimony sought to be
elicited was merely for the purpose of testing the memory of the witness concerning such a
purely collateral matter as the disposition of Gordon's car after the offense. The court was,
without question, within its reasonable exercise of discretion in limiting the
cross-examination of the witness.
within its reasonable exercise of discretion in limiting the cross-examination of the witness.
13, 14. There are three distinct assignments of error (Nos. 10, 11, and 12), each based
upon the refusal of the court to strike out, on motion of defendant, certain testimony offered
by the state on rebuttal. No. 10 involves testimony given by the witness Pearl B. Harvey. No.
11 is concerned with a motion to strike testimony of the witness Henry Wenzel. No. 12
assigns as error the court's admission on rebuttal of the testimony of Elizabeth Walters, as to
whether or not she drank intoxicating liquors, and whether or not Gordon gave her any
liquors, and whether Gordon treated her in the manner of a gentleman. We are taking up the
assignments together simply because the same point is involved in each of them, to wit, the
court's discretion in allowing or disallowing rebuttal of matters rather remotely connected
with the case in chief, or matters tending to contradict statements brought out by the state in
the cross-examination of the defendant. It may be that, in the strictest sense of the term, some
of the facts elicited were not rebuttal evidence; but most courts, in their proper discretion,
allow a wide latitude in rebuttal. There is no question that the general character of the
testimony involved in the three assignments tended to meet a pertinent point in issue.
Rebuttal evidence, according to reliable authorities, need not completely and entirely
contradict the evidence of the defense, if it has a tendency to contradict or disprove it.
Mitchell v. State, 133 Ala. 65, 32 So. 132; People v. Emerson, 130 Cal. 562, 62 P. 1069;
State v. Yetzer, 97 Iowa, 423, 66 N.W. 737. We believe that the evidence in question meets
this broad requirement, and was properly admitted, within the discretion of the court.
15. We find no merit in assignment No. 5 to the effect that the verdict of the jury is
contrary to the evidence. The verdict, on the contrary, is supported by an abundance of
evidence. The testimony of Ross Moon, to mention only one of the witnesses, shows that,
when Capt. Gordon alighted to the sidewalk from his car, this witness had just stepped from
the door of Southworth's store, and that McNeil, the defendant, stepped up behind the
deceased, and with his left hand he took hold of the deceased's left arm and turned him
around, or that Gordon turned around; that thereupon the defendant struck Gordon, and
continued to strike him on the head and face until he fell, and after he fell, with a gun
which the defendant has described as a .44 or .45 caliber pistol.
this witness had just stepped from the door of Southworth's store, and that McNeil, the
defendant, stepped up behind the deceased, and with his left hand he took hold of the
deceased's left arm and turned him around, or that Gordon turned around; that thereupon the
defendant struck Gordon, and continued to strike him on the head and face until he fell, and
after he fell, with a gun which the defendant has described as a .44 or .45 caliber pistol. This
witness was about eight feet away from the scene of the trouble, and is corroborated by other
witnesses as to the actual striking of the deceased by the defendant, who, himself, admits that
he struck Gordon twice on the face with the weapon.
16. There is no evidence in the record showing that the violence of the defendant was
inflicted in necessary self-defense, other than the bare statement of the defendant himself that
Gordon pointed a gun at him, and that the defendant took the weapon from him and beat him
with it. The jury heard the defendant's story and rendered their verdict upon all the evidence.
It is a well-settled rule of law in this state, in criminal cases, that, when there is any
substantial evidence to support the verdict, the evidence will not be weighed on appeal. State
v. Boyle, 49 Nev. 386, 248 P. 48. We do not deem it necessary further to analyze the
transcript. There was not only substantial evidence to sustain the verdict, but we believe that
any other verdict could not have been reasonably explained. Neither do we find that the
verdict of the jury was contrary to law. Section 11266, Nevada Comp. Laws 1929, provides
that: No judgment shall be set aside, or new trial granted, in any case on the ground of
misdirection of the jury or the improper admission or rejection of evidence, or for error as to
any matter or pleading or procedure, unless in the opinion of the court to which application is
made, after an examination of the entire case, it shall appear that the error complained of has
resulted in a miscarriage of justice, or has actually prejudiced the defendant, in respect to a
substantial right.
After carefully examining the record before us, we are of the opinion that the verdict is
eminently just under the evidence, and that the defendant was not in any manner prejudiced in
respect to a substantial right.
For the reasons stated, the judgment and order denying motion for new trial must be
affirmed.
It is so ordered.
Ducker, J., being unable to participate because of illness, the Governor designated Hon.
Thomas F. Moran, Judge of the Second Judicial District Court, to act in his place and stead.
____________
53 Nev. 444, 444 (1931) State Ex Rel. Beach v. Court
STATE Ex Rel. BEACH v. FIFTH JUDICIAL DIS-
TRICT COURT, in and for Nye County, Et Al.
No. 2958
December 2, 1931. 5 P. (2d) 535.
Statute providing that mere filing of affidavit charging bias and/or prejudice shall disqualify judge
held not unconstitutional as depriving court of judicial power and vesting it in litigants (Stats. 1931, c.
153, p. 247, sec. 45; p. 248, secs. 45a, 45b).
2. Judges.
Provision, in statute providing for change of judge, that if the parties agree upon a judge then such
judge shall be selected held mandatory (Stats. 1931, c. 153, p. 248, sec. 45b).
3. Mandamus.
Refusal of district judge, disqualified by filing of affidavit charging prejudice, to follow mandate of
statute and transfer case to judge agreed upon by parties, rather than another judge, held ground for
peremptory writ to compel performance of act required by statute (Stats. 1931, c. 153, p. 248, sec. 45b).
4. Mandamus.
Where a specific act is required by law and no discretion given, a writ of mandamus may command
the doing of the very act itself.
Original proceeding in mandamus by the State, on the relation of Kay H. Beach, against
the Fifth Judicial District Court in and for Nye county, and Hon. J. Emmett Walsh, Judge of
said court. Writ granted.
W. Howard Gray and Wm. M. McKnight, for Petitioner:
The statute involved in this proceeding is clearly not inimical to any provision of our
constitution. State ex rel. Anaconda Copper Mining Co. v. Clancy, 30 Mont. 529, 77 P. 312;
State ex rel. Wulle v. Dirlam, 28 Ohio C.C. 69; U'Ren v. Bagley, 118 Ore. 77, 245 P. 1074;
46 A.L.R. 1173; Rea v. State, 3 Okla. Crim. Rep. 276, 105 P. 384; 139 Am. St. Rep. 954; Ex
Parte Ellis, 3 Okla. Crim. Rep. 220, 105 P. 184; Day v. Day, 12 Ida. 556, 86 P. 531.
Section 45b, which specifies what the disqualified judge shall do when there is no other
department of the court in his district, is mandatory and must be followed. Ex Parte Smith, 33
Nev. 466, 476, 480, 111 P. 930; Torreyson v. Board of Examiners, 7 Nev. 19, 22; State ex rel.
Donnelly v. Hamilton, 33 Nev. 418, 422, 111 P. 1026; Nye County v. Schmidt, 39 Nev. 456,
464, 157 P. 1073; Stephens v. Stephens, 17 Ariz. 306, 152 P. 506; Newman v. District Court,
32 Ida. 607, 186 P. 922; Summerlin v. State, 69 Tex. Cr. 275, 153 S.W. 890, 892; Kelly v.
Ferguson, 5 Okla. Cr. 316, 114 P. 631; State v. Patterson (N.D.), 190 N.W. 309; Bedingfield
v. First National Bank (Ga.), 61 S.E. 30; Conkling v. Crosby, 29 Ariz. 60, 239 P. 506, 509;
State v. District Court, 44 Mont. 72, 119 P. 174; Huhn v. Quinn, 21 Wyo. 51, 128 P. 514;
State v. District Court, 51 Mont. 305, 152 P. 745; State ex rel. Goodman v. District Court, 71
Wash. 700, 128 P. 913; Gamble v. District Court, 27 Nev. 233, 243, 74 P. 530; Graham v.
