Nevada Reports 1922-1924 (47 Nev.) PDF

REHEARINGS
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Rehearings have been denied in the following cases since the sheets carrying the decisions
in this volume were printed:
Hegarty's Estate, July 1, 1924, p. 369.
Hegarty's Estate, July 1, 1924, p. 369.
Humboldt L. & C. Co. v. District Court, July 9, 1924, p,. 396.
Wing v. Wiltsee, July 11, 1924, p. 350.
47 Nev. 1, 1 (1922)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 47
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1923-1924
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47 Nev. 1, 1 (1922) Young v. Holman
No. 2552
YOUNG v. HOLMAN
August 20, 1922. 208 Pac. 871.
1. Appeal and ErrorErrors Appearing from Judgment Roll Considered Where Assignments Were Not Filed,
though upon Appeal Taken after Judgment on Merits.
An appeal will not be dismissed, but will be heard on the merits, concerning errors appearing from the
judgment roll where assignments were not filed after filing of record transcript, notwithstanding appeal
was taken after trial and judgment on the merits.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by Etta M. Young against James A. Holman and another. Judgment for plaintiff,
and defendants appeal. On motion to dismiss appeal. Motion denied. Petition for rehearing
denied.
Milton M. Detch, for Appellants:
There are two appeals. One is from judgment and the other from order denying motion for
a new trial. Nelson v. Smith, 42 Nev. 302. Motion to dismiss appeal is based upon fact that
assignment of errors was not filed within ten days after filing of transcript. The motion cannot
prevail, no assignment of error being necessary on appeal from judgment. Talbot v. Mack, 41
Nev. 245. The supreme court will pass upon judgment roll to determine errors, if any, which
appear upon face of judgment roll. Lockwood v. Marsh, 3 Nev. 138; In Re Quinn's Estate, 27
Nev. 174. Where appeal is from judgment roll alone, errors appearing upon face of judgment
roll need not be presented by assignment of errors. Smith v. Lucas, 43 Nev. 352, affirming
rule laid down in Talbot v. Mack, supra, and Miller v. Walser, 42 Nev. 497.
The allegation of good faith and absence of intent to defraud in answer of grantee defendant,
and not denied in reply, is admitted to be true. Stats. 1915, p. 193. A preferential transfer of
property cannot be declared fraudulent as to other creditors, although debtor in making it
intended to defeat other claims, and creditor had knowledge of such intention, if
preferred creditor did not actually participate in debtor's fraudulent purpose.
declared fraudulent as to other creditors, although debtor in making it intended to defeat other
claims, and creditor had knowledge of such intention, if preferred creditor did not actually
participate in debtor's fraudulent purpose. 20 Cyc. 472. A creditor violates no rule of the law
when he takes payment of security for his demand, although others are thereby deprived of all
means of obtaining satisfaction of their own equally meritorious claims. Wheaton v. Neville,
19 Cal. 46; Van Sickle v. Wells Fargo & Co., 105 Fed. 25.
John S. Sinai and Platt & Sanford, for Respondent:
The case having been disposed of on merits, in absence of any assignment of errors appeal
from judgment must be dismissed. Coffin v. Coffin, 40 Nev. 345. Talbot v. Mack and Miller
v. Walser are easily distinguishable from case at bar. In each of those cases the appeal was
from order sustaining demurrer to complaint and judgment thereon, while in instant case
appeal was taken after trial on the merits in district court. Smith v. Lucas, 43 Nev. 352.
By the Court, Ducker, J.:
This is a motion to dismiss an appeal taken from the judgment and order denying a motion
for a new trial. By stipulation of counsel it was heard in advance of a hearing on the merits.
The transcript of the record on appeal was filed in this court on the 7th day of April, 1922.
The notice of motion and motion to dismiss were served upon counsel for appellants on the
20th day of April and filed on the 21st day of April, 1922. The motion to dismiss is based
upon the ground that no assignment of errors has been served and filed within ten days after
the filing of the transcript of the record on appeal in this court, or at all. Appellants contend
that they are entitled to have considered such errors as may appear from the judgment roll
without any assignment thereof. In support of this contention they rely upon the rulings of this
court in Talbot v. Mack, 41 Nev. 245, 169 Pac. 25; Miller v. Walser, 42 Nev. 497
Nev. 245, 169 Pac. 25; Miller v. Walser, 42 Nev. 497, 181 Pac. 437, and Page v. Walser, 43
Nev. 422, 187 Pac. 509. In the first two cases it was held that it was unnecessary to assign
errors appearing on the face of the judgment roll, and this ruling was applied in the latter case
to errors appearing from a record consisting of the amended complaint, demand for change of
venue, affidavit in support of the motion, written stipulation, and the order appealed from,
upon the ground that such a record was substantially the same as the judgment roll.
In Talbot v. Mack and Miller v. Walser, the appeal was taken from a judgment rendered
after a demurrer to the complaint had been sustained and the appellants had declined to
amend.
Respondent takes the position that these decisions are not in point, for the reason that in
the present case there has been a trial and judgment upon the merits. It is also urged that this
court, in its decisions in Talbot v. Mack, supra, and Smith v. Lucas, 43 Nev. 348, 186 Pac.
674, has expressly restricted the application of the doctrine that errors appearing upon the
face of the judgment roll need not be assigned from cases where there has been a trial upon
the merits. We do not think that the language quoted from these cases to sustain this
contention is capable of such an interpretation. However, it clearly appears that it was not the
purpose of the court in either of these decisions to designate two classes of cases, in one of
which errors appearing from the face of the judgment roll could be considered on appeal
without an assignment of errors, while in the other class an assignment of such errors is
indispensable.
In Talbot v. Mack, the court merely sought to distinguish the case from Coffin v. Coffin,
40 Nev. 345, 163 Pac. 731, in which, as stated by the court in the former decision, the errors
were not contended for as pertaining to matters properly appearing in the judgment roll.
It is also apparent that the language of the court quoted by respondent from the case of
Smith v. Lucas to sustain her contention was employed to distinguish that decision from
the cases of Talbot v. Mack and Miller v. Walser, in respect to the fact that the error
contended for in the former case did not appear from the judgment roll.
There is no valid reason for limiting the rule dispensing with an assignment of errors as
established in Talbot v. Mack and adhered to in the other cases mentioned to cases where
the appeal has been taken in advance of a trial on the merits.
quoted by respondent from the case of Smith v. Lucas to sustain her contention was employed
to distinguish that decision from the cases of Talbot v. Mack and Miller v. Walser, in respect
to the fact that the error contended for in the former case did not appear from the judgment
roll.
There is no valid reason for limiting the rule dispensing with an assignment of errors as
established in Talbot v. Mack and adhered to in the other cases mentioned to cases where the
appeal has been taken in advance of a trial on the merits. The motion to dismiss the appeal is
denied.
It is so ordered.
On Petition for Rehearing
November 8, 1922.
Per Curiam:
Rehearing denied.
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No. 2552
YOUNG v. HOLMAN
July 3, 1923. 216 Pac. 174.
1. Appeal and ErrorOn Appeal on Judgment Roll Alone, Only Errors Appearing on Face
Thereof Considered.
On appeal on the judgment roll alone, only errors appearing on the face thereof can be considered.
2. PleadingDenial of Allegations of Answer Not Alleging Affirmative Defense Held
Unnecessary.
In suit to set aside a deed on the grounds of fraud, allegations that all the acts of the grantee, in
connection with making loans to grantor and the purchase of the property by her, were made in good faith
and without intent to defraud grantor's creditors, not constituting an affirmative defense to the action, a
reply thereto was unnecessary.
3. Fraudulent ConveyancesComplaint Not Insufficient for Failure to Allege Grantee's
Participation in Fraud.
In suit to set aside a deed for nominal consideration on the ground of grantor's fraud, the complaint held
not insufficient because it did not allege that grantee was a participant in the fraud claimed, it being
immaterial how innocent grantee was.
4. Fraudulent ConveyancesComplaint in Suit to Set Aside a Deed Held Sufficient.
To set aside a deed as fraudulent to grantor's creditors, a complaint which showed grantor's indebtedness
to plaintiff, a transfer of the property for nominal consideration during pendency of
action in which plaintiff obtained a judgment against grantor, made to defraud
plaintiff out of the satisfaction of such judgment, constituted a sufficient statement
of fact to maintain the action.
a transfer of the property for nominal consideration during pendency of action in which plaintiff obtained a
judgment against grantor, made to defraud plaintiff out of the satisfaction of such judgment, constituted a
sufficient statement of fact to maintain the action.
5. Appeal and ErrorOn Appeal on Judgment Roll Alone, Finding that Conveyance Was
Made to Defraud Creditors Assumed To Be Supported by Evidence.
In suit to set aside a deed alleged as fraudulent to grantor's creditors, finding of the trial court that
plaintiff was a creditor and that a conveyance was made to grantee without actual value consideration at all
commensurate with the value of the property will be assumed, on defendants' appeal on the judgment roll
alone, to have been supported by the evidence.
6. Appeal and ErrorOn Appeal on Judgment Roll Alone, Presumption that Requested
Findings Were Not Supported by Evidence.
On appeal by defendant on the judgment roll alone, it must be presumed that findings requested by
defendant were not established by evidence.
Suit by Etta M. Young against James A. Holman and another. From a judgment and decree
for plaintiffs, and from an order denying motion for new trial, defendants appeal. Affirmed.
Pratt & Sanford and John S. Sinai, for Respondent:
It is unnecessary in plea of this nature to charge codefendant or grantee with participation
in fraudulent acts, especially where conveyance was voluntary or for nominal consideration.
Threlkel v. Scott, 34 Pac. 851; Gustin v. Mathews, 70 Pac. 402; Hill, Trusts, 163.
An allegation that conveyance was made with the intent to hinder, delay, or defraud
creditors is sufficient, especially after judgment, in absence of demurrer (Bull v. Ford, 4 Pac.
1175), and even in face of special demurrer. Threlkel v. Scott, supra; Rountree v. Marshall,
59 Pac. 109.
A voluntary conveyance by husband, to his wife, which is intended or which tends to
defraud existing creditors of husband, cannot be upheld against such creditors. Gwynn v.
Butler, 28 Pac. 466; Bush & Mallett v. Helbing, 66 Pac. 967; Gustin v. Mathews, supra.
Mallett v. Helbing, 66 Pac. 967; Gustin v. Mathews, supra.
It would appear, from fact that no assignment of errors having been filed, that the court
cannot consider anything but judgment roll.
Milton M. Detch, for Appellants.
By the Court, Ducker, C. J.:
This case is a suit in equity to set aside a deed of conveyance upon the grounds of fraud
and to have a certain judgment declared a lien upon the property and premises described in
said deed. For convenience the parties will be referred to as designated in the court below.
Among other things it is averred in the complaint that on the 1st day of March, 1920, and
since, James A. Holman has been indebted to plaintiff for damages inflicted upon her for a
tort committed by him, in that he wilfully, maliciously, wantonly, wrongfully, and unlawfully
ejected her from a certain house and premises owned by him, and then and there under lease
to her, and to the possession of which she was lawfully entitled, which said premises were
situate in the city of Reno, county of Washoe, State of Nevada; that she instituted an action
against him for said tort and recovered a judgment in the sum of $1,680, together with costs
in the sum of $278.01 and interest thereon; that said judgment has been duly docketed by the
clerk of the court, and the amount thereof is now and ever since has been a lien upon all the
real property of said James A. Holman; that the entire amount is now due and owing from
him to plaintiff; that on the 2d day of March, 1921, execution was duly issued on said
judgment and placed in the hands of the sheriff of Washoe County, State of Nevada; that said
sheriff levied upon all the property which he could find in the name of James A. Holman, and
made due return thereon which shows the judgment unsatisfied, and that the said sheriff has
been unable to find any property belonging to James A. Holman in Washoe County, and not
exempt from execution, sufficient to pay any part of said judgment, costs, and interest;
that at the time of said conveyance Holman did not have, and at the present time has not,
sufficient property subject to execution to pay his debts, and ever since has been and now
is insolvent.
County, and not exempt from execution, sufficient to pay any part of said judgment, costs,
and interest; that at the time of said conveyance Holman did not have, and at the present time
has not, sufficient property subject to execution to pay his debts, and ever since has been and
now is insolvent.
It is further alleged that after the filing of the complaint, and during the pendency of this
action, Holman executed and delivered to said Julia Holman a certain deed of property
described in the complaint, held and owned by him and situated in the city of Reno; that said
deed was a fraudulent conveyance, made, executed, and delivered in fraud of plaintiff's rights,
with the intent then and there had to defraud her, a creditor of his, of her rights in and to said
property and any subsequent judgment or lien against it; that said conveyance was made for
the express purpose of hindering, depriving, and defrauding the plaintiff as a creditor of her
right to realize upon, collect, and satisfy any judgment that she might secure in said action, by
attempting to transfer ownership held by the said James A. Holman in and to said property to
the defendant Julia Holman, for the express purpose of attempting to place title to said
property in the name of some other person, in order that it might not be subject to levy by
execution in the event a judgment were entered in favor of plaintiff and against defendant
Holman in said action; that as a part and ingredient of the fraud and scheme aforesaid Holman
executed and delivered said deed of conveyance to the defendant, Julia Holman, whose true
name was at the time of said conveyance, and is now, Julia Baker, and that defendant
Holman's scheme and fraudulent purpose was to give a colorable impression that the said
grantee, at said time, was his true and lawful wife, which he then and there knew was not the
fact; that his purpose and reason for naming said grantee as aforesaid, although intentionally
and purposely avoiding to characterize her as his wife in said deed, was to fraudulently and
wrongfully convey the impression that said conveyance was made to an immediate
member of his family, so as to fraudulently and falsely explain away the nominal
consideration thereof, give color to the bona fides of said conveyance, and render it less
open to attack and from suspicion of fraud; that said defendant, Julia Holman, since the
filing of said complaint and action for damages, has openly and notoriously used the
name Julia Baker, which plaintiff alleges upon information and belief to be her true name,
has appeared in court upon divers and sundry occasions, by pleading and notarial
acknowledgment, under said name, and ever since and long prior thereto has engaged in
intimate, friendly, and fiduciary relations with the said James A.
impression that said conveyance was made to an immediate member of his family, so as to
fraudulently and falsely explain away the nominal consideration thereof, give color to the
bona fides of said conveyance, and render it less open to attack and from suspicion of fraud;
that said defendant, Julia Holman, since the filing of said complaint and action for damages,
has openly and notoriously used the name Julia Baker, which plaintiff alleges upon
information and belief to be her true name, has appeared in court upon divers and sundry
occasions, by pleading and notarial acknowledgment, under said name, and ever since and
long prior thereto has engaged in intimate, friendly, and fiduciary relations with the said
James A. Holman; that said relationship has been and now is notorious in the community in
which they live, to wit, Reno, Nevada; and plaintiff alleges upon information and belief that
said deed of conveyance was fraudulently executed and delivered as aforesaid, without actual
consideration at all commensurate with the then value of said property and premises, and with
the illegal, wrongful, wanton, and wilful intent, knowledge, and purpose then and there had
by the defendant James A. Holman to defraud plaintiff out of satisfaction of such judgment as
she should obtain in said action, by wilfully, illegally, wantonly, and fraudulently depriving
himself of record title to said property and premises and to render himself judgment proof.
To this complaint the defendants filed separate answers, denying, among other matters
alleged in the complaint, the allegations of fraud, and setting up affirmative defenses which
are identical. In substance these defenses are as follows: That on or about the 1st of July,
1917, and up to and including the 1st day of August, 1920, said Julia Holman was the owner
of and conducting a business in the name of Julia Baker, known as 219 Peavine Street, in the
city of Reno, county of Washoe, State of Nevada; that some time in the spring of 1918 she
became acquainted with the defendant, James A. Holman, and that subsequently, and on, to
wit, the 17th day of July, 1920, the said defendant, Julia Holman, was married to the said
defendant, James A.
and on, to wit, the 17th day of July, 1920, the said defendant, Julia Holman, was married to
the said defendant, James A. Holman, at Auburn, Placer County, State of California, and they
ever since have been and now are husband and wife; that on or about the 1st day of April,
1918, long prior to her marriage with the said defendant James A. Holman, and prior to the
execution and delivery of the conveyance in controversy, the defendant Julia Holman, then
known as Julia Baker, at the said city of Reno, loaned to the defendant, James A. Holman,
divers sums of money, amounting in the aggregate to the sum of $10,200; that the said James
A. Holman agreed to pay her on demand, and on numerous and divers occasions the said Julia
Holman has made due demand upon him for the repayment of the sums of money so loaned
by her, and which said sums he has wholly failed, refused, and neglected to pay; that the same
are now due and owing by him to her, together with legal interest thereon; that some time
prior to the 7th day of February, 1920, the said defendant Julia Holman discussed with her
husband the advisability of purchasing the Belle McMillan property, situate at No. 125-127
West Liberty Street, in the city of Reno, and that on the 7th day of February, 1920, the said
James A. Holman, for and on behalf of the said Julia Holman, made the first payment of $250
on said property, the total purchase price being $6,000, and that on the 13th day of February,
1920, for and on her behalf, he paid the balance of the purchase price, being the sum of
$5,750, and because of the fact that she was still conducting the business at 219 Peavine
Street, in the city of Reno, she directed the owner of the property that the deed for said
premises should be made in the name of James A. Holman; that on that date the deed was
duly made, executed, and delivered by the owner of the premises to the defendant James A.
Holman, for lot No. 6 in block 14 in Lake's South addition, giving a frontage of 47 feet and 6
inches on Liberty Street, with an average depth of 140 feet to an alley, and which said lot is
situate in the said city of Reno, together with all the tenements, hereditaments, and
appurtenances thereunto belonging or in any wise appertaining; that subsequent to the
purchase of said premises the defendant Julia Holman caused to be placed thereon
improvements, furniture, and fixtures of the value of approximately $29,000; that she
paid for the said property and all the improvements, furniture, and fixtures thereon and
therein, and that all of the money so paid out was money that she had accumulated as the
result of her own personal efforts; that at the time of the making of said deed by the
owner of said property to James A.
city of Reno, together with all the tenements, hereditaments, and appurtenances thereunto
belonging or in any wise appertaining; that subsequent to the purchase of said premises the
defendant Julia Holman caused to be placed thereon improvements, furniture, and fixtures of
the value of approximately $29,000; that she paid for the said property and all the
improvements, furniture, and fixtures thereon and therein, and that all of the money so paid
out was money that she had accumulated as the result of her own personal efforts; that at the
time of the making of said deed by the owner of said property to James A. Holman, he
(Holman) agreed that he would transfer said property to her at any time, upon demand, or as
soon as she disposed of the business above referred to as being conducted at 219 Peavine
Street; that at the time of making the first loan by her to him, and up to the present time, he
was and now is insolvent, and that there is no community property as the result of said
marriage; that the money with which the first two payments was made on said property was
kept in the personal private deposit box of the defendant Julia Holman in the First National
Bank of Reno, and by her shortly prior to the completion of said deal withdrawn in cash and
delivered to him, and he subsequently deposited said money in said bank, and it was by him
paid to the owner of said premises, or the agent of said owner, and that the money necessary
for the additions and improvements placed on said property was taken out of her personal
deposit box in said bank, or was procured by the sales of real estate and other property
belonging to her, and that all of the money so paid was from her separate funds, the result of
her personal earnings; that on or about the 1st day of August, 1920, the said defendant Julia
Holman, having disposed of her said business at 219 Peavine Street, moved to the said
premises at No. 125-127 West Liberty Street, in said Reno, and took actual possession of the
same, collecting the rents therefor, paying the bills incurred in the conduct of her premises,
and that since said time she has had sole and complete charge of said premises;
said time she has had sole and complete charge of said premises; that shortly after taking
possession of said premises she demanded that he transfer said property to her, and that on, to
wit, the 23d day of November, 1920, he did deed to her the property in controversy, and on,
to wit, the 15th day of December, 1920, she caused the same to be recorded in the office of
the county recorder of said Washoe County; that on or about the 12th day of May, 1921, she
gave the Farmers' and Merchants' Bank of Reno a first mortgage upon the premises in
controversy in this action for the sum of $2,000, and the same is now due, owing, and unpaid;
that at the time of the execution and delivery of said deed there was in force and effect on said
property insurance in the sum of $20,000, and at said time the said James A. Holman caused
an assignment of such insurance to be made to her, and that later, on, to wit, the 20th day of
January, 1921, she had additional insurance taken out in her own name on said property in the
sum of $10,000; that all her acts and doings in connection with the making of the loans as
aforesaid to him, and in the purchase of the premises in controversy, were made in good faith
and without any intent, purpose, or design to defraud the creditors of said defendant James A.
Holman.
The plaintiff filed replies to the affirmative matters set up in the answers. The replies
contain denials of all the allegations of the affirmative defenses, except the averments that
Julia Holman was the owner of and conducting a business in the name of Julia Baker, known
as 219 Peavine Street, in the city of Reno, and her marriage to James A. Holman, and except
also the allegation that all her acts and doings, in connection with the making of the loans to
James A. Holman, and in the purchase of the property in controversy, were made in good
faith and without any intent, purpose, or design to defraud his creditors.
The action was tried before the court without a jury. Findings were made in accordance
with the allegations of the complaint, and judgment and decree rendered, setting the deed
aside on the ground of fraud, and declaring the judgment in favor of the plaintiff against
him to be a lien upon the property and premises in controversy.
setting the deed aside on the ground of fraud, and declaring the judgment in favor of the
plaintiff against him to be a lien upon the property and premises in controversy. From the
judgment and decree so rendered, and the order denying the motion for a new trial, this
appeal is taken.
1. The appeal is before us on the judgment roll alone. Consequently we can consider only
such errors as may appear upon the face thereof.
2. It is contended that the defendants are entitled to judgment on the pleadings, for the
reason that the allegations last mentioned in the statement of facts are not controverted by the
replies; that they establish a complete defense to the action and must be taken as true under
the provisions of Stats. 1915, p. 193, sec. 4. The averments in the answers that all of the acts
and doings of the defendant Julia Holman, in connection with the making of the loans to
defendant James A. Holman and the purchase of the property in controversy, were made in
good faith and without any intent, purpose, or design to defraud his creditors, do not
constitute an affirmative defense to the action, and a reply was unnecessary. Giving them
their broadest effect, they are merely a denial of the fraud alleged in the complaint.
3, 4. It is also insisted that the complaint is insufficient because it is not alleged therein
that Julia Holman was a participant in the fraud claimed. This contention is untenable. It is
immaterial how innocent the grantee was. Judson v. Lyford, 84 Cal. 505-508, 24 Pac. 286;
Gustin v. Mathews, 25 Utah, 168, 70 Pac. 402. The complaint sets forth facts showing that
James A. Holman was indebted to plaintiff; that the transfer of the property in controversy by
him to his wife for a nominal consideration, during the pendency of the action in which
plaintiff obtained a judgment against him, was fraudulent, and made by him for the purpose
of defrauding plaintiff out of satisfaction of such judgment. These allegations constitute a
sufficient statement of fact to maintain the action.
Hager v. Shindler, 29 Cal. 47; Bull v. Ford, 66 Cal. 176, 4 Pac. 1175.
5. It appears from the pleadings that the conveyance in this case was made by a husband
to a wife, and in this connection defendants contend that such a conveyance in consideration
of money loaned by her, even though made during the pendency of a suit, is valid as against
creditors, if not made with the intent to hinder and delay creditors. As to this contention, it is
sufficient to say that the trial court expressly found that plaintiff was a creditor of the
husband, and that the conveyance was made without actual valuable consideration at all
commensurate with the then value of said property, and for the purpose of hindering,
depriving, delaying, and defrauding plaintiff, as a creditor, of her rights to realize upon,
collect, and satisfy any judgment she might secure by transferring ownership of the property
to the defendant Julia Holman. These findings are within the issues, and as we are confined to
the judgment roll we must assume that they are supported by the evidence.
6. As we cannot look beyond the judgment roll, we must also presume that the findings
requested by defendants, to the extent that, while the legal title to said property stood in the
name of James A. Holman at the time it was conveyed by the owner to him, said legal title
was taken in his name as trustee for the defendant Julia Holman, were not established by the
evidence. The findings made support the judgment. There are no errors in the judgment roll.
The judgment and decree of the lower court must be affirmed.
It is so ordered.
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47 Nev. 14, 14 (1923) Crumley v. Fabbi
No. 2562
CRUMLEY v. FABBI
April 5, 1923. 213 Pac. 1048.
1. PartiesIntervention of One Claiming Ownership of the Property Properly Allowed in
Suit to Compel Execution of Tax Deed.
It is proper in suit to compel execution of a tax deed to allow intervention and determine the respective
claims; the basis of the claims of both plaintiff and intervener being ownership of the property sold at tax
sale.
2. Appeal and ErrorNo Remand Required by Conflicting Findings in View of
Unconflicting Evidence.
There being no conflict in the evidence or dispute as to the facts, conflicting findings on a fact do not
require remand for a specific and unequivocal finding.
3. TaxationAssessment to Decedent's Estate Generally Void.
As a general rule an assessment to the estate of a decedent is void.
4. TaxationStatute Does not Allow Assessment to Decedent's Estate.
Rev. Laws, 3629, providing that the undivided property of a decedent may be listed to the heirs,
guardians, executors or administrators, as the case may be, and that the administrator shall be directed to
pay out of the funds of the estate all taxes that have attached or accrued against it, does not so far change
the rule of section 3624 that property shall be assessed to the owner as to allow assessment to decedent's
estate.
Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Action by J. G. Crumley, in which Peter Fabbi intervened. From an adverse judgment,
intervener appeals. Reversed and remanded, with directions.
Frank T. Dunn and R. G. Taylor, for Appellant and Intervener:
A legal assessment is an indispensable prerequisite to the validity of tax against any
individual, for without valid assessment there can be no lawful attempt to collect tax or
enforce it against any specific property. It must appear that person to whom property is
assessed is owner thereof. To say that a person is assessed with property, without alleging that
he was owner, amounts to no allegation at all, so far as a good cause of action is concerned.
People v. De Carrillo, 35 Cal. 37.
Property assessed in name of wrongful owner and sold for taxes carries no title of does
not affect the title of real owner. Himielman v. Steiner, 38 Cal. 175; 101 Cal. 566; and note
2, L. R. A. 773.
Property cannot be assessed in names of deceased persons or their estates (3 Rev. Laws,
2984), but should be listed to heirs, guardians, executors, or administrators, and payment by
them shall bind all parties for their equal proportions. Rev. Laws, 3629.
In tax sale, without judgment, any failure in preliminary steps renders sale void. State v. W.
U. Tel. Co., 4 Nev. 347; Ward v. Carson River Wood Co., 13 Nev. 59. There must be strict
compliance with provisions of statute. 37 Cyc. 1281; Wren v. Dixon, 40 Nev. 199.
W. R. Gibson, for Respondent:
The intervener must have an interest in success of one of the parties against the other, or
an interest against both. Harlan v. Eureka M. Co., 10 Nev. 92. An intervener must take the
case as he finds it (20 R. C. L. 692), and is estopped to aver anything to the contrary. 10 R. C.
L. 675. A public officer making a return of his doings on a writ shall not be allowed to
gainsay the truth of it. 22 R. C. L. 474.
A purchaser at tax sale has property interest in such property sold and cannot be divested
by any act of a stranger or intruder. Byington v. Bookwalter, 74 Am. Dec. 279.
The only persons, other than occupant, entitled to redeem from tax sale are such as claim
in good faith a substantial interest in premises. 21 Ency. Pl. & Pr. 482, note; People v.
Campbell, 143 N. Y. 335; Halsted v. Buster, 104 U. S. 273; Parsons v. Prudential R. E. Co.,
125 N. W. 521.
It is taxpayer's duty to call assessor's attention to any mistake in statement. Not having
done so, he will not be permitted to take advantage of his own wrong. State v. D. V. L. S. &
L. Co., 21 Nev. 93.
Any irregularity in delinquent tax roll is defense in action to recover taxes only to extent
that party has been injured thereby.
action to recover taxes only to extent that party has been injured thereby. State v. Sadler, 21
Nev. 17; State v. Northern Belle M. Co., 15 Nev. 386.
The burden of proving nonexistence of relation of landlord and tenant is upon intervener to
establish beginning of period of adverse possession claimed. Rev. Laws, 4961; 16 R. C. L.
662-664; McDonald v. Fox, 20 Nev. 364; Small v. Robbins, 33 Nev. 304.
By the Court, Coleman, J.:
The essential facts of this case are few. Early in the year 1918, Tony Gelsomino, who was
then and for a long time prior thereto had been, the owner of the property in question in this
case, died. In May or June of that year an administrator was appointed to administer his
estate. In the following December the property was sold by the administrator, pursuant to an
order of court, to Peter Fabbi, who ever since has held possession thereof and claimed to own
the same. The county treasurer of Nye County, in which the property was situated, claiming
that the property had been assessed for taxation for the year 1918, and that default had been
made in the payment of the same, advertised and sold it as the property of Tony Gelsomino,
the plaintiff becoming the purchaser. Within the period of redemption, Frank Cocca, who had
no interest in the property, tendered to the county treasurer, for the purpose of redeeming
from said tax sale, the amount necessary to effectuate such redemption, which was accepted
as such redemption money. When the time for redemption had expired, the plaintiff, claiming
that Cocca was a stranger to the title, that he had no right or authority to redeem, and that the
reception of the money by the treasurer did not, in legal effect, result in such redemption,
demanded of said officer a tax deed to the property in question. The treasurer refusing to
execute such deed, this action was commenced to compel the execution and delivery thereof,
Cocca being joined as a party defendant. Within due time Peter Fabbi filed his petition in
intervention, which the trial court granted.
Thereafter, plaintiff made a motion to strike the complaint in intervention, which was denied.
Upon the trial, judgment was rendered in favor of the plaintiff, from which an appeal was
taken.
1. The first point we will consider is the contention of the respondent that the trial court
erred in denying his motion to strike the complaint in intervention. We will not consider
certain objections of the appellant to the method of attack upon the intervention proceedings
made by the plaintiff, but dispose of the question upon its merits. In support of his contention
that the complaint in intervention should have been stricken, counsel says:
The only question involved was the act of Frank Cocca in attempting to redeem a valid
act of redemption. The intervener does not seek to litigate any other proposition than that of
adverse possession, of himself against the plaintiff.
We take it that there is a typographical error in the first sentence and that counsel meant to
say that the only act in question was the attempt of Cocca to redeem from a valid tax sale.
With this qualification, we will consider the matter upon the premise stated by the plaintiff.
Plaintiff argues in support of his premise that Fabbi had no interest in the property entitling
him to intervene, and, secondly, that by his complaint he changes the character of the action.
We do not think there is any merit in counsel's position. If Gelsomino were, in fact, alive,
and the assessment, sale, and attempt at redemption had been made as set forth, no one would
say that he could not intervene alleging title in himself, as the intervener has done. By the sale
of the property in question by the administrator of Gelsomino's estate, Fabbi stepped into the
shoes of Gelsomino. He became the owner of the property, subject only to the claim of the
plaintiff, and can plead any facts which would have been available to Gelsomino. By his
complaint in intervention he was seeking to prevent the cutting off of the title he has by what
he claims is an invalid tax sale.
by what he claims is an invalid tax sale. The only issue in the case is the ownership of the
property. That is the basis of the plaintiff's claim, and it is the basis of the intervener's claim.
It was certainly proper for the court to determine the respective claims. 20 R. C. L. p. 687,
sec. 26; Faricy v. St. Paul Society, 110 Minn. 311, 125 N. W. 676. The court did not err in
refusing to strike the complaint in intervention.
2, 3. This brings us to a consideration of the merits of the case. While several propositions
of law are urged, we need dispose of but one of them: Was the tax sale based upon a valid
assessment? It is asserted by the appellant that the property was assessed to the estate of
Tony Gelsomino, and that such an assessment is absolutely void, and cannot be the basis of
a valid tax title. In disposing of this question we are confronted with a situation hard to
understand, which is as to the findings made by the trial judge on this point. On March 3,
1922, he filed a written opinion in the case, in which he says:
The assessor seems to have been on the alert, as the property on Main Street (the property
in question) was entered for taxes under the Estate of Tony Gelsomino' for the years 1918,
1919, and 1920, which was entirely proper for the year 1918.
Thereafter, and on March 10, 1922, said judge made and filed his formal findings of fact,
in which he referred to his written opinion, relative to which it is said, which is made a part
hereof, in which formal findings of fact he finds that the property in question was for the
year 1918 assessed against Tony Gelsomino. Thus it will be seen that the trial court made
diametrically conflicting finding of fact upon a vital point.
This court has upon numerous occasions pointed out the importance of unequivocal,
specific findings of fact, and has condemned loose, ambiguous findings from which it was
almost impossible to determine just what facts were in reality determined by the trial court. A
trial court should be able to make its formal findings clear without undertaking to make its
opinion a part thereof.
clear without undertaking to make its opinion a part thereof. We entertain great hope that the
evil complained of is a thing of the past. If the evidence upon the point were conflicting it
would probably be necessary for a remanding of the case for a specific and unequivocal
finding upon the question presented, but it seems that there is in reality no dispute as to the
facts. The deputy county treasurer was called as a witness, and produced the assessment roll,
which shows that the property in question was assessed for the years 1918, 1919, and 1920 to
the estate of Tony Gelsomino. The trial court in its written opinion, in passing upon the
motion for a new trial, disposes of the same entirely upon the theory that the property was
assessed to the estate of tony Gelsomino, and relied solely upon section 3629 of the Revised
Laws of 1912 to support the view that such an assessment is valid. Even counsel for
respondent does not contend that it is not the general rule that an assessment to the estate of
a deceased person is void, but relies upon the position taken by the trial court in its opinion on
the motion for a new trial. The general rule that an assessment to the estate of a deceased
person is void is supported by an overwhelming weight of authority. A few of the authorities
so holding are: McKie v. Brown, 199 N. Y. 71, 92 N. E. 131; Adams v. Board of Supervisors,
154 N. Y. 619, 49 N. E. 144; L'Engle v. Wilson, 21 Fla. 461; Territory v. Perea, 10 N. M.
362, 62 Pac. 1094; Miller v. Brooks, 120 Ga. 232, 47 S. E. 646; Jackson v. King, 82 Ala. 432,
3 South. 232; People v. De Carrillo, 35 Cal. 37; Wood v. Torrey, 97 Mass. 321; Fowler v.
Campbell, 100 Mich, 398, 59 N. W. 185; State v. Kenrick, 159 Mo. 631, 60 S. W. 1063;
Morrill v. Lovett, 95 Me. 165, 49 Atl. 666, 56 L. R. A. 634; Coles v. Jamerson, 112 Va. 311,
71 S. E. 618, 50 L. R. A. (N.S.) 407; 37 Cyc. 1007, n. 10.
4. We will now consider the proposition suggested by the trial court.
The portion of the statute relied upon reads:
The undivided property of deceased and insane persons may be listed to the heirs,
guardians, executors, or administrators, as the case may be, and a payment of taxes
made by either, shall bind all the parties in interest for their equal proportions.
persons may be listed to the heirs, guardians, executors, or administrators, as the case may be,
and a payment of taxes made by either, shall bind all the parties in interest for their equal
proportions. It is hereby made the duty of every district judge, from time to time, to direct
each and every administrator, executor, and guardian * * * to pay, out of the funds of the
estate, all taxes that have attached or accrued against such estate. * * *
Section 3624 provides that the assessor shall assess all property to the person owning it. It
is admittedly the rule in Nevada that the requirement of the statute as to the assessment of
property for taxation and the sale thereof in the summary manner resorted to in the instant
case must be strictly complied with, and that nothing will be presumed in favor of a sale made
in such manner. State v. W. U. Tel. Co., 4 Nev. 347; Ward v. Carson River, etc., 13 Nev. 59;
State v. Nev. Cent. Ry., 26 Nev. 365, 68 Pac. 294, 69 Pac. 1042. The case of State v. Sadler,
21 Nev. 13, 23 Pac. 799, has no application, as that was a suit to recover delinquent taxes, in
which the parties were served with summons and had an opportunity to be heard in court. It
being the general rule that all property must be assessed to the owner, does the qualification
of that rule as provided by section 3629, as quoted, change the situation so far as the instant
case is concerned? To what extent does that section modify the general provision of the
statute? It simply provides that the undivided property of a deceased person may be assessed
in one of several specific ways; namely, to the heirs, guardians, executors, or administrators,
as the case may be. Was it assessed as provided in this section? Of course not. It is not even
contended that it was. Then the assessment is void, for the reason that no authority is
anywhere given for the assessing of property to the estate of a deceased person. We must
presume that, if the legislature had intended to give authority for the assessment of property,
as was done in this instance, it would have expressly said so, and, not having done so, but
having expressly enumerated one of several ways in which property might be assessed,
every other manner of assessing is excluded under the maxim "Expressio unius est
exclusio alterius."
so, but having expressly enumerated one of several ways in which property might be
assessed, every other manner of assessing is excluded under the maxim Expressio unius est
exclusio alterius. Ex Parte Arascada, 44 Nev. 30, 189 Pac. 619. The trial court, it is true,
based its conclusion upon that portion of the section alluded to wherein it is provided that
It is hereby made the duty of every district judge * * * to direct each and every
administrator * * * to pay, out of the funds of the estate, all taxes that have attached or
accrued against such estate. * * *
That provision is clear. The only trouble about it is that it does not in the least affect the
situation in hand. No taxes had attached or accrued against the estate in question for 1918,
because there had been no valid assessment.
For the reasons given, it is ordered that the judgment and order appealed from be reversed,
and that the case be remanded to the trial court with directions to enter judgment for the
intervener.
____________
47 Nev. 21, 21 (1923) Rutherford v. Union Land and Cattle Co.
No. 2565
RUTHERFORD v. UNION LAND AND CATTLE
COMPANY
April 5, 1923. 213 Pac. 1045.
1. InterpleaderPayment of Reward into Court Held Not to divest Subsequent Intervener of
Interest in Deposit.
Where defendant was sued for the recovery of a reward offered for capture of persons who had stolen its
property, deposited the sum of the reward in court, and noticed a motion for order substituting others as
defendants and for order dismissing and discharging it from liability to plaintiff and the defendants named,
it thereby admitted title to the reward in some of the named claimants, but such action did not operate to
divest the title of one not a party thereto, and did not divest a subsequent intervener claiming the reward of
an interest in the fund deposited.
2. JudgmentCannot Affect Rights of Third Parties Not before Court.
Judgments at law or decrees in equity affecting the rights of parties to property cannot affect the rights of
third parties not before the court.
3. InterpleaderInterpleader Not Sued in Rem.
A suit in interpleader is not a suit in rem, affecting the personal status of parties or things.
4. InterpleaderEssential Element of Interpleader Stated.
An essential element of the equitable basis of interpleader is that two or more persons have made claims
against the same thing, debt, or duty.
5. InterpleaderStatute Permits Summary Proceeding where Interpleader Lies.
Rev. Laws, 5005, permits a summary proceeding in cases where a bill of interpleader would lie, and is
governed by the same principles, except in so far as it has enlarged the scope of the equitable remedy with
reference to conflicting claimants whose titles or claims have not a common origin, or are not identical, but
which may be adverse to and independent of one another.
6. PartiesPrinciples Governing Interpleader Considered with Rule that, where Chancery
Assumes Jurisdiction, it Will Determine Entire Subject-Matter.
The substance of the rule that, when chancery assumes jurisdiction of a cause on any equitable ground, to
avoid more than one suit, and in order that a complete and final decree adjusting the rights and equities of
the parties in interest may be entered, it will reach out and draw into consideration the entire
subject-matter, bringing before it all parties interested therein, is the subject-matter of Rev. Laws, 5008,
which empowers the court to bring in other parties when a complete determination cannot be had without
them.
7. InterpleaderEssence of Suit to Protect One from Double Vexation in Respect to One
Liability.
The essence of an interpleader suit is to protect one from a double vexation in respect to one liability.
8. InterpleaderFact that Intervener Has Other Remedy Not Reason why He Should Not
Intervene.
Where after payment of a reward into court in suit by a claimant therefor and the entry of an order
substituting other claimants as parties defendant an additional claimant of the reward intervened under Rev.
Laws, 5006, the fact that the intervener's right of action against the original defendant on the contract of
reward might not have been affected by any decree rendered in the interpleader's suit was no reason why he
should not have been permitted to intervene.
9. PartiesStatute Liberally Construed.
Rev. Laws, 5006, providing that any person may intervene in an action who has an interest in the matter
in litigation, should be liberally construed to effectuate its purpose to secure the determination of
controversies between several persons as to property rights in one action.
Appeal from the Ninth Judicial District Court, White Pine County; C. J. McFadden,
Judge.
Action by H. H. Rutherford against the Union Land and Cattle Company, in which P. E.
Woodward and others were substituted as defendants, and in which H. C. Nicholson
intervened. From an order striking complaint in intervention from the files and denying
intervener leave to file amended complaint, he appeals. Reversed.
Stoddard & Salisbury, for Union Land and Cattle Co.
A. Jurich, for Woodward.
H. W. Edwards, for Enslow.
J. M. Lockhart, for Murray, Wheeler, and Renear.
V. H. Vargas, for Appellant:
Where bill of interpleader was allowed to relieve defendant from conflicting claimants,
money admitted owing various conflicting claimants was deposited into court; where certain
claimants were substituted as defendants and after such substitution, another person who
claimed interest in fund was permitted to assert his right, held, not violation of procedure.
Bolin v. Ry. Co., 61 S. W. 447.
To avail himself of right to intervene, applicant must have either interest in matter in
litigation or in success of one of the parties to the action, or an interest against both of them.
Such interest must be direct, and not consequential, and one which is proper to be determined
in action in which intervention is sought. Isaacs v. Jones, 53 Pac. 793.
The general rule declared in Harlan v. Eureka M. Co., 10 Nev. 92, is, as Judge Hawley
declared it to be, only a general rule, not an absolute rule nor one applicable to every case.
The true test is language of statute itself: Has intervener an interest in matter in litigation,
in success of either of the parties, or an interest against both? Coffey v. Greenfield, 55 Cal.
382. Either would be sufficient. Stich v. Goldner, 38 Cal. 610.
Though a complaint may be utterly insufficient, amendment should be allowed, and cause
permitted to proceed.
proceed. The practice of taking advantage of a defective pleading by motion for judgment,
or by objection to evidence, instead of by demurrer (where demurrer will lie) should not be
encouraged. Parties should not be allowed to secure any greater advantage by such practice
than they would gain by demurring at proper time. California State Telegraph Co. v.
Patterson, 1 Nev. 150.
An order made ex parte granting leave to intervene is not violation of procedure. Kimball v.
Richardson-Kimball Co., 43 Pac. 1111, 20 R. C. L. 690.
Whenever objection that there is defect of necessary or proper parties is raised, it is duty of
court in a summary manner to order them in, and to retain cause for that purpose, and to
decide issues upon merits. Pomeroy, Code Remedies, sec. 310.
The intervener cannot retard the principal suit. He must take it as he finds it and be on time
with his pleadings, witnesses, etc., and file his complaint before trial. 20 R. C. L. 688, sec. 27.
C. H. Handwright and Chandler & Quayle, for Respondent:
When all facts concerning claims of several claimants are before court, the court should, at
time of ordering interpleader, determine to whom funds belong without further pleadings or
proof. But, if controversy between claimants is not ripe for decision at time order for
interpleader is made, the court should direct issues between adverse claimants to be framed in
such manner as will best serve interests of justice. The court may even direct that a separate
action at law be brought to establish rights of separate claimants. 15 R. C. L. 232; 23 Cyc. 32;
note in 35 Am. Dec. 709.
The affidavit required by interpleader act is merely a substitute for a bill. Starling v.
Brown, 7 Bush, 164.
If judgment between original parties would in no way affect right of intervener to sue
either or both parties, he has no such interest in matter in litigation as will entitle him to
intervene. Clark v. Eureka County Bank, 116 Fed.
County Bank, 116 Fed. 534; State v. Mack, 26 Nev. 430; Gibson v. Hjul, 32 Nev. 360.
The taking of interpleading proceedings against certain claimants and deposit of money into
court, and discharge of stakeholder from liability to claimants named, amounts in law to
conclusive admission that the money belongs to one or more of the named claimants, and is
to be paid to that one of them who can establish best right to it. If all but one of them
disclaims or are defaulted, the money automatically goes to survivor without any proof on his
part. 23 Cyc. 30; U. P. Ry. Co. v. Belek, 211 Fed. 697-704; Maggi v. Cassidy, 181 N. W. 27.
This being so, how can this appellant who was not one of the interpleaded claimants have any
claim to or interest in that particular fund?
The Union Land and Cattle Company offered a reward of $2,500 for the capture of two
persons who had stolen its property and who had shot two of its employees when they were
endeavoring to recover the property.
Thereafter, on June 2, 1920, respondent instituted an action against the company for the
recovery of the reward. After the institution of the action the company noticed a motion for an
order of the court substituting P. E. Woodward, W. S. Enslow, F. T. Murray, Frank Wheeler,
and D. B. Renear as defendants in the action in the place and stead of the defendant company,
and for a further order dismissing the company and discharging it from any and all liability to
the respondent and said last-named persons, upon the company's having deposited in court, or
having delivered to such persons as the court should direct, the sum of $2,500 offered by the
company as a reward.
An affidavit in support of the motion was made by the president of the company showing,
among other matters, that the persons sought to be substituted had made demands upon the
company for the reward, or some part thereof, and it was ignorant of the respective rights of
each and all of the said claimants, and did not know which, if any, were entitled to receive
the reward.
rights of each and all of the said claimants, and did not know which, if any, were entitled to
receive the reward. An order was duly made substituting them as defendants in the place of
the company, conditioned for its discharge from further liability to the respondent and the
substituted defendants, upon the company paying the amount involved to the clerk of the
court. Thereafter the money involved was paid by the company to the clerk of the court, and
an order was made dismissing the action as against the Union Land and Cattle Company.
On February 9, 1922, the court made an order prescribing the pleadings and framing the
issues between the then parties to the action. After this order was made, the appellant,
Nicholson, filed his complaint in intervention, and on February 17, 1922, by order of the
court, was permitted to become a party to the proceedings.
Among other matters, it was alleged in the complaint in intervention that shortly after the
offer of said reward, on being informed of such offer and promise, and confiding in and
relying upon the said offer of reward, the said H. C. Nicholson, being then and there a private
citizen of the United States of America and a resident of the city of Ely, county of White
Pine, State of Nevada, did, on or about the 23d day of February, 1920, at the town of East
Ely, county and state aforesaid, assist in the apprehension and capture of one Leonard W.
Fristoe, one of the robbers for whom said reward was offered, and did thereafter assist in
placing said Leonard W. Fristoe in the custody of the sheriff of White Pine County, Nevada.
That said intervener is informed and believes and upon such information and belief alleges
the facts to be that, after the apprehension of said robbers referred to in said reward, the said
Union Land and Cattle Company, not knowing to whom said reward should be paid, but
admitting its liability to some one for the apprehension of said robbers, deposited with the
clerk of the above-entitled court the amount of said reward and that the said reward now is
in the hands of said clerk of said court in the above-entitled action.
that the said reward now is in the hands of said clerk of said court in the above-entitled
action.
That said intervener is informed and believes and upon such information and belief alleges
the facts to be that on or about the 22d day of February, 1920, and prior to the capture and
arrest of said Leonard W. Fristoe, the said Joseph W. Bell, the other of said robbers, did
voluntarily surrender and give himself up to and was then in the custody of the sheriff of
White Pine County, State of Nevada, thereby rendering its impossible for said intervener or
any one else to comply with the terms of the said offer of reward as to the capture of said
Joseph W. Bell.
Thereafter the respondent, Rutherford, moved the court for an order vacating and setting
aside the order granting appellant leave to file his complaint in intervention, and for an order
striking the same from files in said cause, upon the grounds: Firstly, that said order was made
ex parte and without notice of the application therefor having been given to respondent;
secondly, that the money paid into court in said cause by the original defendant, Union Land
and Cattle Company, was so paid for the benefit only of the claimants thereto specified in the
affidavit of intervention made in said cause in behalf of the Union Land and Cattle Company,
and that, after such payment into court, and the discharge of the Union Land and Cattle
Company from the action, no person not mentioned in said affidavit of interpleader is entitled
to intervene or claim any portion of the money so deposited in court; thirdly, that said
complaint in intervention does not show that H. C. Nicholson (appellant) has an interest in
the matter in litigation in said cause, or in the success of either or any of the parties, or an
interest against both, sufficient to entitle him to intervene.
The motion was granted on the second and third grounds set forth therein, and an order
entered vacating the previous order granting leave to file the complaint in intervention, and
striking the same from the files. Thereupon counsel for appellant asked leave of court to
serve and file an amended petition in intervention, which was denied by the court.
serve and file an amended petition in intervention, which was denied by the court. Thereafter
counsel for respondent duly noticed a motion asking leave to file an amended complaint,
which motion was denied by the court. From the orders striking the complaint in intervention
from the files and denying appellant leave to file an amended complaint in intervention, this
appeal is taken. Error is assigned on these grounds.
1. It is contended by respondent that appellant, who was not one of the interpleaded
claimants, has no claim or interest in the particular fund which is now the subject-matter of
the litigation, and is not entitled to intervene.
In this respect it is argued that, while he may have had an interest in the subject-matter of
the litigation when the action was originally instituted by the respondent against the Union
Land and Cattle Company on the contract of reward, the subject-matter changed when the
money offered as a reward was paid into court, and the company discharged from liability to
the parties then in court; that, under the rules of interpleader, these proceedings amounted to
an adjudication that the fund deposited in court belonged to the one of the parties impleaded
who could establish the best right to it, or some portion of it.
We are not impressed with the theory advanced by respondent that the institution of the
interpleader suit by the Union Land and Cattle Company, in which the substituted defendants
were named in its affidavit, and the subsequent procedure in court, operated to change the
subject-matter of the original actionthat is, the contract of rewardand deprived appellant
of any interest in the fund deposited in court.
Suppose, instead of money offered as a reward, the subject-matter of the litigation was
personal property of another character; could it be said that the interpleader proceedings
deprived appellant of his interest in it, if he had any?
2. 3. The fund deposited in court represented the consideration of the contract on the part
of the company. The effect of the affidavit was to admit title to this consideration in some of
the named claimants as against the company, but it surely does not operate to divest the
title of one not a party to the proceedings.
this consideration in some of the named claimants as against the company, but it surely does
not operate to divest the title of one not a party to the proceedings. A decree of the court in
the interpleader proceedings could not operate to that extent. Judgments at law or decrees in
equity affecting the rights of parties to property cannot affect the rights of third parties not
before the court. A suit in interpleader is not a suit in rem affecting the personal status of
parties or things. Life Insurance Co. v. Gooding, 19 Tex. Civ. App. 490, 49 S. W. 123;
Expressmen's Assn. v. Hurlock, 91 Md. 585, 46 Atl. 957, 80 Am. St. Rep. 470; Cross v.
Armstrong, 44 Ohio St. 613, 10 N. E. 160.
As stated by the Supreme Court of the United States:
The general doctrine that, where there is a fund in court to be distributed among different
claimants, a decree of distribution will not preclude a claimant not embraced in its provisions,
but, having rights similar to those of other claimants who are thus embraced, from asserting
by bill or petition his right to share in the fund, is established by numerous authorities, both in
England and the United States. In the Matter of Howard, 9 Wall. 175-187 (19 L. Ed. 634).
4, 5. It is true an essential element of the equitable basis of interpleader is that two or
more persons have made claims against another for the same thing, debt, or duty. Orr Water
Ditch Co. v. Larcombe, 14 Nev. 53. It is likewise true that section 5005 of the Revised Laws
of Nevada, under which the interpleader proceedings were instituted in this case, merely
permits a summary proceeding in cases where a bill of interpleader would lie, and is governed
by the same principles, except in so far as the statute has enlarged the scope of the equitable
remedy with reference to conflicting claimants whose titles or claims have not a common
origin, or are not identical, but which may be adverse to and independent of one another.
6. But the principles governing equitable interpleader must be considered in connection
with the rule of equity that, when a court of chancery has once assumed jurisdiction of a
cause on any equitable ground, it will, for the purpose of avoiding more than one suit, and
in order that a full, complete, effectual, and final decree adjusting the rights and equities
of all parties in interest may be entered and enforced, reach out and draw into
consideration and determination the entire subject-matter, bringing before it all parties
interested therein.
assumed jurisdiction of a cause on any equitable ground, it will, for the purpose of avoiding
more than one suit, and in order that a full, complete, effectual, and final decree adjusting the
rights and equities of all parties in interest may be entered and enforced, reach out and draw
into consideration and determination the entire subject-matter, bringing before it all parties
interested therein. 10 R. C. L. 370. The substance of this rule is the subject-matter of section
5008 of the Revised Laws of Nevada, which empowers the court to bring in other parties
when a complete determination of the controversy cannot be had without their presence. It
would seem, therefore, that the court in this case, having assumed jurisdiction on equitable
grounds, is not without power to bring in other parties having an interest in the subject-matter
of the suit. Statutes similar to the foregoing section have been liberally construed by the
courts so as to accomplish substantially the same results as intervention.
