Nevada Reports 1951 (68 Nev.) PDF

68 Nev.
1, 1 (1951)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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VOLUME 68
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68 Nev. 1, 1 (1951) In Re Carl M. Loer
In the Matter of the application of CARL M. LOER for Admission
to the Bar of the STATE OF NEVADA.
No. 3623
January 4, 1951. 226 P.2d 272.
Proceedings in the matter of an application for admission to the bar of the State of Nevada.
On petition for review of recommendation of the board of bar examiners that the application
be denied and upon board's motion to dismiss, motion to strike, and answer to petition,
together with petitioner's reply thereto. The Supreme Court, Eather, J., held that applicant was
properly denied admission to the bar on failure to pass bar examination.
Petition dismissed.
Emile J. Gezelin, Reno, and Carl M. Loer, for Petitioner.
Bert Goldwater, secretary, state board of bar examiners, and Douglas A. Busey, chairman,
state board of bar examiners, Reno, for Respondent.
1. Attorney and Client.
Bar examiners may examine on subjects other than those listed under rule listing those subjects on which
an applicant for bar may be examined, with only limitation that a nonlisted subject must not be a substantial
change from list. Rules of Supreme Court, rule 1, subds. 3, 6.
Under court rule allowing applicant for bar to be examined on certain subjects and such other subjects as
board of bar examiners may determine, provided that there shall be no substantial change from listed
subjects, applicant may be examined on law of partnerships notwithstanding that it is not among listed
subjects. Rules of Supreme Court, rule 1, subds. 3, 6.
Applicant was properly denied admission to bar on his failure to pass bar examination. Rules of Supreme
Court, rule 1, subds. 3, 6.
Bar examination on subject of constitutional law is not limited exclusively to questions upon federal
Constitution. Rules of Supreme Court, rule 1, subd. 3.
Bar examination question calling for consideration of parol evidence rule was properly included in
examination on contracts. Rules of Supreme Court, rule 1, subd. 3.
OPINION
By the Court, Eather, J.:
This matter is before us on a petition for review of the recommendation of the board of bar
examiners, state bar of Nevada, that Carl M. Loer be denied admission to the state bar of
Nevada and upon the respondent board's motion to dismiss, motion to strike, and answer to
the petition, together with petitioner's reply thereto.
Petitioner wrote the bar examination given by the board on March 13, 14, and 15, 1950.
His average grade for six examinations was 71.83. He was eighth in rank in a class of 13, of
whom six passed with a grade of 75 percent or better. In due course the board certified
petitioner's grades to this court, together with copies of the questions asked by the board and
the written answers given by petitioner.
answers given by petitioner. Respondent board, pursuant to section 6 of rule 1 of the Rules of
the Supreme Court, recommended that petitioner be denied admission to the practice of law
in this jurisdiction. After notice of the board's recommendation, petitioner duly filed his
verified petition for review to the board's adverse recommendation.
Immediately prior to oral argument, the parties, by written stipulation, limited the issues to
be considered by the court. We first shall consider the motion to dismiss.
Petitioner alleges that he was imposed upon because he was asked three questions on the
subject of partnerships, a subject not specifically listed in rule 1, section 3, which rule lists the
subjects upon which an applicant may be examined. Respondent, however, asserts that it
may, under section 3 of rule 1 of this court, examine applicants on any subject of the law so
long as it does not substantially change or add to the list of subjects set forth in the rule. A
portion of rule 1, section 3, immediately following the listed subjects, reads as follows: * * *
and such other subjects as the board of bar examiners may determine. The board of bar
examiners is not obligated to adhere to any of the above optional subjects; but no substantial
change in, or addition to, any of the subjects of examination shall be made until such notice
thereof as shall be prescribed by the supreme court be first given.
[Headnotes 1, 2]
Obviously the intent of the rule is that the board of bar examiners may examine on
subjects other than those listed. It so states. The only limitation is that a nonlisted subject
must not be a substantial change from the list. Clearly partnerships is not such a change. The
law of partnerships is a branch of the law of principal and agent, a partner embracing both
characters being at the same time the principal and the agent of his copartner. 40 Am.Jur. 132,
par. 9. However, it does not seem necessary for us to determine that question.
does not seem necessary for us to determine that question. The examination complained of by
petitioner contained seven questions of which six were required to be answered. Petitioner
elected to answer all of the questions touching on the law of partnership. He will not now be
heard to complain of a situation which in part at least he could have avoided.
[Headnote 3]
He further asserts that being notified upon the morning of the first day of the examination
that questions upon the law of partnerships were to be given, he devoted most of the night
before the examination embracing partnership law in studying that subject with the result that
he was deprived of the sleep to which he was entitled and suffered great nervous strain and
mental anguish. From that he asks us to conclude that his efforts in subsequent examinations
suffered to the extent that he did not attain a passing average. This court will not speculate
that his failure to pass subsequent examinations was the result of his loss of sleep and
nervousness, assuming that to be the fact. (In passing it may be noted that petitioner received
grades of 69 in each of the examinations given before he felt obliged to spend the night of
March 13-14 in study, while he received grades averaging 73.25 on examinations written
thereafter, and that on the three questions concerning partnership law he received an average
grade of 80.)
[Headnotes 4, 5]
Petitioner next asserts that he was imposed upon because the titles of three of the
examinations were misleading. He contends that the subject Constitutional Law should be
limited exclusively to the questions upon the federal constitution. We cannot accept such a
restricted construction of that title nor is there any such limitation in rule 1, section 3. He
contends that in the examination on contracts a question calling for a consideration of the
parol evidence rule is improper.
improper. Professor Williston in his work on Contracts, referring to the parol evidence rule,
says: That rule, in spite of its name, is not only a rule of evidence, as has been abundantly
shown by Thayer and Wigmore, but is not a rule of interpretation or of construction. It is a
rule of substantive law which, when applicable, defines the limits of a contract.
In the Restatement of the Law, the parol evidence rule is treated under the subject of
contracts.
Lastly, petitioner asserts that question 1 of the examination entitled, Sales, Equity and
Jurisdiction of Courts calls for a discussion of a rule of law in the field of torts. We have
read the question, and, although the facts recite an act of violence on the person of one of the
parties, it may be answered entirely within the framework of the law of sales. Viewing the
allegations of this part of the petition most favorably to petitioner, we find no merit therein.
It is next urged by petitioner that he was imposed upon because some questions required a
memorized knowledge of our statutes. With regard to a question in the subject of criminal
law concerning the crime of arson, he asserts and concludes the examiner sought an answer
based upon a statute. There is nothing in the question to show that to be a fact. Petitioner
characterizes question No. 1 of the examination on Practice and Procedure, Construction and
Interpretation of Statutes as absurd and senseless unless considered in the light of section
8703, N.C.L.1929, and asserts that he nevertheless wrote a perfect answer on the basis of the
common law. This assertion is somewhat astonishing since the remedy of attachment, as
such, was unknown to the common law. Bancroft's Code Practice and Remedies, volume 3,
page 3026, section 2259, reads: The remedy of attachment as now recognized in the western
states was unknown to the common law. It is purely of statutory origin, and depends for its
effectiveness entirely upon a compliance with legislative requirements. * * * This court
ruled similarly in Green v. Hooper, 41 Nev. 12, 167 P. 23. Petitioner also wholly
misconstrues rule 1 of the court in asserting that the prohibition against asking questions
calling for a memorized knowledge of statutes applies to the subjects of criminal law and
practice and procedure.
This court ruled similarly in Green v. Hooper, 41 Nev. 12, 167 P. 23. Petitioner also
wholly misconstrues rule 1 of the court in asserting that the prohibition against asking
questions calling for a memorized knowledge of statutes applies to the subjects of criminal
law and practice and procedure. The rule specifically limits that prohibition to one subject,
Construction and interpretation of state and federal statutes.
Paragraph X of the petition alleges imposition because four of the examiners used 16 2/3
possible points for each of the six questions, as the numerical equivalent of a perfect answer
to individual questions instead of 100 percent. The rule of court requires that an applicant to
be recommended for admission must have a grade of 75 percent for the entire examination.
Beyond this requirement the rule does not go. It does not require that each individual question
be graded upon the basis of 100 percent as petitioner claims. There certainly is no imposition
upon the petitioner because some of his examinations were graded upon the basis of 16 2/3
points for each of the six individual questions answered. Actually the numerical marks are
only arbitrary figures to be assigned according to the demonstration of qualities considered
necessary for a lawyer. The figures reflect the examiner's appraisal in terms of passing or
failing and the individual examiner's mathematical application is a matter of method. It does
not increase or decrease the grades whether one method or the other is used. The final grade
on the whole paper is simply a translation into numbers of the quality of the response to the
questions.
Petitioner also alleges that there was tampering with the grades given by the board
members in charge of the examination on Sales, Equity & Jurisdiction of Courts. If there
was such a tampering it appears from the penciled marginal notations that petitioner profited
by it since his grade on the first grading of the examination was 68 percent and on the second
grading of the examination it was 70 percent.
of the examination it was 70 percent. Clearly the examiner may reconsider the grades initially
assigned by him and may change them. This is not tampering. It is, if anything, evidence of
earnest and conscientious zeal on the part of the examiner. The whole board may reconsider
any or all of the grades given by the individual members thereof. In any event, by whatever
method petitioner's grades were revised, his complaint in this regard is unavailing. Analyzing
the written grades on petitioner's examination book it is a mathematical improbability that
petitioner could have had enough points taken from him by tampering in this examination
so as to prevent him from passing the entire bar examination. All of petitioner's assertions
that he was graded too strictly are entirely without merit. In the case of In re Myles, 64 Nev.
217, 180 P.2d 99, 102, we approved and quoted from Staley v. State Bar of California, 17
Cal.2d 119, 109 P.2d 667, as follows: Where any dissatisfied applicant can show that he was
denied passage of state bar examinations through fraud, imposition, or coercion, or that he
was prevented from fair opportunity to take examinations, the Supreme Court will listen to
his complaints, but inability to pass examinations which are successfully passed by other
applicants will not be inquired into.
The petition before us for the most part amounts to an assertion that the examination taken
by petitioner was not properly designed to determine his academic fitness to become a
member of the bar of this court. The relief sought is an order of this court admitting petitioner
to such membership. On June 30, 1950, we entered an order permitting petitioner, as one of
seven similarly situated, to take the bar examination to be given the following September.
Five took advantage of the order and, of them, two passed. Petitioner declined to avail
himself of that opportunity for the reason, among others, that Your board would not give me
a passing grade even if I got an absolute 100 in every question."
question. It follows, therefore, that we are being asked either to regrade his answers, which
we will not do, In re Myles, supra, or to admit him to practice law in this jurisdiction on the
speculative assumption that if the examination had been different he would have received a
grade of 75 percent or higher. The latter course would be plainly improper.
Before leaving this matter, we take notice of the fact that the petition and reply as filed
were drawn by petitioner personally. His counsel in this proceeding appears to have been
engaged after issue was originally joined. There are 18 paragraphs in the original petition. Of
those, only six bear on the issues finally submitted to the court. By stipulation of counsel all
others were stricken. Much of the language employed in the petition may fairly be
characterized as inflammatory and scandalous. It was directed at the members of a board
appointed by this court. No member escaped petitioner's scathing denunciations. The
examiners and their questions are characterized by such terms as deliberate fraud, Clear
fraud, blunder, haphazard and inconsiderate, flagrant and outrageous, abysmal
ignorance, ridiculous, senselessness, absurd, utterly insupportable, shocking
fraud, etc. The men constituting that board are respected members of their profession in the
communities in which they live and practice. Petitioner is not a member of the bar and for
that reason alone we have taken no steps to purge our files of his pleadings herein. Let it
clearly be understood, however, that no member of the bar of this court would have been
permitted to indulge in such shameful name calling. In fact, at the hearing, petitioner
abandoned all charges he theretofore made against the individual members of the board of
fraud, coercion and ignorance. If petitioner did not believe he had sufficient evidence to
support such grave charges he should never have made them at the outset. The practice of
loosely alleging matters or incorporating them into the prayer of a petition, which charges
bring persons into public disrepute and degradation, cannot be condemned too severely.
them into the prayer of a petition, which charges bring persons into public disrepute and
degradation, cannot be condemned too severely. As already stated, this court will not be host
to scurrilous and irresponsible pleadings which are filed, made public, and then voluntarily
abandoned before hearing or which are not and cannot be substantiated by records and proof.
Despite the foregoing observations, we are not without sympathy for petitioner's position.
He is apparently barred by the rule that became effective January 1, 1951, by reason of his
lack of educational qualifications, from taking the examination again. He has undoubtedly in
the past made diligent effort and spent time and money in his study of law in his desire to be
able to pass the examinations. He attained an average grade which, while insufficient to pass,
entitled him to much credit. He did obtain a passing grade in two of the six examinations.
Letters of recommendation mailed to members of this court show that he is held in high
esteem by many good citizens of this state. But one's general qualifications are not to be
substituted for the requisite knowledge of law which one must possess in order to be admitted
into the legal profession. See In re Investigation of Conduct of Examination for Admission
to Practice Law, 1 Cal.2d 61, 33 P.2d 829, 830.
Having decided to grant the motion to dismiss, we need not address ourselves to the issues
raised by the motion to strike and the denials of the respondent board.
Petition dismissed.
Badt, C. J., concurs.
Note: Merrill, J., having become a member of the court after the argument and submission
of the case, did not participate in the foregoing opinion.
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68 Nev. 10, 10 (1951) Smith v. Smith
WILLIAM B. SMITH, Appellant, v. ESTHER MEAD SMITH
and ISABELLA H. SMITH, Respondents.
No. 3601
ISABELLA H. SMITH, Appellant, v. ESTHER MEAD SMITH
and WILLIAM B. SMITH, Respondents.
No. 3602
January 10, 1951. 226 P.2d 279.
Appeal from Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
department No. 2.
Esther Mead Smith brought an action against William B. Smith and Isabella H. Smith to
set aside order which vacated divorce decree between defendants while defendant William B.
Smith and plaintiff were married. Defendants filed an answer and cross complaint. From a
judgment for plaintiff, defendants appealed separately. The Supreme Court, Badt, C. J., held
that plaintiff could set aside order of court which vacated divorce decree between her husband
and his first wife while husband was married to plaintiff on ground that in obtaining the
order, husband and first wife fraudulently concealed from the court fact that husband had
remarried.
Judgment affirmed.
1. Divorce.
Complaint by second wife against husband and first wife which sought to set aside order which vacated
divorce decree between husband and first wife while husband and second wife were married, on ground
that order constituted a cloud on second wife's marriage, was sufficient.
2. Divorce.
Action by second wife against husband and first wife to set aside order which vacated divorce decree
between husband and first wife, while husband and second wife were married, was a proceeding in rem,
and was properly brought in court which not only rendered divorce decree, but which made subsequent
vacating order.
3. Divorce.
In action by second wife against husband and first wife to set aside order which vacated divorce decree
between husband and first wife while husband and second wife were married, where husband and first wife
both appeared generally in the action, court which entered and vacated divorce decree had
jurisdiction of the parties, notwithstanding neither plaintiff nor defendants resided
within jurisdiction when action was filed.
68 Nev. 10, 11 (1951) Smith v. Smith
action, court which entered and vacated divorce decree had jurisdiction of the parties, notwithstanding
neither plaintiff nor defendants resided within jurisdiction when action was filed.
4. Marriage.
Under statute providing no court would have authority to annul any marriage performed, contracted or
entered into outside of Nevada, unless one of parties resided in Nevada for six weeks prior to filing of
complaint, nonresident husband, whose previous residence in Nevada had long since terminated, could not
seek annulment of marriage to second wife in her action to set aside order which vacated divorce decree
between husband and first wife while husband and second wife were married. N.C.L.1931-1941 Supp.,
secs. 4070, 4070.02.
5. Equity.
The rule as to retention of jurisdiction by equity to afford complete relief will not be applied in
contravention of statutory provisions.
6. Divorce.
Court of equity which vacated divorce decree between husband and first wife while husband and second
wife were married could purge its records of fraud committed by husband in not revealing his second
marriage, by setting aside order which purported to vacate divorce decree, notwithstanding any fraud by
second wife in contracting marriage between husband and herself.
7. Equity.
The unclean hands maxim is founded on public policy, and that policy may require relaxation of the rule.
8. Equity.
In action by second wife against husband and first wife, to set aside voidable order which vacated divorce
decree, while husband and second wife were married, second wife was merely instrument by which court
could purge its records of fraud, and preserve its own integrity, and public policy would not permit clean
hands doctrine to deprive court of its power to set aside the order on ground that second wife fraudulently
contracted her marriage with the husband.
9. Marriage.
Where husband and first wife cross-claimed for judgment against second wife to have second marriage
voided, in action by second wife against husband and first wife to set aside order which vacated divorce
decree between husband and first wife while husband and second wife were married, but second marriage
was contracted in another state, equity was not required to proceed to a complete determination of issue as
to fraudulent nature of the second marriage, and would not grant relief on defendants' cross-claims.
10. Marriage.
Where husband was not a resident of Nevada when he obtained his divorce from first wife, but
first wife
68 Nev. 10, 12 (1951) Smith v. Smith
obtained his divorce from first wife, but first wife appeared and entered into stipulation in divorce action,
and subsequently entered into stipulation to vacate divorce decree, first wife became a party to husband's
fraud and was not entitled, in action by second wife against husband and first wife to set aside order which
vacated divorce decree, to determination of issue as to fraudulent nature of second wife's marriage to
husband.
11. Action.
Where parties are in pari delicto, a court will leave them where it finds them, after purging its records of
fraud practiced upon the court.
12. Divorce.
Second wife, who resided in Florida, and who learned that her husband, whom she married in California,
had after his second marriage with consent and stipulation of first wife, obtained from Nevada court which
granted divorce from first wife, an order vacating the divorce, could set aside annulling order in Nevada
court on ground that in obtaining order, husband and first wife fraudulently concealed from court fact that
husband had remarried, notwithstanding any alleged fraud by second wife in contracting her marriage to
her husband.
13. Marriage.
Where husband and second wife were married in California, in action in Nevada by second wife against
husband and first wife to set aside order which vacated divorce decree between husband and first wife
while husband and second wife were married, Nevada court under husband's cross-claim had no
jurisdiction to annul second marriage, but its refusal to grant husband relief would not prejudice his right to
annul his marriage to second wife in a proper forum.
Taylor & Gubler, of Las Vegas, for Appellant William B. Smith.
Earl & Earl, of Las Vegas, and Griswold, Reinhart & Vargas of Reno, for Appellant
Isabella H. Smith.
Lewis, Hawkins & Cannon, of Las Vegas, for Respondent Esther Mead Smith.
OPINION
By the Court, Badt, C. J.:
This action was commenced below by Esther Mead Smith against William B. Smith and
Isabella H. Smith. We shall refer to the parties hereafter by their given names. William and
Isabella appeared separately through separate counsel, and answered and cross
complained.
68 Nev. 10, 13 (1951) Smith v. Smith
through separate counsel, and answered and cross complained. From a judgment in favor of
Esther, William appealed separately, naming Esther and Isabella as respondents. Isabella also
appealed separately, naming Esther and William as respondents. William's appeal is
numbered 3601 and Isabella's appeal is numbered 3602 in the files of this court. A bill of
exceptions was filed in each appeal, but the two bills of exceptions are identical. Complete
sets of briefs were filed in each case. They are virtually identical as to the issues presented for
our consideration. As to one point in which Isabella's position is urged as stronger than that of
William's, we shall speak later. The foregoing is to simplify the somewhat confusing titles of
the causes in the two separate appeals. To all intents and purposes William and Isabella are
the appellants and Esther is the respondent. The appeals were argued together, although each
of the three parties was represented by separate counsel.
The two main questions presented for our determination are as follows: (1) May a second
wife residing in Florida, upon learning that the man with whom she had been living for a year
and a half under the belief that he was her legal husband under a California marriage, had
some six months previously, with the consent and stipulation of his first wife, obtained an
order from a Nevada court vacating a decree of divorce from his first wife rendered by that
court the day preceding the California marriage, sue the said husband and his first wife, both
then residing in Massachusetts, in said Nevada court, to set aside such annulling order on the
ground that in obtaining same said husband and his first wife fraudulently concealed from the
court the fact that the husband after obtaining his divorce decree had remarried?
1
The
learned district judge answered this question in the affirmative {both defendants having
appeared generally and prayed for affirmative relief), remarking that he would never
have signed the order annulling the divorce decree had he known that in the meantime
the husband had remarried.

____________________

1
The precise places of residence of the respective parties is in some doubt. None of them appeared personally
at the trial. Plaintiff's evidence was by way of deposition, and defendants offered no evidence. It is clear,
however, that all parties resided on the east coast of the United states.
68 Nev. 10, 14 (1951) Smith v. Smith
The learned district judge answered this question in the affirmative (both defendants
having appeared generally and prayed for affirmative relief), remarking that he would never
have signed the order annulling the divorce decree had he known that in the meantime the
husband had remarried.
(2) In the event we likewise answer this question in the affirmative, we are presented with
further questions: (a) May the defendant husband and the defendant first wife plead, as a
special affirmative defense to such action, that they had been husband and wife for some 34
years, that the defendant husband was mentally unsound and incapable of entering into the
second marriage, that his reason had been affected by an injury some three years previously,
that the plaintiff had seduced him, had indulged in illicit intercourse with him, had persuaded
him to divorce his first wife and to marry plaintiff, and had wrongfully obtained from him in
excess of $500,000, which was the joint property of the defendants? (b) May the defendant
husband and the defendant first wife cross complain for a judgment against plaintiff for such
sum and adjudging the second marriage to be void? (c) May such cross complaint be
prosecuted in the absence of the conditions required by our statute to exist in order to confer
jurisdiction upon the district court in actions for annulment of marriage?
The learned district judge answered the second group of questions in the negative, and
sustained a demurrer to such affirmative defenses and cross complaints.
Esther filed her complaint in the court below November 29, 1948 and alleged that William
and Isabella had been divorced by that court March 26, 1946 and that William and Esther
intermarried at Los Angeles, California, March 27, 1946; that on July 9, 1946 said court, on
stipulation of William and Isabella, set aside and declared null and void the divorce decree of
March 26, 1946, and that at the time the court made such vacating order, William and Isabella
concealed from the court the fact that William and Esther had intermarried in the
meantime; that on November 20, 1947, Esther first learned of the vacating order of July
9, 1946; that such last-named order vacating the divorce decree constituted a cloud upon
the marriage of Esther and William.
68 Nev. 10, 15 (1951) Smith v. Smith
the fact that William and Esther had intermarried in the meantime; that on November 20,
1947, Esther first learned of the vacating order of July 9, 1946; that such last-named order
vacating the divorce decree constituted a cloud upon the marriage of Esther and William. She
prayed that the vacating order of July 9, 1946 be set aside and that the divorce decree of
March 26, 1946 be declared in full force and effect.
William and Isabella filed separate answers and cross complaints. William's answer sets
forth, in addition to his denials, two separate and further defenses. He alleged that in about
the year 1943 he had suffered a severe head injury, resulting in a serious nervous condition
causing him to suffer instability of personality with which he was thereafter afflicted, which
at various times overcame his reason and understanding; that from 1941 to 1946 Esther, with
full knowledge of his condition, pursued a course of conduct by which she sought to alienate
William from his wife IsabellaEsther being much younger and an extremely attractive
person; that she bestowed upon the defendant with great and extreme generosity, her sexual
and physical attractions, to such extent as to overcome his reason and understanding and
kept him in a state of almost constant hypnotism; that William did not possess the
necessary understanding to enter into a marriage with her and was incapable of assenting
thereto; that the marriage was not one in fact and that Esther did not regard or intend it as
such but that she simply consummated the marriage in order to get money from William.
By way of cross complaint he set up two causes of action. The first alleged that his
marriage to Esther was void by reason of his lack of understanding as to the import and effect
of such marriage ceremony. The second alleged that through the practice of fraud, immoral
inducement and undue influence and without any legal consideration, Esther had received
from him in excess of $500,000, of which she had received from him $300,000 within the
past four years.
68 Nev. 10, 16 (1951) Smith v. Smith
him $300,000 within the past four years. William prayed that his purported marriage to Esther
be adjudged to be null and void, that he have judgment against her for $300,000 and that an
accounting be had to such end.
Isabella's answer contained four additional separate defenses in which she alleged that the
decree of divorce dissolving the marriage between herself and William was of no force or
effect because her assent to appear in the action was procured by fraud, because William in
concert with Esther, who was then present with him in Nevada, represented to Isabella that it
was necessary for William to divorce Isabella in order to save his life and that such was the
only reason for procuring the divorce. She also attacks his residence in Nevada. She also
alleges that he was at the time ill, physically and mentally, suffering from an unstable
personality and that his judgment was impaired so that he was abnormally subject to
influence, all as a result of a serious head injury received in November, 1943, that Esther
exercised undue control over William, induced him to join her in California and go with her
to Nevada to obtain a divorce and to obtain Isabella's appearance by false representations; that
Esther persistently, frequently and illicitly cohabited with him, and beginning from after
November, 1943 overcame him with her sexual and physical attractions and coerced him
with threats to deny him access to them, so that his reason and judgment were impaired; that
she completely overcame his reason and bestowed upon [him] her physical and sexual
attractions to the point where he was constantly hypnotized and without reason or
understanding. Her cross complaint attacks William's residence and alleges that his divorce
from her was consequently void. She repeats William's allegations as to the money obtained
from William by Esther and alleges her ownership of a joint interest therein. She too asks that
the purported marriage between William and Esther be annulled and that she be awarded
judgment against Esther for her share of the money he is alleged to have given Esther.
68 Nev. 10, 17 (1951) Smith v. Smith
annulled and that she be awarded judgment against Esther for her share of the money he is
alleged to have given Esther.
[Headnote 1]
(1) Appellants first insist that Esther's complaint does not state a cause of action against
either of appellants because her only allegation of damage is that the allegedly fraudulent
actions of William and Isabella, in obtaining the vacating order annulling their divorce,
constituted a cloud on Esther's marriage. Appellants say that there are no cases where such
cloud upon a marriage has been recognized as a damage. The phrase used is of course a
metaphorical one. The courts have used varied phrases to describe the situation. In Cates v.
Cates, 202 Mo.App. 352, 216 S.W. 573, 574, the court referred to the right of the wife to
protect her marital status from fraudulent disturbance. It said that such abstract right to
[her] status or condition of being a married woman instead of a divorcee was a valuable and
important right, though it might not entitle her to lay hold of a horse or a farm. In Bowman
v. Bowman, 125 Cal.App. 602, 13 P.2d 1049, 1051, 14 P.2d 558, the allegation of the second
wife as to the effect of the setting aside of the divorce decree of the first wife was that it
defeat[ed] and defraud[ed] her of her marital rights, and the court referred to her as one
whose rights as a wife have been injuriously affected by the order * * *, and later as one
whose rights as a wife were involved and entitled to complain of the fraud practiced upon
the court and herself. In Carlisle v. Carlisle, 96 Mich. 128, 55 N.W. 673, the court referred
to the effect of the vacating order as making the second wife an adulteress. We consider all of
the quoted expressions, as well as others of similar nature used by the courts, to be more or
less of similar purport and not differing materially from the expression used in respondent's
complaint. We must hold therefore that this assignment of error is without merit.
68 Nev. 10, 18 (1951) Smith v. Smith
[Headnote 2]
(2) It is next contended that the court had no jurisdiction of the parties or of any of them,
as it does not appear that either Esther on the one hand as plaintiff or William and Isabella as
defendants, or either of said defendants, resided in Nevada when the action was filed. It is
conceded by all parties that this action is not a part of but is independent of the divorce
proceedings. Appellants contend however that, as such a separate proceeding in equity, it is
one in personam and not in rem. In support of such claim, appellants rely on New York Life
Insurance Co. v. Dunlevy, 241 U.S. 518, 36 S.Ct. 613, 60 L.Ed. 1140; In re Indiana
Transportation Co., 244 U.S. 456, 37 S.Ct. 717, 61 L.Ed. 1253; Gibbs v. Gibbs, 26 Utah 382,
73 P. 641; State ex rel. Howe v. Moran, 37 Nev. 404, 142 P. 534, and other cases supporting
well-recognized rules under which jurisdiction over the person of the defendant is held to be
essential to an equitable proceeding in personam against him. We do not regard these cases as
governing the case in point. We are satisfied, both by reason and authority, that Esther's
action to set aside the vacating order of July 9, 1946, which in turn set aside the divorce of
March 26, 1946, was a proceeding in rem and properly lodged in the court that had not only
rendered the decree but made the subsequent vacating order. Although other grounds and
other reasons are asserted by some of the courts, the theory applied by most of them in cases
attacking a judgment previously rendered by the same court in the same state is that the
judgment constitutes a res within the state and that the proceeding to set it aside is one in rem.
Britton v. Bryson, 216 Cal. 362, 14 P.2d 502; Reybine v. Kruse, 128 Fla. 278, 174 So. 720;
State ex rel. Sparrenberger v. District Court, 66 Mont. 496, 214 P. 85, 33 A.L.R. 464. These
and other cases are cited in an extensive and well prepared note to Indemnity Insurance Co. v.
Smoot, 80 U.S. App.D.C. 287, 152 F.2d 667, 163 A.L.R. 498, commencing at page 504 of the
A.L.R. citation. At page 511 of this citation are cases holding contra, and appellants place
reliance on such cases.
68 Nev. 10, 19 (1951) Smith v. Smith
511 of this citation are cases holding contra, and appellants place reliance on such cases. The
author of the annotation states that such cases constitute the minority view, and such appears
to be the case. We adhere to what we think is the majority rule because we think it is based on
sound reason as illustrated by the situation of the parties in the present appeals. For all
practical purposes the respondent here might well find herself without adequate remedy and
the court without power to purge its records of the fraud if we adhered to the strict view that
the proceeding was one in personam and personal service within the jurisdiction required in
order to invoke judicial action. The well written and exhaustive briefs of the separate
appellants upon this point, as well as the authorities therein cited, have been carefully
considered, but we are satisfied that the district court arrived at the proper conclusion as to
what appellants characterize as the crux of the case.
[Headnote 3]
(3) For still another reason we must hold that this assignment of error is not well taken.
William and Isabella both appeared generally in the action. They first demurred on the
grounds (1) that the complaint did not state a cause of action, (2) that the court had no
jurisdiction of the defendants, and (3) that the court had no jurisdiction of the plaintiff. Upon
the overruling of their demurrer, each answered generally, denying the material allegations of
the complaint, alleging affirmatively that the marriage between Esther and William was not in
fact a marriage but one in form only because of William's lack of understanding, etc., and
then as the first paragraph of each separate defense and of each separate cause of action for a
cross complaint each of said defendants alleged: That the defendant and cross plaintiff and
the plaintiff and cross defendant have submitted to the jurisdiction of the court. Appellants
contend that this allegation, repeated many times by Isabella and by William, can have no
force in the case because of the court's action in sustaining plaintiff's demurrer to these
defenses and cross complaints, in which affirmative relief was sought by William and
Isabella against Esther.
68 Nev. 10, 20 (1951) Smith v. Smith
because of the court's action in sustaining plaintiff's demurrer to these defenses and cross
complaints, in which affirmative relief was sought by William and Isabella against Esther. No
authorities are presented in support of such contention, but the same is based solely on our
statute permitting a defendant to demur and answer at the same time. We do not consider the
contention sound.
[Headnote 4]
(4) As heretofore noted, the court sustained a demurrer to the affirmative matters thus
pleaded in the answers and the cross complaints. In assigning this action of the court as error,
appellants support their position under two theories. First, they contend that Esther, having
invoked the jurisdiction of the court, asking for affirmative relief, is in court for all purposes
and cannot disclaim that jurisdiction insofar as others might be benefited by the action of the
court in the proceeding. Citing 21 C.J.S., Courts, sec. 83, P. 122, they say: The court
acquires jurisdiction of plaintiff in an action when he voluntarily comes into court to compel
defendant to render to him his rights under the law, and that a court of equity, having
assumed jurisdiction for one purpose, will retain it for all purposes, legal or equitable, to the
end that complete justice may be accomplished in one action; that the powers of the equity
court are co-extensive with the rights of the parties to the suit in the subject matter involved;
that equity will not suffer a wrong to be without a remedy; that equity delights to do justice
and not by halves; that, in so doing, questions ancillary or incidental to the main question may
be determined, although such matters would not, as original causes of action, be within its
cognizance; that he who seeks equity must do equity, and must come into court with clean
hands. Many authorities are cited in support of these well-recognized propositions.
To this contention respondent replies that the prayer of both William and Isabella that
Esther's marriage be annulled, comes directly within the purview of sec. 4070 et seq.,
N.C.L.1931-1941 Supp.
68 Nev. 10, 21 (1951) Smith v. Smith
annulled, comes directly within the purview of sec. 4070 et seq., N.C.L.1931-1941 Supp. The
pertinent sections read as follows:
4070. Annulment of marriages whether the same were contracted, performed or
entered into within or without the State of Nevada, may be obtained by complaint under oath
to the district court of the county in which the marriage was performed (if performed in this
state), 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 six weeks before suit be brought, for any cause which is now provided by
law for annulment of marriage, or which is a ground for annulling or declaring void a contract
in a court of equity.
4070.02. No court in this state shall have authority to annul any marriage performed,
contracted or entered into out of the State of Nevada unless one of the parties shall have
resided in this state for the period of six weeks before filing of the complaint.
Appellants assert that they satisfy the requirements of these sections, for the reason that
William's cross complaint alleges that the defendant and cross complainant [William] had
resided in Clark County, State of Nevada, six weeks before this action was brought. They
contend that this is all that is required by sec. 4070.02 and that sec. 4070 requires only that
the action be brought in the county in which the plaintiff shall have resided six weeks before
a suit be brought. (Emphasis supplied.) On this rather vital phase of the appeal, despite the
voluminous briefs filed on other points and despite the extended time allowed for oral
argument, we find no further exposition in the briefs or oral argument, and no authorities
have been cited to the court.
Appellants' contention on this point is that under the provisions of secs. 4070 and 4070.02
a married plaintiff, who had at any time in the past resided for six weeks in a county in the
State of Nevada subsequently to his marriage and then left the state, could, after the lapse
of many years and without further residence in the state, apply to the court of that county
in which he had once resided, for an annulment of his marriage.
68 Nev. 10, 22 (1951) Smith v. Smith
marriage and then left the state, could, after the lapse of many years and without further
residence in the state, apply to the court of that county in which he had once resided, for an
annulment of his marriage. We think that the wording of sec. 4070 clearly requires (other
statutory conditions being absent) that the plaintiff be a resident of the county to whose
district court the application is made. Omitting the inapplicable portions, it reads:
Annulment
of marriages * * * may be obtained by complaint under oath to the district court of the county
* * * in which the plaintiff shall reside, if the latter be * * * the county * * * in which the
plaintiff shall have resided six weeks before suit be brought * * *. This is not enlarged by
the provisions of sec. 4070.02. We are satisfied that a nonresident plaintiff, relying upon a
previous residence long since terminated, does not bring himself within the requirements of
the sections.
But does the fact that Esther sought the equitable relief of the court and submitted herself
to the jurisdiction, or does the clean hands doctrine, or equity's delight to do entire justice, or
the fact that the powers of the equity court should be exercised coextensively with the rights
of the parties to the suit in the subject matter involved, or any of these considerations, permit
the court to escape the bounds upon the jurisdiction fixed by secs. 4070 and 4070.02, N.C.L.?
May the court's natural abhorrence of the actions of Esther assuming the allegations of the
answers and cross complaints to be true, be used as its justification for permitting proof of
such acts and, if the same are found true, to annul the marriage between Esther and William?
We think not.
In Anglim v. City of Brockton, 278 Mass. 90, 179 N.E. 289, the court held that these
considerations did not extend so far as to permit the party to have relief in equity were
statutes in force required him to seek his relief in another way.
68 Nev. 10, 23 (1951) Smith v. Smith
In Weiss v. Ahrens, 24 Colo.App. 531, 135 P. 987, the court referred to the
well-established principle that the chancery court would try all questions, whether legal or
equitable, when it assumed jurisdiction for the purpose of granting necessary equitable relief,
when it is not deprived therefrom by statute.
In Middlesex Concrete P. & E. Corp. v. Northern States Improvement Co., 129 N.J.Eq.
314, 19 A.2d 48, 50, while recognizing the rule that equitable cognizance of a cause for a
particular purpose embraces concurrent jurisdiction over all other matters in issue, the court
further said: It is not, of course, applicable if in contravention of the intention of the
law-making body, express or implied.
[Headnote 5]
It is said in 30 C.J.S., Equity, sec. 67, P. 421: The rule as to retention of jurisdiction by
equity to afford complete relief will not be applied where to do so would be in contravention
of statutory provisions * * *.
In United Drug Co. v. Kovacs, 279 Pa. 132, 123 A. 654, 656, plaintiff filed its bill in
equity to restrain defendants' unfair competition in packaging its products in imitation of
those of plaintiff, and also prayed that defendants be adjudged to pay penalties prescribed by
statute for such unlawful imitation. The trial court held, first, that plaintiff had presented a
clear case of willful, unfair competition, remediable in equity irrespective of statute, and
ordered an injunction and an accounting of profits, and, in addition, the payment of statutory
penalties. The last part of the order was reversed by the Pennsylvania supreme court because
of the statutory provision that such penalties must be sued for in any court having
jurisdiction of an action for a fine or penalty, thus excluding a court of equity. (Emphasis
supplied.) The court said: We are aware that when a court of equity has once obtained
jurisdiction, it will ordinarily round out the whole circle of controversy * * * but this
principle cannot be extended to permit, in equity, a recovery based solely upon a statute,
clearly specifying an entirely different jurisdiction for establishing the liability."
68 Nev. 10, 24 (1951) Smith v. Smith
to permit, in equity, a recovery based solely upon a statute, clearly specifying an entirely
different jurisdiction for establishing the liability. A similar situation appeared in Century
Distilling Co. v. Continental Distilling Co., 3 Cir., 106 F.2d 486, 490, where a similar order
was made on the defendant's cross complaint. There the circuit court, citing United Drug Co.
v. Kovacs, supra, and similar cases, held that equity's desire to grant full relief, once
jurisdiction is obtained, would not be used to contravene the direct provisions of a statute
which clearly defined the jurisdiction.
[Headnote 6]
We entertain no doubt as to the right of the court in a suit in equity to purge its records of
the fraud committed by William. Lauer v. Eighth Judicial District Court, 62 Nev. 78, 140
P.2d 953; Bowman v. Bowman, 97 Cal.App. 613, 275 P. 1023; Carlisle v. Carlisle, 96 Mich.
128, 55 N.W. 673; Britton v. Bryson, 216 Cal. 362, 14 P.2d 502. Whether or not Isabella was
a party to that fraud, it can only be purged by setting aside the order that purported to vacate
the divorce decree. Esther's fraud in the contracting of the marriage between her and William
could not tie the hands of the court or prevent it from purging its records of the fraudulent
concealment that resulted in the vacating of the divorce decree.
[Headnotes 7, 8]
It is said in 30 C.J.S., Equity, sec. 98b, p. 490, that as the unclean hands maxim is one
founded on public policy, public policy may require its relaxation. This doctrine was applied
in Rhodes v. Miller, 189 La. 288, 179 So. 430, 433, in which Rhodes sought an annulment of
his marriage to defendant. He alleged that his first wife had divorced him because of his open
adultery with defendant, and that his subsequent marriage to defendant was therefore void
under the Louisiana statute. Defendant pleaded the clean hands doctrine, but the Supreme
Court of Louisiana, in rejecting such plea, said: "In such a case the guilt of the parties is
not considered as equal to the higher right of the public; and the guilty party to whom the
relief is granted is simply the instrument by which the public is served."
68 Nev. 10, 25 (1951) Smith v. Smith
said: In such a case the guilt of the parties is not considered as equal to the higher right of
the public; and the guilty party to whom the relief is granted is simply the instrument by
which the public is served. It is true that under the Louisiana statute there involved the
marriage was void, while the order vacating the divorce decree here was voidable only, yet
we are impressed with the theory that Esther was merely the instrument by which the lower
court purged its records of the fraud and preserved its own integrity. Public policy will not, in
our opinion, permit the clean hands doctrine to deprive the court of this power. See also,
Axtell v. Axtell, 183 Ga. 195, 187 S.E. 877.
[Headnotes 9, 10]
However, with this accomplished, was the court, under the well-recognized practices in
equity above mentioned, required to proceed to a complete determination of the issue as to
the fraudulent nature of Esther's marriage to William? That marriage, if fraudulent, is not, in
the absence of jurisdiction over the parties or the subject matter, one in which the courts of
this state are interested. William is not without relief. He may seek that relief in a forum
having jurisdiction over the person of Esther. He may undoubtedly seek that relief in the
courts of this state if he should again be a bona fide resident thereof and otherwise comply
with the requirements of our statutes. If this appear to be an additional hardship upon Isabella,
we can only say that the situation is one of their own making. They were husband and wife
for many years. William established his residence in Nevada and obtained a decree of divorce
upon the voluntary appearance of Isabella. That decree of divorce was vacated by the
fraudulent concealment of the intervening marriage. Isabella now says she consented to the
divorce decree only because she was persuaded that the divorce was necessary in order to
save William's life. Who or what was threatening his life or how a divorce would avert this
threat, or whether the danger still impends, she does not say.
68 Nev. 10, 26 (1951) Smith v. Smith
danger still impends, she does not say. She does say that she was no party to the fraud and
now thinks that William was not a resident of Nevada when he obtained his divorce.
Unwittingly then, by her appearance and stipulation in the divorce case, and in any event by
her later stipulation for vacating the divorce decree, she became a party to William's fraud.
Her contention must fall with William's. See, Confer v. Second Judicial District Court, 49
Nev. 18, 234 P. 688, 236 P. 1097.
[Headnotes 11, 12]
That fraud being purged from the records of the district court, the parties must now be left
to extricate themselves from their difficulties in a proper forum. William's California
marriage to Esther in itself involves no fraud on the district court. Appellants rely on
Bowman v. Bowman, 125 Cal.App. 602, 13 P.2d 1049, 14 P.2d 558; which involves facts in
many respects similar to those in the case at bar and in which relief was granted to parties
occupying in many respects the same position as William and Isabella with regard to their
relationships to Esther. However it does not appear that any question was involved as to the
effect of residential requirements of any California statute in annulment proceedings. Indeed,
it affirmatively appears from the statement of facts that all three parties involved in the
triangular affair were at all times, except for some brief absences, residents of the State of
California. On account of that very vital distinction we cannot feel that we are governed by
that case, on this point. Moreover, there the court purged its record of the fraudulent entry of
a final decree of divorce obtained through concealment by the plaintiff of the fact that since
the entry of the interlocutory decree the parties had become reconciled, had for a time again
lived together as husband and wife and had thereafter again separated. It then, at the suit of
the wife (defendant husband appearing and admitting the allegations of her complaint) set
aside the husband's marriage to his second wife, which had taken place shortly after the
fraudulently obtained final decreesuch second wife having been the moving party to the
fraud.
68 Nev. 10, 27 (1951) Smith v. Smith
had taken place shortly after the fraudulently obtained final decreesuch second wife having
been the moving party to the fraud. There the divorce decree was obtained by fraud. Here the
divorce decree was vacated by fraud. In both cases the trial court properly purged its records
of the fraud. The Bowman case, so strongly relied on by appellants, is not authority for the
contention that Esther's fraud could serve to prevent the district court from purging its record
of William's fraud. When parties are in pari delicto, said the court, citing 12 Cal.Jur. 779,
a court will leave them where it finds them, after purging its records of the fraud practiced
upon the court. [125 Cal.App. 602, 13 P.2d 1052.] The effect of the trial court's judgment in
the case at bar was to apply this doctrine. It said, in effect, that it would not hear evidence of
Esther's fraud as a defense against purging its record of William's fraud, but that after such
purge, being precluded by the statute from entertaining William's complaint to annul his
marriage to Esther, it would leave the parties as it found them. With this conclusion we are in
accord. Whatever other affirmative relief may be denied to Esther in equity by reason of her
conduct, that conduct cannot serve to validate the fraudulently obtained order setting aside the
divorce decree.
However we analyze the position of William and Isabella, the relief they seek, whether by
their cross complaints or their affirmative defenses, is the annulment of the marriage between
William and Esther. They first sought to accomplish this by vacating the divorce decree that
dissolved the marriage of William and Isabella. They now say that, despite the subsequent
discovery of William's fraudulent concealment (in whose fruits Isabella participated) such
accomplishment should be permitted to stand because Esther should not be permitted to
invoke the assistance of equity. But there always was, and there will continue to be, a proper
forum open to William in which he may seek to annul his marriage to Esther.
68 Nev. 10, 28 (1951) Smith v. Smith
his marriage to Esther. He is in no worse position now than he was at any time in the past
(subject to the possible effect of intervening occurrences or conditions) to seek such relief.
This remedy always has been and still is available. It is plain, simple and adequate. If it is not
as speedy as William and Isabella would like, that is the result of the fraud practiced upon the
court on July 9, 1946.
Appellants cite numerous authorities to the effect that William's subsequent marriage to
Esther did not in itself deprive the court of power to make the vacating order of July 9, 1946.
See Hollingshead v. Hollingshead, 91 N.J.Eq. 261, 110 A. 19; Lippincott v. Lippincott, 141
Neb. 186, 3 N.W.2d 207, 140 A.L.R. 901; Hall v. Hall, 70 Mont. 460, 226 P. 469. This we
may concede. But the basis of the judgment from which this appeal is taken is not the mere
fact of the remarriage, but its concealment from the court when the latter vacated the divorce.
[Headnote 13]
Many incidental points of law and numerous additional authorities, in addition to those
discussed in this opinion, are presented in the voluminous and carefully prepared briefs of
appellants. These have all been considered, but discussion of them is unnecessary and would
only prolong this already too long opinion. We are satisfied that the rulings of the trial court
were correct. Neither its action nor our affirmance thereof will prejudice the right of William
to seek, in a proper forum, to annul his marriage to Esther and to seek such further relief as to
property rights as may be proper in that forum.
Respondent interposed a motion to dismiss the appeal and the motion was submitted on
briefs at the same time as the submission of the appeal on the merits. The motion is denied,
and appellant is allowed such costs as may have accrued on such motion.
The judgment and the order denying the motion for new trial are hereby affirmed with
costs.
68 Nev. 10, 29 (1951) Smith v. Smith
new trial are hereby affirmed with costs. This opinion will serve for both appeals, Nos. 3601
and 3602.
Eather, J., concurs.
Merrill, J., having become a member of the court after the argument and submission of this
appeal, did not participate.
____________
68 Nev. 29, 29 (1951) Rogers v. Short
ROBERT S. ROGERS, Appellant, v. BEN SHORT, Respondent
No. 3610
January 12, 1951. 226 P.2d 276.
Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
department No. 2.
Ben Short sued Robert S. Rogers for damage to plaintiff's automobile as the result of being
struck in the rear by defendant's automobile. From a judgment for plaintiff, defendant
appealed. The Supreme Court, Badt, C. J., held that the judgment was not erroneous as not
supported by any finding of defendant's negligence by the trial court.
Judgment affirmed.
John W. Bonner, of Las Vegas, for Appellant.
Emilie N. Wanderer, of Las Vegas, for Respondent.
Automobiles.
In action for damage to automobile, struck in rear by defendant's automobile after stopping at street
intersection, where court found that all allegations and denials of answer, denying defendant's negligence,
were untrue, judgment for plaintiff was not erroneous as not supported by any finding of defendant's
negligence, though court struck word negligent from plaintiff's proposed finding that defendant operated
his automobile in negligent manner and rejected defendant's proposed finding that he did not drive
automobile in negligent manner.
OPINION
Defendant's car collided with plaintiff's, and plaintiff recovered judgment for $374.30 for
the resulting damage. Defendant has appealed, his sole assignment of error being that the trial
court failed to make a finding of negligence on the part of defendant, and that the judgment is
accordingly without support.
The only part of the evidence presented in the record is a copy of the official report of the
accident, which was admitted in evidence by stipulation of the parties. From this it appears
that the collision occurred at the intersection of Fifth and Carson streets in Las Vegas, the
official report reading as follows: Car No. 2 [plaintiff's car] stopped at stop sign at the
intersection of Fifth and Carson, and was headed west [on Carson] waiting for the light to
change. Car No. 1 [defendant's car] was headed west on Carson and approaching the
intersection and stepped on his brake to stop and had no brakes. Investigation showed the pin
had dropped out of the brake rod connection. Therefore car No. 1 hit car No. 2 in the rear and
causing considerable damage to car No. 2. The report further shows that plaintiff's car was a
1941 Oldsmobile club coupe and that defendant's car was a 1931 Ford roadster; that
defendant's car had defective brakes; that there was no obscured vision; that the street was
level, smooth and dry.
The court signed findings reflecting most of these facts, but from plaintiff's proposed
finding that defendant operated his car in such a negligent manner that it collided with
plaintiff's car, the court struck out the word negligent. It also struck from plaintiff's
proposed form of judgment the statement that all of the allegations of plaintiff's complaint
are true, but permitted to remain in the findings the recital that all of the allegations and
denials of defendant's answer were untrue. Defendant's answer denies that he was guilty of
any wrong, unlawful or negligent conduct whatever in either the operation, condition,
driving or being in the possession of said automobile," and denies that he permitted it to
be in a poor condition or allowed the brakes to be in a state of disrepair, or that he
negligently permitted it to collide with plaintiff's car.
guilty of any wrong, unlawful or negligent conduct whatever in either the operation,
condition, driving or being in the possession of said automobile, and denies that he
permitted it to be in a poor condition or allowed the brakes to be in a state of disrepair, or that
he negligently permitted it to collide with plaintiff's car. The court rejected a finding proposed
by defendant to the effect that he did not drive his car in a negligent, reckless, wrongful or
unlawful manner, and rejected defendant's further proposed finding that the collision was
unavoidable by either party.
Under the circumstances we are unable to say that the trial court refused or failed to find
negligence on the part of the defendant, or that the judgment is without support in the
findings.
No error appearing, it is ordered that the judgment and the order denying motion for new
trial be, and the same hereby are, affirmed with costs.
Horsey, C. J., did not participate, his term of office having heretofore expired.
Merrill, J., did not participate, having become a member of the court after said matter was
argued and submitted.
____________
68 Nev. 32, 32 (1951) State v. Malone
THE STATE OF NEVADA, on the Relation of ALAN BIBLE, Attorney General of Said
State, Relator, v. CLEM MALONE, Respondent.
No. 3646
January 15, 1951. 226 P.2d 277.
Quo warranto proceeding by the State of Nevada, on the relation of Alan Bible, attorney
general, against Clem Malone to oust respondent from office of county commissioner and
have a third party declared to be legal holder of the office. Respondent demurred to the
petition. The supreme court, Badt, C. J., held that the complaint was not defective for its
failure to join one who claimed the office as a party defendant.
Demurrer overruled.
W. T. Mathews, Attorney General, George P. Annand, Robert L. McDonald, and Thomas
A. Foley, Deputy Attorneys General for Relator.
Edwin J. Dotson and George E. Franklin, Jr., both of Las Vegas, for Respondent.
1. Quo Warranto.
Under quo warranto statute providing that all persons claiming to be entitled to same office or franchise
may be made defendants in same action, third party who claimed office of county commissioner under a
valid election did not have to be joined as a party defendant in action by attorney general to oust county
commissioner from office. N.C.L.1929, secs. 9203 et seq., 9209.
2. Quo Warranto.
Complaint in quo warranto proceedings which prayed that respondent be ousted from office of county
commissioner and that a third party who claimed the office under a valid election be declared to be legal
holder of the office, was sufficient, notwithstanding, factual allegations of every step and proceeding in
course of election of the third party to the office were not made. N.C.L.1929, secs. 9203 et seq., 9209.
3. Courts.
Under statute providing that quo warranto actions commenced in supreme court shall be conducted in
same manner as if commenced in district court, and that pleadings and conduct of trial shall be same as in
district court, where complaint in original quo warranto proceeding in supreme court, was sufficient,
demurrer would be overruled, and respondent would be allowed 10 days in which to
serve and file his answer.
was sufficient, demurrer would be overruled, and respondent would be allowed 10 days in which to serve
and file his answer. N.C.L.1929, sec. 9228.
OPINION
On Demurrer To Complaint
The attorney general, on his own relation, brought an action in this court in the name of the
state against respondent, alleging that the latter is usurping the office of county commissioner
of Clark County, Nevada, purporting to have been elected thereto in 1948 pursuant to An act
to establish commissioner districts in the county of Clark, and providing for the election
therefrom of members of the board of county commissioners. Nevada Stats.1915, p. 146,
chap. 125, as amended 1923, p. 251, chap. 141, and 1925, p. 139, chap. 103. The act
purported to divide Clark County into commissioner districts and to require the election of
one qualified elector and resident of district No. 1 to represent that district, and two from
district No. 2 to represent that district, and that in the event of a vacancy a successor shall be
appointed from the residents and electors of said district. The complaint alleges that such act
is in contravention of section 20 of article IV of the state constitution (prohibiting local or
special laws regulating county business and the election of county officers), section 21
(requiring all laws to be general and of uniform operation throughout the state in all cases
where a general law can be made applicable), section 25 (requiring the legislature to establish
a system of county government which shall be uniform throughout the state), and section 26
(requiring the legislature to provide by law for the election of a board of county
commissioners in each county). The complaint alleges that the county clerk, acting under the
advice of the district attorney of Clark County, conducted an election for the office in
question {respondent's election "to the purported office of County Commissioner,
four-year term, District No.
question (respondent's election to the purported office of County Commissioner, four-year
term, District No. 2 having purported to be for a term expiring the first Monday in January,
1953), under the general laws of this state, at which election one Harvey E. McDonald was
elected and furnished with his certificate of election dated November 14, 1950 for the term
commencing the first Monday in January, 1951, but that respondent refuses to vacate the
office. Relator further alleges that Clark County was never divided into commissioner
districts in the manner provided by the general statute providing for such division, N.C.L.,
sec. 1964, and that commissioners of Clark County may be lawfully elected at large only, as
provided by our general statute, N.C.L., sec. 1935 et seq. Relator prays that respondent be
ousted from office as such county commissioner, and that Harvey E. McDonald be declared
to be the legal holder of the office.
No briefs were filed in this court by either party, but at the oral argument respondent
conceded that the special act in question was unconstitutional under the holding of this court
in McDonald v. Beemer, 67 Nev. 419, 220 P.2d 217. He insists however, in support of his
demurrer, that the complaint is defective in the nonjoinder of McDonald, that it does not state
facts sufficient to constitute a cause of action, and that it is uncertain in its allegation as to the
manner of respondent's election or as to how he became a candidate or as to how McDonald
was elected, averring that the allegations of the complaint in these respects are conclusions of
law only.
[Headnote 1]
(1) Our statute governing actions in quo warranto, N.C.L.1929, sec. 9203 et seq., provides
for actions in the name of the state on the relation of the attorney general against a person
who usurps a public office. It also provides for an action in the name of a person who himself
claims to be entitled to the office against another person unlawfully holding the same.
himself claims to be entitled to the office against another person unlawfully holding the same.
The latter class of action is attended by a number of conditions, including the filing of a bond
and obtaining leave of court to file the complaint, etc. It is within the latter group of sections
that we find N.C.L., sec. 9209, providing: All persons who claim to be entitled to the same
office or franchise may be made defendants in the same action to try their respective rights to
such office or franchise. It is unnecessary for us to decide whether or not the attorney general
might have properly included McDonald as a party defendant. Nor is it necessary for us in
this proceeding to go further in our final disposition of the case on the merits than to
determine whether or not respondent unlawfully usurps the office. With this in mind, and also
by reason of the permissive language contained in sec. 9209, we conclude that the complaint
is not defective for its nonjoinder of McDonald.
[Headnote 2]
(2) While the allegations of the complaint, by reason of the very nature of the proceeding,
are to some extent conclusions of law, we consider them sufficient to permit of a joinder of
issues by the respondent's answer. A strict requirement for factual allegations of every step
and proceeding in the course of an election would be entirely unreasonable.
[Headnote 3]
Section 9228, N.C.L., provides that when such actions are commenced in the supreme
court they shall be conducted in the same manner as if commenced in the district court and
that the pleadings and the conduct of the trial shall be the same as in the district court.
Accordingly, the demurrer to the complaint is overruled and respondent is allowed ten days
from receipt of a copy of this order within which to serve and file his answer.
Eather and Merrill, JJ., concur.
May 18, 1951. 231 P.2d 599.
Original proceeding in quo warranto, instituted by the State of Nevada, on the relation of
Alan Bible, attorney general, against Clem Malone, to have the respondent ousted and
excluded from the office of County Commissioner of Clark County. The Supreme Court,
Eather, J., held that the respondent was elected to an office created by an unconstitutional
statute and his purported holding of such office was without any right, authority, or legal
justification.
Respondent ousted and altogether excluded from the office of County Commissioner
of Clark County.
W. T. Mathews, Attorney General, George P. Annand, Robert L. McDonald, and Thomas
A. Foley, Deputy Attorneys General, for Relator.
Edwin J. Dotson and George E. Franklin, Jr., both of Las Vegas, for Respondent.
1. Stipulations.
It is not for parties to stipulate but for courts to decide unconstitutionality of statute
involved in litigation.
2. Statutes.
Act establishing county commissioner districts for Clark County is unconstitutional and
void as a local and special law, not uniform in application as required by constitution.
Stats. 1915, Chap. 125, as amended; Const. art. 4, secs. 20, 21.
3. Counties.
Act establishing county commissioner districts for Clark County is unconstitutional as
violative of constitutional provisions that legislature shall establish a system of county
and township government which shall be uniform and that legislature shall provide by
law for election of board of county commissioners in each county. Stats. 1915, Chap.
125, as amended; Const. art. 4, secs. 25, 26.
4. Elections.
Where all notices, ballots and official records relating to election for county
commissioner had inserted therein Dist. No. 2, even though no one was refused
privilege of filing for office on ground of lack of residence within so-called district No.
2, and even though voters of entire county could vote for or against any candidate,
individual candidate who received majority of votes was elected pursuant to
unconstitutional act of 1915, establishing county commissioner districts for Clark
County, and was not elected pursuant to valid statutory provisions relating to election
of board of county commissioners, and therefore candidate's subsequent holding of
office was without any right, authority, or legal justification.
of 1915, establishing county commissioner districts for Clark County, and was not
elected pursuant to valid statutory provisions relating to election of board of county
commissioners, and therefore candidate's subsequent holding of office was without any
right, authority, or legal justification. Stats.1915, Chap. 125, as amended; Const. art. 4,
secs. 20, 21; N.C.L.1929, secs. 1935, 1936.
5. Quo Warranto.
In an original quo warranto proceeding by attorney general against county
commissioner, in which it was claimed that respondent was wilfully usurping, intruding
into and unlawfully holding office of county commissioner of Clark County, evidence
presented by relator of a subsequent election, after respondent had been elected and taken
office, was wholly irrelevant, notwithstanding that relator's complaint had prayed that in
addition to excluding respondent from office, that another be declared legal holder of
such office.
6. Statutes.
An unconstitutional law is no law at all.
7. Officers.
An unconstitutional law cannot create an office.
8. Officers.
There can be no de facto officer unless there is a de jure office.
9. Officers.
An office created by an unconstitutional act does not continue as valid and existing
until declared unconstitutional by a court, but being void in its creation, it has no legal
existence and need not be declared vacant.
10. Quo Warranto.
A county commissioner who was elected to an office created by an unconstitutional
statute could be ousted and excluded by an original proceeding in quo warranto instituted
on the relation of the attorney general without the necessity of having the office judicially
declared vacant. Stats.1915, Chap. 125, as amended; Const. art. 4, secs. 20, 21;
N.C.L.1929, sec. 4799.
OPINION
This is an original proceeding in this court in quo warranto, instituted by the State of
Nevada, on the relation of the attorney general, against Clem Malone, claiming that
respondent Malone is wilfully usurping, intruding into and unlawfully holding the office of
county commissioner of Clark county. After issue was joined on the complaint of the
relator and the answer of respondent, following our decision overruling the demurrer to
the complaint, {see State Ex Rel.
issue was joined on the complaint of the relator and the answer of respondent, following our
decision overruling the demurrer to the complaint, (see State Ex Rel. Bible v. Malone, 68
Nev. 32, 226 P.2d 277) we appointed Honorable Frank McNamee, a district judge of Clark
county, as referee for this court for the taking of testimony and exhibits on the part of both
relator and respondent, and such transcript of testimony and exhibits are now before this court
in documentary form.
[Headnotes 1-3]
Relator contends that respondent was elected in 1948, as a candidate at both the primary
and general election, pursuant to an act of the legislature of 1915, as amended, which
attempted to establish county commissioner districts in Clark county. Nevada Statutes, 1915,
p. 146, chap. 125, as amended Nevada Statutes, 1923, p. 251, chap. 141, as amended Nevada
Statutes, 1925, p. 139, chap. 103. While both parties concede that the act in question is
unconstitutional in their respective briefs, it is not for the parties to stipulate, but for courts to
decide the unconstitutionality. We hold that the act of 1915 establishing county commissioner
districts for Clark county is unconstitutional and void as a local and special law, not uniform
in application as required by sections 20 and 21 of Article IV of the constitution. In the same
manner the act in question violates sections 25 and 26 of Article IV. McDonald v. Beemer, 67
Nev. 419, 220 P.2d 217.
Respondent, however, contends that he was not elected pursuant to the unconstitutional
law, but that his election was by virtue of sections 1935-1936, N. C. L.1929. Said sections
provide as follows:
Sec. 1935. At the general election of the several counties of the state, in A. D. eighteen
hundred and seventy, by the qualified electors of each county, a board of county
commissioners, to consist of three members, shall be elected, to possess such qualifications
and to have such powers as hereinafter provided; provided, that in any county where, at the
last general election, there were polled four thousand or more votes, such board shall
consist of five members.
there were polled four thousand or more votes, such board shall consist of five members. * *
* Any vacancy or vacancies occurring in any board of county commissioners shall be filled by
appointment of the governor, and such appointee or appointees shall hold his or their offices
until the first Monday of January following the then next general election, except as provided
otherwise in this act.
Sec. 1936. Said commissioners shall be qualified electors of their respective counties, and
shall enter upon their duties on the first Monday of January succeeding their election, and
shall hold their offices two or four years, as the case may be, as provided in this act; and the
term of office of two years or four years, as the case may be, shall expire at twelve o'clock p.
m. of the day preceding the first Monday in January following a general election. No county
or township officer shall be eligible to the office of commissioner. On entering upon the
discharge of the duties of his office, each commissioner, whether elected or appointed under
the provisions of this act, shall take and subscribe to the oath of office as prescribed by law;
provided, that in case such commissioner shall neglect or refuse, during the period of fifteen
days from and after the first Monday of January succeeding his election, to take the oath of
office as herein directed, his office shall be deemed vacant, and such vacancy shall be filled
by appointment as provided in section 1 of this act; and, provided further, that the term of
office of a person appointed to the office of county commissioner shall not by virtue of the
appointment extend beyond the hour of twelve o'clock p. m. of the day preceding the first
Monday in January next following a general election.
The evidence does not bear out the contention of respondent. It appears that the county
clerk of Clark county followed the provisions of the 1915 act in conducting both the primary
and general elections of 1948 relating to the office of county commissioner. On July 8, 1948,
respondent filed his declaration of candidacy for the office of county commissioner with the
clerk.
for the office of county commissioner with the clerk. In the handwriting of the chief deputy
county clerk there appears the designation Dist. No. 2 under the title of the office
denominated Office of County Commissioner 4 yrs. While respondent disputes that he
ascribed the declaration of candidacy with the addition of the words Dist. No. 2 written in,
but claims that such was added after he had signed his declaration, we are not concerned with
what office respondent thought he was running for, but for what office the election was
actually conducted.
Consistent with the notation made on the declaration of candidacy, the clerk published
notices in a newspaper of general circulation that nominations were open for the primary
election to be held September 7, 1948. Among the offices to be filled was that of County
Commissioner, Dist. No. 2. The official primary ballot listed respondent with two others as
Democratic party candidates For County Commissioner District No. 2, Four Year Term.
So, too, the official ballot for all precincts at the general election of November 2, 1948,
carried respondent's name as the Democratic candidate opposed by one Smith, Republican,
which ballots contained the words For County Commissioner District No. 2, Four Year
Term. Excerpts of the minutes of September 11, 1948 of the county commissioners of Clark
county covering the canvass of the votes of the primary election of September 7, 1948, show
that the tally of the votes cast for respondent was headed by the caption County
Commissioner, District No. 2, Four Year Term.
In the same manner, following the general election of November 2, 1948, the minutes of
the meeting of the county commissioners on November 4, 1948, tallied the votes cast for
respondent under the heading of County Commissioner, District No. 2, Four Year Term
and noted that:
Clem Malone having received the highest number of votes cast for County
Commissioner, District No. 2, Four Year Term, it was by the Board Ordered that the said
Clem Malone be and he hereby
is declared elected to the office of County Commissioner from District No.
Year Term, it was by the Board Ordered that the said Clem Malone be and he hereby
is declared elected to the office of County Commissioner from District No. 2, Four Year
Term; * * *.
Respondent states that the insertion of the words District No. 2 in all notices, ballots and
official records relating to the election of respondent constituted purely ministerial acts of the
county clerk and others in no way changing the form of the elections from those which might
have been conducted under sections 1935 and 1936 N.C.L., set forth above. He points out
that while he was designated as a candidate from District No. 2, such designation was
meaningless by reason of the fact that voters of the entire county were privileged to cast their
vote for or against him, and that the office imposed county-wide duties and responsibilities
without limitation to any particular area or district. But while balloting was general
throughout the county, the testimony of the clerk was to the effect that declaration of
candidacy for the office to which respondent was elected was limited to those persons who
resided in the area delineated in the 1915 statute as amended, an area called District No. 2.
When a declaration of candidacy was filed, the place of residence of the declarant was
ascertained by the clerk, and if it was determined that the declarant for the office lived within
a geographical area designated District No. 2, the declaration was, if otherwise in proper
form, accepted for candidacy. While it is true that the clerk testified that on the occasion of
the 1948 election no one was refused the privilege of filing for the office on the ground of
lack of residence within the so-called District No. 2, the manner and form of action on the
part of the clerk illustrates even further that the election was conducted pursuant to the 1915
act. The fact that no application was received from persons residing in places other than the
area designated District No. 2, does not establish that possible other candidates were not
deterred from filing because they were residents of areas other than District No. 2.
[Headnote 4]
Plainly the method used to conduct the 1948 primary and general elections for the office in
question was not a mere matter of form and is substantially distinguishable from an election
which might have been held under sections 1935-1936, N.C.L. From the facts it seems clear
to this court, and accordingly we find, that the respondent was elected to the office of county
commissioner, District No. 2, pursuant to the act of the legislature of 1915, as amended.
In March 1950 the attorney general rendered an opinion to the district attorney of Clark
county holding that the act of 1915 was unconstitutional. Op. No. 893, Rept. Atty. Gen.
1948-1950. Pursuant to that opinion, the district attorney of Clark county advised the clerk
that at the election of 1950, commissioners should be elected pursuant to the general statutes.
Thereafter, following certain procedure taken by the clerk and county commissioners of Clark
county, a primary and a general election were held in 1950 resulting in the election of one
Harvey E. McDonald to the office of County Commissioner, short term-regular term. Such
elections appear to have been for the purpose of electing into office a de jure commissioner to
finish out the term of the so-called commissioner, District No. 2, to which office respondent
had been elected in 1948. Relator has presented evidence covering the various steps taken by
the clerk and county commissioners in the conduct of the 1950 election. Relator's complaint
prays that, in addition to excluding respondent from the office of commissioner, District No.
2, McDonald be declared the legal holder of the office of county commissioner of Clark
County.
[Headnote 5]
We deem the evidence presented by relator as to the election of 1950 to be wholly
irrelevant to this proceeding. In our former decision in this matter (State Ex Rel. Bible v.
Malone, 68 Nev. 32, 226 P.2d 277) we stated: "Nor is it necessary for us in this proceeding
to go further in our final disposition of the case on the merits than to determine whether
or not respondent unlawfully usurps the office.
Nor is it necessary for us in this proceeding to go further in our final disposition of the
case on the merits than to determine whether or not respondent unlawfully usurps the office.
With this in mind, and also by reason of the permissive language contained in section 9209,
we conclude that the complaint is not defective for its non-joinder of McDonald.
The evidence attempts to support matters beyond the scope of this proceeding and beyond
the limit of which we have already declared that we would be confined. In the case of State v.
Moore, 49 Ariz. 51, 64 P.2d 809, 813, where, analogous to this proceeding, an action of quo
warranto was instituted by the attorney general of Arizona, two defendants claiming each had
unlawfully usurped their respective offices of tax commissioner, the court said:
Nor do we think that this is, in effect, an election contest. Counsel in raising this
contention, overlook the fact that this action was not brought for the benefit of a private
individual claiming an office, but in the interest of the state to protect it from having two of
its important offices administered by those who have no right thereto.
We are not unmindful of the fact that both Malone and McDonald claim the position of
county commissioner of Clark county, but our decision rests on the finding that Malone was
elected to a wholly nonexistent office known as county commissioner, District No. 2,
pursuant to a statute which could not constitutionally create such an office, and that he is
guilty of usurping, intruding into and unlawfully holding or exercising the office of county
commissioner of Clark county.
[Headnotes 6, 7]
Respondent seeks to justify himself as an officer de facto though elected under an
unconstitutional statute, whose office will not be vacated until declared vacant under section
4799, N.C.L. It is elementary that an unconstitutional law is no law at all. Meagher v. Storey
County, 5 Nev. 244; State v. Tufly, 20 Nev. 427, 22 P.
1054. Hence it must follow that an unconstitutional law cannot create an office. In Walcott v.
Wells, 21 Nev. 47, at page 55, 24 P. 367, at page 370, 9 L.R.A. 59, the court states:
We admit that there can be no officer, either de jure or de facto, if there be no office to
fill; that an office attempted to be created by an unconstitutional law has no legal existence, is
without any validity, and that any person attempting to fill such a pretended office, whether
by appointment or otherwise, is a usurper, whose acts would be absolutely null and void, and
could be questioned by any private suitor, in any kind of an action or proceeding. It would be
a misnomer of terms to call a person an officer' who holds no office. A public office cannot
exist without authority of law. An office cannot be created by an unconstitutional act, for such
an act is no law. It confers no rights, imposes no duties, affords no protection, furnishes no
shield, and gives no authority. It is in legal contemplation to be regarded as never having been
possessed of any legal force or effect, and is always to be treated as though it never existed.
See State ex rel. Stevenson v. Tufly, 20 Nev. 428, 22 P. 1054; Norton v. Shelby County, 118
U.S. 425, 442, 6 S.Ct. 1121, 30 L.Ed. 178.
[Headnotes 8-10]
Upon principles of policy and justice, as far as they may be able, courts hold the acts of
officers valid as to third persons and the public, even though the statute authorizing the office
is unconstitutional and void. But this proceeding at bar is not an attempt to attack the acts of
respondent while purportedly holding the office of county commissioner of Clark county. For
the purpose of the instant action, respondent is not a de facto officer as he does not hold a de
jure office. It is well settled that there can be no de facto officer unless there is a de jure
office. State v. Lake, 8 Nev. 276, 285; 21 Cal.Jur. 1013, par. 172. Would it not, therefore, be
vain and useless to declare a vacancy in an office which never existed in point of law or fact.
never existed in point of law or fact. An office created by an unconstitutional act does not
continue as valid and existing until declared unconstitutional by a court; being void in its
creation, it has no legal existence and need not be declared vacant. Buck v. City of Eureka,
109 Cal. 504, 42 P. 243, 30 L.R.A. 409; People v. Toal, 85 Cal. 333, 24 P. 603; Ex Parte
Giambonini, 117 Cal. 573, 49 P. 732; Norton v. Shelby County, 118 U.S. 425, 6 Sup.Ct.
1121, 30 L.Ed. 178. While there may have been a legally existent office in 1948 of county
commissioner, respondent was not elected to that office, but rather was elected to a different
office, wholly nonexistent in law. His purported holding of the office of county commissioner
of Clark county is without any right, authority or legal justification.
It is ordered that respondent be ousted and altogether excluded from the office of county
commissioner of Clark county, and that relator recover his costs.
Badt, C. J., and Merrill, J., concur.
____________
68 Nev. 45, 45 (1951) State v. Alsup
THE STATE OF NEVADA, Respondent, v. RALPH
HOWARD ALSUP, Appellant.
No. 3641
January 23, 1951. 226 P.2d 801.
Appeal from Eighth Judicial District Court, Clark County; Frank McNamee, Judge,
department No. 1.
Ralph Howard Alsup was charged with the crime of assault with the intent to kill. From an
order overruling defendant's motion for change of venue defendant appealed challenging the
validity of ruling. The Supreme Court, Eather, J., held that the trial court did not abuse its
discretion in denying motion for change of venue with the express reservation that motion
could be renewed if after an examination of prospective jurors it was disclosed that a fair
and impartial jury could not be obtained to try the cause in the county.
68 Nev. 45, 46 (1951) State v. Alsup
it was disclosed that a fair and impartial jury could not be obtained to try the cause in the
county.
Order approved.
John Bonner, of Las Vegas, for Appellant.
Alan Bible, Attorney General, Robert McDonald, Deputy Attorney General, Robert E.
Jones, District Attorney, and J. K. Houssels, Jr., Deputy District Attorney, both of Las Vegas,
for Respondent.
1. Criminal Law.
In a criminal prosecution, an order denying the application for a change of venue upon ground of
prejudice was appealable. N.C.L.1929, secs. 8375, 8377; 11084.
2. Criminal Law.
In acting upon a showing made for removal of a place of trial in a criminal case, trial court is called upon
to exercise a sound discretion, and a showing that a great prejudice exists against defendant in the
community is not alone sufficient, nor is the fact that a number of individuals verify that, in their opinion,
defendant cannot obtain a fair and impartial trial.
3. Criminal Law.
The proper procedure to determine the issue as to whether defendant in a criminal prosecution could have
a fair and impartial trial in a county, is the result obtained from examination of panel.
4. Criminal Law.
In prosecution for an assault with intent to kill, trial court did not abuse its discretion in overruling a
motion for change of venue with the express reservation that it could be renewed if after an examination of
prospective jurors it was disclosed that a fair and impartial jury could not be obtained to try the cause in the
county. N.C.L.1929, secs. 8375, 8377, 10913.
OPINION
Appellant was informed against by the district attorney of Clark County, Nevada, charged
with the crime of assault with the intent to kill.
After the cause was set for trial appellant filed and served a motion for change of venue
upon the ground of prejudice existing against him in Clark County.
68 Nev. 45, 47 (1951) State v. Alsup
of prejudice existing against him in Clark County. The application was based upon numerous
affidavits wherein divers individuals expressed the opinion that a fair and impartial trial
would be not afforded appellant in Clark County. The motion was resisted and numerous
counter affidavits submitted.
The lower court overruled the motion with express reservation, that it could be renewed if
after an examination of prospective jurors it was disclosed that a fair and impartial jury could
not be obtained to try the cause in Clark County.
This appeal challenges the validity of this ruling.
Insisting that no authority exists for an appeal to this court from an order denying the
application for a change of place of trial, respondent urges a motion to dismiss these
proceedings. In support of the motion it is contended that section 8377, N.C.L.1929, must be
construed as being applicable to civil proceedings only and that section 436 of the criminal
practice act, N.C.L.1929, sec. 11084, provides for appeal in criminal cases from final
judgments.
Section 8377, as amended, Statutes 1913, page 274, provides in part as follows: This
court may reverse, affirm, or modify the judgment or order appealed from as to any or all of
the parties, and may, if necessary, order a new trial, and on a direct appeal from an order
granting a motion to change the place of trial of an action, or refusing to change the place of
trial, the court may affirm or reverse such order and order the trial to be had in the proper
place. An order changing or refusing to change the place of trial shall not be appealed from
on an appeal from a judgment, but only on direct appeal from the order changing or refusing
to change the place of trial. * * * (Italics supplied.)
Section 8375 provides: The supreme court shall have jurisdiction to review upon appeal
* * * second, * * * an order granting or refusing to change the place of trial of an action
* * *.
These two sections with numerous other provisions form part of the statutes enacted in
1S65, with the following title: "An Act concerning the Courts of Justice of the State and
Judicial Officers."
68 Nev. 45, 48 (1951) State v. Alsup
form part of the statutes enacted in 1865, with the following title: An Act concerning the
Courts of Justice of the State and Judicial Officers.
Since the enactment of this statute in 1865 but few amendments have been adopted. A
reading of the several sections makes abundantly clear a legislative intent to provide a
complete system of courts, court officials, court procedure and jurisdiction, including
appellate proceedings. Civil and criminal subject matters are within its enactments.
To limit sections 8375 and 8377, supra, to civil actions would do violence to the expressed
intent of the act and ignore the plain provisions of the law. It is earnestly insisted that to
sustain an appeal from the order would result in undue delay and confusion. It would in effect
limit appeals of this character only by the ingenuity of counsel in devising new grounds for
the motion.
[Headnote 1]
This contention is not without considerable merit. However, it presents a subject matter for
consideration by the legislature and tenders no aid in determining the question at issue. The
motion to dismiss is denied.
[Headnote 2]
In acting upon a showing made for a removal of place of trial in a criminal case the court
is called upon to exercise a sound discretion. A showing that a great prejudice exists against
defendant in the community is not alone sufficient. The fact that a number of individuals
verify that, in their opinion, defendant cannot obtain a fair and impartial trial lacks convincing
force. Opinions expressed by individuals either in support of or against the motion are not
conclusive. Section 10913, N.C.L.1929, provides: A criminal action prosecuted by
indictment or information may be removed from the court in which it is pending, on
application of the defendant or state, on the ground that a fair and impartial trial cannot be
had in the county where the indictment or information is pending.
In ruling upon the matter the lower court stated: I think in fairness to both State and
Defendant, the motion should be denied at this time, with the privilege to see how the
reaction is when we examine the jury.
68 Nev. 45, 49 (1951) State v. Alsup
think in fairness to both State and Defendant, the motion should be denied at this time, with
the privilege to see how the reaction is when we examine the jury. * * * We should examine
the panel Monday and see what their attitude is.
The lower court further stated that if it appears from such examination of the jury panel
that a fair and impartial trial could not be had, appellant could renew the motion.
[Headnote 3]
The lower court's ruling disclosed an accurate knowledge of the law applicable to a correct
disposition of a motion of this character. It has long been established by decisions of this
court that the proper procedure to determine the issue as to whether a defendant could have a
fair and impartial trial in the county, is the result obtained from examination of the panel.
This is the proper test to ascertain the ultimate fact. In this jurisdiction as early as 1867 this
court, in the case of State v. Millain, 3 Nev. 409, stated: The motion for a change of venue
was only finally refused after the Judge had satisfied himself by examination that an impartial
jury could be obtained. The case of State v. Gray, 19 Nev. 212, 8 P. 456, 457, presents a
state of facts and a lower court ruling similar to the instant subject matter. In sustaining the
procedure adopted this court stated: Defendant applied for a change of venue on the ground
of prejudice existing against him in the county where the indictment was pending which
would prevent him from having a fair and impartial trial. The application was based upon
affidavits tending to establish the fact alleged, and resisted by counter-affidavits. It is
unnecessary to consider the contents of the affidavits. The district court overruled the motion
for the time being, until it could be shown by an examination of a sufficient number of jurors
that a fair and impartial jury could not be obtained. After examining 81 persons a jury was
impaneled. The statute authorizing a change of venue in criminal cases provides that before
granting the order, the court shall be satisfied that the representations of the moving
party are true.
68 Nev. 45, 50 (1951) State v. Alsup
before granting the order, the court shall be satisfied that the representations of the moving
party are true. The question whether a fair and impartial jury could be obtained depended
largely upon the opinions of witnesses. Opinions differed widely, and the court adopted a
very satisfactory test to ascertain the fact. The practice pursued was approved in State v.
Millain, 3 Nev. 433, and by the supreme court of California in People v. Plummer, 9 Cal.
[298] 299, and in People v. Mahoney, 18 Cal. [180] 181.
Then again in the case of State v. Teeter, 65 Nev. 584, 611, 200 P.2d 657, 671, this court
stated: The trial court was correct, I believe, in declining to grant a change of venue until the
practical test, that is, whether or not a fair and impartial jury could be had, was applied by the
actual examination of the jurors on their voir dire. * * * The defendant had been, by the court,
given the right to renew his motion for a change of venue after the determination of such
test.
[Headnote 4]
We have not overlooked the contention that not only was it impossible to obtain an
impartial jury but that even an impartial jury, if obtained, would be subject to the influence of
the strong feeling existing against appellant in the community. That this phase of the matter
was likewise duly considered by the trial judge in denying the motion is evident from his
keeping the privilege open till after the reaction should be determined. We think this was
a proper exercise of his discretion.
For the reasons given, therefore, the order of the lower court overruling and denying
appellant's motion for removal of said cause is approved.
Badt, C. J., concurs.
Note: Merrill, J., having become a member of this court after the argument and
submission of the case, did not participate in the foregoing opinion.
68 Nev. 45, 51 (1951) State v. Alsup
February 8, 1951.
Badt, C. J., and Eather, J.:
Appellant having heretofore appealed to this court from an order denying change of venue,
and this court having affirmed the order of the district court and appellant having filed herein
his petition for rehearing upon the sole ground that said district court erred in denying
appellant's motion for change of venue, it is hereby ordered that said petition for rehearing
be, and the same hereby is, denied.
Merrill, J., did not participate.
____________
68 Nev. 51, 51 (1951) Chance v. Arcularius
JESS CHANCE, MILDRED F. CHANCE, JESS A. CHANCE, Jr., and JANICE CHANCE,
Plaintiffs and Appellants, v. FRANK H. ARCULARIUS, Defendant and Respondent.
No. 3637
January 24, 1951. 227 P.2d 198.
Appeal from Fifth Judicial District Court, Nye County; William D. Hatton, Judge.
Action by Jess Chance and others, against Frank H. Arcularius involving range and stock
watering rights. From an adverse judgment plaintiffs appealed and also appealed from an
order denying their motion for new trial. On motion to dismiss appeal and on motion to strike
certain parts of bill of exceptions. The Supreme Court, Badt, C. J., held that first undertaking
filed by plaintiffs was not an undertaking on the appeal from the order denying a new trial
and that appeal from such order would therefore be dismissed, but that district judge had
jurisdiction to execute a later certificate correcting a mistake in certification of bill of
exceptions.
Appeal from order denying motion for new trial dismissed. Motion to strike parts of
bill of exceptions denied.
Carville & Carville, of Reno, and Wm. J. Crowell, of Tonopah, for Appellants.
Gray & Horton, of Ely, for Respondent.
1. Appeal and Error.
Filing of undertaking on appeal is jurisdictional. N.C.L.1931-1941 Supp., secs. 9385.66, 9385.77.
Where appellants' undertaking recited that appeal was from a judgment entered against them and recited
promises on part of appellants' sureties to pay all damages and costs which might be awarded against them
on appeal, there was no undertaking on appeal from an order that denied appellants' motion for a new trial,
and accordingly such appeal would be dismissed. N.C.L.1931-1941 Supp., secs. 9385.66, 9385.77.
Statute providing that no appeal shall be dismissed for insufficiency of undertaking thereon provided that
a good and sufficient undertaking approved by justices of supreme court is filed therein before hearing
upon motion to dismiss appeal, merely authorizes filing of new bond to cure an insufficiency, and does not
authorize filing of bond after expiration of statutory time where none has been previously filed.
N.C.L.1931-1941 Supp., sec. 9385.66.
Where district judge executed a subsequent certificate reciting inadvertence in action of clerk in attaching
judge's certificate to volume I of bill of exceptions instead of volume II, and recited therein that his prior
certificate was to complete record on appeal consisting of volumes I and II and that it should have been
attached to volume II, motion to strike parts of bill of exceptions would be denied.
OPINION
On Motion to Dismiss Appeal
Appellants, plaintiffs below, appealed from an adverse judgment and from the order
denying their motion for a new trial.
a new trial. Respondent has moved to dismiss the appeal from the order denying new trial
upon the ground that such appeal is ineffectual for lack of an undertaking on such appeal.
Appellants' notice of appeal to this court recited that they appealed from the judgment
[describing it] and from an order denying a motion for a new trial [describing it]. On the
same day they served and filed their undertaking on appeal reciting: Whereas, the plaintiffs
in the above entitled action have appealed * * * from a judgment entered against them in said
action [describing it], now therefore in consideration of the premises and of such appeal, we,
the undersigned, * * * do hereby jointly and severally undertake and promise, on the part of
appellants that the said appellants will pay all damages and costs which may be awarded
against them on the appeal, or on a dismissal thereof, not exceeding $300.00. * * * After
respondent had served and filed his notice of motion to dismiss the appeal from the order
denying new trial on account of lack of bond, appellants submitted to the justices of this court
an amended undertaking which recited that whereas the plaintiffs had appealed from the
judgment and the order denying new trial, the sureties do hereby jointly and severally
undertake and promise, on the part of appellants that the said appellants will pay all damages
and costs which may be awarded against them on the appeal from said judgment or said
order denying motion for new trial, or on a dismissal thereof * * *. Upon the presentation of
such amended undertaking on appeal, the justices of this court approved the same without
prejudice to the right of respondent to move to vacate such approval, or to proceed with his
pending motion to dismiss. The approval of the amended undertaking, without prejudice as
aforesaid, was made pursuant to that part of sec. 9385.77, N.C.L.1931-1941 Supp., reading as
follows: No appeal shall be dismissed for insufficiency of the undertaking thereon;
provided, that a good and sufficient undertaking approved by the justices of the supreme
court, or a majority thereof, be filed in the supreme court before the hearing upon motion
to dismiss the appeal; * * *."
provided, that a good and sufficient undertaking approved by the justices of the supreme
court, or a majority thereof, be filed in the supreme court before the hearing upon motion to
dismiss the appeal; * * *. Appellants point out that their notice of appeal specifically
indicated that they appealed both from the judgment and from the order denying a new trial
and contend that the failure of the first undertaking to refer to the appeal from the order
created a situation contemplated by the above-quoted portion of sec. 9385.77. Respondents
contend that the appeal from the judgment and the appeal from the order are two separate and
distinct appeals and that the sureties on the first undertaking only obligated themselves in the
event of an affirmance of the judgment or in the event of a dismissal of the appeal from the
judgment; that they did not obligate themselves upon the affirmance of the order denying new
trial or upon a dismissal of the appeal therefrom and that the first undertaking on such appeal
was not merely insufficient, under the wording of the statute, but was totally lacking.
Appellants refer to the liberality expressed in other parts of sec. 9385.77, to the policy
expressed that no appeal shall be dismissed for any defect or informality in the appellate
proceedings until the appellant has been given an opportunity to amend or correct such defect
and to the effect that the appeal shall not be dismissed for any irregularity not affecting the
jurisdiction, where such defect or irregularity can be cured by amendment. Appellants also
refer to the often expressed policy of this court to dispose of appealed cases on the merits
whenever that can lawfully be done. To this policy we have always adhered and still adhere,
and the present case, involving as it does important range rights and stockwatering rights of
the respective parties, presents an instance in which the court would much prefer to give
effect to this liberal policy if it could be lawfully done.
[Headnotes 1-3]
However, the decisions of this court as well as decisions of the courts of California, Idaho,
Montana, North Dakota and other states require such dismissal. In the absence of the filing of
the undertaking within the statutory time, the appeal is not effectual for any purpose.
N.C.L. sec. 9385.66. This court has repeatedly held that the filing of the undertaking is
jurisdictional. The first undertaking filed by appellants was no undertaking on the appeal
from the order denying new trial. Magee v. Whitacre, 60 Nev. 202, 96 P.2d 201 (appearing in
Pacific Reporter under its original title of Magee v. Lothrop), 106 P.2d 751. Section 9385.77
merely authorizes the filing of a new bond to cure an insufficiency. It does not authorize the
filing of a bond after the expiration of the statutory time where none has been filed. Twilegar
v. Stevens, 49 Nev. 273, 244 P. 896, 897. In that case, as in the present one, appellant
contended that this court had held contra in Shute v. Big Meadow Inv. Co., 41 Nev. 361, 170
P. 1049, but the court said that the question had neither been raised nor determined in the
Shute case. The court further said: The statute does not say that when there is a failure to file
an undertaking relief may be had in the manner stated. See also Jasper v. Jewkes, 50 Nev.
153, 254 P. 698, and Lippert v. Lippert, 51 Nev. 370, 277 P. 1. Appellants have cited no cases
from this or other jurisdictions, holding that under similar conditions, and under similar
statutes, the appellants have been permitted to file a new bond and thus perfect their appeal. It
is true that appellants have referred us to several cases in which the court, in dismissing the
appeal, remarked that the appellant had not seen fit to take advantage of the remedial statute,
similar to our sec. 9385.77, and intimated that the court would in such event have accepted
the new bond and refused to dismiss the appeal. In each case, not only was this by way of
dictum, but the question as to whether the new bond supplied such "insufficiency" or cured
such "defect" as was contemplated by the particular statute, or whether it attempted to
supply an absolute lack of a bond filed within the statutory period, was neither argued nor
determined.
to whether the new bond supplied such insufficiency or cured such defect as was
contemplated by the particular statute, or whether it attempted to supply an absolute lack of a
bond filed within the statutory period, was neither argued nor determined. Judd v. Ball, 58
Nev. 404, 73 P.2d 830, 82 P.2d 353, relied on by appellants is so lacking in facts as to the
nature of the insufficiency in the bond there appearing that it is of little assistance. Counsel
for respondent in that case conceded that the new bond, filed under the statute, supplied the
insufficiency, and it was therefore accepted. As the Twilegar case said of the Shute case,
we must say of Judd v. Ball that the point was neither submitted nor determined. All cases in
which the precise point has been considered support the motion to dismiss. See particularly
Spokane Cattle Loan Co. v. Crane Creek Sheep Co., 36 Idaho 786, 213 P. 699, and Little v.
Thatcher, 151 Cal. 558, 91 P. 321.
Accordingly, the motion to dismiss the appeal from the order denying the motion of
appellants for a new trial must be granted, and such appeal is hereby dismissed.
On Motion to Strike
[Headnote 4]
Respondent has also moved to strike certain parts of the bill of exceptions. Such parts
include all of volume I, entitled transcript of proceedings, and a list of sixteen documents
from volume II, comprising sundry documents, stipulations, orders, motions, etc., not
embraced within our statutory definition of the judgment roll. The record shows that both of
these volumes were served upon respondent within the statutory period as extended by
stipulation and were filed within the time as extended by order of court. Volume I, the
transcript of proceedings, was duly certified by the court reporter. The main confusion grows
out of the fact that volume I, though requiring no certificate other than that of the reporter, is
followed by this certificate of the district judge: "I hereby certify that the foregoing bill of
exceptions is correct, and contains the substance of the proceedings relating to the point
or points involved, and has been settled and allowed."
judge: I hereby certify that the foregoing bill of exceptions is correct, and contains the
substance of the proceedings relating to the point or points involved, and has been settled and
allowed. It is dated September 19, 1950. Volume II, containing some 27 indexed pleadings
and documents, is not settled by stipulation or order of court, but is followed by a stipulation
dated September 1, 1950, to the effect that the transcript of proceedings as certified by the
court reporter constitutes the bill of exceptions on appeal. Apparently the stipulation of
counsel should have been attached to volume I and the certificate of the district judge to
volume II. The district judge, by a subsequent certificate, recited the inadvertence in the
action of the clerk and the fact that his certificate was to the complete record on appeal,
consisting of volumes I and II, and should have been attached to volume II. Respondent does
not controvert the facts, but attacks the jurisdiction of the district judge to execute such later
certificate and also moves to strike such certificate. This court has under similar
circumstances often remanded a record to the district court so that it might be made to speak
the truth. This is the most that the court would be inclined to do under the circumstances, and
inasmuch as the district judge's later certificate as to the inadvertence is not controverted, no
purpose would be served in doing this. See Taylor v. Taylor, 56 Nev. 100, 45 P.2d 603, Id.,
58 Nev. 149, 72 P.2d 1105. With the dismissal of the appeal from the order denying new trial,
we cannot say at this time just what use appellants will make of the two volumes comprising
the bill of exceptions.
In Magee v. Whitacre, 60 Nev. 202, 96 P.2d 201, 204 (appearing in Pacific Reporter under
its original title of Magee v. Lothrop), 106 P.2d 751, this court, after dismissing the appeal
from the order denying new trial, then considered the motion to strike the bill of exceptions.
Speaking through Orr, J., it said: This is denied. If reasons exist why this Court cannot
consider the bill of exceptions on the appeal from the judgment, respondents may present
them in their briefs on said appeal."
the bill of exceptions on the appeal from the judgment, respondents may present them in their
briefs on said appeal.
The motion to strike volume I of the bill of exceptions comprising the reporter's transcript
of proceedings is denied. The motion to strike the sixteen documents from volume II of the
bill of exceptions is denied. Time for appellants to serve and file their opening brief on their
appeal from the judgment shall commence to run upon their receipt of a copy of this opinion
and decision.
Horsey, formerly C. J., did not participate, his term of office having heretofore expired.
On The Merits
November 8, 1951. 237 P.2d 204.
Jess Chance and others sued Frank H. Arcularius to enjoin him from interfering with their
stock watering rights and grazing rights in Ralston Valley, and for damages for trespass.
Arcularius cross-complained for injunctive relief against the plaintiffs. The trial court granted
in part and denied in part the plaintiffs' prayer for an injunction, denied damages and granted
in part and denied in part defendant's prayer for an injunction, and defined in effect that part
of the range and stock watering rights to which plaintiffs were entitled and that part of the
range and stock watering rights to which defendant was entitled and the plaintiffs appealed
from the judgment alone.
The Supreme Court, Badt, C. J., held that upon an appeal from a judgment alone, the
Supreme Court would not examine the evidence to determine whether there was any evidence
to support the judgment.
Affirmed.
Carville & Carville, of Reno, and William J. Crowell, of Tonopah, for Appellants.
Gray and Horton, of Ely, for Respondent.
Appeal and Error.
Upon an appeal from the judgment alone, supreme court would not examine evidence
to determine whether there was any evidence to support the judgment. Stats.1935, Chap.
90; Stats.1937, Chap. 32; N.C.L.1929, sec. 7980; N.C.L.1931-1941 Supp., secs. 5581,
5581.06.
OPINION
We heretofore dismissed the appeal from the order denying appellants' motion for a new
trial, such appeal being ineffective for want of filing of an undertaking. Chance v. Arcularius,
68 Nev. 51, 227 P.2d 198. However, we denied respondent's motion to strike the transcript of
the proceedings, following the action of this court in Magee v. Whitacre, 60 Nev. 202, 96
P.2d 201 (appearing in Pacific Reporter under its original title of Magee v. Lothrop), 106
P.2d 751, in which it was said that respondents might present in their briefs on the merits
reasons why this court could not consider the bill of exceptions on the appeal from the
judgment. In refusing to strike the transcript however, we stated: With the dismissal of the
appeal from the order denying new trial, we cannot say at this time just what use appellants
will make of the two volumes comprising the bill of exceptions, (Volume II being the
transcript of proceedings). Thus we have before us in any event an appeal from the judgment
alone in which we may consider such errors as appear from the judgment roll. Appellants
contend however that inasmuch as the transcript of the proceedings has not been stricken the
court may and should consider the same, not for the purpose of determining the sufficiency of
the evidence to support the findings and judgment, but to determine whether there is any
evidence in support thereof.
of the evidence to support the findings and judgment, but to determine whether there is any
evidence in support thereof. In support of this contention appellants rely upon Sweet v.
Sweet, 49 Nev. 254, 243 P. 817, in which case appellant did not perfect her appeal from the
order denying new trial and the appeal was only from the judgment. This court there said:
We agree with counsel for respondent to this extentthat we cannot consider the
sufficiency of the evidence, because the appeal is from the judgment, and not from the order
overruling the defendant's motion for new trial. We are of opinion, however, that, upon
exceptions to a judgment, and upon appeal therefrom, we can examine the evidence to
determine the legal question whether there is any evidence to support the judgment.
No authority was cited in support of this statement and no reason given for announcing
such rule of law. After making the statement, the court proceeded to a discussion of the
pleadings and the questions of law involved and the conclusion reached, and then states: We
have examined the evidence to determine whether there is any legal evidence to support the
judgment, and, being of opinion that there is, the judgment is affirmed.
Despite this rather summary recognition and disposition of the point and the lack of
authority or reason for the stated rule, appellant insists that the rule was thereafter approved in
In re Benson's Estate, 62 Nev. 376, 151 P.2d 762, 763. This court there said: It is stated in
appellant's closing brief that on appeal from a judgment, even if the sufficiency of the
evidence cannot be considered where there has been no motion for a new trial, this court can
nevertheless determine whether there is any evidence to support the judgment. It was so
stated in Sweet v. Sweet, 49 Nev. 254, 258, 243 P. 817. Again this court cited no other
authority nor did it give any reason in support of such rule. However, despite this apparent
lack of enthusiasm in referring to the Sweet case, the court did proceed to examine the
evidence, to the extent of quoting five questions and answers, and concluded: "There was
some evidence, at least, to support this finding, and in the absence of a motion for a new
trial this court will not consider the question of its sufficiency."
answers, and concluded: There was some evidence, at least, to support this finding, and in
the absence of a motion for a new trial this court will not consider the question of its
sufficiency.
The rule of the Sweet case was again advanced in Richards v. Steele, 60 Nev. 66, 99 P.2d
641, 643, 100 P.2d 72, and the court, on the appeal from the judgment alone, said, citing the
Sweet case: * * * we can therefore examine the evidence to determine the legal question
whether there was any evidence to support the judgment. It recites the appellant's contention
that there was no evidence to justify the decision and a total failure of proof. The court
then discusses the pleadings and points to a single item of proofa deposit of $2,400 in
postal savings account so as to place it in the infant's exclusive control as constituting some
substantial evidence of a gift. On rehearing, 60 Nev. 72, 100 P.2d 72, 73, the court again
refers to the Sweet case and says that the sole question before the court was whether there
was any substantial showing to support the judgment.
The Sweet case was again cited in Monitor Pipe & Steel Co. v. Flanigan Warehouse Co.,
63 Nev. 449, 451, 172 P.2d 846, 847. No motion for a new trial had been made, but the
parties stipulated to a bill of exceptions and record on appeal, including pleadings, evidence,
a deposition, etc. Respondent moved to strike the same, but the court held that its contentions
could be better considered on the appeal on the merits. The court there referred to appellant's
contentions as follows: Appellant does not question the well-settled rule that when there has
been no motion for a new trial, the supreme court will not inquire into the sufficiency of the
evidence to support the trial court's findings. He expressly admits that he is in no position to
question its sufficiency on this appeal. He does maintain, however, that on appeal from the
judgment alone this court may examine the evidence to determine the legal question whether
there is a total failure of proof to support the judgment. In support of this contention he cites
[Sweet v. Sweet, Richards v. Steele and Benson's Estate]."
Steele and Benson's Estate]. There appears no word of approval of the rule itself.
In 1935, Stats. 1935, chap. 90, p. 195, the legislature passed a new act regulating new trials
and appeals, and in 1937 again passed an entirely new act regulating such proceedings,
repealing all acts in conflict but reenacting many of the sections of the 1935 act. Stats. 1937,
chap. 32, p. 53.
In Neill v. Mikulich, 57 Nev. 307, 64 P.2d 612, 614, under an appeal from the judgment, it
was insisted that the 1935 amendments permitted the court to consider the insufficiency of
the evidence. The point was not narrowed to the question of total lack of evidence, but the
holding of the court is nonetheless significant. The court held that the rule had not been
changed by the 1935 statute and that the only way the court could consider the sufficiency of
the evidence, rulings upon instructions, etc., was for the aggrieved party to make his motion
for a new trial and to appeal from an adverse ruling. The significance of the case concerns its
consideration by the court in Snyder v. Garrett, 61 Nev. 85, 115 P.2d 769, 771. This opinion
involved the 1937 New Trials and Appeals Act, and the appellant, appealing from the
judgment alone without moving for a new trial, insisted that the sufficiency of the evidence
could be considered on such appeal under the provisions of the 1937 act. With Taber, J.,
dissenting, the court reviewed the new act, the old sections reenacted, the significance of the
omission of other sections, quoted the foregoing language from Neill v. Mikulich, referred to
the recognized practice before this court from earliest times and emphasized the reason for
the rule, namely, that the trial court may first have an opportunity to rectify an error, if one
was made, without subjecting the parties to the expense and annoyance of an appeal. The
court said it was not reasonable to believe the legislature intended such a radical change in the
practice existing for almost three quarters of a century without resorting to explicit language
to denote its intention.
The rule stated in Sweet v. Sweet that even in the absence of an appeal from an order
denying new trial and even in the absence of a motion for new trial, the court may
nevertheless consider the transcript to determine whether there is any evidence to support the
findings, has not, so far as we have been able to discover, been approved by any other court
having similar statutory provisions. We are not here concerned with that exception to the
substantial evidence rule which permits consideration, on appeal from an order denying
new trial, of the assertion that there is no substantial conflict in the evidence upon any
material point and that the decision is against such evidence upon such point, or where the
decision is manifestly and palpably contrary to the evidence (Kitselman v. Rautzahn, 68 Nev.
......, 232 P.2d 1008, and cases therein cited), or the assignment that, upon all the evidence, it
is clear that a wrong contention has been reached (Consolazio v. Summerfield, 54 Nev. 176,
10 P.2d 629).
We are satisfied that the rule in Sweet v. Sweet is not sound, that it is contrary to the
recognized practice in this state since our earliest opinions, that it tends only further to
confuse the situation where there is no appeal from an order denying a new trial, and that to
all intents and purposes it nullifies the main rule that the sufficiency of the evidence cannot be
considered on an appeal from the judgment alone. If, upon a simple assertion by the appellant
that there is no evidence to support the findings, he is entitled to refer to the entire transcript
of the evidence, the next step is to insist upon his right to show that there is no competent
evidence to sustain the findings, or, though the evidence be concededly competent, that it was
neither relevant nor material, that it was unworthy of belief, that its effect was destroyed by
admissions made by witnesses on cross-examination, that it was entirely rebutted by other
evidence. If these be the natural consequences of the rule in Sweet v. Sweet, and we think
they are, then we have done away with the main rule to which the no evidence rule is
something in the way of an exception.
rule is something in the way of an exception. The reason for such main rule as quoted above
applies a fortiori to a contention that there is no evidence to support the findings. If a trial
court, to avoid the expense and annoyance of an appeal, must first be given an opportunity, by
motion for new trial, to correct its error because of insufficiency of the evidence, there is all
the more reason that it should be given such opportunity by reason of an entire lack of
evidence. In the latter case it would seem that the error would be more readily found than in
the former. The present appeal furnishes an excellent example of our conclusion.
Appellants brought their action in the district court to restrain respondent from interfering
with their grazing rights and stock watering privileges upon the public domain in Ralston
Valley, Nye County, Nevada, alleging their use of the range through themselves and their
predecessors for over forty-five years. They claim that these rights were established under the
1925 stock watering law and under the 1931 grazing law. Respondent claimed the same
range, or part thereof, under similar usage and custom through himself and his predecessors,
and asserted in addition that by agreement between the predecessors of the respective parties
there had been an agreed division of such range. The valley runs in a northerly and southerly
direction from the Tonopah-Ely highway on the south to the town of Belmont on the north,
and is divided by what is known as the Belmont or Ralston-Rye Patch Wash running
northerly and southerly through the valley and into which drain the waters from higher forest
lands on the east and west.
The usual plat was an exhibit in the case. It indicates this section of the public range as
running approximately 35 miles north and south and 12 to 15 miles east and west. The index
to the transcript shows that fifteen witnesses testified, and the transcript itself comprises
almost 400 pages of testimony. Exhibits included some nine stock watering right certificates
and a number of deeds. Appellants' opening brief lists nine persons who grazed their stock
on the range as the common predecessors of appellants and respondent in watering and
ranging cattle.
grazed their stock on the range as the common predecessors of appellants and respondent in
watering and ranging cattle. The opening brief likewise lists the witnesses who testified to
what appellants define as the following subject matters: (a) location and formation of the
Belmont or Ralston-Rye Patch Wash; (b) the ranging and watering of cattle by the parties and
their predecessors in Ralston Valley; (c) the friction between the cattle and sheep owners; (d)
the first grazing of sheep (other than the Potts sheep) in Ralston Valley; (e) the manner of the
operation of livestock by various parties; (f) the grazing of sheep by sundry predecessors on
the west side of the valley; (g) the proposition that cattle and sheep cannot operate
successfully upon the same range.
Respondent's memorandum refers to the testimony of numerous witnesses asserted to
establish the open, notorious, continuous, peaceable use of the range by respondent and his
predecessors to such extent as amply to support the findings and judgment. Both parties
discuss at length the ownership of the stock watering rights in the range area, and the nature
of the use made thereof.
The foregoing picture, brief though it is, gives some idea to courts familiar with cases of
this kind of the general nature and scope of the testimony adduced. Yet appellants, while
recognizing the rule that we cannot pass on the sufficiency of the evidence, insist that a search
of the entire record will reveal that there is no evidence to support the trial court's findings,
and that for such purpose they may refer to, and the court may consider, the transcript of
evidence. Appellants' assignments of error indicate how far the application of the Sweet rule
would inevitably carry us. We cite only some examples of this.
The trial court found that in 1937 the predecessors of the parties had agreed upon a
division of the use of the range. Appellants do not assert that there is no evidence of such
agreement, but contend that it is not binding upon them because certain of their predecessors,
users of parts of the range involved, were not parties to it.
of parts of the range involved, were not parties to it. So we are necessarily led to a
consideration of all the evidence establishing the range rights of the several predecessors of
appellants to ascertain whether their being parties to the agreement was necessary to its
effectiveness.
1

Appellants contend that failure of respondent's predecessors to contest the stock watering
application of appellants and their predecessors in the years 1944 and 1946 for Trudgen Well,
Blair Well and Chance Well established as a matter of law that respondent was precluded by
the terms of the 1925 stock watering law from any grazing rights within a radius of three
miles from any of these wells. But this involves a consideration of whether the evidence
shows that appellants watered sufficient numbers of livestock at these watering places to
utilize substantially all that portion of the public range readily available to livestock watering
at that place (Stock Watering Act of 1925, sec. 2, sec. 7980, N.C.L.1929), and whether there
might be any substantial interference with or impairment of existing rights (id.). Further
necessary investigations of the evidence suggest themselves by the issue raised, but we shall
not pursue them.
Appellants contend that the trial court erred in refusing to recognize their grazing rights
under the 1931 grazing law growing out of their customary and established use. But this
entails a consideration of the evidence to determine whether appellants had "become
established" in such use "by operation of law or under and in accordance with the
customs of the graziers of the region involved," and whether such use was "continuous,
open, notorious, peaceable and public," and whether it continued "seasonably for a period
of five years" prior to March 30, 1931 {Grazing Act of 1931, sec.
____________________