People, 111 Ill. 253; Borden v. Miles, 130 Kan. 808, 288 P. 563; 34 C.J. p. 1179, par. 3, n.
56; 33 C.J. p. 960, par. 80, n. 74, 75.
Mandamus is the proper remedy to compel a district judge, disqualified by the filing of an
affidavit of prejudice, to select the judge agreed upon by the parties to preside at the hearing
and trial of the action. State v. Superior Court, 160 Wash. 507, 180 P. 481; State v. Williams,
127 Wis. 236, 106 N.W. 286; Crook v. Newborg, 124 Ala. 279, 27 So. 432; Graham v.
People, supra; State v. Superior Court, 121 Wash. 611, 209 P. 1097; State v. Superior Court,
121 Wash.
State v. Superior Court, 121 Wash. 616, 209 P. 1099; Borden v. Miles, supra; Floyd v.
District Court, 36 Nev. 349, 125 P. 922; Roberts v. District Court, 43 Nev. 332; State ex rel.
Goodman v. District Court, supra; Newman v. District Court, supra; Gamble v. District
Court, 27 Nev. 233; State v. District Court, 40 Nev. 163; 38 C.J. p. 595-597, sec. 71, n. 56;
Mau v. Liddle, 15 Nev. 271; Mighels v. Eggers, 36 Nev. 364.
A.L. Haight and Harwood & Diskin, for Respondents:
Stats. of Nevada, 1931, c. 153, is unconstitutional and in violation of sec. 1 of art. III of the
constitution; also in violation of sec. 2 of art. VII, and in violation of art. VI, sec. 1. Pacific
Live Stock Co. v. Ellison, 46 Nev. 351; Walton v. Walton, (Colo.), 278 P. 780; Diehl v.
Crump, 179 P. 4; Ex parte Fairbank Co., 194 Fed. 978; Conn v. Chadwick, 17 Fla. 440;
Board of Commissioners v. State, 120 Ind. 282, 22 N.E. 255; White, Auditor v. State, ex rel.,
123 Ala. 577, 26 So. 343; Petition of Splain, 123 Pa. 527, 540, 16 Atl. 481; Kilbourn v.
Thompson, 103 U.S. 168, 26 L. Ed. 377; Mabry v. Baxter, 11 Heisk. (Tenn.) 689; Cooley's
Const. Lim. (5th ed.), p. 115, sec. 96
A determination of the existence of prejudice is the exercise of a judicial function. Berger
v. U.S., 255 U.S. 22, 65 L. Ed. 481; Table Mountain Gold & Silver Mining Co. v. Waller, 4
Nev. 218.
The legislature is powerless to deprive the judicial branch of the government of judicial
power, and the legislature may not wrongfully exercise such power itself. Thomas v.
Portland, 66 P. 439; Sanders v. Cabaniss, 43 Ala. 173; Mabry v. Baxter, supra; State ex rel.
Arick v. Hampton, 13 Nev. 439; Ex Parte Darling, 16 Nev. 98.
The provisions of section 45b to the effect that if the parties agree upon a judge, then such
judge shall be selected are directory and not mandatory. It will be observed that a deposit of
$25 is required when the affidavit is filed. This money is used for the payment of traveling
expenses of the judge.
of traveling expenses of the judge. Section 45b also provides that the change of judge shall
be to be most convenient judge. If the parties should agree upon a judge to try a case in Reno
and the transportation of such judge must be paid from Las Vegas, $25 would not be
sufficient to pay his traveling expenses. This section must, therefore, be read with the
provisions of the entire act in mind.
The supreme court of Connecticut, in the case of Gallup v. Smith, 12 L.R.A. 353, held that
a provision of a statute directing the clerk to select a judge and call him in was directory and
not mandatory.
It appears from the allegations of the petition that Judge Walsh has already acted and
designated Judge Guild as the presiding judge. It is elementary in this state that while
mandamus lies to compel an inferior tribunal to exercise its judgment and render a decision,
and where it refuses wrongfully to act, mandamus does not lie to review or correct its
conclusion after it has acted. Cavanaugh v. Wright, 2 Nev. 166; State v. Wright, 4 Nev. 119;
Floral Springs M. Co. v. Rives, 14 Nev. 431.
OPINION
Per Curiam:
On March 25, 1931, our legislature approved an act entitled An Act to amend an act
entitled An act concerning the courts of justice of this state and judicial officers,' approved
January 26, 1865, as amended, by amending section 45 thereof and by adding two additional
sections to said act, to be known as sections 45a and 45b. Stats. 1931, p. 247, c. 153.
The amended portion of section 45 reads as follows:
A judge shall not act as such in an action or proceeding: * * *
Fifth, if either party to a civil action in the district court or his or its attorney or agent
shall file an affidavit alleging that the affiant has cause to believe and does believe that on
account of the bias or prejudice or interest of said judge he cannot obtain a fair and
impartial trial, the said judge shall at once transfer the action to some other department
of the court, if there be more than one department of said court in said district, or request
the judge of some other district court of some other district to preside at the hearing and
trial of such action; provided, the party filing such affidavit for change of judge shall at
time of filing same pay to the clerk of the court in which such affidavit is filed the sum of
twenty-five dollars, which sum shall be by the clerk transmitted to the state treasurer,
who shall place the same to the credit of the district judges' traveling expense fund.
believe that on account of the bias or prejudice or interest of said judge he cannot obtain a fair
and impartial trial, the said judge shall at once transfer the action to some other department of
the court, if there be more than one department of said court in said district, or request the
judge of some other district court of some other district to preside at the hearing and trial of
such action; provided, the party filing such affidavit for change of judge shall at time of filing
same pay to the clerk of the court in which such affidavit is filed the sum of twenty-five
dollars, which sum shall be by the clerk transmitted to the state treasurer, who shall place the
same to the credit of the district judges' traveling expense fund. * * *
Section 2 provides that:
An act entitled An act concerning the courts of justice of this state and judicial officers,'
approved January 26, 1865, as amended, is hereby amended by adding an additional section,
to be known as section 45a, which section shall read as follows:
Section 45a. No judge or court shall punish for contempt anyone making, filing or
presenting such affidavit or motion founded thereon.
Section 3 provides that:
An act entitled An act concerning the courts of justice of this state and judicial officers,'
approved January 26, 1865, as amended, is hereby amended by adding an additional section
to be known as section 45b, which section shall read as follows:
Section 45b. Not more than one change of judge may be granted in any action, but each
party shall be heard to urge his objections to any judge in the first instance, and the change of
judge shall be to the most convenient judge to which the objections of the parties do not apply
or are least applicable. If the parties agree upon a judge then such judge shall be selected.
(The italics are ours.)
This the the first case to arise in this court under the statute. The case is in mandamus, and
is to be regarded as one to determine the validity of the above-quoted provisions of the
statute and to settle the practice for this and similar cases.
as one to determine the validity of the above-quoted provisions of the statute and to settle the
practice for this and similar cases.
The facts, omitting dates and details, are, in brief, as follows: Hon. J. Emmett Walsh is
judge of the fifth judicial district court of this state, Hon. H.W. Edwards is judge of the
seventh judicial district, and Hon. Clark J. Guild is judge of the first judicial district.