7. The very essence of an interpleader suit is to protect one from a double vexation in
respect to one liability. Fogg v. Goode, 78 Fla. 138, 82 South. 614; 2 Storey's Eq. Juris. (14th
ed.) par. 1118. The Union Land and Cattle Company has availed itself of the remedy open to
it to avoid a double vexation, with that very end and aim in view. If the intervention of
Nicholson is denied, the sole purpose of the remedy which the law contemplates the company
might avail itself of is defeated, and, as said in Newhall v. Kastens et al., 70 Ill. 156, if, under
the circumstances, we should hold that Nicholson cannot be made a party, chancery would
be wanting in its power to do justice where the law, by reason of its universality, fails, if it
could afford no relief under the facts presented by this record.
In support of their contention counsel for respondent cite and discuss several cases to the
effect that a bill of interpleader admits the indebtedness of the complainant to some of the
defendants, and, if one defaults or is finally determined to have no claim, the fund belongs to
the other, as a matter of course. With the exception of Michigan, etc., v. White et al., 44
Mich.
exception of Michigan, etc., v. White et al., 44 Mich. 25, 5 N. W. 1086, these cases were
decided without any reference to an intervening claimant, and for the reasons heretofore given
we are unable to consider the Michigan case or the others as authorities on the question
before us. The following cases, in which a claimant having an interest in the fund in
controversy was permitted to intervene in an interpleader proceeding, have been called to our
attention: Wineman v. Lillibridge, 117 Mich. 320, 75 N. W. 617, and Bolin v. St. Louis S. W.
Ry. Co. of Texas et al. (Tex. Civ. App.) 61 S. W. 444.
8. Appellant intervened pursuant to section 5006 of the Revised Laws of Nevada, which
reads in part:
Any person may, before the trial, intervene in an action or proceeding, who has an
interest in the matter in litigation, in the success of either of the parties, or an interest against
both.
Respondent contends that appellant has not the interest contemplated by the statute to
entitle him to intervene, because his right of action against the Union Land and Cattle
Company on the contract of reward, if he has any, will not be affected by any decree which
may be rendered in the interpleader suit. The fact that intervener may have another remedy is
no reason why he should not be permitted to intervene. On this point authorities are ample
and satisfactory. People v. California Safe Deposit Co., 168 Cal. 241, 141 Pac. 1181, L. R. A.
1915a, 299; Potlatch Lumber Co. v. Runkel, 16 Idaho, 192, 101 Pac. 396, 23 L. R. A. (N.S)
536, 18 Ann. Cas. 591; Walker v. Sanders, 103 Minn. 124, 114 N. W. 649, 123 Am. St. Rep.
276, and note; Taylor v. Bank of Volga et al., 9 S. D. 572, 70 N. W. 834; 20 R. C. L. 689; 11
Ency. Pl. & Pr. 502.
Counsel for respondent contend that the case of Harlan v. Eureka Mining Co., 10 Nev. 92,
controls this case, and hence the judgment must be affirmed. The facts of the instant case do
not bring it within the rule asserted in the former case. It will be observed that the Harlan case
was an action at law, while the present proceeding is a suit in equity, wherein we are
controlled by equitable principles.
proceeding is a suit in equity, wherein we are controlled by equitable principles. The court in
the Harlan case was particular not to lay down the rule there declared, as one governing every
situation, but as a general rule. Without expressing any opinion as to our view of that case,
we content ourselves with saying that, since no one loses or gains by a judgment or decree, in
the strict sense of the term, unless he is a party or in privity with one who is, to rigidly enforce
the rule adopted in Harlan v. Eureka Mining Company, would necessarily preclude any one
from intervening in an action or suit, except privies. Such cannot be said to have been the
intention of the legislature in adopting the statute authorizing intervention.
9. We think it should be liberally construed to effectuate its purpose to secure the
determination of controversies between several persons as to property rights in one action,
and thus prevent unnecessary litigation.
As appellant's complaint in intervention shows an interest in the matter in litigation, the
orders of the district court vacating the order giving him leave to intervene, and striking his
complaint in intervention from the files, should be reversed.
It is so ordered.
____________
47 Nev. 33, 33 (1923) Moore v. De Bernardi
No. 2556
MOORE v. DE BERNARDI
April 7, 1923. 213 Pac. 1041.
1. Appeal and ErrorFinding of Trial Court Conclusive on Appellate Court when Evidence
Is Conflicting.
Where there is a substantial conflict in the evidence, the finding of the trial court is conclusive upon the
appellate court in the absence of a showing that a wrong conclusion was reached.
2. Appeal and ErrorWhere Finding Assailed as Being Contrary to Evidence, Court Deemed
to Have Found as True Evidence Favorable to Prevailing Party.
The rule which governs the appellate court in reversing a verdict alleged to be contrary to the evidence,
that the jury must be deemed to have found to be true the evidence that is most favorable to the prevailing
party, applies to findings by court.
3. Attorney and ClientAttorney's Authority to bind Client Extends to Acts Necessary for
Prosecution of Business for which Employed.
An attorney's authority to bind his client extends only to such acts and agreements as are necessary for the
due prosecution of the business in connection with which he has been employed, and he has no implied
power to bind his client by an agreement collateral to and independent of the subject-matter of his
employment.
4. Attorney and ClientClient Not Bound by Unauthorized Agreement of Attorney to
Convey Land.
A client is not bound by an unauthorized agreement of his attorney to convey land.
5. TrustsEvidence held to Establish Agreement whereby Bank Agreed to Foreclose
Property for Benefit of Occupant.
Evidence held to show that defendant bank, through its cashier, made a parol agreement with defendant
occupant of land whereby bank agreed to proceed with foreclosure of property for occupant's use and
benefit, and convey the legal title to him for a consideration upon acquiring the legal title after period of
redemption expired.
6. Frauds, Statute ofRefusal to Perform a Void Parol Agreement Is Not a Fraud in Law or
in Equity.
The mere refusal to perform a parol agreement, void under the statute, may be a moral wrong, but it is not
a fraud in law or in equity.
7. Frauds, Statute ofRefusal to Perform Parol Agreement to Convey Land Not, of Itself,
Sufficient to Take Agreement Out of Statute.
A refusal of a bank to carry out its parol agreement to convey land to defendant for a consideration after
the bank obtained sheriff's deed held not, of itself, a breach tainted with fraud to take the agreement out of
the statute of frauds.
8. TrustsTrusts ex Maleficio Excepted from Operation of Statute of Frauds.
Trusts ex maleficio are excepted from the operation of the statute of frauds.
9. TrustsViolation of Parol Agreement to Foreclose Property for Benefit of Occupant Holding Interest in
Land Held to Create Trust ex Maleficio.
Where defendant occupant of land had an existing interest therein with the mortgagor, but, in reliance
upon a parol agreement with the mortgagee bank that the latter would foreclose for defendant's use and
benefit, and convey land to him upon acquiring title, if he would not become a bidder to protect his
interest in the property, defendant refrained from protecting his interest so that he could acquire title to
the land in its perfected state through the foreclosure proceeding, held, that the refusal of the bank to
convey was such a fraud as operated to convert the bank into a trustee ex maleficio.
10. TrustsPurchaser at Foreclosure Sale Taking Title for Another, but Violating His Trust,
Becomes Trustee ex Maleficio.
Where one having an interest in land is induced to confide in the verbal promise of another that he
will purchase for the benefit of the former at a sheriff's sale, and in pursuance of such promise allows him
to become the holder of the legal title, a subsequent denial by the purchaser of the confidence is such a
fraud as will convert the purchaser into a trustee ex maleficio.
11. TrustsConventional Relation of Trustee and Cestui Que Trust Need Not Exist to Create
Constructive Trust.
To create a constructive trust it is not necessary that a conventional relation of trustee and cestui que
trust, or that any express fiduciary relation should exist between original wrongdoer and the beneficial
owner of land, since such relations arise in invitum for the purpose of working out justice in the most
efficient manner.
12. TrustsTrust Agreement May Not Be Avoided Because Promising Party Was Moved by
Benevolent Considerations Only.
A trust may not be avoided on the ground that the party promising was moved merely by benevolent
considerations, since such considerations constitute the foundation of almost every trust, and a trustee
should be held to account in the same spirit in which he originally contracted.
Appeal from Second Judicial District Court, Washoe County; Edward F. Lunsford, Judge.
Action by Kate Moore against Rick De Bernardi, in which the Washoe County Bank was
made a defendant. Decree for defendant De Bernardi, and plaintiff appeals. Affirmed. On
rehearing, this opinion affirmed.
Sardis Summerfield, for Appellant:
Specific performance to convey land made by attorneys of parties to action in which land
is in dispute, will not be decreed in absence of specific authority in such attorneys to make
contract. Hagerman v. Bates, 38 Pac. 1100. No such agreement is valid unless affirmed and
ratified by the principals. Bank v. McEwen, 76 N. E. 222.
Ordinarily there is no implied power vested in attorney at law to bind his client by
contract. Haselton v. Florentine Co., 94 Fed. 701; Haynes v. Tacoma Co., 34 Pac. 922.
A general retainer does not authorize attorney to enter into agreements regarding his
client's property. Hagerman v. Bates, supra; Scully v. Book, 28 Pac. 556; 4 Cyc. 945-6;
Weeks on Attorneys at Law, sec. 219.
Constructive trusts do not arise by agreement or from intention, but from operation of law.
39 Cyc. 169; Bowler v. Curler, 21 Nev. 161; 28 R. C. L. 1232.
Though some decisions apparently hold to the contrary, it is the generally accepted rule
that mere verbal agreement, by which one of the parties thereto promises to buy in at judicial
sale, lands in which the other has interest and to hold same for latter's benefit, does not, in
absence of other circumstances, create trust enforceable in equity, even though the agreement
is carried out to extent that promisor acquires property at such sale. The agreement is within
the statute of frauds. 26 R. C. L. 1244; Strasner v. Carroll, 187 S. W. 1057; Minot v.
Mitchell, 95 Am. Dec. 685, and note.
Specific performance of contracts to sell land will not be enforced when defendant had no
title to lands of which conveyance is sought to be compelled. Kennedy v. Hazelton, 32 L. Ed.
576; Adair v. Adair (Or.), 29 Pac. 193.
Specific performance will never be decreed where the party can otherwise be fully
compensated. Memphis v. Brown (U.S.), 22 L. Ed. 264; Texas Co. v. Central Co., 194 Fed. 1.
A constructive trust always arises ex maleficio; it is constructed by law, and not by
parties.
constructed by law, and not by parties. If parties have attempted to construct it, the law will
not construct one. Through failure to comply with the statute it becomes an invalid express
trust. Spaulding v. Collins (Wash.), 99 Pac. 306.
Continued possession by grantor after full conveyance by him while in possession of property
conveyed is not constructive notice. Brophy M. Co. v. B. & D. M. Co., 15 Nev. 113, which
refused to follow Pell v. McElroy, 36 Cal. 268, but which was cited with approval in
McDonald v. Fox, 20 Nev. 368; Gruber v. Baker, 20 Nev. 462.
Boyd & Curler, for Respondent:
The whole case involves itself around the separate defense and counterclaim of defendant,
and the principles of equity upon which he believes he is entitled to judgment in his favor.
The evidence clearly establishes a constructive trust in favor of respondent, by virtue of his
agreement with the bank. It is evident from all the facts in this case that the fraud complained
ofthat is, the neglect and refusal of the bank to notify respondent of amount due and to give
him the deedimmediately impressed the property with a constructive trust, and this trust
followed property to vendee of bank, unless such vendee could show that she was a bona-fide
purchaser without notice. Such property is taken completely out of statute of frauds.
Courts of equity have exercised their powers to enforce contracts which in good faith
ought to be complied with and will do this by impressing property with a trust for use and
benefit of one who would be defrauded unless court of equity gave its aid in enforcing
agreement. Pomeroy (2d ed.), sec. 1044.
Where a person acquired legal title to land by an intentionally false verbal promise and
seeks to retain property as his own equity will not regard such person as holding property
charged with a constructive trust, and will compel him to fulfil trust by conveying according
to his agreement. Isenberg v. Goldsmith, 113 Pac.
1127; Pomeroy (2d ed.), 1005, and footnote; Brown's Estate v. Stair, 136 Pac. 1003.
Equity will not permit statute of frauds to be used as instrument of fraud. When person,
through influence of confidential relation, acquires title to property, or obtains advantage
which he cannot conscientiously retain, the court will grant relief. Bowler v. Curler, 21 Nev.
158; Nehls v. Stock Farming Co., 43 Nev. 261.
It is well established that the open, visible, notorious, and exclusive possession of land is
either notice itself of rights of party in possession, or is sufficient to put person upon inquiry.
Delvin on Deeds, secs. 760, 762, 764, 769.
The simple, independent fact of possession is sufficient to raise presumption of interest in
occupant. He cannot be regarded as purchaser in good faith who negligently and wilfully
closes his eyes to pertinent facts indicating adverse possession, when he could, with
reasonable diligence, have informed himself of facts. Pell v. McElroy, 36 Cal. 273; 75 Cal.
131; 82 Cal. 117.
It is purchaser's duty to know who is in possession before making purchase; otherwise he
could purposely avoid any inquiry and evade rule and its consequences entirely. Scheerer v.
Cuddy, 85 Cal. 273. If he has notice of occupant's title before payment, he is not bona-fide
purchaser. Eversdon v. Mayhew, 65 Cal. 163; and burden is upon such purchaser to show he
had no notice. Wilhoit v. Lyons, 98 Cal. 409; Beattie v. Crewdson, 124 Cal. 579.
By the Court, Sanders, J.:
Kate Moore, a married woman, in her own right as owner, sued Rick De Bernardi to
recover possession of a certain parcel of land in Washoe County, situate near the western
limits of the city of Reno, which bears the name of Rick's Resort or Roadhouse, and
demanded in her complaint judgment for $150 per month as rental from the 22d day of July,
1920, until possession be delivered. The defendant answered, and by way of counterclaim
interpleaded the Washoe County Bank as a party defendant, and alleged facts to show
that said bank and plaintiff hold the land in trust for his use and benefit.
counterclaim interpleaded the Washoe County Bank as a party defendant, and alleged facts to
show that said bank and plaintiff hold the land in trust for his use and benefit.
Upon extended findings of facts following closely the averments of the counterclaim,
which are too lengthy to be set out, the trial court concluded as a matter of law that the
conveyance of the land by the Washoe County Bank to Kate Moore, on the 22d day of July,
1920, if permitted to stand, would operate as a fraud upon the rights of the defendant; that in
virtue of an agreement, set up in the counterclaim, between the bank and the defendant, a
constructive trust had arisen in defendant's favor in the land; and that plaintiff, Kate Moore,
purchased the property from the bank with full knowledge of said agreement. Thereupon it
was adjudged, ordered, and decreed that said parties convey to the defendant the land in
controversy, free and clear from all incumbrances, upon condition that the defendant pay to
the Washoe County Bank $6,336.09, or deposit that amount of money into court for its use
and benefit, and that the bank, on the payment of said sum, cancel of record a certain
mortgage given it by Kate Moore and her husband, M. B. Moore, which bears date on the 22d
day of July, 1920. The Washoe County Bank has not appealed, but Kate Moore, the plaintiff,
appeals from said judgment and decree, and also from an order denying and overruling her
motion for a new trial.
While numerous errors are assigned upon exceptions taken to rulings in the course of the
trial with respect to the admission and rejection of evidence, the material assignments of
error, reduced to precise terms, are: First, that the agreement set up in the counterclaim and
purported to be established by the findings was, in fact, a mere parol agreement entered into
by one of the firm of attorneys for the bank, who had charge of the bank's action brought
against one Constance Parker and Rick De Bernardi to foreclose a mortgage on the land,
which had been given the bank by Constance Parker in her own name, in May, 1914, and that
said agreement was made and entered into by said bank's attorney without its
authorization and ratification.
agreement was made and entered into by said bank's attorney without its authorization and
ratification. Second, that, if said agreement was established by sufficient and legal evidence,
it not being in writing, it was within the condemnation of the statute of frauds. Third, that the
evidence is insufficient to support the finding that Kate Moore purchased the property in
dispute with notice of the defendant's claim of right and interest in the property.
If there be merit to the last proposition, it is decisive of the appeal, because, if Kate Moore
was a purchaser in good faith and without notice, she acquired by her deed a higher right, and
took the property relieved of any trust that may have been created by the alleged agreement
between her grantor and the defendant. The finding with respect to actual notice, and averred
in the counterclaim, is, in substance, that on the 19th day of July, 1920, the defendant notified
Kate Moore, by and through her husband, M. B. Moore, who acted as her agent, that the
Washoe County Bank purchased the property for the defendant's use and benefit at a sheriff's
sale thereof, and that the defendant would insist upon his rights under his contract, and at the
same time informed said agent of the terms and conditions of the agreement existing between
the defendant and the bank, and that prior to July 22, 1920, plaintiff was fully aware of the
fact that the bank had purchased the property at a sheriff's sale for the use and benefit of the
defendant.
1, 2. The evidence in support of the finding is based solely on the testimony of James T.
Boyd, an attorney of record in this case, the substance of which was that M. B. Moore visited
his residence for the purpose of ascertaining from him what his client, Rick De Bernardi,
intended doing about the property in dispute. The evidence opposed to his testimony in this
particular is that of the witness M. B. Moore, who testified, in substance, that no such
conversation was ever had at the time and place stated by Boyd, or at all. The testimony of
these witnesses in all material respects is not only in sharp, but irreconcilable, conflict on the
material fact of notice.
material fact of notice. Hence, in order for the trial judge to have found that the witness Boyd,
on the date mentioned, informed the witness Moore of the existence of the agreement in
question, and of its terms and conditions, he must have acted upon the truth of the testimony
of Boyd and rejected the testimony of Moore. There being, then, a substantial conflict in the
evidence, under the rule, the finding is conclusive upon this court. Dixon v. Miller, 43 Nev.
280, 184 Pac. 926, and cases cited.
It has been repeatedly held that, in cases tried by the court without a jury, the same
consideration is given the court's findings as to a verdict, and the same rules apply as to
reversing them on appeal, on the ground that they are contrary to the evidence, as apply to a
verdict. In such a case the rule is the same as that which governs the court in reviewing a
judgment entered upon the verdict of a jury, which is that the jury must be deemed to have
found to be true the evidence that is most favorable to the prevailing party. Canda v. Totten,
157 N. Y. 286, 51 N. E. 989. We, therefore, in the absence of anything to show that the court
reached a wrong conclusion, decline to disturb the finding that Kate Moore was not a
purchaser without notice of the defendant's claim to the property.
In this connection it is proper to state that we ignore the argument that Kate Moore had
constructive notice of the defendant's right and claim to the property by reason of his
long-continued occupancy and possession thereof, for the reason that it is not within the issue,
which was that Kate Moore had actual notice of the agreement existing between the
defendant and her grantor when she purchased the property and gave a mortgage back to the
bank to secure the balance due on its purchase price. The relief granted defendant was upon
the ground that a constructive trust was created by the agreement between the defendant and
the bank, which the latter was bound to execute, of which agreement creating the trust Kate
Moore had actual notice.
It is next argued on behalf of Kate Moore, as the successor in interest of her grantor, the
Washoe County Bank, that the agreement between said bank and the defendant, upon which
the relief as prayed in the defendant's counterclaim was granted, is not established by
sufficient or legal evidence and, in the next place, if said agreement was so established, it is
not in writing, and therefore within the rule of the statute of frauds. We are of opinion that the
agreement was established by sufficient and competent evidence, but the question of whether
the conclusion of law that a constructive trust had arisen by virtue of the agreement which the
Washoe County Bank was bound to execute is worthy of discussion.
3, 4. It requires no argument to convince us that an attorney's authority to bind his client
extends only to such acts and agreements as are necessary for the due prosecution of the cause
or business in connection with which he has been employed; he has no implied power to bind
his client by an agreement collateral to and independent of the subject-matter of his
employment. A client is not bound by an unauthorized agreement of his attorney to convey
land. Thornton on Attorneys at Law, sec. 202. But we do not understand the case or the
finding of the trial judge to be that the agreement in question was not authorized and ratified
by the bank, but, on the contrary, that it was so authorized. The finding is based solely upon
the testimony of the defendant's attorney, Boyd, who testified, in substance, that, before the
agreement was consummated by him with one of the firm of attorneys for the bank, he was
first assured by the cashier of the bank, after stating to him his reasons for soliciting the
agreement on behalf of his client, that any agreement entered into by the witness with the
bank's attorneys would be entirely agreeable and satisfactory to the bank. It appears that at the
time the proposition was made to the bank, which culminated in the agreement, the bank had
commenced in action (in January, 1918) in the court below to foreclose a mortgage on the
land in controversy, which had been given it in 1914 by one Constance Parker to secure the
payment of her note to the bank for $3,000 and De Bernardi was made a party defendant
to the action.
Constance Parker to secure the payment of her note to the bank for $3,000 and De Bernardi
was made a party defendant to the action. It is conceded, or must be conceded, that De
Bernardi had an interest in the property which he had a right to protect and preserve from
being completely extinguished by the foreclosure of the bank's mortgage. It appears that he
was then in possession of the property, and had been in its continuous occupancy under a
claim of right since 1906, and, in order to protect and preserve his interest from entire loss,
and to obtain the advantage of having the legal title to the land conveyed to him through the
foreclosure proceeding, upon the authority of the cashier of the bank, De Bernardi's attorney
entered into an arrangement or agreement with R. M. Price, the attorney who had in charge
the foreclosure proceeding, whereby it was agreed that the bank should and would proceed
with the foreclosure of its mortgage for the defendant's use and benefit, and, upon acquiring
legal title thereto through its foreclosure proceeding, convey the land to De Bernardi, and, in
consideration for its promise to convey, De Bernardi agreed not to appear in the action and
permit his default to be taken, and not to become a bidder at the sheriff's sale of the property,
or take any other step, by action or otherwise, to protect his interest in the property. The
foreclosure took place, and upon the expiration of the time for redemption the sheriff of
Washoe County delivered to the bank a sheriff's deed to the property. The bank thereafter
refused to carry out its promise to convey the property to De Bernardi.
5. The cashier of the bank, as a witness in the case, testified, in substance, that he had no
knowledge or recollection of having ever authorized the agreement, as testified to by the
witness Boyd. There is no doubt that the witness may honestly have been of opinion that, if
he had authorized the agreement, he would have recalled the fact, and would never have dealt
with Kate Moore. But the cashier's nonrecollection, or the bank's repudiation of the
agreement by its conveyance of the property to Kate Moore, does not justify the deduction
that the agreement was not authorized by the bank's cashier.
property to Kate Moore, does not justify the deduction that the agreement was not authorized
by the bank's cashier. The cashier's failure to remember or recollect the fact does not amount
to a contradiction of the positive testimony of the witness Boyd that the agreement was
authorized by the cashier of the bank; neither does the conveyance of the property amount to
such a contradiction, because the repudiation of the agreement was but the conclusion of the
officers of the bank that no such agreement had been authorized. There being, then, no
substantial conflict in the evidence upon which the finding of the court is based, we decline to
disturb the finding.
6. The agreement having been established, the inquiry arises: Does the agreement and
circumstances of the case create a trust which a court of equity can enforce. In support of the
affirmative, counsel for De Bernardi rest their case on the principle, which has become almost
a maxim in equity, that the statute of frauds, intended as a protection against fraud, shall not,
in equity, be perverted to its consummation. We are in accord with what is said in Moseley v.
Moseley, 86 Ala. 292, 5 South. 732, that this principle, which may now be regarded as a
maxim, has been carried in many cases so far beyond the first intention as to amount to
annihilation of the statute of frauds. It is certain that the principle has been overworked by the
defendant in this case. The mere refusal to perform a parol agreement, void under the statute
of frauds, may be a moral wrong, but it is in no sense a fraud in law or in equity. Wheeler v.
Reynolds, 66 N. Y. 234.
7-9. In the present case no specific averment of fraud is alleged in the pleadings, but the
court concludes fraud in law from its findings, manifestly upon the assumption that to permit
the parties to hold the land in face of the agreement and the circumstances would be to
support a breach of trust, and a fraud in law. If from this it is to be understood, as argued by
the defendant, that the refusal of the bank to carry out its agreement constituted such a fraud
as calls for the intervention of a court of equity, we should be impelled to conclude that
there is no such element in its breach as to take it without the rule of the statute of
frauds.
intervention of a court of equity, we should be impelled to conclude that there is no such
element in its breach as to take it without the rule of the statute of frauds. On examination,
however, of the material findings, in connection with the evidence in the case, we are
satisfied that the court's conclusion of law is warranted, not because the bank refused to carry
out its parol agreement, but for the reason that it appears, as above stated, that the defendant
had an existing interest in the land, which, in reliance on the promise contained in the
agreement, he omitted to protect, and by its terms expressly precluded himself from
protecting from entire loss by the foreclosure of the prior mortgage of the bank. In reliance on
the agreement, he omitted and refrained from taking any other step to protect his interest, and,
furthermore, by the bank's failure to carry out the agreement he lost the advantage of having
the legal title transferred to him in its perfected state, which, apparently, was one of his
motives in soliciting the agreement. We are of opinion that, the defendant having an interest
in the land, the subsequent denial of the confidence reposed was such a surprise and fraud as
operates to convert the bank into a trustee ex maleficio, which trusts are excepted from the
operation of the statute of frauds. 3 Pomeroy, Eq. Jur. (4th ed.), sec. 1055, note 1.
10. The rule is established by a number of authorities that, where one having an interest is
induced to confide in the verbal promise of another that he will purchase for the benefit of the
former at a sheriff's sale, and in pursuance of this allows him to become the holder of the
legal title, a subsequent denial by the latter of the confidence is such a fraud as will convert
the purchaser into a trustee ex maleficio. In the case of Chadwick v. Arnold, 34 Utah, 48, 95
Pac. 527, the writer of the opinion industriously collates the numerous authorities in support
of this proposition. In addition, we cite the cases supporting the text, 39 Cyc. 180. As
remarked in Cutler v. Babcock, 81 Wis. 195, 51 N. W. 420, 29 Am. St. Rep. 882, the
distinction upon which cases such as this have been made to turn is as between one
having an interest in the premises to protect by the parol agreement and a mere stranger
to the title and estate seeking to enforce such agreement.
cases such as this have been made to turn is as between one having an interest in the premises
to protect by the parol agreement and a mere stranger to the title and estate seeking to enforce
such agreement. We readily concede that, if defendant had no interest in the property in
controversy, no constructive trust was created by the agreement, and without that interest the
agreement would clearly be within the rule of the statute. The defendant, however, having an
interest, and in reliance upon the bank's parol agreement to purchase and convey to him the
land on receipt of the legal title, the refusal of the bank to carry out the agreement and the
subsequent denial of the confidence reposed in it was such a fraud as to make the bank a
trustee for the defendant.
It is manifest that M. B. Moore, as agent for his wife, before he negotiated with the bank
for its purchase, had actual notice of the defendant's claim of interest in the property, but
obviously was of the opinion that the defendant's interest had been completely extinguished
by the foreclosure of the bank's mortgage and the sheriff's deed, and therefore her deed would
operate as her protection from the claim of the defendant. But this position, unfortunately for
Mrs. Moore, was overcome by the court's finding that her agent, prior to the date of the deed,
had actual notice that her grantor had promised and agreed to convey the legal title to the land
to the defendant. She was not, therefore, a purchaser in good faith without notice.
11. While it is not incumbent upon this court to answer argument, some of the contentions
of counsel for Mrs. Moore deserve special mention. It is urged that no confidential relation
existed between the bank and the defendant, and in the foreclosure of its mortgage it did
nothing more than what it had the right to do; that the bank's promise, at most, was but a
gratuitous undertaking, without consideration, unenforceable, and binding on no one; that the
inducement for the promise moved from the defendant to the bank, and not from the bank to
the defendant, and no fraud or imposition was practiced upon the defendant.
12. It is not indispensable that the conventional relation of trustee and cestui que trust, or
any express fiduciary relation, should exist between the original wrongdoer and the beneficial
owner of the land to create a constructive trust. They arise in invitum for the purpose of
working out justice in the most efficient manner. Millard v. Green, 94 Conn. 597, 110 Atl.
177, 9 A. L. R. 1610. It will not do to say, as said in Sandfoss v. Jones, 35 Cal. 487, quoting
from Soggins v. Heard, 31 Miss. 428, that the party promising was moved merely by friendly
or benevolent considerations, and may therefore, at his option, decline a compliance with his
agreement. Such considerations constitute the foundation of almost every trust, and the
trustee should be held to account as nearly as possible in the same spirit in which he
originally contracted.
For the reasons and upon the authorities hereinabove stated, we are of the opinion that the
evidence is sufficient in this case to support the findings, and the court's conclusions of law
are warranted thereby.
The decree appealed from is therefore affirmed.
December 1, 1923. 220 Pac. 544.
1. TrustsConstructive Trust Established Only by Clear and Satisfactory Evidence.
A constructive trust cannot be established by a mere preponderance of evidence, but
must be established by clear, definite, unequivocal, and satisfactory evidence.
2. TrustsAny unobjectionable Evidence Tending to Prove Fraud Admissible to Prove
Constructive Trust.
Any evidence which tends to prove or disprove fraud, actual or constructive, necessary
to constitute a constructive trust, and which is not objectionable as to the relevancy,
competency, and materiality of the evidence, is admissible.
3. TrustsParol Evidence Admissible to Prove Constructive Trust.
Parol evidence is admissible to prove facts and circumstances constituting fraud from
which a constructive trust arises.
4. Vendor and PurchaserPurchaser Not Affected by Secret Agreements of which He Had
No Notice.
The bona-fide purchaser of a legal title is not affected by any latent equity founded
either on a trust, incumbrance, or otherwise, of which he has no notice, actual or
constructive.
5. Vendor and PurchaserBona-Fide Purchaser Must Acquire Title before Notice.
To entitle one to the character of a bona-fide purchaser without notice he must have
acquired legal title, and actually paid the purchase money before receiving notice of the
equity of another.
6. Vendor and PurchaserUnrecorded Conveyances Are Void Only as to Subsequent
Purchasers in Good Faith.
Under Rev. Laws, 1038, providing that instruments to convey real estate to operate as
notice to third persons shall be recorded but shall be binding between parties thereto
without such record, it is only subsequent purchasers in good faith against whom
unrecorded conveyances are void, and a purchaser with actual notice is not a purchaser in
good faith.
7. Vendor and PurchaserOne Acquiring Estate with Notice of Earlier Equity Holds Subject
Thereto.
On who acquired a subsequent estate with notice of an earlier equity in favor of another
will hold his acquisition subject and subordinate to such outstanding interest or right.
Sardis Summerfield, M. B. Moore, and Hoyt, Norcross, Thatcher, Woodburn & Henley, for
Appellant:
In Moore v. Rochester Weaver Mining Co., 42 Nev. 178, this court said that where one
comes into court of equity seeking equitable relief in aid of a legal title, the party must first
establish his legal title, and where latter is doubtful, court will not grant relief.
Appellant was innocent purchaser without notice and entitled to benefit of her bargain as
against secret equity, if any, of respondent. In United States the rule is that, where the estate
subsequently purchased is legal estate, a notice, in order to be binding, must be received
before purchaser pays price. A notice afterwards does not preclude him from completing
transaction. 2 Pomeroy, Eq. Jur. (4th ed.), 1390.
The rule is applicable to one who has paid part of purchase price before notice of equity or
claim. Carroll v. Johnston, 2 Jones, Eq. 120; Baggerly v. Gaither, 2 Jones, Eq. 80; Phelps v.
Morrison, 24 N. J. Eq. 195. It is true that there is conflict in decisions as to protection
afforded where only part of price is paid prior to receipt of notice of equities. The decisions
above quoted give him the benefit of his bargain. A number of other decisions hold that he is
entitled pro tanto, the courts declaring he shall take portion paid for.
the courts declaring he shall take portion paid for. Sparks v. Taylor, 6 L. R. A. (N.S) 381,
390, 391.
Upon making contract for sale of land an equitable estate is created in purchaser, and
vendee is looked upon as owner of land, his estate being commensurate with that provided by
the contract. Fonts v. Foundery, 120 Pac. 960; 1 Pom. Eq. Jur. sec. 368.
Rev. Laws, 1038, specifically provides that, to operate as notice to third persons, the
contract or instrument must be recorded with county recorder.
Where deed is absolute on its face, but intended as mortgage, recording of deed, but
making no record of defeasance agreement, gives bona-fide purchaser absolute title free from
equity of redemption. Gruber v. Baker, 20 Nev. 453.
A junior equity of equal merit will prevail prior equity when junior equity acquires legal title.
21 C. J. 208; U. S. v. Detroit T. Co., 50 L. Ed. 499.
If one, in addition to an equal equity, has also legal title, he will prevail irrespective of
element of time. Rexford v. Rexford, 7 Lans. (N. Y.) 6; Newton v. McLean, 41 Barb. (N.Y.)
285.
A transaction will not be set aside in equity when its purpose was to defraud creditors or
other innocent persons. Equity will leave parties as it finds them. O'Neal v. Fenwick, 64 S.
W. 952.
The equity maxims as to clean hands and doing equity when seeking equity apply even
where a stranger might suffer from misconduct. Bently v. Bibbals, 223 Fed. 247; 21 C. J. 180,
184.
James T. Boyd, for Respondent:
Appellant's petition for rehearing is simply new argument upon old state of facts; no errors
or mistakes are pointed out. Rehearings are not granted as matter of right and are not allowed
unless there is reasonable probability that court erred. 43 Nev. 78; 29 Nev. 89; 44 Nev. 468.
The only person who could question authority of Price to enter into agreement was the
Washoe County Bank, and it does not question it.
The citations that counsel set out in their brief are good law, but not in point; in fact, they
are as far from the point in issue as is assumption that bank was the owner. The lower court
decided that Mrs. Moore secured the conveyance with full knowledge that bank was a mere
trustee of legal title, that De Bernardi was equitable owner, and that bank had foreclosed
mortgage and bought property for De Bernardi; and with that knowledge, in August, 1921,
Mrs. Moore accepted the deed from the bank. She was not bona-fide purchaser without
notice. 2 Pom. Eq. Jur. (4th ed.) 1488.
The citations by counsel deal only with priorities among equal equities, but the rule does
not apply in this case. The bank had no equity at any time, hence could give none. Chadwick
v. Arnold, 95 Pac. 527; Turner v. Turner, 125 Pac. 730.
In contest between persons having only equitable interest, priority of time is ground of
preference last resorted to. If one has a better equity than the other, priority of time is
immaterial. 1 Pomeroy, sec. 414.
This court has already answered the arguments set out in the petition: The rule is
established by a number of authorities that where one having an interest is induced to confide
in the verbal promise of another that he will purchase for the benefit of the former at a
sheriff's sale, and in pursuance of this allows him to become the holder of the legal title, a
subsequent denial by the latter of the confidence is such a fraud as will convert the purchaser
into a trustee ex maleficio, etc. Par. 10 of former opinion.
The best answer to the fraud charged in counsel's brief is the letter of Boyd in answer to
the letter of Moore in which Boyd stated that he would meet Moore at any time and settle
upon the amount due, and that De Bernardi would pay the amounts owed by him for the
property.
Counsel for appellant ask for a rehearing upon the following grounds:
(1) That the evidence is insufficient to support the finding of the court that Cheney,
Downer, Price & Hawkins, or Robert F.
finding of the court that Cheney, Downer, Price & Hawkins, or Robert F. Price, or either of
them, were authorized as agent, or otherwise, to enter into the agreement with James T. Boyd
on behalf of the respondent, Rick De Bernardi.
(2) That the evidence is insufficient to justify the decision of the court in that the
respondent, Rick De Bernardi, did not establish at the trial any legal title to the premises in
controversy.
(3) That this court erred in finding or assuming that appellant was the purchaser of the
land in question with notice of the equity claimed by the respondent.
A response to the petition will serve the purpose of correcting what seems to be an
erroneous impression of the facts and of strengthening the conclusions reached in our former
opinion.
The case was tried in the court below, and presented here upon two issuesone, that the
property in controversy was impressed with a constructive trust arising from the fraud of the
Washoe County Bank; the other, that Kate Moore, the appellant, was not entitled to the
protection of a subsequent purchaser without notice.
1-3. It is well settled that a constructive trust cannot be established by a mere
preponderance of evidence, but must be established by evidence which is clear, definite,
unequivocal, and satisfactory. 39 Cyc. 192; 3 Pom. Eq. Jur. (4th ed.) sec. 1058. Any evidence
which tends to prove or disprove the fraud, actual or constructive, necessary to constitute a
constructive trust, and which is not objectionable as to the relevancy, competency, and
materiality of the evidence, is admissible. Parol evidence is admissible to prove the facts and
circumstances constituting fraud from which a constructive trust may arise. 39 Cyc. 192.
The respondent's case was decided upon the application of these familiar principles. If
there be any doubt as to the correctness of the conclusion of law that the breach by the
Washoe County Bank of its promise or agreement to acquire the legal title to the property and
subsequently convey it to the respondent operated as such a fraud as to make the bank a
trustee ex maleficio for the benefit of respondent, it arises from the credence and weight
attached to the testimony of the witness James T.
and subsequently convey it to the respondent operated as such a fraud as to make the bank a
trustee ex maleficio for the benefit of respondent, it arises from the credence and weight
attached to the testimony of the witness James T. Boyd to prove the fraud necessary to
constitute a constructive trust. We examined and have reexamined the testimony of the
witness Boyd with very great care, realizing that the fraud constituting the trust was
established only by his testimony, he occupying the dual position of witness and attorney in
the cause. It is an unwritten law in the legal profession that an attorney may not be a witness
in the cause he is conducting, except when essential to the ends of justice. Canon 19 of
Professional Ethics of the American Bar Association.
It is conceded, or must be conceded, that the respondent's cause of action is grounded and
built upon Boyd's testimony, but for whose evidence the cause of action might not have
existed or have been maintained. Boyd became a witness in the case out of extreme necessity.
Whether, under the circumstances, he should have withdrawn from the case and not have put
forth all his skill as an advocate to maintain a cause of action of his own making is a matter
which rests with Boyd and not with this court. Conceding the infirmative considerations
attaching to his testimony because of his dual position as witness and attorney, the trial judge
believed in the truthfulness of his testimony, acted upon it, and drew from it the conclusion of
law that the Washoe County Bank's failure to keep faith with its promise made to Boyd to
acquire the legal title to the property through the foreclosure of its mortgage and convey it to
his client operated as such a fraud as to make the bank a trustee ex maleficio. The books are
full of such cases. It is true the bank denied in its pleading that the agreement was authorized
or ratified by it. This denial cast upon De Bernardi the burden of establishing by clear and
convincing evidence the fact that the agreement was not only authorized but ratified by the
bank. To maintain this issue Boyd testified to a conversation had by him with Mr.
by him with Mr. Taylor, the cashier of the bank, before the agreement in question was
consummated between Boyd and the bank's attorney, R. M. Price. It is not charged that Boyd
talked with Mr. Taylor, meaning afterwards to swear to the conversation, and upon that
conversation found a right which otherwise his client would not have had, but it is strongly
urged by counsel for the petitioner that Boyd's account of the conversation, standing alone
and uncontradicted, does not show that Boyd was authorized on the part of the bank to make
or to enter into the agreement he did with the bank's attorney of record in its then pending
action to foreclose its mortgage on the property in question, and to which action Rick De
Bernardi was made a party defendant with Constance Parker, the mortgagor.
If the cause of action were predicated solely upon the alleged authority conferred on Boyd
by the cashier in the conversation as detailed by Boyd, we should be inclined to agree with
counsel, but, taking into consideration Boyd's account of the entire transaction, it appears that
R. M. Price did not act upon the alleged authority as given Boyd by the cashier. His testimony
tends to show that Price, before entering into the arrangement as proposed by Boyd, visited,
as any prudent attorney would before obligating his client to such an agreement, the office of
the cashier of the bank, and returned with the assurance that the arrangement as proposed was
agreeable and satisfactory to the bank. Boyd's positive testimony certainly cast upon the bank
the burden of answering it.
In our former opinion we endeavored to make it clear that Mr. Taylor's nonrecollection or
failure to remember ever having told Boyd that any arrangement he might make with the
bank's attorneys with reference to its mortgage would be satisfactory to the bank did not raise
a conflict of evidence.
Judges almost invariably hold that, as a matter of course a witness's positive testimony to
an oral declaration, admission, or contract is not overcome by the other party's testimony only
to nonrecollection thereof, or his denial that, 'to is recollection,' it was made, or his positive
denial which dwindles down on cross-examination to mere absence of recollection.
or his denial that, to is recollection,' it was made, or his positive denial which dwindles down
on cross-examination to mere absence of recollection. * * * 2 Moore on Facts, sec. 1169,
and authorities cited.
In applying this rule of evidence to the dispute or contradictions between the testimony of
the witness Boyd and Mr. Taylor, we took into consideration that ordinarily a cashier of a
bank, in the nature of things, by reason of his position and his duties, ought to have known
whether he authorized or assented to an agreement affecting a bank's security, such as a
mortgage. We have no doubt that Mr. Taylor was sincerely conscientious in impressing upon
the trial court that, if he had at any time authorized the agreement, he would have recalled it.
Mr. Taylor was fair enough with his adversary to state in the course of his examination that, if
Mr. Price would say that he called upon him at the time and in the course of the transaction,
as testified by Boyd, and obtained from him authority or his assent to the arrangement as
proposed by Boyd, he would believe Mr. Price, as he considered him a truthful man. Mr.
Taylor thus appealed to Price to support his position. If Price was available as a witness, the
bank, in justice to Mr. Taylor and its defense, should have called him. The record shows that
Price was available as a witness, but was not called. The bank's failure to call a witness who
had full knowledge of the facts essential and material to its case creates an inference that the
bank refrained from calling Price because his testimony would not aid its contention that the
agreement in question was not authorized, ratified, acquiesced in, or confirmed by the bank.
16 Cyc. 1064.
In the present state of the record we cannot say that the agreement, made the basis of the
respondent's cause of action, was not authorized and ratified by the bank. We therefore adhere
to our former opinion upon this branch of the case with this observation upon the argument of
counsel for petitioner: That the negligence of respondent in failing to obtain a written
stipulation or written contract and to record the instrument is wholly responsible for the
position in which the respondent found himself.
is wholly responsible for the position in which the respondent found himself. Rule 27,
District Court Rules. We concede that this rule of practice requiring that stipulations between
parties to causes not made in the presence of the court shall be in writing is a wholesome rule.
Its policy is obvious. It points to the imminent danger of making the rights of parties in the
conducting of a lawsuit depend upon the memory or the truthfulness of attorneys of record in
the case. But in this instance the mischief had been done, and it is our duty to meet the case as
it is presented by the record. Boyd's testimony as to the admission of material facts imputed to
the bank stands uncontradicted. The testimony of Price, the opposing counsel of record, might
have put a different color upon the verity of Boyd's testimony, but in the present state of the
record it is not impeached.
The second ground urged upon us for a rehearing is not within any of the issues of the
case, and we pass, therefore, to the consideration of the third and more serious objection to
our former decision, namely, that we failed to protect Kate Moore's rights as a subsequent
bona-fide purchaser against the claim or equity of respondent.
In support of this contention it is pointed out that the respondent did not come into the
court of equity with clean hands, but with supplicant hands holding up a clandestine, secret
agreement entered into by his attorney, James T. Boyd, with a mortgagee, for the purpose of
securing an advantage over a mortgagor, Constance Parker, with whom the respondent was
then in litigation over his claim or equity to the property because of an executory contract of
sale, and this acquire the legal title to circumvent the result of that litigation, should it
terminate adversely to him.
4. The decisions are uniform that the bona-fide purchaser of a legal title is not affected by
any latent equity founded either on a trust, incumbrance, or otherwise, of which he has no
notice, actual or constructive. Brophy M. Co. v. B. & D. G. & S. M. Co., 15 Nev. 108. For
the purposes of rehearing it is conceded that Kate Moore had actual notice of the
respondent's latent equity founded upon his agreement with the Washoe County Bank.
For the purposes of rehearing it is conceded that Kate Moore had actual notice of the
respondent's latent equity founded upon his agreement with the Washoe County Bank. This
being true, she is in no position to question the motive of her adversary, but she insists that,
conceding that she was a purchaser with notice, the proof shows that, before receiving notice,
she had become a complete purchaser by having paid to her grantor the full purchase price, or
what was tantamount in law thereto, and she was not, therefore, precluded from completing
the transaction by obtaining a conveyance of the legal title, and thus secure the precedence
due to a bona-fide purchaser for the value and without notice. 2 Pom. Eq. Jur. (4th ed.) sec.
691.
The argument and the very authorities cited in the petition concede that there must be
actual payment before any notice, or what in law is tantamount to actual payment, to entitle
Kate Moore to protection. That a promise, contract, bond, and mortgage, or other
non-negotiable security for the purchase price, will not render the party a bona-fide purchaser,
nor entitle him to protection; for upon failure of the consideration he can be relieved from
such obligations in equity, even if not at law. 2 Pom. Eq. Jur., sec. 751. Notice after the
agreement for the purchase is made, but before any payment, will destroy the character of
bona-fide purchaser. 2 Pom. Eq. Jur., sec. 750; 27 R. C. L., sec. 468, p. 703; 39 Cyc. 1763.
5. To entitle a party to the character of a bona-fide purchaser, without notice, he must
have acquired the legal title, and have actually paid the purchase money before receiving
notice of the equity of another party. Moresi v. Swift, 15 Nev. 215.
Was the purchase money paid before notice? The evidence, in our opinion, shows that it was
not.
Kate Moore, as a witness in her own behalf, testified that she deposited with the Washoe
County Bank, on or about June 3, 1920, $3,217 for one-half of the purchase price of the
property in question. She admitted that her husband, M. B. Moore acted as her agent in all
her transactions and negotiations for the purchase of the property.
her transactions and negotiations for the purchase of the property. When we look to the
testimony of her agent and husband, M. B. Moore, we find it was upon the 10th day of July,
1920, that it was finally agreed that Mrs. Moore would become the sole purchaser of the
property, according to the terms and conditions then and there agreed upon. The deed which
conveys the property to Kate Moore bears the date of the 22d day of July, 1920. This being
the date of the conveyance pursuant to the agreement made on the 10th day of July, 1920,
when, then, was the actual payment for the property made? In the course of his
cross-examination, after having testified that the agreement to purchase was made on the 10th
day of July, 1920, Mr. Moore was asked this question:
Q. And if I understand you, then, on the 21st or 22d day of July is when the final
agreement was finally entered into and consummated, is that correct? A. When the payment
was made.
Q. Well, that is when you finally determined on it, too, wasn't it? A. No; I think that the
final arrangements were made some days preceding that.
The witness, in the course of his examination, stated that the payment under those terms,
as he recollected it, was in the neighborhood of the 22d day of July, 1920.
M. B. Moore, as agent, as shown by the former opinion, received actual notice of the claim
or equity of Rick De Bernardi, founded upon the agreement so much discussed, on the 19th
day of July, 1920, three days before actual payment was made. Under these circumstances it
cannot be claimed that the purchase money was paid before notice. Regardless, then, of the
contract to purchase having been made before notice, both on principle and on a just
consideration of the authorities, Kate Moore was not a complete purchaser before notice, and
therefore not entitled to protection.
6. The petitioner further contends that she was entitled to protection as a bona-fide
purchaser under the registry or recording statute (Rev. Laws, 1038). It is only subsequent
purchasers in good faith against whom unrecorded conveyances are void; and a purchaser
with actual notice is not a purchaser in good faith of the estate previously conveyed.
whom unrecorded conveyances are void; and a purchaser with actual notice is not a
purchaser in good faith of the estate previously conveyed. Gilson v. Boston, 11 Nev. 413.
7. We are urged to grant a rehearing for the further reason that in the present state of the
record it affirmatively appears that the equities of the parties are shown to be equal, and that
Kate Moore, having subsequently acquired the legal title to the property, thereby secured an
advantage which entitled her to priority over the latent equity of Rick De Bernardi. This
contention is set at rest by the application of the doctrine that, between an earlier equity and a
subsequent legal estate, even when purchased for a valuable consideration, the one who
acquires the subsequent estate with notice of the earlier equity in favor of another person will
hold his acquisition subject and subordinate to such outstanding interest or right. This
subordinating effect is produced from information given to an agent. 2 Pom. Eq. Jur., sec.
730.
No principle is better settled than that if A contract to sell land to B, but before
consummating the sale conveys the same land to C, who has a knowledge of the preexisting
contract, C is in equity bound to fulfil that contract. Stonecifer v. Yellow Jacket S. M. Co., 3
Nev. 38.
Rehearing denied.
Ducker, C. J.: I concur in the order.
Coleman, J., concurring:
I concur in the order denying the petition for a rehearing. The grounds relied upon for a
rehearing are set forth in the foregoing opinion of my learned associate. As to the first ground,
there is absolutely no basis for it. Mr. Boyd gave positive testimony of the agreement relied
upon. Mr. Taylor nor any one else could affirm or deny it. All that his evidence amounts to is
that he did not recollect. This is strictly negative in character, and is entitled to no
consideration. 10 R. C. L. p. 1010, sec. 202.
Mr. Taylor was willing to accept the evidence of Mr.
Price as to the fact. Mr. Price was the attorney for the bank, and it is a party to the suit, and is
interested in the result. But the bank did not see fit to call him as a witness. In these
circumstances the presumption is that the testimony of Mr. Price would have been in accord
with that of Mr. Boyd, had he been called as a witness. Sherman v. S. P. Co., 33 Nev. 385,
402, 111 Pac. 416, 115 Pac. 909, Ann. Cas. 1914A, 287.
As to the second ground, it may be said that De Bernardi did not rely upon a legal title, nor
did this court in its former opinion affirm the judgment upon that theory, but upon the theory
that he established a title superior in equity to the title of appellant.
The third and last reason assigned for a rehearing is that this court erred in finding or
assuming that appellant was a purchaser with notice of respondent's equity. To this contention
I think it may be said that, in reaching the opinion which we did in the original opinion, we
assumed nothing and made no finding, but, on the contrary, relied solely upon the findings of
fact made by the trial court. In this connection, I think it sufficient to say that the trial court
was fully justified under the evidence in making the findings which it did. As I read the
record and the briefs, there are but two questions of fact presented. One I have alluded to, and
the other is as to whether or not Mrs. Moore had notice of De Bernardi's equity prior to the
consummation of the deal and the acquisition of title by her. My learned associate has stated
the law on this point and invoked a former opinion of this court to buttress his position. As
started in that opinion
The purchase must be made in good faith, for a valuable consideration, and the purchase
price must be wholly paid, and the conveyance of the legal title received before notice.
Moresi v. Swift, 15 Nev. 215.
It is admitted that the deed passing the legal title to Mrs. Moore was not delivered for several
weeks after the 22d of July. The court found that M. B. Moore, the attorney for Mrs. Moore,
had actual notice of De Bernardi's equity on July 19, and that the purchase money was not
paid until the 21st or the 22d.
money was not paid until the 21st or the 22d. In view of this finding the petition for rehearing
must be denied, even though we were to assume that the long delay in the delivery of the deed
is inconsequential.
____________
47 Nev. 59, 59 (1923) Yturriaga v. Cobeaga
No. 2558
YTURRIAGA v. COBEAGA
April 18, 1923. 214 Pac. 27.
1. PartnershipFinding that Note Sued on Was Given in Payment of Services Rendered to
Defendant as Surviving Partner Sustained.
In an action against a surviving partner on a note evidence held to sustain a finding that the note was
given in payment for services rendered to defendant as surviving partner.
2. PartnershipTestimony as to Services in the Care of Sheep Belonging to Partnership Held
Admissible in Action against Survivor on Note Claimed To Be for Services Rendered to
Defendant as Survivor.
Where, in an action against a surviving partner to recover on a note signed by him in his own name and
alleged to have been given for services rendered to him as surviving partner, it was in evidence that
defendant continued in possession of the partnership property and continued to manage the business,
admission of testimony tending to show plaintiff's services were performed in the care of sheep belonging
to the former partnership held not error, in view of the presumption of law that defendant was conducting
the partnership business with a view of closing it up as provided in Rev. Laws, 6025.
3. PartnershipRecovery on Note Alleged To Be for Services to Survivor as Such Held Not
Affected by Fact Note Was signed in His Individual Name.
The fact that the survivor signed his individual name to a note alleged to have been given in payment of
services rendered to him as survivor would not preclude recovery on the note against him as survivor,
where he was accustomed to sign checks in his own name paid out of the firm account, and, besides, was a
foreigner, untutored, and inexperienced in business matters.
4. PartnershipWhether Survivor Delayed Closing up Business Question of Fact.
While it is the duty of a surviving partner to close up the partnership business without delay, pursuant to
Rev. Laws, 6025, what constitutes delay is a question of fact in a particular case.
5. StatutesStatute as to When Person Is and Is Not Liable on Instrument Held Not to Apply
to Suit against Survivor on Note Claimed To Be for Services Rendered to Him as
Survivor.
In an action against a surviving partner on a note signed by him in his individual name, but claimed to
have been given for services rendered to him as surviving partner, Rev. Laws, 2565, providing when a
person is and is not liable on an instrument, held not to apply.
Appeal from Sixth Judicial District Court, Humboldt County; James A. Callahan, Judge.
Action by Manuel Yturriaga against Miguel Cobeaga, as surviving partner of Domingo
Bengoa, a copartnership. Judgment for plaintiff, and defendant appeals. Affirmed. Petition
for rehearing denied.
Warren & Hawkins, for Appellant:
No person can be charged on a written contract except those who are parties to it; in an
action upon such contract the whole liability must be made out on the instrument itself, and
parol evidence is not admissible to alter, add to, or vary it, which is clearly done when it is
admitted either to discharge one party or to substitute or add another to it. Gillig, Mott & Co.
v. Lake Bigler Road Co., 2 Nev. 219.