1
With reference to the agreement itself, the written opinion of the learned district judge says: The evidence
shows that, from the time of the conversation referred to, the graziers of the valley, including the Trudgens,
Marsh and the United Company and their successors, adapted their grazing use, respectively, in conformity with
the understanding referred to, the sheep using the area to the west of the wash and the cattle to the east, allowing
for cattle drift to the west. Later, after describing in some detail the use of the range and water rights made by
the parties and their predecessors, the learned judge continued: The use, as herein described, has been
acquiesced in by all persons concerned from the beginning of the practice referred to in or about 1937 until the
controversy involved in this suit.
evidence to determine whether appellants had become established in such use by operation
of law or under and in accordance with the customs of the graziers of the region involved,
and whether such use was continuous, open, notorious, peaceable and public, and whether
it continued seasonably for a period of five years prior to March 30, 1931 (Grazing Act of
1931, sec. 1, sec. 5581 N.C.L.1931-1941 Supp.), and whether there were any valid rights or
priorities existing in others, which under the terms of the act could not be modified or
compromised by its provisions (id., sec. 7, sec. 5581.06, N.C.L.1931-1941 Supp.). Again the
contention suggests further necessary consideration of other evidence and again we refrain
from further enlargement.
Error is asserted in the court's finding that respondent had established his ownership of the
waters of Henry's Well. But it is conceded that the well was dug by respondent's
predecessor in 1933. Many factual considerations would determine the validity and extent of
the stock watering rights resulting therefrom.
It is said too that the court erroneously gave effect to respondent's hauling of water in tank
trucks from Henry's Well to various points on the range to water his sheep from tanks or
troughs, thus greatly extending the range rights awarded respondent. If so, we do not find it
reflected in the judgment or any of the findings, but again the contention indicates how far the
rule in the Sweet case carries us in investigation of the question as to whether there is any
evidence to sustain the findings. It is also asserted that a division of the range made by the
trial court was declared to be beyond its power in Itcaina v. Marble, 56 Nev. 420, 55 P.2d
625, 626. We avoid a discussion of the three opinions in that case necessary to a full
consideration of the point raised, and satisfy ourselves with the observation that the effect of
the trial court's findings and judgment was simply to grant in part and to deny in part the
injunction sought by appellants and respondent, respectively.
by appellants and respondent, respectively. If appellants insist that this was in effect a
division of the range, then every decree in a proceeding of this nature would in a sense
divide the range, unless all of the grazing and stock watering rights were found to be in one of
the parties. It is in any event evident how far we should be led by the rule of the Sweet case
upon this assignment of error.
All of the foregoing examples illustrate the lengths to which the natural and necessary
implications of the rule in Sweet v. Sweet carry us. It would have been a simpler matter, and
certainly less of a burden upon the court, to perpetuate the rule (adopted in a single sentence
without citation of authority or reason), to thumb through the transcript, and fasten upon
some bit of testimony by one of respondent's predecessors indicating such exclusive use of
the range by cattle as to furnish some evidence supporting the findings. In this we should be
following Benson's Estate and Richards v. Steele. We have not felt ourselves justified in
pursuing such course.
It is said that if we do not examine the transcript to determine whether there is any
evidence to sustain the findings, we are departing from our avowed purpose to determine
cases upon the merits wherever possible. This situation, however, resulted from our being
compelled to dismiss the appeal from the order denying a new trial for lack of statutory
undertaking on such appeal. Nor do we feel that the rejection, at this stage of the proceedings,
of the rule advanced in Sweet v. Sweet is one that works harshly or prejudicially upon the
appellants. Our adherence in Jensen v. Reno Central Trades & Labor Council, 68 Nev._____,
229 P.2d 908, to the rule of stare decisis was for the protection of rights that could and did
accrue out of reliance on rules of law theretofore enunciated by this court. The reversing of a
procedural rule, such as the one involved here, is attended by no such effect. The careful and
painstaking review of the facts by the trial judge, as well as briefs and the oral arguments
of counsel, leave us in no doubt but that a perpetuation in this case of the "no evidence"
rule would simply leave us in the lap of the "conflicting evidence" rule, under which the
findings would not be disturbed.
facts by the trial judge, as well as briefs and the oral arguments of counsel, leave us in no
doubt but that a perpetuation in this case of the no evidence rule would simply leave us in
the lap of the conflicting evidence rule, under which the findings would not be disturbed.
Sweet v. Sweet is hereby expressly overruled, insofar as it holds that, upon an appeal from the
judgment alone this court may examine the evidence to determine whether there is any
evidence to support the judgment.
It is not contended that any error appears from the judgment roll in itself or as in any way
modified or affected by anything appearing in the transcript of the proceedings.
The judgment is hereby affirmed with costs.
____________
68 Nev. 69, 69 (1951) Underhill v. Anciaux
EDWARD O. UNDERHILL, MARION L. UNDERHILL, BYRON DeFORREST
UNDERHILL, and THOMAS H. UNDERHILL, Copartners, Doing Business Under the
Fictitious Name and Style of COCA COLA BOTTLING COMPANY, Defendants and
Appellants, v. JOANNE ANCIAUX, a Married Woman, Plaintiff and Respondent.
No. 3615
January 30, 1951. 226 P.2d 794.
department No. 2.
Action by Joanne Anciaux, a married woman, against Edward O. Underhill and others,
copartners, doing business under the fictitious name and style of Coca Cola Bottling
Company for damages resulting from alleged consumption of a bottled soft drink containing
foreign matter. From a judgment for plaintiff defendants appealed. The supreme court,
Merrill, J., held that evidence supported application of doctrine of res ipsa loquitur and
sustained a finding of negligence on the part of the defendants.
appealed. The supreme court, Merrill, J., held that evidence supported application of doctrine
of res ipsa loquitur and sustained a finding of negligence on the part of the defendants.
Judgment affirmed.
Morse & Graves, of Las Vegas, for Appellants.
Lewis, Hawkins & Cannon, of Las Vegas, for Respondent.
1. Food.
Manufacturers and bottlers of beverages are liable to consumers for injuries resulting from fact that
beverage was unfit for human consumption because of negligence of manufacturer or bottler, even though
consumer may have purchased from an intermediate dealer and no privity of contract exists between
litigants.
2. Food.
Consumer's suit against bottler of beverage for damages resulting from drinking bottled beverage
containing foreign substance was a proper one for application of theory of negligence together with
doctrine of res ipsa loquitur.
3. Food.
In action against bottler for damages resulting from consumption of bottled beverage containing foreign
substance, whether there was a reasonable opportunity to tamper with beverage after bottling existed was a
question of fact.
In action by consumer against bottler for injuries sustained due to consumption of bottled beverage
containing foreign substance, it was not necessary that consumer eliminate every remote possibility of
injury to bottle after bottler lost control, and requirement was satisfied if there was evidence permitting a
reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully
handled by consumer or any third person who may have moved or touched it and if such evidence was
presented, question was one for trier of fact.
5. Food.
containing foreign matter, where manager of store from which bottle was bought testified that while
beverage cases were not constantly under his own eye they were so stored that at all times they were
observable to store employees and that he was positive substitution could not occur, although manager's
opinion did not compel acceptance, in conjunction with his factual testimony it presented evidence
from which trial court could have found no reasonable opportunity for tampering to
exist and supported application of doctrine of res ipsa loquitur and a finding of
negligence on part of bottlers.
it presented evidence from which trial court could have found no reasonable opportunity for tampering to
exist and supported application of doctrine of res ipsa loquitur and a finding of negligence on part of
bottlers.
6. Food.
Where consumer drank from a bottle of beverage, bottled by defendants, and foreign matter was
contained in bottle, and consumer was rendered immediately ill and her illness became prolonged over a
substantial period of time and developed in gravity to a point requiring medical attention, medication and
hospitalization, positive proof that consumer's illness was caused by harmful qualities of foreign matter was
not required.
7. Food.
containing foreign matter, evidence sustained finding that consumer's illness was result of drinking contents
of bottle.
8. Food.
containing foreign matter, evidence sustained finding that consumer was not guilty of contributory
negligence in drinking from bottle.
9. Husband and Wife.
Where bottled beverage consumed by plaintiff containing foreign matter which allegedly resulted in
plaintiff's illness was purchased by plaintiff and her husband with community funds and plaintiff asserted
negligence of bottlers and breach of implied warranty that beverage was wholesome and fit for immediate
human consumption, but action proceeded only on theory of negligence, plaintiff's husband was not a
necessary party to the action. N.C.L.1931-1941 Supp., sec. 8546.
The right of a wife to recover for personal injuries is not a community right but her separate property.
11. Jury.
Where at time of trial setting, court inquired of counsel for defendants whether a jury was desired and
court was answered in negative and plaintiff demanded a jury trial and at time of trial, after selection of
jury had commenced, plaintiff waived her right to a jury trial defendants had not relied on plaintiff's
demand for jury trial, and their waiver was express and not merely tacit and refusal to set aside defendant's
waiver of jury trial was proper. N.C.L.1929, sec. 8782.
12. Jury.
Statutory provisions relative to waiver of jury trial are constitutional and it is properly within discretion
of the trial court to refuse to set aside a waiver. N.C.L.1929, sec. 8782.
Where on hearing of defendant's motion for new trial, their counsel orally objected to lack of
findings of fact but no application for specific findings was ever made, in absence of
application to court for addition to or modification of findings and written notice to
plaintiff as required by statute, defendants' mere objection to trial court, even when
made in writing, was insufficient to support an exception and want of findings could
not be asserted in supreme court. N.C.L.1931-1941 Supp., secs.
counsel orally objected to lack of findings of fact but no application for specific findings was ever made, in
absence of application to court for addition to or modification of findings and written notice to plaintiff as
required by statute, defendants' mere objection to trial court, even when made in writing, was insufficient to
support an exception and want of findings could not be asserted in supreme court. N.C.L.1931-1941 Supp.,
secs. 8783, 8784, 9385.65.
In action by consumer against bottlers for injuries sustained due to consumption of bottled beverage
containing foreign matter, where case was tried to court without a jury and defendants' objection to
questions asked of defendants' witness by plaintiff's counsel regarding notification defendants had received
regarding other bottles of beverage containing foreign matter, was sustained, supreme court, in absence of
any indication to contrary, would indulge in presumption that trial court, in proper performance of its
duties, disregarded any inference which might have been drawn from questions.
OPINION
By the Court, Merrill, J.:
This is an appeal from judgment of the Eighth judicial district court of the State of Nevada
in and for the county of Clark, in favor of respondent, plaintiff below, in the sum of $798 plus
costs, and from order denying motion for new trial.
The evidence and pleadings disclose the following facts:
Appellants (defendants below) are engaged in the business of manufacturing, bottling and
wholesale-selling of Coca Cola. Respondent and her husband, on April 18, 1948, bought a
case of Coca Cola at a store which, in turn, bought the beverage exclusively from appellants.
Respondent placed a supply of the bottles in her refrigerator.
On April 20 respondent and her husband returned from a ride about nine p. m., passed
through their lighted living room into the darkened kitchen, took two bottles of Coca Cola
from the refrigerator, opened them, sat at the kitchen table and, by the light from the
adjoining room, commenced to drink direct from the bottles.
bottles. After two or three large swallows from her bottle, respondent noticed an unnatural
taste, became aware of foreign substance in her throat and on her tongue and retched. She
turned on the light in the kitchen, went to the sink and, in the presence of her husband, with
her fingers and handkerchief removed black, slimy matter from her mouth and scrubbed her
tongue. She then became nauseated, ran to the bathroom and vomited. Her husband followed.
They returned to the kitchen and, in the light, examined the respondent's bottle, noting foreign
matter. The bottle, with its remaining contents, was plugged with a rubber stopper and placed
in the refrigerator.
Respondent continued nauseated the remainder of that night and for the following several
days and unable to retain anything on her stomach. On the fourth day following the drinking
of the beverage, abdominal pains were felt in addition to the continuing nausea. Respondent
then consulted a doctor who diagnosed her case as one of gastroenteritis and prescribed
suppositories for sedative effect and sulphadiazine to combat the gastroenteritis. Two days
later, her condition still unimproved, she was hospitalized for two days upon her doctor's
orders and he at that time prescribed penicillin and streptomycin shots, B-complex injection,
to build up her appetite and demerol in small doses before meals so that she would retain her
food better. It was a matter of three weeks or so before she was able to do any substantial
housework. At the time of the trial, months later, she had still not regained her former weight.
The contents of the bottle were never analyzed. Application by appellants for inspection
and analysis of the bottle, preceded the trial, but was denied upon respondent's contention,
supported by affidavit, that the remaining contents were insufficient in quantity to make an
analysis and have sufficient of the contents left for use as an exhibit at the time of the trial.
The case was tried before the court without a jury.
[Headnote 1]
It is now well recognized that manufacturers and bottlers of beverages are liable to
consumers for injuries resulting from the fact that the beverage was unfit for human
consumption because of the negligence of the manufacturer or bottler. This is true even where
the consumer may have purchased from an intermediate dealer and no privity of contract
therefore existed between the litigants.
The theory upon which recovery is based is not, however, subject to the same extent of
agreement. Most courts rely upon negligence in an extension of the rule applicable to sale of
articles inherently dangerous in character. The doctrine of res ipsa loquitur is frequently
called upon for assistance in cases where the manufacturing or bottling mechanism was under
exclusive control of defendant. Some authorities rely upon breach of implied warranty,
although many reject this theory of recovery in absence of privity of contract. Other
authorities appear to rely upon a combination of both warranty and negligence without
distinguishing clearly between the two.
The extent of authority upon the subject generally and in its many ramifications is
overwhelming and no purpose can here be served by an extensive reference. In lieu of further
specific citations the following A.L.R. annotations are given: 17 A.L.R. 696; 39 A.L.R. 997;
63 A.L.R. 345; 88 A.L.R. 532; 105 A.L.R. 1507; 111 A.L.R. 1244; 140 A.L.R. 218; 142
A.L.R. 1491.
There can be no question as to the general trend toward granting of recovery. The extreme
was, perhaps, reached in a concurring opinion by Traynor, J., in Escola v. Coca Cola Bottling
Company of Fresno, 1944, 24 Cal.2d 453, 150 P.2d 436, 440, where he, in substance,
advocated absolute liability in the manufacturer. I concur in the judgment, but I believe the
manufacturer's negligence should no longer be singled out as the basis of a plaintiff's right to
recover in cases like the present one.
one. In my opinion it should now be recognized that a manufacturer incurs an absolute
liability when an article that he has placed on the market, knowing that it is to be used
without inspection, proves to have a defect that causes injury to human beings. * * * Even if
there is no negligence, however, public policy demands that responsibility be fixed wherever
it will most effectively reduce the hazards to life and health inherent in defective products
that reach the market.
[Headnote 2]
The case before us, however, does not justify reliance upon such an extreme view. It
appears to be one for application of the theory of negligence together with the doctrine of res
ipsa loquitur and was so treated in the decision of the lower court.
Appellants first contend that the doctrine of res ipsa loquitur may not apply under the facts
of the instant case, where the sealed package involved was a bottle whose sealing might
have been removed and replaced without detection; that since the record is devoid of any
evidence directly showing negligence on the part of appellants, respondent may not recover.
As support for this contention appellants rely on the recent case of Jordan v. Coca Cola
Bottling Co. of Utah, Utah, 218 P.2d 660, 664, where it is said: Whereas the almost
inescapable conclusion to be drawn from the existence of a deleterious substance in a can
which has remained sealed prior to being opened by the ultimate consumer, is that such
substance must necessarily have been in the can at the time it was sealed, no such conclusion
is required where the sealing is such that it can be removed and replaced without detection.
Particularly is this true, where there is shown to be opportunity for tampering. In other words,
the only time that the doctrine of res ipsa loquitur should apply to a sealed product' in the
latter category, is when the plaintiff has shown that there was an absence of opportunity for
tampering so that in effect the court could conclude that there was extended control over the
product by the manufacturer until it reached the ultimate consumer, or where the product
passes directly from the manufacturer to the consumer without passing through
intermediate hands."
until it reached the ultimate consumer, or where the product passes directly from the
manufacturer to the consumer without passing through intermediate hands.
[Headnote 3]
Clearly, however, opportunity for tampering must be read as reasonable opportunity.
The question remains one of fact.
[Headnote 4]
As was said by the court in Escola v. Coca Cola Bottling Company of Fresno, supra, It is
not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle
after defendant lost control, and the requirement is satisfied if there is evidence permitting a
reasonable inference that it was not accessible to extraneous harmful forces and that it was
carefully handled by plaintiff or any third person who may have moved or touched it. * * * If
such evidence is presented, the question becomes one for the trier of fact * * *.
In the Jordan case there was greater opportunity for tampering than existed here. As the
court there stated the facts: George Walker, driver of the Coca Cola truck, testifying on
cross-examination indicated that at various times when he had been filling the vending
machine at the American Smelting and Refining Company plant, men at the plant had come
to him with warm bottles of Coca Cola and asked him to exchange them for cold, and that he
had made such exchanges, and loaded the warm Coca Colas in the vending machine. Where
these warm bottles came from he did not know.
Further, the court points out: Factories and manufacturing plants where many men are
thrown together, are noted for the horseplay and practical joking which there takes place,
often with serious results.
[Headnote 5]
In the case at bar the manager of the store from which the bottle was bought was closely
examined as to opportunity for tampering. He testified that while the Coca Cola cases were
not constantly under his own eye, they were so stored that at all times they were
observable to store employees.
they were so stored that at all times they were observable to store employees. On
cross-examination he stated that, under the facts, he was positive substitution could not occur.
While such an opinion certainly does not compel acceptance, still in conjunction with the
factual testimony of the witness it does present evidence from which the court may well have
found no reasonable opportunity for tampering to exist.
It is accordingly held that there is evidence which will support the application of the
doctrine of res ipsa loquitur and, accordingly, a finding of negligence on the part of
appellants.
Appellants next contend that, inasmuch as no analysis was made of the contents of the
bottle or of the contents of respondent's stomach or of her stool, there was no direct testimony
to the effect that her illness was caused by the drinking of the contents of the bottle and that
the basis for the judgment of the lower court was, therefore, pure conjecture and surmise.
[Headnote 6]
It is clear that respondent drank from a bottle of Coca Cola; that foreign matter was
contained in the bottle; that she was rendered immediately ill; that her illness became
prolonged over a substantial period of time and developed in gravity to a point requiring
medical attention, medication and hospitalization. Of these facts there can be no doubt
whatsoever. The only link in the factual chain which may be said to be missing, is positive
proof through analyses that respondent's illness, not only in its immediate nauseous stage but
in its more prolonged stage as well, was caused by harmful qualities of the foreign matter.
It may be granted that in many cases where the foreign matter was imperceptible and cases
where, although perceptible, it still was not of a character designed to shock the sensibilities
of the consumer, such connection has been required. Under the facts of the case before us,
however, no such connection is necessary.
In Medeiros v. Coca Cola Bottling Co. of Turlock, Ltd., 57 Cal.App.2d 707, 135 P.2d
676, 6S0, plaintiff drank from a bottle containing a cleaning brush.
57 Cal.App.2d 707, 135 P.2d 676, 680, plaintiff drank from a bottle containing a cleaning
brush. In allowing recovery the court stated, Defendant's contention seems to be that
however noisome and disgusting a foreign object found in a beverage may be or appear, the
manufacturer of such object cannot be held liable for negligence in permitting such object to
be in his product unless the contents of the bottle are themselves rendered unfit for human
consumption; and that regardless of the effect of the finding of such object in a bottle from
which he has drunk, a party cannot recover damages for sickness resulting therefrom, unless
he is actually poisoned or otherwise injuriously affected by the drink itself. We think that a
court may well take judicial notice that even a normal person in seeing a disgusting looking
object in a bottle from which he has just drunk may and often will suffer intense nausea
which may produce more serious results. Also one may recover for injury resulting from
mental shock in such cases. * * *. To the same effect: Dryden v. Continental Baking Co., 11
Cal.2d 33, 77 P.2d 833; Coca Cola Bottling Co. of Fort Worth v. Burgess, Tex.Civ.App., 195
S.W.2d 379.
The opinion in the Medeiros case reviews other authorities granting recovery
notwithstanding absence of proof that the foreign substance present in each case was, in fact,
poisonous or chemically harmful. The cases collectively present a most unappetizing
assortment of objects including: a metal object having the appearance of a corroded paper clip
covered with greenish substance; a decomposed cockroach; a medicated finger bandage of
gauze impregnated with some drug; a moldy substance, spongy and soft.
To this legion of distaste the foreign matter in the case at bar might well be added. There
can be no question but that it was highly disgusting to the respondent. It is described in the
testimony of three witnesses who observed it the evening of its discovery or the following
day: respondent herself, her husband and her next-door neighbor.
day: respondent herself, her husband and her next-door neighbor. It is consistently
characterized as slimy. Respondent states, * * * It was kind of slimy. It was black and it
looked like it might have been a bug or something.
The neighbor, with a fine sense of detail stated, The slime stuck on the bottle; it was a
greenish color and it was moving in there.
Clearly the force of impact of the image rendered it a memorable one.
Nor is it necessary here to rely upon judicial notice to establish the possibility of illness
under the circumstances. Expert testimony from appellants' own witness, Doctor Hardy,
established three causes for gastroenteritis: bacteria contamination, irritation from poison, and
psychogenesis. Under cross-examination he explained the last of these included illness caused
by force of imagination. The testimony included the following:
Q. Well if it did taste badly and look sickening and disgusting, could it make a person ill?
A. Yes.
Q. That would be an actual physical illness, wouldn't it? A. Yes.
[Headnote 7]
Under the facts and the law it is held that there was a sufficiency of evidence to justify the
determination of the lower court that respondent's illness was the result of her drinking the
contents of the bottle.
[Headnote 8]
Appellants next contend that respondent was guilty of contributory negligence in drinking
from the bottle after she had noticed that something was in it. The evidence is in conflict as to
her awareness of the existence of foreign matter. The absence of direct light in the kitchen
would in itself cast considerable doubt. In any event, this was a question of fact for the trial
court. Its failure to find contributory negligence will not here be disturbed. Dryden v.
Continental Baking Co., supra.
[Headnote 9]
In her complaint respondent asserts not only negligence of appellants but breach of an
implied warranty that the Coca Cola was wholesome and fit for immediate human
consumption. It is alleged in the complaint and established without dispute that the Coca Cola
was purchased with community funds. Appellants contend that under these circumstances
respondent's husband was a necessary party plaintiff.
Sec. 8546, N.C.L.1931 Supp., provides in part, When a married woman is a party, her
husband must be joined with her, except * * * When the action concerns her separate
property * * *.
[Headnote 10]
This court has held, Fredrickson & Watson Construction Co. v. Boyd, 60 Nev. 117, 102
P.2d 627; Los Angeles & S. L. R.R. v. Umbaugh, 61 Nev. 214, 123 P.2d 224, that the right of
a wife to recovery for personal injuries is not a community right but her separate property.
Since we are here proceeding on the theory of negligence, we need not consider whether a
right to recover damages for breach of warranty would constitute community property.
Clearly, the instant case falls within the statutory exception.
Appellants next contend that they were wrongfully precluded from trial by jury. At the
time of trial setting, respondent demanded a jury trial. No demand was made by appellants.
At the time of the trial, after selection of the jury had commenced, respondent waived her
right to a jury trial. Appellants at that time objected to the trial proceeding without a jury. The
objection was overruled upon the ground that appellants had waived their right to jury trial.
Sec. 8782, N.C.L.1929, provides in part as follows:
Trial by jury may be waived by the several parties to an issue of fact in actions arising on
contract, or for the recovery of specific real or personal property, with or without damages,
and with the assent of the court in other actions, in the manner following: "1. {a) If a party
or his attorney is present at the setting of the cause for trial or has notice thereof, then by
failing to demand a trial by jury at or before such setting."
1. (a) If a party or his attorney is present at the setting of the cause for trial or has notice
thereof, then by failing to demand a trial by jury at or before such setting.
Appellants contend that once a jury has been demanded by either party it may not be
dispensed with save by consent of all parties. In support, appellants cite Sherwood v. N. Y.
Telephone Co., 46 Misc. 102, 91 N.Y.S. 387; Przybyla v. Chain Belt Co., 1914, 157 Wis.
216, 147 N.W. 31; State v. Rosecliff Realty Co., 1948, 1 N.J. Super. 94, 62 A.2d 488; Stukey
v. Stephens, 1931, 37 Ariz. 514, 295 P. 973. These cases, however, all deal with a situation
where the nondemanding parties in failing to make demand of their own, relied (or might be
assumed to have relied) upon the demand made by the opposing party. Such is not the case
here.
[Headnote 11]
The record here shows that, at the time of trial setting, the court inquired of counsel for
appellants whether a jury was desired and was answered in the negative. Appellants clearly
did not rely upon respondent's demand. Their waiver was express and not merely tacit.
[Headnote 12]
The law of this state is clear that the statutory provisions relative to waiver of jury trial are
constitutional and that it is properly within the discretion of the trial court to refuse to set
aside a waiver. Kohlsaat v. Kohlsaat, 62 Nev. 485, 155 P.2d 474; De Remer v. Anderson, 41
Nev. 287, 288, 169 P. 737, 25 A.L.R. 775; O'Banion v. Simpson, 44 Nev. 188, 191 P. 1083.
The trial court, accordingly, was not in error.
Appellants next contend that while the trial court did file a written decision, this decision
did not constitute findings of fact; that accordingly no findings of fact were made; that
findings were not waived; that failure to make findings constituted reversible error.
Secs. 8783 and 8784, N.C.L.1931 Supp., deal with the requirement for findings of fact:
Sec. 8783. 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."
court, its decision must be given within thirty days after the cause is submitted for decision.
Sec. 8784. Findings of fact may be waived by the several parties to an issue of fact.
1. By failing to appear at the trial.
2. By consent in writing, filed with the clerk.
3. By oral consent, in open court, entered in the minutes.
In all cases where the court directs a party to prepare findings, a copy of said proposed
findings shall be served upon all the parties who have appeared in the action at least five days
before findings shall be signed by the court, and the court shall not sign any findings therein
prior to the expiration of such five days.
The court may, however, at any time before said findings are signed, add to or modify the
findings in any respect so as to make the same conform to the issues presented by the
pleadings and to the evidence adduced at the trial. No such additions to, or modifications of,
the findings shall be made unless a notice in writing specifying generally the additions or
modifications desired shall have been served on the adverse party or his attorney of record.
The record shows that on hearing of appellants' motion for new trial, their counsel orally
objected to lack of findings of fact. The record does not disclose that any application for
specific findings ever was made. Sec. 9385.65, N.C.L.1931 Supp., provides: In cases tried
by the court, without a jury, no judgment shall be reversed for want of a finding, or for a
defective finding of the facts, unless exceptions be made in the court below to the finding or
to the want of a finding after application to the court for additions to or modification of the
findings with notice given to the adverse party as prescribed in * * * section 8784 Nevada
Compiled Laws 1929, volume 4, approved February 20, 1931. Upon failure of the court on
such application to remedy the alleged error, the party moving shall be entitled to his
exceptions.
[Headnote 13]
In the absence of application and written notice as is provided, the mere objection to the
lower court, even when made in writing, is insufficient to support an exception. Richards v.
Steele, 60 Nev. 66, 99 P.2d 641, 100 P.2d 72.
While the procedural provisions of sec. 8784 appear to apply to those cases where the
court has directed party preparation of findings, the broad language of sec. 9385.65 clearly
directs that such procedure must likewise be followed in cases where there is a complete lack
of formal findings. Accordingly, want of findings may not here be asserted.
Finally appellants contend that respondent's counsel was guilty of misconduct in
propounding certain questions to a witness over rulings of the court. The questions were as
follows: Mr. Underhill, during any of the period of time after April 1, 1948 and before
November 1, 1948, were you ever notified that a bottle of Coca Cola sold to Lucey's
Restaurant here had a cigar butt in one of the bottles?
An objection to this question was sustained. Counsel then asked: Mr. Underhill, I will ask
you whether or not at any time after April 1, 1948, you were notified by the Tower Club of
North Las Vegas that they had found foreign substances in one of your bottles? Objection to
this question, likewise, was sustained.
[Headnote 14]
This being a case before the court without a jury, we must, in the absence of any indication
to the contrary, indulge in the presumption that the trial court, in proper performance of its
duties, disregarded any inference which might have been drawn from the questions. There
was no indication from the court's decision that it was, in the slightest, affected by any such
inference.
The judgment and order denying new trial are affirmed with costs.
Badt, C. J., and Eather, J., concur.
____________
68 Nev. 84, 84 (1951) McLaughlin v. Las Vegas Housing Auth.
THOMAS J. McLAUGHLIN, On behalf of Himself and All Others Similarly Situated,
Plaintiff and Appellant, v. THE HOUSING AUTHORITY OF THE CITY OF LAS VEGAS
and THE CITY OF LAS VEGAS, NEVADA, Defendants and Respondents.
No. 3642
January 31, 1951. 227 P.2d 206.
department No. 1.
Action by Thomas J. McLaughlin, on behalf of himself and all others similarly situated,
against the Housing Authority of the City of Las Vegas and the City of Las Vegas, Nevada, to
enjoin defendants from proceeding with proposed housing project under Housing Authorities
Law, N.C.L.1943-1949 Supp., secs. 5470.01 to 5470.25. From a judgment dismissing the
action plaintiff appealed. The Supreme Court, Badt, C. J., held that the Housing Authorities
Law does not in any respect violate or contravene any provision of the State or Federal
Constitutions.
Judgment affirmed.
Bryan & Cory, of Las Vegas, for Appellant.
Earl & Earl and Howard W. Cannon, all of Las Vegas, for Respondents.
1. Courts.
Decisions of highest courts of other jurisdictions, upholding legislation similar to Nevada housing
authorities law under constitutional provisions similar in principal to those of Nevada, are of controlling
effect in determining constitutionality of Nevada law. N.C.L.1943-1949 Supp., secs. 5470.01 to 5470.25.
2. Constitutional Law.
Whether housing authorities law is for a public purpose is primarily a question for the legislature, and
supreme court will not interfere with legislative finding to such effect unless it is clearly wrong.
N.C.L.1943-1949 Supp., secs. 5470.01 to 5470.25.
Declaration of policy by the legislature, though not necessarily binding or controlling upon the courts, is
entitled to great weight, and it is neither the duty nor province of courts to interfere in such legislative
finding unless it clearly appears to be erroneous and without reasonable foundation.
4. Constitutional Law; Eminent Domain; Municipal Corporations; Taxation.
City housing authority created under housing authorities law for development of low-rent housing and
slum clearance projects is a municipal corporation created for a public, governmental purpose, and
hence vesting such authority with right of eminent domain and exempting its property from taxation, do not
violate any constitutional provisions, and its housing activities will not deprive a resident taxpayer and
owner of realty of property without due process of law. N.C.L.1943-1949 Supp., secs. 5470.01 to 5470.25,
5470.03, 5470.07, 5470.09; N.C.L.1929, sec. 6418; United States housing act of 1937, secs. 1-30, as
amended, 42 U.S.C.A., secs. 1401-1430; Const. art. 8, sec. 2; art. 10, sec. 1.
5. Municipal Corporations.
The housing authorities law which specifies that city shall not be liable for bonds issued by local housing
authority and that such bonds shall not be payable out of any funds or property other than those of the
authority is not unconstitutional on ground that revenue bonds which local housing authorities are
authorized to issue will be a financial burden upon city and a charge upon its tax funds. N.C.L.1943-1949
Supp., secs. 5470.01 to 5470.25, 5470.12 to 5470.15; Const. art. 8, sec. 10.
6. Taxation.
Provisions of cooperation agreement between local housing authority and city by which the authority
agreed to pay city a portion of shelter rents of housing project in lieu of taxes does not violate
constitutional provisions requiring uniform and equal rate of assessment and taxation, since property of
housing authority is exempt from taxation. N.C.L.1943-1949 Supp., secs. 5470.01 to 5470.25, 5470.11;
N.C.L.1929, sec. 6418; Const. art. 8, sec. 2; art. 10, sec. 1.
Provisions of agreement between local housing authority and city whereby city agreed to eliminate unsafe
and unsanitary dwelling units not less in number than the number of new units contemplated constitute
merely an agreement of city to exercise a power it already has in such a manner as to cooperate in the use
of such functions and as such are valid and do not unlawfully bind future members of board of city
commissioners on a matter of a legislative and discretionary nature. N.C.L.1943-1949 Supp., secs. 5470.01
to 5470.25, 5470.19.
8. Constitutional Law; Municipal Corporations.
The housing authorities law is not unconstitutional as delegating legislative power to local housing
authority with respect to rentals to be fixed, etc., in view of the standards and limitations get forth in the
law. N.C.L.1943-1949 Supp., secs. 5470.01 to 5470.25, 5470.08.
9. Constitutional Law; Municipal Corporations.
The housing authorities law, providing for construction of low-rent housing accommodations for veterans
and other persons of low income, is not unconstitutional as granting special privileges to some individuals
and denying equal protection of the laws, since legislative classification is reasonable and is made
applicable to all members of the public falling within such classification. N.C.L.1943-1949 Supp., secs.
5470.01 to 5470.25, 5470.09, U.S.C.A. Const. Amend. 14.
A taxpayer who was not adversely affected by the situation could not question the validity of state
housing authorities law on ground that it required preference to be given to veterans of world war II only,
whereas amendment to federal housing act requires preference to be given veterans of both world wars.
N.C.L.1943-1949 Supp., secs. 5470.01 to 5470.25, 5470.09; United States housing act of 1937, secs. 1-30,
as amended, 42 U.S.C.A., secs. 1401-1430.
11. Statutes.
The housing authorities law does not violate constitutional provision that each law shall embrace but one
subject briefly expressed in the title. N.C.L.1943-1949 Supp., secs. 5470.01 to 5470.25; Const. art. 4,
sec. 17.
The housing authorities law does not in any respect violate or contravene any provision of the state or
federal constitutions. N.C.L.1943-1949 Supp., secs. 5470.01 to 5470.25.
OPINION
This appeal presents for our determination the constitutionality of the housing authorities
law. Nev.Stats. 1947, chap. 253, p. 782, being secs. 5470.01 to 5470.25,
N.C.L.Supp.1943-1949. Plaintiff, as a citizen, resident, taxpayer and owner of real estate in
the city of Las Vegas, Clark County, Nevada, brought the action on behalf of himself and all
others similarly situated, alleging that the housing authority of the city of Las Vegas and the
city of Las Vegas were about to proceed with a program for the construction of 100
dwelling units involving the borrowing of $900,000 to be secured by pledge of the
revenues derived from operating the project, etc., and to be repaid with the proceeds of
sale of self-liquidating bonds.
and the city of Las Vegas were about to proceed with a program for the construction of 100
dwelling units involving the borrowing of $900,000 to be secured by pledge of the revenues
derived from operating the project, etc., and to be repaid with the proceeds of sale of
self-liquidating bonds. Plaintiff alleged that in a number of respects the act was in
contravention of provisions of the state and federal constitutions. Issues were joined by the
answer of the defendants, and the district court thereafter rendered judgment dismissing the
proceedings. No matters of fact are in dispute, and the issues of law are clearly drawn. The
pleadings of the parties are tantamount to an agreed statement of facts. From them it appears
that the public housing administration, a federally owned corporation, is empowered under
the United States housing act of 1937, as amended, 42 U.S.C.A., secs. 1401-1430, to assist
financially local public housing authorities in the development and operation of low-rent
housing and slum clearance projects. Negotiations were had by the housing authority of Las
Vegas with the public housing administration under the provisions of the federal and state
housing acts, and these negotiations had at the time of the commencement of the action been
developed to a point whereunder the local housing authority had entered into what was
termed a cooperation agreement with the city, had likewise signed a preliminary loan
agreement with and a preliminary note to the public housing administration and had obtained
the approval of that administration for the construction of 100 dwelling units for a low-rent
and slum clearance project in the city. Plaintiffs do not attack the validity of the creation of
the Las Vegas housing authority by the state housing authorities law and the resolution of the
board of city commissioners. The pleadings contain a detailed description of the project,
which we do not find it necessary to follow.
Begun in 1937, activities and operations under the federal act have included the
construction of several hundred thousand low-rent dwelling units in many communities in
the United States.
hundred thousand low-rent dwelling units in many communities in the United States. By the
amendment of 1949, 81st Congress, public law 171, federal financial aid for the construction
of an additional 810,000 units was authorized. The Las Vegas program was a part of such
authorization. Under the terms of the federal act it was necessary for the several states to
enact legislation to set up the proper machinery to enable cities and towns to take advantage
of the program.
The provisions of the Nevada housing authorities law are in the main similar to those
enacted in between 30 and 40 other states in the Union. All have for their general purpose the
promotion of low-rent housing or slum clearance. The title of the Nevada act contains a
general recital of its purposes as being: An Act to provide for the creation of housing
authorities, providing for the appointment of commissioners of said authority, defining the
power of the authority, providing for the removal of commissioners, prescribing regulations
with respect to rentals and tenant admissions, authorizing the authority to issue bonds and
prescribing the manner of payment therefor, exempting certain property from execution sale,
authorizing the authority to borrow money or accept contributions from the federal
government, and other matters relating thereto. The preamble recites the acute shortage of
housing for veterans and other persons of low income, the overcrowding in urban and rural
areas, the shortage of safe and sanitary dwelling accommodations available at affordable
rents, the resulting increase in and spread of diseases and crime, with their menace to health,
safety, morals and the public welfare, the necessity for improvement, the inability of
obtaining relief without governmental assistance, etc. Sections 1 and 2 of the act are devoted
to definitions of the terms used. Section 3 creates in each city a public body corporate and
politic to be known as the housing authority thereof. Such housing authority is hereby
created a public body corporate for municipal purposes and shall be a municipal
corporation."
municipal purposes and shall be a municipal corporation. The section provides for the
adoption of certain resolutions by the city governing board, reciting certain conditions within
the city, etc. Section 7 emphasizes this: An authority shall constitute a public body corporate
and politic, exercising public and essential governmental functions, and having all the powers
necessary or convenient to carry out and effectuate the purposes and provisions of this act
* * *. This is followed by subsections (a) to (f), inclusive, defining in detail the powers
deemed to be included in the grant. These include broad powers for the acquisition of
property, the construction and renting of dwellings, borrowing of money, etc.
Section 8 declares it to be the policy of the state that the authority operate its projects in an
efficient manner so as to fix rentals at low rates consistent with its providing decent, safe
and sanitary dwelling accommodations for persons of low income, sufficient only to
maintain the project, to pay the interest and principal on its bonds, to create a necessary
reserve to pay its administrative expenses and to make such payments in lieu of taxes as it
determines are consistent with the maintenance of the low-rent character of the housing
projects. Section 9 requires the authority to lease the dwelling accommodations only to
veterans and other persons of low income, with preference to veterans and servicemen and
families of deceased persons who served in the armed forces, at rentals within the financial
reach of such persons. Further rules with respect to the intended lessees and the
accommodations to be furnished and the rentals to be charged are laid down. Section 11 reads
as follows: An authority shall agree to make such payments in lieu of taxes to the city, town,
county, and the state, or any political subdivision thereof, as it finds consistent with the
maintenance of the low-rent character of housing projects or the achievement of the purposes
of this act. Section 12 authorizes the issuance of bonds for any of the corporate purposes
of the authority.
of bonds for any of the corporate purposes of the authority. It then provides: Neither the
commissioners of an authority nor any person executing the bonds shall be liable personally
on the bonds by reason of the issuance thereof. The bonds and other obligations of an
authority (and such bonds and obligations shall so state on their face) shall not be a debt of
the city, the county, the state, or any political subdivision thereof, and neither the city, the
county, the state, nor any political subdivision thereof shall be liable thereon, nor in any event
shall such bonds or obligations be payable out of any funds or properties other than those of
said authority. The bonds shall not constitute an indebtedness within the meaning of any
constitutional or statutory debt limitation or restriction. Sections 13 and 14 are devoted to
provisions concerning the nature of the bonds, and the powers, duties and obligations of the
sundry parties. The rights of the obligees are further defined in section 15. Section 19
authorizes any state public body (in this case, the city of Las Vegas) to aid and cooperate in
the project by conveying and dedicating property, causing parks, playgrounds, recreational,
community, educational, water, sewer and drainage facilities, etc., to be furnished, installing
streets, causing services to be furnished of the character which such state public body is
otherwise empowered to furnish, enter into agreements relating to the repair, closing or
demolition of unsafe, insanitary or unfit buildings, purchase the bonds of the housing
authority, incur the entire expense of public improvements and enter into broad agreements
with the housing authority.
Section 20 authorizes the authority to borrow money and to accept grants, contributions
and other financial assistance of the federal government. Section 21 confers certain additional
powers and provides certain limitations as to rentals. Other sections of the act and other
provisions of the sections described do not require further amplification at this time.
[Headnote 1]
The plaintiff contends that the provisions of the state constitution are contravened by the
act in numerous particulars. Several of these particulars, and possibly the most important
ones, turn upon the question of whether the legislation is for a public use or purpose. Our
burden on all points raised is materially lightened by the consideration given by the courts of
last resort of over half the states in the Union to attacks upon their statutes almost identical
with those here made on the Nevada statute. There exist some differences in the sundry
statutes under construction in such courts, and naturally the constitutional provisions of the
other states are not in all respects identical with our own. However, both the statutes involved
and the constitutional provisions in question in those cases are so closely analogous to the
situation here presented and the holdings are so nearly unanimous that we cannot do
otherwise than to consider them controlling. Such being the case, no purpose can be served by
reconsidering and rearguing the conflicting purposes presented to us, even though the case is
of first impression in this state.
(1) It is first contended by appellant that the housing authority of the city of Las Vegas is
not a municipal corporation created for a municipal or governmental purpose; (a) that its
activities will deprive appellant of property without due process; (b) that its intended exercise
of the right of eminent domain will not be for a public use and purpose; and (c) that its
property is not exempt from taxation. Article VIII, section 2 of the constitution, N.C.L.1929,
sec. 132, provides for the taxation of all property provided, that the property of corporations
formed for municipal * * * purposes may be exempted by law. Article X, section 1, N.C.L.,
sec. 145, provides for uniform taxation, excepting such property as may be exempted by law
for municipal * * * purposes. Section 6418, N.C.L., provides that all property of every kind
and nature whatsoever, within this state, shall be subject to taxation except: "FirstAll
lands and other property owned by the state, or by the United States, or by any county,
incorporated farm bureau, municipal corporation," and certain other entities.
this state, shall be subject to taxation except: FirstAll lands and other property owned by
the state, or by the United States, or by any county, incorporated farm bureau, municipal
corporation, and certain other entities.
Appellant, conceding that the housing authorities law creates respondent as a public body
corporate for municipal purposes and a municipal corporation, contends that it does not
follow that the proposed project is a public use; that housing has no peculiar character; that
the rights and interest of the public are not involved; that the housing authority is accountable
only to itself; that it intends to take taxable property from the tax rolls and that only a select
group of individuals will be benefited; that the project has no connection with the health,
public safety, public morals or public welfare; that the project is virtually one of private
enterprise; that it will involve no public use; etc.
It definitely appears that, although certain additional points must be considered, virtually
all of the points of attack upon the statute inevitably turn upon the question as to whether or
not the ultimate result sought constitutes a public use or purpose. Spahn v. Stewart, 268 Ky.
97, 103 S.W.2d 651, 654. The issue of fundamental importance upon the determination of
which several of the lesser and incidental issues will turn, is whether slum clearance and
public housing projects for low-income families are public uses and purposes for which
public money may be expended and private property acquired. Housing Authority of County
of Los Angeles v. Dockweiler, 14 Cal.2d 437, 94 P.2d 794, 801.
[Headnotes 2, 3]
The provisions of the state act, in definite and positive terms, create the housing authority
as a public body, corporate and politic and as a municipal corporation for municipal purposes,
exercising public and essential governmental functions. Appellant insists, however, that it
does not follow that the functions authorized are of a municipal, public or governmental
nature and that the declarations contained in the statute are not binding upon the courts.
of a municipal, public or governmental nature and that the declarations contained in the
statute are not binding upon the courts. This may indeed be true, but the question of whether
the act is for a public purpose is primarily one for the legislature, and this court will not
interfere with the legislative finding unless the determination of that body is clearly wrong.
McNulty v. Owens, 188 S.C. 377, 199 S.E. 425. It has often been said that the declaration of
policy by the legislature, though not necessarily binding or conclusive upon the courts, is
entitled to great weight, and that it is neither the duty nor prerogative of the courts to interfere
in such legislative finding unless it clearly appears to be erroneous and without reasonable
foundation. Levy Leasing Co. v. Siegel, 258 U.S. 242, 42 S.Ct. 289, 66 L.Ed. 595; Block v.
Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165; New York City Housing
Authority v. Muller, 270 N.Y. 333, 1 N.E.2d 153, 105 A.L.R. 905. The conclusion in the
Dockweiler case, supra, was that the California housing authorities law for the purpose of
slum clearance and erection of low cost housing projects represented the exercise of a proper
governmental function for a valid public purpose.
[Headnote 4]
The cases are virtually unanimous as to the public, municipal, governmental nature of the
housing authority created by the act and as to the public purpose which is its objective. The
point need not be labored further. This being so, we must reject the contention of appellant
that the exemption from taxation of the property of the housing authority and the right of
eminent domain vested in the housing authority contravene any constitutional limitations
contained in either the state or the federal constitution. For a resum of these contentions and
their virtually unanimous rejection by the courts, see Rutherford v. City of Great Falls, 107
Mont. 512, 86 P.2d 656, and Humphrey v. City of Phoenix, 55 Ariz. 374, 102 P.2d 82. It also
disposes of the contention that the housing activities of the housing authority deprive
plaintiff of his property without due process.
that the housing activities of the housing authority deprive plaintiff of his property without
due process. See Schrader v. Third Judicial District Court, 58 Nev. 188, 73 P.2d 493.
[Headnote 5]
(2) It is next asserted that the revenue bonds authorized by the act to be issued by the
housing authority to finance the project will be a financial burden upon the city and a charge
upon its tax funds, in violation of article VIII, section 10 of the constitution, N.C.L., sec. 140,
which provides that no municipal corporation may loan its credit in aid of any joint stock
company, corporation or association, with certain exceptions not here applicable. As noted,
the act itself specifies that the city shall not be liable on the bonds of the authority and that
such bonds or obligations shall not be payable out of any funds or properties other than those
of the authority. That the contention made is not well taken is definitely settled in Housing
Authority of the County of Los Angeles v. Dockweiler, 14 Cal.2d 437, 94 P.2d 794, and the
many cases therein cited.
[Headnote 6]
(3) It is next contended that the provisions of the cooperation agreement between the
authority and the city wherein the authority agrees to pay the city a portion of the shelter rents
of the project in lieu of taxes contravene article X, section 1 of the constitution, being N.C.L.,
sec. 145, requiring a uniform and equal rate of assessment and taxation. The term in lieu of
taxes would appear to be unfortunately used. A similar term was stricken from the original
draft of the Boulder Dam revenue bill considered by us in Clark County v. State of Nevada,
65 Nev. 490, 199 P.2d 137, because of the United States attorney general's opinion that it
might imply that the Boulder Dam property belonging to the United States, was otherwise
subject to taxation. The contention growing out of the use of this term, however, was
specifically rejected (somewhat summarily perhaps) in Humphrey v. City of Phoenix, 55 Ariz.
374, 102 P.2d S2, S7, citing McNulty v. Owens, 1SS S.C. 377, 199 S.E. 425, after referring
to the obligation of the city to furnish municipal services to the authority, by the
statement: "A municipal corporation is so obligated and this provision in the contract is
merely an acknowledgment of the existing law on this point.
in Humphrey v. City of Phoenix, 55 Ariz. 374, 102 P.2d 82, 87, citing McNulty v. Owens,
188 S.C. 377, 199 S.E. 425, after referring to the obligation of the city to furnish municipal
services to the authority, by the statement: A municipal corporation is so obligated and this
provision in the contract is merely an acknowledgment of the existing law on this point. Since
the property is for a public purpose and totally exempt from taxation under the provisions of
the statute, the City and Housing Authority may agree on a payment in lieu of taxes, and it is
within the power of the City of Columbia to agree to such payment. A like contention was
rejected in Edwards v. Housing Authority of the City of Muncie, 215 Ind. 330, 19 N.E.2d
741, 746, by the following statement: It is as though a civil city agreed with the school city
to furnish police, fire, and sanitary services in school or playground territory, or agreed with a
park board to furnish such services in connection with public parks. No reason is seen why it
may not be done if the Legislature authorizes it as it has done here; and no authority to the
contrary is called to our attention. Krause v. Peoria Housing Authority, 370 Ill. 356, 19
N.E.2d 193, 200, disposed of the contention by saying that the charge provided is not a tax,
the property being tax exempt.
[Headnote 7]
(4) It is further contended that the provisions in the cooperation agreement entered into
between the authority and the city providing that the latter will eliminate by demolition,
condemnation, etc., unsafe and unsanitary dwelling units in the city not less in number than
the number of newly constructed dwelling units contemplated, unlawfully bind future
members of the board of city commissioners on a matter which is of legislative and
discretionary nature. This was disposed of in McNulty v. Owens, supra, by the statement that
such covenant on the part of the city constitutes merely an agreement of the city to exercise a
power it already has in such a manner as "to cooperate in the use of those functions and as
such is valid."
in such a manner as to cooperate in the use of those functions and as such is valid. [188
S.C. 377, 199 S.E. 431.] See also Rutherford v. City of Great Falls, 107 Mont. 512, 86 P.2d
656.
[Headnote 8]
(5) Appellant contends that the power vested by the act in the Housing Authority is an
unconstitutional delegation of legislative power. He states that there is no guide or standard or
limitation as to the rentals which may be fixed by the local authority and that in other respects
it is authorized in effect to legislate. We have not felt it necessary to recite in detail the
provisions of the housing act or the provisions of the cooperation agreement. They have,
however, been carefully examined and we are satisfied that the standards and limitations set
forth are ample to meet this attack, and that the contention is without merit. Panama Refining
Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446; State ex rel. Ginocchio v.
Shaughnessy, 47 Nev. 129, 217 P. 581; Krause v. Peoria Housing Authority, 370 Ill. 356, 19
N.E.2d 193; Housing Authority of the County of Los Angeles v. Dockweiler, 14 Cal.2d 437,
94 P.2d 794.
[Headnote 9]
(6) It is next contended that the statute affords special privileges to certain individuals and
denies to plaintiff equal protection of the law in contravention of the fourteenth amendment
to the Constitution of the United States. It was held, however, in Housing Authority of the
City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 130 A.L.R. 1053, that in the
Texas act, similar to our own, the legislature had made a reasonable classification of the
members of the public and has provided that such low-rent dwelling accommodations shall be
available to all members of the public who presently or in the future fall within the
classification made by the legislature. In Housing Authority v. Dockweiler, 14 Cal.2d 437, 94
P.2d 794, 806, the Supreme Court of California, through Mr. Justice Shenk, said that a
similar classification "is neither arbitrary nor unreasonable.
classification is neither arbitrary nor unreasonable. On the contrary, it is logical and natural.
It also quoted at length from the opinion in Williamson v. Housing Authority of Augusta, 186
Ga. 673, 199 S.E. 43, 47, which discussed the contention at length and definitely held that the
classification is no violation of the constitutional guaranty. The California case also cites to
like effect Rutherford v. Great Falls, Spahn v. Stewart, and other cases already cited in this
opinion.
[Headnote 10]
(7) It is next contended that while the 1949 amendment to the federal act requires
preference to be given to displaced persons, veterans and servicemen of World Wars I and II
in admitting families to the project, the state act requires preference to be given to such
veterans only of World War II. The point is merely stated. The allegation made in the
complaint is that the preference will be given to veterans of World Wars I and II in
accordance with the federal act, which will be beyond the authority granted by the state act,
and the answer admits that such preference will be given, but denies that the same is beyond
the authority granted by the state act. This question was not properly before the district court
and is not properly before us upon this test of the constitutionality of the state act. This is a
taxpayer's suit. It is not a suit by a veteran of World War I or World War II. Neither the
plaintiff nor others similarly situated will be adversely affected by the situation. Plaintiff is
not in position to complain. Norman v. City of Las Vegas, 64 Nev. 38, 177 P.2d 442, 444.
[Headnote 11]
(8) It is next contended that the housing authorities law is unconstitutional because in
violation of article IV, section 17 of the Constitution, N.C.L. sec. 68, in that it embraces more
than one subject not expressed in the title. The title of the housing act is quoted in full at the
beginning of this opinion. In State v. Lincoln County Power District, 60 Nev. 401, 111 P.2d
528, 530, this court summarily dismissed such contention by reference to a number of
instances in which this court had considered such attack upon the title and saw "no
reason to review the authorities cited in those cases, or restate the conclusions reached
therein," and was simply "content to say that upon the reasoning and authority of those
cases" it held the title to the Nevada power district law not constitutionally defective.
summarily dismissed such contention by reference to a number of instances in which this
court had considered such attack upon the title and saw no reason to review the authorities
cited in those cases, or restate the conclusions reached therein, and was simply content to
say that upon the reasoning and authority of those cases it held the title to the Nevada power
district law not constitutionally defective. To the cases there cited we may add Ex parte Ah
Pah, 34 Nev. 283, 119 P. 770, and In re Calvo, 50 Nev. 125, 253 P. 671. The contention made
is without merit.
[Headnote 12]
The briefs filed are voluminous. Cases are cited from 30 different jurisdictions. Incidental
and additional points are discussed, involving sections of the federal act, sections of the state
act and covenants of the cooperation agreement which we have not found it necessary to
outline. Plaintiff's complaint for an injunction was based upon the sole ground that the
defendants were about to proceed with the housing project under the provisions of an act
which contravened state and federal constitutional provisions. The district court, in
dismissing the action and entering judgment in favor of the defendants, found in effect that
none of the attacks upon the constitutionality of the act was supported in law. We have
carefully examined the state housing authorities act section by section and it is our
conclusion, based upon the authorities herein referred to, that in no respect does any part of
such act violate or contravene any provision of the Constitution of the State of Nevada or of
the United States. The judgment is affirmed.
____________
68 Nev. 99, 99 (1951) Summers v. District Court
JACK SUMMERS, Petitioner, v. THE DISTRICT COURT OF THE SECOND JUDICIAL
DISTRICT OF THE STATE OF NEVADA, in and for the County of Washoe, and
A. J. MAESTRETTI, Judge of Department No. 2 of Said Court, Respondents.
No. 3645
February 8, 1951. 227 P.2d 201.
Original Proceeding in certiorari by Jack Summers to review action of the district court of
the Second Judicial District of the State of Nevada, in and for the County of Washoe, and A.
J. Maestretti, Judge, department No. 2, of said court, in ordering and issuing a writ designated
a writ of ne exeat and in denying motion to dismiss the writ. The supreme court, Merrill, J.,
held that where wife filed a complaint to collect the arrears from husband under a judgment
of separation entered by the Supreme Court of State of New York, and wife filed a petition
alleging that husband was about to leave jurisdiction, district court had jurisdictional power to
enter an order restraining husband from leaving state and ordering his arrest unless he filed a
bond of a certain amount.
Affirmed.
A. P. Johnson, of Reno, for Petitioner.
Griswold, Reinhart & Vargas, of Reno, for Respondent.
1. Ne Exeat.
The writ of ne exeat is an ordinary process of a court of equity issued on the impending departure of a
person from the jurisdiction of the court with intent to evade it, to restrain such person until he has given
bail to perform the court's decree and commanding his arrest and detention if he fails to furnish bail.
2. Ne Exeat.
The common law writ of ne exeat has been abolished by statutory substitution, but if restraint of a person
by a court be necessary and justified, restraint may be had by statutory provisions and not by virtue of
common law, even though the order for restraining purports to take the form of the
common law writ.
order for restraining purports to take the form of the common law writ. N.C.L.1929. sec. 8643.
3. Divorce.
In an action to enforce a divorce decree, in order to restrain a party from leaving the state, proof that
party is about to leave state is not required, but only that party might probably leave. N.C.L.1929, sec.
9463.
4. Divorce.
A New York judgment, once finally established as the foreign judgment of the court of that state, was
entitled to enforcement in the same manner as original Nevada judgment for maintenance and support, and
the right of enforcement was not limited to execution, but would include enforcement by contempt.
5. Judgment.
Provisional remedies are available in an action to establish a foreign judgment of separate maintenance.
6. Divorce.
Where wife filed a complaint against her husband to secure payment of arrears in a judgment of
separation entered by the Supreme Court of New York and wife filed a petition alleging that husband was
about to leave the state, the district court had jurisdictional power to issue a writ restraining husband from
leaving jurisdiction and commanding his arrest unless he gave sufficient security in a certain amount.
7. Arrest.
The remedy of arrest as a preventive measure is an extreme one and the legislative authorization of such a
remedy based upon probability is an extraordinary grant of power to the courts and carries with it the
extraordinary judicial responsibilities, and demands the highest degree of consideration in its exercise.
OPINION
This is an original proceeding in certiorari to review action of respondent court in ordering
and issuing a writ designated a writ of ne exeat and in denying motion to dismiss the writ.
The essential question involved is the court's authority under the facts of the case, to order
civil arrest without hearing, notice or bond.
On October 20, 1950, an action was brought before said court by Estelle Summers as
plaintiff against Jack Summers {petitioner herein) as defendant.
Summers (petitioner herein) as defendant. The complaint in that action alleges that the parties
are husband and wife; that on April 24, 1947, a judgment of separation was entered by the
Supreme Court of the State of New York in favor of Estelle Summers and against Jack
Summers, which judgment directed that Summers pay to his wife $45 a week for her
maintenance and support and $40 a week for the support of the son of the parties; that as of
October 9, 1950, Summers was in arrears in payment under that order in the sum of $3,105.
The complaint prayed: (1) judgment for arrears; (2) award of support and maintenance in
accordance with the New York judgment, and that such judgment entered by this Court shall
be decreed to be enforcible as similar orders or judgments of this Court for separate
maintenance under the statutes of the State of Nevada; (3) or, that the judgment of April 24,
1947, by the Supreme Court of the State of New York, aforesaid, be established in this State
as a foreign judgment of separate maintenance, * * * and that said judgment shall be entitled
to be enforced in equity by any appropriate proceeding;.
On the day on which suit was commenced, the plaintiff, Estelle Summers, filed a petition
in response to which a writ designated writ of ne exeat was, on October 20, 1950, issued
pursuant to order of respondent court. The writ, signed by respondent judge, was issued under
seal of court and directed to the sheriff of Washoe County, Nevada. It provided:
Whereas, Estelle Summers has presented a petition to this Court, supported by her
affidavit, and based upon a Complaint filed by her, showing that Jack Summers is now
greatly in arrear in payments required to be made to her under an order of the Supreme Court
of the State of New York for the support and maintenance of herself and their son, Robert
Summers, and that she and the son are in great need of the payments required by said order,
and that Jack Summers is likely to leave the jurisdiction of this Court and avoid process;
and it appearing to this Court that good cause exists for granting the prayer of this
petition;
jurisdiction of this Court and avoid process; and it appearing to this Court that good cause
exists for granting the prayer of this petition;
You are hereby commanded to arrest Jack Summers, defendant herein, without delay, and
to confine him in the Washoe County Jail, unless he give sufficient security or bail in the sum
of $3500.00 that he will not leave the State of Nevada or go beyond the jurisdiction of this
Court without leave of this Court.
In directing issuance of the writ respondent court also ordered that Jack Summers shall
not sell, encumber or otherwise dispose of or place beyond his possession and the jurisdiction
of this court any of or all his property located in the State of Nevada.
Pursuant to the writ and order petitioner was placed under arrest by the sheriff of Washoe
County. Two days later he gave bail as provided and was released. An automobile in the
possession of petitioner was taken into possession by the sheriff of Washoe County.
On November 17, 1950, pursuant to notice, petitioner moved respondent court for an order
vacating and dismissing both the writ and the restraining order and for an order directing
return of property and exoneration of bond. The motion was denied by respondent court.
It is contended by petitioner that no authority exists under the law of this state for the
issuance of such a writ; that respondents in so acting exceeded their jurisdiction.
The writ of ne exeat originally in England was a high prerogative writ issued for state or
political purposes to forbid a subject leaving the realm. It proceeded upon the assumption that
since every man was bound to defend the king and his realm, the king might, as crown
prerogative, command any man not to leave the realm. While first confined to state affairs,
the writ was later extended to private and civil matters.
[Headnote 1]
In the United States the writ is not regarded as a prerogative writ but rather as ordinary
process of a court of equity issued, on the impending departure of a person from the
jurisdiction of the court with intent to evade it, to restrain such person until he has given
bail to perform the court's decree and commanding his arrest and detention if he fails to
furnish such bail.
of equity issued, on the impending departure of a person from the jurisdiction of the court
with intent to evade it, to restrain such person until he has given bail to perform the court's
decree and commanding his arrest and detention if he fails to furnish such bail. 65 C.J.S., Ne
Exeat, sec. 1, P. 275; 38 Am.Jur. 618, Ne Exeat, sec. 1; 118 Am.St.Rep. 989.
Chap. 18 of the civil practice act of this state, approved March 17, 1911, provides for
arrest and bail in civil actions. The first section of this chapter, being sec. 8643, N.C.L.1929,
provides as follows: No person shall be arrested in a civil action except as prescribed by this
act. Under similar code provisions it has uniformly been held that the common law writ of
ne exeat has been abolished by statutory substitution. Ex Parte Harker, 49 Cal. 465; Cable v.
Alvord, 27 Ohio St. 654.
[Headnote 2]
Such is the judgment of this court. If the restraint provided by the writ is to be justified it
must be by virtue of our express statutory provisions and not by virtue of the common law. If
it be so justified, however, it will not concern this court that the order for such restraint
purported to take the form of a common law writ now obsolete under our statutes. It is the
authority of respondent court to command such restraint with which we are concerned and not
the designation which it has given to its command. We proceed, therefore, to an examination
of our statutes.
It is not contended that issuance of the writ is supported by our civil code since no
undertaking was provided as there required. Respondents do contend, however, that the
provisions of our statutes relative to divorce and separate maintenance give power to the court
to take the precise steps which have been taken here.
Sec. 9474, N.C.L.1929, being sec. 7 of the act relating to actions for separate maintenance
provides in part as follows: In all cases commenced hereunder, the proceedings and practice
shall be the same, as nearly as may be, as is now or hereafter may be provided in actions
for divorce; * * *."
may be, as is now or hereafter may be provided in actions for divorce; * * *. We may,
therefore, consider our statutes relative to divorce practice.
Sec. 9463, N.C.L.1929, Supp.1943-1949, provides in part as follows: In granting a
divorce, the court may award such alimony to the wife and shall make such disposition of the
community property of the parties as shall appear just and equitable, * * * If after the filing of
the complaint, it shall be made to appear probable to the court or the judge in vacation, that
either party is about to do any act that would defeat or render less effectual any order which
the court might ultimately make concerning the property or pecuniary interests, an order shall
be made for the prevention thereof, to be enforced as such preliminary orders are enforced
respecting children. Sec. 9462, N.C.L.1929, Supp.1943-1949 (with reference to orders
respecting children) provides in part as follows: * * * and all such orders may be enforced,
and made effectual, by attachment, commitment, and requiring security for obedience thereto,
or by other means, according to the usages of courts, and to the circumstances of the case
* * *.
Had this been an original suit for separate maintenance and had it been made to appear
probable to the lower court that the defendant was about to leave the State of Nevada and
remain beyond the court's jurisdiction and that such action on his part would defeat or render
less effectual any order which the court might ultimately make respecting maintenance, then,
under sec. 9463, the court might enter an order preventing the defendant from leaving the
state and, under sec. 9462 enforce that order by commitment. Under the quoted sections and
the extremely broad powers there conferred such a conclusion appears inescapable.
Such was the action taken by respondent court and such, we must presume, were the
determinations which prompted its action. As the writ itself shows upon its face, an affidavit
was filed by the plaintiff wife in support of her petition, which affidavit dealt with her
necessitous condition and the probability of the husband's leaving the state.
port of her petition, which affidavit dealt with her necessitous condition and the probability of
the husband's leaving the state.
Petitioner contends that this affidavit was insufficient in that it dealt in conclusions of the
affiant without factual support. While undoubtedly replete with matters of conclusion and
conjecture in regard to her husband's intent to leave the State of Nevada, the affidavit still
does state facts in support thereof. It appears that petitioner husband has made four different
applications for reduction of maintenance, each of which was denied; that the New York
court in one of its decisions branded Jack Summers as a conniver and as a conspirator who
sought to falsify his books and deliberately reduce his earning powers solely for the purpose
of modifying the judgment; that in December, 1949, the husband left the State of New York;
that he returned in April, 1950, to apply for reduction of support payments, and when his
application was denied, once again left the state; that affiant wife did not thereafter hear from
him until served with summons in a Nevada action for divorce on September 28, 1950; that
the husband had threatened affiant wife time and again that he would break her physically
and mentally and do anything in his power to foil the decree of the courts of the state of New
York or any other court.
[Headnote 3]
It may with some justification be contended that such factual showing, insofar as
positively establishing that the husband was about to leave the State of Nevada, falls
somewhat short of satisfactory proof. Proof, however, is not required. By express statutory
provision it is not the positive but the probable which must form the basis for application of
the remedy.
Probable, according to Webster's New International Dictionary (Second Edition) means
having more evidence for than against; supported by evidence strong enough to establish
presumption, but not proof, of its truth; * * *."
truth; * * *. Courts have frequently accepted Webster as authority in definition of this word,
as reference to Words and Phrases will demonstrate.
In Ex Parte McCarty, 140 Cal.App. 473, 35 P.2d 568, the court defined the word probable
as having more evidence for than against; supported by evidence which inclines the mind to
believe, but leaves some room for doubt. The court then states: It will suffice for us to state
that we have carefully examined the record before us, and we are of the opinion that there is
sufficient evidence to indicate, with reasonable probability, the probable guilt of petitioner,
although it should be clearly understood that this court is not passing on, nor endeavoring to
pass upon, the question of the sufficiency of the evidence to support a verdict of guilty.
It cannot here be said that there was nothing to support the determination of respondent
court that it was probable that the husband was about to leave the state. We must conclude,
therefore, that had the action before respondent court been an original suit for separate
maintenance the court would have been acting within its jurisdictional powers in proceeding
as it did.
We are left with the question whether the situation is altered by virtue of the fact that this
is not an original suit for separate maintenance but a suit to establish the judgment of the New
York court as the foreign judgment of respondent court.
[Headnote 4]
It is by now well settled that the New York judgment, once finally established as the
foreign judgment of a court of this state, would be entitled to enforcement in the same manner
as an original Nevada judgment for maintenance and support. The right of enforcement would
not be limited to execution, but would include enforcement by contempt as well. Creager v.
Superior Court, 126 Cal.App. 280, 14 P.2d 552; Shibley v. Shibley, 181 Wash. 166, 42 P.2d
446, 97 A.L.R. 1191; Cousineau v. Cousineau, 155 Or. 184, 63 P.2d 897, 109 A.L.R. 643.
It is emphasized by petitioner that in the instant case the New York judgment has not yet
been established as the judgment of the Nevada court and is not yet susceptible of
enforcement as such; that enforcement provisions of our statutes apply to Nevada orders and
judgments and not to those of some other state; that to permit acts of enforcement at this stage
of the proceedings would in effect be to extend the jurisdiction of the New York court beyond
the boundaries of that state and into the State of Nevada.
The provisions of sec. 9463 are not, however, for enforcement of final judgments or even
of interlocutory orders upon the parties. The relief provided looks not to orders already made
but to orders to be made in the future. Essentially it is a remedy of protection and prevention
rather than of enforcement.
[Headnote 5]
The final question, therefore, is whether such provisional remedies (as well as the ultimate
right of enforcement by contempt) are available in an action to establish a foreign judgment
of separate maintenance. In the view of this court, they are.
As has been stated, the judgment when rendered is identical with an original Nevada
judgment from the point of its right to enforcement. Suit for such judgment takes on the
character of the judgment it seeks. From the point of its right to provisional remedies, its
character must, therefore, be regarded as identical with that of an original suit for
maintenance.
[Headnote 6]
It is held that respondent court, under the facts of this case, acted within its jurisdictional
powers in making the orders contained in the writ in question, in entering its restraining order
and in denying motion to vacate and dismiss. Any attack upon the propriety of its action must
go not to its jurisdiction but to justification of the manner in which it proceeded in the
exercise of its discretionary powers. Such matters are beyond the scope of our considerations
upon certiorari and, it is emphasized, are beyond the scope of this opinion.
of our considerations upon certiorari and, it is emphasized, are beyond the scope of this
opinion.
[Headnote 7]
In anticipation that this holding as precedent may otherwise become far reaching, it must
be recognized that the remedy of arrest as a preventive measure is an extreme one. The
legislative authorization of such a remedy based upon probability is an extraordinary grant of
power to the courts and carries with it extraordinary judicial responsibilities. The extensive
discretion so granted assumes the highest of judicial wisdom and, accordingly, demands the
highest degree of consideration in its exercise.
The action of respondents is affirmed with costs.
On Petition for Rehearing
March 21, 1951.
Per Curiam:
Rehearing denied.
____________
68 Nev. 109, 109 (1951) Fourchier v. McNeil Constr. Co.
ERNEST C. FOURCHIER, BERT MILLER, C. WALLACE HILDY, CHARLES E.
GAUTHEY, B. W. FOOTE, VINCENT J. NINTEMAN, LAMBERT J. NINTEMAN, RAY
M. LAW, FORREST E. KIMBALL, WM. S. HUTHISON, EDWARD W. VICE, C. G.
MILLHOUSE, CARSTEN BENTRUD, TOM W. ROLOFSON, Jr., JERRY A. REEVE,
RUSSELL H. ROEMISCH, F. R. UMSTED, H. C. UMSTED, JOHN E. KELLEY, E. F.
HEILMANN, HERMAN DE YOUNG, ROY WRIGHT, EARL B. LONG, F. L. HERMAN,
L. R. KEATON, JOHN J. SADLER, ERNEST A. HILBERG, MARSHALL R. MILLER,
KENNETH F. WATTS, RAYMOND E. CASE, E. E. FOERSTER, FRED NICHOLSON,
ROBERT E. BALL, PAUL BAILEY, C. F. LEONARD, WM. J. GILES, A. E. RADFORD,
M. J. COLLINS, C. H. WHITLEY and JAMES L. GILES, Plaintiffs and Appellants, v.
McNEIL CONSTRUCTION CO., a California Corporation, RECONSTRUCTION
FINANCE CORPORATION, BASIC MAGNESIUM COMPANY LTD., a Nevada
Corporation, BLACK and WHITE, a corporation, RED & WHITE, A Corporation, DOES,
One to Twenty, Inclusive, Defendants and Respondents.
No. 3609
February 8, 1951. 227 P.2d 429.
department No. 1.
Ernest C. Fourchier and others sued McNeil Construction Co., and others, for overtime
compensation under contracts of employment. The Eighth Judicial District Court sustained
defendants' motion to dismiss the amended complaint as to the 39 nonresident plaintiffs for
their failure to comply with defendants' demands for security for costs, and the nonresident
plaintiffs appealed. The Supreme Court, Badt, C. J., held that where nonresident plaintiffs
who joined with resident plaintiff in bringing causes of actions for overtime compensation
based on separate contracts of employment failed to file separate costs bonds as directed
because of their belief that they were not required to file bond under statute, or, if so
required, that one bond for all of them would be sufficient, trial court abused its
discretion in dismissing the actions without giving them an opportunity to provide
security for costs.
resident plaintiff in bringing causes of actions for overtime compensation based on separate
contracts of employment failed to file separate costs bonds as directed because of their belief
that they were not required to file bond under statute, or, if so required, that one bond for all
of them would be sufficient, trial court abused its discretion in dismissing the actions without
giving them an opportunity to provide security for costs.
Judgment reversed and cause remanded.
Ralli & Rudiak, of Las Vegas, Entenza & Gramer, of Beverly Hills, Calif., and Vincent J.
Blumberg, of Los Angeles, Calif. (Marvin Wellins and Sidney R. Troxell, of Los Angeles,
Calif., of counsel), for Appellants.
Lewis, Hawkins & Cannon, of Las Vegas, Bodkin, Breslin & Luddy and Leonard S.
Janofsky, of Los Angeles, Calif., for Respondent McNeil Const. Co.
Thatcher, Woodburn & Forman, of Reno, for Respondent Basic Magnesium Inc.
1. Costs.
Dismissal of amended complaint as to 39 nonresident plaintiffs for their failure to comply with
defendants' demands for security for costs was not improper on ground that defendants failed to make a
specific and clear demand for a $300 cost bond from each nonresident plaintiff. N.C.L.1929, secs. 8936, as
amended by Stats.1939, Chap. 26, 8938.
2. Costs.
Generally, where there are several plaintiffs in the action, one of whom is a resident, the rule requiring
security for cost from nonresidents does not apply, but the rule is not unqualified.
3. Costs.
Where separate causes of action for overtime compensation were joined by one resident plaintiff and 39
nonresident plaintiffs each asserting a separate contract of employment, a cost bond would be required of
nonresident plaintiffs, notwithstanding that the causes were joined with a cause by resident plaintiff and
each nonresident plaintiff was required to give a separate cost bond. N.C.L.1929, sec. 8936, as amended by
Stats.1939, Chap. 26, 8938.
4. Costs.
The word may, as used in statute providing that, upon proof that no undertaking has been filed after
lapse of 30 days from service of notice that security is required, or of an order for new
and additional security, court or judge may order the action to be dismissed, will not
be construed as having the meaning of the mandatory "must" or "shall."
from service of notice that security is required, or of an order for new and additional security, court or
judge may order the action to be dismissed, will not be construed as having the meaning of the mandatory
must or shall. N.C.L.1929, sec. 8938.
5. Costs.
Where nonresident plaintiffs who joined with a resident plaintiff in bringing causes of action for overtime
compensation based on separate contracts of employment failed to file separate cost bonds as directed
because of their belief that they were not required to file bond under statute, or, if so required, that one
bond for all of them would be sufficient, trial court abused its discretion in dismissing their actions without
giving them opportunity to provide security for costs. N.C.L.1929, secs. 8936, as amended by Stats.1939,
Chap. 26, 8938.
OPINION
The district court sustained motions of the defendants to dismiss the amended complaint as
to 39 nonresident plaintiffs for their failure to comply with defendants' demands for security
for costs. The propriety of such action is attacked in this appeal by the 39 nonresident
plaintiffs. The fortieth and only additional plaintiff is a resident of Nevada and as to him the
action was not dismissed.
Appellants contend (1) that by reason of the residence within the state of one plaintiff no
cost bond could be required of the 39 nonresident plaintiffs; (2) that even though bond might
be required, the one $300 cash bond posted in response to the demand was sufficient; (3) that
it was an abuse of discretion for the district court to dismiss the action as to the 39
nonresident plaintiffs without giving them opportunity to file such bond as the court might
require in the premises; and (4) that in any event the defendants had never made a specific
and clear demand for a $300 cost bond from each nonresident plaintiff.
Plaintiffs filed their original complaint June 30, 1947 and summons was duly issued and
served. Defendant Basic Magnesium Incorporated, a Nevada corporation, which we shall
refer to as Basic, appeared by demurrer and at the same time served its demand for
security for costs.
Basic Magnesium Incorporated, a Nevada corporation, which we shall refer to as Basic,
appeared by demurrer and at the same time served its demand for security for costs. McNeil
Construction Company, a California corporation, which we shall refer to as McNeil, also
demanded security for costs and demurred. Within 30 days after the demand, the plaintiffs
posted a cash bond for costs in the sum of $300.
On June 24, 1949, approximately two years after the filing of the original complaint,
plaintiffs filed a first amended complaint containing substantially all of the allegations of the
original complaint, with its three pleaded causes of action for each of the 40 plaintiffs, and
added three additional and separate causes of action on behalf of each plaintiff, thus alleging
a total of 240 separate causes of action, being six causes of action on behalf of each plaintiff.
The prayer of the amended complaint is for judgment as described in the 41 numbered
paragraphs of such prayer. Each of the first 40 paragraphs prays for judgment against the
defendants in a specific sum in favor of each separate plaintiff, together with interest and
together with punitive damages in a sum equal to the principal demand. These 40 separate
demands for judgment range from the lowest in the sum of $2,127.60 to the highest in the
sum of $11,026.32, and aggregate, without interest, costs or punitive damages, over
$220,000. Paragraph 41 of the prayer is divided into subparagraphs (a) to (i), inclusive,
constituting nine separate items. These seek a declaration and determination as to the rights of
each plaintiff with respect to the defendants by reason of the terms of an agreement dated
September 3, 1941 between McNeil and Basic, to the effect that each of the plaintiffs was an
express beneficiary of said contract and as such was entitled to receive compensation at one
and one-half times the basic rate for all overtime served in excess of eight hours a day, and
compensation at the basic rate of pay for all hours worked, including eight hours per day of
any day including Saturdays and Sundays; {b) that the defendants are jointly and
severally liable for these items; {c) that under such contract Basic is liable as an
undisclosed principal; {d) that McNeil is liable as an undisclosed agent; {g) that the 40
hour week should be used in computing the basic rate; {h) that each plaintiff has worked
the number of hours as claimed by him.
hours per day of any day including Saturdays and Sundays; (b) that the defendants are jointly
and severally liable for these items; (c) that under such contract Basic is liable as an
undisclosed principal; (d) that McNeil is liable as an undisclosed agent; (g) that the 40 hour
week should be used in computing the basic rate; (h) that each plaintiff has worked the
number of hours as claimed by him. Other paragraphs of the prayer are largely explanatory or
repetitive. The prayer also asks for an accounting, costs and further relief. The amended
complaint contains 160 typewritten pages, besides 20 pages of exhibits.
Taking the causes of action pleaded on behalf of the first-named plaintiff as an example,
we find in his first cause of action four paragraphs pleading matters of inducement. The
fourth reads as follows: That the plaintiffs herein are joined in this action for the reason that
they have, respectively, causes of action which are similar and which arise out of transactions
connected with the same subject of action, to wit, work and labor performed upon the same
project, and which involve questions of law and fact common to all of the plaintiffs and to
their respective causes of action; that the joinder of plaintiffs' causes of action herein will also
avoid a multiplicity of suits. It is then alleged that within four years last past such plaintiff
performed work and labor for the defendants at their special instance and request, for which
they agreed to pay a specified sum per week for a 44-hour week, plus time and a half for
overtime; that plaintiff performed 1,376 hours of overtime labor by reason whereof the
defendants became indebted to him in the sum of $6,777.12, no part of which has been paid,
though demanded. The second cause of action of such plaintiff alleges an indebtedness for the
reasonable value of services in said sum. The third cause of action of such plaintiff alleges
that within six years last past he entered into a written contract of employment with
defendants at a specified rate per week for a 44-hour week, plus a reasonable value for
overtime, and that he performed 1,376 hours of overtime of the reasonable value of said
sum of $6,777.12.
week for a 44-hour week, plus a reasonable value for overtime, and that he performed 1,376
hours of overtime of the reasonable value of said sum of $6,777.12. His fourth, fifth and sixth
causes of action allege his employment as a general foreman and superintendent under an oral
contract with McNeil made on or about December 16, 1941; that on September 3, 1941
McNeil and Basic entered into a written contract for the express benefit of the plaintiff, which
contract is annexed as an exhibit; that under such contract McNeil was to permit no laborer or
mechanic to work over eight hours a day, except for compensation at not less than time and a
half for overtime and should pay straight-time compensation for all hours worked to and
including eight hours a day; that upon completion of construction Basic would assume and
become liable for all obligations of McNeil under the contract, including labor; that such
contract has been fully performed except for the payment of the money due plaintiff; that by
reason of such provisions in the contract there is due plaintiff $9,913.20his basic rate being
$3.38 per hour for part of the term and $3.75 per hour for the remainder; that plaintiff was not
informed of said contract between Basic and McNeil until August 26, 1948 and that until
such date McNeil fraudulently concealed from plaintiff, with intent to deprive him of his
rights thereunder, all information concerning said contract. Such Plaintiff demands judgment
for $9,913.20, being $5,979.60 overtime, plus $3,933.60 straight time.
This is typical of the six causes of action pleaded on the part of each of the 40 plaintiffs.
Defendants demurred separately upon the grounds, among others, of misjoinder of parties
plaintiff and misjoinder of causes of action, such grounds of demurrer being specifically
permitted under our practice act. The court order granting the motion to dismiss as to the 39
nonresident plaintiffs was made before argument or submission of either of the demurrers,
and the points thus raised in the demurrers were never submitted to or passed upon by the
district court.
the demurrers were never submitted to or passed upon by the district court.
The demand for security for costs was made under sec. 8936 N.C.L., as amended,
Stats.1939, chap. 26, p. 20, reading as follows: When a plaintiff in an action resides out of
the state, or is a foreign corporation, security for the costs and charges which may be awarded
against such plaintiff may be required by the defendant, by the filing and service on plaintiff
of a written demand therefor within the time limited for answering the complaint. When so
required, all proceedings in the action shall be stayed until an undertaking, executed by two or
more persons, be filed with the clerk, to the effect that they will pay such costs and charges as
may be awarded against the plaintiff by judgment, or in the progress of the action, not
exceeding the sum of three hundred dollars; or in lieu of said undertaking, the plaintiff may
deposit three hundred dollars, lawful money, with the clerk of the court, subject to the same
conditions as required for the undertaking. A new or an additional undertaking may be
ordered by the court or judge upon proof that the original undertaking is insufficient security,
and proceedings in the action stayed until such new or additional undertaking be executed and
filed.
The dismissal was ordered, on motions in which both defendants joined, under sec. 8938
N.C.L., reading as follows: After the lapse of thirty days from the service of notice that
security is required, or of an order for new or additional security, upon proof thereof, and that
no undertaking as required has been filed, the court or judge may order the action to be
dismissed.
[Headnote 1]
(1) We first consider the fourth point raised by appellants, namely, that defendants had
never made a specific and clear demand for a $300 cost bond from each plaintiff. The
demand is directed to each of the plaintiffs and demands and requires security on the part of
each plaintiff above named for the costs and charges which may be awarded against each
of said plaintiffs in this action in accordance with the statute in such cases made and
provided on the ground that each of said plaintiffs is a nonresident of this state."
plaintiff above named for the costs and charges which may be awarded against each of said
plaintiffs in this action in accordance with the statute in such cases made and provided on the
ground that each of said plaintiffs is a nonresident of this state. This is clear and specific,
and we find the point to be without merit.
[Headnote 2]
(2) We consider appellants' points (1) and (2) together, namely, the contentions, first, that
no cost bond may be required of nonresident plaintiffs when they are joined with one or more
resident plaintiffs, and, second, that, even though such bond may be required, the supplying
of one cost bond only is sufficient. Appellants rely upon the general rule stated in 20 C.J.S.,
costs, sec. 128, (3), page 371, which there reads: Except under some special statute or rule of
court, it is very generally held that, where there are several plaintiffs in the action, one of
whom is a resident, the rule requiring security for costs from nonresidents does not apply.
The general rule prevails, it seems, notwithstanding the resident plaintiff is an insolvent
person * * *. Appellants also rely upon Kendrick v. Ward, 246 Ala. 550, 21 So.2d 676, 158
A.L.R. 734, which applied the general rule so stated in a case in which a nonresident plaintiff,
after demand on her for security for costs, amended her bill by adding a resident plaintiff who
was a proper party plaintiff in the action. They refer particularly to the annotation at page 737
following the report of the case in 158 A.L.R. The annotator there states: A decided
preponderance of the authority on the point indicates that where several persons join in an
action and some, or even one, are residents of the jurisdiction in which the suit is brought, the
opposite party or parties cannot require the giving of security for costs either from the
non-residents separately or from all the coparties as a group. In support of this statement
cases are cited from many states. Id. nn. 4 and 5. Respondents refuse to accept the annotator's
statement or the rule as recited in C.J.S. or as found in the various cases cited in support of
the A.L.R. annotation, by the statement that our statute above quoted clearly demands a
different construction.
in C.J.S. or as found in the various cases cited in support of the A.L.R. annotation, by the
statement that our statute above quoted clearly demands a different construction. In many of
the cases, however, the statute involved is virtually identical with our own, and upon those
authorities we accept the general rule of law as thus enunciated. The rule however, is not
unqualified.
Respondents point out the following statement in the A.L.R. annotation: A qualification
of the general rule is sometimes permitted where several plaintiffs allege separate and
independent causes of action. * * * It is true that but one case is cited in support of this
qualification, but it is so peculiarly in point with regard to the instant case and is so well
reasoned that we are constrained to be guided by it. The case referred to is Akely v. Kinnicutt,
208 App.Div. 491, 203 N.Y.S. 745. There the action was brought by 193 plaintiffs of whom
at least 34 were nonresidents. The New York statute included in its own terms virtually the
effect of the general rule we have quoted above. It read: In a case specified in this section, if
there are two or more plaintiffs, the defendant cannot require security for costs to be given
unless he is entitled to require it of all the plaintiffs. The court there pointed out that the
pleadings showed that no cause of action was stated on behalf of more than one of the
plaintiffs, as each plaintiff prayed for an independent money judgment in which no other
plaintiff would have any interest. It construed the statute as meaning that where several
plaintiffs join in prosecuting a single cause of action and one is a resident, no security for
costs may be required, but where several plaintiffs owning independent causes of action join
in prosecuting a single suit, under special statutory provisions permitting such joinder, each
cause of action constitutes a separate case, within the meaning of the statute above quoted
and that security for costs might accordingly be demanded from each nonresident plaintiff.
We have above quoted in full the allegations of paragraph IV of the first plaintiffs' first
cause of action alleging that the plaintiffs join in the action because they have respective
causes of action which are similar and which arise out of transactions connected with the
same subject, namely, labor performed upon the same project, and which involve questions of
law and fact common to all of the plaintiffs and to their respective causes of action and that
such joinder will also avoid a multiplicity of suits. Respondents insist that there is a
misjoinder of plaintiffs and a misjoinder of causes of action. Appellants contend that the
plaintiffs have been properly joined and that the causes of action have likewise been properly
joined, but they say that the question of misjoinder of plaintiffs or causes of action is not
before us; that the demurrer raising these grounds was never submitted to or passed upon by
the district court and that the authority of this court to pass on such point grows out of its
appellate jurisdiction only.
[Headnote 3]
With such latter contention we are in agreement. We are not called upon here to rule upon
a demurrer that was never ruled upon by the district court. It is not for us to say, in any
exercise of original jurisdiction, that there has or has not been a misjoinder of parties plaintiff
or of causes of action, nor is it necessary for us to do so to dispose of the present matter. It is
clear, however, from our brief analysis of the amended complaint, that we do have 40
separate plaintiffs, each owning, as alleged by the plaintiffs themselves, his own separate
respective cause of action. Each one asserts a separate contract of employment. Each asserts
his performance of a certain number of hours of labor in his particular capacity as
superintendent, foreman, carpenter foreman, carpenter, etc. Each alleges the reasonable value
of his services. It is self-evident that to such extent at least each separate cause of action will
be subject to support by its own separate proof and against which a separate defense would be
required on the part of the defendants.
Defenses of denial of the employment, denial of the hours worked, denial of the reasonable
value of the services, denial of the promise to pay, of payment in full, of partial payment, etc.,
might respectively be asserted as against one or more of the individual plaintiffs. Defendants,
in preparation for suit, might well deem it advisable to take the separate depositions of the
separate plaintiffs residing in different places outside of the State of Nevada. Any judgment
rendered might award relief to some plaintiffs while denying it to others.
We consider the situation as lying precisely within the rule of Akely v. Kinnicutt, supra,
and as a necessary and justifiable qualification of the general rule. In Kearney v. Baptist, 159
A. 405, 406, 10 N.J. Misc. 431, it was said:
The statute requiring security for costs is remedial, and in order to effect its object should
be liberally construed. * * *
The nonresident plaintiffs in this case could have brought separate actions against the
defendant. Evidently for their own convenience or the convenience of themselves and the
resident associates in suit they included their claim in one and the same action.
Notwithstanding this joinder of parties, each party sues under a distinct and separate count. A
matter of convenience to the plaintiff litigants should not deprive the defendant of the
safeguards granted to him by the statute.
Appellants attempt to distinguish Akely v. Kinnicutt, but the distinctions asserted by them
are not sufficient to alter the conclusion to which we have come. Our reasons above recited
likewise move us to reject the contention that even if security for costs was properly required
by the district court, the single cash bond filed was sufficient; or to hold that, in any event,
such rule is subject to the same qualification.
1
{3) Holding then that the trial court was
correct in its conclusion that security for costs was required on the part of each plaintiff,
was its action proper in dismissing the action without giving the plaintiffs an opportunity
to furnish security in accordance with the conclusion that security was required?