H.W. Sawyer, as administrator of the estate of Silverino Penelas, deceased, instituted an
action in said fifth judicial district court in and for Nye County against Kay H. Beach and Ole
Peterson, to have plaintiff's title quieted to certain unpatented lode mining claims and for
injunctive relief against the defendants. The defendants appeared and filed a demurrer to the
complaint. Thereafter, on motion of the plaintiff and after a hearing, the court made an order
restraining the defendants from doing any of the acts and things complained of in the
complaint pendente lite. Thereupon the defendant Kay H. Beach made and caused to be filed
in said cause an affidavit stating that he had cause to believe and did believe that on account
of bias and/or prejudice of the Hon. J. Emmett Walsh, judge of said fifth judicial district
court, he could not obtain a fair and impartial trial of the action. The parties, through their
attorneys of record, and in accordance with the authorization of the statute, orally agreed that
the Hon. H.W. Edwards be selected as the judge to preside at the hearing and trial of the
cause. Upon the presentation of the affidavit and said agreement to the Hon. J. Emmett
Walsh, as judge of said fifth judicial district court, an order was entered assigning the case for
trial to the Hon. Clark J. Guild, judge of the first judicial district. Counsel for the defendants
urged objections to the assignment of the case of Judge Guild, and counsel for both parties
joined in the request that the order of assignment be modified by substituting H. W. Edwards
as the judge to preside at the hearing and trial of the action. This Judge Walsh declined and
refused to do.
Thereafter Kay H. Beach petitioned this court for a writ of mandamus to issue against
Judge Walsh commanding him to vacate his order assigning the case to Judge Guild and to
compel him to assign the same to Judge Edwards for trial. Upon consideration of the petition,
this court issued an order directed to Judge Walsh commanding him to vacate his order of
assignment, or show cause before this court why he had not done so. In response to the order,
Judge Walsh demurred to the relator's petition and filed an answer, which was traversed by
the petitioner.
1, 2. The demurrer raises the question of the constitutionality of the statute and the further
question of whether mandamus is the proper remedy. As to the former question, the
respondent judge contends that a law which provides that the mere filing of an affidavit
charging bias and/or prejudice is sufficient to disqualify a judge without a hearing or
determination of whether the affidavit is true or false is unconstitutional, as depriving the
court of judicial power and vesting the same in the litigants to that extent.
An examination shows that similar statutes exist in a number of states covering the subject
matter of that under consideration. The statutes vary in character and in the requirements for
establishing the bias or prejudice of the judge. There is no ambiguity in the declaration of our
statute and nothing upon which construction can be exerted in so far as it provides that if
either party to a civil action in the district court or his or its attorney or agent shall file an
affidavit alleging that the affiant has cause to believe and does believe that on account of the
bias or prejudice or interest of said judge he cannot obtain a fair and impartial trial, the said
judge shall at once transfer the action to some other department of the court, if there be more
than one department of said court in said district, or request the judge of some other district
court to preside at the hearing and trial of such action. The statute is also clear in its
permission, and is mandatory in its direction that if the parties agree upon a judge then such
judge shall be selected."
then such judge shall be selected. Similar statutes exist in the states of Arizona, Montana,
Oregon, and Ohio, whose appellate courts have upheld their constitutionality. Conkling v.
Crosby, 29 Ariz. 60, 239 P. 506; Stephens v. Stephens, 17 Ariz. 306, 152 P. 164; State ex rel.
Anaconda C.M. Co. v. Clancy, Judge, 30 Mont. 529, 77 P. 312; State ex rel. Durand v.
Second Judicial District Court, 30 Mont. 547, 77 P. 318; U'Ren v. Bagley, Judge, 118 Or. 77,
245 P. 1074, 46 A.L.R. 1173; State ex rel. Wulle v. Dirlam, 28 Ohio Cir. Ct. R. 69. Similar
statutes have been upheld by the appellate courts of the states of Washington, Minnesota,
South Dakota, Wyoming, Indiana, and Missouri. See cases cited in U'Ren v. Bagley, Judge,
supra. An examination shows that, upon a certificate from the United States circuit court of
appeals for the seventh circuit presenting questions to the Supreme Court of the United States
as to the sufficiency and effect of an affidavit of personal bias or prejudice of a federal district
judge in conformity to section 21, U.S. Judicial Code (28 USCA, sec. 25), the supreme court
answered that the affidavit of prejudice was sufficient to invoke the operation of the act, and,
in substance, answered that the statute was not a curtailment of judicial power. Berger v.
U.S., 255 U.S. 22, 41 S. Ct. 230, 65 L.Ed. 481, followed in Saunders v. Piggly Wiggly Corp.
(D.C.) 1 F. (2d) 582.
The popular criticism of the legislation is that it destroys the elevated rank of district
judges in the estimation of the people; that the law is open to shameful abuses by
unscrupulous attorneys and their clients; that the law is but another clog in the regular and
orderly administration of justice. These considerations are matters which may be more
properly addressed to the legislature. We are not justified in declaring a statute
unconstitutional merely because of its abuses. U'Ren v. Bagley, Judge, supra. After careful
consideration we are of the opinion that the legislature did not go beyond its constitutional
powers in enacting the statute, and that it does not invade the province of a coordinate
branch of the government.
province of a coordinate branch of the government. It follows that the demurrer to the
relator's petition must be overruled.
3, 4. The next question to arise is, Is mandamus the proper remedy? It will be observed
that the respondent judge, in his selection of Judge Guild to preside at the hearing and trial of
the action in question, recognized that it became and was his imperative duty under the statute
to request the judge of some other district court to preside at the hearing and trial of the
action. But for the provision contained in the added section 45b of the statute that if the
parties agree upon a judge then such judge shall be selected, there would be force to the
contention that the statute leaves it discretionary with the disqualified judge to select the most
convenient judge of some other district to preside at the hearing and trial of the case. The
statute is explicit and mandatory in its direction that, if the parties agree upon the judge, then
such judge shall be selected to hear and determine the cause. No possible injury could result
from the approval by the disqualified judge of the judge agreeable to the parties to try the
case. In view of the imperative language of the provision, we conclude that Judge Walsh's
refusal to follow its mandate affords grounds for a peremptory writ to compel the respondent
judge to do and perform the act required by the statute itself. In other words, under a statute
such as the one under review, a judge who is disqualified to hear and determine the cause and
who refuses to select a qualified judge agreed upon by the parties to try the case, may be
compelled by mandamus to perform the required act. Where a specific act is required by law
and no discretion given, a writ of mandamus may command the doing of the very act itself.
State v. Curler, 4 Nev. 445; Humboldt County v. Churchill County Com'rs., 6 Nev. 30. We
are unable to agree with counsel's contention that the clause contained in the added section
45b, if the parties agree upon a judge then such judge shall be selected to try the case, is
merely directory and not mandatory.
the case, is merely directory and not mandatory. This court can only deal with the statute as it
is expressed, and enforce it according to its expressions. Therefore it is adjudged and ordered
that the respondent judge, without delay, select the Hon. H.W. Edwards to preside at the
hearing and trial of the action pending in the respondent court, wherein H.W. Sawyer,
administrator of the estate of Silverino Penelas, deceased, is plaintiff, and Kay H. Beach and
Ole Peterson are defendants.
____________
53 Nev. 453, 453 (1931) Butzbach v. Siri Et Al.
BUTZBACH v. SIRI Et Al.
No. 2870
December 5, 1931. 5 P. (2d) 533.
1. Trial.
By presenting their case after motion for nonsuit was denied, defendants waived right to insist upon
appeal that the nonsuit should have been granted.
2. Evidence.
Evidence held to support finding that alleged converter of stock certificate took stock subscriber's
note in payment of stock and put the money into corporation business, subscriber thereby becoming
owner of stock and debtor of alleged converter.
Findings and judgment of trial court will not be disturbed where there is substantial conflict in
evidence.
Execution sale of testator's stock under judgment obtained in action pending against testator at time of
his death held void.