One who signs in a trade or assumed name will be liable to same extent as if he had signed in
his own name. Rev. Laws, 2565, being section 18, Negotiable Instruments Law.
Surviving partner has exclusive right to liquidate affairs of firm, and he is under the duty
to do this promptly and honestly. He may exercise whatever legal power is necessary, and is
not deemed trustee for benefit of firm creditors. He has no right to subject estate to any new
obligations (30 Cyc. 621), or to give promissory note, even if given in firm name, without
authority from deceased. 30 Cyc. 622, note 37.
Death of partner dissolves firm, unless otherwise agreed. 30 Cyc. 620, 653.
Thomas E. Powell, for Respondent:
Partnership assets, as such, form no part of individual estate of deceased partner; the
residue only, after satisfying liabilities and advances, if any, made by survivor, becomes
property of estate.
vidual estate of deceased partner; the residue only, after satisfying liabilities and advances, if
any, made by survivor, becomes property of estate. Andrade v. Sup. Ct., 17 Pac. 531; Theller
v. Such, 57 Cal. 447, 459.
A partner cannot bequeath any specific article of firm property, for he has no absolute title
to any part of it. It is all subject to payment of partnership debts, and then to adjustment of
interests of partners. Brady v. Foley, 53 Pac. 761, 762.
While the authorities cited by counsel hold that surviving partner cannot bind estate of
deceased upon promissory note given after death, they do not hold that partnership property
cannot be bound. Surviving partner has power to mortgage firm property to secure firm debts,
or to raise money with which to pay firm debts, or to secure money borrowed by him after his
partner's death and which was used in paying firm debts. 30 Cyc. 624; Burchinell v. Koon, 52
Pac. 1100.
This action was instituted against Miguel Cobeaga, as the surviving partner of Domingo
Bengoa, deceased, to recover an amount alleged to be due upon a promissory note executed
September 23, 1920, and signed Miguel Cobeaga. During the lifetime of Bengoa, he and
Cobeaga were engaged in the sheep business under the firm name of Domingo Bengoa.
Bengoa died in October, 1918, leaving a widow surviving. Ever since the death of Bengoa the
defendant has been in the exclusive control and management of the assets of the partnership
theretofore existing between himself and Bengoa. Upon the death of Bengoa, Moses Reinhart
qualified as the administrator of his estate.
After the trial had taken place, the court made formal findings, which were to the effect
that, after the death of Domingo Bengoa, Miguel Cobeaga, as sole surviving partner, held
possession of all the property of the former partnership and continued to conduct the business
thereof in his own name; that the plaintiff rendered services to the defendant as the sole
surviving partner; that the note in question was given in payment of such services; and that
no part of the note had been paid, and rendered judgment accordingly.
such services; and that no part of the note had been paid, and rendered judgment accordingly.
An appeal was taken from the judgment and the order denying the motion for a new trial.
If the findings are sustained by the evidence, the judgment must be affirmed, since it is
admitted that the plaintiff rendered services of the value stated in the note, that the note was
executed by Cobeaga, and that it had not been paid.
The theory of the plaintiff is that the services for which the note was given were rendered
to Cobeaga as surviving partner, in closing up the partnership business, while it is contended
by the defendant: (1) That after the death of Bengoa his widow became a partner of Cobeaga,
and that the property of the partnership theretofore existing went into the partnership thus
created, and that Cobeaga had no authority to execute a note binding upon such partnership;
and (2) that in fact the service rendered by the plaintiff was for a partnership, consisting of
Miguel Cobeaga, Joe Cobeaga, and Mrs. Bengoa, the widow. Does the evidence justify the
findings of the trial court?
1. At the time this action was tried, another was pending against this defendant upon a
note given to Joe Unda by Cobeaga for services alleged to have been rendered to him as
surviving partner of Bengoa. The two suits were tried together, since the conclusion in one
would control in the other. Joe Unda was called as a witness in behalf of plaintiff, and he
testified that prior to and at the time of the death of Bengoa he was employed by the firm
composed of Bengoa and Cobeaga; that he continued in the employ of the defendant after the
death of Bengoa; that from time to time thereafter he was employed by Cobeaga in looking
after sheep, and that the services for which the note sued upon was given were rendered
pursuant to such employment; that he had been paid from time to time for the services
rendered Cobeaga and that all payments were made by him. He also testified that the sheep
the plaintiff herded were sheep that were in the partnership prior to Bengoa's death, and their
increase. The plaintiff in this action testified to substantially the same facts.
this action testified to substantially the same facts. Moses Reinhart, the administrator of the
estate of Bengoa, and president of the Winnemucca State Bank and Trust Company, where
the firm had always done its banking, was called as a witness. It appears that this institution
was something of a confidential agent of the firm in question, at least after the death of
Bengoa, and that Mr. Reinhart was intimately acquainted with the affairs of the firm as they
were conducted after the death of Bengoa. He testified that prior to the death of Bengoa the
banking of the firm was done in his name. He also testified:
Q. I notice there is a change in the style of the partnership occurring after the death of
Bengoa; that is, the partnership name is changed. Why was that partnership named changed
from Domingo Bengoa to Bengoa and Cobeaga? A. During the lifetime of Bengoa the
accounts were carried in his name just simply for convenience; he did all the business.
Q. And why was the partnership named changed when he died? A. Because that was the
name of the partnership; they were always partners, so I opened the account under the name
of Bengoa and Cobeaga.
Q. Let me refresh your mind and see whether or not there was any other reason. Did Mrs.
Bengoa have any interest, the widow of Domingo Bengoa? A. Yes, she did.
Q. What was her interest in the partnership property? A. She was the wife of Domingo.
Q. And what percentage of interest did she have, as you understood? A. A half interest.
Q. And did the the change of the partnership name meditate including her? Was that the
reason it was changed? A. That is one reason it was changed; yes.
Q. Mr. Reinhart, do you know who the other member of the firm was other than Cobeaga,
after the death of Bengoa? A. I do not.
Q. That is, as far as you know there was no other member of the firm, that is, living
member of the firm, other than Cobeaga? A. Not to my knowledge; no.
Mr. Reinhart testified that Mrs. Bengoa received certain monthly allowances, upon the
order of the court.
certain monthly allowances, upon the order of the court. While it is not clear, it is evident that
this order was made in the matter of the estate of Domingo Bengoa, as it does not appear that
any other proceedings were pending in which such an order could have been made.
There is no testimony whatever of any partnership agreement having been entered into
between Cobeaga and the widow of Bengoa, on the one hand, or between Miguel Cobeaga,
Joe Cobeaga, and the widow Bengoa, on the other, or that she may put any money or property
into either of such partnerships. Miguel Cobeaga did give evidence whereby he sought to
establish the fact that Domingo Bengoa during his lifetime purchased a band of sheep which
went into a partnership consisting of Bengoa, the defendant, and Joe Cobeaga, and that upon
the death of Bengoa his widow became a partner in that firm. But there is not a scintilla of
evidence tending to show that Mrs. Bengoa ever heard of such partnership or that she agreed
to become a member thereof. There is no testimony tending to show that any one else ever
heard of such a partnership. Certainly neither the plaintiff nor Unda ever heard of it. Mr.
Reinhart testified that upon the death of Bengoa the heading of the account was changed to
Bengoa & Cobeaga, but that checks signed by Cobeaga personally were paid out of that
account. Mrs. Bengoa was not called as a witness.
Numerous errors have been assigned as grounds for the reversal of the judgment, but we
shall not consider them separately, believing that what we shall say will result in a disposition
of the entire case.
2. Among the errors assigned there are some to the effect that the trial court erred in
admitting in evidence the testimony of Joe Unda and of the plaintiff, tending to show that the
services which they rendered, and for which the note sued upon was given, though signed by
Cobeaga as an individual, were performed in the care of sheep, and their increase which
belonged to the partnership composed of Domingo Bengoa and Miguel Cobeaga.
3, 4. We think the court was amply justified in its ruling. Section 6025, Revised Laws of
Nevada, provides that upon the death of a partner the surviving partner shall have the right to
continue in possession of the effects of the partnership and to settle the affairs thereof without
delay. The complaint alleges that Miguel Cobeaga took possession of the assets of the
partnership upon the death of Bengoa and continued to conduct the business of said
partnership as the sole surviving partner, and as such executed the note in question in
payment for work and labor performed for the partnership and for the defendant as sole
surviving partner thereof, and that the note had not been paid. The answer was in effect a
general denial. It is clearly shown that the defendant continued in the possession of the
partnership property and continued to manage the business. This being true, it follows as a
presumption of law, until the contrary is shown, that he was conducting the business with a
view of closing it up as provided by statute. The trial court made no finding contrary to this
presumption, but, on the other hand, its finding is in accord with it. It was certainly proper for
the court to hear the evidence and ascertain whether or not the note sued upon was given in
payment for work and labor performed * * * for Miguel Cobeaga, as the sole surviving
partner of said firm, as alleged in the complaint. That was the issue before the court, and it
was the duty of the court to hear the evidence and ascertain the facts. We do not think that the
fact that the defendant signed a note in its individual name should prevent a recovery in this
case. He was accustomed to signing checks in his own name which were paid out of the firm's
bank account. He is a foreigner untutored and inexperienced in business methods. After all,
he was doing firm business. The indebtedness was contracted in the preservation of the assets
of the partnership for the benefit of its creditors and the estate of the deceased. At the time of
the death of Bengoa, the partnership was indebted to the extent of many thousands of dollars,
and while it was the duty of the surviving partner to close up the business of the partnership
without delay, what constitutes delay is a question of fact in a particular case.
without delay, what constitutes delay is a question of fact in a particular case. A surviving
partner is allowed some latitude in the exercise of his discretion in such matters. As was said
by the Supreme Court of Kansas in Big Four Imp. Co. v. Keyser, 99 Kan. 8, 161 Pac. 592, L.
R. A. 1917c, 166:
The surviving partner is vested with some discretion as to the manner of closing the
business and the time to be taken for that purpose. He may continue the business long enough
to close it up without sacrificing the assets and long enough to make an advantageous
disposition of the stock.
If the defendant had unduly delayed closing the partnership, the administrator of Bengoa,
who was also president of the bank which was the main creditor of the partnership, could
have taken steps to compel a speedy closing up thereof. There is no suggestion of delay on the
part of the surviving partner in closing up the affairs of the partnership by any one. The case
of Burchinell v. Koon, 8 Colo. App. 463, 46 Pac. 932, affirmed in 25 Colo. 59, 52 Pac. 1100,
is one wherein a surviving partner borrowed the money while conducting the business, and
gave his note therefor, secured by a mortgage, and the court held that he had authority so to
do; the court saying:
We do not regard the case as at all affected by the fact that a portion of the fund
represented by the note was advanced to the survivor after the death of the other member of
the firm. The money went into the general firm account, was for the benefit of the estate as
controlled by the survivor, and was applied to the liquidation of outstanding firm
obligations.
In that case money was borrowed for the benefit of the estate. In this case labor which had
a money value was obtained to preserve the partnership estate. The same rule applies to both
situations. We do not understand that counsel for appellant contend that a surviving partner
has not the authority to give a note for money borrowed or for services rendered, while
conducting the business in closing it up. The Colorado case mentioned cites several
authorities in support of the rule relied upon.
mentioned cites several authorities in support of the rule relied upon.
The ruling of the trial court was correct, and the evidence amply sustained the judgment.
5. Under the facts of this case, section 2565, Revised Laws of Nevada, has no application.
What we have said necessarily disposes of the case.
It is ordered that the judgment and order appealed from be affirmed.
November 1, 1923.
Per Curiam:
Rehearing denied.
____________
47 Nev. 67, 67 (1923) Linebarger v. Devine
No. 2573
LINEBARGER v. DEVINE
May 2, 1923. 214 Pac. 532.
1. Frauds, Statute ofIndivisible Contract Not Enforceable, if Portion Is within Statute.
An indivisible contract is unenforceable, if a part thereof falls within the statute of frauds.
2. ContractsWhether a Contract Is Separable or Entire Depends on Intention of Parties, To
Be Ascertained from Language and Subject-Matter.
Whether a contract is entire or separable into distinct and independent contracts is a question of the
intention of the parties, to be ascertained from the language employed and the subject-matter of the
contract.
3. ContractsIndivisible Contract Defined.
If the several stipulations are so interdependent that the parties cannot reasonably be considered to have
contracted, but with a view to the performance of the whole, or that a distinct engagement as to any one
stipulation cannot be fairly and reasonably extracted from the transaction, the contract is entire and
indivisible.
4. Frauds, Statute ofGenerally Statute Not Applicable to Collateral Undertakings Outside
of Contracts for Sale of Land.
Generally the statute does not apply to collateral or independent undertakings outside of contracts for the
sale of land.
5. Frauds, Statute ofPurchaser's Agreement to Insure Property Held within Statute, Because
Not Separate from Contract for Sale of Land.
Purchaser's agreement to insure the property constituting a part of the consideration of the agreement to
sell held not enforceable, where not in writing, under Rev. Laws, 1069, requiring
contracts for the sale of land to be in writing, such agreement not being separable
from the contract to purchase the land.
6. Frauds, Statute ofDamages for Purchaser's Breach of Unenforceable Parol
Agreement to Insure Property Held Not Recoverable.
enforceable, where not in writing, under Rev. Laws, 1069, requiring contracts for the sale of land to be in
writing, such agreement not being separable from the contract to purchase the land.
6. Frauds, Statute ofDamages for Purchaser's Breach of Unenforceable Parol Agreement to
Insure Property Held Not Recoverable.
Vendor could not recover damages for purchaser's breach of parol agreement to insure property, where
such agreement was inseparable from the contract to purchase the property because a part of the
consideration, and therefore was unenforceable under the statute, notwithstanding Rev. Laws, 1073,
providing that nothing contained in the act relating to conveyances should be construed to abridge the
powers of courts to compel specific performance of agreements, in cases of part performance of such
agreement; such statute being applicable only to equitable actions, and not actions at law for a breach of a
void contract.
1. Appeal and ErrorAppellate Court Not Precluded by Statute from Determining Point of
Law Necessarily Involved in Question for Decision.
Stats. 1923, c. 97, sec. 4, declaring that the supreme court shall not decide any case on any point not
raised in the briefs without giving all parties affected an opportunity to be heard thereon, does not preclude
the court from deciding a point of law necessarily involved in the question for decision.
2. Appeal and ErrorObjection Raised First on Motion for Rehearing Held Made too Late.
Objection raised for the first time on motion for rehearing, that the statute of frauds, as affecting the case,
was not raised by the pleadings or upon the trial, comes too late.
Appeal from Eighth Judicial District Court, Elko County; E. J. L. Taber, Judge.
Action by W. F. Linebarger against C. P. Devine and others, individually and as copartners
doing business under the firm name and style of Waltenspiel, Devine & Co. From judgment
for plaintiff, and from an order denying a motion for a new trial, defendants appeal.
Reversed. Rehearing denied.
McCarran & Mashburn, for Appellants:
An unperformed contract for sale, etc., of land (except leases for year or less) must be in
writing, signed by parties to be charged, must express consideration, and must be performed
within a year. Rev. Laws, 1069, 1071, 1075, 1088, 1089.
Part performance or part payment will not take transaction out of the statute of frauds.
transaction out of the statute of frauds. Clark, Contracts, 112; Osborne v. Kimball, 21 Pac.
163; Warner v. Ry. Co., 54 Fed. 922.
The burden is certainly upon respondent to establish facts necessary to entitle him to
recover, to wit: that appellants did agree to insure property for his protection, and that there
was a lawful and binding contract for sale of property, by which appellants obtained an
insurable interest which they could insure for his protection.
We submit the testimony clearly establishes that there were no such agreement and
contract; therefore respondent was not entitled to maintain his action.
Badt & Dysart, for Respondent:
A simpler case of contract would be hard to find. It is alleged that defendants agreed to
insure property for protection of plaintiff; they did not do so, the house burned down, and
plaintiff was damaged in specific sum. Defendants deny the contract. Upon trial there was a
direct conflict of testimony as to whether defendants had so promised to insure. The trial
court found for plaintiff, and, according to well-settled rules of this court findings and
judgment of district court will not be disturbed.
The statute of frauds is not in issue. The case is made by pleadings.
This was an action brought to recover damages for the breach of an alleged agreement to
insure a dwelling-house and its contents against loss by fire for plaintiff's protection, while
the defendants were in the possession and occupancy of the property as purchasers from
plaintiff under and by virtue of an executory contract of sale. The case was tried before the
court without a jury, and judgment was rendered in favor of the plaintiff and against the
defendants in the sum of $1,250. The defendants appeal from said judgment, and also from an
order denying and overruling their motion made for a new trial.
For present purposes, the material facts stated in the complaint may be shortly stated to be
as follows:
In June, 1919, plaintiff agreed to sell, and the defendants agreed to buy from plaintiff,
three lots or parcels of land, together with the dwelling and improvements thereon, situate in
the town of Carlin, Nevada, for the agreed price of $1,500, payable $100 in cash, and the
balance in monthly payments of $50 each, until the full purchase price was paid. The cash
payment was made at the time, and three of the monthly payments were made in accordance
with the terms of the agreement, leaving a balance to be paid of $1,250. It is alleged in the
complaint that at the time of the agreement, and in consideration thereof, and in consideration
of the plaintiff letting the defendants into the possession of the property, the defendants
agreed to insure the dwelling-house and its contents for at least the sum of $1,400, to insure
plaintiff against any loss or damage in the event the said premises should be destroyed by fire
before plaintiff should be paid in full for the property agreed to be sold. It is alleged that
defendants, in violation of their said agreement to insure the property, and in violation of
plaintiff's right and interest in the property, wilfully and fraudulently insured the property in
their own names; that in September, 1919, the dwelling-house and its contents, agreed to be
insured by defendants, was totally destroyed by fire. The other recitals in the complaint are
made by way of aggravation, and need not be stated. The complaint concludes with the
averment that, by reason of the defendants' wilful and fraudulent refusal, failure, and neglect
to comply with their agreement to insure the property for plaintiff's protection, plaintiff was
damaged in the sum of $1,250, and prayed judgment for that amount.
The material facts developed on the trial of the case are as follows:
The agreement set out in the complaint was not in writing, but it appears to have been the
understanding of the parties that it would be subsequently reduced to writing by an attorney
for the defendants, and formally executed, and that thereafter the defendants caused to be
delivered at plaintiff's place of business a writing signed by them, which contained the
terms of the agreement as understood by them, which plaintiff refused to sign, because it
did not conform to the terms of the oral agreement with respect to the defendants'
promise to insure the property for plaintiff's protection.
be delivered at plaintiff's place of business a writing signed by them, which contained the
terms of the agreement as understood by them, which plaintiff refused to sign, because it did
not conform to the terms of the oral agreement with respect to the defendants' promise to
insure the property for plaintiff's protection. It appears that defendants were at the time and
prior to the making of the agreement in the occupancy of the premises as tenants of plaintiff,
paying a monthly rental of $20 per month. It appears that subsequent to the agreement the
defendants procured a policy of insurance on said dwelling and its contents from the Nevada
Fire Insurance Company for $1,400 in their own names, without notifying plaintiff of the fact,
and without informing the company of plaintiff's claim or interest in the property. Subsequent
to the destruction of the property by fire, the plaintiff made demand on said company for the
full amount of the policy, which was refused. The company thereafter adjusted the
defendants' loss by the payment to them of $450. In this connection it is proper to state that it
appears from the court's decision that the defendants' act in obtaining said policy in their own
names was not intended to be in fraud of plaintiff or the insurance company. It appears that
before plaintiff instituted this action defendants had abandoned their contract and surrendered
up the possession of the property to plaintiff.
Defendants assign two principal reasons for the reversal of the judgment, one that there
was no contract proven, as alleged in the complaint, and that the agreement to sell the lots and
improvements thereon was within the statute of frauds (section 1069 of the Revised Laws of
Nevada), and that the engagement to insure the property was likewise within the statute, in
that the agreement was not in writing and not to be performed within one year from its date,
and therefore void under the provisions contained in section 1075 of the Revised Laws of
Nevada. Counsel for plaintiff insist that the agreement was without the statute, by reason of
the defendants' part performance thereof. Section 1073, Revised Laws.
1. We think we need dispose of but one question presented by the record in this case,
namely: Is the agreement to insure the property within the statute of frauds? Every parol
executory contract for the sale of land is within the statute. Revised Laws, 1069; 20 Cyc. 226.
In determining the force and effect of the contract in question, we must first ascertain whether
the contract for the sale of the realty and the contract of insurance are divisible, for it is the
well-established rule that, if a contract is indivisible and a part of it falls within the scope of
the statute, it is unenforceable. Browne on Statute of Frauds, c. 9, p. 165; 20 Cyc. 285; 25 R.
C. L. pp. 703, 704.
2-5. Whether a contract is entire, or separable into distinct and independent contracts, is a
question of the intention of the parties, to be ascertained from the language employed and the
subject-matter of the contract. Hutchens v. Sutherland, 22 Nev. 363, 40 Pac. 409; State v.
Jones, 21 Nev. 510, 34 Pac. 450. Whether, then, a contract is divisible, is a question of law,
dependent upon the terms of the contract; but what are the terms thereof is a question of fact.
If the several stipulations in the transaction are so interdependent that the parties cannot
reasonably be considered to have contracted but with a view to the performance of the whole,
or that a distinct engagement as to any one stipulation cannot be fairly and reasonably
extracted from the transaction, no recovery can be had upon it, however clear of the statute of
frauds it may be, or whatever be the form of action employed. The engagement in such case is
said to be entire and indivisible. Browne on Statute of Frauds, sec. 140. But the question is:
Does the agreement under consideration come within this principle? It is the general rule that
the statute of frauds relating to contracts for the sale of land does not include collateral or
independent undertakings outside of such contracts. 25 R. C. L. 555.
Unless, then, there is something in the terms of the contract to bring it within any
exception to the principle, we should say that ordinarily an agreement to insure property,
made at the same time, and which formed a part of the arrangement for the sale of the land
on which the property to be insured is situate, is a collateral undertaking, and an action
can be maintained upon it.
part of the arrangement for the sale of the land on which the property to be insured is situate,
is a collateral undertaking, and an action can be maintained upon it. But here we are dealing
with an agreement to insure the property agreed to be sold, which is positively alleged in the
complaint to be a part of the consideration for the void agreement to sell the land, and also
which was the consideration for letting the defendants into the possession of the property, the
title to which remained in the plaintiff. Since the agreement to insure is alleged to be a part of
the consideration of the agreement to sell moving from the plaintiff, he cannot, by his action,
separate that portion of the agreement which relates to the defendants' agreement to insure the
property and recover upon it as a distinct undertaking. It is manifest from the consideration
expressed in the contract that the agreement to insure was made a part thereof, for the express
purpose of enabling plaintiff to collect the insurance in the event the premises should be
destroyed by fire prior to being paid in full for his property agreed to be sold.
The provision prohibiting any action to be brought on an oral contract within the statute
includes actions based indirectly on the contract. An action for damages for its breach is in
effect one for its enforcement and cannot be maintained; and this is, as a general rule, held
true though there has been such a part performance by the plaintiff as would authorize a court
of equity to decree specific performance by the other party. 25 R. C. L. sec. 332, p. 691.
It is well settled that, when a contract is invalid or for any reason unenforceable, it
necessarily follows that no right of action exists for damages occasioned by the breach
thereof. Kiser v. Richardson, 91 Kan. 812, 139 Pac. 373, Ann. Cas. 1915d, 539. From the
very nature of the case made by the complaint and of the relief required, plaintiff was obliged
to set up in his complaint the entire contract. In such case he is debarred from recovering,
because it appears upon the proofs that the executory part of the contract is within the statute
of frauds.
statute of frauds. Browne on Statute of Frauds, sec. 151.
6. What we have said disposes of the contention that section 1073, Revised Laws of 1912,
makes the defendants liable. This section applies to equitable actions only for specific
performance, and not to actions at law for a breach of a void contract. The agreement in
question being impressed with the statute of frauds, and not divisible, the plaintiff can claim
nothing from its breach.
We therefore can do no less than reverse the judgment.
It is so ordered.
September 11, 1923. 217 Pac. 1101.
We should deny the petition without comment but for the fact that the court is charged
with having decided the case upon a point not raised in the briefs or in any bill of exceptions
or assignment of errors. In support of the proposition, it is, in substance, asserted that the
court either overlooked or disregarded the provision contained in section 4 of an act entitled
An act to regulate proceedings on motions for new trials and on appeal in civil cases (Stats.
1923, p. 163), which section provides that:
The supreme court shall not decide any case on any point not raised in the opening brief
or briefs in answer thereto without first giving all parties affected an opportunity to be heard
upon such point.
It is useless to say that the court was conversant with the statute when the opinion was
written, but did not understand that it was intended thereby to convert this tribunal into a law
school.
1. In this case it was decided that the verbal contract for the sale of the realty and the
purchasers' agreement to insure the house thereon against loss by fire was within the statute of
frauds, because the latter was not separable from the contract for the purchase of the land. It is
true the point decided was not so stated in the briefs, but we submit that it was necessarily
involved in the correct solution of the question whether the agreement to insure the
premises was within the statute of frauds.
involved in the correct solution of the question whether the agreement to insure the premises
was within the statute of frauds. This was the only justiciable question for decision, and no
intelligent opinion could be written without its consideration. Certainly, it was not intended
by the statutory rule of practice to preclude this court from deciding a point of law necessarily
involved in the question for decision. In the present case it would be a reflection upon the
intelligence of counsel on both sides to say that the point decided was not present in their
minds when the briefs were prepared, especially when it appears affirmatively from the
record that the learned trial court, in ruling upon the motion for new trial, expressly separated
and distinguished the agreement to insure the property from the contract to purchase the land.
2. It is further objected that the statute of frauds was not raised by the pleadings or upon
the trial of the case. Clearly this objection comes too late upon a petition for rehearing.
The petition is denied.
____________
47 Nev. 75, 75 (1923) Day v. Cloke
No. 2553
DAY v. CLOKE
May 21, 1923. 215 Pac. 386.
1. Master and ServantInjured Employee Bringing Common-Law Action Need Not
Negative Recovery under Compensation Act.
In a common-law action by an employee for injuries it is not necessary that complaint state that plaintiff
has not recovered benefits under compensation act of March 15, 1913, but, if he has received such benefits,
this is matter of defense which cannot be raised by a general demurrer.
2. TrialCourt's Findings Should Not Incorporate Facts Decided in Opinion.
It is improper practice for the trial court in its formal findings of fact to refer to its written opinion and
make it a part of the findings to the extent that the opinion passes upon the facts.
3. Master and ServantFindings and to Negligence Held Contradictory Not Supporting
Judgment.
In an action by an employee injured in jumping to escape a falling wagon, whereby he came in contact
with a projection on a tool press, the court found that the projection was due to the employer's
negligence, and also found that the employer was without fault.
47 Nev. 75, 76 (1923) Day v. Cloke
the employer's negligence, and also found that the employer was without fault. Held, that the findings were
contradictory and insufficient to support the judgment for damages.
4. DepositionsUncertainty as to Person Taking Deposition Immaterial where Both Persons
Authorized.
Where, from the certificate or statement in the record, it was uncertain whether deposition was taken
under the supervision of the named commissioner or by the notary named without the presence of such
commissioner, such uncertainty did not render the deposition inadmissible, if both the persons named were
officers empowered by civil practice act, sec. 513, to take depositions.
5. Appeal and ErrorObjection that Commissioner Named to Take Deposition Was Not
Authorized to Act Could Not Be First Raised on Appeal.
The contention, first made on appeal, that a deposition was inadmissible because the commissioner
named was not an officer empowered by civil practice act, sec. 513, to take a deposition, must be
disregarded.
6. DepositionsPreliminary Proof of Absence of Witness Necessary.
Where there was nothing before the court to show that a witness, whose deposition was taken by reason
of his absence from the county, was not within the county where the action was being tried, an objection
was properly taken to the introduction of the deposition because of lack of proper foundation, in view of
civil practice act, sec. 514.
Appeal from Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Action by John J. Day against Jack Cloke. From judgment for plaintiff, and order
overruling motion for new trial, defendant appeals. Judgment and order reversed. Motion
to modify judgment denied.
Ryland G. Taylor and Frank T. Dunn, for Appellant:
Plaintiff must show he has not recovered benefits under compensation act to entitle him to
common-law remedy. 3 Rev. Laws, 3125.
Where employer is not subscriber to industrial insurance act, the only question is
defendant's negligence and amount of compensation due. Henshaw v. R. R. Co., 111 N. E.
172.
The abolition of doctrine of assumption of risk does not impose liability on employer in
absence of negligence. Ann. Cas. 1918b, 228; Pope v. Hayward, 108 N. E. 1058.
47 Nev. 75, 77 (1923) Day v. Cloke
Deposition is inadmissible where commission was directed to another than person who
acted as commissioner. Rev. Laws, 5455, 5459, 5456. Before deposition is admissible, it
must be shown witness is without county, or cannot be brought into court. Rev. Laws, supra.
Where complaint alleges injury to ribs and lungs, a finding that injury was to vertebrae is
fatal variance. Rev. Laws, 5080.
It is error to base judgment on finding that at the time of the accident, probably a piece of
2x4 was thus in use and projecting. A judgment cannot be based on a guess. Richards v.
Vermilyea, 42 Nev. 294.
A. M. Hardy and Harry Dunseath, for Respondent:
Plaintiff has conclusively shown that there was a projecting timber within few inches of
drill press, with which plaintiff collided when he jumped to escape falling wagon, and that if
said projecting timber had not been there, there would have been room enough between the
wagon and drill press for plaintiff to jump out of danger; that this projecting timber made
place unsafe, and that defendant was negligent in allowing timber to project further than was
necessary to sustain shelf.
Defendant has chosen to reject provisions of compensation act, and failed to post notice of
rejection upon premises. Stats. 1917, pp. 436, 437, 438.
The respondent, who was plaintiff in the court below, brought this action to recover
$10,000 damages for injuries alleged to have been sustained by him while in the employ of
appellant in his blacksmith shop in Tonopah, Nye County, Nevada. It is alleged in the
complaint that on the 3d day of December, 1919, plaintiff was in the employ of said Jack
Cloke as a blacksmith, and, while working on the repair of a wagon, and due to the
negligence of said defendant, the said wagon slipped from its holdings; that plaintiff, while
jumping to escape being crushed by the falling wagon, was struck in the right breast by a
projecting timber, his rib broken, lung punctured, and was badly bruised, and ever since has
been, and now is, totally and permanently injured and disabled therefrom, and has
suffered and now suffers from total disability; that all of said injuries complained of came
through no fault or negligence on the part of plaintiff, but solely by reason of the
negligence and carelessness of defendant.
47 Nev. 75, 78 (1923) Day v. Cloke
since has been, and now is, totally and permanently injured and disabled therefrom, and has
suffered and now suffers from total disability; that all of said injuries complained of came
through no fault or negligence on the part of plaintiff, but solely by reason of the negligence
and carelessness of defendant. It is also alleged that Cloke, at the time of said injuries, had not
elected to provide, secure, and pay compensation to his employees for injuries sustained
arising out of and in the course of employment, according to the provisions of an act in such
cases made and provided, and was not at the time of said accident and injuries aforesaid
operating under any or all of the provisions of said act, and subject to the same, and had not
contracted to provide, secure, and pay compensation in the matter and by the said act
provided for all personal injuries sustained arising out of and in the course of employment,
and had never given notice of an election to reject the terms of the said act.
A general demurrer to the complaint was overruled by the court, and defendant answered,
denying the allegations thereof. On the issues made the cause proceeded to trial before the
court without a jury, which resulted in a judgment in favor of respondent for $5,000. A
motion for a new trial was denied. From the judgment and order overruling the motion for a
new trial this appeal is taken.
1. A number of errors are assigned by appellant, the first of which is directed to the order
overruling the demurrer to the complaint. It is contended that the complaint does not state
facts sufficient to constitute a cause of action, in that it is not alleged therein that respondent
has not recovered his benefits under an act of the legislature of this state relating to the
compensation of injured workmen in the industries of this state, etc., approved March 15,
1913 (Stats. 1913, c. 111); that such an allegation is an essential prerequisite to his recovery
in a common-law action. The contention is without merit. The respondent has resorted to his
common-law remedy for damages for personal injuries. If he has received benefits for the
injuries complained of under the provisions of the statute, this would be a defense to the
action which cannot be raised by a general demurrer.
47 Nev. 75, 79 (1923) Day v. Cloke
of under the provisions of the statute, this would be a defense to the action which cannot be
raised by a general demurrer. An allegation that he has not received such benefits is
unnecessary.
2. It is assigned as error that the judgment is against the law, against the findings, and
against the evidence. The findings are in part uncertain and inconsistent, and on the whole
insufficient to support the judgment. The unsatisfactory state of the findings arises from the
fact that the trial court in its formal findings of fact has referred to its written opinion, and
made it a part of the findings to the extent in which the opinion passes upon the facts. This is
a practice which should not be indulged in, and which received the criticism of this court in a
recent opinion, Crumley v. Fabbi, 47 Nev. 14. We again venture to hope that it will be
discontinued.
3. Among the formal findings of fact is one to the effect that on the 3d day of December,
1919, and while the relationship of employer existed, and while in the course of his
employment, plaintiff was working on the repair of a wagon, and, due to the negligence of
said defendant, the said wagon slipped from its holdings, and this plaintiff, while jumping to
escape the falling wagon, was struck in the right breast by some projection on a tool press,
breaking a rib, puncturing his lung, and severely injuring his back, causing a total disability.
The first part of this finding is inconsistent with the finding in the written opinion wherein the
court says:
I have little doubt that the fall of the wagon was wholly the fault of Day, as he was the
only one who touched it after it was run into the shop.
The evidence discloses that the falling of the wagon was not due to the negligence of the
appellant. He was not present when the wagon was placed in the position from which it fell,
or when the accident occurred. In fact, the falling of the wagon was due entirely to the acts of
respondent, and so admitted by him in his testimony. The inconsistency of the findings,
however, does not affect the judgment, as there is no evidence tending to show, nor does the
respondent claim, that he was injured by the falling wagon, and this appears to be due
entirely to his own negligence.
47 Nev. 75, 80 (1923) Day v. Cloke
injured by the falling wagon, and this appears to be due entirely to his own negligence. He
claims to have been injured in jumping to escape the falling wagon, whereby he came in
contact with a projection which constituted negligence on the part of appellant. This is a vital
point in the case, and, in regard to it, the findings are inconsistent, and cannot support the
judgment. It is found in the latter part of the formal findings heretofore set out that Day, in
jumping to escape the falling wagon, was struck in the right breast by some projection on a
tool press, breaking a rib, puncturing his lung, and severely injuring his back, causing a total
disability. In the written opinion which the court makes a part of its findings, where the
opinion passes on the facts, it is found that the projection constituted negligence on the part of
appellant, but the finding as a whole is contradicted by another finding in the opinion which
reads as follows:
To hold the defendant, Cloke, liable under the facts of this case may seem unjust, he
being without fault himself, and the fault, if any, Day's.
The appellant cannot be held liable in the absence of any negligence attributable to him,
and we are unable to reconcile the contradictory findings as presenting a merely formal or
nonessential difference. One part would support the judgment, and the other part would
necessarily fail in this respect. Whether the projection by which respondent claims to have
been injured was due to the negligence of appellant was one of the material issues in the case,
and contradictory findings upon such an issue will not support the judgment. Authors v.
Bryant, 22 Nev. 242, 38 Pac. 439.
4. Error is assigned to the ruling of the court in admitting in evidence the deposition of
one W. O. Grieves over the objection of the appellant. One of the grounds of the objection is
that the deposition was not taken before the person to whom the commission issued. The
commission was directed to A. S. Henderson at Las Vegas, Nevada, and it is insisted that the
deposition was taken before one Albert A. Hinman. The contention is based on the following
certificate or statement which appears in the record:
47 Nev. 75, 81 (1923) Day v. Cloke
based on the following certificate or statement which appears in the record:
Examination taken, reduced to writing, and by the witness subscribed and sworn to this
10th day of December, 1921, before Albert A. Hinman, Notary Public. [Signed] A. S.
Henderson, Commissioner.
It must be granted that the foregoing statement leaves it somewhat uncertain as to whether
the deposition was taken under the supervision of the commissioner or by the notary
mentioned, without the presence of the commissioner named. But, as we view the statute
providing the procedure for taking the testimony of a witness within the state by deposition,
the uncertainty as to who took it in this case will not render the deposition inadmissible,
providing both of the persons mentioned were officers empowered by the statute to take
depositions of witnesses within the state. In this regard the statute in part reads:
Either party may have the deposition of a witness * * * taken before any judge or clerk of
a court, or any justice of peace or notary public in this state, on serving upon the adverse party
previous notice of the time and place of examination, together with a copy of an affidavit
showing that the case is one mentioned in the last section. * * * Section 513, Civ. Prac. Act
(Rev. Laws, 5455).
5. It is not contended that Hinman was not one of the officers mentioned in the statute, but
it is insisted that there is nothing in the record to show that Henderson was a judge, clerk of
the court, justice of the peace, or a notary public. This contention must be disregarded, for the
reason that an examination of the record reveals that no objection was made against the
admission of the deposition on the ground that the commissioner named was not an officer
empowered by the statute to take a deposition. Under the statute quoted above, the notice
need not contain the name of the officer designated to take the deposition, but only the time
and place thereof. This provision of our code was borrowed from California, and in passing
on the statute in an early decision the supreme court of that state held to the effect that
an officer mentioned in the statute might be substituted for the one designated to take
the deposition.
47 Nev. 75, 82 (1923) Day v. Cloke
statute in an early decision the supreme court of that state held to the effect that an officer
mentioned in the statute might be substituted for the one designated to take the deposition. In
that case the objection was objected to on the ground that it was taken before the county
clerk, and not the county judge, as specified in the notice to the defendant. The court said:
The first objection we think untenable. The statute does not require that the notice should
specify the officer before whom the deposition is to be taken, and public convenience would
seem to demand that in the sickness or absence of the officer designated, any other
empowered by law might be substituted. Notice of the time and place having been given, it
would certainly be a matter of small importance who should take the deposition, particularly
in view of the inconvenience and delay which would result from a different rule. Williams v.
Chadbourne, 6 Cal. 559.
We entertained a similar view, and therefore consider it immaterial whether the deposition
in question was taken before Hinman or Henderson, to whom the commission was issued. It
was admissible if taken by either. There is no contention that appellant was misled either as to
the time or place at which the deposition was taken.
6. A further objection was taken to its introduction in evidence on the ground that no
proper foundation was laid in that there was nothing before the court to show that the witness
Grieves was not within the county where the action was being tried. We think this objection
was well taken. A portion of section 514 of the civil practice act (Rev. Laws, 5456) provides
as follows:
If the deposition be taken by reason of the absence or intended absence from the county
of the witness, or because he is too infirm to attend, proof by affidavit or oral testimony shall
be made at the trial that the witness continues absent or infirm, to the best of deponent's
knowledge or belief.
It is clear that the witness Grieves comes within the first class of witnesses mentioned in
the statute. The objection having been taken in the court below, the preliminary proof
required by the statute should have been made.
47 Nev. 75, 83 (1923) Day v. Cloke
objection having been taken in the court below, the preliminary proof required by the
statute should have been made. Lockhart v. Mackie, 2 Nev. 294.
We do not deem it necessary to pass upon the other errors assigned by appellant.
The judgment and order denying the motion for a new trial are reversed.
On Motion for Modification of Judgment
July 12, 1923.
Per Curiam:
Motion denied.
____________
47 Nev. 83, 83 (1923) Irving National Bank v. District Court
No. 2604
Ex Rel. IRVING NATIONAL BANK v. DISTRICT
COURT
June 11, 1923. 215 Pac. 641.
1. ProhibitionModification of Alternative Writ Premature where Main Question To Be
Determined upon Alternative Writ Must Be Decided.
Where a receiver of a judgment debtor took possession of the debtor's property after execution had been
levied thereon and sought to obtain an order modifying an alternative writ of prohibition issued on petition
of the judgment creditor, so as to allow a portion of the property to be sold to pay an installment of taxes,
and the judgment creditor demurred, presenting questions pertaining to the jurisdiction of the court, the
legal capacity of the receiver to sue, and whether the petition stated facts sufficient to constitute an action,
and filed a motion to dismiss, the situation was one in which a ruling on the issues would in effect decide
the main question to be determined on the hearing of the alternative writ of prohibition, and, as such
question was not argued or presented, a ruling thereon would be premature, and the parties deprived of
their day in court, and hence such an order for modification would be improper.
Prohibition by the State, on the relation of the Irving National Bank, a corporation, against
the Second Judicial District Court in and for the County of Washoe, and Geo. A. Bartlett,
Judge thereof, wherein Gurney Gordon, receiver of the Como Consolidated Mines Company,
seeks an order modifying an alternative writ of prohibition. On demurrer and objections by
the Irving National Bank. Order denied, and petition dismissed.
Painter, Stoddard & Withers, for Petitioner.
Cooke, French & Stoddard, for Gordon, receiver.
By the Court, Walsh, District Judge:
In this proceeding Gurney Gordon, receiver of the Como Consolidated Mines Company, a
corporation, seeks to obtain an order modifying an alternative writ of prohibition, issued
herein, to the extent that said district court and said receiver may proceed and cause to be sold
sufficient personal property, designated as junk property, belonging to said Como
Consolidated Mines Company, in order to realize an amount sufficient to pay the second
installment of taxes assessed against the property of said company for the year 1922,
amounting to $214.83. Said taxes are now due and payable and will be delinquent if not paid
prior to the return day named in said writ. All proceedings in the district court were ordered
stayed when the alternative writ was issued.
To the petition of the receiver a demurrer was interposed by the Irving National Bank
which presents questions pertaining to the jurisdiction of the court, the legal capacity of the
receiver to sue, and whether the petition states facts sufficient to constitute a cause of action.
Written objections and a motion to dismiss were also filed by the bank.
It appears the Irving National Bank on July 11, 1922, recovered a judgment in the Second
judicial district court of the State of Nevada in and for Washoe County, against the Como
Consolidated Mines Company, a corporation, for $8,000, with interest thereon and attorney's
fees, amounting to $1,021.50, which said judgment was docketed in the clerk's office of said
county, and a transcript thereof was filed in the office of the recorder of Lyon County,
Nevada. On January 17, 1923, a writ of execution was duly issued out of said court directed
to the sheriff of Lyon County, Nevada, commanding and requiring said sheriff to satisfy said
judgment out of the real and personal property of said Como Consolidated Mines Company,
situate in said county. The said writ of execution was delivered to the sheriff of Lyon
County, and on January 23, 1923, in obedience thereof, said sheriff seized and levied
upon all of the property, both real and personal, of said Como Consolidated Mines
Company, situate and being in said county.
writ of execution was delivered to the sheriff of Lyon County, and on January 23, 1923, in
obedience thereof, said sheriff seized and levied upon all of the property, both real and
personal, of said Como Consolidated Mines Company, situate and being in said county.
On February 21, 1923, Gurney Gordon on behalf of himself and all other stockholders of
said Como Consolidated Mines Company, similarly situated, instituted an action in the
Second judicial district court of the State of Nevada in and for Washoe County, in department
No. 2 thereof, against said judgment debtor, Como Consolidated Mines Company, praying for
the appointment of a receiver for said corporation to take charge of all of the property and
assets of said Como Consolidated Mines Company; that on said day said Como Consolidated
Mines Company appeared by and through its attorneys and consented to the appointment of a
receiver, whereupon said district court, acting by and through Hon. Geo. A. Bartlett, the
presiding judge of department No. 2 thereof, granted said application and ordered that said
Gurney Gordon be appointed receiver of said debtor corporation; that thereafter said Gurney
Gordon forthwith duly qualified and entered upon the discharge of his duties as such receiver,
and thereupon on February 25, 1923, pursuant to said order appointing him receiver, served
or caused to be served on the sheriff of Lyon County, Nevada, said order appointing said
receiver, and proceeded on said day to take from said sheriff the possession of all of the real
and personal property of the Como Consolidated Mines Company, and ousted the sheriff
from the possession thereof.
The situation presented is one in which a ruling on the issues raised by the demurrer and
objections would in effect decide the main question to be determined when the alternative
writ of prohibition is heard on its merits, and, as this question was not argued or presented, a
ruling thereon would be premature and at the same time deprive the parties of their day in
court and the right to be heard on the merits.
It therefore follows that the order prayed for should be denied, and the petition be
dismissed.
It is so ordered.
Ducker, C. J.: I concur.
Callahan, District Judge: I concur.
[NoteColeman and Sanders, JJ., being absent from the state, J. Emmett Walsh and J. A.
Callahan, District Judges, participated in the consideration of this case, pursuant to
designation by the Governor.]
____________
No. 2604
Ex Rel. IRVING NATIONAL BANK v. DISTRICT
COURT
August 27, 1923. 217 Pac. 962.
1. ProhibitionWrit Will Not Issue, where Adequate Remedy at Law Is Available.
The writ of prohibition will not issue, if there is a plain, speedy, and adequate remedy at law.
2. ProhibitionParties Desiring to Obtain Possession of Property in Hands of Receiver
Should Apply to Court Appointing Receiver.
The rule that prohibition will not issue where adequate remedy at law exists applies particularly on
application to prohibit receiver taking possession of goods of an insolvent on which petitioner had levied
execution, as parties desiring to obtain possession of property which has come into the hands of a receiver
should apply to the court from which the receiver derived his appointment.
3. ProhibitionWrit Not Issued to Restrain Judge from Proceeding Further in Receivership
Proceedings, where Petitioner May Intervene in such Proceedings.
Conceding that the court appointing a receiver was without jurisdiction to restrain a sheriff from
enforcing by sale an execution levy based on petitioner's judgment, writ of prohibition should not issue
where petitioner has an adequate remedy in that court by intervention, with the right of appeal secured, for
the court having, by the order appointing the receiver, taken the property of petitioner corporation out of
the hands of its officers, it was competent and should ultimately dispose of all questions, legal and
equitable, growing out of the proceedings.
4. ReceiversIntervention in Receivership Proceedings Is Proper Remedy to Enforce Tax
Liens.
Intervention in receivership proceedings is the proper remedy to enforce tax liens, which are paramount
to all other liens except judicial costs.
5. ReceiversReceiver's Possession Subject to Existing Liens on Property at Time of His
Appointment.
A receiver's possession of property is subject to all valid and existing liens on it at the time of his
appointment, and does not divest a lien previously acquired in good faith.
6. ReceiversIn Receivership Proceedings, Court May Permit Execution Sale by Sheriff.
If petitioner's judgment lien and execution levy, acquired prior to the appointment of a receiver, fixed the
status of the property levied on as subject exclusively to the satisfaction of petitioner's claim, the court
appointing the receiver may in a proper case permit the sheriff to proceed with the execution sale.
Prohibition by the State, on the relation of the Irving National Bank, against the Second
Judicial District Court in and for the County of Washoe and Geo. A. Bartlett, Judge thereof.
Alternative writ previously issued dismissed.
Painter, Stoddard & Withers, for Petitioner:
A judgment is lien upon real property from time of filing. Rev. Laws, 5277. No further
proceeding to foreclose such lien is required. Lisenbee v. Lisenbee, 183 Pac. 862. Levy is
unnecessary when judgment is lien. 6 Am. St. Rep. 597. Lienholder's rights are not affected
by subsequent appointment of receiver. 34 Cyc. 229; People v. Finch, 76 Pac. 1120.
Receiver has no right to possession of attached property. Ward v. Healy, 45 Pac. 1065; 34
Cyc. 229.
Attached property must be retained intact for purpose of enforcing lien. 34 Cyc. 229; State
v. Supreme Court, 34 Pac. 430; 35 Pac. 1087.
Receiver can acquire no better interest than debtor had, and takes subject to existing
equities and liens. 34 Cyc. 191; Smith Receivers, 267; Bank v. Cook, 76 Pac. 674.
Generally courts will not interfere summarily against stranger claiming by paramount title.
34 Cyc. 213.
Only parties to suits may be summarily proceeded against and compelled to deliver to
receiver. 17 Ency. Pl. & Pr. 771; 34 Cyc. 213; 23 R. C. L. 60. As to others, independent
action is necessary.
Court exceeded its jurisdiction in directing receiver to take property out of possession of
sheriff, and thereafter directing issuance of receiver's certificates to constitute first lien
thereon. It was not sheriff's duty to defend his lawful possession by force. Havemeyer v.
Superior Court, 24 Pac. 121; 10 L. R. A. 627.
Receiver's certificates having priority over other liens should be authorized only after
notice to lienholders and full hearing on merits. Bibber Co. v. R. R. Co., 115 Fed. 786;
American Trust Co. v. McGettigan, 71 Am. St. Rep. 345.
Without consent of lienholders no priority can be given to receiver's certificates of private
corporation. Merriam v. Victory M. Co., 60 Pac. 997; Int. Tr. Co. v. United Coal Co., 60 Pac.
621.
If court directs sheriff to put receiver in possession of property held by stranger, without
opportunity given to show cause against the order, prohibition will issue to restrain further
action, and to restore property. 23 R. C. L. 61; St. Louis R. Co. v. Wear, 36 S. W. 357; 33 L.
R. A. 341. Unless stranger intervenes and submits his rights to adjudication. State v.
McClure, 35 Ann. Cas. 1915b, 1110; 23 R. C. L. 61.
Relief by prohibition may be had to prevent what remains to be done and to undo what has
been done. Court may compel prohibited party to relinquish, and successful applicant to have,
all fruits of its decision, and frequently imposes affirmative directions essential to relief. 32
Cyc. 630; Havemeyer, supra; People v. District Court, 48 Pac. 500.
Prohibition will not be awarded where other methods will give reasonable and prompt
relief. Walser v. Moran, 42 Nev. 146. Primary question is whether there is no plain, speedy,
and adequate remedy at law. Silver Peak v. District Court, 33 Nev. 323.
Though Walcott v. Wells, 21 Nev. 50, holds that it must appear that petitioner has applied to
inferior court for relief before writ should issue, the question was not squarely before the
court and the language is dictum, nor was it before court in Bell v. District Court, 28 Nev.
280, which followed the Walcott case. To so hold would defeat purpose of writ. Rev. laws,
5708.
Cooke, French & Stoddard, for Respondents:
Prohibition should issue only in cases where there is no plain, speedy, and adequate
remedy at law; to restrain a court from exceeding its jurisdiction. State v. District Court, 38
Nev. 323; 22 R. C. L. 5; Rev. Laws, 5709, 5008. The proper remedy for judgment creditor is
to apply to court appointing receiver to have property released from receiver's custody. High
on Receivers (4th ed.) 167; Meeker v. Sprague, 31 Pac. 628.
Attaching creditor acquires no preference when corporation is insolvent. Assets constitute
trust fund for all creditors, and relator's alleged lien would be illegal preference. Creditors
must share equitably. Thompson v. Reno Savings Bank, 19 Nev. 103, 293; 8 Fletcher on
Corporations, 5027, 5029, 8648.
Relator should file its claim with receiver, whose appointment merely transfers relator's
priority from property to proceeds thereof, not destroying any right, but enforcing it by
different method. American Bank v. McGettigan, 71 Am. St. Rep. 345; 23 R. C. L. 69; 8
Fletcher, secs. 5362, 5353.
Receiver's certificates issued to preserve property may be made prior lien. Title Co. v.
California Co., 152 Pac. 564; High on Receivers (4th ed.) sec. 312b. Expense for insurance,
watchman, assessment work, etc., are within rule. Stacy case, supra.
Issuance of certificates is legal if creditors have notice of application therefor and
opportunity to be heard. American Brake Co. v. Pere Marquette R. Co., 205 Fed. 14.
Subsequent opportunity to be heard is equivalent to notice. Certificates may be issued without
notice, for purpose of preserving property. Union Trust Co. v. Illinois Co., 117 U. S. 434.
Creditors may make themselves parties in receiverships by motion, and, if relief is denied,
may appeal. Luckenbach v. Laer, 212 Pac. 918.
When court of chancery has once assumed jurisdiction it will consider and determine
entire matter, and bring before it all parties interested. Rutherford v. Union Land Co., 47 Nev.
21; Rev. Laws, 5008.
The petition to this court of Irving National Bank, a corporation, presents the following
facts:
The petitioner, Irving National Bank, obtained a judgment against the Como Consolidated
Mines Company in the Second judicial district court in and for the county of Washoe,
amounting, exclusive of interest on the promissory note sued on, costs, and attorney's fees, to
the sum of $11,505.93, which was on the 8th day of August, 1922, duly docketed in the office
of the county clerk of said county, and a transcript of said judgment docketed, filed in the
office of the county recorder of Lyon County. Thereafter, on the 17th day of January, 1923, a
writ of execution issuing out of said court was placed in the hands of the sheriff of said Lyon
County, who, two days later, in obedience thereto, seized and levied upon a group of patented
and unpatented mining claims situated in said Lyon County and owned by said Como
Consolidated Mines Company, and also upon a number of buildings, mining machinery,
equipment, bunk-houses, and other personal property located upon said mining property, and
owned and previously used by the said mining company in operating the mining claims. The
sheriff placed a keeper in charge of said property and was proceeding to sell it under
execution to satisfy said judgment. Thereafter, on or about the 21st day of February, 1923, the
said mining company, upon petition of Gurney Gordon, on behalf of himself and all other
stockholders similarly situated, admitted its insolvency and consented to the appointment of a
receiver by the said district court. The Irving National Bank, the judgment creditor, was not
made a party to, nor did it have any notice of, such proceeding. On or about the 25th day of
February, 1923, pursuant to the order of court appointing him, the receiver served the order
of court, or caused the same to be served, upon the said sheriff, and took said property
from his possession, which possession the receiver has ever since held.
order of court, or caused the same to be served, upon the said sheriff, and took said property
from his possession, which possession the receiver has ever since held. Thereafter, on the 7th
day of March, 1923, in the receivership proceedings, upon application of the receiver, the
court entered an order, which ten days later was amended, authorizing said receiver to issue
receiver's certificates for the sum of $15,000, with interest thereon at the rate of 8 per cent per
annum, and when so issued and delivered to constitute a first lien upon the property and
assets of said judgment debtor, said certificates to be countersigned by Hon. Geo. A. Bartlett,
presiding judge of department 2 of said court, after application and showing therefor being
made on behalf of the receiver. The said receiver's certificates were authorized for the
purpose of defraying the expenses of administration and to preserve the property.