____________________

1
Later New York cases confuse but do not change the effect of Akely v. Kinnicutt. In Salimoff & Co. v.
Standard Oil Co., 259 N.Y. 219, 181 N.E. 457, the court states that the lower court's order
(3) Holding then that the trial court was correct in its conclusion that security for costs was
required on the part of each plaintiff, was its action proper in dismissing the action without
giving the plaintiffs an opportunity to furnish security in accordance with the conclusion that
security was required? Some difficulty attends our consideration of this question by reason of
the condition of the record. Respondents refer to an oral opinion of the district court when
ruling upon the motion. Appellants say in their brief that when the court announced its view
that each plaintiff should have filed a $300 cost bond or that a single bond aggregating $300
multiplied by the number of nonresident plaintiffs should have been filed within 30 days after
demand, plaintiffs moved for leave to file an adequate bond at this time in such amount as
might be fixed and determined by the court, but that the court not only refused to permit
such motion to be made but refused to permit note thereof to be made in the minutes.
____________________
requiring 18 cost bonds of the 18 nonresident defendants was made under the authority of the Akely case.
Nowhere in the opinion in the Salimoff case is the propriety of the Akely case questioned, but the court reversed
the order on the ground that the plaintiffs had been properly joined under the New York statute because their
claims involved a common question of law and fact, and because they had a joint interest growing out of the
confiscation by the Russian government of their oil lands in Russia and the obliteration of all distinguishing lines
and the commingling of all the extracted oil thereafter purchased by the defendant with knowledge of the
wrongful taking. Any proof of individual damage of the separate plaintiffs was held to be largely incidental to
the main establishment of the joint cause of action. The Nevada statute does not permit joinder of plaintiffs by
reason of the existence of a common question of law or fact. N.C.L., sec. 8595; Hartford Min. Co. v. Home L. &
C. Co., 61 Nev. 1, 107 P.2d 128, 114 P.2d 1091; N.C.L., sec. 8555, McBeth v. Van Sickle, 6 Nev. 134.
Antonietti v. Pearson, 153 Misc. 803, 276 N.Y.S. 52, 54, an opinion by the city court of New York, Bronx
County, said: The Salimoff Case seems to me to directly overrule Akely v. Kinnicutt * * * on the question of
costs. But no other case has said this and we do not so consider it.
Bote v. City Bank Farmers Trust Co., city court, 61 N.Y.S.2d 280, held the Akely case not applicable
because in the Bote case the plaintiffs were joined under the express provisions of the fair labor standards act, 29
U.S.C.A., sec. 201, et seq. The opinion also pointed out that under the statute the New York supreme court
practice was entirely different from the New York city court practice.
In Hull v. Shannon, 139 Misc. 564, 249 N.Y.S. 33, separate cost
such amount as might be fixed and determined by the court, but that the court not only
refused to permit such motion to be made but refused to permit note thereof to be made in the
minutes. Neither of such statements by counsel finds justification anywhere in the record. As
to the court's asserted oral opinion we find only the clerk's recital of the minute order that
the court ordered that the motion to dismiss be and the same is granted with respect to all
plaintiffs except C. J. Leonard [the resident plaintiff], and nothing there appearing supports
appellants' assertion that they sought leave to file a new bond. Nor is there any explanation in
the record of the situation whereunder two years elapsed after the filing and service of the
original complaint and the demand for security for costs before the plaintiffs filed their
amended complaint. At one place in the record there appears an affidavit in support of
McNeil's motion to dismiss as to it, stating that the same causes of action against the
same defendants by the same plaintiffs similarly joining had been submitted to the
district court of the United States for the district of Nevada and that upon sundry grounds
the motion to dismiss with regard to McNeil had been granted.
____________________
bills were not required, but Akely v. Kinnicutt was recognized as requiring the same when the plaintiffs had
joined in one action their separate and distinct causes as permitted under sec. 209 of the civil practice act.
Dilworth v. Yellow Taxi Corporation, 127 Misc. 543, 216 N.Y.S. 513, approved the joinder of several
causes of action by several plaintiffs although the aggregate exceeded the $1,000 jurisdictional limitation of the
court and cited the Akely case to the effect that the several causes of action were not merged into one cause of
action but that the consolidation was permitted under the statute in order to lessen the delay and expense but
without depriving either the plaintiffs or the defendants of the rights or privileges which each would have if
separate actions had been brought. The question of costs was not involved in the case nor in the appeal thereof
reported in 144 N.E. 682.
The U. S. district court for the southern district of New York, by Hon. Learned Hand, district judge, in
Brown v. Kinnicutt, 2 F.2d 263, held that under the same section of the New York code the nonresident
plaintiffs could not be compelled to furnish separate bonds for costs, because of the provisions of the United
States revised statutes, but conceded that under Akely v. Kinnicutt the rule was otherwise in the state court.
These later cases serve only to confirm the conclusion we have reached. Nor is that conclusion changed by the
insistence of appellants that the declaratory judgment and the construction of the contract as sought by each
plaintiff in the fifth and sixth causes of action pleaded by each plaintiff constitutes such joint action as to except
them from this rule. As a matter of law a similar situation existed in the Akely case.
motion to dismiss as to it, stating that the same causes of action against the same defendants
by the same plaintiffs similarly joining had been submitted to the district court of the United
States for the district of Nevada and that upon sundry grounds the motion to dismiss with
regard to McNeil had been granted. A copy of the decision of Hon. Roger T. Foley, judge of
said United States district court, is attached to such affidavit. We may note that the bill of
exceptions, in which these proceedings appear, was settled by Hon. Frank McNamee, judge
of the district court, and that no attack appears to be made upon the inclusion of such papers
in the record.
We mention these matters for the purpose of indicating the difficulty presented to this
court in determining whether or not there had been a proper exercise of the district court's
discretion in dismissing the action rather than giving the plaintiffs an opportunity to provide
security for costs. It is true that other than from the situation as presented, there is no
affirmative showing of an abuse of discretion. On the other hand, there is no affirmative
showing of any reason why the district judge exercised his discretion to the extent of
dismissing the action as against the nonresident plaintiffs. The record does definitely show
that the nonresident plaintiffs apparently filed their $300 cash cost bond, in time, under
advice of counsel who felt in good faith at the time that this was all that was required under
their view of the authorities, and they did not know until the announcement of the court's
order that it would take the view that this was insufficient and that they would be given no
opportunity to correct such insufficiency by the posting of additional security.
[Headnote 4]
That the statute authorizes the district court to exercise its discretion in the matter, we
think is clear. There is no occasion for us to construe the discretionary may as having the
meaning of the mandatory must or shall. In Carter v. Superior Court of Kern County, 176
Cal. 752, 169 P. 667, 669, in construing an identical statute of the State of California, it was
said: "Section 1037, Code of Civil Procedure, the section relative to dismissal, simply
provides that:
statute of the State of California, it was said: Section 1037, Code of Civil Procedure, the
section relative to dismissal, simply provides that:
After the lapse of thirty days from the service of notice that security is required, [or of
an order for new or additional security] upon proof thereof and that no undertaking as
required has been filed, the court or judge may order the action * * * to be dismissed.'
In the connection in which it is used, there is no reasonable ground for reading the word
may' as must'.
[Headnote 5]
So drastic is the result of the court's action in entering its order of dismissal (counsel for
plaintiffs stated in oral argument that the statute of limitations will have run against the
commencement of new actions), and so lacking do we find the record in the matter of
supplying reasons for such action that we cannot do otherwise than feel that, under the
circumstances disclosed by the record, the court should have exercised its discretion by
giving plaintiffs an opportunity to provide security for costs.
It is hereby ordered that the judgment dismissing the action as to the nonresident plaintiffs
be, and the same hereby is, reversed, and that the cause be, and the same hereby is, remanded
to the district court with instructions to make and enter its order, with due provision for the
service thereof on counsel for the said plaintiffs below, allowing each of said nonresident
plaintiffs a reasonable time, to be fixed by said court, within which to furnish security for
costs, either by separate undertakings in the amount of $300 for each such nonresident
plaintiff, or joint and several undertakings in a sum aggregating $300 multiplied by the
number of nonresident plaintiffs, securing the costs of defendants as against each nonresident
plaintiff, in default of compliance with which said order the court may thereafter dismiss the
complaint of each or all of the said nonresident plaintiffs failing to comply with the terms
thereof.
It is further order that as to those nonresident plaintiffs complying with such order, the
court shall have full authority to dispose of all questions of law and fact in the premises,
including the issues raised by the said demurrers, and including all matters of additional
and amended pleadings of the respective parties.
plaintiffs complying with such order, the court shall have full authority to dispose of all
questions of law and fact in the premises, including the issues raised by the said demurrers,
and including all matters of additional and amended pleadings of the respective parties.
It is further ordered that the foregoing orders are without prejudice to the statutory right of
the said nonresident plaintiffs, or any of them, to deposit lawful money with the clerk of the
court subject to the same condition as required for the undertaking as provided in sec. 8936
N.C.L., as amended, and without prejudice to the defendants, or either of them, to require the
sureties on any undertakings so filed, to justify upon notice. Appellants are allowed their
costs in this court.
Horsey, formerly C. J., did not participate, his term of office having heretofore expired.
____________
68 Nev. 125, 125 (1951) LaGue v. District Court
J. B. LaGUE, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, in and for the County of Washoe,
Department No. 1 Thereof, Respondent.
No. 3639
February 13 1951. 227 P.2d 436.
Petition by J. B. LaGue against the Second Judicial District Court of the State of Nevada,
in and for the County of Washoe, Department No. 1 thereof, William McKnight, Judge, to
compel the court to assume jurisdiction of an action and to try the issues. Respondent
demurred to the petition and filed a response and answer thereto. The Supreme Court, Badt,
C. J., held that where the District Court erroneously refused to assume jurisdiction by
quashing service of summons on the ground that the complaint did not state a cause of action,
a peremptory writ would be granted to compel the District Court to assume jurisdiction.
Peremptory writ granted.
Martin J. Scanlan, of Reno, C. Lester Zahniser, of Sparks, for Petitioner.
Cooke & Cooke, of Reno, for Respondent.
1. Mandamus; Process.
Sufficiency of complaint in specific performance suit could not be tested in the district or supreme court
by means of a motion to quash the service of summons.
2. Mandamus.
Contention that mandamus to compel the district court to assume jurisdiction of a specific performance
action would not lie because other remedies such as a motion to vacate the order for quashing service of
summons and appeal therefrom furnished an adequate remedy could not be maintained where there was no
judgment, nor would there be one in the event of the denial of a further motion to vacate the order quashing
service.
3. Appeal and Error; Specific Performance.
In suit for specific performance of a contract for sale of interest in realty alleged fact that the contract was
incomplete would be ground for sustaining a demurrer to the complaint and if plaintiff should then
stand on his complaint and permit judgment to be entered against him the matter
could be presented on appeal from such judgment.
and if plaintiff should then stand on his complaint and permit judgment to be entered against him the matter
could be presented on appeal from such judgment.
An order quashing service of summons is not appealable. N.C.L.1929, sec. 9385.60.
5. Mandamus.
In specific performance suit, where district court quashed service of summons on ground that complaint
did not state a cause of action, thereby in effect disposing of the matter, and there was no statute or rule of
court by which the sufficiency of the complaint could be so tested, peremptory writ of mandamus was
granted to compel the district court to assume jurisdiction of the action.
OPINION
Petitioner has filed herein his petition for a writ of mandamus to compel the respondent
court to assume jurisdiction of action No. 128531 in department No. 1 of said court, and to
try the issues of said action. Respondent has demurred to such petition and has filed a
response and answer thereto.
It appears that on February 10, 1950, petitioner filed a complaint in respondent court in
which petitioner was named as plaintiff and L. T. Brockbank was named as defendant. He
alleged the execution of a contract executed by defendant as follows:
Sparks, Nevada
May 18th, 1946
To Mr. J. B. LaGue:
To Whom it may Concern:
This is to confirm a previous talk I had with you on the one third interest in the Big Ledge,
Big Ledge No. 1 and Big Ledge No. 2 belonging to L. T. Brockbank, Jr. of New Jersey. The
price agreed on for this interest is $500.00 Five Hundred Dollars, 250.00 to be paid on
receiving deed and balance to be fixed in a satisfactory manner.
That on the same day $50 was paid down and receipted for by the defendant to apply on
the payment of $250.00 due on receiving of the deed to the Big Ledge claims; that on June
14, 1946 an additional $200 was paid and receipt thereof was acknowledged by the defendant
to apply on the purchase price of $500.00balance due $250.00. The plaintiff further
alleged that it was at all times agreed between the parties that the agreement was fair and
reasonable; that on June 14, 1946 the defendant tendered the plaintiff a quitclaim did
purporting to convey the one-third interest in the claims, but as the deed was not
acknowledged it was returned for such acknowledgment, and though defendant agreed to
have it acknowledged and delivered, he had thereafter failed, neglected and refused to deliver
any deed, though the same was frequently demanded; that plaintiff has always been ready,
able and willing to complete payment of the purchase price, namely, the $250 balance and
deposited the same with the clerk of the court upon the filing of the complaint. He sought
specific performance. Upon the filing of the complaint and the issuance of summons plaintiff
filed his affidavit for publication of summons, reciting in brief the execution of the contract,
the readiness of plaintiff to perform, defendant's refusal, the nonresidence of the defendant
and his present residence in Schenectady, New York, etc. Order for publication of summons
was made and summons returned, showing personal service on the defendant in New York.
Before expiration of time for appearance, defendant served a notice of motion for an order to
quash service of summons upon the ground that no cause of action was stated in that the
alleged contract sought to be specifically enforced, on its face is incomplete; that it is too
uncertain and indefinite to be susceptible of specific performance, and it does not appear that
the contract sought to be specifically enforced is either fair or reasonable to the defendant, nor
that the consideration is adequate. The motion to quash was presented and the court
ordered it submitted on briefs, and thereafter granted the motion "on the ground and for
the reasons stated in the notice of motion."
and the court ordered it submitted on briefs, and thereafter granted the motion on the ground
and for the reasons stated in the notice of motion.
No judgment was entered, but petitioner points out that when the respondent court quashed
service upon the ground that the complaint did not state a cause of action for specific
performance, it effectively disposed of the matterat least to the extent that the court refused
to assume jurisdiction of the case or set the same for trial upon any issues of law or fact. He
contends that the case is governed by Floyd v. District Court, 36 Nev. 349, 135 P. 922, 923, 4
A.L.R. 646, in which this court held that although errors committed in the exercise of judicial
discretion cannot be made the subject of review, nor can they be corrected by a writ of
mandamus, nevertheless, where a district court erroneously decides that it has no
jurisdiction, the writ of mandamus is the proper remedy to compel that tribunal to do that
which the law prescribes it should doassume jurisdiction and proceed with the cause. That
case was an appeal from a justice's court, and the district court had granted a motion for an
order dismissing the appeal. This court said that the dismissal of a case is a refusal to hear and
determine it, and that the party aggrieved might properly invoke mandamus to compel the
court to set the case and proceed to its determination.
The granting of the motion to quash in the present case was just as effective as the
dismissal of the appeal in the Floyd case. Here, as there, the court divested itself of
jurisdiction, which it could not do by an erroneous order any more than it could assume
jurisdiction by arbitrarily saying that it had the right to proceed. The finality of the order,
based, as it was, on the failure of the complaint to state a cause for specific performance, is in
no doubt, as it is obvious that the complaint was not susceptible of amendment as to the
written contract between the parties, the terms thereof, the payments made thereunder and the
relief sought.
[Headnote 1]
It is apparent from the grounds stated in the motion to quash, which were the same
grounds upon which the court granted the motion, that the main question submitted to the
respondent court was whether the complaint stated a cause for specific performance. That
question is likewise argued at length with citation of many authorities in respondent's briefs
filed in this court. In other words, the sufficiency of the complaint was tested in the district
court by means of motion to quash service of summons. It is likewise sought to be tested in
this court in support of the validity and propriety of respondent's order quashing service.
Respondent has pointed to no statute or rule of court under which the sufficiency of a
complaint may be thus tested, and we know of none. As said in State ex rel. Sullivan v.
Tazwell, 123 Or. 326, 262 P. 220, 222, in which mandamus was granted requiring the
respondent judge to proceed with an action: We cannot determine in this proceeding the
sufficiency of the complaint in that action. If said steamship company [the defendant in the
principal suit] wishes to test the sufficiency of the complaint, it should proceed by motion or
demurrer. Motion to quash the service is not the proper method to determine the sufficiency
of the complaint.
Respondent insists that the act sought to be coerced is the vacating by respondent court of
its order quashing service. We need not discuss the authorities cited in support of this
contention, as we are satisfied that the act sought to be coerced is the assumption of
jurisdiction over the controversy.
[Headnote 2]
Respondent contends that mandamus will not lie because other remedies are open, namely,
a motion to the respondent court to vacate the order quashing service and an appeal from such
order refusing to vacate the former order. Such an appeal, respondent contends, would be
available under our statute permitting appeals from special orders made after judgment.
from special orders made after judgment. But there was no judgment, nor would there be one
in the event of a denial of a further motion to vacate the order quashing service. Respondent
attempts to support the availability of a motion to vacate the order quashing service by
citation of authorities rejecting a presumption of an erroneous denial of such motion. But here
again respondent misconceives the purpose of the writ sought. It is not the vacating of the
order quashing service, but the assumption of jurisdiction to try and dispose of the issues of
the case. Respondent says: Judge McKnight has not refused to proceed with the trial. He has
never been requested so to do. He merely decided that the service of summons was void.
The effect of respondent's order, as we have pointed out, was to refuse to assume jurisdiction.
Respondent attempts to distinguish Floyd v. District Court, 36 Nev. 349, 135 P. 922, 4
A.L.R. 646, but we think that case clearly controls the question of the petitioner's right to
mandamus herein. Petitioner also refers to subsequent cases in this court in which the Floyd
case was cited. We do not find, however, that in any of such cases was the validity of the
ruling in the Floyd case questioned.
[Headnotes 3,4]
The last 13 pages of respondent's brief are occupied with argument and authority to the
effect that the decision of the respondent court was correct as to incompleteness of contract
sued on precluding specific performance. If so, this would be ground for sustaining a
demurrer to the complaint. If the plaintiff should then stand on his complaint and permit
judgment to be entered against him, that matter could be presented on an appeal from such
judgment. The order quashing service is not appealable. N.C.L.1929, sec. 9385.60.
[Headnote 5]
The peremptory writ is granted with costs, and the cause is hereby remanded to the
respondent court for the purpose of its assuming jurisdiction over the cause and
determining such issues of law and fact as may be raised by the pleadings, by the entry of
such orders as may be appropriate to permit such issues to be presented and determined.
the purpose of its assuming jurisdiction over the cause and determining such issues of law
and fact as may be raised by the pleadings, by the entry of such orders as may be appropriate
to permit such issues to be presented and determined.
On Petition and Supplemental Petition
for Rehearing
March 21, 1951. 229 P.2d 162.
Petition by J. B. LaGue against the Second Judicial District Court of the State of Nevada,
in and for the County of Washoe, Department No. 1 thereof, for a peremptory writ of
mandamus to compel the court to assume jurisdiction of an action and to try the issues. The
Supreme Court, 227 P.2d 436, granted the peremptory writ with costs. On petition for
rehearing the Supreme Court, per curiam, ordered a portion of original opinion stricken,
refused to consider a point raised for the first time in supplement to petition for rehearing and
held that successful petitioner was properly allowed his costs notwithstanding official status
of respondent.
Original opinion modified and petition for rehearing and motion to modify original
decision by disallowing costs denied.
Martin J. Scanlan and C. Lester Zahniser, of Reno, for Petitioner.
Cooke & Cooke, of Reno, for Respondent.
Supreme court will not consider a point raised for the first time on motion for rehearing
or in a supplement to a petition for rehearing.
2. Mandamus.
While the availability of a remedy by appeal may be taken into consideration in
determining the propriety of granting a writ of mandamus, it is not jurisdictional, since
the remedy by appeal may not be speedy or adequate.
writ of mandamus, it is not jurisdictional, since the remedy by appeal may not be speedy
or adequate.
3. Courts.
In original proceeding for peremptory writ of mandamus, an objection to item in
petitioner's cost bill which had not been heard by clerk was not before the supreme court,
though objection was addressed to the court. Rules of Supreme Court, rule 6, subd. 3.
4. Mandamus.
In original proceeding in supreme court, for peremptory writ of mandamus to compel
district court to assume jurisdiction of a specific performance suit, successful petitioner
was properly allowed his costs, notwithstanding official status of respondent.
Per Curiam:
Our original order in this case was for the issuance of a writ of mandamus to compel
respondent court to assume jurisdiction after it had erroneously divested itself of jurisdiction
by an order quashing service of summons. Respondent has filed a petition for rehearing, and
has since filed a supplement and a second supplement thereto. It is now contended that we
were in error in reciting: The order quashing service is not appealable. N.C.L.1929, sec.
9385.60. In support of such contention respondent cites State ex rel. Fowler v. Moore, 46
Nev. 65, 207 P. 75, 22 A.L.R. 1101; Tiedemann v. Tiedemann, 35 Nev. 259, 129 P. 313;
Klepper v. Klepper, 51 Nev. 145, 271 P. 336; and City of Los Angeles v. Eighth Jud. Dist.
Court, 58 Nev. 1, 15, 67 P.2d 1019, 1022. The sentence quoted was not necessary to the
opinion and decision, and under the cases above cited, is not true in all cases. It is, therefore,
ordered stricken from the opinion.
[Headnotes 1, 2]
Respondent asserted, in answer to the writ, that the order quashing service was an
appealable order as an order after judgment, but we pointed out that there was no judgment.
Respondent now contends for the first time, in his supplemental memorandum, that it was
appealable as a final order under the Tiedemann and other cases.
other cases. This court will not consider a point raised for the first time on motion for
rehearing. Gamble v. Silver Peak Mines, 35 Nev. 319, 133 P. 936. A fortiori, it will not
consider a point raised for the first time in a supplement to a petition for rehearing.
Respondent seeks to avoid this situation by his assertion that such rule does not apply to
jurisdictional points. However, while the availability of a remedy by appeal may be taken into
consideration in determining the propriety of granting a writ of mandamus, it is not
jurisdictional. As in cases involving applications for a writ of prohibition, remedy by appeal
is not always speedy or adequate. International Life Underwriters, Inc. v. Second Judicial
District Court, 61 Nev. 42, 113 P.2d 616, 115 P.2d 932; Bell v. First Judicial District Court,
28 Nev. 280, 81 P. 875, 1 L.R.A., N.S., 843, 113 Am.St.Rep. 854, 6 Ann.Cas. 982.
The original opinion, modified as above, may stand, and the petition for rehearing is
denied.
On Costs
[Headnotes 3, 4]
Respondent has filed an objection to a $10 item in petitioner's cost bill. Although the
objection is addressed to the court, it is not before us as it has not been heard by the clerk.
Rule VI, subd. 3, Rules of the Supreme Court. Respondent has also moved that we modify
our former decision allowing petitioner his costs, by disallowing the same, by reason of
respondent's official status. This court has on many occasions allowed costs in such cases. It
may be reasonable to presume that in most cases they have been paid by the real party in
interest and not by the respondent court or the respondent judge. The motion is denied.
____________
68 Nev. 134, 134 (1951) State v. Arellano
THE STATE OF NEVADA, Respondent, v.
GREGORIO ARELLANO, Appellant.
No. 3604
February 19, 1951. 227 P.2d 963.
Appeal from the Second Judicial District Court, Washoe County; William McKnight,
Judge, department No. 1.
Gregorio Arellano was convicted in the Second Judicial District Court of Washoe County,
William McKnight, Judge, department No. 1, of murder in the first degree, and he appealed.
The Supreme Court, Eather, J., held that evidence warranted jury in concluding that killing
was done with malice and deliberation, so as to justify first-degree murder conviction.
Affirmed.
Peter Echeverria and C. Clifton Young, of Reno, for Appellant.
Alan Bible, Attorney General, R. L. McDonald, Deputy Attorney General, Harold O.
Tabor, District Attorney, and Grant L. Bowen, Deputy District Attorney, of Reno, for
Respondent.
Evidence failed to establish contention of defendant that court appointed counsel was negligent in
preparation of trial of murder prosecution or was guilty of any lack of skill, which had denied defendant
due process.
2. Homicide.
Evidence warranted conclusion by jury that the killing by defendant of girl with whom he was secretly
enamored, and of whom he was jealous, was done with malice and deliberation, justifying conviction of
first-degree murder.
3. Criminal Law.
If defendant had any true defense to murder charge, it was his duty to disclose it to his court appointed
counsel, and if counsel was unwilling to present the defense, to appeal to the trial court to assign counsel
who would, and defendant could not wait until after conviction and expect to have another trial on another
theory of defense by shifting blame for the one which failed, on his counsel.
4. Criminal Law.
In murder prosecution, instruction that voluntary intoxication is no excuse to crime committed under its
influence, and that such is so even when intoxication is so extreme as to make the person unconscious of
what he is doing or to create temporary insanity, was not erroneous, when read in connection with
instruction that whenever actual existence of any particular purpose, motive, or intent is a necessary
element to constitute a particular species or degree of crime, fact of intoxication of defendant may be
considered in determining such purpose, motive, or intent.
5. Criminal Law.
In determining whether an instruction is erroneous, whole charge relating to same subject must be taken
together and considered as an entirety.
OPINION
Appellant was convicted of the crime of murder of the first degree, and the penalty of
death was imposed. An information was filed on September 15, 1949, in the Second judicial
district court, in and for the county of Washoe, charging the appellant with the crime of
murder, and he was duly and regularly scheduled to be arraigned on September 15, 1949, at
which time C. Benson Tapscott was appointed as counsel to represent him, and on said
September 15, 1949, the arraignment was continued to October 7, 1949. Thereafter, to wit, on
October 7, 1949, the appellant duly and regularly entered his plea of not guilty and the trial
date was fixed for November 30, 1949. The trial commenced on that day and ended on
December 2, 1949, when the jury returned its verdict of guilty of murder of the first degree
and fixed the punishment at death. The appellant did not testify and presented no evidence in
his behalf. Thereafter and pursuant to the verdict of the jury, sentence of death was imposed
by the Second judicial district court on December 7, 1949.
No motion for a new trial was made, but on February 15, 1950, the appellant petitioned the
court for the appointment of defense counsel to investigate and consider the rights of
appellant in an appeal from the judgment rendered therein. Pursuant to the petition the
court appointed Peter Echeverria, esq., to act on behalf of the appellant and to take such
steps as he deemed necessary in his behalf.
appointment of defense counsel to investigate and consider the rights of appellant in an
appeal from the judgment rendered therein. Pursuant to the petition the court appointed Peter
Echeverria, esq., to act on behalf of the appellant and to take such steps as he deemed
necessary in his behalf. On February 20, 1950, a notice of appeal from the said judgment and
the whole thereof was duly filed with the clerk of the second judicial district court. The
grounds urged on this appeal for a reversal of the judgment may be grouped under seven
heads, namely: (1) Is the indigent appellant entitled to the presentation of a reasonably
competent defense under due process requirements? (2) If the defendant or appellant is so
entitled, did he in this case receive a type of trial that is guaranteed by these requirements of
due process? (3) Was the defense so incompetently conducted as to violate the
requirements of due process and require the granting of a new trial? (4) Did the court
commit prejudicial error in instructing the jury that voluntary intoxication is no excuse to a
crime committed under its influence, even when the intoxication is so extreme as to make a
person unconscious of what he is doing or to create temporary insanity, when considered in
connection with the further instruction given, hereinafter discussed? (5) Did the court commit
reversible error in allowing to be introduced in evidence a colored picture of the deceased?
(6) Did the court commit reversible error in allowing, over objection of the defendant's
counsel, testimony of admissions of the defendant? (7) Did the state sufficiently discharge the
burden of proof incumbent in this type of case?
At the trial of the action, the following witnesses appeared for and on behalf of the State of
Nevada, and a summary of their testimony is as follows:
George F. Crook, who resides at 1228 A Street in Sparks, Nevada, testified that he was a
druggist by profession and that he had been employed by Hilps Drug Store in Sparks,
Nevada, prior to the night of August 10, 1949, and that he was so employed on the night
of August 10, 1949, the evening when, as it is alleged in the information, Esperanze
Rodriquez was shot and killed by Gregorio Arellano.
Store in Sparks, Nevada, prior to the night of August 10, 1949, and that he was so employed
on the night of August 10, 1949, the evening when, as it is alleged in the information,
Esperanze Rodriquez was shot and killed by Gregorio Arellano. According to his testimony,
the deceased and Jean Martin, both employees at the soda fountain, left the drug store at
about 10:15 p. m., and that the three of them started walking west on B street to their
respective homes in the western section of Sparks. Mr. Crook was walking on the outside
next the sidewalk, the deceased was walking next to the buildings on B street, and Mrs.
Jean Martin was walking between these two people. As they approached the entrance to the
Crystal Bar, which is at the corner of 10th street, and B street and west of Hilps Drug Store,
Mr. Crook testified that he saw Arellano rapidly walk up to the corner entrance of the Crystal
Bar and that as they passed the corner entrance by several feet, he heard two shots fired in
rapid succession; a third shot followed almost immediately. After the first two shots were
fired, Mr. Crook turned to the direction from which they were apparently coming, that is, to
the right and rear, and saw Arellano fire a third shot. After that, Mr. Crook then saw the
defendant turn the gun on himself and fall to the sidewalk. Esperanze Rodriquez immediately
fell to the sidewalk and died almost instantly. He positively identified Gregorio Arellano as
the man who shot Esperanze Rodriquez on the night of August 10, 1949.
Mrs. Jean Martin, a co-worker employed at Hilps Drug Store, and who resides at 328 11th
Street, Sparks, Nevada, testified to practically the same circumstances as Mr. Crook, but
stated that as they were walking past the Crystal Bar, she saw Gregorio Arellano coming out
and heard the deceased speak to Arellano. She further testified that she was very frightened,
that she heard only two shots and that she ran to the Block S Fountain, which is adjacent to
the Crystal Bar.
Dick Avansino, age 17, and a student at the Sparks high school, gave an eye-witness
account of the shooting, and stated that while he and his friend Lee Ceccarelli, were standing
on the sidewalk in front of the Block S Fountain, he heard three shots, that he saw Gregorio
Arellano shoot the deceased three times, that she fell to the sidewalk, and that defendant then
shot himself.
Lee Ceccarelli, also a student at the Sparks high school, gave an eye-witness account of the
facts and circumstances surrounding the shooting and death of Esperanze Rodriquez, and his
testimony was practically the same as the testimony of Dick Avansino.
Gino Questa, who resides at 1561 A Street in Sparks, Nevada and is an operator of the
Block S Fountain, testified that he was sitting in the back seat of a car owned by Jim Jensen,
which car was parked in front of the Block S Fountain; that he saw George Crook, Jean
Martin and the deceased walking west on B Street, and that as they passed the Crystal Bar,
he saw Gregorio Arellano fire three shots into the deceased and then saw him fire a fourth
shot into himself.
Jim Jensen, who resides at 337 Pyramid Way, Sparks, Nevada, and is an employee of the
Nevada Auto Supply Company in Reno, testified that he had parked his car in front of the
Block S Fountain in Sparks, and that he was sitting in the front seat along with Bill Bailey,
when he heard a shot and that he then saw the defendant fire two shots into the body of
Esperanze Rodriquez as she fell to the sidewalk. He then saw the defendant shoot himself.
Furthermore, he positively identified the defendant as the man who did the shooting, and
testified that he had known the defendant for sometime prior to the shooting because he had
been at one time employed as a bartender at the Owl Bar where the defendant on occasion
had cashed his pay checks. Jim Jensen also testified that he saw the defendant and a
companion go into the Crystal Bar shortly before the shooting; that he observed his condition
and that he saw that he was not staggering or that he was not acting in an unusual manner.
not staggering or that he was not acting in an unusual manner.
Bill Bailey, who resides at 242 Caliente Street, Reno, Nevada, and an employee of the
Western Cigar Company for approximately three years, testified to the facts and
circumstances surrounding the shooting and his testimony was practically the same as that of
Jim Jensen and Gino Questa, with the exception that he did not see the defendant go into the
Crystal Bar shortly before the shooting.
Dr. H. Earl Belknap, M.D., 1129 D Street, Sparks, Nevada, testified that he had known
Esperanze Rodriquez practically all of her life and that on the night of August 10, 1949, while
approximately a block away, he heard four or five shots; that he hurried to the Crystal Bar
where he saw a crowd gathering; that upon his arrival at the scene of the homicide, he
ascertained without any trouble that Esperanze Rodriquez was dead.
Dr. Rodney E. Wyman, 729 North Virginia Street, Reno, Nevada, testified that when he
examined the defendant at the Washoe Medical Center on the night of August 10, 1949, the
defendant was suffering from a gunshot wound; that he did not observe any signs of
intoxication about the defendant and that he performed surgery on Gregorio Arellano.
George Rogers, while on duty as an officer in the Sparks police department, testified that a
call was received at 10:12 p. m., on the night of August 10, 1949, and that he was requested
to go to the Crystal Bar, corner of 10th and B streets, where a shooting had taken place. He
positively identified the death weapon which was introduced in evidence, as having been
picked up by him near Arellano, and that there were four fired cartridges and two unfired
cartridges in the revolver.
Officer John Macy, also of the Sparks police department, testified to being called to the
Crystal Bar at the corner of 10th and B streets, in Sparks, and identified the gun and shells
which were introduced in evidence.
the gun and shells which were introduced in evidence.
Dr. Lawrence Parsons, autopsy surgeon, testified that he performed an autopsy upon the
body of Esperanze Rodriquez; that his examination disclosed the finding of three entrance
wounds in the right lower lumbar region of the back of the deceased, and gave as his opinion
that death was caused by gunshot wounds. He further identified a lead bullet which he
removed from the girl's body as being one of the bullets which could have resulted in the
girl's death.
Mrs. Antonio Rodriquez, an employee of the Southern Pacific Railroad Company, and
residing at 105-20th street in Sparks, Nevada, testified that she was the mother of the
deceased, who had graduated from the Sparks high school during the month of June, 1949.
She further testified that Arellano had visited at her home on one occasion a year previous to
the shooting, and that so far as she knew, Arellano had never at any time or at all asked her
daughter to go out with him, and that, in fact, her daughter never discussed Arellano with her
at any time.
Richard Heap, superintendent of the bureau of identification of the Reno police
department, being duly qualified as an expert witness, gave his opinion that the bullet which
was removed from the body of the deceased by Dr. Lawrence Parsons, was the same bullet
which was fired from the .38 calibre Smith and Wesson revolver found in the immediate
vicinity of Arellano as he lay on the sidewalk in front of the Crystal Bar.
Tom Williams of the Sparks police department, testified that he was present at a
conversation which took place at the Washoe Medical Center on August 11, 1949, and that
present in addition to himself, were Mr. Harold O. Taber, Miss Thelma Gault, a court
reporter, and Arellano. He testified that certain statements were made by Arellano; that they
were given freely and voluntarily and that no promise or hope of reward was made to
Arellano; that in his opinion Arellano understood the nature of the questions and gave
rational and coherent answers to the questions asked of him by Mr.
made to Arellano; that in his opinion Arellano understood the nature of the questions and
gave rational and coherent answers to the questions asked of him by Mr. Taber. Williams
testified, among other things, that Arellano said that he had talked with Esperanze Rodriquez
over the telephone around 12 o'clock on the day before the shooting and that the telephone
call was made from the Lido Hotel in Reno, Nevada. During this conversation, Arellano
stated that the deceased said that she would go out in the car with him sometime, although
she said she would not go out with him on the night of the shooting. According to Williams's
testimony, Arellano stated that he drove to Carson City, Nevada, by himself and that he had
about seven high balls while in Carson City. When questioned by Mr. Taber as to his drunken
condition, Arellano stated that he was not very drunk. Arellano stated, according to the
testimony of the witness, that he returned to Sparks about 8 o'clock on the night of August 10,
1949; stopped at the Crystal Bar where he had two or three drinks and then drove to the Vista
Beer Gardens, which is east of Reno, and had three shots of beer, and after drinking the beer
returned to Sparks. He met a friend of his whom he knew as a fellow employee, and they
went into the Crystal Bar together where they had something to drink. Arellano then told
Williams that he knew where the deceased lived, that he knew that it would be necessary for
her to walk west to her home, that it would be necessary for her to pass the Crystal Bar, and
that on that particular evening the front door of the Crystal Bar was open thereby permitting
one standing in the south end of the bar to have a clear view of the sidewalk and the people
walking west on B street in Sparks. Arellano then told this witness that shortly after the
deceased got off from work he saw her walking west on B street accompanied by another
girl and fellow, and that as they approached the doorway of the Crystal Bar the deceased
said "hello" to the defendant as he reached the doorway, and that Arellano did not say
anything, but immediately shot her two or three times although he didn't remember the
exact number.
Bar the deceased said hello to the defendant as he reached the doorway, and that Arellano
did not say anything, but immediately shot her two or three times although he didn't
remember the exact number. According to this witness, he stated that he was not too drunk to
know what he was doing, and when asked why he shot the girl, he said, Because I like her
too much, and he further stated that he didn't like to see her with another boy and that he
was jealous. When asked when he made up his mind to shoot deceased, Arellano said that he
had made up his mind when he was driving to Carson City, which was about 4 o'clock in the
afternoon preceding the shooting.
Cleophas Gamboa, an employee of the Southern Pacific Railroad Company, and residing
in a Sparks dormitory, testified, through a court appointed interpreter, that on one occasion
and within three months previous to the shooting he had a conversation with Arellano in
which Arellano stated that if Miss Rodriquez didn't belong to him, she couldn't belong to
any one else.
Martin Vasquez, also an employee of the Southern Pacific Railroad Company, and
residing in one of the dormitories on the railroad property, stated that he had known Arellano
for about two years; that he had seen him frequently, and that he had also known the deceased
practically all of her life; that he saw the defendant on the morning of August 10, 1949, at
about 11 o'clock and had a conversation with him. In response to a question as to whether he,
Arellano, would be coming back or if he was not, where he was going, Arellano said that he
did not know where he was going, and he further said: I don't know if I am going to come
back.
Robert Aris Burnall, an employee of the Pacific Fruit Express, stated that he had known
Arellano for about 15 or 16 months, and that he had occasion to see him on the night of
August 10, 1949; that they met in front of the Crystal Bar. After having a drink in the Crystal
Bar, Burnall and Arellano walked to the Waldorf Bar, which is directly east of and adjacent
to the Hilps Drug Store, where they had another drink together.
Bar, Burnall and Arellano walked to the Waldorf Bar, which is directly east of and adjacent to
the Hilps Drug Store, where they had another drink together. After that, they left and started
to walk to the Crystal Bar, and as they did so Arellano looked into the window of the drug
store, but did not say anything. They went into the Crystal Bar, stood at the south end and
ordered a drink. Arellano kept watching the front entrance and without saying anything
suddenly walked to the front door and outside. Burnall heard three rapid shots in a row, and
then heard another shot. As he went outside, he saw that Arellano was lying near the entrance
to the bar and that the gun was lying about two feet from his left side. Burnall also testified
that prior to the shooting, Arellano acted in a natural manner, did not seem to be excited and
that he never at any time mentioned the fact that he had a gun in his possession. He further
stated that Arellano did not appear to be drunk and that in general, he appeared to act
normal to him.
Deputy Sheriff Jack Goss of the Washoe County sheriff's office testified that he was
present at a conversation in the office of the district attorney of Washoe County, Nevada, on
the afternoon of Friday, August 26, 1949, at about the hour of 4 p. m. and that present in
addition to himself, was Mr. Harold O. Taber and Miss Thelma Gault, a court reporter.
Deputy Goss testified that Arellano answered all questions asked of him freely and
voluntarily, stated that no promise or offer of immunity was made to Arellano, and that in his
opinion Arellano understood the questions asked of him and answered in a coherent and
intelligible manner; that in general Arellano told Mr. Taber that the day before the shooting at
about 3:30 he came to Reno and got drunk, that he stayed at the Los Angeles Hotel in Reno
that night and got about six hours sleep; that he got up about 9:30 the morning of August 10,
had a couple of beers and went down to Sparks; that he arrived in Sparks about 10 or 10:30;
he drank a bit at the Owl Bar, remembered that it was pay day and went to the Southern
Pacific office where he got his check; that his check was for one hundred five dollars and
some odd cents; that he cashed his check at the Owl Bar about 11 o'clock that morning,
drank again, took a taxi and came to Reno to get his car; that he had left his car in front of
the Lido Bar on Lake Street.
arrived in Sparks about 10 or 10:30; he drank a bit at the Owl Bar, remembered that it was
pay day and went to the Southern Pacific office where he got his check; that his check was for
one hundred five dollars and some odd cents; that he cashed his check at the Owl Bar about
11 o'clock that morning, drank again, took a taxi and came to Reno to get his car; that he had
left his car in front of the Lido Bar on Lake Street. He further testified that Arellano, after he
picked up his car, drove to Fallon, stopping in Fernley where he got a shot of beer; that upon
arrival in Fallon at about 2 o'clock he went to see a girl at a house where he stayed about 20
minutes; that he went to a bar and drank again and had something to eat and returned to
Sparks, stopping at Fernley at the same bar; that from Sparks he drove to Carson City where
he arrived around 5 o'clock and that he drank beer at two bars, one of which he did not know
the name of and the other was the Toscano at Carson City; that he left Carson City around
8:30 and returned to Sparks; that on all of these trips, Sparks to Reno, to Fallon, to Carson
City and return he was alone; that he arrived in Sparks about 9:45, and that he had a watch
with him all the time and from Sparks he went out to Vista where he had some beer. When
asked what kind of beer he drank, he said, Sierra; that he then returned to Sparks and
parked his car in front of the Waldorf Bar, and that he got out of his car and found a friend of
his whose name he did not recall but who worked for the P.F.E. and that he and his friend had
a drink at the Waldorf Bar; that he told his friend that he wanted to go get a drink at the
Crystal Bar stating, I was waiting for the girl to get off; that he and his friend walked in
front of Hilps Drug Store, that he looked in as he went by and saw that she was working; that
he and his friend went into the Waldorf Bar where he had another shot of whiskey and then
went to the Crystal Bar where he had another shot of whiskey; that when he saw the girl
whom he called Esperanze, he went to the doorway and shot her; that he didn't know
where he shot her, but that he remembers shooting her three times and that then he shot
himself through the stomach from the right side.
called Esperanze, he went to the doorway and shot her; that he didn't know where he shot her,
but that he remembers shooting her three times and that then he shot himself through the
stomach from the right side. When asked whose gun he used he stated that it was a .38
Special belonging to him, that it had six cartridges and that he had owned it since 1947,
having purchased it in Reno, and that he had shot it several times in target practice. He
stated, according to this witness that he had kept the gun in his cabin and that he put the gun
in the car in a little box on the dash board when he left Sparks for Fallon, that he had made
up his mind to shoot the girl the night before and that he took his gun out of the car when he
stopped in front of the Waldorf Bar and put it in his pocket; that the reason he did this was
because he intended to shoot the girl. When asked the reason for shooting the girl Arellano
stated it was for love, that she had promised to go out with him, to go for a ride in his car and
that he had talked with her the night before and again that day by telephone and that she had
changed her mind, that she had told him, no; that he had never taken her any place but that
she had waited on him in Hilps Drug Store. He was asked if he made any plans to shoot her
and he said no, he just intended to shoot her, that he was jealous; that he knew where she
worked, that she got off work at 10 o'clock; that he knew in which direction she would walk
as she left work to get to her home and that she would pass in front of the Crystal Bar and that
he waited for her in the Crystal Bar, and that he made sure she was working and knew his gun
was loaded, that he had loaded it himself when he put the gun in his right front pocket. When
asked if he knew what he was doing when he shot her, he said yes, he knew, that he
recognized her as soon as he saw her; he knew she was in the store and there was another girl
with her and another man. That he had never seen the other man before and that when he shot
himself he intended to kill himself; that he shot himself once and that he remembers the girl
telling him "hello" just before he shot her.
once and that he remembers the girl telling him hello just before he shot her.
In brief, appellant's contention here is that due to mistakes, errors, apathy and negligence
of court appointed counsel he was denied assistance of competent counsel and so is being
deprived of his life without due process. It is also contended that there was prejudicial error in
instructing the jury and also that the state did not meet the burden of proof as to deliberation
and premeditation.
[Headnote 1]
A reading of the entire transcript gives no indication that the trial attorney was apathetic or
negligent or that in the preparation and trial of the case he was guilty of any lack of skill. The
present contention seems to be chiefly that the defense of insanity should have been
interposed. There is, in our opinion, nothing in the case to indicate that such defense would
have had any fairly reasonable promise of success. The chance of such a successful defense
seems to be very remote. Trial counsel obtained an instruction as to the effect of appellant's
drinking as bearing upon the deliberation and premeditation necessary for first-degree murder
and he cross-examined at length every one of the prosecution's witnesses to bring out in
further detail the extent of appellant's drinking on the day before the killing and the day of the
killing. There is no suggestion that counsel did not argue this point to the jury.
Appellant's counsel is criticized for failing to object or for failing to insist more
strenuously on his objections to certain evidence. The claim is not substantiated by a reading
of the transcript.
Defense counsel was criticized for not producing witnesses as to the appellant's insanity,
as to his reputation, etc., but no slightest suggestion is made that there were any such
witnesses available or that defense counsel did not as a matter of fact make a complete
investigation and search.
and search. Appellant's brief further states frankly that he has no further evidence to produce.
Certain errors in ruling on admissibility of evidence are asserted. The most important ones
go to the testimony as to two separate confessions. We see no merit in any of the assignments
of error.
Appellant did not take the witness stand in the lower court. That he killed Esperanze
Rodriquez was proved by eyewitnesses, and the killing has never been denied by him. In the
two separate confessions appellant stated that if Miss Rodriquez didn't belong to him, she
couldn't belong to any one else. When asked why he shot the girl he said, Because I like
her too much, and he further stated that he didn't like to see her with another boy, and that
he was jealous. These statements definitely show the motive for the killing. In the opening
brief of counsel for appellant it is stated, * * * the deceased, with whom the appellant was
secretly enamored, although he knew her but slightly. Thus the secret love which the
defendant had for the girl is admitted by counsel for appellant.
[Headnote 2]
His statement disclosed a motive, and from all the circumstances the jury was warranted in
concluding that the killing was done with malice and deliberation.
Counsel for appellant in this court did not represent him at the trial of the case, and they
contend that his counsel in the court below handled the case so incompetently as to violate
the requirements of due process and further that the defendant was not given the type of
trial ensured by our Constitutional concept of fair play. Because of the incompetency and
apathy with which the defense was presented in the district court, the appellant will have been
denied his day in court, in any real sense, unless this Honorable Court sees fit to grant a new
trial.
Upon these alleged shortcomings counsel here make a strong appeal for the reversal of
the judgment.
a strong appeal for the reversal of the judgment. Whether appellant would have fared better
under the guidance of other counsel is, of course, entirely speculative, but, in view of the
evidence upon which the jury found him guilty, it is safe to say that he might have been
convicted even if counsel of great skill had defended him in the court below.
Ordinarily, the negligence, or unskillfulness of counsel for a defendant in a criminal case
is no ground for reversal. State v. Jukich, 49 Nev. 217, 242 P. 590, 595; Ex parte Kramer, 61
Nev. 174, 122 P. 862.
In the case of State v. Jukich, supra, this court quoted approvingly from Sayre v.
Commonwealth, 194 Ky. 338, 238 S.W. 737, 738, 740, 24 A.L.R. 1017, as follows: Without
overriding the general rule of law applied by this court and others of this country, we cannot
reverse the judgment and grant appellant a new trial on the grounds of the incompetency and
unskillfulness of appellant's lawyer, for it cannot be said that he has not received a fair and
impartial trial.
Counsel in the lower court is criticized for not having made a motion for a change of
venue. The crime was indeed a brutal one, but there is nothing to indicate that a fair and
impartial jury could not have been obtained, or that any public feeling existed in the
community against the accused, or that any hostile feeling had been manifested against him at
all. So far as appears, such a motion, if made, would have been properly denied. State v.
Jukich, supra.
[Headnote 3]
The argument of appellant's counsel on this appeal to the effect that the failure to object to
many questions asked by the district attorney which it is claimed elicited testimony of a
prejudicial nature, indicated incompetency, takes a very wide range. We do not propose to
follow it and discuss in detail the various questions and responses thereto stressed by counsel.
We have examined the entire record in this regard, and do not find anything worthy of
serious consideration in sustaining the claim of neglect and incompetence.
find anything worthy of serious consideration in sustaining the claim of neglect and
incompetence. An attorney's ability cannot be measured by the number of objections he
makes. There is no showing that appellant had any defense. Cases of murder without real
defense are not uncommon. If appellant had any true defense it was his duty to disclose it to
his counsel, and if the latter was unwilling to present it, to appeal to the court to assign him
counsel who would. He cannot wait until after conviction and expect to have another trial on
another theory of defense by shifting the blame for the one which failed, upon his counsel.
[Headnote 4]
Appellant next urges that the court committed prejudicial error in reading instruction No.
12 to the jury. Instruction No. 12 is as follows: Voluntary intoxication is no excuse to a
crime committed under its influence, and this is so even when the intoxication is so extreme
as to make the person unconscious of what he is doing or to create temporary insanity.
No error was committed from the giving of this instruction. Instructions 11 and 12 when
read together, clearly state the law. Instruction No. 11 reads as follows: No act committed by
a person while in a state of voluntary intoxication shall be deemed less criminal by reason of
his condition, but whenever the actual existence of any particular purpose, motive or intent is
a necessary element to constitute a particular species or degree of crime, the fact of his
intoxication may be taken into consideration in determining such purpose, motive or intent.
State v. Thompson, 12 Nev. 140; State v. Johnny, 29 Nev. 203, 87 P. 3; State v. Butner, 66
Nev. 127, 206 P.2d 253.
[Headnote 5]
In determining whether an instruction is erroneous, the whole charge relating to the same
subject must be taken together and considered as an entirety. State v. Pritchard, 15 Nev. 74;
Allison v. Hagan, 12 Nev. 38;
State v. Raymond, 11 Nev. 98; State v. Donovan, 10 Nev. 36.
Counsel on this appeal state that defendant's trial attorney patently had no plan of defense
whatsoever. The record does not substantiate this. Our reaction to the record is that trial
counsel apparently concluded that the best he could accomplish for his client was to save him
from the death penalty; that to this end he assiduously devoted himself to the obtaining of all
the testimony possible as to defendant's excessive drinking during the period preceding the
shooting; that he did this through cross-examination of the state's witnesses because they
comprised, so far as known, all of the witnesses who could testify to such facts; that in
furtherance of such plan he obtained instructions from the court as to the propriety of the
jury's considering the defendant's state of intoxication to determine whether he could have
been guilty of deliberation and premeditation in the shooting. The transcript does not include
his argument to the jury, but defendant's present counsel have not even intimated that he did
not argue the point earnestly and forcibly.
As there is no prejudicial error in the record, the judgment and order appealed from are
affirmed, and the district court is directed to make the proper order for the carrying into effect
by the warden of the state prison of the judgment rendered.
Order Denying Petition for Rehearing
July 2, 1951.
Per Curiam:
Rehearing denied.
____________
68 Nev. 151, 151 (1951) Dillon v. Dillon
ELIZABETH ROTHERHAM DILLON, Appellant, v.
KENNETH P. DILLON, Respondent.
No. 3622
February 19, 1951. 227 P.2d 783.
Appeal from the Second Judicial District Court, Washoe County; Harry M. Watson,
Presiding Judge, department No. 2.
Suit by Kenneth P. Dillon against Elizabeth Rotherham Dillon for divorce, wherein
defendant filed cross-complaint for separate maintenance. From a decree for plaintiff the
defendant appealed. The Supreme Court, Merrill, J., held that under the record it could not be
presumed that the trial court was guilty of error which did not affirmatively appear upon face
of the record.
Judgment affirmed.
T. L. Withers, of Reno, for Appellant.
L. D. Summerfield and A. R. Schindler, both of Reno, for Respondent.
1. Divorce.
Where record on appeal consisted of judgment roll, and was devoid of any indication as to manner in
which findings in divorce action were settled or steps which led to their signing, and record was therefore
susceptible of conclusion that service of findings was either made as required or was not, supreme court
would not presume that trial court found that there was no service thereof. N.C.L.1931-1941 Supp., sec.
8784.
Supreme court will not indulge in presumptions against regularity of proceedings of trial court.
In absence of any express findings, supreme court will imply a finding in favor of judgment of trial court.
Where a judgment is rendered for plaintiff upon certain findings in his favor without reference to findings
of fact upon certain issues raised in the defendant's answer, it will be presumed that such findings were
found.
5. Divorce.
Where no finding of fact was made by trial court as to condition in which parties would be left by
divorce, and no factual issue was raised in proceedings as to such matter nor were facts
alleged upon such point, supreme court would presume on appeal that proper regard
was given by trial court to condition in which parties would be left by divorce.
N.C.L.1943-1949 Supp., sec.
issue was raised in proceedings as to such matter nor were facts alleged upon such point, supreme court
would presume on appeal that proper regard was given by trial court to condition in which parties would be
left by divorce. N.C.L.1943-1949 Supp., sec. 9463.
OPINION
This is an appeal from judgment of the Second judicial district court in and for Washoe
County. The appeal is upon the judgment roll alone. The principal question involved is as to
the sufficiency of the findings of fact to support the judgment of the trial court denying
alimony to appellant wife.
On March 11, 1949, respondent brought suit in the lower court asking divorce from
appellant upon the ground of extreme cruelty. Appellant, in response, filed an answer and
cross complaint for separate maintenance. In due course the action was tried before the court
without a jury.
On February 27, 1950, Corrected Findings Of Fact And Conclusions Of Law were
signed by the trial judge. Among the conclusions of law was one to the effect that plaintiff
was entitled to a decree that the defendant be denied any relief under and by virtue of her
Answer and Cross-Complaint, and that the defendant is not entitled to any award of alimony.
On March 4, 1950, a decree was signed by the trial judge granting respondent a divorce
from appellant and providing: That the defendant be, and she hereby is, denied any relief
under and by virtue of her Answer and Cross-Complaint, and that said defendant be, and she
hereby is, denied any award of alimony.
Appellant first contends that the court's findings of fact do not show that they were served
upon appellant five days prior to the signing thereof, pursuant to the provisions of sec. 8784,
N.C.L.1929 Supp. 1931-1941, no proof of service appearing in the record; that the
findings, accordingly, must be completely disregarded and the judgment reversed.
proof of service appearing in the record; that the findings, accordingly, must be completely
disregarded and the judgment reversed.
[Headnotes 1, 2]
It is true that no proof of service appears in the record. Confined as it is to the judgment
roll, the record is wholly devoid of any indication as to the manner in which the findings were
settled or as to the steps which led to their signing. From this it is equally true that it does not
affirmatively appear from the record that service was not made as required by statute. The
record is as susceptible of one conclusion as of the other. Under these circumstances it cannot
be presumed by this court that the trial court was guilty of error which does not affirmatively
appear upon the face of the record. This court will not indulge in presumptions against the
regularity of the proceedings of the trial court. Schwartz v. Stock, 26 Nev. 128, 143, 65 P.
351, 352.
Appellant next contends (as her second and third assignments of error) that the judgment
denying her alimony is unsupported by findings of fact and is based wholly upon a conclusion
of law which is likewise unsupported. In this appellant relies upon the following portion of
sec. 9463, N.C.L.1929 Supp.1943-1949: In granting a divorce, the court may award such
alimony to the wife and shall make such disposition of the community property of the parties
as shall appear just and equitable, having regard to the respective merits of the parties and to
the condition in which they will be left by such divorce, * * *.
No finding of fact was made by the trial court as to the condition in which the parties
would be left by the divorce. No factual issue was raised in the pleadings as to this matter.
Appellant, in seeking separate maintenance rather than alimony, alleged no facts upon the
point. By virtue of the statutory provision, appellant asserts, it is nevertheless incumbent upon
the court to make an express finding in that regard.
[Headnotes 3, 4]
In Dutertre v. Shallenberger, 21 Nev. 507, 34 P. 449, 450, this court held that upon all
facts properly pleaded, in the absence of any express findings this court will imply a finding
in favor of the judgment of the trial court. In Moore v. Rochester W. M. Co., 42 Nev. 164,
179; 174 P. 1017, 1022, 19 A.L.R. 830, it was stated: * * * where a judgment is rendered for
plaintiff upon certain findings in his favor without reference to the findings of fact upon
certain issues raised in defendant's answer, it will be presumed that such findings were
found.
[Headnote 5]
It is the view of this court that under the settled law of this state we must, a fortiori,
presume in the case before us that proper regard was given by the trial court to a matter
addressed to its consideration solely by statute and which the parties themselves have not
raised in the pleadings.
The judgment of the lower court is affirmed. Each party shall bear his own costs upon this
appeal.
Badt, C.J., and Eather, J., concur.
____________
68 Nev. 155, 155 (1951) Ex Parte Stearns
In the Matter of the Application of DAVE
STEARNS for a Writ of Habeas Corpus
No. 3644
February 20, 1951. 227 P.2d 971.
Original proceeding in the matter of the application of Dave Stearns for a writ of habeas
corpus for release from imprisonment under grand jury indictment for fraudulent voting. The
Supreme Court, Eather, J., held that where petitioner in habeas corpus offered to prove that
there was no legal evidence to support indictment, supreme court could determine whether
any substantial evidence existed which, if true, would support a verdict of conviction, but
because supreme court does not conduct hearings for presentation of oral evidence, cause was
referred to district court to take testimony and report same to supreme court.
Order in accordance with opinion.
Morse & Graves, of Las Vegas, and George L. Vargas, of Reno, for Petitioner.
Alan Bible, Attorney General, W. T. Mathews, George P. Annand, and R. L. McDonald,
Deputy Attorneys General, for Respondent.
1. Habeas Corpus.
In habeas corpus proceeding, inquiry may not be extended to determine sufficiency of evidence before
grand jury to warrant finding of an indictment.
2. Habeas Corpus.
Under statutes governing habeas corpus, a hearing and taking of testimony was compelled where
petitioner contended that no legal evidence was presented to grand jury to support indictment for fraudulent
voting. N.C.L.1929, secs. 10822, 11390, 11391, 11394, subd. 6.
3. Habeas Corpus.
Extent of inquiry in habeas corpus proceeding wherein petitioner contended that grand jury indictment
for fraudulent voting was supported by no legal evidence would be to ascertain if there were any probable
cause or any evidence which would indicate commission of a crime, any on which petitioner might be tried,
and on which a jury might act, and which would support a verdict of guilty. N.C.L.1929, secs. 10822,
11390, 11391, 11394, subd. 6.
4. Indictment and Information.
If indictment charging a public offense is without support of fact constituting such offense, accused
should not be put on trial and there is no foundation for the indictment.
5. Habeas Corpus.
In habeas corpus proceeding, court cannot determine in regard to substantial conflicts in evidence which
is an exclusive jury function, but court can inquire whether any substantial evidence exists which, if true,
would support a conviction.
6. Courts.
Supreme court does not conduct hearings for presentation of oral evidence.
7. Habeas Corpus.
Where petitioner in habeas corpus imprisoned under grand jury indictment for fraudulent voting
contended that there was no legal evidence to support indictment, supreme court referred cause to district
court to take testimony and report testimony to supreme court. N.C.L.1929, secs. 10822, 11390, 11391,
11394, subd. 6.
OPINION
Petitioner has been indicted by the grand jury of Clark County, Nevada, for having
fraudulently voted in the general election held November 5, 1946. He was committed and
later released on bail. He sought a writ of habeas corpus in the Eighth judicial district court,
but the writ was denied. Thereupon petitioner submitted himself to the sheriff of Ormsby
County and, upon being detained and imprisoned, he filed this original habeas corpus
proceeding. He has been released on bond fixed by this court.
Answering the writ of habeas corpus issued by this court on November 22, 1950, the
sheriff of Ormsby County states that he is holding petitioner under and by virtue of the
indictment aforesaid. We have before us a transcript of the proceeding in the Eighth judicial
district court.
It is contended by petitioner that he is unjustly and unlawfully detained and imprisoned for
the reason, inter alia, that there was no legal evidence presented to the grand jury to
support or justify the indictment, and that the requirement of section 10S22, N.C.L.1929,
has not been met.
alia, that there was no legal evidence presented to the grand jury to support or justify the
indictment, and that the requirement of section 10822, N.C.L.1929, has not been met. That
portion of our statute provides as follows: In the investigation of a charge, for the purpose of
either presentment or indictment, the grand jury can receive no other evidence than such as is
given by witnesses produced and sworn before them, or furnished by legal documentary
evidence, or the deposition of witnesses taken as provided in this act. The grand jury can
receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay
or secondary evidence.
Petitioner contends, therefore, that the district court is without jurisdiction to try him and
he claims that he has the right, upon habeas corpus, to present evidence in support of his
contention. In the former proceeding for writ of habeas corpus in the district court, petitioner
offered to produce, in support of his claim, all the witnesses whose names appear upon the
indictment as having testified before the grand jury. That offer was refused by the district
court on the ground that to grant such a privilege to petitioner would be virtually to permit
him to try the case on its merits.
Petitioner repeats his offer to this court, and offers to prove that there was no legal
evidence that petitioner ever voted or attempted to vote as charged in the indictment; that the
grand jury received no legal evidence indicating that a crime had been committed by
petitioner; that no competent evidence was introduced before the grand jury indicating that
petitioner was guilty of any offense; and that the face of the indictment affirmatively shows
that the offense charged was barred by limitations at the date of the indictment.
[Headnote 1]
There is no doubt that inquiry upon habeas corpus may not be extended to determine the
sufficiency of the evidence before the grand jury to warrant a finding of an indictment.
an indictment. However, section 11390, N.C.L.1929, places a duty upon the court to hear
petitioner's allegation and such proof as may be produced against such imprisonment or
detention, or in favor of the same, and to dispose of such party as the justice of the case may
require.
Section 11391, N.C.L.1929, provides that the court shall have full power and authority to
require and compel the attendance of witnesses by process of subpena and attachment and to
do and perform all other acts and things necessary to a full and fair hearing and determination
of the case.
In section 11394, N.C.L.1929, it is provided that: * * * such prisoner may be discharged
* * *. SixthWhere the process is not authorized by any * * * provision of law.
SeventhWhere a party has been committed on a criminal charge without reasonable or
probable cause.
[Headnotes 2, 3]
Those directions from our legislature seem to compel a hearing upon this petition,
including the taking of testimony. Such was the conclusion of this court in the Eureka County
Bank Habeas Corpus Cases, 35 Nev. 80, 126 P. 655, 662, 129 P. 308, and we think the
decision there is controlling in the present situation. In that case, the court called attention to
the principle that it is not the purpose of the writ of habeas corpus to determine, in advance of
trial, whether a felony has been committed, and then stated the extent of the inquiry of habeas
corpus to be to ascertain If there were any probable cause or any evidence which would
indicate the commission of a crime, any on which the petitioners might be tried and on which
a trial jury might act, and which would support a verdict of guilty.
[Headnotes 4, 5]
If an indictment charging a public offense is without the support of facts constituting such
an offense, the accused should not be put on trial, and there is no foundation for the
indictment.
foundation for the indictment. In the Eureka County Bank Habeas Corpus Cases, supra, this
court said, 35 Nev. at page 106, 126 P. at page 663: The power of the state to prosecute
cannot be made an engine of persecution. The state, in good faith, is bound to be just to a
person charged with crime; and if on habeas corpus it fails to combat a clear showing that the
grand jury could have had before it no evidence upon which a jury might be justified in
finding a verdict of conviction, then the petitioner ought to be discharged. This view does not
invade the province of the trial jury, for upon habeas corpus the judge or court cannot
determine in regard to a substantial conflict in the evidence, which is the exclusive function
of the trial jury; but it can inquire whether any substantial evidence exists which, if true,
would support a verdict of conviction, for if there is none the grand jury has exceeded its
powers, and the indictment is void.
In that case, 35 Nev. at page 126, 126 P. at page 670, this court cited and quoted from
United States v. Farrington, D.C., 5 F. 343, wherein it was said: It is the duty of the court, in
the control of its proceedings, to see to it that no person shall be subjected to the expense,
vexation, and contumely of a trial for a criminal offense, unless the charge has been
investigated and a reasonable foundation shown for an indictment or information. It is due,
also, to the government to require, before the trial of an accused person, a fair preliminary
investigation of the charges against him. It is not the province of the court to sit in review of
the investigations of a grand jury as upon the review of a trial when error is alleged; but in
extreme cases, when the court can see that the finding of a grand jury is based upon such
utterly insufficient evidence, or such palpably incompetent evidence, as to indicate that the
indictment resulted from prejudice, or was found in willful disregard of the rights of the
accused, the court should interfere and quash the indictment.
In view of the conclusion reached by this court, decision upon the other grounds urged by
petitioner becomes unnecessary.
[Headnote 6]
As we have stated many times heretofore, we do not conduct hearings for the presentation
of oral evidence. Therefore the cause will be referred to the Eighth judicial district court of
Nevada to take testimony and report the same to this court. Further decision on the petition
will be held in abeyance until the said district court shall make report to this court and until
the termination of such further proceedings, if any, as this court may order and direct.
[Headnote 7]
Good reason appearing therefor, this cause is referred to the Eighth judicial district court
of the State of Nevada to take testimony in accordance with the provisions of the statutes of
Nevada relating to habeas corpus and in accordance with the statements of this court in its
opinion filed this day in this cause, and in the opinion in Eureka County Bank Habeas Corpus
Cases, 35 Nev. 80, 126 P. 655, 129 P. 308. Upon the termination of the taking of such
testimony, the said district court shall return the same to this court.
Badt, C.J., concurs.
Merrill, J., having become a member of this court after the argument and submission of the
case, did not participate in the foregoing opinion.
____________
68 Nev. 161, 161 (1951) Mikulich v. Carner
SEBASTIAN MIKULICH, SEBASTIAN MIKULICH, Doing Business as LAS
VEGAS-TONOPAH-RENO STAGE LINE, DAVID LEE McCONAGHY, Defendants and
Appellants, v. MARY ANN CARNER, Plaintiff and Respondent, and
DEWANE BAKER, Defendant and Respondent.
No. 3640
February 21, 1951. 228 P.2d 257.
department No. 2.
Mary Ann Carner brought action against Sebastian Mikulich, Dewane Baker, and others,
for injuries sustained in a traffic accident. The trial court entered order that plaintiff's case be
tried jointly with that of Forrest John Purdy. The Eighth Judicial District Court, Clark
County, A. S. Henderson, Judge, department No. 2, entered separate judgments for plaintiffs,
and defendants, except defendant Dewane Baker, appealed. The Supreme Court, Badt, C.J.,
held that bill of exceptions was properly served and filed, and that payment by defendant of
one of two judgments was not an acknowledgment of liability under the unpaid judgment, so
as to deprive defendant of right of appeal, where the two causes of action were tried jointly
but were not consolidated.
Motion to strike bill of exceptions denied, motion to strike part of bill of exceptions
denied, motion to dismiss appeal denied.
Clarence Sundean and Leo A. McNamee, both of Las Vegas, for Defendants and
Appellants.
Morse & Graves, of Las Vegas, for Plaintiff and Respondent.
Bryan & Cory, and Edwin J. Dotson, all of Las Vegas, for Defendant and Respondent.
1. Exceptions, Bill of.
A bill of exceptions is filed when deposited with proper official with payment or tender of fee, if any, and
notation of filing is not necessary to constitute filing.
Where bill of exceptions was filed prior to stipulated filing date, but clerk, though inadvertence, did not
place filing mark on bill of exceptions until after stipulated filing date, bill was filed when first deposited
with clerk.
Withdrawal of record from clerk for purpose of binding judgment roll and other papers pursuant to order
of trial judge, was proper where bill of exceptions, which was served and filed without judgment roll and
other papers, would have been so large as to result in an unmanageable single volume. Rules of supreme
court, rule 4, subd. 3; N.C.L.1931-1941 Supp., sec. 9385.88.
Where bill of exceptions was served and filed without being indexed or folioed and trial judge permitted
withdrawal of record from clerk so that bill could be indexed and folioed, any violation of any statute or
court rule growing out of original failure to index and folio bill had been cured and was moot. Rules of
supreme court, rule 4, subd. 3; N.C.L.1931-1941 Supp., sec. 9385.88.
Where bill of exceptions did not violate or fail to comply with statutes or rules of court, it was
unnecessary to determine whether stipulation fixing time in which to file objections to bill of exceptions,
made after bill of exceptions was served and filed, constituted a waiver of alleged defects. Rules of
supreme court, rule 4, subd. 3; N.C.L.1931-1941 Supp., sec. 9385.88.
Judgment roll, notice of appeal, undertaking on appeal, and waiver of undertakings are not required to be
settled and allowed as part of the bill of exceptions, but motion to strike them from bill of exceptions was
denied. N.C.L.1931-1941 Supp., sec. 9385.88.
Stipulation, which granted additional time to object to proposed bill of exceptions, was allowed to remain
in bill of exceptions. N.C.L.1931-1941 Supp., sec. 9385.88.
8. Trial.
Where two causes of action against same defendants arising out of same accident were tried jointly,
extent of damages and recovery were entirely independent issues in each action, even if other issues of law
and fact were identical. N.C.L.1943-1949 Supp., sec. 9025.
9. Action.
Order of trial judge that two causes of action arising out of same accident, against same defendants, be
tried jointly, did not consolidate or merge the actions. N.C.L.1943-1949 Supp., sec. 9025.
Where two causes of action arising out of same accident against same defendants were tried jointly, and
separate verdicts and judgments rendered, satisfaction of one judgment was not an express
acknowledgment of liability to pay both so as to deprive defendants of right of appeal from unsatisfied
judgment.
OPINION
Three motions have been argued and submitted to the court. The first is a motion to strike
the entire bill of exceptions; the second, to strike certain documents therefrom; the third
motion is to dismiss the appeal. We dispose of these in the order named.
Motion to Strike Bill of Exceptions
[Headnotes 1, 2]
Pursuant to stipulation, appellants had to and including September 6, 1950 for service and
filing of their bill of exceptions. On August 31, 1950 they served on respondent (and by
respondent, we refer herein to respondent Mary Ann Carner), in one volume, the transcript of
the proceedings certified by the court reporter, and sundry other documents and pleadings,
and on the same date delivered the original to the deputy county clerk at her office. The
deputy clerk issued to appellants' counsel a receipt for these papers, but did not place filing
marks thereon until September 14, 1950, at which time she endorsed the same as having been
filed August 31, 1950. From her affidavit it appears that her failure to place the filing marks
on the original bill of exceptions on August 31, 1950, was an inadvertence. Respondent's
motion to strike the bill of exceptions is based upon the premise that it was not filed until
September 14 when the August 31 filing date was stamped thereonthe time for actual filing
having expired September 6. We feel that the point has been determined by this court
adversely to the contention of respondent in City of Fallon v. Churchill County Bank
Mortgage Corporation, 57 Nev. 1, 11
determined by this court adversely to the contention of respondent in City of Fallon v.
Churchill County Bank Mortgage Corporation, 57 Nev. 1, 11, 45 P.2d 358, 50 P.2d 944, 54
P.2d 273, 56 P.2d 1211, 59 P.2d 18. There the tendered bill of exceptions was deposited with
the clerk on April 15, 1935 and was settled by the judge April 22, 1935, but no filing marks
upon the original deposit appeared at all. This court said: To constitute filing it is not
necessary that the clerk make the notation of filing, for all that a litigant can do in the matter
of filing a document is to deposit it with the proper official and pay or tender the fee therefor,
if there be any.
1

[Headnotes 3, 4]
But respondent insists that the bill of exceptions must be stricken for further reasons,
namely, that at the time of the service and filing it was neither indexed nor folioed, nor did it
contain the instruments comprising the judgment roll nor certain other papers referring to
matters after judgment; that, pursuant to an order of the trial judge, appellants were permitted
to withdraw the record from the clerk, to the end that such papers might be bound together,
indexed and the folios numbered, that the judge did not settle the said bill of exceptions until
September 18, 1950; and that under such circumstances the entire bill of exceptions should be
stricken. An affidavit on the part of appellants is to the effect that because of the size of the
bill of exceptions, especially as enlarged when annexed to a copy of the judgment roll, notice
of appeal, undertaking on appeal, etc., as required by sec. 9385.88, N.C.L.1931-1941 Supp., it
would result in an unmanageable single volume in violation of rule IV, subd. 3 (requiring
bills of exception to be bound in volumes of a size suitable for convenient handling), and that
such purpose was accomplished.2 Respondent indicates that appellants re-edited the bill
of exceptions, but appellants' affidavit denies this, except to the extent that the folios
were numbered, certain fly sheets added, etc.
____________________

1
In that case the record was ordered remanded for amendment and when returned, the endorsement of the
filing date as of April 15, 1935 appeared thereon.
plished.
2
Respondent indicates that appellants re-edited the bill of exceptions, but appellants'
affidavit denies this, except to the extent that the folios were numbered, certain fly sheets
added, etc. We find no impropriety or violation of any statute or rule of court in the way the
matter was handled. Any violation of the rules growing out of the original failure to number
the folios, etc., has been cured and is moot.
[Headnote 5]
Appellants also call attention to the fact that on September 5, 1950 they entered into a
stipulation with counsel for respondent, allowing her to September 15, 1950 for service and
filing of objections to the bill of exceptions served upon her and that the district judge made
an appropriate order upon such stipulation, and that this constituted a waiver on the part of
such respondent. Respondent says that at the time of such stipulation she was not aware of the
failure of filing marks on the original bill of exceptions and so could not have waived her
rights. The asserted waiver has much force, but we find it unnecessary to determine the point.
We find no such violation of or failure to comply with our statutes or rules of court to justify
striking the bill of exceptions. The motion to strike the bill of exceptions in its entirety is
denied.
Motion to Strike Parts of Bill of Exceptions
This motion is directed to the documents sought to be stricken as extraneous documents
included in the transcript of record on appeal and which are not a part of the proposed bill of
exceptions. These comprise two groups. The papers identified as belonging to the first group
and embraced in folios 1 to 53 in the bill of exceptions are: The complaint, demurrer, answer
of appellants, minute order overruling demurrer, answer of defendant Baker, reply,
verdict, judgment, clerk's certificate of judgment roll and certification of judgment roll.
____________________

2
The three volumes now before us comprise 2,837 folios, indicating approximately 950 pages. They stand six
inches high, and would not afford convenient handling in less than three volumes.
lants, minute order overruling demurrer, answer of defendant Baker, reply, verdict, judgment,
clerk's certificate of judgment roll and certification of judgment roll. These instruments
comprise the judgment roll and are not required to be a part of the bill of exceptions. The
second group of papers is identified as comprising the following: Receipt of copy of proposed
bill of exceptions, certificate of court settling bill of exceptions, notice of appeal, undertaking
on appeal, undertaking to stay proceedings on appeal, undertaking and agreement to stay
proceedings on appeal, waiver of statutory undertaking to stay proceedings on appeal and
approval of undertakings filed, amended notice of appeal, stipulation (allowing plaintiff to
September 15, 1950 for objections to bill of exceptions), and order (approving such
stipulation).
[Headnotes 6, 7]
Section 9385.88, N.C.L.1931-1941 Supp., reads as follows: 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, certified by the clerk or by the parties, 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.
Under this section the first group of papers attacked by the motion, those comprising the
judgment roll, are not required to be settled and allowed as part of the bill of exceptions.
Anderson v. Snell, 57 Nev. 78, 58 P.2d 1041, 62 P.2d 703. The same applies to the notice of
appeal and the undertakings. The waiver of undertaking cannot be distinguished from the
undertaking itself. No purpose will be served by discussing the propriety of attaching the
stipulation granting respondent additional time to object to the proposed bill of exceptions.
exceptions. It may remain. The motion to strike the enumerated documents from the bill of
exceptions is denied.
Motion to Dismiss Appeal
The appeal is from the judgment and from the order denying new trial. The motion is
simply to dismiss the appeal herein. Appellants have treated respondent's motion to dismiss
as directed to either or both of the appeals, and we shall so consider it. The motion is based
upon the contention that as the case of Mary Ann Carner against appellants was consolidated
with the case of Forrest John Purdy against appellants on the ground that said actions
involve common questions of law and fact and that a joint trial and consolidation of said
actions would avoid unnecessary costs and delay, and resulted in a judgment in favor of
Mary Ann Carner in the sum of $65,000 and a judgment in favor of Forrest John Purdy
against the same defendants in the sum of $10,000, pursuant to verdict of the same jury, and
as appellants paid, satisfied and discharged the $10,000 Purdy judgment, it follows: that the
satisfaction of the judgment without reservation by said named defendants, appellants herein,
in the consolidated case of Forrest John Purdy * * * is an express acknowledgment of liability
of said named defendants, appellants herein, of the tortious acts of said named defendants,
appellants herein, which the jury in each case found in favor of each plaintiff and against the
identical named defendants, appellants herein, and by reason of the fact that said named
defendants paid the judgment entered upon the verdict in the case above specified without
reservation, and caused full satisfaction to be entered; and that they therefore have no right
of appeal in the case of Mary Ann Carner from the judgment on the jury's verdict under the
same identical facts tried in the said consolidated action. Respondent urges that there was but
one issue in the consolidated action.
The two actions grow out of a traffic accident in which Mary Ann Carner was severely
injured and Forest Elaine Purdy, minor daughter of Forrest John Purdy, was killed.
Elaine Purdy, minor daughter of Forrest John Purdy, was killed. When the cases were at issue
the defendants moved that the above entitled actions be consolidated into one. Mary Ann
Carner resisted the motion. Defendant Dewane Baker consented thereto and the court entered
an order, not for the consolidation sought, but that the above entitled causes of action be
tried jointly and all of said causes shall be heard and tried together * * *. The cases were
heard and tried together, the jury instructed in both cases and separate verdicts were
foundfor Purdy, as aforesaid, in the sum of $10,000 and for Carner, as aforesaid, for the
sum of $65,000. All parties stipulated that instead of making two sets of instructions, one set
might be made to be included in both cases. Not only were there two separate verdicts, but
two separate judgments. The satisfaction of the Purdy judgment made no reference to the
Carner judgment. By Stats. 1949, chap. 115, p. 151, N.C.L.1943-1949 Supp., section 9025,
N.C.L., was amended to read as follows: 9025. Actions May be Consolidated. 536.
When actions involving a common question of law or fact are pending before the court, it
may order a joint hearing or trial of any or all the matters in issue in the actions; it may order
all the actions consolidated; and it may make such orders concerning proceedings therein as
may tend to avoid unnecessary costs or delay.
[Headnote 8]
It is patent that three things are there authorized when actions involving common
questions of law or fact are pending. (1) The court may order a joint hearing or trial; (2) it
may order all the actions consolidated; (3) it may make other orders concerning the
proceedings to avoid delay or unnecessary costs. It is conceivable that the court might
exercise its discretion in making any one, two or three of the orders contemplated. In the
present case it made the single order for a joint hearing or trial.
a joint hearing or trial. In support of respondent's contention that the payment of the Purdy
judgment is an express acknowledgment of their liability to pay the Carner judgment by
reason of the asserted consolidation, she relies on Stanton v. Superior Court, 202 Cal. 478,
261 P. 1001, 1003. The case is not to any degree in point. Plaintiff had filed two suits against
the same defendant, growing out of an alleged violation of the same written instrument. The
Supreme Court of California said: It abundantly appears from the record that the cause of
action was single and * * * became one action. Respondent also refers to certain texts. These
do not, however, support the contention made. Assuming the identity of the issues of law and
fact resulting in the jury's verdict of damages for both plaintiffs against the same defendants,
the extent of damage, the extent of recovery, cannot be other than an issue in each action
entirely independent of the other.
[Headnotes 9, 10]
Respondent contends that the causes of action in each case merged in the verdict of the
jury and the judgment entered thereon, and being so merged, the voluntary payment and
satisfaction of one of the judgments was an express acknowledgment of liability to pay both.
However, the order that the two causes of action be tried jointly and that they be tried together
on the date set for trial did not merge the two suits into a single cause, or change the rights of
the parties or make Carner a party to the Purdy suit, or Purdy a party to the Carner suit.
Johnson v. Manhattan R. Co., 289 U.S. 479, 53 S.Ct. 721, 77 L.Ed. 1331, 1345. And see
cases cited in footnote 8 in the last citation. The supreme court in so holding in that case and
in holding further that consolidation is permitted as a matter of convenience and economy in
administration without merging the suits, was construing rule 42 of the federal rules of
procedure. Title 28 U.S.C.A., p. 405. The Nevada statute, as amended in 1949 and quoted
in full supra, is identical with subdivision {a) of such rule 42.3 The federal courts have
consistently construed such consolidation for the purpose of securing a joint trial on
questions of law and fact common to all of them as not having the effect of merging the
several causes into a single cause.
statute, as amended in 1949 and quoted in full supra, is identical with subdivision (a) of such
rule 42.
3
The federal courts have consistently construed such consolidation for the purpose
of securing a joint trial on questions of law and fact common to all of them as not having the
effect of merging the several causes into a single cause. United States v. Bregler,
D.C.N.Y.1944, 3 F.R.D. 378, 379. In that case were consolidated for trial some eight
complaints seeking the revocation of the decrees admitting the defendants to United States
citizenship on the ground that such decrees were obtained fraudulently. At the conclusion of
his opinion, the learned district judge said: At the argument there was apprehension
expressed by one or both of the opposing counsel lest the several causes merge into a single
cause. That will not be the effect of the granting of this motion. On the contrary, in the trial of
each case the weight of the evidence sought to be adduced, and indeed possibly its ultimate
relevancy, are left as open matters for determination by the trial court. See Boston Acme
Mines Corporation v. Salina Canyon Coal Co., 8 Cir., 3 F.2d 729.
See also Greenberg v. Giannini, 2 Cir., 1944, 140 F.2d 550, 152 A.L.R. 966; Denver City
T. Co. v. Norton, 8 Cir., 1905, 141 F. 599, 73 C.C.A. 1; National Nut Co. of Cal. v. Susu Nut
Co., D.C.Ill.1945, 61 F. Supp. 86; George v. Leonard, D.C.S.C.1949, 84 F. Supp. 205. We
see no merit in the last motion, and it is accordingly denied.
____________________

3
The chairman of the law and legislative committee of the Nevada State Bar In 1949 suggested the
amendment of sec. 9025 N.C.L. to conform to sec. 1048 Cal. C.C.P. Nevada State Bar Journal, Jan. 1949, Vol.
14, No. 1, p. 12. Such sec. 1048 Cal.C.C.P. merely provided that actions might be consolidated, in the
discretion of the court, whenever it can be done without prejudice to a substantial right. However, as reported in
the same issue of the Nevada State Bar Journal, Id. 20, the civil practice committee of the Nevada State Bar
recommended the initiation of proceedings for the adoption of a code of civil procedure based upon the present
federal rules. In a compliance pro tanto with the recommendations of the latter committee, and with the approval
of the chairman of the law and legislative committee, our present sec. 9025 N.C.L. was submitted to and passed
by the legislature.
see no merit in the last motion, and it is accordingly denied.
All motions of respondents denied. Costs to abide final determination of the appeal.
Horsey, formerly chief justice, did not participate, his term of office having heretofore
expired.
Merrill, J., did not participate, he having become a member of the court after said matter
was argued and submitted.
No. 3640
May 22, 1951. 231 P.2d 603.
Mary Ann Carner brought action for injuries against Sebastian Mikulich, Dewane Baker,
and others. The Eighth Judicial District Court, Clark County, A. S. Henderson, Judge,
department No. 2, entered judgment adverse to defendants, and all defendants except Dewane
Baker appealed. Plaintiff moved to dismiss the appeal. The Supreme Court, Badt, C.J., held
that appeal bond reciting that defendants had or were about to appeal from judgment and also
from order of court denying motion for new trial, and that in consideration of the premises
and of such appeal, surety would pay all damages and costs which might be awarded against
defendants on appeal or on dismissal thereof, was valid, and Supreme Court had jurisdiction
to entertain appeal.
Motion to dismiss appeal denied.
Though plaintiff's first motion to dismiss defendants' appeal on ground that defendants
had paid judgment to different plaintiff in consolidated action and thus expressly
acknowledged liability was denied, consideration of plaintiff's second motion to dismiss
appeal on ground that supreme court was without jurisdiction to hear appeal because
statutory cost bond was void could not be considered as a deviation from, or a limitation
on, rule condemning subsequent motions attacking appeal or record on new and
additional grounds which were available to movant at time of former motion.
N.C.L.1931-1941 Supp., sec. 9385.68.
Under bond for costs and damages on appeal reciting that defendants had appealed or
were about to appeal from judgment and also from order denying motion for new trial,
and that in consideration of the premises, and of such appeal, surety would pay all
damages and costs which might be awarded against defendants on appeal or on dismissal
thereof, word appeal in clause obligating surety would mean double appeal and
would embrace appeals from both the judgment and an order denying new trial.
N.C.L.1931-1941 Supp., sec. 9385.68.
Under bond for costs and damages on appeal reciting that defendants had appealed or
were about to appeal from judgment and also from order denying motion for new trial,
and that in consideration of the premises, and of such appeal, surety would pay all
damages and costs which might be awarded against defendants on appeal or on dismissal
thereof, use of singular appeal in clause obligating surety did not leave plaintiff
without security for costs in two appeals, and bond was valid, and therefore supreme
court had jurisdiction to entertain appeal. N.C.L.1931-1941 Supp., sec. 9385.68.
Plaintiff's motion to strike court approved rider to bond for costs and damages on
appeal whereunder surety acknowledged itself obligated on appeals from both judgment
and order denying new trial would not be considered, in view of fact that bond which
recited appeals from both judgment and from order denying motion for new trial but
which used singular appeal in clause obligating surety was valid, and covered both
appeals. N.C.L.1931-1941 Supp., sec. 9385.68; N.C.L.1929, sec. 9385.77.
OPINION
On Motion to Dismiss Appeal
[Headnote 1]
This is respondent's second motion to dismiss appellants' appeal. We heretofore denied
respondent's first motion, which was made upon the ground that appellants had paid a
judgment to a different plaintiff whose action had been consolidated for trial with this action,
involving the same questions of law and fact, and that such payment was an express
acknowledgment of liability of appellants. Mikulich v. Carner, 68 Nev. 161, 228 P.2d 257.
257. The present motion is made upon the ground that appellants have failed to file the
statutory cost bond, and we have consented to consider the motion because it is insisted that
the purported bond filed by appellants is void and a complete nullity and that therefore this
court is without jurisdiction to entertain the appeal. In considering the motion, however, we
are not to be understood as deviating from, or in any way limiting, the rule laid down in State
ex rel. Department of Highways v. Pinson, 66 Nev. 13, 201 P.2d 1080, condemning
subsequent motions attacking the appeal or the record on new and additional grounds which
were available to respondent at the time of his former motions.
Appellants filed their notice of appeal from the judgment and from the order denying new
trial. Within the statutory period they served and filed their undertaking on appeal.
The undertaking for costs and damages on appeal filed by appellants recited that whereas
they had appealed or were about to appeal from the judgment [describing it] and also from
the order of said court denying defendants' motion * * * for a new trial [describing it] now,
therefore, in consideration of the premises, and of such appeal, the surety undertakes to pay
all damages and costs which may be awarded against the appellants on the appeal or on a
dismissal thereof etc. Respondent insists that the use of the singular appeal in the clause
obligating the surety leaves the respondent without security for costs in the two appeals and
without even security for costs in either of the appeals by reason of the uncertainty resulting
from the wording. They rely on our recent opinion in Chance v. Arcularius, 68 Nev. 51, 227
P.2d 198, and the cases therein cited. In that case, however, and also in the Idaho and
California cases cited in the opinion, the undertaking recited that whereas the appellant had
appealed from the judgment, the surety became obligated for payment of damages and cost,
etc. There is a very material difference between the present undertaking and the one we
held to be fatally defective.
difference between the present undertaking and the one we held to be fatally defective. In
Chance v. Arcularius we dismissed the appeal reluctantly, and we decline to extend the effect
of such case to the present far different one.
Our statutory provision for the undertaking is contained in N.C.L. 9385.68, 1931-1941
Supp., and reads as follows:
An appeal may be taken from an order granting or denying a motion for a new trial and
from the judgment at the same time by giving only one undertaking, in the sum of three
hundred dollars, for the costs on appeal; and in the notice of such double appeal it may be
stated that the appeal is from both the judgment and the order granting or denying the motion
for a new trial, and upon the taking of such double appeal the one undertaking to stay
execution in the ordinary form, and in the amount required to stay execution on appeal from
the judgment, is sufficient to stay the execution.
[Headnote 2]
There is ample authority for sustaining, under similar statutes, an undertaking on appeals
from the judgment and order denying new trial worded precisely as is the present one.
Granger v. Robinson, 114 Cal. 631, 46 P. 604, holding the undertaking sufficient because
both of the appeals were referred to therein and the bond executed in consideration of the
premises and of such appeal. Bell v. Staacke, 137 Cal. 307, 308, 70 P. 171, 172,
emphasizing the reference in the bond to the appeal from the judgment and from the order
and the giving of the undertaking in consideration of such premises. In Buchner v. Malloy,
152 Cal. 484, 92 P. 1029, the court states the precise ground raised here: The claim of
respondent is that the original undertaking was void both as to the appeal from the judgment
and the appeal from the order denying a new trial, for the reason that it recites the two
appeals, and is expressly limited to one, without designating which one, and declares the
error of such contention to be the assumption that the use of the singular term "appeal" is
limited to only one of the appeals.
error of such contention to be the assumption that the use of the singular term appeal is
limited to only one of the appeals. The court then refers to the California practice requiring
only one undertaking for both appeals, which corresponds with the Nevada statute quoted in
full above. The California court construes the use of the word appeal as meaning the
whole appeal * * * namely, the appeal from the judgment and the appeal from the order
denying a new trial, thus embracing both appeals. We may in like manner characterize the
bond as given on the double appeal, a term used twice in said sec. 9385.68. To the same
effect see Bell v. Staacke, 159 Cal. 193, 115 P. 221; Blaisdell v. Steinfeld, 15 Ariz. 155, 137
P. 555; Kaufman v. Cooper, 38 Mont. 6, 98 P. 504, 1135. Idaho had apparently held contra,
but amended its statute in 1907 to remedy the resulting situation. See Martin v. Wilson, 24
Idaho 353, 134 P. 532.
In Magee v. Whitacre, 60 Nev. 202, 96 P.2d 201, 106 P.2d 751 (appearing in Pacific
Reporter under its original title of Magee v. Lothrop), this court, after citing California, North
Dakota, and Montana cases to the effect that it is necessary that the undertaking refer to each
of the appeals and is insufficient if it recites merely the appeal from the judgment, refers to
Baker v. Oregon R. & N. Co., 8 Idaho 36, 66 P. 806, which dismissed the appeal because that
part of the bond recited both the appeal from the judgment and the appeal from the order. The
Idaho case was simply referred to, and this court did not indicate its approval thereof. It was
not necessary to the case.
[Headnote 3]
We hold the undertaking in this case to be sufficient. The motion to dismiss the appeal is
denied.
[Headnote 4]
After respondent served notice of her motion to dismiss, the court approved, under the
provisions of sec. 9385.77 N.C.L., but without prejudice to respondent's right to move to
strike the same, a "rider" to the undertaking, whereunder the surety acknowledged itself
obligated on both appeals.
right to move to strike the same, a rider to the undertaking, whereunder the surety
acknowledged itself obligated on both appeals. Respondent has moved to strike the same, but
under the views above expressed it is unnecessary for us to consider such motion.
____________________
(Reporter's Note: See 69 Nev. for opinion of February 13, 1952, reversing judgment of
district court, and remanding.)
____________
68 Nev. 176, 176 (1951) Whitney v. District Court
ANTHONY ARTHUR WHITNEY, Petitioner, v. THE SECOND JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for the County of Washoe, Honorable D. W.
PRIEST, the Judge Thereof, and DOROTHY ELIZABETH WHITNEY, Respondents.
No. 3653
February 23, 1951. 227 P.2d 960.
Anthony Arthur Whitney brought original proceedings in certiorari for review of the action
of the Second Judicial District Court of the State of Nevada, in and for the County of
Washoe, and of the Honorable D. W. Priest, as presiding judge thereof, in issuing an order
restraining removal of the petitioner's minor children from the City of Reno pending
proceedings by Dorothy Elizabeth Whitney, petitioner's ex-wife, seeking modification of a
decree of divorce relative to its custody provisions. The Supreme Court, Merrill, J., held that
in the absence of notice to the petitioner or an opportunity for hearing, the respondent court
had exceeded its jurisdictional power in issuing the restraining order in question.
Order in accordance with opinion.
C. Lester Zahniser, of Sparks, for Petitioner.
Melvin E. Jepson, of Reno, for Respondents.
1. Divorce.
In statute regarding powers and duties of court with respect to children in divorce actions, provision that
court may, during pendency of action or at any time thereafter during minority of children, make such
orders for custody, care, education, maintenance, and support of minor children as may be necessary does
not confer ex parte powers upon court, and therefore any action of court taken pursuant thereto requires
notice and opportunity for hearing. N.C.L.1929, sec. 8909; N.C.L.1943-1949 Supp., sec. 9462.
2. Divorce.
In statute regarding powers and duties of court with respect to children in divorce actions, ex parte power
granted court to prevent removal of child is available to court only during pendency of original suit for
divorce and ceases upon final hearing therein. N.C.L.1929, sec. 8909; N.C.L.1943-1949 Supp., sec. 9462.
3. Divorce.
Where divorce decree was rendered on January 28, 1941, granting husband control of minor children of
parties and reserving to court jurisdiction to make future orders as to their custody, and on December 23,
1950, court, upon wife's affidavit reciting her intention to move for modification of decree relative to
custody of children, entered order temporarily restraining removal of children from city, court exceeded its
jurisdictional powers in issuing restraining order in absence of notice to husband or hearing, and said order
would be annulled and set aside by supreme court on husband's petition in certiorari for review of lower
court's action. N.C.L.1929, sec. 8909; N.C.L.1943-1949 Supp., sec. 9462.
OPINION
This is an original proceeding in certiorari to review action of respondent court in issuing
an order restraining removal of minor children from the city of Reno, Washoe County,
Nevada, pending proceedings for modification of a decree of divorce relative to its provisions
for custody. The question presented relates to the power of the court to take ex parte action
with respect to minor children of the parties after entry of the original decree of divorce.
On January 28, 1941, in an action before respondent court brought by petitioner against
his then wife, Dorothy Elizabeth Whitney, a decree of divorce was granted to petitioner.
court brought by petitioner against his then wife, Dorothy Elizabeth Whitney, a decree of
divorce was granted to petitioner. The decree awarded petitioner the custody and control of
the minor children of the parties, Karla Sue Whitney and Mark Anthony Whitney and
reserved to the court jurisdiction to make such future orders as might be proper or necessary
relative to their custody, care, maintenance and education.
On December 23, 1950, an affidavit was filed in that action for and on behalf of the
defendant mother by Melvin E. Jepson of Reno as her attorney. From the affidavit it appears
that petitioner had been residing with the children in Markleeville, California; that he had left
that town, taking all personal property with him and leaving the children to follow later; that
the children, under the temporary care of one, Ward Hatfield, at the date of the affidavit were
in Reno en route to Stockton, California. The affidavit recites the intention of defendant to
move for modification of the decree of divorce to grant her custody of both children and
states that the affidavit is made for the purpose of obtaining an order temporarily restraining
removal of the children from Reno.
On the same day, without notice to petitioner or hearing, an order designated Temporary
Restraining Order was issued by respondent court, reciting the intention of the defendant to
move for modification of the decree and restraining Hatfield and the petitioner, his attorneys,
agents and employees from removing the children from Reno, Washoe County, Nevada,
during the pendency of this matter.
On January 3, 1951, pursuant to notice, petitioner moved respondent court for an order
dissolving the restraining order. The motion was denied.
Petitioner contends that respondent court exceeded its jurisdictional powers in issuing the
restraining order without notice or opportunity for hearing.
At the outset it should be recognized that upon the facts of this case the scope of our
considerations is limited to the powers of the trial court in relation to divorce matters.
facts of this case the scope of our considerations is limited to the powers of the trial court in
relation to divorce matters. Its powers in its juvenile department or relating to injunctions
generally are beyond our concern in this opinion.
With respect to children, the powers and duties of the court in actions for divorce are set
forth in sec. 9462, N.C.L.1929, Supp. 1943-1949. For convenience in discussion and analysis
and for purposes of subsequent reference the section will be divided into three parts. It
provides as follows:
Part 1. The court, in granting a divorce, shall make such disposition of, and provision for,
the children, as shall appear most expedient under all the circumstances, and most for the
present comfort and future well-being of such children;
Part 2. and when, at the commencement, or during the pendency, of the suit, it shall be
made to appear to the court, or to the judge, in vacation, that any child of the wife, whether
she be plaintiff or defendant, which is too young to dispense with the care of its mother, or
other female, has been or is likely to be, taken or detained from her, or that any child of either
party, has been, or is likely to be taken, or removed, by, or at the instance of, the other party,
out of the country, or concealed within the same, it shall be the duty of the court, or of such
judge in vacation, forthwith to order such child to be produced before him, and then to make
such disposition of the same, during the pendency of the suit, as shall appear most
advantageous to such child, and most likely to secure to it the benefit of the final order to be
made in its behalf; and all such orders may be enforced, and made effectual, by attachment,
commitment, and requiring security for obedience thereto, or by other means, according to the
usages of courts, and to the circumstances of the case;
Part 3. provided, that in actions for divorce the court may, during the pendency of the
action, or at the final hearing or at any time thereafter during the minority of any of the
children of the marriage, make such order for the custody, care, education, maintenance,
and support of such minor children as may seem necessary or proper, and may at any
time modify or vacate the same."
the final hearing or at any time thereafter during the minority of any of the children of the
marriage, make such order for the custody, care, education, maintenance, and support of such
minor children as may seem necessary or proper, and may at any time modify or vacate the
same.
While the section makes no specific provision for notice, notice and hearing are required
as to orders relating to custody entered pursuant to the provisions of part 3. Abell v. Second
Judicial District Court, 58 Nev. 89, 71 P.2d 111.
Section 8909, N.C.L.1929, provides: 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.
Rule X of our district court rules provides: Motions in all cases, except ex parte motions,
motions for continuance and motions to amend pleadings pending a trial, shall be noticed at
least 5 days before the day specified for a hearing * * *. For a failure to comply with this rule
the motion shall be denied.
As to part 3 generally, then, in the absence of an indication of legislative intent to confer
ex parte powers upon the court, it must be construed as requiring that the usual procedure
relative to the securing of orders be followed.
The language of part 3 is general in terms and extensive in scope and cannot be said to be
summary in character. It makes no attempt to distinguish and deal separately with matters of
substantive right, situations of emergency or action purely interlocutory in character. By its
scope it covers all orders which may seem necessary or proper. Under these circumstances it
cannot be said that ex parte powers were contemplated. Cf. Farnow v. Dept. 1 of Eighth
Judicial District Court, 64 Nev. 109, 178 P.2d 371. To hold otherwise would, in effect, be to
give to the trial court discretion to determine for itself the extent of its own ex parte powers
and thus transform legislation general in terms into an extraordinary grant of ex parte
authority.
and thus transform legislation general in terms into an extraordinary grant of ex parte
authority. In the light of the specific limitations imposed upon action under part 2, this cannot
have been the legislative intent.
[Headnote 1]
It is, therefore, the view of this court that action taken pursuant to part 3 requires notice
and opportunity for hearing. Respondent court having acted without notice or hearing, its
action cannot be supported under this part of the section. We must, then, look to part 2.
In granting power for summary action under specific conditions of emergency (and,
indeed, placing upon the court an affirmative duty to act) part 2 appears to contemplate ex
parte action. Further, as this part deals with details of procedure, it would appear that the
failure to specify notice was deliberate and indicative of an intent to dispense with the
necessity for notice or hearing.
We then face the question whether the conditions under which respondent court acted fall
within the very specific requirements of part 2. We need go no further than a consideration of
the first, as to the period of time within which such action may be taken. Can it be said that
action of respondent court was taken during the pendency of the suit?
It is true that by the provisions of part 3, jurisdiction of the court to make orders (and to
vacate or modify the same) relative to custody, care, education, maintenance and support, is
made to continue throughout the minority of the children. However, part 3 itself precludes the
possibility of our construing such continuing jurisdiction as constituting pendency of the
suit for the purposes of this section. This it does by its own specific differentiation between
pendency of the action for divorce, at the final hearing and at any time thereafter during
the minority of any of the children. Part 3 in effect has said that pendency of the suit for the
purposes of this section shall not be co-extensive with the court's continuing jurisdiction,
but rather that the court's jurisdiction shall extend beyond the pendency of the action.
with the court's continuing jurisdiction, but rather that the court's jurisdiction shall extend
beyond the pendency of the action.
Unless we are to give to pendency of the suit as used in part 2 an entirely different
meaning from pendency of the action as used in part 3, it must be clear that the provisions
of part 2 are available only during the pendency of the original action for divorce and prior to
final hearing therein.
The provisions of part 2 cannot support such a distinction. They contemplate pendency not
merely of the court's continuing power to enter orders relating to a child, but of proceedings
actually looking towards the entry of the final order to be made in its behalf. Once such an
order has been made it is final upon the facts and circumstances then existing. Nothing
remains pending in that regard until proceedings are initiated to vacate or modify it. Elsman
v. Elsman, 54 Nev. 20, 28, 2 P.2d 139, 3 P.2d 1071, 10 P.2d 963.
Further (as applied to the problem at hand and not as a general rule of construction), the
very sequence of parts 1, 2 and 3 lends logical support to the conclusion that part 2 was
intended to supplement action of the court within the scope specified by part 1 rather than
within that specified by part 3.
[Headnote 2]
It is therefore our view that under the language of sec. 9462, the ex parte powers of the
court set forth in part 2 thereof are available only during the pendency of the original suit for
divorce and cease upon final hearing therein.
[Headnote 3]
It may well be contended that if the special circumstances outlined in part 2 justify ex parte
powers in the court during pendency of the original suit for divorce, they should as well
justify such powers during pendency of proceedings for modification. This, however, is
matter for legislation. The straining of the language of the section to the extent necessary in
order that this court may accomplish that result can hardly be justified under the guise of
statutory construction.
section to the extent necessary in order that this court may accomplish that result can hardly
be justified under the guise of statutory construction.
It is accordingly held that respondent court exceeded its jurisdictional powers in issuing
the restraining order in question, and the same is hereby annulled and set aside. Each party
shall bear his own costs on this proceeding.
____________
68 Nev. 183, 183 (1951) Shore Line Oil Co. v. King
SHORE LINE OIL CO., a Corporation, JOSEPH CUNNINGHAM, et al., Defendants and
Appellants, v. LOREN KING, Plaintiff and Respondent.
No. 3621
February 28, 1951. 228 P.2d 395.
department No. 2.
Action by Loren King against Shore Line Oil Company, a corporation, Joseph
Cunningham, and others to compel issuance of new stock certificates in place of lost
certificates which had been issued for services rendered by the deceased husband of plaintiff,
an attorney at law. From a judgment for plaintiff and an order denying a motion of defendants
for a new trial, the defendant Cunningham appealed. The Supreme Court, Badt, C.J., held that
evidence justified a judgment for plaintiff, that there was no lack of consideration for
issuance of the stock and that a gift of the stock to plaintiff was established by the testimony.
Judgment and order affirmed.
Morse & Graves, of Las Vegas, and Paul & Hastings, of Los Angeles, California, for
Appellants.
Taylor & Gubler, of Las Vegas, for Respondent.
1. Corporations.
In suit to compel issuance of new stock certificates in place of lost certificates issued for services by
deceased attorney, where value of the stock depended upon validity of prospecting permits issued by
federal government which in turn depended upon title of government to submerged lands, evidence did not
establish that decedent had been guilty of any misbehavior in opposing the resolution favored by the
corporate president of defendant in connection with governmental proceedings to establish title to the
lands.
2. Corporations.
In suit to compel issuance of new stock certificates in place of lost certificates issued to deceased attorney
in payment for legal services where value of stock depended entirely upon validity of prospecting permits
issued by the federal government which in turn depended upon the title of the government to submerged
lands, evidence did not establish a total lack of consideration or a failure of consideration for the stock.
3. Corporations.
In action to compel corporation to issue new stock certificates in place of lost certificates issued in
payment of services rendered by deceased attorney, it was not the duty nor the province of the district court
to determine the precise amount or reasonable value of services rendered by the attorney.
4. Corporations.
payment of services rendered by deceased attorney where value of stock depended entirely upon validity of
prospecting permits issued by the federal government which in turn depended upon title of the government
to submerged lands, letters of the attorney to corporate president did not establish a determination of
former negotiations.
5. Corporations.
Generally certificates of stock are not negotiable instruments within the meaning of the negotiable
instruments law.
6. Evidence.
The court takes judicial knowledge that certificates of stock pass from hand to hand by endorsement and
delivery.
7. Corporations.
Under the uniform stock transfer act, title to a certificate is transferred, among other ways, by delivery of
the certificate endorsed in blank, despite provisions in articles of incorporation or bylaws providing that the
shares shall be transferable only on the books of the corporation, etc. N.C.L.1943-1949 Supp., secs. 1854,
1854.05.
8. Corporations.
In action to compel issuance of new stock certificates in place of lost certificates issued in payment of
services rendered by deceased attorney, common law and statutory presumptions
indicated the attorney's ownership of certificates of stock possessed by him and that
any transactions between him and his firm or associates in the practice of the law
were fair and regular, and that his ownership and possession of the certificates as
between him and his law firm were result of the ordinary course of business.
N.C.L.1931-1941 Supp., sec.
ered by deceased attorney, common law and statutory presumptions indicated the attorney's ownership of
certificates of stock possessed by him and that any transactions between him and his firm or associates in
the practice of the law were fair and regular, and that his ownership and possession of the certificates as
between him and his law firm were result of the ordinary course of business. N.C.L.1931-1941 Supp., sec.
9047.07, subds. 8, 11, 19, 20, 33 et seq.
Evidence established a gift by deceased attorney to his wife of certificates of stock received by attorney
in payment of legal services.
10. Corporations.
services of deceased attorney, that $1,000 cash consideration was to be paid by the corporation in addition
to the stock and that no part of the cash was ever paid and the attorney's insistence that some money should
be paid to cover expenses did not operate as repudiation by attorney and his law firm of the entire
transaction where the work continued despite the failure of payment.
11. Corporations.
services rendered by deceased attorney, contention that request of plaintiff for issuance of new certificates
in her own name after 10 years, in which interim, a supreme court decision gave value to the certificates
was unconscionable, was without merit where there was no obligation on part of plaintiff to have the stock
transferred to her name on the books of the corporation.
12. Corporations.
payment of services rendered by deceased attorney, evidence sustained finding that original certificates had
been lost. N.C.L.1943-1949 Supp., sec. 1854.16.
Supreme Court will not disturb findings of fact if they find substantial support in the evidence.
OPINION
By the Court, Badt, C.J.:
Although Shore Line Oil Company is named in these proceedings as one of the appellants,
it did not appeal from the judgment or order denying new trial.
from the judgment or order denying new trial. That corporation and Cunningham, together
with a group of fictitious persons and corporations, were named in the original action as
defendants. Cunningham is the sole appellant.
Respondent obtained a judgment decreeing that she was the owner of and entitled to the
possession of certificates Nos. 3 and 4, representing 75,000 shares each of the capital stock of
Shore Line Oil Company, a corporation, and directing the corporation to issue such stock to
her. Such judgment was based upon findings which supported the plaintiff's contention that
the certificates had been issued to her late husband, Samuel A. King, an attorney at law, in
consideration of services performed and to be performed by him; that he had during his
lifetime endorsed and delivered the certificates to her as a gift and that such certificates had
been lost or destroyed. Although many issues of law and of fact are discussed in the briefs,
the chief contentions of appellant are, first, that there was a lack of consideration or a failure
of consideration for the delivery of the stock from Cunningham to King and, secondly, that
there was a total failure of proof as to Mrs. King's ownership thereof.
The trial court filed a 15 page decision in which it reviewed the issues made by the
pleadings, referred to the evidence and decided the issues in favor of the plaintiff. It then
made its written findings showing the appearance of the plaintiff, the defendant corporation
and defendant and appellant Cunningham, all through their respective counsel, and the fact
that the defendant corporation offered no evidence; that Samuel A. King died August 27,
1943, and that plaintiff is his widow; that the corporation, for services performed and to be
performed, caused to be delivered to King certificates Nos. 3 and 4 for 75,000 shares each of
the stock of said corporation; that such had theretofore been issued in the name of
Cunningham, who endorsed the certificates in blank and delivered them to King, whereupon
they became his property; that King gave the same to plaintiff, who at all times since was
the rightful owner; that the certificates had been lost, destroyed or stolen and that
plaintiff was unable to discover the whereabouts thereof, and that she had never
disposed of the same; that she had demanded of the corporation the issuance of new
certificates, but that such request has not been complied with; that the certificates are of
one cent per share par value and of speculative and uncertain value.
in blank and delivered them to King, whereupon they became his property; that King gave the
same to plaintiff, who at all times since was the rightful owner; that the certificates had been
lost, destroyed or stolen and that plaintiff was unable to discover the whereabouts thereof, and
that she had never disposed of the same; that she had demanded of the corporation the
issuance of new certificates, but that such request has not been complied with; that the
certificates are of one cent per share par value and of speculative and uncertain value.
Negativing the allegations of the answer, the court further found that there was no failure of
consideration; that it was not true that the title to the certificates had never passed from
Cunningham to King; that it is not true that Cunningham is still the owner of the stock; and
that plaintiff is not estopped to assert her title. The findings of fact were followed by the
obvious conclusions of law entitling plaintiff to judgment upon the filing of a bond in the sum
of $1,500.
1

Appellant maintains that the record is devoid of any substantial evidence to sustain these
findings. At the trial plaintiff called the corporation's secretary as an adverse witness, and had
him produce numerous letters, which were introduced in evidence. These comprise in the
main letters from King to Cunningham, although two of them are from other members of the
law firm of Watson, King and Brode to Cunningham, and other letters from Cunningham to
King. The firm of Watson, King and Brode maintained offices at Washington, D. C. The
King of that firm was Samuel A. King. The firm of King and King, comprising Samuel A.
King and Karl V. King, maintained offices at Salt Lake City, Utah. In order that the following
correspondence may be more readily understood, it should be noted at the outset that the
corporation owned no property other than certain oil prospecting permits assigned to it
by Cunningham.
____________________