Section 9715, N.C.L., provides that if an action be pending against a deceased
person at the time of his death, no recovery shall be had therein unless proof is made
of the filing of a claim in the matter of the settlement of his estate; and section 9717
provides that in case a judgment is rendered in such a suit a certified copy of the
judgment shall be filed in the estate proceedings, and that no execution shall issue on
said judgment.
5. Judgment.
Ruling that execution sale under judgment obtained in action pending against deceased at his death
was void did not sustain collateral attack on judgment, there being no attack on the
judgment, but on the sale.
sustain collateral attack on judgment, there being no attack on the judgment, but on the sale.
Even if giving time to reply to supplemental answer pleading execution sale as defense were error, it was
without prejudice where alleged sale was void.
7. Witnesses.
Sustaining objection to cross-examination, question relative to matter not touched upon on direct
examination held not error.
8. Witnesses.
Trial court has wide discretion as to refusing cross-examination on matters not touched upon on direct
examination, and unless discretion is abused its rulings must stand.
Action by Marie Butzbach, as executrix of the last will of Frederick Butzbach, deceased,
against George L. Siri and another. Judgment for plaintiff, and defendants appeal. Affirmed.
W.M. Kearney and Sidney W. Robinson, for Appellant:
There is no proof to support a finding that the Sanitary French Bakery, Inc., ever delivered
certificate No. 3 to Mr. Butzbach, nor is there any proof that Mr. Butzbach every paid the
company the par value thereof. The following cases all hold that one is not entitled to a
certificate of stock until it is paid for: Robson v. Finniman, 85 Alt. 356; Houston, etc. v.
Bremond, 18 S.W. 448; Grone v. Econ L. Ins. Co., 80 Atl. 809; Lebrecht v. Nellist, 171 S.W.
11; York v. Passaic Rolling Mill, 30 Fed. 471; Wolcott v. Walstein, 86 N.J. Eq. 63; Zap v.
Spreckles, 204 S.W 786.
In entering the judgment against defendants and awarding the stock certificate to plaintiff
the lower court has misconstrued the plain principles of law. This is so because any right, title
and interest which Frederick Butzbach had in and to said stock certificate had already been
determined and finally adjudicated in a prior action, wherein defendant Siri was plaintiff and
Mr.
Mr. Butzbach, deceased, husband of plaintiff herein, was defendant. Mencke v. Rosenberg,
51 Atl. 767.
In their contention that after the death of any party to an action at law no judgment can be
entered against his executor or administrator except only a judgment ordering the judgment
award to be allowed as a claim against the estate and paid in the usual course of
administration, counsel have entirely overlooked Stats. 1920-1921, p. 2, and misconstrued the
purpose of secs. 5974 and 5975, Rev. Laws, relative to probate proceedings. It is our
contention that section 5974 is confined solely to the purpose of preventing after-acquired
liens from being placed against the property of the estate, but that liens of every nature and
description existing prior to decedent's death continue to be fully operative and enforceable
by the usual and customary methods of court procedure. White v. Ladd, 56 P. 517; Frellson v.
Green, 19 Ark. 376; White v. Heavener, 7 W. Va. 324.
Section 5975, Rev. Laws, provides that if an execution has been actually levied upon any
property of the deceased the same may be sold for the satisfaction thereof.
All liens survive death, and whether it is a mortgage lien, pledge lien, or an attachment
lien, the lien holder may proceed to judgment on his lien and have an execution sale thereon
for the lien claim. Mosely v. Southern Manuf'g. Co., 46 P. 508. Therefore, the present
judgment appealed from constitutes a collateral attack upon a prior valid judicial proceeding,
and as such is subject to an unqualified reversal on this appeal.
The trial court, without any showing whatever indicating why the reply to the
supplemental answer had not been filed in time, permitted the same to be filed contrary to the
statute requiring notice to file a pleading of that character.
The lower court clearly erred in refusing to permit the defendants to propound on
cross-examination of plaintiff a question impeaching in its nature and sought to contradict her
testimony given on direct examination.
The court erred in refusing to grant defendant's motion for a nonsuit.
G. Gunzendorfer, Wm. McKnight and Ayres, Gardiner & Pike, for Respondents:
Execution cannot be issued in personal action where judgment was secured after death of
original defendant. Secs. 5972, 5974 and 5975, Rev. Laws.
Not only does the death of the defendant and the substitution of his executrix deprive the
court of any power whatsoever to render a judgment in personam or to issue an execution, but
it also immediately, and ipso facto, dissolves the attachment. Myers v. Mott, 29 Cal. 359, 89
Am. Dec. 49; Bank of Stockton v. Howland, 42 Cal. 129; Berryman v. Stern, 14 Nev. 418.
Our contention in the instant case is exactly what was held in Myers v. Mott, supra, that upon
the death of Butzbach the writ of attachment was dissolved and the attached property passed
into the hands of his executrix to be administered on in due course of administration, and that
no execution could be issued thereon. It seems to us that the two California cases, under
statutes identical with ours, are controlling upon this court.
The execution was void and could be attacked collaterally. 23 C.J. p. 283, sec. 148, n. 49,
50; Smith v. Reed, 52 Cal. 348.
As all the proceedings taken under the alleged execution were void, it was not at all
necessary for plaintiff to reply to the so-called supplemental answer, so the action of the court
in giving time to reply to it is unimpeachable.
The trial court did not err in sustaining the objections to the questions propounded during
the cross-examination of Mrs. Butzbach, as the same were not impeaching in their nature and
not cross-examination of anything previously testified to by the plaintiff.
The motion for a nonsuit was properly denied.
Counsel's assertion that the corporation had never been paid for the stock is answered by
Siri's own testimony. Siri testified that he advanced moneys from time to time to the
corporation to run the business, and took Butzbach's note for the balance payable for his
share of the advances.
time to time to the corporation to run the business, and took Butzbach's note for the balance
payable for his share of the advances. The note was made to Siri personally and represented
Butzbach's contribution to the capital stock of the corporation.
Counsel for defendants lose sight of the fact that there is a clear and definite conflict in the
evidence, and that under the rule of this court cannot disturb the judgment of the trial court.
OPINION
This is an action to recover possession of a certificate or certificates for 350 shares of
stock in Sanitary French Bakery, Inc.
The complaint alleges that Frederick Butzbach died testate on January 25, 1925, and that
Marie Butzbach is the qualified and acting executrix of his estate. It further alleges that at the
time of his death the deceased was the owner of 350 shares of stock in said company,
evidenced by one or more certificates of stock; that the defendant Siri unlawfully obtained
possession of said certificate or certificates and still unlawfully retains the same; that the
defendant corporation has at the instance of defendant Siri wrongfully and unlawfully
canceled in and upon its books and records the certificate or certificates evidencing said 350
shares of stock issued to the deceased, and has issued in lieu thereof to said Siri, or to his
representative, a certificate of stock therefor, and wrongfully; and that defendant corporation
had actual knowledge that said certificate or certificates for said 350 shares of stock were
owned by the deceased. It is further alleged that large sums of money have accrued as
earnings upon said stock, which have been wrongfully paid to defendant Siri or others.
Defendants by their answer admit that a certificate of stock in defendant company was
made out to Frederick Butzbach for 350 shares of stock in said company, but denies that the
same was every fully issued or delivered.
but denies that the same was every fully issued or delivered.
For an affirmative defense to the cause of action pleaded in the complaint the defendants
allege the corporate existence of defendant company; that said Frederick Butzbach subscribed
to stock therein to be delivered upon the payment of the subscription price thereof; that the
said Butzbach paid none of his subscription for said stock; that Frederick Butzbach, the
president of said company, having obtained possession of the stock books of the company,
wrote out certain certificates of stock, among which was one to himself for 350 shares; that
the secretary of the company did not affix her signature thereto until a later date, nor did she
at any time affix the seal of the company thereto or deliver said certificate; that the secretary
of the company delivered said certificate to defendant Siri to be held by him as collateral
security for money due him from said Butzbach, deceased, as well as for money due the
defendant company from said deceased, covering the subscription price of said stock and for
money otherwise due the company; that no part of said moneys due from said Butzbach has
been paid.