It is alleged in the petition for the writ that the Irving National Bank is not a party to the
receivership proceedings, and that no lawful process, writ, order, or notice of any kind
whatsoever regarding any of the proceedings so taken and had by said district court, or any
judge, or said receiver therein, has ever been issued or served upon it, nor has it voluntarily or
otherwise become a party to or intervened or participated in said receivership proceedings,
but is a stranger thereto.
On May 4, 1923, and before the receiver had filed his first report, which was then due, and
before the district court could consider or act upon the same, the Irving National Bank herein
sought and obtained from this court the alternative writ of prohibition and the temporary
restraining order and order to show cause herein now pending. It is insisted by the petitioner
that the district court was without jurisdiction to make the order interfering with the sheriff's
possession and sale of the property under execution, or the orders making the receiver's
certificates a first lien upon the property of the judgment debtor, and that prohibition is a
proper remedy to obtain redress.
1. If, as contended by the respondents, the petitioner has a plain, speedy, and adequate
remedy in the ordinary course of law, by appearing in said receivership suit and applying to
the respondent court for whatever relief it deems itself entitled to respecting the alleged prior
lien, or for exempting the property on which it claims an execution lien from the operation of
the said order appointing the receiver, or the said orders authorizing the issuance of receiver's
certificates, the writ must be dismissed, and petitioner left to pursue such remedy. It is a
well-settled rule, incorporated within the provisions of our statute concerning the remedy of
prohibition, and affirmed by decisions of this court, that the writ will not issue if there is a
plain, speedy, and adequate remedy at law. As stated by this court in Walcott v. Wells, 21
Nev. 47, 24 Pac. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478, and quoted with approval in
subsequent decisions:
Like all other prerogative writs, it is to be used with caution and forbearance, for the
furtherance of justice, and securing order and regularity in judicial proceedings in cases where
none of the ordinary remedies provided by law are applicable. The writ should not be granted
except in cases of a usurpation or abuse of power, and not then, unless the other remedies
provided by law are inadequate to afford full relief.
See Bell v. District Court, 28 Nev. 280, 81 Pac. 875, 1 L. R. A. (N. S.) 843, 113 Am. St.
Rep. 854, 6 Ann. Cas. 982; Turner v. Langan, 29 Nev. 281, 88 Pac. 1088.
It was also stated in Walcott v. Wells and quoted with like approval in the cases cited,
that
Before it [the writ of prohibition] should issue, it must appear that the petitioner has
applied to the inferior tribunal for relief.
2-4. The petitioner has made no such application in this case, nor is there anything in the
record before us to show that such application would be futile. The principle is particularly
applicable in receivership proceedings, for the appropriate course in all cases where parties
are desirous of obtaining possession of property which has come into the hands of a
receiver, is to apply to the court from which he derives his appointment.
which has come into the hands of a receiver, is to apply to the court from which he derives his
appointment. However, we are of the opinion that the writ should not issue, even if it be
conceded that the receivership court was without jurisdiction to restrain the sheriff from
enforcing by sale the execution levy, because petitioner has an adequate remedy in that court,
by intervention, with the right of appeal secured. Having by its order appointing a receiver
taken the property of the corporation out of the hands of the corporate officers, it is competent
to and should ultimately dispose of all questions, legal and equitable, growing out of the
proceedings. Intervention in receivership proceedings is the proper remedy in the case of liens
for taxes, which are held to be paramount to all other liens except judicial costs. In Re Tyler,
149 U. S. 164, 13 Sup. Ct. 785, 37 L. Ed. 689. There can be no reason why a judgment lien
should rest on any other footing as to the remedy for its enforcement in receivership
proceedings.
5. It is a well-established rule that the receiver's possession is subject to all valid and
existing liens upon the property at the time of his appointment, and does not divest a lien
previously acquired in good faith. High on Receivers (4th ed.), sec. 138; Bories v. Union
Building Assn., 141 Cal. 74, 74 Pac. 552; Cramer v. Iler, 63 Kan. 579, 66 Pac. 617; Kittredge
v. Osgood, 161 Mass. 384, 37 N. E. 369; Talladega Mercantile Co. v. Jenifer Iron Co., 102
Ala. 259; American Trust and Savings Bank v. McGettigan, 152 Ind. 582, 52 N. E. 793, 71
Am. St. Rep. 345; Pelletier v. Greenville Lumber Co., 123 N. C. 596, 31 S. E. 855, 68 Am.
St. Rep. 837. In Von Roun v. Superior Court, 58 Cal. 358, Von Roun and others had
commenced an action against the insolvent on the 4th day of January, 1881, and had sued out
an attachment, which had been on that day levied on certain personal property of the
insolvent, and the sheriff held this property so attached when the proceedings in insolvency
were commenced, and when he was directed to turn over to the receiver the property in his
hands. In the course of its opinion the court said: "It seems to be the impression of the
counsel of the applicants for the writ [writ of review] that they have a lien acquired by
virtue of the levy of the writ of attachment on the property seized, which will be lost if the
property is turned over to the receiver.
It seems to be the impression of the counsel of the applicants for the writ [writ of review]
that they have a lien acquired by virtue of the levy of the writ of attachment on the property
seized, which will be lost if the property is turned over to the receiver. This is an entire
misapprehension of the law. The appointment of a receiver works no injury to the least right
of any one. It would be strange if it did. The receiver is the hand of the law, and the law
conserves and enforces rightsnever destroys them. * * * If the applicants have any lien, the
receiver holds the property subject to such lien, as fully as did the sheriff; and if such property
is sold by the receiver, whatever lien exists attaches to the proceeds.
This language was quoted with approval in Bories v. Union Bldg. Assn., supra, and the
text from High on Receivers, with like approval. It was said by the court in the case of
Talladega Mercantile Co. v. Jenifer Iron Co., supra:
It is not open to dispute in this case that the appellant, by its judgment, and the record of
the same in the probate court, as required by statute to make it a lien, the issue of execution
on the judgment and placing it in the hands of the sheriff, acquired a lien on the property of
the defendant, the Jenifer Iron Company, within the county which was subject to levy and
sale, the bill filed by the Anniston Manufacturing Company and the O. H. Parker Company
against the Jenifer Iron Company, on behalf of themselves and other creditors of the
respondent, in which suit a receiver was appointed, and who, under the orders of the court,
took possession of all the property and assets of the respondent corporation, did not and could
not have the effect to destroy or impair the judgment and execution lien of the appellant on
the property of the defendant, the said Jenifer Iron Company.
This exclusive possession of the receiver, says the court in Pelletier v. Greenville
Lumber Co., 123 N. C. 596, does not interfere with or disturb any preexisting liens,
preferences or priorities, but simply prevents their execution by holding the property intact
until the relative rights of all parties can be determined."
execution by holding the property intact until the relative rights of all parties can be
determined.
6. As the appointment of the receiver and the taking into his possession of the property
levied upon cannot impair petitioner's lien, it is not apparent why the remedy by intervention
is not adequate to afford it all the relief it could otherwise acquire by execution sale. If, as
petitioner contends, its judgment lien and execution levy, acquired prior to the appointment of
the receiver, fix the status of the property levied upon as subject exclusively to the
satisfaction of its claim, we must assume that the court will so hold, notwithstanding its
former orders as to receiver's certificates. The court can, if a proper case is presented, permit
the sheriff to proceed with the execution sale. A court of equity is not required to retain
possession of property when it would be inequitable to do so. Pelletier v. Greenville Lumber
Co., 123 N. C. 596, 31 S. E. 855, 68 Am. St. Rep. 837.
The writ is dismissed.
____________
47 Nev. 95, 95 (1923) Ex Parte Mantell and Raigen
No. 2598
Ex Parte MANTELL and RAIGEN
July 2, 1923. 216 Pac. 509.
1. StatutesWhiteley Act Adopting Federal Prohibition Law Held Not to Express Subject
in Title as Required.
The Whiteley Act (Stats. 1923, p. 43), entitled An act to make the provisions of the National
Prohibition Act of the United States of America the law of the State of Nevada, etc., does not express the
subject in its title as required by Const. art. 4, sec. 17, because it does not appear therefrom what the
provisions are, and leaves it to be ascertained by looking to the act itself.
2. StatutesSubject Defined as Respects Requirement of its Expression in Title.
As respects the requirement as to expressing the subject in the title, the subject of a statute is the matter
of public or private concern in respect to which its provisions are enacted, or the matter or thing forming
the groundwork of the act, or the matter to which it relates and with which it deals.
Original proceeding. In the matter of the petition of L. Mantell and another for a writ of
habeas corpus. Petitioners discharged. (Sanders, J., dissenting.)
M. B. Moore, for Respondents:
The title of Assembly Bill No. 64 is insufficient under section 17 of article 4 of our
constitution.
If the legislature cannot revise or amend a law merely by reference to its title, it cannot
adopt law of different sovereignty simply by referring to its title.
There is no such act in law as the Volstead Act, and eighteenth amendment is no part of
national prohibition act.
What provisions of national act are adopted? Under what procedure would violations be
prosecuted? How are officers to be guided, and how are people to be protected against
unlawful search?
Section 3 of Nevada act is obviously unconstitutional. The regulations of the
commissioners, as promulgated, become part of national act. These regulations are being
issued from time to time. Does the Nevada act adopt those not yet conceived? To say we
adopt law of another sovereignty which is not yet thought of, is ridiculous.
Of recent cases, Ex Parte Burke, 212 Pac. 193, cannot be held as decision supporting
Nevada act, and shows lack of real search and reason, while case of In Re Opinion of Justices
(Mass.), 133 N. E. 453, appears to expressly state the law, and should be adopted.
Were provisions of section 18, article 4, of our constitution complied with on passage of
bill? What knowledge did reading of Whiteley Act convey to legislators? Probably not five
members were conversant with one-half the provisions of national prohibition act, or knew its
penalties.
Lester D. Summerfield, District Attorney of Washoe County:
Though having instituted this action under rule that statute is presumed to be constitutional
until the courts declare it invalid, I have believed this act unconstitutional, and so publicly
expressed myself while legislature was in session, and cannot now resist application for
writ, for following reasons:
declare it invalid, I have believed this act unconstitutional, and so publicly expressed myself
while legislature was in session, and cannot now resist application for writ, for following
reasons:
The act is unconstitutional because title utterly fails to comply with section 17 of article 4
of our state constitution which provides that * * * the subject shall be briefly expressed in
the title. In this act, the subject is not expressed at all. 25 R. C. L. 844; Lewis's Sutherland
Stat. Constr. (2d ed.), sec. 116; Gunter v. Texas Land Co., 17 S. W. 840.
The title must show the subject in itself, without reference to body of act, and from its own
contents. 25 R. C. L. 850, 864; State v. Nomland, 57 N. W. 85. A title referring to some
extrinsic document for its subject is insufficient. 36 Cyc. 1032; People v. Hills, 35 N. Y. 449.
The true and actual subject must be expressed. People v. Briggs, 50 N. Y. 553. Reference to
where subject may be found is insufficient. People v. Flemining, 3 Pac. 70; Pennington v.
Woolfolk, 79 Ky. 13.
The constitutional provision is mandatory that subject be expressed in title. If it is not, the
inquiry is ended and the act must fall. Anything else would be nullification, not construction.
Where no subject is expressed, there is nothing to construe. State v. Commissioners, 22 Nev.
399. The national act which is sought to be adopted did express its subject. Fed. Stats. Ann.
(2d ed.) Suppl. 1919, 202, viz: An act to prohibit intoxicating beverages, etc.
The California supreme court, in Ex Parte Burke, 212 Pac. 193, stands alone in approving
adoption of statute passed by independent legislative body by reference only. Not one
authority cited in that opinion in fact sustains it.
M. A. Diskin, Attorney-General; L. D. Summerfield, District Attorney of Washoe County,
and Frank H. Norcross, Amici Curiae:
QueryIs proposition that title does not express subject answered by argument that every
one is presumed to know the law? This does not meet constitutional objection.
This does not meet constitutional objection.
The constitution requires that subject be expressed. It is plain that it is not expressed when
it is only implied or presumed. Nor does such presumption prevail against clear constitutional
provision, to which all other laws must yield. 12 C. J. 699.
Nor is there any inference that the law, as matter of fact, is known. The presumption
merely expresses rule that ignorance of law is not excuse for its violation. 22 C. J. 149, 151.
The subject is not expressed in title. The constitution requires that it should be.
QueryWhen a constitution provides that an act shall be read section by section, and the
act adopting law of another legislative body is so read, is this not sufficient compliance,
irrespective of other constitutional provisions?
This is not correct.
The various parts of a constitution should be construed together. 12 C. J. 707. The real
purpose must prevail over literal meaning. 12 C. J. 702.
1. This is an original proceeding in habeas corpus whereby the petitioners seek to be
discharged from custody pursuant to a warrant of arrest issued upon a complaint charging
them with a violation of the Whiteley act (Stats. 1923, p. 43). Several grounds are urged in
support of the contention that the act mentioned is unconstitutional and void. In view of the
conclusion which we have reached, though it would be interesting and instructive to pursue
the other course, we will consider but one of the grounds urged, since a determination of that
must result in the discharge of the petitioners, namely, Is the title of the act violative of
section 17, article 4, of the Constitution of Nevada? The title of the act reads as follows:
An act to make the provisions of the National Prohibition Act of the United States of
America the law of the State of Nevada; and to repeal an act entitled An act to prohibit the
manufacture, sale, keeping for sale, and gift, of malt, vinous and spirituous liquors, and
other intoxicating drinks, mixtures or preparations, making the superintendent of the
Nevada state police ex officio commissioner of prohibition, and defining his duties; and
providing for the enforcement of this act, and prescribing penalties for the violation
thereof,' enacted pursuant to direct vote of the people, general election, November 5,
191S; and to repeal all acts in conflict herewith; and other matters connected therewith."
act to prohibit the manufacture, sale, keeping for sale, and gift, of malt, vinous and spirituous
liquors, and other intoxicating drinks, mixtures or preparations, making the superintendent of
the Nevada state police ex officio commissioner of prohibition, and defining his duties; and
providing for the enforcement of this act, and prescribing penalties for the violation thereof,'
enacted pursuant to direct vote of the people, general election, November 5, 1918; and to
repeal all acts in conflict herewith; and other matters connected therewith.
Section 17 of article 4 of the constitution, so far as pertinent, provides:
Each law enacted by the legislature shall embrace but one subject, * * * which subject
shall be briefly expressed in the title. * * *
The specific question to be determined is: Does the title of the act express the subject
thereof? The only attempt, if any at all was made, to express the subject of the act in the title,
was by the words:
An act to make the provisions of the National Prohibition Act of the United States of
America the law of the State of Nevada.
To intelligently dispose of the point urged upon us we should first determine what the
purpose of the provision of the constitution in question is. This was done by us in Ex Parte
Cerfoglio, 44 Nev. 343, 195 Pac. 96, at some length, and we will content ourselves here in
saying, briefly, that the purpose of the act, so far as it applies to the situation in hand, is to
require the title of an act to set forth the subject sought to be legislated upon in such a manner
as to fairly give notice of the actual enactment without imposing upon the members of the
legislature and the public the burden of looking elsewhere to ascertain just what is the subject
sought to be legislated upon. With this brief statement in mind, and alive to the
well-recognized rule that constitutional provisions should be liberally construed, let us
inquire if the provision in question was violated in the act mentioned.
2. This naturally brings us to an inquiry as to what is meant by the term subject of the
act, as used in the constitution. We do not think there is any misunderstanding on that point.
Lewis's Sutherland, Stat. Constr. (2d ed.), sec. 116, says:
The subject of a statute is the matter of public or private concern in respect to which its
provisions are enacted.
In 25 R. C. L., p. 844, it is stated:
The subject' of an act is the matter or thing forming the groundwork of the act.
The object' of an act is the aim or purpose of the enactment, while the subject' is the
matter to which it relates and with which it deals. McNeeley v. Oil Co., 52 W. Va. 616, 44
S. E. 508, 62 L. R. A. 562.
These quotations clearly and concisely state the rule as recognized by all authorities.
Reverting to the title of the act in question, if such it can be called, does it anywhere even
suggest the subject sought to be legislated upon? From a perusal of the title of the federal
statute it will be seen that the subject of that act was therein referred to, but the title of the
Whiteley act merely refers to or designates the provisions of the National Prohibition Act
as a law which is sought to be enacted into a state statute.
Is there anything in the title in question to enable the people or the legislators to grasp the
purpose and scope of the bill without reference to any other document? We think not. The
so-called title merely declares that it is an act to make the provisions of an act of Congress
the law of the State of Nevada. It is true that it undertakes to designate the act of Congress,
the provisions of which it purports to incorporate into a law. Nowhere in the title of the
statute does it appear what the provisions of the act of Congress are. To ascertain what they
are, one must look to the act of Congress itself. That this will not suffice we do not think any
one could be so bold as to contend.
The national prohibition act cannot be the subject of legislation in the sense in which
that term is used in the constitution.
in the constitution. The act mentioned is itself legislation upon a subject. By what manner of
legerdemain can an act of Congress which legislates upon a recognized subject itself become
a subject of legislation? If the National Prohibition Act (41 Stat. 305) can be a subject of
legislation, why might not our legislature pass an act entitled An act providing for the
enactment into law of House Bill No. 5000, as passed by the Congress of the United States?
The mere fact that it is designated House Bill No. 5000 matters not if the act is or can be the
subject of legislation. Surely no one would say that a statute with such a title could become a
law in the face of the constitutional inhibition invoked in this case. Yet, what is the difference
between the so-called statute before us and the supposed one? In either case all that the title
does is to point out where the subject-matter sought to be legislated upon may be ascertained.
This does not measure up to the requirement of the constitution. Such a title is no nearer a
compliance with the requirement of the constitution than a title reading, An act to amend
chapter three hundred and eighty-nine of the laws of eighteen hundred and fifty-one,
concerning which the Court of Appeals of New York, in People v. Hills, 35 N. Y. 449, said:
No human ingenuity would ever discover that subject [the one covered in the body of the
act]. * * * The true and actual subject or object must be thus expressed, or the evil and
mischief which the framers of the constitution sought to avert and prevent will not have been
effectually guarded against.
Equally appropriate are the words of the Supreme Court of Texas in Gunter v. Texas Land
Co., 82 Tex. 496, 17 S. W. 840:
The mischiefs intended to be avoided by section 35 of article 3 of the constitution have
been so often stated that it is not now necessary to restate them, and it must be deemed settled
that such a law is mandatory, and hence binding upon every department of the government.
While this is so, such provisions have been liberally construed, and it has been steadily held
that a title which in substance is a compliance with the requirement of the constitution is
sufficient; but can it be claimed that the title in question is sufficient even under this
liberal rule?
which in substance is a compliance with the requirement of the constitution is sufficient; but
can it be claimed that the title in question is sufficient even under this liberal rule? The
constitution declares that the subject shall be expressed in the title,' and it cannot be said that
this has been done where the title does no more than to furnish a reference to some other
writing, document, or law from which by search the true purpose of a title may be
ascertained.
In Pennington v. Woolfolk, 79 Ky. 13, the court had under consideration the sufficiency of
a title to a statute reading:
An act to amend article three of chapter five of the General Statutes. Laws 1873-74, c.
524.
The court, in holding the act unconstitutional because the subject was not expressed in the
title, said:
The title of the act under consideration can only be regarded as sufficient, even for the
purpose of an amendment germane to the article mentioned in the title, by supposing the
members were so well acquainted with the several chapters, and the subject of each, that they
could, from the simple mention of the number of the article and chapter, know the subject of
that particular article.
In accord with the authorities mentioned are the following: State v. Nomland, 3 N. D. 427,
57 N. W. 85, 44 Am. St. Rep. 572; Lewis's Sutherland, Stat. Constr. (2d ed.), sec. 132; 36
Cyc. 1032; 25 R. C. L. 850.
We are clearly of the opinion that the title of the statute in question fails to express a
subject, and is therefore fatally defective.
It is ordered that the petitioners be discharged from custody by the sheriff.
We desire to express our gratitude to counsel appearing amici curiae for their generous
assistance in this matter.
Sanders, J., dissenting:
I dissent.
The petitioners were charged, upon information, with the crime of having in their
possession intoxicating liquor, containing one-half of 1 per cent or more of alcohol by
volume, fit for use for beverage purposes.
the crime of having in their possession intoxicating liquor, containing one-half of 1 per cent
or more of alcohol by volume, fit for use for beverage purposes.
The petitioners seek their discharge from custody upon the ground that the information
does not state a public offense. But a single question is presented by this contention for our
determination, and that is the constitutionality of an act of the last legislature (Stats. 1923, p.
43), entitled as set out in the opinion of Justice Coleman, to which reference is made.
An impression widely prevails, supported by an official opinion of the attorney-general,
which opinion is concurred in by the district attorney of Washoe County, that the act is
unconstitutional. The act purports to introduce into the law and make operative as a part of it
the existing penal provisions of the Volstead Act, enacted by Congress to carry into effect
and to enforce the provisions of the Eighteenth Amendment to the Constitution of the United
States, and to make operative as a part of the statute all future amendments and repeals made
by the Congress of the Volstead Act, or any future law enacted by the Congress to enforce
the eighteenth amendment. The question of immediate concern to petitioners is, not whether
it is competent for the legislature to inject bodily into the statute all future laws to be enacted
by the congress for the enforcement of the eighteenth amendment, but whether the law is
invalid in so far as it attempts to make the existing penal provisions of the Volstead Act the
law of this state by mere reference. The legislation is certainly a novel experiment in statutory
lawmaking, but a precedent is to be found for it in the Wright Act, so-called, of California
(Stats. 1921, p. 79), upheld by the supreme court of that state as being constitutional. Ex Parte
Burke, 212 Pac. 193. It might be argued with great propriety that, since the law is patterned
on the Wright Act of California, we should adopt the construction made by the court of the
state by whose legislature the statute was enacted, but because of the conclusion reached by
my associates, that the act is unconstitutional and void because of its defective title, a point
not discussed in the opinion of the court in Ex Parte Burke, I am precluded from
discussing whether the opinion of the California court should be followed and applied in
this case.
a point not discussed in the opinion of the court in Ex Parte Burke, I am precluded from
discussing whether the opinion of the California court should be followed and applied in this
case.
Addressing myself solely to the question of the sufficiency of the title to the act, it is my
opinion that my associates are in error in making the declaration that the purpose of section
17, article 4, of our constitution was to give notice of the actual enactment without imposing
upon members of the legislature and the public the burden of looking elsewhere to ascertain
just what is the subject sought to be legislated upon. I decline to extend the purpose of our
constitutional provision beyond what has been decided in numerous cases in this court, that
the design of its provision that each law enacted by the legislature shall embrace but one
subject and matter properly connected therewith was to prevent improper combinations to
secure the passage of laws having no necessary or proper relation, and which, as independent
measures, could not be carried; and that the object of the other requirement, that the subject
of the act shall be briefly expressed in the title, was that neither the members of the legislature
nor the public should be misled or deceived by the title. When a law has but one general
object, which is fairly indicated by its title, the general purpose of section 17 of article 4 of
the constitution is accomplished. Klein v. Kinkead, 16 Nev. 194.
The legislature as a lawmaking body has the right to choose the title to any act passed by it.
The form or status of the title of an act at its introduction, or during any of the preceding
stages of legislation before it becomes a law, is immaterial. Attorney-General v. Rice, 64
Mich. 385, 31 N. W. 203. If the subject is expressed in the title, the mode of its statement and
the degree of particularity with which it is expressed rest in the discretion of the legislature. It
is the completed title, and not what precedes it, which concerns courts. Courts are not
authorized to exercise a scholastic supervision or censorship over the various ways by which
members of the legislature are informed or apprised of the subject of their enactments.
members of the legislature are informed or apprised of the subject of their enactments.
Nothing that this court has ever decided, nor, indeed, so far as I have examined, any other
court, justifies the position that the purpose of section 17, article 4, of the constitution is to
give notice of the actual enactment without imposing upon the members of the legislature and
the public the burden of looking elsewhere to ascertain just what is the subject sought to be
legislated upon.
A number of authorities are cited, and closely followed by Justice Coleman in the opinion,
which hold that a title that merely makes reference to the number of the article and chapter of
a law sought to be adopted is objectionable to the constitutional provision in question, in that
the title does not specify or make descriptive reference to the subject of the law. I concede
that the division of statutes into titles and chapters is chiefly a matter of convenience, and
reference to the title or chapter is simply a ready method of identifying the particular
provisions which are meant. Ozawa v. United States, 43 Sup. Ct. 65, 67 L. Ed. 11. But the
language of the title to the act here under review is different. The title makes no reference to
the number of the article and chapter and any law, but does make reference to two laws which
relate to the same subject-matter. It refers to one by the name given it by the act of its
creation, and the other is referred to by its title. One is a federal law, to wit, the national
prohibition act, and the other is a local law, to wit, the Nevada prohibition act. The title
purports to make the provisions of the national prohibition act the law of Nevada, and
obliterates and repeals the local law, whose title announces its subject to be to prohibit the
manufacture, sale, use, and gift of intoxicating liquors. The title is so phrased as to show that
the act was evidently intended to make the provisions of the national prohibition act take the
place of and be substituted for the Nevada prohibition act on the subject of intoxicating
liquors, because that act is expressly repealed. It is true the title does not make specific
mention of the subject of the national prohibition act, but the adoption of its provisions as
the law of Nevada and the repeal of the state law to prohibit intoxicating liquors, shown
to have been enacted by the direct vote of the people, fairly and reasonably gave notice to
legislators and the people of the subject or object of the law.
prohibition act, but the adoption of its provisions as the law of Nevada and the repeal of the
state law to prohibit intoxicating liquors, shown to have been enacted by the direct vote of the
people, fairly and reasonably gave notice to legislators and the people of the subject or object
of the law.
Furthermore, speaking argumentatively, since the adoption of the Eighteenth Amendment
to the Constitution of the United States, the name, to wit, the national prohibition act, has
acquired a judicial and common significance. It has been the subject of more judicial and
forensic discussion than any legislation of modern times. While I do not say that because of
its notoriety the members of the legislature and the public are supposed to be apprised of its
subject, I do insist that it operates in this state by its own vigor, and all individuals within the
sphere of its operation are subject to its constraining and restraining effect. In this connection
I quote with approval what is said by Mr. Sutherland in his work on Statutory Construction,
sec. 22, where the author states:
Both the federal and state laws belong to one system, and, though emanating from
different legislative bodies, they are not hostile nor foreign to each other. In each state, the
laws of congress applicable thereto operate of their own vigor. All persons must take notice
of them, and are presumed to know them; all branches of the state government take notice of
them; they are within the judicial knowledge of the state courts.
It is obvious from the selection of the title to the act that the legislature recognized the full
meaning, force, and effect of the national prohibition act. Whether it is competent for the
legislature to adopt the penal provisions of a federal law by mere reference to its title is a
question upon which I pass no opinion. The title in question which makes the provisions of
the national prohibition act the law of this state, followed by the repeal of the local law
relative to the same subject, fairly and reasonably conveys to the mind the subject of the
legislation with such force as to put legislators and the people upon inquiry.
and the people upon inquiry. The argument that the title expressed no subject whatever is
without merit.
I am impressed by the argument advanced by counsel amici curiae, that, where the
intention of the legislature is plain, an act should not be invalidated by a technical
interpretation of the title. It is the consensus of opinion of all the courts that, in a case not
within the mischief intended to be remedied by the provisions of the constitution in question,
sound policy and legislative convenience dictate a liberal construction of the title of
enactments to maintain their validity. State v. Ah Sam, 15 Nev. 27, 37 Am. Rep. 454. The act
has but one general object, which is so fairly and reasonably expressed in the title that to
nullify the law for the reasons urged against its title would result in the creation of greater
mischief than the constitutional clause was designed to prevent.
I do not understand the learned attorney-general to be of the opinion that the title of the
law is defective, in that it does not inform the members of the legislature or the public of the
subject or object of the enactment. But it is insisted by the attorney-general and counsel for
petitioners that the title is not sufficiently broad to cover the provisions contained in the act
which confer jurisdiction upon the courts of this state in cases of violation of the Volstead
act, and impose upon district attorneys, sheriffs, magistrates, grand juries, and all peace
officers the duty to enforce the penal provisions of the Volstead act.
The constitutional requirement is not directed against the generality and
comprehensiveness of title; all its purposes are satisfied when the law has but one general
object or subject which is fairly indicated in its title. The mere generality of the title is not an
objection. 25 Ruling Case Law, par. 99, p. 853.
That the framers of the act would include in the body of it the necessary means to enforce
it was to be expected. That it is unnecessary and often not conducive to proper legislation to
include such means in the title is well-established constitutional law which presumes that no
will be misled by such omissions."
presumes that no will be misled by such omissions. Ex Parte Cerfoglio, 44 Nev. 348, 195
Pac. 96.
The other points urged by the attorney for petitioners against the title to the act might with
a greater show of reason be directed to the objection that the law is invalid in so far as it
adopts the existing provisions of the national prohibition act as the law of this state. The same
may be said of the argument contained in the opinion of my associates, that the national
prohibition act cannot be made the subject of legislation in the same sense in which that term
is used in the constitution, as the act mentioned is itself legislation upon a subject. There is no
doubt that it is, and whether it is competent for the legislature to make its provisions the law
of this state by reference to its title goes to the validity of the enactment and not to its title.
The word subject is used in the constitutional provision in its ordinary sense. A subject
is that of which anything can be affirmed or predicated. The predicate of the national
prohibition act is the prohibition of intoxicating liquors for beverage purposes, as pronounced
by the eighteenth amendment. The predicate of the state law is the prohibition of intoxicating
liquors, as pronounced by direct vote of the people of the state. If it is not competent for the
legislature to adopt the provisions of a completed act of Congress, whose predicate is the
prohibition of intoxicating beverages, by reference to its title and to repeal the state law, the
fault rests with the act itself and not with its title. To adopt the critical, if not arbitrary, views
urged in this proceeding against the title to the act would tend to embarrass what may be
legitimate legislation, and be the means of creating more mischief than the constitutional
clause was designed to prevent.
____________
47 Nev. 109, 109 (1923) Ex Parte Sloan
No. 2588
Ex Parte SLOAN
July 14, 1923. 217 Pac. 233.
1. Intoxicating LiquorsElimination of Charter Provisions in Amendment Held Done to
Remove Conflict with Statute.
The amendment of Reno charter in 1921 (Stats. 1921, c. 33), eliminating power of the city council to
license, regulate, and limit the liquor traffic, made such elimination to remove conflicts with the state
prohibition law, and not to withhold power to prohibit sale or disposal of intoxicating liquor by ordinance.
2. Intoxicating LiquorsCity Has Implied Power to Regulate Liquor Traffic.
In the absence of any express charter authority or any express prohibition of authority to regulate the
manufacture, sale, etc., of intoxicating liquors, the city of Reno has implied authority to do so under the
general-welfare clause of the charter (Stats. 1921, c. 33), which is based on the police power, in view of
Stats. 1919, c. 1, sec. 23.
3. Constitutional LawLegislature May Delegate Police Power under General Grant.
The legislature may delegate to municipal corporations the lawful exercise of police powers within their
boundaries.
4. Municipal CorporationsCharter General-Welfare Clause May Supply Omitted Powers.
If the power to pass ordinances upon any subject is specifically given, the power so granted cannot be
enlarged or changed by a general clause of the charter, but, if the subject is omitted altogether in the
specific powers, authority to pass ordinances upon the omitted subject may be conferred under the general
clause.
5. Municipal CorporationsState and City May Legislate on Same Subject.
The same act may constitute both an offense against the state and a municipal corporation, both of whom
may punish without violation of any constitutional principle.
6. Intoxicating LiquorsViolation of State Liquor Law Punishable by both State and
Municipality.
The keeping for sale or other disposal of intoxicating liquors denounced by the Reno charter falls within
the category of acts which may be prohibited and punished by statute and ordinance simultaneously.
7. Criminal LawPenal Statute and Ordinance Covering Same Offense Do Not Constitute
Double Jeopardy.
An ordinance penalizing the sale, manufacture, etc., of intoxicating liquors, also prohibited by statute, is
not within the constitutional inhibition against double jeopardy, because conditions ordinarily prevailing in
populous centers constitute it a distinct offense against the city.
8. JurySummary Proceedings for Petty Offenses Held Not Unconstitutional Denial of Jury
Trial.
Denial of jury trial for petty offenses under city ordinance, where summary proceeding is expressly
authorized by Stats. 1905, c. 71, art. 14, sec. 3, and had been the practice at common law prior to the
adoption of the several constitutions, does not violate the constitutional right to jury trial, since the term
jury trial is defined by the common law.
9. JuryCommon-Law Rules Survived the Constitution.
If in a given class of offenses trials without a jury were formerly the prevailing rule, the constitution did
not change the rule.
10. Constitutional LawOne Not Injured by an Act May Not Complain of
Unconstitutionality.
The petitioner cannot complain that the penalty authorized by the ordinance under which he was
convicted was unconstitutional because in excess of that authorized by statute, where the penalty imposed
was within the statutory maximum for the same offense, as in such case he is not injured.
Original application of Charles Sloan for a writ of habeas corpus. Writ dismissed.
(Sanders, J., dissenting.)
M. B. Moore, for Petitioner:
Municipal powers are either expressly granted, necessarily implied, or indispensable (not
merely convenient). 1 Dillon, Mun. Corp. (4th ed.), secs. 89, 91; Meagher v. County of
Storey, 5 Nev. 196.
Ambiguity as to powers is determined in favor of state and against state's grantee. 1 Dillon,
sec. 91. Courts adopt a strict rather than liberal construction of municipal powers. Minturn v.
Larue, 23 How. 435; 1 Dillon, secs. 315, 316.
A by-law of city in relation to sale of intoxicating liquor is invalid, as contravening special
provisions of charter, and therefore not sustainable under general-welfare clause of charter.
State v. Ferguson, 33 N. H. 424.
An ordinance making that which is a crime under general law an offense against the town,
held to be void. In Re Sic, 14 Pac. 405; 1 Dillon, secs. 433-436, and note 2, page 503. Unless
by express legislative authority conferring jurisdiction. Moran v. Atlanta, 30. S. E.
30. S. E. 298. Though authorities on subject are in hopeless conflict. 29 Cyc. 699; 45 Am.
Rep. 420.
Only violations of municipal police regulations may be tried summarily; in all other cases
citizen has right to trial by jury. Callan v. Wilson, 32 U. S. (L. Ed.) 223.
LeRoy F. Pike, for Respondent:
The police power of municipal corporation extends to all matters affecting peace, order,
health, morals, convenience, comfort, and safety of its citizens. The general-welfare idea is
expanding rapidly. Recent judicial decisions are giving greater power to public authorities. 3
McMillan, Mun. Corp. 1884.
City may control intoxicants under general-welfare clause. Idem, sec. 890; 2 Dillon, Mun.
Corp., secs. 671, 673; In Re Bond, 107 Pac. 143. That cities have such power is no longer
open question. State v. Calloway, 84 Pac. 27. Even though the state has general statutes on
same subject. Summers v. Oklahoma, 112 Pac. 951.
The legislature intended that cities should enact measures necessary to put prohibition act
into effect. 3 Rev. Laws, sec. 26, p. 2829.
The state and its municipalities may act concurrently. 28 Cyc. 368; Ex Parte Counts, 39
Nev. 61. The decisions are conflicting, but the rule prevails in twenty-eight states and in the
United States court. McMillan, supra, sec. 878; In Re Jahn, 41 Pac. 956; Guidoni v. Wheeler,
230 Fed. 93.
Municipal ordinances may make punishment greater than statute. Kansas City v. Kearne,
153 Pac. 548. Or less. Ex Parte Kinney, 200 Pac. 966.
Infractions of police ordinances may be tried without jury. State v. Ruhe, 24 Nev. 251. If
appeal is not unreasonably restricted. 2 Dillon, sec. 756; Cranor v. City of Albany, 71 Pac.
1042.
The title of the ordinance is sufficient. Ex parte Cerfoglio, 46 Nev. 332.
This is an original proceeding in habeas corpus. The return to the writ shows that
petitioner was convicted in the municipal court of the city of Reno for the violation of
section 2 of Ordinance No.
return to the writ shows that petitioner was convicted in the municipal court of the city of
Reno for the violation of section 2 of Ordinance No. 299 of said city, and sentenced to pay a
fine of $500 or serve one day in the city jail of the city of Reno for each dollar of the fine
remaining unpaid.
From the judgment of the municipal court petitioner appealed to the Second judicial court
of the State of Nevada, in and for the county of Washoe. Petitioner was tried in said district
court before the court sitting without a jury, found guilty, and sentenced to pay a fine of $100,
in default of which it was adjudged that he be confined in the city jail of the city of Reno,
Washoe County, Nevada, for a period not to exceed one day for each dollar of said fine
remaining unpaid. In default of the payment of the fine petitioner was remanded to the
custody of the chief of police of said city of Reno, to be incarcerated in the said city jail. On
the issuance of the writ from this court petitioner was admitted to bail.
Section 2 of the city ordinance under which petitioner was charged, tried, and convicted,
reads as follows:
It shall be unlawful for any person, firm, association, or corporation to manufacture, keep
or store, sell, or otherwise dispose of, except as hereinafter provided, any intoxicating liquors
in the city of Reno; provided, that nothing in this ordinance shall prohibit the manufacture,
sale, keeping, or storing of said liquors where the manufacture, sale, keeping, or storing of the
same is permitted by the laws of the State of Nevada, or of the United States of America.
In respect thereto petitioner contends that the city of Reno is without power to pass or
enforce any ordinance relating to the subject or subjects mentioned therein, because the
authority so to do has not been granted in its charter.
1, 2. It is pointed out that the charter of 1917 of the city of Reno contained certain
provisions empowering the city council to license, regulate, and limit places where
intoxicating liquors were sold or given away, which were eliminated when the legislature
amended the said charter act in 1921.
the said charter act in 1921. From this it is urged that the legislature, in thus amending the
charter, had under consideration the question as to whether or not power should be given to
the city council to enact any ordinance governing the licensing, regulating, or prohibiting the
manufacture or sale of intoxicating liquors, and did not intend to grant the city council any
power in regard to these subjects. We do not agree with this view. The provisions eliminated
pertained to the licensing or regulating of places where intoxicating liquors were sold or
given away, and were in conflict with the state prohibition law enacted in 1919, which
prohibited the manufacture, sale, keeping, or storing for sale in this state, or offering or
exposing for sale of intoxicating liquors in the state. Stats. 1919, p. 1. It is clearly evident that
these provisions were removed from the charter act by the legislature of 1921 for this reason,
and we perceive nothing in the amendment from which to indulge an inference that it was
intended to withhold from the city council the power to legislate by ordinance in regard to
prohibiting the sale or disposal of intoxicating liquors within the limits of the city of Reno. It
is true this authority is not expressly granted by the charter. Counsel for the respondent
concedes so much, and claims that the authority has been given to the municipality under the
general delegation of powers appearing in the charter in what is designated as the
general-welfare clause. This clause reads as follows:
To adopt and enforce by ordinance, all such measures and establish all such regulations in
case no express provision is in this charter made, as the city council may from time to time
deem expedient and necessary for the promotion and protection of health, comfort, safety,
life, welfare, and property of the inhabitants of said city, the preservation of peace and good
order, the promotion of public morals and the suppression and prevention of vice in the city,
and to pass and enact ordinances on any other subject of municipal control or to carry into
force or effect any other powers of the city, and to do and perform any, every, and all acts and
things necessary or required for the execution of the powers conferred or which may be
necessary to fully carry out the purpose and intent thereof."
things necessary or required for the execution of the powers conferred or which may be
necessary to fully carry out the purpose and intent thereof. Stats. 1921, p. 56.
3. This clause of the charter contains a delegation of police powers. It is well settled that
the legislature may delegate to municipal corporations the lawful exercise of police powers
within their boundaries, and do so under a general grant. 28 Cyc. 705, and cases cited; 19 R.
C. L. pp. 798, 799; Cooley's Municipal Corp. p. 313; 3 McQuillin, Mun. Corp., sec. 895; City
of Helena v. Kent, 32 Mont. 279, 80 Pac. 258, 4 Ann. Cas. 235; Crum v. Bray, 121 Ga. 709,
49 S. E. 686, 1 Ann. Cas. 991; Village of Fairmont v. Mayer, 83 Minn. 456, 86 N. W. 457;
Commonwealth v. Cutter, 156 Mass. 52, 29 N. E. 1146.
It is unnecessary to adduce or cite authority in this case to show that the prohibition of the
sale of intoxicating liquors is comprehended within the scope of police powers. Legislation of
this character was declared to be the exercise of such power by the people and legislature of
this state (section 23, Stats. 1919, p. 11), and was a legitimate exercise thereof. State v. Reno
Brewing Co., 42 Nev. 397, 178 Pac. 902.
4. There is nothing in the charter act to indicate that the legislature intended to withhold
this portion of its police power from being exercised by the city of Reno, and the preservation
of the health, comfort, good order, safety, morals, and welfare of the people is within the
ordinary scope of municipal authority. A rule deducible from ample authority, which we think
should be given application here, is, if the power to pass ordinances upon any subject is
specifically given, the power so granted cannot be enlarged or changed by the general clause;
but, if the subject is omitted altogether in the specific powers, authority to pass ordinances
upon the omitted subject may be conferred under the general clause. The only restriction in
the general-welfare clause upon the subjects pertaining to police power is in case express
provision is made in the charter, and there is no special provision in regard to the sale of
intoxicating liquors.
is no special provision in regard to the sale of intoxicating liquors. It seems, therefore, that the
city council was clothed with ample authority to adopt the ordinance in question.
5. But counsel for petitioner contends that, the state having passed a general law
prohibiting the manufacture and sale of intoxicating liquors fixing the degree of the offense,
and providing the penalty therefor, the city council of Reno cannot pass or enact a valid
ordinance governing the same subject-matter, and is without power to prosecute any person
for the violation of any such ordinance. There is a conflict of authority upon this question.
The decided weight of authority, however, is to the effect that the same act may constitute an
offense both against the state and a municipal corporation. Indeed, says Judge Cooley, in
his work on Constitutional Limitations (7th ed.) p. 279, an act may be a penal offense under
the laws of the state, and further penalties, under proper legislative authority, be imposed for
its commission by municipal by-laws, and the enforcement of the one would not preclude the
enforcement of the other.
This principle was recognized in Ex Parte Siebenhauer, 14 Nev. 365. The trend of
authority in this respect is thus stated in 28 Cyc., pp. 696-698:
The legislature may confer police power upon a municipality over subjects within the
provisions of existing state laws. Accordingly, unless it is prohibited by some express
constitutional or statutory provision, by the great weight of authority municipal corporations
may, by ordinance, prohibit and punish acts which are also prohibited and punishable as
misdemeanors under the general statutes of the state, or which may involve a common-law
offense.
The power may be granted expressly or by implication. Id. 693.
As was said in City of Chicago v. Ice Cream Co., 252 Ill. 311, 96 N. E. 872, Ann. Cas.
1912d, 675, in which it was held that the fact that the state had legislated upon a subject does
not necessarily deprive a city of power to deal with the same subject by ordinance:
a subject does not necessarily deprive a city of power to deal with the same subject by
ordinance:
Municipal corporations are bodies politic, vested with many political and legislative
powers for local government and police regulations, established to aid the government by the
state. The necessity for their organization may be found in the density of the population and
the conditions incidental thereto. Because of this, the municipal government should have
power to make further and more definite regulations than are usually provided by general
legislation and to enforce them by appropriate penalties.
The following additional authorities are among those sustaining the principle, which we
think is more in consonance with good government, that the same act may be prohibited and
punished by municipal and state law: Borok v. Birmingham, 191 Ala. 75, 67 South. 389,
Ann. Cas. 1916c, 1061; Van Buren v. Wells, 53 Ark. 368, 14 S. W. 38, 22 Am. St. Rep. 214;
Hunt v. Jacksonville, 34 Fla. 504, 16 South. 398, 43 Am. St. Rep. 214; Rossberg v. State, 111
Md. 394, 74 Atl. 581, 134 Am. St. Rep. 626; People v. Hanrahan, 75 Mich. 611, 42 N. W.
1124, 4 L. R. A. 751; People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735, 9 L.
R. A. 722; State v. Walbridge, 119 Mo. 383, 24 S. W. 457, 41 Am. St. Rep. 663; Howe v.
Treasurer of Plainfield, 37 N. J. Law, 145; Riley v. Trenton, 51 N. J. Law, 498, 18 Atl. 116, 5
L. R. A. 352; Rogers v. Jones, 1 Wend. (N. Y.) 237, 19 Am. Dec. 493; Brazier v.
Philadelphia, 215 Pa. 297, 64 Atl. 508, 7 Ann. Cas. 548; Seattle v. MacDonald, 47 Wash.
298, 91 Pac. 952, 17 L. R. A. (N. S.) 49, and note on page 54; Hamilton v. State, 3 Tex. App.
463; In Re Thomas, 53 Kan. 659, 37 Pac. 171; Kansas City v. Henre, 96 Kan. 794, 153 Pac.
548; Theisen v. McDavid, 34 Fla. 440, 16 South. 321, 26 L. R. A. 234.
The power of a municipality to punish as a distinct offense an act which also constitutes an
offense against the state may be included in the general powers conferred on the former.
Thiesen v. McDavid, 34 Fla. 440, 16 South. 321, 26 L. R. A. 234; Borok v. City of
Birmingham, 191 Ala. 75, 67 South. 389, Ann. Cas. 1916c, 1061; Seattle v. MacDonald, 47
Wash, 29S, 91 Pac. 952, 17 L. R. A. {N. S.)
1061; Seattle v. MacDonald, 47 Wash, 298, 91 Pac. 952, 17 L. R. A. (N. S.) 49; City of St.
Louis v. Schoenbusch, 95 Mo. 618, 8 S. W. 791; City of Brownville v. Cook, 4 Neb. 101;
City Council v. Leopard, 61 S. C. 99, 39 S. E. 248; State ex rel. Milwaukee v. Newman, 96
Wis. 258, 71 N. W. 438.
Mr. Dillon, in his work on Municipal Corporations, quoted from extensively by counsel
for petitioner, expresses the opinion with some diffidence that a general grant of power to a
municipal corporation is not sufficient to confer authority to punish an act as an offense
which is also punishable by the state law. But the author concludes the subject, which he
characterizes as complex, by concurring in the opinion that there are many acts of such a
nature that they may, if the legislature has so provided, be an offense against the state at large
and also against the special and local government of the municipality. Accordingly, he says,
where an act is prohibited both by statute and by ordinance, it may constitute two offenses,
one against the state and the other against the city or town, and where such is the case a
conviction of one may not be pleaded as constituting former jeopardy when the offender is
prosecuted for the other, and where such is the case the weight of authority also seems to hold
that power to enact ordinances with reference thereto may be included in the general powers
conferred on cities and towns by statute. 2 Dillon's Municipal Corporations (5th ed.), secs.
632, 633.
The same subject is discussed by Mr. McQuillin in his treatise on Municipal Corporations.
The author says:
As to the proposition whether this is true only where express authority has been given the
municipal corporation to legislate on the subject, and that under general grant of power no
implied authority to penalize acts punishable by statute exists, there is lack of harmony in the
judicial decisions. The exigencies of municipal life require more rigid regulations than is
required in rural sections of the state. Clearly many acts are far more injurious, and the
temptation to commit them much greater, in congested centers than in the state at large, and
when done are not only injurious to the public at large but added injury to the inhabitants
of the local community.
large, and when done are not only injurious to the public at large but added injury to the
inhabitants of the local community. The better doctrine therefore is that the municipality may
exercise necessary implied authority in police control, in imposing penal regulations
consistent with the constitution and laws of the state, although the act has been made a penal
offense by statute. 7 McQuillin's Municipal Corporations (Supplement) sec. 878.
6, 8. The keeping for sale, or selling, or other disposal of intoxicating liquors denounced
by section 2 of the city charter fall within the category of acts which may be prohibited and
punished by municipal ordinance, notwithstanding such acts have been made penal by state
legislation. The ordinance in this respect is not in conflict with the state law in effect when
the amendment to the charter was adopted and when the offense was committed, but is
consistent with it. On account of the conditions ordinarily prevailing in populous centers, the
acts penalized by the ordinance constitute an offense against the municipality as well as
against the laws of the state; consequently the ordinance is not subject to the constitutional
inhibition that no person may be placed twice in jeopardy for the same offense. It is objected
that the ordinance is unconstitutional because under it, by virtue of another provision of the
charter, the right of trial by jury is denied before the police magistrate. The objection is
untenable. Express authority is found in the charter for summary proceeding in cases of
violation of city ordinances. Section 3, article 14, City Charter of Reno (Stats. 1905, p. 132).
Violations of municipal ordinances belong to that class of minor offenses which were in
general triable in a summary manner prior to the adoption of the several constitutions, and a
denial of a jury trial in such cases is not a violation of general constitutional provisions. 24
Cyc. 145; State v. Ruhe, 24 Nev. 251, 52 Pac. 274. Said the court in the latter case, quoting
approvingly from Sedgwick St. & Const. Law, p. 497: "Extensive and summary police
powers are constantly exercised in all of the states of the union for the repression of
breaches of the peace and petty offenses; and these statutes are not supposed to conflict
with the constitutional provisions securing to the citizens a trial by jury."
Extensive and summary police powers are constantly exercised in all of the states of the
union for the repression of breaches of the peace and petty offenses; and these statutes are not
supposed to conflict with the constitutional provisions securing to the citizens a trial by jury.
9. The acts sought to be repressed by section 2 of the charter belong to a class of minor or
petty offenses to which constitutional guaranties of trial by jury do not extend. If in a given
class of offenses trials without a jury were formerly the prevailing rule, this rule is not
changed by the constitution. Hunt v. City of Jacksonville, 34 Fla. 504, 16 South. 398, 43 Am.
St. Rep. 214; Howe v. Treasurer of Plainfield, 37 N. J. Law, 145; State v. McClear, 11 Nev.
39; McInerney v. City of Denver, 17 Colo. 302, 29 Pac. 516; Am. & Eng. Ency. 974;
Pomeroy's Const. Law, sec. 246; Proffatt on Jury Trials, sec. 95.
In adopting general legislation as to the same acts, the legislature has declared it to be in
the exercise of police powers of the state for the protection of the public health, peace, and
morals. Acts made penal for such purposes by municipal ordinances have always been
prosecuted without a jury under the common law. McInerney v. City of Denver, supra. In the
case just cited the court said:
A careful examination of authorities has led us to the conclusion that, both in this country
and in England, the transgression of municipal regulations enacted under the police power for
the purpose of preserving the health, peace and good order, and otherwise promoting the
general welfare within cities and towns had, for more than a century prior to the adoption of
our constitution, been generally prosecuted without a jury, citing numerous authorities.
10. Petitioner complains that the maximum penalty which may be imposed under the
ordinance is more severe than the penalty which might be imposed under the state prohibition
law of 1919. There is very respectable authority to the effect that the fact that the punishment
provided in a city ordinance is more severe than that fixed in the state law on the same
subject does not necessarily render the ordinance invalid.
punishment provided in a city ordinance is more severe than that fixed in the state law on the
same subject does not necessarily render the ordinance invalid. But we are of the opinion that
petitioner is in no position to raise this constitutional objection. He was sentenced to pay a
fine of $100, and on default of the payment of the fine to be imprisoned for a period of not to
exceed one day for each dollar of the fine unpaid. At the utmost he could only be imprisoned
for 100 days. The punishment adjudged was within the limitations fixed by the state law, and
petitioner is in no wise injured if the penalty which could be imposed under the ordinance
exceeds the maximum penalty of the former. One who is not injured by an act cannot
question its constitutionality. Ex Parte Zwissig, 42 Nev. 360, 178 Pac. 20. The same rule
applies to city ordinances.
The objection to the title was practically waived in petitioner's brief, and fully waived on
oral argument.
It is ordered that the writ be dismissed.
Coleman, J.: I concur.
The controlling and the immediate question presented for determination in this case is that
of whether or not the city of Reno, in the absence of express authority conferred upon it by its
charter, has the power to enact an ordinance making it unlawful to manufacture, keep, or
store, sell, or otherwise dispose of intoxicating liquors within its limits except as permitted by
the laws of Nevada or of the United States.