1
Issuance by a corporation of new certificates in place of lost certificates upon posting bond, and the
procedure for accomplishing this through a court order, are authorized and provided for under the provisions of
sec. 1854.16, N.C.L.1943-1949 Supp., being sec. 17 of the uniform stock transfer act, Stats. 1945, p. 324.
the corporation owned no property other than certain oil prospecting permits assigned to it by
Cunningham. In consideration of such assignment, the corporation issued all of its stock,
1,000,000 shares of the par value of one cent per share, to Cunningham, who became
president of the corporation. The value of the stock depended entirely upon the validity of the
prospecting permits issued by the federal government, and this in turn depended upon the title
of the federal government to the lands in question, which comprised submerged lands below
the low water mark within the three-mile coastal limit. The contemplated services of King
and his firm had mainly to do with the establishment of such rights. Without such rights, the
corporate stock would have no value. With such rights, it would have prospective value.
The earliest letter in the record is dated June 18, 1938, from Watson, King and Brode by
K. V. King and from Karl V. King, addressed to the corporation in care of Cunningham, and
reads as follows:
The firm of Watson, King & Brode, and Karl V. King, agree to accept employment as
counsel under the following terms and conditions;
For and in consideration of the payment of $1000.00, and the further consideration of
150,000 shares of stock in your corporation, we agree to handle all matters before the Interior
Department and the committees of Congress relative to the issuance of prospecting permits
held by the corporation and to sustain said permits in the District, Circuit and Supreme courts
of the United States, if necessary. All filing fees and legal taxable costs, however, to be paid
by the corporation.
If in the judgment of the Directors of the corporation and the undersigned, it is deemed
advisable to bring mandamus proceedings for the purpose of compelling the issuance of
prospecting permits by the Secretary of the Interior, then this will be included in the services
hereunto agreed to be performed by us.
On February 7, 1939, Samuel A. King wrote to Cunningham with reference to King's
assistance in interesting a Dr. Martin in investing money in the company.
On February 24, 1939, Samuel A. King reported to Mr. Cunningham the former's
conference with Dr. Martin, looking toward interesting the doctor and his friends.
On March 7, 1939, James E. Watson, of Watson, King and Brode, reported to Mr.
Cunningham of the former's conference with Senator Nye's secretary concerning certain
proposed hearings on certain proposed bills covering the subject matter. The record then
contains copies of Congressman Hobbs's resolution introduced in the House, Senator Nye's
resolution introduced in the Senate and Mr. O'Connor's resolution introduced in the House,
all in February, 1939 and all having to do with recommending proceedings by the government
to assert and establish its title to all petroleum deposits in the submerged lands below low
water mark.
On March 16, 1939 Cunningham wrote to Samuel A. King,
c
/o Watson, King and Brode,
as follows:
There is no change in the present situation since you were here other than we plan to
make Las Vegas our head office, which has not been done at this time.
I am enclosing to you herewith Certificate No. 3 for 75,000 shares and Certificate No. 4
for 75,000 shares. This is not in conformity with your request when you left here but
inasmuch as you are the only one that I am looking to for support in the matter, I deem it
advisable to let you make your own distributions as you see fit. This can be done by returning
the stock to the transfer office which at the present time is the Nevada Agency and Trust
Company, 139 North Virginia Street, Reno, Nevada.
The enclosed stock will complete the first part of our contract. The second part, or cash
retainer of $1,000.00 will be payable to you as, if and when I take in sufficient money from
the sale of stock to justify the payment of $1,000.00 to you.
$1,000.00 to you. If those arrangements can be accepted by you satisfactorily, you may
continue. Otherwise, advise me accordingly.
This letter was sent by registered mail and was receipted for by Samuel A. King's agent.
On March 18, 1939, Samuel A. King wrote Cunningham commenting on the Hobbs
resolution (which was virtually the same as the Nye resolution), suggesting the need that it be
amended to include tide lands as well as submerged lands, and also to make specific reference
covering protection to valid pending applications for prospecting permits or leases and
referring to an intended meeting the following Monday with Mr. Hobbs concerning this
matter, and which had already been discussed by Mr. King with Mr. Hobbs's secretary.
On March 21, 1939, Samuel A. King further wrote Mr. Cunningham with a further
analysis of the Nye resolution, and the fact that Mr. Hobbs was opposed to including tide
lands with the submerged lands as covered by his resolution. He wrote him further and
encouragingly, on the same date, and stated: My partners and I feel that we will succeed for
you. Mr. Cunningham wrote Mr. Samuel A. King,
c
/o Watson, King and Brode, March 21,
1939 acknowledging receipt of the latter's last two letters, referring again to the stock
certificates theretofore forwarded and trusted that you received the same okeh and will carry
through with the balance of the deal according to my former letter to you. Trusting that I may
have your service and sincere efforts in the matter * * *.
On March 24, 1939, King again reported to Cunningham at some length, and on March 31,
1939, at further length, reporting on his arguments before the Senate Committee on the Nye
resolution.
Further correspondence passed between the parties to which no particular reference need
be made. Some twenty-six letters were introduced, all of which indicated services by King.
On April 7, 1939, Mr. Cunningham wrote Mr. King as follows:
I have a number of your letters of recent date, and Dr. Martin has returned to Las Vegas,
and we have had many discussions regarding how to proceed.
You must bear in mind that I have spent four years time, and a sizeable fortune in
promoting the different resolutions which were before the Senate and the House. Your
various letters indicated your support of the different resolutions. Your presence at our
luncheon at the Apache Hotel, when you were in Las Vegas, verified that to our luncheon
guest.
It has been our hope and belief that any resolution or Act of Congress would validate our
claims, and our whole future was predicated on this belief. Now for you to change your
attitude and oppose the different resolutions at this late date, leaves us without an explanation
of any kind, and we are helpless and hopeless until you have fully explained your situation
and point to some definite action.
Please advise me to whom we might look now for help, and where may we expect that
help. When are the executive committees to act, and who are the proponents and opponents of
the resolution?
I trust that you understand my position, and that you will explain fully and definitely who
is supporting the resolution, and what procedure you have in mind, and when we may expect
something definite. Our ability to speak encouragingly is our stock and trade in getting money
for you.
[Headnote 1]
The last letter quoted is strongly relied upon by appellant to indicate that Samuel A. King
had been guilty of gross misbehavior in opposing the resolution favored by Mr. Cunningham,
but a careful review of the entire correspondence satisfies us that the trial judge was justified
in rejecting this contention. Apparently Mr. King felt that the only way in which powerful
assistance could be obtained and powerful objections eliminated was by having the
resolution cover both the tide lands and the submerged lands.
could be obtained and powerful objections eliminated was by having the resolution cover
both the tide lands and the submerged lands.
[Headnotes 2-4]
As to the total lack of consideration and as to the failure of consideration, both of which
are earnestly urged by appellant, we are obliged to hold that the contention is without merit.
That the services were undertaken and that some of them were performed were found by the
district court with substantial evidence to sustain the same. It was neither the duty nor the
province of the district court to determine the precise amount or the reasonable value of those
services. The problematical value of the stock and the uncertainty of the outcome are features
that are common to arrangements of this kind. Appellant contends that King's letters to
Cunningham of May 8, 1942 and of July 10, 1942, neither of which we have quoted, treat all
former negotiations as terminated. We do not so read them.
[Headnotes 5-7]
Appellant earnestly contends that the contract of employment, under which the 150,000
shares of stock were delivered, was of the firm of Watson, King and Brode and Karl V. King;
that if the stock became the property of any of the attorneys, it belonged to the firm and
possibly to Karl V. King; that it was essential for plaintiff to establish her chain of ownership
and prove the transfer of title from these attorneys to Samuel A. King. They cite various
authorities indicating that a partner has no right to give away partnership property and that a
gift may be questioned not only by the donor, but by third persons claiming ownership and
claiming to be damaged by the attempted gift. In like manner they attack the gift from Samuel
A. King to his wife. It should be noted first that under the provisions of section 6 of the
uniform stock transfer act cited in footnote 1 hereof, The endorsement of a certificate by the
person appearing by the certificate to be the owner of the shares represented thereby is
effectual * * * though the endorser or transferor * * * {d) Has received no consideration."
N.C.L.1943-1949 Supp., sec.
the shares represented thereby is effectual * * * though the endorser or transferor * * * (d)
Has received no consideration. N.C.L.1943-1949 Supp., sec. 1854.05. Under section 1 of the
act, N.C.L.1943-1949 Supp., sec. 1854, the title to a certificate is transferred, among other
ways, by delivery of the certificate endorsed in blank, and this is so despite provisions in the
articles of incorporation or bylaws providing that the shares shall be transferable only on the
books of the corporation, etc. While it is generally held that certificates of stock are not
negotiable instruments within the meaning of the negotiable instruments law, in modern
commerce we know that they pass from hand to hand by endorsement and delivery. Nothing
in the present case indicates any necessity that we delve in the questions of bona fides,
innocent holders, due course, etc., discussed in the briefs of both parties.
[Headnotes 8, 9]
From the correspondence quoted and referred to, it will be seen that most of the letters
were between Mr. Cunningham, signing individually, and Mr. King, signing individually.
They were also so addressed. Some of the letters were addressed to King in care of his firm.
The letters from King were on the firm stationery. The original acceptance of employment
was on behalf of the firm and of Karl V. King. There was perhaps no great consistency in the
precise use of names. We do not consider the matter of too great importance or that any
technical break in an exact chain of title can defeat plaintiff's right to recover. Common law
and statutory presumptions would indicate Samuel A. King's ownership of the two certificates
of stock possessed by him and that any transactions between himself and his firm or
associates in the practice of the law were fair and regular, and that his ownership and
possession of the certificates, as between him and his law firm, were the result of the ordinary
course of business. See N.C.L., sec. 9047.07, subds. 8, 11, 19, 20, 33, etc., 1931-1941 Supp.
Supp. These presumptions are strengthened by the long lapse of time involved. As to the gift
from Samuel A. King to Mrs. King, this is established by her uncontroverted testimony.
The question of estoppel is discussed at some length in the briefs, but some of the main
elements of estoppel are so patently lacking that the subject does not warrant discussion.
[Headnote 10]
Appellant attaches much importance to the $1,000 cash consideration which was to be
paid by the corporation in addition to the 150,000 shares of stock and to the fact that no part
of this $1,000 was ever paid and to King's insistence in many of his letters that some money
should be paid to cover expenses. We are unable to draw from this situation the conclusions
reached by appellant, namely, that this in some manner operated as a repudiation by King and
his associates of the entire transaction. Their work continued despite this failure of payment.
With reference to the conflict in ideas as to the support of or opposition to the Hobbs
resolution or the Nye resolution and with reference to appellant's contention that the value of
the stock became established by the decision of the Supreme Court of the United States in
United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889, thus establishing the
fact that Cunningham was right in his legal thinking, and in which he received no legal aid
from his attorneys, we can only repeat that the trial court was not called upon to measure the
value of those services.
[Headnote 11]
Appellant also contends that Mrs. King's request for the issuance of new certificates in her
own name after a period of ten years during which interim the Supreme Court decision gave
value to the same, is unconscionable. We see no merit to this contention. There was no
obligation on her part to have the stock transferred to her name on the books of the
corporation.
[Headnote 12]
The evidence as to the loss of the stock is also attacked as wholly unsatisfactory. Mrs.
King testified as to the circumstances under which she delivered the certificates to her sister
to be placed in her safe deposit box and subsequently was unable to find the same. We need
not review this testimony. The evidence was substantial and the trial court was entitled to
believe its accuracy. It is further asserted by appellant that under our statutes authorizing the
issuance of new certificates in place of lost ones the corporation legally could not recognize
any claim of the respondent to said stock until it be established by satisfactory evidence that
the same was lost or misplaced. Not only did the trial court find the evidence satisfactory,
but it is significant that the corporation itself did not defend the action, nor has it appealed
from the judgment or order denying new trial. Indeed, its attorney stated in open court that it
had no interest in the suit at all and did not care who gets the stock.
[Headnote 13]
Appellant states in his closing brief that the questions of law herein are not difficult nor are
the questions of fact too involved, but that when reduced to the controlling questions the case
becomes simple. We are inclined to agree with this statement, which accounts for the fact that
we have found it unnecessary to indulge in any extensive citation of authorities. It may be true
that the facts are not as conclusive as might be hoped for, but it is apparently the result of the
very nature and circumstances of the case. While the evidence was largely documentary, it
was not so in its entirety. Mrs. King, the plaintiff, Mr. Austin, secretary of the corporation,
and Mr. Cunningham, defendant and appellant (president of the corporation for some ten
years), all testified at some length. Accordingly, as to many if not most of appellant's
contentions, we are guided by the familiar rule that we will not disturb the findings if they
find substantial support in the evidence.
Finding no error, it is ordered that the judgment and the order denying appellant's motion
for new trial be, and they hereby are, affirmed with costs.
Horsey, formerly chief justice, did not participate, his term of office having heretofore
expired.
Merrill, J., did not participate, he having become a member of the court after said matter
was argued and submitted.
March 29, 1951.
Per curiam:
Rehearing denied.
The original opinion is corrected by striking out the words as an adverse witness, in
lines 3 and 4 of the fourth paragraph thereof.
____________
68 Nev. 196, 196 (1951) Brown v. Lindsay
T. N. BROWN and HOWARD BROWN, Copartners Doing Business Under the Firm Name
of BROWN MOTORS, Appellants, v. CLAUDE T. LINDSAY and RAY T. LINDSAY,
Copartners Doing Business Under the Firm Name of
MOUNT ROSE LUMBER COMPANY, Respondents.
No. 3618
March 6, 1951. 228 P.2d 262.
Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,
department No. 2.
Action by Claude T. Lindsay, and another, copartners doing business under the firm name
of Mount Rose Lumber Company, against T.N. Brown, and another, copartners doing
business under the firm name of Brown Motors for damages and for consequent loss of use
when a logging tractor rolled down a mountain side.
Motors for damages and for consequent loss of use when a logging tractor rolled down a
mountain side. From a judgment for the plaintiffs, and denial of a new trial, the defendants
appealed. The Supreme Court, Merrill, J., held that the evidence supported a finding of
negligence on the part of the repairman and his helper.
Judgment affirmed as modified, and order denying motion for new trial affirmed.
John S. Halley, of Reno, for Appellants.
Cooke & Cooke, of Reno, and W. G. Harmon, of San Francisco, California, for
Respondents.
1. Automobiles.
In action against repairmen for damage and consequent loss suffered when tractor rolled down mountain,
evidence sustained finding of negligence on part of repairman and helper.
2. Automobiles.
In action against repairmen for damages to logging tractor and for consequent loss of use, evidence
supported award of $276 for cost of loading and transporting damaged tractor from mountain to city for
repairs.
3. Automobiles.
Where logging tractor was damaged seriously during repairs, and another tractor, used to do part of work
usually assigned to damaged machine, was obtained under contract of rental planned and entered into prior
to the accident as result of plaintiffs' desire to carry on additional logging operations, plaintiffs were not
entitled to recover from repairmen a sum representing rental of second tractor.
4. Automobiles.
supported award of $3,772.43 for damages sustained as result of owners' inability to haul logs while repairs
were being made.
5. Damages.
Steps which damaged party is required to take to minimize or prevent aggravation of damages are those
which reasonably prudent man might be expected to take, but injured party is not under obligation to use
more than ordinary diligence.
6. Damages.
Generally, rule against recovery of uncertain damages is directed against uncertainty as to existence or
cause of damage rather than as to measure or extent.
7. Automobiles.
supported award of $500 to owners as result of shutting down mill because of failure to supply logs while
tractor was being repaired.
OPINION
This is an appeal from judgment of the Second judicial district court of the State of
Nevada in and for the county of Washoe in favor of respondents in the sum of $5,526.43, plus
costs, and from order of that court denying motion for new trial. The questions involved have
to do with the sufficiency of the evidence to support court findings of negligence and
damages.
Respondents (plaintiffs below) were copartners who operated a saw mill at Reno and
carried on logging operations on government lands. In 1944, under government contract, they
engaged in operations in Sierra County, California. They employed nine or ten men in this
operation and various items of logging equipment including two tractors, one of which was
used exclusively for skidding logs and the other largely for road making.
The amount of timber in the area was limited. By early September, 1945, they had
concluded that it would not be practical to operate in the area for another season and had
determined to make every effort to get out all logs during the 1945 season. To that end they
had arranged to rent a third tractor from the Isbell Construction Company of Reno to be used
for road making, enabling them to use both of their own tractors exclusively for logging.
This, they felt, would almost double their output and permit them to complete operations in
that area before winter set in.
Just before the rented tractor was due, one of their own tractors, an International, required
clutch repair.
Appellants (defendants below) were Reno agents for International Harvester Company,
manufacturer of the International tractor. Their foreman in charge of tractor service,
Christensen, was a trained and experienced mechanic, schooled at the factory on the
mechanism of the International tractor.
Respondent Ray T. Lindsay went to appellants' service department in Reno, was referred
to Christensen, and arranged with him to go to the scene of their logging operations and there
make the necessary repairs. The nature of the difficulty was explained to him and also the
need for immediate action. Lindsay explained that they were depending on production of that
tractor to keep their mill going, that any delay might mean shut-down of the mill and would
prevent trucking and logging crews from operating to capacity.
On September 15, Christensen, with one helper, set out for the scene of operations in a
pickup truck. Due to the steepness of grade of the logging road they were forced to stop some
distance from where the tractor was at work. The tractor was brought down the mountain by
its driver, Brown, an employee of respondents, to a relatively level spot more accessible to
the pickup truck, and Christensen and his helper commenced the work of repair. During the
course of the repairs the tractor started to roll, could not be controlled, and plunged to the
bottom of a canyon, suffering serious damage.
It is for that damage and consequent loss of use that suit was brought and judgment
rendered in favor of respondents. The matter was tried before the court without a jury. In
support of the judgment was a finding of negligence on the part of Christensen and his helper
as cause of the accident.
[Headnote 1]
Appellants first contend that there is insufficient evidence to establish that Christensen
was negligent; that the evidence, on the contrary, establishes that the driver, Brown, was at
fault and that his negligence caused the accident, or at least was an important
contributing factor.
Brown, was at fault and that his negligence caused the accident, or at least was an important
contributing factor.
In many details the evidence is in conflict. First there is dispute as to who (Brown or
Christensen) was responsible for selecting the site for repairs. Certainly the site was an
extremely poor one as the facts themselves demonstrate, although, coming from the extreme
steepness of the logging road it seemed to both Brown and Christensen to be sufficiently
level. At the very least, the testimony agrees, the tractor should have been blocked.
However, there is evidence from which it might be found that Christensen assumed the
responsibility for the site of repairs and that Brown accepted his judgment in the matter.
Brown testified that in bringing the tractor down the road he encountered Christensen where
the pickup truck had been parked. Brown states, He picked up his parts there, and he
couldn't work there; it was a little too steep, so he motioned me on down to a level spot.
Brown went on down the road about 150 yards, then I took the cat to this level spot,
turned it around, and parked it right there above the road. * * * I said, Is it alright?' and he
said, Yes,' and they went right to work on it.
Moreover, when Christensen commenced work of repair, the inherent danger, due to the
site and the unblocked condition of the tractor, was as apparent to him as to Brown, if not
more so in view of his training and experience. Nor can it be said that Brown withheld from
him any facts which would have affected his judgment.
It is then contended by respondents that Brown was negligent in turning the tractor over to
Christensen with its brakes unset. There is, however, evidence to the contrary; evidence from
which the court might well have found that when Christensen commenced work the brakes
were set and the gears engaged in compression.
There is, on the other hand, no dispute as to the immediate cause for the tractor's commencing
to roll. This was the inadvertent disengaging of the clutch by Christensen and his helper in the
course of removing the deck or floor board in order to get at the clutch mechanism. By then
the brake rests had been removed by Christensen and there was no way to stop forward
progress of the tractor.
Accordingly, it is the view of the court that there is sufficient evidence to support the
finding of negligence on the part of Christensen and his helper.
This brings us to consideration of the question of damages. Damages allowed by the lower
court were: loading and transporting the damaged tractor to and from Reno for repairs, $276;
hiring a tractor for 14 days to take the place of the damaged tractor, $978; damage to
plaintiffs by reason of inability to haul out 360,000 feet of logs, $3,772.43; damage to
plaintiffs by shutting down mill because of failure to supply logs, $500; a total of $5,526.43.
Each item is challenged by appellants upon the ground that it is unsupported by evidence.
[Headnote 2]
The evidence shows that Lindsay, the day of the accident, made demand upon appellant T.
N. Brown for redress; that appellant Brown disclaimed responsibility, agreeing only to repair
the tractor as quickly as possible. Appellants not having facilities for getting the tractor out of
the canyon to which it had plunged or for repairing it in their own shop, the tractor was taken
at respondents' expense to the yard of Isbell Construction Company. Transportation of the
tractor to and from its site of repair cost respondents $276. The evidence is clear as to the
items which make up this total cost and as to the facts of their payment by respondents. The
judgment of the lower court is sustained as to this item of damage.
The evidence shows that respondents attempted to secure a tractor to replace the damaged
one but were unsuccessful.
unsuccessful. The tractor which they had arranged to rent from Isbell Construction Company
arrived and was put to work during the two-week period for which they had arranged. It could
not, however, be used exclusively for road work as originally contemplated and they were
forced to use it for logging as well. It was not equipped with a winch, necessary for effective
logging work. Its operator, provided by Isbell Construction Company under its rental contract,
was not experienced in logging. As a consequence, instead of having their output doubled as
contemplated, respondents suffered a loss of output estimated at 20 percent. When winter
weather forced shutting down, 360,000 feet of felled logs were of necessity left behind.
Respondent Ray T. Lindsay testified that due to deterioration of the road and the necessity for
making equipment available, cost of recovering those logs in 1946 or later would have
exceeded the amount they might have recovered for them. Attempts were made to sell the
logs on the ground but were not successful.
The lower court has allowed damages not only for the unrecovered logs but for the rent of
the Isbell tractor as well. It appears from the evidence, however, that the Isbell tractor was not
a substitute tractor. It was rented pursuant to respondents' original plan of increasing output
through utilizing additional equipment. The 360,000 feet of logs which the court found might
have been recovered but for the accident, could not have been recovered without the added
help provided by the rented tractor. Had the damaged tractor been available, respondents
might well have recovered those logs, but in so doing they would also have had to rent the
Isbell tractor in accordance with their original plan and make those payments in rental which
they did in fact make.
[Headnote 3]
It is held, therefore, that the lower court was in error in granting judgment in the sum of
$978 rental of the tractor from Isbell Construction Company.
[Headnote 4]
As to the unrecovered logs the evidence is amply sufficient to establish that, but for the
loss of respondents' tractor, they would have been recovered. The damaged tractor had, prior
to the accident, been logging between 30,000 and 35,000 feet per day. During repair it was
lost to the operation for 14 days of which 12 were working days. From the evidence, the
tractor alone could have recovered the lost logs during that 12-day period, not to mention the
increased efficiency which would have resulted from using the Isbell tractor exclusively for
the road work for which it was designed.
Further, the evidence is sufficient to establish the monetary extent of the loss. The
judgment granted by the lower court was based upon sums actually expended by respondents
upon the lost logs for stumpage, felling, bucking, limbing and road work. Each item is
supported by evidence. The judgment did not include any element of anticipated profit.
[Headnote 5]
Appellants contend that had respondents properly attempted to minimize damages, this
timber would not have been felled and the damage would have been avoided. Steps which a
damaged party is required to take to minimize or prevent aggravation of damages are those
which a reasonably prudent man might be expected to take. See 25 C.J.S., Damages, sec. 33,
p. 499; 15 Am.Jur. 424, Damages, sec. 28. * * * the party injured is not under any obligation
to use more than ordinary diligence. Prudent action is required, but not that action which the
defendant, upon afterthought, may be able to show would have been more advantageous to
him.' The amount of care required is not to be measured by ex post facto wisdom'; and the
plaintiff is not bound at his peril to know the best thing to do. 1 Sedgwick on Damages 415,
sec. 221.
While the timber apparently was all felled after damage to the tractor had occurred and
with full knowledge of the reduced productive capacity of the operation, still it cannot be
said that respondents were lacking in reasonable prudence in proceeding as they did.
of the reduced productive capacity of the operation, still it cannot be said that respondents
were lacking in reasonable prudence in proceeding as they did. Certainly they were entitled to
make every reasonable effort to get out the greatest possible footage before closing down
operations. Felling operations ceased the end of October. Further logging became impossible
about the middle of November. A few more days of favorable weather would have permitted
full recovery. This is particularly pertinent in view of the fact that the year previous, weather
had permitted a month longer operational season. To hold respondents to a greater degree of
care would in effect be to demand of them a course which would eliminate all normal risks of
their business. This certainly is exercise of caution to an extent which no business in a
competitive field could long survive.
Appellants point out that the evidence shows that 64,000 feet of the lost logs were cut
under a government contract executed after the accident occurred. They contend that
respondents' entering into this new contract demonstrates lack of prudence. For all that can be
learned from the record, however, this contract was no more than a government permit to cut
timber for a fixed stumpage fee of so much a foot. Respondents make no claim of loss based
upon unfulfilled contract obligations. If continued logging was not in itself imprudent, the
fact that a new contract or permit had first to be secured will not render the action any less
prudent.
The judgment of the lower court is sustained upon this item of damage.
Upon the item of $500 damage to respondents by shutting down of the mill, appellants
contend that there is a complete lack of competent evidence; that the only evidence offered is
uncertain, speculative and conjectural. In this regard respondent Ray T. Lindsay testified as
follows: With the loss of the tractor, we were faced with a slight decrease, as I have said, at
least a 20 percent decrease in the amount of logs we were getting in, and not having a deck
of logs on hand, your mill does not operate to advantage, or at least to full advantage
unless you have a steady and constant source of supply of logs.
and not having a deck of logs on hand, your mill does not operate to advantage, or at least to
full advantage unless you have a steady and constant source of supply of logs. As a result of
the loss of this tractor, we had periodic shortages at the mill, or times when they were just
about out, and a crew of mill men do not put forth their best efforts if they can see the last log
or two about to go into the mill, so that your loss in production and in efficiency at the mill
was very definite, and we had estimated that at $500.00.
Q. * * * Did the mill shut down? A. Periodically. You may have spells of a half hour, or
there may be a half day maybe we wouldn't even operate the mill, and maybe use them to do
other things rather than cutting lumber because of the lack of logs. * * * I believe there was a
half day or so in which we didn't operate, and then there were periods of a half hour or hour
during the two week period in which lost time was involved. * * *
Q. Was there any other reason for the mill shutting down from time to time? A. There
may have been. There may have been other repairs or other reasons, such as making minor
repairs, but in addition to those, there was also this definite delay and loss of time due to
insufficient logs.
* * * * * * *
Q. What do you base the estimate of $500.00 that you have set up here? In what way do
you reach that? A. That is based on the amount of the payroll we had per day and the loss of
payroll in the production. * * * Our payroll in the mill was in the neighborhood of $250.00 or
$275.00 a day.
Q. There was a shutdown then, if I understand your testimony, of a couple of days all told
on account of this shortage and supply of logs? A. Approximately, yes. It totaled up
approximately a couple of days.
[Headnote 6]
The rule against the recovery of uncertain damages generally is directed against
uncertainty as to the existence or cause of damage rather than as to measure or extent.
extent. See 25 C.J.S., Damages, secs. 27, 28, p. 493. From the testimony it is clear that
damage was suffered. There were periodic shortages; loss in production and efficiency was
very definite; there was a definite delay and loss of time due to insufficient logs. This was not
the result of speculation or conjecture; this was not guesswork.
[Headnote 7]
The uncertainty in the testimony applies not to the existence or cause of damage but rather
to its extent or measure. Even here the uncertainty is not speculative or conjectural in
character. The testimony as to the extent of damage is not based upon inference or
assumption as to what may have occurred but upon recollection as to what actually did occur.
In the view of this court, the extent to which that recollection was uncertain in detail will not
serve to render it wholly insufficient. Accordingly there was evidence to support the finding
and judgment of the lower court in this respect, and upon that item of damages the judgment
is sustained.
The judgment of the lower court is modified by eliminating therefrom the item of $978
tractor rental. Judgment, as so modified, in the sum of $4,548.43 and order denying motion
for new trial are hereby affirmed. The respective parties shall bear their own costs upon this
appeal.
April 3, 1951.
Per curiam:
The petition for rehearing, including request for modification of order with reference to
costs, is denied.
____________
68 Nev. 207, 207 (1951) Schultz v. King
CLEVELAND SCHULTZ, Sr., and JUDD C. PORTER, Appellants, v. HERBERT S. KING,
Doing Business as KING'S HUNTRIDGE DECORATING COMPANY, Respondent.
No. 3542
March 7, 1951. 228 P.2d 401.
Appeal, from the Eighth Judicial District Court; Clark County, Frank McNamee, Judge,
department No. 1.
Action by Cleveland Schultz, Sr., and another, against Herbert S. King to foreclose a
mechanics' lien. From an order setting aside a judgment dismissing plaintiff's complaint for
failure to amend within time allowed and granting plaintiff 10 days in which to amend,
defendant appealed. The Supreme Court, Badt, C.J., held that there was no abuse of
discretion in relieving plaintiff from his default in not filing his amended complaint within
time allowed where a showing of mistake and surprise was made.
Order affirmed.
Cleveland Schultz, Jr., of Las Vegas, for Appellants.
William P. Compton, of Las Vegas, for Respondent.
In the absence of clear abuse of discretion appellate court will not interfere with trial court's discretion in
setting aside defaults and allowing trial on merits.
In action to foreclose mechanic's lien where action was dismissed for failure of plaintiff to amend
complaint within time allowed, and showing was made that such failure was due to misunderstanding
between plaintiff and his attorney and absence of plaintiff to procure medical treatment for his wife, there
was no abuse of discretion in relieving plaintiff from his default and allowing time in which to amend.
N.C.L.1931-1941 Supp., sec. 8640(e).
On appeal from order setting aside dismissal of action to foreclose mechanic's lien for failure to amend
complaint within time allowed and allowing time in which to amend complaint, court would not determine
applicability of statutory provisions concerning mechanics' liens to facts of case when complaint on its
face showed compliance with statutory limitations for filing of lien, but such
determination was for trial court.
complaint on its face showed compliance with statutory limitations for filing of lien, but such determination
was for trial court. N.C.L.1943-1949 Supp. sec. 3739; N.C.L.,1929, secs. 3735, 3737, 3740.
On appeal from order setting aside dismissal of action to foreclose a mechanic's lien where issue was
whether complaint stated meritorious cause of action justifying setting aside default, whether filing of lien
claim was premature was issue of fact not determinable. N.C.L.1943-1949 Supp., sec. 3739.
5. Mechanics' Liens.
Where work to be done on several contiguous tracts of land is all embodied in one contract, mechanic's
lien will as general rule, attach to the entire group.
6. Judgment.
In action to foreclose a mechanic's lien for painting done on four houses under one contractual
arrangement, despite defendant's contention that lien notices on two lots were filed too late and too early on
other two, complaint stated meritorious cause of action sufficient to sustain relief from default judgment for
failure to amend within time allowed when trial court construing contract as one scheme of improvement
could find compliance with statutory limitations. N.C.L.1943-1949 Supp., sec. 3739.
In action to foreclose a mechanic's lien, where there was a judgment of dismissal for failure to amend
within time allowed, order entered pursuant to motion and notice, which set aside judgment of dismissal
and allowed time to amend did not deprive owners of property without due process of law, since statute
gave court jurisdiction to relieve from default for mistake, inadvertence, surprise or neglect.
N.C.L.1931-1941 Supp., sec. 8640(e).
OPINION
The district court, after sustaining defendants' demurrer to plaintiff's lien foreclosure
complaint and giving plaintiff 10 days to amend, signed and filed a judgment of dismissal
after plaintiff had failed to amend within the time allowed. Thereafter, on motion of plaintiff,
the court set aside the judgment of dismissal and granted plaintiff 10 days to file an amended
complaint. This appeal is from such order.
Appellants assign four errors. The assignments are overlapping and we restate them as
follows: (1) That the order complained of was an abuse of the trial court's discretion; (2) that
the trial court was not even called upon to exercise its discretion because of respondent's
failure to show that he had a meritorious cause of action; (3) that the same situation existed in
the absence of a showing that a different judgment would probably be reached if plaintiff
were given an opportunity to present his case on the merits; and (4) that the judgment
theretofore obtained by appellants became a property right owned by them and that the
dismissal of such judgment deprived them of such property without due process of law.
[Headnotes 1, 2]
(1) The liberality of courts in setting aside defaults and permitting cases to be tried on their
merits and the reluctance of appellate courts to interfere with the exercise of the trial court's
discretion in thus acting, in the absence of a clear abuse thereof, have been so often
recognized by this and all other courts as to require no citation of authority. That there was no
such abuse of discretion in the instant case would appear from the facts presented to the
district court. The basis for the order appealed from was plaintiff's affidavit, which referred to
his lien foreclosure complaint filed in his behalf by the attorney then acting for him (he is
represented by different counsel in resisting this appeal) on January 19, 1948, and which then
proceeds to show the following facts. Defendants filed their demurrer to such complaint
January 30, 1948. On February 13, 1948 plaintiff was summoned to his attorney's office and
was advised by his attorney that the latter would withdraw from the case unless plaintiff paid
a cash retainer of $750 by noon of that day. The plaintiff remonstrated with him and reminded
him of his agreement to handle the matter on a contingent fee basis, whereupon his attorney
informed him that he would take care of the demurrer. On February 17, 1948 the plaintiff
left Nevada for California to obtain employment and to obtain medical treatment for his
wife who was suffering from heart disease.
Nevada for California to obtain employment and to obtain medical treatment for his wife who
was suffering from heart disease. On February 23, 1948 plaintiff wrote his attorney requesting
information as to the status of the matter, and on March 4, 1948 received a reply advising that
his attorney had withdrawn from the action and no longer represented plaintiff as his attorney.
On February 26, 1948, without the knowledge of plaintiff, the demurrer came on for hearing
without plaintiff's presence or the presence of anyone representing him, and the demurrer was
on said date sustained, with leave to amend within 10 days, and plaintiff's attorney was on the
same day served with notice of such order, but plaintiff was not advised thereof till March 19,
1948. On March 11, 1948, likewise without plaintiff's knowledge, the district judge had
entered a judgment of dismissal for plaintiff's failure to amend within the time required. A
counter affidavit filed by defendant Schultz alleged that by reason of his filing, as owner, of a
certain notice of completion on part of the property and because plaintiff's lien was
prematurely filed as to the remainder of the property, the purported lien foreclosure action
would not lie under the terms of our statute. This raised certain questions of law which we
shall treat later. The counter affidavit did not negative any of the matters of fact contained in
plaintiff's affidavit. Under the combination of circumstances recitedthe evident
misunderstanding between plaintiff and his attorney, plaintiff's departure for California, the
necessity that he find work there, the illness of his wife, his verified lien claim and verified
complaint alleging his performance of labor and furnishing of materials and the failure of
compensation therefor, his lack of knowledge that the demurrer to his complaint had been
submitted in the absence of his attorney, that it had been sustained, that the time for him to
amend had actually expired and that a judgment of dismissal had been entered by default, and
his desire in good faith to prosecute his actionit cannot be said that there was an abuse
of discretion in the order complained of.
prosecute his actionit cannot be said that there was an abuse of discretion in the order
complained of. We are compelled to hold that this assignment of error is without merit.
(2) Appellants' second and third assignments of error may be considered together. They
arise out of the contention that no meritorious cause of action was shown by plaintiff as
substantiating the court's order, and they refer to the prior order sustaining the general
demurrer to the complaint. The record is bare of any indication as to the reason why the court
found the complaint defective in stating a cause of action, and the granting of leave to amend
is at least some indication that in the opinion of the trial court the complaint could be
amended to state a cause of action. Appellants cite many cases holding a showing of a
meritorious defense as necessary for an order setting aside a defendant's default, and we may
assume by an analogy of reasoning that a showing of a meritorious cause of action is essential
to an order setting aside a plaintiff's default, and, for sake of argument, that appellants are
correct in their contention for the necessity of showing that a different judgment would
probably be reached if respondent were permitted to go to trial on the merits if he could
support the allegations of his verified complaint by proof. These various contentions deal
particularly with appellants' assertion that as to two lots on which the labor was performed the
lien claim was filed late and that as to the other two lots the filing was premature. A
determination of these questions requires an examination of the requirements of the statute.
It is contended that upon the face of the record plaintiff cannot obtain a lien foreclosure
judgment under the provisions of our statute. The statute in question, as last amended, is
N.C.L., sec. 3739, 1943-1949 Supp., and reads in part as follows:
Every person claiming the benefit of this chapter shall, not earlier than ten days after the
completion of his contract, or the delivery of material by him, or the performance of his
labor, as the case may be, and in each case not later than thirty days after the completion
of the contract and the recording of the completion notice by the owner as hereinafter
provided, and in all other cases ninety days after the completion of the contract, or the
delivery of material, or the performance of his labor as the case may be, file for record
with the county recorder of the county where the property or some part thereof is
situated, a claim containing a statement of his demand
* * *
his contract, or the delivery of material by him, or the performance of his labor, as the case
may be, and in each case not later than thirty days after the completion of the contract and the
recording of the completion notice by the owner as hereinafter provided, and in all other cases
ninety days after the completion of the contract, or the delivery of material, or the
performance of his labor as the case may be, file for record with the county recorder of the
county where the property or some part thereof is situated, a claim containing a statement of
his demand
* * *
In all cases, any of the following shall be deemed equivalent to a completion for all the
purposes of this act; the occupation or use of a building, improvement or structure by the
owner, or his representative, accompanied by cessation from labor thereon; or the acceptance
by the owner, or said agent of said building, improvement or structure, or cessation from
labor for thirty days upon any contract or upon any building, improvement or structure, or the
alteration, addition to, or repair thereof; the filing of the notice hereinafter provided for.
The owner may within ten days after the completion of any contract or work of
improvement provided for in this act, or within ten days after there has been a cessation from
labor thereon for a period of thirty days, file for record in the office of the county recorder of
the county where the property is situated a notice setting forth the date when the same was
completed, or on which cessation from labor occurred * * *. In case such notice be not so
filed, then all persons claiming the benefit of this act, shall have ninety days after the
completion of said work of improvement within which to file their claims of lien. The phrase
work of improvement' and the word improvement' as used in this act are each hereby
defined to mean the entire structure or scheme of improvement as a whole.
It appears from the complaint that the plaintiff, on July 10, 1947, entered into a written
contract with appellant Porter, the main contractor, for the furnishing of labor and
material for the painting job on the property known as "The Doris Homes" comprising four
lots, on lots 13, 14, 15 and 16, of Block 10, Fairview Tract, at Las Vegas, Nevada.
appellant Porter, the main contractor, for the furnishing of labor and material for the painting
job on the property known as The Doris Homes comprising four lots, on lots 13, 14, 15 and
16, of Block 10, Fairview Tract, at Las Vegas, Nevada. The painting was specifically
described and the amount and terms of payment set forth, with other usual provisions as to
the nature of the performance and containing the notation Total value of this contract is:
$155.00 times 16 units: $2,480.00. A memorandum attached listed the numbers of windows,
doors, walls, ceilings, etc., and the numbers of coats of paint to be applied to the different
items. For outside work is listed, among others, the item 33 windows. There were also nine
doors and four porch overhangs. We mention these items as at least indicating that such
work was not restricted to a single one of the units but embraced all of them, probably,
though not necessarily, within the statutory contemplation of the entire * * * scheme of
improvement as a whole.
[Headnote 3]
The affidavit of appellant Schultz is to the effect that he filed a notice of completion on
lots 15 and 16 on October 16, 1947, more than 30 days prior to the filing of plaintiff's lien
claim (November 25, 1947), and appellants insist that this conclusively shows that plaintiff is
barred by the terms of the statute from recovering a judgment for a lien foreclosure as to these
two lots. So far as is indicated by the record, we are unable to say that this is so. The lien
created by sec. 3735, N.C.L.1929, is a lien upon the building or other superstructure upon
which the work is done, which lien under the provisions of sec. 3737, N.C.L., extends to a
convenient space about the same, or so much as may be required for the convenient use and
occupation thereof. Under sec. 3740, N.C.L., where one claim is filed against two or more
buildings owned by the same person, the claimant is required to designate the amount due
him on each of such buildings, but the only penalty recited in the statute for failure to make
such designation is the postponement of his lien to other liens and the possible
postponement of his claim to the claims of other creditors having liens by judgment or
otherwise upon the buildings, improvements or land involved.
for failure to make such designation is the postponement of his lien to other liens and the
possible postponement of his claim to the claims of other creditors having liens by judgment
or otherwise upon the buildings, improvements or land involved. The importance of the last
sentence hereinabove quoted as a part of sec. 3739 to the effect that improvement as used
in the act is defined to mean the entire structure or scheme of improvement as a whole
becomes manifest. We cannot in this proceeding make any determination as to the
applicability of these provisions to the facts of the case. Such determination must be made
primarily by the trial court. We are able to conclude, however, that from the record before us
it does not affirmatively appear that the filing of the notice of completion as to lots 15 and 16
necessarily started the 30-day period running for the filing of plaintiff's lien claim on the
entire job. The verified complaint alleges the completion of labor by the plaintiff and the
occupation of the said apartment dwelling units on November 14, 1947 and the filing of the
lien on November 25, 1947. This would appear on its face to show a compliance with the
requirements of sec. 3739, unless after a trial of the issues of law and fact raised by the
completed pleadings of the parties, the situation is changed by the filing of the notice of
completion as to the improvements on lots 15 and 16, as mentioned above. It may also be
noted, in passing, that while appellants allege the filing of completion notice on November
25, 1947, they do not allege that such notice stated the date of the completion of the work, an
express requirement of the statute.
[Headnotes 4, 5]
Appellants also contend that as to the improvements on lots 13 and 14, the filing of the
lien claim was premature, because as to these lots plaintiff filed notice of completion
November 25, 1947, the same date as the filing of the plaintiff's lien, whereas it is asserted
that the statute provides that the claim shall be filed not earlier than ten days after the
completion of his contract, or the delivery of material by him, or the performance of his
labor, as the case may be," and that the statute makes the filing of a notice of completion
equivalent to completion.
earlier than ten days after the completion of his contract, or the delivery of material by him, or
the performance of his labor, as the case may be, and that the statute makes the filing of a
notice of completion equivalent to completion. Under the statute, when ten days have elapsed
after the completion of the contract or the delivery of the material or the performance of the
labor, the claim of lien may be filed. Plaintiff alleges that he completed his contract, and that
the owner took possession, on November 14, 1947, and that plaintiff filed his lien November
25, 1947, thus satisfying the statutory lapse of ten days. The defendant owner contends that,
per his notice of completion, the work was completed on lots 13 and 14 on November 25,
1947, and the filing of the lien claim was therefore premature. Here again we have an issue of
fact that cannot be determined on this appeal. There was, as we have seen, but one contract
for plaintiff's entire paint job on the entire group of units on four contiguous lots. This fact
would, as a general rule, permit plaintiff's lien to attach to the entire group, 57 C.J.S.,
mechanics' liens, sec. 189c, p. 741, although questions of severability might result in an
exception to or modification of such rule. Golden Belt Lumber Co. v. McLean, 138 Kan. 351,
26 P.2d 274.
[Headnote 6]
Accordingly, appellants' assignments of error numbers 2 and 3, based on the contention
that respondent's lien was late as to lots 15 and 16 and premature as to lots 13 and 14, by
reason of the filing of the respective completion notices, and that respondent had therefore
failed to show a meritorious cause of action, must be held to be without merit so far as the
order appealed from is concerned, even though the complexion of the matter may be altered
at a trial of issues raised by further pleadings. Esden v. May, 36 Nev. 611, 135 P. 1185;
Stretch v. Montezuma Min. Co., 29 Nev. 163, 86 P. 445; and Nevada Consol. Min. & Mill
Co. v. Lewis, 34 Nev. 500, 126 P. 105, relied on by appellants, do not in our opinion preclude
this conclusion.
[Headnote 7]
(3) Nor is there any merit to the assignment that by the court's order appellants were
deprived of their property without due process of law. Assuming, arguendo, that the original
judgment relieving the property from the claim of lien was a property right, there is still no
showing of absence of due process. Under sec. 8640(e), N.C.L.1931-1941 Supp., the court
was vested with jurisdiction to relieve the plaintiff from his default in not filing his amended
complaint by reason of his mistake, inadvertence, surprise or excusable neglect. The court's
action was taken as the result of plaintiff's motion, notice of which had been served in
accordance with statute and rule of court based upon the affidavits and counter affidavits of
the parties and after argument and submission by their respective counsel.
The order appealed from is hereby affirmed, with costs.
Horsey, formerly Chief Justice, did not participate, his term of office having heretofore
expired.
Merrill, J., having become a member of the court after said matter was argued and
submitted, did not participate.
____________
68 Nev. 217, 217 (1951) Bushard v. Washoe County
H. B. R. BUSHARD and L. V. REDFIELD,
Appellants, v. WASHOE COUNTY, Respondent.
No. 3643
March 15, 1951. 229 P.2d 156.
Washoe County brought condemnation proceedings against H. B. R. Bushard and L. V.
Redfield to condemn certain realty owned by defendants. From a judgment adverse to the
defendants, defendants appealed, and the plaintiff moved to strike from the record on the
appeal the transcript of testimony and certain documents which had been submitted as part of
the bill of exceptions. The Supreme Court, Eather, J., held that since appellants had failed to
move for a new trial at any time, the transcript was not properly before the Supreme Court.
Motion to strike transcript granted and motion to strike documents granted.
George Lohse, of Reno, for Appellants.
Jack Streeter, District Attorney, Washoe County, and David Goldwater, both of Reno, for
Respondent.
A motion for new trial must be made and determined before an appeal may be taken on ground of
insufficiency of evidence to support judgment.
Where appellants had failed to move for a new trial at any time, transcript of testimony was not properly
before supreme court on appeal and motion to strike transcript would be granted.
Where record of proceedings is submitted as a bill of exceptions, requirement that it be settled and
allowed by trial court or by stipulation of parties, is mandatory. N.C.L.1929, secs. 9385.81, 9385.84,
9385.85.
Where neither transcript of testimony nor documents which were submitted by appellants as part of their
bill of exceptions, were properly before supreme court on appeal, record on appeal was limited to
documents comprising the judgment roll.
on appeal was limited to documents comprising the judgment roll. N.C.L.1929, sec. 8829.
Conclusions of law are not part of the judgment roll on appeal. N.C.L.1929, sec. 8829.
Minutes and opinion and decision of the trial court are not a part of the judgment roll on appeal.
N.C.L.1929, sec. 8829.
Documents, papers or exhibits which are not settled or allowed by the court or by stipulation are not a
part of the bill of exceptions.
8. Judgment.
Where minute order of decision of trial court is at variance with formal judgment filed thereafter, the
formal judgment must prevail.
9. Judgment.
Solemn decree of court bearing signature of the judge thereof is the judgment of the court until changed
by appropriate proceedings instituted therefor.
10. New Trial.
Time for filing motions for new trial began from date when written notice of decision was served on
losing parties.
Where notice of appeal and undertaking on appeal were filed with clerk of supreme court as is required,
motion to strike those documents would be denied.
OPINION
This action was brought by respondent county seeking to condemn certain land owned by
appellants. The matter was tried by the court, sitting without a jury, and oral decision in favor
of respondent was rendered by the court on August 15, 1950. On August 22, 1950,
respondent served written notice of decision on appellants. Findings of fact, conclusions of
law, and a judgment of condemnation were signed by the court and filed on September 11,
1950. No motion for a new trial was made at any time. On October 2, 1950, counsel for
respondent and appellants stipulated that appellants have an extension of time within which
to file a bill of exceptions on appeal, with a reservation by respondent of the right to move
to strike the transcript of testimony on appeal at the proper time.
have an extension of time within which to file a bill of exceptions on appeal, with a
reservation by respondent of the right to move to strike the transcript of testimony on appeal
at the proper time. On November 10, 1950, appellants filed in this court a record on appeal
consisting of:
1. A volume containing a transcript of testimony.
2. A volume called a bill of exceptions certified by the Clerk of the District Court as the
papers on file in Action No. 128,289 in the Second judicial district court, and consisting of a
judgment roll containing:
Complaint.
Answer.
Findings of fact.
Conclusions of law.
Judgment of condemnation.
And containing in addition:
(a) Notice of decision.
(b) Proposed findings of fact and conclusions of law.
(c) Proposed judgment.
(d) Objections to findings of fact and conclusions of law and proposed form of judgment.
(e) Minutes March 10, 1950.
(f) Minutes March 17, 1950.
(g) Minutes April 14, 1950.
(h) Minutes April 19, 1950.
(i) Minutes August 15, 1950.
(j) Minutes August 17, 1950.
(k) Minutes September 8, 1950.
(l) Minutes September 11, 1950.
(m) Notice of appeal.
(n) Statement of receipt of bond.
Respondent moved this court to strike from appellants' record on appeal the transcript of
testimony and the documents (a) to (n).
[Headnote 1]
Appellants contend that there is not sufficient evidence to support the judgment of
condemnation. It is the settled law of this state, established by a long line of decisions,
that a motion for a new trial must be made and determined before an appeal may be
taken on the ground of insufficiency of evidence to support the judgment.
settled law of this state, established by a long line of decisions, that a motion for a new trial
must be made and determined before an appeal may be taken on the ground of insufficiency
of evidence to support the judgment. Neill v. Mikulich, 57 Nev. 307, 64 P.2d 612; McGill v.
Lewis, 61 Nev. 28, 111 P.2d 537, 116 P.2d 581, 118 P.2d 702; Snyder v. Garrett, 61 Nev. 85,
115 P.2d 769; In re Benson's Estate, 62 Nev. 376, 151 P.2d 762; Craig v. Harrah, 65 Nev.
294, 195 P.2d 688.
[Headnote 2]
We are not here concerned with what use shall be made of the transcript once an appeal is
properly perfected; nor are we concerned here whether the transcript can be considered when
an appeal is taken from the judgment roll alone. The issue here is whether this transcript,
submitted as a bill of exceptions, is properly before the court at all. Since the appellants failed
to move for a new trial at any time, the transcript is not properly before this court. Snyder v.
Garrett, supra.
[Headnote 3]
The documents (a) to (n), submitted by appellants as a part of their bill of exceptions, were
never settled and allowed by the judge or the court below; nor were they settled or allowed by
stipulation of the parties. This is a necessary step in an appeal where the record of
proceedings is submitted as a bill of exceptions. N.C.L. 9385.81, 1931-1941 Supp. The
method is clearly set forth by our statutes and the requirement is mandatory. N.C.L. 9385.84,
9385.85, 1931-1941 Supp.
[Headnotes 4-7]
Appellants' record on appeal is, therefore, limited to those documents comprising the
judgment roll. What constitutes the judgment roll is set forth by statute. N.C.L. 8829, 1929.
Conclusions of law are not a part of the judgment roll. Harper v. Lichtenberger, 59 Nev. 495,
92 P.2d 719. Minutes and the opinion and decision of the district court are not a part of the
judgment roll. Documents, papers or exhibits which are not settled or allowed by the court or
by stipulation are not a part of a bill of exceptions.
allowed by the court or by stipulation are not a part of a bill of exceptions. Craig v. Harrah,
65 Nev. 294, 195 P.2d 688; State ex rel. Dept. of Highways v. Pinson, 65 Nev. 510, 199 P.2d
631; Dillon v. Dillon, 67 Nev. 428, 220 P.2d 213.
Appellants submit that there is a variance between the oral pronouncement of the court and
the final written entry of judgment, and that the time for filing motion for a new trial has not
begun to run since no notice of decision has ever been given, based upon such written
judgment.
[Headnotes 8, 9]
In support of this contention counsel for the appellants refer to the case of Mortimer v.
Pacific States Savings & Loan Company, 62 Nev. 147, at page 153, 145 P.2d 733, where the
court stated that where the minute order of the decision of the trial court is at variance with
the formal judgment filed thereafter, the latter must prevail. We are of the opinion that the
rule announced in that opinion to the effect that the written order should prevail over the
minute entry is correct. This because of the fact that such rule conforms to the practice
followed for many years and accorded recognition by the court and the bar; that is to say, the
solemn decree of a court bearing the signature of the judge thereof, is recognized as the
judgment of the court until changed by appropriate proceedings instituted therefor. We find
nothing in the Nevada case inconsistent with such practice. There is no question but what the
pronouncement by the court from the bench of a judgment is the rendition of the judgment by
the court. But in this case we are not concerned with the question of what shall be accepted by
this court as evidence of what judgment was rendered; we are concerned with the question of
when the judgment was rendered. The instant case is distinguishable on the facts from
Mortimer v. Pacific States Savings & Loan Company, supra.
[Headnote 10]
Appellants were served with the written notice of decision on August 22, 1950, and the
time for filing motion for new trial began from that date. Austin v. Dilday, 55 Nev. 1, 23 P.2d
504. But any arguments by appellants as to the time when motion for a new trial should be
made are without merit since no motion for a new trial appears in the record before us.
In his oral argument and in his brief opposing the motion to strike, counsel for appellants
asserted that appellants had filed a notice of intention to move for a new trial on September
14, 1950, but that the court below refused to hear said motion. Examination of the certified
record fails to disclose such a notice or order of refusal by the court to hear a motion for a
new trial. Nor has this been made a ground for appeal.
Appellants have placed themselves in the position of asking this court to review a record
on appeal while setting forth that it is not complete or accurate.
[Headnote 11]
The motion to strike as to the notice of appeal and undertaking on appeal is denied for the
reason that the original of such documents are required to be filed with the clerk of this court
and this has been done. Coykendall et al. v. Gray et al., 53 Nev. 113, 293 P. 436.
The motion to strike the transcript of testimony is granted. The motion to strike the
documents lettered (a) to (l) is granted.
It is so ordered.
Badt, C.J., and Merrill, J., concur.
On the Merits
October 26, 1951. 236 P.2d 793.
Washoe County brought condemnation proceedings against H. B. R. Bushard and L. V.
Redfield to condemn 15S.045 acres of land owned by said defendants.
158.045 acres of land owned by said defendants. From a judgment of condemnation
defendants appealed. The Supreme Court, Eather, J., held that complaint sufficiently stated
the basis of the right by which county sought to acquire the land for a purpose for which
county through its board of county commissioners had power to condemn land.
Judgment affirmed.
George Lohse, of Reno, for Appellants.
Jack Streeter, District Attorney of Washoe County, and David Goldwater, both of Reno,
for Respondent.
Where entire transcript of the testimony and all of the bill of exceptions except papers
constituting the judgment roll had been stricken from the record on appeal, the appeal
was before supreme court on the judgment roll alone.
2. Eminent Domain.
Where a complete trial was had in condemnation proceeding upon the issues made by
complaint and answer, striking affirmative defenses merely alleging affirmatively the
negative of the allegations of complaint which had already been denied in answer did not
prejudice any substantial right of defendants.
3. Eminent Domain.
Complaint alleging in effect that the chapter of Nevada compiled laws dealing with the
subject of eminent domain was the basis of the right by which county sought to acquire
land and that the taking was necessary to provide adequate recreational facilities for the
general public was not fatally defective for failure to refer to the precise sections of code
or to allege a determination by the county commissioners as to the necessity for the
taking. N.C.L.1929, secs. 9153 et seq., as amended, 9159.
4. Eminent Domain.
Trial court by findings and judgment of condemnation determined in effect, as alleged
in complaint, that county sought to condemn land for use as a public park and recreation
area, and where appeal was before supreme court on judgment roll alone without any
record of the evidence, the only question before court was whether public park as used in
complaint constituted a public use in the light of the location of area sought to be
condemned, and suggestion that area was suitable only for purposes of skiing could not
be considered. N.C.L.1929, secs. 9153 et seq., as amended, 9159; N.C.L.1931-1941
Supp., sec. 9153.
5. Eminent Domain.
The statutory power to acquire land by eminent domain for use as a public park
includes state and county parks as well as municipal parks. N.C.L.1929, sec. 9153 et
seq., as amended; N.C.L.1931-1941 Supp., sec. 9153.
6. Eminent Domain.
Complaint alleging that county sought to condemn described lands and right of way
thereto for use as a public park, etc., and that the use to which such land was to be
applied was a use authorized by law and was necessary to provide adequate recreational
facilities for the general public, was sufficient to show the basis of the right by which
county sought to acquire the land for a purpose for which county commissioners had the
power to condemn land. N.C.L.1929, sec. 9153 et seq., as amended, 9159;
N.C.L.1931-1941 Supp., sec. 9153.
OPINION
[Headnote 1]
Respondent county commenced this action to condemn 120 acres of land owned by
appellants, together with a right of way, or access to the same, comprising an additional
38.045 acres. Appellants' demurrer to the complaint was overruled by the district court, which
likewise struck from appellants' answer their first and second affirmative defenses. The first
affirmative defense alleged that plaintiff did not have power to exercise the right of eminent
domain for the acquisition of the lands for the use alleged in the complaint. The second
affirmative defense alleged on information and belief that respondent did not seek the lands
for a public use, but in furtherance of a scheme cloaking a private use, to wit, the private
development of a commercial ski area. Thereafter the case went to trial before the court
without a jury; findings of fact and conclusions of law were filed by the court and a judgment
of condemnation entered. The defendants did not move for a new trial but appealed from the
judgment. We heretofore granted the motion of respondent to strike from the record on appeal
the entire transcript of the testimony and all of the bill of exceptions except the papers
constituting the judgment roll.
exceptions except the papers constituting the judgment roll. 68 Nev. 217, 229 P.2d 156. The
appeal is accordingly before us on the judgment roll alone.
[Headnote 2]
Appellants enumerate seven assignments of error. We dispose of the seventh assignment
first. It is to the effect that the trial court erred in striking the first and second affirmative
defenses above described. These defenses simply allege affirmatively the negative of the
allegations of the complaint which the defendants had already denied in their answer. As a
complete trial was apparently had upon the issues made by the complaint and answer, it
cannot be said that any substantial right of the appellants was prejudiced by the striking of
their affirmative defenses. We must therefore hold this assignment to be without merit.
The remaining assignments of error all attack the sufficiency of the complaint. Section
9159, N.C.L.1929, lists the matters which a complaint in condemnation must contain. The
first three have to do with the name of the court, the name of the corporation, association,
commission or person in charge of the public use for which the property is sought and the
names of the owners of the property. These items are set forth with particularity in the
complaint. The fourth requirement is a statement of the right of the plaintiff. Plaintiff's
allegation in this respect is as follows:
That the plaintiff has the power to exercise the right of eminent domain; that plaintiff
seeks to condemn all of the lands described in Paragraph III of this complaint together with
the right-of-way thereto as described in Paragraph III of this complaint, for use as a public
park, picnic ground, and recreational area; that the use to which said land is to be applied is a
use authorized by law and is necessary to provide adequate recreational facilities for the
general public.
This is the meat of the appeal, and is hereinafter disposed of. The fifth requirement of what
the complaint must contain is, if a right of way be sought, the showing of the location,
general route and termini and the submission of a map in connection therewith.
must contain is, if a right of way be sought, the showing of the location, general route and
termini and the submission of a map in connection therewith. This requirement has
undoubtedly been complied with. The sixth and last requirement is for a description of the
land sought to be taken and whether it includes the whole or any part of a tract, etc. It is not
involved in any of the specifications of error.
Combining certain of the assignments of error for the purpose of brevity and to avoid
repetition, these assignments appear to be as follows: (1) that the county commissioners do
not have the power to condemn property for the purposes set forth in the complaint; that the
taking is not for a public, county purpose; (2) that it does not appear that the county
commissioners' resolution was based upon public convenience, necessity or welfare; (3) that
the complaint fails to state the right by which respondent seeks to acquire the property; (4)
that the allegations of the complaint that the use to which the property is to be applied is a use
authorized by law and the allegations that the taking is necessary to provide adequate
recreational facilities for the general public are legal conclusions and wholly insufficient in
view of any failure to allege a determination by the county commissioners as to the necessity
for the taking. The remaining assignments of error will be disposed of in the order presented.
Appellants assign as error that the complaint fails to show the basis in necessity,
convenience and welfare in the resolution of the commissioners. In Kern County Union High
School District v. McDonald, 180 Cal. 7, 179 P. 180, 182, the court states:
It was not essential to the sufficiency of the cause of action pleaded that the complaint
should contain an allegation that the plaintiff was empowered by a valid or any resolution of
its board of trustees to proceed in condemnation. Sec. 1244 of the Code of Civil Procedure,
{Cal.) which prescribed the essentials of a complaint in eminent domain proceedings,
does not require a statement of the adoption of such a resolution, and therefore it was
not necessary to allege that fact. {Central Pacific R. R. Co. v.
(Cal.) which prescribed the essentials of a complaint in eminent domain proceedings, does
not require a statement of the adoption of such a resolution, and therefore it was not necessary
to allege that fact. (Central Pacific R. R. Co. v. Feldman, 152 Cal. 308, 92 Pac. 849.)
[Headnote 3]
Appellants contend that respondent has failed to state the right by which respondent seeks
to acquire the property. The right is, of course, that given to the plaintiff county by the state
through the legislature. The Supreme Court of California, in Kern County Union High School
District v. McDonald, supra, held that, as against a general demurrer, the complaint was
sufficient by alleging in effect that the taking was sought pursuant to the provisions of the
applicable sections of the Code of Civil Procedure. We think it clear that plaintiff's complaint
alleged, in effect, that the chapter of Nevada Compiled Laws dealing with the subject of
eminent domain was the basis of the right by which respondent sought to acquire the
property. This chapter, comprising sections 9153 et seq., N.C.L.1929, as amended, specifies
the uses for which eminent domain may be exercised, the estates, rights and property subject
to condemnation, and the conditions precedent to condemnation. The remainder of the
chapter has to do almost entirely with procedural matters and the jurisdiction of the court. We
should be most reluctant to hold that the complaint was fatally defective for failure to refer to
the precise sections of the code.
Appellants contend that the respondent's complaint fails to show that the attempted taking
is for a public county purpose in accordance with law. At 4 Bancroft's Code Practice, page
3875, the writer points out:
Ordinarily pleading the conclusion that the use is public is insufficient; it should be
definitely shown that the use to which the property is to be put is a public one by pleading the
ultimate facts. Thus it is held that a complaint by a railroad corporation is sufficient if it
alleges that the use thereof is necessary to the construction, maintenance or operation of
its road, without alleging in terms that the desired use is a public one."
a complaint by a railroad corporation is sufficient if it alleges that the use thereof is necessary
to the construction, maintenance or operation of its road, without alleging in terms that the
desired use is a public one. Northern Pacific Ry. Co. v. Kreszeszewski, et al., 17 N.D. 203,
115 Northwestern 679.
Section 9153, N.C.L.1931-1941 Supp., lists the uses for which the right of eminent
domain may be exercised.
Appellants concede that under this section the right of eminent domain may be exercised
by a county through its board of county commissioners, and that public parks are included as
a proper public use. Appellants insist, however, that there is no statutory authorization for
condemnation of privately owned lands by a county for use as a public park, picnic ground,
and recreational area, which are purposes alleged in the complaint. They point out that sec.
2049.11, N.C.L.1943-1949 Supp., authorizes boards of county commissioners of counties
over 10,000 population to acquire by purchase, contracts of purchase * * * gift or in any
other manner, parcels of land for park, recreational and memorial purposes. They further
point out that this statute carefully refrains from granting any specific right of condemnation
and that under the rule of ejusdem generis the use of the phrase or in any other manner is
restricted to the more specific methods recited, namely, the acquisition by purchase, contract
of purchase or giftand which might include the methods of lease, option or other voluntary
arrangements made with the owners. Conceding the point for the sake of argument,
respondent suggests that the use of the words picnic ground and recreational area may be
considered as surplusage, leaving the proposed use of the property that of a public park.
Appellants insist that this only serves to throw respondent upon the other horn of the dilemma
in that a park under definition by the dictionaries and many courts, is a piece of ground in or
near a city set apart for the recreation of the public; an area of land devoted exclusively to
the use of the public and to be ornamented and embellished;" "an open or enclosed tract
of land for the comfort and enjoyment of the inhabitants of the city or town in which it is
located;" "a pleasure ground in or near a city, set apart for the recreation of the public."
the use of the public and to be ornamented and embellished; an open or enclosed tract of
land for the comfort and enjoyment of the inhabitants of the city or town in which it is
located; a pleasure ground in or near a city, set apart for the recreation of the public.
Appellants insist that from the very location of the area as described in the complaint, from
the map attached thereto as an exhibit and from the judicial knowledge or notice of the court,
the 120 acres condemned are situate in a wild, unimproved, uninhabited mountainous region
twenty-two miles from the city of Reno, which is the county seat of the county, at an
elevation of 7,000 feet, snow-covered for a large portion of the year and suited only for a ski
area.
Located as the area is, on the eastern slope of the Sierras, the court cannot but have
knowledge, in common with all other inhabitants of the region, of the general nature of the
120 acres involved. It is a part of the Sierras and partakes of the general beauty of those
mountains surrounding Lake TahoeLake of the Skies. However, as to its more particular
features, it is most evident that these were the subject of much testimony no part of which is
now before us. If we have judicial knowledge that the slopes at this elevation will be covered
by deep snow in winter, we likewise have judicial knowledge of their growth of pine, and fir,
and cedar and spruce, their covering of undergrowth of chaparral and manzanita, their
springs, streams, canyons, gullies, and their level areas, their sunshine as well as their shade,
and their infinitely beautiful seasons of spring, summer and fall, as well as their
snow-covered winters.
[Headnote 4]
Without any record of the evidence before us, we are compelled to eliminate as mere
conjecture the suggestion of appellants that the area is suitable only for the purposes of
skiing. The uses to which the property was to be put were matters which properly should have
been brought to the attention of the trial court and we assume that they were so brought.
that they were so brought. That court by its findings and judgment has in effect determined
that the use was to be that of a public park and recreation area. The only question before us is
whether the language public park as used in the complaint stated a public use in the light of
the location of the area sought to be condemned.
[Headnote 5]
The words public park certainly cannot be narrowly construed to refer only to municipal
parks. They must include state and county parks as well. The early conceptions of a city park
as we have quoted them do not, we feel, so lend themselves to state or county parks as to
exclude parks of all other types. The confinement of parks to congested areas, which some
courts have regarded as appropriate in the case of cities, loses all sense of propriety when
applied to state or county parks.
We feel that the case of Albright v. Sussex Co. Lake & Park Comm., 71 N.J.L. 303, 57 A.
398, 399, 69 L.R.A. 768, 108 Am.St.Rep. 749, 2 Ann.Cas. 48, cited by appellants, lends
support to our position in this regard. The court there held unconstitutional a statute
permitting resort to eminent domain to acquire public fishing rights in fresh-water lakes. The
opinion states, however, If the legislature had provided for condemnation of the lake [itself,
instead of the mere right to fish therein] so as to confer upon the public the right of resorting
thereto for all purposes to which it is adapted, the condemnation might then have been
supported on the precedents which find a public use in parks, and the right to fish would have
passed as an incident of the public title. So here, where both statute and precedent establish
the right of condemnation for public park purposes, the use of the slopes as a ski area in
winter simply passes as an incident to the public title.
Appellants place great reliance on the case of Peavy-Wilson Lumber Co. v. Brevard Co.,
159 Fla. 311, 31 So.2d 483, 487, 172 A.L.R. 168. That case held that the taking of a vast,
uninhabitated and remote area, in order to make it available to others for hunting and
fishing" was improper.
make it available to others for hunting and fishing was improper. The basis of the holding,
however, was that no proper showing of public necessity had been made. The sufficiency of
the complaint was not the issue, but the sufficiency of the showing made upon the trial.
As this appeal is on the judgment roll alone, the evidence is not before us, and every
intendment must be drawn in favor of the judgment. Robison v. Mathis, 49 Nev. 35, 45, 234
P. 690, 693.
[Headnote 6]
Testing the complaint in view of the foregoing observations, we must conclude that a right
of the exercise of eminent domain by the county for the purpose of parks is sufficiently
pleaded, and that the district court's action in overruling the demurrer was proper. Nothing
else is before us.
The judgment is affirmed with costs.
____________
68 Nev. 232, 232 (1951) Provenzano v. Shidler
BERNARD V. PROVENZANO, dba OK PLUMBING & HEATING COMPANY,
Appellant, v. HORACE SHIDLER and HAROLD SHIDLER, dba HORACE SHIDLER &
SON and Individually, and HORACE SHIDLER & SON, INC.,
a Nevada Corporation, Respondents.
No. 3606
March 15, 1951. 229 P.2d 145.
Appeal from the Eighth Judicial District Court, Clark County; Frank McNamee, Judge,
department No. 1.
Bernard V. Provenzano, doing business as the OK Plumbing & Heating Company, sued
Horace Shidler and another, doing business as Horace Shidler & Son, and individually, and
Horace Shidler & Son, Inc., on an account for the agreed price of plumbing fittings furnished
and labor performed by plaintiff at defendants' request and for balances due on certain
plumbing contracts. Defendants filed a cross-complaint for a money judgment. From a
judgment for defendants on the pleadings, and from an order denying plaintiff's motion for a
new trial, plaintiff appealed. The Supreme Court, Badt, C.J., held that defendants properly
made their demand for a bill of particulars under the statute requiring a party to deliver a copy
of an account alleged by him to the adverse party within five days after a demand therefor,
rather than the statute authorizing a court to require the filing of a bill of particulars on
motion when a pleading is too general to be readily understood, and that plaintiff, failing to
comply with such demand, subjected himself to an order precluding him from giving
evidence of the account.
Emilie N. Wanderer, of Las Vegas, for Appellant.
Harry E. Claiborne and Michael L. Hines, both of Las Vegas, for Respondents.
1. Account, Action on.
In action on account items in four of plaintiff's exhibits, each of which read simply, Balance due on
plumbing contract followed by notation of named job and amount claimed, were so general and defective
as to entitle defendants to demand bill of particulars. N.C.L.1929, sec. 8624.
Defendants moving to preclude plaintiff from offering evidence of account sued on because of his failure
to furnish bill of particulars on defendants' demand should be held to precise and specific demand as to
items or particulars required, but particular phraseology of demand is unimportant. N.C.L.1929, sec. 8624.
In action on account, defendants properly made demand for bill of particulars as to items of balances due
on plumbing contracts under statute requiring party to deliver written copy of account alleged by him to
adverse party within five days after demand therefor, rather than statute authorizing court to require bill of
particulars when pleading is too general to be readily understood, and plaintiff, failing to comply with such
demand, subjected himself to order precluding him from giving evidence of account. N.C.L.1929, secs.
8623, 8624.
Defendants' motion to preclude plaintiff from giving evidence of account sued on because of his failure to
comply with defendants' demand for bill of particulars as to items of balances due on plumbing contracts
was addressed to trial court's sound discretion. N.C.L.1929. sec. 8624.
Defendants, serving notice of motion for order precluding plaintiff from giving evidence of account sued
on because of his failure to comply with defendants' demand for bill of particulars nine months after service
of such demand on plaintiff, four and one-half months after filing of defendants' answer and
cross-complaint, and two weeks after setting of case for jury trial, were not barred by laches from seeking
such order.
6. Account, Action of.
Defendants' filing of answer and cross-complaint for money judgment against plaintiff in action on
account did not constitute waiver of defendants' demand for bill of particulars as to general items in
account for balances due on plumbing contracts; purpose of such bill being to enable defendants to prepare
for trial, not merely to prepare answer.
7. Continuance.
Denial of plaintiff's motion for continuance of action on account after entry of court's order granting
defendants' motion to preclude plaintiff from giving evidence of account because of his
failure to file bill of particulars was within trial court's sound discretion.
motion to preclude plaintiff from giving evidence of account because of his failure to file bill of particulars
was within trial court's sound discretion.
8. Judgment; New Trial.
In action on account, where defendants filed cross-complaint for specified amount and plaintiff filed
reply denying indebtedness to defendants exceeding stated smaller sum, which he was willing to pay
subject to specified offset, whereupon defendants advised court that they were willing to confess judgment
on pleadings, court did not err in entering judgment accordingly and denying plaintiff's motion for new trial
urging same points.
OPINION
The question involved in this appeal is whether the trial court committed error in
sustaining defendants' motion to preclude evidence. The order complained of was made under
the provisions of sec. 8624, N.C.L.1929, which reads as follows: It shall not be necessary for
a party to set forth in a pleading the items of an account therein alleged, but he shall deliver to
the adverse party within five days after a demand thereof, in writing, a copy of the account, or
be precluded from giving evidence thereof. The court, or a judge thereof, may order a further
account when the one delivered is too general, or is defective in any particular.
Plaintiff's complaint alleges that on the respective dates indicated upon the statements
annexed hereto * * * designated as exhibits A to Z-1 inclusive, the plaintiff, upon the dates
therein indicated performed certain labor, the nature of which is on each exhibit indicated,
at the instance and request of the defendants at the agreed price of $3,908.94, which was the
reasonable value thereof and which the defendants agreed to pay. The exhibits referred to
aggregate 26 (X being missing). Each such exhibit, excepting exhibits K, M, S, W and Z-1
contains a list of plumbing fittings and items of labor giving the exact quantities of linear feet
of specified sized pipe, nipples, ells, etc., numbers of hours of labor, etc.,
of specified sized pipe, nipples, ells, etc., numbers of hours of labor, etc., with unit prices,
extended prices for each item and total on each exhibit and with the respective dates on which
the items were furnished. Exhibit W involves an item of $2.85, upon which we shall waste no
time. The others in question are as follows: Exhibit K, Balance due on plumbing contract on
Bar W Ranch $1754; Exhibit M, Balance due on plumbing contract on Old West Motel
$100; Exhibit S, Balance due on plumbing contract Holst Job $225; Exhibit Z-1, Balance
due on plumbing contract N. Bennett Job $1200.
On March 16, 1948 defendants served on plaintiff a written demand that a bill of
particulars be furnished within five days, stating in detail the facts, dates, time, amounts,
occasions and the nature of said contracts on which plaintiff relied.
1
On June 29, 1948
defendants served a second and similar written demand for a bill of particulars. The bill of
particulars was not furnished, and on July 30, 1948 defendants filed an answer and cross
complaint. On September 24, 1948, at plaintiff's request, trial date was set before a jury for
December 15, 1948. On December 7, 1948 defendants served plaintiff with a notice that on
December 13 defendants would move for an order precluding plaintiff from giving in
evidence any matter pertaining to the accounts, allegations and things mentioned in the
plaintiff's complaint herein, at the trial of this cause, on the ground that plaintiff has failed to
deliver to the defendant a copy of said account and bill of particulars * * *. No reporter's
transcript of the proceedings of December 13 is in the record, but defendants quote from an
affidavit that was before the trial court reciting that the trial judge at that time stated: I will
continue this matter until the hour of 10:00 A.M., December 15, 1948. I will rule at that time;
in the meantime we will see what the attorney for the plaintiff {appellant) does with
reference to this bill of particulars."
____________________

1
Plaintiff raises a question as to the actual service and receipt of this demand, but we take the record as we
find it and as the trial court had authority to regard it.
the attorney for the plaintiff (appellant) does with reference to this bill of particulars.
Plaintiff does not deny that such statement was made. The clerk's minutes of that date show
only the order continuing the matter to December 15. It receives support however from the
clerk's minutes of December 15 which recite the submission to the court of defendants'
motion to preclude evidence, and then state: * * * and counsel for plaintiff having failed to
provide the bill of particulars within the time allowed, or at all, and no bill of particulars or
accounting having been furnished defendant, by the court Ordered that the motion be and the
same hereby is granted as to exhibits K-M-S-W and Z-1 attached to said complaint. The fact
that the court made the remarks quoted is also supported by the oral argument of plaintiff's
counsel on the appeal to this court in which it was stated: On March 15th Judge McNamee
asked, Did you produce a bill of particulars?'
[Headnote 1]
Despite these circumstances, plaintiff, on this appeal, contends that the order was
erroneous because (1) defendants knew the facts relied upon by plaintiff; (2), (3) because by
filing an answer and cross complaint defendants had waived their demand for a bill of
particulars; (4), (5) because defendants were guilty of laches in serving their notice of motion
to preclude; and (6) that the order was in the nature of the imposition of a penalty and
contrary to the ends of justice. There is nothing in the record to support the factual matters of
the foregoing assignments. However, plaintiff contends that the defendants' remedy was
rather under the provisions of sec. 8623, N.C.L., which reads as follows: Sham and
irrelevant answers and replies and so much of any pleading as may be irrelevant, redundant or
immaterial, may be stricken out on motion, and upon such terms as the court, in its discretion,
may impose. When any pleading is too general in its terms to be readily understood, the court
may, on motion, require the same to be made more specific and certain, or may require a
bill of particulars to be filed therewith."
same to be made more specific and certain, or may require a bill of particulars to be filed
therewith.
In view of the procedure authorized under sec. 8624 above quoted, we see no merit in this
contention. It is earnestly contended, however, that even under the provisions of sec. 8624,
the plaintiff did as a matter of fact submit his account by each of the said exhibits and that
therefore the only remedy available to defendants was to seek an order for a further account if
the ones contained in the exhibits were too general or were defective. We have noted,
however, that in each instance the exhibit, made a part of the complaint by reference, was
simply Balance due on plumbing contracteach of such questioned items being followed
by notation Bar W Ranch etc. That each of said four items entitled the defendants to
demand a bill of particulars is, we think, clear. Plaintiff persistently refused not only to
comply with defendants' demand but to take advantage of the opportunity given by the trial
court even up to the moment of trial, and plaintiff's briefs filed in this court insist upon his
right to have his day in court, and to prove the allegations of his complaint without
furnishing any bill of particulars in response to defendants' demand.
Appellant contends that, inasmuch as the term bill of particulars is used only in sec.
8623 and is not found in sec. 8624, it is only under the former section that plaintiff's demand
for a bill of particulars can operate, and that in such case plaintiff is required to furnish a bill
of particulars only by order of the court; that no such order was made in the instant case; that,
under a remedy so drastic as being precluded from giving evidence, defendants must have
clearly brought themselves under the provisions of 8624; that they should have demanded,
not a bill of particulars, but a copy of the account; that the demand was too general and was
not directed to items K, M, S and Z-1, to which the order of preclusion applied; that in any
event the plaintiff had furnished an account, attached to his complaint, and that if it was too
general, a further account {the failure to furnish which could result in an order precluding
evidence) could be compelled only by an order of the court or judge and not by a demand.
that if it was too general, a further account (the failure to furnish which could result in an
order precluding evidence) could be compelled only by an order of the court or judge and not
by a demand.
[Headnote 2]
The cumulation of these points is not without considerable force as applied generally. A
defendant who looks to such a drastic remedy as precluding the plaintiff from offering
evidence should undoubtedly be held to a precise and specific demand as to the items or
particulars required by him. Yet the particular phraseology to be used in his demand is not
important. It is not prescribed by the statute. Elmore v. Tingley, 78 Cal.App. 460, 248 P. 706.
Under sec. 454, C.C.P.Cal., virtually identical with our own, and in which the term bill of
particulars is not mentioned, the California courts have repeatedly taken it for granted that a
demand for a bill of particulars was equivalent to a demand for a copy of an account. It was
so considered in Pike v. Zadig, 171 Cal. 273, 152 P. 923; in Gaddis v. Grant, 39 Cal.App.
437, 179 P. 410; in Cromer v. Strieby, 54 Cal.App.2d 405, 128 P.2d 916, and other cases.
Indicating the lack of importance accorded to the precise wording used in the demand the
California courts have referred to the right to demand a statement of the particulars,
2
the
items of an account,
3
more particular information,
4
the items of the claim,
5
more
particular information as to the items,
6
further particulars,
7
etc. Under a somewhat
similar statute, the supreme court of Washington refers to the furnishing of a bill of
particulars. Sanborn v. Dentler, 97 Wash. 149, 166 P. 62, 63, 6 A.L.R. 749.
____________________

2
Salinas Valley Lumber Co. v. Magne-Silica Co., 159 Cal. 182, 112 P. 1089, 1090.

3
Gaddis v. Grant, 39 Cal.App. 437, 179 P. 410, 411.

4
Pleasant v. Samuels, 114 Cal. 34, 45 P. 998, 999.

5
McFarland v. Holcomb, 123 Cal. 84, 55 P. 761, 762.

6
Farwell v. Murray, 104 Cal. 464, 38 P. 199, 200.

7
Knight v. Russ, 77 Cal. 410, 19 P. 698.
[Headnote 3]
Viewing the defendants' two demands for a bill of particulars realistically, it is obvious
that the same referred directly to exhibits K, M, S and Z-1 attached to the complaint. In all the
other exhibits items were particularized in the greatest detail. Only in these four exhibits,
each one in a material sum, do we find an entire lack of itemization. Only in these four do we
find one single item set out as Balance due. Only in these four do we find reference to a
contract, to which attention is specifically directed in the demand itself. There was no
reasonable chance that plaintiff could have misunderstood the fact that the demand was
directed to these items. It is obvious also that these four items must have been the subject of
the discussion when the motion to preclude came on for hearing on December 13, at which
time the court continued the matter to December 15, the day set for the trial. On the last
mentioned date, when it developed in response to the court's inquiry that the bill of particulars
had not been furnished, the court made its order precluding testimony as to exhibits K, M, S
and Z-1. It is under these circumstances that we hold that the defendants properly made their
demand under the provisions of N.C.L. sec. 8624, and that plaintiff subjected himself, on
failure to comply, to the order complained of.
[Headnote 4]
The motion in question was addressed to the sound discretion of the trial court, and we are
unable to say that the granting of the motion was not in the exercise of a sound discretion,
McManus v. Larson, 122 Cal.App. 716, 10 P.2d 523, which case is very much in point as to
the law and facts under California code sections from which ours were taken.
[Headnotes 5, 6]
The contention that defendants were barred by their laches from seeking an order to
preclude evidence is, in our opinion, not well taken. Nor are we impressed by the
assignment that the filing by the defendants of their answer and cross complaint
constituted a waiver of their demand for a bill of particulars.
by the assignment that the filing by the defendants of their answer and cross complaint
constituted a waiver of their demand for a bill of particulars. Such bill of particulars is not
limited to the purpose of enabling defendants to prepare their answer. It is for the additional
purpose of enabling them to prepare for trial.
[Headnotes 7, 8]
After the entry of the court's order granting defendants' motion to preclude, the record
indicates that plaintiff then moved for a continuance, which was denied by the court. Plaintiff
assigns this as error, but the granting or denial of such motion was likewise within the court's
sound discretion. It also appears that defendants' cross complaint had sought a judgment
against plaintiff for $1,044.99, and that in reply plaintiff had denied any indebtedness to
defendants exceeding the sum of $750, which he was willing to pay subject to an offset of
$250, thus entitling defendants to a credit in the sum of $500 against plaintiff's original
demand. Defendants advised the court that they were willing to confess judgment on the
pleadings and the court entered judgment accordingly, and thereafter denied plaintiff's motion
for new trial, upon which the same points were urged. We find no error in any of the
proceedings. The judgment and order denying new trial are hereby affirmed, with costs.
Horsey, formerly Chief Justice, did not participate, his term of office having heretofore
expired.
Merrill, J., having become a member of the court after said matter was argued and
submitted, did not participate.
____________
68 Nev. 241, 241 (1951) State v. Womack
THE STATE OF NEVADA, Appellant, v. CLAUDE L.
WOMACK, Respondent.
No. 3633
March 19, 1951. 229 P.2d 149.
Appeal from the Fourth Judicial District Court, Elko County; Merwyn H. Brown,
Presiding Judge.
Claude L. Womack was charged by indictment with gross misdemeanor of misconduct in
office. From a judgment sustaining a demurrer of the defendant to the indictment on ground
of misjoinder of unrelated offenses, the state appealed. The Supreme Court, Merrill, J., held
that indictment was demurrable on ground that it violated statute providing that indictment or
information may charge different offenses or different statements of same offenses under
separate counts, but that they must all relate to same act, transaction, or event, and that
charges of offenses occurring at different and distinct times and places must not be joined.
Affirmed.
W. T. Mathews, Attorney General, George P. Annand, Robert L. McDonald, Thomas A.
Foley, Deputy Attorneys General, of Carson City, and Kenneth L. Mann, and A. L. Puccinelli,
of Elko, for Appellant.
George F. Wright, of Elko, for Respondent.
Statute providing that indictment or information may charge different offenses or different statements of
the same offenses under separate counts, but that they must all relate to the same act, transaction, or event,
and that charges of offenses occurring at different and distinct times and places must not be joined, clearly
imports that more than one offense may not be stated in a single indictment unless all offenses relate to
same acts, transactions, or events. N.C.L.1929, sec. 10852.
Indictment charging constable with gross misdemeanor of misconduct in office because he allegedly
arrested certain woman, placed her in jail, and then released her on her promise to pay him $25, without
ever taking her before any magistrate, and alleging that she thereafter paid him the $25,
and alleging that constable did likewise with 13 other persons, was demurrable
because in violation of statute providing that indictment or information may charge
different offenses or different statements of same offenses under separate counts but
that they must all relate to the same act, transaction, or event, and that charges of
offenses occurring at different and distinct times and places must not be joined.
magistrate, and alleging that she thereafter paid him the $25, and alleging that constable did likewise with
13 other persons, was demurrable because in violation of statute providing that indictment or information
may charge different offenses or different statements of same offenses under separate counts but that they
must all relate to the same act, transaction, or event, and that charges of offenses occurring at different and
distinct times and places must not be joined. N.C.L.1929 secs. 10015, 10852.
OPINION
This is an appeal by the state from an order of the trial court sustaining a demurrer to an
indictment found against respondent. The demurrer was sustained upon the ground of
misjoinder of unrelated offenses and the sole question presented by the appeal is whether the
indictment charges more than one offense.
Respondent is constable of the township of Mountain City, Elko County, having served as
such since April 1, 1944. On June 29, 1950, an indictment was found against him by the Elko
County grand jury charging him with the gross misdemeanor of misconduct in office. The
indictment charges: * * * that the said Claude L. Womack, on or about the month of August,
1949, did place under arrest in the said Township of Mountain City, County of Elko, State of
Nevada, one Ida Whiterock, and did place the said Ida Whiterock in the jail in said Township;
that thereafter, the said defendant did ask and receive from the said Ida Whiterock the sum of
Twenty-five Dollars, lawful money of the United States of America, upon the express
promise and consideration of the said defendant that he would release the said Ida Whiterock
from jail, and that he would not take the said person before any magistrate in any County in
the State of Nevada; that upon the promise to pay the said sum of Twenty-five Dollars, the
said Ida Whiterock was released from the said jail, and was not taken before any magistrate
whatsoever, and that the said Ida Whiterock thereafter paid the sum of Twenty-five Dollars
to the defendant at Owyhee, Elko County, Nevada, thereby obstructing the due execution
of justice, and in violation of the trust reposed in him, the said defendant."
said Ida Whiterock thereafter paid the sum of Twenty-five Dollars to the defendant at
Owyhee, Elko County, Nevada, thereby obstructing the due execution of justice, and in
violation of the trust reposed in him, the said defendant.
Then follow further charges, substantially similar to the one quoted, asserting that
respondent had on other occasions acted in like manner with other persons. In all, 14 separate
transactions of this character are asserted, each statement concluding in the same manner:
thereby obstructing the due execution of justice, and in violation of the trust reposed in him,
the said defendant.
A demurrer to this indictment upon five grounds was filed by respondent. Subsequently
the trial court entered its order sustaining the demurrer upon two grounds, the second (with
which this opinion is concerned) being: That more than one offense is charged and said
offenses charged do not relate to the same account, transaction or event but are charges of
offenses occurring at different distinct times and places.
The order further provides that since the objection upon which the demurrer was allowed
might be avoided in a new indictment, the case be resubmitted to the grand jury.
On August 2, 1950, the state filed notice of appeal from the order.
Section 10015, N.C.L.1929, defines the crime of misconduct in office. Its applicable
provisions are: Every public officer who shall
1. Ask or receive, directly or indirectly, any compensation, gratuity or reward, or promise
thereof, for omitting or deferring the performance of any official duty * * * shall be guilty of
a gross misdemeanor, * * *.
The indictment under consideration thus has charged respondent with the commission of
14 prohibited acts.
Section 10852, N.C.L.1929, provides: The indictment or information may charge
different offenses or different statements of the same offenses, under separate counts, but
they must all relate to the same act, transaction, or event, and charges of offenses
occurring at different and distinct times and places must not be joined.
different statements of the same offenses, under separate counts, but they must all relate to
the same act, transaction, or event, and charges of offenses occurring at different and distinct
times and places must not be joined. * * *
[Headnote 1]
Court decisions are far from uniform in their holdings with respect to duplicity and
misjoinder of offenses. This, however, is largely traceable to lack of statutory uniformity. The
clear import of our statute is that more than one offense may not be stated in a single
indictment unless all offenses relate to the same act, transaction or event. In this respect we
are in accord with a substantial body of the law. Hummel v. People, 98 Colo. 98, 52 P.2d
669; State v. Reichert, 226 Ind. 171, 78 N.E.2d 785; People v. Jackman, 96 Mich. 269, 55
N.W. 809; State v. Brown, 317 Mo. 361, 296 S.W. 125; Shuford v. State, 4 0kl.Cr. 513, 113
P. 211; See Commonwealth v. Mentzer, 162 Pa. 646, 29 A. 720.
In support of the indictment before us appellant contends that all acts charged against
respondent collectively constitute but a single offense, that of misconduct in office.
Appellant's position in this regard is supported by State v. Bolitho, 103 N.J.L. 246, 136 A.
164, 172, affirmed in 104 N.J.L. 446, 146 A. 927. There it is stated:
There seems to be no good reason, where the indictment is based upon the accusation of
official misconduct in office, why a careful pleader should not allege therein divers acts of
official misconduct, even though such acts were committed on different days, and differ in
their nature and constitute distinct offenses against the law, so long as they are cognate to the
charge of official misconduct.
Malfeasance in office, generally termed official misconduct, is a common-law offense,
and possesses the same characteristics in pleading that obtain in indictments founded on
common-law offenses, arising out of or composed of the commission of a series of immoral
or unlawful acts.
ful acts. This is illustrated by the form of indictments for keeping or maintaining a disorderly
house, and for other kinds of nuisances. It is true that the keeping of a disorderly house or
creating and maintaining any other kind of a public nuisance is a continuous offense, but so
also may the offense of malfeasance in office, as was in this case, be made up of various acts
of official misconduct, * * *.
The New Jersey law (whether of statutory or common law source) relative to official
misconduct and to joinder of offenses is not set forth in the opinion.
In our view such a holding cannot be reconciled with the statutes of this state and cannot
here be followed. We are are unable to construe our sec. 10015 as contemplating a single,
indivisible public duty, and a single, continuing offense of misconduct in office. The
quoted portion of this section, in itself, impliedly recognizes that official duties are multiple
and that a crime may be committed in relation to any official duty.
That society has imposed a constant and continuing duty of respect for the person and
property of others provides no escape from the rule against joinder so far as distinct crimes
against the person are concerned. Distinct acts of robbery, as an example, may not, simply by
virtue of such a continuing duty, be regarded collectively as constituting a single offense. So
here, the fact that the office of constable is a continuing one and carries with it a
correspondingly constant official duty, does not suffice. Respondent's dereliction was not
constant and uninterrupted but occurred by virtue of separate and distinct acts of misconduct.
In contrast with the maintaining of a disorderly house or similar cases of nuisance, each act
did not simply prolong a continuing course of misconduct nor merge itself therein in such a
manner as to lose its identity as a distinct and independent offense. Sec. 10015 does not
purport to create a special criminal status of corruption, continuing in existence until
atonement. This is not a proceeding for removal from office, as were the Burleigh and
Shepard cases, infra, but one to determine whether the accused is guilty or innocent of a
specific crime.
cases, infra, but one to determine whether the accused is guilty or innocent of a specific
crime. The crime is the overt criminal act itself and not the holding of office by a corrupt
person.
The holding of this court in Kelly v. State, 59 Nev. 190, 89 P.2d 1, 3, is illustrative of our
views in this regard. In that case the defendant was convicted of obtaining money under false
pretenses. The facts showed that he had falsely represented ownership of a patent on a radio
attachment, had offered one Zunino a 2 percent interest in the patent and on representation
that funds were needed to purchase equipment therefor had secured the sum of $75 from
Zunino by a series of small payments made over a period of five weeks. Defendant contended
that the payments constituted at most a series of misdemeanors rather than a single felony.
This court held otherwise, stating: This is true where each of the crimes is separate and
distinct, but an exception obtains where the receipt of the money is obtained pursuant to one
design, one purpose, one impulse, or under such circumstances as to constitute a single act
without regard to time. * * * The acts may be looked upon as one transaction and constituent
and component parts of the same cheat and fraud. * * * The same false scheme actuated
Zunino to part with his money each time. * * *
Reference was there made to the case of People v. Hatch, 13 Cal.App. 521, 109 P. 1097,
where the defendant as agent had, without authority, on several occasions loaned money of
his principal to himself, the court there holding each loan to be a distinct embezzlement. This
court in the Kelly case distinguished the Hatch case in that each loan was there a separate
transaction.
In the case at bar, had the $25 paid by Ida Whiterock been paid in installments over a
period of time, the Kelly case might well have applied to that particular transaction. As it is,
the distinct and unrelated character of each separate transaction set forth in the indictment
distinguishes the Kelly case as clearly as the Hatch case was there distinguished.
distinguishes the Kelly case as clearly as the Hatch case was there distinguished.
The Hatch case was subsequently followed in People v. Stanford, 16 Cal.2d 247, 105 P.2d
969, 971, where it was stated: In the present case the evidence showed that the thefts
referred to in the first three counts of the indictment were separate and distinct transactions,
which occurred on different dates, and involved the taking of different sums of money. Such
separate transactions constituted separate offenses.
The California court likewise has implied (contrary to the Bolitho holding) that distinct
acts of misconduct constitute distinct offenses and cannot, under a statute such as ours, be set
forth in a single indictment. In re Burleigh, 145 Cal. 35, 78 P. 242, 243, involved a charge of
misconduct of a supervisor. Under a statute providing special procedure for removal from
office, a grand jury filed a written accusation of misconduct to which the accused demurred
on the ground that more than one offense was charged. The demurrer was sustained upon that
ground by the trial court. On appeal it was held that the accusation was not an indictment and
not subject to the requirement that a single offense be charged. The opinion states: The
appellants concede that, if the accusation is to be treated as an indictment, then the demurrer
was properly sustained. * * * In an indictment, only one public offense can be charged; * *
*.
This opinion was subsequently followed in the case of In re Shepard, 161 Cal. 171, 118 P.
513.
[Headnote 2]
It is therefore our view that the acts set forth in the indictment before us constitute separate
offenses and do not collectively constitute a single offense.
It may be noted that joinder of separate offenses such as those here under consideration is
permitted by statute in many states, including the State of California. In 1915, by statutory
amendment, joinder was there permitted of separate offenses not a part of the same act,
transaction or event, provided they be of the same class of crimes or offenses.
transaction or event, provided they be of the same class of crimes or offenses. Illustrative of
the potential scope of an indictment under such statutory provisions is the case of People v.
Duane, 21 Cal.2d 71, 130 P.2d 123. There joinder of the following was approved: kidnaping
and robbery, March 16, 1940; assault with force and violence, July 7, 1940; kidnaping and
robbery, July 10, 1940; kidnaping and robbery, August 6, 1940.
Such legislation has never been followed in this state. Indeed, it may be said to have been
actually rejected. Prior to its 1915 amendment the California statute was identical with our
present statute. Under that act, in People v. Piner, 11 Cal.App. 542, 105 P. 780, 781, it was
stated: It will thus be observed that the Legislature, while recognizing the fact that no danger
of violating any of the substantial rights of an accused person could result from charging in an
indictment or information two different offenses which have arisen from exactly the same
particular circumstancesthat is, from the same act, transaction, or eventwas careful to
protect and safeguard such person against the harm which would inevitably follow the
charging of two different offenses occurring at different times and places, and which, in the
very nature of things, could have no possible bearing upon or relation to each other
whatever.
See, also: In re Burleigh, supra; In re Shepard, supra.
At the time of the 1915 California amendment our statute in its entirety read as follows:
The indictment shall charge but one offense, but it may set forth that offense in different
forms under different counts. Our statute was not amended to its present form until 1919,
four years after California had added the new ground for joinder. At that time, in so acting,
our legislature apparently rejected the new California statute and, word for word, enacted the
old in preference.
The Bolitho case, while proceeding upon the theory of a single offense, nevertheless
expressly recognizes that the acts constituting that offense themselves constitute "distinct
offenses against the law," all, however, "cognate to the charge of official misconduct."
the acts constituting that offense themselves constitute distinct offenses against the law, all,
however, cognate to the charge of official misconduct. [103 N.J.L. 246, 136 A. 172.] For us
to follow such a holding would in effect be to permit joinder of distinct offenses of the same
class notwithstanding legislative rejection of such ground for joinder.
It may be argued that the language of the Piner case, as we have quoted it, does not
preclude joinder in the case at bar, since respondent's acts of misconduct could have possible
bearing upon or relation to each other. While that language may be said to justify statutory
authority to join separate offenses of the same class, it cannot be said to permit us to construe
such offenses as collectively constituting a single offense.
In Wear v. State, 30 Okla.Cr. 118, 235 P. 271, 272, it is stated: The indictment or
information must charge but one offense, and the term same offense' means, not the same
class or kind, eo nomine, but means an offense committed by the same act, transaction, or
omission.
The offenses in the indictment before us do not relate to the same act, transaction or event.
The charges remain charges of offenses occurring at different and distinct times and places
and, under sec. 10852, must not be joined.
It being our view that the trial court properly sustained the demurrer to the indictment
upon the ground discussed, it is not necessary to deal with the first ground of demurrer or
with the action of the court in sustaining the demurrer upon that ground. The order of the trial
court is sustained. In accordance with that order it is directed that the matter be submitted to
the same or another grand jury.
____________
68 Nev. 250, 250 (1951) Walker v. Burkham
DAVID C. WALKER, by and Through His Guardian Ad Litem, CONRAD H. WALKER,
Appellant, v. BERT BURKHAM, Respondent.
No. 3525
March 21, 1951. 229 P.2d 158.
Appeal from the Second Judicial District Court, Washoe County, department No. 1;
Merwyn H. Brown, Presiding Judge.
David C. Walker, by and through his guardian ad litem, Conrad H. Walker, brought action
against Bert Burkham to recover damages for alleged assault and assault and battery. From a
judgment for the defendant and an order denying plaintiff's motion for new trial, the plaintiff
appealed. The Supreme Court, 67 Nev. 541, 222 P.2d 205, reversed the judgment and order.
Petition for rehearing was filed and appeal from clerk's ruling on costs, and appellant filed
motion for dismissal of same. The Supreme Court, Merrill, J., held that where respondent had
died and no personal representative had been appointed who could be substituted for
respondent in the action, the time for filing rehearing petition and appeal from clerk's ruling
on costs would be extended with expectation that some asset might be discovered which
would require administration and substitution of parties could be made.
Decree in accordance with opinion.
Royal A. Stewart, of Reno, for Appellant.
Kearney & Adams, of Reno, for Respondent.
1. Abatement and Revival.
Under abatement statute and court rules which provide that an action does not abate by virtue of death if
the cause of action survives or continues, and that substitution of the representative of the deceased party
shall be made, where no personal representative of respondent had been appointed and no application for
such appointment had been made, the court had no jurisdiction to determine matters pending before it.
N.C.L.1929, sec. 8561; rules of supreme court, rule 9.
At common law, in an action at law before the trial court, death of a party resulted in absolute abatement
without right of substitution of decedent's representative, and if the cause of action survived death, the only
course was commencement of a new action by the representative.
The common-law rule relative to abatement upon appeal or review regarded substitution for the decedent
or other party as an essential.
Where respondent died after submission of case on appeal but before rendition of appellate court
decision, but no personal representative had been appointed, petition for rehearing and appeal from clerk's
costs ruling could not be considered in view of fact that there was no personal representative available for
substitution. N.C.L.1929, sec. 8561; rules of supreme court, rule 9.
Where respondent died after submission of case on appeal but before rendition of supreme court's
decision, and no property which would require appointment of personal representative had been
discovered, the time for filing rehearing petition and appeal from clerk's ruling on costs would be extended
with expectation that some asset of respondent would be discovered which would require administration
and substitution of parties might then be made.
Where respondent died after submission of case on appeal but before rendition of appellate court
decision, and subsequently appellate court rendered decision against respondent, the date of appellate
court's decision would be set aside and reentered as of date of submission of said cause.
OPINION
On August 21, 1950, the opinion of this court upon appeal in this matter was entered in
favor of appellant, Walker v. Burkham, 67 Nev. 541, 222 P.2d 205, the matter having been
submitted to this court for decision on March 14, 1950. On October 4, 1950, respondent filed
a statement of appeal from the clerk's ruling on costs and on October 5, 1950, filed a petition
for rehearing.
At this stage in these proceedings, the death of respondent has been suggested to this court
by appellant, and the matters with which we are here concerned are appellant's motions for
orders of this court dismissing respondent's appeal on costs and petition for rehearing unless
within a time to be set by the court an administrator is appointed for the estate of the
respondent and said administrator substituted as the respondent in the above-entitled action.
[Headnote 1]
From the record before us, it appears that respondent died on May 19, 1950, after the
submission of this matter upon appeal but before rendition of the opinion of this court. (The
right of this court to proceed to determination of the appeal itself is not questioned under
these circumstances.) No personal representative of respondent has been appointed and no
application for such appointment has been made.
Section 8561, N.C.L.1929 provides: An action shall not abate by the death or other
disability, of a party, or by the transfer of any interest therein, if the cause of action survive or
continue. In case of the death or disability of a party, the court, on motion, may allow the
action to be continued by or against his representative or successor in interest. * * * After
verdict shall have been rendered in any action for a wrong, such action shall not abate by the
death of any party, but the case shall proceed thereafter in the same manner as in cases where
the cause of action now survives by law.
Rule IX of the rules of this court provides: Upon the death or other disability of a party
pending an appeal, his representative shall be substituted in the suit by suggestion in writing
to the court on the part of such representative, or any party on the record. Upon the entry of
such suggestion, an order of substitution shall be made and the cause shall proceed as in other
cases.
Under our statute and rule it would appear that the action does not abate by virtue of
death but that substitution of the representative of the deceased party shall be made.
action does not abate by virtue of death but that substitution of the representative of the
deceased party shall be made. We are here faced with the fact that there is now no
representative available for such substitution. Counsel for the late respondent contend that
jurisdiction of this court is not lost; that we may continue to determine all pending matters
without any substitution and that this course, under the circumstances, is the proper one. We
find ourselves unable to concur in this view.
[Headnote 2]
At common law, in an action at law before the trial court, death of a party resulted in
absolute abatement without right of substitution of the decedent's representative. If the cause
of action survived death, the only course was commencement of a new action by the
representative.
The supreme court of Mississippi, in the case of Gerault v. Anderson, Walk., 1 Miss., 30,
12 Am.Dec. 521, stated: To say that the court had jurisdiction over the dead would
contradict every principle of law and rule of proceeding. * * * Why is a suit said to abate on
the death of either party? The answer is that on the death of the party his interest ceases, and
the jurisdiction of the court ceases also. In courts of justice there must be actor, reus and
judex, before the court can act effectually to bind parties.
Under statutes such as ours the common-law rule is modified to permit substitution in the
original suit. The status of an action under such circumstances is explained in 1 Am.Jur. 105,
Abatement and Revival, sec. 159, where it is stated: The statement * * * (that the action
does not abate by death) must not be taken to mean that upon such event the action proceeds
without any change. Upon the death of a party or the happening of any other event which
would cause it to abate at common law, the action is suspended and the suspension has the
same temporary effect on the rights of the parties as though the suit actually abated. In other
words, the cause cannot proceed until someone is substituted for the decedent or other
party."
other words, the cause cannot proceed until someone is substituted for the decedent or other
party.
[Headnote 3]
Upon appeal or review the common-law rule relative to abatement was less inflexible but
substitution was still regarded as essential.
In Green v. Watkins, 6 Wheat. 260, 5 L.Ed. 256, it was stated by Mr. Justice Story: It is
clear, therefore, that at common law, in these cases, a writ of error does not necessarily abate;
and that the personal representatives may not only be admitted voluntarily to become parties,
but a scire facias may issue to require them to become parties.
In re Young's Estate, 59 Ore. 348, 116 P. 95, 1060, Ann.Cas. 1913B, 1310, dealt with
death pending hearing upon appeal. Mrs. Phillips had successfully contested a will in the
county court; the proponents of the will had appealed to the circuit court. Pending hearing
upon that appeal, Mrs. Phillips died. No substitution was made and the cause was heard and
determined as though she were alive. Decree of the county court was reversed and costs
assessed against Mrs. Phillips. On appeal to the supreme court the fact of death was disclosed
for the first time. After a careful consideration of authorities, it was held that the decree of the
circuit court against Mrs. Phillips was absolutely void. While, in the case at bar, we are not
concerned with the distinction between void and voidable action, we nevertheless feel the
language of the court in the Young case to be pertinent to our particular problem and
compelling in its reasoning. The court stated:
This court has not yet decided whether a judgment, given against a person who dies
before the hearing and submission of a case, is void, or whether it is merely voidable, and the
authorities are hopelessly divided upon that subject. But upon every principle of reason and
justice such a judgment ought to be held an absolute nullity. Mrs. Phillips at her death had a
decree in her favor, conferring upon her valuable property and pecuniary rights.
favor, conferring upon her valuable property and pecuniary rights. Her death revoked the
authority of counsel to appear and represent her or her estate in the circuit court. The decree
of the circuit court attempted to take these rights away and further to give a personal
judgment against her for costs. While many courts, and perhaps a majority, have held that
such a judgment is voidable, and not void, their reasoning does not convince us that a
judgment against a person not in existence is anything other than wholly void, or that it can
possibly bind any one. It may well be granted that, where a cause has been argued and
submitted and the decision is in the breast of the judge, and nothing remains but the
ministerial act of causing it to be recorded, this function may be performed nunc pro tunc
after the death of a party; or where default has been taken, and before entry of judgment the
death of a party occurs, the entry of judgment, which is a mere ministerial act of the clerk,
may be proper and regular; but that, where death occurs before a hearing upon the merits, the
court may pass judgment upon the rights of a decedent, and deprive him or his unrepresented
estate of valuable property, is a proposition so illogical and unjust that we cannot assent to it,
even though decisions parroted down from one court to another, with hardly a pretense of
reasoning to support them, may preponderate in number over those holding the contrary
doctrine.
At common law a suit was abated by the death of a party. 2 Mod. 308; 2 Saund. 72 M.
This rule is relaxed by section 38, L.O.L., which provides that the action shall not abate by
the death of a party, if the cause of action continue or survive, and that the court, at any time
within one year thereafter, on motion, may allow the action to be continued against his
personal representatives or successors in interest. The effect of this section is to suspend the
suit until such substitution is made. McBride v. N[orthern] P.R.R. Co., 19 Or. 64, 23 P. 814.
It is conceived that such suspension has the same temporary effect on the rights of the
parties as though the suit were actually abated; that neither party can move in the case
until a substitution is ordered; and that during the interval between the death of the party
and substitution of his legal representatives the disabilities of either party remain the
same as at common law.
same temporary effect on the rights of the parties as though the suit were actually abated; that
neither party can move in the case until a substitution is ordered; and that during the interval
between the death of the party and substitution of his legal representatives the disabilities of
either party remain the same as at common law.
Commenting upon an act similar in terms to that in force in this state, the Supreme Court
of Illinois say: In the nature of things, the deceased defendant cannot plead in abatement, or
otherwise interpose the fact of his own death, and his legal representatives, until brought into
court by the plaintiff, as contemplated by the statute, are not supposed to be present, or to
know anything about the pendency of the suit; and to hold a judgment obtained under such
circumstances binding upon them would seem, not only inconsistent with well-settled
principles, but would probably lead to the perpetration of great frauds. We are, therefore,
clearly of opinion that such judgments are, as already stated, absolutely void.' Life
Association of America v. Fassett, 102 Ill. 315, 328. * * *
[Headnote 4]
In the case at bar, we find ourselves with no respondent for or against whom we can decide
any matter: no respondent whom we can effectively bind by our action. Any action we might
now take would, for all practical purposes, be a nullity so far as concerns the respondent's
interests. To indulge in the empty judicial gestures of deliberation and determination under
such circumstances would seem the height of futility. See: Morrow v. Morrow, 62 Nev. 492,
156 P.2d 827. At best this matter should be regarded as in a state of suspension or temporary
abatement until such time as substitution of parties provides us with the means for making
effective such action as we may deem it proper to take.
However, the unusual circumstances confronting us appear to have precluded the existence
even of that state of suspension.
of suspension. There would indeed appear to be nothing at all before us upon which action
remains to be taken. At the time the appeal on costs and petition for rehearing were filed
herein there was no respondent. Bert Burkham simply did not exist; no plea for review can be
regarded by us as having been made by him. The situation is precisely as though no appeal on
costs or petition for rehearing had been filed herein whatsoever.
[Headnote 5]
In supporting papers, counsel for the late respondent assert that respondent has left no
estate. Under the authority of In re Dickerson's Estate, 51 Nev. 69, 268 P. 769, 59 A.L.R. 84,
they contend that unless an estate can be discovered no representative can ever be appointed
and, accordingly, no substitution can ever be had. These unhappy circumstances do not,
however, lend substance to the ghostly and fugitive documents before us. In our view lack of
property cannot be said to cure lack of party. If counsel are without remedy it is solely by
virtue of the fact they are without the person of anyone whom that remedy could, in the
slightest degree, concern.
By rule of this court respondent had 15 days after rendition of our decision within which to
petition for rehearing. That time having expired without any petition having been filed by
respondent, (as we conceive the situation to be), we would ordinarily deem it proper to have
the remittitur issue forthwith. In expectation, however, that some asset may yet be discovered
upon which administration may justifiably be founded and substitution of parties made
herein, and in the light of appellant's motions in this regard, we shall take advantage of the
right given us by our rules to extend time for the filing of a proper petition for rehearing.
[Headnote 6]
It is, therefore, hereby ordered: (1) that the time for filing petition for rehearing herein and
for filing appeal from the decision of the clerk with respect to costs on appeal, is hereby
extended to July 1, 1951, and that the remittitur herein be withheld until further order of
this court; {2) that the opinion and decision of this court upon appeal herein, entered
August 21, 1950, be set aside and that the same be reentered as of the date of submission
of said cause, March 14, 1950.
appeal, is hereby extended to July 1, 1951, and that the remittitur herein be withheld until
further order of this court; (2) that the opinion and decision of this court upon appeal herein,
entered August 21, 1950, be set aside and that the same be reentered as of the date of
submission of said cause, March 14, 1950. City of Valparaiso v. Spaeth, 166 Ind. 14, 76 N.E.
514.
____________
68 Nev. 258, 258 (1951) Belanger v. Leonard
DAVID J. BELANGER, H. M. CHILDERS and VINCENT VRENON, Individually and
Doing Business Under the Name and Style of MODERN DAIRY, Appellants, v. STELLA B.
LEONARD, Formerly Known as STELLA B. LEONARD BELANGER, Respondent.
No. 3603
March 26, 1951. 229 P.2d 153.
Appeal from First Judicial District Court, Churchill County; Merwyn H. Brown, Presiding
Judge.
Action was originally commenced by Stella B. Leonard, formerly known as Stella B.
Leonard Belanger, against David J. Belanger, H. M. Childers and Vincent Vrenon,
individually and doing business under the name and style of Modern Dairy, for return of
certain cattle. A judgment directing return of cattle was entered and the defendants appealed.
The Supreme Court, Badt, C. J., 67 Nev. 577, 222 P.2d 193, dismissed appeal as to Childers
and Vrenon, since they were not aggrieved parties. Childers and Vrenon filed a motion to
amend former decision and asked that order of dismissal of appeal be stricken, and that case
be remanded to lower court with instructions to dismiss complaint. The Supreme Court, Badt,
C. J., held that failure of Childers and Vrenon to make contention on original hearing that
court's order should be dismissed on appeal and case remanded to trial court, was fatal to
present motion, and circumstances did not justify modification of judgment to prevent
miscarriage of justice.
case remanded to trial court, was fatal to present motion, and circumstances did not justify
modification of judgment to prevent miscarriage of justice.
Motion dismissed.
Royal A. Stewart, of Reno, for Appellants Childers and Vrenon.
John S. Sinai, of Reno, for Respondent.
Where appeal had been dismissed on motion because appellants were not parties aggrieved by judgment,
and appellants had remained silent, and had not raised contention that if court considered motion favorably
it should enter order dismissing appeal and remanding case with instructions to dismiss complaint,
appellant could not by motion subsequent to dismissal of appeal ask that decision be amended by
remanding case for dismissal of complaint, since contentions which were not raised or which were passed
over in silence on original hearing, cannot be maintained or considered on petition for rehearing.
Where there was motion to dismiss appeal on ground that appellants were not aggrieved parties under
judgment, and appellants did not raise contention that court should order dismissal of appeal and remand
case with instruction to dismiss complaint if it found that they were not aggrieved parties, and appeal was
thereafter dismissed, a subsequent motion to amend decision did not present circumstances showing
miscarriage of justice sufficient to warrant assumption of jurisdiction.
OPINION
On Motion to Amend Former Decision
Appellants Childers and Vrenon have moved this court for an order amending its former
decision dismissing the appeal of said appellants. They ask that the order of dismissal of the
appeal be stricken and that there be substituted the following order: The motion to dismiss
the appeal is granted and the case remanded to the lower court with instructions to dismiss
the complaint without costs to either party."1
The present motion is based upon the ground that we dismissed the appeal because the
question was moot; that under well settled law, the trial court's judgment in favor of
respondent would not, under such circumstances, be conclusive against appellants or in
favor of respondent in a subsequent action, Restatement of the law of judgments, 315,
secs.
to the lower court with instructions to dismiss the complaint without costs to either party.
1

The present motion is based upon the ground that we dismissed the appeal because the
question was moot; that under well settled law, the trial court's judgment in favor of
respondent would not, under such circumstances, be conclusive against appellants or in favor
of respondent in a subsequent action, Restatement of the law of judgments, 315, secs. 69,
69(2); that under the holding in United States of America v. Munsingwear, Inc., 340 U.S. 36,
71 S.Ct. 104, 95 L.Ed 36, it becomes incumbent upon appellants to make the present motion
or else be deemed to have acquiesced in the dismissal, to have failed to avail themselves of
their remedy and to be held to have slept on their rights; that appellants are now seasonably
asking for the present order in response to the command of the Munsingwear case; that
their right to seek the order now sought did not come into question until the dismissal of the
appeal and the order denying rehearing which declared the case to be moot; that prior to the
Munsingwear case, courts always recognized the inequity of a situation in which a party
would be subjected to the consequences of a judgment which he was unable to review
because the question had become moot; that the Munsingwear case, so recently determined by
the United States supreme court, had changed this heretofore well recognized rule of law; and
that the state courts, while not bound by such ruling, might indeed be inclined to follow it on
account of the deep respect accorded by the state courts to this high tribunal.
In our opinion dismissing the appeal we said: We hold (1) that appellants Childers and
Vrenon, by reason of their disclaimers of title made under the circumstances herein
recited, are neither such aggrieved parties, nor have they such direct interest in the
subject matter of the action or the appeal, as to permit them, or either of them, to appeal
from the judgment or from the order denying their motion for a new trial."
____________________

1
The facts in this litigation will appear from our opinion in Bowler v. Vannoy, 67 Nev. 80. 215 P.2d 248, in
which we granted a writ of mandamus commanding the defendant sheriff to return certain livestock to the
petitioners: also in Leonard v. Belanger, 67 Nev. 577, 222 P.2d 193, in which we dismissed the appeal of
Childers and Vrenon.
of their disclaimers of title made under the circumstances herein recited, are neither such
aggrieved parties, nor have they such direct interest in the subject matter of the action or the
appeal, as to permit them, or either of them, to appeal from the judgment or from the order
denying their motion for a new trial.
Analyzing this situation, appellants say that their motion is based on a hypothesis
consisting of the five following successive parts: 1. Appellants' appeal was dismissed because
they were not aggrieved parties. 2. They were not aggrieved parties because they no longer
possessed any interest in the subject matter of the action and thus had no interest which could
be affected by any judgment in the action. 3. That because no judgment could affect
appellants' interests, all questions in the case were moot as regards appellants. 4. That though
the case be now moot, the judgment of the lower court might yet spawn legal consequences.
5. That to protect appellants from being affected by such legal consequences, the complaint in
the lower court ought to be dismissed since appellants are denied the protection of an appeal.
The fabric of this sequence is tied together by the assertion, with certain supporting
authorities, that our dismissal of the appeal because the appellants were neither aggrieved
parties nor had such a direct interest in the subject matter of the action or the appeal as to
permit them to appeal from the judgment, was equivalent to an order dismissing the appeal
upon the ground that the controversy had become moot.
[Headnotes 1, 2]
While the problem is an interesting one, we find it unnecessary to enter into any detailed
discussion. When appellants Childers and Vrenon announced for the first time in their
testimony in the proceedings supplemental to the judgment against them, that they had long
since disposed of their interest in the cattle, respondent moved to dismiss their appeal. They
were served with notice of such motion on June 2, 1950.
of such motion on June 2, 1950. After the filing of their answering brief and the respondent's
reply brief on the motion, the same was argued, and after filing of additional briefs was
submitted on July 24, 1950. Our order dismissing the appeal was filed September 11, 1950.
Petition for rehearing was submitted November 20, 1950, and denied January 11, 1951.
During all this period appellants were aware of the purpose of this motion, namely to dismiss
the appeal. They knew that if the motion were granted, the appeal would be dismissed. They
made no contention that in the event the court considered the motion well taken, the court's
order should be to dismiss the appeal and to remand the case to the trial court with
instructions to dismiss the complaint. We have no statute, rule of court or practice to warrant
a consideration of appellants' present motion. On the contrary, this court in Brandon v. West,
29 Nev. 135, 85 P. 449, 88 P. 140, a case peculiarly in point, refused to countenance or
entertain such proceeding, saying that it would not only set a precedent which would render
judgments uncertain and unstable after the rendition on appeal and consideration on rehearing
in this court, but would unduly prolong litigation and sweep aside the benefits and results
following from the rule announced in numerous decisions in this and other courts, holding
that points or contentions not raised, or passed over in silence on the original hearing, cannot
be maintained or considered on petition [for] rehearing. It is true, as there stated, that it is
not unusual to correct the judgment on motion where there is a clerical mistake or some
error apparent on the record, but that is not even claimed to be the case here. See also
Gamble v. Silver Peak Mines, 35 Nev. 319, 133 P. 936; Finley v. Finley, 65 Nev. 122, 196
P.2d 766; and Canepa v. Durham, 62 Nev. 429, 155 P.2d 788. If we concede, without in any
way detracting from the force of the foregoing authorities, that this court has, in a proper case,
jurisdiction to modify the judgment to prevent a miscarriage of justice, the circumstances of
this case would not justify the exercise of such jurisdiction.
case would not justify the exercise of such jurisdiction.
When appellants filed their motion, the remittitur, after denial of petition for rehearing of
our dismissal of the appeal, had not yet been issued, and we ordered it withheld pending
further order of the court. The motion to modify and amend our former order is hereby
dismissed, and the remittitur is ordered to be issued to the district court forthwith.
____________
68 Nev. 263, 263 (1951) Thornton v. Malin
HOPE THORNTON, Appellant, v. MORRIS MALIN, Doing Business Under the Fictitious
Trade Name and Style of MALIN FRENCH CLEANERS, Respondent.
No. 3634
April 4, 1951. 229 P.2d 915.
Appeal from the Eighth Judicial District Court, Clark County; Frank McNamee, Judge,
department No. 1.
Hope Thornton sued Morris Malin, doing business under the fictitious trade name and
style of Malin French Cleaners, to recover damages for skin burns caused by ethyl ether or
other cleaning agency left in a knit garment cleaned by defendant. From a judgment of
nonsuit and an order thereof denying plaintiff's motion for a new trial, plaintiff appealed. The
Supreme Court, Badt, C. J., held that the trial judge did not abuse his discretion in denying
plaintiff's motion for a continuance, nor err in denying plaintiff's motions for a new trial and
leave to reargue her motion for a continuance.
Judgment and order denying new trial affirmed.
Emilie N. Wanderer, of Las Vegas, for Appellant.
Clarence Sundean, of Las Vegas, for Respondent.
1. Continuance.
Generally, granting or refusal of application for continuance is wholly or largely within trial court's
discretion, but such discretion may not be exercised absolutely, arbitrarily or capriciously.
2. Continuance.
Where plaintiff waited until only nine days before date set for trial before obtaining order for commission
to take nonresident's deposition, motion for commission was on only two days notice, defendant was served
with notice on day before trial that continuance would be sought on ground of absence of such nonresident
and his deposition, and plaintiff, at hearing of her motion for continuance, submitted additional affidavit,
not referred to in notice of motion, that another essential witness was unobtainable, trial judge did not
abuse his discretion in denying motion.
The supreme court can find no error in trial court's order denying plaintiff's motion for new trial on
ground of newly discovered evidence in personal injury suit tried without jury, in absence of transcript of
testimony and proceedings, any indication of facts to which plaintiff testified, or any evidence of damage
suffered by plaintiff or negligence of defendant.
4. Continuance.
Denial of plaintiff's motion, after trial and judgment for defendant, for leave to reargue plaintiff's
previously denied motion for continuance, was not error, as any action on motion for such leave would
have been meaningless and futile.
On appeal from judgment of nonsuit in case tried without jury, supreme court cannot consider plaintiff's
contention that her testimony made out prima-facie case of defendant's negligence under res ipsa loquitur
doctrine, where record does not contain any of such testimony.
6. Trial.
Findings of fact by trial court, rendering judgment of nonsuit, were unnecessary, as such judgment was
simply a conclusion of court that plaintiff failed to prove sufficient case. N.C.L.1931-1941 Supp., sec.
8793.
OPINION
This appeal presents two questions. (1) Did the trial court abuse its discretion in denying
the plaintiff's motion for a continuance? (2) Was the trial court in error in denying plaintiff's
motion for a new trial?
error in denying plaintiff's motion for a new trial? Plaintiff's complaint sought damages for
defendant's careless and negligent cleaning of plaintiff's knit garment, which left in it a
large quantity of ethyl ether and/or other cleaning agency, which caused serious burns to
plaintiff's skin. The chronology of the proceedings was as follows:
March 6, 1950. Complaint served on defendant.
March 16, 1950. Defendant's answer filed.
March 17, 1950. Trial date set for May 25, 1950.
May 16, 1950. Commission ordered, on plaintiff's motion, to take deposition of Roger W.
Truesdail, of Truesdail Laboratories, Inc., of Los Angeles, California, on written direct and
cross interrogatories.
May 24, 1950. Plaintiff served notice on defendant that plaintiff would on May 25 move
for a continuance. The court shortened time to one day for service of such notice. The notice
stated that it would be made on the grounds set forth on an annexed affidavit of plaintiff's
attorney, and would be based on such affidavit, on the attorney's oral testimony and on the
proceedings theretofore had.
May 25, 1950. Motion for continuance presented on the affidavit and on an additional
affidavit by plaintiff's attorney. Motion denied. Plaintiff testified in her own behalf and rested.
Defendant's motion for a nonsuit granted, and judgment entered in favor of defendant for
costs.
June 14, 1950. Plaintiff's motion for new trial denied. Her motion for reargument of the
motion for a continuance also denied.
It is seen from the foregoing that issue was joined in ten days after defendant was served
with summons and complaint. Plaintiff immediately obtained an order setting the trial for
May 25, but she waited till nine days before that date before obtaining an order for a
commission to take the deposition of Mr. Truesdail. In none of this does the record disclose
any lack of cooperation by the defendant.
by the defendant. The motion for commission was on two days' notice. The proposed
interrogatories were submitted four days later. Defendant made no objection to any of the
proposed interrogatories, and proposed only three cross interrogatories. The day before the
trial defendant was served with a one day's notice that a continuance would be sought on the
ground of the absence of Mr. Truesdail and the absence of his deposition. Under these
circumstances it was not unnatural that the trial judge should test carefully the sufficiency of
the affidavit on which the motion for continuance was based, as well as its compliance with
the rules of the district court.
1

The affidavit in question recites that the garment was submitted to Truesdail Laboratories,
Inc., of Los Angeles, California, for chemical analysis, and attached a copy of the unverified
report made thereon. The report is dated December 27, 1949, some two months and ten days
before the suit was filed. The affidavit then states "that accordingly [sic] a commission was
issued on the 17th day of May, 1950, to take the deposition of the chemist who submitted
the report"; that on May 23, 1950, plaintiff's attorney received information from her
associate in Los Angeles that the witness was not available for examination and would
not be available for two weeks; that he was an essential witness and that plaintiff could
not proceed to trial without his deposition.
____________________

1
Rule XII. All motions for the continuance of causes shall be made on affidavit, and, when made on the
ground of absence of witnesses, the affidavit shall state:
FirstThe names of the absent witnesses, and their present residence or abiding place, if known.
SecondWhat diligence has been used to procure their attendance, or depositions, and the causes of a failure
to procure the same.
ThirdWhat the affiant has been informed and believes will be the testimony of each of such absent
witnesses, and whether or not the same facts can be proven by other witnesses than parties to the suit, whose
attendance or depositions might have been obtained.
FourthAt what time the applicant first learned that the attendance or depositions of such absent witnesses
could not be obtained.
FifthThat the application is made in good faith and not for delay merely.
And no continuance will be granted unless the affidavit upon which it is applied for conforms to this rule. * *
* A copy of the affidavits upon which a motion for a continuance is made, shall be served upon the opposing
party as soon as practicable after the cause for the continuance shall be known to the moving party.
Counter-affidavits may be used in opposition to the motion. No amendments or additions to affidavits for
continuance will be allowed after they have been read, and no argument will be heard on motions for a
continuance, except such as relate to the sufficiency of the affidavits read on the hearing.
then states that accordingly [sic] a commission was issued on the 17th day of May, 1950, to
take the deposition of the chemist who submitted the report; that on May 23, 1950, plaintiff's
attorney received information from her associate in Los Angeles that the witness was not
available for examination and would not be available for two weeks; that he was an essential
witness and that plaintiff could not proceed to trial without his deposition. The unverified
chemical report referred to indicated an excessive residue of ethyl ether, indicative of careless
cleaning, which could cause irritation. At the hearing of the motion for continuance plaintiff
submitted an additional affidavit subscribed by her attorney, not referred to in the notice of
motion, which recited that another essential witness was unobtainable, namely, Dr. Karl
Krause, the physician who treated plaintiff; that the doctor's secretary had assured plaintiff's
attorney that the doctor would be available on that date [May 25] to give testimony subject
to a telephone call; that on May 24 the affiant telephoned his office to remind him of the
date, but was informed that the doctor had left on a vacation with his family and would not
return for a week or ten days.
[Headnotes 1, 2]
Respondent points out a number of respects in which both affidavits are said to fail to
conform to Rule XII. In addition to failure of showing of diligence several minor infractions
of the rule are cited. As the proceedings were not reported, we do not have before us the
arguments seeking and opposing the continuance or the oral opinion of the trial judge in
denying the continuance. Appellant says in her opening brief: As a general rule the granting
or refusal of an application for a continuance is wholly or largely within the sound discretion
of the trial court. * * *. Accepting this view, and the further view that such discretion may
not be exercised absolutely, arbitrarily or capriciously, we are of the opinion that the situation
as described above does not permit us to conclude that the trial judge abused his
discretion in denying the motion for continuance.
not permit us to conclude that the trial judge abused his discretion in denying the motion for
continuance.
[Headnote 3]
Appellant next assigns as error the court's denial of her motion for new trial. Such motion
relied on newly discovered evidence, and was likewise supported by the affidavit of plaintiff's
attorney, stating that after the dismissal of the action, one Mary Johnston informed her that
she had knowledge of the condition of the machinery used in defendant's plant and knew it to
be defective. Mary Johnston's affidavit is likewise attached to the same effect. Defendant
filed a counter affidavit to the effect that Mary Johnston had never been on the premises prior
to January 30, 1950 (some two months after the return of the cleaned garment to plaintiff) and
had never seen the dry cleaning machinery or equipment prior thereto. Under the state of the
recordthe absence of a transcript of the testimony and proceedings, the absence of any
indication as to the facts to which the plaintiff testified, the absence of any evidence of
damage suffered by plaintiff or of any negligence on the part of the defendant, and the fact
that the case was tried to the court without a jury, we can find no error in the order denying
motion for new trial.
[Headnotes 4-6]
Plaintiff contends that it was error for the court to deny her motion made June 14 for leave
to reargue her motion for a continuance of the trial. But the trial had theretofore been had and
judgment entered. Any action on such motion would have been meaningless and futile. We
find no merit in this assignment. Plaintiff also assigns as error the action of the court in
granting the motion for nonsuit, and contends that the plaintiff's testimony made out a
prima-facie case of negligence under the doctrine of res ipsa loquitur. However, the record
does not contain any part of this testimony and we are therefore unable to consider this
contention. Likewise assigned as error is the failure of the court to make findings of fact.
findings of fact. No findings were necessary. The judgment of nonsuit was simply a
conclusion of the court that the plaintiff had failed to prove a sufficient case. N.C.L., sec.
8793, 1931-1941 Supp., Cann v. Williams Land & Livestock Co., 56 Nev. 242, 48 P.2d 887.
The judgment and the order denying new trial are affirmed with costs.
____________
68 Nev. 269, 269 (1951) Jensen v. Labor Council
HAROLD J. JENSEN, d.b.a. LAKE STREET PHARMACY, DONNA OLDHAM,
MARJORIE REYNOLDS, GERALDINE ROEBUCK, FLORENCE HATCH and MARY
SCOTT, Appellants, v. RENO CENTRAL TRADES AND LABOR COUNCIL, a Labor
Union, A. E. CAUBLE, LOUIS PALEY, NATHAN JEBB, CULINARY AND HOTEL
SERVICE WORKERS' LOCAL NO. 45, a Labor Union, WILLIAM O. ROYALTY, HARRY
VIETHEER, SANFORD CARTER, TEAMSTERS, CHAUFFEURS AND
WAREHOUSEMEN LOCAL NO. 533, a Labor Union, J. GEYER, GEORGE MASKALY,
R. A. ANDERSON, ED SHAW, GEORGE BERTRAND, and W. A. DAVIDSON,
Respondents.
No. 3638
April 13, 1951. 229 P.2d 908.
Harold J. Jensen, doing business as Lake Street Pharmacy, and others, brought suit
against Reno Central Trades and Labor Council, a labor union, and others to enjoin peaceful
picketing of the Lake Street Pharmacy against the wishes of the plaintiffs as proprietor and
employees. From a judgment adverse to the plaintiffs, plaintiffs appealed. The Supreme
Court, Merrill, J., held that defendants had the right to picket and would not be enjoined.
J., held that defendants had the right to picket and would not be enjoined.
Affirmed.
Ernest S. Brown, of Reno, for Appellants.
McCarran & Wedge, of Reno, Gilbert, Nissen & Irvin, of Los Angeles, and James F.
Galliano, of Oakland, for Respondents.
1. Courts.
Argument however elaborate and forceful which only presents over again reasons originally urged against
decision, does not justify court in reconsidering its position and changing its conclusion.
2. Courts.
In determining whether court should reconsider earlier decision to avoid possible perpetuation of error,
court must balance against each other the evils of perpetuation of error and the evils inherent in an
abandonment of precedent.
3. Courts.
Reversal of earlier holding on matter of statutory construction amounts to usurpation of legislative power
since holding is no longer mere interpretation but an actual changing of the law.
4. Courts.
Decision by a divided court entitled to as much weight as stare decisis as a unanimous decision.
5. Courts.
Where earlier decision dealt with rules of conduct, fact of widespread reliance thereon compelled
application of rule of stare decisis.
6. Injunction; Torts.
Union had right peacefully to picket an establishment for purpose of securing a closed shop contract with
proprietor against the desire of the proprietor and his employees, and proprietor and employees were not
entitled to enjoin such picketing. N.C.L.1929, secs. 10473, 10061; N.C.L.1931-1941 Supp., secs. 2825.31,
2825.32.
Syllabus by Merrill, J.
OPINION
This is an appeal from judgment of the trial court dismissing the action of plaintiffs below
(upon sustaining defendants' demurrer to plaintiffs' amended complaint) and from orders
denying plaintiffs' motion for temporary injunction and dissolving a restraining order
theretofore issued on behalf of plaintiffs.
defendants' demurrer to plaintiffs' amended complaint) and from orders denying plaintiffs'
motion for temporary injunction and dissolving a restraining order theretofore issued on
behalf of plaintiffs. The question involved is defendants' right peacefully to picket an
establishment for the purpose of securing a closed shop contract with the proprietor against
the desire of his employees.
At the outset, we deem it wise to delineate the scope of this opinion. This court has
heretofore held in State ex rel. Culinary Workers, Local No. 226 v. Eighth Judicial District
Court, 66 Nev. 166, 207 P.2d 990, 996, and on petition for rehearing in 66 Nev. 202, 210
P.2d 454, that such picketing was lawful. (That case involved the White Cross Drug
Company of Las Vegas and for convenience will be referred to in this opinion as the White
Cross Drug case.) It is contended by appellants that that decision is not controlling in the
matter before us and this is the question to which we must address ourselves in this opinion.
Since submission of this matter to this court the legislature of the State of Nevada has
amended the act which was the principal point of discussion in the White Cross Drug case;
and that opinion has, thus, to the effective extent of that legislation, been superseded by
legislative act.
1
In this opinion, therefore, we are confined in our determinations to the
state of the law prior to that enactment.
____________________

1
Sec. 10473, N.C.L.1929, prior to the 1951 amendment, read as follows: It shall be unlawful for any person,
firm or corporation to make or enter into any agreement, either oral or in writing, by the terms of which any
employee of such person, firm or corporation, or any person about to enter the employ of such person, firm or
corporation, as a condition for continuing or obtaining such employment, shall promise or agree not to become
or continue a member of a labor organization, or shall promise or agree to become or continue a member of a
labor organization.
In the White Cross Drug case the term labor organization (as last used in the section above) was construed
to mean company union and not to include independent unions. It was thus held that the prohibition of the
statute was against so-called yellow-dog contracts and did not preclude collective security agreements or
closed shop contracts.
Sec. 10473 N. C. L., as amended by act approved March 14, 1951, reads as follows: It shall be unlawful for
any person, firm or
determinations to the state of the law prior to that enactment. In no wise can this opinion be
regarded as establishing the law of this state under the new statute.
First, then, as to the facts: Appellants were plaintiffs below. Appellant Jensen is proprietor
of the Lake Street Pharmacy in Reno. The remaining appellants are his employees.
Respondents are labor unions and union officials. On May 9, 1950, this suit was brought to
secure an injunction against picketing and boycotting of the Lake Street Pharmacy and for
$40,000 damages sustained by such activities.
This appeal comes to us on a demurrer to the amended complaint of plaintiffs and in our
analysis of the factual situation before us, we are thus confined to the allegations there made.
The allegations are not overly helpful, being extremely general in terms and dealing largely in
ultimate facts or conclusions. Specific acts and occurrences, which were available to us
through testimony in the White Cross Drug case, are largely absent in the case at bar.
It appears, however, that appellant employees are not members of any union or labor
organization and have no desire to join any such organization; that there is no dispute
between the employees and their employer, Appellant Jensen; that defendants, desiring
unionization of the employees, demanded of Jensen execution of a closed shop contract; that
upon his refusal, defendants on Nov. 29, 1949, established a picket line and boycott of the
establishment.
____________________
corporation to make or enter into any agreement, either oral or in writing, by the terms of which any employee of
such person, firm or corporation, or any person about to enter the employ of such person, firm or corporation, as
a condition for continuing or obtaining such employment, shall be required not to become or continue a member
of any labor organization, or shall be required to become or continue a member of any labor organization. The
term labor organization' means any organization of any kind, or any agency or employee representation
committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of
dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or
conditions of work.
From the allegations of the complaint, we are unable to ascertain any fact which
distinguishes the case at bar from the White Cross Drug case.
2
If the cases are to be
differentiated it is by the manner in which the facts are presented in the case at bar and the
conclusions in which they are encompassed.
3
Factually, however, the cases do not appear
to be distinguishable.
____________________

2
This court upon its own initiative has given serious consideration to certain allegations of the complaint
which it was at first felt might have been intended to allege that the picketing here involved was not peaceful, but
was, on the contrary, accompanied by acts of force and violence. It is alleged,
That on or about the 29th day of November, 1949, the defendants entered into a combination, confederation
and conspiracy for the unlawful purpose * * * of preventing said plaintiffs and each of them from exercising a
lawful business, trade and calling by force, intimidation and threats and by interfering with the property of said
plaintiffs and each of them; * * * that said representatives or pickets at all times intercept, interfere with, molest,
intimidate and frighten the plaintiff employees, plaintiff, Harold J. Jensen, and the customers of plaintiff Harold
J. Jensen's business. That on several occasions the presence of said pickets have resulted in breaches of the
peace.
Upon sustaining the demurrer to the amended complaint, the action was dismissed by the trial court without
leave to amend. It was, at first, felt by the members of this court that had the plaintiffs intended by the quoted
allegations to assert that the picketing was accompanied by acts of force and violence, an opportunity to amend
should have been afforded in order that such acts might have been particularized or at least alleged with greater
certainty.
The allegations, however, appear equally consistent with an assertion of criminal conspiracy under sec. 10061
as with an assertion of force and violence. The trial court in its decision treated the case as one of peaceful
picketing. Its decision indicates that no contention to the contrary was made by appellants. No request for leave
to amend appears in the record. Failure to grant leave was not specifically assigned as error. The picketing is not
treated by appellants in either opening or reply briefs as accompanied by acts of force and violence. We thus feel
impelled to the conclusion that the case is one of peaceful picketing and that, in any event, any error which the
trial court may have committed in so regarding it may not here be considered.