The defendants further plead a judgment in favor of G.L. Siri and against Marie Butzbach
as executrix, in the sum of $3,786.56, that execution issued thereupon, and that in due course
the sheriff sold all the right, title, and interest of the said Marie Butzbach, as executrix, in and
to said 350 shares of stock, to one M.T. Doyle.
Plaintiff filed a reply denying: (1) The allegation of the answer to the effect that the
certificate for the 350 shares of stock was not delivered to Butzbach, deceased; (2) that the
certificate of stock is held by G.L. Siri for any purpose alleged in the answer; and (3) every
other allegation of new matter inconsistent with Butzbach's ownership of said stock.
1. Upon the conclusion of plaintiff's case in chief, counsel for defendants made a motion
for a nonsuit. This having been denied, defendants presented their case. By presenting their
case, defendants waived the right to now insist that the nonsuit should have been granted.
right to now insist that the nonsuit should have been granted. Franklin v. Burris, 35 Colo.
512, 84 P. 809; Parker v. Wash. Tug & B. Co., 85 Wash. 575, 148 P. 896; Busack v. Johnson,
129 Minn. 364, 152 N.W. 757; Yelloway v. Garretson (Colo.), 3 P. (2d) 292; 7 Stand. Ency.
Proc. 686.
There are two primary questions in this case: (1) Did Butzbach ever become the owner of
the 350 shares of stock for which he subscribed? and (2) If he did become such owner, was
the stock pledged by him to Siri to secure the payment of an indebtedness?
2. The trial court held that Butzbach paid for the stock and that he did not pledge it to Siri.
The defendant Siri occupies a very peculiar position in this litigation, and antagonistic one.
So antagonistic that his entire case is weakened very materially as to both of his main
contentions.
He first swears, in his complaint and on the witness stand, that Butzbach never became the
owner of the stock nor had it in his possession, and next swears that Butzbach pledged the
stock to him to secure an indebtedness. Which of his contentions is true, if either? Certainly
both cannot be true, and it may be that neither are.
As to the first proposition, it seems that the finding of the court is established by the
evidence of Siri himself. He testified in part as follows, in response to inquiries by his
attorney:
Q. In other words, you advanced him (Butzbach) the money on his note to take up his
subscription for corporate stock under his original subscription, is that the whole of it? A.
Yes, sir. * * *
Q. Now, Mr. Siri, did you advance the money to the bakery or put the money in the
business, or did you give it to Mr. Butzbach? A. Well, I put it in the business.
Q. You did not advance the money directly to Mr. Butzbach? A. No, sir.
The Court: I guess the Court will have to determine that. He did take Butzbach's note so
he must have advanced it for him as an individual loan.
Mr. Kearney: That is true.
The Court: That bought the stock for Butzbach. No question about that.
Mr. Kearney: But he held the stock until it was paid for. That is the point.
The Court: But he owes this man this note. It is not paid.
Mr. Ayres: That is my contention.
Mr. Kearney: We have never denied that.
The Court: Well, what are you fussing about then?
Mr. Kearney: We are fussing that that stock can not be taken from us until that note is
paid for because that stock was held by Mr. Siri until it was paid for. * * *
Q. That is you gave him a credit of a thousand dollars? A. Yes.
Q. And then took his note for $2500.00? A. Yes.
Q. Which made a total of $3500.00? A. Yes.
Q. The payment for the original subscription to stock, which was 350 shares, is that the
way that $3500.00 was taken up? A. yes.
Q. I mean that amount of stock was paid for? A. Yes.
Thus is appears from the testimony of Siri himself that he took Butzbach's note in payment
of the stock and paid the money to the company or put it into the business. In this manner the
stock became the property of Butzbach, and he became indebted to Siri. The trial court so
found, and the evidence supports the finding.
We now come to the question of whether or not Siri held the stock as collateral to secure
Butzbach's note. The trial court held that he did not.
The evidence on the point under consideration is conflicting. There was persuasive
evidence in favor of defendant's theory, but the trial court saw and heard the witnesses and
observed their demeanor on the witness stand.
In the sworn answer of the defendants, as we have pointed out, Siri contended that no
stock had been issued and delivered to the deceased.
and delivered to the deceased. In the next breath, in his affirmative answer, he averred that the
secretary of the company delivered said certificate to him as security. Furthermore, in an
affidavit in another suit he swore that he had no security for the note mentioned.
In view of this situation, we can imagine no theory upon which it can be seriously urged
that we should overthrow the findings and judgment of the trial court.
3. It is settled law in this state that, if there is a substantial conflict in the evidence, the
findings and judgment of the trial court will not be disturbed. Dixon v. Miller, 43 Nev. 280,
184 P. 926; Moore v. De Bernardi, 47 Nev. 33, 213 P. 1041, 220 P. 544.
4. But it is contended that the interest of deceased in the stock was sold under the
judgment mentioned; hence the decree ordering the delivery of the stock to the plaintiff was
erroneous and must be reversed.
It is provided in section 9715, Nev. Comp. Laws 1929, that, if an action be pending against
a deceased person at the time of his death, no recovery shall be had therein unless proof is
made of the filing of a claim in the matter of the settlement of his estate; and section 9717,
Nev. Comp. Laws, 1929, provides that in case a judgement is rendered in such a suit a
certified copy of the judgment shall be filed in the estate proceedings, and that no execution
shall issue on said judgment.
Under this section it clearly follows that the sale was unlawful, without force and effect,
and did not cut off the interest of the estate of deceased in the stock in question.
5. Counsel for appellant contends that the ruling of the trial court amounted to sustaining
a collateral attack on a judgment, which could not be done in the circumstances. We do not so
view it. There was no attack on the judgment, but on the sale.
Counsel for appellant devotes much time and many authorities to the proposition that the
lien of a pledge is not waived by a suit on the original obligation, as well as on other points of
law.
As we read the pleadings, the evidence and findings of the court, the question of a
waiver of a lien is not involved in the case.
of the court, the question of a waiver of a lien is not involved in the case. It was the theory of
the plaintiff that there had been no pledge, and the court so found; hence the question of
waiver is not in the case.
6. Counsel for appellant contends that the court erred in giving time to reply to the
supplemental answer. If the court did err, which we do not decide, it was without prejudice,
for the reason that the sale alleged therein was void, as pointed out above.
7, 8. We think there is no merit in the contention that the court erred in sustaining an
objection to a question asked Marie Butzbach on cross-examination relative to a note alleged
to have been shown Siri by her. This matter was not touched upon on the direct examination,
and was not cross-examination. The court has a wide discretion in such matters, and, unless it
abused its discretion, which we cannot say that it did, its ruling must stand.
We find no prejudicial error in the record. The judgment is affirmed.
____________
53 Nev. 463, 463 (1931) In Re McCabe
In Re McCABE
No. 2964
December 7, 1931. 5 P. (2d) 538.
Moneys ordered to be paid as alimony do not constitute a debt within meaning of constitutional
inhibition against imprisonment for debt.
2. Habeas Corpus.
On habeas corpus proceeding by petitioner imprisoned for contempt for failure to pay alimony,
supreme court is precluded from reviewing evidence as to ability to pay by finding of lower court in that
regard.
Original proceeding on application of Harry E. McCabe for a writ of habeas corpus.
Proceeding dismissed.
Frame & Raffetto, for Petitioner.
Melvin E. Jepson, District Attorney; A.P. Johnson, Deputy District Attorney; and Leon
Shore, for Respondent.
OPINION
This is an original proceeding in habeas corpus.