The ordinance must be interpreted or construed in the light of the state law on the subject
of prohibition at the time of its enactment. It is argued, and my associates are of opinion, that
the ordinance derives its force and finds justification in that it is a police measure for the
protection of the health, peace, and morals of the people of the city of Reno, enacted by virtue
of the general power of the city to legislate upon those subjects. I take the position that the
ordinance, being a prohibition measure, is superseded by the Nevada prohibition act, and that
the city of Reno could not, without express authority conferred upon it by its charter,
enact the ordinance.
and that the city of Reno could not, without express authority conferred upon it by its charter,
enact the ordinance.
It must be conceded that the purpose of the Nevada prohibition act, enacted by direct vote
of the people, was to establish prohibition as a state policy, reaching every part of the state,
and to bring the municipalities thereof within its provisions. The act provides that if any
municipal officer, or any municipal police, shall fail, refuse, or neglect to discharge any duty
imposed upon him by law, prohibiting the manufacture, sale, keeping, and storing for sale of
intoxicating liquors, he shall be removed from office in the manner provided in this section
(section 26). Other provisions contained in the act are so drafted as to make it manifest that, if
the officers of the several municipalities of the state do not fail in their full duty, the health,
peace, and morals of the people of the several cities of the state are amply protected by the
act. The ordinance affords no greater protection or security to the people of the city of Reno
against the evils of intoxicating liquors than the state law, if enforced by its municipal officers
and police.
The state prohibition act is an initiative measure which was in force before the going into
effect of the Eighteenth Amendment to the Constitution of the United States and passage of
the National Prohibition Act, but no point is made of the existence of the federal law, though
it is referred to in the ordinance. The whole scheme of the prohibition act, as shown by its full
text, is so to legislate upon the subject of prohibition that no person, corporation, county,
town, or city shall escape its restraining effect. The subsidiary arms of the state are converted
into instrumentalities for its enforcement. It was not contemplated that, in order to secure or
enforce prohibition within their limits, the cities of the state would be required to enact
ordinances for these purposes, independently and exclusive of the state law. The act is a
completed act, making the cities of the state agencies to carry out the people's will within
their limits, without the necessity of supplementary legislation on their part to enable them
to stand as sponsors for their constabulary in its enforcement.
legislation on their part to enable them to stand as sponsors for their constabulary in its
enforcement. The position that the city of Reno, by reason of the omission from its charter of
any provision with reference to prohibition, derived its power to enact the ordinance under
the pretext of an exercise of its police power, was apparently an afterthought to enable the
city to acquire independent jurisdiction over offenders within its limits and make the
punishment a fine. If the city derives its power to enact the ordinance as a prohibition
enforcement measure from the general-welfare clause of its charter, independent of the state
law, the result would be that upon the repeal of the state law the city of Reno would be within
prohibition territory and the rest of the state be without a prohibition enforcement law.
Mention is made of this contingency merely to show the fallacy of the pretext that the
ordinance derives its force from the general-welfare clause of the city's charter.
But the real question is: Should the ordinance be upheld as concurrent legislation to
enforce prohibition within the limits of the city of Reno? The opinion of the chief justice is
not convincing on this question. It seems to go off on the proposition, supported by many
authorities, that, under a general delegation of power, a city may impose penalties for acts
which by the statute of the state are declared to be crimes. Authorities equally as numerous
hold that, when the legislature has made provision for the punishment of an offense, it has
manifested its intent that the subject-matter be fully covered by the statute, and that a
municipality, under its general powers, cannot make the same act an offense against a
municipal ordinance as well, unless attended by circumstances of aggravation not covered by
the state law. 19 ruling Case Law, sec. 111, p. 804. It is not incumbent upon us in this case to
say which line of authorities is best supported or which is more in consonance with the
principles of good government, for the reason that we are here dealing with an ordinance
which, in my judgment, does not derive its force from general delegated power but from a
general statute on a particular subject, which is considered by some as radical legislation.
from general delegated power but from a general statute on a particular subject, which is
considered by some as radical legislation. Nevertheless, the law is the outgrowth of the will
of the people, expressed by their direct vote. It is true the ordinance deals with the same
subject-matter within the same territory as the state law. It is not inconsistent with or
repugnant to its policy. It is also true that the penalty imposed for its violation is designated a
misdemeanor, the same as the state law, but the punishment under the state law varies, while
that under the ordinance is a fine of a maximum amount. We are not concerned here with the
punishment, but with the power of the city to enact the ordinance. While the cities of the state
are not precluded in terms by the state law from enacting prohibition measures, yet the law, in
my judgment, negatives by legitimate inference the power of a city to enact a prohibition
measure under the pretext that the source of its power is found in the general-welfare clause
of its charter, independent of the state law. This for the reason that the state prohibition act is
a law to effect prohibition in the state and cities as well. The law goes so far as to select and
designate certain places in towns and cities where it is made unlawful to keep for personal use
or otherwise intoxicating liquors, and its provisions and penalties are so shaped as to apply to
all transactions within the cities' limits. In view of the wide scope and comprehensiveness of
the law as a prohibition measure, I am of opinion that the cities of the state are not authorized
to enact a prohibition law, as attempted by the ordinance in question, without express
authority being conferred upon them by their charters.
The ordinance under review having been enacted without such express authority, it is
invalid. I therefore dissent from the order dismissing the writ, leaving for my associates to
decide whether the petitioner is deprived of a jury trial, because he stands charged with the
violation of a city ordinance, even though that ordinance has for its subject and purpose the
prohibition of intoxicating liquors. It is certain that offenders against it take the law of the
state into their own hands and strike down and trample under their feet the constitution
of our country.
against it take the law of the state into their own hands and strike down and trample under
their feet the constitution of our country.
____________
47 Nev. 124, 124 (1923) Pease v. Pease
No. 2580
PEASE v. PEASE
August 6, 1923. 217 Pac. 239.
1. Husband and WifeDecree of Court of Another State for Separate Maintenance Held Not
Res Judicata of Facts Occurring since Decree.
The record of a decree of an Illinois court granting defendant separate maintenance could not operate as
res judicata of facts relied on by plaintiff as grounds for divorce and alleged to have been done subsequent
to the Illinois decree.
2. DivorceJudgment for Defendant Based on Decree Constituting Recriminatory Defense
Inconsistent with Finding Defendant Guiltless of Acts Charged in Complaint.
In an action for divorce, held, that the trial court properly refused to render judgment for defendant wife
on the ground that the record of a decree of an Illinois court for separate maintenance constituted a
recriminatory defense, where such judgment would be wholly inconsistent with the finding that defendant
was guiltless of the acts alleged against her in the complaint.
3. DivorceNeither Spouse Entitled to Divorce when Both Guilty of Misconduct
Constituting Ground for DivorceRecriminatory Defense.
A recriminatory defense is established when both spouses have been guilty of misconduct which would
be good ground for divorce, and in such a situation neither is entitled to a divorce upon the principle that he
who comes into a court of equity must come with clean hands.
4. DivorceRecriminatory Defense Does Not Operate as Plea in Bar Unless Defendant
Guilty of Misconduct Alleged in Complaint.
A recriminatory defense is a plea in bar, but it cannot operate as such unless defendant is guilty of the
misconduct alleged in the complaint.
5. TrialDefendant Entitled to Nonsuit or Dismissal on Motion Where Plaintiff Failed to
Establish Case.
Where plaintiff failed to prove his case, defendant was on motion under civil practice act, sec. 295, subd.
5, entitled to a nonsuit or dismissal.
6. TrialJudgment of Dismissal of Plaintiff's Case Held in Effect Equivalent to Granting of
Defendant's Motion for Nonsuit.
Even though the trial court may have denied a motion for nonsuit or dismissal (Civ. Prac. Act, sec. 295,
subd. 5) in the first instance it could have granted it in any subsequent stage of the
proceedings; and where a judgment dismissing plaintiff's case was rendered, based
on the failure of plaintiff to make out his case, the judgment had that effect.
47 Nev. 124, 125 (1923) Pease v. Pease
first instance it could have granted it in any subsequent stage of the proceedings; and where a judgment
dismissing plaintiff's case was rendered, based on the failure of plaintiff to make out his case, the judgment
had that effect.
7. JudgmentValidity of Judgment Presumed.
Every presumption is in favor of the validity of a judgment.
Action by Suel E. Pease against Mae Pease. From a decree dismissing the action without
prejudice, defendant appeals. Affirmed.
Ayres & Gardiner, for Appellant:
Nonsuit cannot be granted except as provided by statute. Rev. Laws, 5237; Burns v.
Rodefer, 15 Nev. 63.
Dismissal is equivalent to nonsuit. 18 C. J. 1145.
Nonsuit cannot be granted after case has gone to jury. Danforth v. Danforth, 40 Nev. 442.
The plaintiff cannot dismiss suit after decision by court where case is tried without jury. 29
Ann. Cas. 1913d, 527-528.
Verdict by jury is equivalent to decision by court.
The rule of recrimination is fully established in this country as defense in bar, though
relaxed where comparative rectitude of parties is considered (9 R. C. L. sec. 180), on
doctrine that he who seeks equity must come with clean hands. 19 C. J. 93. Recrimination
may be established by record of another court, and requires same quantum of evidence as if
charged as ground for divorce. 9 R. C. L. p. 388.
Refusal to cohabit after decree of separation is not desertion. Allegations based thereon
cannot possibly be true.
A question of fact or law properly in issue, determined by competent court, is conclusively
settled, and cannot thereafter be raised between same parties. Vickers v. Vickers, 45 Nev.
274-288. It is then res adjudicata.
No judgment of dismissal or nonsuit is bar to another suit upon same cause of action. Laird v.
Morris, 23 Nev. 37. John S.
47 Nev. 124, 126 (1923) Pease v. Pease
John S. Sinai and Platt & Sanford, for Respondent:
There is ample authority for trial court's refusal to grant nonsuit. Toulouse v. Pare, 37 Pac.
146; 18 C. J. 1178, 1198.
The lower court's rulings are presumed to be correct. Raine v. Ennor, 39 Nev. 365; 2 R. C.
L., sec. 186. Unless error appears in record. 2 R. C. L., sec. 184. Burden is on appellant to
show error. 2 R. C. L., p. 221.
The court can use peculiarly wide discretion in divorce case. 9 R. C. L., par. 11.
Nonsuit results from plaintiff's failure to prove his case. It is not judgment on merits. Laird
v. Morris, 23 Nev. 37; 14 Cyc. 391. It is without prejudice. 19 C. J. 148. Is reviewable by
plaintiff if made against his protest. 9 R. C. L., sec. 38. But not if made at his instance. 2 R.
C. L., sec. 43. Nor by defendant, if made with his consent or in his favor. 3 C. J. 333. Nor
unless abuse of discretion is clearly shown. 18 C. J., sec. 128.
Res adjudicata has been fully defined. Gulling v. Bank, 29 Nev. 257.
Findings of fact are not necessary or proper on nonsuit. Toulouse v. Pare, supra; 18 C. J. 201;
18 C. J. 1204. Defendant below did not plead recriminatory acts after Illinois decree. She
cannot rely on acts on which that decree was based, as recriminatory in subsequent suit by
plaintiff upon acts happening after that decree.
Burns v. Rodefer was decided on merits; and Danforth v. Danforth (cited by counsel)
reaffirmed that every presumption is in favor of court's action.
This is an appeal taken by the defendant from a decree dismissing an action for divorce. It
is set out in the decree that the dismissal is without prejudice to the plaintiff to start a new suit
with the same cause of action set forth in his amended complaint in the event a reconciliation
cannot be had between the parties. The action was brought on the ground of extreme cruelty
alleged to have been committed by the defendant after a decree for separate
maintenance had been made and entered in favor of the defendant and against the
plaintiff by the court of Sangamon County, State of Illinois, on the 3d day of May, 1919.
47 Nev. 124, 127 (1923) Pease v. Pease
cruelty alleged to have been committed by the defendant after a decree for separate
maintenance had been made and entered in favor of the defendant and against the plaintiff by
the court of Sangamon County, State of Illinois, on the 3d day of May, 1919. In this
connection it is alleged that prior to said date, and ever since, the parties have been living
separate and apart from the other. The acts of cruelty alleged are denied in the answer, and
nonsupport and wilful desertion for more than one year prior to the filing of the complaint,
and the pleadings in the suit and decree for separate maintenance in the circuit court of the
State of Illinois, in and for the county of Sangamon, are set up as affirmative defenses.
The prayer of the answer asks that plaintiff take nothing by his said case and that
defendant be dismissed with her costs, and for all other proper orders, and for general relief.
The trial court found that the jurisdictional facts alleged in the complaint were true, but
that the acts of cruelty charged therein were not true. It also found the allegations of wilful
desertion in a supplemental complaint to be untrue.
As to the issues raised by the answer, the trial court found that the affirmative defense of
nonsupport was untrue, except that since September 22, 1922, plaintiff has paid to the
defendant on account of the said Sangamon County decree the sum of only $160. No finding
was made as to the affirmative defense of wilful desertion. The trial court found that all of the
allegations of the affirmative defense setting up the record of the circuit court of Sangamon
County, State of Illinois, are true, and that the copies of such record attached to defendant's
answer are full, true, and correct copies; but it is of the opinion, as evidenced by the findings
and conclusions of law, that such record is not sufficient to establish a recriminatory defense,
or the defense of res adjudicata.
The defendant contends that it is sufficient, and that on the findings she is entitled to a
judgment on the merits; that in this respect the court erred in dismissing the case without
prejudice to the plaintiff to start a new suit with the same cause of action in the event a
reconciliation cannot be had between the parties.
47 Nev. 124, 128 (1923) Pease v. Pease
merits; that in this respect the court erred in dismissing the case without prejudice to the
plaintiff to start a new suit with the same cause of action in the event a reconciliation cannot
be had between the parties.
1-5. The record of the Illinois court could not operate as res adjudicata of the facts
involved for one reason, at least, that the acts relied on as extreme cruelty are alleged to have
been done subsequent to the decree of separate maintenance. If the court had rendered
judgment for the defendant on the ground that the record of the Illinois court constituted a
recriminatory defense, it would have been wholly inconsistent with the finding to the effect
that defendant was guiltless of the acts alleged against her in the complaint. A recriminatory
defense is established when both spouses have been guilty of misconduct which would be
good ground for a divorce. In such a situation neither is entitled to a divorce upon the familiar
principle that he who comes into a court of equity must come with clean hands. It is a plea in
bar and was so pleaded by the defendant, but it cannot operate as a plea in bar unless the
defendant was guilty of the misconduct alleged in the complaint, which she denies, and on
this issue the court found in her favor. Had she pleaded the facts set out in the affirmative
defenses as grounds for divorce and had asked in her answer that a divorce be awarded her on
such grounds, a different question would be presented. But they were pleaded as
recriminatory defenses, and a dismissal of the action asked for. It is therefore apparent that
the trial court, being of the opinion that the plaintiff had failed to prove a sufficient case for
the court, could have rendered no other judgment than it did. The defendant was entitled to a
nonsuit or dismissal upon motion under the provisions of subdivision 5 of section 295, civil
practice act (Rev. Laws, 5237).
6, 7. The record is silent as to whether such motion was made by the defendant, but
counsel for the parties in their briefs state that it was made by the defendant, her counsel
asserting that it was denied, and counsel for plaintiff claiming that action on the motion was
held in abeyance.
47 Nev. 124, 129 (1923) Pease v. Pease
for plaintiff claiming that action on the motion was held in abeyance. Even though the court
may have denied the motion in the first instance, it could have granted it at any subsequent
stage of the proceedings, and the judgment, based as it is on the failure of the plaintiff to
make out a case, has that effect. Every presumption is in favor of the validity of the judgment.
Raine v. Ennor, 39 Nev. 365, 158 Pac. 133.
The judgment should be affirmed, and it is so ordered.
____________
47 Nev. 129, 129 (1923) Ex Rel. Ginocchio v. Shaughnessy
No. 2611
Ex Rel. GINOCCHIO v. SHAUGHNESSY
August 6, 1923. 217 Pac. 581.
1. Constitutional LawCompleteness of Statute Strong Proof that It Does Not Delegate
Legislative Power.
The completeness of a statute when it leaves the legislature is one of the strongest proofs that it does not
delegate legislative power.
2. StatutesAct Requiring County Commissioners to Enact Ordinances Licensing and
Regulating Motor Vehicles Held Not Incomplete.
Stats. 1923, c. 181, requiring the county commissioners of each county to enact ordinances licensing and
regulating the use of motor vehicles for hire, held not incomplete; the commissioners' duty being
mandatory, and their ordinances as much a part of the law as if embodied therein by the legislature, which
plainly declares the policy of the law, and clearly indicates the legal principles controlling the
commissioners in the exercise of the power conferred.
3. Constitutional LawLegislature May Delegate Power to Determine Fact and State of
Things on which Law Makes Operation Depend.
The legislature cannot delegate legislative power, but may delegate the power to determine some fact and
state of things on which the law makes its own operation depend.
4. CountiesCommissioners Are Administrative Agencies of State in Performance of Duties
Prescribed by Law.
County commissioners, unlike medical and dental boards, commissions, etc., are administrative agencies
of the state in the performance, as required by Const. art 4, sec. 26, of such duties as may be prescribed by
law by means of orders, ordinances, and resolutions duly passed and entered on their records.
5. LicensesCommissioners' Statutory Power to License and Regulate Motor Vehicles Used
for Hire Held within Constitutional Powers.
The duty imposed on the county commissioners by Stats. 1923, c. 181, sec. 1, to enact ordinances
licensing and regulating the use of motor vehicles for hire, is within their power under Const. art 4, sec. 26,
to perform such duties as are prescribed by law; the legislature having declared the use of the public roads
by motor vehicles engaged in public service a privilege for which they must pay and submit to regulation
for the protection of the roads.
6. LicensesAct Designed as Police and Revenue Measure Not Strictly Construed.
The character of power conferred on the county commissioners by Stats. 1923, c. 181, sec. 1, to license
and regulate motor vehicles used for hire, will not be critically examined to denude the commissioners of
their utility as executive agencies; the act being designed as both a police and revenue measure.
7. Constitutional LawNo Presumption that Power Conferred Will Be Exercised Arbitrarily.
The supreme court cannot presume that the power conferred on county commissioners by Stats. 1923, c.
181, sec. 1, to license and regulate motor vehicles used for hire, will be exercised arbitrarily.
8. Constitutional LawAct Requiring County Commissioners to License and Regulate Use
of Motor Vehicles for Hire Held Not Delegation of Legislative Power.
The policy of the state being to delegate to the municipal divisions thereof its power to make regulations
concerning the use of public roads, and provide means for their improvement and maintenance, Stats. 1923,
c. 181, sec. 1, requiring county commissioners to enact ordinances licensing and regulating the use of
motor vehicles for hire, is not, when read in the light of the declared purpose of the act to protect the public
roads and secure revenue for their improvement and maintenance, and all the sections thereof, a delegation
of legislative power in the sense of relinquishing such power and conferring it on the commissioners.
9. Constitutional LawConstitutionality of Act Not Considered in Mandamus Proceeding.
Whether Stats. 1923, c. 181, sec. 9, delegating to the county commissioners the power to issue
certificates of public convenience to common carriers using motor vehicles, and vesting in the public
service commission the right to modify, annul, or approve any certificate or ordinance, delegates legislative
power to the public service commission, will not be considered in mandamus proceedings to compel the
commission to receive and act on an application for such a certificate.
10. StatutesAct Authorizing County Commissioners to Regulate and License Motor
Vehicles Held Not Regulation of County Affairs by Local or Special Law.
Stats. 1923, c. 181, authorizing boards of county commissioners to issue certificates of public
convenience and licenses to common carriers by motor vehicles, held not violative of Const. art 4, sec.
20, as an attempt to regulate county affairs by local or special law.
11. LicensesAct Requiring County Commissioners to License and Regulate Motor
Vehicles Used for Hire held Not Unconstitutional as Not Operating Uniformly
throughout State.
Stats. 1923, c. 181, requiring the county commissioners to license and regulate the use of motor
vehicles for hire, held not violative of Const. art. 4, sec. 21, being a general law operating uniformly
throughout the state.
Mandamus by the State, on the relation of J. S. Ginocchio and another, against J. F.
Shaughnessy and others, as members of the Public Service Commission. Petition dismissed.
Petition for rehearing denied.
L. D. Summerfield, District Attorney, and H. L. Heward, Assistant District Attorney, for
Petitioners:
The main test for such acts as Stats. 1923, p. 329, is this: If statute prescribes adequate
outline and leaves details to be filled in by rules and regulations of administrative board, it is
constitutional. If, however, statute leaves it to discretion of administrative board to use its
own judgment under general terms as to what the law shall be, it is illegal delegation of
legislative power. Secs. 20 and 21, art. 4, Constitution of Nevada; Stats. 1919, c. 109; 1921,
c. 220. Hewitt v. State Board of Medical Examiners, 84 Pac. 39; Wolf v. Humboldt County,
32 Nev. 174.
Matters of solely local concern may be met by conferring purely administrative powers. U. S.
v. Grimaud, 55 L. Ed. 563.
The authorities cited by attorney-general agree with rule contended for, with exceptions of
Alabama cases, which hold that mere imposing of penalty makes such acts valid, and
Massachusetts case of Brodbine v. Revere, 66 N. E. 607, which is not in point.
The act of 1923, p. 320, is void in its entirety, leaving act of 1919, p. 198, in full force. 36
Cyc. 978.
Mandate is proper writ to compel commission to issue certificate. State v. District Court, 40
Nev. 163.
M. A. Diskin, Attorney-General, and Thos. E. Powell, Deputy Attorney-General, for
Respondents:
It is admitted that legislature cannot delegate power to make substantive law. The
difficulty lies in determining application of rule to concrete cases. Courts are divided on the
question. U. S. v. Grimaud, 55 L. Ed. 563; Wayman v. Southard, 6 L. Ed. 262.
The fixing of a license charge or tolls is administrative function. Garson v. Steamboat
Canal Co., 43 Nev. 312.
An act which authorizes ordinance, if providing penalty for violation of regulations thereof, is
not delegation of legislative power. Brodbine v. Revere (Mass.), 66 N. E. 607.
A statute may give authority to make laws and ordinances to mayor (Locke's Appeal, 72
Pa. St. 499); or to county commissioners. Hill v. Moody, 93 South. 422; Posey v. State (Ala.),
86 South. 117; Hoddard v. State, 201 Pac. 851.
Even though section 9 of act of 1923, p. 320, be unconstitutional, the remainder of act is not
therefore necessarily void. Pitt v. Scrugham, 44 Nev. 427.
On the 7th day of June, 1923, the Public Service Commission of Nevada refused to receive
and act upon an application, duly filed, of Ginocchio Bros. for a certificate of public
convenience to operate an auto freight transportation service between Carson City, in Ormsby
County, and the town of Minden, in Douglas County, and points on Lake Tahoe, in Nevada,
and all intermediate points. Ginocchio Bros., upon the refusal of the commission to receive
and act upon their said application, petitioned this court for a writ of mandate to compel it so
to do. But a single question is presented by the petition for our consideration, and that is
the constitutionality of the act of the last legislature entitled:
by the petition for our consideration, and that is the constitutionality of the act of the last
legislature entitled:
An act to regulate the use and operation of motor trucks and motor vehicles, to define and
classify them, to protect the public roads and highways of Nevada, to secure revenues for
their improvement and maintenance, to provide for the issuance of certificates of public
convenience and licenses by boards of county commissioners and the enactment of
ordinances therefor, and other matters properly appertaining thereto, to prescribe penalties for
the violation thereof, and repealing all acts and parts of acts in conflict therewith. Statutes
1923, p. 320, c. 181.
A summary of the act follows:
Section 1. For the purpose of protecting the public roads and highways of this state and to
secure revenues for their improvement and maintenance, the county commissioners of each
and all the counties of Nevada shall, as soon as practicable after the passage of this act, not
later than May 5, 1923, enact appropriate ordinance or ordinances licensing and regulating the
use of motor trucks and motor vehicles, hereinafter defined, operating within, through or
across any part or portion of any county in the state; and the power and duty so to do are
hereby expressly delegated and imposed.
Sec. 2. Motor trucks and motor vehicles, for the purposes of this act, are defined as
wheeled vehicles, propelled by steam, electricity, or gasoline, and used for the transportation
of persons or merchandise for hire or used in the business of a common carrier of freight,
merchandise, or passengers, not including railroad and railway cars and motor vehicles
running only upon rails or tracks, or road, steam, electric, or gasoline rollers.
Section 3 makes provision for the boards of county commissioners to classify such
vehicles for the purpose of the imposition of a license or licenses.
Section 4 makes it unlawful for motor trucks or motor vehicles, as defined, to be operated
without the owner, licensee, operator, or user thereof, or the party or parties responsible for
their operation, first having applied for and received from the proper board of county
commissioners within each and all the counties in which said motor truck or trucks,
vehicle or vehicles proposes or expects to travel or operate a license or licenses, as
provided by the act, and without having first paid the license fee or charge imposed or
assessed by the board or boards, as provided, and imposes a penalty for its violation.
or parties responsible for their operation, first having applied for and received from the proper
board of county commissioners within each and all the counties in which said motor truck or
trucks, vehicle or vehicles proposes or expects to travel or operate a license or licenses, as
provided by the act, and without having first paid the license fee or charge imposed or
assessed by the board or boards, as provided, and imposes a penalty for its violation.
Section 5 provides how the licenses shall be furnished by the counties.
Section 6 provides for the record and the keeping of licenses.
Section 7 provides for the publication of ordinances in some newspaper published in the
county.
Section 8 provides as follows:
Sec. 8. All revenues derived by the several counties from the collection of licenses and
license fees herein provided shall be apportioned to the county general road fund for use,
disposition and availability as now provided by law.
Section 9 provides as follows:
Sec. 9. * * * Thereafter the issuance of certificates of public convenience to common
carriers using motor vehicles or trucks is hereby delegated to the county commissioners of the
respective counties, and said commissioners are hereby authorized and directed to follow, as
closely as practicable, the laws and regulations under which such certificates are now issued
by the public service commission. But in all cases, upon application under oath of any
interested party, setting forth good and sufficient reasons, the right to review, and to modify,
annul or approve, any certificate or any ordinance provided for in this act, is hereby vested in
said public service commission.
Section 10 makes each section of the act independent of the other, and provides that, if one
section be declared unconstitutional it shall not invalidate the other sections of the act.
Section 11 is a general repeal of all conflicting acts.
With this summary of the law, we shall proceed to state and discuss the several objections
raised to the constitutionality of the act in its entirety.
First, that the power conferred and the duty imposed upon the county commissioners to
enact appropriate ordinance or ordinances licensing and regulating the use of motor trucks
and motor vehicles, as defined in the act, operating within, through, or across any part or
portion of any county in the state, as provided in section 1 of the act, is a delegation of
legislative power. In support of this contention it is not urged or even pretended, that motor
vehicles, as defined in the act, are not proper subjects of regulation, or that the legislature is
without power to give full control over motor vehicles, as defined, to the municipal divisions
of the state. Huddy on Automobiles, secs. 58-70.
1, 2. The objection to the statute is that it furnishes no standard for the regulation of motor
vehicles as defined, and fixes no limit on the license to be imposed when classified, as
pointed out in section 3 of the act. In this respect it is argued that the act does not measure up
to the requirement or test that an act must be completed when it leaves the halls of the
legislature. Undoubtedly the completeness of a statute when it leaves the hands of the
legislature is one of the strongest proofs that it is not a delegation of legislative power. 6
Ruling Case Law, 165. In the present act the legislature has plainly declared the policy of the
law, and clearly indicated the legal principles which are to control the commissioners in the
exercise of the power conferred. All that is left for them to do is to carry out the purposes of
the act in the manner prescribed in its several sections. It is true, the act cannot become
effective or its penalty be enforced until the commissioners have enacted appropriate
ordinances in execution of the law; but, when these administrative bodies have acted pursuant
to the power conferred and the duty imposed, their ordinances become as much a part of the
law as if the legislature had embodied them in the law.
the law. The act is not left to go into effect on a contingency, or in case the commissioners
deem it expedient to enact appropriate ordinances. The duty imposed upon them is
mandatory, and when they have acted the law is as complete as if the legislature itself had
established the standard and fixed, without condition, the amount of the license.
3. The case of Williams v. Evans, 139 Minn. 32, 165 N. W. 495, 166 N. W. 504, L. R. A.
1918f, 542, decides, and decides properly, that the legislature cannot delegate legislative
power, but it may delegate authority or discretion, to be exercise under and in pursuance of
the law. It may delegate power to determine some fact and state of things upon which the law
(as here) makes its own operation depend.
4-7. To determine if the power conferred upon the commissioners is administrative or
legislative, we need not look for example or illustration to cases dealing with rules and
regulations adopted by administrative boards, such as medical boards, dental boards,
commissions, etc. County commissioners are administrative agencies of the state. They are
required by the organic law to perform such duties as may be prescribed by law (Section 26,
Article 4, of the Constitution). Their duties are various and manifold. They proceed, in the
exercise of their powers derived from law, by means of orders, ordinances, and resolutions
duly passed and entered upon their records. In the present act the commissioners are not only
required, but are commanded by the law, to enact appropriate ordinances to carry out the
purposes of the act (Section 1). The legislature has declared by the act that the use of the
public roads and highways within the state by motor trucks and motor vehicles engaged in the
public service is a privilege for which they must pay, and are subject to regulation for the
protection of the public roads and highways. To this end it is made the duty of the
commissioners of the several counties to adopt appropriate rules by ordinance or ordinances
licensing and regulating such vehicles operating upon the public roads within the counties.
vehicles operating upon the public roads within the counties. The scope of the discretion
granted the commissioners is well within the limits allowed by the constitution (Section 26,
Article 4). In view of the purpose of the act, both as a police and revenue measure, we shall
not indulge in any nice examination into the character of the power conferred to denude the
commissioners of their utility as administrative agencies to execute the law. State ex rel.
Mason v. Ormsby County, 7 Nev. 392. Neither are we to presume that the power conferred
will be exercised arbitrarily.
8. It has ever been the policy of the state to delegate to the municipal divisions thereof its
power over the control of the public roads, to make all needful regulations concerning the use
thereof, and to provide means by which they may be improved and kept up. The introduction
of motor vehicles as public conveyances has caused the legislature to extend its policy to
reach the additional burden imposed upon the roads incident to the use of such vehicles as
common carriers of freight and passengers for hire. We know of no restriction upon the
legislature to prevent it from adopting the method it has by this act to protect the public roads
and highways within the state and to secure revenue for their improvement and maintenance.
We have no hesitancy in holding that section 1, when read in the light of the declared
purpose of the act and all the sections thereof, is not a delegation of legislative power in the
sense that the legislature relegated from its hands the power to make a law licensing and
regulating motor vehicles, as defined in the act, and conferred it upon the commissioners of
each and all the counties of Nevada.
If further authority be desired for the conclusion reached, we cite Hill v. Moody, 207 Ala.
325, 93 South. 422; Posey v. State, 17 Ala. App. 448, 86 South. 117; Haddard v. State, 23
Ariz. 105, 201 Pac. 847; State v. Duval County, 76 Fla. 79 South. 693; Com. v. Slocum, 230
Mass. 180, 119 N. E. 687; Locke's Appeal, 72 Pa, 491, 13 Am. Rep. 716; 13 R. C. L. p. 79,
sec. 70.
9. It is insisted that section 9 of the act purports to delegate legislative power to the public
service commission. All we are asked to do by this proceeding is to compel the public service
commission to receive and act upon petitioners' application for a certificate of public
convenience. Section 9 is therefore not involved, and we pass no opinion upon its
constitutionality.
10. It is urged in the second place that the act is violative of section 20, article 4, of the
constitution, in that it is an attempt to regulate county affairs by a local or special law. This
position is untenable. The law is a general law, applicable alike to each and all the counties of
the state, and applies equally to all motor vehicles, as defined by the act without
discrimination. The legislature decided what was proper and necessary to be done for the
protection, improvement, and maintenance of the public roads and highways within the state,
and to effect its purpose it selected the commissioners of each and all the counties of the state
as its agents to execute the law. It is true the act contemplates that the owners and operators
of motor trucks and motor vehicles, as defined, must procure a license from the county clerk
of each and every county; but the same powers are bestowed upon the clerks of all the
counties. It is probable that it would be in the interests of the owners and operators of such
vehicles to encounter uniform regulations and licenses where they conduct an intracounty
business. But the fact that diverse results may flow from the execution of the granted power
does not make the enactment a local or special law to regulate county affairs.
11. The argument in the third place is that the act is violative of section 21, article 4, of
the constitution, which provides:
* * * Where a general law can be made applicable, all laws shall be general and of
uniform operation throughout the state.
The law is a general law, and of uniform operation throughout the state.
Entertaining these views, we conclude that the public service commission was without
jurisdiction to issue the certificate of public convenience as demanded by petitioners, and
that their petition for a writ of mandamus must be dismissed.
service commission was without jurisdiction to issue the certificate of public convenience as
demanded by petitioners, and that their petition for a writ of mandamus must be dismissed.
It is so ordered.
October 16, 1923.
Per Curiam:
Rehearing denied.
____________
47 Nev. 139, 139 (1923) Kline v. Vansickle
No. 2584
KLINE v. VANSICKLE
August 6, 1923. 217 Pac. 585.
1. JudgesException to Instruction and Ruling Thereon Must Be in Open Court, and Not
Chambers.
Under Rev. Laws, 4843, fixing the authority of the judge in his chambers, objections and exceptions to
instructions and the court's rulings thereon must be made in open court, and not in the chambers; the
objections and rulings being a part of the trial of the case, notwithstanding sections 5315 and 5316, relating
to exceptions.
2. TrialExclusion of Answers to Preliminary Questions Calling for Immaterial Testimony
Not Error in Absence of Tender of Proof of Material Matter.
The exclusion of answers to questions calling for immaterial testimony held not error as against
contention that the questions were preliminary, in the absence of a tender of proof of the material matter
sought to be introduced.
3. WitnessesQuestion to Husband as to What He Had Told Third Person as to Wife Held
Not to Call for a Privileged Communication.
In a husband's action for alienation of wife's affections, question to husband as to whether he had told
defendant before he left his home that his wife would be at home alone, and that plaintiff wanted defendant
to stay in the house, held not objectionable as calling for a privileged communication.
4. TrialEntire Answer Not Stricken, though Part Is Not Responsive to Question.
An entire answer in part correct will not be stricken though a portion is not responsive to the question,
since a motion to strike should be directed to the obnoxious portion of the answer, and not to the whole
thereof.
5. Appeal and ErrorRefusal to Strike Unresponsive Answer Held Harmless.
In a husband's action for alienation of wife's affections, in which the plaintiff was asked if he had told the
defendant before he had left home that his wife would be at home alone, and that he wanted the defendant
to stay in the house, it was harmless error to refuse to strike answer, I told my wife, or asked her, how she
was going to stay there alone; I would get some one; and she said she would not stay alone, though not
responsive.
6. Appeal and ErrorObjection to Evidence Not Raised in Lower Court Not Available on
Appeal.
Appellant cannot on appeal urge an objection to evidence not raised in the lower court.
7. EvidenceMust Testify to Facts, and Not Conclusions.
Generally a witness must testify to facts, and not to conclusions.
8. EvidenceWife's Testimony that Defendant Had Alienated Her Affection for Husband
Required to State Facts.
If a wife is called as a witness for the husband in husband's action for alienation of wife's affections, she
could not testify merely that the defendant had alienated her affection, but would be required to state the
facts and circumstances, so that the jury could draw its own conclusions.
9. Appeal and ErrorWife's Testimony that Defendant Was Not Responsible for Strained
Relations between Husband and Wife Held Harmless.
In husband's action for alienation of wife's affections, in which the defendant denied that he had been
guilty of any acts tending to alienate the affections of the wife, and in which there was no evidence that he
had been guilty of committing such an act, the testimony of the wife, testifying as a witness for the
defendant, that defendant had in no way been responsible for the strained relations between the husband
and the wife, without stating any facts to support the conclusion, was harmless, since, the plaintiff having
introduced no evidence in support of his accusation, there were no facts and circumstances to explain.
10. Appeal and ErrorHarmless Error Not Ground for Reversal.
The supreme court will not reverse a judgment for the commission of an error unless it appears to have
been prejudicial to the party claiming to have been aggrieved.
Appeal from First Judicial District Court, Douglas County; Frank P. Langan, Judge.
Action by James D. Kline against James P. Vansickle. From a judgment for defendant and
an order denying a motion for a new trial, the plaintiff appeals. Affirmed.
Chartz & Chartz, for Appellant:
The court may deny motion for new trial for failure to serve it, but cannot strike it from
files. Calderwood v. Peyser, 42 Cal. 111, 121.
An exception to instruction must be taken at time decision is made. Rev. Laws, 5315. The
decision is made when judge writes given or refused upon it. Refused instructions are not
read to jury at all. How, then, is one going to object to refusal to give instruction at time it is
refused, if he must object to it in presence of jury? It would be as improper to settle
instructions in presence of jury as to argue points of law before them. What has jury to do
with preparation of instructions anyhow? Lobdell v. Hall, 3 Nev. 507, 525.
Where instructions are inconsistent, new trial should be granted. Brown v. McAllister, 39
Cal. 573.
Each instruction must be correct; all must be consistent and present but one doctrine.
Modisett v. McPike, 74 Mo. 648.
A stranger meddles in domestic and marital affairs between husband and wife at his peril;
without regard to his motives, malice is presumed. Hartpence v. Rogers, 45 S. W. 652.
Relatives may, in good faith, advise, though no one may entice wife away, but if she
voluntarily leaves home, any one may with good motives give her shelter. Malice is not then
presumed, but may be proved. Modisett v. McPike, supra; Trumbull v. Trumbull, 98 N. W.
683.
An instruction that malice must accompany alienation is incorrect.
It is error to sustain objections to preliminary questions asked for purpose of laying
foundation for introduction of a conversation, and error to rule that any statement of wife to
defendant would not be binding on him, since such statement might be binding on him, and
inference might be drawn from his silence, if it was his duty to speak. Jones on Evidence, sec.
291; Batturs v. Sellers, 9 Am. Dec. 492.
Any communications between spouses during marriage are privileged. People v. Mullins,
83 Cal. 140; Rev. Laws, 5424.
Rev. Laws, 5424. And would not be binding on defendant if made in his absence.
The wife's bald statement that defendant was not responsible for strained relations is
inadmissible. The facts should be stated. Jones on Evidence, sec. 361. Even expert's opinion,
if based on his personal knowledge of facts, must be accompanied with his statement of facts,
so court may know if he is justified in his opinion. Jones on Evidence, sec. 37.
Platt & Sanford, for Respondent:
Instructions given without objection are presumed to be consented to, and cannot
afterward be questioned. Lobdell v. Hall, 3 Nev. 473 [507]. Exceptions to instructions must
be taken in open court (Phelps v. Meyer, 14 U. S. 643), when ruling on objection thereto was
made (Garoutte v. Williamson, 41 Pac. 35), at the trial (Turner v. Yates, 16 How. 14), else
they will not be considered (3 Kerr, C. C. P. 1050; 25 Cal. 122), and cannot become part of
bill of exceptions. Rev. Laws, 5315, 5316; District Court Rule 40.
The instructions given state the law. 2 Blashfield's Instructions to Juries, secs. 4288, 4293,
4296, 4297; Humphrey v. Pope, 82 Pac. 224.
There are about as many exceptions to rule of acquiescence by silence as cases supporting
it. Objections were properly sustained to questions concerning statements of deceased
because, the speaker having died, denial was impossible; they were not dying declarations, or
offered as such; for any one else to testify to them would be hearsay, and, in any event, it
could be only matter of inference as to their meaning.
Testimony showing feeling of one spouse toward the other is competent to show true
reason for separation. DeBock v. DeBock, 184 Pac. 890; Bourne v. Bourne, 185 Pac. 489.
A witness may summarize conduct by stating effect it produced on his mind. 22 C. J. 527,
530, 557.
This action was instituted by plaintiff to recover damages for alienation of his wife's
affection.
damages for alienation of his wife's affection. From a judgment in favor of the defendant, and
an order denying a motion for a new trial, the plaintiff has appealed. The parties will be
alluded to in this opinion as plaintiff and defendant, as in the trial court.
The first alleged error pressed upon our attention pertains to the ruling of the trial court in
refusing to embody in the bill of exceptions the following statement:
That the court settled the instructions requested by plaintiff and defendant at chambers in
the presence of counsel for the respective parties, and without the presence of the official
reporter sworn to report said case, and without the presence of the clerk of the court, or any
other officer of the court, and that said plaintiff made his objections and took his exceptions
at said chambers, and that said plaintiff did not make any objections or take any exceptions to
any instruction given to the jury during the reading thereof, or after the reading thereof, or at
all, except at said chambers.
1. Preliminary to disposing of this matter on its merits, we may say that counsel for
plaintiff have not adopted the proper course to warrant their insistence that we dispose of this
question. Section 5316, Rev. Laws, points out the method which should be followed in cases
where it is contended the trial court refused to correctly settle a bill of exceptions. However,
in view of the stipulation of counsel in the case, we will pass upon the matter as presented.
The question is: Can rulings and exceptions heard in chambers, where the judge is informally
considering proposed instructions, justify their being made a part of the record, or must such
objections and exceptions be made in open court, and when the instruction is given? Counsel
for plaintiff direct our attention to sections 5315 and 5316, Rev. Laws. It does not seem to us
that the sections mentioned are determinative of the question before us, but that section 4843
controls. It reads:
The district judges shall, at all reasonable times, when not engaged in holding courts,
transact such business at chambers as may be done out of court. At chambers they may try
and determine writs of mandamus, certiorari, quo warranto, hear and dispose of motions
for new trials, and all applications for writs which are usually granted, in the first
instance, upon ex parte application, and may also, in their discretion, hear and determine
applications to discharge such orders and writs.
chambers they may try and determine writs of mandamus, certiorari, quo warranto, hear and
dispose of motions for new trials, and all applications for writs which are usually granted, in
the first instance, upon ex parte application, and may also, in their discretion, hear and
determine applications to discharge such orders and writs. They may also hear and determine
applications for writs of assistance at chambers.
This section definitely fixes the authority of the judge at chambers, and he can have no
greater authority than thus conferred, and no power is given by that statute to rule upon
objections to proposed instructions. It is true that the judge frequently informally considers
tendered instructions in his chambers, but action thereupon is taken in open court, though he
may indicate what his ruling will be. Ruling upon tendered instructions and objections thereto
is a part of the trial of a case, and the trial must be in open court, and all objections and
exceptions must be made there. The ruling of the trial judge was proper.
2. It is next contended that the court erred in sustaining an objection to the following
question addressed to Clara Giberson, a witness called in behalf of the plaintiff: Did you
hear Mrs. Vansickle when she lay sick in bed speak to her son James? The James alluded to
is the defendant in the case. The court sustained an objection made by counsel for defendant.
Counsel for plaintiff then asked the following question, the court sustaining an objection
thereto: Were there any other persons present at the time? As to the ruling of the court upon
the objection to the questions quoted, counsel for plaintiff take the position that the questions
asked were preliminary, and that it would have been utterly futile for counsel to have
attempted to prosecute the inquiry further. He was shut offcompletely blocked, says
counsel. In this connection he states that the theory of the trial court was that no statement
made to the defendant was admissible in evidence because not binding upon him. Certainly
the court committed no error in sustaining the objections.
the objections. If counsel desired to get a ruling upon some material matter he should have
made a tender of proof of the material matter sought to be introduced in evidence. Taylor v.
Malta Merc. Co., 47 Mont. 342, 132 Pac. 549. This was not done. It does not appear what
statement it is alleged the defendant's mother made to him which could have bound him, if
any.
Error is assigned to the ruling of the court in sustaining an objection to a question asked
one Thomas Brown relative to a conversation between the plaintiff and his wife, wherein he
was asked to state what the conversation was. So far as appears, the conversation may have
been entirely foreign to the matter in issue. The court did not err in sustaining the objection. If
counsel for the plaintiff had desired to bring to the attention of the court the matter sought to
be proven, he should have made an offer of proof. Not having done so, no prejudicial error
was committed. Taylor v. Malta Merc. Co., supra.
It is next contended that the court erred in refusing to strike the following question and
answer:
Q. Did you tell Jim Vansickle before you left that your wife would be at home alone, and
you wanted him to stay in the house? A. No, sir; I never told him so. I told my wife, or asked
her, how she was going to stay there alone; I would get some one; and she said she would not
stay alone.
3-5. The ground of the motion is that it is a privileged communication. There is nothing
privileged called for by the question, and the first sentence of the answer was responsive to
the question. We are not prepared to say that the rest of the answer is responsive, but certainly
an entire answer in part correct will not be stricken, if an uncalled-for statement in response
to the question should be stricken. Counsel should direct their motions to strike to the
obnoxious portion of an answer to a question. However, we are of the opinion that the
voluntary portion of the answer to the question was harmless.
Error is assigned to the overruling of a motion to strike an answer to a question asked
one Mrs.
strike an answer to a question asked one Mrs. Brown by counsel for the defendant on
cross-examination, relative to a conversation had with Mrs. Kline, for the purpose of showing
Mrs. Kline's state of feeling toward her husband. In support of the motion to strike counsel
for the plaintiff, in referring to the answer of the witness, said:
If your honor please, this does not exhibit feelings. I move to strike out the whole thing
because it does not exhibit feelings, a conversation of some trouble between them, and does
not exhibit her feeling at all. I move to strike out everything but that which might exhibit her
feelings.
6. Counsel now relies upon entirely different ground to support the assignment. We think
the statement made by counsel for the plaintiff at the trial was correct, and, if so, the answer
of the witness was harmless; but he certainly cannot now rely upon a point not urged at the
trial. Had the witness testified to a statement made by Mrs. Kline indicating her feeling
toward her husband, we are not called upon to say whether it should have been stricken.
7-10. It is next insisted that the court erred in overruling an objection to the following
question propounded to the wife of the plaintiff, who was a witness on behalf of defendant:
Q. Is he (James P. Vansickle) responsible in any particular, directly or indirectly, for any
strained relations that might be between yourself and your husband?
The witness answered that defendant was in no way responsible. It is a general rule that
a witness must testify to facts, and not to conclusions. Had the witness been called to support
the charges made by her husband, it could not be reasonably said that it would have been
competent or proper for her to have testified merely that the defendant had alienated her
affection. She would have been compelled to state the facts and circumstances, and leave it to
the jury to draw its conclusion as to whether the defendant had alienated her affection.
affection. Adams v. Main, 3 Ind. App. 232, 29 N. E. 792, 50 Am. St. Rep. 266. But, in view
of the situation here presented, we cannot say that the specific objection made is good. As
startling as it may seem, there is not in the record a scintilla of evidence offered by the
plaintiff in support of his cause of action, and the only evidence in the record given by the
witness in question is what we have quoted. The theory of the defendant is that he committed
no act tending to alienate the affections of the plaintiff's wife. As an abstract proposition of
law we are of the opinion, speaking generally, that a wife should not be permitted to state
merely that one charged with alienating her affections was in no way responsible. The
defendant, having denied that he had been guilty of acts tending to alienate the affections of
plaintiff's wife, was, of course, in presenting his case in defense, confined to denying,
qualifying, or explaining incriminating evidence offered against him, if there was any. As we
have pointed out, the record contains no word of evidence on the part of the plaintiff. This
being true, how can we say that the defendant should deny, qualify, or explain facts and
circumstances? It is a well-known rule that this court will not reverse a judgment for the
commission of an error unless it appears to have been prejudicial to the party claiming to
have been aggrieved. From the record in this case we cannot say that any prejudicial error was
committed. What we have just said applies to the objections to the testimony of Oscar T.
Vansickle.
No prejudicial error appearing, it is ordered that the judgment and order be affirmed.
____________
47 Nev. 148, 148 (1923) Douglas Milling and Power Co. v. Rickey
No. 2578
DOUGLAS MILLING AND POWER COMPANY v.
RICKEY
August 6, 1923. 217 Pac. 590.
1. JudgmentError in Trial Judge's Rulings on Evidence Not Ground for Enjoining
Collection of Judgment.
Where, in passing on competency of evidence, the court did not transcend its jurisdiction, error in the
ruling is not ground for enjoining collection of the judgment.
2. Appeal and ErrorRefusing to Call Outside Judge Held without Prejudice.
Where complaint in suit to enjoin collection of a judgment did not state any ground for relief, any error in
the trial court's refusal to call in an outside judge to preside at hearing of demurrer was without prejudice.
Appeal from First Judicial District Court, Douglas County; Frank P. Langan, Judge.
Suit by the Douglas Milling and Power Company against Dora Dean Rickey and others.
Judgment for defendants, and plaintiff appeals. Affirmed. Petition for hearing denied.
Geo. A. Montrose and A. Grant Miller, for Appellant:
A void judgment is open to either direct or collateral attack. It need not first be set aside;
whenever it is brought up against party, it may be impeached in any action, anywhere, at any
time. Black, Judgments, secs. 170, 218, 278, 895; Jefferson v. Gallagher, 150 Pac. 1071; Rev.
Laws, 5137.
Proceedings to reverse, vacate, set aside, declare void, sustain, modify, or perpetually
enjoin a judgment are direct, and not collateral, proceedings. Black, sec. 252; Ford v.
Glendenin, 109 N. E. 124.
Though there is no specific statute on the point, the practice throughout entire state is to
call in another judge when fair showing is made therefor. The affidavits submitted made such
showing, and were not contradicted.
Platt & Sanford, for Respondents:
Decisions of appellate court are conclusive as to facts and law (1 Freeman on Judgments,
440), and cannot be set aside for mistake or inadvertence of attorneys or parties.
set aside for mistake or inadvertence of attorneys or parties. Daly v. Pennie, 25 Pac. 67.
Equity will not enjoin judgment on account of errors during trial or errors of law (Hilliard on
Injunctions, 155-156; Sherman v. Clark, 4 Nev. 138), or where rights are lost through mistake
or incapacity of attorneys or action of parties. Royce v. Hampton, 16 Nev. 30; 2 Story, Eq.
Jur. 897; Pomeroy, Eq. Jur. 2060. Equity has no power to relieve against judgment affirmed
solely on ground that no assignment of errors is filed. Miller v. Bernecker, 46 Mo. 194.
Fraud is not alleged against any one in securing verdict. Equity will not relieve against
fraud except where it is extrinsic or collateral. U. S. v. Throckmorton, 98 U. S. 61; Pico v.
Cohn, 25 Pac. 970, 27 Pac. 537.
The affidavit in support of motion for calling in another judge did not contain any statutory
ground therefor.
This court has already affirmed judgment and held that it is supported by pleadings. It was
an action for damages for negligence, and damages were awarded. Nothing else was
adjudicated.
About three years ago the respondents brought a suit in the district court of Douglas
County against the appellant to recover damages for alleged negligence resulting in the death
of one Charles F. Rickey. The complaint in that action set forth in detail the alleged acts of
negligence on the part of the defendant in the action. Upon the filing of the complaint in that
suit summons was issued, and, together with a copy of the complaint, was served upon the
defendant. In due time the defendant appeared and filed its answer, denying the allegations of
negligence, and affirmatively pleaded contributory negligence. A reply was filed, denying the
allegations of contributory negligence. The complaint was attacked in no way. Upon the
issues thus made the case came on for trial before a jury. A general verdict was returned, and
special findings were made in favor of the plaintiffs in the action.
in favor of the plaintiffs in the action. A motion for a new trial having been overruled,
judgment was entered upon the verdict. The defendant took an appeal from the order denying
the motion for a new trial and the judgment. In due time the respondent in that case, being the
plaintiff in the trial court, made a motion to dismiss the appeal from the order denying the
motion for a new trial, for the reason that the evidence in the case had not been brought into
the record by a duly settled bill of exceptions. The matter was submitted to this court upon
briefs and oral argument; thereafter the motion to dismiss was sustained, and, no error
appearing upon the judgment roll, the judgment appealed from was affirmed. Rickey v.
Douglas M. & P. Co., 45 Nev. 341, 204 Pac. 504.
The present suit is one in equity to enjoin the plaintiffs in the original action from
collecting the judgment in their favor. Upon the filing of the complaint in this suit a
temporary injunction issued upon the ex parte application of the plaintiff. The defendants
appeared and filed a general demurrer to the complaint and also made a motion to dissolve
the injunction, upon the ground, among others, that the complaint alleges no facts entitling
the plaintiff to injunctive relief. Upon the hearing of such demurrer and motion the court
vacated the order theretofore issued and sustained the demurrer. Thereafter judgment was
entered in favor of the defendants. The case is now before us on an appeal taken from such
judgment.
While there are numerous errors assigned, they may be disposed of under two
classifications: (1) That the judgment in the original action was in excess of the jurisdiction
of the court, hence null and void. (2) That the trial court erred in refusing to call in an outside
judge to preside at the hearing of the demurrer and motion.
Counsel for appellant have filed an opening brief of thirty-six pages, wherein they have
called our attention to over sixty authorities which they claim are in point. The complaint in
the case is voluminous, but it consists chiefly of the pleadings, affidavits, and documentary
and oral evidence introduced in the original case.
chiefly of the pleadings, affidavits, and documentary and oral evidence introduced in the
original case. While counsel for appellant in the oral argument made some allusion to fraud,
there is not in the complaint or the brief a suggestion of fraud. The allegations of the
complaint in the instant proceeding are directed solely to the rulings of the court in the
rejection and reception of evidence during the trial of the damage suit. One of the allegations
of the complaint goes to the ruling of the court in admitting in evidence a franchise from the
board of county commissioners of Douglas County to the defendant company, authorizing it
to construct and maintain its power lines. It is the contention of counsel for the appellant that
there is no allegation in the complaint alleging any franchise, or the violation of any
franchise, and that the proof of such franchise did not tend to prove any issue in the case.