3
As an example it is alleged that respondents' actions constituted criminal conspiracy to subject control of the
establishment to respondents; to prevent appellants from exercising a lawful business, trade or calling; to commit
injury to trade and commerce; to compel appellant Jensen to break his contracts of employment with his
employees and unlawfully to deny to them free right of selection of collective bargaining representatives.
the cases do not appear to be distinguishable. If the picketing and boycotting are here, for any
reason or upon any legal basis, to be regarded as unlawful, it must necessarily follow that the
picketing and boycotting in the White Cross Drug case for the same reason and upon the
same basis were likewise unlawful, and that this court was in error in holding otherwise. The
question, therefore, is not whether an earlier authority may be distinguished, but whether that
holding should now be reconsidered.
Appellants first contend that the White Cross Drug case is not here controlling in that the
opinion there concerned itself exclusively with sec. 10473, N. C. L. 1929. It is conceded by
appellants on the authority of that case that peaceful picketing of the sort here involved is not
rendered unlawful by that section. It is contended, however, that under secs. 2825.31 and
2825.32, N. C. L. 1929 Supp. 1931-1941, dealing with the right freely to select
representatives for collective bargaining, and sec. 10061, N. C. L. 1929, dealing with criminal
conspiracy, the picketing and boycotting in the case at bar are for an unlawful objective. The
allegations of the complaint, as indicated earlier in this opinion, are couched in language
clearly tying the activities of respondents and their purpose to these sections.
It is true that the two White Cross Drug opinions (on appeal and on petition for rehearing)
dealt with sec. 10473 to an extent greatly overshadowing discussion of other statutory
provisions. Such extensive discussion was justified in view of the fact that that section was
the one most apparently in point. Full discussion was essential to an interpretation of that
section if it was to be held that picketing for a closed shop was not thereby rendered unlawful.
This is not to say, however, that in rendering its opinions this court did not have in mind
the sections now urged upon us. Those sections were also cited to this court in the White
Cross Drug case. They were the subject of argument by counsel. They were mentioned in the
first opinion of this court upon that case, both majority and dissenting.
in the first opinion of this court upon that case, both majority and dissenting. The pertinent
portion of sec. 2825.31 was quoted at length in a footnote to the dissenting opinion. The
majority opinion, in referring to these sections, stated that neither of them could be relied
upon to restrain peaceful picketing of the type there in question. The majority of the court had
in mind these sections as well as sec. 10473 when it stated in its opinion:
The picket line established by the union in this case was both peaceful and lawful.
[Headnote 1]
It was held in Seibert v. United States ex rel. Harshman, 129 U.S. 192, 9 S.Ct. 271, 32
L.Ed. 645, where counsel sought to have the court reconsider its rulings and overrule a
decision in a controlling case, that argument, however elaborate and forceful, which only
presents over again reasons originally urged against that decision, does not justify the court in
reconsidering its position and changing its conclusion.
Appellants contend, however, that the language used by this court in the White Cross Drug
opinion relative to the sections here involved, is such that this court is not precluded from
reconsidering the matter in the light of those statutes. That language was as follows:
Sec. 2825.32 assuring the right to representation in collective bargaining negotiations,
and section 10061 of the N.C.L. dealing with criminal conspiracy, were cited to this court by
respondents as making the acts of relators unlawful, but neither of these laws were
strenuously urged in brief or oral argument. Neither of these laws can be relied upon to
restrain peaceful picketing of the type here in question, and if they were to be so construed,
such application would be an unconstitutional deprivation of the rights of speech and
assembly.
The lack of strenuous argument to which reference is made is not, in our view, sufficient
to warrant reconsideration. That the lawfulness of the union activities and objectives under
the sections in question was fully considered by the court is conclusively demonstrated by
the dissenting opinion in its opening statement and footnote.
considered by the court is conclusively demonstrated by the dissenting opinion in its opening
statement and footnote. (See: Matthews v. Clark as quoted infra.) There Mr. Justice Badt
stated:
I dissent. In my opinion the picketing was properly enjoined because its admitted
objective was to compel a violation of the statutes of this state.
quoting at length the pertinent portion of sec. 2825.31, as well as sec. 10473. Mr. Justice Badt
clearly intended to and did dissent not only upon the majority's construction of sec. 10473,
but upon its construction of sec. 2825.31 as well.
In Michael v. Morey, 26 Md. 239, 90 Am. Dec. 106, the court states:
Although this point may not have been as fully argued in the former case as in the
present, yet it cannot be said that the decision just cited was obiter dictum, as the question
was directly involved in the issues of law raised by the demurrer to the bill, and the mind of
the court was directly drawn to and distinctly expressed upon the subject.
Appellants next contend that reconsideration of our position in the White Cross Drug case
is compelled by three decisions of the Supreme Court of the United States handed down since
our opinion on petition for rehearing was rendered. These opinions are Hughes v. Superior
Court of California, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985; International Brotherhood v.
Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 985; Building Service Employees International
Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045.
The Hughes case sustained the California Supreme Court in upholding an injunction
against picketing, the purpose of which was to secure proportional employment of negroes
and whites. The Hanke case sustained the Washington Supreme Court in upholding an
injunction against picketing, the purpose of which was to compel the owner of an
establishment operated without employees to adopt a union shop.
out employees to adopt a union shop. The Gazzam case sustained the Washington Supreme
Court in upholding an injunction against picketing, the purpose of which was to compel an
employer to sign a contract requiring his employees to join a union, thus coercing their choice
of collective bargaining representatives.
In no one of these cases, however, did the United States Supreme Court itself approve the
injunction or label the picketing as unlawful or for an unlawful objective. The court in each
instance accepted the determination of the state through its legislature and courts that such
picketing was wrongful and held that in view of the policy of the state thus established the
injunction was not an unconstitutional invasion of the right of free speech. The court
uniformly recognizes the right of states to determine for themselves their policies in such
matters. As stated in the Hughes case:
The policy of a state may rely for the common good on the free play of conflicting
interests and leave conduct unregulated. Contrariwise, a state may deem it wiser policy to
regulate. * * * The form the regulation should take and its scope are surely matters of policy
and, as such, within a state's choice. [339 U.S. 460, 70 S.Ct. 723.]
And in the Hanke case:
We are, needless to say, fully aware of the contentious nature of these views. It is not our
business even remotely to hint at agreement or disagreement with what has commended itself
to the State of Washington, or even to intimate that all the relevant considerations are
exposed in the conclusions reached by the Washington court. They seldom are in this field, so
deceptive and opaque are the elements of these problems. That is precisely what is meant by
recognizing that they are within the domain of a state's public policy. [339 U.S. 470, 70 S.Ct.
777.]
The Gazzam case upon the facts is extremely close to the case at bar. The picketing there
was for the same purpose as the picketing with which we are here concerned.
purpose as the picketing with which we are here concerned. The Washington statute involved,
which outlined that state's policy, is in phraseololgy similar to our sec. 2825.31. The supreme
court, however, expressly refrained from passing judgment upon the construction of the
Washington statute by the Washington Supreme Court or upon the conclusion of that court
that such picketing was in violation of state policy. The United States Supreme Court
confined itself to holding that the state court had power thus to determine state policy. The
opinion states:
The meaning and effect of this declaration of policy is found in its application by the
highest court of the state to the concrete facts of the instant case. * * * To judge the wisdom
of such policy is not for us; ours is but to determine whether a restraint of picketing in
reliance on the policy is an unwarranted encroachment upon rights protected from state
abridgment by the Fourteenth Amendment. [339 U.S. 532, 70 S.Ct. 787.]
The White Cross Drug case is not, then, in conflict with the United States Supreme Court's
holding in the Gazzam case. The situation is simply that the policy of the State of Nevada as
defined by this court in its interpretation of our statutes is opposed to that of the State of
Washington. However, it remains the function of the state through its legislature and courts to
determine that policy. Once determined, unless itself unconstitutional, the United States
Supreme Court has indicated that it will not question it. This conclusion is supported by
language in the Hanke case referring to Senn v. Tile Layers Protective Union, 301 U. S. 468,
57 S.Ct. 857, 81 L.Ed. 1229. Both the Senn and Hanke cases dealt with injunctions against
picketing of self-employers to secure unionization. The Washington court in the Hanke case
sustained the injunction. The Wisconsin court in the Senn case denied relief. The United
States Supreme Court in each instance upheld the state court. In the Hanke case, referring to
this situation, it is stated: "Whether to prefer the union or a self-employer in such a
situation, or to seek partial recognition of both interests, and, if so, by what means to
secure such accommodation, obviously presents to a state serious problems.
Whether to prefer the union or a self-employer in such a situation, or to seek partial
recognition of both interests, and, if so, by what means to secure such accommodation,
obviously presents to a state serious problems. There are no sure answers, and the best
available solution is likely to be experimental and tentative, and always subject to the control
of the popular will. That the solution of these perplexities is a challenge to wisdom and not a
command of the Constitution is the significance of Senn v. Tile Layers Protective Union, 301
U.S. 468, 57 S.Ct. 857, 81 L.Ed 1229. Senn, a self-employed tile layer who occasionally hired
other tile layers to assist him, was picketed when he refused to yield to the union demand that
he no longer work himself at his trade. The Wisconsin court found the situation to be within
the state's anti-injunction statute and denied relief. In rejecting the claim that the restriction
upon Senn's freedom was a denial of his liberty under the Fourteenth Amendment, this court
held that it lay in the domain of policy for Wisconsin to permit the picketing: Whether it was
wise for the state to permit the unions to do so is a question of its public policynot our
concern.' 301 U.S. at 481, 57 S.Ct. at 863.
This conclusion was based on the court's recognition that it was Wisconsin, not the
Fourteenth Amendment, which put such picketing as a means of publicity on a par with
advertisements in the press.' 301 U.S. at 479, 57 S.Ct. at 862. If Wisconsin could permit such
picketing as a matter of policy it must have been equally free as a matter of policy to choose
not to permit it and therefore not to put this means of publicity on a par with advertisements
in the press.' If Wisconsin could have deemed it wise to withdraw from the union the
permission which this court found outside the ban of the Fourteenth Amendment, such action
by Washington cannot be inside that ban.
Thus it is our view that reconsideration of the White Cross Drug case is not compelled by
later decisions of the United States Supreme Court and cannot be justified upon the
ground that full consideration was not given by this court to the statutes now presented
for interpretation.
the United States Supreme Court and cannot be justified upon the ground that full
consideration was not given by this court to the statutes now presented for interpretation.
The final question is whether reconsideration nevertheless should be given to avoid
possible perpetuation of error in the light of the dissents in our own opinions and of the
highly pertinent decisions of the Washington Supreme Court in the Gazzam case, 29 Wash.2d
488, 188 P.2d 97, 11 A.L.R.2d 1330, 34 Wash.2d 38, 207 P.2d 699, and in Ostroff v. Laundry
& Dye Work's Drivers Local No. 566, Wash., 225 P.2d 419.
In reaching for a just determination of this question we are confronted with the general
principles of stare decisis. It is stated (with ample citation of authority) in 14 Am.Jur. 284,
Courts sec. 61,
While, perhaps, it is more important as to far-reaching juridical principles that the court
should be right than merely in harmony with previous decisions, in the light of higher
civilization, later and more careful examination of authorities, wider and more thorough
discussion and more mature reflection upon the policy of the law, it nevertheless is vital that
there be stability in the courts in adhering to decisions deliberately made after ample
consideration. Parties should not be encouraged to seek re-examination of determined
principles and to speculate on a fluctuation of the law with every change in the expounders of
it. As to many matters of frequent occurrence, the establishment of some certain guide is of
more significance than the precise form of the rule, and substantial justice may often be better
promoted by adhering to an erroneous decision than by overthrowing a rule once established.
In re Burtt's Estate, 353 Pa. 217, 44 A.2d 670, 677, 162 A.L.R. 1053, 1062, it is stated
Otherwise the law would become the mere football of the successively changing personnel
of the court, and the knowne certaintie of the law,' which Lord Coke so wisely said is the
safetie of all,' would be utterly destroyed.
[Headnote 2]
We must, then, balance against each other, as applicable to the case before us, the evils of
perpetuation of error (assuming a reconsideration of the White Cross Drug case should
disclose error to exist) and the evils inherent in an abandonment of precedent.
[Headnote 3]
If error was committed by this court it was through statutory construction and, based upon
such construction, through determination of state policy relative to peaceful picketing for a
closed shop contract. In such respects as these courts have indicated that reconsideration may,
with propriety, be regarded as a legislative rather than a judicial function. As to statutory
construction Ex Parte Speer, 53 Ida. 293, 23 P.2d 239, 241, 88 A.L.R. 1086, has indicated
that judicial reconsideration would be an unconstitutional usurpation of the legislative
function; that a court's reversal of its holding on statutory interpretation is no longer mere
interpretation but an actual changing of the law. After quoting the provisions of the Idaho
constitution relative to division of governmental powers it is stated:
It is the duty of the Legislature to make the laws, and, in enacting section 18-102, it
functioned within the scope of that duty. It was the duty of the court to interpret that statute,
and it did so in the Lockman Case. If the law, so interpreted, is to be changed, that is a
legislative, not a judicial, function.
Relative to determination of matters of state policy Mr. Justice Frankfurter in the Hanke
opinion states:
Because there is lack of agreement as to the relevant factors and divergent interpretations
of their meaning, as well as differences in assessing what is the short and what is the long
view, the clash of fact and opinion should be resolved by the democratic process and not by
the judicial sword. [339 U.S. 470, 70 S.Ct. 777.]
In the White Cross Drug case this view was clearly presented by this court. In effect we
there gave solemn assurance that if any departure was to be made from the policy there
enunciated it must be by legislative act and would not come through judicial
reconsideration.
the policy there enunciated it must be by legislative act and would not come through judicial
reconsideration. In that opinion it was stated:
If the opponents of union security agreements wish to have them declared unlawful they
should address their demands to the legislature for a clear and unmistakable mandate and not
appeal to this court for such declaration under color of a law that was never intended to fulfill
that purpose. [66 Nev. 182, 207 P.2d 997.] This was reiterated in the opinion upon petition
for rehearing, the statement being quoted in full.
Here again we take notice that legislative action has, in fact, been taken: that at the 1951
session of our legislature sec. 10473 was amended (see Footnote 1 supra). As indicated earlier
that amendment will demand a redetermination of policy in the light of such legislation
should a case involving such policy arise in the future. We are not, therefore, so much
concerned here with the danger of prospective perpetuation of possible error as with the need
for retrospective correction of possible error. The potential evils in this regard are accordingly
lessened.
On the other hand, it is matter of common knowledge that since rendition of the White
Cross Drug case there has been widespread reliance by organized labor on the policy there
enunciated respecting peaceful picketing and we must assume that employers as well have
been guided thereby in their dealings with their employees. That the extent and manner of
labor's reliance may have been unwise, injurious and provocative of public ill will does not in
any wise relieve this court of its responsibility.
The United States Supreme Court in Minnesota Mining Company v. National Mining
Company, 3 Wall. 332, 18 L.Ed. 42, dealing with a request for reconsideration of an opinion
relating to law of real property, stated:
Legislatures may alter or change their laws, without injury, as they affect the future only,
but where courts vacillate and overrule their own decisions on the construction of statutes
affecting the title to real property, their decisions are retrospective and may affect titles
purchased on the faith of their stability.
vacillate and overrule their own decisions on the construction of statutes affecting the title to
real property, their decisions are retrospective and may affect titles purchased on the faith of
their stability. Doubtful questions on subjects of this nature, when once decided, should be
considered no longer doubtful or subject to change. Parties should not be encouraged to
speculate on a change of the law when the administrators of it are changed.
[Headnote 4]
The force as stare decisis of opinions by a divided court is discussed in Matthews v. Clark,
105 S.C. 13, 89 S.E. 471, 472, where it is stated:
It is well to clear up a misapprehension in the minds of the bar as to the force of a
decision of the court in cases in which the court is divided. A dissenting opinion shows that
the case has been thoroughly considered. The opinions of the majority govern. When that
question arises in future cases, the dissenting justice is as much bound by the decision of the
majority as is the justice who wrote the prevailing opinion. The dissenting opinion, within the
jurisdiction of the court, strengthens the authority of the case. Outside of the jurisdiction of
the court, where the decision is not binding but merely evidence as to what the law is, of
course the conflict of the witnesses weakens the force of the opinion.
To the same effect is Newton v. Mann, 111 Colo. 76, 137 P.2d 776, 147 A.L.R. 767.
[Headnotes 5, 6]
While we are not here concerned with property or contract rights, nevertheless we are
concerned with rules of conduct. To repudiate reliance upon our decision under the
circumstances facing us and retroactively to expose those who have placed faith in the
stability of our holding to claims of tort and perhaps, in the case of employers, to ex post
facto criminal liability would be to proclaim our decisions not reliable and to invite a general
lack of faith and confidence in our system of justice.
general lack of faith and confidence in our system of justice. Under the circumstances, these
considerations overwhelm any fear we may hold of earlier error or its consequences. The
balance falls in favor of stare decisis. The decision in the White Cross Drug case will not here
be reconsidered and remains controlling in this matter.
The action of the trial court is affirmed, with costs.
Badt, C. J. (Concurring):
I concur. Although I dissented from the original opinion and decision and from the opinion
and decision denying rehearing in the White Cross Drug case, the law as there enunciated by
the majority of the court has since been and is the law of this state. I must so consider it under
the doctrine of stare decisis so ably reviewed by Mr. Justice Merrill.
____________
68 Nev. 284, 284 (1951) Abel v. Lowry
JAMES F. ABEL, as Administrator of the Estate of ALBERT A. ABEL, Also Known as A.
A. ABEL, Deceased, Appellant, v. ALBERT M. LOWRY, Respondent.
No. 3656
May 7, 1951. 231 P.2d 191.
department No. 2.
Action by James F. Abel, as administrator of the estate of Albert A. Abel, also known as
A. A. Abel, deceased, against Albert M. Lowry to recover an undivided one-half interest in
notes, mortgages and deeds of trust executed by third persons to A. A. Abel or Albert M.
Lowry. From a judgment for defendant and an order denying plaintiff's motion for new trial,
plaintiff appealed. The Supreme Court, Badt, C. J., held that probate court had jurisdiction to
vacate its earlier order approving a compromise agreement awarding such notes and
mortgages owned by plaintiff's decedent and defendant as tenants in common to
defendant and that vacation of such order of approval was not abuse of discretion and left
compromise agreement without support and hence without legal effect.
68 Nev. 284, 285 (1951) Abel v. Lowry
earlier order approving a compromise agreement awarding such notes and mortgages owned
by plaintiff's decedent and defendant as tenants in common to defendant and that vacation of
such order of approval was not abuse of discretion and left compromise agreement without
support and hence without legal effect.
Judgment reversed and case remanded with instructions.
Gordon W. Rice, of Reno, for Appellant.
Ernest S. Brown, of Reno, for Respondent.
1. Judgment.
A motion filed by administrator in probate court to vacate an earlier order of probate court approving a
compromise agreement between administrator and third person as to ownership of property claimed by
third person as surviving joint tenant was a direct attack and not a collateral attack upon the order of
approval and probate court had jurisdiction to vacate order of approval on ground that it was entered
through mistake, inadvertence, surprise or excusable neglect. N.C.L.1929, sec. 8640; N.C.L.1931-1941
Supp., secs. 9882.198, 9882.319.
2. Judgment.
Remedial statute made applicable to probate court by statute and authorizing court to relieve a party or
his legal representative from a judgment, order or other proceeding taken against him through his mistake,
inadvertence, surprise or excusable neglect and to amend any proceeding in furtherance of justice by
correcting a mistake in any other respect should be liberally construed to carry out its purpose. N.C.L.1929,
sec. 8640; N.C.L.1931-1941 Supp., sec. 9882.319.
3. Executors and Administrators.
Where compromise agreement between administrator and business associate of decedent awarding to
estate $7,000 in government and municipal bonds found in safe-deposit box and to business associate
$30,000 in notes secured by mortgages and deeds of trust, payable to decedent or business associate,
naming them and naming the same parties in the disjunctive as mortgagees or beneficiaries, was entered
into and approved by probate court under mistaken belief that the notes, mortgages and deeds of trust were
held in joint tenancy, subsequent vacation of such order of approval by order of probate court was not
abuse of discretion. N.C.L.1929. sec. 8640; N.C.L.1931-1941 Supp., secs. 9882.198, 9882.319.
4. Judgment.
Vacation by probate court of earlier order approving compromise agreement between administrator and
third party as to ownership of property claimed by third party as surviving joint tenant
left compromise agreement without support and without such support agreement
had no legal effect. N.C.L.1931-1941 Supp., sec.
68 Nev. 284, 286 (1951) Abel v. Lowry
to ownership of property claimed by third party as surviving joint tenant left compromise agreement
without support and without such support agreement had no legal effect. N.C.L.1931-1941 Supp., sec.
9882.198.
An executor or administrator may compromise a claim against decedent's estate only under the advice of
the probate court. N.C.L.1931-1941 Supp., sec. 9882.198.
6. Joint Tenancy.
Notes payable to one or the other of two named payees and secured by mortgages or deeds of trust
naming the payees in the disjunctive as mortgagees or beneficiaries created a tenancy in common and not
a joint tenancy and an undivided one-half interest in notes and the security therefor vested in estate of
deceased payee.
7. Judgment.
Order of probate court approving compromise agreement by which $7,000 in government and municipal
bonds were awarded to decedent's estate and $30,000 in notes secured by mortgages and deeds of trust
belonging to decedent and another as tenants in common were awarded to surviving co-tenant showed
mistake and error on its face which probate court clearly had jurisdiction to correct by vacating the order of
approval. N.C.L.1929, sec. 8640; N.C.L.1931-1941 Supp., secs. 9882.198, 9882.319.
8. Costs.
Costs allowed successful appellant should not include any part of the cost of folios of district court briefs
included in but having no proper place in the bill of exceptions.
OPINION
1. Did the district court sitting in probate have jurisdiction to vacate a prior order
approving a compromise agreement entered into between the administrator and a third party
claiming ownership of certain notes and mortgages?
2. If it had such jurisdiction, what effect did such vacating order have upon the status of
the compromise agreement?
These questions arise out of a judgment of the district court in favor of the defendant in an
action brought by the administrator to recover possession of the notes and mortgages
involved.
68 Nev. 284, 287 (1951) Abel v. Lowry
and mortgages involved. The plaintiff's appeal, however, leads us first to a consideration of
the history of the probate proceedings. At the time of the death of the intestate there were in a
safe-deposit box, maintained jointly by the intestate and defendant,
1
approximately $7,000
government and municipal bearer bonds and $30,000 in notes secured by mortgages or deeds
of trust. He died May 22, 1946, and on February 21, 1947, his brother James F. Abel was
appointed administrator. The decedent and the respondent were associated in business, and
although respondent did not expend any of his own funds for these securities, the same were
acquired in a common or joint ownership by the two of them. Shortly after the death of
decedent and the appointment of the administrator, respondent took possession of the
contents of the safe-deposit box. Beginning in March, 1947, the administrator's attorney and
respondent's attorney had numerous conferences relative to the ownership of all of these
securities. During all of these conferences both attorneys believed that the notes and
mortgages belonged to the deceased and respondent as joint tenants with right of survivorship
and not as tenants in common, and that upon the death of A. A. Abel the said notes and
mortgages became the property of respondent as the surviving joint owner. On September 24,
1947, the parties executed a compromise agreement with reference to the ownership of all of
the securities found in the safe-deposit box. The agreement recited simply that whereas
respondent had in his possession the $7,000 government and municipal bonds (describing
them) and also had in his possession the $30,000 notes, mortgages and deeds of trust
(describing them) and Whereas a dispute has arisen between the first and second party as
to the ownership of the above items of property; and whereas they have agreed that the
bonds and the interest thereon as aforesaid are the property of the estate of A. A. Abel,
deceased, and the notes, mortgages and trust deeds aforesaid are the property of Albert
M.
____________________

1
Nothing in the record indicates the nature of any contract with or instructions to the bank with reference to
the safe-deposit box. During the oral argument, in answer to a question by one of the justices, it was stated that
neither party made any point of the nature of such contract, but that as a matter of fact both keys to the box were
found among the personal effects of the decedent.
68 Nev. 284, 288 (1951) Abel v. Lowry
the first and second party as to the ownership of the above items of property; and whereas
they have agreed that the bonds and the interest thereon as aforesaid are the property of the
estate of A. A. Abel, deceased, and the notes, mortgages and trust deeds aforesaid are the
property of Albert M. Lowry, it was agreed that the administrator should petition the court to
confirm the agreement and that both parties would use their best efforts to secure such order
of confirmation, and that upon receiving a certified copy of said order of court the
administrator would receive the $7,000 bonds and interest and would release Lowry from all
claims or demands of the estate growing out of any of the notes, mortgages or deeds of trust.
On November 13, 1947, the probate court, on petition and notice and after hearing,
confirmed the agreement, and respondent thereupon delivered to appellant the $7,000 bonds
and some $200 interest. On March 24, 1948, the administrator served notice upon
respondent's attorneys and upon the local attorneys for absent heirs, that he would on April 5,
1948, move for an order vacating and setting aside the court's order of November 13, 1947,
approving and ratifying the compromise agreement and for an order disapproving and
holding for naught said compromise agreement.
The motion to vacate the approval of the agreement was submitted on a written agreed
statement of facts reciting the conferences commencing in March, 1947, culminating in the
agreement of September 24, 1947, and the order approving same; the belief of the attorneys,
extending to a time subsequent to the court's approval of the agreement, that the notes,
mortgages and deeds of trust created a joint tenancy in James F. Abel and Albert M. Lowry;
that the administrator and his attorneys now believe that in fact and in law they were held
by the parties as tenants in common and that the estate was entitled to a half interest therein;
that the $7,000 bonds which had been delivered to the administrator by Lowry pursuant to the
agreement had been tendered back to Lowry, who refused to accept them and insisted that
he would stand upon the agreement and the court's approval thereof. The motion was
further supported by the affidavit of the administrator to the effect that the approval
order was made solely because of mistake, inadvertence, surprise or excusable neglect;
that the affiant and his attorney both thought that the notes had created a joint tenancy,
etc.; that copies of correspondence attached to the affidavit showed the attorney's advice
that they were so held; that it was not until after the order approving the agreement that
the local attorney for absent heirs advised that in his opinion the instruments created a
tenancy in common; that this was later confirmed in an opinion given by Reno counsel in
reliance upon the case of Newitt v. Dawe, 61 Nev. 472
68 Nev. 284, 289 (1951) Abel v. Lowry
tendered back to Lowry, who refused to accept them and insisted that he would stand upon
the agreement and the court's approval thereof. The motion was further supported by the
affidavit of the administrator to the effect that the approval order was made solely because of
mistake, inadvertence, surprise or excusable neglect; that the affiant and his attorney both
thought that the notes had created a joint tenancy, etc.; that copies of correspondence attached
to the affidavit showed the attorney's advice that they were so held; that it was not until after
the order approving the agreement that the local attorney for absent heirs advised that in his
opinion the instruments created a tenancy in common; that this was later confirmed in an
opinion given by Reno counsel in reliance upon the case of Newitt v. Dawe, 61 Nev. 472, 133
P.2d 918, 144 A.L.R. 1462; that the notes and mortgages were worth $30,000 and the estate
was entitled to one half thereof; that the administrator would never have signed the agreement
and would never have petitioned the court to approve the same, and verily believes that the
court would not have approved the same had the administrator or his attorneys known in fact
that said notes, mortgages and trust deeds were held as tenants in common, and that the heirs
of the intestate were entitled to one half of the value thereof; that the $7,000 government and
municipal bonds were likewise wrongfully taken from the safe-deposit box of the decedent
after the appointment of the administrator; that the agreement and the approving order were
therefore grossly and manifestly unjust, unfair and inequitable in that by virtue thereof the
heirs were deprived of approximately $15,000.
The notes referred to were ten in number and in varying amounts. Each was payable to A.
A. Abel or A. M. Lowry. Each was secured by mortgage or deed of trust. The mortgages ran
to A. A. Abel or A. M. Lowry as mortgagees. The deeds of trust named A. A. Abel or A.
M. Lowry as beneficiaries.
After the entry of the order approving the settlement agreement and after the local
attorney for absent heirs had called the administrator's attention to the case of Newitt v.
Dawe, 61 Nev. 472, 133 P.2d 91S, 144 A.L.R. 1462, in which this court on February 11,
1943, had decided that notes so payable created a tenancy in common and not a joint
tenancy, the administrator consulted independent counsel in Reno who advised definitely
that Newitt v. Dawe was controlling and that the notes, mortgages and deeds of trust
here in question created an ownership in common and not a joint tenancy and that under
their terms the estate was the owner of a half interest therein.
68 Nev. 284, 290 (1951) Abel v. Lowry
agreement and after the local attorney for absent heirs had called the administrator's attention
to the case of Newitt v. Dawe, 61 Nev. 472, 133 P.2d 918, 144 A.L.R. 1462, in which this
court on February 11, 1943, had decided that notes so payable created a tenancy in common
and not a joint tenancy, the administrator consulted independent counsel in Reno who advised
definitely that Newitt v. Dawe was controlling and that the notes, mortgages and deeds of
trust here in question created an ownership in common and not a joint tenancy and that under
their terms the estate was the owner of a half interest therein. Counsel for the administrator
agreed that this advice was correct and that he would attempt to secure an order vacating the
order approving the settlement agreement and setting aside such agreement. All of the
correspondence was introduced in evidence and appellant's brief insists in many places that
the basis for the settlement agreement and the court's approval thereof was the belief of
appellant and his attorney and the court that the instruments had created a joint tenancy and
that they had never seen the instruments themselves until after the order approving the
settlement agreement.
Respondent's attorney insisted throughout the hearing of the motion to vacate the order
approving the agreement and to set aside the agreement, that the probate court was without
jurisdiction. The court's formal order of June 28, 1948, ordered that its former order of
November 13, 1947, approving the agreement be and the same is hereby set aside, annulled
and held for naught, and the parties are restored to the same position and status as though said
order had never been made or entered herein. It did not grant the motion to set aside the
agreement itself.
The record shows that on November 6, 1948, the administrator filed a complaint entitled
in the estate matter, alleging that Albert M. Lowry had in his possession the ten secured notes
and refused to deliver them to the administrator, and praying that Lowry be cited to appear
and that he be required to deliver the notes, mortgages and deeds of trust to
"complainant as administrator."
68 Nev. 284, 291 (1951) Abel v. Lowry
to appear and that he be required to deliver the notes, mortgages and deeds of trust to
complainant as administrator. Citation was issued and a hearing had and a minute order
made concluding as follows: The court being fully advised in the premises, ordered the
application be denied; that the documents be held in status quo until the administrator has the
opportunity to file an action, in the proper court, to determine title of the disputed property.
The present action was then filed, praying for the establishment of the estate's half interest
in the notes and mortgages. Respondent's defenses comprised, first, a general denial,
secondly, an affirmative defense claiming ownership as a surviving joint tenant and, third, a
further affirmative defense claiming title under the compromise agreement. Appellant's reply
to the second affirmative defense pleaded the vacating order. The trial court first properly
struck the first affirmative defense under the holding of this court in Newitt v. Dawe, 61 Nev.
472, 133 P.2d 918, 144 A.L.R. 1462, but it held that the defendant could properly assert as a
special affirmative defense his rights under the compromise agreement whereunder he had
become the owner of the notes and mortgages in question. In his written opinion the learned
district judge properly held that his prior vacating order left the agreement between plaintiff
and defendant in the same status as before approval, yet he gave it full effective status by
saying: The defendant raised the compromise agreement as a defense, thus placing upon
plaintiff the burden of pleading and proving the well recognized grounds in equity to compel
the setting aside of the compromise agreement. Plaintiff sought to do this in his reply by
standing on the bare allegation that the agreement was consummated and entered into because
of mutual mistake, lack of consideration, and was manifestly unjust, unfair and inequitable.
The burden of proving these allegations, if properly pleaded, rests with the plaintiff [,t]he
existence of the compromise agreement being admitted."
68 Nev. 284, 292 (1951) Abel v. Lowry
admitted. The learned district judge then discusses the evidence and finds that there was no
mutual mistake and that if there was a mistake, it was one of law and that in the absence of
fraud it was not a ground for avoiding the compromise agreement. The conclusion of the
learned judge is that the compromise agreement between the parties is a binding and valid
agreement settling the ownership of the notes, mortgages and trust deeds sought by the
complaint as being the property of the defendant.
The presiding judge who entered such findings and judgment from which this appeal is
taken was the same person as the probate judge who made the first order approving the
compromise and who made the second order vacating such approving order. We are
compelled to the conclusion that the learned judge, correct in his conclusion that the probate
court had jurisdiction to entertain the motion to vacate the approving order, and supported by
the evidence in concluding that the approving order had been made by inadvertence and
mistake and without a showing that it was for the best interests of the estate, that it, without
adequate consideration, had deprived the estate of approximately $15,000 in value and that
the compromise agreement would never have been made but for the mistaken belief of
counsel that the notes and mortgages were held in joint tenancy, and correct in his conclusion
that his vacating order had left the compromise agreement in the status it occupied before the
approving order, eventually fell into error in nonetheless treating the compromise agreement
as a valid subsisting agreement. In the trial of the action itself he had correctly overruled the
defendant's objections to plaintiff's proof that the probate court had vacated the order
approving the agreement. The grounds of the objection were that the motion for the vacating
order had been addressed to a court without jurisdiction to entertain an application to set
aside a compromise settlement contract, and furthermore, it amounts to the taking of property
of the defendant without due process of law."
68 Nev. 284, 293 (1951) Abel v. Lowry
without due process of law. The court's reason for overruling the objection is not stated. It
was apparently satisfied at the time that the vacating order was within the probate court's
jurisdiction and that, being so, was not subject to collateral attack in the administrator's
subsequent action to recover the notes and mortgages. See Wiggin v. Superior Court, 68 Cal.
398, 9 Pac. 646; Dockery v. Central Arizona L. & P. Co., 45 Ariz. 434, 45 P.2d 656.
However that may be, we are in accord with the theory of the trial court's rulings up to the
point that the court with one final stroke destroyed the result of those rulings and restored the
compromise agreement to full, legal status, force and effect.
It is earnestly contended by respondent that the judgment must be affirmed for the reason
that the probate court was without jurisdiction to make its vacating order of July 9, 1948, (1)
because the order of November 13, 1947, approving the compromise agreement, was res
judicata, subject only to reversal on appeal; (2) because respondent's rights had become
vested through the carrying out of the compromise agreement thus approved, and that the
vacating order purported to affect these rights, in a probate proceeding, to which he was not
privy; (3) because, even though the vacating order purported only to set aside the approval
order and not to set aside the compromise agreement itself, its effect (if valid) was to leave
the compromise agreement without court approval and thus without legal status, and therefore
to destroy the rights vested under it; (4) that, in so acting, the probate court attempted to
exercise powers vested only in a court of general equity jurisdiction.
[Headnotes 1, 2]
The argument is not without appeal, but has been repeatedly disposed of by the courts
contrary to respondent's contentions. The motion for the vacating order was a direct attack
upon the approval order. In Re Layton's Estate, Cal.App., 6 P.2d 305. Section 8640 N.C.L.
1929, provides that the court may * * * relieve a party or his legal representatives from a
judgment, order, or other proceeding taken against him through his mistake,
inadvertence, surprise or excusable neglect."
68 Nev. 284, 294 (1951) Abel v. Lowry
or his legal representatives from a judgment, order, or other proceeding taken against him
through his mistake, inadvertence, surprise or excusable neglect. It also provides that the
court may, in furtherance of justice, * * * amend any * * * proceedings by * * * correcting a
mistake * * * in any other respect and may, for good cause and after notice, allow * * * an
amendment to any * * * proceeding in other particulars. This court has repeatedly held that
such remedial statute should be liberally construed to carry out its purpose. It is made
applicable to the probate court by the provisions of sec. 9882.319 N.C.L., 1931-1941 Supp.
Its provisions coincide in all material respects here in question with sec. 473 of the California
Code of Civil Procedure. In an early case in that state the Supreme Court of California
implied that a decree of distribution might be set aside by the probate court within the time
specified in sec. 473 C.C.P., although the court was without jurisdiction to set aside its decree
after that period. Estate of Hudson, 63 Cal. 454. The same court, In Re Pedrorena, 80 Cal.
144, 22 Pac. 71, against the claim that the court was without jurisdiction to set aside its
decree of distribution, held definitely that it had such power when justice required that the
motion to vacate the decree should be granted. In the same court the jurisdiction of the
probate court was again attacked with reference to an order vacating an order and decree
settling the final account and distributing the estate. In Re Hickey's Estate, 129 Cal. 14, 61
Pac. 475. The court there held that the probate court clearly had jurisdiction to make the
order, under 473, C.C.P. In Re Ross' Estate, 140 Cal. 282, 73 Pac. 976, the Supreme Court
of California approved an order vacating a decree of distribution on the petition of a minor
heir not named in the will. The original decree had, under the terms of the will, distributed a
dwelling house to a devisee and the effect of the vacating order was to subject that piece of
property to the payment by the original distributee of his proportionate share of the estate to
the minor heir.
68 Nev. 284, 295 (1951) Abel v. Lowry
heir. The same court in Levy v. Superior Court, 139 Cal. 590, 73 Pac. 417, 418, reviewed the
jurisdiction of the probate court to make an order vacating a prior order setting apart a
homestead to the widow of the decedent. It was contended that the homestead order was final,
that in making it the court exhausted its jurisdiction and that it had no power to review and
vacate its own prior adjudication. The court held that, under sec. 473 C.C.P. made applicable
to estate matters by sec. 1713 of the California Civil Code, the probate court had jurisdiction.
As in the instant case, it was contended that after setting apart of the homestead it no longer
belonged to the assets of the estate, but the court held that this could be so only while the
homestead order stood as an existing valid order and did not prevent the reversing or the
setting aside of the order either upon appeal or upon any other authorized proceeding. In the
more recent case of Moreland's Estate, 49 Cal.App.2d 484, 121 P.2d 867, it was said that
Levy v. Superior Court expressly confirmed the jurisdiction to grant relief from a probate
order under sec. 473 Cal. C.C.P., and upheld an order vacating the confirmation of a probate
sale. See other cases therein cited. Bacon v. Bacon, 150 Cal. 477, 89 Pac. 317, recognizing
that a decree of distribution was not subject to collateral attack, approved Pedrorena's Estate,
supra, holding the vacating of the decree under sec. 473 C.C.P. to be a direct attack, and
emphasized the right of direct attack in the case of mistake, either of the court or of the
injured party, as well as by reason of fraud. The California Court of Appeal, In Re Johnson, 7
Cal.App. 436, 94 Pac. 592, considered the jurisdiction of the probate court to set aside a sale
for inadequacy of consideration. The court said that the jurisdiction to grant such relief is
clearly shown in Estate of Ross, supra, under the provisions of sec. 473 C.C.P.
2
See, also,
Pacheco v. Delgardo, 46 Ariz. 401, 52 P.2d 479; 1 Bancroft's Probate Practice, 2d Ed., p.
____________________

2
Respondent seeks to distinguish this case because of the court's reference to the fact that in any event the
executrix had for good cause rescinded the original agreement to sell, and that even with-
68 Nev. 284, 296 (1951) Abel v. Lowry
gardo, 46 Ariz. 401, 52 P.2d 479; 1 Bancroft's Probate Practice, 2d Ed., p. 176, n. 1.
We see no distinction in principle between the vacating orders in the foregoing cases and
the vacating order here in question.
[Headnotes 3-5]
The jurisdiction being established, it is clear that under the facts presented to the probate
court, it was not guilty of any abuse of discretion in vacating the order approving the
compromise agreement. The vacating of the approval order left the compromise agreement
without support. Without such approval, it had no legal effect. In Lucich v. Medin, 3 Nev. 93,
109, this court, by Mr. Chief Justice Beatty, recognized the right to compromise a suit against
the estate with the approval of the probate court, and added: But the executor, without the
advice of the court, had no right to make such a compromise. Section 203 of the Probate
Act, there under consideration, empowering the court to authorize a compromise, is in all
material respects the same as our present sec. 9882.198 N.C.L., 1931-1941 Supp.
3
Citing
Lucich v. Medin, supra, an annotation on the power of an executor or administrator to
compromise a claim against the estate, S5 A.L.R. 199, 202, states that such compromise
may be made in Nevada "only under the advice of the probate court."
____________________
out an order vacating the former confirmation of the sale, the purchaser was shown to have no interest in the
property. This circumstance was simply recited as an additional ground for dismissing the writ of certiorari, the
court having previously stated that the only question presented for review related to the jurisdiction of the
probate court to enter the vacating order.

3
If a debtor of the decedent is unable to pay all his debts the executor or administrator, with the approval of
the court, may give him a discharge upon such terms as may appear to the court to be for the best interest of the
estate. A compromise may also be authorized by the court when it appears to be just and for the best interest of
the estate. The court may also authorize the executor or administrator, on such terms and conditions as may be
approved by it, to extend or renew, or in any manner modify the terms of, any obligation owing to or running in
favor of the decedent or his estate. To obtain such approval or authorization the executor or administrator shall
file a verified petition with the clerk showing the advantage of the settlement, compromise, extension, renewal or
modification * * *
68 Nev. 284, 297 (1951) Abel v. Lowry
a claim against the estate, 85 A.L.R. 199, 202, states that such compromise may be made in
Nevada only under the advice of the probate court. With this conclusion we are in accord.
[Headnote 6]
Our conclusions eliminate the defendant's second affirmative defense setting up the
compromise agreement. The only remaining issue, raised by the general denial, is the issue of
the ownership of the notes, mortgages and deeds of trust, as to which issue Newitt v. Dawe is
controlling. An undivided one-half interest therein is vested in the estate of the intestate. The
present appeal does not submit to us any question for determination concerning the ownership
of the $7,000 government and municipal bonds.
[Headnote 7]
Respondent relies upon certain statements made by the court in Lucich v. Medin, 3 Nev.
93, indicating the right of the court to correct its own errors but not to reopen the proof as to
accounts allowed, except where the account showed error on its face and if the mistake or
error is only to be shown by going anew into the proof, this should be held as res adjudicata
and not liable to be opened to new testimony. This statement must be considered in
connection with the facts of that case, which are very different from the one at bar. Even if
applicable, we should be inclined to hold that the order approving the so-called compromise
agreement shows mistake and error on its face. It is true that the agreement recites that there
was a dispute, but the agreement shows on its face that there was no dispute. It describes
$30,000 worth of notes and mortgages in which, under the law of this state, the A. A. Abel
estate owned a half interest, and then proceeds to give that half interest to respondent. The
consideration for this sacrifice or waiver of $15,000 was the respondent's possible claim to an
interest in, or to a part of, or possibly to the entire ownership of the $7,000 bonds.
68 Nev. 284, 298 (1951) Abel v. Lowry
[Headnote 8]
The voluminous briefs of counsel discuss many other propositions of law, but in view of
our conclusions we do not feel called upon to discuss them. The judgment of the district court
is hereby reversed, and the case is remanded with instructions to enter judgment for the
plaintiff as administrator establishing his undivided one-half interest in the notes, mortgages
and deeds of trust in question. Appellant will be allowed his costs, which will not however
include any part of 438 folios of district court briefs included in but which have no proper
place in the bill of exceptions.
____________
68 Nev. 298, 298 (1951) Con. Coppermines v. State
CONSOLIDATED COPPERMINES CORPORATION, A Corporation, Appellant, v. STATE
OF NEVADA, THE COUNTY OF WHITE PINE, and THE NEVADA TAX
COMMISSION, Respondents.
No. 3625
May 11, 1951. 231 P.2d 197.
Appeal from the Seventh Judicial District Court, White Pine County; Harry M. Watson,
Judge.
Action by Consolidated Coppermines Corporation, a corporation, against the State of
Nevada, the County of White Pine, and the Nevada Tax Commission, to recover taxes paid
under protest. The Seventh Judicial District Court dismissed plaintiff's complaint, and
plaintiff appealed. The Supreme Court, Merrill, J., held that amount of premium payments
made to plaintiff, under government plan for stimulation of copper production in addition to
amount received commercially from sale of ore, was part of price for ore and was subject to
ad valorem tax placed on proceeds of mine.
Judgment affirmed with costs.
Woodburn, Forman and Woodburn, of Reno, for Appellant.
W. T. Mathews, Attorney General, Alan Bible, George P. Annand, Robert L. McDonald,
Thomas A. Foley, Deputy Attorneys General, of Carson City, and C. J. McFadden, of Ely,
Attorneys for Respondents.
Taxation.
Where plan of federal government sought to stimulate production of copper by finding price scale which
would make marginal production of copper feasible and original plan was to buy overquota copper at
premium price directly from mine, but sales through commercial channels and payment of difference
between ceiling price and premium price was substituted for purposes of convenience, amount of premium
payments made to producers in addition to sums received commercially for ore was part of price paid for
ore and not independent income and was subject to ad valorem tax placed on proceeds of mine.
OPINION
This is an appeal from judgment of the trial court dismissing the complaint of appellant in
an action brought by it to recover the sum of $18,175.83 taxes paid under protest. The sole
question involved in the appeal is whether government premium payments made to appellant
in addition to sums received by it for sale of its ore, can properly be regarded as mine
proceeds and therefore subject to tax under the revenue laws of this state. The appeal comes
to us upon a stipulated statement of facts.
During the first six months of 1945 appellant extracted from its mining properties in White
Pine County, Nevada, 1,041,759 tons of ore containing gold, silver and copper. From this ore,
after smelting and refining, appellant received through sales in ordinary commercial channels
the sum of $2,510,834.05. This sum plus the sum of $606.71 received in royalties, was duly
reported to the Nevada Tax Commission as gross yield of the mine for the period in
question.
mine for the period in question. Appellant also reported to the commission as proper
deductions from its gross yield the sum of $2,712,057.65, thus making return that its
deductions exceeded its gross yield and that it had accordingly received no net proceeds from
its mine during this period for which tax might be imposed.
During the period in question a ceiling price of 12 cents per pound of copper had been
imposed by the Federal Office of Price Administration and the proceeds of appellant's sales of
copper had been limited accordingly.
In addition to the gross yield reported by it, appellant had also received for its production
during this period the sum of $862,162.75 paid to it by Metals Reserve Company, a statutory
subsidiary of Reconstruction Finance Corporation. These payments had been made pursuant
to the terms of a federal program inaugurated jointly by the War Production Board and the
Office of Price Administration and known as Premium Price Plan for Copper, Lead and
Zinc. Under the plan a quota (in the main based upon 1941 copper production with
consideration given to cost of production) was fixed by Metals Reserve Company for each
copper producing mine. For all production in excess of the quota Metals Reserve Company
paid the sum of 5 cents per pound. The sum received by appellant from Metals Reserve
Company therefore reflected the sum of 5 cents per pound for overquota copper produced by
it during this period.
The tax commission insisted that these payments be included as part of the mine's gross
yield and upon such addition levied its tax of $18,175.83. This amount was paid by appellant
under written protest and this action was duly brought for its recovery.
There is no dispute as to the nature of the tax as provided by our revenue act. It is
recognized by all parties that the tax is an ad valorem tax rather than an income tax or
occupation license; that the tax is not upon the mine itself nor upon the mining enterprise but
is solely upon the proceeds of the mine.
upon the proceeds of the mine. The dispute before us is as to the character of the sums
provided by Metals Reserve Company. It is contended by respondents that these sums
constitute mine proceeds. It is contended by appellant that they do not. Authority upon the
proposition is limited to decisions of the courts of two western states, Montana and Utah. The
authority is cleanly divided, Montana supporting the position of appellant and Utah that of
respondents. In this opinion we follow the views of the Utah court.
In support of its position appellant points out that the net proceeds tax is a tax upon the
value of ore or its product; that the sale price is recognized as the primary measuring rod in
determination of value; that the sales here involved were made through ordinary commercial
channels and the price received was 12 cents a pound; that no sales were made to Metals
Reserve Company; that the premium payments, accordingly, came from a source entirely
independent of the sale itself. Appellant therefore concludes that the premium payments here
involved had no relation to the value of the ore and were not part of any sale price; that while
they may have constituted income of the enterprise, this must be recognized as a factor
entirely apart from the value of the proceeds themselves.
Klies v. Linnane, 117 Mont. 59, 156 P.2d 183, 185, supports and illustrates appellant's
position. There it is stated:
Production not otherwise practicable may artificially be made so, either by increasing the
price of the product, or by rewarding the production otherwise, as by subsidy or bonus
payment. An essential difference between the two methods is that a direct price increase
ordinarily not only rewards and thus encourages additional production, but also makes more
profitable the production which would have existed without it; on the other hand, the subsidy
or bonus method can more practicably be limited in application to the additional production.
Either method would tend to increase the production of strategic metals for war purposes by
making profitable an enterprise which otherwise could not pay its way, and, therefore, could
not operate. Both methods increase the proceeds and therefore the value of the enterprise by
making it profitable, but only the price rise method increases the value of the product. Thus
they are similar only in increasing the income from, and the value of, the enterprise.
* * * But the tax upon the net proceeds of mines is not based upon the value of the
enterprise, nor upon all possible income therefrom. It is based only upon the net value of the
ores produced. Income in addition to that received as the net value of the product may
perhaps be taxable as income, but it is clearly not taxable as net proceeds of mines' * * *.
* * * The value, however fixed, is the price paid and received for the metal, and other
rewards, incentives or incidental income are not part of that value; they are therefore not part
of the tax base.
For an independent analysis of the character of the premium payments we turn to the plan
itself and to the circumstances and conditions which determined its ultimate form. See:
Seventy-ninth Congress, Second Session, Senate Subcommittee Print Number 8, Premium
Price Plan for Copper, Lead and Zinc; Its Administration With Particular Regard to Small and
Marginal Mines (which bulletin forms a part of the stipulated facts in this case). Page
references following are to pages of this bulletin.
Following the outbreak of war in Europe, American metal markets were unstable, with
sharply fluctuating prices. Copper advanced from 10 1/2 cents in July, 1940, to 12 cents in
September. In April, 1941, a 12-cent ceiling was fixed. Military requirements were growing
steadily and the necessity for maximum expansion of domestic production was indicated.
Increased production automatically resulted in rapidly increasing costs as it became necessary
to resort to lower-grade ores and more costly mining.
more costly mining. By the end of the year it had become clear that domestic production
could not be increased to the necessary extent without establishing price scales that would
make profitable the mining of marginal ores. (Page 42.)
To this end various plans received consideration by federal stabilization and production
officials and some were actually placed in temporary operation. Alternative proposals
included a general raising of the 12-cent ceiling and direct government purchase at a price of
one cent plus out-of-pocket costs. The latter method was actually applied for a short period in
the case of certain Michigan mines. General ceiling raises, however, were rejected on the
basis of experience gained during World War I when such practices had resulted in copper
reaching a level of 26 cents a pound, almost double the 1914 price. A two-price plan was
first proposed August 4, 1941.
With the entry of the United States into war following the attack on Pearl Harbor, the
Office of Price Administration was ready to accept the two-price system applicable to lead
and zinc. Copper was not at first included, the feeling apparently being that the cost-plus
arrangement was adequate to meet the circumstances. The original plan for lead and zinc
provided for government purchase of overquota production under a differential price
arrangement. This was to be accomplished by having Metals Reserve Company purchase all
incremental production and resell it at the ceiling price, absorbing the loss.
In January, 1942, copper was included in the plan. Federal Loan Administrator Jesse Jones
advised O.P.A. under date of January 12, 1942, You are advised that, in accordance with
your suggestion, Metals Reserve Company will, at your request, for a period of 2 1/2 years
from February 1, 1942, pay * * * 17 cents per pound, Connecticut Valley, for copper, for
increases above 1941 production governed by quotas to be fixed by you with our approval.
* * * Any metals so acquired by Metals Reserve Company which are not used for or by the
Government will be subject to your allocation at the ceiling price fixed by the Price
Administrator * * *."
Reserve Company which are not used for or by the Government will be subject to your
allocation at the ceiling price fixed by the Price Administrator * * *. (Page 44.) On January
13 the program was explained to the public through a press release which contained this
statement: All the overquota output acquired by the Metals Reserve Company will be used
for, or by, the Government or will be sold, subject to Government allocation, at the regular
Office of Price Administration ceiling prices. All quota production must, of course, be sold
by producers at or below the Office of Price Administration ceiling prices. Hence the
premium-price program to stimulate additional production will not lead to higher prices to the
consumer. (Page 217.)
By February 1, however, details of the plan still remained to be worked out and the feature
of direct government purchase, therefore, was not yet feasible. To avoid delay in the plan's
operation, arrangements were made to proceed temporarily without application of that
feature. A press release advised: Further details of this plan will be announced in due course.
In the meantime all producers should continue to sell their output through regular channels in
the ordinary way, but should keep all data covering production, sales, and settlements so as to
be in a position to make out the affidavit which will be required of them. If, at any time, any
producer has thus sold his excess output at ordinary market prices, he will not thereby be
deprived of the benefits of this arrangement, since in such cases an equivalent quantity of
material will be eligible for sale, at the higher prices, from subsequent deliveries. (Page
218.)
Up to this date it was apparent that the plan contemplated actual sale to the government of
the overquota output at the higher or premium price. Sale of overquota output through regular
channels was merely a stopgap procedure adopted to permit immediate operation of the plan.
On February 9, 1942, the terms of the plan itself were announced and for the first time it
was indicated that sales of overquota output were to be made through commercial
channels as a regular feature of the plan.
announced and for the first time it was indicated that sales of overquota output were to be
made through commercial channels as a regular feature of the plan. It can only be concluded
that in the interests of time and convenience, an unnecessary procedural change was regarded
as unwise. The statement of the plan included the following language: premium prices of 17
cents for copper * * * will be paid for a period of 2 1/2 years beginning February 1, 1942
* * *. The purpose of the plan and the reason for its necessity were clearly stated: The only
purpose of the premium-price plan is to compensate for extra costs involved in bringing out
additional metal output. (Page 220.)
It is notable that the term price is used consistently throughout government releases and
correspondence on the subject. The government was seeking a price scale which would
make profitable the mining of marginal ores; the 17-cent total payment was a premium
price; the plan was a two-price plan; the method or technique utilized was differential
pricing.
Upon consideration of this factual background we find the conclusion inescapable that the
premium payments made by Metals Reserve Company were in character a part of the price
paid for the ore produced and did not constitute an incentive reward unrelated to price or
value.
This is supported by the fact that under the various alternative plans considered and
ultimately rejected there could have been no question but that the sum received was the sale
price. For example, had the government accomplished its end by a general raising of the price
ceiling there would, in lieu of the premium payment here involved, have been a higher price
through ordinary commercial channels. Had the government continued with the cost-plus
arrangement applied to the Michigan mines there would have been no question but that the
sums paid were the sale price of the ore itself. Under the premium price plan itself, as
originally conceived and announced with direct government purchase of overquota
production, there could have been no question but that the premium was part of the price
paid.
purchase of overquota production, there could have been no question but that the premium
was part of the price paid. Even without the feature of direct government purchase the
government clearly regarded the 17 cents, being the sum of the ceiling price and the premium
payment, as itself constituting a price: the premium price from which the plan derived its
name.
It should be noted as well that under the 12-cent ceiling there was no free and open market
in which the true value of the product could be ascertained. The sale price was artificially
fixed and artificially supplemented. Had it been permitted to rise, even under attempts at
control, it may well have risen to the World War I price of 26 cents. The premium payment,
in the light of the existing ceiling, cannot then be said to have been a subsidy over and above
the actual value of the mine proceeds. It was, rather, a partial restoration to the producer of
the value of his product lost to him by imposition of the ceiling.
In summation, then, the circumstances of our war economy and the necessities of war
production demanded additional production which could not be brought out without the
incurring of extra costs by the producer. Such production therefore necessitated the making of
extra-cost compensation to the producer in addition to the 12 cents per pound. Can it
reasonably be said that the character of such compensation varied as alternative methods or
techniques were employed by the government in its experimental efforts to find the program
most generally satisfactory? If so, it must also be said that the value of the mine product
varied accordingly, dependent not on those economic factors which would ordinarily affect it;
dependent not on the extent of compensation received nor the considerations which prompted
such compensation; but rather dependent entirely upon administrative method in the
providing of such compensation. In our view such a proposition cannot be supported as
reasonable.
In our reasoning and analysis we therefore follow the views of the Utah Supreme Court.
views of the Utah Supreme Court. Combined Metals Reduction Company v. State Tax
Commission, 111 Utah 156, 176 P.2d 614; United States Smelting, Refining and Milling
Company v. Haynes, 111 Utah 172, 176 P.2d 622; Combined Metals Reduction Company v.
Tooele County, 111 Utah 188, 176 P.2d 630; Kennecott Copper Corporation v. State Tax
Commission, Utah, 212 P.2d 187. The premium payments here involved are held to be mine
proceeds and accordingly subject to tax.
The judgment of the trial court is affirmed with costs.
____________
68 Nev. 307, 307 (1951) Teacher Bldg. Co. v. Las Vegas
TEACHER BUILDING COMPANY, a Corporation, Appellant, v. THE CITY OF LAS
VEGAS, NEVADA, a Municipal Corporation; E. W. CRAGIN, Mayor of said City of Las
Vegas, Nevada; REED WHIPPLE, ROBERT MOORE, WILLIAM PECCOLE, WENDELL
BUNKER, and E. W. CRAGIN, City Commissioners of the City of Las Vegas; and GUS
KLEIN and MARTHA KLEIN, his Wife, Respondents.
No. 3624
May 23, 1951. 232 P.2d 119.
Appeal from Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
department No. 2.
Action by Teacher Building Company, a corporation, against the City of Las Vegas,
Nevada, a municipal corporation, and others, to enjoin respondents from vacating a portion of
a certain street. From a judgment for defendants after the sustaining, without leave to amend,
of defendants' demurrer to plaintiff's second amended complaint, plaintiff appealed. The
Supreme Court, Eather, J., held that complaint alleging that city was planning to vacate 30
feet of street 80 feet in width on which plaintiff was an abutting property owner, that part of
street to be vacated would revest in defendant property owners as abutting property owners
on side of street vacated, that neither public necessity, interest or convenience required
abandonment of portion of street, that public would derive no benefit from vacation of
street and that public would be materially injured thereby, stated cause of action for
injunctive relief.
property owners as abutting property owners on side of street vacated, that neither public
necessity, interest or convenience required abandonment of portion of street, that public
would derive no benefit from vacation of street and that public would be materially injured
thereby, stated cause of action for injunctive relief.
Judgment reversed and case remanded with directions.
Jones, Wiener, Jones & Zenoff, all of Las Vegas, for Appellant.
Howard W. Cannon, of Las Vegas, for Respondents, except Gus Klein and Martha Klein.
Complaint alleging that plaintiff was informed that city and individual defendants entered into agreement
whereby individual defendants agreed to convey certain realty to city necessary for purpose of
reconstructing a boulevard, and that in consideration therefor city agreed to vacate 30-foot width of street
80 feet in width on which individual defendants were abutting property owners, that vacated portion of
street would revest in individual defendants to damage of plaintiff who owned property on opposite side of
street, that taking was an unauthorized private appropriation and that plaintiff would suffer special injury,
stated cause of action against city and individual defendants for injunctive relief.
So long as a street is a street, it is held by city in trust for public, and cannot be lawfully appropriated to a
mere private use, and, so long as it is a street, an abutting property holder may invoke equitable relief to
prevent its being devoted to private purposes.
3. Highways; Mandamus.
Rights with respect to use of highways may in a proper case be protected by injunction or enforced by
mandamus and injunction is also available, to prevent unauthorized, unlawful, or improper uses or acts
which would cause them special or peculiar injury.
4. Highways; Municipal Corporations.
While question of necessity for closing a street or highway may belong exclusively to legislative
department of government, question of public purpose or use remains subject to court review, and in such
cases court will permit defendants to make issue and present evidence in support of it, unless it is manifest
from pleadings and proceedings that such closing is for public interest. N.C.L.1929, sec. 9156;
N.C.L.1931-1941 Supp., sec. 5063.29.
OPINION
This action was brought to enjoin the respondents from vacating a portion of a certain
street in the City of Las Vegas.
A demurrer to this complaint was interposed upon the grounds that the complaint did not
state facts sufficient to constitute a cause of action.
The lower court sustained respondents' general demurrer to appellant's second amended
complaint and without leave to amend.
The appeal is taken from the judgment entered in favor of defendants after the sustaining,
without leave to amend, of defendants' demurrer to plaintiff's second amended complaint.
The parties stipulated to waive oral argument and to submit the appeal on the briefs, and it
was so ordered. For the purpose of clarity, appellant will be referred to as the plaintiff and
respondents as defendants.
The amended complaint, which will hereinafter be referred to as the complaint, alleges that
the plaintiff is a corporation duly organized and existing under and by virtue of the laws of
the State of Nevada, with its principal place of business in Las Vegas, county of Clark, State
of Nevada; That the City of Las Vegas is a municipal corporation organized and existing
under and by virtue of a certain act of the legislature of the State of Nevada, approved March
16, 1911; that the defendants, Pat Clark, R. T. Baskin, Reed Whipple, Robert Moore and E.
W. Cragin, are the duly elected, qualified and acting city commissioners of the City of Las
Vegas, and constitute the board of commissioners of said city; that E. W. Cragin is the duly
elected, qualified and acting mayor of said city; that the defendants Gus Klein and Martha
Klein are husband and wife, and residents of the City of Las Vegas, being the owners of
certain property in the City of Las Vegas, being more particularly described as a portion of
Lot 5 of the South Addition to the City of Las Vegas, Nevada.
the South Addition to the City of Las Vegas, Nevada.
That the plaintiff is and has been the owner in fee and entitled to the possession of certain
real property situated in the City of Las Vegas, described as Lots Q R and S of the South
Addition to the City of Las Vegas, save and except a portion of Lot S; that said Lots Q R and
S now have a frontage of approximately 440 feet on the east side of Main Street, which Main
Street is now designated as A Street, said frontage running north and south from the
northerly line of Charleston Boulevard and is 160 feet deep, running in a westerly direction;
that said Main Street or A Street, as it is now designated, is a public street in the City of Las
Vegas, duly dedicated for the public use and convenience, and is of the approximate width of
80 feet; that said street runs north and south, and has been used as a public street and for the
public use and convenience for more than the last fifteen years; that pursuant to the
provisions of the charter of the City of Las Vegas, said city is authorized to construct,
improve and maintain city streets and avenues; that pursuant to such authority, it has been
determined by the City of Las Vegas to reconstruct Charleston Boulevard, a public street in
the City of Las Vegas, which runs east and west in said city, and at approximate right angles
to Main Street or A Street, at the point where the property in controversy is located.
That pursuant to the authority vested in the city, said city heretofore condemned certain
land belonging to the plaintiff herein, being a portion of Lot S, which portion of Lot S ran
parallel to Charleston Boulevard along the northerly boundary of said Charleston Boulevard;
that said defendant City of Las Vegas, is now in possession of that portion of Lot S, which
was to be used to aid in the construction of Charleston Boulevard.
That the plaintiff is informed and believes that the defendant, City of Las Vegas, and
defendants Gus Klein and Martha Klein, husband and wife, on or about May 24, 194S,
entered into an agreement by the terms of which the said Gus Klein and Martha Klein
agreed to convey to the City of Las Vegas a portion of their land, described as a portion of
Block 5 of the South Addition to the City of Las Vegas, which constituted a strip of land
along the south boundary of said Block 5, running westerly 40 feet from South Main
Street, approximately 11.30 feet in depth, running northerly, and which strip of land is
necessary for the purpose of reconstructing said Charleston Boulevard, provided that in
consideration therefor, the City of Las Vegas would vacate a portion of "A" Street, as a
public street within the City of Las Vegas, which portion to be vacated abutted the real
property known as that portion of Block 5 adjoining the western line of Block 5, and being
the easterly line of said "A" Street; that pursuant to said agreement the defendant, City of
Las Vegas, on the 9th day of December, 194S, by and through the defendants, E. W.
Cragin, as mayor, Pat Clark, R. T. Baskin, Reed Whipple, Robert Moore and E. W. Cragin
constituting the board of city commissioners of the City of Las Vegas, made and entered
an order vacating a portion of said "A" Street, a copy of which order is hereinafter set
forth:
24, 1948, entered into an agreement by the terms of which the said Gus Klein and Martha
Klein agreed to convey to the City of Las Vegas a portion of their land, described as a portion
of Block 5 of the South Addition to the City of Las Vegas, which constituted a strip of land
along the south boundary of said Block 5, running westerly 40 feet from South Main Street,
approximately 11.30 feet in depth, running northerly, and which strip of land is necessary for
the purpose of reconstructing said Charleston Boulevard, provided that in consideration
therefor, the City of Las Vegas would vacate a portion of A Street, as a public street within
the City of Las Vegas, which portion to be vacated abutted the real property known as that
portion of Block 5 adjoining the western line of Block 5, and being the easterly line of said
A Street; that pursuant to said agreement the defendant, City of Las Vegas, on the 9th day
of December, 1948, by and through the defendants, E. W. Cragin, as mayor, Pat Clark, R. T.
Baskin, Reed Whipple, Robert Moore and E. W. Cragin constituting the board of city
commissioners of the City of Las Vegas, made and entered an order vacating a portion of said
A Street, a copy of which order is hereinafter set forth:
ORDER
A petition, dated the 26th day of October, 1948, signed by three (3) freeholders residing
in the area affected, having been filed with the Clerk of this Board, petitioning for the
vacation of those portions of A Street and First Street hereinafter described and said
petition having been by the order of this Board referred to the Planning Commission of the
City of Las Vegas for its recommendation in the premises, and said Planning Commission
having filed its report, dated November 3, 1948, with this Board approving and
recommending said vacation:
And this Board, by an Order made at its regular meeting held on the 5th day of
November, 1948, set the 9th day of December, 194S, at the hour of 3 o'clock P.M. at the
Commissioner's Room of the Board of Commissioners, in the War Memorial Building,
located at the Northwest corner of Fifth and Stewart Streets, in the City of Las Vegas,
Clark County, Nevada, as the time and place for a public hearing on said Petition and
recommendation, and Ordered the City Clerk to cause the aforesaid streets proposed to be
vacated to be posted with a Notice setting forth the time and place of the public hearing
and the extent of the proposed vacation; And it appearing from the affidavit of LaVerne R.
9th day of December, 1948, at the hour of 3 o'clock P.M. at the Commissioner's Room of the
Board of Commissioners, in the War Memorial Building, located at the Northwest corner of
Fifth and Stewart Streets, in the City of Las Vegas, Clark County, Nevada, as the time and
place for a public hearing on said Petition and recommendation, and Ordered the City Clerk
to cause the aforesaid streets proposed to be vacated to be posted with a Notice setting forth
the time and place of the public hearing and the extent of the proposed vacation; And it
appearing from the affidavit of LaVerne R. Betchel, filed with the Clerk of this Board, that
the Notice provided for in said Order, a copy of which Notice is attached to said affidavit,
was posted on the 9th day of November, 1948, in the manner prescribed by said Order;
And this being the time fixed for the hearing on said Petition for vacation and the
recommendation of the Planning Commission thereon, and this Board having heard evidence
in support of and in opposition to said Petition and recommendation;
And it appearing to the satisfaction of this Board that the portions of the streets to be
vacated are no longer required for the public use and convenience, that said vacation will
inure to the benefit of the City of Las Vegas, and that neither the public nor any person will
be materially injured thereby:
It Is Hereby Ordered that the following portions of A Street and First Street, to-wit:
(Parcels 1 and 2 are hereby described by courses and distances and by reference to
certain plats on file, and which, though unintelligible to the court without the assistance
of a plat, are later recited to be portions of Main or A Street.)
be, and the same are hereby vacated.
Plaintiff further alleged that, pursuant to sec. 5063.29 N.C.L., that portion of A Street
which the City of Las Vegas attempted to vacate by virtue of its order of December 9, 1948,
would revert to Gus and Martha Klein as the abutting property owners of the portion of the
street vacated; plaintiff further alleged that said "A" Street, by said order vacating a
portion thereof, will become a street approximately 50 feet in width instead of S0 feet in
width, and would cause great inconvenience and be detrimental for public use thereof,
and that the public will be materially injured thereby, and that plaintiff, and all other
abutting property owners on said "A" Street on the westerly side of said "A" Street will be
materially injured thereby, and that said "A" Street, by reason of said vacation, would
become a dangerous traffic hazard in this respectplaintiff alleges that the said "A"
Street is intended to be used as a means of ingress and egress to an access road to be
constructed at a point commencing at the northwest corner of "A" Street and Charleston
Boulevard, running in a westerly direction, to connect with a private road constructed on
the west line of said Lots Q R and S, and for the purpose of giving ingress and egress to
the occupants of buildings adjacent to the tracks on the Union Pacific Railroad for the
cartage of freight to and from said buildings and tracks.
as the abutting property owners of the portion of the street vacated; plaintiff further alleged
that said A Street, by said order vacating a portion thereof, will become a street
approximately 50 feet in width instead of 80 feet in width, and would cause great
inconvenience and be detrimental for public use thereof, and that the public will be materially
injured thereby, and that plaintiff, and all other abutting property owners on said A Street
on the westerly side of said A Street will be materially injured thereby, and that said A
Street, by reason of said vacation, would become a dangerous traffic hazard in this
respectplaintiff alleges that the said A Street is intended to be used as a means of ingress
and egress to an access road to be constructed at a point commencing at the northwest corner
of A Street and Charleston Boulevard, running in a westerly direction, to connect with a
private road constructed on the west line of said Lots Q R and S, and for the purpose of
giving ingress and egress to the occupants of buildings adjacent to the tracks on the Union
Pacific Railroad for the cartage of freight to and from said buildings and tracks. That motor
equipment used for such purpose and over and through said roads on A Street will be heavy
trucks; that said trucks in their normal operation over and above A Street will be required
to make both left-and right-hand turns in and to A Street from Main Street, and in and on to
Main Street from A Street.
That the vacation complained of will narrow said A Street to an extent that it will be
made prohibitive, in view of the above-mentioned traffic, for any automobiles to be parked on
the westerly side of A Street immediately in front of the property owned by plaintiff herein;
that the convenience and public use of said A Street will be better served, and will be safer
for the general public use of said street, if said street remains in its present state. Plaintiff
further alleged that the purpose motivating the City of Las Vegas in making and entering said
order of December 9, 1948, was to exchange that portion of "A" Street attempted to be
vacated by the said order for a portion of the Klein property described in Paragraph X of
the complaint, and in order to save the city from condemning that portion necessary for
such improvement as hereinabove recited, and save the city from paying therefor in
money to Gus and Martha Klein, and not for the use and convenience of the public.
that portion of A Street attempted to be vacated by the said order for a portion of the Klein
property described in Paragraph X of the complaint, and in order to save the city from
condemning that portion necessary for such improvement as hereinabove recited, and save the
city from paying therefor in money to Gus and Martha Klein, and not for the use and
convenience of the public. The complaint further alleges that the acts of the city
commissioners and mayor were a gross abuse of their and his discretion as duly elected
officers, and was a legal fraud against the public interests. Plaintiff further alleged that it was
a resident taxpayer of Las Vegas, Clark County, Nevada.
Plaintiff further alleged that it is the owner of all property abutting on the westerly side of
A Street directly opposite the property on the easterly side of A Street vacated by order of
the city commissioners hereinabove referred to; that the making and entering of said order
and the vacation of A Street, as in said order recited, narrowing the width of said A Street
will result in irreparable damage to plaintiff, in that the property owned by plaintiff and
immediately abutting on the westerly side of A Street will be damaged by reason of the fact
that said A Street will become interlocked, narrow and an unsafe street.
Plaintiff further alleged that the property of plaintiff abutting on A Street, will be
damaged, and that plaintiff will be prevented from using said Lots Q R and a portion of S,
owned by plaintiff, for construction of buildings and businesses for industrial occupants, in
that said narrowing of said street will create such a dangerous condition that trucks and heavy
industrial equipment will be unable to have reasonable ingress and egress on to and from said
A Street, and further, that it will be impossible for trucks and heavy equipment to turn left
from Main Street on to A Street, and right from A Street to Main Street, because of the
narrowness of said A Street after same is vacated.
Plaintiff further alleged that at no time was plaintiff compensated for the loss of its
property rights by the narrowing of said street, nor has any condemnation proceeding
been instituted to determine the damage done to plaintiff by virtue of said vacation; that
neither the public necessity, interest or convenience requires an abandonment of said
portion of "A" Street heretofore abandoned by defendants herein, and that the public
derives no benefit from vacation of said portion of "A" Street.
compensated for the loss of its property rights by the narrowing of said street, nor has any
condemnation proceeding been instituted to determine the damage done to plaintiff by virtue
of said vacation; that neither the public necessity, interest or convenience requires an
abandonment of said portion of A Street heretofore abandoned by defendants herein, and
that the public derives no benefit from vacation of said portion of A Street. Plaintiff further
alleged that it was without a speedy and adequate remedy at law.
The prayer is for judgment decreeing that the order made by the mayor of the City of Las
Vegas and the board of city commissioners was in derogation of the law and void, and that
the defendants, City of Las Vegas, and Gus Klein and Martha Klein, be permanently enjoined
from using and occupying said A Street, or any portion thereof, for any purpose other than
a public street, and for such other and further relief as may be just and proper in the premises,
and for costs of suit.
The entire gist of the case is that plaintiff complains that, whereas A Street was a public
street dedicated to public use and convenience, of the approximate width of 80 feet; that
defendants, Gus Klein and Martha Klein, were the owners of the property abutting the
easterly side of Main Street; that plaintiff was the owner of property abutting the westerly
side of Main Street; that by virtue of the vacating of 30 feet on the easterly side of Main
Street, also known as A Street, the property owned by the plaintiff on the westerly
boundary of Main Street, or A Street, was materially injured. Plaintiff does not only
complain of a general public injury, but contends that it is specially injured by virtue of the
vacation, inasmuch as it, the plaintiff, is the owner of property abutting the westerly side of
the street on which a portion of the easterly side was vacated.
Plaintiff contends (1) That an owner whose property abuts on a street has a vested interest
in the entire width of the street in front of his land, and is entitled to compensation for any
appropriation of this property right.
to compensation for any appropriation of this property right. (2) That special damages are
suffered by an owner whose property adjoins a street when a substantial part of the street is
appropriated to another use. (3) That the taking of the property in issue by the defendant city
was an unauthorized private appropriation, not having as its purpose the good of the public as
a whole.
Defendants contend (1) That the second amended complaint of the plaintiff did not allege
that plaintiff would suffer any special injury different in kind from that suffered by the
general public. (2) That damages may be awarded under proper circumstances. In the instant
case, damages were neither alleged nor demanded. (3) That the plaintiff has an adequate
remedy at law if damages were, in fact, sustained and the lower court was therefore correct in
sustaining defendants' demurrer.
Defendants further contend that the sole question before the court is whether or not the
plaintiff is entitled to injunctive relief under the pleadings and that the question before the
court has been completely settled in the State of Nevada by the case of Blanding v. City of
Las Vegas, 52 Nev. 52, 280 P. 644, 68 A.L.R. 1273.
The instant case is distinguishable on the facts from the Blanding case, supra, and we think
the contention of the defendants must be rejected. In the Blanding case the proceedings of the
city commissioners complained of amounted to an alteration rather than a vacation of the
street in question. And there is a distinction between the two. (See note to 26 A.L.R. 827.)
[Headnote 1]
We are of the opinion that the ruling of the lower court was not proper in the instant case.
The complaint does show that plaintiff will suffer injury special to itself and different in kind
from that which will be sustained by the general public. A showing that an injury of this kind
will be sustained is essential to enable a person to maintain an action of this character.
a person to maintain an action of this character. It is our opinion that the complaint does state
facts sufficient to constitute a cause of action. It has alleged a property right, that the right
has been infringed, that it was infringed by an unauthorized act of the city council, that
plaintiff has suffered special injury entitling it to seek an injunction against such action by the
city. Plaintiff should be allowed to present probative evidence in support of these
contentions.
It is the contention of the plaintiff as alleged in Paragraph XIII of its complaint that it has
been informed and believes and upon such information and belief alleges that the recitation in
said order entered by said board of city commissioners, recited as follows:
A petition dated the 26th day of October, 1948, signed by three freeholders residing
in the area affected having been filed with the clerk of this board,'
is false and untrue in that if such petition was filed signed by three persons, that the said three
persons were not freeholders residing in the area affected by the premises described in said
order.
We therefore, are of the opinion that the lower court should hear the evidence and find the
facts. As stated in the case of Kansas City v. Hyde, 196 Mo. 498, 96 S.W. 201, 205, 7 L.R.A.
N.S. 639, 113 Am.St.Rep. 766, and which reads in part as follows:
But suppose the council, intending the condemnation to be really for the sole benefit of
the individual, in order to give it validity, should say in the ordinance that the property was to
be condemned for a public street; would such a false recital in the ordinance be conclusive?
Would it put the man whose property was to be taken, and the people in the district who were
to be taxed for it, beyond the protection of the constitutional guaranty that their property
should not be taken for private use? * * * And when the city comes to ask the aid of the court
to carry the ordinance into effect, is it possible that the court must be a mere tool to do the
will of the council, with no power to inquire into the truth of the matter?
council, with no power to inquire into the truth of the matter? What protection has a citizen
for his constitutional rights if the courts cannot look through a sham and see the truth? And
how can the courts learn the truth if they must take the recitals in the ordinance as conclusive
and reject all evidence to show their untruth? What a reproach it would be to our system of
jurisprudence and how humiliating would be the attitude of our courts if they were so
powerless: But our law is not so lame, and our courts are not so impotent. The courts in such
case will hear the evidence and find the facts.
Defendants have at all times, from the inception of this case, mistaken the theory of the
case. In the case of Blanding v. City of Las Vegas, supra, all of the elements of an alteration
were before the court, to wit: An existing street, the dedication of a new street connecting at
both ends with the old street; and the conditional vacation of the old street. The old street
remainedonly its location had been changed. Part of the street was vacated to make way for
another street. Plaintiff contends that this action caused great public inconvenience as well as
inconvenience to himself since he would be compelled to travel over a more circuitous route
in order to carry on his business. However, in the instant case plaintiff owns abutting
property, which is certainly a factor in considering the question of special injury. The special
damages suffered by the plaintiff in the instant case are different in kind and not simply in
degree from that suffered by the general public, and it is entitled to maintain this action to
enjoin such proposed vacation.
In the case at bar the plaintiff contends that the Blanding case is not in point for the reason
that an owner whose property abuts on a street has a vested interest in the entire width of the
street in front of his land, and is entitled to compensation for any appropriation of this
property right.
[Headnote 2]
The contention of the plaintiff is predicated on the principle that, so long as a street is a
street, it is held by the city in trust for the public, and cannot be lawfully appropriated to a
mere private use; and, so long as it is a street, an abutting property holder may invoke relief to
prevent its being devoted to private purposes.
In the case of Fry v. O'Leary, 141 Wash. 465, 252 P. 111, at 113, 49 A.L.R. 1249, the court
stated:
We think it is also clear under the uniform weight of authority that one who is an abutting
property owner upon a street or alley, any portion or the whole of which is sought to be
vacated, has a special right and a vested interest in the right to use the whole of the street for
ingress and egress, light, view, and air, and if any damages are suffered by such an owner,
compensation is recoverable therefor. It follows, therefore, that if appellants' light, air, view
or access is materially diminished, as alleged in the complaint, they are entitled to have the
same passed upon by a jury regularly impaneled to determine the amount thereof. Citing
cases.
It is further stated in the case of Fry v. O'Leary, 252 P. 113, supra:
Respondents contend that the vested interest of an abutting property owner in a street
extends only to the middle of the street, and that therefore appellants are not abutting property
owners as to the 13 feet vacated, which is across the street. But this position is untenable.
Carried to its logical conclusion, the council could vacate all the street opposite appellants'
property, leaving but a 30-foot street, and still appellants have no cause for complaint because
not abutting owners. Yet there can be no doubt that, under most circumstances, property on a
street only 30 feet in width would not be as valuable as on one twice as wide, for there would
be only half as much space for light, air, view, and means of access. An abutting property
owner's vested interest is to the full width of the street in front of his land, and he is entitled
to use the whole thereof for egress and ingress, light, air, and view, and for any
substantial or material diminution of any of these rights he is entitled to recover in
damages."
land, and he is entitled to use the whole thereof for egress and ingress, light, air, and view,
and for any substantial or material diminution of any of these rights he is entitled to recover in
damages.
In Smith v. Centralia, 55 Wash. 573, 104 P. 797 at 798, the right of an abutting property
owner to the full width of the street was referred to in the following language:
The rights which an owner of abutting property possesses in a street are different in kind
from that possessed by one whose interest is only that of a right of way along a street. To
close or partially close a street affects the right of ingress and egress to and from the property
of an abutting owner. * * * Citing cases.
The ruling of the Minnesota Supreme Court in Adams v. Chicago B. & N. R. Co., 39
Minn. 286, 39 N.W. 629, 633, 1 L.R.A. 493, 12 Am.St.Rep. 644, is particularly enlightening
on this question:
It is, however, hardly necessary to inquire how the lot owner gets his private right in the
street; for it is established law that he has a private right, which, as we have stated, all cases
concede extends to the necessity of access. Access to the lot is only one of the direct
advantages which the street affords to it. * * * The abutting lot owners have paid for the
advantage of the street on the basis of that width, either in enhanced price paid for their city
lots, or, if the street was established by condemnation, in the taxes they have paid for the land
taken. In such a case, if the state or municipality should attempt to cut the street down to a
width of ten or fifteen feet, would it be an answer to objections by the lot owners, that the
diminished width would be sufficient for the mere purpose of access to their lots? It seems as
though the question suggests the answer.
In the case of Rensselaer v. Leopold, 106 Ind. 29, 5 N.E. 761, 762, and cases cited, it was
held:
That the owners of lots abutting on a street have peculiar and distinct interest in the
easement in the street, is a well established doctrine of law.
street, is a well established doctrine of law. * * * This right cannot be appropriated and taken
from him against his consent without compensation.
On the question of special damages as set forth in plaintiff's complaint, Paragraph XVII,
the case of Brazell v. Seattle, 55 Wash. 180, 104 P. 155, 158, seems directly in point. The
question presented by the appeal was, as in the instant case, the sufficiency of the amended
complaint. The city had closed the opposite half of the street from appellants, leaving
appellants' side open. The court stated:
The appellants as the owners of lots abutting on the portion of East Aloha Street partially
vacated and narrowed, suffered special injury and damages, different in kind and not simply
in degree from that suffered by the community in general, and are entitled to maintain this
action to enjoin such vacation. The right of the owner of a city lot to use the adjoining street
to its full width is well established, unquestioned, and one of which he cannot be deprived
without just compensation. It is as much a property right as the lot itself.
The judgment in the above case was reversed, and the cause remanded, with instructions to
overrule the demurrer.
The attorney for the defendants states in his answering brief that: The sole question
before the court is whether or not plaintiff is entitled to injunctive relief under the pleadings.
[Headnote 3]
Rights with respect to the use of highways may in a proper case be protected by
injunction or enforced by mandamus * * *. Injunction is also available, as a general rule, to
private individuals to prevent unauthorized, unlawful, or improper uses or acts which would
cause them special or peculiar injury. 25 Am.Jur., sec. 243, page 536.
It may be stated generally that the office of an injunction is the protection of property and
rights of property.
Aside from these broad general statements, however, courts of equity, although an
enumeration of the subjects has in some cases been attempted by them, have generally
declined to lay down any rule which shall limit their power and discretion as to the particular
cases in which injunctions shall be granted or withheld, regard being given to the fact that it is
impossible to foresee all the exigencies of society which may require their aid and assistance
to protect rights or redress wrongs. In fact it may be said that interposition by restraining
orders is a matter of growth, and keeps pace with advancing civilization, and the courts are
continually finding new subjects for such relief. * * * And where the right invaded, for
protection of which injunction is sought, is secured by statute or contract, there is generally
no question of the amount of damages, but simply of the right. On the other hand, a court of
equity may interfere by injunction to restrain a party from enforcing a legal right against all
equity and conscience. * * *
14 R.C.L. sec. 66, page 365.
Plaintiff contends that compensation would be due regardless of the nature of the purpose
of this appropriation, as set forth in plaintiff's second amended complaint, Paragraph XIV,
whether public or private, but feels that its question is made more firm by reason of the
private character of the exchange. Our Nevada statutes are worth perusing in regard to this
issue.
The pertinent part of sec. 9155, N.C.L.1929, reads:
The private property which may be taken under this chapter includes: (2) Lands
belonging to the State, or to any county, or incorporated city or town, not appropriated to
some public use. (3) Property appropriated to public use; provided, that such property shall
not be taken unless for a more necessary public use than to which it has been already
appropriated.
Here the property was not taken for a more necessary public use. It was not taken for any
public use. The thirty {30) feet in question was given to a private individual depriving
other individuals of a right to the entire width of the street, a right which courts almost
unanimously declare to exist, and for which these others are given a remedy in equity, or
in law for damages.
thirty (30) feet in question was given to a private individual depriving other individuals of a
right to the entire width of the street, a right which courts almost unanimously declare to
exist, and for which these others are given a remedy in equity, or in law for damages.
Section 9156, N.C.L.1929, which reiterates for the most part the requirements of the
property being applied for a more necessary public use, reads, in addition:
Before property can be taken it must appear: 1. That the use to which it is to be applied is
a use authorized by law. 2. That the taking is necessary for such use. 3. If already
appropriated to some public use, that the public use to which it is to be applied is a more
necessary public use.
Respondent submits that the statute cited therein is not applicable. It was not the taking of
the land, either public or private, for any use. It was a vacation of a part of a street upon
petition signed by three freeholders residing in the area after public hearing wherein it was
determined by the governing body that the public would not be materially injured. Sec.
5063.29 N.C.L. provides in part:
* * * that if upon public hearing the governing body is satisfied that the public will not be
materially injured by such proposed vacation, it shall order such street vacated. * * *
[Headnote 4]
While the question of the necessity for closing a street or highway may belong exclusively
to the legislative department of the government, still the question of public purpose or use
remains subject to court review. As a rule, in such cases, the court will permit the defendants
to make the issue and present evidence in support of it, unless it is manifest from the
pleadings and proceedings that such closing is for the public interest. See 25 Am. Jur., p. 418,
sec. 120.
There are sufficient allegations in the complaint, if established by proof, to raise serious
doubt as to whether the vacation was for the public interest.
the vacation was for the public interest. This would not appear to be a case where it is
manifest that a vacation is for the public interest.
The decision of the lower court sustaining the defendants' demurrer to plaintiff's complaint
is reversed, and the case is remanded to the district court for the entry of an order overruling
defendants' demurrer to appellant's complaint and directing defendants to serve and file their
answer thereto within such time as may appear proper.
Plaintiff is allowed its costs.
____________
68 Nev. 324, 324 (1951) In Re Wright
In The Matter of NUBAR WRIGHT,
Attorney At Law
No. 3617
June 1, 1951. 232 P.2d 398.
Disciplinary proceeding against an attorney at law, initiated before the local administrative
committee, District No. 1, Clark and Lincoln Counties, at Las Vegas, Nevada. The board of
governors recommended suspension for six months, and the attorney petitioned for review.
The Supreme Court, Wines, District Judge, held that evidence established that the attorney
shared with a person, who was not licensed to practice law, a retainer which was paid to the
attorney by client, who was brought to attorney's office by such unlicensed person.
Petitioner suspended from practicing law for six months.
Ralli & Rudiak, of Las Vegas, for Petitioner.
L. O. Hawkins and Harvey Dickerson, both of Las Vegas, for Nevada State Bar.
68 Nev. 324, 325 (1951) In Re Wright
Findings and recommendations of board of governors of State Bar are not binding on supreme court on
review of disciplinary proceedings against attorney, but burden is on such attorney to set out in petition
sufficient averments to make out prima-facie case showing wherein decision of board is erroneous or
unlawful. Stats.1928, Sp.Sess., p. 13.
In disciplinary proceedings against attorney, jurisdiction of supreme court, as distinguished from court's
appellate jurisdiction, extends to passing upon evidence and weighing its effect and sufficiency. Stats.1928,
Sp.Sess., p. 13.
In disciplinary proceeding against attorney, higher degree of proof is required than is required to
determine questions of fact in ordinary civil action or proceeding. Stats.1928, Sp.Sess., p. 13.
That two members of local administrative committee of State Bar resigned prior to disciplinary hearing
against attorney before committee, and were replaced by two members of bar nominated by complainant,
who was member of board of governors representing district, did not vitiate proceeding. Stats.1928,
Sp.Sess., p. 13.
Where hearing of disciplinary proceeding against attorney before committee was postponed, in order that
issues raised by attorney could be disposed of by board, for period exceeding 30 days, and for periods
aggregating more than 90 days without approval of one of governors of State Bar from district which
proceeding was pending, or without approval of president or vice-president of State Bar, attorney was not
denied speedy hearing. Stats.1928, Sp.Sess., p. 13.
In disciplinary proceeding against attorney, denial by board of governors of attorney's application for
change of venue on ground that attorney could not obtain fair hearing before committee in and for district
in which attorney practiced was not error. N.C.L.1929, secs. 8407, 8572, 10913.
Attorney, who shared retainer with person who was not licensed to practice law, was suspended from
practice of law for six months. Stats.1928, Sp.Sess., p. 13.
OPINION
By the Court, Wines, District Judge:
This matter was initiated against the petitioner, a duly licensed and practicing attorney at
Las Vegas, Nevada, by the filing of a complaint with the administrative committee of the
State Bar, in and for the counties of Lincoln and Clark, on December 31, 194S.
68 Nev. 324, 326 (1951) In Re Wright
Nevada, by the filing of a complaint with the administrative committee of the State Bar, in
and for the counties of Lincoln and Clark, on December 31, 1948. The complaint is in the
form prescribed by the rules of procedure of the State Bar of Nevada, and charges the
petitioner with two offenses. See rule XI et seq. of rules of procedure of the state bar, Nev.
State Bar Journal, vol. 12, No. 4, p. 211. Both of the offenses charged involve violations of
rule III of the rules of professional conduct of the State Bar of Nevada. Id. p. 238.
1

The matter comes to this court in the usual manner. Following a hearing at Las Vegas,
Nevada, before the local administrative committee and the filing of findings and a report
adverse to him, recommending disbarment, the petitioner applied for a hearing de novo
before the board of governors of the state bar. At the time of the hearing before the board the
accused appeared and withdrew his application for a hearing de novo, and submitted the
matter after argument. The findings and recommendations of the board were adverse to him
on one charge, and recommended suspension for six months, and he has petitioned this court
for a review.
In order to avoid confusion and distinguish the offenses charged, we now designate the
first charge as first count, and further characterize the same as being that which charges a
specific act of misconduct, whereas what we shall hereafter refer to as the second count
alleges generally that numerous similar acts involving unnamed persons occurred prior to
November 29, 1948, the date of the offense described in count one.
We note here too, in regard to the second count, that the board of governors apparently
ordered that it be dismissed after the hearing before the board. This fact does not appear
from the record of the proceedings before the board, as it manifestly should, but this fact
is first referred to in the petition for review addressed to this court, and it is conceded to
be a fact by the bar in its answer to the petition.
____________________

1
A member of the State Bar shall not employ another to solicit or obtain, or remunerate another for
soliciting or obtaining, professional employment for him; nor shall be directly or indirectly share with an
unlicensed person compensation arising out of or incidental to professional employment; * * *
68 Nev. 324, 327 (1951) In Re Wright
fact does not appear from the record of the proceedings before the board, as it manifestly
should, but this fact is first referred to in the petition for review addressed to this court, and it
is conceded to be a fact by the bar in its answer to the petition. We therefore consider this as
an established fact, and shall confine our review to the first count. We entirely approve of the
order dismissing the second count, since it appears that the count charges numerous unrelated
offenses which have not been separately stated, and that there is insufficient competent
evidence to prove any offense.
The sense of the term review, as used in our state bar act (Stats. 1928, 13) was settled
soon after the enactment of that statute. In re Scott, 53 Nev. 24, 292 P. 191. This court there
held that the review by the court, as referred to in the act, contemplated an examination of the
entire record anew to ascertain whether any charge meriting disbarment or suspension had
been proved, and that in such review the court was not bound by findings or
recommendations of a local administrative committee nor by the adoption thereof by the
board of governors. The authority for such holding was given as In re Stafford, 208 Cal. 738,
284 P. 670; In re Shattuck, 208 Cal. 6, 279 P. 998; McVicar v. State Board of Law Examiners
(D. C.), 6 Fed.2d 33. See also Fish v. State Bar, 214 Cal. 215, 4 P.2d 937; Herron v. State
Bar, 212 Cal. 196, 298 P. 474; Furman v. State Bar, 12 Cal.2d 212, 83 P.2d 12.
[Headnote 1]
The findings and recommendations of the board are persuasive, so that an applicant for a
review in this court must set out in his petition sufficient averments to make out a prima-facie
case, and the burden is on such petitioner to show wherein the decision of the board is
erroneous or unlawful. Light v. State Bar, 14 Cal.2d 328, 94 P.2d 35; In re Winne, 208 Cal.
35, 280 P. 113; Copren v. State Bar, 25 Cal.2d 129, 152 P.2d 729; Ring v. State Bar, 218 Cal.
747, 24 P.2d 821; Werner v. State Bar, 24 Cal.2d 611, 150 P.2d S92.
68 Nev. 324, 328 (1951) In Re Wright
Werner v. State Bar, 24 Cal.2d 611, 150 P.2d 892. This rule that the petitioner carries the
burden in this court is not intended to, and does not as a matter of fact enlarge upon the
board's power.
We have deemed it necessary to reiterate these rules and thus fix the authority and
functions of this court, the board and the local committee, because in this matter evidence
taken by the local committee on the first count, which is the same as that reported here, is to
some extent either incompetent, immaterial or of doubtful persuasion. There is proof that is
competent, and we will discuss that hereafter, but our immediate concern is with this court's
function in such a situation.
[Headnote 2]
In view of the authorities we have just quoted, it seems plain that the jurisdiction of this
court in these matters, as distinguished from its appellate jurisdiction extends to passing upon
the evidence, weighing its effect and sufficiency. The fact that the board or local committee
may have admitted and given credence to incompetent proof, or weight to proof of
questionable materiality, is not determinative of the question involved in this proceeding. In
justice to the board it should be stated that there is nothing in the record to indicate that it
accorded any weight or effect to the incompetent proof or questionable evidence which the
local committee improperly admitted over the petitioner's repeated objections. The refusal of
the board to find on count two indicates its refusal to consider such proof. This court can, and
always does, pass upon the competency of the evidence in these cases, as well as the weight
to be given it. Furman v. State Bar, supra.
After eliminating from our consideration the evidence that we find incompetent, and
assigning to the remainder the weight and effect it merits, we find that the competent
evidence in this case clearly establishes that the petitioner on the date mentioned agreed to,
and did share with a person who was not licensed to practice law a retainer paid to the
petitioner by a client, who was brought to petitioner's office by such unlicensed person, on
the condition that the petitioner would share the fee with him.
68 Nev. 324, 329 (1951) In Re Wright
brought to petitioner's office by such unlicensed person, on the condition that the petitioner
would share the fee with him. In re Davidson, 64 Nev. 514, 186 P.2d 354.
[Headnote 3]
We refrain from an extended discussion of that evidence we consider competent, but we
are satisfied that it meets the requirements of the common-law rules of evidence, and that the
petitioner had opportunity to and did cross-examine all those witnesses whose testimony was
competent and tended to establish the facts alleged in the charge. We are aware, too, that a
higher degree of proof is required in a disciplinary matter than is required to determine
questions of fact in an ordinary civil action or proceeding, but after careful study we are
convinced that the proof in this instance meets that test. Copren v. State Bar, 64 Nev. 364,
183 P.2d 833, 173 A.L.R. 284.
Nor is the effect of the proof blighted by a showing of entrapment. Entrapment is the
seduction or improper inducement to commit a crime for the purpose of instituting a criminal
prosecution, but if a person in good faith and for the purpose of detecting or discovering a
crime or offense, furnishes the opportunity for the commission thereof by one who has the
requisite criminal intent, it is not entrapment. In re Davidson, supra.
The petition contains a number of other averments of error which petitioner insists renders
the decision of the board erroneous or unlawful.
It is averred that the decision of the local committee was unlawful and in excess of
jurisdiction because an order was entered by the committee that the petitioner be disbarred on
both counts. See rule I of rules of professional conduct of the state bar.
2
The authorities
submitted by the petitioner in support of his proposition more properly relate to courts rather
than to an administrative agency of this court, and in these matters the orders of the
administrative committee do not effect the disbarment or suspension of an attorney.
____________________

2
* * * the willful breach of any of these rules shall be punishable by suspension from the practice of law for
a period not to exceed one year.
68 Nev. 324, 330 (1951) In Re Wright
the orders of the administrative committee do not effect the disbarment or suspension of an
attorney. The decision and order of the board and of the local committees are, as we have
said, recommendations to this court and do not operate to deprive an attorney of his privilege
of practicing law. In re Scott, supra. A petitioner will not be heard to complain of that which
does not injure him.
[Headnote 4]
The fact that two members of the local committee resigned just prior to the hearing before
the committee, and were replaced by two members of the bar nominated by the complainant,
who is a member of the board of governors representing that district, it is averred vitiates the
proceedings.
It has already been held, however, that the state bar act is not void because it authorizes a
member of the local administrative committee, or member of the board of governors to prefer
charges against an attorney and then sit as a member of the board or committee for
consideration of the charges so preferred. In re Scott, supra. The explanation lies, of course,
in the fact that the board and committees are administrative agencies of the court, their
findings are not binding and their orders are nothing more than recommendations to this
court.
[Headnote 5]
It is averred that the proceedings before the local committee are void because, in violation
of rule XXVI of the rules of procedure of the state bar, the hearing of the matter was
postponed for a period exceeding thirty days, and for periods aggregating more than ninety
days, without the approval of one of the governors of the state bar, from the district in which
the proceeding was pending, or without the approval of the president or vice-president of the
state bar. If, as the petitioner contends, the purpose of this rule is to assure an accused of a
speedy hearing, and we believe the petitioner's interpretation of the rule is correct, he cannot
complain because the hearing was delayed in order that issues raised by him could be
disposed of by the board.
68 Nev. 324, 331 (1951) In Re Wright
because the hearing was delayed in order that issues raised by him could be disposed of by the
board. Nor are we able to see how the expense of maintaining two nonresident witnesses for a
period of a few days at Las Vegas, Nevada, can be attributed to such a delay. See Cal.Jur. Ten
Year Supp. vol. 9, p. 567.
[Headnote 6]
Finally it is argued that a denial by the board of petitioner's application for a change of
venue, on the ground that he did not and could not obtain a fair hearing before the committee
in and for the district in which he practices, invalidates the proceedings.
The petitioner in his affidavit avers that the members of the bar, in the bar district in which
he practices, are jealous of the success he has enjoyed as a specialist in the law of domestic
relations, and are hostile towards him because he is of foreign birth; that on the other hand he
enjoys the goodwill of many important lay persons in the community in which he practices,
and certain other members of the bar. It is manifest, however, that what petitioner must
establish, if he is to come under the provisions of sec. 10913 or sec. 8572, N.C.L. 1929, is
that the hostility and jealousy actually exist and that this feeling toward him would or did
actually affect the outcome of the hearing, and not what he believes the members of the bar
felt toward him. Nor are isolated instances of expressed hostility sufficient to make out a
case.
So many of the facts in petitioner's affidavit, in support of his motion for change of venue,
point so directly to bias and prejudice on the part of at least one member of the local
committee, that we feel constrained to point out that it is not permissible to accomplish by a
motion for change of venue, a disqualification on grounds not recognized by the rule and the
statute. See rules X and XI, rules of procedure of the state bar.
3
We do not intend saying
that a change of venue cannot be had on the ground that there is reason to believe that
an impartial hearing cannot be had in any particular district, but we cannot say from the
record before us that the board's denial of petitioner's application for a change of venue
was erroneous.
____________________