It appears from the return that the petitioner was, on November 4, 1931, adjudged in
contempt of court for failure to pay alimony and money for the support of his two children of
the ages of two and four years, although such failure was not due to his financial inability,
as found by the trial court.
It is the contention of the petitioner that moneys ordered to be paid constitute a debt, and
that under both the federal and state constitutions no one can be imprisoned for the
nonpayment of a debt.
It is further contended that the evidence taken before the lower court showed that
petitioner was without means with which to comply with the terms of the decree.
53 Nev. 463, 464 (1931) In Re McCabe
1. The first contention is without foundation. Ex Parte Phillips, 43 Nev. 368, 187 P. 311.
2. As to the other contention, we are precluded by the finding of the lower court.
In Ex Parte Winston, 9 Nev. 71, a habeas corpus proceeding, the court said:
Chancellor Kent says that no inquiry is to be made into the legality of any process,
judgment or decree * * * where the party is detained under the final decree or judgment of a
competent court.' In Commonwealth v. Lecky, Gibson, C.J., said The habeas corpus is
undoubtedly an immediate remedy for every illegal imprisonment. But no imprisonment is
illegal where the process is a justification of the officer; and process, whether by writ or
warrant, is legal wherever it is not defective in the frame of it, and has issued in the ordinary
course of justice from a court or magistrate having jurisdiction of the subject matter.' 1 Watts
[Pa.], 67 [26 Am. Dec. 37], and authorities there cited.
A habeas corpus is not a writ of error. It cannot be used to authorize the exercise of
appellate jurisdiction. On a habeas corpus the judgment of an inferior court cannot be
disregarded. We can only look at the record to see whether a judgment exists, and have no
power to say whether it is right or wrong. It is conclusively presumed to be right until
reversed; and when the imprisonment is under process, valid on its face, it will be deemed
prima facie legal, and if the petitioner fails to show a want of jurisdiction in the magistrate or
court whence it emanated, his body must be remanded to custody.
In Phillips v. Welch, 12 Nev. 158, the court said:
Petitioner was next brought before the chief justice upon a writ of habeas corpus, where a
similar argument was again advanced, and the petitioner was remanded into custody upon the
familiar principle, almost universally recognized, that when a court commits a party for a
contempt its adjudication is a conviction, and its commitment, in consequence, is execution;
and no court can discharge on habeas corpus a person that is in execution by the judgment
of any other court having jurisdiction of the subject matter of the contempt.
53 Nev. 463, 465 (1931) In Re McCabe
discharge on habeas corpus a person that is in execution by the judgment of any other court
having jurisdiction of the subject matter of the contempt.
This principle is acknowledged by counsel for petitioner to be correct, and is certainly too
well settled to require a citation of the authorities. Some of the cases are referred to in Ex
Parte Winston, 9 Nev. 71.
In Ex Parte Cottrell, 59 Cal. 420, a similar proceeding to the instant one, the court observed:
Upon the same principle we can not discharge the petitioner, on the ground that he
testified to his inability to comply with the order he is charged with having disobeyed. It he
could not obey it, he should not be punished for not obeying it. But the question whether it
was in his power to obey it was one of fact, which the Court making the order had to
determine, and we are not aware of any law which makes the statement of a party under oath
that he is unable to comply with such an order absolutely conclusive. The Court may,
nevertheless, have good and sufficient reasons for disbelieving his statement. In this case we
could not determine that question without reviewing all the evidence introduced upon the
hearing before the Superior Court, and that we are not authorized to do in this proceeding. * *
*
But the writ of habeas corpus was not framed to re-try issues of fact, or to review the
proceedings of a legal trial.
A long line of authorities are cited to support the rule stated in Re Nevitt, 117 F. 448, 54
C.C.A. 622.
To the same effect is Ex parte Lennon, 166 U.S. 548, 17 S. Ct. 658, 41 L. Ed. 1110; 29
C.J. 96.
It is ordered that these proceedings be dismissed, and that the petitioner be remanded to
the custody of the sheriff of Washoe County.
____________
53 Nev. 466, 466 (1931) Gray Et Al. v. Coykendall Et Al.
GRAY Et Al. v. COYKENDALL Et Al.
No. 2930
December 28, 1931. 6 P. (2d) 442.
1. Judgment.
Court erred in awarding interest in mining claim to plaintiffs in quiet title action, on theory of
fiduciary relationship which was not pleaded.
2. Quieting Title.
No fiduciary relationship having been alleged in complaint to quiet title, it was error for the court,
over defendant's objections to admit in evidence correspondence for the purpose of proving such
relationship.
3. Pleading.
Permitting plaintiffs in action to quiet title to mining claims to file second amended complaint
claiming different area than previous complaints held error, where there was no substantial evidence to
show that it described the ground actually located by plaintiffs.
4. Mines and Minerals.
Monuments govern, rather than location certificate, where the monuments are found upon the ground
or their position or location can be determined with certainty.
Where course and distances are not with certainty defined by monuments or stakes, the calls in the
location notice must govern and control.
Inaccuracies or mistakes in a mining location will not invalidate the location, but monuments
originally erected on the ground control the courses and distances.
But this applies only where the monuments or stakes can be clearly ascertained, otherwise the
description in the location notice controls.
7. Evidence.
In action to quiet title to mining claims, permitting plaintiffs to introduce in evidence a map not
tending to show that claim was located as described in second amended complaint held error.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Action by H.G. Coykendall and others against Donly Gray and others. From judgment for
plaintiffs, and from an order denying defendant's motion for a new trial, defendants appeal.
Reversed and remanded.
See, also, 53 Nev. 113. Wayne T.
Wayne T. Wilson and Emerson J. Wilson, for Appellants:
There is no allegation in the complaint, or other pleadings, of partnership, fraud,
trusteeship or other fiduciary relations between plaintiffs and defendants, and no testimony or
evidence sufficient to support a finding of fact that the plaintiffs were entitled to a one-fourth
interest in the Gray and Mandery No. 3 claim.
The exhibits numbered from eight to twenty were offered in evidence in an attempt to
prove a fiduciary relation between one only of the plaintiffs and one only of the defendants.
As evidence they were clearly incompetent, irrelevant and immaterial and an attempt to prove
something that was not an issue in the case.
The lower court erred in permitting plaintiffs to file their second amended complaint at the
conclusion of the trial, as there was no variance between the allegations of the first amended
complaint and the evidence offered by the plaintiffs that warranted an amendment; it was
simply a failure of proof.
The well-settled rule is that where the monuments are found upon the ground or their
position or location can be determined with certainty, the monuments govern, rather than the
location certificate; but where the course and distances are not with certainty defined by
monuments or stakes the calls in the location notice must govern and control. Treadwell v.
Marrs, 83 P. 355.
The recorded notice of location is the best evidence of the exact location of the Coykendall
No. 3 claim; it is a public record of which the public must take notice, and is evidence of the
facts therein stated. Rev. Laws 1912, sec. 5409.
The plaintiffs must prove the location of their stakes and monuments as alleged or the
recorded certificate will prevail. Lindley on Mines (2d ed.), sec. 375; Thallman v. Thomas,
102 Fed. 935.
The Taylor survey was not based upon any testimony or evidence. A survey and map made
by a surveyor who acted only upon information in relation to the boundaries therein
contained is not evidence to prove the boundaries.
acted only upon information in relation to the boundaries therein contained is not evidence to
prove the boundaries. Cartright v. Cartright, 74 S.E. 655, Ann. Cas. 1914a, p. 578; Treadwell
v. Marrs, supra; Flynn Group v. Murphy, 109 P. 851; Tiggeman v. Mrzlak, 105 P. 77;
Swanson v. Koeninger, 137 P. 891.