To sustain the contention of counsel our attention is directed to section 242, Black on
Judgments (2d ed.) where it is said:
Besides jurisdiction of the person of the defendant and of the general subject-matter of
the action, it is necessary to the validity of a judgment that the court should have had
jurisdiction of the precise question which its judgment assumes to decide, or of the particular
remedy or relief which it assumes to grant. In other words, a judgment which passes upon
matters entirely outside the issue raised in the record is so far invalid. * * *
Numerous authorities are cited in support of the rule thus stated. The rule invoked is
elementary, and counsel might have found that it had been recognized in this jurisdiction.
Estate of Foley, 24 Nev. 197, 51 Pac. 836, 52 Pac. 649. We do not believe this rule is
questioned anywhere. The rule invoked being thus recognized, let us inquire wherein its
application to the facts pleaded in the complaint would justify the contention that the trial
court in the original action, by receiving the evidence in question, permitted the bringing into
the case for determination an issue not presented by the pleadings.
for determination an issue not presented by the pleadings. What question was thus brought
into the case, not involved in the issues as framed by the pleadings? Under the pleadings but
two issues were presented, namely, the negligence of the defendant and the contributory
negligence of the deceased.
1. The court was confined to the determination of these two issues, and competent
evidence was admissible in proving or disproving both of them. In passing upon the
competency of the evidence tendered, the court did not transcend the limits of its jurisdiction,
and, if it erred, it erred only in the exercise of jurisdiction, and no advantage could be taken
thereof except on appeal. Daly v. Lahontan M. Co., 39 Nev. 14-29, 151 Pac. 514, 158 Pac.
285-287. It was aptly said in Tallman v. McCarty, 11 Wis. 401:
No order which a court is empowered under any circumstances, in the course of a
proceeding over which it has jurisdiction, to make, can be treated as a nullity merely because
it was made improvidently, or in a manner not warranted by law, or in the previous state of
the case. The only question in such a case is: Had the court or tribunal the power, under any
circumstances, to make the order or perform the act? If this be answered in the affirmative,
then its decision upon those circumstances becomes final and conclusive, until reversed by a
direct proceeding for that purpose.
If any other doctrine than that which we have stated, which is as old as jurisprudene itself,
were to control, there would be no finality to litigation. Every other point presented, attacking
the jurisdiction of the court in the damage suit, goes to some ruling in the original action, and
is controlled by the rule which we have stated; hence there is no necessity to state them
seriatim and apply the principle enunciated. The query naturally suggests itself whether these
proceedings would lie, even were there merit in the propositions urged upon our
consideration, since the appellant had its remedy at law by appeal from the judgment from
which it is now seeking relief. 15 R. C. L. 738, et seq.
2. It is suggested that the lower court erred in refusing to call in an outside judge to hear
the motion to dissolve the injunction and the demurrer.
refusing to call in an outside judge to hear the motion to dissolve the injunction and the
demurrer. We think no showing was made warranting the calling in of an outside judge, but,
if error was committed, it was without prejudice, as the motion to dissolve and the demurrer
went only to the sufficiency of the complaint, and it clearly appears that it fails to state any
ground for relief.
The judgment is affirmed.
Sanders, J., concurring:
This is a suit to enjoin the respondents from availing themselves of the benefit of a
judgment rendered in their favor in an action at law brought to recover damages for the death
of their decedent, Charles F. Rickey, alleged to have been caused by the negligence of the
Douglas Milling and Power Company, a Nevada corporation, in the erection, operation, and
conduct of its electric-power lines in Douglas County. The corporation brought the case to
this court on appeal from an order denying to it a new trial, and also from the judgment, based
on the verdict and special findings of a jury, for the sum of $15,303. The appeal from said
order was dismissed, on motion, because of the failure of the corporation to embody the
errors based upon any ground for new trial by a statement or bill of exceptions, as required by
the statute. Stats. 1915, p. 164. The appeal from the judgment was affirmed, because of no
error appearing in the judgment roll. A petition for rehearing was denied in an extended
opinion. Rickey v. Douglas M. and P. Co., 45 Nev. 341, 204 Pac. 504, 205 Pac. 328.
Thereafter the Douglas Milling and Power Company brought this action in the court where
the judgment was rendered, setting out and exhibiting with its complaint, and as a part
thereof, all the pleadings and exceptions taken by it in the course of the trial of the action at
law. The complaint also embodies all the grievances of complainant against the decision of
this court in having deprived it of the right to have its case reviewed on the merits.
having deprived it of the right to have its case reviewed on the merits. The complaint is a
direct attack upon the integrity of the trial court. It charges, in effect, that said court, without
color of reason, ruled in favor of plaintiffs and against the defendant throughout the trial of
the case at law, and deprived the defendant of a fair and impartial trial, and that because of its
bias it is not fit to sit in judgment on the present case.
The first question to be disposed of is whether the judgment can be made the subject of
review. It is the general rule that, when an appellate court has passed upon a record and upon
a petition for rehearing, and the remittitur has gone down, its jurisdiction terminates, and the
cause is beyond its reach. If, then, the supreme court is without power or authority to review
its own judgment, a fortiori there can be no power or right to review or set aside such
judgment in a collateral suit in equity in an inferior court. Armstrong v. Poole, 30 W. Va.
669, 5 S. E. 257. It would be an extraordinary law, indeed, and an unheard-of practice,
fraught with incalculable mischief, to allow a judgment of a court of the last resort to be
reviewed by the district court. Vansickle v. Haines, 8 Nev. 164. Whether the rule be founded
on principle or practice, it is absolute and inflexible. Public policy, if not necessity, requires
that it should be strictly enforced, even in cases of individual hardship. Campbell v.
Campbell, 22 Grat. (Va.) 649. If such were not the rule, it becomes pertinent to inquire when
would litigation cease.
I do not say that the supreme court is infallible, or that a case may not arise in which its
judgment might be made the subject of review in a proper proceeding, as where the judgment
of this court, in a case before it, was made upon a mistake of fact, or was procured by fraud,
or where the judgment of the appellate court, affirming a judgment of the court a quo, is itself
void, if the court a quo had no jurisdiction. But this case is by no means such a case. Here the
judgment of affirmance by the supreme court is sought to be reviewed, upon the ground that
the court improvidently erred, whereby the right of appellant to have its case reviewed was
lost.
whereby the right of appellant to have its case reviewed was lost. To sustain the complaint on
this ground would be to rule that a court of equity can interfere to correct the errors of a court
of the last resort. But it is, in substance, alleged in the complaint that appellant's right to have
the judgment at law reviewed was lost by reason of the fault, neglect, oversight, ignorance or
inefficiency of its attorneys. This was not a ground for relief in equity from a judgment at law.
It is well settled that such relief will in no case be granted, where the loss of the remedy at
law was due to the party's own negligence or to the negligence, mistakes, or unskilfulness of
attorneys. 23 Cyc. 985-1016; 15 R. C. L., sec. 209, p. 756; 16 Am. & Eng. Ency. Law (2d ed.)
392.
The appellant makes the further contention that the judgment is invalid, because evidence
was permitted to go to the jury upon an issue not made by the complaint, and therefore it is
void. It appears that plaintiffs were allowed, over the objections and earnest protest of counsel
for the defendant company, to introduce in evidence a franchise granted the Douglas Milling
and Power Company in the year 1912 by the board of commissioners of Douglas County,
pursuant to the statute of Nevada (section 2137, Revised Laws), to erect and maintain poles
and wires along the public roads and highways and other public thoroughfares of Douglas
County. The error, if it was error to admit the franchise in evidence, cannot be corrected in a
court of equity. It is well settled that such courts are without power to enjoin the enforcement
of a judgment at law because of erroneous rulings of the court in admitting or excluding
particular evidence. 23 Cyc. 1004; 15 R. C. L., sec. 194, p. 739; 16 Am. & Eng. Ency. Law
(2d ed.) 389. Certainly it can neither be fairly nor reasonably contended that by the admission
of the franchise the judgment passed upon matters outside of the issue of negligence.
All the other allegations of the complaint for equitable relief against the enforcement of
the judgment are predicated upon rulings of the trial court in the selection of the jury, the
admission and rejection of evidence, the denial of a motion for nonsuit, the giving of
instructions requested by plaintiff, and the refusal to give certain of those offered by the
defendant, and that the answers of the jury to the special interrogatories were false and
inconsistent with the general verdict.
predicated upon rulings of the trial court in the selection of the jury, the admission and
rejection of evidence, the denial of a motion for nonsuit, the giving of instructions requested
by plaintiff, and the refusal to give certain of those offered by the defendant, and that the
answers of the jury to the special interrogatories were false and inconsistent with the general
verdict. The case made by the complaint comes within none of the recognized grounds upon
which courts of equity are permitted to interfere with judgments at law and restrain their
execution.
The demurrer to the complaint was properly sustained.
August 29, 1923.
Per Curiam:
Rehearing denied.
____________
47 Nev. 156, 156 (1923) Stimson v. District Court
No. 2590
STIMSON v. DISTRICT COURT
August 6, 1923. 217 Pac. 588.
1. DivorceCourt without Jurisdiction in Motion to Vacate Decree Filed More than Six
Months after Rendition.
Under Rev. Laws, 5842, proceedings in divorce, as nearly as conveniently may be, conform to those at
law, and under civil practice act, sec. 142 (Rev. Laws, 5084), providing that when summons has not been
personally served on defendant the court may allow defendant at any time within six months after rendition
of judgment to answer to the merits, the district court is without jurisdiction to entertain a motion to vacate
an original decree of divorce filed more than six months after rendition of decree.
Original application by Curtis Stimson for writ of prohibition to the District Court of the
Sixth Judicial District, in and for Humboldt County, and J. A. Callahan, Judge thereof, to
prohibit the vacation of a decree of divorce on motion of Lillie Stimson. Alternative writ
made permanent. Petition for rehearing denied.
Mack & Green, for Petitioner:
Motion to vacate judgment must be filed within six months. Rev. Laws, 5084; Sweeney v.
Sweeney, 42 Nev. 438. Equity will set aside judgment where fraud is extrinsic or
collateral, and not for fraud in matter on which decree was rendered. U. S. v.
Throckmorton, 9S U. S. 61; Pico v. Cohn, 27 Pac.
Equity will set aside judgment where fraud is extrinsic or collateral, and not for fraud in
matter on which decree was rendered. U. S. v. Throckmorton, 98 U. S. 61; Pico v. Cohn, 27
Pac. 537.
The proper remedy is by petition in equity, not motion to set judgment aside. Twigg v.
James, 79 Pac. 959.
Campbell & Robins and J. W. Weatherford, for Respondents:
The wording of our statute clearly contemplates and permits service of notice out of state.
Rev. Laws, 5364; District Court Rule 10. Service on attorney is sufficient. DeVall v. DeVall,
109 Pac. 755.
There was not valid service of summons in this case and therefore six-month provision in
sec. 5084, Rev. Laws, does not apply. Perry v. District Court, 42 Nev. 284.
Courts of general jurisdiction may modify or vacate their judgments during term in which
they are pronounced, independently of statute. Parks v. Haynes, 152 Pac. 400.
Divorce decree may be set aside for fraud on motion. Adams v. Adams, 12 Am. Rep. 134.
On May 27, 1911, Curtis Stimson filed in the district court of Humboldt County a
complaint against his wife, Lillie Stimson, for divorce. Service of process was had by
publication. On the 5th day of September, 1911, no answer having been filed, the defendant's
default was duly entered, and on the 9th day of October, 1911, plaintiff proceeded to trial and
obtained a final decree of divorce.
On the 16th day of December, 1922, Lillie Stimson filed her motion, with supporting
affidavits, in said court, entitled in the cause of Stimson v. Stimson, to have the judgment of
divorce vacated and asking that she be permitted to file her answer to the complaint therein,
alleging the following facts, in brief, as the grounds for her motion: That the order of
publication was obtained by fraud, in that at the time of making the affidavit upon which
the order of publication of summons was obtained and at the time said order was
obtained, Curtis Stimson, the plaintiff, could have known and did know that she {the
defendant) then resided at Corvallis, in the State of Oregon, and that her postoffice
address was at that place; that the affidavit of plaintiff was false and untrue and was
made for the purpose of concealing the pendency of the action and obtaining a decree of
divorce without her knowledge, and to conceal from the court her whereabouts, and to
prevent her from making a defense to the action; that the summons was not served upon
her; that she has a complete defense to the action; that she had no notice of the pendency
of the proceeding until long after the trial thereof, and that she was in ignorance of the
fraud practiced upon her until within six months immediately preceding the filing of her
motion; that the judgment obtained is a fraud upon her and upon the court.
was obtained by fraud, in that at the time of making the affidavit upon which the order of
publication of summons was obtained and at the time said order was obtained, Curtis
Stimson, the plaintiff, could have known and did know that she (the defendant) then resided
at Corvallis, in the State of Oregon, and that her postoffice address was at that place; that the
affidavit of plaintiff was false and untrue and was made for the purpose of concealing the
pendency of the action and obtaining a decree of divorce without her knowledge, and to
conceal from the court her whereabouts, and to prevent her from making a defense to the
action; that the summons was not served upon her; that she has a complete defense to the
action; that she had no notice of the pendency of the proceeding until long after the trial
thereof, and that she was in ignorance of the fraud practiced upon her until within six months
immediately preceding the filing of her motion; that the judgment obtained is a fraud upon
her and upon the court.
Upon consideration of the moving papers, the respondent court made an order purporting
to fix the 29th day of January, 1923, as the date for the hearing of said motion, and ordered
that the defendant serve, or cause to be served, on plaintiff and his attorney of record in the
divorce action a copy of the order and notice of motion at least ten days before the date fixed
for the hearing thereof. It appears that both the plaintiff and his attorney of record in the
divorce action are now nonresidents of Nevada, and that the papers were served by delivering
copies thereof to said parties without the State of Nevada.
On the 29th day of January, 1923, Curtis Stimson, in response to the citation, appeared
specially for the purpose of objecting to the jurisdiction of the court to vacate the judgment,
and for no other purpose. On the 13th day of February, 1923, the court made an order
overruling the objection to its jurisdiction, and by order gave plaintiff fifteen days in which to
prepare, serve, and file answering affidavits.
On the 26th day of February, 1923, Curtin Stimson, by his attorney, petitioned this court
for an alternative writ of prohibition to prohibit the respondent court from proceeding to hear
and determine the motion to vacate the judgment for divorce, and prayed that, upon the return
to the alternative writ, the writ be made absolute and perpetual. The matter came on for
hearing on the 19th day of April, 1923, and was submitted for decision upon the demurrer to
the petition and upon the return of the respondents.
Upon consideration of the elaborate briefs, we conclude, as was intimated from the bench
on argument, that the real controversy between the parties turns upon a question of practice.
Section 142 of the civil practice act (section 5084 of the Revised Laws of Nevada)
provides:
* * * And when, from any cause, the summons and a copy of the complaint in an action
have not been personally served on the defendant, the court may allow, on such terms as may
be just, such defendant or his legal representatives, at any time within six months after the
rendition of any judgment in such action, to answer to the merits of the original action.
If this clause of the practice act applies to a motion of the character and nature of that
made by the respondent, Lillie Stimson, to vacate the original decree of divorce granted her
husband nearly twelve years prior to the date of her motion, it is determinative of the
jurisdiction of the respondent court and judge to hear and determine her motion. 23 Cyc. 907.
But it is strenuously insisted and argued on behalf of the respondents that where it is made
to appear by motion that the judgment was obtained by the plaintiff's fraudulent and wrongful
conduct in obtaining service of process, and where it is made to appear from the motion that
the judgment is a fraud upon the defendant and upon the court, the court, in furtherance of
justice and the preservation of the integrity of its own process, has the right, and it is its duty,
to entertain the motion to vacate the judgment, independently of the statute.
statute. In support of this contention counsel favor us with the citation of numerous
authorities, and particularly the divorce cases of Scribner v. Scribner, 93 Minn. 195; 101 N.
W. 163; Yorke v. Yorke, 3 N. D. 343, 55 N. W. 1095; Denton v. Denton, 41 How. Prac. (N.
Y.) 221. We appreciate the fact that the judgment sought to be vacated is for divorce, with its
serious consequences, personal and property. Such judgments, more than judgments of other
kinds, claim timely attention from courts. But the clause of our practice act does not expressly
except divorce proceedings, as do the statutes of Minnesota and North Dakota, hence the
cases cited from those jurisdictions do not apply, unless we are authorized to create or read
into our statute an exception of divorce proceedings.
In Denton v. Denton, supra, it is asserted that every court of record, unless restrained by
positive enactment, has the power to vacate its judgments when it is established that they
were obtained by fraud. It is pointed out in the opinion that under the practice in New York
courts of law are authorized, when they are unable to determine questions of fact arising on
motions, to refer the disputed questions of fact to a referee to take proof, and in that way
afford the parties an opportunity to ascertain the truth by the examination of the witnesses
produced before such referee. But in this proceeding it is conceded that, unless prohibited, the
respondent court and judge will proceed to hear and to determine the motion upon affidavits.
We do not see that a decree of divorce, not void upon its face, rests upon any other or
different ground than any other judgment. The act relating to marriage and divorce provides
that the proceedings, pleadings, and practice, as nearly as conveniently may be, shall conform
to those at law. Section 5842, Revised Laws. The courts and text-writers make no distinction
between divorce judgments and other judgments. Miller v. Miller, 37 Nev. 257, 142 Pac. 218.
See State v. District Court, 38 Mont. 166, 99 Pac. 291, 35 L. R. A. (N.S.) 1098, 129 Am. St.
Rep. 636, and authorities cited.
The judgment sought to be vacated not being void upon its face, and all the statutory
requirements to give the court jurisdiction having been apparently complied with, the
respondent court, because of the limitation prescribed by the statute, is without
jurisdiction to hear and determine the motion of Lillie Stimson to vacate the original
decree of divorce.
upon its face, and all the statutory requirements to give the court jurisdiction having been
apparently complied with, the respondent court, because of the limitation prescribed by the
statute, is without jurisdiction to hear and determine the motion of Lillie Stimson to vacate
the original decree of divorce.
By this we do not mean to hold or to decide that Lillie Stimson is without a remedy. To
decide that the statute is exclusive would in many cases result in the denial of the most
obvious justice. The case of Lillie Stimson may be one of those cases. We express no opinion
upon it. What we decide is that her remedy by motion is gone. Whether or not she had a
remedy in equity we do not decide, but point out to her that if she has such a remedy she must
assert her rights by a proceeding in the nature of a bill in equity to impeach the original decree
for fraud.
Whether the petitioner by resisting the motion appeared specially or generally is wholly
immaterial, as we conclude that the respondent court is without jurisdiction to entertain the
motion.
The alternative writ must be made permanent.
It is so ordered.
March 10, 1924. 223 Pac. 823.
Per Curiam:
Rehearing in the above-entitled cause is hereby denied.
Coleman, J., dissenting:
I dissent from the order denying the petition for a rehearing. I concurred in the opinion in
this case with great reluctance, feeling that perhaps the conclusions of my esteemed
associates were entitled to more consideration than my own, but, after a more thorough
investigation of the matter, I am convinced that the writ should not issue.
This is an original proceeding in prohibition. Our statute provides: The writ of
prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal,
corporation, board, or person, whether exercising functions judicial or ministerial, when
such proceedings are without or in excess of the jurisdiction of such tribunal, corporation,
board, or person."
whether exercising functions judicial or ministerial, when such proceedings are without or in
excess of the jurisdiction of such tribunal, corporation, board, or person. Section 5708, Rev.
Laws.
From the statute quoted it will be observed that this writ will issue to a court of inferior
jurisdiction only when the proceedings sought to be prohibited are without or in excess of the
jurisdiction of such court. Furthermore, it is a well-recognized rule that this writ is to be
issued with caution and forbearance, for the furtherance of justice, and even then only when
there is no adequate remedy at law. State ex rel. Irving National Bank v. Second Judicial
District Court, 47 Nev. 83; 217 Pac. 962.
In the light of the statute quoted and the well-recognized rule stated, let us consider the
facts of the matter and apply the law. The respondent Lillie Stimson filed in the respondent
court a motion to vacate and set aside a decree of divorce dissolving the bonds of matrimony
existing between her and her husband, the petitioner herein. The motion is based upon several
grounds, among others, that the plaintiff in the divorce action (petitioner herein) perpetrated a
fraud upon the court and upon the defendant in the divorce action; that the affidavits and
proofs filed in said divorce action prior to the trial thereof are insufficient to give the court
jurisdiction to hear, consider, and render a judgment and decree in the matter; and upon the
further ground that the defendant had no notice of the pendency of this cause or of the
proceedings until long after the trial was had.
Bearing in mind that this is an original proceeding, and not one on appeal, we should fully
consider every matter embodied in the record to determine if, in view of the reluctance with
which such writs are issued, one should issue in this matter.
The petition for the writ contains the affidavit made by Stimson as a basis for the order of
publication of summons, the order of publication entered by the court, and the proof of
publication. The affidavit for the order of publication of summons states that the last
known place of residence of the defendant was Corvallis, Benton County, Oreg., and that
the more recent postoffice address of the defendant was General Delivery, St.
of publication of summons states that the last known place of residence of the defendant was
Corvallis, Benton County, Oreg., and that the more recent postoffice address of the defendant
was General Delivery, St. Louis, Mo. It then recites that the affiant had received several
letters stating that they did not know the residence or whereabouts of the defendant, one being
to the effect that the writer had seen her at the postoffice in St. Louis, Mo. It then contains the
following statement: That affiant has inquired and caused further inquiry to be made in and
about Corvallis, Oreg., of persons who were friends and acquaintances of himself and his
wife, but he has been unable after due and diligent effort to obtain any information
whatsoever, either from friends and acquaintances or any other persons, or from any other
source of information, as to the present residence of the defendant, except that which is
hereinbefore set forth.
The statute which was in force at the time the divorce action in question was instituted
provided, in substance, that, if it be made to appear by affidavit that the defendant resided out
of the state, or had departed from the state, or after due diligence could not be found in the
state, the court might order the service of the summons by publication. Nowhere is it stated in
this affidavit that the defendant was not a resident of this state, nor does it undertake to show
that she could not have been found therein. The affidavit fails to state facts showing diligence
on the part of the plaintiff, which was necessary to give the court jurisdiction to make the
order of substituted service of summons, and for this reason alone the court never acquired
jurisdiction to make the order of publication. Perry v. District Court, 42 Nev. 284, 174 Pac.
1058.
But, ignoring this question, and assuming that the court did have jurisdiction to make the
order for substituted service, it is my opinion that the order was never complied with, and
hence the court did not acquire jurisdiction to hear, determine, and adjudge the matter
presented. As has been pointed out, the court ordered the service of summons by publication
in a newspaper, and by mailing a copy thereof, together with a copy of the complaint in
the action, to the defendant at Corvallis, Oreg., and to General Delivery, St. Louis, Mo. The
only proof showing a compliance with the order {as to mailing the summons and copy of
the complaint) is the affidavit of the plaintiff himself that he mailed such copies to the
defendant to Corvallis, Oreg., and the affidavit of his attorney that he mailed the copies to
her at General Delivery, St.
the service of summons by publication in a newspaper, and by mailing a copy thereof,
together with a copy of the complaint in the action, to the defendant at Corvallis, Oreg., and
to General Delivery, St. Louis, Mo. The only proof showing a compliance with the order (as
to mailing the summons and copy of the complaint) is the affidavit of the plaintiff himself
that he mailed such copies to the defendant to Corvallis, Oreg., and the affidavit of his
attorney that he mailed the copies to her at General Delivery, St. Louis, Mo. This is no service
at all. Neither a plaintiff nor his attorney can serve a summons. At common law the service of
summons had to be by an indifferent personone who was not interested in the litigation. 8
Bacon's Abr. p. 690.
By statutory enactment the common law exists in this state except where expressly
changed by statute. There is no statute in this state authorizing a person interested in the result
of litigation to serve a summons. The so-called service by the plaintiff and his attorney is
void, and could not give the court jurisdiction.
In State ex rel. Finch v. Duncan, 195 Mo. App. 541, 193 S. W. 950, wherein it considered
the authority of a husband, acting as deputy sheriff, to serve upon his wife certain papers in
the matter of an inquisition into her sanity initiated by him, it was held that no jurisdiction
was acquired in the matter. The court said: Now, in civil actions it has never been the policy
of the law, either statutory or that known as the unwritten or common law, that the person
who brought the action and was interested therein should be allowed to also serve the process
and make return thereof. * * * So that even in the case of an ordinary civil action, involving
no more than a mere civil liability for a limited sum of money, and where the regular process
server is an official under heavy bond for the faithful performance of his duties, still the
statute will not permit him to act in a case where he is plaintiff or is interested in the outcome
of the suit. And the same is true at common law. * * * If an official who is under bond is not
allowed to serve process as the foundation of a suit in which he is interested or is a party,
how much less should a private person, who is a party to the proceeding and interested in
the outcome thereof, be allowed to serve the foundational notice or process therein and
make return by attaching an affidavit thereto?
under bond is not allowed to serve process as the foundation of a suit in which he is interested
or is a party, how much less should a private person, who is a party to the proceeding and
interested in the outcome thereof, be allowed to serve the foundational notice or process
therein and make return by attaching an affidavit thereto? * * * It is not a question of whether
Mr. Finch in this case is or is not acting honestly and with the best of motives, nor of whether
he did or did not deliver a copy of the notice to Mrs. Finch as the attempted return on the
notice states. The question is whether or not the law can regard service of jurisdictional
notice, by one who is a moving party to a cause and interested in the outcome, as any service
or notice at all. To recognize the validity of such notice in this case will give validity to it in
all other cases of like character. It would open the way and make it more easily possible for
designing persons to railroad another into guardianship and perhaps worse, and to deprive
him of his liberty and property without an opportunity to be heard. Consequently, it is not an
error of fact against which this particular feature of relatrix's application for a writ of
prohibition is directed, but, if we are right in our view, it is an error of law in holding that to
be notice which is not notice, when viewed in the general light of the law's fixed and settled
policy. If the so-called notice on which the inquiry is based is in law no notice, then the error
of considering it as notice is not only an error of law, but one going to the jurisdiction of the
probate court to maintain the inquiry, and not a mere irregularity or defect thereof.
In Nelson v. Chittenden, 53 Colo. 30, 123 Pac. 656, Ann. Cas. 1914a, 1198, the court said:
In Toenniges v. Drake, et al., 7 Colo. 471, it was held that the service of a summons by a
plaintiff in the cause is voidciting other authorities to the same effect.
In Morton v. Crane, 39 Mich. 526, Judge Cooley, speaking for the court, in a case in which
a service by an officer who was the plaintiff was attacked, said: The danger of abuse in the
case of a summons consists in this, that the officer may falsely make return of a service
never made, and thereby put himself in position to obtain judgment by default against a
party who perhaps will hear of the proceedings for the first time when an execution
appears against him.
in this, that the officer may falsely make return of a service never made, and thereby put
himself in position to obtain judgment by default against a party who perhaps will hear of the
proceedings for the first time when an execution appears against him. No danger of abuse
from an officer serving his own process can be greater than this, and the practice which would
subject the officer to this temptation should not be tolerated. The courts generally have
adhered with great propriety and justice to the rule that in no case shall a man be officer and
party in the same proceedingciting authorities.
In Singletary v. Carter, 1 Bailey (S. C.) 467, 21 Am. Dec. 480, where the question was
involved, the evils of such a practice were pointed out and condemned, the court holding that
the proceeding upon such service was void.
In Rutherford v. Moody, 59 Ark. 328, 27 S. W. 230, it was held that service by plaintiff's
attorney was void. To the same effect: Flury v. Grimes, 52 Ga. 341; Dyson v. Baker, 54 Miss.
24; Snydacker v. Brosse, 51 Ill. 357, 99 Am. Dec. 551.
With the foregoing conclusions established, we are brought to a consideration of the
propriety of issuing the writ sought. If it be conceded that the lower court has no jurisdiction
to inquire into the question of fraud, it certainly has authority to inquire into the other
questions involved, and, this being true, the writ sought should not issue. Furthermore, the
writ issuing, as it does, only in the furtherance of justice, I am convinced, in view of the entire
record, that a gross injustice would be perpetrated by the issuance of the writ. Furthermore, I
am not entirely satisfied with the theory upon which we based our former opinion, realizing
that weighty reasons and high authority exist in support of the contrary view. In 15 R. C. L. at
page 704, it is said: It is generally held that judgments procured by fraud may be set aside or
vacated at the instance of one who himself is not a party to the fraud.
We find in the 23 Cyc. at page 919, the following: "Fraud practiced upon the court is
always ground for vacating the judgment, as where the court is deceived or misled as to
material circumstances, or its process is abused, resulting in the rendition of a judgment
which would not have been given if the whole conduct of the case had been fair."
Fraud practiced upon the court is always ground for vacating the judgment, as where the
court is deceived or misled as to material circumstances, or its process is abused, resulting in
the rendition of a judgment which would not have been given if the whole conduct of the case
had been fair.
See, also, Craig v. Craig, 110 Kan. 13, 202 Pac. 594; 15 Stand. Ency. of Prac. 191.
____________
47 Nev. 167, 167 (1923) Kingsbury v. Copren
No. 2567
KINGSBURY v. COPREN
September 4, 1923. 217 Pac. 1101.
1. Appeal and ErrorHolding on Appeal Held Law of the Case on Retrial.
Where court, on appeal from ruling sustaining a demurrer to a complaint against defendant as an
individual and as executor for return of diamond stick-pin and diamond ring, or its value, reversed the
judgment on ground that complaint sufficiently charged the executor alone, but stated that it would be an
impossibility for defendant to hold plaintiff's property in both capacities, the latter holding was the law of
the case on retrial, and precluded the entry of a joint judgment on general verdict against defendants.
Action by Verd Kingsbury against John V. Copren, individually and as executor of the
estate of Thomas J. Higgins, deceased. From a judgment for plaintiff, and from an order
denying a new trial, defendant appeals. Reversed and remanded. Petition for rehearing
denied.
Platt & Sanford, for Appellant:
An estate is not liable for tort or breach of contract by executor. A complaint against an
estate cannot be maintained against executor individually. Sterrett v. Barker, 51 Pac. 695;
Van Slooten v. Dodge, 145 N. Y. 332.
In the very nature of things, an administrator cannot hold possession of personal property
both as individual and as administrator. Nelson v. Smith, 42 Nev. 320; Kingsbury v. Copren,
43 Nev. 453; 18 Cyc. 975, 997.
Mack & Green and Brown & Belford, for Respondent:
The authorities cited by counsel support the exception to rule that such joinder is
sometimes permitted where it is uncertain in which capacity the cause of action exists. 24 C.
J. 820, 128, 129.
Where estate receives benefit of executor's tortious act, the party wronged may proceed
against estate. 11 R. C. L. 172.
An action may be maintained against person in his individual capacity and as executor,
Hawes, Parties to Actions, 20; Armstrong v. Hall, 17 How. Pr. (N. Y.) 78.
The plaintiff sued the defendant individually and as administrator of the estate of Thomas
J. Higgins, deceased. It appears that upon the calling of the case for trial before a jury the
complaint was changed throughout to run against the defendant, individually and as executor
of the estate of the said Thomas J. Higgins, deceased, to conform to the facts.
The action was one of claim and delivery for the unlawful withholding by the defendant,
individually and in his executorial capacity, of a diamond ring and a diamond stick-pin,
alleged to be the property of plaintiff. The jury returned a general verdict against the
defendants for the return of said property, or, in case return cannot be had, that plaintiff have
judgment against the defendants for its value, to wit, $1,100. Upon this verdict of the jury the
court rendered and caused to be entered a joint judgment against the defendants, in
accordance with the finding of the jury. A motion for a new trial, made on behalf of
defendants, was denied, and from this order and said judgment they have appealed.
The motions to dismiss the appeals and to strike from the record certain parts of the bill of
exceptions are denied.
In the view we take of the record it is necessary for us to consider but one of the numerous
assignments of error, which is that the joint judgment against the defendants individually
and as executor of the estate of Thomas J.
error, which is that the joint judgment against the defendants individually and as executor of
the estate of Thomas J. Higgins, deceased, is anomalous and illegal.
Upon a former appeal from a judgment for the defendant on demurrer to the original
complaint herein (Kingsbury v. Copren, 43 Nev. 448, 187 Pac. 728, 189 Pac. 676), plaintiff
was expressly informed, both in the opinion reversing the judgment and in ruling upon the
petition for rehearing, that it would be an impossibility for the defendant to hold the
possession of the property in controversy both as an individual and as administrator, nor
could plaintiff charge the defendant with holding said property in both capacities.
This being the law of the case, it necessarily follows that the joint judgment is illegal and
must be reversed and the case remanded for a new trial.
It is so ordered.
____________
47 Nev. 169, 169 (1923) Ex Parte Liotard
No. 2620
Ex Parte LIOTARD
September 4, 1923. 217 Pac. 960.
1. Criminal LawProof of Crime and Sufficient Cause to Believe Accused Guilty thereof
Warrants Holding Him in Custody.
In order to warrant holding accused to answer for the crime charged, it is not necessary, under Rev. Laws,
6986, for the court to determine that accused is guilty or the sufficiency of the evidence to warrant a
finding by the jury of guilty beyond a reasonable doubt, but it need only appear that the crime was
committed, and that there is sufficient cause to believe accused was guilty thereof.
2. HomicideOwner Permitting Another to Operate Automobile while Intoxicated,
Resulting in Death of Pedestrian, Held Guilty of Manslaughter.
In a prosecution for manslaughter for causing the death of a pedestrian resulting from driving an
automobile while intoxicated, proof that the machine owned by accused was being operated by an
intoxicated person while accused, who had control of the automobile, was sitting therein, was sufficient to
charge accused with knowledge of the operator's condition, and accused was therefore guilty under Stats.
1923, p. 12, sec. 3, providing that a person who, while intoxicated, causes death in the operation of any
vehicle, is guilty of a felony.
3. HomicideNot Necessary to Prove Criminal Intent of Accessory.
Under Rev. Laws, 6274, providing that a criminal intent is not required for conviction
as an accessory, the owner of an automobile who permits an intoxicated person to
operate his automobile may be convicted of manslaughter, without proof of criminal
intent.
Original proceeding. Application for writ of habeas corpus by Leon Liotard. Petition
dismissed, and petitioner remanded.
Campbell & Robins, for Petitioner.
Respondent.
This is an original proceeding in habeas corpus. The petitioner, together with one Sim
Krites, was charged in the justice's court with manslaughter. He was held to answer to the
district court, and, failing to give bond, was committed to the custody of the sheriff, who
holds him pursuant thereto. He now seeks to be discharged upon the ground that the evidence
fails to show probable cause as a ground for his being held.
The complaint upon which the proceedings were had before the justice of the peace
charges that the two defendants, while under the influence of intoxicating liquor, did
unlawfully and feloniously drive and operate a certain automobile upon a street in the city of
Winnemucca on a given day, and by reason of such intoxication drove and operated such
automobile in such a manner as to strike one Eula C. Halloway, thereby inflicting upon her
great bodily injury, resulting in her death. The prosecution was initiated pursuant to chapter
13, page 12, Statutes of 1923, section 3 of which reads:
Any person or persons, while intoxicated or under the influence of intoxicating liquor,
who drives or operates a vehicle of any kind, and who, by reason of such intoxication or
condition hereinbefore stated, does any act or neglects any duty now or hereafter imposed by
law, which act or neglect of duty causes the death of, or bodily injury to, any person, shall
be punished as for a felony."
law, which act or neglect of duty causes the death of, or bodily injury to, any person, shall be
punished as for a felony.
The facts are these: On May 5, 1923, the petitioner had possession of the car in question
under a contract of purchase. On that evening he drove the car to the Nixon Opera House,
where a dance was in progress, taking Krites with him. During the entire evening Krites was
very intoxicated, and though he did not undertake to dance or create any disturbance, and
remained during the entire evening in the lobby of the opera house, he was ordered from the
place. However, he stayed until the dancing ceased. While the people were leaving, Krites
and the petitioner went out to the automobile, which was standing in front of the opera house.
Krites got into the car, behind the steering-wheel, and started the engine. At this point
petitioner was seen by those leaving the opera house to step upon the running-board of the
car. About a minute thereafter the car was thrown into reverse gear, and the car backed up
with great force across the sidewalk, striking Miss Holloway and crushing her against a brick
wall, from which injury she died. Immediately after the injury was inflicted, two men were
seen sitting in the car. Krites admitted to the sheriff on the night of the incident that he was at
the wheel when the injury occurred.
1. Counsel for petitioner makes the point that the evidence does not show that the
petitioner gave Krites instructions to operate the car, or that he was in any way blamable for
the injury inflicted upon the deceased, and hence must be discharged. In passing upon the
contention made, it is unnecessary that we determine the question of petitioner's guilt, or the
sufficiency of the evidence to warrant a jury in finding the petitioner guilty beyond a
reasonable doubt. It need only appear that there is sufficient competent evidence to establish
the commission of a crime and sufficient cause to believe the defendant guilty thereof. Rev.
Laws, 6986; Ex Parte Molino, 39 Nev. 360, 157 Pac. 1012.
2. While it does not appear that petitioner gave Krites instructions to operate the car, it is
an undisputed fact that the petitioner was present while Krites was at the wheel and while the
engine was in action. Krites admits that he was at the wheel at the time of the tragedy. He was
in control of the car by consent of the petitioner. Petitioner is chargeable with knowledge of
Krites's condition. No one would contend that the owner of a car would not be liable for
injuries resulting from his operating it while intoxicated. How, then, can he escape the
consequence when he sits by and permits another, who is intoxicated, to operate it? In civil
actions the negligence of a chauffeur is imputed to the owner, when he is riding in the car at
the time of the negligent act. Huddy on Automobiles (5th ed.) sec. 629.
The reasoning which leads to this conclusion is equally applicable in the situation here
presented. The public welfare, as well as sound logic, justifies the conclusion. The owner of a
dangerous instrumentality cannot jeopardize the lives of others by placing it in the hands of
one under the influence of liquor with permission to use it, or allow him to use it with his
knowledge and approval, without becoming both civilly and criminally liable, when a statute
such as the one in question controls. One who is so careless of the rights of others as to use a
dangerous instrumentality while incapacitated by drink, or who permits others to do so, as
here shown, invites the consequences. He must pay the penalty. In the case of Commonwealth
v. Sherman, 191 Mass. 439, 78 N. E. 98, which is almost identical to this so far as the facts
are concerned, the Supreme Judicial Court of Massachusetts disposes of the case in these
brief words:
In our opinion those facts warranted the inference that the owner knew and allowed his
machine to be illegally run. The case so made out is a prima-facie case only. It may be
contradicted or explained. But, uncontradicted and unexplained, it does, in our opinion,
warrant that inference, and so makes out a prima-facie case.
3. It is contended that petitioner is guilty of involuntary manslaughter, if of any crime at
all, but that he cannot be guilty of that as an accessory, because there was no intent on his part
to cause the injury sustained by Miss Halloway. To sustain his position, counsel calls our
attention to the case of Adams v. State, 65 Ind. 565. It is not in point. Our statute does not
make intent an element of the offense charged. Furthermore, section 6274, Rev. Laws,
provides that the lacking of a criminal intent shall not be a defense in behalf of an accessory.
For the reasons given, the petition must be dismissed, and the petitioner remanded.
It is so ordered.
April 14, 1924.
Per Curiam:
Rehearing denied.
____________
47 Nev. 173, 173 (1923) Nevada Mining and Exploration Co. v. Rae
No. 2568
NEVADA MINING AND EXPLORATION
COMPANY v. RAE
September 5, 1923. 218 Pac. 89.
1. TrustsAllegations Held to Have No Place in Complaint.
In a suit by corporations to have defendants declared trustees of certain mining claims for benefit of
plaintiffs by reason of defendant's failure to carry out their contract to sell plaintiffs' property conveyed to
defendants for that purpose, a paragraph in the complaint alleging that C., to facilitate the sale, advanced
sums of money to plaintiffs, held to have no place in complaint, since, if C. had any grounds for relief, it
was against plaintiffs.
2. PleadingCode of Civil Procedure, though Liberal, Does Not Justify Amendment after
Verdict to Enable Party to Plead Cause of Action Opposed to Theory of Original
Complaint.
Code of civil procedure, though liberal, does not justify an amendment after verdict so as to plead a cause
of action diametrically opposed to the theory of the original complaint and that upon which plaintiff
proceeds until after the verdict is rendered.
3. PleadingAmendments to Original Complaint Held to Present Two Inconsistent Theories.
Where the original complaint in a suit to have defendants declared trustees of certain property for
benefit of plaintiffs was based upon the terms of an alleged contract with defendants under which the
latter agreed to sell plaintiffs' property and account to plaintiffs for proceeds, it was error to allow
plaintiffs to file an amended complaint to conform to the proof charging that defendants procured the
contract by fraud without its having been read by plaintiffs, as the amendment entirely changed the theory
of plaintiffs' case as presented in the original complaint, or at least incorporated two inconsistent theories
into the complaint.
4. FraudFraud Must Be Clearly Proved.
Fraud is never presumed, but must be clearly and satisfactorily established.
5. ContractsFraud Not Shown by Mere Failure of One Party to Read Contract.
That one party to a contract signs it without reading it does not establish fraud where he does not
testify that its terms were not explained to him, or that he was misled, and especially where he does
testify that some time after signing it he read it and was satisfied with its terms, and remained so satisfied
for about six years.
Appeal from Eighth Judicial District Court, Lyon County; T. C. Hart, Judge.
Suit by the Nevada Mining and Exploration Company and another against J. H. Rae and
others. From judgment for plaintiffs and from an order denying motion for new trial,
defendants appeal. Judgment and order reversed, with direction to enter judgment for
defendants. Rehearing denied.
Leonard B. Fowler, Robert Richards, Mack & Green, and Clark J. Guild, for Appellants:
Amendment may be allowed after verdict, presenting issue upon which both sides have
introduced evidence; but amendment after verdict, changing issues so as to require new trial,
should be refused. 31 Cyc. 404; Huron Dock Co. v. Swart, 24 Ohio C. C. 504.
Where person signs document, he is not permitted to show he did not know its terms, and
in absence of fraud is bound thereby. It is immaterial that he did not read and does not know
contents. 13 C. J. 277; Gage v. Phillips, 21 Nev. 150.
One seeking equitable relief where subject-matter involves highly speculative enterprise
must act with diligence.
involves highly speculative enterprise must act with diligence. Kinne v. Webb, 49 Fed. 515,
affirmed 54 Fed. 34; Gamble v. Silver Peak M. Co., 34 Nev. 432.
Proof of fraud must be clear and convincing, especially in cases where one seeks cancelation
of his own written instrument. 9 C. J. 1254. Facts constituting fraud must be specifically
alleged. Gruber v. Baker, 20 Nev. 476.
Platt & Sanford and Edward F. Treadwell, for Respondents:
Where one holding fiduciary relation to another wrongfully mixes his property with
property of such other, he must bear full loss occasioned by impossibility of identifying
property. Lightner M. Co. v. Lane, 161 Cal. 689.
The case is strictly in equity and verdict of jury is only advisory; therefore error in
instructions is not ground for reversal. Johnson v. Rosaschi, 44 Nev. 394. Same rule applies
to amendments to pleadings. The changes made removed only immaterial variances. Rev.
Laws, 5080; Miller v. Thompson, 40 Nev. 39.
Until decision, amendment is proper to conform to proof. McCausland v. Ralston, 12 Nev.
195. So long as it is not entirely foreign and arises from same general state of facts,
amendment is proper. Cox v. McLaughlin, 76 Cal. 60.
Entering into contract without any intention of performing it, especially where confidential
relation exists, constitutes fraud. 13 C. J. 386; 13 Cyc. 487; Old Colony Trust Co. v. Dubuque
& Co., 89 Fed. 794.
Where fraud is charged, a person may prove that he did or did not read instrument. 13 C. J.
387; Lamb v. Lamb, 30 N. E. 36.
Considerable indulgence should be shown for lack of diligence where confidential relation
exists. 16 Cyc. 176; Wilson v. Wilson, 23 Nev. 267.
This is an appeal from an order denying a motion for a new trial, and from the judgment
rendered in favor of the plaintiffs in a suit instituted for the purpose of having the
defendants declared trustees of certain mining claims for the use and benefit of the
plaintiffs.
of the plaintiffs in a suit instituted for the purpose of having the defendants declared trustees
of certain mining claims for the use and benefit of the plaintiffs. A demurrer to the original
complaint urging numerous grounds therefor, and a motion to strike certain portions thereof,
were filed, which being overruled, the defendants filed their answer. A reply having been
filed, the case came on for trial before a jury as advisory to the court upon questions of fact.
After the jury had brought in a general verdict in favor of the plaintiffs, and application was
made to the court for leave to file an amended complaint to conform to the evidence, which
was granted over the strenuous objections of the defendants. An answer to the amended
complaint was filed, after which there was a reply denying the affirmative matter alleged in
the answer. Subsequently the court rendered a judgment and decree in favor of the plaintiffs
as prayed.
It is alleged in the original complaint, inter alia, that at a given time M. Cohn and J. H. Rae
were each the owners of an undivided one-half interest in the mining ground in question; that
for some years they were engaged as copartners in holding, developing, and perfecting the
title to said property; that on April 1, 1902, for the purpose of more conveniently handling
and operating said property, said Cohn and Rae caused to be organized the Nevada Mining
and Exploration Corporation, one of the plaintiff corporations, and caused to be conveyed
thereto the mining claims referred to, and that thereafter, and on or about March 16, 1906,
said Cohn and Rae caused to be incorporated the Virginia and Tonopah Gold Dredging
Company, and caused to be conveyed thereto a portion of the property in question, and that
said Cohn and Rae were at all times the owners of all of the stock in said corporations; that
thereafter the plaintiff corporations performed assessment work upon and developed said
mining claims, and that said Cohn expended and advanced to said plaintiffs large sums of
money for the purpose mentioned. It is further alleged that on or about January 29, 1913, the
defendant Rae represented to said plaintiffs that there was an opportunity to make an
advantageous sale of said property, and that he desired to have a deed of the property
made to him by the plaintiffs in order that he might consummate such sale, and that it
was agreed between plaintiffs and said Rae that he might sell said property for $40,000,
whereupon a deed was made and executed by plaintiffs conveying said property to
defendant Rae, to be delivered upon payment of said sum.
defendant Rae represented to said plaintiffs that there was an opportunity to make an
advantageous sale of said property, and that he desired to have a deed of the property made to
him by the plaintiffs in order that he might consummate such sale, and that it was agreed
between plaintiffs and said Rae that he might sell said property for $40,000, whereupon a
deed was made and executed by plaintiffs conveying said property to defendant Rae, to be
delivered upon payment of said sum. It is further alleged that said sale was not consummated,
and that, on or about November 11, 1914, another agreement was entered into. We quote
from the complaint as follows:
* * * An agreement was entered into between the said plaintiffs and said defendant J. H.
Rae to the effect that said deed should be delivered to the said J. H. Rae, and that the said J.
H. Rae should form a corporation for the purpose of taking over, operating, and developing
said property, the stock in which should be issued to the said J. H. Rae, and that either the
said property or the stock in the corporation so to be formed should be sold, and that, upon
the consummation of said sale, the said sum of $40,000 should be paid to the plaintiffs. It was
further provided by said agreement that, if the sale was consummated by the sale of the stock
in the corporation so to be formed, the said $40,000 should be paid from the proceeds of sale
thereof, and, if consummated by the sale of property, the same should be distributed in the
form of dividends to said J. H. Rae, and by him paid to said corporations plaintiff; that the
agreement to transfer the said property to said J. H. Rae and to the corporation so to be
formed was solely for the purpose of conveniently handling and disposing of said property
and without any intention of changing the beneficial interests of the said plaintiffs in said
property.
It is further averred that no consideration was paid for said property by Rae; that
immediately after the delivery of said deed to Rae, he had the same recorded; that at the time
of said transaction plaintiffs had entire and complete confidence in the said Rae and the
representations made by him, and believed that the said Rae entered into the same in
good faith in order to consummate the contemplated sale, and that plaintiffs at all times
believed that Rae had formed a corporation to hold said property in accordance with said
agreement, and that such corporation so formed was holding said property until the sale
thereof, and that said Rae or said corporation was holding the stock thereof, and was
endeavoring to consummate a sale of said property either by the sale of the same or by a
sale of the stock in bulk, for the sum of $40,000 net, to the plaintiffs, and that they so
continued to believe until the year 1920.
and complete confidence in the said Rae and the representations made by him, and believed
that the said Rae entered into the same in good faith in order to consummate the contemplated
sale, and that plaintiffs at all times believed that Rae had formed a corporation to hold said
property in accordance with said agreement, and that such corporation so formed was holding
said property until the sale thereof, and that said Rae or said corporation was holding the
stock thereof, and was endeavoring to consummate a sale of said property either by the sale of
the same or by a sale of the stock in bulk, for the sum of $40,000 net, to the plaintiffs, and
that they so continued to believe until the year 1920.
It is further averred that the said Rae did not incorporate nor cause to be incorporated a
company for the purpose of taking over, operating and developing the said mining property,
but, on the contrary, on or about November, 16, 1914, he caused to be incorporated a
corporation known as the Rae Consolidated Gold Dredging Company, with which are certain
ones going to the refusal of the court to strike certain portions of the complaint.
1. Paragraph V of the complaint reads:
Thereafter the said plaintiffs continued to develop said properties and to do the
assessment work thereon, and to perfect their title thereto, the said Morris Cohn expending
and advancing to said corporations large sums of money for the purpose aforesaid.
It is clear that this paragraph has no place in the complaint. This is a suit by two
corporations, and not one in which Morris Cohn is a party plaintiff. Furthermore, it appears
that the advances made by Cohn were made to the plaintiffs in the action, and, if he had any
ground of relief on account of the advances, it is clearly against the plaintiffs, and not against
the defendants, or any of them. However, pursuant to the paragraph mentioned, evidence was
introduced showing large advances by Cohn. Such testimony, under the terms of the
paragraph mentioned and the pleadings generally, could have served no other purpose than
to confuse the court and jury.
generally, could have served no other purpose than to confuse the court and jury.
2. We next come to the contention that the trial court erred in permitting plaintiffs to file
an amended complaint. Counsel for respondents contend that the amendments were to
conform to the proof. In this we cannot agree. We have quoted from the original complaint
the allegations charging the execution of a contract between the plaintiffs and J. H. Rae on
November 11, 1914. The plaintiffs, instead of repudiating that contract in the original
complaint, sought to establish its terms as the basis of their right of action. The complaint
charges that the plaintiffs at all times believed that Rae entered into said contract in good
faith in order to consummate the sale of said property. Such were the solemn allegations of
the complaint, duly sworn to by M. Cohn after he had had possession of the written contract
for over six years. The plaintiffs conducted the trial in accordance with the theory presented
in the original complaint. Mr. Cohn did not testify on direct examination, nor did plaintiffs
seek to show that he did not read the contract or fully understand its terms. His testimony to
the effect that he did not read the contract was given under cross-examination. The entire
manner of conducting the case by plaintiffs, until after the verdict of the jury, shows that they
were relying upon the theory presented in the original complaint. There is not a word or a line
in the complaint indicating that plaintiffs sought to charge fraud, unless it be that Rae entered
into the contract without intention to fulfil it, and this allegation, interpreted in the light of
plaintiffs' attitude in the case from the beginning to the time leave was sought to file the
amended complaint, indicates that the plaintiffs entered into the contract understanding its
terms, but that, while Rae understood its terms, he never contemplated abiding by them, and
had in fact not carried out the terms of the contract.
The amended complaint charged that Rae falsely and fraudulently, and for the purpose of
depriving the plaintiffs of said property and of acquiring the same for his own use,
represented to the plaintiffs that he {Rae) intended to make a sale of said properties, and
thereby prevailed upon said plaintiffs to deliver the deed to said property to him, and that,
pursuant to representations so made by Rae, the contract in question was executed
without its having been read, and that it does not in fact embody the real terms agreed
upon.
fraudulently, and for the purpose of depriving the plaintiffs of said property and of acquiring
the same for his own use, represented to the plaintiffs that he (Rae) intended to make a sale of
said properties, and thereby prevailed upon said plaintiffs to deliver the deed to said property
to him, and that, pursuant to representations so made by Rae, the contract in question was
executed without its having been read, and that it does not in fact embody the real terms
agreed upon.
We are of the opinion that the court should not have made an order permitting the filing of
the amended complaint. Our code of civil procedure is quite liberal as to amendments, but
there is nothing therein which justifies an amendment after verdict so as to plead a cause of
action diametrically opposed to the theory of the original complaint and that upon which the
plaintiff proceeds until after the verdict of the jury is rendered. This court, in Marshall v.
Golden Fleece M. Co., 16 Nev. 156, 180, in passing upon the refusal of the trial court to
permit an amendment changing the theory of a party, said:
We are unable to say, and so was the court below, that defendants expected, or had reason
to think, that the affairs of the company, subsequent to the commencement of the action,
would be inquired into with the view of arriving at a judicial settlement of the same, or that
the case was, in fact, tried upon that theory. The contrary plainly appears. Such being the
case, it would have been an unwarrantable exercise of power to have permitted the
amendment at the time it was asked.