3
Rule X permits a challenge of a member of the committee for such cause as is a statutory disqualification of
a judge under sec. 8407 N.C.L. (interest in the proceeding, relationship to either party or his attorney, or prior
status as attorney for either party in the
68 Nev. 324, 332 (1951) In Re Wright
We do not intend saying that a change of venue cannot be had on the ground that there is
reason to believe that an impartial hearing cannot be had in any particular district, but we
cannot say from the record before us that the board's denial of petitioner's application for a
change of venue was erroneous.
[Headnote 7]
For the reasons given, it is ordered that the petitioner be, and is hereby suspended from the
practice of law for a period of six months; said six months' period to commence ten days from
the entry of this order.
Merrill, J., being disqualified by reason of his having acted as a member of the board of
governors in this proceeding, the governor commissioned Honorable Taylor H. Wines, Judge
of the Fourth Judicial District, to sit in his place.
____________________
proceeding). Rule XI provides for hearing in the county of the accused's residence, with power in the board of
governors to transfer the hearing to a committee in another county.
____________
68 Nev. 333, 333 (1951) State v. District Court
THE STATE OF NEVADA ON THE RELATION OF DEAN MECK HOFFMAN, II,
Relator, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
AND THE HONORABLE A. J. MAESTRETTI, Judge Thereof, Respondents.
No. 3671
June 15, 1951. 232 P.2d 397.
Original proceeding in prohibition, instituted by the State of Nevada, on the relation of
Dean Meck Hoffman, II, against the Second Judicial District Court of the State of Nevada,
Washoe County, and the Honorable A. J. Maestretti, judge thereof, to challenge jurisdiction
of respondent court in an action for divorce brought by Georgia R. Hoffman against the
relator. The Supreme Court, Merrill, J., held that the Second Judicial District Court, in
proceeding under the complaint in question, exceeded its jurisdiction.
Peremptory writ of prohibition granted.
Louis Mead Dixon, of Reno, for Relator.
Sullivan & Sullivan, of Reno, for Respondents.
Divorce.
Where plaintiff in divorce suit alleged residence that fell short of statutory period and no allegation of
residence nor domicile of defendant was made, district court in proceeding under the complaint exceeded
its jurisdiction, although cause of action accrued in county where court was located. N.C.L.1931-1941
Supp., sec. 9460.
OPINION
This is an original proceeding in prohibition challenging jurisdiction of respondent court to
proceed with an action for divorce. The sole question presented is whether, under our statutes,
accrual of the cause of action for divorce within the county confers jurisdiction for divorce
in the absence of residence by the parties.
action for divorce within the county confers jurisdiction for divorce in the absence of
residence by the parties.
On March 5, 1951, a suit for divorce was filed before respondent court by Georgia R.
Hoffman, wife of relator. Paragraph one of the complaint alleges as follows:
That the plaintiff is now and ever since the 24th day of January, A. D., 1951, has been an
actual, bona fide resident of the County of Washoe, State of Nevada, and during all of said
time has been physically present and actually domiciled in said County of Washoe, State of
Nevada and now so resides and is so domiciled therein.
That the said cause of action hereinafter stated accrued in said County of Washoe, State
of Nevada.
It will be noted that the residence of the plaintiff as alleged, falls short of six weeks and
that no allegation of residence or domicile of the defendant is made.
On March 28, 1951, relator as defendant demurred to the complaint on the ground that
the court has no jurisdiction of the person of the defendant, or the subject of the action. On
April 19, 1951, the demurrer was overruled by respondent court and relator allowed 18 days
to answer or otherwise plead. Relator then applied to this court for writ of prohibition and
upon our order an alternative writ was issued.
Sec. 9460, N.C.L.1929, Supp. 1931-1941, provides in part as follows (with emphasis
supplied):
Divorce from the bonds of matrimony may be obtained by complaint, under oath, to the
district court of any 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, or in which the
parties last cohabited, or if plaintiff shall have resided six weeks in the state before suit be
brought, for the following causes, or any other causes provided by law: * * * [Then follows a
statement of eight causes of action.] * * * Unless the cause of action shall have accrued
within the county while plaintiff and defendant were actually domiciled therein, no court shall
have jurisdiction to grant a divorce unless either the plaintiff or defendant shall have been
resident of the state for a period of not less than six weeks preceding the commencement
of the action."
have jurisdiction to grant a divorce unless either the plaintiff or defendant shall have been
resident of the state for a period of not less than six weeks preceding the commencement of
the action.
It is contended by respondents that the emphasized portion of this section confers the
necessary jurisdiction and is controlling. Relator contends that the latter portion of the section
controls and that no jurisdiction can be acquired through accrual of the cause of action within
the county unless both parties were then domiciled therein.
We feel it is clear that the latter portion of the section as quoted must be held controlling.
Worthington v. District Court, 37 Nev. 212, 142 P. 230, L.R.A. 1916A 696, Ann.Cas. 1916E
1097. To hold otherwise, considering the scope covered by the several alternatives stated in
the forepart of the section, would be to render substantially meaningless the statutory
requirement of six weeks residence as a jurisdictional prerequisite to suits for divorce. In the
light of the legislative history of this requirement as frequently reviewed in opinions of this
court, it is apparent that such a result cannot have been intended by the legislature. See: Lewis
v. Lewis, 50 Nev. 419, 264 P. 981, 267 P. 399.
It is held that no jurisdiction for divorce can be acquired through accrual of the cause of
action within the county unless both parties were then actually domiciled therein; that
respondent court in proceeding under the complaint in question has exceeded its jurisdiction.
It is ordered that a peremptory writ of prohibition issue absolutely restraining respondents
from further proceeding in said action for divorce.
____________
68 Nev. 336, 336 (1951) Estes v. Riggins
PATRICIA LEE ESTES and RICHARD THOMAS ESTES, Minors, by and Through Their
Guardian, JOSEPHINE ESTES; and HELEN ESTES, Appellants, v. LESLIE E. RIGGINS, as
Administrator of the Estate of DILLARD DRUMM, Deceased;
A. D. DRUMM, Jr.; and SILVER STATE CONSTRUCTION CO., INC.,
a Corporation, Respondents.
No. 3652
June 15, 1951. 232 P.2d 843.
Appeal from the First Judicial District Court, Churchill County; Clark J. Guild, Judge.
Action by Patricia Lee Estes and Richard Thomas Estes, minors, by and through their
guardian, Josephine Estes, and another, against Leslie E. Riggins, as administrator of the
estate of Dillard Drumm, deceased, and others, for injury allegedly caused to plaintiffs by
death of husband and father who was their support. The First Judicial District Court sustained
demurrer to complaint, and plaintiffs appealed. The Supreme Court, Eather, J., held that tort
action abated upon death of wrongdoer at any time before action was ready for rendition of
final judgment in absence of statute expressly providing that cause of action should survive
and that if statute merely gives right of action against wrongdoer and does not in specific
words make action survive death of wrongdoer, there is no survival.
Judgment affirmed.
Royal A. Stewart, Richard W. Horton, and C. Benson Tapscott, all of Reno, for Appellants.
Morley Griswold, and George L. Vargas, both of Reno, for Respondents.
1. Death.
At common law, widow and children had no cause of action in their own right for injury allegedly caused
by wrongful death of husband and father who was their support for it was considered that they had not
sustained any compensable loss.
At common law, tort action abates upon death of wrongdoer at any time before action is ready for
rendition of final judgment.
If statute merely gives right of action against wrongdoer and does not in specific words make action
survive death of wrongdoer, there is no survival of such cause of action.
4. Death.
Under statute providing that causes of action in favor of injured party for personal injuries, other than
those resulting in death, shall not abate by reason of his death nor by reason of death of person against
whom cause of action shall have accrued, but in case of death of either or both cause of action shall survive
to heirs and legal representatives of injured party, widow and children of person killed in automobile
collision were not injured parties within contemplation of statute as to suit against driver of other vehicle
who had also been killed in collision, but husband and father was injured party within contemplation of
statute. N.C.L.1931-1941 Supp., secs. 240.01, 240.02.
5. Death.
Statute providing that causes of action in favor of injured party for personal injures other than those
resulting in death shall not abate by reason of his death nor by reason of death of person against whom such
cause of action shall have accrued but such cause of action shall survive in favor of heirs and legal
representatives of injured party and against legal representatives of wrongdoer does not apply to action by
widow and children of injured party solely for injury allegedly caused to widow and children by loss of
support from such injured party when injuries resulted in death and action did not survive death of
wrongdoer. N.C.L.1931-1941 Supp., secs. 240.01, 240.02.
OPINION
From the complaint filed in this case we ascertain that an automobile driven by Robert
Estes collided on a public highway with one driven by Dillard Drumm, and as a result of that
collision both men were killed. Appellants, who were plaintiffs in the court below, are the
widow and children of Robert Estes, and, not having had an opportunity to commence suit in
the lifetime of Dillard Drumm, they sued the administrator of his estate, and another person
and a corporation alleged to be Drumm's employer, because they believed that the
accident occurred as the result of the negligence of Dillard Drumm.
estate, and another person and a corporation alleged to be Drumm's employer, because they
believed that the accident occurred as the result of the negligence of Dillard Drumm. They
seek damages for the deprivation of financial aid and assistance which they allege has
resulted from the death of Robert Estes. Two defendants answered and we are not concerned
here with that phase of the case. The administrator of the estate of Dillard Drumm demurred,
contending that any cause of action against Dillard Drumm died at his death, and there is no
provision in the law permitting a suit by these plaintiffs against Drumm's estate. The court
below sustained the demurrer. That decision must be and is affirmed.
[Headnote 1]
The recovery sought in this case is solely for the injury alleged to have been caused to
plaintiffs by the death of the husband and father, who was their support, in other words, for
the injury they sustained and not for the injury to Robert Estes. At common law, there would
be no cause of action in them; it would be considered that they had not sustained any
compensable loss. But many years ago the legislatures of the various states enacted laws
giving rights of action under such circumstances. Thereby new causes of action came into
being which otherwise would not exist. Not all the statutes of the many states are alike and
resort must be had to the language of the particular statute to determine its scope and
applicability.
[Headnotes 2, 3]
Under the common law the death of the wrongdoer caused an abatement of any cause of
action in tort against him. In Gosling v. Nichols, 59 Cal.App.2d 442, 139 P.2d 86, 87, the
court said:
A tort action abates upon the death of the wrongdoer at any time before the action is
ready for rendition of a final judgment, in the absence of a statute expressly providing that the
cause of action shall survive.
Section 8554, N.C.L. and section 9194, N.C.L. refer to causes of action surviving the
death of the injured person but in neither of them is there any survival of an action against a
wrongdoer after his death. If a statute merely gives a right of action against a wrongdoer, and,
in specific words, does not make the action survive the death of the wrongdoer, there is no
survival. 1 Am.Jur. 97.
In the recent case of Mull v. Wienbarg, 66 Wyo. 410, 212 P.2d 380 at 385, the Supreme
Court of Wyoming said:
It is said in 25 C.J.S., Death, Section 42, page 1135, speaking of the statute here in
question (Lord Campbell's Act) that: In the absence of a statute expressly so providing, the
right of action for death by wrongful act does not survive the death of the wrongdoer.' In
Kranz v. Wisconsin Trust Co., 155 Wis. 40, 143 N.W. 1049, 1050, Ann. Cas. 1915C 1050, it
was said: And in this connection it should be observed that there is a vital difference
between the survival of a cause of action upon the death of the injured party and a survival of
liability upon the death of the wrongdoer. A statute may provide for the one and not for the
other.' In Hegerich v. Keddie, 99 N.Y. 258, 1 N.E. 787, 793, 52 Am. Rep. 25, the court,
speaking of a statute above in question, stated: It will be observed, also, that the statute,
although creating a new cause of action, and passed for the express purpose of changing the
rule of the common law in respect to the survivability of actions, and conferring a right upon
representatives which they did not before possess, does not undertake, either expressly or
impliedly, to impair the equally stringent rule which precluded the maintenance of such
actions against the representatives of the offending party.'
The question involved in the present case is: Did any cause of action survive the death of
the alleged wrongdoer?
We find no statute which permits such survival.
However, plaintiffs point to and rely upon section 240.01 N.C.L. 1931-1941, which reads
as follows:
An Act to provide for the survival of causes of action for personal injuries upon the death
of the person injured or of the person liable for such injuries, or of both, specifying the
measure of damages in such action.
Sec. 1. Causes of action, whether suit has been brought upon the same or not, in favor of
the injured party for personal injuries other than those resulting in death, whether such
injuries be to the health or to the reputation or to the person of the injured party, shall not
abate by reason of his death nor by reason of the death of the person against whom such cause
of action shall have accrued; but in the case of the death of either or both, such cause of
action shall survive to and in favor of the heirs and legal representatives of such injured party
and against the person, receiver, or corporation liable for such injuries, and his or its legal
representatives; and so surviving such cause of action may be hereafter prosecuted in like
manner and with like legal effect as would a cause of action for injuries to or destruction of
personal property. The court or jury in every such action may give such damages, pecuniary
and exemplary, as it shall deem fair and just.
Sec. 2. Where the wrongdoer is himself killed by the act causing the injury, the cause of
action, if any, shall be deemed to have accrued against deceased during his lifetime.
Plaintiffs contend that their alleged cause of action is covered by that statute and, as
therein stated, it shall not abate by reason of (the injured party's death) nor by reason of the
death of the person against whom such cause of action shall have accrued; but in the case of
the death of either or both, such cause of action shall survive to and in favor of the heirs and
legal representatives of such injured party * * * But, plaintiffs say, the statute has reference
to themselves and not to Robert Estes. They believe they are the injured parties referred to
in the statute and that the cause of action they claim to have will not abate in the event of
their deaths but will survive to their heirs and legal representatives.
they claim to have will not abate in the event of their deaths but will survive to their heirs and
legal representatives.
[Headnote 4]
We are not persuaded that the argument is sound. In our opinion, section 240.01 is
applicable to Robert Estes as the injured party and for his personal injuries and does not
supply the need of plaintiffs here to show a statute which permits an action to survive the
death of the wrongdoer. Also, it expressly states that it does not apply to injuries resulting in
death. If the injuries there covered are those to Robert Estes, the statute has no application
here.
[Headnote 5]
Our conclusion is in consonance with that reached in Hendricks v. Kauffman, 340 Mo. 74,
101 S.W.2d 84 at 86, which was decided upon the language of a Missouri statute somewhat
similar to our statute. In that case the children of a man killed by defendant's automobile
brought a suit and recovered a verdict. On appeal, the judgment was reversed and a new trial
ordered. In the meantime, defendant had died, and the lower court, on motion, dismissed the
action upon the ground that it had abated by reason of defendant's death. That action was
affirmed, the court saying:
By that section it is provided, in substance, that causes of action under which suit has or
may hereafter be brought by the injured party for personal injuries, other than those resulting
in death, shall not abate by reason of the death of the person injured, nor by reason of the
death of the person against whom such cause of action shall have accrued; but such causes of
action shall survive. This statute, as we view it, by very reason of the precision of its wording,
is self-interpretive. It expressly excludes from the scope of its operation personal injuries
other than those resulting in death.' [personal injuries resulting in death.] Hence, there is
nothing about it to construe. Virtually we are asked to strike out this important and
significant exception.
strike out this important and significant exception. This we have neither disposition nor right
to do.
It is fundamental that the functions of this court are not legislative and until such time as
the legislature of the State of Nevada seems favorably disposed to the enactment of
appropriate legislation providing for the survival of a right of action against the
representatives of the wrongdoer, as much as we might be in favor of such legislation, it is
our duty as we see it not to encroach upon that branch of government. If it be thought that a
different rule would be more just and in keeping with the progress and enlightenment of the
age, the legislature is the proper body to make such provision.
The cause was correctly decided, and the judgment is affirmed, with costs.
____________
68 Nev. 342, 342 (1951) Kitselman v. Rautzahn
ALVA LA SALLE KITSELMAN, Appellant, v. MARJORIE KITSELMAN DUNN
HANSON O'SHEA RAUTZAHN, RICHARD RAUTZAHN, LESLIE K. FIGUEROA,
THE SAGE, INC., a Nevada Corporation, PYRAMID LAKE RANCH, INC.,
a Nevada Corporation, KATHRYN N. DRACKERT, HARRY DRACKERT,
and WALTER L. PATTRIDGE, Respondents.
No. 3605
June 21 1951. 232 P.2d 1008.
Appeal from the Second Judicial District Court, Washoe County; Wm. McKnight, Judge,
department No. 1.
Suit by Alva La Salle Kitselman to recover shares of stock representing ownership of the
Pyramid Lake Ranch from Marjorie Kitselman Dunn Hanson O'Shea Rautzahn and others.
From a judgment for defendants and denial of motion for new trial, plaintiff appealed. The
Supreme Court, Merrill, J., held that the evidence sustained the finding that the assignor
was competent at the time of the transfer of the stock.
sustained the finding that the assignor was competent at the time of the transfer of the stock.
Order affirmed.
Clyde D. Souter, of Reno, for Appellant.
Craven & Busey, and R. C. Bennett, all of Reno, for all Respondents save the Drackerts.
Cantwell & Loomis, of Reno, for Respondents Kathryn N. Drackert and Harry Drackert.
Where there is substantial conflict in testimony and some substantial evidence in support of the findings
of lower court, those findings will not be disturbed upon review.
2. Corporations.
In suit by brother against sister and mother to recover stock allegedly transferred by brother when legally
incompetent, evidence sustained finding that brother was competent at time of executing transfer of stock.
Where trial court held brother to have been legally competent at time of executing stock transfer to his
sister, any error as to admission of evidence as to sum paid by mother for stock transferred from sister or
sister's expenses for corporate debts and improvements was immaterial.
4. Evidence.
The opinion of a physician or surgeon as to condition of injured or diseased person, based wholly or in
part on history of case as related to physician or surgeon in course of examination of party made out of
court for purpose of qualifying physician or surgeon to testify as medical expert, is not admissible.
5. Evidence.
Where physician privately examined assignor of stock for purpose of preparing to testify as medical
expert upon his mental condition, trial court properly refused to allow physician's conclusion as to
assignor's mental condition based in whole or in part upon medical history privately related to prepare
physician as expert.
6. Trial.
Fact that trial court had overruled motion to dismiss at close of plaintiff's evidence did not preclude it
from finding for defendant, if, after hearing whole case, it concluded that plaintiff had not sustained his
case by a preponderance of all the evidence.
7. Judges.
Party, in seeking transfer of action to another department because of bias or prejudice of trial judge, is
compelled to do so by disqualification of trial judge in advance of trial. N.C.L.1931-1941 Supp., sec. 8407.
Where party failed to show that any injury was sustained by failure to seek disqualification of trial judge
at proper time, error, if any, in overruling motion for new trial on ground of surprise through discovery
after trial of alleged bias or prejudice of trial judge, was without prejudice. N.C.L.1931-1941 Supp., sec.
8407.
9. New Trial.
Where party sought new trial on ground of surprise through discovery after trial of bias or prejudice of
trial judge for which judge could have been disqualified in advance of trial, but party showed only
suspicion of unconscious bias or prejudice, party did not establish ground of disqualification.
N.C.L.1931-1941 Supp., sec. 8407.
OPINION
This is an appeal from order of the trial court denying motion for new trial. Suit was
brought by the appellant as plaintiff to recover shares of stock representing ownership of the
Pyramid Lake Ranch located in Washoe County, Nevada, and for an accounting of corporate
profits realized from the operation of the ranch. The stock had been assigned by appellant to
his sister, respondent Marjorie Rautzahn, and by her to the parties' mother, respondent
Figueroa. The interests of the remaining parties respondent do not concern us in this appeal.
Appellant contends that he was legally incompetent on the occasion of the execution of the
assignment. The trial court found him to be competent and entered judgment accordingly.
Motion for new trial was made by appellant upon four grounds and was denied upon all. This
appeal, through four assignments of error, entails a review of each of the grounds so
presented. The principal ground was insufficiency of the evidence to justify the decision of
the trial court.
Appellant purchased the Pyramid Lake Ranch in 1936 and commenced operation of the
property as a guest ranch. In 1937 he incorporated The Sage, Inc. and transferred the ranch
property to this corporation taking corporate stock in exchange. Appellant's operation of the
ranch was not successful financially. In 1937 he was already hard pressed by creditors and to
avoid losing the ranch entered into an agreement with his sister, respondent Marjorie
Rautzahn, whereby she assumed the obligations of the corporation and agreed to make certain
desired improvements on the ranch. In exchange, appellant assigned his corporate stock to her
with an option to take it back after five years upon reimbursing her for the amounts expended
by her pursuant to agreement. Marjorie Rautzahn then assumed management of the ranch. On
August 29, 1940, appellant, by gift in writing, released to his sister all of his interest under his
option in the corporation and the ranch. This gift was subsequently ratified by formal written
assignment to his sister, executed by appellant April 24, 1941. Shortly thereafter Marjorie
Rautzahn assigned the stock and all interest she had in the ranch to respondent Figueroa who
has since claimed title thereto.
The essential question presented by the suit is appellant's competence to execute the gift
and assignment in 1940 and 1941. The essential question upon this appeal is the sufficiency
of the evidence to justify the decision of the trial court that appellant was competent.
[Headnote 1]
This court has frequently ruled that where there is a substantial conflict in the testimony
and some substantial evidence in support of the findings of the lower court those findings will
not be disturbed; that the weight of the evidence and the credibility of the witnesses is within
the exclusive province of the trial court. Jones v. West End Con. M. Co., 36 Nev. 149, 134
P. 104, 106.
Appellant concedes this general rule but contends that the case before us falls within the
well-recognized exception as stated in Watt v. Nevada Central Railway Co., 23 Nev. 154
23 Nev. 154, 44 P. 423, 427, 46 P. 52, 726, 62 Am.St.Rep. 772 (and followed in Smith v.
Goodin, 46 Nev. 229, 206 P. 1067):
If there be no substantial conflict in the evidence upon any material point and the verdict
or decision be against such evidence upon such point, or where the verdict or decision strikes
the mind, at first blush, as manifestly and palpably contrary to the evidence, the supreme
court will direct a new trial.
We are unable to concur with appellant in his contention. In our view this is a case for
application of the general rule rather than of the exception.
Appellant's incompetence is predicated in his pleadings and his own testimony upon
temporary loss of memory. He testifies: that his physical and mental condition was weakened
by the practice of Yoga; that in 1940 following the death of his father and of his sister's
husband, he offered to relieve his sister of the ranch operation; that he was advised by her and
subsequently by her attorney that, notwithstanding his agreement, he had no further interest in
the ranch; that the shock which these statements caused to him in his weakened condition
induced a complete lapse of memory for a period of about two years during which period of
blackout the gift and assignment in question were executed.
In support of plaintiff's contention of incompetence six witnesses testified to his activities
during or shortly prior to the period of blackout. From their testimony it most certainly
must be conceded that appellant was possessed of an extraordinary talent for idiosyncrasy and
unusual intellectual pursuits. (A catalogue of his accomplishments in this field, while no
doubt providing interesting reading, would hardly serve any other purpose.) In opposition,
respondents Figueroa and Marjorie Rautzahn supported by one disinterested witness, testified
that, notwithstanding his unusual mode of living and unusual business and intellectual
interests during the "blackout" period, appellant was then fully competent and as normal
as he subsequently was at the time of the trial.
the blackout period, appellant was then fully competent and as normal as he subsequently
was at the time of the trial.
It may be said of counsel for all parties that the art of cross-examination was most
effectively demonstrated upon these witnesses. In the record before us we have had the
benefit of some 350 pages of testimony, from a study of which it would require the wisdom
of Solomon to ascertain the truth of appellant's condition at the time in question. The task was
most conscientiously undertaken by the trial court. Its opinion upon motion for new trial
formed a document of over fifty pages in which the testimony of each witness is carefully
analyzed and weighed. That the demeanor of witnesses upon the stand was an important
consideration in the court's conclusions is made most apparent. Here, indeed, would appear to
be the ideal case to exemplify the propriety of the general rule as stated.
While refuge might well be taken in that rule it would, we feel, be unfair to the trial court
thus to dispose of the matter. In our view, the strength of respondents' case lies more in
documentary evidence than in the oral testimony. The record contains over 150 pages of
correspondence between appellant and others, which provides substantial support for the
decision of the trial court. This correspondence divides itself into two periods: the blackout
period and the time subsequent thereto.
During the period of blackout itself, appellant conducted a most enlightened and
intelligent correspondence with his mother relative to his desire to exchange certain stock
holdings in Indiana Wire and Steel Co. for stock in Standard Oil Co. of Indiana, together with
discussion of details of alternate plans by which the exchange might be effected. During this
period his correspondence on this and other subjects shows no lack of memory of past events
and no lack of competence. This period terminated, as closely as appellant can fix it, in
September, 1942.
1942. The month previous, however, he sufficiently recollected the gift to his sister to
recognize it in letters to his mother and brother. On August 14, 1942, he wrote to his mother,
I freely gave to my sister a property into which I had put $75,000.00, not counting money
wasted, because she had just lost Floyd and Pop and I did not want any strife with her.
In that same letter, he wrote with reference to his brother,
Last night Don ran into Metta and told her that I was an atheist (because I belong to no
organized church) and that I was just waiting to get hold of his money. He is convinced that
he will be killed in the war and what burns him up about it is that Marge and I will get his
money. I sent him today a fully legal disclaimer of any possible inheritance I might ever
receive from him, but I gravely doubt that he will change his opinion in the least.
Under the same date he wrote his brother,
I gave Marjorie a property into which I had put $75.000.00 not counting money wasted,
because she had just lost Floyd and Pop and I wanted no strife between usyet she still
considers me a bad egg.
Enclosed with that letter was a document stating in part,
This is to certify that I hereby relinquish any and all claims that I might have in future
upon any possible estate of Donald C. Kitselman.
Appellant recalled not only the gift itself (which had been made two years before) but the
reasons which had impelled it. His continuing desire to avoid strife with members of his
family and to present himself to them in a favorable light prompted a somewhat similar
gesture to his brother.
The month following this correspondence, according to appellant's testimony, he came
back to consciousness and learned of his gift to his sister. He did not, however, repudiate it
as one might have expected him to do.
Instead he accepted the fact of the gift and proceeded to negotiate with his mother for the
securing of her interests, seeking in this manner to regain control of the ranch. These
negotiations proceeded through several stages.
First, one which may be described as wheedling. By letter to his mother, dated September
17, 1944, appellant writes:
Doesn't it seem more fitting to you that I, at my age, should be the one to operate a
business like the Ranch? You have the Dana place to live in, and business properties in
Mexicoplease, may I have the Ranch?
Second, a stage which may be characterized as one of more businesslike approach. Under
date of January 25, 1946, he wrote to his mother,
* * * you allow me to operate the ranch on a cash basis at my own expense and buy it
from you bit by bit until a total of $100,000.00 has been paid, with the understanding that you
are to receive each month that portion of the profits which is proportional to the unpaid
purchase price.
Third (upon rejection of such propositions), we encounter a petulant stamping of the foot.
On March 7, 1946, he wired his mother, If that ranch is lost to me I am selling out and going
to Asia and not coming back.
Fourth, he resorts to accusations of fraud. On March 17, 1946, he wrote his mother,
referring to his sister.
She knows the stock-transfer is void because of fraud. She knows that both she and
Thomas Craven falsely told me I had no claim to the ranch whatever and that a nuisance
value of one or two thousand was all I represented, and it was only because of that fraudulent
information that I gave' her my supposedly negligible interest in the ranch. [This in itself is a
notable negation of blackout.]
Three claims she hasall forfeit. The first claim (the agreement) is void because of
non-fulfillment of contract, but the second two are void because they are acts of deliberate
fraud. Deliberate fraud, I may add, is a criminal offense.
is a criminal offense. Marge knows the truth of this, and so do you.
I warn you, therefore, to make no effort to sell the Ranch, for neither you nor Marge have
ever owned it!
Not once throughout this entire period was mention made of loss of memory or lack of
competence in the making of the gift.
Finally, his negotiation through its various stages proving unfruitful, appellant proceeded
to contemplation of other methods of recovery. On November 11, 1946, he wrote to his
mother, sister and brother:
This is Armistice Day, commemorating November 11, 1918, when two groups of people
decided to call it quits. They were still plenty sore at each other, but the strain of conflict was
no longer worth the trouble.
That is the case with me; I've had enough, and this is my final notice to that effect. I had a
nice lawsuit all set to get me back my precious ranchnot the case you were expecting,
based upon charges of skul-duggery and legal jugglery, but a nice, foolproof, legal angle for
which you folks had obligingly furnished all the evidence. Hell with it. The three of you
deserve to be dragged through a legal inquisitionbut I don't see why I should have to do it.
* * *
On June 5, 1947, this action was brought. In the light of the nature of this suit, one would
be justified in concluding that the nice, foolproof, legal angle to which appellant referred
was his supposed lack of competence. In the light of the record in this case, one would be
justified in concluding that the evidence which members of the family had obligingly
furnished referred to letters written to appellant by his mother in which she dealt in a critical
manner with his eccentricities. Such letters were offered in evidence by appellant and are here
relied upon by him in support of his contention of incompetence. In our view they do not lend
support to that contention or to the probability of loss of memory. Rather, they appeal to us as
commendable efforts on the part of a distracted mother to persuade her son from a
deliberate course of extreme folly.
a distracted mother to persuade her son from a deliberate course of extreme folly.
[Headnote 2]
Appellant's first assignment of error, that the evidence is insufficient to justify the decision
of the trial court, is held to be without merit.
[Headnote 3]
Appellant's next assignment of error relates to errors of law occurring at the trial and
excepted to by him. These consist (with the exception later discussed) of the admission over
appellant's objection of evidence relating to the sums paid by respondent Figueroa for the
stock transferred to her and to the extent of respondent Marjorie Rautzahn's disbursements for
corporate debts and improvements. These points might well have been pertinent had we
concurred in appellant's contention of incompetence and that grounds for rescission
accordingly existed. In the light of our holding, however, any error which may have been
committed in these respects is wholly immaterial.
[Headnotes 4, 5]
The last assigned error of law occurring at the trial related to the testimony of a
psychiatrist called as witness for appellant. In expressing his expert opinion as to appellant's
mental condition, an objection was sustained to any conclusion of the witness based in whole
or in part upon appellant's history as privately related to the witness by the appellant.
The general rule is that the opinion of a physician or surgeon as to the condition of an
injured or diseased person, based wholly or in part on the history of the case as related to the
physician or surgeon in the course of an examination of the former made out of court for the
purpose of qualifying the physician or surgeon to testify as a medical expert, is not
admissible, * * *. 20 Am.Jur. 728 (Evidence, sec. 866). It is apparent from the record that
the witness' examination of appellant was for this purpose and not for the purpose of
treatment.
treatment. Accordingly, we find no error in the court's ruling.
Moreover, despite the limitations so placed upon him, this witness was still able to
conclude and testify that appellant was incompetent. It is, therefore, difficult to see how
appellant was prejudiced in this regard. The trial court is sustained upon this assignment of
error.
[Headnote 6]
Appellant's next assignment of error is that the decision is against law in this: that at the
close of appellant's case respondent moved for dismissal of the complaint for failure of
appellant to prove his case; that the motion was denied by the trial court; that in so acting the
court recognized that appellant had established a prima-facie case; that subsequently
respondent presented no evidence worthy of the name to overcome appellant's case; that the
trial court, in ultimately deciding for respondent, in effect reversed itself and erred in so
doing.
The fact is, however, that evidence was presented by respondents subsequent to the denial
of their motion for dismissal. As already stated in this opinion, the trial court in its decision
carefully weighed and analyzed the evidence. We have already determined that there was
evidence to support its decision.
The fact that the court had overruled a demurrer to plaintiff's evidence in no wise
precluded it from finding for defendant, if, after hearing the whole case, it concluded plaintiff
had not sustained its case by a preponderance of all the evidence. Lynde-Bowman-Darby Co.
v. Huff, 33 Okla. 239, 124 P. 1085, 1087.
The trial court is sustained upon this assignment of error.
Finally appellant assigns as error, failure to grant new trial upon the ground of surprise
which ordinary prudence could not have guarded against. Subsequent to the rendition of
judgment by the trial court, appellant learned that the trial judge in 1938 as a practicing
attorney had represented respondent Marjorie Rautzahn in an unopposed suit for divorce.
unopposed suit for divorce. Appellant also learned that the trial judge, after the submission of
this matter, had been represented by a member of the firm of Craven and Busey (counsel for
respondents) in seeking a court order establishing the time and place of his birth and
parentage. Appellant in moving for a new trial filed an affidavit to the effect that had these
facts been known to him before trial he would have made application for the transfer of the
above-entitled cause to another department [for the reason that] I would feel and would have
felt that the intimate association of Judge McKnight in acting as attorney for my sister, one of
the Defendants as above stated, and his preference for the firm of Craven & Busey in
representing him in a very personal matter, would unconsciously affect the judgment of even
an honest Judge like Judge McKnight, or any other honest man who was placed in the same
situation.
[Headnote 7]
Appellant, in seeking transfer of the cause, would have been compelled to do so by
disqualification of the trial judge in advance of trial. Section 8407 N.C.L. 1929, Supp.
1931-1941, provides for such disqualification by the filing of an affidavit charging bias or
prejudice.
[Headnote 8]
We need not here decide whether surprise may be asserted when public records display the
facts nor whether the surprise here asserted is the kind of surprise contemplated by our
statute. Our decision is that appellant has failed to show that any injury was sustained by his
failure to seek disqualification of the trial judge at the proper time.
The facts set forth in appellant's affidavit cannot be said to establish bias or prejudice. At
the most they may be said to have created a suspicion in appellant's mind that such bias or
prejudice unconsciously may have existed. We find nothing in the record before us
demonstrating in the slightest degree any bias or prejudice on the part of the trial judge.
on the part of the trial judge. As we understand appellant's position he does not even now
contend that the judge in fact was biased or prejudiced. Appellant's contention is simply that
he was deprived of a legal right which otherwise he would have exercised. The case would
appear analogous to one where the challenge of a juror for cause was improperly sustained by
the court. Such error is held to be without prejudice if the jury subsequently selected proves
impartial. See, Sherman v. Southern Pacific Co., 33 Nev. 385, 111 P. 416, 115 P. 909,
Ann.Cas. 1914A 287.
[Headnote 9]
Moreover, in the absence of any showing of bias or prejudice, appellant has failed to
establish the very basis of the legal right of which he now contends he was deprived. That he
may have felt justified in charging bias or prejudice upon the basis of his suspicions alone
and, under the procedural requirements of the act (which demand neither proof nor
particulars), would have been able to do so, does not suffice. Notwithstanding our liberal
pretrial right of disqualification, an unsupported post-trial suspicion of unconscious bias or
prejudice cannot be recognized as a legitimate basis for appellant's legal right. So to
recognize it would, in effect, be to make a new trial available in every case and permit
interminable and intolerable experimenting with trial judges. The trial court is sustained upon
this assignment of error.
The order of the trial court denying motion for new trial is affirmed with costs.
July 31, 1951.
Per Curiam:
Rehearing denied.
____________
68 Nev. 355, 355 (1951) In Re Ray's Estate
In the Matter of the Estate of CARL RAY,
Deceased, Re: Petition of Truman Nye.
No. 3666
June 27, 1951. 233 P.2d 393.
Motion to dismiss an appeal from the Eighth Judicial District Court, Clark County; Frank
McNamee, Judge, department No. 1.
Proceedings in the matter of the estate of Carl Ray, deceased, in which Truman Nye filed a
petition for order requiring executors to pay petitioner $100 per month in accordance with
testamentary trust. From an order directing payment to petitioner out of general funds of
estate, executors Ida Angelot Ray and Paul Angelillo appealed. The Supreme Court, Eather,
J., held that executors were not parties aggrieved by order directing distribution of estate and
had no right to appeal therefrom.
Appeal dismissed.
Jones, Wiener & Jones, of Las Vegas, for Appellant.
Hawkins & Cannon, of Las Vegas, for Respondent.
An executor or administrator, as such, is not an aggrieved party entitled to appeal from decree of
distribution determining share of each of various claimants in estate of decedent, but his duty is to obey
order of court in distributing such fund. N.C.L.1929, sec. 9385.57.
Where will directed creation of trust and specified that testator's nephew was to be paid certain amount
per month from income thereof and order of court was entered directing executors to pay bequest to
nephew out of general funds of estate because trust had not as yet been created, executors were not
aggrieved by such order and were not entitled to appeal therefrom, but their duty was to comply with
mandate. N.C.L.1929, sec. 9385.57.
An aggrieved party under statute granting to such person right of appeal from order of judgment is party
whose personal right is injuriously affected by the adjudication or whose rights of property are affected by
judgment or decree. N.C.L.1929, sec. 9385.57.
OPINION
This is a motion to dismiss an appeal from an order made and entered by the Eighth
judicial district court of the State of Nevada, in and for the county of Clark, department No. 1
thereof, in the matter of the estate of Carl Ray, deceased, of date December 14, 1950, wherein
the said court ordered that the said Executors be, and they are hereby directed to pay to the
Petitioner, Truman Nye, the sum of One hundred ($100) Dollars per month in accordance
with the provisions of the Last Will and Testament of said deceased, Carl Ray, said payments
to be made in a lump sum covering the period of time from the date of death of said deceased
to the date hereof, at the rate of One hundred ($100) Dollars per month, and to be paid within
ten days from this date; and
It is Hereby Further Ordered that said Executors thereafter continue the payment of One
hundred ($100) Dollars per month, each and every month, to the said Truman Nye, until said
estate is closed or until the further order of this Court.
To a full understanding of the matter under consideration a brief statement is necessary.
The deceased, Carl Ray, died on the 21st day of July, 1949, at Los Angeles, California. He
left a will which was admitted to probate on October 17, 1949, in the Eighth judicial district
court of the State of Nevada, in and for the county of Clark. The will named testator's widow,
Ida Angelot Ray, and the testator's Los Angeles attorney, Paul Angelillo, as coexecutors.
Letters testamentary were issued to these coexecutors, on October 17, 1949. Immediately they
qualified and ever since have been acting as coexecutors of the estate.
The estate of the testator consisted principally of real estate. He left commercial property
consisting of a business building in the downtown section of Las Vegas, Nevada, together
with nominal amounts of cash in a Las Vegas bank.
Las Vegas bank. He also left a home in Los Angeles, California, and some commercial real
estate in Cheyenne, Wyoming.
Reference to testator's will reveals that the testator, after making several nominal gifts, left
the residue and remainder of his estate, which consisted of the bulk of the estate, to three
trustees, and he thereby provided for the creation of a trust, the principal purpose of which,
according to the terms of his will, was to provide for the support and maintenance of his
widow and minor child or children.
The will directed that the net income from the trust estate, commencing at the date of
testator's death, should be divided into two equal parts and that the first half of such net
income, but not less than $500 per month, should be paid to testator's widow and that the
other half of said net income should be devoted to the payment of the sum of $100 per month
for the support of testator's minor daughter, and the further sum of $100 per month during the
term of this express trust to the testator's nephew, Truman Nye. The testator provided that the
provisions of this trust should be carried out as to his wife and his minor daughter and his
adopted son, which son, as a matter of fact, was never adopted. It appears that the testator, at
the time of his death, intended to adopt a son but never in fact did so.
On December 4, 1950, Truman Nye petitioned the trial court for an order requiring the
executors to pay forthwith to the petitioner the sum of $100 per month for each and every
month beginning with the testator's death. The executors filed an answer to the petition, in
which it is admitted that testator's will contained provisions for payments to Truman Nye.
The answer set up two affirmative defenses: first that the trust fund out of which said
payments to Truman Nye were to be made had not yet been created, and that the executors
had no authority under the terms of the will to make payments to Truman Nye out of the
general funds of the estate or out of any other funds, and that payments could be made by
the trustees only.
that payments could be made by the trustees only. The other affirmative defense alleged that
Truman Nye had forfeited his right, title, and interest in and to the bequest for having
attacked and opposed the will. In regard to this latter defense the trial court found in favor of
the petitioner Truman Nye.
The appeal is based solely upon the failure of the trial court to allow the executors' first
affirmative defense and upon the trial court's order directing the executors to pay the bequest
to Truman Nye out of the general funds of the estate, when in fact the trust fund had not as
yet been created. The sole question presented upon this appeal then, is whether or not the trial
court had authority under the terms of the will to direct the executors to pay a bequest to
Truman Nye out of the general funds of the estate.
The attorneys for Ida Angelot Ray and Paul Angelillo, executors of the estate of Carl Ray,
deceased, appealed from the decision and order directing the payments to Truman Nye.
This matter is now before the court on the motion of respondent, Truman Nye, to dismiss
the appeal of Ida Angelot Ray and Paul Angelillo, coexecutors of the estate of Carl Ray,
deceased.
The grounds for the motion are as follows:
(a) That said order so appealed from was not an appealable order; and
(b) That said executors, and each of them, may not appeal from such order even if it were
an appealable order because they were not, nor was either of them, aggrieved, and only
persons aggrieved by the said order were entitled to appeal therefrom.
It is the contention of the appellants that the law, with reference to the right of an executor
or administrator to appeal, has been fairly definitely established in the State of Nevada and in
other jurisdictions.
The first case cited by appellants is In Re Forney's Estate, 44 Nev. 279, 194 P. 331. The
conclusion reached in the Forney case by this court constitutes no precedent to support the
contention that the executors in the Ray estate have an appealable interest in the matter to
entitle them to maintain an appeal.
in the Ray estate have an appealable interest in the matter to entitle them to maintain an
appeal. The rule is elementary that an executor or administrator, without any interest in a
distributive fund, is not a party aggrieved and may not appeal, his duty being to obey the
order of the court in distributing the fund.
The appellant quotes from a decision rendered in the case of In Re Heydenfeldt's Estate,
117 Cal. 551, 49 P. 713, wherein it was held that An administrator can appeal in general,
unless his only remaining duty is to deliver the estate over to those designated by the court.'
The decision in the Heydenfeldt case was cited and explained in the very recent case of In
Re Kessler's Estate, 32 Cal.2d 367, 196 P.2d 559, in which the court held that:
Generally, an Executor or Administrator acting in his representative capacity, is an
indifferent person as between real parties in interest and consequently cannot litigate
conflicting claims of heirs or legatees at the expense of the estate, and hence cannot be an
aggrieved' party entitled to appeal from a decree determining the share of each of the various
claimants in the estate of decedent.
That case cites many authorities to support the holdings of other courts that an executor
or administrator is not an aggrieved party entitled to appeal from a decree of distribution
determining the share of each of the various claimants in the estate of a decedent.
The appellant also cites the case of Esmeralda County v. Wildes, 36 Nev. 526, 137 P. 400,
wherein it is quoted by the appellant from the said case as follows:
(3) If the receiver had an appealable interest in the subject of the order, a question not
involved on this motion, it was his duty to appeal from the adverse judgment rendered in a
judicial proceeding tried as an ordinary adverse civil action. A receiver may appeal from any
order affecting his proper duties or personal rights, or where the estate as a whole is
interested.
36 Nev. on page 536, 137 P. on page 403, in the case of Esmeralda County v. Wildes,
supra, we also find the following statement of the law by the court:
"As we have already stated, there are instances in which the receiver may rightfully
appeal from an order of the court of which he is the appointee, as, for instance, where his
commissions or other allowances as trustee are affected by the order, or where he is
interested in the fund to be distributed as a creditor, or where the question of the
increase or diminution of the whole fund in his hands as trustee is involved, and such
increase or diminution would inure to the benefit or loss of all the creditors.
Esmeralda County v. Wildes, supra, we also find the following statement of the law by the
court:
As we have already stated, there are instances in which the receiver may rightfully appeal
from an order of the court of which he is the appointee, as, for instance, where his
commissions or other allowances as trustee are affected by the order, or where he is interested
in the fund to be distributed as a creditor, or where the question of the increase or diminution
of the whole fund in his hands as trustee is involved, and such increase or diminution would
inure to the benefit or loss of all the creditors.
The order made by the lower court in this instance does not affect the receiver, for any of
the reasons stated above. His commissions are not affected; he is not a creditor, and the order
does not involve an increase or diminution of the estate, but, on the other hand, the matter
resolves itself into a contest between creditors of the insolvent institution wherein one
creditor seeks to have its claim preferred for payment as against all others. In such a case,'
says the Supreme Court of Maryland, the trustee has no right to intervene, and it is not his
duty to prolong the litigation. The creditors whose rights are affected are the proper persons
to appeal.'
We will not prolong this opinion by further discussion of the cases cited by the appellant.
We have examined all of them and find them to be without merit in this particular case.
[Headnotes 1-3]
As the second ground set forth in the motion to dismiss is well taken, we need not discuss
or pass upon the first. No one but an aggrieved party may appeal under our statutes.
Section 9385.57 N.C.L. provides:
7. Any party aggrieved may appeal in any action, case or proceeding prescribed in this
act. * * *
Appeals are purely statutory. The question presented, therefore, is whether the executors
are aggrieved parties within the meaning of the quoted section.
therefore, is whether the executors are aggrieved parties within the meaning of the quoted
section.
By the great weight of authority, an aggrieved party under statutes granting to such the
right of appeal from an order or judgment, is one whose personal right is injuriously affected
by the adjudication, or where the right of property is adversely affected or divested thereby.
Kenney v. Hickey, 60 Nev. 187, 105 P.2d 192, and cases cited. * * *
The rule generally adopted, * * * in construing statutes on this subject, is that a party is
aggrieved by the judgment or decree when it operates on his rights of property or bears
directly upon his interest. 2 Cyc. 633. The word aggrieved' refers to a substantial grievance, a
denial of some personal or property right, or the imposition upon a party of a burden or
obligation.
This statement of the general rule was approved by the court in Kondas v. Washoe County
Bank, 50 Nev. 181, 254 P. 1080, and in Esmeralda County v. Wildes, 36 Nev. 526, 137 P.
400.
In the case of In Re Maher's Estate, 195 Wash. 126, 79 P.2d 984 at 986, 117 A.L.R. 91, the
court stated:
The general rule is that an administrator, as such, cannot appeal from a decree of
distribution determining the persons who should receive an estate, either as heirs at law of the
decedent or as distributees under a will. Citing cases.
An administrator, who has no interest in the estate, cannot appeal as such from an order
of distribution. In Re Dewar's Estate, 10 Mont. 422, 25 P. 1025.
Our finding on the motion to dismiss the appeal renders unnecessary a determination of
the other questions presented.
The appeal should be dismissed.
It is so ordered.
____________
68 Nev. 362, 362 (1951) Ex Parte Fouquette
In the Matter of the Application of CLAYTON OCTAVE
FOUQUETTE for a Writ of Habeas Corpus.
No. 3676
July 5, 1951. 233 P.2d 859.
Original proceeding in the matter of the application of Clayton Octave Fouquette for a writ
of habeas corpus against Arthur Bernard, warden of the Nevada State Prison, to secure his
release. The Supreme Court, Eather, J., held that a judgment of conviction regular upon its
face, which had not been reversed, was conclusive and could not be reviewed by habeas
corpus.
Proceedings dismissed and petitioner remanded to custody.
John W. Bonner, of Las Vegas, for Petitioner.
W. T. Mathews, Attorney General, Geo. P. Annand, Robert L. McDonald, Thos. A. Foley,
Deputy Attorneys General, of Carson City, and Roger D. Foley, District Attorney, Clark
County, for Respondent State.
Habeas Corpus.
Where judgment of conviction in criminal prosecution was regular upon its face, judgment was
conclusive until reversed, and could not be reviewed upon habeas corpus.
OPINION
The petitioner, Clayton Octave Fouquette, on the 20th day of November, 1948, was
convicted in the Eighth judicial district court of the State of Nevada, in and for the county of
Clark, of the crime of murder in the first degree and the punishment was fixed at death.
Thereafter, on November 24, 1948, petitioner through his attorney, moved for a new trial
upon several grounds, which said motion was denied and petitioner was thereupon sentenced
to death and placed in the custody of the warden of the state prison where he now remains.
the warden of the state prison where he now remains. He appealed from said judgment and
from the order denying his motion for a new trial, and the supreme court made an order
suspending the execution of said judgment and sentence until the determination of the appeal.
On the 10th day of August, 1950, the judgment and order of the trial court were affirmed
and this court directed the district court to make the proper order for the carrying into effect
by the warden of the state prison of the said judgment. State v. Fouquette, 67 Nev. 505, 221
P.2d 404. Petitioner filed a petition for rehearing which was denied on November 16, 1950.
This court filed its opinion in each instance.
Petitioner was resentenced to die on December 28, 1950. On December 18, 1950, this
court stayed the judgment of execution pending petition for a writ of certiorari to the United
States Supreme Court. On May 14, 1951, said petition was denied.
Pursuant to the above-mentioned directive the trial court issued a warrant of execution and
ordered said warden to execute the judgment and sentence of death within the limits of the
state prison on June 18, 1951. Whereupon petitioner filed in this court a petition for a writ of
habeas corpus, which was issued on June 11, 1951. In his petition he alleged that he is
unlawfully sentenced, imprisoned, detained and restrained of his liberty in the Nevada State
Prison in Ormsby County, Nevada, by Arthur Bernard, the warden thereof.
The illegality of his imprisonment is put upon the ground that his sentence, confinement,
and restraint are illegal, unlawful, and in violation of the rights guaranteed to petitioner by
statutes of Nevada and article I, section 8, of the Nevada constitution, and contrary to the
rights guaranteed petitioner by section 1, of the fourteenth amendment to the United States
constitution.
The illegality of his imprisonment is also put upon the grounds that he was insane on
August 19, 1948, the date of the alleged crime; that it was impossible for him to have had a
fair trial in Clark County in view of prejudice and adverse publicity and further that certain
confessions admitted as evidence were not legally admissible as voluntary confessions.
for him to have had a fair trial in Clark County in view of prejudice and adverse publicity and
further that certain confessions admitted as evidence were not legally admissible as voluntary
confessions.
The respondent warden filed his return to the writ and brought the petitioner into court on
the 29th day of June, 1951, at which time a full hearing was had, during which petitioner was
represented by his attorney, John W. Bonner, Esq., and the matter was submitted to this court
for decision.
Petitioner filed points and authorities in which he says the following three substantial
questions are raised:
1. Was petitioner insane on August 19, 1948, the date of the alleged crime?
2. Was it possible for him to have had a fair trial in Clark County, Nevada, in view of
prejudice and adverse publicity as disclosed by the record herein?
3. Were the confessions legally admissible as voluntary confessions?
These matters were all determined adversely to the contentions of the petitioner at the trial,
the motion for a new trial, the appeal and affirmance in this court and the denial of his
petition for rehearing.
From an examination of the record in the instant case it appears from the petition, as well
as from the return to the writ, that the judgment of conviction is regular upon its face. This
being true, it follows from the principles announced in Ex Parte Winston, 9 Nev. 71, 35 Pac.
St. Rep., page 71, and the authorities there cited, that the judgment of conviction in the
district court is conclusive until reversed. It cannot be reviewed upon habeas corpus.
9 Nev. on page 75 in the case of Ex Parte Winston, supra, the court stated:
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.
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. Citing numerous authorities.
The principle is too well settled to require discussion.
This proceeding is hereby dismissed, and petitioner is remanded to the custody of the
warden of the state prison.
____________
68 Nev. 365, 365 (1951) Nelson v. Paul
No. 3657
BERNARD D. NELSON, as Administrator of the Estate of RALPH NELSON, also Known
as RALPH JOSEPH NEILSON, Deceased, Appellant, v. CHARLES W. PAUL, also
Known as C. W. PAUL; ROBERT BLASER and MARY BLASER, Doing Business as
the BLASER CONSTRUCTION CO.; and JOE ANACABE and FABIANA
ANACABE, his Wife, Respondents.
No. 3658
BERNARD D. NELSON, as Administrator of the Estate of BEATRICE ANN NELSON,
Deceased, Appellant, v. CHARLES W. PAUL, also Known as C. W. PAUL; ROBERT
BLASER and MARY BLASER, Doing Business as the BLASER CONSTRUCTION
CO.; and JOE ANACABE and FABIANA ANACABE, his Wife, Respondents.
68 Nev. 365, 366 (1951) Nelson v. Paul
No. 3659
MARY E. JONES, Appellant, v. CHARLES W. PAUL, also Known as C. W. PAUL;
ROBERT BLASER and MARY BLASER, Doing Business as the BLASER
CONSTRUCTION CO., and JOE ANACABE and FABIANA ANACABE, his Wife,
Respondents.
No. 3660
RUTH E. SPERRY, Appellant, v. CHARLES W. PAUL, also Known as C. W. PAUL;
CONSTRUCTION CO.; and JOE ANACABE and FABIANA ANACABE, his Wife
Respondents.
No. 3661
WILLIAM A. SPERRY, Appellant, v. CHARLES W. PAUL, also Known as C. W. PAUL;
CONSTRUCTION CO.; and JOE ANACABE and FABIANA ANACABE, his Wife,
Respondents.
July 9, 1951. 233 P.2d 857.
Motions to dismiss appeals from Fourth Judicial District Court, Elko County; D. W.
Priest, Presiding Judge.
Actions by Bernard D. Nelson as administrator of the estate of Ralph Nelson, also known
as Ralph Joseph Neilson, by Bernard D. Nelson, as administrator of the estate of Beatrice
Ann Nelson, by Mary E. Jones, by Ruth E. Sperry, and by William A. Sperry, against Charles
W. Paul, Joe Anacabe, Fabiana Anacabe, his wife, and others, to recover damages. From a
judgment dismissing defendants Anacabe, plaintiffs appealed. The Supreme Court, Merrill,
J., held that plaintiffs' appeals were not taken within the statutory time.
Appeals dismissed.
68 Nev. 365, 367 (1951) Nelson v. Paul
F. Grant Sawyer and Orville R. Wilson, both of Elko, for Appellants.
Royal A. Stewart and Richard W. Horton, both of Reno, for Respondents Joe Anacabe, and
Fabiana Anacabe, his wife.
Where plaintiffs' appeals from order dismissing defendants were taken within six months from filing of
judgment, but more than six months after filing of order dismissing defendants, the appeals were not
timely, since the statutory six months' period for taking of appeal commenced to run on the date the order
was filed. N.C.L.1931-1941 Supp., sec. 9385.60.
Under statute it is the rendition and not the entry of a judgment from which the statutory time limit runs,
and it is the announcement by the court of its determination of the matter which constitutes the rendition of
a judgment. N.C.L.1931-1941 Supp., sec. 9385.60.
3. Judgment.
Where it was clear from language of opinion and from its specific reference to all five cases against
defendants that former order was intended as a judicial determination of the identical issues in all five
cases, even though order was never filed in two cases, it constituted a rendition of judgment in all five
cases, and since counsel for plaintiffs were the same in all five cases plaintiffs were fully advised.
In action at law for damages, fact that order dismissing defendants in three out of five cases, filed more
than six months before plaintiffs' appeals, made no reference to costs, but judgment filed within statutory
period did allow costs, did not establish that order was not final disposition of matter, since trial court had
no discretion in matter of costs. N.C.L.1931-1941 Supp., sec. 9385.60; N.C.L.1929, sec. 8926.
OPINION
Motions have been made by respondents Anacabe to dismiss these appeals upon the
ground that they were not taken within the time provided by law. The appeals are taken from
judgment of the trial court in each case dismissing respondents Anacabe as parties
defendant and also are taken from order of the court in each case denying the plaintiff's
motion to amend the judgment.
68 Nev. 365, 368 (1951) Nelson v. Paul
are taken from judgment of the trial court in each case dismissing respondents Anacabe as
parties defendant and also are taken from order of the court in each case denying the
plaintiff's motion to amend the judgment. Respondents' motions were submitted to this court
on a single argument; and, in the interests of clarity and brevity, this single opinion will apply
to all five cases. The cases are actions for damages, all involving the same principles of law,
and growing out of the same set of facts. In each case the record is confined to the judgment
roll.
A demurrer to the complaint and a motion to strike were filed in the trial court in each of
the five cases by respondents Anacabe as defendants and by stipulation of counsel all were
submitted to the trial court on a single argument. On July 3, 1950 the trial judge signed a
document entitled Opinion And Orders On Demurrer And Motions To Strike which, after
an extensive discussion of the legal principles involved, provided in part as follows:
For the Reasons Given, It Is Therefore Ordered, that the defendants Joe Anacabe and
Fabiana Anacabe, his wife, be dismissed and stricken as parties defendant herein.
This order was filed July 5, 1950 in three of the five cases. For some unknown reason it
was not filed in two of the cases: Jones v. Paul and Ruth E. Sperry v. Paul.
On July 10, 1950 a document entitled Judgment was signed by the trial judge and on
July 12, 1950 was filed in each of the five cases. That document, identical in form in each
case, stated,
The demurrers of the defendants Joe Anacabe and Fabiana Anacabe, his wife, having
been sustained by order duly made on the 3rd day of July, 1950, and said defendants having
been dismissed and stricken as parties defendant herein, without leave to amend as to said
defendants; now, on motion of said defendants Joe Anacabe and Fabiana Anacabe, his wife,
It Is Ordered and Adjudged that the complaint herein be, and the same is hereby,
dismissed and that said defendants have and recover of the plaintiff above-named their
costs, taxed at $2.50."
68 Nev. 365, 369 (1951) Nelson v. Paul
herein be, and the same is hereby, dismissed and that said defendants have and recover of the
plaintiff above-named their costs, taxed at $2.50.
On July 13, 1950 a notice of decision covering all five cases was served and filed.
Section 9385.60, N.C.L. 1929, Supp. 1931-1941, provides in part as follows:
An appeal may be taken:
1. From a final judgment in an action or proceeding commenced in the court in which the
judgment is rendered, within six months after the rendition of the judgment.
[Headnote 1]
Each of these appeals was taken January 8, 1951 within six months from the filing of the
document entitled Judgment but more than six months after the filing of the order
dismissing the Anacabes. The sole question here involved is whether the six months' period
for taking of appeal commenced to run on July 5, 1950, on which date the order was filed in
three of these cases. In the view of this court it did; and the motions to dismiss, accordingly,
must be granted.
[Headnote 2]
It is to be noted from the quoted statute that it is the rendition and not the entry of the
judgment from which the time shall run. This court has frequently held that (notwithstanding
subsequent clerical entry or signing of formal written findings, judgment or decree) it is the
announcement by the court of its determination of the matter which constitutes the rendition
of a judgment. California State Telegraph Co. v. Patterson, 1 Nev. 150; Kehoe v. Blethen, 10
Nev. 445; Elder v. Frevert, 18 Nev. 278, 3 P. 237; Central Trust Co. v. Holmes Mining Co.,
30 Nev. 437, 97 P. 390; Coleman v. Moore & McIntosh, 49 Nev. 139, 241 P. 217; See Magee
v. Whitacre, 60 Nev. 202, 96 P.2d 201, 106 P.2d 751, (appearing in Pacific Reporter under its
original title of Magee v. Lothrop).
By the order of the trial court the rights of the Anacabes were fully determined.
68 Nev. 365, 370 (1951) Nelson v. Paul
Anacabes were fully determined. No further judicial determination remained to be made. The
fact that the Judgment specified more clearly than did the order the action taken by the
court upon the demurrers does not constitute the Judgment an exercise of further judicial
determination in that respect. By its recitals it purports to relate what had already been
accomplished by the order and does not purport to take new and further action. That
document, then, was merely a more formal statement of the judgment as it had already been
rendered.
[Headnote 3]
Appellants contend that since there was no oral pronouncement from the bench and since
the order was never actually filed in two of these cases, it cannot be said to constitute
rendition of judgment therein. It is clear from the language of the opinion, however, and from
its specific reference to all five cases, that the order was intended to and did constitute a
judicial determination of the identical issues of law in all five cases. Since counsel for
plaintiffs were the same in all five cases it cannot be said that failure to file the order in any
particular case left the court's decision and action therein unannounced. The appellant was as
fully advised as he would have been had the order been rendered in all five cases by a single
pronouncement from the bench.
The fact that the record in two of the cases does not contain the order in question (and that
this court should as to those cases close its eyes to all matters therein set forth) cannot affect
our opinion. The recitals in the Judgment in each of those cases are themselves sufficient in
scope to show full disposition of the case by order duly made on the 3rd day of July, 1950.
Appellants point to the fact that the order made no reference to costs while the Judgment
did allow costs in the sum of $2.50 which allowance was specifically referred to in the notice
of decision subsequently served and filed. They contend that under these circumstances the
order was not a final disposition of the matter, citing Magee v. Whitacre, supra, where it is
stated: "Appellants urge that the said decision of the trial court did not constitute a final
judgment, in that it left something to be done and for the future consideration of the
court in order to fully dispose of the issues and rights of the parties.
68 Nev. 365, 371 (1951) Nelson v. Paul
Appellants urge that the said decision of the trial court did not constitute a final judgment,
in that it left something to be done and for the future consideration of the court in order to
fully dispose of the issues and rights of the parties. Appellants urge two propositions as not
having been disposed of: * * * secondly, that the trial court in said decision failed to
determine the costs.
* * * As to the second proposition, the trial court did not make an order relative to the
costs until the filing of the formal findings and formal judgment, on the 26th day of
September, 1938, and no mention thereof was made in the decision of April 14, 1938. This is
an action in equity, and is clearly one in which the court is vested with discretion in the
assessment of costs, under section 8927 N.C.L. The case of Perkins v. Sierra Nevada S. M.
Co., 10 Nev. 405, 410, gives the following definition of a final judgment: A judgment or
decree is final that disposes of the issues presented in the case, determines the costs, and
leaves nothing for the future consideration of the court.' * * * [60 Nev. 202, 96 P.2d 202.]
[Headnote 4]
The quotation contains its own point of distinction from the cases before us. Magee v.
Whitacre was a suit in equity. These are cases at law for the recovery of damages, and the
trial court had no discretion whatsoever in the matter of costs. The Anacabes, under section
8926, N.C.L.1929, were entitled to costs as a matter of statutory right.
It is ordered that the appeal in each of these cases is hereby dismissed.
September 5, 1951.
Per Curiam:
Rehearing denied.
____________
68 Nev. 372, 372 (1951) Robinson v. McKay
GRACE PORTER ROBINSON, GEORGIA NEWMAN, Sometimes Known as G.
NEWMAN, ARTHUR L. WHITE, WILLIAM M. KEARNEY, HOWARD McKISSICK,
JOHN DOE, Et Als., Defendants and Appellants, v. JAMES T. McKAY and ALTA M.
McKAY, Plaintiffs and Respondents.
No. 3619
July 13, 1951. 233 P.2d 861.
Appeal from the First Judicial District Court, Lyon County; William D. Hatton, Presiding
Judge.
Action by James T. McKay and Alta M. McKay against Grace Porter Robinson, and
others, to quiet title to realty which had been sold at tax sale. From a judgment quieting title
in plaintiffs, defendants appealed. The Supreme Court, Eather, J., held that plaintiffs' defense
to defendants' claim of tax title that taxes had been paid for given year and that premises
consequently were not subject to sale for delinquent taxes did not embrace defense of
equitable redemption, but that such defense must have been specifically alleged in order that
defendants might be apprised of defense upon which plaintiffs relied.
Remanded to the trial court to permit plaintiffs to amend, and for a new trial on the
amended pleadings.
Kearney & Adams, of Reno, for Appellants.
George L. Sanford and John R. Ross, both of Carson City, for Respondents.
Taxation.
Defense of plaintiffs in quiet title action to defendants' claim under tax title that because of payment of
taxes premises had not been subject to sale for delinquent taxes at time of sale did not embrace defense that
plaintiffs had inquired of treasurer concerning delinquent taxes due and had paid amount represented by
him which was in fact incorrect, but defense of equitable redemption must have been specifically alleged in
reply so that defendant might have been apprised of particular defense upon which plaintiffs intended to
rely.
OPINION
A statement of the factual background of this case is as follows: For many years the
plaintiffs, husband and wife, operated certain ranching property situate in Smith Valley, in
Lyon County, owning two parcels of land referred to as the Tidd Place, consisting of 124
acres, and the Mann Place, consisting of 14 acres. Both parcels of land were within the
Walker River Irrigation District and subject to assessment for the benefits conferred by the
irrigation district.
The two parcels of land, that is the Tidd Place and the Mann Place, were each
separately assessed on the state and county assessment roll for the year 1941, each having its
own separate roll number. While a split assessment was permitted on the state and county
assessment roll that practice was not permitted on the assessment roll of the Walker River
Irrigation District, consequently both the Tidd Place and the Mann Place were
consolidated in one single assessment in the irrigation district roll. Section 8041, N.C.L.1929,
as amended, provides that the secretary of an irrigation district shall make up the assessment
roll of the district, and, on or before October 15 of each year, certify a duplicate of the roll in
its entirety to the county treasurer. The county treasurer then incorporates the irrigation
district assessment roll into the general roll. Section 8041 then proceeds:
* * * The assessments when levied and enrolled shall become due and delinquent at the
same time and be subject to the same penalties and shall be collected by the same officers and
in the same manner as state and county taxes. The county auditor, district attorney, clerk and
treasurer shall do and perform all acts necessary to accomplish the collection of the same with
penalties, the sale for delinquency, the redemption of the lands involved, and the remittance
of all proceeds to the district treasurer.
lands involved, and the remittance of all proceeds to the district treasurer. * * *
Such was the situation when the McKay lands (Tidd and Mann) became tax delinquent for
state and county taxes and irrigation district assessments levied for the year 1941.
In that year, 1941, the McKay lands became tax delinquent by reason of failure to pay (1)
the state and county taxes as shown on the state and county assessment roll, and (2) also
because of failure to pay the assessment of the Walker River Irrigation District as shown by
the assessment roll of the irrigation district as the same had been certified by the secretary of
the district to the county treasurer, and by him incorporated into and made a part of the
official assessment roll. Section 8041, N.C.L.1929, as amended.
Section 6442, N.C.L.1929, as amended, provides that the payment of the last quarter of
taxes levied for the previous year shall be paid on or before the first Monday in August, and
that at the close of business on the first Monday in August (of the year following that for
which the taxes were levied) the ex officio tax receiver shall designate as delinquent on the
assessment roll all property on which any taxes then remain unpaid.
This procedure was followed and on the first Monday in August, 1942, the ex officio tax
receiver marked the McKay lands as delinquent for state and county taxes and for
assessments of the Walker River Irrigation District levied for the year 1941. As a result of this
delinquency the McKay lands were sold as Tax delinquent property on the second Monday
in September, 1942, being September 14. At the sale one Georgia Newman, sometimes
known as G. Newman, bid the lands in for the then delinquent state and county taxes and
irrigation district assessments, together with interest, penalties and costs, and a certificate of
sale was thereupon issued to the said G. Newman. All this was done pursuant to the
directions of section 6447, N.C.L.1929, as amended.
From the date of the issuance of the certificate of sale to G.
to G. Newman on September 14, 1942, not one act was done by the proper officers of Lyon
County which would apprise the McKays, or anyone else for that matter, of the fact that the
McKay lands had been sold for state and county tax delinquencies and irrigation district
assessments and that unless redeemed before the expiration of the two-year period of
redemption expired (Sec. 6447), title to the McKay lands would be lost.
It will be observed that section 6448, N.C.L.1929, reads as follows:
After receiving the amount of taxes, penalty and costs, the treasurer shall make out in
duplicate a certificate, dated on the day of sale, stating (when known) the name of the person
assessed, a description of the land sold, the amount paid therefor, that it was sold for taxes,
giving the amount and year of the assessment, and specifying the time when the purchaser
will be entitled to a deed, if the land is not sooner redeemed; provided, that if no one else
shall bid upon any piece of land at such sale, the treasurer shall bid the same in for the benefit
of the county and state, and file a certificate thereof with the county recorder; and the same
shall be subject to redemption from the treasurer the same as from a private purchaser; and if
not redeemed, the title thereto shall vest in the county for the benefit of the county and state,
and may be disposed of as provided by law. Until the period of redemption as provided by
law has expired, the property described in the certificate of sale shall be assessed to the
person named in such certificate of sale, and before redemption by the owner thereof such
certificate holder shall be reimbursed for any additional taxes thereon he may pay, together
with interest thereon as provided by law. One of the duplicate certificates of sale issued by the
treasurer, in case of a private purchaser, shall be filed in the office of the county recorder.
The record indicates that no such duplicate certificate of sale was ever or at all filed by
the county treasurer in the office of the county recorder. The foregoing section {644S) also
requires that "until the period of redemption as provided by law has expired, the property
described in the certificate of sale shall be assessed to the person named in such
certificate."
going section (6448) also requires that until the period of redemption as provided by law has
expired, the property described in the certificate of sale shall be assessed to the person named
in such certificate.
The record indicates that the McKay property was never or at all assessed in the name of
G. Newman, the holder of the certificate of sale. On the contrary, the property at all times
during the period of redemption continued to be assessed to James T. and Alta McKay, and so
appeared in the assessment roll of Lyon County in the same manner as it had been assessed
prior to and during the year 1941, in which year it went delinquent for state and county taxes
and Walker River Irrigation District assessments.
On or about the first day of August, 1944, Alta McKay telephoned the office of the county
treasurer and ex officio tax receiver and inquired of that office the full amount of money to be
paid to redeem the lands prior to the expiration of the two-year period of redemption which
would be on September 14, 1944. The office not having the required information at hand
advised Alta McKay that, after checking the assessment rolls she would be advised by letter.
Under date of August 5, 1944, a letter was written to Alta McKay by the office of the
county treasurer and ex officio tax receiver in which it was set out that the full amount
necessary and required to redeem the lands in question was the sum of $106.77.
It appears that immediately upon the receipt of the letter above set out the McKays
forwarded the sum of $106.77 to the ex officio tax receiver, receiving from him his official
receipt.
The record indicates that the office of treasurer and ex officio tax receiver in checking the
assessment rolls of Lyon County for the purpose of securing the information to be forwarded
to the McKays, failed and neglected to examine and check the assessment roll made up by the
Walker River Irrigation District, and incorporated into state and county roll as provided by
section 8041, N.C.L.1929, as amended.
N.C.L.1929, as amended. As a result of this oversight the letter written to Alta McKay on the
5th of August, 1944, made no mention of the fact that in addition to the 1941 delinquent state
and county tax, plus penalties, interest and costs (which amounted to $106.77) there was also
due the assessment of the Walker River Irrigation District for the year 1941, together with
penalties, interest and costs, amounting to an assessment of $46.89 plus $6.91 by way of
penalties, interest and costs.
As a result of this situation the McKay lands, having been redeemed for the full amount of
state and county taxes plus penalties, interest and costs in the amount of $106.77, continued
to be delinquent and unredeemed for irrigation district assessments plus penalties, interest and
costs in the amount of $53.80.
The foregoing recitals give the factual picture as of October 18, 1944, on which date
Walter Whitacre, county treasurer and ex officio tax receiver issued a tax deed from Lyon
County to G. Newman. Thereafter and on December 7, 1944, Georgia Newman conveyed the
same lands to one Howard McKissick.
According to the record the McKays knew nothing of Georgia Newman and/or Howard
McKissick until on or about the 7th day of December, 1944, when they received a letter from
McKissick to the effect that he was the owner of certain specifically described lands and
requested that they vacate the same. Even then the McKays had no knowledge that G.
Newman had received a tax deed to their lands for the reason that the McKissick letter
referred to lands other than the Tidd Place and the Mann Place. As a result of the
McKissick letter the McKays made further inquiry as to the status of their land and the
matters hereinabove related became known to them.
Thereafter an action was commenced in the First Judicial District Court of the State of
Nevada, in and for the County of Lyon, by the plaintiffs, James T. McKay and Alta McKay,
filing on the 18th day of July, 1945, a complaint to quiet title to their farm lands (being the
"Tidd and Mann" places above mentioned).
the Tidd and Mann places above mentioned). Answers were filed by the various
defendants. That of McKissick, with which we are principally concerned, asserted title by
virtue of the tax deed.
The plaintiffs then filed their separate replies to each of the answers. The reply to the
answer of the defendant Howard McKissick admitted the deed of December 7, 1944, to
McKissick from G. Newman, and the tax deed from Lyon County to G. Newman on the 18th
day of October, 1944, but denied that said G. Newman ever or at all had any right, title, or
interest in or to the said premises, or ever was the owner thereof, or ever entitled to
possession, and denied that on the 7th day of December, 1944, being the date of the deed
from Georgia Newman to McKissick, or at any time thereafter, said Howard McKissick
became the owner, or became entitled to the possession of said lands.
In plaintiffs' reply to the answer of G. Newman plaintiffs admitted the execution of the tax
deed on October 18, 1944, but denied that it was issued in conformity with the provisions of
the statutes applicable thereto and that therefore the said G. Newman and Howard McKissick,
to whom she executed her deed on the 7th day of December, 1944, acquired no right, title or
interest in the lands.
The defendants, Howard McKissick, Georgia Newman, and Grace Porter Robinson, each
separately demurred to the replies filed to their respective answers. Each of said defendants
also moved to strike certain portions of the replies.
The case was assigned to the Hon. Wm. D. Hatton, and the demurrers and motions argued
before him, after which he made and filed his ruling thereon, sustaining demurrers upon the
ground that the reply failed to point out clearly or specifically the defects which, it was
contended, invalidated the tax title of defendants.
Following the ruling of the trial court sustaining the several demurrers, the plaintiffs filed
amended replies. These amended replies as directed to the answers of Howard McKissick
and Georgia Newman alleged that the purported tax deed to Georgia Newman of date
October 1S, 1944, was void for the reason that the treasurer and ex officio tax receiver
had {a) failed and neglected to publish the notice required by section 6440, N.C.L.1929, as
amended, for the time and manner required by law; {b) failed and neglected to comply
with the provisions of section 6442, N.C.L.1929, as amended; {c) failed and neglected to
comply with the provisions of section 6447, N.C.L.1929, as amended; {d) failed and
neglected to comply with the provisions of section 6444, N.C.L.1929, as amended; {e)
failed and neglected to comply with the provisions of section 644S, N.C.L.1929, in that the
lands referred to had never been assessed to Georgia Newman, to whom the certificate of
sale had been issued; and {f) had failed and neglected to comply with the provisions of
section 6449, N.C.L.1929, as amended.
Howard McKissick and Georgia Newman alleged that the purported tax deed to Georgia
Newman of date October 18, 1944, was void for the reason that the treasurer and ex officio
tax receiver had (a) failed and neglected to publish the notice required by section 6440,
N.C.L.1929, as amended, for the time and manner required by law; (b) failed and neglected to
comply with the provisions of section 6442, N.C.L.1929, as amended; (c) failed and
neglected to comply with the provisions of section 6447, N.C.L.1929, as amended; (d) failed
and neglected to comply with the provisions of section 6444, N.C.L.1929, as amended; (e)
failed and neglected to comply with the provisions of section 6448, N.C.L.1929, in that the
lands referred to had never been assessed to Georgia Newman, to whom the certificate of sale
had been issued; and (f) had failed and neglected to comply with the provisions of section
6449, N.C.L.1929, as amended.
In addition to the foregoing allegations each of the amended replies contained the
following allegation:
Plaintiffs further allege that said purported tax deed was and is void, and of no force
and/or effect whatsoever for the reason that it recites that the premises referred to in said deed
were tax delinquent for the year 1941, whereas the plaintiffs had paid to Walter Whitacre,
Treasurer and ex-officio Tax Collector, as aforesaid, the taxes on the premises described in
the complaint for said year 1941; that by reason of said payment for said 1941 taxes the
premises referred to in said tax deed, were not delinquent and subject to sale for delinquent
taxes on the 14th day of September, 1942, and were not tax delinquent and were not subject
to sale for tax delinquencies on the 18th day of October, 1944, on which date the purported
tax deed was issued to Georgia Newman.
To the amended replies Georgia Newman, Howard McKissick, and Grace Porter
Robinson, again demurred. On December 16, 1946, Judge Hatton ruled on the demurrers as
follows:
* * * The amended replies respectively state a defense to the new matter set up in the
answers. It is therefore ordered that the demurrers of the defendants are overruled."
therefore ordered that the demurrers of the defendants are overruled.
After the trial of the case on the issues made by the pleadings as above set out Judge
Hatton rendered his decision on the 6th day of July, 1948.
After deciding the first two points upon which the plaintiffs had defended against the tax
deed issued to Georgia Newman on the 18th day of October, 1944, the court said:
We proceed to the plaintiffs' third defense to the tax deed, namely, the claim of an
equitable redemption. In August of 1944, Mrs. Alta McKay telephoned the County Treasurer
inquiring relative to the taxes on the Tidd and Mann places. * * * (Here follows a recital of
Alta McKay's testimony on this point.)
Judge Hatton's opinion continued as follows:
The general rule of law on the subject (of equitable redemption) is stated in 61 C.J. 961,
Sec. 1237, as follows: It is a general rule that where a property owner in good faith applies to
the proper officer for the purpose of paying his taxes, and such payment is frustrated by
mistake, negligence, or other fault of the officer, the attempt to pay is equivalent to actual
payment' * * *
The County Treasurer being the officer who makes tax sales, it is obvious that he is the
proper person to whom payments may be made upon a redemption for tax sale. It being his
duty to receive such payments, we must conclude that it also is his duty to properly inform
any inquiring property owner as to the amounts due upon any delinquency. * * *
In August, 1944, when the inquiry (by Alta McKay) referred to was made, it was
necessary for the Treasurer to consult the roll for 1941. There, on irrigation roll No. 1730,
appeared the entry (See trans. 17) delinquent, advertised and sold' and further notation, to G.
Newman' (Trans. 18). It is evident therefore, that the data was, or should have been, available
in the office of the County Treasurer to enable him to perform his duty and to give Mrs.
and to give Mrs. McKay the correct amount of the delinquencies on the property. * * *
Objection is made by the defendants as to the scope of the inquiry made by Mrs. McKay,
it being claimed that she did not ask for the amount of the delinquencies on tax sales, or the
amount required to redeem, but that her inquiry pertained only to unpaid taxes. It is perhaps
technically true that where property has been sold at delinquent tax sale and the price paid,
covering taxes and additional charges, the tax is deemed to have been paid. The term
delinquency', however, particularly as used by a layman, as applied to tax matters,
comprehends a broader scope than technical tax delinquencies. * * *
The question raised by appellants on this appeal, and with which this court is now
particularly interested, was commented upon by Judge Hatton in his decision as follows:
It has been suggested by defendants' brief that there is a fatal variance with respect to the
proofs admitted relative to the efforts made by plaintiffs to redeem the property from the sale
for irrigation district taxes for the year 1941. This defense is not set forth definitely in
plaintiffs' replies. * * * The second demurrers, general in their nature, were overruled for the
reason that plaintiffs alleged payment of the taxes for 1941, and the case proceeded to trial.
The question now arises as to whether there is a fatal variance as to the allegation of payment
of taxes for 1941 and the proofs relative to equitable redemption. * * * It will be noted that
defendants' objections are made on the ground that proofs offered were irrelevant, immaterial,
self-serving and an attempt to impeach the county clerk's office. There was no motion for
non-suit.
In the case of Kirshner v. Sganzini, (134 A.L.R. 1290, annotation 1299), referred to
above, syllabus 3, it is held that The redemption of tax sale certificates held by the state
amounts to a payment of taxes.' In the case at bar, the tax certificate was held by a third
person, Georgia Newman; but, upon a liberal view at least, the proof of an equitable
redemption would come within the general scope and meaning of an allegation of
payment.
at bar, the tax certificate was held by a third person, Georgia Newman; but, upon a liberal
view at least, the proof of an equitable redemption would come within the general scope and
meaning of an allegation of payment. It has been held that the objection that evidence is
incompetent, irrelevant and immaterial is general in its nature and does not go to the question
of variance. Levinson v. Home Bank and Trust Co., 337 Ill. 241, 169 N.E. 193, cited 64 C.J.
190, note 61 (a). There appears to be nothing in the record to indicate that the defendants
were mislead to their detriment in the presentation of their proofs. 21 Cal.Jur. 264, sec. 184.
Under the liberal rule as established in the case of Burgess v. Helm, 24 Nev. 242, 51 P.
1025, and the case of Marks v. Roberti, 51 Nev. 150, 271 P. 467, this court takes the view
that the variance between the allegation of payment and the proof of equitable redemption is
not so substantial, upon the record here, as to preclude the defense referred to, though not
specifically alleged.
On the basis of the decision, findings of fact and conclusions of law were made and
judgment entered quieting title to the lands described in the complaint, in the plaintiffs.
Certain of the defendants then moved for a new trial, which motion was denied and thereupon
this appeal was taken.
In view of the position taken by this court, as hereinafter expressed, it is not necessary to
consider any of the specifications of error set out by defendants, appellants here, with the
single exception of specification of error No. 4, which is to the effect that
The Court erred in holding that the plaintiffs had interposed a third defense on the theory
of equitable redemption, when as a matter of fact the reply merely alleged a defense that the
taxes [on the property] were not delinquent and [the property was not] subject to sale for
delinquent taxes on the 14th day of September, 1942'.
The court feels that there is merit to defendants' specification of error No.
specification of error No. 4, and that they are entitled to know by way of the plaintiffs' replies
the particular defenses upon which plaintiffs were to rely at time of trial, and upon which they
would offer proof. The court therefore holds that the defense of equitable redemption was not
properly pleaded and for that reason a new trial should be granted. In view of the record in
this case the court is impressed with the apparent need for the intervention of equity and is of
the opinion that justice would be best served by permitting the plaintiffs, respondents here,
prior to a new trial, to amend their replies in accordance with the views herein expressed. The
case is remanded to the trial court to permit the plaintiffs, respondents here, to amend, and for
a new trial on the amended pleadings.
It is so ordered.
____________
68 Nev. 384, 384 (1951) Building Trades Council of Reno v. Thompson
BUILDING TRADES COUNCIL OF RENO AND VICINITY; HOD CARRIERS,
BUILDING AND COMMON LABORERS LOCAL UNION No. 169; UNITED
BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA LOCAL UNION
No. 971; PLUMBERS & STEAMFITTERS LOCAL UNION No. 350; PAINTERS,
DECORATORS AND PAPERHANGERS LOCAL UNION No. 567; SHEET METAL
WORKERS INTERNATIONAL ASSOCIATION LOCAL UNION No. 26; UNITED,
SLATE, TILE AND COMPOSITION ROOFERS, DAMP AND WATERPROOF
WORKERS LOCAL UNION No. 224; OPERATIVE PLASTERERS AND CEMENT
FINISHERS LOCAL UNION No. 241; INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL UNION No. 401; BRICKLAYERS AND
MASONS LOCAL UNION No. 1 of NEVADA; ERNEST M. REYNOLDS; LOUIS
PALEY; ROBERT GAUSSI; D. W. EVERETT; SIDNEY DALTON, Appellants, v.
BRUCE R. THOMPSON, Respondent.
No. 3654
July 26, 1951. 234 P.2d 581.
Appeal from the Second Judicial District Court, Washoe County; Frank McNamee,
Presiding Judge.
Action by Bruce R. Thompson against Building Trades Council of Reno and vicinity, and
others, for damages for allegedly unlawful strike, picketing and boycott. The action was
dismissed as against five individual defendants. From a judgment for plaintiff and order
denying motion for new trial defendants appealed. The Supreme Court, Badt, C. J., held that
concerted action by union for purpose of compelling employer to see that individual
employee pay fine previously assessed against him by union was not lawful objective of
strike nor was it lawful objective to compel employer to make contribution to named charity
as penalty for employer's employment of an employee not in good standing with union.
employment of an employee not in good standing with union.
Judgment and order affirmed with costs.
Virgil H. Wedge, of Reno, and P. H. McCarthy, Jr., of San Francisco, California, for
Appellants.
Springmeyer & Thompson, of Reno, for Respondent.
1. Labor Relations.
Concerted action by labor unions and members of labor union to compel employer to make contribution
of $1,000 to named charity as penalty for employer's employment of employee not in good standing with
union was not lawful objective for which strike might be called.
2. Labor Relations.
Concerted action by labor union by way of strike, picketing and boycott, if for purpose and objective of
compelling reinstatement of employee as member in good standing of union by payment of fine previously
assessed against such employee, would be proper object of concerted action by employees.
3. Labor Relations.
Compelling employer's dismissal of employee is proper object of concerted action by employees if
employee has been legally suspended or expelled from such union.
4. Labor Relations.
In action by employer against unions and individual defendants for damages resulting from strike,
picketing, and boycott, evidence sustained finding of jury that objective of strike was to compel employer
to see that certain employee paid fine previously assessed against him by union and not lawful objective of
compelling reinstatement of employee by payment of fine previously assessed.
5. Labor Relations.
In action by employer against labor unions and individual defendants for damages resulting from strike,
picketing, and boycott invoked by union wherein evidence was conflicting as to purpose and objective of
strike, jury was at liberty to believe or disbelieve either version as to objective of strike.
6. Labor Relations.
Strike for purpose of compelling employer to coerce employee into paying fine previously assessed
against employee by union which employee considered to be unfair was for improper objective in that it in
effect sought to deprive such employee of his right to try issues of disputed money claim in courts.
7. Trial.
In action by employer against union for damages arising out of strike and boycott, instructions that unions
are privileged to cause employer harm by concerted action if both object and means of concerted
action are not wrongful, but that unions are liable to employer if either object or
means of conceited action is wrongful and that if purpose of union's action was to
compel employer to require employee to pay fine previously assessed by union, or, if
purpose was to compel employer to make contribution to named charity, such
purpose was not lawful labor objective, were not contradictory instructions.
and means of concerted action are not wrongful, but that unions are liable to employer if either object or
means of conceited action is wrongful and that if purpose of union's action was to compel employer to
require employee to pay fine previously assessed by union, or, if purpose was to compel employer to make
contribution to named charity, such purpose was not lawful labor objective, were not contradictory
instructions.
8. Trial.
In action by employer against union for damages arising out of strike and boycott, instructions that unions
are privileged to cause employer harm by concerted action if both object and means of concerted action are
not wrongful, but that unions are liable to employer if either object or means of concerted action is
wrongful and that if purpose of union's action was to compel employer to require employee to pay fine
previously assessed by union, or, if purpose was to compel employer to make contribution to named
charity, such purpose was not lawful labor objective, were not instructions to find for employer on both
causes of action and was proper.
9. Labor Relations.
In action by employer against nine trade unions and building trade council for damages resulting from
strike, picketing and boycott, evidence was sufficient to sustain finding that all defendants had participated
in coercive action for unlawful purpose of compelling employer to make donation to named charity and to
require employee to pay fine previously assessed by union.
10. Jury.
In action by employer against nine trade unions and building trade council for damages caused by
allegedly unlawful strike, picketing, and boycott wherein good cause had been shown why temporary
injunction should not issue and application therefor had been denied and trial had proceeded to conclusion
on claim for damages, despite fact that original complaint had sought injunctive relief as well as damages,
cause was clearly matter of law and it was not error to submit case to jury.
Objection to form of jury's verdict is deemed waived if no objection is made at proper time.
Where defendant labor union in suit by employer for damages for unlawful strike, picketing, and boycott
had made no request for specific instruction on punitive damages, that segregated verdict should have been
returned by jury could not be urged for first time on appeal.
13. Appeal and Error; Trial.
In absence of statute to contrary where both actual and punitive damages are recoverable, general verdict
is sufficient, and unless requested, the failure to instruct for distinctive verdict is not
fatal error.
and unless requested, the failure to instruct for distinctive verdict is not fatal error.
OPINION
Concerted action by defendants by way of strike, picketing and boycott resulted in
damages to plaintiff which the jury assessed at $250 on the first count and at $6,500 on the
second count. If the objective of the concerted action was lawful on either count, the verdict
on such count cannot stand. If the objective was unlawful as to either or both counts, the trial
judge properly let the case go to the jury on such count or counts. With the exception of
certain incidental points of law raised by appellants, and which will later be disposed of, both
parties agree that the lawfulness of the objectives sought by the defendants is the question
presented for our consideration. More specifically the two causes of action pleaded by
plaintiff present the following questions:
(1) Is the compelling of an employer by a union to see that an individual employee pays a
$50 fine assessed against him by the union, under the circumstances herein appearing, a
lawful objective of a strike, picketing and boycott?
(2) Is the compelling of an employer by a union to make a $1,000 contribution to a named
charity as a penalty for the employer's employment of an employee not in good standing with
his union, a lawful objective of a strike, picketing and boycott?
The district court, in its rulings on demurrer, on motion for nonsuit, on motion for a
directed verdict, in its instructions to the jury, and in its order denying a new trial, answered
both questions in the negative. The result was a verdict by the jury in favor of plaintiff and
against the defendants for damages resulting from strike, picketing and boycott involving the
first proposition the sum of $250 and involving the second proposition in the sum of $6,500.
We have concluded that the judgment should be affirmed on both causes of action.
judgment should be affirmed on both causes of action.
The facts, reduced to their essentials, were as follows: Applying abbreviated names, Hod
Carriers Union No. 169, Carpenters Union No. 971, Plumbers Union No. 350, Painters Union
No. 567, Sheet Metal Workers Union No. 26, Roofers Union No. 224, Plasterers Union No.
241, Electrical Workers Union No. 401, and Bricklayers Union No. 1 are the usual
unincorporated union associations. Building Trades Council of Reno and vicinity is an
organization including as its members or affiliates sundry labor unions including those
last-named and operating under the Building and Construction Trades Department of
American Federation of Labor whose constitution contains various provisions with reference
to affiliation of Local A. F. of L. Building Trades unions with the local Building Trades
Council. Appellant Reynolds is the secretary-treasurer and business agent of appellant
Building Trades Council. Appellant Paley is secretary and business agent of appellant
Carpenters Union. Appellant Gaussi is secretary and business agent of appellant Hod Carriers
Union. Appellant Everett is secretary and business agent of appellant Painters Union, and
appellant Dalton is secretary and business agent of appellant Plumbers Union.
With certain exceptions and subject to certain conditions not here applicable, the Council
has full jurisdiction over strikes. A contractor who works on a struck job or employs
nonunion men to work on a struck job, is declared unfair, and in such case all union men are
called off the work. The business agent of the Council has power to order strikes when so
instructed by the Council or executive board. Employees on a struck job must leave when so
ordered by the business agent, and must remain away until a settlement is officially made.
The foregoing provisions and others more elaborately expressed appear from the exhibits
received in evidence.
On July 1, 1948 plaintiff commenced construction of a residence property in Washoe
County, and employed one Robert M.
one Robert M. Ross to manage the construction, purchase materials and negotiate
subcontracts subject to plaintiff's approval. Ross's authority included the hiring and firing
of workers. He was not only superintendent of the job but was to do a journeyman's work
operating with the tools of his trade. At the time of his employment his union status was that
of a suspended member of the Carpenters Union by reason of an unpaid fine theretofore
imposed on him by the Carpenters Union because he, a carpenter, had worked as a plasterer.
Such suspension had been imposed some two months prior to his employment by respondent.
Respondent was notified by the Carpenters Union that the carpenters would be taken off the
job by reason of Ross's status. A conference was had between respondent and representatives
of the Building Trades Council, the Carpenters Union, the Hod Carriers Union, the Painters
Union and the Plumbers Union. Various points of disagreement were disposed of, leaving
only the question of the payment of Ross's fine to the Carpenters Union. This point of
disagreement is designated by respondent as the requirement that he make Ross pay the fine.
It is defined by appellants as simply their insistence that respondent employ only union men,
that if Ross were to be employed as a carpenter using tools, in addition to his employment as
superintendent, he would have to reinstate himself with his union by paying the $50 fine or
that respondent would have to do it for him.
Respondent refused to pay Ross's fine, or to make Ross pay it. A picket line was
established for a period of time, delivery of concrete was delayed, and the plumbers refused
to cross the picket line. For a number of weeks respondent's name was included in the We
Do Not Patronize list circulated by the Building Trades Council of Reno and vicinity and the
Carpenters Union.
Respondent for a time went on with the construction of his residence until November 15,
1948. Building Trades Council then reestablished the picket line at the construction and
respondent's employees left the job.
Trades Council then reestablished the picket line at the construction and respondent's
employees left the job. Respondent and Ross determined that the job could not be completed
under the circumstances. Further conferences were had with representatives of the Council
and the Carpenters Union. Respondent agreed to discontinue construction until he could
employ union men and the representatives withdrew the picket line and said they would
investigate as to what would be required to reinstate Ross in the Carpenters Union. At a
meeting of November 15, 1948 respondent was requested to execute the standard form of
contract submitted by the Building Trades Council providing that he should employ only
union men for a period of one year. He refused upon the ground that he was not a contractor
normally engaged in hiring people and that there was no reason for him to sign such general
agreement, but advised that he was willing to give his personal assurance that he would close
down the job until he could hire union men. On November 23, 1948 respondent received the
following letter on the stationery of Building Trades Council of Reno and Vicinity dated
November 20, 1948, and signed by Mr. Reynolds, its secretary-treasurer:
This letter is to inform you that the Building Trades held their regular meeting Friday
evening at 8 p. m., November 19, 1948.
Your case came up for discussion and was finally disposed of by requesting that you
donate $1000 to the Children's Home in Carson City, Nevada.
After this has been done, we will put you on our Patronize List.' As to your standing just
now, you are still on our We Do Not Patronize List'.
After respondent received this letter, he employed Ross and another man, and they did
what they could to protect the unfinished house with plywood sheets, etc. Respondent's
complaint was filed in the court below November 30, 194S.1 On December 17, 194S the
following resolution, as certified by the secretary-treasurer, was adopted by Building
Trades Council of Reno:
November 30, 1948.
1
On December 17, 1948 the following resolution, as certified by the
secretary-treasurer, was adopted by Building Trades Council of Reno:
RESOLUTION
Whereas, the letter dated November 20, 1948, addressed to Bruce R. Thompson, 1078
Evans Avenue, Reno, Nevada, does not properly express the position of this Council, and,
Whereas, it is the desire of this Council that any misunderstanding which may have
resulted from the sending and receipt of the said letter be cleared up,
Now, Therefore, Be It Resolved that any and all acts of this Council, its officers,
members, and agents, leading up to and including the sending of said letter, and the said letter
itself be, and they are hereby, withdrawn, retracted, and set aside, and
Be It Further Resolved that the name of Bruce R. Thompson be stricken from the We Do
Not Patronize' list of this Council, and
Be It Further Resolved that the Secretary-Treasurer of this Council be, and he is hereby,
instructed to send a copy of this resolution, signed by him as Secretary-Treasurer, and attested
to by the seal of this Council, to the said Bruce R. Thompson to the end that he may be fully
advised of the action of this Council.
It is unnecessary to detail the items of loss claimed by the plaintiff. They include losses on
the plumbing job, losses growing out of the delay in completion of the work, certain work
that had to be replaced, payments to superintendent Ross for time trying to find workmen,
damage to the property during winter months when no work could be done, damage to
material stored in the unfinished house, etc.
____________________

1
Thus, as in Jensen v. Reno Central Trades & Labor Council, 68 Nev. 269, 229 P.2d 908, decided by this
court April 15, 1951, we are not concerned with the act of March 14, 1951 (Stats. 1951, 111) amending sec.
10473, N.C.L.1929. This section, as originally enacted and as amended in 1951, is set forth in full in footnote 1
of the opinion in the Jensen case.
work could be done, damage to material stored in the unfinished house, etc. These were all
elements for consideration by the jury.
We address ourselves first to the second cause of action. Respondent was placed on the
We Do Not Patronize list, in other words, boycotted, until such time as he might relieve
himself from that situation by donating $1,000 to the Children's Home in Carson City. Our
conclusion is that the learned district judge was correct in holding that this count of the
complaint stated a cause of action and in his consistent rulings thereafter denying the motion
for nonsuit, the motion for a directed verdict and the motion for new trial.
The issue is clear-cut. Plaintiff concedes the right of members of the defendant unions to
refuse to work with nonunion men and the right of the defendants to picket the premises and
to place the plaintiff on the We Do Not Patronize list where the objective of such concerted
action is lawful. Culinary Workers Union v. District Court, 66 Nev. 166, 207 P.2d 990, 66
Nev. 202, 210 P.2d 454. The defendants concede that an unlawful objective renders the
concerted action unlawful. Hotel and Restaurant Employees International Alliance v.
Wisconsin Employment Relations Board, 315 U.S. 437, 62 S.Ct. 706, 86 L.Ed. 946;
Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820,
86 L.Ed. 1154. They insist however that there is nothing unlawful in requiring the plaintiff to
pay $1,000 to a worthy charity. In answer to an inquiry from the court during oral argument,
their counsel stated that there would be like justification in requiring plaintiff to pay $2,000
or a greater sum. He compares the situation to one in which a regular client of his office
might see fit to withdraw his employment of counsel, and persuade his friends likewise to
withdraw their employment of counsel, unless such counsel would consent to make certain
contributions to some certain specified charity. Without considering what, if any, legal
results might flow from such hypothetical case, it is clear, without detailed analysis, that
the suggested hypothetical situation is by no means analogous to the instant case.
results might flow from such hypothetical case, it is clear, without detailed analysis, that the
suggested hypothetical situation is by no means analogous to the instant case. We likewise
reject the asserted analogy that veterans' associations distributing buddy poppies, and
Community Chest workers distributing red feathers, thus advertise to the public that
nonwearers of these emblems have not contributed. We do not need the insistence of
defendants, to make us agree that there is nothing unlawful, that it is indeed a praiseworthy
thing, to give to charity. That gift may be only the poor man's crust. It may be only the
blessing of the poor, though I turn me empty from his door. Each man must reconcile with
his own conscience the recipients, nature and extent of his charities. That the $1,000 penalty
assessed against plaintiff by Building Trades Council was not to go into the treasury of the
Building Trades Council or of one of the unions but was to be paid to the Children's Home in
Carson City clearly does not change the effect of the penalty. Failure to comply was the
continued inclusion of plaintiff's name on the We Do Not Patronize list. This, like the
picketing, was notice to the world that organized labor [had] blacklisted [the] employer.
Chadwick, J., in St. Germain v. Bakery and Confectionary W. Union, 97 Wash. 282, 166 P.
665, 671, L.R.A. 1917 F. 824.
[Headnote 1]
The objective of this action, namely, compelling respondent to pay the $1,000 penalty, was
clearly unlawful. Burke v. Fay, 128 Mo.App. 690, 107 S.W. 408. The rule has been stated in
various ways. In 31 Am.Jur. 942, Labor, sec. 221, it is said that a strike to compel payment of
a so-called fine imposed upon an employer by a union is unlawful. It is said in the
Restatement of the Law of Torts, sec. 792: The payment by an employer of a fine or penalty
which he has not agreed to pay is not a proper object of concerted action against him by
workers. The annotation to Dorchy v. Kansas, 272 U.S. 306, 47 S.Ct.
Dorchy v. Kansas, 272 U.S. 306, 47 S.Ct. 86, 71 L.Ed. 248, commencing at the last citation,
is devoted to Purposes for which strike may lawfully be called. Citing Burke v. Fay, supra,
and other authorities, it rejects, as a lawful purpose, the compelling of an employer to pay a
fine or penalty imposed by the union. See also annotation at 116 A.L.R. 486, and prior
annotations therein referred to. No cases have been cited by appellants, and an independent
search has failed to disclose any, contrary to the rule above stated.
[Headnotes 2, 3]
Plaintiff's first cause of action presents a conflict in the evidence. If the contention of the
appellants is correct and their concerted action against the plaintiff was simply for the
purpose and objective of compelling the reinstatement of Ross as a member in good standing
of the Carpenters Union by his payment of the $50 fine previously assessed against him, we
should be inclined to find a close analogy between such situation and the one approved by a
majority of this court in Culinary Workers Union v. District Court, 66 Nev. 166, 207 P.2d
990, 66 Nev. 202, 210 P.2d 454, followed in Jensen v. Reno Central Trades & Labor Council,
68 Nev. 269, 229 P.2d 908. There is little, if any, difference in principle between the
compulsory payment of union initiation fees and dues there approved as an objective for
concerted action and the reinstatement of the employee by the payment of a fine for violation
of the rules of the union. If this were the situation, it would support the conclusion that the
objective of the concerted action was a proper one under the rule concisely stated in the
Restatement of the Law of Torts, chap. 38, sec. 790, as follows: Dismissal by an employer of
an employee is a proper object of concerted action by his employees if the employee * * * has
been legally suspended or expelled from such union.
[Headnote 4]
The jury, however, was not compelled to accept appellants' theory of the evidence. The
conference of July 16, 194S {held after the withdrawal of the men from the job on July 13)
was attended by Mr.
16, 1948 (held after the withdrawal of the men from the job on July 13) was attended by Mr.
Reynolds, business agent of the Building Trades Council, Mr. Paley, business agent of the
Carpenters Union, Mr. Gaussi, business agent of the Hod Carriers Union, Mr. Everett,
business agent of the Painters Union, and Mr. Dalton, business agent of the Plumbers Union.
Respondent describes what occurred as follows:
Well, I was seated in a chair by Mr. Reynolds' desk, and he was seated, and Mr. Dalton
and Mr. Everett were seated across the room and Mr. Paley was standing. I opened the
conversation by telling them that I had come to find out why they had taken the Union
carpenters off the job because I wanted to hire Union men and pay them Union wages. Mr.
Reynolds replied that Mr. Ross owed a fine of $50 to the Carpenters Union which he had not
paid and that I should get rid of Ross and hire some other man.
Mr. Paley then said that he had several men he could recommend to me to do the work.
I told them that I did not want to discharge Ross, that I didn't think it was fair to put
pressure on me to try to collect a fine, and that they should collect that $50 in the same way
that other people had to collect money that is due them * * *.
After that, Mr. Paley asked me whether Mr. Ross was my superintendent or my foreman,
and I told Mr. Paley that he was my superintendent.
Then Mr. Paley said that it would be perfectly all right for me to retain Mr. Ross as my
superintendent as long as I hired a carpenter foreman and paid him 12 1/2 more per hour
than the usual wage for carpenters, that is, I should pay him $2.37 1/2 an hour rather than
$2.25 an hour, and that if I had Mr. Ross as my superintendent and hired a carpenter foreman
along with the other carpenters that it would not be necessary for Mr. Ross to rejoin the
Carpenters Union.
Prior to that time, Mr. Paley had told me that the $50 fine had been assessed as dues
against Mr. Ross and he had been suspended from the Union, and then at the point where
I just left off he told me that I could retain Mr.
he had been suspended from the Union, and then at the point where I just left off he told me
that I could retain Mr. Ross as my superintendent and hire a carpenter foreman along with the
other Union carpenters and that it would not be necessary for Mr. Ross to rejoin the Union
under those circumstances. And I replied that I was willing to do that.
And when I said that, Mr. Gaussi and Mr. Paley and Mr. Reynolds then said, But you
still have to make Mr. Ross pay the $50 fine,' and I replied that I would not make him pay the
fine, that I did not think it was fair for them to try to require me to collect their obligations,
and that is substantially where the conversation ended.
On cross-examination, with reference to the meeting of July 16, respondent was asked if it
was not a fact that there was considerable discussion with respect to Mr. Ross's doing some
carpentry work himself, but respondent insisted that there was no discussion whatsoever of
that subject, and denied that he was told that Ross could be retained as superintendent but
could not work with the tools. He testified:
What Mr. Paley said was as follows, and I recall it very clearly, he said, You may, if you
wish, retain Mr. Ross as your superintendent, and he can work right along with the Union
men.' Now, he didn't say what kind of work, he said, work right along with the other men,'
those are his exact words, if I would pay a premium and hire a foreman for $2.37 1/2 an hour
and pay my carpenters $2.25 an hour, and I said I would do that.
And again:
Well, see, Mr. Paley asked me whether Mr. Ross was my superintendent or my foreman,
and I told him he was my superintendent, and he said, If that is so, you may keep him on as
your superintendent and he will not have to rejoin the Carpenters' Union and he can work
right along with the other men provided you do these other things.'
Q. That is, provided he didn't work with the tools.
A. No, provided that I hired a foreman at $2.37 1/2 an hour and the other carpenters were
to receive $2.25 an hour.
[Headnote 5]
The jury was entitled to believe this testimony and to reject the testimony of Mr. Paley to
the effect that he told respondent that Mr. Ross could stay on the job, but he could not use the
tools of the trade, and that respondent would not agree to that. If the jury accepted
respondent's testimony, as it manifestly did, it apparently concluded that respondent had
agreed to comply with all of the union demands as outlined by Mr. Paley of the Carpenters
Union, which demands were coupled with the agreement that Ross might be retained as
superintendent without joining or reinstating himself in the Carpenters Union; and that when
all of these matters had been agreed upon, he was then told: But you still have to make Mr.
Ross pay the $50 fine. The jury's acceptance of respondent's testimony is a complete answer
to the attack on the $250 judgment on the first cause of action, as Ross's membership or
reinstatement in the Carpenters Union then became entirely disconnected with the objective
of the concerted action of the appellants. It was no more the province of the district court on
motion for new trial, than it is the province of this court on appeal, to say that the jury should
have disbelieved the detailed testimony of respondent and accepted the more general
statement of appellant Paley, that he told respondent: Mr. Ross could stay on the job, but he
could not use the tools of the trade. That Mr. Thompson would not agree to * * *.
Neither appellants nor respondent have cited any authority that may be said to be directly
in point. It is true that the rule is stated in 31 Am.Jur.949, Labor, sec. 231, Picketing to force
an employer to discharge an employee because of delinquency in the payment of his dues is
unlawful * * *. However, the only authorities cited in support of this rule are Harvey v.
Chapman, 226 Mass.
Chapman, 226 Mass. 191, 115 N.E. 304, L.R.A. 1917 E. 389, and St. Germain v. Bakery &
Confectionary W. Union, 97 Wash. 282, 166 P. 665, L.R.A. 1917 F. 824. Contrary to the rule
in Nevada, to compel unionization of the employees is not a lawful objective of picketing in
either Massachusetts or Washington. (See cases cited in the Massachusetts and Washington
cases referred to; also Building Service Employees International Union v. Gazzam, 339 U.S.
532, 70 S.Ct. 784, 94 L.Ed. 1045, supporting the right of each state to determine its own
policy in such matters, and recently considered at length by this court in Jensen v. Reno
Central Trades & Labor Council, 68 Nev. 269, 229 P.2d 908.)
Perhaps most nearly approaching the present question, though not quite reaching it, is
Dorchy v. Kansas, 272 U.S. 306, 47 S.Ct. 86, 87, 71 L.Ed. 248, decided by the U. S. Supreme
Court in 1926. In that case the employer mining company paid wages of $3.65 a day for
employees under nineteen years of age and $5 a day for those over nineteen. One Mishmash
had been paid, without protest, for a number of months at the lower rate, but subsequently
demanded additional compensation under the claim that he was entitled to the higher rate.
The question of fact had arisen over contradictory entries in the family bible as to the date of
his birth. The court said:
The right to carry on businessbe it called liberty or propertyhas value. To interfere
with this right without just cause is unlawful. The fact that the injury was inflicted by a strike
is sometimes a justification. But a strike may be illegal because of its purpose, however
orderly the manner in which it is conducted. To collect a stale claim due to a fellow member
of the union who was formerly employed in the business is not a permissible purpose. In the
absence of a valid agreement to the contrary, each party to a disputed claim may insist that it
be determined only by a court.
[Headnote 6]
Appellants distinguish this case by pointing out that the present case involves no question
of a stale claim and that the claim was not even disputed because, following the
November meeting, Ross actually applied, for reinstatement in the Carpenters Union,
admitted that he was indebted in the amount of his fine and agreed to pay it.
and that the claim was not even disputed because, following the November meeting, Ross
actually applied, for reinstatement in the Carpenters Union, admitted that he was indebted in
the amount of his fine and agreed to pay it. This, however was under the insistence of
Thompson who thought at the time that such action was all that was necessary to permit him
to complete the construction of his residence, but who later discovered that it was coupled
with the requirement for the payment of the $1,000 penalty involved in the second cause of
action. At least twice on cross-examination Ross offered to explain why he refused to pay the
fine. On each such occasion the cross-examiner rejected the proffered explanation.
Thompson, however, testified that Ross regarded the fine as unfair.
2
In the Dorchy case the
reference to the claim as a stale claim arose from the fact that it had been pending for two
years. There was no contention that it was barred by limitations nor does any distinction in
principle grow out of the fact that Mishmash's claim was against the employer while in the
present case it is the union's claim against the employee. In either event both parties had the
right to insist that the claim be subject at least to ultimate determination by a court of
competent jurisdiction. The purpose of courts is to resolve disputes whether the parties be
individuals, corporations, unions or other persons capable of suing and being sued.
____________________