Harwood & Diskin, for Respondents:
Counsel for appellants overlook entirely the testimony of Coykendall and his witnesses
wherein the original location monument was specifically placed, and this testimony has not
been contradicted and stands as one of the admitted facts in the case. It will be seen,
therefore, that a variance existed between the allegations of the amended complaint and the
testimony before the court at the conclusion of plaintiff's case. If the second amended
complaint had not been filed the testimony would have described a placer claim not located in
the same position as the claim described in the complaint. We submit that the lower court
committed no error in permitting the second amended complaint to be filed.
The so-called Taylor map was not offered or received in evidence to establish title. It was
offered after witnesses had testified to the location of the respective corners of the claim and
the position of the location monument. It is not urged that the actual field notes made by
Taylor were incorrect or that the map was incorrect. The map, therefore, was admissible to
illustrate the testimony of the witnesses and to give the court a clear conception of existing
conditions. It is elementary that where the proper foundation has been laid, to wit, that the
map or diagram correctly sets forth the matters presented therein, that the map is then
admissible in evidence. Reinke v. Chicago Sanitary District, 103 N.E. 236; 22 C.J., sec. 1114,
p. 910.
We submit that the testimony clearly establishes that the corners of the Coykendall No. 3
claim were marked by corner posts consisting of railroad ties. Appellants not being strangers
to the extent and limit of the boundaries of this claim, the same rule that is applicable to a
stranger may not be applied to them in determining the sufficiency or insufficiency of the
acts for which they now question its validity.
a stranger may not be applied to them in determining the sufficiency or insufficiency of the
acts for which they now question its validity. Heilman v. Loughrin, 188 P. 370; Bismark
Mountain Gold Mining Co. v. North Sunbeam Gold Co., 95 P. 14; 40 C.J., par. 199, p. 795,
n. 73; Yosemite Gold Mining Co. v. Emerson, 208 U.S. 25; Stock v. Plunkett, 183 P. 657.
The lower court gave to respondents half of Mandery's interest in the Gray and Mandery
claim No. 3 because of the fact that Mandery obtained all his information about this ground
from Coykendall and was in duty bound to perform the discovery work on this claim, which
he permitted to lapse and then located it. It is not a question of partnership; it is a question of
violating a trust and confidence that was reposed. The court should have decreed respondents
to have the full title to the claim. Iroquois Iron Co. v. Kruse, 241 Fed. 443; Lindley on Mines,
vol. II (3d ed.), sec. 407, p. 950.
The allegations of appellants in their answer setting up an affirmative title to the Gray and
Mandery claim No. 3 do not constitute new matter which required the respondents to file a
reply thereto. Having made their allegations of title, respondents would be authorized to
dispute the title alleged by appellants, by any testimony, even if such testimony involved the
commission of a fraud or established a violation of fiduciary relationship. Leggatt v. Stewart,
2 P. 320; Word v. Moore, 214 P. 79; Baker v. Baker, 100 P. 892; Jose Realty Co. v.
Pavlicevich, 130 P. 15. We submit, therefore, that under the court's decision and under the
pleadings in the case it was permissible for respondents to tender and have received in
evidence plaintiff's exhibits numbered eight to twenty, inclusive.
OPINION
The two placer mining claims to which plaintiffs seek to quiet title by this action are
designated in their second amended complaint as Coykendall No. 2 and Coykendall No. 3,
and are particularly described therein.
The defendants, in their answer, deny the allegations of the complaint, and by way of
cross-complaint set up their claim of title. Defendant's claim of title, as alleged in the answer,
is based upon valid locations of most of the ground covered by plaintiff's claims, by the
location on the 15th day of January, 1927, of the placer mining claims known and designated
as Gray and Mandery Pyramid No. 3 and the Gray and Mandery Pyramid No. 4, situated
in the Pyramid mining district, county of Washoe, State of Nevada. The locations of
defendants' claims were, on the 25th day of July, 1927, amended for the purpose of making
the exterior lines thereof conform to the legal subdivisions of the government survey.
Judgment was rendered in favor of plaintiffs, quieting their title to Coykendall No. 3, and
awarding them a one-fourth undivided interest in the Gray and Mandery No. 3 as the same
was described in defendant's answer. It was further decreed that defendants are the owners of
and entitled to the possession of all of the Gray and mandery No. 4 claim lying outside of the
boundaries of the Coykendall No. 3 claim. The appeal is by defendants and from the
judgment and order denying their motion for a new trial.
1, 2. Defendants contend that the part of the judgment awarding plaintiffs a one-fourth
interest in the Gray and Mandery Pyramid No. 3 claim is unauthorized under the pleadings.
We are of the opinion that this point is well taken. It is conceded by respondents that the
theory upon which the trial court awarded plaintiffs a one-fourth interest in the latter claim
was that there was a fiduciary relationship existing between H.G. Coykendall, one of the
plaintiffs, and W.F. Mandery, one of the defendants, when the latter, together with Donly
Gray, another of the defendants, located the claim. No such fiduciary relationship is alleged in
the complaint. This action was brought by plaintiffs to quiet title to the mining claims
described in the complaint, and not to recover an equitable interest in claims standing in the
names of defendants.
standing in the names of defendants. For this reason the judgment in this respect is outside the
issues, and therefore against law. Counsel for respondents conceded this on the oral argument
and abandoned their contention as to the validity of this part of the judgment. As no fiduciary
relationship was alleged in the complaint, it was error for the court, over defendant's
objections, to admit in evidence plaintiff's exhibits numbered eight to twenty, inclusive,
consisting of certain letters and telegrams, for the purpose of providing such relationship.
3. Defendants' third contention is that it was error for the court to permit plaintiffs to file
their second amended complaint. The second amended complaint was filed at the conclusion
of plaintiffs' case over defendants' objection. Plaintiffs contend that the second amended
complaint was offered so that the allegations of the complaint respecting description might
coincide with the proof which had been admitted without objection, and was properly filed
for that reason. They assert that the first amended complaint contained an inaccurate
description of the claim because predicated upon a previous survey by one Whittett, wherein
the surveyor mistook a monument that was found near the Indian reservation line for the
location monument of the claim and made his measurements and ran his lines accordingly.
The evidence relied on by plaintiffs consists of testimony given by witnesses H.G.
Coykendall, A.L. Ashley, L.H. Taylor, and a map of a survey drawn by Taylor, who made
such survey during the progress of the trial and under the direction of Coykendall. The map of
this survey was introduced in evidence and marked plaintiffs' exhibit No. 10. Coykendall,
who is one of the plaintiffs, testified that the claim in question and the Coykendall No. 2
claim were located by his son, B.S. Morton, and himself on the 17th day of July, 1926, and
that two days thereafter the location notices of the claims were recorded in the county
recorder's office of Washoe County, Nevada. He testified that in locating the Coykendall
No.
the Coykendall No. 3 placer claim he started from a bronze capped monument which was
located on the division line between Section four (4) and Section (9) where the said line is
intersected by the west line of Pyramid Lake Indian Reservation, and from that bronze capped
monument he went west 1600 feet, thence 2000 feet south to corner No. 1 of the Coykendall
No. 3 claim. He further testified: That he set up the location monument of the Coykendall
No. 3 claim at a point near where an old abandoned road crosses a small ravine, and that he
placed the location monument of the claim at corner No. 4 of the said claim, the same point
being corner 4 and also the location monument. He further testified: That on may 29, 1927,
he returned to this claim in company with Albert L. Ashley, whom he had employed to work
for him, and that they set up the location monument and the corner posts at the places where,
as near as possible to ascertain, they should have been. At that time they found no corner
posts which they recognized as belonging to the claim except the location monument which
was lying on the ground near the Indian Reservation line about 300 feet southerly from the
bronze capped monument. He also testified that on that date he put a new location notice in
the location monument of the Coykendall No. 3 claim, which said location notice still
remains posted at the time of the trial of this case. The amended location places the claim 300
feet further west.