While the facts in that case are very dissimilar from those in the instant one, it clearly
appears from the quotation that the court held that the defendant had no reason to anticipate,
from the nature of the pleadings, that the case would be tried upon the theory sought to be
presented by the amendment, or that it was so tried, but that it clearly appeared that it was not
tried upon that theory, and, such being the case, it would have been an unwarrantable
exercise of power for the court to have allowed the amendment. While the rule thus
adopted by the court is contrary to that prevailing in California {Bradley v. Parker, 34 Pac.
rule thus adopted by the court is contrary to that prevailing in California (Bradley v. Parker,
34 Pac. 234), it is in accord with the great weight of authority, and what seems to be the safer
rule. In Foste v. Standard L. & A. Ins. Co., 26 Or. 449, 38 Pac. 617, it is said:
Courts should be liberal in allowing amendments, and when the cause of action is
improperly set forth in the complaint, or a pleading is defective in any respect, the court may,
in its discretion, at any stage of the case before the cause is submitted, authorize such
amendments as may be necessary to make the case as intended by the original pleading, but
not to insert a new and distinct cause of action or defense. Ford v. Ford, 53 Barb. 525; Davis
v. Railroad Co., 110 N. Y. 646; 17 N. E. 733; Baldock v. Atwood, 21 Or. 79, 26 Pac. 1058.
See, also, Barnes v. Quigley, 59 N. Y. 265; Clark v. St. Louis T. R. Co., 127 Mo. 255, 30
S. W. 121; Anderson v. Groesbeck, 26 Colo. 3, 55 Pac. 1086; 1 Stand. Ency. Proc. 919; 1
Ency. Pl. & Pr. 584-586; Grand Cent. M. Co. v. Mammoth M. Co., 29 Utah, 490, 83 Pac.
648, 685.
3. It is contended that the amendments presented by the amended complaint are only
formal, and made to conform to the proof, and that defendants were in no way prejudiced, as
they might have presented such further material evidence as may have been available. It is
very likely that the trial court in allowing the amendments accepted this view. We have
pointed out that the amendments are not merely formal. They entirely change the theory of the
plaintiffs as presented in the original complaint. At least, if they do not do this, they
incorporate into the complaint an entirely different theory, thereby presenting two theories as
a basis for recovery, and theories, too, which are inconsistent, both of which cannot be true.
Such amendments could but be confusing. Clear-cut, well-defined issues should be presented
by the pleadings. They are essential in every system of pleading, and there can be no orderly
administration of justice without them, and, if a party can allege one cause of action, and then
recover upon another, or if his complaint can be so drawn that it will be difficult to
determine which of two apparent theories he proceeds upon, it can serve the purpose
only to ensnare and mislead the adversary.
will be difficult to determine which of two apparent theories he proceeds upon, it can serve
the purpose only to ensnare and mislead the adversary. Christensen v. Duborg, 38 Nev. 404,
150 Pac. 306.
4, 5. We think there is another reason why the evidence does not justify the amendment.
While Cohn swore he did not read the contract, he did not testify that its terms were not
explained to him, or that he was misled. Besides, he testified that several months after it was
signed he read it and was satisfied with its terms, and remained so satisfied for about six
years, during which time the defendant company spent many thousands of dollars upon the
property. Fraud is never presumed and must be clearly and satisfactorily established. Gruber
v. Baker, 20 Nev. 476, 23 Pac. 859, 9 L. R. A. 302. There is no such testimony in this case.
While we have deemed it proper to dispose of the foregoing questions, we are clearly of
the opinion that there is no competent and relevant evidence in the record to establish fraud
upon either of the theories suggested by the pleadings.
For the reasons given, the judgment and order are reversed, and the trial court is directed to
enter judgment in favor of the defendants.
March 5, 1924. 223 Pac. 825.
1. Cancelation of InstrumentsReal Contract Must Be Pleaded in Action to Rescind
Contract.
In an action to rescind a contract, the real contract entered into must be pleaded.
2. ContractsOral Negotiations Embodied in Writing.
Generally when parties have committed their agreements to writing all oral negotiations
and stipulations are embodied in the writing itself.
3. Mines and MineralsEvidence Held Not to Prove that Contract Conveying Mining Claims
Was Procured by Fraud.
Evidence held insufficient to prove that contract conveying mining claims, providing
for incorporation by grantee of a corporation for the development of the mines, was
procured by fraud in that grantee did not intend to comply with its terms at the time it
was executed.
On petition for rehearing. Petition denied.
Platt & Sanford and Edward F. Treadwell, for Petitioners:
If original complaint alleged fraud, even though defectively, amendment alleging it
correctly was proper. Stewart v. Spaulding, 72 Cal. 267.
It is sufficient if a complaint states facts from which fraud is necessarily implied. 9 Ency.
Pl. & Pr. 686. Allegation of fraudulent intent is not necessary. Idem, 696.
Marshall v. Golden Fleece M. Co., 16 Nev. 156, cited by court, does not apply because
amendment was made before findings and because this case was tried on theory of fraud and
parties had reason to believe and did believe fraud was basis of original complaint.
Any defect in allegation of fraud is waived unless made when evidence is offered. 9 Ency.
Pl. & Pr. 697.
Original complaint charged contract was entered into without any intention of performing
it, while amended complaint alleged fraud in obtaining itsimply a broader allegation of
fraudand there is no inconsistency. We had right to allege every ground we had, and could
not split cause of action.
The alleged fraud consisted of false representations of purpose of conveyance, and was
clearly proved. Court will overrule verdict of jury where there is total lack of substantial
evidence to sustain it. O'Banion v. Simpson, 44 Nev. 190.
If Rae acquired advantages by taking advantage of confidential relation he holds property in
trust. Beckwith v. Sheldon (Cal.), 97 Pac. 867; 2 C. J. 692-695.
We are at least entitled to lien on property and cash now in court received from minerals,
under general rule of equity. Beckwith v. Sheldon, supra.
Leonard B. Fowler, Robert Richards, Mack & Green and Clark J. Guild, for Appellant:
Transfer of property to corporation ends partnership relation, joint ownership, or joint
adventure, if any ever existed. 20 R. C. L. 954.
The written contract embodied consummation of all negotiations.
Statement that Rae entered into contract without intention of performing it is not supported
by evidence.
Petitioners entirely reverse their position as to alleged deception. They say they did not
complain that contract was not explained to Cohn, but that it was falsely explained. It was
argued at trial Cohn had not read contract. Having served its purpose, that position is
abandoned here.
Representations of future expected event cannot sustain allegation of fraud or breach of
contract. 12 R. C. L. 244.
The whole case falls upon counsels' own theory, because complaint failed to state the
cause of action.
Rae performed contract as fully as he could, and property was disposed of by lease before
suit was begun. Cancelation was not justified when contract had been acted upon for seven
years.
While admitting contract was repudiated by corporations they obdurately insist it was
repudiated by Rae, who has performed it.
In Beckwith v. Sheldon, cited by counsel, on second appeal court expressly held a contract
cannot be rescinded where rights of others have intervened. 131 Pac. 1049. In third appeal
that decision was affirmed. 145 Pac. 97.
Counsel for respondents have filed a 52-page printed petition for a rehearing. In the
petition we find this statement:
In form this is a suit in the name of two corporations, because the joint adventurers, under
the pleadings, evidence, and findings, placed title to the property in the corporations for
convenience of management. Rae acquired the property from those corporations, and, it is
claimed, by fraud. The corporations, however, consisted only of Rae and Cohn. The fraud in
fact was practiced on Cohn, as he was acting for the corporation.
Rae could not act for the corporation because he claims he was buying the property from the
corporation. Cohn, therefore, alone represented the corporation. In connection with the claim
of fraud the existence of a confidential relation between the parties was highly important. The
confidential relation grew out of the partnership of two men in this venture, their equal joint
ownership, and their mutual contributions to the venture. The allegation of the previous
ownership by Cohn and Rae, the joint handling of the property, and the contributions to it by
them or either of them was all proper for the purpose of showing these relations.
Defendants in their answer denied the interest of Cohn at the time of the transactions
complained of, claimed that his interest was entirely different and arose at a much later date,
and that the only interest he had was under a contract of 1913, which it was alleged he had
not fulfilled.
In order to prove this ownership and relationship we introduced the letter from the
defendant, and, furthermore, the payment of these sums of money, aggregating about
$10,000, by Cohn, which was the strongest kind of evidence of such ownership during the
entire period. Even if there had been no allegation of the payment, the same evidence would
have been material for the purpose of proving the ownership of Cohn and Rae and the
relationship of the parties.
The evidence did not confuse either the court or jury, but it did serve to show that the
sworn answer by Rae denying the joint ownership of this property by Cohn and Rae was
false. The allegation was not made for the purpose of making any claim against any one for
the advances, but for the purpose of showing the relationship of the two real actors in this
matter. That this relationship was vital and materially affected both the allegation and proof
of fraud is well settled, as we will point out when discussing that subject.
The trouble with the foregoing statement is one which inheres in the entire case of the
plaintiffs from start to finish. Either Cohn is the real party in interest in this case or the
plaintiff corporations are.
case or the plaintiff corporations are. On the face of the pleadings the corporations are the
parties in interest, and hence they are properly the parties plaintiff. Rev. Laws, 4986.
There are no more learned, sagacious, and skilful members of the bar than counsel for
respondents. They are such all-round men from the standpoint of qualifications for the bar
that at the conclusion of the oral argument we were not only convinced of the correctness of
their contention but of the righteousness of the judgment, and it was only after unusual study
of the record and the briefs that we were willing to abandon the conclusion then reached. And
here we may say with propriety that, if there be any merit in the matter which we have quoted
from the petition, it is hard for us to reconcile it with the action taken at a meeting of the
board of trustees of the plaintiff corporations at which this suit was authorized at the expense
of the plaintiff corporations. If Cohn is the real party plaintiff in the action, why did he not
bring the suit in his own name and at his own expense rather than at the expense of the
plaintiff corporations? Furthermore, how can we reconcile the contention made with the
allegation in the complaint, quoted in the former opinion, to the effect that plaintiffs
continued to develop the properties and to do assessment work thereon and to perfect their
title thereto, and that Cohn advanced to said plaintiffs large sums of money for the purposes
mentioned?
In writing our former opinion we pointed out that Cohn is not a party plaintiff, and that his
personal rights were not involved in this litigation, and it was upon that ground that we took
the position that the pleadings and evidence affecting him personally were improperly in the
case. There is no question but that Rae and Cohn originally owned jointly the bulk of the
property in question; that they conveyed their entire interest therein to the plaintiff
corporations. Nowhere in the pleadings or in the evidence is there a suggestion that the
conveyances by Cohn and Rae to the plaintiff corporations should be set aside.
corporations should be set aside. Then, why should the personality of Cohn be thrust into the
case? He has no place in it, and the evidence pertaining to this personal interest in the
property and his expenditures before these defendants acquired the title thereto could serve no
purpose save to confuse the trial jury and court. If Cohn has any rights in the property as an
individual he is the proper party plaintiff in an action to assert them, under the statute cited,
and if he has a claim for advances made to the plaintiff corporations he has his remedy.
We will now take up the contention that our conclusions as to the bringing into the case,
by the amendment, of a new cause of action or a new theory, were not justified. In this
connection it is said in the petition:
The original complaint, of course, alleged the contract and conveyance, because that is
necessary in any action to rescind. It also alleged the representations made as to the purpose
of the contract and conveyance; that no consideration was paid for it; that plaintiff believed
the representations; that the contract had not been performed; that the advantages were
acquired by breach of confidence; that the contract has been abandoned by defendants; that
defendant entered into the contract without any intention of performing it; that said plaintiffs,
upon learning the facts above set forth on or about the 9th day of May, 1920, proceeded to
and did rescind and annul the said contract by reason of the things herein set forth, and
notified the defendants of such rescission, and also notified them that the said contract was
void and without any consideration, and had long since expired by the abandonment of said
contemplated sale and by the nonperformance thereof by the defendants.
In order that we may test the correctness of this statement, we quote the written contract as
it was executed. It reads:
This agreement, made in duplicate and entered into this 11th day of November, 1914, by
and between the Nevada Mining and Exploration Company, a corporation under the laws of
the State of Nevada, and the Virginia Tonopah Gold Dredging Company, a corporation
under the laws of the State of Arizona, both of said corporations acting by and through its
respective president and duly authorized officer, Morris Cohn, of the town of Tonopah,
county of Nye, State of Nevada, hereinafter known as grantors, and J. H. Rae, of the town
of Dayton, county of Lyon, State of Nevada, hereinafter known as grantee, witnesseth:
Nevada Mining and Exploration Company, a corporation under the laws of the State of
Nevada, and the Virginia Tonopah Gold Dredging Company, a corporation under the laws of
the State of Arizona, both of said corporations acting by and through its respective president
and duly authorized officer, Morris Cohn, of the town of Tonopah, county of Nye, State of
Nevada, hereinafter known as grantors, and J. H. Rae, of the town of Dayton, county of Lyon,
State of Nevada, hereinafter known as grantee, witnesseth:
Whereas, the grantors are the owners of certain placer mining ground situated in Lyon
County, State of Nevada; and
Whereas, the said grantors heretofore, to wit, on the 29th day of January, 1913, made and
executed a good and sufficient deed to said placer mining ground in favor of grantee herein,
the said deed to be delivered unto said grantee upon the payment of the sum of forty thousand
dollars; and
Whereas, said sum of forty thousand dollars has not been paid; and
Whereas, said grantee is desirous of purchasing said placer mining ground and securing
the title thereto by delivery to him of said deed heretofore made and executed in his favor:
Now, therefore, the said grantors, for and in consideration of one ($1) dollar and other
good and valuable consideration, do by these presents sell, assign, transfer, convey and set
over unto the said grantee, all right, title and interest of, in and to said placer mining ground
as described in deed aforesaid, and as evidence of said transfer to deliver unto the said grantee
the deed aforesaid.
It is covenanted and agreed on the part of said grantee, in consideration of the foregoing
premises, as follows, to wit:
That he will incorporate, or cause to be incorporated, a company for the purpose of taking
over, operating and developing said placer mining ground.
That upon the perfecting of said incorporated company he will convey to it all right, title
and interest in said placer mining ground.
That thereafter he will devote his time, attention and ability to the successful promotion
of said company, and the successful operating and developing of said placer mining ground.
That in the event he is successful in the promotion of said company and placing said
mining ground upon a paying basis, then and in that event, he will pay said grantors from the
net proceeds of his individual interest as a stockholder in said company, the sum of forty
thousand dollars, the said forty thousand dollars to be the first forty thousand dollars realized
from his individual interest as stockholder of said company, whether it be from the sale of his
personal stock or from dividends paid on said stock, and said money received from said
interest, or by reason thereof, shall be paid immediately to said grantors to apply upon the
payment of said forty thousand dollars.
It is mutually understood and agreed between the parties hereto, and in consideration of
the foregoing premises, that it is the intention to create a personal liability upon the grantee
herein only in the event of his individual stock interest in the new company producing
financial results as above stated, and it is further understood and agreed that, upon the final,
full and complete payment of forty thousand dollars, all claims and demands of grantors will
have been fully and completely satisfied.
This agreement is binding upon the heirs, executors, and assigns of all parties hereto.
In witness whereof, the grantors herein have hereunto set their corporate names and
caused their corporate seals to be affixed by their duly authorized officer, and the grantee has
set his name hereunto in his individual capacity, the day and year first above written.
[Seal] Nevada Mining and Exploration Co.,
By Morris Cohn, Pres.
[Seal] Virginia Tonopah Gold Dredging Co.,
By Morris Cohn, Pres.
J. H. Rae.
We submit that, from a comparison of the facts as stated in the original opinion, with
which no fault is found, and the contract as executed, the plaintiffs did not plead "the
contract."
not plead the contract. On the other hand, they pleaded what they hoped to prove the real
contract to be. In other words, they sought to vary the terms of the written contract. It was this
desire which, to some extent, led to the predicament in which the plaintiffs have found
themselves. The situation presented shows the evil of permitting a written contract to be
pleaded according to the biased interpretation of one of the parties, rather than in haec verba,
and of leaving to the court the question of its interpretation. Hence we find the plaintiffs,
under the original complaint, standing upon the contract as they interpreted it. According to
the recital in the written agreement, Rae was desirous of purchasing the property from the
plaintiff companies, upon the condition that he would organize a company to take it over, and
would thereafter devote his efforts to promoting the company, and, if successful, would pay
$40,000 upon the terms mentioned. Plaintiffs offered the written contract in evidence after
Cohn had given testimony in support of his position as pleaded in the original complaint. No
doubt, in conformity to a preconceived plan, the amendment to the complaint was sought so
as to plead the written agreement, but at that time the evidence had gotten to the court and
jury, which it was expected would show Rae to be a traitor to his partner and friend.
Now, let us consider the statement of counsel for petitioners that
The original complaint, of course alleged the contract and conveyance, because that is
necessary in any action to rescind.
The logic of this statement is sound. The premise is bad because the original complaint did
not plead the contract. Rejecting the erroneous premise, and accepting the sound logic,
what was the situation presented to the trial court? It was this: Evidence had been received,
and properly and without objection, to establish the contract pleaded because it supported the
allegations of the complaint which pleaded the contract according to its legal effect as
interpreted by plaintiffs.
The result was that a jury and court already biased by much improper evidence, and a
distorted presentation of the terms of the contract, could not readily winnow the chaff from
the wheat when the written agreement was introduced in evidence. We find this statement in
the petition for a rehearing:
The contention that Cohn did not testify that the terms of the contract were not explained
to him, of that he was misled: A consideration of this suggestion would lead us into a
discussion of the merits of the case, which we will make under the next point. Suffice it to
say at this point that we do not complain that the contract was not explained to him, but our
complaint is that the purpose of the contract and conveyance was falsely represented to him.
The complaint is, and the evidence is, that it was explained to him, and its purpose stated, and
it is the falsity of that statement that we rely upon. We shall also point out that he did in effect
testify that he was misled. Nor do we rely on the fact that Cohn did not read the contract. We
offered no evidence to that effect. On cross-examination he was asked if he read it, and, as he
did not, he so testified. He with equal candor testified that he had read it later. Our contention
is that the contract is clearly subject to the construction that it was for the purpose
represented, and it is well settled that when a party leads another to believe that an instrument
means a certain thing he cannot claim the contrary.
1. Frankly, we are somewhat at a loss to know how to interpret the statement in view of
the position taken by counsel in the brief upon which the case was submitted, and of the
allegation in the amended complaint that Cohn did not read the written contract before he
signed it. In the brief it is said that it is well settled that, when fraud is charged, a person may
show that he did not read the instrument, and authorities are cited in support thereof. Pray,
what was the purpose of the allegation that Cohn did not read the contract, and of the
statement of the rule invoked, and the citation of the authorities? Can it be that plaintiffs,
having once shifted their position from that assumed in the original complaint, as to the
terms of the contract, again seek to shift their position as to another phase of the case?
shifted their position from that assumed in the original complaint, as to the terms of the
contract, again seek to shift their position as to another phase of the case? Let this be as it
may, we heartily agree with counsel in the statement quoted to the effect that it is necessary to
plead the terms of the contract when it is sought to rescind it. And this rule properly applied
means that the real contract must be pleaded, because a court cannot rescind a contract which
was never entered into, but which is the figment of some one's mind. Before leaving this
phase of the case it seems to us that counsel in their petition, while seeming to urge the
proposition that the amendment did not change the theory of the plaintiffs, at other times
seem to admit that it did. They say:
The original complaint charged that the contract was entered into without any intention of
performing it. The amended complaint alleged fraud in obtaining it. This was simply a
broader allegation of fraud, and there is no inconsistency.
There can be no doubt about the meaning of this language. The first sentence construes the
original complaint as we did in our former opinion, wherein we said:
There is not a word or a line in the complaint indicating that plaintiffs sought to charge
fraud, unless it be that Rae entered into the contract without intention to fulfil it. * * *
And the second sentence is substantially what we said about the amendment in that
opinion. The assertion that the amendment was simply a broader allegation of fraud, and that
there is no inconsistency, falls of its own fallacy. We are not only of the opinion that plaintiffs
sought to bring into the case an entirely new theory by the amendment, but we are unable to
reconcile the statements contained in the petition for a rehearing.
2. Finally, if the purpose of this suit is to rescind the contract entered into, the complaint
must allege the contract as it was executed, because, as is said in the petition for a
rehearing, that is necessary in any action to rescind."
to rescind. It was evidently this view which induced the application to amend the complaint,
so as to charge fraud in obtaining it. The general rule is that, when parties have committed
their agreements to writing, all oral negotiations and stipulations are embodied in the writing
itself. Now, in this case, while it is contended that the fraud practiced was in obtaining the
contract, the real matter relied upon goes to show an agreement different in terms from that
signed by the parties. This is the veriest sophistry. To sanction this contention would be to
permit the solemn written contract of the parties to be overthrown by showing that the parties
agreed orally to something entirely at variance from the written contract. This cannot be. Of
course, we know that there are instances in which a written contract will be canceled because
of fraud inhering in its execution, but that will be allowed upon a very different state of facts
from those here presented, and on a different theory. A contract obtained by duress or from an
incompetent or by some fraudulent practice in inducing its execution is, among others, an
instance of fraud inhering in the obtaining of the contract. In this case, however, where it is
sought to show a contract contrary to the one reduced to writing, certain things must be
alleged and proven, and, while we did not allude to them in the former opinion, we had in
mind the case of Gage v. Phillips, 21 Nev. 150, 26 Pac. 60, 37 Am. St. Rep. 494, where it is
said:
It is well settled, by a long line of decisions of this court, that, when the parties reduce
their contract to writing, all oral negotiations and stipulations are merged therein.' * * * The
mere statement of the defendant that she did not know what she was signing, when she
signed the bill of sale,' is no excuse in law. In order to be of any benefit to her, she should
have set out in her answer that the paper introduced in evidence was obtained by
misrepresentations of its contents, and that the misrepresentations were false. * * *
When the matter was formerly before us, we were of the impression that the purpose of
filing an amended complaint was to allege that execution of the contract by the plaintiffs
was obtained by false and fraudulent representations as to its terms.
complaint was to allege that execution of the contract by the plaintiffs was obtained by false
and fraudulent representations as to its terms. We concluded this to be the plaintiffs' theory
because it alleged that Cohn, the president of plaintiff companies, who executed it in their
behalf, did not read the contract, and for the further reason that it alleges that Rae falsely and
fraudulently made certain representations, and for the further reason, as we have stated,
respondents in their brief invoked a rule of law in support of that theory. Hence we
announced the rule stated. If, however, we misconceived the theory of respondents, or if they
have shifted their position so that it may be said that it is their contention that the fraud relied
upon was in obtaining the contract, our views concerning amendments during the trial, as
expressed in our original opinion, are equally applicable.
In our former opinion we did not discuss the evidence, but stated generally that there was
no evidence to support the judgment. As we pointed out in the opinion, fraud is never
presumed, but must be clearly and satisfactorily proven. There is such a paucity of evidence
in this case which can be said to raise even a suspicion of fraud that we find it hard to decide
just where to enter upon a consideration of it. If we correctly understand upon just what
theories the plaintiffs rely to establish fraud, they are: (1) That Rae did not intend to comply
with the terms of the contract when it was entered into; and (2) that its execution was
procured by fraud.
Considering the latter contention first, it will be remembered that a contract for the sale of
the properties involved was entered into in 1913, and that on November 11, 1914, the
contract in question, which is set out herein, was executed. Mr. Cohn, after testifying relative
to the contract of sale of 1913, was interrogated relative to the preliminaries to the execution
of the contract assailed in this suit. Referring to the statements made by Mr. Rae as inducing
the contract of November 11, 1914, Mr. Cohn testified: "Q.
Q. And did he tell you what he came for and what proposition he had? A. Yes; the same
thing as before; that he had a deal on for that; he didn't want to miss a deal by sending papers
up and down, and I could trust him, and I always did, and he would protect me, and see I got
my share, my one-half interest, and to sign some papers. That evening we went to Richards
after I closed up. The papers were all ready made out, and laid there, and I signed them, and
walked out with him.
Again he testified:
Q. Well, howwill you tell me what occurred on that second visit? A. Well, the same
story; he had a chance to sell it, and he didn't want to lose a chance; for me to sign; and I
signed. I had such confidence in the man I never asked the second question.
Q. Do you remember any particular points in the conversation? A. That is all he told me.
He came in and told me he had a chance to dispose of the property, and for me to sign up
some papers, and he wanted to know, if I remember right, when I can go. I always told him in
the evening after I close up.
Q. Well, where was that paper signed on the second visit? A. I think at Richards's office
again.
Q. Mr. Rae didn't have it prepared when he first saw you that day, did he? A. Sir?
Q. Did Mr. Rae have the paper with him when you first saw him that day? A. Not that I
know of.
Q. He didn't show you any paper that day, did he? A. I don't think he did.
Q. Did he tell you at that time he would go up to the lawyer's and get the paper drawn? A.
If I recollect right, he said he was getting the paper drawn.
Q. Well, you went up with, didn't you? A. In the evening.
Q. Yes. This paper which is dated November 11, 1914, you signed that without reading it,
didn't you? A. Yes, sir. Hardly ever read the papers he showed me; always signed what papers
he want me to sign, I had such confidence in him.
Q. You are sure you signed that without reading it, didn't you? A. Yes.
Q. Now, Mr. Cohn, on any of these visits, these papers were signed in Mr. Richards's
office, weren't they? A. I believe so.
Q. And the lawyer didn't read them at all? A. No.
Q. Aloud? A. No.
The foregoing is substantially his entire testimony as to the fraud which it is contended
was practiced in obtaining the contract. All that it amounts to is that a contract was sought by
Rae different from the one which was executed. It amounts to nothing more than an attempt
to vary the terms of the written agreement. We assumed in our former opinion that was the
theory of plaintiffs, and pointed out that there was no testimony to the effect that the contract
was not explained to Cohn before it was executed, and, further, that Cohn had possession of
the contract for over six years, and did read it over a few months after it was executed, and
was satisfied with it, and did not bring this suit until 1921. the fact that he was satisfied with
its terms for nearly six years is pretty conclusive evidence that during that time he entertained
no impression that it was obtained by fraud.
3. We come now to the contention that Rae, when he procured the execution of the
contract, perpetrated a fraud, in that he did not intend to comply with its terms at the time it
was executed. There is no evidence upon which such a contention can be maintained. We
may observe that the contract executed is the most liberal one in its terms we have ever read;
but, in view of the conditions which had prevailed for a number of years, we cannot say that
there is anything in this fact to arouse suspicion. The uncontradicted testimony shows that
Rae was indefatigable in his efforts to promote the company to which he conveyed the
property; that he put into it many thousands of dollars of his own money, and sold stock in
the company, which went into its development. He placed upon the property a drag-line
dredge at great expense, which, apparently because it did not prove successful in producing
dividends, is ridiculed by counsel for respondents. Every circumstance shows that Rae sought
over a period of years, at great outlay, to make a dividend producer out of the property.
great outlay, to make a dividend producer out of the property. Nothing that Rae did after the
contract was executed even suggested that he did not enter into the contract in good faith, but
everything goes to just the contrary. But if we look to the terms of the contract itself, and the
circumstances surrounding its execution, we must say there is nothing justifying the
conclusion contended for. The terms of the contract are such that Rae had everything to gain
and nothing to lose by complying with it in good faith. Since its execution, he has been put to
a great expenditure of his time and money in an effort to successfully promote the company.
He labored over a period of more than six years to make a success of the attempted
promotion, without a murmur of protest from Cohn or any one else. Those were lean
yearsyears lacking in promise, so far as practical results were concerned. Finally, a
dredging outfit acquired control of an adjoining property, and thereafter entered into a
contract with the defendant company which gave promise of great reward. Then it was that
Cohn, after a period of more than six satisfied years, awoke to the alleged outrage. We can
account for the verdict and judgment below on no other theory than the admission of
improper evidence in the case. Certainly, there is no competent evidence to sustain the
judgment.
The petition for a rehearing is denied.
____________
47 Nev. 198, 198 (1923) Ex Rel. Goodman v. Greathouse
No. 2617
Ex Rel. GOODMAN v. GREATHOUSE
September 6, 1923. 217 Pac. 957.
1. CorporationsIssuance of Stock Both with and without Par Value Unauthorized.
The general corporation law of March 16, 1903 (sec. 4, par. 4, as amended by Stats. 1923, p. 370),
providing for issuance of stock either with or without par value, does not authorize stock both with and
without par value.
Original proceeding by the State of Nevada, on the relation of Booth B. Goodman and
others, for a writ of mandate against W. G. Greathouse, as Secretary of State. Proceeding
dismissed. Sanders, J., dissenting. Petition for rehearing denied.
Booth B. Goodman, for Petitioners:
The legislature intended to leave it to discretion of incorporators to create any number of
different classes of stock. The proviso regarding stock without par value is intended to apply
where all shares are without par value, but legislature did not intend that same corporation
could not also have shares with par value, and this where stock with par value is preferred
stock.
The practice of creating corporations having common stock without par value and
preferred stock with par value is a modern development, so general and common that
legislature must be presumed to have known of it. No reason can be urged against it. Many
reasons favor it.
Respondent:
We have been unable to find any decision bearing directly on point here involved,
therefore it is necessary to revert to general and elementary principles. A corporation cannot
be formed under general law, except as expressly authorized thereby, and an incorporation act
cannot be extended to cases which are not reasonably within its terms. 14 C. J. 116; People v.
Young Men's Society, 1 N. W. 931.
No corporation can be organized in this state having stock both with and without par
value, unless expressly authorized by section 4 of general corporation law, as amended by
chapter 206, Statutes of 1923.
authorized by section 4 of general corporation law, as amended by chapter 206, Statutes of
1923.
In the twenty or thirty states where corporations may have stock without par value, most, if
not all, specifically provide that there may be both par- and nonpar-value stock, and therefore
no such proceeding as this could possibly arise therein.
Where the secretary is required to see that articles are in proper form, he may not be
compelled to approve such as are improper. 14 C. J. 139.
This is an application by the relators for a writ of mandamus requiring the respondent, as
secretary of state, to file in his office a certain instrument in writing, signed and
acknowledged by relators and designated as articles of incorporation of the Corporation
Company. It appears from the petition that relators propose to form a corporation having
25,000 shares of common stock without par value and 10,000 shares of preferred stock of the
par value of $10 per share. In this respect the articles of incorporation read:
That the amount of total authorized capital stock of the corporation is and shall be as
follows: Twenty-five thousand (25,000) shares of common stock, which said stock shall be
known and designated as common stock and be without par value; also ten thousand (10,000)
shares of stock of the par value of ten ($10) dollars per share, or a total authorized preferred
stock of one hundred thousand ($100,000) dollars, which is and shall be preferred stock. The
last-mentioned preferred stock shall confer the right to fixed cumulative preferred dividends
at the rate of seven (7%) per cent per annum and the right to participate in the surplus profits
of each year ratably with the holders of the common stock, and the right on dissolution or
winding up to repayment of capital of said preferred stock and any arrears of dividends in
preference and priority to common stock, and to participate in any surplus assets which may
remain after paying off the remainder of the capital pari passu with the common stock in
proportion to the amount held.
The question presented is whether, under the laws of this state, a corporation may be
formed having capital stock with and without par value. The formation of corporations in this
state, as to the essential matter to be set forth in the certificates of articles of incorporation, is
governed by paragraph 4 of section 4 of An act providing a general corporation law,
approved March 16, 1903, as amended to 1923. Stats. 1923, p. 370. This paragraph reads as
follows:
The amount of the * * * authorized capital stock of the corporation, which shall not be
less than two thousand dollars; the number of shares into which the same is divided, and the
par value of each share; the amount of subscribed capital stock with which it will commence
business, which shall not be less than one thousand dollars; the amount actually subscribed
and the amount actually paid up, if any, and if there be more than one class of stock created
by the certificate of incorporation, a description of the different classes with the terms on
which the respective classes of stock are created, and the amount of each class subscribed and
the amount paid thereon; provided, corporations may be formed without par value to the
shares of their authorized capital stock, in each of which such cases, in lieu of the foregoing
requirements of this subdivision of this section, it shall be stated: The amount or number of
shares of authorized capital stock to be issued without par value; the number of shares
actually subscribed, and the amount subscribed therefor, which shall not be less than two
thousand shares, and if there be more than one class of stock created by the certificate of
incorporation, the description of the classes so created, and the amount of each class
subscribed, and the amount paid therefor; and upon the organization of any corporation
without par value to the shares of its capital stock, the board of directors may, from time to
time, fix the consideration for which any and all shares, except shares subscribed as aforesaid,
and the terms under which the respective classes of stock, if there shall be more than one
class of stock so created, shall be issued and held; and the consideration or the terms so
fixed, in the absence of fraud, shall be binding and conclusive, and any shares issued
upon compliance with such terms, or upon payment of the consideration so fixed, or the
amount subscribed as aforesaid, shall be held to be fully paid; and provided, that
corporations without par value to their shares formed as aforesaid shall pay to the
secretary of state, for the use of state, the following fees and taxes: For the certificate or
articles of incorporation, one hundred dollars, where such shares do not exceed one
hundred thousand shares, and ten cents for each one thousand shares or fraction thereof
in addition thereto; and for filing other papers relative to incorporation, such further fees
and taxes shall be charged and paid as are now or may hereafter be provided by law;
provided, however, that the provisions of this paragraph shall not apply to corporations
not for profit, for which it is desired to have no capital stock; in case any such corporation
desires to have no capital stock it shall be so stated, and the conditions of membership
shall be also stated."
terms so fixed, in the absence of fraud, shall be binding and conclusive, and any shares issued
upon compliance with such terms, or upon payment of the consideration so fixed, or the
amount subscribed as aforesaid, shall be held to be fully paid; and provided, that corporations
without par value to their shares formed as aforesaid shall pay to the secretary of state, for the
use of state, the following fees and taxes: For the certificate or articles of incorporation, one
hundred dollars, where such shares do not exceed one hundred thousand shares, and ten cents
for each one thousand shares or fraction thereof in addition thereto; and for filing other papers
relative to incorporation, such further fees and taxes shall be charged and paid as are now or
may hereafter be provided by law; provided, however, that the provisions of this paragraph
shall not apply to corporations not for profit, for which it is desired to have no capital stock;
in case any such corporation desires to have no capital stock it shall be so stated, and the
conditions of membership shall be also stated.
By section 3 of the act (3 Rev. Laws, p. 2672, sec. 1107) it is expressly made the duty of
the secretary of state, if the certificate or articles of incorporation are not in the form
prescribed by section 4 of the act, to return the same for correction. It is obvious that there is
no express provision authorizing a corporation to be formed having shares of capital stock
with par value and also shares of capital stock without par value. If the intent to empower a
corporation to have both can be ascertained, it must therefore necessarily appear by
implication. Where is there any language in the paragraph that will serve as a basis for such
an implication? The first part of the paragraph in unmistakable terms requires that all of the
shares of capital stock of a corporation must have a par value. The par value of each must be
set forth in the certificate or articles of incorporation. Such has been the requirement of the
paragraph ever since the passage of the original act in 1903. The first proviso of the
paragraph, which is the result of the amendment of 1923, clearly provides for the formation of
corporations without par value to the shares of their capital stock.
shares of their capital stock. But its terms cannot be construed to authorize forming of a
corporation which designates in its certificate or articles of incorporation both shares of
capital stock with par value and without par value. It provides that the matters to be set forth
in the articles of incorporation of corporations shall be in lieu of those required to be stated in
the articles of incorporation of a corporation having a par value to its shares of capital stock
as provided by the first part of the paragraph. The term in lieu is not equivocal in meaning,
and clearly contemplates that the matters designated in the first part of the paragraph are no
part of those required to be stated in the articles of incorporation by the first proviso. The
latter are to be set forth in the articles in the place of the former.
Now, as to the scope of the first proviso: It reads in part, as we have heretofore set forth:
Corporations may be formed without par value to the shares of their authorized capital
stock, in each of which cases, in lieu of the foregoing requirements of this subdivision of this
section it shall be stated. * * *
This language seems unambiguous. To what does it allude? Unquestionably to the shares
of authorized capital. It does not say a portion of the shares. It alludes to the shares, which
means all of the shares. Again quoting further from the proviso:
Upon the organization of any corporation without par value to the shares of its capital
stock. * * *
What was the legislature dealing with by the terms of the language quoted? It was the
organization of a corporation without par value to the shares of its capital stock. By its
capital stock it clearly referred to all of the capital stock. Quoting from the second proviso
of the paragraph:
* * * And provided, that corporations without par value to their shares formed as
aforesaid, shall pay to the secretary of state, for the use of the state, the following fees and
taxes. * * *
To what does their shares allude? Clearly to the entire capitalization. It cannot refer to a
corporation such as this, in whose behalf it is sought to have the writ issue, for a part of its
capital stock admittedly has a par value.
writ issue, for a part of its capital stock admittedly has a par value. The fourth paragraph of
section 4 and section 10 permit corporations to create two or more classes of stock and it is
insisted that par-value stock and nonpar-value stock are included in the term class of stock
found in the first proviso. In this connection it must be noted that the provision for more than
one class of stock is made in the first part of paragraph 4, which from the time of its
enactment has expressly limited corporations to shares of capital stock of par value only. So,
in respect to the language relied on by relators employed in section 10 of the act, which
empowers corporations to create two or more kinds of stock of such classes, with such
designations, preferences, and voting powers or restrictions or qualifications thereof as shall
be stated and expressed in the certificate or articles of incorporation or in any amendment or
certificate of amendment thereof, this language has been in the corporation act since the
beginning, and could not possibly have had reference to a classification of stock then
unknown to the corporation law. The issuance of nonpar-value stock by a corporation was not
authorized by the statute of any state prior to 1912. Thompson on Corporations (2d ed.),
Cumulative Supplement. It is not to be presumed that the legislature intended to give the term
classes of stock a broader scope in the first proviso of section 4 than in other parts of the
act.
As the articles of incorporation under consideration are not in the form prescribed by said
paragraph 4 of section 4 of the corporation law, it was the duty of the secretary of state to
return the same for correction.
The proceedings must be dismissed.
It is so ordered.
I concur with the conclusion of both my esteemed associates that a corporation organized
under the law of this state cannot have capital stock both with and without par value. And this
seems to be the only question presented, notwithstanding the statement of the learned junior
justice. This seems true for two reasons: First, it is the only point made by the counsel for
the petitioners, as indicated by the following language in his brief:
First, it is the only point made by the counsel for the petitioners, as indicated by the
following language in his brief:
It is the contention of petitioner that the corporation law of the State of Nevada, being
subdivision 4 of section 4, as amended by the 1923 legislature, authorizes the formation of
corporations having stock both with and without par value. This is the only question involved
and presented to the court. * * *
Secondly, for the further reason that it does not seem that any other question can be
presented, in view of the allegations of the petition and the law. The chief justice has quoted
the section of the law which authorizes the formation of corporations and he has quoted the
provision of the certificate of incorporation which designates the character of the stock to be
issued, from which it appears that it is sought to incorporate a company with 25,000 shares of
common stock to be without par value; also, 10,000 shares of the par value of $10 per share.
If this does not contemplate a corporation of both par- and nonpar-value stock, I am unable to
understand the English language.
It is generally recognized that the purpose, at least the reason given for influencing the
legislature in enacting laws authorizing the creation of corporations with nonpar-value stock,
is that the unwary investor may not be misled by the fact that the stock of a corporation has a
par value. In the face of this, it seems too evident to call for comment that the spirit of the law
would be violated if a corporation can be organized with what may be designated
nonpar-value stock and at the same time have a preferred stock with a par value.
Personally, I am of the opinion that the legislature never intended to authorize the
incorporation of a company with such powers, and hence concur with the conclusion reached
by the chief justice.
If the question for determination be as stated, namely, whether, under the laws of this state,
a corporation may be formed having capital stock with and without par value, I should
answer the question, as does the learned chief justice, "No," because it is apparent from
the amendment of subdivision 4 of section 4 of the general corporation law {Stats.
may be formed having capital stock with and without par value, I should answer the question,
as does the learned chief justice, No, because it is apparent from the amendment of
subdivision 4 of section 4 of the general corporation law (Stats. 1923, p. 370) that in any case
in which it is required by law that the par value of the shares of a corporation be stated, but
the shares of such corporation are without nominal or par value, there shall be stated in lieu
thereof that such shares are without par value, and there shall be stated in the certificate:
(a) The amount or number of shares of authorized capital stock to be issued without par
value; (b) the number of shares actually subscribed, and the amount subscribed therefor,
which shall be not less than two thousand shares; (c) and if there be more than one class of
stock created by the certificate of incorporation, the description of the classes so created; (d)
and the amount of each class subscribed, and the amount paid therefor.
Here we are called upon to interpret a certificate which apparently endeavors to state
substantially what is required to be stated in a certificate where the corporators desire to adopt
the method of financing their corporation without any nominal or par value. The certificate
states the number of shares to be issued without par value, the number of shares actually
subscribed, and the amount subscribed therefor. It creates more than one class of stock,
described as common stock without any value, and preferred stock with an expressed par
value. It gives the amount of each class subscribed, and the amount paid or to be paid
therefor. The question is whether the certificate is such a substantial compliance with the law
as entitles it to be filed by the secretary of state.
It is claimed that, as the word par is not used in the proviso, the description of any class
of stock created with an expressed par value vitiates the certificate. True, the word par is
not used, but no other term defining what is meant by the word amount in the phrase, and
the amount of each class subscribed, and the amount paid therefor," is used.
the amount paid therefor, is used. Par value means face value. 3 Bouvier, Law Dictionary, p.
2444. We all know that it is a current phrase expressive of this idea. Conformably with this
understanding of the word par as used in the certificate, it indicates the amount in dollars
which the preference of the preferred shares shall have over any other class of stock created.
Such preference not being negatived, and not being contrary to the statutes of this state, I see
no reason why the certificate should not be filed.
My esteemed associates seem to lose sight of the fact that the only purpose for allowing
the creation of more than one class of stock is to permit the corporators to give to one class
preference over another class, if the corporators so desire.
I think the writ should issue.
October 4, 1923.
Per Curiam:
Rehearing denied.
____________
47 Nev. 207, 207 (1923) Bowman v. Bowman
No. 2581
BOWMAN v. BOWMAN
September 11, 1923. 217 Pac. 1102.
1. JudgmentDefault Judgment May Be Set Aside after Six-Month Period if Notice of
Intention Is Filed within Such Period.
Under Rev. Laws, 5084, permitting the setting aside of a default judgment for answer on the merits,
and, under District Court Rule No. 45, it is sufficient if the notice of intention to move for the vacation of
a default judgment is given and filed within the prescribed six-month period, and unnecessary that the
relief itself be actually granted within such time.
2. JudgmentAuthorizing Setting Aside of Default Judgment Should Be Liberally Construed.
Statute empowering courts to set aside default judgment should be liberally construed.
3. JudgmentAffidavit in Support of Motion to Set Aside Default Judgment May be Made
by Defendant's Counsel.
An affidavit in support of a motion to set aside a default judgment may be made by defendant's
attorney.
4. JudgmentAffidavit in Support of Motion to Set Aside Default Judgment Held Sufficient.
An affidavit by defendant's counsel in support of a motion to set aside a default judgment of divorce
which alleged that defendant had a good and meritorious defense and a cause of action against plaintiff,
held sufficient to apprise the court that if the default and judgment were set aside defendant would answer
on the merits.
5. JudgmentAffidavit in Support of Motion to Set Aside Default Judgment Need Not Aver
Lack of Knowledge of Pendency of Action by Defendant.
An affidavit in support of a motion to set aside a default judgment need not aver that defendant had
no actual notice of the pendency of the action in time to answer, such condition being not a prerequisite
to a right to relief.
6. JudgmentNotice of Intent to Move for Vacation of Default Judgment Held Not Defective.
The fact that the notice of intention to move for the vacation of a default judgment does not ask that
defendant be permitted to answer on the merits of the action, and the fact that the motion was orally made
held not to preclude granting the relief desired, particularly in view of statements in the affidavit that if
the court would allow it defendant would answer on the merits.
Appeal from Sixth Judicial District Court, Humboldt County; J. A. Callahan, Judge.
Action for divorce by Charles Stuart Bowman against Olive Lola Bowman. From an order
overruling plaintiff's objections setting aside and vacating a default judgment and permitting
defendant to answer, plaintiff appeals.
judgment and permitting defendant to answer, plaintiff appeals. Affirmed. Rehearing
denied.
L. O. Hawkins, for Appellant:
Court retains jurisdiction over judgment by default, where personal service was not made
upon defendant, for six months. Rev. Laws, 5084.
Notice of motion is distinct from motion itself, and notice alone is not sufficient, on
appeal, to show making of motion. 23 Cyc. 907, 911, 912; Bettincourt v. Superior Court, 163
Pac. 682.
Motion must not only be made, but it must be submitted and order granting relief must be
made within time limited (Sargent v. Kindred, 67 N. W. 826; McKnight v. Livingston, 1 N.
W. 14), though Osmont v. All Persons, 133 Pac. 482, holds rights of moving party not lost
because court postponed decision.
Though not personally served, defendant must be free from neglect in not appearing and
contesting, if she had actual notice in time to make defense. 23 Cyc. 915, 916; Fullen v.
Wunderlich, 130 Pac. 1007.
Counsel's affidavit, containing no statement of facts, but mere conclusions of law, is
insufficient. Pemberton v. Hoosier, 1 Kan. 108. Mere belief or information is insufficient;
knowledge of facts is necessary. Horton v. New Pass Co., 21 Nev. 184.
Court did not have jurisdiction to set aside judgment, but, even if it did, the moving papers
were insufficient.
J. A. Langwith, for Respondent:
Is any affidavit necessary at all, except some showing that there had never been personal
service of summons and complaint? Rev. Laws, 5084; Howe v. Coldren, 4 Nev. 171. Courts
are very liberal as to necessity of any affidavit at all. None is necessary as to merits.
In direct proceeding to set aside fraudulent decree defendant need not submit himself to
jurisdiction of court nor show meritorious defense (15 R. C. L. 719), that being necessary
only where judgment was taken through inadvertence, mistake, or excusable neglect. Crippen
v. X. Y. Irrigation District, 76 Pac. 794.
The answer was filed in due time, as it was presented to court at time of and before making
motion. 3 Estee's Pleading (4th ed.), sec. 4801; Carver v. Bryant, 102 N. W. 518.
The notice, having been filed and served two days before expiration of six-month period,
was sufficient. District Court Rule 45; Stanton-Thompson Co. v. Crane, 24 Nev. 181.
Rights of moving party are not lost though court postponed decision beyond time limited.
Osmont v. All Persons, 133 Pac. 482; Kishlar v. S. P. Co., 66 Pac. 850.
Notice must be given, but not necessarily heard, within time limited. Albright v.
Warkentin, 2 Pac. 614.
Refusal to set aside default may unjustly sustain ruinous judgment against party having
good defense. Howe v. Coldren, 4 Nev. 171.
In this case there was no carelessness of defendant; she simply was not notified of suit against
her.
On the 17th day of February, 1922, the appellant (plaintiff in the court below) obtained a
decree of divorce from respondent on default. To avoid confusion the parties will be hereafter
referred to as they were designated in the court below. Service of summons was made by
publication. On the 15th day of August, 1922, defendant, by her attorney, served upon the
attorney for the plaintiff a copy of notice of intention to move the court on August 26, 1922,
to set aside and vacate the judgment, and a copy of the affidavit of her attorney in support of
the motion. The notice and affidavit were filed in said cause on the day of service. It was set
out in the notice that the motion to set aside and vacate would be made on the ground that the
summons in said action was not personally served on the defendant; that said summons was
served by publication; and that six months had not elapsed since the rendition of the
judgment.
It was averred in the affidavit, inter alia, that affiant was employed as an attorney for the
defendant on or about the 5th day of August, 1922; that on the affidavit of the plaintiff, in
which it was alleged that the residence of the defendant was at Winchester, Scott County,
State of Illinois, an order was made for the publication of summons and for the deposit in
the United States postoffice of a copy thereof, and a certified copy of the complaint
addressed to the defendant at her said place of residence; that the summons was
published in the Humboldt Star, a newspaper published in Winnemucca, Humboldt
County, Nevada; that one Thos. W. Marris made an affidavit to having deposited in the
United States postoffice at said Winnemucca a copy of the summons and a certified copy
of the complaint addressed to the defendant at said Winchester; and there was no return
of the original summons to the court or the clerk thereof; that affiant is informed and
believes, and on such information and belief alleges, that the defendant never received
the said copy of the summons and complaint, and was never personally served with
summons and a certified copy of the complaint; that she has a good and meritorious
defense and cause of action against the plaintiff; that the affidavit is made in good faith
and for the purpose of having the court set aside and vacate the said judgment, decree,
and default, and to permit the defendant to file her answer and to answer to the merits of
the action.
about the 5th day of August, 1922; that on the affidavit of the plaintiff, in which it was
alleged that the residence of the defendant was at Winchester, Scott County, State of Illinois,
an order was made for the publication of summons and for the deposit in the United States
postoffice of a copy thereof, and a certified copy of the complaint addressed to the defendant
at her said place of residence; that the summons was published in the Humboldt Star, a
newspaper published in Winnemucca, Humboldt County, Nevada; that one Thos. W. Marris
made an affidavit to having deposited in the United States postoffice at said Winnemucca a
copy of the summons and a certified copy of the complaint addressed to the defendant at said
Winchester; and there was no return of the original summons to the court or the clerk thereof;
that affiant is informed and believes, and on such information and belief alleges, that the
defendant never received the said copy of the summons and complaint, and was never
personally served with summons and a certified copy of the complaint; that she has a good
and meritorious defense and cause of action against the plaintiff; that the affidavit is made in
good faith and for the purpose of having the court set aside and vacate the said judgment,
decree, and default, and to permit the defendant to file her answer and to answer to the merits
of the action.
The motion came on for hearing before the court on the 15th day of September, 1922.
Counsel for plaintiff was present and objected to the motion. Thereafter on the 10th day of
October, 1922, the court made and entered the following order:
It is ordered that the objections to the motion be and the same are hereby overruled, and
the judgment, findings, and default rendered in said action are set aside and vacated and the
answer of the defendant tendered at the hearing of said motion is ordered to be filed
forthwith.
The order of the trial court is based upon that part of section 5084 of the Revised Laws
which reads as follows: "And when, from any cause, the summons, and a copy of the
complaint in an action have not been personally served on the defendant the court may
allow, on such terms as may be just, such defendant or his legal representatives, at any
time within six months after the rendition of any judgment in such action, to answer to
the merits of the original action."
And when, from any cause, the summons, and a copy of the complaint in an action have
not been personally served on the defendant the court may allow, on such terms as may be
just, such defendant or his legal representatives, at any time within six months after the
rendition of any judgment in such action, to answer to the merits of the original action.
1. The question presented for determination is whether the giving and filing of the notice
of intention, within the time limited by the statute, gave the court authority, after the
expiration of such time, to vacate its former judgment and permit the defendant to answer.
The learned judge of the trial court was of the opinion that, while the notice of intention to
move is not the same as a motion, still the giving and filing of a notice of intention to move
within the six months after the entry of a judgment on the constructive service satisfies the
statute. The court cited rule 45 of the District Court Rules (24 Pac. xii), which provides inter
alia, that no judgment shall be vacated unless the party desiring such vacation shall give
notice to the adverse party of a motion therefor within six months after the rendition of such
judgment; and also cited the case of Kishlar v. Southern Pacific R. Co., 134 Cal. 636, 66 Pac.
848. In that case, under a statute providing that a party dissatisfied with the costs claimed
may, within five days after notice of filing the bill of costs, file a motion to have the same
taxed by the court in which the judgment was rendered, or by the judge thereof at chambers,
the court held that the serving and filing of written notice of motion to tax the cost bill was
the equivalent of filing a motion, and a sufficient compliance with the statute.
This class of motions was considered by this court in Lind v. Webber, 36 Nev. 623, 640,
134 Pac. 461, 135 Pac. 139, 141 Pac. 458, 50 L. R. A. (N. S.) 1046, Ann. Cas. 1916a, 1202.
The question presented was whether, under rule 34 (24 Pac. xii), which provides that the
party against whom judgment is entered shall have two days after service of a copy of the cost
bill in which to move to retax costs," which rule was in force at the time the order was
made by the district court, and has since been superseded by section 445 of the practice
act {Rev. Laws, 53S7), a notice of motion to retax costs, filed and served within two days
after the service of the cost bill, was sufficient, without actually filing and making in court
within that time a motion to retax.
to move to retax costs, which rule was in force at the time the order was made by the district
court, and has since been superseded by section 445 of the practice act (Rev. Laws, 5387), a
notice of motion to retax costs, filed and served within two days after the service of the cost
bill, was sufficient, without actually filing and making in court within that time a motion to
retax. It was held sufficient. The court said:
If the court were inclined to enforce the literal language of the rule, instead of giving it a
liberal interpretation, it might still be said that by first filing and serving a notice that on a
certain day he will apply to the court or an order a litigant makes a move to retax costs, * * *
but placed its decision on the broad ground that justice will be better served by holding that
notice of the motion was sufficient until the motion was made before the court at the time of
the hearing.'
This phase of the foregoing case is strictly analogous to the case before us, and we
perceive no reason, when the filing and serving of the notice of motion within the time
limited satisfies the rule in that case, why the same action by the defendant in the other is not
a sufficient compliance with the statute.