2
Thompson was asked if he did anything with respect to the demand that he make Ross pay the $50 fine.
He answered that he urged Ross to reinstate himself with the Carpenters Union, and then, over objection, was
permitted to continue: Well, Mr. Ross told me that the fine of $50 had been unfairly assessed against him and
that he wouldn't pay it, and he said that it had been levied against him on a job on a house that he was building
for Harold Chisholm and that in the course of the construction of that house they had ordered some union
plasterers to do the plastering work. He said that they waited six weeks for union plasterers to arrive on the job
and none of them arrived, and they had the job completely held up and finally he had to do the plastering to
finish the house for Mr. Chisholm, and for that reason he thought that the fine was unfairly levied and that he
wouldn't pay it. It was recognized that this was hearsay and that the jury could draw no inference as to the truth
or falsity of Ross's statements as reported by Thompson.
capable of suing and being sued. The Dorchy case on this point cited Guaranty Trust & S. D.
Co. v. Green Cove Springs & M. R. Co., 139 U.S. 137, 11 Sup.Ct. 512, 35 L.Ed. 116,
rejecting a clause in a mortgage because it attempted to provide against a remedy in the
ordinary course of judicial proceedings, and oust the jurisdiction of the courts, which, as is
settled by the uniform current of authority, cannot be done.
In Barile v. Fisher, 197 Misc. 493, 94 N.Y.S.2d 346, plaintiff sought damages from
defendant union and others under a complaint from which it appeared that he had been
employed by Watson Manufacturing Co. of Jamestown, New York, as a shear operator.
Watson Manufacturing Co. operated under an open shop but under contract with the union
providing that all employee union members should as a condition of employment remain
members of the union in good standing. When the officers of defendant union refused to file
non-Communist affidavits, the plaintiff ceased to pay dues because he did not wish to be a
member under such conditions. Thereafter he was expelled for failure to pay dues, his
employer was notified thereof and, pursuant to the terms of the contract discharged him.
Thereafter the union caused him to be blacklisted and prevented him from obtaining
employment in other shops in Jamestown. After discussion of New York law justifying acts
of the unions having any reasonable connection with wages, hours of employment, health,
safety, the right of collective bargaining or any other condition of employment, or for the
protection from labor abuses, and distinguishing union action not reasonably so connected
and thus not freeing the unions from legal responsibility where the objective sought is not a
lawful one, the court, in sustaining the liability of the union, said: * * * The unions which
collaborated with the defendant refused to permit the employment of the plaintiff, not upon
the ground that he was a nonunion man or that he was unwilling to join one of the
collaborating unions, but upon the ground that he had formerly been a member of the
defendant union and had withdrawn from it."
formerly been a member of the defendant union and had withdrawn from it. (Emphasis
supplied.) With the jury's apparent acceptance of plaintiff's testimony, this corresponds in
theory with the coercive action of these defendants, not to compel Ross's reinstatement as a
union man but to compel his payment of the fine theretofore assessed against him. The
blacklisting of Barile may have been more drastic than the picketing of Thompson, and the
tort there was against the employee rather than the employer, but there is no difference in
principle. The Dorchy case is cited by the New York court in support of the statement: It
hardly needs argument to establish that revenge is not a legitimate labor objective.
The dissenting opinion of Mr. Justice Jackson in Trailmobile Co. v. Whirls, 331 U.S. 40,
67 S.Ct. 982, 91 L.Ed. 1328, refers to Dorchy v. Kansas in support of the statement: Neither
may a union use its own power over its members to by-pass the courts. This undoubtedly
had reference to the unanimous opinion of the court that for the union to enforce payment by
a strike [of a two year old claim by a former employee against the employer] is clearly
coercion.
Thus we see no logical escape from the extension of the principle of the Dorchy case as
quoted supra to any case in which a party, not otherwise bound by contract, would be
prevented from trying the issues of the disputed money claim in the courts. More than this, a
judgment rendered by a court is, generally speaking, subject to appeal. Even though not
appealed, execution of that judgment is generally limited by statute to property not exempt
from execution. Under varying circumstances, execution may be stayed by a statutory bond,
by a supersedeas, or order of court. Enforcement by picketing, strike, boycott, etc., of the
collection of a union's claim against a former member, with the immediate and compelling
force of such concerted action, would be without respect for any such defenses, exemptions
or other rights.
It is clear that from the very beginning of the litigation both parties recognized the
importance of characterizing the objective of the concerted action of the defendants. The
defendants' answer alleged that a bona fide labor dispute existed between plaintiff and
defendants. Plaintiff's reply denied this. The evidence on the issue was, as we have seen,
conflicting. The court instructed the jury as to the privilege of the defendants to strike, picket
and boycott for a proper labor objective,
3
and as to their liability for damages for their tort if
their objective were found to be improper. Specifically the jury was instructed as follows:
You are instructed that in the field of employer-employee relations, workers and their
unions, associations or other organizations, are privileged to cause harm intentionally to an
employer or other person by concerted action if both the object and the means of their
concerted action are not wrongful. On the contrary, workers, their unions, associations or
other organizations, are subject to liability to the employer or other person for damage caused
to the employer or other person by such action if either the object or the means of their
concerted action is wrongful.
In this case, there is no contention by plaintiff that defendants used unlawful means to
promote their purposes. In this State, peaceful picketing and the peaceful and orderly
circulation of We Do Not Patronize' lists for the purpose of inducing employment of union
labor or the use of union made material are means of fair persuasion and are lawful. But if the
picketing or the use of We Do Not Patronize' lists are not for the promotion of a lawful or
proper purpose, but instead are for the enforcement of demands which labor unions or
laborers are not entitled to exact of the employer, then the defendants must compensate
plaintiff for all damages suffered by him as the direct and proximate result of such action.
____________________

3
See footnote 1.
In plaintiff's first cause of action, he charges that the sole purpose of the concerted action
taken by the defendants against him was to compel plaintiff to require plaintiff's employee,
Robert M. Ross, to pay a fine of $50 to the defendant United Brotherhood of Carpenters &
Joiners of America, Local Union No. 971. If the picketing and boycotting of plaintiff's
residence project by defendants was for said sole purpose, it then would be for a wrongful
purpose and would be unfair persuasion because the purpose is to compel an employer to
become a collection agent and to require him to conclude that the assessment by the
Carpenters Union was proper without affording the employee the right to have determined by
due process whether the fine or debt was legally due. If the jury should find from a
preponderance of the evidence that the sole purpose of the concerted action by defendants
against plaintiff between July 27, 1948 and November 16, 1948, was to force plaintiff to
require said employee Ross to pay a fine to the Carpenters Union, plaintiff should be
compensated for all damages proximately caused by defendants' wrongful conduct, under the
first cause of action.
In plaintiff's second cause of action, he charges that the purpose of the concerted action
by defendants against him was to require plaintiff to pay the sum of $1,000 to the Childrens
Home at Carson City, Nevada. Such a demand upon the plaintiff in itself has no connection
whatsoever with a proper or lawful labor objective.
If the jury should find, from a fair preponderance of the evidence, that the sole purpose of
the concerted action taken by defendants in picketing plaintiff's residence construction project
and placing plaintiff's name upon a We Do Not Patronize' list from November 19, 1948 until
December 15, 1948, was to require plaintiff to pay the sum of $1,000 to the Childrens Home
at Carson City, Nevada, a judgment should be rendered against the defendants for all
damages caused to plaintiff as a direct and proximate result of such wrongful conduct
under the second cause of action."
direct and proximate result of such wrongful conduct under the second cause of action.
[Headnotes 7, 8]
Appellants assign as error the giving of the foregoing instruction, asserting (1) that it is
contradictory, (2) that it assumes the existence of a conspiracy and thus removed such issue
from the jury's consideration, (3) that it characterized as wrongful, conduct concerning which
the court refused to permit the defendants to introduce evidence, and (4) that it is in effect an
instruction to find for the plaintiff on both causes of action and as such is in direct conflict
with all other instructions. We do not find the instruction improper in any of the respects
assigned. (1) It contains no contradictory instructions. (2) The reference to the concerted
action taken by defendants does not disturb other instructions defining conspiracy. (3) The
excluded evidence referred to in the exception had to do with Ross's right to appeal from his
fine and suspension under the constitution and bylaws of the Carpenters Union. The act
characterized as a wrongful objective of the boycott, etc., was the compulsion of the payment
of Ross's fine. As a matter of fact the record shows that the witness in question testified
definitely that the constitution of the Carpenters Union, a subordinate local union of the
United Brotherhood of Carpenters and Joiners of America, provides a method for appeal from
a decision of the local union. The offer to which the objection was sustained was of the
written constitution and bylaws evidencing such right of appeal, which right was already in
evidence before the jury. (4) We are unable to construe the instruction as one to find for the
appellee on both causes of action. It specifically informed the jury of the privilege of the
defendants to cause harm intentionally to the plaintiff by concerted action if both the
objective and the means of such concerted action were not wrongful, and that peaceful
picketing and the circulation of We Do Not Patronize list to induce employment of union
labor (this, of course, was prior to the amendment of 1951) were means of fair persuasion
and were lawful.
to the amendment of 1951) were means of fair persuasion and were lawful. The assignment is
without merit.
Other instructions are attacked by appellants. These instructions occupy 50 pages of the
record and cannot be discussed at length. In particular, appellants attack the instruction
defining the liability of a principal for the acts of his agent, the instruction defining the right
to recover compensatory damages resulting as a natural and proximate consequence of
defendants' wrongful conduct, the instruction defining measure of damage, the instruction
limiting the defendants to proof of a lawful objective prior to rather than following the
concerted action of the defendants, the instruction as to the right to exemplary or punitive
damages, and the instruction as to the extent of proof necessary to establish conspiracythe
last-mentioned instruction being attacked as misleading in not distinguishing between the first
and second causes of action. We have carefully examined each of the instructions to which
exception is taken and do not find any of them objectionable.
Appellants further assign as error the refusal of the court to give some 34 instructions
requested by the defendants. The record on appeal is incomplete, and appellants have moved
the court for an order correcting and completing the record by inserting certain documents.
The motion is supported by affidavits and upon the ground that the correction and completion
of the record will be in accordance with a stipulation of the parties and in furtherance of
justice. Under the facts appearing and the certificate issued by the district court in the matter
of settling the bill of exceptions, this court would be justified in refusing to consider the
matters urged. However, there appears to be some confusion as to the circumstances of the
suggested diminution of the record and we have considered such matters in order to avoid any
miscarriage of justice.
[Headnote 9]
Appellants assign as error the court's refusal to give instructions D11 to D15, inclusive.
These were separate instructions for directed verdicts in favor of the five individual
appellants, respectively, on the first cause of action.
instructions for directed verdicts in favor of the five individual appellants, respectively, on the
first cause of action. Error is likewise assigned in refusing to give instructions D16 to D30,
inclusive. These, respectively, were requested instructions for directed verdicts in favor of the
Building Trades Council and the nine unions and the five individual appellants on the second
cause of action. At the close of the plaintiff's case the trial court on motion of defendants had
dismissed from the action a number of the individual defendants, but had then denied the
motion to dismiss as to the appellant unions, the personal appellants and appellant Trades
Council. Thereafter the requested directed verdicts for dismissal raised the same questions,
and it is now insisted that nothing in the record connects any of these appellants (with the
possible exception of the Trades Council and Mr. Reynolds, its secretary-treasurer) with the
letter of November 28, 1948 requiring that respondent donate $1,000 to the Children's Home
or remain on the We Do Not Patronize list. We are satisfied, however, that the participation
by all of the appellants in the coercive action was either sufficiently shown or could have
been properly inferred by the jury from the evidence adduced. In Shore v. Building &
Construction Trades Council, 3 Cir., 173 F.2d 678, 682, 8 A.L.R.2d 731, a similar point was
raised, and the court said:
Appellants' final point is that there is no evidence in the record to support the injunction
against the Building and Construction Trades Council of Pittsburgh and the International
Union of Operating Engineers, Local No. 66, 66-A, 66-B and 66-C. As to the Council, we
think that the record shows reasonable cause to believe that it was concerned in the practices
here complained of. The A. F. of L. unions for the carpenters, sheet metal workers,
electricians and operating engineers are all members of the Council. The business agent for
the electricians, in arranging for the meeting with Mr. Ridilla, the general contractor, after the
work stoppage, told him that the Building Trades Council wanted to meet with him.
told him that the Building Trades Council wanted to meet with him. At the meeting the
business agents of the above unions were present. We think that the participation of these
constituent unions in the conference and work stoppage in the name of the Council is
sufficient to show reasonable cause for believing the Council was involved in the matter.
Similarly the participation of the business agent of the Operating Engineers is sufficient
basis for including that union as a party defendant, whether or not there was a direct work
stoppage on the part of the shovel operator at the theater job. Mr. Mangold, business agent of
the Operating Engineers, was at the September 3 meeting, at which the general contractor and
representatives of the trades unions were present.
The present situation was not dissimilar. The affiliation of the defendants with Building
Trades Council of Reno and vicinity and the official position of the respective individual
defendants are admitted by the pleadings and are more elaborately defined in the various
exhibits placed in evidence before the jury. We are satisfied that, like the denial of the
motions to dismiss and the denial of the motions for nonsuit (McCafferty v. Flinn, 32 Nev.
269, 107 P. 225), the requests for directed verdicts were properly denied, to the end that these
issues might go to the jury.
Error is assigned in the court's refusal to give proposed instruction D31 to the effect that
the terms intimidation and coercion frequently used in the discussion of this question had
no application to the acts committed by the defendants. The issues as defined in the court's
instruction heretofore quoted in full and in other instructions given refer to picketing,
boycotting, causing intentional harm, circulating We Do Not Patronize lists, wrongful
conduct, concerted action, fair persuasion, wrongful purpose, and unfair persuasion. The jury
was instructed that plaintiff did not contend that unlawful means were used by defendants,
and that the issue was as to the lawfulness or propriety of the purpose or objective of the
concerted action.
issue was as to the lawfulness or propriety of the purpose or objective of the concerted action.
The instruction was properly refused. Requested instructions D32 with reference to threats,
D33 with reference to conspiracy, and D34 with reference to extortion, were likewise
properly rejected. They have been given consideration, but do not require discussion.
[Headnote 10]
Error is assigned in the court's limitation of cross-examination by defendants of one of
plaintiff's witnesses. We find no error or abuse of discretion in the orders complained of.
Appellants also assert that this action is equitable in character and that it was error to submit
the case to the jury, except for an advisory verdict. It is true that the complaint sought
injunctive relief as well as damages. At the time of filing the complaint, plaintiff sought a
temporary injunction supported by the pleadings and the affidavit of plaintiff and which was
opposed by affidavits submitted on behalf of defendants. The court, in denying the motion for
the temporary injunction or injunction pendente lite (presented in the form of an order to
show cause), said: It appears * * * that the letter concerning payment of $1,000 to the
Children's Home has been retracted, that the Thompson job is no longer on the We Do Not
Patronize' list, and that all picketing has been withdrawn. * * * The defendants having shown
good cause why a temporary injunction should not issue, the application for the same is
hereby denied. To all intents and purposes the equitable feature of the case ceased to be an
issue and the trial proceeded to its conclusion solely on the claim for damages as pleaded in
plaintiff's first and second causes of action. The only issue that went to the jury, so far as the
record discloses, was such claim for damages. This was purely a matter of law. The
assignment is without merit.
[Headnotes 11-13]
Appellants refer to the prayer of plaintiff's complaint for actual damages upon his first
cause of action, for actual damages upon his second cause of action and for exemplary and
punitive damages, and assert that the form of verdict submitted by the trial judge
"required the jury to assess damages in a lump sum on each cause of action without
reference to the nature of the damages whether compensatory or exemplary."
actual damages upon his second cause of action and for exemplary and punitive damages, and
assert that the form of verdict submitted by the trial judge required the jury to assess
damages in a lump sum on each cause of action without reference to the nature of the
damages whether compensatory or exemplary. As filled out and returned by the jury the
verdict was: We, the jury, find for plaintiff and against the defendants on his first cause of
action and assess his damages at $250.00. We, the jury, find for plaintiff and against the
defendants on his second cause of action and assess his damages at $6500.00. It is asserted
also that this form of verdict made it impossible for the jury to find in favor of any individual
personal defendant or any individual labor union, and in effect instructed the jury that if one
person or organization was liable, all were liable. The fallacy of this contention lies in the fact
as shown by the record that the trial court handed to the jury a number of forms of verdict.
The only form appearing in the record is the one used by the jury. How many forms were
submitted or what was covered by the other forms submitted, does not appear. Respectable
authority suggests the propriety of a form of verdict which will show separately the
compensatory and the punitive damages. The authorities are to the general effect, however,
that objections to the form of verdict are deemed waived if no objection is made at the time.
53 Am.Jur. p. 715, Trial, sec. 1035, p. 719, sec. 1039, p. 730, sec. 1054. It may not be raised
for the first time on appeal. II Bancroft's Code Practice and Remedies, p. 2026, sec. 1557;
Baker v. Peck, 1 Cal.App.2d 231, 36 P.2d 404. In Crystal Dome Oil & Gas Co. v. Savic, 51
Idaho 409, 6 P.2d 155, 156, the court, citing a number of authorities, stated: In the absence
of statute to the contrary, where both actual and punitive damages are, as here, recoverable, a
general verdict is sufficient; and, unless requested, the failure to instruct for a distinctive
verdict is not fatal error. If appellants desired a specific instruction on punitive damages,
they should have requested it. No request was made for a segregated verdict in the present
case and we must find the assignment to be without merit.
request was made for a segregated verdict in the present case and we must find the
assignment to be without merit.
Several other matters are discussed in the voluminous briefs. They have all been given
consideration but we do not find that a discussion of them is necessary.
There being no error, the judgment and order denying new trial are affirmed with costs.
____________
68 Nev. 410, 410 (1951) Ellis v. Nelson
LEONARD E. ELLIS, RAY SOLOMON, Also Known as RAY SOLOMAN, JOHN DOE
and RICHARD ROE, Defendants and Appellants, v. ELFORD J. NELSON, Plaintiff and
Respondent.
No. 3647
July 31, 1951. 233 P.2d 1072.
department No. 2.
Action by Elford J. Nelson against Leonard E. Ellis, and others, to recover possession of
house trailer and for damages for wrongful detention. From a judgment for plaintiff and
denial of new trial defendant appealed. The Supreme Court, Merrill, J., held that where fact
that house trailer had been consigned to agent for cash sale only, and fact that transfer of title
could be effected only by consent of bank with which title was deposited was known to buyer
who entered into conditional sales contract with agent, any apparent authority of agent to
consummate sale in such manner, even if any did exist, lost its apparency and owner was not
estopped to deny that act was beyond authority of agent.
Judgment affirmed, with costs.
John Davidson, of Reno, for Appellant Ray Solomon.
Pike, McLaughlin & Furrh, of Reno for Appellant Leonard E. Ellis.
1. Principal and Agent.
Where agent to whom house trailer had been consigned for sale had authority to conclude cash sale only,
such authority did not include power to effect sale under conditional sales contract even though cash would
be received by principal when agent subsequently assigned conditional sales contract.
2. Sales.
A cash sale is generally regarded as one in which neither title nor possession is to be delivered until
payment in full has been made and contemplates no extension of credit.
In action by owner of house trailer who had consigned trailer to agent for cash sale against agent and
buyer under conditional sales contract for possession and damages for wrongful detention, in which owner
had terminated agent's authority, evidence established that authority of agent was terminated prior to
receipt of cash from finance company to which conditional sales contract had been assigned.
Apparent authority in excess of actual authority proceeds on theory of equitable estoppel in that it is in
effect estoppel against owner to deny agency when by his conduct owner has clothed agent with apparent
authority to act.
Where agent to whom house trailer had been consigned for sale had authority to consummate cash sale
only and consent of bank with which title was deposited must be procured to effect transfer of title, and
such facts were known to prospective buyer, there was no apparent authority created which would work
estoppel against owner to deny authority of agent to enter into such transactions.
Such apparent authority of an agent to do an act as might otherwise exist, vanishes in presence of third
person's knowledge, actual or constructive, of what agent is and what he is not empowered to do for his
principal.
OPINION
This is an action to recover possession of a Platt house trailer and for damages for
wrongful detention. From judgment in favor of the plaintiff and from order denying new
trial, defendants have appealed.
judgment in favor of the plaintiff and from order denying new trial, defendants have
appealed. Their defense to the action is based upon an alleged contract of sale of the trailer
and we are here concerned with the question whether such a contract ever was actually
consummated.
On February 18, 1948, respondent Nelson, owner of the Platt trailer, desiring to sell it,
contacted appellant Solomon, who, under the name of Ray's Motors, operated a trailer sales
lot in Reno and was engaged in the business of buying and selling used cars and trailers. After
discussion of the matter, Solomon was authorized to place the trailer on his lot for sale on
consignment at a price which would net Nelson $3,000. Solomon was not given the title
certificate, however. This was left with the Nevada Bank of Commerce in Reno, endorsed in
blank, with instructions to deliver it to Solomon upon receipt of $3,000. Nelson and Solomon
executed the following instrument:
No. 18 February 18, 1948
Received of Dr. E. J. Nelson (1) 1947 Platt Trailer, Serial No. 4134 to be sold on
consignment to pay above $3,000 when sold.
Approved by owner.
E. J. Nelson
Ray's Motors
Ray Solomon
Title at Bank of Commerce
On April 28, 1948, appellant Ellis contacted Solomon with reference to purchase of the
trailer. Ellis was the owner of an M-System trailer which he wished to turn in as a trade
allowance. Ellis and Solomon agreed upon terms. Solomon, however (as he, himself,
testified), stated to Ellis that there was only one catch to it; that it belonged to another party
and I would have to contact him to see if the trade-in was agreeable.
Solomon in Ellis's presence then placed a telephone call to Nelson in California and
secured Nelson's consent to the trade allowance.
the trade allowance. Solomon, during that conversation, explained that he had a prospect,
explained the necessity for a trade allowance and described the M-System trailer. He stated
that he had appraised it for $1,950; that with such an allowance the difference would be in
cash. Ellis, by his own testimony, confirms this statement. Ellis also testified that he had
been told by Solomon that the Platt's title certificate was at the bank and that the transaction
would have to be cleared through the bank.
Nelson testified that during the conversation he instructed Solomon that the trade-in trailer
would have to be independently appraised through the bank before any allowance could be
made. Solomon flatly denied that any such condition was imposed. The trial court found that
Ellis knew of no such condition. Nelson subsequently telephoned the bank to advise of the
modification in terms of sale and confirmed this conversation with a letter of authority. In that
letter an appraisal through the bank is made a condition to acceptance of any trade allowance.
Immediately following his telephone conversation with Nelson, Solomon advised Ellis
that the deal was satisfactory and could go through. A form of conditional sale contract was
then prepared by Solomon on printed forms which Ellis understood was to be used as the
basis for financing the cash balance through the Pioneer Finance Company of Detroit,
Michigan. This contract was signed by Solomon, representing himself as owner, and by Ellis
as purchaser. The contract provided for sale of the Platt trailer to Ellis for the sum of $3,395
with a trade allowance in the sum of $1,950 shown as down payment. The balance, plus
insurance and financing charges, covered by a promissory note, was to be paid by Ellis in
monthly installments of $85.42 over a period of 24 months. The printed form contained a
form of assignment and guaranty to the Pioneer Finance Company which was signed by
Solomon warranting himself to be owner.
Solomon then delivered possession of the Platt trailer to Ellis and took delivery of the
M-System trailer. Ellis requested a registration slip for the Platt trailer and was advised by
Solomon that it would not be available until the transaction had been cleared through the
bank. Ellis then instructed Solomon that when the transaction had cleared and the registration
slip had been secured through the state motor vehicle department, it was to be mailed to him,
giving Solomon an address to which to send it. Certain of the trailer equipment was not
included in the sale to Ellis but was retained by Solomon.
Solomon did not thereafter report to Nelson on the transaction as concluded with Ellis.
The M-System trailer was never appraised. Solomon never communicated with the bank
relative to the sale. On May 8 Nelson wrote Solomon that, having heard nothing further, he
assumed the deal had fallen through and would be willing to accept less than $3,000 as he
was in need of cash. On May 11 Solomon telephoned Nelson, still refrained from reporting
the true status of the Ellis transaction and falsely stated that while it had fallen through on the
original basis it could still be concluded on the basis of a total sale price of $2,900 ($950 plus
the trade-in allowance). On May 15 Nelson wrote to Solomon and to the bank that W. M.
Kearney, Reno attorney, was thereafter to represent him in all matters relating to the trailer
and that title papers were to be placed in Kearney's possession. Kearney thereafter attempted
to reach Solomon by telephone. On June 5 Nelson wrote Solomon instructing him to turn the
trailer over to Kearney. At about this time (the precise dates are uncertain), Kearney
succeeded in reaching Solomon by telephone, and notified him that he must deliver either the
trailer or $3,000; that no trade allowance would be considered. Shortly thereafter the check
from the Pioneer Finance Company, on its acceptance of the assignment of the Ellis
conditional sale contract, cleared through Solomon's bank, and the cash thereupon became
available to Solomon.
available to Solomon. In the meantime Ellis, in possession of the Platt trailer, had left Reno.
This action was brought by Nelson November 19, 1948. The trailer subsequently was
located in Lincoln County, Nevada, and taken into possession on behalf of Nelson. During
trial Solomon voluntarily deposited with the court the sum of $950 together with the title
certificate of the M-System trailer. After trial by the court without a jury, judgment was
rendered in favor of Nelson, declaring him owner and entitled to possession of the trailer
(including the equipment in Solomon's possession) and for damages in the sum of $450 for
wrongful detention. The judgment for damages was rendered against Solomon and Ellis
jointly and severally. Motion for new trial was denied, and this appeal duly taken.
Ellis and Solomon contend that Ellis's right to possession is established by the contract of
sale and that Solomon was authorized to enter such contract as agent for Nelson. Nelson
contends that Solomon had no authority whatsoever to execute such a contract; that in so
doing he exceeded his authority in two specific respects: (1) in failing to secure an
independent appraisal of the M-System trailer before accepting it as trade allowance; (2) in
failing to secure the balance in cash. Considerable of counsel's argument related to the
question of the appraisal; to the failure of the trial court to make express findings on this
point; to the weight of the evidence thereon. In the view of this court, however, the matter of
appraisal is not essential to disposition of this appeal and is of factual interest only in
indicating Nelson's motive in terminating Solomon's authority. Such authority was clearly
terminated either by the letter of June 5, 1948, or by the telephone conversation between
Kearney and Solomon, whichever was the earlier communication. The only question is
whether, prior to such termination, a binding contract had already been reached between
Nelson and Ellis through Solomon as duly authorized agent of Nelson.
authorized agent of Nelson. In the view of this court no such contract had been reached for
the reason that Solomon, in concluding the transaction as he had, exceeded his authority.
[Headnotes 1, 2]
It is clearly established that Solomon's authority (with or without trade allowance) was to
conclude a cash sale. Ellis's contract on which appellants here rely, was a conditional sale
contract. The two are not reconcilable. A cash sale is generally regarded as one in which
neither title nor possession is to be delivered until payment in full has been made. A cash sale
contemplates no credit. See: 2 Williston on Sales (Revised edition) 324, sec. 341. A sale for
cash is a sale for the money in hand. * * * Cash' is money at command; ready money. Dazet
v. Landry, 21 Nev. 291, 295; 30 P. 1064, 1066. A positive direction to convert' the property
assigned into cash as soon and upon the best terms possible for the best interests of our
creditors,' can hardly be construed into a discretionary authority to sell on credit, * * *.
Muller v. Norton, 132 U.S. 501, 508; 10 S.Ct. 147, 148; 33 L.Ed. 397, 399.
Appellants contend that the term cash should be construed as relating to the medium of
payment rather than the time of payment; that cash ultimately was received by Solomon; that
respondent Nelson can hardly have been injured in this respect so long as title was reserved
until such time as the full cash payment had been made. As authority for their position they
cite Commercial Credit Co. v. Barney Motor Co., 10 Cal.2d 718, 722; 76 P.2d 1181, 1183, to
the effect that authority to sell for cash implies authority to sell for cash or its equivalent.
That case involved a conditional sale contract which was promptly taken to a bank which
promptly advanced cash on it. The opinion states, That the full purchase price in cash was
received by Negra [the agent for the owner,] upon the sale and delivery of possession of the
automobile cannot be disputed."
delivery of possession of the automobile cannot be disputed. The case thus is clearly
distinguishable from the present case. The conditional sale contract in the cited case was
merely a commercial means for consummating a cash sale. No rights as against the seller
could be said to have arisen in the purchaser by virtue of the conditional sale contract itself
until that contract had produced the cash upon which the sale itself was consummated.
Appellants contend that there is evidence to the effect that the cash was available to
Solomon through clearance of the Pioneer Finance Company check prior to revocation of his
authority; that under the cited decision the transaction was then the equivalent of a cash
transaction; that Nelson's authorization of a cash transaction should be regarded as a
continuing offer which was accepted and reduced to a contractual obligation when the cash
became available to Solomon.
[Headnote 3]
In this regard Solomon testified that to the best of his recollection the check cleared
through the bank and was cashed the latter part of May. Appellants argue that termination of
Solomon's authority came by the letter from Nelson dated June 5. Solomon's recollection as
to dates, however, is demonstrated on more than one occasion throughout the record to be
inaccurate. We regard the record as clearly establishing that his authority was terminated prior
to his receipt of the cash.
On June 3 he wrote to Nelson:
As a rule our Finance Co., takes approximately three weeks to complete their credit
check-up on the purchaser and to forward their check to me. Since the three weeks period has
elapsed, I phoned to Pioneer Finance to find out just what the delay was. They told me this
particular contract had taken a little longer than usual but they were sending me a check in the
next mail.
As soon as I receive it I will deposit it in my bank here in Reno and it will take
approximately 5 days to clear.
clear. As soon as it clears I will send you a check for $950 as agreed upon at the time of our
phone conversation of May 11, 1948.
From this it would appear doubtful that the check had been received and had cleared
through the bank prior to receipt of Nelson's letter of the fifth. Further, Solomon testified (on
cross-examination by Mr. Kearney):
Your [Kearney's] conversation with me was before the check had cleared, stressing at the
time that you would have one or the other, either Three Thousand Dollars or the trailer. I had
spoken to you at that time the trailer was under a contract and that the check was being
cleared through the Pioneer Finance Company at my bank. The reason I couldn't get the title
from the bank or to you was on account of the check not being cleared, and at that time you
mentioned to me specificallyI remember because it had me all up in the air, I didn't know
what to do; I will have nothing to do with Nine Hundred Dollars; all I want is Three
Thousand Dollars or the Platt trailer.'
Accepting appellants' contention that Nelson's authorization constituted a continuing offer,
it would still appear clear that such offer was withdrawn prior to any acceptance thereof.
Finally appellants contend that regardless of any limitations upon Solomon's actual
authority he had apparent authority to conclude the transaction in the manner in which it was
concluded by virtue of his possession of the trailer and the known fact that he was in the
business of selling used trailers.
[Headnotes 4, 5]
Apparent authority (when in excess of actual authority) proceeds on the theory of equitable
estoppel; it is in effect an estoppel against the owner to deny agency when by his conduct he
has clothed the agent with apparent authority to act. In this respect it is stated in 1 Mecham
On Agency (Second Edition) 513, secs. 725, 726, (Liability by estoppel): "It is indispensable
to keep in mind here that, as against the principal, there can be reliance only upon what
the principal himself has said or done, or at least said or done through some other and
authorized agent.
It is indispensable to keep in mind here that, as against the principal, there can be reliance
only upon what the principal himself has said or done, or at least said or done through some
other and authorized agent. The acts of the agent in question can not be relied upon as alone
enough to support an estoppel. If his acts are relied upon there must also be evidence of the
principal's knowledge and acquiescence in them.
Moreover, in any case, the reliance must have been a reasonable one, consistent with the
exercise of reasonable prudence, and the party who claims reliance must not have closed his
eyes to warning or inconsistent circumstances. Authority is not apparent' simply because the
party claiming has acted upon his conclusions. It is not apparent,' in contemplation of law,
simply because it looked so to him. It is not a situation where one may read while he runs. It
is only where a person of ordinary prudence, conversant with business usages and the nature
of the particular business, acting in good faith, and giving heed not only to opposing
inferences but also to all restrictions which are brought to his notice, would reasonably rely,
that a case is presented within the operation of the rule. If the inferences against the existence
of the authority are just as reasonable as those in favor of it, there can be no reliance within
this rule.
In the case before us the only action of Nelson upon which Ellis relied was the giving of
possession of the trailer to Solomon. As against this Ellis knew that Solomon did not own the
trailer; that he was acting as agent for Nelson; that his authority was limited; that special
consent to a trade allowance must first be secured; that Solomon had no authority to effect the
transfer of title (that authority being with the bank). Any assumption on his part that Solomon
was authorized to conclude the transaction on the basis of a conditional sale contract was
based, not on the actions of Nelson, but on the statements of Solomon himself.
As authority (contra Mecham) for Ellis's right to rely on Solomon's representations,
appellants cite Federal Supply Co. v. Wichita Sales & Supply Co., Tex.
Supply Co. v. Wichita Sales & Supply Co., Tex. Civ. App. 232 S.W. 879, 881. In that case
the plaintiff authorized one Lee to sell a truck for $1,670, gave Lee possession of the truck
and a deposit receipt signed in blank. He was instructed that no trade allowance was to be
made without approval of plaintiff. Lee contacted defendant who offered to pay $470 and turn
in a used truck reasonably worth $1,200. Lee stated he would have to have plaintiff's consent.
A few days later he returned to defendant, falsely stated plaintiff had approved, received the
cash and absconded. The court held for defendant stating:
In this case it is found by the court the agent had the authority to sell upon the approval of
the principal, and that its agents customarily exchanged trucks for second hand cars. The
appellant [purchaser] dealt in view of this authority and custom. * * * It would seem where a
principal has, by his voluntary act, placed an agent in such situation that a person of ordinary
prudence, conversant with business usages, is justified in presuming the agent has authority to
perform the particular act, and so deals with the agent, the principal is estopped as against the
third person, from denying the agent's authority. * * * the court finds the appellant did not
know of the fraud, and as a prudent man we see no reason why, under the circumstances, the
appellant would not be entitled to rely upon the representations of the salesman in that
particular. * * *
The case emphasizes the factor of custom which was pleaded and proven and which is
absent in the case before us. However, it does go far in that the purchaser there knew of the
limitations on the agent's authority and relied solely on the agent's representations that the
principal had approved.
[Headnote 6]
One fact in the case before us, however, completely distinguishes the cited decision and
disposes of all questions of apparent authority. That is the fact that Ellis knew of his own
knowledge that Solomon's authority as to the unpaid balance was limited to a cash
transaction; that Nelson was anticipating the balance in cash; that neither a promissory
note payable over a period of two years nor monthly payments of $S5.42 would meet this
condition.
to the unpaid balance was limited to a cash transaction; that Nelson was anticipating the
balance in cash; that neither a promissory note payable over a period of two years nor
monthly payments of $85.42 would meet this condition. He also admitted knowing that his
operation of the trailer was improper under the state motor vehicle laws in absence of a
registration certificate or temporary certificate. He must have known that the transaction as
concluded by Solomon, including delivery of the trailer, under all of these circumstances was
without authority and was based solely upon Solomon's assumption that cash ultimately
would become available through the Finance Company and that the situation at that time
would right itself. That Ellis and Solomon may have assumed and expected that Nelson
would voluntarily hold still until the situation had righted itself; that they may have proceeded
to rely to their detriment upon such assumption and expectation, is not in itself sufficient to
compel Nelson so to act. Apparent authority loses all of its apparency when the third party
knows that actual authority is lacking. Home Owners' Loan Corp. v. Thornburgh, 187 Okl.
699, 701; 106 P.2d 511, 512. Any apparent authority that might otherwise exist vanishes in
the presence of the third person's knowledge, actual or constructive, of what the agent is, and
what he is not, empowered to do for his principal; * * *. 2 C.J.S. 1189, Agency, sec. 92a.
Appellants assign as error failure of the trial court to make any finding of fact relative to
the issue of agency. The court did find as follows: That said purported sale was made
contrary to the instructions of plaintiff and without any authority therefor, and was made by
said Ray Solomon in excess of his authority. In the light of such finding we feel appellants'
contention to be without merit.
The judgment of the trial court and its order denying new trial are affirmed, with costs.
____________
68 Nev. 422, 422 (1951) State v. Fitch
THE STATE OF NEVADA, Respondent, v.
RICHARD COOPER FITCH, Appellant.
No. 3504
August 3, 1951. 233 P.2d 1070.
On petition for rehearing.
Rehearing denied.
For former opinion, see 65 Nev. 668, 200 P.2d 991.
Richard Cooper Fitch was convicted of first-degree murder, and he appealed to the
Supreme Court which affirmed the conviction. Thereafter the defendant filed a petition for
rehearing. The Supreme Court, Per Curiam, held that none of the matters alleged by
defendant entitled him to a rehearing.
Appellant in pro per.
W. T. Mattews, Attorney General, George P. Annand, Robert L. McDonald, and Thomas
A. Foley, Deputy Attorneys General, of Carson City, and Roger Foley, District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Where attorneys for defendant, who had been convicted of murder, prepared, served and filed entire
record on appeal and bill of exceptions, and opening and reply briefs, and argued and submitted the matter
to the supreme court on appeal prior to date when defendant claimed that he had discharged his attorneys,
there was no merit to defendant's contention in petition for rehearing that he was not represented properly
or at all by his appeal attorneys because he had discharged them.
2. Criminal Law.
Allegations in motion for rehearing of one who had been convicted of murder, comprising a series of
accusations against county officials, one of the newspapers there, and several attorneys with whom he had
conferred in connection with his petition for rehearing, did not set out any recognized grounds for granting
a rehearing.
3. Criminal Law.
Questions raised for the first time on petition for rehearing will not be considered by the supreme court.
4. Criminal Law.
Rehearings are not granted as a matter of right or simply for purpose of having a reargument of the
appeal, but only if there is a reasonable probability that court may have arrived at an
erroneous conclusion or might have overlooked some important question necessary
to a full and proper understanding of the case.
68 Nev. 422, 423 (1951) State v. Fitch
if there is a reasonable probability that court may have arrived at an erroneous conclusion or might have
overlooked some important question necessary to a full and proper understanding of the case.
Per Curiam:
Appellant was found by the jury's verdict to be guilty of murder in the first degree and the
penalty was fixed at life imprisonment. On December 20, 1948 this court affirmed the
judgment. 65 Nev. 668, 200 P.2d 991. Commencing January 6, 1949 this court at regular
periods, on application of appellant, entered orders extending time for serving and filing
petition for rehearing. In the order extending his time to November 7, 1949, we noted:
Appellant has applied for a seventh order extending his time for an additional 60 days for
serving and filing his petition for rehearing. The petition under provisions of law was
originally due January 5, 1949, and has heretofore been extended to September 6, 1949.
These extensions have all been granted upon the personal application of plaintiff for the
reason that he had discharged his former attorneys and was trying to employ other counsel; he
says that he has now arranged for such employment; * * *.
This was referred to in our order of February 8, 1951 in which we noted that several
additional extensions had thereafter been granted, all being upon the ground that appellant's
efforts to obtain new counsel had been without success. In granting such further extension we
also said:
Appellant's present application for further time, comprising some 600 words and
containing in the main an attack upon the officials of Clark County, Nevada, and one of the
newspapers published in said county, contains not the slightest suggestion of further attempts
to obtain counsel.
So far as known to any of the present members of the Court the extensions given in this
case, of time within which to petition for a rehearing in this Court are without parallel in
the history of the Court.
68 Nev. 422, 424 (1951) State v. Fitch
within which to petition for a rehearing in this Court are without parallel in the history of the
Court. The period of two years and one month heretofore granted in addition to the time
provided by law, within which a petition for rehearing may be filed, would seem to have
provided far more time than could reasonably be thought necessary for the purpose. After
conference with the members of the Court it has been concluded that one more extension of
time be granted. The matter has been thus reviewed in order that appellant may not be taken
by surprise.
We thereupon extended petitioner's time for filing his petition for rehearing to April 16,
1951, on or about which date the petition was filed. On May 31, 1951 he filed a corrected
petition, and respondent filed its reply June 19, 1951.
[Headnote 1]
1. Counsel representing appellant on the appeal were not the same attorneys representing
him at the trial, and it is appellant's first contention in his petition for rehearing that he was
not represented properly or at all by his appeal attorneys because he had discharged them as
such, and refers to Morse et al. v. District Court, 65 Nev. 275, 195 P.2d 199, 204, in which
we said:
So delicate is the relationship between attorney and client, so necessary is it that absolute
trust and confidence be unimpaired between them that the client has the power (as
distinguished from the right) to discharge his attorney at any time. 5 Am. Jur. 281, Attorneys
at Law, 34, and cases cited.
This contention is without merit. While he claims to have discharged his appeal attorneys
on October 25, 1948, such attorneys had prepared, served and filed the entire record on
appeal and bill of exceptions, and opening and reply briefs, and had argued and submitted the
matter to this court on September 22, 1948.
[Headnote 2]
2. Appellant's next contention comprises a series of accusations against the officials of
Clark County, one of the newspapers there, and several attorneys with whom he had
conferred in connection with his proposed petition for rehearing.
68 Nev. 422, 425 (1951) State v. Fitch
the newspapers there, and several attorneys with whom he had conferred in connection with
his proposed petition for rehearing. These matters do not fall within any of the recognized
grounds for granting a rehearing.
[Headnote 3]
3. Petitioner next attacks the district attorney's oral argument to the jury as improper and
highly prejudicial. Such contention was, however, urged upon the appeal and expressly ruled
upon by this court. State v. Fitch, 65 Nev. 668, 200 P.2d 991, 1000. Petitioner urges,
however, that in addition to the particular remarks of the district attorney urged as error on the
appeal, additional remarks of the district attorney should likewise have been urged as
improper. This court has often held, however, that questions raised for the first time on
petition for rehearing will not be considered. State v. Ceja, 53 Nev. 272, 281, 298 P. 658, 2
P.2d 124. We may note, however, that the case was carefully briefed and argued on appeal,
and counsel would undoubtedly have assigned such additional remarks as error if they had
considered the point of sufficient importance.
4. It is next contended that petitioner should be granted a rehearing because articles printed
in the newspapers prior to and during his trial were highly prejudicial and prevented his
having a fair trial. It does not appear that his trial attorneys sought a change of venue or that
his appeal attorneys raised the point in any of their numerous assignments of error. Raised
now for the first time, the assignment cannot be considered. Nor are the publications referred
to a part of the record in this case. Petitioner's trial attorneys, as well as his appeal attorneys,
were all lawyers of ability and experience, and petitioner's contentions may be generally
classified as a complaint that these attorneys conducted the trial and the appeal in accordance
with their own judgment rather than in accordance with petitioner's judgment as to what
things should or should not have been done and how they should or should not have been
done.
68 Nev. 422, 426 (1951) State v. Fitch
5. The same situation applies to petitioner's attack upon his trial attorneys for failure to
present certain matters in support of his motion to the district judge for a new trial. First, the
matters of which he complains do not appear in the record. Secondly, the claim that he was
not properly represented by trial counsel was not raised on the appeal from the judgment.
[Headnote 4]
6. In his petition for rehearing petitioner again reviews the facts and asserts, in effect, that
the jury should have accepted his view of the evidence rather than the evidence as presented
by the State. This situation was considered at length in this court's opinion affirming the
judgment. Rehearings are not granted as a matter of right or simply for the purpose of having
a reargument of the appeal, unless there is a reasonable probability that the court may have
arrived at an erroneous conclusion or overlooked some important question necessary to a full
and proper understanding of the case. Geller v. McCown, 64 Nev. 102, 106, 177 P.2d 461,
178 P.2d 380.
7. Petitioner introduces his petition for rehearing with the request that we receive the same
as a layman's presentation. It is largely because we have considered it as such that we have
accorded it the foregoing careful consideration. It is so patent that the points raised in the
petition are either matters entirely outside the record or matters that had received due
consideration in the opinion on the appeal, or matters that were raised for the first time in the
petition for rehearing, that we would have been justified in denying the petition without
opinion. It should be noted too that although the petition for rehearing indicates the
petitioner's familiarity with his proceedings on his motion for a new trial addressed to the trial
court, his impression seems to be that his present petition is a petition for an order granting a
new trial. A layman's natural lack of knowledge of appellate practice cannot of itself change
the constitutional and statutory functions of this court. Petitioner has filed with this court his
correspondence with several attorneys with whom he has been negotiating during the
past two and a half years or more for presentation of his petition for rehearing.
68 Nev. 422, 427 (1951) State v. Fitch
has filed with this court his correspondence with several attorneys with whom he has been
negotiating during the past two and a half years or more for presentation of his petition for
rehearing. Like his trial attorneys and his appeal attorneys, these lawyers too come under his
scathing denunciations, which weaken rather than strengthen his contentions that he was
deprived of a fair trial and a fair presentation of his appeal by the incompetency and neglect
of his attorneys of record.
The petition for rehearing is denied.
____________
68 Nev. 427, 427 (1951) Davidson v. Streeter
JOHN DAVIDSON, LORETTA M. DAVIDSON, JOHN DOE 1st to 5th, Inclusive,
Appellants, v. NELLIE STREETER, Respondent.
No. 3629
August 14, 1951. 234 P.2d 793.
department No. 2.
Action by Nellie Streeter against John Davidson, Loretta M. Davidson, and others, for a
judgment declaring named defendants to be trustees of certain real property for plaintiff, to
compel reconveyance thereof to plaintiff with accounting for profits, and for other relief.
From a judgment for plaintiff, and an order denying defendants' motion for a new trial,
defendants appealed. The Supreme Court, Badt, C. J., held, inter alia, that evidence was
sufficient to support findings that at time of conveyances by plaintiff, first named defendant
had orally agreed to hold premises for her benefit, to collect rentals, make necessary
payments under a subsisting contract to purchase, all of which he had carried out, and that
first-named plaintiff eventually sold premises and upon plaintiff's demand for payment
repudiated his oral agreement.
and upon plaintiff's demand for payment repudiated his oral agreement.
Affirmed.
Samuel Platt, of Reno, for Appellants.
1. Limitation of Actions.
Where court found that plaintiff had conveyed property to defendant in trust for her benefit, and
defendant collected rents, made repairs, and generally cared for property, all of defendant's actions were
consistent with such trust and there could be no breach while he so acted, and consequently no cause of
action arose which could start running of statute of limitations until defendant sold property and thereby
repudiated trust.
2. Trusts.
Where plaintiff commenced her action seeking a judgment declaring defendants to be trustees of certain
real property for plaintiff within two months of defendants' repudiation of trust by sale of property, defense
of laches was without support.
3. Trusts.
Where a confidential relation exists pursuant to which a deed is executed to grantee for benefit of grantor
or a third person, trust arises from violation of oral agreement purporting to create trust, and court in
granting relief proceeds upon ground of fraud, actual or constructive, and enforces agreement
notwithstanding statute of frauds. N.C.L.1929, sec. 1527.
4. Trusts.
Even though under the statute of frauds, a contract to convey land is void unless in writing and no trust in
real property is valid unless created by writing or operation of law, and accordingly a defendant's oral
promise to reconvey is invalid and cannot be enforced, it is under theory of exception to statute, that is,
where trust arises by operation of law, that courts have consistently imposed a constructive trust arising out
of breach of oral agreement, and especially when a confidential relation exists between parties.
N.C.L.1929, sec. 1527.
5. Trusts.
Equity will not permit confidence placed in grantee to be betrayed, and accordingly when one uses a
confidential relation to acquire an advantage which he ought not in equity and good conscience retain,
court will convert him into a trustee and compel him to restore what he seeks unjustly to retain.
6. Trusts.
Parol evidence is admissible to raise a trust in cases of actual or constructive fraud. N.C.L.1929, sec.
1527.
7. Trusts.
Requirement for clear and convincing proof to establish a constructive trust based upon violation of an
oral trust arrangement does not apply where transfer is made to a fiduciary, but in such instance, burden of
overcoming certain presumptions is upon fiduciary.
Where attorney of many years' practice was dealing with his client who was a woman of rather advanced
years, very limited education, and with no experience of legal matters, and attorney had acted as such for
client for number of years prior to and following property transactions, and also concerning property which
was later transferred from client to attorney, and was at time acting as her attorney in matter of chattel
mortgage on furniture on premises, a fiduciary relationship between the parties was established and when
client subsequently transferred property to attorney such transaction called for closest scrutiny by court.
9. Trusts.
In action by grantor against grantees for a judgment declaring grantees to be trustees of certain real
property for grantor and to compel a conveyance thereof with accounting for profits, and other relief,
evidence was sufficient to support findings that at time of conveyance, one grantee had orally agreed to
hold premises for grantor's benefit, collect rentals, make necessary payments under subsisting contract to
purchase, all of which he carried out, and that he eventually sold premises and upon grantor's demand for
payment repudiated his oral agreement to reconvey.
10. Trusts.
property for grantor and to compel a reconveyance thereof, with accounting for profits, amended complaint
as supplemented by further amendments was not deficient in failing to allege diligence on part of grantor
by exercise whereof she could have ascertained that one grantee was claiming property as his own.
11. Trusts.
property for grantor, and to compel reconveyance thereof with accounting for profits, action of trial court
in failing to award compensation to grantee as trustee was proper especially in view of fact that he had
repudiated trust and did not pray for compensation in his answer.
12. Trusts.
property for grantor, and to compel reconveyance thereof with accounting for profits, judgment for grantor
was not invalid in failing to require an accounting especially in view of fact that check and vouchers as well
as tabulations of moneys disbursed by grantees were matters appearing in record and no purpose would be
served by further accounting.
OPINION
The trial court imposed a constructive trust upon certain real property theretofore
conveyed by the plaintiff to defendants, by instruments absolute in form, and ordered
defendants to reconvey the same to plaintiff (subject to the rights of certain third parties), and
entered judgment for plaintiff against defendants for the excess of receipts from the property
over disbursements for the purchase price, taxes, insurance, repairs, upkeep, etc. The court
made findings to the effect that at the time of the conveyances by the plaintiff, Davidson had
orally agreed to hold the premises for her benefit, to collect the rentals, make the necessary
payments under a subsisting contract of purchase, etc., all of which he had carried out; that he
eventually sold the premises, and, upon plaintiff's demand for payment, repudiated his oral
agreement.
Davidson (generally referred to as the appellant hereinhis wife being joined because she
was a cograntee) assigns fourteen errors in support of his appeal, which may however be
condensed into six assignments: (1) That the evidence does not support the findings, and
particularly that the court failed to apply the rule requiring clear and convincing proof of the
trust; (2) that plaintiff's claim is barred by laches; (3) that it is barred by the statute of
limitations; (4) that the amended complaint (with supplemental amendments thereto) is
deficient in not alleging diligence on the part of plaintiff, which would have disclosed that for
many years plaintiff had been claiming the property as his own; {5) that the asserted oral
agreement to hold the property in trust for plaintiff was void under the statute of frauds;
and {6) that the judgment does not do equity, and that innocent third party purchasers
for value, without notice, are not protected by the judgment.
for many years plaintiff had been claiming the property as his own; (5) that the asserted oral
agreement to hold the property in trust for plaintiff was void under the statute of frauds; and
(6) that the judgment does not do equity, and that innocent third party purchasers for value,
without notice, are not protected by the judgment.
We have concluded that the assignments of error are without merit, and that the judgment
and order must be affirmed. The pertinent facts are as follows:
Although the transaction in which Mrs. Streeter conveyed her interests in the property to
Davidson, the nature of which transaction is the main question in dispute here, occurred in
Davidson's office in Reno in December, 1936, it becomes necessary to review matters
occurring some years prior to that occasion. The particular status of the parties too becomes
important. Davidson is an attorney, having been admitted to practice in California in 1913
and in Nevada in 1932, from which year until 1938 he was employed by Mr. W. M. Kearney,
a Reno attorney. In the latter year he left Mr. Kearney's employ and opened offices
immediately adjoining. Mrs. Streeter, a woman now of the age of seventy years, and with
little if any schooling, and without experience in legal transactions and who had been for
some years a client of Mr. Kearney, met Davidson about 1932 and the latter thereafter
handled a number of legal matters for her over a period of years. She testifies that his work
was satisfactory and that she had confidence in him and relied on him. On March 26, 1935
she signed two written agreements with Reno Realty Syndicate to purchase two parcels of
land, made a down payment of $250 and entered into possession, rented rooms in the
premises to tenants and expended some $1,000 in improvements. After making monthly
payments in excess of some $600, she became in arrears and the Syndicate, on March 26,
1936, commenced an action to cancel her contract. Mr. Davidson, then in Mr. Kearney's
office, advised her in the matter, drew an answer for her and negotiated a settlement, under
which the suit was dismissed and she entered into two new contracts on July S, 1936.
for her and negotiated a settlement, under which the suit was dismissed and she entered into
two new contracts on July 8, 1936. The new contracts provided for a slight increase in the
purchase price ($9,000, raised to $9,100) and for slightly increased monthly payments ($50,
raised to $55) on the larger parcel. The smaller parcel was covered by a ten-year lease with a
yearly rental of $10 and an option to buy for $500. When Mrs. Streeter called on Mr.
Davidson in December, 1936 she had made either four or five of the $55 monthly payments,
amounting (with interest on the deferred payments) to either $436.42 or $544.70. Prior to the
dismissal of the first cancellation suit and the negotiation of the new contracts, she had
expended over $1,500 upon the property. It thus appears that she had a substantial interest in
the property when she again consulted Davidson in December, 1936. On that occasion no one
was present other than the parties, and their testimony as to what occurred is in direct conflict.
She says she went to him for advice because the police were under the impression that she
was not conducting the property properly; that she knew Davidson was friendly with the
administration and asked if he could do anything to help her: * * * he said he could do it if I
would put the property in his name, that he would take care of it and handle it for me, and he
would collect the rents and try to get a buyer for it, and that I didn't have anything to worry
about. I had another place to go to. * * * He told me to come back in a few days and he would
see what he could do, and then when I went back he had a paper for me to sign and I signed it
* * * [he said] he would take care of the rentals and keep the payments made on it, and any
repairs, if necessary, and try to get a buyer for it at a good price, and * * * after the property
was sold * * * he said he would settle whatever money he got; he would settle up with me.
* * * I thought it was all right. He was my attorney representing me and I had confidence in
him. I thought it was perfectly all right.
Mr. Davidson on the contrary described the interview as follows: Mrs. Streeter talked to
me about the fact that she had to get out of the premises and that she couldn't afford to carry
on the payments due under the agreement for the purchase of the property and that as she
owed me money, she felt it would be fair if I would take over the contract as my own, that she
couldn't continue the payments and she wanted me to have it. That was the substance of it
* * *. She executed the contract in December '36, and it was necessary for me to make certain
improvements or spend some money on the property, and I told herI said, I cannot go on
without getting the absolute conveyance from you to this property, as I might have to have the
title of the property from you. I may need some money for the purpose of advancing it on
improvements. * * * I feel better satisfied and safer with a deed from you conveying the title
to me,' and that was about six months later or seven months or so.
For some ten years thereafter Mr. Davidson carried on. Again there is a conflict in the
testimony. Davidson testified that from 1940 to 1946, inclusive, Mrs. Streeter never visited
his office. Mrs. Streeter says that she saw Davidson occasionally after August, 1937; that they
had discussions about rentals and how things were going; that she saw him quite often
between 1937 and 1947, several times a year; that Davidson said that things were going all
right, only that he had repairs to make and insurance to pay and things to keep up, but that it
was rented and in good order; that in 1947 she heard that he had sold the property; that she
met him in the corridor of the courthouse and the following took place. She said: I heard you
sold the property, how much have I got coming? He said, I didn't get all the money; I sold it
on contract.' The bailiff objected to us talking. * * * Mr. Davidson * * * told me to come over
to his office later, and in a few days I went to his office and got an appointment with him and
then I asked him why he couldn't settle with me, why did I have to wait until he got the rest
of the money, and he said, 'How much do you think you have coming?' I said, 'You have
all my papers' * * * 'I think Ten Thousand Dollars is all right.' He said, 'You are lucky if
you get Two Hundred and Fifty.' I said, 'Is that your offer?' He said, 'I am not offering you
anything.' I said, 'What are you doing?' He wouldn't answer * * * that was the end of that
conversation."
wait until he got the rest of the money, and he said, How much do you think you have
coming?' I said, You have all my papers' * * * I think Ten Thousand Dollars is all right.' He
said, You are lucky if you get Two Hundred and Fifty.' I said, Is that your offer?' He said, I
am not offering you anything.' I said, What are you doing?' He wouldn't answer * * * that
was the end of that conversation. As to the period between 1936 and 1947, she testified that
Davidson never indicated to her that he claimed to own the property or any interest in it; that
when she would be short of money and would ask him if he had any surplus out of the rents,
he always said that he did not, that something was to be done on the premises and that he had
put out money for this and thata roof to fix, insurance to be paid, etc.
Davidson introduced his canceled checks showing his payments concerning the property
over the years. Payments on the contract aggregated $11,540.19, for repairs he paid out
$3,217.28, in taxes, he paid $2,056.03, and in insurance premiums $318.42. Fire destroyed a
part of the premises and he prosecuted an action against the insurance company resulting in a
collection of $2,000, of which $1,600 was applied on the purchase contract, $300 paid for
attorney fees and $100 retained by Davidson. In conjunction with Reno Realty Syndicate he
prosecuted an action to quiet title to the property (to which Mrs. Streeter was not a party and
in which she was not served with process), in the course of which summons was published,
notice of lis pendens recorded, etc. Davidson asserts that all of these things were open and
notorious, without any concealment, with the knowledge or presumptive knowledge of Mrs.
Streeter, but that she never in all the ten years asserted any rights to the property.
During such period Davidson received an aggregate of rentals and proceeds of sale in the
sum of $19,401 and had paid out according to his own figures an aggregate of $17,131.92.1
Certain additional facts should be noted.
of $17,131.92.
1
Certain additional facts should be noted. Davidson never had the purchase
and sale contract changed in the records of the office of the Reno Realty Syndicate. Both
before and after the assignment it was carried in the name of Mrs. Streeter. Before the
assignment Mrs. Streeter's payments were all made through Davidson. After the assignment
Davidson continued to make the payments. Furniture owned by Mrs. Streeter remained in the
premises. It was subject to a chattel mortgage to one Cafferata, and Mrs. Streeter made the
payments on the chattel mortgage through Davidson, including the final payment of $45, for
which Davidson issued his receipt to Mrs. Streeter on July 30, 1940, being in full of chattel
mortgage * * *.
[Headnote 1]
1. Our first concern is with the statute of limitations. Mr. Davidson insists that Mrs.
Streeter's cause of action, if any, arose at the time of her conveyances to him and that she is
therefore clearly barred. However, with the court's finding that she had conveyed the property
to Davidson in trust for her benefit, all of Davidson's handling of the property was consistent
with such trust, and there was no breach and consequently no cause of action arising in Mrs.
Streeter until his repudiation of the trust. White v. Sheldon, 4 Nev. 280; Steinberger v.
Steinberger, 60 Cal.App.2d 116, 140 P.2d 31.
[Headnote 2]
2. She commenced her action within two months of such repudiation and Davidson's
defense of laches is therefore likewise without support.
3. We are next concerned with the possible application of the statute of frauds. Our statute
in this regard, sec. 1527 N.C.L.1929, reads as follows: "No estate, or interest in lands, other
than for leases for a term not exceeding one year, nor any trust or power over or
concerning lands, or in any manner relating thereto, shall hereafter be created, granted,
assigned, surrendered, or declared, unless by act or operation of law, or by deed or
conveyance, in writing, subscribed by the party creating, granting, assigning,
surrendering, or declaring the same, or by his lawful agent thereunto authorized in
writing."
____________________

1
The precise amounts of debits and credits reflected in the findings and final judgment of the court are the
result of additional debits and credits since the commencement of the action and are according to figures
submitted by Davidson and are not disputed.
No estate, or interest in lands, other than for leases for a term not exceeding one year, nor
any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter
be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or
by deed or conveyance, in writing, subscribed by the party creating, granting, assigning,
surrendering, or declaring the same, or by his lawful agent thereunto authorized in writing.
[Headnote 3]
In Bowler v. Curler, 21 Nev. 158, 26 P. 226, 227, the court contented itself with saying:
The plaintiff conveyed the property to the defendant because of the confidence reposed in
him, without consideration other than he should hold it subject to the trust mentioned. If
defendant were permitted to retain it, plaintiff could be defrauded, and the statute, which was
intended to prevent frauds, would be the means for the accomplishment of a fraud. To prevent
such a result, equity raises a constructive trust in the grantee and in favor of the grantor.
The court cites a number of the early cases holding clearly that where a confidential
relation exists, pursuant to which a deed is executed to the grantee for the benefit of the
grantor or a third person, the trust arises from the violation of the oral agreement purporting
to create the trust, and the court in granting relief proceeds upon the ground of fraud, actual or
constructive, and enforces the agreement notwithstanding the statute, by reason of the special
circumstances.
[Headnotes 4-6]
This section is almost identical with sec. 1971, California Code of Civil Procedure. The
California cases pursue the reasoning further. In Cooney v. Glynn, 157 Cal. 583, 108 P. 506,
508, a mother conveyed real property to her son upon his oral promise to hold it for the
benefit of his sister, the grantor's daughter. The son so held it for a period of time, devoting
the proceeds to his sister's use, but thereafter repudiated the trust.
it for a period of time, devoting the proceeds to his sister's use, but thereafter repudiated the
trust. The court refers to many earlier cases holding that where confidential relations exist
between two parties and one conveys to the other on the other's parol promise to hold for the
benefit of the grantor or a third person, with no other consideration, a trust arises by operation
of law in favor of the beneficiary. The court says: It is the violation of the parol promise
which constitutes the fraud upon which the trust arises. If made in good faith, and if it is of a
continuing nature, the performance of it for a time does not prevent a trust from arising when
it is broken and repudiated. Among other cases, reference is made to Brison v. Brison, 75
Cal. 525, 17 P. 689, 7 Am.St.Rep. 189; id. 90 Cal. 323, 27 P. 186. In the first Brison case
many early American cases, as well as some of the early English cases, are discussed. It is
expressly recognized that under the statute of frauds a contract to convey land is void unless
in writing and that no trust in real property is valid unless created by writing or by operation
of law and that accordingly a defendant's oral promise to reconvey is invalid and cannot be
enforced. However, it is under the theory of the exception to the statute, namely, where the
trust arises by operation of law that the courts have consistently imposed a constructive
trust arising out of the breach of the oral agreement, especially where a confidential relation
existed between the parties. The betrayal of such confidence is constructively fraudulent, and
gives rise to a constructive trust. This is independent of any element of actual fraud. 1 Story,
Eq. Jur. secs. 258, 307. Id. 17 P. 689, 691, and again: We think the authorities fully bear
out the assertion that in such cases a constructive trust arises, and that the statute of frauds has
no application. It was said that equity will not permit the confidence placed in the grantee to
be betrayed, and that when one uses a confidential relation to acquire an advantage which he
ought not in equity and good conscience to retain, the court will convert him into a trustee
and compel him to restore what he seeks unjustly to retain.
conscience to retain, the court will convert him into a trustee and compel him to restore what
he seeks unjustly to retain. After quoting Lord Hardwicke in Young v. Peachy, 2 Atk. 254, to
the effect that the rule had been recognized in many cases since the adoption of the statute of
frauds, the court, as if foreseeing such a case as the present, said: For, if the relief cannot be
granted in this case, we do not see how it could be granted if an attorney should, by his parol
promise, induce his client to put the property in his name for some temporary purpose, and
then refuse to reconvey on the ground of the absence of a written acknowledgment. * * * It
is further made clear in Brison v. Brison that the granting of the necessary relief, through
parol proof of the oral promise is not a violation of the parol evidence rule, because it does
not contradict the deed but raises out of the transaction an equity dehors the deed, binding
the grantee's conscience to hold the land for the real purposes of the conveyance where the
use of the deed according to its legal operation would work a fraud. In such case the equity is
held to be independent of the deed, not contradicting it, but explaining the transaction out of
which the equity arises. In short, parol evidence is admissible to raise a trust in cases of actual
or constructive fraud. This seems to be well settled.
4. The parties are in disagreement as to the nature and degree of proof devolving upon the
respective parties under the circumstances. Appellant insists that the usual conflict of
evidence rule has no application here and that the appeal should be considered in light of the
statement made in Consolazio v. Summerfield, 54 Nev. 176, 10 P.2d 629, 630, in which this
court said, citing authorities: The general rule of this court is that when the evidence is
conflicting and there is substantial evidence to sustain the judgment it will not be disturbed.
But there is an exception to the general rule to the effect that where, upon all the evidence, it
is clear that a wrong conclusion has been reached, the judgment will be reversed."
reversed. This salutary exception was approved in Valverde v. Valverde, 55 Nev. 82, 26
P.2d 233, and we should not hesitate to apply it if we were convinced that the trial court had
clearly reached a wrong conclusion upon all the evidence. More strenuously, however,
appellant insists that in order to establish by parol the existence of a trust in property
conveyed by deed absolute in form, the evidence should be clear and convincing. Bogert,
Trusts and Trustees, Vol. 2, sec. 49, p. 231; that a high degree of proof is required, 23 A.L.R.
1502; that the proof must be strong and satisfactory, clear and attended with no
uncertainty, clear and conclusive, Mitchell v. O'Neale, 4 Nev. 504; Dalton v. Dalton, 14
Nev. 419; that it must be clear, definite, unequivocal and satisfactory, Moore v. De
Bernardi, 47 Nev. 46, 220 P. 544, 545. Appellant refers not only to these cases but to others
of similar nature and points out that in a number of such cases the court reviewed the
testimony to determine whether the rule had been properly applied.
[Headnote 7]
Respondent, as vehemently, insists that the requirement for clear and convincing proof to
establish a constructive trust based upon the violation of an oral trust arrangement does not
apply where the transfer is made to a fiduciary, but that in such instance the burden of
overcoming certain presumptions is upon the fiduciary. We are in agreement with this
contention. A clear expression of this rule is found in Katz v. Enos, 68 Cal.App.2d 266, 156
P.2d 461, 467, in which it was said:
Appellants argue generally in regard to the sufficiency of the evidence that in a case such
as this, the deed is presumed to convey absolute title and the burden of proving it did not do
so is upon plaintiff and that to overcome this presumption plaintiff's proof must be clear,
satisfactory and convincing.' However, the courts have repeatedly held that the question as to
whether the evidence is clear and convincing' or sufficient to sustain a judgment for the
plaintiff must be determined by the trial court,' and that the determination of the trial court
will be accepted 'as conclusive' on appeal.
trial court will be accepted as conclusive' on appeal. 25 Cal. Jur., Trusts, sec. 114, p. 248,
and cases cited; 11 Cal. Jur. 10 Yr. Supp. p. 25, and cases cited. In this connection it should
be stated that the presumption and burden of proof rule contended for by appellants do not
apply where a confidential relationship is shown to exist between the parties at the time of the
execution of the deed. Here the court found that such relationship did exist, and it would
seem that the evidence is sufficient to support such finding. Steinberger v. Steinberger, 60
Cal. App. 2d 116, 140 P.2d 31. However, even assuming that such relationship did not exist,
the evidence is legally sufficient to sustain the trial court's findings under the rule contended
for by appellants.
To similar effect is the rule as stated in 65 C.J. 320, Trusts, sec. 82, id. 490, sec. 234. In
Moore v. Rochester Weaver Min. Co., 42 Nev. 164, 174 P. 1017, 19 A.L.R. 830, it was said
that the presumptive invalidity of the transaction on the ground of constructive fraud, where
an attorney deals with his client for the former's benefit, can be overcome only by the clearest
and most satisfactory evidence. The rule was said to be founded in public policy, being
intended as a protection to the client against the strong influence to which the confidential
relation naturally gives rise. See also Martin v. Dixon, 49 Nev. 161, 241 P. 213. In any event
we are not prepared to say as a matter of law that the trial court failed to apply the rule as to
the standard of proof insisted upon by appellant. In the second Brison case cited above and as
reported in 27 P. 186, 189, it is said: * * * but it must also be conceded that whether the
evidence in any case is of this character [clear, satisfactory and conclusive] must be
determined by the trial court, and that this court must accept the determination of the trial
court thereon as conclusive. It should be noted in this regard that in its written decision the
trial court stated that the plaintiff had proved her case by clear and convincing evidence.
Whether, in the absence from the case of the fiduciary relation of the parties, we should
feel that this court is bound to follow the rule above stated, and is bound by the trial
court's statement, we need not here determine.
the case of the fiduciary relation of the parties, we should feel that this court is bound to
follow the rule above stated, and is bound by the trial court's statement, we need not here
determine.
[Headnote 8]
The fiduciary relationship can hardly be disputed. Appellant, an attorney of many years
practice, was dealing with his client, a woman of rather advanced years, of very limited
education and with no experience in legal matters. Appellant acted as respondent's attorney
not only for a number of years prior to and following the transaction in question but
concerning the very property involved in the transfer from client to attorney. He was at the
time acting as her attorney in the matter of a chattel mortgage on her furniture situate in the
same premises. Mrs. Streeter had complete confidence in Davidson and was satisfied with the
work he had done for her and relied upon him. At the time she had a substantial equity in the
property. Davidson was entirely familiar with it. She called on him to discuss with him as her
attorney what was to be done about it under the circumstances. With the fiduciary relationship
thus established, the transaction called for the closest scrutiny by the trial court.
[Headnote 9]
Even were this not the case, we are not able to say that the evidence adduced by plaintiff
fell short of the requirement for clear and convincing proof. Her own testimony may indeed,
as pointed out by appellant, have been somewhat weakened by cross-examination, but the
same can be said of the testimony of appellant himself. Respondent's equity in the property
and her desire to protect it are clearly shown. Davidson maintains that when she came to him,
she had lost all hope of maintaining the property and was confronted with the necessary
alternative of abandoning it or conveying it to him, and that he consented to take it over as a
gamble. In one place in his testimony he refers to the transfer as a gift. After he took the
assignment, he later required a deed because he had to make certain improvements.
he took the assignment, he later required a deed because he had to make certain
improvements. He himself testifies that he told Mrs. Streeter, I cannot go on without getting
the absolute conveyance from you to this property, as I might have to have the title of the
property from you. He had never obligated himself to Reno Realty Syndicate to comply with
the terms of Mrs. Streeter's contract. Initially, in any event, he was taking no gamble. When
Mrs. Streeter defaulted in her first contract, the Syndicate had to file a suit to cancel it, and
Davidson drew an answer setting up her equities and alleging the improvements she had
made. At the time of her transaction with Davidson her equities were greater. She had made
additional payments and she undoubtedly had at least a nuisance value that was worth
something. As a lawyer Davidson must have known this.
Appellant suggests that it is not unusual for an attorney to enter into business relations
with his client and that the transaction in question should be characterized as a business
transaction rather than as one dealing with the relationship of attorney and client. This,
however, is without force if, as at one time asserted by Davidson, the transfer was a gift. As a
transfer in consideration of sundry indebtednesses due Mr. Davidson from Mrs. Streeter for
legal services and for moneys advanced, appellant's suggestion is likewise without point. The
evidence submitted by Davidson as to moneys due him from Mrs. Streeter for services or
moneys advanced produced no conviction in the mind of the learned trial judge. He found
that neither of the defendants paid any consideration for the assignments or the deed, that they
were not made for any preexisting indebtedness, that they were given without consideration
and were not given as a gift, but were executed by Mrs. Streeter to Mr. Davidson in trust for
her.
[Headnote 10]
5. We are unable to say that the amended complaint as supplemented by further
amendments was deficient in not alleging diligence on the part of the plaintiff by the
exercise whereof she could have ascertained that Davidson was claiming the property as
his own. His action to quiet title to the end that a merchantable title might be transferred
to a purchaser, his collection by suit of the fire insurance and the application of the
proceeds, less attorney fees, to the purchase contract from the Reno Realty Syndicate, the
continued collection of rentals and the payment of taxes, insurance, contract payments,
etc., were all in accordance with the original agreement pleaded by plaintiff and found as
a fact by the trial court.
in not alleging diligence on the part of the plaintiff by the exercise whereof she could have
ascertained that Davidson was claiming the property as his own. His action to quiet title to the
end that a merchantable title might be transferred to a purchaser, his collection by suit of the
fire insurance and the application of the proceeds, less attorney fees, to the purchase contract
from the Reno Realty Syndicate, the continued collection of rentals and the payment of taxes,
insurance, contract payments, etc., were all in accordance with the original agreement pleaded
by plaintiff and found as a fact by the trial court. As to Davidson's actual sale of the two
properties, Mrs. Streeter asserted her rights as soon as she learned thereof. The assignment is
without merit.
[Headnotes 11, 12]
6. Appellant attacks the decree as inequitable and faulty in many respects, but we do not
find it so. (a) Under the facts as found by the court it properly awarded plaintiff the judgment
for the excess of the receipts over the disbursements resulting from the handling of the
property. (b) Under such facts the court also properly ordered a reconveyance. (c) The
assignment to Mrs. Streeter of the benefits accruing from Davidson's sale of the property
followed as a matter of course. (d) The rights of the third party purchasers without notice
were recognized and protected in the findings, conclusions and judgment. (e) There was no
error in the court's failing to award compensation to Davidson as trustee. He had repudiated
the trust. Nor did he pray for compensation in his answer. (f) The judgment was not at fault in
failing to require an accounting. In support of the contention that there was no concealment of
any kind on the part of Davidson it is stated in his brief that he kept complete and faithful
records of checks, vouchers and business transactions affecting the property, all of which the
evidence in this case plainly discloses. Such checks and vouchers, as well as tabulations of
moneys disbursed and of the various receipts, are matters appearing in the record and no
purpose would be served by a further accounting.
are matters appearing in the record and no purpose would be served by a further accounting.
Appellant also suggests that to permit this judgment to stand, based as it is largely upon
the oral testimony of the plaintiff characterizing her conveyance as one in trust, is to put every
attorney in great danger in the matter of all transactions with his clients, concluded, as such
transactions are, within the four walls of the attorney's office. We see no such danger. Any
attorney should be alert to the implications arising out of a transaction like the one here
considered and under the circumstances outlined. If it were felt that the interests of the client
justified a conveyance to the attorney, for purposes agreed upon between them or for an
adequate consideration recognized as such (assuming the transaction to be a proper one under
the circumstances), the attorney could protect both parties by a simple memorandum in
writing. He could insist that she be advised in the premises by independent counsel.
Appellant attacks several of the findings as being without support in the evidence. We do
not find them so. The asserted lack of evidentiary support is based largely upon Davidson's
testimony to contrary facts, which testimony the trial court rejected. Its findings comprise 22
pages and follow faithfully the court's written decision. There the court reviewed the fiduciary
relationship of the parties and said: * * * it is clear that Mrs. Streeter was given to
understand that Mr. Davidson would handle the property for her as trustee for her benefit.
We have given careful consideration to all the points raised by appellant and to the
numerous authorities cited by him, but find further discussion unnecessary. The judgment and
the order denying motion for new trial are affirmed with costs.
____________
68 Nev. 445, 445 (1951) Bowler v. District Court
MILTON A. BOWLER and MILTON D. BOWLER, Petitioners, v. THE FIRST JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF
CHURCHILL, HONORABLE D. W. PRIEST, DISTRICT JUDGE, and G. M.
CAMPBELL, Respondents.
No. 3663
August 15, 1951. 234 P.2d 593.
Original proceeding in prohibition by Milton A. Bowler and another against the First
Judicial District Court of the State of Nevada, in and for the county of Churchill, Honorable
D. W. Priest, District Judge, and another to prohibit named respondents from proceeding with
receivership proceedings instituted against petitioners by plaintiff in action of claim and
delivery to determine ownership and right to possession of dairy cattle. The Supreme Court,
Badt, C. J., held that since action was at issue on the merits in district court and should be
subject to speedy determination after lengthy litigation without previous trial of issue of
ownership and since jurisdiction to appoint a receiver was not clearly lacking, issuance of
writ of prohibition was not required, particularly since appeal would lie from order appointing
receiver or from order refusing to vacate order of appointment.
Petition denied and proceeding dismissed.
Morley Griswold and George L. Vargas, of Reno, for Petitioners.
John S. Sinai, John W. Coulman and David P. Sinai, all of Reno, for Respondents.
1. Prohibition.
The writ of prohibition issues only in the sound judicial discretion of the court for the furtherance of
justice.
2. Prohibition.
Jurisdiction to issue writ of prohibition is strictly confined to cases where no other remedy exists and
apparent existence of another plain, speedy, and adequate remedy at law is sufficient reason for refusal to
issue the writ.
Under statute, an appeal lies from an order appointing or refusing to appoint a receiver or vacating or
refusing to vacate an order appointing a receiver. N.C.L.1931-1941 Supp., sec. 9385.60.
4. Prohibition.
Where action of claim and delivery to determine ownership and right to possession of dairy cattle was at
issue on the merits in district court and should be subject to speedy determination after lengthy litigation
without a trial of the issue of ownership and jurisdiction to appoint a receiver to take possession of the
cattle pending final determination of issue was not clearly lacking, the furtherance of justice did not require
issuance of writ of prohibition prohibiting district court and judge from proceeding with receivership
proceedings, particularly since appeal would lie from order appointing receiver or from order refusing to
vacate order of appointment. N.C.L.1929, sec. 8749, subd. 1; N.C.L.1931-1941 Supp., sec. 9385.60.
OPINION
On March 28, 1951 Milton A. Bowler and Milton D. Bowler filed in this court their
original petition for a writ of prohibition prohibiting the respondent district court and district
judge from proceeding with certain receivership proceedings initiated against them by Stella
Belanger Leonard Bryson. On April 3, 1951, in chambers, we made an order denying the
petition without prejudice. The order contained a statement of the pertinent facts, and the
status of the main controversy between Mrs. Bryson (formerly Stella B. Leonard Belanger)
and the Bowlers existing at that time. A copy of the order is set forth in the margin.
1
On July
17, 1951 the matter was heard at length upon the original petition and on certain
supplemental pleadings with sundry exhibits attached from which it appears that certain
additional proceedings have since been had in the respondent court.
____________________

1
This is the fourth time, although under different titles, that this controversy has reached this court. See
Bowler v. Vannoy, 67 Nev. 80, 215 P.2d 248, Leonard v. Belanger, 67 Nev. 577, 222 P.2d 193; Belanger v.
Leonard, 68 Nev. 258, 229 P.2d 153.
The Bowlers have now filed their petition for a writ of prohibition directed to the respondent court prohibiting
certain receivership proceedings in still another action. Such action is described as one brought by Stella
Belanger Leonard, now Stella B. Bryson, against the Bowlers, a typical claim and delivery suit, for recovery of
possession from the defendants of the same and identical forty-one milk cows and two bulls, or for their value in
case delivery
1951 the matter was heard at length upon the original petition and on certain supplemental
pleadings with sundry exhibits attached from which it appears that certain additional
proceedings have since been had in the respondent court.
____________________
cannot be had, and for the reasonable value of the use of said livestock for the period during which she has been
deprived of their possession. A copy of such complaint is attached to the petition as an exhibit. Attached also is
copy of an amended notice of motion for the appointment of a receiver to take charge of said cattle pending the
determination of the action. The receiver was sought on the ground that the cattle in the possession of the
defendants would become lost, removed, destroyed, injured or unaccounted for in the absence of such relief, that
the defendants are insolvent, that the plaintiff is the owner and that defendants are not and never have been the
owners, that defendants will otherwise continue to sell the milk from said cows and retain the proceeds, that
plaintiff will otherwise suffer irreparable injury and damage, that defendants have practiced fraud and
misconduct in conspiring to deprive plaintiff of the possession of the livestock and the income and profits
derived from them, that plaintiff has not any plain, speedy and adequate remedy at law. The motion was
supported by the plaintiff's affidavit which recited the earlier proceedings, referred to in the opinions of this
court in the matters above mentioned; that plaintiff has made every effort to obtain a delivery bond, and has
been unable to do so, by reason of the fact, among other things, that she does not have the means to pay the
premium on said bond, and said bonding company refuses to issue said bond; that plaintiff's inability to obtain
said bond is based on the fact that she does not have security for said bond because her real and personal
property are encumbered; that this situation has been brought about through plaintiff's inability to obtain in the
past the cattle referred to in this action and the income and profits therefrom. The petition annexes as a further
exhibit copy of an affidavit of Milton A. Bowler in reply, which also sets out certain of the proceedings
theretofore had and alleges ownership of the livestock. As a further exhibit there is attached a copy of Notice by
Court of Intent to Appoint Receiver, filed by Honorable D. W. Priest, District Judge, January 24, 1951, in
which the learned district judge here tentatively disposes of said matter. The district judge found that there was
danger of insolvency as to both parties and a probable inability of either to respond to a final adverse order
concerning the property, its value and its rents, issues and profits; that it was highly desirable that a receiver be
appointed; that counsel for the parties be asked to recommend prospective appointees and that the court would
appoint a receiver, whether from such nominees or otherwise. A further exhibit is a notice of motion on the part
of the Bowlers, dated February 5, 1951, before any appointment of receiver, and noticed for February 12, 1951,
that they would move the court to dismiss plaintiff's petition for appointment of receiver upon the ground, among
others, that the court had no jurisdiction to appoint
the respondent court. On June 25, 1951, two months and twenty-two days after we filed the
order quoted in the margin, the respondent court filed an Opinion and Ruling on Matters at
Issue and Submitted, in which it was, among other things, ordered that the demurrer to the
amended complaint (to adjudge plaintiff's ownership and right to possession of the livestock)
be overruled and the motion to strike parts of the complaint be
____________________
a receiver, for the reason that plaintiff had and has an adequate remedy at law. On March 13, 1951, as appears
from a further exhibit, the court made and filed an order appointing one G. M. Campbell as receiver to take into
his possession and control and to safely keep until the further order of the court, all of the cattle described in
plaintiff's complaint and the issue thereof, and the substitutions made therein, or such cattle as are still remaining
in the possession of said defendants * * * that said receiver be and he hereby is ordered and instructed to remove
[them] from the premises of Milton A. Bowler and Milton D. Bowler, or either of them, and ordering the
Bowlers to deliver up possession to the receiver, who was ordered to place them on the Stella Leonard ranch
near Hazen, Nevada, and the sheriff of Churchill County was, by the court, instructed to assist the receiver in
taking the cattle from the Bowlers. The order gave certain instructions to the receiver as to the handling of the
livestock, accounting for the proceeds, etc., and ordered that he be paid for his services $100 per month, plus
certain mileage, etc. The order closed with the following paragraph: It appearing to the court that no statutory
bond is required of said receiver, and that the requirement of such a bond at the most would be discretionary
with the court, it is hereby ordered that no bond shall be required of the receiver named herein. This had
apparent reference to a bond conditioned upon the faithful performance of his duties by the receiver. The court
made no reference to any bond to be posted by the plaintiff for the protection of the defendants in case it should
be finally determined by the court that the plaintiff was not entitled to the appointment of a receiver. Unless it
may be said that the learned district judge, by his order appointing the receiver, impliedly denied the defendant's
motion to dismiss the petition for appointment of receiver, it does not appear that such motion was directly
considered by the court. Neither in the order appointing the receiver nor in the court's notice of its intention to
appoint a receiver are any questions of law disposed of or even considered. The Bowlers have submitted, with
their petition for prohibition, a brief insisting that it clearly shows that the plaintiff's pending action in the district
court is one for claim and delivery and that under statutory provisions an undertaking must be filed before she
can obtain delivery of the livestock; that the equitable jurisdiction invoked in the appointment of the receiver
was not available by reason of this statutory remedy (Ex Rel. Nenzel v. District Court, 49 Nev. 145, 241 P. 317,
43 A.L.R. 1331; denied, that the defendants have twenty days to answer the amended
complaint and plaintiff have twenty days for a responsive pleading thereto.
denied, that the defendants have twenty days to answer the amended complaint and plaintiff
have twenty days for a responsive pleading thereto. The court also denied the motion of the
defendants to dismiss the petition for appointment of receiver filed February 6, 1951 (which
appointment was ordered January 25, 1951), upon the ground that the same was simply a
rehearing, without leave of court, of matters theretofore determined, in violation of
District Court Rule XI.2 The court at the same time denied the motion of defendants to
vacate the court's order of March 13, 1951, appointing the receiver and ordering the
defendants to deliver possession of the cattle to him.
____________________
Shelton v. District Court, 64 Nev. 487, 185 P.2d 320); that the order appointing the receiver contains injunctive
features for which a bond is required by statute. Sec. 8696 N.C.L. 1929. Authorities from other states and
citations of certain texts are also contained in the brief. See Havemeyer v. Superior Court, 84 Cal. 327, 24 P.
121, 136, 10 L.R.A. 627, in which prohibition was granted to arrest further proceedings where it was held that
the superior court was without jurisdiction to appoint a receiver under the circumstances of that case.
We are not by our present order determining the question of the jurisdiction of the district court to make its
order appointing a receiver under the circumstances.
The questions of law presented by the petition for an alternative writ of prohibition are entitled to serious
consideration. It is felt however that such consideration should first be had by the district court, whether as
raised by said motion to dismiss the petition for appointment of receiver or by other appropriate motions. It
would appear that such remedy is plain, speedy and adequate. We also have in mind the situation whereunder
there has been pending for some months the general demurrer of the defendants to the complaint of the plaintiff,
a complaint sounding in claim and delivery; that it may be that the action itself can be speedily brought to trial
and determined; that in all the litigation between these parties there never has been a determination, as between
them of the ownership and right to possession of these dairy cattle. It is indicated that the learned district judge,
who is presiding in this matter, has been kept busily engaged in sitting in judicial districts other than his own for
the assistance of other district judges and that it has been difficult to fix dates satisfactory to court and counsel
for presentation of issues of law and fact involved in these proceedings.
We have no doubt, however, that some arrangement can be made by the court for an early setting (either with
the active cooperation of counsel or by order of court without such cooperation) of the present motion to dismiss
or of other motions that may be appropriately made, and that prompt and speedy determination may be made of
the issues raised, including the issues of law hereinabove mentioned.
It is hereby ordered that the petition for an alternative writ of prohibition be, and the same hereby is, denied,
but that said petition be not dismissed, but remain pending and without prejudice to its being called up for
hearing before this court, or before the justices thereof in chambers, by either party on ten days' notice to the
other, and subject to the further orders of this court.
Dated April 3, 1951.
ground that the same was simply a rehearing, without leave of court, of matters theretofore
determined, in violation of District Court Rule XI.
2
The court at the same time denied the
motion of defendants to vacate the court's order of March 13, 1951, appointing the receiver
and ordering the defendants to deliver possession of the cattle to him. The grounds for that
motion were the same as those alleged in support of the present petition for prohibition,
namely, that the plaintiff had an adequate remedy at law in claim and delivery and that the
court had no jurisdiction, without requiring bond, to appoint a receiver with a mandatory
injunction that the defendants deliver up possession to him. All this appears from the recitals
contained in respondent's order of June 25, 1951. We list a few of the important dates bearing
on the present situation:
Sept. 14, 1948, judgment, Stella B. Leonard Belanger v. David J. Belanger, adjudicating
the former's ownership of the forty-one head of milk cows and two bulls involved in all of the
proceedings mentioned.
Oct. 21, 1949, judgment, Stella B. Leonard Belanger v. Childers and Vrenon, asserted
successors in interest of David J. Belanger, again adjudicating her ownership of the same
cattle.
Oct. 21, 1949, sheriff's levy on said cattle, then possessed and claimed by the Bowlers,
under writ of execution in Belanger v. Childers and Vrenon.
Feb. 10, 1950, our writ of mandamus (Bowler v. Vannoy, sheriff, 67 Nev. 80, 215 P.2d
248), ordering the sheriff to return the cattle to the Bowlers.
April 24, 1950, leave granted by district court in third party claim proceedings in Leonard
v. Childers and Vrenon permitting Mrs. Leonard to sue the Bowlers for possession of the
livestock.
Dec. 12, 1950, complaint filed, Leonard v. Bowler.
____________________

2
No motion once heard and disposed of shall be renewed in the same cause, nor shall the same matters
therein embraced be reheard, unless by leave of the court granted upon motion therefor, after notice of such
motion to the adverse parties.
Dec. 18, 1950, Mrs. Leonard's notice for motion for appointment of receiver.
Jan. 6, 1951, her amended notice of motion for appointment of receiver.
Jan. 25, 1951, Notice by Court of Intent to Appoint a Receiver.
March 13, 1951, order appointing receiver.
April 3, 1951, our order denying without prejudice alternative writ of prohibition.
April 21, 1951, amended complaint filed, Leonard v. Bowler.
April 30, 1951, demurrer to amended complaint and motion to strike filed.
May ?, 1951, demurrer and motion submitted without further argument.
June 25, 1951, order overruling demurrer, etc.
Defendants (petitioners herein) filed their answer to the amended complaint on July 17,
1951, the last of the twenty days allowed by the district court for the purpose, and being the
same day that the petition for prohibition and supplemental matters were orally argued to this
court by both parties. At that time further briefs were ordered filed, the last of which was filed
July 31, 1951, on which date the matter stood submitted to this court. If we may assume that
plaintiff filed her reply to defendants' answer within the period allowed by the trial court's
order, such reply must have been filed on or before August 6, 1951, so that the case is now at
issue and ready to be tried on the merits. Such action is characterized by both parties and by
the district court as one in claim and delivery whose main issues are the ownership and right
to immediate possession of the livestock asserted by both parties.
Petitioners insist, first, that Mrs. Bryson's clear, plain, speedy and adequate remedy in the
court below, as evidenced by her own pleadings, was an action at law in claim and delivery,
in the course of which, if she desired immediate possession, she could obtain it under
statutory proceedings and upon filing the statutory bond; that with such remedy available,
she had no recourse to the equitable remedy of the appointment of a receiver.
proceedings and upon filing the statutory bond; that with such remedy available, she had no
recourse to the equitable remedy of the appointment of a receiver. Secondly, petitioners insist
that respondents' order appointing receiver contained express injunctive provisions
3
and that
the court was without jurisdiction to issue such injunctive order without requiring a written
undertaking to pay to the defendants such damages as they might sustain by reason thereof if
the court should finally decide that the plaintiff was not entitled thereto. Sec. 8696 N.C.L.
1929; Shelton v. District Court, 64 Nev. 487, 185 P.2d 320; Havemeyer v. Superior Court, 84
Cal. 327, 24 P. 121.
Counsel for Mrs. Bryson (who appear herein as attorneys for respondents) contend: (1)
that under the circumstances her remedy in claim and delivery was inadequate, and that her
only protection against the threatened loss of the cattle was through the appointment of a
receiver who might hold the same as an officer of the court pending the determination of the
controversy; (2) that our statute governing the appointment of receivers does not require the
posting of bond;
4
(3) that the only injunctive feature contained in the order appointing
receiver is one which, if not expressed, is implied in every order appointing a receiver and
implied in numerous other orders entered from time to time by district courts; (4) that the
respondent court had jurisdiction of the parties and the subject matter, had jurisdiction to
appoint a receiver and that the matter of exacting a bond was discretionary; and {5) that
the present petitioners have a remedy by appeal from the order appointing the receiver or
the order denying the motion to vacate the order appointing the receiver, and that in any
event the matter of the issuance of the writ of prohibition by this court is within its sound
discretion and should be exercised only in the furtherance of justice and that under the
circumstances of this case the writ should be denied.
____________________

3
The order appointing receiver directed the Bowlers to deliver up said cattle to said receiver. The learned
district judge, in his opinion denying the motion to vacate the appointment of the receiver, said: It is the opinion
of the court that the deliver up' order is nothing more or less than to order the Bowlers * * * to refrain from
interference with the receiver in taking possession of said cattle.