Albert L. Ashley, who had been in the employ of plaintiffs for several months, testified
that he was driving over the ground claimed as the Coykendall No. 3 claim on November 14,
1926 and stopped to examine a monument which he saw near the road; that the monument
which he examined was the location monument of the Coykendall No. 3 claim; that the said
monument was located near where the old road crossed the ravine as described by H.G.
Coykendall; that he saw no corner stakes of either the Coykendall No. 2 or Coykendall No. 3
claims.
L.H. Taylor, a civil engineer of Reno, Nevada, testified for the plaintiffs that on January
24, 1928 he made a survey of the Coykendall No. 3 claim at the request of H.G. Coykendall,
and that he found the location monument of the Coykendall No. 3 at a point 14 degrees 07'
east, 435.50 feet from the intersection of the westerly boundary of the Pyramid Lake Indian
Reservation with the division line between section four (4) and section nine (9) T. 26 N. R.
20 E., as described in plaintiffs' first amended complaint; and that at the direction of H.G.
Coykendall he moved the location monument several hundred feet westerly to a point where
an old road crossed a small ravine, and that at the direction of H.G. Coykendall he set a post
at the northwest corner of said claim at a point indicted by H.G. Coykendall; and that the
witness then made a survey of the Coykendall No. 3 claim according to the posts which he
had set at the direction of H.G. Coykendall and used for the southeast and southwest corners
of said claim posts which were pointed out to him by H.G. Coykendall. The witness
produced a drawing of his survey of the Coykendall No. 3 claim made from the field notes of
his survey, and which was introduced in evidence over defendants' objection, as plaintiffs'
exhibit No. 10. This drawing shows the boundaries of the Coykendall claim according to said
survey. The second amended complaint conformed to these boundaries.
Defendants insist that the foregoing evidence was insufficient to warrant the filing of the
second amended complaint because the description of the Coykendall No. 3 claim in the
original location notice, or as it was amended, is, under the circumstances, controlling as to
the boundaries of said claim. The description in the location notices places the ground of the
Coykendall No. 3 claim to a large extent out of conflict with defendants' claim. We think the
point is well taken. The only evidence which has any tendency to establish plaintiffs' claim is
that furnished by the testimony of Coykendall and his employee Ashley to the effect that the
location monument of the claim was originally placed at a point near where an old
abandoned road crosses a small ravine.
effect that the location monument of the claim was originally placed at a point near where an
old abandoned road crosses a small ravine. This is the point at which Taylor commenced his
survey. It is the basis of the second amended complaint. Taylor found this monument, as he
stated, at a point 14 degrees 07' E. 435.50 feet from the intersection of the westerly boundary
of the Pyramid Lake Indian reservation with the division line between section 4 and section 9,
T. 26 N., R. 20 E. This is the point from which the Whittett survey, which furnished the
description for the first amended complaint began. Under the direction of Coykendall, as the
evidence shows, Taylor moved the monument to a point near where an old road crossed a
ravine and ran his survey. Counsel for respondent in their brief state that it appears from
Taylor's testimony that corners numbered 2 and 3 of the claim were the southeast and
southwest corners. The corners were indicated on the ground by posts in place. We do not so
read the testimony. The witness did not say he found any posts at corners in place, but that he
made the survey according to posts which he had set at the direction of H.G. Coykendall, and
used for the southeast and southwest corners of said claims posts that were pointed out to him
by H.G. Coykendall. Where the posts were when pointed out to him by Coykendall, with
reference to the points where he set them for corners, the witness did not say. He stated that
he set a post at the northwest corner at a point indicated by Coykendall. He did not state
where he got this post, but said there was no indication of a post having been there before. He
stated also that there were no markings on any of the posts used in this survey to identify
them as being the corners of that or any other claim. The Taylor survey was not made with
reference to any location notice or monument which he found on the ground.
The testimony of Coykendall as to the place where the location monument was originally
set on which the Taylor map is predicated is inconsistent with his testimony "that in
locating the Coykendall No.
Taylor map is predicated is inconsistent with his testimony that in locating the Coykendall
No. 3 claim he started from a bronze capped monument which was located on the division
line between section four and section nine where said line is intersected by the west line of
the Pyramid Lake Indian reservation, and from the bronze capped monument or stake, he
went 1,600 feet, thence 2,000 feet south to corner No. 1 of the Coykendall No. 3 claim. As
pointed out by counsel for appellant, the latter testimony coincides with the description of the
claim contained in the amended location notice of the Coykendall No. 3 claim placed in the
location monument by Coykendall May 29, 1927, and varies but slightly from the description
contained in the original location notice. The original complaint claimed the land area as
described in the recorded location notice. The first amended complaint claimed the land area
as described in the amended location notice. The second amended complaint claimed a
different land area from either of them, and there is no substantial evidence to show that it
described the ground actually located by plaintiffs. Ashley's testimony, relied on by
respondents as corroborating Coykendall as to the place where the location monument was
originally set, as shown by the Taylor map, is of no value in this respect, for it appears from
the testimony of Whittett that Ashley was with him when he made the survey; that he assisted
him and pointed out to him the corner posts of Coykendall No. 3 claim. Under such
circumstances, the location notice must govern as the best evidence of the ground actually
located by plaintiffs.
4-6. It was said in Treadwell v. Marrs, 9 Ariz. 333, 83 P. 350, 355, on an issue as to the
location of a mining claim, that, where the monuments are found upon the ground, or their
position or location can be determined with certainty, the monuments govern, rather than the
location certificate; but where the course and distances are not with certainty defined by
monuments or stakes, the calls in the location notice must govern and control.
This is a salutary and well-settled rule calculated to require the best evidence of the true
boundaries of a claim, and to prevent the swinging or floating of claims to the detriment of
subsequent locators. Of course inaccuracies or mistakes in a mining location will not
invalidate the location, and in such cases monuments originally erected on the ground control
the courses and distances. Book v. Justice Min. Co. (C.C.) 58 F. 106; Gibson v. Hjul, 32 Nev.
360, 108 P. 759. It is by such means that mistakes may be made known. But this applies only
where the monuments or stakes can be clearly ascertained, otherwise the description in the
location notice controls. Swanson v. Koeninger, 25 Idaho, 361, 137 P. 891; Tiggeman v.
Mrzlak, 40 Mont. 19, 105 P. 77; Flynn Group Min. Co. v. Murphy, 18 Idaho, 266, 109 P.
851, 138 Am. St. Rep. 201; Thallman v. Thomas (C.C.) 102 F. 935; Lindley on Mines (3d
ed.), sec. 375; 40 C.J. 807.
The court erred in permitting plaintiffs to file their second amended complaint.
7. It was also error for the court to permit plaintiffs to introduce in evidence over
defendants' objection the Taylor map, plaintiffs' exhibit No. 10. The map is no evidence that
the claim was located as described in the second amended complaint. Plaintiffs contend that it
was admissible to illustrate Coykendall's testimony. As to this contention, it might be
sufficient to say that it was not limited to that purpose, but, as we hold that the evidence was
insufficient to justify the filing of the second amended complaint, the map was immaterial in
any respect.
Counsel for defendant has assigned several other errors, but we find it unnecessary to
determine them.
The judgment is reversed, and the case remanded to the lower court.
____________
53 Nev. 477, 477 (1931) Memorandum Decisions
MEMORANDUM DECISIONS
WALKER BROTHERS BANKERS v. JANNEY
No, 2882 (See 52 Nev. 440)
October 28, 1930.
Per Curiam:
Rehearing denied.
____________
BAILEY Et Al. v. GATES
No. 2869 (See 52 Nev. 432)
January 5, 1931.
Per Curiam:
Rehearing denied.
____________

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