4
Section 8749 N.C.L.1929, A receiver may be appointed by the court in which an action is pending, or by
the judge thereof: 1. In an action * * * between * * * others * * * interested in any property * * * on application
of
* * * any party whose right to * * * the property * * * is probable. The chapter on receivers contains no
requirement for bond.
exacting a bond was discretionary; and (5) that the present petitioners have a remedy by
appeal from the order appointing the receiver or the order denying the motion to vacate the
order appointing the receiver, and that in any event the matter of the issuance of the writ of
prohibition by this court is within its sound discretion and should be exercised only in the
furtherance of justice and that under the circumstances of this case the writ should be denied.
As we are of the opinion that the writ should be denied upon the ground last stated, it is
unnecessary to discuss the other issues raised dealing with respondents' asserted lack of
jurisdiction to appoint the receiver. In our order of April 3, 1951, denying without prejudice
the petition for an alternative writ of prohibition, we specifically stated that we were not
determining the question as to whether or not the district court had jurisdiction to appoint the
receiver and to order the Bowlers to deliver up the cattle to the receiver. It is evident from the
opinion of the learned district judge that the equities of the case strongly appealed to him and
that the history of the case, showing a reduction of the herd of milk cattle from an original
forty-one cows and two bulls to the present sixteen head of cows, with the assertion by the
defendants, though insolvent, that they had an absolute right to sell the same, comprised a
complete showing to him that there was danger that the property would be lost, removed or
materially injured. In answer to the contention that there could be no lawful appointment of a
receiver unless it is shown that the interest of the plaintiff in the cattle is probable (sec.
8749, sub. 1, N.C.L.), the court pointed to the awarding of these same cattle to the plaintiff in
two previous judgments against the defendants' predecessors.
[Headnote 1]
In Ex Rel. Hatch v. District Court, 50 Nev. 282, 257 P. 831, 833, this court said: The writ
of prohibition issues only in the sound judicial discretion of the court for the furtherance of
justice.
furtherance of justice. In the circumstances of this case we feel that the ends of justice do not
demand the issuance of the writ sought.
[Headnote 2]
In Walcott v. Wells, 21 Nev. 47, 24 P. 367, 368, 9 L.R.A. 59, this court said:
It is a principle which lies at the very foundation of the law of prohibition that the
jurisdiction is strictly confined to cases where no other remedy exists; and it has always been
held to be sufficient reason to refuse to issue the writ where it clearly appears that the
petitioner therefor has another plain, speedy and adequate remedy at law.
Other cases are to the same effect. See O'Brien v. Commissioners, 41 Nev. 90, 167 P.
1007; Ex Rel. Hatch v. District Court, 50 Nev. 282, 257 P. 831; Silver Peak Mines v. Second
Jud. Dist. Court, 33 Nev. 97, 110 P. 503.
[Headnotes 3, 4]
Having in mind the fact that under sec. 9385.60 N.C.L. 1931-1941 Supp., an appeal lies
from an order appointing or refusing to appoint a receiver, or vacating or refusing to vacate
an order appointing a receiver, and having in mind the fact that the case is at issue on the
merits in respondent court and should be subject to speedy determination; and considering the
long history of the litigation involving these parties, in the course of which no trial of the
issue of ownership has as yet been had, and the strong appeal made to the equity powers of
the respondent judge as indicated by his opinion; and in view of the fact that it cannot be said
that the respondent court and judge were clearly without jurisdiction to appoint the receiver
under the circumstances, despite the serious attack upon such jurisdiction, we do not feel, in
the exercise of our sound discretion, that the furtherance of justice demands the issuance of
the writ.
To issue the writ as prayed for by petitioners, upon the grounds asserted by them, would in
effect compel the respondents to vacate the order appointing the receiver and to order the
receiver to return the livestock to the possession of the Bowlers, thus tending only to
increase the turmoil and confusion that have maintained for several years in the matter.
receiver and to order the receiver to return the livestock to the possession of the Bowlers, thus
tending only to increase the turmoil and confusion that have maintained for several years in
the matter. And this, in face of the probability that in a short time the issues will have been
determined whereunder the ownership of the livestock will be adjudicated. The case is far
from being one in which we should regard it as a proper exercise of discretion to interfere
with the orderly progress of the suit below by the issue of this writ. Ex parte New York and
Porto Rico Steamship Co., 155 U.S. 523, 15 S.Ct. 183, 39 L.Ed. 246.
The petition is denied and the proceedings dismissed. No costs are awarded.
____________
68 Nev. 455, 455 (1951) State v. Bd. of Medical Examiners
THE STATE OF NEVADA, Upon the Relation of LEVON G. KASSABIAN, Relator, v.
BOARD OF MEDICAL EXAMINERS OF THE STATE OF NEVADA, and G. H.
ROSS, Its Secretary, Respondents.
No. 3667
September 7, 1951. 235 P.2d 327.
The State, on the relation of Levon G. Kassabian, brought an original proceeding in
prohibition to restrain the State Board of Medical Examiners and its secretary from revoking
relator's license to practice medicine and surgery. The Supreme Court, Merrill, J., held that
the statutory provision that the board's revocation or suspension of a certificate to practice
medicine shall become effective on the date of the secretary's certification of the board's
decision and order to the recorder of the county in which the certificate is recorded is not
unconstitutional as authorizing a taking of property and liberty without due process of law
because it eliminates all right of supersedeas or stay of execution.
Alternative writ dismissed, and the board's order revoking the license affirmed.
Ralli, Rudiak & Horsey, of Las Vegas, and Joseph P. Haller, of Reno, for Relator.
John R. Ross, of Carson City, and Leslie E. Riggins, of Reno, for Respondents.
1. Prohibition.
Prohibition does not lie to restrain state board of medical examiners from revoking license to practice
medicine after entry of board's order revoking license and its secretary's certification thereof to recorder of
county wherein licensee's certificate is recorded, as board has fully discharged its functions and no judicial
acts remain unperformed, but only ministerial act of enforcement remains. N.C.L.1943-1949 Supp., sec.
4107.16.
2. Certiorari.
Where record before supreme court in original prohibition proceeding presents case for consideration as
under writ of certiorari, court will give relief warranted by record, though prohibition does not lie.
3. Prohibition.
Certiorari, not prohibition, is appropriate remedy to review order of state board of medical examiners
revoking license to practice medicine, as board's actions are judicial or at least quasi-judicial and statutory
remedy of review is inadequate in view of provision against supersedeas or stay of execution.
N.C.L.1943-1949 Supp., sec. 4107.16.
4. Physicians and Surgeons.
An original proceeding in prohibition to restrain state board of medical examiners from revoking relator's
license to practice medicine after entry of board's order revoking license and certification thereof by its
secretary to recorder of county wherein relator's certificate is recorded will be viewed as proceeding in
certiorari, and supreme court will consider, not whether board is about to proceed, but whether it has
already proceeded, in excess of its jurisdiction, where complete record of board's actions and evidence on
which it acted is before court. N.C.L.1943-1949 Supp., sec. 4107.16.
A state has power to make reasonable provisions by statute for determining qualifications of persons
engaging in practice of medicine and punishing those attempting to engage therein in defiance of such
provisions.
6. Constitutional Law; Physicians and Surgeons.
A physician's right to practice his profession is both liberty and property and guaranteed by
constitution against unwarrantable interference, but must yield to government's
paramount right to protect public health by any rational means.
and property and guaranteed by constitution against unwarrantable interference, but must yield to
government's paramount right to protect public health by any rational means.
The tests for moral character sufficient to enable physician to continue in practice of medicine are for
legislature to determine within reasonable limits in exercise of police power.
8. Constitutional Law; Physicians and Surgeons.
The provision of medical practice act that revocation of certificate to practice medicine by state board of
medical examiners shall become effective on date of its secretary's certification of board's decision and
order to recorder of county wherein certificate is recorded is not unconstitutional as authorizing taking of
property and liberty without due process of law because it eliminates all right of supersedeas or stay of
execution, as act affords every reasonable safeguard to protect licensee's rights and legislators may be
assumed to have felt that public health, safety and welfare might be better protected if stay were forbidden.
N.C.L.1943-1949 Supp., sec. 4107.16.
In proceeding before state board of medical examiners to revoke license to practice medicine, charges of
licensee's unprofessional conduct in performing specific act of criminal abortion and of his conviction of
felony are not identical, though felony consists of such abortion, as documentary proof of conviction is
sufficient to establish charge of felony, but insufficient proof of abortion. N.C.L.1943-1949 Supp., secs.
4107.15, 4107.16.
A physician, charged in complaint before state board of medical examiners with unprofessional conduct
in procuring criminal abortion and served with notice of hearing on such charge, was not tried on different
charge of conviction of felony of criminal abortion, thereby denying him full and fair trial, though board's
counsel, in opening statement and presentation of case in chief, proceeded on theory that charge was
conviction of felony and presented documentary proof of such conviction, where accused established that
such conviction was pending on appeal and testified in support of his answer to complaint and transcript of
testimony taken in criminal trial was received in evidence on rebuttal. N.C.L.1943-1949 Supp., secs.
4107.15, 4107.16.
The state board of medical examiners' apparent departure from charge in complaint of physician's
unprofessional conduct in procuring criminal abortion by commencing hearing on theory that charge was
conviction of felony of criminal abortion did not effect surprise preventing accused from properly meeting
charges, thereby denying him full and fair trial and due process of law, where his counsel
consistently objected to such theory throughout presentation of case against accused
and when board's counsel rested case and accused presented his own case on theory
that charges were those set forth in complaint, thus showing that he was not misled
or prejudiced by such departure. N.C.L.1943-1949 Supp., secs.
and due process of law, where his counsel consistently objected to such theory throughout presentation of
case against accused and when board's counsel rested case and accused presented his own case on theory
that charges were those set forth in complaint, thus showing that he was not misled or prejudiced by such
departure. N.C.L.1943-1949 Supp., secs. 4107.15, 4107.16.
A decision of state board of medical examiners, revoking physician's license to practice medicine, was
not uncertain as to charge on which decision was based because of finding and adjudication that accused
was guilty of unprofessional conduct, as defined by specified section of statute, in view of board's specific
references in balance of decision and order revoking license to charges contained in complaint.
N.C.L.1943-1949 Supp., secs. 4107.15, 4107.16.
Whether transcript of testimony taken at physician's criminal trial for abortion was improperly received in
evidence before state board of medical examiners in proceeding to revoke his license cannot properly be
considered by supreme court on certiorari to review board's decision and order revoking license, as error, if
any, in such respect, did not affect board's jurisdiction. N.C.L.1943-1949 Supp., secs. 4107.15, 4107.16.
14. Certiorari.
Whether a board's action was founded on strictly legal or sufficient evidence is not within supreme court's
province to inquire on certiorari to review such action.
OPINION
This is an original proceeding in prohibition challenging jurisdiction of the Board of
Medical Examiners of the State of Nevada to proceed to revoke relator's license to practice
medicine and surgery.
Relator is a physician and surgeon licensed to practice and practicing in the State of
Nevada since 1922. Respondents constitute a state board appointed by the governor pursuant
to statute, the members being reputable practicing physicians, who have in a regular manner
obtained the degree of doctor of medicine from some legally chartered medical institution in
the United States or Canada and who shall have been actually engaged in the practice of
medicine in the State of Nevada."
the practice of medicine in the State of Nevada. (Sec. 4107.02, N.C.L.1929, Supp.
1943-1949.)
On November 16, 1950 relator after jury trial was convicted of the felony of criminal
abortion and was sentenced to serve from one to five years in the state penitentiary as a
consequence. An appeal was taken from said judgment which appeal is now pending before
this court.
On January 11, 1951 a complaint was filed before respondent board charging relator with
unprofessional conduct as defined in the medical practice act in that he * * * did procure
and/or abet in procuring a criminal abortion, in the manner following: * * *. The complaint
then sets forth the facts of the alleged criminal act of which relator had been found guilty in
the criminal action. Written notice of the charges and of the hearing thereon was duly served
on relator. An answer was filed by him denying the acts of abortion, admitting that he had
treated said patient but alleging that she was not then pregnant and had been treated for
venereal disease, cervicitis, Bartholinitis and retroflexion of the uterus.
Section 15 of the medical practice act, being sec. 4107.15, N.C.L.1929, Supp. 1943-1949,
specifically defines the term unprofessional conduct. Included within that definition are the
following:
Procuring, or aiding or abetting in procuring, criminal abortion;
Conviction of any offense involving moral turpitude, or the conviction of a felony. The
record of the conviction shall be conclusive evidence of unprofessional conduct.
Section 16 of the act, being sec. 4107.16, N.C.L.1929, Supp. 1943-1949, provides
procedure for hearings before the Board of Medical Examiners upon charges of
unprofessional conduct. The section provides for filing of a sworn complaint, the serving of
written notice of the charges upon the accused at least twenty days before the date fixed for
hearing, and further provides: "* * * The person charged shall be given a full and fair trial
by the board, with the right to be heard and appear in person and by counsel and to
present witnesses.
* * * The person charged shall be given a full and fair trial by the board, with the right to
be heard and appear in person and by counsel and to present witnesses. The secretary or
president of the board shall have power to issue subpenas for the attendance of witnesses. The
secretary or president shall also have the power to administer the oath to all witnesses at such
hearing. If, after hearing the said charges it appears to the satisfaction of the board that the
person is guilty as charged, the board shall revoke the certificate of such person either
permanently or temporarily, and by its order suspend the said person from the practice of
medicine within this state either permanently or temporarily in the discretion of said board.
The board may likewise after finding the person guilty as charged place him on probation.
The secretary of the board in all cases of revocation or suspension or probation shall enter in
his records the fact of such revocation or suspension or probation and shall within five days
notify the county recorder of the county in which the person's certificate has been recorded. In
all cases where a certificate is revoked or suspended or a person placed on probation a
transcript of the proceedings before the board, and the findings and order of said board, shall
be filed within thirty days with the clerk of the district court of the county in which the
certificate to practice has been recorded; and any person whose certificate has been revoked
or suspended or who has been placed on probation may, within sixty days after filing of said
certified copies of said transcript, findings and order, petition said district court to review the
said proceedings, findings and order of said board and to reverse or modify the same, and
upon such review the burden shall be upon the petitioner to show wherein such order of said
board is erroneous or unlawful. When sixty days shall have elapsed after the filing of said
order and findings, if no petition for review has been filed, the judge of the district court shall
make its order affirming the decision of the board.
decision of the board. Until the same is modified or reversed, as herein provided, the
revocation or suspension or probation of such certificate and the right to practice thereunder
shall be and become effective on the date the said secretary certifies such fact of the decision
and order of the board to the county recorder of the county in which the person's certificate
has been recorded.
On April 2, 1951 the hearing commenced before the board. On April 4, 1951 the board
handed down its decision and order as follows:
The Board has carefully considered all of the proof presented in this particular hearing. It
is the unanimous decision of the Board that the evidence produced is sufficient to sustain the
charges made in the Complaint. It is therefore the decision and judgment of the Board of
Medical Examiners of the State of Nevada that Levon G. Kassabian be, and he is hereby,
found and adjudged to be guilty of the unprofessional conduct as defined by Section 15 of
Chapter 169 of the 1949 Statutes of Nevada, being Section 15 of the Medical Practice Act.
It is further order of the Board that, by reason of the said Levon G. Kassabian being found
guilty of the charges of unprofessional conduct as made against him in the Complaint on file
herein, the medical license heretofore granted to Levon G. Kassabian by the Board of Medical
Examiners of the State of Nevada be, and it is hereby, revoked.
Relator thereupon applied to this court for writ of prohibition.
On April 16, 1951 an alternative writ was issued prohibiting respondents from certifying
the board's decision and order to the recorder of Clark County and from enforcement thereof
until further order of this court. It now appears that the decision and order of the board was
certified to the county recorder prior to service of the alternative writ.
[Headnote 1]
The first question for our consideration is as to the propriety of prohibition upon these
facts. It is apparent that that writ cannot lie. The respondent board has fully discharged its
functions in the matter and there are no judicial acts remaining unperformed which this court
by prohibition could restrain. All that remains is the ministerial act of enforcement. State ex
rel. Scrugham v. Sixth Judicial District Court, 43 Nev. 320, 184 P. 1023.
[Headnote 2]
Under these circumstances the courts of California have adopted a view with which we are
in accord. Where the record before the court presents a case for consideration as under a writ
of certiorari, there is no reason why the court should not give such relief as the record
warrants notwithstanding the petitioner, in seeking prohibition, has sought the wrong relief.
Van Hoosear v. Railroad Commission, 189 Cal. 228, 207 P. 903; Traffic Truck Sales Co. v.
Justice's Court, 192 Cal. 377, 220 P. 306; Finn v. Butler, 195 Cal. 759, 235 P. 992; A. G. Col
Co. v. Superior Court, 196 Cal. 604, 238 P. 926.
[Headnotes 3, 4]
We are satisfied that procedurally certiorari would have been the appropriate remedy. The
actions of the board were judicial or at least quasi-judicial in character. The statutory remedy
of review, considering the statute's provision against supersedeas or stay of execution, is
inadequate. Van Heukelom v. Board of Chiropractic Examiners, 67 Nev. 649, 224 P.2d 313.
We have before us a complete record of the board's actions and of the evidence upon which it
proceeded to act. We shall, accordingly, view this proceeding as one in certiorari and shall
upon that basis proceed to review the actions of the board. Instead of confining ourselves to a
consideration of whether the board is about to proceed in excess of its jurisdiction, we shall
consider whether it has already so proceeded.
Relator first attacks as unconstitutional the final provision of section 16 establishing the
effective date of the order of revocation of license. He contends that this provision eliminates
all right of supersedeas or stay of execution and that without such right the revocation of
license is a taking of property and liberty without due process of law. In support of this
contention he cites Porter v. Investors Syndicate, 286 U.S. 461, 52 S.Ct. 617, 76 L.Ed. 1226;
affirmed 287 U.S. 346, 53 S.Ct. 132, 77 L.Ed. 354; Pacific Telephone and Telegraph Co. v.
Kuykendall, 265 U.S. 196, 44 S.Ct. 553, 68 L.Ed. 975; Oklahoma Natural Gas Co. v. Russell,
261 U.S. 290, 43 S.Ct. 353, 67 L.Ed. 659; Scripps-Howard Radio, Inc. v. Federal
Communications Commission, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229; Montana Power Co.
v. Public Service Commission, 12 F.Supp. 946.
These decisions dealt respectively with administrative action looking towards protection of
the public from fraud and unsafe investments (Blue Sky Laws); Protection of the public from
imposition of unfair utility rates; protection of the public interest in adequate radio coverage.
In each instance the party asserting lack of due process showed clearly that in the absence of
supersedeas, irreparable loss of property would result pending appellate action even should
such action ultimately prove favorable. In each instance the opposing public interest at most
was a monetary one.
Such is not the case before us. We are not here concerned with matters of pecuniary or
aesthetic public concern but with matters of public health and safety: matters of police power.
[Headnote 5]
The power of a state to make reasonable provisions for determining the qualifications of
those engaging in the practice of medicine, and punishing those who attempt to engage
therein in defiance of such statutory provisions, is not open to question. Reetz v. Michigan,
188 U.S. 505, 23 S.Ct. 390, 391, 47 L.Ed. 563, 565.
[Headnotes 6, 7]
A comprehensive general statement of the propriety of such regulation is contained in
Lawrence v. Board of Registration in Medicine, 239 Mass. 424, 132 N.E. 174, 176, where it
is stated:
The right to follow a legitimate calling for any lawful purpose is sacred and is protected
both by the Constitution of the United States and that of this commonwealth. The right of a
physician to toil in his profession as well as that of all other citizens to labor in their chosen
work is both liberty and property, partaking of the nature of each, and is guaranteed by
constitutional mandate from unwarrantable interference. * * * This right with all its sanctity
and safeguards is not absolute. It must yield to the paramount right of government to protect
the public health by any rational means. No argument is required to demonstrate that
legislation reasonably designed to promote the general health of members of society is within
the welfare clause of our Constitution, * * *.
Laws requiring the examination, registration and certification of physicians and
prohibiting all others, with exceptions not here material, from practicing medicine have been
upheld as not violative of any constitutional provision. * * * Their validity rests upon the
proposition that those who undertake to cure the ills, to treat the ailments, to prevent the
diseases, and to relieve the suffering of the race may be required to show themselves
possessed of technical skill to those ends. Soundness of moral fiber to insure the proper use
of medical learning is as essential to the public health as medical learning itself. Mere
intellectual power and scientific achievement without uprightness of character may be more
harmful than ignorance. Highly trained intelligence combined with disregard of the
fundamental virtues is a menace. A physician, however skillful, who is guilty of deceit,
malpractice or gross misconduct in the practice of his profession even though not amounting
to an offence against the criminal laws, well may be thought to be pernicious in relation to
the health of the community.
be thought to be pernicious in relation to the health of the community. It is for the Legislature
to determine within reasonable limits in the exercise of the police power what the tests shall
be for moral character sufficient to enable one to continue in the practice of medicine. The
statute in this particular is not open to objection. The circumstance that the petitioner already
had been registered and given a certificate to practice medicine gave him no immunity against
future legislation of the nature embodied in said chapter 218. He had no vested right to prey
upon society by the exercise of deceit, malpractice or gross misconduct in the practice of his
profession. His license to practice constituted no contract of that nature. * * *
The statute affords every reasonable safeguard to protect the rights of the petitioner by
requiring a hearing at which he may be present with witnesses and counsel and providing also
for hearing in court and revision and reversal of the finding of the board, if justice demands
such action. * * *
To the same effect is Meffert v. State Board of Medical Registration, 66 Kan. 710, 72 P.
247, 1 L.R.A., N.S., 811 (Affirmed 195 U.S. 625, 25 S.Ct. 790, 49 L.Ed. 350).
[Headnote 8]
Relator contends, however, that even in cases such as this, the rule requiring supersedeas
maintains. With this view we cannot concur. In Flynn v. Board of Registration in Optometry,
320 Mass. 29, 33, 67 N.E.2d 846, 849, 166 A.L.R. 571, it is stated:
We recognize that there may be situations where the enforcement of an administrative
order may be challenged as denying due process by reason of the fact that no stay is permitted
pending a review by the court. See Pacific Telephone & Telegraph Co. v. Kuykendall, 265
U.S. 196, 204-205, 44 S.Ct. 553, 68 L. Ed. 975; Porter v. Investors' Syndicate, 286 U. S. 461,
469, 52 S.Ct. 617, 76 L. Ed. 1226; Scripps-Howard Radio, Inc. v. Federal Communications
Commission, 316 U. S. 4, 9-11, 62 S. Ct. 875, 86 L. Ed. 1229; La Verne Co-operative Citrus
Association v. United States, 9 Cir.,
Association v. United States, 9 Cir., 143 F. 2d 415, 418-419. But we think that this principle
is not applicable to a situation such as that here. We cannot say that it is a deprivation of
fundamental rights if the right to a stay is withheld during the interval of time between a
decision of the board and the entry of a decree of the court in the event a review is sought. We
reach this conclusion the more readily because of the many safeguards in the statute ensuring
an adequate hearing in the first instance before the board. The Legislature may have thought
that the professions and callings to which this statute was applicable were such that the public
health, safety, and welfare might be protected better if a stay were forbidden.
As authority contra the Flynn case, relator cites Moormeister v. Golding, 84 Utah 324, 27
P.2d 447 (a case of revocation of the license of a physician and surgeon), and Francisco v.
Dental Examiners, Tex. Civ.App., 149 S.W.2d 619. The pertinent language in the
Moormeister case is dicta and is unsupported by cited authority. In the Francisco case the
only authorities cited are the federal cases to which we have already referred and which we
have distinguished. Further, it is clear in the Francisco case that the court was importantly
concerned with the fact that the act there provided for no notice or hearing. In the case at bar,
as in the Lawrence and Flynn cases, it may be said that the act affords every reasonable
safeguard to protect the rights of the relator. Here, too, we may assume that the legislature felt
that public health, safety and welfare might be better protected if a stay were forbidden.
We hold that the lack of stay is not an unconstitutional deprivation of liberty or property
without due process of law.
[Headnote 9]
Relator next contends that he was denied a full and fair trial in that while the complaint
charged him with unprofessional conduct in performing a specific act of criminal abortion,
the trial proceeded on the theory that petitioner's unprofessional conduct consisted of
conviction of a felony.
petitioner's unprofessional conduct consisted of conviction of a felony.
While that felony consisted of criminal abortion, itself a specified act of unprofessional
conduct, this is not sufficient to constitute the two charges identical. The character of proof
required to support such charges is not the same. Documentary proof of conviction is in itself
sufficient to establish a charge of felony. It is not sufficient to constitute proof of the act of
abortion, for this would be tantamount to allowing the board to delegate to a lay jury the
vitally important quasi-judicial duties imposed upon it by the act. The propriety of this
distinction is rendered the more clear in this case by the fact that the criminal conviction was
(and still is) pending on appeal and could not therefore be regarded by the board as final.
[Headnote 10]
This question, then, is a proper one and its determination essential: Was relator tried upon
a charge other than the one contained in the complaint and upon which notice of hearing was
based? In our view, the record answers this question in the negative.
It is true that counsel for the board in his opening statement and in presentation of his case
in chief proceeded upon the theory that the charge was conviction of a felony. Documentary
proof of the conviction was presented and counsel thereupon rested his case. Relator, in
defense, established that the conviction was pending on appeal and testified in his own behalf
in support of his answer to the complaint. In rebuttal, counsel for the board offered in
evidence the transcript of testimony taken in the criminal trial, which was received in
evidence by the board over relator's objections. Upon submission of the matter to the board
there was, therefore (subject to relator's contentions of error and irregularity), evidence in
support of the charge of abortion.
Regardless of the theory upon which the board may, erroneously, have commenced its
hearing, its ultimate decision and order (which we have already quoted in full) was based
upon "the charges made in the complaint."
full) was based upon the charges made in the complaint. This, we feel, disposes of the
matter.
[Headnote 11]
Relator asserts, however, that the board's apparent departure from the charges set forth in
the complaint effected a surprise upon him to the end that he was not able to meet the charges
properly and consequently was denied a full and fair trial and due process of law.
The record of the proceedings before the board, however, clearly shows that relator was
not misled or prejudiced by such apparent departure. Throughout the presentation of the case
against him, his counsel consistently objected to the theory upon which the board apparently
was proceeding. These objections were renewed when that case was rested by counsel for the
board. Relator, in presentation of his own case, proceeded upon the theory that the charges
against him were not those announced by counsel for the board, but those set forth in the
complaint. The apparent departure of the board does not, then, appear to have led him to
depart from his original theory or plan of defense. Accordingly we find no merit in this
contention.
[Headnote 12]
Relator asserts that the board's decision was uncertain in that it found and adjudged him
guilty of unprofessional conduct as defined by Section 15 of Chapter 169 of the 1949
Statutes of Nevada, being Section 15 of the Medical Practice Act; that it cannot be
ascertained from this language upon which charge the decision was based. We feel that in the
balance of the board's decision and order, its specific references to the charges contained in
the complaint remove any ambiguity from the quoted portion of the decision.
[Headnotes 13, 14]
Relator contends that the transcript of testimony taken at the criminal trial was, upon
several grounds, improperly received in evidence. This question, however, cannot properly be
considered by us on certiorari.
If error was committed in this respect, it is not such as would affect the jurisdiction of the
board. Whether its action was founded upon strictly legal or sufficient evidence, is not
within the province of this court to inquire upon certiorari. State ex rel. Fall v. County
Commissioners of Humboldt County, 6 Nev. 100, 103; Hetzel v. County Commissioners of
Eureka County, 8 Nev. 359, 362.
The alternative writ of prohibition is dismissed and the action of respondent board
affirmed with costs.
____________
68 Nev. 469, 469 (1951) Campbell v. Baskin
THOMAS A. CAMPBELL, Appellant, v. ROBERT T.
BASKIN and ROSE BASKIN, Respondents.
No. 3665
September 18, 1951. 235 P.2d 729.
Thomas A. Campbell brought action against Robert T. Baskin and Rose Baskin. The
Eighth Judicial District Court of Clark County, Frank McNamee, Judge, department No. 1,
entered a judgment adverse to the plaintiff, and the plaintiff appealed, and the respondents
moved to strike affidavit attached to opening brief of the plaintiff. The Supreme Court, per
curiam held that the attaching of documents to briefs is not a proper method of supplying any
deficiencies in the record.
Motion granted and affidavit stricken.
Morse & Graves, of Las Vegas, and Forrest A. Betts, of Los Angeles, Calif., for Appellant.
Cornwall and Compton, of Las Vegas, and Allan K. Perry, of Phoenix, Ariz., for
Respondents.
The Supreme Court, in determining whether error was committed by the trial court, must confine its
considerations to such error as may appear from the record.
68 Nev. 469, 470 (1951) Campbell v. Baskin
The attaching of documents to briefs on appeal is not a proper method of supplying any deficiencies in
the record, and such documents cannot be regarded as forming any part of the record which the supreme
court may properly consider on appeal.
Motion of respondents to strike affidavit attached to opening brief of appellant would be granted.
Order Granting Motion to Strike Affidavit
Per Curiam:
Attached to the opening brief of appellant in this matter is an affidavit of one of appellant's
counsel relative to proceedings in court at the time motion for new trial was made.
Respondent has moved for the order of this court striking said affidavit from said opening
brief upon the ground that it is not a part of the bill of exceptions or judgment roll and is
accordingly a fugitive document.
[Headnote 1]
It is clear that this court in determining whether error was committed by the trial court
must confine its considerations to such error as may appear from the record.
[Headnote 2]
It is clear that the attaching of documents to briefs is not a proper method of supplying any
deficiencies in the record and that such documents cannot be regarded as forming any part of
the record which this court may properly consider.
[Headnote 3]
The motion must be granted and the affidavit stricken. It is so ordered.
(Reporter's Note: See 69 Nevada for Opinion of March 31, 1952, affirming judgment of
district court.)
____________
68 Nev. 471, 471 (1951) Musgrave v. Casey
ROBERT E. MUSGRAVE, Appellant, v. JOHN JAY CASEY, and MYRTLE CASEY, His
Wife, Respondents.
No. 3626
September 26, 1951. 235 P.2d 729.
Appeal from the First Judicial District Court, Churchill County; Clark J. Guild, Judge.
Robert E. Musgrave brought action against John Jay Casey and Myrtle Casey, his wife, to
establish a joint adventure in the purchase of a ranch, and the defendants filed a counterclaim.
From a judgment adverse to the plaintiff, plaintiff appealed. The Supreme Court, Eather, J.,
held that verdict of jury was merely advisory and that district court in its discretion could
reject the verdict and grant defendant's motion for judgment notwithstanding the verdict.
Judgment modified and, as modified, affirmed.
Royal A. Stewart, of Reno, for Appellant.
John R. Ross, of Carson City, and Andrew L. Haight, of Fallon, for Respondents.
1. Trial.
It is elemental that in a suit in equity the judgment or decree must be based on findings of the court rather
than on a jury verdict, and that the determinations of the jury are purely advisory.
2. Judgment.
Where both parties and court were of the opinion at time of submission to the jury of action to establish a
joint adventure that the matter was equitable and that jury verdict would be advisory only, general verdict
of jury in favor of plaintiff could be rejected by the court in its discretion up to the same extent that special
findings might have been rejected, and trial court had right to grant motion of defendants for judgment
notwithstanding the verdict.
Where verdict of jury was merely advisory, any error which may have been committed by the trial court
in instructing the jury was harmless.
4. Joint Adventures.
In suit to establish a joint adventure in the purchase of a ranch, to establish in plaintiff an undivided
one-half interest in the ranch property, and for winding up of the alleged joint adventure, evidence
sustained trial court's finding that there was no joint adventure.
5. Joint Adventures.
In suit to establish a joint adventure in the purchase of a ranch, wherein defendants filed a counterclaim to
recover $3,000 for some 200 head of wild horses which plaintiff had sold without accounting to
defendants, evidence that agreement of parties was that plaintiff was to round up the wild horses and
dispose of them and that the parties were to divide the proceeds equally, and that plaintiff in disposing of
the horses received a total of $3,412.15, entitled defendants to judgment for only $1,706.07 rather than
$3,000.
OPINION
By the Court, Eather, J.
This suit was brought to establish a joint adventure in the purchase of a ranch, to establish
in plaintiff an undivided one-half interest in the ranch property, and for the winding up of the
joint adventure. The complaint alleges the existence of a joint adventure between the parties
and the prayer of the complaint reads as follows:
Wherefore, plaintiff prays for a decree of this court conveying to the plaintiff an
undivided one-half interest in and to the property described in Exhibit A, attached hereto,
and that one-half of the proceeds thereof in excess of the sum necessary to pay the purchase
price of said ranch be adjudged to the plaintiff and that plaintiff be adjudged to be the owner
of one-half of the cattle and personal property remaining; that a receiver be appointed to take
charge of said monies and property pending a final determination of this cause and that said
partnership and joint adventure be wound up and terminated and that plaintiff have judgment
for costs of suit and for such other and further relief as to the Court seems just and proper.
The answer of the defendants denies the existence of a joint adventure and asserts as
counterclaim that plaintiff had failed to account to defendants for proceeds of sale of
certain horses belonging to defendants and prays that plaintiff be required to account
therefor and that defendants have judgment for the amount found due.
a joint adventure and asserts as counterclaim that plaintiff had failed to account to defendants
for proceeds of sale of certain horses belonging to defendants and prays that plaintiff be
required to account therefor and that defendants have judgment for the amount found due.
The assignments of error relate in major part to the procedure followed before the trial
court. The principal question relates to the right of the trial court to render judgment for the
defendants contrary to the verdict of the jury. We therefore address ourselves first to the
matters of procedure.
For the purpose of clarity, appellant will be referred to as the plaintiff, and respondents as
defendants.
On setting for trial a jury was demanded by plaintiff. By court order the matter was set for
trial before a jury. After trial the matter went to the jury for a general verdict upon the
court's instructions as to the applicable law. In instructing the jury the court stated in part
* * * It is your exclusive province to determine the facts of the case, and to consider and
weigh the evidence for that purpose. * * * The Court is not to decide or to determine these
issues or questions of fact because this is not the province of the Court but is the exclusive
province of the jury. * * *.
The verdict of the jury was as follows: We, the jury in the above-entitled case do find for
the plaintiff, Robert E. Musgrave. This verdict was rendered December 1, 1949.
On December 7, 1949, and prior to the entry of judgment, defendants filed a notice of
motion for judgment in favor of the defendants and against the plaintiff, notwithstanding the
verdict of the jury. On the same day defendants filed notice of intention to move for a new
trial.
On December 13, 1949, both of defendants' motions came on for hearing before the court.
The court did not specifically rule on defendants' motion for judgment notwithstanding the
verdict, but stated as follows: You may enter the order, Mr. Clerk, that it is the judgment of
the court that the defendants in this action prevail and that they have judgment and for
their costs and disbursements incurred."
of the court that the defendants in this action prevail and that they have judgment and for their
costs and disbursements incurred.
No action was taken upon defendants' motion for a new trial. The court instructed counsel
for defendants to prepare findings. On December 19, 1949, plaintiff filed notice of intention
to move for a new trial and on February 14, 1950, that motion was argued and denied.
Findings of fact and conclusions of law in favor of defendants were signed by the trial judge
February 14, 1950. On the same date, judgment in favor of defendants was signed and said
judgment was filed March 22, 1950. This appeal is from the judgment of the trial court and its
order denying new trial.
[Headnote 1]
The principal question involved in this appeal, that of the right of the trial court to
disregard the jury's verdict and enter judgment for defendants, depends upon the nature of the
litigation, either as an action at law or as a suit in equity. It is elemental that in a suit in equity
the judgment or decree must be based upon findings of the court rather than a jury verdict;
that the determinations of the jury are purely advisory. It is apparent from the prayer of the
complaint that, at the very least, equitable features are present. Appellant contends that
regardless of the equitable nature of the relief sought, the essential issue of the existence of a
joint adventure was legal in character, and likewise the counterclaim of the defendants, and
that the verdict of the jury was therefore binding on both matters.
It has been held by this court that where a case partakes of both legal and equitable issues
and no segregation of such issues is made in presenting the case to the jury, and where the
case is treated throughout as a proceeding in equity, the verdict of the jury must be regarded
in its entirety as advisory and the right of the court to pass upon the legal as well as the
equitable issues cannot be questioned upon appeal. Costello v. Scott, 30 Nev. 43
Scott, 30 Nev. 43, 93 P. 1, 94 P. 222, Johnston v. DeLay, 63 Nev. 1, 158 P.2d 547.
Appellant contends that the converse of this proposition should apply as laid down by this
court in Van Vleet v. Olin, 4 Nev. 95, 34 P. St.Rep. 95. There this court stated (holding that
the trial court had erred in instructing the jury):
But it may be claimed that this is purely an equity case, and, therefore, that the refusal to
give a correct instruction asked, or a misdirection of the jury, is not an error which will
authorize the reversal of the judgment, because a court of equity is not bound or controlled by
the verdict in such case. We are inclined to believe that the parties could, as a matter of right,
have claimed a jury to try their title to the premises in this case. But whether they could or
not, the Court below treated the case all through as an ordinary action at law, and charged the
jury that they were the exclusive judges of the facts, of the credibility of the witnesses, and of
the weight of evidence. In rendering judgment, also, it seemed to consider itself bound and
controlled by the verdict of the jury as in an action at law. When the whole case is in such
manner submitted to the jury, and the Court considers itself controlled by the verdict,
certainly each party has the same rights with respect to instructions that he has in any trial at
law.
Further, appellant contends that the Costello case is distinguishable in that the recognition
of the proceedings by the parties as an equitable one was there clear and consistent
throughout the trial; that the case was set down for trial by the court with the aid of a jury;
that the case went to the jury upon special issues indicating clearly that the jury was acting in
an advisory capacity only; that in the case at bar the case in all regards was treated as one at
law and not as one in equity.
It must be conceded that from the procedural history of this case as we have outlined it and
from the manner in which the jury was utilized, this case bears resemblance rather to an
action at law than a suit in equity.
in which the jury was utilized, this case bears resemblance rather to an action at law than a
suit in equity.
The record establishes without doubt, however, that procedure notwithstanding, it was the
clear understanding of the court and of counsel that the nature of the case was equitable and
that the verdict of the jury was purely advisory in character. Upon the conclusion of the taking
of testimony the following exchange took place between the court and counsel as reported at
length in the transcript of proceedings:
Mr. Ross: (Attorney for defendants) Here is something we discussed in Chambers that
comes to my mind. I am somewhat worried about it. I am speaking now of the mechanics of
court procedure. Your Honor has overruled the motion for a nonsuit and the motion for a
directed verdict. The matter now goes to the jury. Now the Court, in a matter of equity has the
right to take the verdict of the jury as advisory. In a matter of law it's the final determination
of the case. Now I am confused and I would say frankly at this moment, what is the legal
nature of this pleading? Are we going to be bound as a matter of law by the verdict or is it
going to be advisory on the theory that this is an equitable action?
Court: The Court's position is that the verdict of the jury is only advisory to the Court in
this proceeding. Is that correct, Mr. Stewart? Is that your position?
Mr. Stewart: (Attorney for plaintiff) I believe it is correct in that respect, Your Honor. It
is an equitable action and in an equitable action the jury's verdict is advisory. That is my
understanding, at least.
Court: The Court takes the position it is a case in equity by nature of the plaintiff's
complaint and the jury's verdict is advisory only. We will be in recess until one-thirty.
Immediately following the court recess the court entertained objections to instructions and
proceeded forthwith to instruct the jury, including in its instructions those already quoted
relative to the jury's function with reference to the issues of fact.
reference to the issues of fact. Does the fact that such instructions were given and that the jury
was asked for a general verdict rather than for special findings in aid of the court, transform
the character of the proceeding from an equitable one upon which all parties were agreed, to
one at law? If so, it must be said that without further discussion between court and counsel
the understanding which they had reached prior to the noon recess, for some reason not
appearing in the record, had been abrogated and set aside. Such a conclusion simply does not
appear to be reasonable. Furthermore, such a conclusion is expressly negatived by the record
itself.
Upon hearing of defendants' motion for judgment notwithstanding the verdict, the
following statements were made by respective counsel:
Mr. Ross: (Attorney for defendants) We submit, if the court please, from where we stand
that the proper procedure in this case would be to enter a judgment notwithstanding the
verdict; that the case is one of equity; the verdict in the first instance was only advisory.
Counsel seems to question whether or not this might be an equitable case now but I recall
before we went to the jury he was very definite it was an equitable case, and he agreed with
the Court's statement that the verdict in any event would only be advisory.
Mr. Stewart: (Attorney for plaintiff) In view of counsel's last statement I would like to
make this statement to the Court. It is true that I thought it was an equity case and I still think
it is. In other words, the relief asked for is equitable in its nature but I am not quite so sure at
the present time as I was then that there may be law questions mixed up in equity. Since
reading some of the Nevada cases and seeing where one case may involve questions of law
and equity I am not quite so certain, although I have never argued here today that this was a
law case. I have assumed at all times in my argument that it was an equity case. * * *
It is therefore clear that even after submission of the matter to the jury and the rendition
of its verdict by the jury counsel were still in agreement that the matter was equitable.
matter to the jury and the rendition of its verdict by the jury counsel were still in agreement
that the matter was equitable. Any doubts that may have assailed appellant's counsel relative
to the existence of legal issues and appellant's right to stand upon the jury's verdict in those
respects, occurred to counsel after the rendition of the verdict.
The case of Wessell v. Rathjohn, 89 N.C. 377, deals with a situation converse to that
appearing here, the court holding that where parties choose to proceed as at law they may not
thereafter without the common consent of all the parties and the assent of the court, change
the method of procedure to that of the court of equity * * *. Certain language of the court is,
however, as appropriate under the circumstances of this case as under the facts with which
that court was concerned. The court stated:
It does not comport with the propriety, fairness, and integrity of judicial proceedings to
allow litigants to test their fortune in one competent jurisdiction, under one method of
procedure, and, failing in that, to try another method before the same tribunal. Leggett v.
Leggett, 88 N.C. 108; Shields v. Whitaker, 82 N.C. 516.
[Headnote 2]
It cannot be said that either counsel or court in submitting the matter to the jury had
departed from the understanding previously reached that the jury verdict was to be advisory
only. The only fair conclusion therefore, would appear to be that the procedure followed may
be reconciled with the understanding of all parties on the basis that the parties rejected the
customary manner of utilizing the jury in an advisory capacity through special findings and
chose instead to utilize the jury through an advisory verdict general in nature. We therefore
regard the decisions in Costello v. Scott, supra, and Johnston v. DeLay, supra, as controlling.
It would follow that the general verdict of the jury may be rejected by the court in its
discretion to the same extent that special findings might have been rejected.
Appellant asserts that the trial court erred in granting defendants' motion for judgment
notwithstanding the verdict upon the ground that such a motion is not available to a defendant
since by its nature it is a plaintiff's motion, citing as authority Brown v. Lillie, 6 Nev. 177. In
the light of our view that the jury verdict was advisory only, this argument does not apply. No
motion at all was required to enable the court in its discretion to reject the jury's verdict. The
motion may be regarded simply as a method of suggesting to the court that its findings
favor the defendant and reject the jury's verdict. The trial court apparently so regarded the
motion since no order was made expressly granting it.
[Headnote 3]
Appellant asserts that the trial court erred in instructing the jury in certain respects. In the
light of our view that the verdict was advisory, any error which may have been thus
committed was harmless. White v. Morrow, 187 Okl. 72, 100 P.2d 872; Pittenger v.
Pittenger, 208 Ill. 582, 70 N.E. 699; Sweetzer v. Dobbins, 65 Cal. 529, 4 P. 540; Wetzstein v.
Largey, 27 Mont. 212, 70 P. 717.
Finally appellant contends that the findings and judgment of the trial court are contrary to
the law and the great weight of evidence. In this respect a summary of the facts upon which
suit was brought becomes necessary.
Plaintiff was the owner and operator of the Valley Livestock Sales Yard at Fallon, Nevada.
His business was that of a livestock auctioneer through his sales yard for commission.
Defendant John Casey (and in this statement of the facts we refer to him as the defendant,
omitting reference to his co-defendant wife) was a rancher and cattleman and prior to the
transactions with which this case is concerned owned and operated two ranches, the Fallon or
Home Ranch and the Reese River Ranch.
These parties had known each other as friends and business associates for many years,
plaintiff frequently acting for defendant in the sale of defendant's cattle.
business associates for many years, plaintiff frequently acting for defendant in the sale of
defendant's cattle. Also they had from time to time engaged in joint speculations in the
purchase of cattle which were then sold through the sales yard with net profits equally
divided. In 1948 they were engaged jointly in such a speculation.
In the fall of 1947 it became generally known that the Butler Ranch to the south of
defendant's Reese River Ranch was to be offered for sale by the First National Bank of
Nevada as executor of the Butler estate. Defendant conducted a private investigation of the
ranch assets. It was a desert ranch including not only land holdings but range rights over a
very extensive area of public domain. The number of cattle spread over this extensive area
was the great unknown factor in the question of value and defendant's private investigation
was largely along the lines of an estimated cattle count backed by his years of experience in
this regard. Many trips over the ranch property were taken and much time was spent by
defendant in gaining his information relative to the ranch assets.
On May 7, 1948, based upon information so gained, defendant offered to purchase the
entire ranch property with all livestock and equipment for $325,000, payable as follows:
$1,000 deposit with bid, $49,000 down payment if the bid received court approval, $275,000
balance to be paid at the rate of $55,000 per annum with interest at 4 1/2 percent and to be
covered by a deed of trust and chattel mortgage, with all proceeds of sale of Butler Ranch
cattle to be applied on the unpaid purchase price.
Defendant had discussed the matter of the purchase of the Butler Ranch with the plaintiff
and at about the time the bid was made the parties had a conversation on the subject in
plaintiff's office. According to plaintiff defendant stated that he would like to have a partner
in the deal and the following conversation ensued:
Plaintiff: Well, just what will it take to be your partner? "Defendant: One-half of what it
costs.
Defendant: One-half of what it costs.
Plaintiff: Don't put that out unless you mean it.
Defendant: I am not.
Plaintiff: Let's get together.
Defendant admits that such a conversation was had but testified that he had stated that it
would take $25,000 (one-half the down payment) to become a partner and that plaintiff had
asked for two weeks within which to decide. Defendant also testified that plaintiff later had
asked if he would accept a one-half interest in the sales yard in lieu of the $25,000, but that
this was never accepted.
Plaintiff testified that following the conversation quoted, he at all times assumed that he
was a partner and obligated to the extent of one-half of the risk involved; that until payment
of the purchase price had been substantially completed defendant had treated him in all
respects as a partner; that on the occasion of the court confirmation, defendant, being
concerned lest his installment bid would be rejected in favor of a cash bid of $300,000 by
another party, had asked plaintiff to be present in court prepared in his own name to overbid
the cash bid; that plaintiff had been so present and so prepared with $1,000 of his own money
available as a deposit; that plaintiff's services in connection with raising the purchase price
were extensive; that he had made many trips to the ranch, had secured a purchaser who had
paid to defendant $50,000 for certain of defendant's cattle for future delivery, which sum was
utilized as the down payment; that plaintiff had conducted a cattle roundup on the Butler
Ranch and an auction sale of cattle which had raised a little over $78,000; that he had
arranged a further private sale of Butler cattle for $159,803.19.
Independent witnesses testified that defendant had treated plaintiff as though plaintiff had
an interest in the ranch.
The trial court in rendering its opinion in favor of the defendant stated the conviction that
there was not sufficient evidence to establish that there ever was a partnership or joint
adventure created between the parties.
sufficient evidence to establish that there ever was a partnership or joint adventure created
between the parties. This appears to us to be the true issue. The question is not whether
plaintiff is entitled to compensation for his services rendered in connection with the raising of
the purchase price. The question is whether any contract ever was reached which created a
joint adventure. Plaintiff's position is that such a contract was created and that it was created
by the conversation in the sales yard as we have quoted it.
[Headnote 4]
In our view the opinion of the trial court that a joint adventure was not established must be
affirmed. We do not find it reasonably possible to construe the conversation in question, even
accepting plaintiff's version of it, as creating a binding contract. The words Let's get
together cannot, we feel, be interpreted as a present and immediate assumption of risk and
an irrevocable promise to contribute to the extent of one-half of the down payment. The
conversation at most would appear to be an offer only and an offer which demanded
acceptance by action (through payment) rather than by promise. If there was such an offer it
was never accepted. The down payment of $50,000 was not jointly borne but was raised by
sale of defendant's own cattle. The fact that such a sale was for future delivery and, as a
matter of hindsight considering the manner in which the transaction developed, might have
been fulfilled out of Butler cattle, does not affect the legal aspect of the matter. The down
payment actually was raised by defendant without financial contribution or assumption of risk
by the plaintiff.
The trial court is affirmed in its holding as to the complaint of the plaintiff.
Defendant, as a counterclaim, alleged that defendant had delivered into plaintiff's
possession some 200 head of horses to be disposed of by plaintiff; that plaintiff thereafter
sold the horses for the approximate sum of $3,000 but had never accounted therefor to
defendant.
The trial court upon this counterclaim rendered judgment in favor of defendant in the sum of
$3,000.
[Headnote 5]
The evidence establishes, however, that the agreement of the parties was that plaintiff was
to round up wild horses on the Butler Ranch and dispose of them; that the parties were to
divide the gross sales proceeds equally; that plaintiff in disposing of the horses had received a
total of $3,412.15. Under these established facts, defendant at most would have been entitled
to judgment in the sum of $1,706.07.
It is ordered that the judgment of the trial court be modified by reduction of the judgment
upon defendants' counterclaim from $3,000 to the sum of $1,706.07; that as so modified the
judgment of the trial court is affirmed. The respective parties shall bear their own costs upon
this appeal.
November 15, 1951.
Per Curiam:
Rehearing denied.
____________
68 Nev. 484, 484 (1951) Goodman v. Goodman
ELAINE NIRENBERG GOODMAN, Appellant, v.
RUBIN B. GOODMAN, Respondent.
No. 3669
October 10, 1951. 236 P.2d 305.
Elaine Nirenberg Goodman brought action for divorce against Rubin B. Goodman and
obtained a divorce decree requiring the defendant to contribute $25 a week for support of a
child of the parties. Thereafter the plaintiff made a motion for modification of the divorce
decree to provide for increased support of $100 a week for support of the child. From an
order denying the motion, the plaintiff appealed. The Supreme Court, Merrill, J., held that
there was no abuse of discretion on part of the Second Judicial District Court in denying the
motion.
Affirmed.
Springmeyer & Thompson, of Reno, for Appellant.
Samuel Platt, of Reno, for Respondent.
1. Divorce.
Trial court, in denying motion of divorced wife for modification of divorce decree to provide increased
support for minor child, did so in exercise of discretionary powers conferred on it by statute, and therefore
the concern of the supreme court on appeal was not whether error of law in the ordinary sense was
committed by the trial court, but whether its action constituted abuse of discretion. N.C.L.1943-1949
Supp., sec. 9462.
2. Statutes.
Where the legislature has spoken with imperfect clarity or has failed to speak at all, it is still the function
of the court not to will the law, but to discern it.
3. Action.
In discretionary matters, court's exercise of discretion may not be arbitrary or capricious.
4. Divorce.
On motion by divorced wife for modification of a divorce decree to have support for minor child of the
parties increased from $25 a week to $100 a week, trial court did not act improperly in considering
the fact that divorced husband contributed about $2,000 a year for maintenance of
child in addition to paying the $25 a week. N.C.L.1943-1949 Supp., sec.
improperly in considering the fact that divorced husband contributed about $2,000 a year for maintenance
of child in addition to paying the $25 a week. N.C.L.1943-1949 Supp., sec. 9462.
5. Divorce.
Where evidence established that sum of $25 a week, required by divorce decree to be paid by divorced
husband for support of child, was insufficient to maintain child in manner which child should be
maintained, and that divorced husband was able to make payments for support of the child in excess of $25
a week, and that there were pertinent changes of circumstances both as to child and as to divorced husband,
but that divorced husband had voluntarily paid in excess of $2,000 each year for support of the child in
excess of the $25 a week, trial court did not abuse its discretion in denying motion of divorced wife for
modification of divorce decree to provide support of $100 a week for support of the child.
N.C.L.1943-1949 Supp., sec. 9462.
OPINION
This is an appeal from order of the trial court denying a motion for modification of a
divorce decree to provide increased support for the minor child of the parties. The question
before us is whether this action by the court constituted abuse of judicial discretion.
On June 24, 1948 a decree of divorce was granted to appellant, which decree granted her
custody of the minor child of the parties, a boy six years of age. The decree approved an
agreement between the parties under the terms of which respondent agreed to pay to appellant
the sum of $25 each week for the support, maintenance and education of the child.
On November 7, 1950 appellant filed notice of motion to modify said decree by increasing
the amount to be so paid from $25 a week to $100 a week. The motion, generally, was made
upon the grounds that the sum of $25 a week was insufficient for the purposes; that
respondent was well able to pay the amount sought; that the financial circumstances
surrounding the child had changed for the worse and those of the respondent had improved.
had improved. On November 30, 1950 the motion was presented and was denied by the trial
court. This appeal was then duly taken.
[Headnote 1]
The court in so acting did so in exercise of discretionary powers conferred upon it by
statute. Accordingly, upon this review our concern is not whether error of law in the ordinary
sense was committed by the trial court, but whether its action constituted abuse of discretion.
The action of the trial court with which we are here concerned, was taken pursuant to the
provisions of sec. 9462, N.C.L.1929, Supp. 1943-1949, which states: The court, in granting
a divorce, shall make such disposition of, and provision for, the children, as shall appear most
expedient under all the circumstances, and most for the present comfort and future well-being
of such children; * * * the court may, during the pendency of the action, or at the final
hearing or at any time thereafter during the minority of any of the children of the marriage,
make such order for the custody, care, education, maintenance, and support of such minor
children as may seem necessary or proper, and may at any time modify or vacate the same.
The position of appellant is that (aside from the question of changed circumstances) the
motion to modify the decree presented to the trial court one question of fact: What is a proper
sum to require the father to contribute for the support of his child under existing conditions?
(Which question includes the two subordinate questions: (1) What does the child reasonably
require to maintain his standard of living? and (2) What can the father reasonably afford to
pay?)
Evidence before the trial court was confined to affidavits. The facts so established need not
be discussed in detail for the purposes of this decision. It may be conceded that the evidence
established that the sum of $25 a week was insufficient to maintain the child in the manner
which both parties apparently were agreed he should enjoy; that the father was able to
make payments for support of the child in excess of this sum and that some pertinent
change of circumstances was shown both as to the child and as to the father.
should enjoy; that the father was able to make payments for support of the child in excess of
this sum and that some pertinent change of circumstances was shown both as to the child and
as to the father.
Appellant contends, under these circumstances, that the modification of the decree was no
longer a matter of discretion but a matter of right in the child; that the court had no discretion
but to grant the motion in an appropriate amount.
A consideration of the nature of judicial discretion is, we feel, essential to a proper
determination of the matter. Few legal terms are subject to a wider diversification of
definition and construction.
Bouvier has defined discretion in part as: That part of the judicial function which
decides questions arising in the trial of a cause, according to the particular circumstances of
each case, and as to which the judgment of the court is uncontrolled by fixed rules of law.
The power exercised by courts to determine questions to which no strict rule of law is
applicable but which, from their nature, and the circumstances of the case, are controlled by
the personal judgment of the court.
Dean Pound in his Readings On The History And System Of The Common Law (page
19) deals with the subject in the following manner:
Four propositions may be laid down with reference to the exercise of discretion: (1)
Whether or not a matter is one for law or for discretion is settled by law, and the court has no
power to put it in the one category or the other at pleasure. A court has no discretion to apply
the law or not as it sees fit. (2) Where discretion is conferred, it must really be exercised as
such; the court cannot act oppressively or arbitrarily under pretence of exercising discretion.
Such arbitrary or oppressive action under color of exercising discretion is called abuse of
discretion. (3) If discretion reposed in a court or judge is in fact exercised as such, the manner
of its exercise will not be reviewed.
of its exercise will not be reviewed. (4) But if the discretion is abused, the abuse may be
reviewed and corrected by a higher tribunal.
Mr. Chief Justice Marshall in Osborn v. Bank of the United States, 9 Wheat. 738, 866, 22
U.S. 738, 6 L.Ed. 204, 234, has stated: Judicial power, as contradistinguished from the
power of the laws, has no existence. Courts are the mere instruments of the law, and can will
nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion
to be exercised in discerning the course prescribed by law; and, when that is discerned, it is
the duty of the court to follow it. Judicial power is never exercised for the purpose of giving
effect to the will of the judge; always for the purpose of giving effect to the will of the
legislature; or, in other words, to the will of the law.
[Headnotes 2, 3]
Thus, where the legislature has spoken with imperfect clarity or has failed to speak at all, it
is still the function of the court not to will the law, but to discern it: to discern the
legislative intent or, with the aid of analogy in the absence of legislative expression, to
discern the course of justice; thus, to discern the law and relieve it of its obscurity. Clearly,
then, in discretionary matters the court's exercise of discretion may not be arbitrary or
capricious. Such an exercise might well constitute a willing of the law rather than a
discernment of it. It might well become, as Lord Camden has characterized it, the law of
tyrants.
While Mr. Chief Justice Marshall in his use of the word law has attached to it an
all-inclusive meaning, Dean Pound's use of the word is in a different and far less
comprehensive sense. In using the word to characterize a category of determination distinct
from that of discretion, he undoubtedly has reference to fixed and established legal
principles which the court in its process of discernment is bound to follow.
As was said in Norris v. Clinkscales, 47 S.C. 488; 25 S.E. 797, 801: The term discretion'
implies the absence of a hard and fast rule.
absence of a hard and fast rule. The establishment of a clearly-defined rule would be the end
of discretion. And yet discretion' should not be a word for arbitrary will or unstable caprice.
Nor should judicial discretion be, as Lord Coke pronounced it, a crooked cord,' but rather, as
Lord Mansfield defined it, the exercising the best of their judgment upon the occasion that
calls for it,' adding that if this discretion be willfully abused * * * it ought to be under the
control of this court.' Rex v. Young, 1 Burrows, 560.
Yet even within the area of discretion where the court's discernment is not to be bound by
hard and fast rules, its exercise of discretion in the process of discernment may be guided by
such applicable legal principles as may have become recognized as proper in determining the
course of justice. A clear ignoring by the court of such established guides, without apparent
justification, may constitute abuse of discretion.
In Norris v. Clinkscales, supra, the court continues: The courts and text writers all concur
that by judicial discretion' is meant sound discretion guided by fixed legal principles. It must
not be arbitrary nor capricious, but must be regulated upon legal grounds,grounds that will
make it judicial. It must be compelled by conscience, and not by humor. So that when a judge
properly exercises his judicial discretion he will decide and act according to the rules of
equity, and so as to advance the ends of justice.
Under our statute as we have quoted it, the legislature in effect has stated that a child's
right to support is to be established not by law (in Dean Pound's sense of that word) but by
discretion; that the welfare of the minor child demands that a hard and fast rule is not to
constitute the basis for action, but that such basis is rather to be the reason and conscience of
the trial judge.
It cannot be denied that the determinations which appellant contends must form the basis
for decision are material and, indeed, essential. This does not mean, however, that they are
themselves to constitute the basis for action and, as such, are to supersede the discretion
which the legislature has conferred upon the trial judge.
basis for action and, as such, are to supersede the discretion which the legislature has
conferred upon the trial judge. This would transform that judicial discretion into a
fact-finding duty which could as well be performed by a jury. Rather, these determinations
should be regarded as guides for the exercise of discretion under the circumstances of each
particular case. Should it become apparent that the trial court had willfully and deliberately
disregarded these matters, it might be said that it had acted oppressively and arbitrarily under
pretense of discretion and had thereby been guilty of abuse. In our view this cannot here be
said.
The evidence shows that in addition to making the payments required by court decree,
respondent had voluntarily paid something in excess of $2,000 each year for the support,
maintenance and education of his son. Appellant contends that these facts are beyond the
proper scope of court consideration (save as demonstrating the financial abilities of
respondent); that the duty of the court is to establish by its decree the extent of the father's
obligation and of the child's right to support. The trial court, in denying the motion of
appellant, clearly appears to have given consideration to the voluntary payments. In doing so,
can it be said to have been guilty of a disregard of the essential determinations for which
appellant contends? The question is as to the scope of the area within which the court's
discretion may operate. Is it to be limited to those circumstances which apply to the suitability
of the existing order as an isolated question in itself?
[Headnote 4]
The court's statutory duty is to make such * * * provision for the children as shall appear
most expedient under all the circumstances, and as may seem necessary or proper. In our
view the language all the circumstances must be taken to mean all of the circumstances
which may reasonably bear not only upon the suitability of the present order (as an isolated
question in itself), but upon the necessity for or propriety of modification as well.
in itself), but upon the necessity for or propriety of modification as well. In the light of this
interpretation, we cannot agree that consideration of the matter of the voluntary payments was
improper.
Appellant argues that consideration of the welfare of the child demands that his rights be
established by decree and that he be not left to depend upon continued generosity of the
father. The point is indeed a strong and appealing one. However, to accept that an area of
discretion exists, is to recognize that within that area there may be conscientious
disagreement as to the best manner of its exercise. For example, the trial judge may have felt
that the child might well, under the facts of this particular case, benefit more from a
continuation of the voluntary basis than through an increased allowance; that in the event of
such an increase, the father, regardless of generous impulsions, might feel that he could not
exceed it without endangering his position in the event of further applications for increase.
[Headnote 5]
However, without further entering the realm of speculation, which in any consideration of
discretionary action is difficult to avoid, we can with reasonable certainty state the apparent
determination of the trial court: that the child was not suffering from present inadequacies of
the decree; that modification was not necessary; that present conditions did not render a
failure to modify improper. In our view, under all of the circumstances of the case, including
those of the voluntary payments, such a determination cannot be held to constitute abuse of
discretion.
The order of the trial court is affirmed. Each party shall bear his own costs upon this
appeal.
____________
In the Matter of the Estate of
CARL RAY, Deceased.
In re Petition of Robert E. Barringer.
No. 3673
October 11, 1951. 236 P.2d 300.
Proceeding in the matter of the estate of Carl Ray upon the petition of Robert E. Barringer
for distribution to him as a pretermitted heir of one third of the deceased's estate. The Eighth
Judicial District Court, Clark County; Frank McNamee, Judge, department No. 1, ordered the
distribution and the executor, Paul Angelillo, and the minor heir, Carlita Nancy Ray,
appealed. The Supreme Court, Badt, C. J., held that the executor was not an aggrieved party
entitled to appeal from the order of partial distribution.
Motions to dismiss executor's appeals granted. Motions to dismiss minor heir's
appeals denied.
Jones, Wiener, Jones & Zenoff, of Las Vegas, for Appellant Paul Angelillo, Executor.
John G. Cope, of Las Vegas, for Appellant Carlita Nancy Ray, minor heir.
Hawkins & Cannon, of Las Vegas, for Respondent Robert E. Barringer.
In proceeding by son for distribution to him as pretermitted heir of part of estate, where question of
whether son was entitled to one-third of estate was only issue involved and issue was same as it would have
been on petition for final distribution, executor was not aggrieved party entitled to appeal from order of
partial distribution. N.C.L.1931-1941, secs. 9882.235-9882.237.
Mere fact that party could properly arouse jurisdiction of lower court does not establish his right to
appeal from an adverse decision.
In proceeding by son for distribution to him as pretermitted heir of part of estate, minor heir was
aggrieved party entitled to appeal from order of partial distribution.
to appeal from order of partial distribution. N.C.L.1931-1941, sec. 9882.235.
Order of partial distribution of estate to pretermitted heir was appealable order under provisions of statute
specifically permitting appeal from order or decree determining heirship or persons to whom distribution
should be made or trust property should pass; or distributing property. N.C.L.1931-1941, secs. 9882.235,
9882.293.
In proceeding by son for distribution to him as pretermitted heir of part of estate, upon separate appeals
by executor and minor heir, joint bill of exceptions in support of the separate appeals was proper.
N.C.L.1931-1941, sec. 9882.235.
Attorney for minor heir appointed by court in probate proceeding to determine right of pretermitted heir
to partial distribution was authorized to represent her in all matters in such proceeding, including
prosecution of her appeal, and general statutes requiring appearance by general guardian or guardian ad
litem in ordinary actions and civil proceedings took nothing from authority of attorney for infant in probate
proceedings. N.C.L.1929, sec. 8549; N.C.L.1931-1941, secs. 9882.16, 9882.307.
Where bill of exceptions, as originally filed, was inadvertently entitled in the supreme court instead of the
district court and error was called to the district court's attention at hearing on settlement of bill and was
corrected, but correction was made after time for filing original proposed bill had expired, bill of
exceptions was not nullified. N.C.L.1931-1941, sec. 9385.77.
Though probate statute did not list order denying motion for new trial as one from which appeal could be
taken, act regulating new trials and appeals in civil actions, which specifically allows appeal from order
granting or refusing new trial, was applicable to probate proceedings to determine right of pretermitted heir
to partial distribution. N.C.L.1931-1941, secs. 9385.60, 9882.293, 9882.319.
On Motions to Dismiss Appeals
Robert E. Barringer, respondent, claiming to be the son of Carl Ray, deceased, who at one
time was known as Melvin A. Barringer, petitioned the court for distribution to him as a
pretermitted heir of one-third of the deceased's estate under that provision of our statute
reading as follows:
deceased's estate under that provision of our statute reading as follows:
235. At any time after the lapse of three months after the issuing of letters testamentary
or of administration, any heir, devisee or legatee, or his assignee, may present his petition to
the court, praying that the legacy or share of the estate, to which he or she is entitled, may be
given to him or her upon giving bond, with approved security, for the payment of his or her
proportion of the debts of the estate. The court may dispense with a bond if it be made to
appear that the same is unnecessary. Sec. 9882.235, N.C.L.1931-1941 Supp.
The petition was resisted by the co-executors, one of whom has since resigned as such and
has been dismissed from the proceedings by order of court pursuant to stipulation of the
parties. It was also resisted by Carlita Nancy Ray, a minor heir of the age of three years,
through the attorney appointed by the court to act for her. The respective demurrers of the
executor and the minor heir were overruled, and they filed answers denying Barringer's
allegations of heirship and denying that the testator had unintentionally omitted him from his
will. They also allege that in any event Barringer was under the terms of the exclusion clause
of the will, precluded from participating in the estate to the extent of more than the sum of $1.
Oral and documentary evidence was presented on the issues made, and the court entered the
following order:
It is, therefore, ordered that the executors, within thirty days from and after the date
hereof, make and file herein a full account of the estate of said deceased showing the
character and value of the estate property remaining in their hands, and what income has been
received therefrom, and within ten days thereafter deliver to petitioner one third of said estate
which remains after deduction of the estimated expenses of administration, being the whole
portion of the estate to which petitioner is entitled; and if, in the execution of this decree, a
partition is necessary, it shall be made in the manner provided by law.
the manner provided by law. The giving of a bond by petitioner is dispensed with, it
appearing that the same is unnecessary.
The executor and the minor heir severally moved for a new trial of said issue and both
motions were denied. The executor and the minor heir then severally appealed from the order
(somewhat generally referred to in the briefs as an order of partial distribution) and also from
the order denying new trial. Respondent Barringer has interposed four motions to dismiss the
appeals: (1) the appeal of the executor from the order of partial distribution; (2) the appeal of
the executor from the order denying his motion for a new trial; (3) the appeal of the minor
heir from the order of partial distribution; and (4) the appeal of the minor heir from the order
denying her motion for new trial.
The Motions to Dismiss the Executor's Appeals
[Headnotes 1, 2]
In the matter of the Estate of Carl Ray, deceased (In re Petition of Truman Nye), 68 Nev.
355, 233 P.2d 393, decided June 27, 1951, this court dismissed the appeal of the executor
from an order made, under a provision of the will, for the payment of a monthly sum to
Truman Nye. We there held that the executor was not an aggrieved party entitled to appeal.
Barringer insists that our decision in the matter of the Truman Nye petition is controlling in
this motion, and such is our conclusion. The executor insists, however, that in the Truman
Nye petition there was neither presented to nor considered by the court sec. 9882.237,
N.C.L.1931-1941 Supp. Section 9882.235 permits an heir, devisee or legatee to petition for
distribution to him of the part of the estate to which he is entitled. Section 9882.236 provides
for notice to the executor and others. Section 9882.237 reads in part: The executor or
administrator, or any person interested in the estate, may appear and resist the application
* * *. The executor insists that in construing similar statutes the supreme court of California
and the supreme court of Montana, while recognizing the rule that an executor may not
appeal from a final order of distribution {the accounts having been settled and the only
question being the determination of the persons entitled to distribution), hold that an
executor may appeal from an order of partial distribution.1 Such cases involved situations
in which the assets of the estate might not be sufficient to discharge the claims of
creditors, or where the assets were so uncertain that an order of partial distribution might
be embarrassing to the proper administration of the estate, or where the awarding of an
extravagant family allowance might deplete the estate, or where the partial distribution
might dissipate the estate to the injury of the rights of creditors.
California and the supreme court of Montana, while recognizing the rule that an executor may
not appeal from a final order of distribution (the accounts having been settled and the only
question being the determination of the persons entitled to distribution), hold that an executor
may appeal from an order of partial distribution.
1
Such cases involved situations in which
the assets of the estate might not be sufficient to discharge the claims of creditors, or where
the assets were so uncertain that an order of partial distribution might be embarrassing to the
proper administration of the estate, or where the awarding of an extravagant family allowance
might deplete the estate, or where the partial distribution might dissipate the estate to the
injury of the rights of creditors. No situation of this nature occurs here. In resisting the
Barringer petition for distribution to him as a pretermitted heir, the executors denied the
heirship, denied the unintentional omission of the son from his father's will and alleged that
the son had been provided for under that provision of the will which bequeathed $1 to any
person claiming to be entitled to a share of the estate and contesting the will. The district
court in its decision recited these issues as made by the pleadings. The estate was appraised in
the sum of $133,630. No creditors' claims had been filed and no claim made that there was
any probability that any creditors' claims would be filed. The written order granting
Barringer's petition, and contained in the final paragraph of the written opinion and decision
of the learned district judge, orders that the executors file a full account within 30 days, and
within 10 days thereafter, deliver to Barringer one third of the estate remaining after
deduction of the estimated expenses of administration. Bond was dispensed with, it
appearing that the same is unnecessary."
____________________

1
In re Kessler's Estate, 32 Cal.2d 367, 196 P.2d 559, citing Estate of Murphy, 145 Cal. 464, 78 P. 960; Estate
of Mitchell, 121 Cal. 391, 53 P. 810; and Estate of Kelley, 63 Cal. 106; Estate of Colton, 164 Cal. 1, 127 P. 643;
Estate of Snowball, 156 Cal. 235, 104 P. 446; In re Phillips' Estate, 18 Mont. 311, 45 P. 222.
that the same is unnecessary. The record does not contain the account referred to in the order
nor does it contain the notice to creditors, but, as the order in question was made November
22, 1950 and as letters testamentary had been issued over a year prior thereto, it is clear that
the three months' time for presentation of creditors' claims had long since expired. The
question as to whether Barringer was entitled to a one-third of the estate as a pretermitted heir
was the only issue involved and was apparently, to all intents, purposes and practical effect,
the same as it would have been on petition for final distribution. Under such a situation the
California and Montana authorities support rather than weaken the conclusion we have
reached. The executor quotes from In re Davis' Estate, 27 Mont. 235, 70 P. 721, 722:
Section 2835 grants them [the executors] not only the right to resist, but also to resist
effectually, and this right puts them within the class to whom the right of appeal is assured
* * *. We think such statement was made with reference to the facts of that case and not as
necessarily applying to all cases. The Montana court relied upon Phillips' Estate, 18 Mont.
311, 45 P. 222, 223, where the executor was permitted to appeal from a decree of partial
distribution in order that the estate might be preserved for distribution to creditors and others
who may be entitled thereto upon final distribution, and not dissipated to the injury of
creditors' rights. No such issue was even made here. In the recent case of Leonard v.
Belanger, 67 Nev. 577, 222 P.2d 193, 200, in which we dismissed the appeal of certain
defendants because of their disclaimer of any interest in the controversy or in the property
involved in the litigation, we quoted with approval the rule stated in 88 A.L.R. 1159, as
approved by this court in Kenney v. Hickey, 60 Nev. 187, 105 P.2d 192, as follows: The
mere fact that a party could properly arouse the jurisdiction of the court below does not
establish his right to appeal from an adverse decision. Both appeals of the executor must be
dismissed.
The Motion to Dismiss the Minor Heir's Appeal
From the Order of Partial Distribution
This motion is based on six grounds: (1) that the minor heir was not an aggrieved party;
(2) that the order of partial distribution was not an appealable order; (3, 4) that the appellant
minor heir did not present a bill of exceptions separate from that presented by the appellant
executor; (5) that the attempted appeal of the minor heir, through the attorney appointed by
the court to represent her, was ineffective, for the reason that she could legally act only
through a guardian ad litem or a general guardian; and (6) that the original proposed bill of
exceptions was entitled in this court rather than in the probate court, and that at the time the
error was discovered and corrected, the time had expired for filing proposed bill of
exceptions.
[Headnote 3]
(1) The minor heir is obviously an aggrieved party entitled to appeal.
[Headnote 4]
(2) We are satisfied that the order of partial distribution was an appealable order under the
provisions of sec. 9882.293, N.C.L.1931-1941 Supp., specifically permitting an appeal from
an order or decree instructing or directing an executor or administrator; directing or allowing
the payment of a debt, claim, legacy or attorney's fees; determining heirship or the persons to
whom distribution should be made or trust property should pass; distributing property * * *.
This ground of the motion is without merit.
[Headnote 5]
(3, 4) The minor heir served and filed a separate notice of appeal and a separate
undertaking on appeal. She joined with the executor in filing a proposed bill of exceptions,
reciting at the beginning thereof: Come now Ida Angelot Ray and Paul Angelillo,
co-executors of the estate of Carl Ray, deceased, and Carlita Nancy Ray, minor heir, and for
their joint bill of exceptions, submit the following transcript of record on appeal."
submit the following transcript of record on appeal. This proposed joint bill of exceptions
was submitted over the signatures of the attorneys appearing separately for the separate
appellants. Counsel for the minor heir, in executing a praecipe for preparation of the record,
advised the clerk of the lower court that he did so jointly with the appealing executor and
would be responsible for one half of the fees and charges. Cases cited by Barringer to the
effect that under the circumstances there appearing a separate bill of exceptions was essential
to the appeal of the particular appellant are not in point as to the circumstances here. No valid
reason is assigned to indicate that the joint bill of exceptions in support of the separate
appeals of the executor and the minor heir was in violation of any statute or rule of court, or
improper in any respect. The practice of utilizing joint bills of exceptions under proper
circumstances has been generally approved. 4 C.J.S., Appeal and Error, sec. 817, pp. 1304,
1305. It should be noted that the issues raised by the executor and the minor heir were
virtually identical, that upon these pleadings there was but one trial, but one decision, and but
one order denying the separate motions for new trial. We find no merit in this ground of the
motion.
[Headnote 6]
(5) Barringer next insists that the minor heir's appeal must be dismissed because she could
take such appeal only through a duly appointed and qualified guardian ad litem or a general
guardian duly appointed and qualified, which she has not attempted to do. Such contention is
made by reason of sec. 8549, N.C.L.1929, requiring that when an infant is a party he must
appear either by his general guardian or a guardian ad litem. In the present proceedings the
minor heir appeared and also prosecuted her appeal under the provisions of sec. 9882.16,
N.C.L.1931-1941 Supp. This section requires, when a will is offered for probate, that the
court appoint an attorney for the minor's interest in the estate. Section 9882.307 provides that
all attorneys for estates or executors or administrators or appointed in the proceedings,
shall be attorneys of record with like powers and responsibilities as attorneys in other
actions and proceedings * * *."
executors or administrators or appointed in the proceedings, shall be attorneys of record with
like powers and responsibilities as attorneys in other actions and proceedings * * *. We are
satisfied that under the authorities the attorney for the minor heir appointed by the court in the
probate proceeding was authorized to represent her in all matters in such proceeding,
including the prosecution of her appeal, and that the general sections above quoted requiring
appearance by a general guardian or guardian ad litem in ordinary actions and civil
proceedings took nothing from this authority in probate. Carpenter v. Superior Court, 75 Cal.
596, 19 P. 174; State v. District Court, 34 Mont. 226, 85 P. 1022; Robinson v. Fair, 128 U.S.
53, 9 S.Ct. 30, 32 L.Ed. 415.
[Headnote 7]
(6) The joint bill of exceptions, as originally filed, was inadvertently entitled in the
supreme court instead of in the district court. The error was called to the district court's
attention at the hearing before that court on settlement of the bill of exceptions and was then
and there corrected. The proposed bill of exceptions was filed in time, but the correction was
made after the time for filing the original proposed bill of exceptions had expired. Barringer
contends that the proposed bill of exceptions, up to the time of the correction, was
accordingly simply a fugitive document which could not later be given legal status by reason
of the correction. The learned district judge made the correction in his own handwriting,
initialing and dating the correction in the margin. Section 9385.77, N.C.L.1931-1941 Supp.,
requires that no appeal be dismissed by this court for any defect or informality in the appellate
proceedings until the appellant has been given an opportunity to correct the same, and that no
appeal be dismissed for any irregularity not affecting the jurisdiction of the court to hear and
determine the appeal or affecting the substantial rights of the parties, and that defects or
irregularities may be cured by amendment on proper application.
that defects or irregularities may be cured by amendment on proper application. If the district
court had not made the amendment, this court would undoubtedly have done so. This ground
of the motion to dismiss is without merit.
The Motion to Dismiss the Minor Heir's Appeal From the Order Denying Her Motion for
New Trial.
[Headnote 8]
In support of this motion Barringer refers to that section of the probate statute listing the
various orders from which an appeal may be taken, namely, sec. 9882.293, N.C.L.1931-1941
Supp. This list does not include an order denying a motion for new trial. Indeed, no section of
the probate act specifically authorizes a new trial of any issues or proceedings therein unless
it be through the effect of sec. 9882.319, N.C.L.1931-1941 Supp., reading as follows: When
not otherwise specially provided in this act, all the provisions of law regulating proceedings
in civil cases apply in matters of estate, when appropriate, or the same may be applied as
auxiliary to the provisions of this act. The act regulating new trials and appeals in civil
actions specifically allows an appeal from an order granting or refusing a new trial. Sec.
9385.60, N.C.L.1931-1941 Supp. In the recent case of Abel v. Lowry, 68 Nev. 284, 231 P.2d
191, we held that sec. 8640, N.C.L.1929, a remedial statute authorizing the court to relieve a
party from proceedings taken against him through his mistake, inadvertence, surprise or
excusable neglect, was made applicable to the probate court by the provisions of 9882.319
* * *. This court, In re Benson's Estate, 62 Nev. 376, 151 P.2d 762, on an appeal from a
decree of distribution, refused to consider the sufficiency of the evidence because appellant
had not moved for a new trial, and emphatically applied to estate proceedings the rule that a
motion for a new trial was essential to a review of the evidence.
to a review of the evidence. Accordingly, we must find that this ground of the motion is
likewise without merit.
The motions to dismiss the executor's appeals are granted with costs against the executor,
which costs, however, may be allowed in the executor's accounts.
The motions to dismiss the appeals of the minor heir are denied with costs in favor of the
minor heir.
Order Denying Rehearing
(On petition for rehearing of order denying motion to dismiss appeal of Carlita Nancy Ray,
minor, from order of partial distribution and from order denying motion for new trial.)
January 18, 1952.
Per Curiam:
Rehearing denied.
(Reporter's Note: See 69 Nev. ......, for opinion affirming trial court.)
____________
68 Nev. 503, 503 (1951) Cram v. Durston
ROY CRAM, Appellant, v. WES DURSTON,
Inc., Respondent.
No. 3677
November 9, 1951. 237 P.2d 209.
department No. 2.
Action by Wes Durston, Inc., against Roy Cram for breach of warranty of title and fraud in
sale of a tractor to plaintiff, necessitating payment by plaintiff of balance of purchase price
due under conditional sale of tractor to defendant, wherein defendant filed a counterclaim for
damages for breach of alleged contract of sale of such tractor and other heavy equipment.
From a judgment on a verdict in favor of plaintiff and an order denying defendant's motion
for new trial, defendant appealed. The Supreme Court, Merrill, J., held that the evidence
sustained verdict and judgment either on theory that no contract of sale of the other
equipment had been entered into or that failure of performance by seller excused performance
by buyer.
Taylor & Gubler, of Las Vegas, for Appellant.
Schultz & Schultz, of Las Vegas, for Respondent.
Where the evidence is conflicting and there is substantial evidence to sustain the judgment, it will not be
disturbed, unless upon all the evidence it is clear that a wrong conclusion has been reached.
2. Sales.
In action by buyer for breach of warranty of title and fraud in sale of tractor, necessitating payment by
buyer of balance of purchase price due under conditional sale of tractor to seller, wherein seller
counterclaimed for damages for breach of alleged contract of purchase of such tractor and other heavy
equipment, evidence sustained verdict and judgment for buyer either on theory that no such contract of
purchase of the other equipment was ever entered into or that failure of performance by seller excused
performance by buyer.
3. Evidence.
Letter written by alleged buyer to mortgagee of heavy equipment concerning purchase of equipment from
mortgagor, disclosing that resale of equipment by buyer before payment of sums due on mortgage and
release of equipment by mortgagee for sale by buyer were contemplated, did not conclusively establish the
existence of a contract to purchase such equipment from mortgagor.
4. Sales.
Buyer is deemed to have accepted goods when he intimates to seller that he has accepted them, when
goods have been delivered and buyer does any act in relation to them which is inconsistent with ownership
of seller, or when, after lapse of a reasonable time, buyer retains goods without intimating to seller that he
has rejected them. N.C.L.1929, sec. 6782.
5. Trial.
Requested instruction as to acceptance of goods by buyer, which was taken verbatim from uniform sales
act, but which contained words and phrases of peculiar legal significance without definition or explanation
and which, standing alone and removed from its context, did not contain a full and clear statement of the
applicable law, was properly refused as tending to confuse and mislead the jury. N.C.L.1929, sec. 6782.
Any error in rendering judgment for costs before they had been settled was corrected and rendered
harmless by order granting in part a motion subsequently made to retax costs.
OPINION
At the time of the transactions which are the subject of this action, appellant, a contractor
operating out of Las Vegas, Nevada, possessed several items of heavy equipment located in
Lincoln County, Nevada. These included two Caterpillar tractors and three Terra Cobra
scrapers. One of the tractors had been purchased from one Cashman of Las Vegas on
conditional sale and a balance of over $6,000 was due on the purchase price. The remaining
items were mortgaged to the Nevada Bank of Commerce in Elko, Nevada, for the sum of
$38,000.
Respondent operated as a dealer in used heavy equipment in Los Angeles, California.
This action was brought by respondent as plaintiff for breach of warranty of title and
fraud.
for breach of warranty of title and fraud. It alleged purchase of the Cashman tractor from
appellant for $14,000 upon the assumption that appellant's title was free and clear; that it had
been compelled to pay off the Cashman balance with consequent damage.
Appellant in defense and as counterclaim contended that his contract of sale with
respondent was not for the single tractor alone, but was for all five items of equipment for the
sum of $58,000 ($14,000 each for the tractors and $10,000 each for the scrapers); that
respondent knew of the purchase balance to Cashman and of the mortgage to the bank; that
the payment of $14,000 had been on account of the entire purchase price; that the equipment
had all been delivered to respondent in Los Angeles; that respondent had defaulted on the
payment of the balance and that appellant had accordingly been required to repossess the
mortgaged equipment which had then been sold by appellant to a third party at a substantial
loss with consequent damage.
The case was tried before a jury which brought in a verdict for respondent in the sum of
$6,442.03. After judgment upon the verdict, motion for new trial was made by appellant and
denied by the trial court. This appeal is from the judgment and the order denying new trial.
[Headnote 1]
Appellant's first and principal assignment of error is that the verdict and judgment are
contrary to the evidence and the law. The general proposition of law upon which appellant
relies in this connection is that stated in Consolazio v. Summerfield, 54 Nev. 176, 179; 10
P.2d 629, 630: The general rule of this court is that when the evidence is conflicting and
there is substantial evidence to sustain the judgment it will not be disturbed. But there is an
exception to the general rule to the effect that where, upon all the evidence, it is clear that a
wrong conclusion has been reached, the judgment will be reversed.
In our view the quoted exception cannot apply to the record before us.
the record before us. The testimony of respondent's president, Wes Durston, in support of the
complaint and in opposition to appellant's contentions was clear and positive and the jury
cannot be criticized for choosing to regard it with belief.
Upon appellant's cross-complaint, the essential question is whether a contract existed for
sale of the equipment mortgaged to the Nevada Bank of Commerce, which contract was
broken by respondent. Appellant contends that the evidence conclusively establishes this to
be the fact. Heavy reliance is placed upon the following letter:
Nevada Bank of Commerce
Elko, Nevada
Gentlemen:
We are purchasing the following equipment from Mr. Roy Crams, Las Vegas, Nevada, on
the following basis:
3Woolridge Terra Cobras @ $10,000 each; total $30,000.00
12U Caterpillar Tractor with Power unit and Dozer @ $14,000.00
Upon the sale of these units or any one of them we guarantee to pay the above amounts to
the Nevada Bank of Commerce.
We will guarantee that the monies from the 2U Caterpillar and $15,000.00 on the Terra
Cobras will be paid within 90 days from above date. The remaining $15,000.00 will be paid
with [sic.] 180 days from the above date.
With the payment of $14,000.00 for the 2U Caterpiller and $10,000.00 for each of the
Terra Cobras we want a clear title to the said equipment.
Yours very truly,
WES DURSTON INC.
/S/Wes R. Durston
Wes Durston, Pres.
WD:ts
Acceptance: Nevada Bank of Commerce
By..........................
[Headnote 2]
Notwithstanding the statements contained in the letter, the verdict of the jury may be
sustained upon either one of two theories: (1) that notwithstanding the implications of the
letter, no contract of sale ever was reached; or (2) that if such a contract was reached, failure
of performance by appellant excused performance by respondent. In our view the record
contains evidence which would serve to support either theory.
(1) Durston testified in effect that on first discussing purchase of the property he had stated
to appellant that construction of an airfield near Los Angeles was commencing; that the
contractors needed equipment and that if delivery could be made promptly this would be a
good time to move the equipment; that before any agreement as to price could be reached it
would be necessary to secure bank consent to delivery and that delivery be made to Los
Angeles and the equipment checked. He further testified that the price stated in the letter of
May 2 was fixed in order to assist appellant in securing a bank release.
(2) Appellant clearly understood that respondent's interest in the equipment was for
purposes of resale; that delivery of the equipment to Los Angeles was therefore essential; that
bank consent to such delivery in writing was required by the terms of his mortgage. In a letter
to respondent dated March 25, 1949, the bank advised relative to the mortgaged equipment
and the balances due: We want to be understood that all of these should be paid for direct to
the Nevada Bank of Commerce before they are moved from the State of Nevada.
(3) Respondent contends that its letter of May 2 constituted a mere offer. The letter was
never delivered to the bank by respondent. By including in that letter space for bank
acceptance of the proposition as stated, it apparently attached some importance to such
acceptance. The proposition was never accepted by the bank.
(4) The letter of May 2 was drawn and signed by respondent in Los Angeles in the
presence of appellant.
respondent in Los Angeles in the presence of appellant. Appellant was given a signed copy.
At the same time appellant executed a written authorization to respondent to apply on
appellant's mortgage any money due him. Within a day or so, a representative of respondent
called at the bank, discussed the transaction, showed the bank the letter of May 2 but did not
deliver it to the bank. A few days later, learning that respondent had not yet delivered the
original, appellant delivered his copy to the bank. The Cram authorization was mailed to the
bank by respondent, but was accompanied by another letter under date of May 12, 1949,
which contained this statement: * * * in reference to the Terra Cobras of Mr. Crams, Wes
has asked me to state that these units were priced two months ago, when the Los Angeles
Airport job was just starting. Mr. Crams could not get the release on them, and as time passes
this equipment has dropped considerable in price. Last week Mr. Durston was OFFERED
some Cobras that were practically new for less than $10,000.00, therefore, that makes Roy
Crams units way out of price, as they are not in good shape. But in order to help Mr. Crams
we will still attempt to sell them for whatever can be gottenand if the purchaser wants them
guaranteed, as this is the way we sell most of our equipment, we will fix and rebuild them
and send the NET PROCEEDS on up to you. In other words Wes does not want to go in the
hole on the straight expense of parts and labor. Therefore, I will enclose the agreement signed
by Mr. Crams on May 2nd, 1949, but do NOT use it as a basis for future computations, as it is
impossible to get a full $10,000.00 at present for the Cobra's. And we break even on the 2U
cat, at this price.
(5) Delivery of the equipment to Los Angeles was made on or about June 12, 1949: (one
month after the letter of May 12 offering to sell for whatever can be gotten). The bank
never gave written consent to delivery. While appellant contends that the bank authorized
such delivery by telephone, the record casts doubt on such contention.
authorized such delivery by telephone, the record casts doubt on such contention. The day
following delivery the bank by telephone instructed respondent to hold the equipment for the
bank. As to his intention, the bank manager testified: By the Court: What did you mean
when you told Mr. Durston to hold the property for your account, did you mean hold the
property or hold the proceeds [of sale of the property]? A. Hold the property.
[Headnote 3]
In our view, when the letter of May 2 is considered in the light of the evidence specified, it
cannot be said conclusively to demonstrate the existence of a contract. By its very words it
contemplates resale of the equipment by respondent before payment of the sums due. It
clearly, although tacitly, contemplates action by the bank releasing the equipment for sale by
respondent. Under the circumstances it cannot be said that the verdict of the jury was without
substantial support or was clearly wrong.
The verdict and judgment accordingly are sustained upon the first assignment of error.
Appellant's second assignment of error is that the trial court erred in refusing to instruct
the jury as follows: The buyer is deemed to have accepted the goods when he intimates to
the seller that he has accepted them, or when the goods have been delivered to him, and he
does any act in relation to them which is inconsistent with the ownership of the seller, or
when, after the lapse of a reasonable time, he retains the goods without intimating to the
seller that he has rejected them.
[Headnotes 4, 5]
The instruction was taken verbatim from the Uniform Sales Act, being section 6782,
N.C.L.1929. It can hardly be denied that, so far as it goes, it is a correct statement of the law.
In our view, however, the giving of the instruction would have proved confusing and
misleading to the jury and was properly refused.
to the jury and was properly refused. In Gray v. Chicago, R. I. & P. Ry. Co., 160 Iowa 1, 139
N.W. 934, 937, it is stated: The trial court is not bound to submit every requested instruction
which may be unobjectionable as an abstract legal proposition. This is especially true where
the court has sufficiently covered the point in its own charge, or where the giving of it may
tend to mislead or confuse rather than enlighten the jury.
The section from which the instruction is taken is one from that portion of the act dealing
with performance of a contract of sale. Not only does it contain, without benefit of definition
or explanation, many words and phrases of peculiar legal significance (see: Mirodias v. S. P.
Co., 38 Nev. 119; 145 P. 912), but standing alone and removed from the enlightening context
of the remaining sections of this portion of the act, it cannot be said to constitute a full and
clear statement of the applicable law. This is demonstrated by the fact that the section
immediately following provides that acceptance of the goods shall not in itself wipe out any
breach of warranty.
The trial court is sustained upon this assignment of error.
[Headnote 6]
Appellant's last assignment of error relates to the matter of costs. Written judgment was
filed in this matter the afternoon on which the verdict was rendered and included judgment
for $347.10 costs. A memorandum of costs was filed simultaneously with the judgment.
Appellant contends that obviously costs had not been settled and the judgment was premature
in its allowance. The record shows, however, that a motion to retax costs was subsequently
made and an order entered granting the motion in part. It is clear that if the court erred its
error was corrected and cannot now be held other than harmless.
The judgment and order denying motion for new trial are affirmed with costs.
December 13, 1951.
Per Curiam:
Rehearing denied.
____________
68 Nev. 511, 511 (1951) Barlow and Truett v. Western Pacific R.R. Co.
K. C. BARLOW and FRANK TRUETT, Appellants, v. WESTERN PACIFIC
RAILROAD CO., Respondent.
No. 3675
December 17, 1951. 238 P.2d 901.
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Action by K. C. Barlow and Frank Truett against Western Pacific Railroad Co. for
damages sustained by loss of hay, pasturage and damage to land as result of fire allegedly
started by defendant. From a judgment for defendant and denial of plaintiffs' motion for new
trial, plaintiffs appealed. On motion to strike transcript, judgment roll and all instruments
constituting bill of exceptions, and motions to dismiss appeal from judgment and from order
denying new trial, the Supreme Court, Eather, J., held that under statute providing that one
notice of appeal is sufficient on appeal from denial of motion for new trial and appeal from
judgment, appeals so taken must be regarded as separate appeals, and jurisdictional
requirements must be satisfied as to each, and that consequently mere fact of filing joint
notice of appeal from judgment and order, within time for appeal from order, did not entitle
appellants to maintain appeal from judgment when same was not taken within six months
statutory period.
Motion to dismiss the appeal from the judgment granted.
Motion to dismiss the appeal from order denying new trial denied.
Motion to strike the record granted save as to the documents constituting the
judgment roll.
George F. Wright, of Elko, for Appellants.
Milton J. Reinhart, and Orville R. Wilson, both of Elko, for Respondent.
Under statute providing that appeal from judgment and from order denying motion for a new trial may be
taken by filing of single notice of appeal, appeals from judgment and order are still regarded as separate
appeals, and jurisdictional requirements must be satisfied as to each, and mere fact that joint notice of
appeal from judgment and order was filed within time for appeal from order did not entitle appellants to
maintain appeal from judgment when same was not taken within six-month statutory period.
N.C.L.1931-1941 Supp., secs. 9385.60, 9385.61, 9385.81.
Where appellants had deposited cash with clerk of court in amount necessary for appeal bond, that clerk
had, prior to noticing of motion to dismiss, converted cash into certified check did not render deposit by
appellants insufficient, since loss of the cash on or after its conversion could not be attributed to them.
Under statute providing that certified transcript may be served and filed, and when so filed shall be and
constitute the bill of exceptions of the proceedings relating to point or points involved and provision that
when transcript is not served and filed, then bill of exception shall be based and be prepared upon record of
proceedings made up in specified manner, both timely filing of transcript and timely service are
jurisdictional. N.C.L.1931-1941 Supp., secs. 9385.60, 9385.61, 9385.81.
Where court reporter, after inquiring of respondent's counsel whether counsel desired to purchase
transcript had, when counsel had indicated that he was undecided as to whether he desired transcript, left
certified copy of transcript in counsel's office within statutory time for service, there was no service of
transcript within time prescribed by statute, since service must be made under authority of other party to
controversy in order that he might be charged with responsibility therefor. N.C.L.1931-1941 Supp., secs.
9385.60, 9385.61, 9385.81.
5. Notice.
Service is in effect, form of notice to person served that document served is the precise one upon which
other party intends to rely for particular purposes. N.C.L.1931-1941 Supp., secs. 9385.60, 9385.61,
9385.81.
OPINION
Several motions were duly noticed, argued and submitted to the court. They include (1)
respondent's motion to dismiss the appeal from the judgment, (2) respondent's motion to
dismiss the appeal from the order denying motion for a new trial, (3) respondent's motion to
strike the record.
The appeals are: (1) from a judgment made and entered on the 17th day of October, 1950,
in favor of the respondent and against appellants; (2) from order denying a new trial, made on
February 23, 1951.
The action was commenced in the Fourth judicial district court by the plaintiffs, appellants
herein, for damages sustained for loss of hay, pasturage and damage to land as the result of a
fire. The plaintiffs, appellants herein, claimed that the fire was started by the defendant,
respondent herein. A trial was had before the court without a jury, and the decision was
rendered for the defendant.
The plaintiffs moved for a new trial. The motion was denied.
Findings of fact and conclusions of law and judgment were made and entered. The
judgment was against the plaintiff, K. C. Barlow, and in favor of the defendant. Judgment has
not been rendered against the plaintiff, Frank Truett.
1. The motion to dismiss the appeal from the judgment.
It appears that judgment in favor of respondent, defendant below, was rendered August 31,
1950 by oral pronouncement from the bench. On October 17, 1950 formal written judgment
was filed. On February 23, 1951 the court entered its order denying appellants' motion for a
new trial. On April 26, 1951, this appeal was taken.
It is thus clear that by the time the appeal was taken, more than six months had elapsed,
not only from rendition of the judgment, but from its formal entry.
more than six months had elapsed, not only from rendition of the judgment, but from its
formal entry. The appeal consequently was taken too late. (Section 9385.60, N.C.L.1929,
Supp. 1931-1941.)
[Headnote 1]
The appeal from judgment and from order denying new trial was taken by the filing of a
joint notice of appeal pursuant to the provisions of sec. 9385.61, N.C.L.1929, Supp.
1931-1941. Appellants argue that this section permits the taking of a joint appeal and that
since the appeal was taken within the time provided for appealing from the order, the joint
appeal in its entirety must be regarded as timely taken. This, however, is not the effect of the
statute. It simply permits the filing of a joint notice should appellants so desire and the
circumstances permit. The appeals must be regarded as separate appeals. The jurisdictional
requirements must be satisfied as to each. Kondas v. Washoe County Bank, 50 Nev. 181, 190,
254 P. 1080.
As stated by this court in Mellan v. Messenger, 48 Nev. 235, 239, 228 P. 1095, 1096:
To give our statute the interpretation contended for would result in giving a party two
opportunities to appeal from the judgment, and greatly delay the perfecting of the appeal.
The motion to dismiss must be granted.
(2) The motion to dismiss the appeal from the order denying motion for a new trial.
[Headnote 2]
Respondent contends that neither appeal is supported by a sufficient bond in that at the
time of noticing its motion herein the clerk of this court had in his possession no bond and no
cash in lieu thereof but only a certified check in the sum of $600. It appears, however, that
appellants had deposited cash in this amount with the clerk of the district court. The certified
check was secured by that officer as a convenient means of transmitting the cash to the clerk
of this court. We need not decide whether a certified check under our statutes relating to
appeal bonds would be the equivalent of cash.
not decide whether a certified check under our statutes relating to appeal bonds would be the
equivalent of cash. It is clear that appellants fulfilled all requirements of the statute applicable
to them. Loss of the cash on or after its conversion could not be attributed to them.
This motion must be denied.
(3) The motion to strike the record.
[Headnote 3]
This motion is based upon the ground that the record was not served upon the respondent
within the time required by law. Appellants contend, first, that such requirement is not
jurisdictional; and second, that service was in fact made.
Section 9385.81, N.C.L.1929, Supp. 1931-1941, subdivision (1) provides:
A transcript of the proceedings, certified by the court reporter, appointed by the court,
under authority of law, or by agreement of the parties to be a full, true and correct transcript
thereof, may be served and filed, and when so filed shall be and constitute the bill of
exceptions of the proceedings relating to the point or points involved, as therein set forth,
without further stipulation or settlement by the court. * * *
Subdivision (2) provides:
When the transcript of the proceedings, as provided in subdivision (1) of this section, is
not served and filed as the bill of exceptions of the proceedings relating to the point or points
involved upon such proceedings, then the bill of exceptions shall be based and be prepared
upon a record of the proceedings made up as follows: * * * (Emphasis supplied.)
Appellants argue that while this court has held timely filing to be jurisdictional, there is no
holding that timely service is jurisdictional as well. Under the language of the statute,
however, the two are stated in the conjunctive and this court has frequently and clearly
indicated that both, in the conjunctive, are jurisdictional. McGill v. Lewis, 61 Nev. 28, 32,
111 P.2d 537, 539, 116 P.2d 5S1, 11S P.2d 702; Craig v. Harrah, 65 Nev. 294, 195 P.2d
6SS; Dillon v. Dillon, 67 Nev. 42S, 220 P.2d 213; Graff v. Shipman Bros. Transfer Co., 67
Nev. 610
P.2d 581, 118 P.2d 702; Craig v. Harrah, 65 Nev. 294, 195 P.2d 688; Dillon v. Dillon, 67
Nev. 428, 220 P.2d 213; Graff v. Shipman Bros. Transfer Co., 67 Nev. 610, 222 P.2d 497.
Such is our holding.
As to the facts of service, the record on this motion discloses that by order of the trial court
the time within which the bill of exceptions might be served and filed was extended to April
6, 1951; that on or about March 31, 1951, the trial court reporter called at the office of
counsel for respondent with a copy of the transcript to ascertain whether counsel wished to
purchase it; that counsel was undecided and the reporter left the copy in counsel's office
reception room on top of a file cabinet; that in so leaving it, he acted without authority or
instructions from appellants' counsel and with no intention of effecting service; that his
intention was solely to sell it; that later he returned to the office of respondent's counsel with
copies of certain documents supplied him by appellants' counsel, which he inserted into the
transcript in order to render it a complete copy of appellants' record; that on April 7, 1951
respondent was served with a notice that the bill of exceptions had been filed; that on April
13, 1951, the reporter took the copy of the record away upon being advised by respondent's
counsel that he did not desire to purchase it.
[Headnotes 4, 5]
Thus a copy of the transcript had been left at the office of respondent's counsel within the
time provided for service. The attention of counsel was drawn to it. It was there available for
examination by counsel. Appellants contend that this is sufficient to constitute service. With
this view we are unable to concur.
Service must have some legal significance. It is, in effect, a form of notice to the person
served that the document served is the precise one upon which the other party intends to rely
for his particular purposes. Certainly no such notice can here be construed from the fact that
the court reporter had left the transcript in counsel's office.
counsel's office. The purpose for which it was left was clearly not that of service and counsel
would have no way of knowing that appellants intended to rely upon it in taking their appeal.
Moreover, the person making service should do so under authority of the other party in order
that that party might be charged with responsibility for the document served. In this case the
reporter had no authority whatsoever to represent appellants in making service or to bind
appellants in any respect by the leaving of the copy of the transcript.
In our view there was no proper service of the transcript within the time provided by law.
The motion to strike must be granted, as to all of the record save the documents constituting
the judgment roll. It is accordingly ordered as follows:
The motion to dismiss the appeal from the judgment is granted.
The motion to dismiss the appeal from the order denying new trial is denied.
The motion to strike the record is granted, save as to the documents constituting the
judgment roll.
No costs are awarded.
January 31, 1952.
Per Curiam:
Rehearing denied.
(Reporter's Note: See 69 Nev. ....., for per curiam opinion, affirming trial court.)
____________
68 Nev. 518, 518 (1951) Union Lead Mining & Smelter Co. v. Dachner
UNION LEAD MINING AND SMELTER COMPANY, a Nevada Corporation, Appellant, v.
R. H. DACHNER, Doing Business Under the Firm Name and Style of Pacific
Machinery & Engineering Company, Respondent.
No. 3578
December 18, 1951. 239 P.2d 248.
department No. 2.
Action by R. H. Dachner, doing business under the firm name and style of Pacific
Machinery & Engineering Company, against Union Lead Mining & Smelter Company, a
Nevada corporation, to recover damages for breach of contract. From an order dismissing the
action on plaintiff's motion, defendant appealed. The Supreme Court, Merrill, J., held that
conduct of the vice president of defendant in entering into a settlement had not been properly
repudiated by the corporation, and had been ratified.
Affirmed.
John R. Ross, of Carson City, and Leslie Riggins, of Reno, for Appellant.
Ernest S. Brown, of Reno, for Respondent.
1. Corporations.
Evidence sustained finding that plaintiff in contract actions against corporation and purchaser of
corporation's assets had legal reason to believe that corporation's vice president, secretary-attorney and
purchaser's attorney had authority to enter into settlement agreement.
2. Corporations.
Where corporation's vice president and junior attorney, and attorney for purchaser of corporation's assets,
entered into settlement agreement affecting both actions against corporation and purchaser, and
corporation's senior counsel summoned majority of officers and board members who repudiated dismissal
of one of the actions, but no demand was made by plaintiff in second action for return of money paid and
no tender of benefits under that contract was made, vice president's conduct was
ratified by corporation's failure to demand rescission of entire agreement.
tender of benefits under that contract was made, vice president's conduct was ratified by corporation's
failure to demand rescission of entire agreement.
3. Corporations.
Where purchaser of corporation's assets had agreed to sell production certificates of corporation, and
parties to that contract brought action against purchaser for violation of agreement, and corporation under
agreement for sale of assets retained primary obligation of retiring production certificates, agreements
settling action against purchaser for violation of agreement for sale of production certificates was for
benefit of corporation.
Principal cannot separate transaction and ratify part that is beneficial to him while repudiating remainder
on ground that agent did not have authority, but if he, of his own election with full knowledge, accepts and
retains benefits of unauthorized transaction, he must also accept part that is not beneficial and will be held
to have ratified the whole.
Where junior attorney for corporation dismissed appeal, and affidavit filed in opposition to reinstatement
disclosed a purported settlement, but motion was not argued to supreme court, and only question presented
was whether authorized dismissal had in fact been accomplished, and order of reinstatement recited that
reinstatement would result in less danger of injustice without passing upon authority of junior counsel to
dismiss appeal, and there was no motion by plaintiff for dismissal of appeal on ground of settlement,
plaintiff did not by continuing appeal on the merits abandon or waive its contentions relating to effect of
settlement.
OPINION
This is an appeal from an order of the trial court dismissing the action below. To state the
matter conservatively, the case involves many confusing and unusual aspects. The parties will
here be designated by name: appellant as Union; respondent as Dachner. Dachner was the
plaintiff below in an action for contract damages. Union was the defendant.
The first unusual aspect of the case is that the action of the trial court with which we are
here concerned was taken pursuant to motion of the plaintiff Dachner to dismiss his own
action.
taken pursuant to motion of the plaintiff Dachner to dismiss his own action. This appeal from
that order is taken by the defendant Union.
These unusual circumstances are explained by circumstances still more unusual. The
appeal before us is the second appeal taken by Union in the course of this litigation. Earlier,
Dachner secured judgment below and Union thereupon appealed from that judgment to this
court. Pending that appeal Dachner executed upon property of Union and thereby, pending
final determination of the matter, secured full satisfaction of his judgment. On appeal from
the judgment, this court reversed the trial court and remanded the matter for a new trial;
(Dachner v. Union Lead Mining and Smelter Co., 65 Nev. 313, 195 P.2d 208.) The dismissal
of the action below followed, Dachner thereby, and the opinion of this court to the contrary
notwithstanding, retaining the benefits of his execution upon the reversed judgment.
These unusual circumstances, in turn, are explained and justified by Dachner's contention
that, pending the first appeal (that from the judgment), the action was settled by accord and
satisfaction, under the terms of which Dachner retained the fruits of his execution. The
motion to dismiss was presented below and was granted by the trial court upon the ground
that such settlement rendered the action moot.
Union contends that if any settlement agreement ever was reached, it was without
authority on the part of anyone to bind Union. Here we have reached the heart of the present
controversy. Union does not question the procedure followed in the trial court and no
questions involving such procedure are before us. Union's position is simply that dismissal
was not warranted under the facts. For proper consideration of that position, the outline of
perplexities heretofore set forth must be somewhat elaborated.
Dachner secured judgment in the sum of $25,467.07 on June 16, 1947. The month
following, Union took its first appeal to this court. The succeeding events may be more
easily assimilated if stated under separate headings.
be more easily assimilated if stated under separate headings.
The Imperial contract. On August 27, 1947, Union entered into a contract with Imperial
Lead Mines, Inc. for sale to Imperial of all Union's mining properties and assets. Union was
to receive 40 percent of the capital stock of Imperial and a note for $200,000. The agreement
recognized that Union had certain obligations which constituted liens against its properties
and which were to be discharged by Union. If not so discharged, then they might be paid by
Imperial and such payments credited against sums due to Union. Specified as one of these
obligations was the Dachner judgment then pending on appeal. Also specified were certain
production certificates then outstanding, being monetary obligations secured by trust deed
and also constituting charges against future production of the mine.
The Dachner levy of execution. On November 20, 1947, Dachner successfully levied
execution on Union's bank account in satisfaction of his judgment then pending on appeal to
this court.
The Cowden-Haskell action. Certain of Union's production certificates were held by one
Cowden and one Haskell, both being Union stockholders. Imperial entered into a contract
relative to acquisition of these certificates and stock holdings. On November 21, 1947,
Cowden and Haskell brought action against Imperial based on this agreement and asking
judgment in the sum of $24,600. An attachment was levied against Imperial's bank account.
While the action was brought against Imperial and was based on its contract, still under the
terms of Union's contract with Imperial, the retiring of the production certificates remained
primarily Union's obligation.
Preliminary settlement discussions. After commencement of this action, conferences were
held between representatives of Union and Imperial. It was decided that rather than oppose
the action, the certificates of Cowden and Haskell would be bought up by Union on the most
favorable terms that could be secured by negotiation.
favorable terms that could be secured by negotiation. A cashier's check for $16,000 was
secured by Union made payable to its president, Somers. It was then decided that in
negotiations with Cowden and Haskell, Union would be represented by its vice-president,
Blackwood. At the insistence of Ralph Morgali, Imperial's attorney, the cashier's check was
then exchanged for one payable to Blackwood in order to assure and demonstrate
Blackwood's authority to act for and bind Union in the negotiations and settlement.
The settlement agreement. The settlement negotiations were held November 25, 1947, in
the office of Brown & Wells, Reno attorneys for Cowden and Haskell and also attorneys for
Dachner. Present were both Brown and Wells, Blackwood and Morgali. An agreement was
reached for settlement in the sum of $20,235, being more than $4,000 less than the amount
sought by the action. According to the affidavits and testimony of Brown and Wells as given
before the trial court on motion to dismiss, in consideration of the settlement at that figure it
was agreed by Blackwood that the Dachner action likewise be deemed settled for the sums
secured on execution.
The settlement carried through. The following day, Morgali returned to the office of
Brown & Wells to carry out the terms of the settlement. He presented the Blackwood check
and a second check for the balance, $4,235. He received the production certificates and stock
certificates of Cowden and Haskell. A telephone call was then placed by Brown to W. E.
Baldy, Union's secretary, member of its board of directors and attorney, in Carson City,
Nevada, advising Baldy that the pending appeal from the Dachner judgment was to be
dismissed. Baldy confirmed the fact that the settlement agreement included settlement of the
Dachner action by checking with Blackwood. O. M. Floe, a third member of Union's board of
directors, was also consulted and approved the settlement and dismissal. Baldy then
dismissed the appeal.
appeal. Cowden and Haskell then dismissed their action with prejudice and their attachment
was released.
Reinstatement of the appeal. In the Dachner action, Union had been represented by three
attorneys: Baldy, Wm. S. Boyle of Reno, and Robert E. Berry of Virginia City, with Boyle
acting as senior counsel. During the events so far related, Boyle had been seriously ill, had
been hospitalized and was then convalescing at his home. He had written Union asking to be
relieved of his duties as counsel. A copy of this letter had been received by Baldy at the time
he was instructed to dismiss the appeal. Dismissal of the appeal, however, was directly
contrary to Boyle's previous advice to Union. On hearing of the action taken, Boyle
summoned a majority of Union's officers and board members who thereupon, amongst
themselves, repudiated the dismissal (Baldy and Floe reversing themselves in this regard),
repudiated Blackwood's action in including settlement of the Dachner action as consideration
for settlement of the Cowden-Haskell action against Imperial, and instructed Boyle to move
this court for reinstatement of the appeal. No demand ever was made of Cowden or Haskell
for return of the money paid. No tender back of the production certificates or stock
certificates ever was made. Boyle again became active as senior counsel for Union and the
motion for reinstatement was filed and duly made to this court. In affidavits filed in
opposition to the motion, the contended settlement of the action was disclosed. It was not,
however, argued to this court. The question presented by the motion was not whether grounds
for dismissal existed. The sole question was whether an authorized dismissal had in fact been
accomplished. This court ordered reinstatement of the appeal. In doing so, however, it clearly
did not decide that grounds for dismissal did not exist. The order for reinstatement stated:
Without passing upon the general proposition of law as to the authority of junior counsel to
dismiss an appeal contrary to the wishes of senior counsel [which this court recognized to
be the issue confronting it] * * * we are of the opinion that the reinstatement of the
appeal will result in less danger of injustice to the parties."
[which this court recognized to be the issue confronting it] * * * we are of the opinion that
the reinstatement of the appeal will result in less danger of injustice to the parties. No
reference whatsoever was made to the contended settlement.
So much for the factual background.
Union's first contention is that the record demonstrates lack of authority in Blackwood to
bind Union by his settlement of the Dachner action. Union emphasizes in this regard that his
acts were taken without the formal sanction of Union's board of directors. It does not appear,
however, that any formal board action whatsoever was taken prior to the settlement
conference. If Blackwood was without actual formal authority to settle as he did, he was
likewise without actual formal authority to settle in any manner whatsoever. The fixing of any
limits upon his authority by formal board action was done, if at all, by way of partial
ratification and wholly after the fact.
With reference to his authority, the trial court in dismissing the action below apparently
proceeded upon the theory of ostensible authority and specifically found as follows: The
Court finds that the plaintiff herein and the Cowden-Haskell people did have legal reason to
believe that Blackwood and Morgali and Baldy had the authority to enter into the agreement.
[Headnote 1]
It cannot be denied that there is substantial evidence in the record to support this finding.
Blackwood was armed with a cashier's check to his own order supplied by Union for the
purposes of settlement. Morgali, Imperial's attorney, did not question Blackwood's authority
to proceed as he did and thus gave indication (at least so far as Imperial was concerned) that
he concurred in Blackwood's actions and that Blackwood was proceeding within the scope of
his authority. Morgali testified before the trial court that he had conveyed to Brown and Wells
the fact that Imperial desired to have all litigation cleared up so that they could get to mining;
that he "was interested from Imperial's point of view in making a settlement so there
would be no further litigation."
that he was interested from Imperial's point of view in making a settlement so there would
be no further litigation. Brown and Wells had every right to assume that both Imperial and
Union were interested in disposing of the Dachner litigation. Certainly they could hardly be
expected to possess greater knowledge than Morgali's as to Blackwood's actual authority, nor
possess greater insight than his into the intentions of Union's officials. Their right to rely
upon Blackwood's apparent authority is further strengthened by the fact that neither Baldy nor
Floe questioned it until their conference with Boyle.
[Headnote 2]
Even should there be question as to factual support for such a finding, however, it should
be clear that Blackwood's conduct had not been properly repudiated and had, therefore, in
effect been ratified by Union's failure to demand rescission of the entire agreement as
unauthorized. To permit Union to ratify Blackwood's action in part only and to retain in
whole the benefits thereof would be to permit it to rewrite the settlement agreement to suit
itself.
[Headnote 3]
That the contract, while in settlement of an action against Imperial, was for the benefit of
Union cannot be denied. The trial court had before it the statement of Union's president,
Somers, to such effect. The production certificates secured thereby were Union's obligations
which Union was required to retire and upon consummation of the settlement, Union treated
those obligations as no longer valid or outstanding. Union's stock interest in Imperial and its
$200,000 note both became enhanced in value by removal of the liens securing the
obligations. It is clear that Union benefited from the settlement and retained the benefits
thereof while purporting to repudiate the agreement in part. The settlement must, then, be
taken to have been ratified in whole. Alexander v. Winters, 24 Nev. 143, 50 P. 798; Federal
Mining & Engineering Co. v. Pollak, 59 Nev. 145, 85 P.2d 1008, 1012; See: concurring
opinion Defanti v. Allen Clark Co.,
Co., 45 Nev. 120, 128, 198 P. 549, 552; Restatement of the Law, Agency, sec. 99.
[Headnote 4]
In Federal Mining & Engineering Co. v. Pollak, supra, [59 Nev. 145, 85 P.2d 1012] this
court quoted with approval from 2 Fletcher Cyclopedia Corporations as follows: This rule is
based upon the doctrine of ratification in toto, under which a principal must either ratify the
whole transaction or repudiate the whole. He cannot separate the transaction and ratify the
part that is beneficial to him, repudiating the remainder; but if he, of his own election and
with full knowledge, accepts and retains the benefits of an unauthorized transaction, he must
also accept the part that is not beneficial, and will be held to have ratified the whole. In some
states this rule is adopted by statute.
As the court there stated: We have no such statute in this state, but in view of the
decisions heretofore rendered by this court, the question as to the applicability of the rule to
the facts of this case is not an open one in our jurisdiction.
Union next presses upon us the action of this court in reinstating the appeal as res judicata
upon the question of settlement. As we have already pointed out, however, the order
reinstating the appeal was not based upon lack of grounds for dismissal. This court was there
concerned only with the question whether the appeal had properly been dismissed by one in
authority.
[Headnote 5]
True, if the action had become moot by virtue of the settlement, it was moot when this
court handed down its opinion upon the judgment. Thus this court undoubtedly has been
placed in the somewhat quixotic position of striving mightily to produce a futility. True,
Dachner might have moved this court for dismissal of the appeal upon the ground of
settlement and thus specifically directed the attention of the court to the moot status of the
matter.
of the matter. However, if the fact of settlement was not presented to the court as a basis for
action, neither was it concealed from the court. Thus it can hardly be said that Dachner had
abandoned or waived his contentions in relation thereto and his continuing with the appeal
upon the merits cannot be said to have operated to nullify the settlement. Mills County v.
Burlington & Missouri River Railroad Co., 107 U.S. 557, 27 L.Ed. 578, 2 S.Ct. 654 (in which
case the Supreme Court of the United States found itself in a situation substantially identical
to that confronting us). Under the circumstances it would ill befit us to read into the order of
reinstatement an effectiveness never intended and contrary to its express language for the sole
purpose of breathing life into the controversy over which this court was then laboring.
The order of the trial court is affirmed with costs.
____________
THE STATE OF NEVADA on the Relation of H. J. CRUMMER, Relator, v. THE FOURTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the County
of Elko, and the Honorable MERWYN H. BROWN, Judge Thereof, Respondents.
No. 3688
December 18, 1951. 238 P.2d 1125.
Original proceeding by the State of Nevada on the relation of H. J. Crummer for writ of
prohibition directing the Fourth Judicial District Court of the State of Nevada in and for the
County of Elko, and the Honorable Merwyn H. Brown, Presiding Judge thereof, to refrain
from further proceedings in an action before respondent court. The Supreme Court, Eather, J.,
held that affidavit for publication of summons which was based on hearsay thrice
compounded and which did not show that defendant was absent from state at time of
issuance of order for publication was insufficient to support an order for publication of
summons, and writ of prohibition would issue.
based on hearsay thrice compounded and which did not show that defendant was absent from
state at time of issuance of order for publication was insufficient to support an order for
publication of summons, and writ of prohibition would issue.
Writ issued.
Hawkins, Rhodes & Hawkins, Clarence Hawkins, and John Belford, all of Reno, for
Relator.
Woodburn, Forman & Woodburn, Gordon R. Thompson, of Reno, and Orville R. Wilson,
of Elko, for Respondents.
1. Process.
Where constructive service of summons is relied upon, a strict compliance with statute is required.
N.C.L.1931-1941 Supp., secs. 8582, 8583.
2. Process.
Statutes providing for constructive service, being in derogation of common law, must be strictly
construed. N.C.L.1931-1941 Supp., secs. 8582, 8583.
3. Process.
Under statute authorizing service by publication and providing in effect that proof of defendant's
departure from the state relieves plaintiff from necessity of showing due diligence to locate defendant
within the state, facts establishing defendant's absence should give reasonable assurance that he was absent
from the state at time order for publication of summons is sought. N.C.L.1931-1941 Supp., sec. 8582.
4. Evidence.
It is common knowledge that information passing through a chain of informants tends to lose accuracy.
5. Process.
If hearsay is to be deemed acceptable to show defendant's absence from the state in order that publication
of summons may be had, the court, at the very least, should be satisfied that such evidence is the best
evidence available under the circumstances and that there is sufficient reason to regard it as reliable.
N.C.L.1931-1941 Supp., sec. 8582.
6. Process; Prohibition.
Affidavit for publication of summons which stated that affiant is informed and believes that home of
defendant's father was contacted by deputy sheriff who was advised that defendant had departed from the
state and that upon such information the affiant believes that defendant has departed from the state,
and which gave no dates, did not show that defendant was absent from the state at
time order for publication of summons was signed, and was based upon hearsay
thrice compounded, and was insufficient to warrant order for publication of
summons, and writ of prohibition directing the trial court to refrain from further
proceedings in the action would issue. N.C.L.1931-1941 Supp., secs.
from the state, and which gave no dates, did not show that defendant was absent from the state at time order
for publication of summons was signed, and was based upon hearsay thrice compounded, and was
insufficient to warrant order for publication of summons, and writ of prohibition directing the trial court to
refrain from further proceedings in the action would issue. N.C.L.1931-1941 Supp., secs. 8582, 8583.
OPINION
In this matter an alternative writ of prohibition was issued directing the respondents to
refrain from further proceedings in an action before respondent court.
Relator challenges the jurisdiction of respondent court upon the ground that due and legal
service of process upon the defendant in the pending case has not been made. The validity of
the service of process has been challenged upon a great number of grounds. Petitioner
contends that the affidavit for publication of summons is defective in many respects, that the
order for publication of summons is defective, and that the service attempted was in itself
defective.
It appears from the record that relator is a resident of the state of Nevada; that he was
served by personal delivery of summons and copy of complaint in the state of California
while temporarily absent from the state of Nevada; that the action in which he was served is
one in personam. Under these circumstances the applicability of the case of Milliken v.
Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 281, is raised, relator contending that in the
absence of a statute expressly providing for the foreign service of residents of the state in an
action in personam, Milliken v. Meyer, supra, cannot apply; that the provisions of our
sections 8582 and 8583, N.C.L. 1931-1941 Supp., cannot constitutionally be construed to
permit such service of process.
A careful examination of all the points raised by relator discloses that upon one point at
least, that of the sufficiency of the affidavit, his position must be sustained.
sufficiency of the affidavit, his position must be sustained. In the light of our view on this
matter no one of the other points raised need be discussed in this opinion.
[Headnotes 1, 2]
Where constructive service of summons is relied upon, a strict compliance with the statute
is required. Coffin v. Bell, 22 Nev. 169, 37 P. 240, 58 Am.St.Rep. 783; Brockbank v. District
Court, 65 Nev. 781, 201 P.2d 299. Statutes providing for constructive service, being in
derogation of the common law must be strictly construed. Perry v. District Court, 42 Nev.
284, 174 P. 1058.
The affidavit for publication of summons is attacked upon the ground that it does not state
facts sufficient to justify the court in concluding that relator had departed from the state of
Nevada at the time the order for publication was signed.
Section 8582, N.C.L.1931-1941 Supp., in this respect, states:
When the person on whom service is to be made resides out of the state, or has departed
from the state, or cannot, after due diligence be found within the state, or conceals himself to
avoid the service of summons, and the fact shall appear, by affidavit, to the satisfaction of the
court or judge thereof, and it shall appear, either by affidavit or by a verified complaint on
file, that a cause of action exists against the defendant in respect to whom the service is to be
made, and that he is a necessary or proper party to the action, such court or judge may grant
an order that the service be made by the publication of the summons. * * *
The affidavit states as follows: That affiant is informed and believes that the home of R.
E. Crummer, the father of defendant, was contacted in Washoe County, Nevada, by a Deputy
Sheriff of Washoe County, Nevada, and that such Deputy Sheriff was advised that defendant
had departed from the state of Nevada; that upon such information your affiant believes and
therefore states the fact to be that defendant has departed from the state of Nevada and
conceals himself to avoid service of summons upon him; * * *"
from the state of Nevada and conceals himself to avoid service of summons upon him; * * *
Relator contends that an affidavit based upon hearsay is insufficient to support an order for
publication of summons. Respondent points out very persuasively that if the existence of
hearsay is sufficient to defeat an affidavit for this purpose, it would be substantially
impossible to secure an order for publication of summons based upon the departure of the
defendant from the state; that the only circumstances under which an order could be secured
under such a rule would be by the securing of an affidavit of one who had actually observed
the defendant crossing the state line.
It is not our purpose to establish a positive rule against the use of hearsay since in our view
circumstances may well justify a court's relying to some extent upon hearsay when proof of a
more positive character cannot reasonably be expected. However, the affidavit in the matter
before us is so clearly insufficient that we cannot but hold the order improperly made.
[Headnote 3]
In the first place no dates are given and the court would have no way of knowing how long
in advance of the signing of the order the information of departure from the state was
received or the supposed departure had taken place. When to this is added the fact that there
is nothing in the affidavit tending to show the nature or anticipated extent in time of the
supposed departure, little assurance is left that the defendant's absence continued at the time
the order was signed. A reading of the statute heretofore quoted discloses that proof of the
defendant's departure from the state in effect relieves the plaintiff from the necessity of
showing due diligence to locate the defendant within the state. If the requirement of due
diligence is thus to be avoided, the facts establishing the pertinent circumstances should give
reasonable assurance that those circumstances exist at the time the order is sought.
[Headnotes 4-6]
Furthermore, the affidavit is not based upon simple hearsay but upon hearsay thrice
compounded. The affiant (link number one in the chain of information) was informed by
some person unnamed (link number two) that a deputy sheriff (link number three) had
contacted the home of relator's father and had been advised by some person unnamed (link
number four) that relator had departed from the state. Certainly it is common knowledge that
information passing through such a chain of informants tends to lose accuracy. In no instance
was the name of the intervening source of information disclosed or any reason given why the
affidavit of such person was not available. No facts are stated to indicate the reliability of any
of the information given other than that one of the sources was a deputy sheriff. Thus the
court was wholly without ability to determine whether the person ultimately giving the
essential information of departure was in any position to know the facts. Certainly, if hearsay
is to be deemed acceptable in any case, the court at the very least should be satisfied that it is
the best evidence available under the circumstances and that there is sufficient reason to
regard it as reliable.
In Evarts v. Becker, 8 Paige (N.Y.Chancery) 506, it was held that an affidavit which states
merely that the deponent believed that the defendant resided in the state and that the subpoena
could not be served on him by reason of his concealment within the state or of his continued
absence from his place of residence, was not sufficient to support an order for publication.
The head-note to the decision states:
To obtain an order for publication against a defendant who resides in the state, but who is
absent therefrom or concealed within the same, the affidavit should state the place of
residence of the defendant, the particular circumstances of his absence and probable duration
thereof, and the names and residences, or other descriptions, of the persons from whom the
information of such absence or concealment was obtained; to enable the court to judge of
the necessity or propriety of proceeding against the defendant by a publication of the
notice, instead of a personal service of the subpoena."
absence or concealment was obtained; to enable the court to judge of the necessity or
propriety of proceeding against the defendant by a publication of the notice, instead of a
personal service of the subpoena.
See also: Note 37 L.R.A. (N.S.) 206.
As to the general necessity for the statement of probative facts rather than ultimate facts or
conclusions, it is stated in Mills v. Smiley, 9 Idaho 325, 76 P. 783, 787:
If, then, the affidavit submitted only states the ultimate and not the probative facts, the
plaintiff, instead of the judge, would be determining what constitutes due diligence' and the
other facts required, and there would be no reason or necessity for an order at all, but the
affidavit alone might serve that purpose.
Let the writ issue as prayed for.
____________

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