2. Statutes empowering courts to set aside default judgments are remedial and should be
liberally construed. Howe v. Coldren, 4 Nev. 171. Particularly should the rule of liberality of
construction be employed as to the provisions of a statute like the one under consideration,
which is predicated on the assumption that the defendant may have had no notice of the
commencement of the action. If the provision were construed according to its strict letter, not
only the application for the order granting relief, but the order itself, must be made within the
six-month period. Such a construction would, in many instances, deprive a party without
actual notice of the commencement of the action of the full benefit of the statute.
Accordingly, in regard to similar statutes, the weight of authority is to the effect that an
application for relief within the time limited is sufficient, though the relief is thereafter
granted. This is the rule in California from which our practice act is borrowed.
borrowed. Osmont v. All Persons, 165 Cal. 587, 133 Pac. 480. In the case, supra, the court
said:
The right of a defendant, who has not been served with summons, to have his default
opened is not absolute and unconditional. To secure the enjoyment of this right he must, first,
make timely motion within the year; second, establish that he has a meritorious defense; and,
third, comply with such reasonable terms as the court may impose in granting his motion.
When all this has been satisfactorily shown and done, the right of the moving party does
become absolute, and is not lost because the court postpones its decision upon the motion
until the year has elapsed.
It will be observed that the court, in the decision just quoted from, states that timely
motion within a year is one of the essential conditions to authorize a court to open a
defendant's default, and it is conceded that notice of motion is not a motion. The California
statute differs from ours, however, in that the former expressly provides that application for
relief must be made within the time limited. In the absence of an express requirement of an
actual application within the six-month period, and in view of the liberal rule of construction
applicable by reason of the remedial nature of the statute, we think that its purpose will be
best subserved by holding that the giving and filing of the notice of intention to move within
the time limited were sufficient initiatory steps towards obtaining relief to justify the court in
setting its judgment aside. Defendant's action in this regard was also within the limitations of
rule 45 of the district court rules cited.
3, 4. It is contended that the affidavit filed in support of the motion is insufficient to
warrant the granting of any relief to defendant for the reasons, first, that it should have been
made by her and not her attorney, and, second, that it is not an affidavit of merits, and does
not show that during the pendency of the action defendant had no actual notice thereof in time
to appear and defend the action. We perceive no reason why the attorney could not make the
affidavit as well as the defendant, if he was familiar with the facts (Howe v. Coldren, 4 Nev.
171
Coldren, 4 Nev. 171), and there is also enough appearing from the affidavit to apprise the
court that, if the default and judgment were set aside, defendant would answer to the merits of
the original action. Moreover, an answer was tendered at the hearing of the motion and
ordered filed by the court. The affidavit of the attorney for the defendant is stronger than the
one made by the attorney in Howe v. Coldren, supra, which was held sufficient. In that case,
in regard to the defense it was merely averred that the defendant had a good legal and
meritorious defense to the action. It does not disclose the sources of the affiant's information.
In the instant case it appears from the affidavit that the affiant's information as to the merits of
the defense was obtained from the defendant, and affiant alleges that she has a good and
meritorious defense and cause of action against the plaintiff. The lower court deemed it
sufficient, and we cannot say that there was any abuse of discretion in this regard.
5. The affidavit is not defective in that it is not averred therein that the defendant had no
actual notice of the pendency of the action in time to answer. If our statute made lack of
actual notice one of the conditions for setting aside a judgment when the defendant had not
been personally served with summons in the action, as do the statutes of the states from
which authority has been cited by appellantfor instance, Kansas and Nebraskaan
affidavit failing to aver lack of actual notice would be insufficient. But it expresses no such
condition. While some of the authorities cited by appellant hold to the contrary on statutes
similar to ours, we cannot concur in such a construction. The statute gives a defendant, under
prescribed conditions, the right to answer to the merits. Lack of actual notice is not one of
them. Upon this point the Supreme Court of California has held contrary to plaintiff's
contention. The court, after pointing out the distinction between the latter clause of the statute
and the preceding clause, where the claim for defense is made on account of mistake,
inadvertence, surprise, or inexcusable neglect, said: "No such showing is required in the
case of a defendant served by publication only.
No such showing is required in the case of a defendant served by publication only. This
difference in the requirements shows the different scope and purpose of the respective
provisions. Under the latter clause the defendant need not present any excuse for his failure to
appear except the fact that he was not personally served with the summons. It is manifest that
in the majority of cases it would be utterly futile to require any further showing, for he would
be ignorant of the entire proceeding, so far as any actual notice is concerned. Accordingly it is
said that there is no presumption against him of lack of diligence in interposing his defense,
as in a case where he was personally served.' Frankoviz v. Ireland, 35 Minn. 278, 28 N. W.
508. This is the key to the different effect of the two clauses. In the case where he is
personally served, if he fails to appear in due time through mistake, surprise, inadvertence, or
excusable neglect, when in fact he had a good defense, he is required to set forth in his
application for relief the circumstance which caused his lack of diligence. Where he has had
no personal service, there is, with respect to his right to relief in such cases, no presumption
of knowledge or inexcusable negligence on his part and he is only required to show the lack
of personal service. If there was any neglect on his part to the injury of the opposite party,
which would make it inequitable to grant him the relief, proof of such neglect and of the
circumstances causing injury must come from the plaintiff. Gray v. Lawlor, 151 Cal. 352, 90
Pac. 691, 12 Ann. Cas. 990.
The court quotes approvingly an extract from 1 Freeman on Jurisprudence (4th ed.), sec.
105, p. 154, as follows:
On complying with the conditions of the statute, the moving party secures an absolute
right to have the judgment opened, which the court has no discretion to deny.
In this respect this court seems to have already taken the same view of the statute that we
do. In Stanton-Thompson Co. v. Crane, 24 Nev. 171, 181, 51 Pac. 116, 118, the court said:
"We must hold that under the last clause of section 6S of our practice act, above cited, the
clause upon which the action of the court in this case is manifestly based, the
respondents were not guilty of laches in this proceeding, as that clause confers upon the
respondent the right at any time within six months after the rendition of the judgment, to
answer to the merits of the action, where from any cause the summons and copy of the
complaint have not been personally served upon them.
We must hold that under the last clause of section 68 of our practice act, above cited, the
clause upon which the action of the court in this case is manifestly based, the respondents
were not guilty of laches in this proceeding, as that clause confers upon the respondent the
right at any time within six months after the rendition of the judgment, to answer to the merits
of the action, where from any cause the summons and copy of the complaint have not been
personally served upon them. This proceeding was commenced within the time limited by
that clause.
6. There is no merit in the contention that the application was insufficient, because in the
notice thereof it was not asked that defendant be permitted to answer to the merits of the
action, and that the motion was made orally. The filing of a written motion for relief under
the clause of the statute under consideration is not required by any statute or rule of court.
The notice of intention to move served on counsel for plaintiff stated that the defendant
would ask that judgment entered by default against her in this action, and all subsequent
proceedings therein, be set aside and vacated. The affidavit, a copy of which was served with
the notice stated that, if the court will allow this defendant or her legal representative to do
so, she will answer to the merits of the original action. This was sufficient to prevent
plaintiff from being misled as to the ultimate purpose of the motion.
The orders of the lower court in overruling plaintiff's objections to the motion and in
setting aside and vacating the judgment, findings, and default in the action, and permitting the
answer of defendant to be filed, are affirmed.
It is so ordered.
March 10, 1924.
Per Curiam:
Rehearing denied.
____________
47 Nev. 217, 217 (1923) Sorge v. Sierra Auto Supply Company
No. 2583
SORGE v. SIERRA AUTO SUPPLY COMPANY
October 4, 1923. 218 Pac. 735.
1. CorporationsMortgage Authorized at Meeting of All Directors Held Binding though No
Notice of Meeting Given.
Where execution of corporate note and mortgage was authorized by resolution adopted at meeting of
board of directors at which all directors were present, though not held pursuant to notice, and note and
mortgage actually executed were examined by the directors at such meeting, they were valid and binding,
and provision therein for reasonable attorney's fee was authorized.
2. CorporationsThat Minutes of Meeting at which Mortgage Authorized Not Written Up
and Attested Does not Defeat Mortgage.
That minutes of meeting of board of directors, at which corporate mortgage was authorized, were not
written up and attested by the officers, cannot be invoked to defeat the mortgage.
3. CorporationsProvisions for Attorney's Fee Not Enforceable when Mortgage Not
Authorized by All Directors at Meeting Held without Notice.
Where note and mortgage were not authorized at meeting of corporate directors of which notice was
given or which all trustees attended, and their execution had not been ratified, provision therein for
reasonable attorney's fee upon foreclosure was unenforceable.
Suit by Nick Sorge against the Sierra Auto Supply Company and others. From a judgment
for plaintiff, the defendant Fred Stadtmuller, as trustee in bankruptcy of the Sierra Auto
Supply Company, appeals. Remanded for modification. Petition for rehearing denied.
Price & Hawkins, for Appellant Stadtmuller:
Where a corporate resolution authorizing borrowing of money and execution of note and
mortgage does not expressly authorize attorney's fees, such fees are not recoverable. Defanti
v. Allen Clark Co., 45 Nev. 120; Harden v. I. R. & C., 43 N. W. 544.
Trustees represent corporation only when assembled together and acting as board.
together and acting as board. Yellow Jacket M. Co. v. Stevenson, 5 Nev. 232; Rev. Laws,
1127.
A board of directors should act in official meetings, and by its records. Being only
artificial, corporation can act only in manner provided by law. A corporation may by custom
become estopped and it may be held for acts of its officers ultra vires when it ratifies them, or
receives benefits of unauthorized acts. Star Mills v. Bailey, 130 S. W. 1079.
According to Prescott v. Grady, 27 Pac. 756, attorney's fees are damages resulting from
breach of special contract, and should be specially averred.
W. M. Kearney, for Respondent:
The ruling in Defanti case, on which counsel so strongly rely, was apparently made
because there were no facts upon which lower court could have found ratification, estoppel,
or approval of mortgages by board as to form, such as we find in case at bar, and the very
pertinent reservations of court in Thomas v. Wentworth, 117 Pac. 1041, where similar
situation arose, indicate clearly that rule stated in Defanti case refers only to abstract
proposition of law when standing alone, and that, if evidence had shown that it was usual and
customary for officers to execute mortgages providing for payment of attorney's fees, court
would have allowed them.
In Gribble v. Columbus Brewing Co., 35 Pac. 530, where facts were very similar to those
in instant case, the court said: The note and mortgage were such as corporation had right to
authorize, and consequently were not ultra vires. If all persons in corporation having right to
object to unauthorized act knowingly acquiesce in it, contract is as binding as if originally
authorized. Taylor, Corporations, sec. 211.
In Gribble case, Harden v. Ry. Co., cited by counsel, was construed and distinguished and
court refused to follow it, though facts are not nearly so strong on ratification or estoppel as in
case at bar.
Lack of formality of corporate procedure does not invalidate corporate act where there has
been ratification. Murray v. Beal, 65 Pac. 726; 4 Thompson, Corporations, par. 4624.
In absence of evidence to contrary it will be presumed that corporation's note and
mortgage were authorized at lawful meeting of board. Clark Realty Co. v. Douglas, 46 Nev.
378; 4 Thompson, Corporations, 5105.
Mortgage by corporation is not invalid merely because of some informality in corporate
procedure. Bank v. Coats, 205 Fed. 618.
Informality of corporate acts does not affect third persons acting in good faith with
corporation. Miners Ditch Co. v. Zellerbach, 37 Cal. 543.
If all directors happen to be together and agree to hold meeting for particular object within
their jurisdiction, their action cannot be impeached for want of notice of meeting. Chase v.
Tuttle, 12 Atl. 874.
Where it has been custom of corporation to function without minutes, it is bound
nevertheless by its acts. City Elec. Co. v. Bank, 34 S. W. 89.
There is but one question presented on this appeal, and that is whether the trial court erred
in adjudging the plaintiff in the foreclosure of a mortgage to be entitled to recover an
attorney's fee. In determining this question we need consider only the contention of the
appellants that the defendant corporation did not authorize its officers to embody in the notes
and mortgages executed the provision therein contained authorizing a court, in case of
foreclosure, to award to the mortgagee such fee. On this point the facts are few. The
defendant company executed two notes, one for $20,000, dated May 6, 1920, and another for
$4,000, dated May 20, 1921, both containing the following provision:
And in case suit or action is instituted to collect this note, or any portion thereof, we
promise and agree to pay, in addition to the costs and disbursements provided by statute,
such additional sum in like lawful money of the United States, as the court may adjudge
reasonable for attorney's fees to be allowed in said suit or action."
to pay, in addition to the costs and disbursements provided by statute, such additional sum in
like lawful money of the United States, as the court may adjudge reasonable for attorney's
fees to be allowed in said suit or action.
These notes were secured by mortgages containing provisions to the effect that in case of
foreclosure thereof the court should adjudge the plaintiff to be entitled to recover such a sum
as attorney's fee as it might deem reasonable.
The only defendant which appeared in the trial court and contested plaintiff's right to an
attorney's fee is the defendant, Fred Stadtmuller, at trustee, etc. From a judgment in favor of
plaintiff, he has appealed.
1. Counsel for appellant insist that the judgment must be reversed for the reason that there
was no meeting of the trustees of the defendant company, duly called, at which the officers of
the company were authorized to execute the note and mortgage in question. No contention is
made as to the incorrectness of the judgment as to the money loaned since the company
received the benefit thereof, but upon authority of Defanti v. Clark, 45 Nev. 120, 198 Pac.
549, it is said that the court erred in awarding the plaintiff an attorney's fee. We do not think
that case is in point. There is a wide difference between the facts in that case and in the
instant one. In that case we held that Defanti could not recover attorney's fee for the reason
that there was no legal meeting of the board of trustees authorizing the execution of the note
and mortgage, and that no such transaction had ever been ratified. In that case there was no
meeting of the board of trustees at which all the trustees were present and acting, whereas in
the instant case, so far as the $20,000 note and mortgage are concerned, they were all present
and acting. It is true it does not appear that a meeting was held pursuant to notice, but they all
assembled, for the sole purpose evidently of considering the proposition of borrowing the
money obtained and of giving a note and mortgage to secure the payment thereof.
to secure the payment thereof. The trustees knew that the company could not get the desired
money unless these papers were authorized. The note and mortgage had been prepared by an
attorney for the respondent. They embodied the terms and conditions upon which respondent
was willing to part with the money. There is in evidence a resolution purporting to have been
adopted at a meeting of the board of directors of the defendant company on May 6, which
authorizes the officers of the company to borrow from Nick Sorge the sum of $20,000 on
behalf of the company and to execute a note therefor and a mortgage to secure the same. The
evidence shows that at the meeting at which the resolution mentioned was adopted the note
and mortgage to which we have referred, and which were sued upon, were read over by all of
the directors, and their execution authorized. It was the particular note and mortgage in
question here which the board of directors were acting upon. In such circumstances we see no
escape from the conclusion that the note and mortgage in question are valid and binding in
every particular. In Hubbard v. University Bank of Los Angeles, 125 Cal. 684, 58 Pac. 297,
the court said:
The averments above quoted are sufficient to charge the corporation with the execution of
this particular mortgage, and, as they are not denied, the defendants are bound by them.
This holding seems to be squarely in point and decisive of the contention made.
2. It is said that the evidence does not show that the board of directors acted as such. The
resolution adopted confutes this contention. The fact that the minutes of the meeting were not
written up and attested by the officers of the company is not a circumstance which can be
invoked to defeat the mortgage given pursuant to the resolution.
3. The $4,000 note and mortgage were not authorized at a meeting of which notice was
given or at which all of the trustees attended, nor has the execution thereof been ratified.
been ratified. That note and mortgage are controlled by the law as declared in the Defanti
case, supra. It follows that the court could not take into consideration in fixing an attorney's
fee the services rendered in the foreclosing of the $4,000 note.
It is ordered that the case be remanded, and that the trial court modify its judgment in
accordance with the views above expressed.
January 5, 1924. 221 Pac. 521.
1. Appeal and ErrorJudgment for Lump Sum Properly Modified on Appeal where One of
Causes of Action Not Established.
Where the court in rendering judgment for attorney's fees did so for a lump sum,
instead of apportioning a certain amount for each mortgage foreclosed, the judgment
was properly modified on appeal, where one of the causes of action as to attorney's fees
was not established.
2. Appeal and ErrorUpon Appeal, Supreme Court May Modify Judgment though an
Entirety.
That a judgment is an entirety does not affect the power of the supreme court upon
the hearing of an appeal, in view of Rev. Laws, 5359, to modify the judgment, or affirm
it as to some issues and reverse it as to others.
On petition for rehearing. Petition denied.
W. M. Kearney, for Petitioner:
If there is any evidence to support judgment it will not be reversed upon appeal. Jones v.
West End M. Co., 36 Nev. 149; Jensen v. Pradere, 39 Nev. 446.
Where objection that amount of recovery is excessive is not made basis of motion for new
trial it is not available on appeal. Livermore v. Stine, 43 Cal. 372; Graham v. Yates, 128 Pac.
119; Forrester v. S. P. Co., 36 Nev. 248.
A verdict cannot be reduced on ground of excessive damages, unless new trial can properly
be granted on that ground. Van Fleet v. O'Neil, 44 Nev. 216.
The jury are proper judges of value of professional services, and verdict will not be interfered
with unless jury were misled. Rose v. Spies, 44 Mo. 20.
Price & Hawkins, for Appellants:
New trials or rehearings should not be granted unless there is a reasonable probability that
court erred or overlooked some important question. Copeland v. Woodbury, 17 Nev. 337.
Rehearings are not granted as matter of right. Pershing County v. Humboldt County, 43 Nev.
78.
Proper proceeding to protect appellant is by motion therefor, not petition for rehearing.
Studebaker Co. v. Witcher, 44 Nev. 468.
A petition for rehearing has been presented by the respondent. He makes two points: First,
that the court erred in its conclusion as to the $4,000 mortgage; and, second, assuming that no
error was committed in the respect mentioned, the order made was not justified. As to the
first proposition urged, we are altogether satisfied with what was said in the opinion.
1. There is no greater merit in the other contention than in the one just disposed of, but
counsel has argued it at great length in his petition, and we will endeavor briefly to clarify the
matter. His point is that, since the court, in rendering the judgment, did so for a lump sum,
instead of apportioning a certain amount for services in foreclosing the $20,000 mortgage,
and an amount for the $4,000 mortgage, if there is any evidence to support the judgment it
will not be reversed upon appeal, citing to support this contention Jones v. West End M.
Co., 36 Nev. 149, 134 Pac. 104, and Jensen v. Pradere, 39 Nev. 466, 159 Pac. 54. We do not
think either of the cases bear out the contention. The evidence in the cases mentioned was
conflicting, and this court refused to disturb the judgment because there was substantial
evidence to support it. But if the decisions sustained the contention made in the quoted
matter, they would not apply to the situation in hand wherein we held, in substance, that one
of the causes of action as to the attorney's fees was not established by the evidence, the
mortgage not having been authorized.
2. It is further contended that, since the judgment was for a lump sum, the appeal being
from the judgment as an entirety, we had no authority to order a modification, even though
the $4,000 mortgage was never authorized by the corporation. This court, in State v. C. P. R.
R. Co., 21 Nev. 172, 26 Pac. 225, held:
A party may appeal from the whole or any part of a judgment (Gen. Stat. 3353; Hayne,
New Trials & App. 185); and upon the hearing of an appeal, the supreme court may reverse,
affirm, or modify a judgment, or affirm it as to some issues and reverse as to others (Gen.
Stat. 3361; Hayne, New Trials & App. 295).
See, also, section 5359 of the Revised Laws.
It is ordered that the petition be denied.
____________
47 Nev. 224, 224 (1923) State v. Cudney
No. 2593
STATE v. CUDNEY
October 4, 1923. 218 Pac. 736.
1. LarcenyAllegation of Ownership in One Whom Proof Showed Was Only Lawful
Custodian Held Not Fatal Variance.
Where an indictment lays the ownership of stolen property in one who is its lawful custodian, it is not
a fatal variance if the proof shows the legal title was in some one other than this custodian.
2. Criminal LawOfficers' Testimony as to what Defendant's Wife Said when Warrant Was
Read Held Not Prejudicial.
In a prosecution for larceny of wool left on the highway, allowing officers to testify that, when the
warrant was read, defendant's wife said that they were not going to have time to advertise, held not
prejudicial, in view of defendant's testimony that he intended to advertise for the owner.
3. LarcenyWhether Property Left on Highway Taken with Felonious Intent Held for Jury.
In a prosecution for larceny of wool left on the highway, whether the wool was originally taken with
felonious intent held for the jury to determine, from the facts and circumstances preceding, attending, and
following the finding.
4. LarcenyFinding of Conversion with Felonious Intent of Wool Left on Highway Not
Disturbed.
In a prosecution for larceny of wool left on a highway, though the evidence failed to show that
defendant knew owner, or had notice at the time he took the wool of any mark furnishing immediate
means of finding owner, a finding that defendant converted the wool with felonious intent was not
disturbed.
5. Criminal LawImproper Instruction Not Objected to Not Examined on Appeal.
Where no objection was imposed by defendant to the giving of an instruction violating criminal
practice act, sec. 310 (Rev. Laws, 7160), as amended by Stats. 1915, c. 157, providing that no special
instruction shall be given relating exclusively to defendant's testimony, and no advantage was taken of it
on appeal, the supreme court will not examine the instruction.
Appeal from Fourth Judicial District Court, Elko County; Wm. E. Orr, Judge.
Frank Cudney was convicted of larceny, and he appeals. Affirmed.
James Byers, for Appellant:
It was error to admit declaration of Mrs. Cudney that she and her husband were going to
town next day to advertise wool. This declaration was used against appellant to show that
letter in case was not written and mailed, according to his testimony, and it was highly
prejudicial to appellant, because she stood in matter as a stranger and appellant was not called
upon to make reply, and because appellant was then practically under arrest and was not
required to speak. 1 R. C. L. 479, 480. The remarks were not addressed to appellant, and he
could not have understood necessity of his making reply. 22 C. J. 325; Com. v. Kenney, 12
Met. (Mass.) 235. The evidence was hearsay and appellant was deprived of having witness
produced in court, and deprived of right of cross-examination. A person against whom
witness testifies has right of cross-examination. Florence v. Calumet, 96 Pac. 183.
A wide range of cross-examination is allowed. Motives of witness may be shown in
estimating his credibility. 8 L. R. A. (N. S.) 509. Any question may be put tending to show
his bias. State v. Krum, 4 Pac. 621; Greenleaf, sec. 450.
Felonious intent must be shown to exist at time of taking. State v. Clifford, 14 Nev. 72.
Where title to stolen goods is disputed, instruction which assumes that they belonged to
person named in indictment is erroneous. Hix v. People, 41 N. E. 862.
There is a wide difference between taking lost goods and theft of other property. State v.
Hays, 67 N. W. 674.
Mere taking and keeping of property, without any destruction or appropriation of it, is not
evil act. Allen v. State, 24 Am. St. Rep. 858; 1 Bishop, Criminal Law (5th ed.), sec. 325; 2
Idem, sec. 882.
Criminal intent must unite with overt act, and they must occur in point of time. Only when
original taking was with criminal intent will the conversion be larceny. 8 Am. & Eng. Ency.
Law, 285. Bare intention is not punishable. Idem, 291, 292. If a reasonable hypothesis,
consistent with innocence, may be gathered from evidence, verdict of guilty ought not to be
returned. State v. Thompson, 31 Nev. 218.
Castle, Diskin, and Powell, for Respondent:
Mrs. Cudney, being present, was an accomplice, and not a stranger to transaction. While
spouses cannot testify against each other, declarations of either may be introduced against
accused. 1 R. C. L. 518; Rice v. State, 112 S. W. 299. Declarations of wife in presence of
husband that stolen property belonged to him, admissible. State v. Record, 65 S. E. 1010.
Section 7542 of our law is repealed by Stats. 1921, p. 106, so that wife's declarations are
admissible against husband.
It was duty of husband to speak and correct false statements of wife made to shield him.
State v. Record, supra.
Cross-examination upon any subject not referred to on direct is within discretion of court,
and exercise of that discretion is not reversible on writ of error. Harold v. Territory, 10 L. R.
A. (N. S.) 604; Wharton's Crim. Law (10th ed.), 1012.
Where witness testified to all the facts inquired about, and his conclusions were properly
excluded, it was for jury to draw its conclusions as to bias, etc. The witness admitted animus
after crime was committed, and gave his reasons therefor, and any further testimony
concerning it was properly excluded.
Objection was sustained to one question, but as counsel saved no exception, no error was
committed.
The particular ground of objection or exception must be stated in order to make ruling
reversible on appeal. State v. Mangana, 33 Nev. 511.
Allegation in indictment of special or general ownership is sufficient. Wharton, Crim. Law
(11th ed.), 1400. To constitute larceny it is not necessary that person taking property knew or
had reason to believe property belonged to some certain person. Brooks v. State, 35 Ohio St.
49.
Frank Cudney was informed against, tried, and convicted of having stolen, on the 17th day
of May, 1922, a bag of wool weighing 325 pounds, of the value of $104, the personal goods
and property of Frank Harmer. The facts are substantially as follows:
On the 17th day of May, 1922, Frank Harmer was engaged in the auto freight business,
and had been employed by Joe Sustacho to haul a number of bags of wool from Hennen's
sheep-shearing corral, in Elko County, into the city of Elko, to be delivered at the Western
Pacific depot. When he reached a point on the Elko-Lamoille highway, on the outskirts of the
city of Elko, the bag of wool, alleged to have been stolen, fell from his truck. He made no
attempt, because of its weight, to replace it, left it in the highway, and went on with his load
into Elko, with the intention of returning. When he returned, four or five hours later, to get
the bag of wool, he did not find it. Harmer claimed that the bag bore a brand mark, Circle
H, stamped on the bag by one of the men who had assisted in loading it upon his truck; that
there was a three-cornered tear in the bag, six or seven inches one way and about four inches
the other. On cross-examination he testified that the wool belonged to Joe Sustacho, and a
partner of his, whose name he did not know. A Mr. Hennen, a witness for the defendant,
testified that Joe Sustacho had associated with him in the sheep business Raphael M. Gambo
and Frisco Gotea. No owner was called as a witness in the case.
Harmer, upon inquiry, was informed that a bag of wool had been seen on an automobile,
which answered the description of Frank Cudney's, on the night of the 17th of May, and
upon this information, without notice to Cudney, on the 19th of May, he obtained a search
warrant accusing Cudney of the theft of the wool, and caused the same to be delivered
into the hands of the sheriff of Elko County to be executed.
the description of Frank Cudney's, on the night of the 17th of May, and upon this information,
without notice to Cudney, on the 19th of May, he obtained a search warrant accusing Cudney
of the theft of the wool, and caused the same to be delivered into the hands of the sheriff of
Elko County to be executed. The sheriff and his undersheriff, on the afternoon of the 19th,
went to the premises of Cudney, described in the warrant as being Cudney's road house,
situate about eight miles distant from the city of Elko on the Lamoille road, to execute the
warrant. When Cudney was informed by the sheriff that he had a warrant to search his place
for wool, Cudney said, Wool? The sheriff said, Yes; do you want the warrant read?
Cudney answered, Yes. Both officers testified that Mrs. Cudney then appeared and wanted
to know what the trouble was; that when informed she said, You see they are not going to
give us time to go in tomorrow and advertise; or, as expressed by the undersheriff, Now,
you see they don't intend to give us a chance to advertise that wool; we were going to town
tomorrow and advertise it. Upon reading the warrant, Cudney led the officers to the wool,
which was in thirteen small sacks, covered with hay, in the manger of his barn, and pointed
out to them the bag from which it had been taken, hanging on a fence near by. The officer
brought the wool into Elko. Cudney was afterwards arrested, taken before a justice of the
peace, and bound over to the district court.
Upon the trial Cudney offered himself as a witness in his own behalf, and admitted that on
the night of the 17th of May, about the hour of 10 o'clock, when in company with his wife
and boy, returning from Elko, he saw the bag of wool in the highway, stopped his automobile,
examined the bag, withdrew a number of pelts through the tear in the bag, and loaded it on
his car and drove home; that at the time he first took the wool he did not see any mark upon
the bag or pelts, but afterwards discovered that the bag bore the brand mark Circle H,
which did not mean anything to him, as it was indistinct and could not be made out.
was indistinct and could not be made out. He claimed that he afterwards put the wool into
thirteen small sacks and placed it in the manger in his barn; that, the weather being rainy and
his barn leaky, his boy covered the sacks with hay, but not so as to completely conceal them.
He claimed that he had no intention of stealing the wool and that he intended to advertise it.
In connection with his testimony a letter, bearing date of the 18th of May, written by Mrs.
Cudney and directed to the Elko Independent, was introduced in evidence, which reads as
follows:
Editor IndependentDear Sir: Will you please insert this ad. in Sat. issue Found one
sack of wool on Lamoille road, inquire of Frank Cudney. Owner pay adv.' I will pay for this
ad. Sat. when I come to town.
The editor of the newspaper produced on the trial the envelope and letter, showing that the
letter was posted in the postoffice at Elko on May 19, 3:30 p.m. Other circumstances were
detailed by the witness Cudney, tending to show his good faith in the matter and that he had
no intention of stealing the wool, and that his prosecution was prompted by ill-will and
malice on the part of Harmer. The jury returned a verdict of guilty, and the court, upon
overruling his motion for a new trial, pronounced judgment upon the verdict and sentenced
the defendant to state's prison for a period of not less than two years nor more than fourteen
years, where he is now incarcerated. The defendant has appealed from the order denying his
motion for a new trial and from the judgment.
When the state had concluded its case in chief, the defendant moved for a directed verdict
and dismissal, upon the ground that there was a material variance between the ownership as
charged in the information and that proved. The motion was denied. In this connection the
jury was instructed to the effect that, if they believed from the evidence that the bag of wool
alleged to have been stolen was the property of Frank Harmer, or in the possession and
under the control of said Frank Harmer," the defendant should be found guilty as charged
in the information.
Frank Harmer, the defendant should be found guilty as charged in the information. The
ruling on the motion and the instruction are assigned as error. They may be considered
together.
1. From the instruction the court evidently was of opinion that there was not a material
variance in the ownership as charged and that proved. Undoubtedly the property was not that
of Frank Harmer, as alleged; but the proof shows that he was its lawful custodian and entitled
to its possession. As against the defendant this was sufficient. 17 Ruling Case Law, p. 67; 2
Brill, Ency. Crim. Laws, sec. 751; 3 Bishop, New Crim. Proc. (2d ed.), secs. 720, 721; 3
Wharton, Crim. Law (11th ed.), sec. 1170. In a case of robbery (State v. Ah Loi, 5 Nev. 99) it
was held that, if the person robbed have a general or special property in, or a right to the
possession of, the goods taken, it is sufficient; otherwise, the statute would be defeated. We
extend the rule to a case of larceny, and hold that the statute defining larceny would be
defeated, if there could be no larceny, except when property is taken from the absolute owner.
Where an indictment lays the ownership of stolen property in one who is its lawful
custodian and entitled to its possession, * * * it is not a fatal variance if the proof shows that
the legal title to the property was in some one other than the person in whose possession it
was and who had the care and management of it. Parker v. State, 75 Fla. 741, 78 South. 980,
2 Am. Law. Rep. 350.
The motion for a directed verdict upon the ground of variance was properly overruled, and,
while the instruction relating to ownership is crudely drafted, it was not erroneous.
2. It is urged on behalf of appellant that the court erred in permitting the officers to state
what the wife of the defendant said when the search warrant was read to her husband. It is
contended that the wife's statements were not binding upon the defendant and were highly
prejudicial. If there was error in their admission, it was cured by the subsequent testimony of
the defendant, which was to the effect that it was his intention to advertise the wool, and
through his wife he had endeavored to do so in good faith, and that he had no intention of
stealing the property at the time it was found, or afterwards.
defendant, which was to the effect that it was his intention to advertise the wool, and through
his wife he had endeavored to do so in good faith, and that he had no intention of stealing the
property at the time it was found, or afterwards. The wife's statements were in entire accord
with her husband's defense, and, if believed, were helpful, rather than prejudicial.
It is claimed that the defendant was unduly restricted in his cross-examination of the
complaining witness, Frank Harmer, in his endeavor to show by the witness that his
prosecution of the defendant was the result of ill-will and malice, and without probable cause.
On the contrary, we are impressed that counsel for the defendant was permitted to press his
privilege to the limit, and it was only when he transcended the legitimate scope of
cross-examination that the court called a halt.
The appellant questions the correctness of certain instructions upon the facts necessary to
justify a conviction of the finder of lost property of the crime of larceny. No point is made
that the property alleged to have been stolen was not actually lost, and the case seems to have
been tried upon the assumption that the defendant when he first took the property reasonably
supposed it to have been actually lost. The court's directions to the jury embodied the
principles of law applicable to the larceny of property found in the highway, stated generally
in the case of State v. Clifford, 14 Nev. 72, 33 Am. Rep. 526, to be as follows:
When property is found in the highway, and the finder knows the owner, or there be any
mark upon it by which the owner may be ascertained, and the finder instead of restoring it
converts it to his own use, such conversion will constitute a felonious taking. If there be no
notice of the owner at the time of finding, yet if there be a felonious intention to appropriate
the property, coupled with a reasonable belief that the owner could be found, it would be
larceny. But the finder of lost property who takes possession of it not intending to steal it at
the time of the original taking, is not rendered guilty of larceny by any subsequent felonious
intention to convert it to his own use.
None of the instructions given to the jury was at variance with these rules, and while error
is assigned to the court's refusal to give certain instructions requested by the defendant upon
the subject of the larceny of property found in the highway, we conclude from the reasons
endorsed upon the instructions for their refusal that they were properly refused.
3. It is strongly urged that, under the law applicable to the undisputed facts and
circumstances in evidence, the jury was not justified in finding a felonious intent on the part
of the defendant. In a case of this kind, the question whether the property was originally taken
with a felonious intent is always a question of fact, and usually the principal one, for the jury
to determine. In this, as in any other case, the felonious intent may be inferred from the facts
and circumstances preceding, attending, and following the finding of the property. Ransom v.
State, 22 Conn, 153; Allen v. State, 91 Ala. 19, 8 South. 665, 24 Am. St. Rep. 856; Com. v.
Titus, 116 Mass. 42, 17 Am. Rep. 138.
4. Even though the evidence fails to show that the defendant knew the owner of the bag of
wool, and that he had notice at the time he took it by any mark upon it furnishing immediate
means of finding who the owner was, still the question of whether the defendant appropriated
the wool and converted it to his own use with a felonious intent, coupled with a reasonable
belief that the owner could be found, was fairly found against the defendant, and we are in no
position to substitute our judgment for that of the jury, if we felt so inclined.
5. It appears that by a singular oversight the learned and high-minded judge who presided
on the trial of this case gave an instruction in violation of section 310 of the criminal practice
act (Rev. Laws, 7160), as amended (Stats. 1915, p. 191), which provides that no special
instruction shall be given relating exclusively to the testimony of the defendant, or
particularly directing the attention of the jury to the defendant's testimony. No objection was
interposed by the defendant to the giving of the instruction, and no advantage is taken of it on
this appeal.
of it on this appeal. This being true, and the statute having been enacted for the benefit of
defendant, we decline to examine the instruction.
The judgment and order appealed from are affirmed.
____________
47 Nev. 233, 233 (1923) State v. Holt
No. 2576
STATE v. HOLT
November 1, 1923. 219 Pac. 557.
1. Criminal LawAccused Held to Have Waived Right to Formal Written Complaint Other
than Verdict of Coroner's Jury if it Was Required.
If the verdict of the coroner's jury is not a complaint charging a crime within Rev. Laws, 7551, and
that statute does not contemplate the holding of a preliminary hearing based thereon, defendant waived
his right to demand a formal written complaint, if one was required, by his failure to urge it before the
justice at the preliminary hearing, and his express waiver of the reading of the verdict of such jury when
informed it was the complaint upon which the preliminary hearing was being held.
2. Criminal LawPreliminary Hearing Is Statutory Proceeding within Rule that Statutory
Requirements May Be Waived.
A preliminary hearing before a justice of the peace is a statutory proceeding within the rule that
statutory requirements may be waived.
3. Criminal LawBetter Practice Is to File Formal Written Complaint as Basis of Every
Preliminary Hearing of One Charged with Crime.
Whether or not the filing of a formal written complaint charging one with crime is necessary under Rev.
Laws, 7551, as a basis for holding a preliminary hearing before a justice of the peace, the safer practice is
to file one as the basis of every preliminary hearing, whether the result of a coroner's inquest or not.
4. Criminal LawWhen Photograph May Be Introduced in Evidence Stated.
If a photograph can throw light upon the matter inquired into, or enlighten the jury more clearly than
oral testimony could, it is proper to admit it.
5. Criminal LawAdmission of Photograph of Deceased to Overcome Theory of Defense of
Suicide Held Not Error.
Where in a murder prosecution accused interposed defense of suicide by a pistol shot, admission of
photograph by state to show pistol was placed in deceased's hand held not error where the photograph
showed more clearly than oral testimony could every detail of the position of deceased's body, and the
bloody condition of the body previously detailed to the jury.
47 Nev. 233, 234 (1923) State v. Holt
6. Criminal LawAdmission of Photograph, over Objection that It Did Not Portray Original
Position of Deceased, Held Not Error.
In a murder prosecution, objection by accused to introduction of photograph of deceased lying against
a door because one of the witnesses testified she opened that door held not error where, although witness
at the trial testified she opened the door seven inches, her testimony at the preliminary hearing to the
effect that she just shoved the door the least bit was more reliable.
7. Criminal LawRebuttal Testimony Held Properly Admitted where its Relevancy Could
Not Have Been foreseen on Examination in Chief.
Where, in a prosecution for murder of wife, accused's theory of defense that his wife killed herself,
and that his relations with her were always amicable, was not and could not have been known to the state
when it presented its case in chief, admission in rebuttal of testimony of state witness, deceased's sister,
that eight years before, while she was visiting accused's family, she saw accused strike deceased, held not
error; such incident, though somewhat remote, tending to rebut accused's testimony.
8. Criminal LawAdmission in Rebuttal of Testimony Competent in Chief Held Not Error.
Where accused, charged with the murder of his wife while she was inside the house, interposed
defense of suicide, and testified that after the shooting he returned to the house with witness following
him, and that he (accused) entered and left the door unlocked, admission of witness's testimony in rebuttal
that he found the door locked, and knocked some time before accused admitted him, held not error,
though it was competent as evidence in chief, where to have permitted its admission in chief because of
its competency and because it was not alluded to by any other state witness might have been an abuse of
discretion.
9. HomicideEvidence Held to Support Conviction.
In a prosecution of accused for the murder of his wife, in which the theory of defense was suicide,
evidence held to support conviction.
E. L. Holt was convicted of murder, and he appeals from the judgment, and from an order
denying a new trial. Affirmed.
Campbell & Robins, for Appellant:
Our criminal procedure demands filing of complaint. Constitution of Nevada, sec. 18, art.
1; sec. 8, art. 1; Rev. Laws, 6933, 6940; 3 rev. Laws, p. 3399. The court has no jurisdiction
unless complaint is filed.
47 Nev. 233, 235 (1923) State v. Holt
court has no jurisdiction unless complaint is filed. Ross v. State, 106 S. W 340; People v.
Lynch, 29 Mich. 274. The complaint is foundation of jurisdiction of magistrate. 16 C. J. 495,
498. No one should be subjected to examination on criminal charge without formal
complaint. People v. Howland, 44 Pac. 342; State v. Pay, 146 Pac. 304.
Accused has right to preliminary examination, though he may waive it. State v. Wells, 39
Nev. 435; People v. Christian, 35 Pac. 1043.
There can be no conviction where circumstances are as consistent with innocence as with
guilt. State v. Cerfoglio, 46 Nev. 350.
Verdict of coroner's jury is merely advisory to officers, but further than this it is without
effect. Small v. State of Georgia, 40 L. R. A. 369. The return of coroner's inquest is not
sufficient to base information upon. Coroners are not designated as magistrates. In Re Sly, 76
Pac. 766.
The photographs' only purpose was to inflame jury, and they should not have been
admitted. McKay v. State, Ann. Cas. 1913b, 1038.
The testimony of Browning as to door being locked, if material at all, was not proper
rebuttal, but should have been introduced in chief. Jones on Evidence, sec. 809; People v.
Harris, 102 N. E. 546.
The state withheld evidence tending to show that Holt shot himself, that he covered up his
crime, and that he hated his wife, until he had put in his case. Evidence properly in chief
should not be introduced in rebuttal, but only upon showing that it came to state's knowledge
after conclusion of its testimony in chief. Flowers v. State, 37 South. 814.
Diskin, Powell, and Goodman, for Respondent:
The question of admissibility of photographs of the character complained of has been
disposed of by this court. State v. Roberts, 28 Nev. 350.
The preliminary examination was held upon sworn inquisition and warrant of arrest issued by
justice of the peace, who is a magistrate, and acts as coroner.
47 Nev. 233, 236 (1923) State v. Holt
the peace, who is a magistrate, and acts as coroner. At common law, the verdict of coroner's
jury was equivalent to indictment. 9 Cyc. 993; Rev. Laws, 7551, 7552.
Rev. Laws, 6927, defines complaint. It does not appear from our law that it must be in
writing. Ex Parte Buncel, 25 Nev. 426.
Preliminary hearings need not be attended with technical formalities. State v. Davis, 14 Nev.
407.
The form of procedure in cases of this kind has been upheld in other states. State v. Brecount,
107 Pac. 763.
Testimony which tends to weaken the evidence for defense is not objectionable in rebuttal,
and there is no legal prejudice to the defendant, if he is allowed the opportunity to
cross-examine and to meet the evidence. 16 C. J. 867.
The purpose of complaint charging felony is to lay foundation for issuance of warrant.
Rev. Laws, 6930. The warrant in this case is based upon inquisition. Rev. Laws, 7551. The
statute does not require complaint be read, but that magistrate inform defendant of charge
against him. Rev. Laws, 6970, 6978.
In Re Sly, 76 Pac. 766, is to effect that inquisition of coroner's jury is not sufficient basis
for information. It is basis only for warrant and arrest, upon which magistrate acquires
jurisdiction. By waiving all possible objections defendant submitted himself to jurisdiction of
magistrate and trial court. State v. Miller, 124 Pac. 361.
The only purpose of preliminary examination in which defendant is interested is to inform
him of charge, and, if complaint, warrant and evidence do that, he may not complain. If
examination warrants holding defendant, imperfections in complaint are cured, and the
examination is legal. People v. Shenk, 142 N. Y. Supp. 1081; Zumwalt v. State, 141 Pac.
710.
Objection to any preliminary papers or proceedings must be made at preliminary
examination. Such objections will not be considered by the trial court or on appeal. State v.
Bailey, 3 Pac. 769; State v. Tennison, 18 Pac. 948.
47 Nev. 233, 237 (1923) State v. Holt
The defendant was convicted in the district court of the crime of first-degree murder, and
from an order denying a motion for a new trial and the judgment he appealed. Preliminary to
considering the merits of the case, we will dispose of the objection going to the jurisdiction of
the court to try the case and render a judgment against the defendant.
1. After the death of the deceased a coroner's jury was impaneled to inquire into the cause
of her death. It returned the following verdict:
The deceased was named Mrs. E. L. Holt; was a native of Pennsylvania, aged about 38
years; that she came to her death on the 2d day of December, 1921, in this county, by gunshot
wounds inflicted by other than herself under circumstances not excusable or justifiable in law,
and we believe such other person to have been E. L. Holt, and we recommend that he be held
to answer the same.
Upon the return of this verdict the coroner, pursuant to Rev. Laws, 7551, issued a warrant
for the arrest of the defendant. The section just mentioned reads as follows:
If the jury find that the person was killed by another under circumstances not excusable or
justifiable in law, and the party committing the act be not in custody, the justice of the peace,
acting as coroner, shall issue a warrant signed by him, with his name of office, for the arrest
of the accused.
The defendant was arrested upon the warrant mentioned and taken before the magistrate.
Counsel appeared in behalf of the defendant, asked for time in the matter, and stipulated as to
the date of holding the preliminary examination.
The preliminary examination was based upon the verdict of the coroner's jury. When the
defendant was brought before the magistrate for the preliminary hearing he was informed that
the proceedings were based upon the verdict of the coroner's jury, and that it was considered
as a complaint. The magistrate commenced to read it to the defendant, when his counsel,
without making any objection thereto, announced that they waived the reading thereof.
47 Nev. 233, 238 (1923) State v. Holt
to read it to the defendant, when his counsel, without making any objection thereto,
announced that they waived the reading thereof. At the conclusion of the examination the
magistrate held the defendant to answer. Thereafter the district attorney filed an information
against the defendant charging him with murder. In due time counsel for the defendant moved
to set aside the information upon several grounds, all of which are bottomed upon the
contention that no complaint was, prior to the preliminary hearing, filed with the magistrate
charging the defendant with a crime. Hence it is said that the magistrate acquired no
jurisdiction to proceed, and therefore the district court acquired none, and that prejudicial
error was committed by the trial court in refusing to set aside the information.
On the part of the state it is contended that the verdict of the coroner's jury constituted a
complaint, and that our statutes contemplate the holding of a preliminary hearing based
thereupon. To support this contention our attention is directed to certain sections of the
statute and to the following authorities: In Re Sly, 9 Idaho, 779, 76 Pac. 766; State v.
Tennison, 39 Kan. 726, 18 Pac. 948; Turner v. People, 33 Mich. 363. We do not deem it
necessary to decide the foregoing contention, since, as further maintained by the state, the
defendant waived the right to raise the point relied upon in the district court by his failure to
urge it before the justice of the peace, and by expressly waiving the reading of the verdict of
the coroner's jury when informed that it was the complaint upon which the preliminary
hearing was being held.
2, 3. A preliminary hearing is not a trial. In the very nature of the situation it could not be.
A justice of the peace has no jurisdiction to try one charged with a felony; he can only hold a
preliminary hearing and determine if probable cause exists for holding defendant to answer.
The holding of a preliminary hearing is a statutory proceeding, and it is a rule well recognized
by the courts of the land that one charged with a crime may waive a statutory requirement.
47 Nev. 233, 239 (1923) State v. Holt
a crime may waive a statutory requirement. This is such a well-recognized rule that we hardly
deem it necessary to cite authority to support it; however, the following are a few among the
many so holding, namely: McComb v. District Court, 36 Nev. 417, 136 Pac. 563; State v.
McLain, 13 N. D. 368, 102 N. W. 407; People v. Dowd, 44 Mich. 488, 7 N. W. 71; Toney v.
State, 15 Ala. App. 14, 72 South. 508; State v. Anderson, 35 Utah, 496, 101 Pac. 385; State v.
Miller, 87 Kan. 454, 124 Pac. 361; State v. White, 76 Kan. 654, 92 Pac. 829, 14 L. R. A. (N.
S.) 556; Ex Parte Talley, 4 Okl. Cr. 398, 112 Pac. 36, 31 L. R. A. (N. S.) 805; Osborn v.
State, 143 Wis. 249, 126 N. W. 737, 31 L. R. A. (N. S.) 966; 8 R. C. L. 69; 16 C. J. 184. It is
a wholesome rule, without which criminals would often be afforded an avenue of escape,
because, in delay, important witnesses often die or leave the country. In fact, to take any other
view would put a premium upon such a course as was adopted by the defendant in this case.
He had nothing to lose and everything to gain.
It is the public policy incorporated into the written law of this state to ignore all
irregularities and informalities in criminal procedure which result in no injury. Every
consideration impels us to hold that the defendant waived the filing of a formal written
complaint, even if one be required, as to which we express no opinion, though we are frank to
say it is the safer practice to file one as the basis of every preliminary hearing, whether the
result of a coroner's inquest or not.
While the point is not made, and we do not undertake to decide it, the query arises whether
the defendant was not limited, in making a motion to set aside the information, to the grounds
enumerated in section 7090 of the Revised Laws, as amended by section 30, c. 232, Stats.
1919. In this connection the case of State v. Bailey, 32 Kan. 83, 3 Pac. 769, is interesting. The
proceedings in that case before the information was filed were identical with those in this
case, except that the defendant did move the justice of the peace to quash the warrant and
discharge him from custody. The supreme court, in passing upon an alleged error of the
trial court in overruling a plea in abatement, said:
47 Nev. 233, 240 (1923) State v. Holt
supreme court, in passing upon an alleged error of the trial court in overruling a plea in
abatement, said:
When the question is raised by a plea in abatement, as in the present case, we think the
only questions presented for consideration are whether an attempt has been made to give the
defendant a preliminary examination, and whether by such attempt reasonable notice has been
given to him with regard to the nature and character of the offense charged against him. If no
attempt has been made to give the defendant a preliminary examination, and if he has not
waived the same, and was not at the time of the filing of the information a fugitive from
justice, we think the plea in abatement should be sustained; and also where the preliminary
examination has not been waived and the defendant has not been a fugitive from justice, and
has not had, through the instrumentality of a preliminary examination, any reasonable notice
of the nature and character of the offense charged against him, we think the plea in abatement
should also be sustained. But it is not necessary that the papers and proceedings on a
preliminary examination should be technically regular and exact, like the papers and
proceedings on the final trial. It is not necessary that the papers and proceedings on a
preliminary examination should set forth the offense in all its details and with perfect and
exhaustive accuracy. For the purpose of authorizing a final trial, and of requiring that the
defendant should plead to the merits of the action, all that is necessary is that the defendant
should be given a fair opportunity to know, by a proffered preliminary examination, the
general character and outlines of the offense charged against him; and it is not necessary that
all the details and technical averments required in an information should be set forth in the
papers used on the preliminary examination. And the defendant should take notice from the
evidence introduced by the state on the preliminary examination, as well as from the papers in
the case, of the nature and character of the offense charged against him.
47 Nev. 233, 241 (1923) State v. Holt
against him. In the present case the defendant had an opportunity to know, and did know,
from the preliminary examination, all that was necessary for him to know.
4, 5. We come now to the assertion that the court committed prejudicial error in admitting
in evidence a photograph of the deceased in the position in which she was found shortly after
the homicide. It is said that the only purpose which the introduction of this evidence could
serve was to inflame the minds of the jury. If such were the fact, we freely admit that its
admission in evidence was not only error but prejudicial. It is the theory of the defense that
the deceased shot herself. The photograph shows her lying on the floor close to the wall, with
a door at her back, and the portion of her body above her waist to the right of the door, with
her face turned from the wall and toward the middle of the room, the left forearm drawn up,
and her right forearm over her forehead with the palm open, palm up, and the butt of an
automatic pistol touching the fingers, the barrel pointing at an angle of about forty-five
degrees from the body, the muzzle being close to the left hand. The ball or base of the thumb
of the right hand is bloody, and across it are corrugations comparing to those on the slide of
the pistol. It is argued by the state, in view of the contention by the defendant that the
deceased killed herself, that those facts are material, and that their portrayal by the
photograph is proper.
This court, in State v. Roberts, 28 Nev. 350, 82 Pac. 100, wherein the contention here
made was argued, said:
We are cited to some extreme cases where photographs were rejected on the grounds that
witnesses had described what they would show, or that they would inflame and prejudice the
jurydoctrines that we are not able to sanction, and which are not supported by the weight of
authority. If juries cannot be intrusted with the pertinent facts for which litigants and
offenders are responsible, however appalling they may be, and with the most accurate,
instructive, and convincing evidence of those facts, it is time to abolish the jury system.
47 Nev. 233, 242 (1923) State v. Holt
and with the most accurate, instructive, and convincing evidence of those facts, it is time to
abolish the jury system. Photography, engraving, and the art of picture making are important
factors in our civilization, and the courts in their search for truth should not be averse to
accepting the benefits they bring. A glimpse at a photograph may give a more definite and
correct idea of a building or of a person's features than the most minute and detailed
testimony. A child may learn more regarding the appearance of an animal it never saw by the
sight of its picture than by listening to a lecture or reading a volume of description. When
photographs are shown to be correct representations, and give a better and clearer
understanding of relevant facts, it would seem on reason and principle that their use as
evidence should be favored.
In this age of general education, wherein people are trained to think, we believe there is
little danger of the minds of a jury being influenced merely because a bloody garment, a
photograph showing a bloody garment, or any other bloody object is introduced in evidence
and exhibited to them. But, however this may be, if such evidence can serve to throw light
upon the matter inquired into, or can present a situation for the enlightenment of the jury
more clearly and satisfactorily than can be presented by oral testimony, we think it is no abuse
of discretion for the court to permit its introduction. The state contends that the corrugations
across the ball of the thumb are circumstances indicating that the pistol was placed in the
hand after the blood had slightly dried. In the instant case the photograph shows every detail
as to the position of the body with reference to the wall of the room, the door, the position of
the hands, the corrugations, and the pistol much more clearly and satisfactorily than could
have been explained by oral testimony. Furthermore, the bloody condition of the body was
detailed to the jury prior to the introduction of the photograph. In the circumstances we think
the court did not err.
6. But it is said that the body was moved by the opening of the door by Mrs. Downing,
and hence the photograph does not accurately portray its original position.
47 Nev. 233, 243 (1923) State v. Holt
photograph does not accurately portray its original position. Mrs. Downing testified at the
trial that she opened the door about seven inches, but at the preliminary hearing her testimony
was to the effect that she just shoved the door the least bit. From the relative position of the
body and the door, as shown by the photograph, we are convinced that the trial court must
have concluded that her testimony at the preliminary was the more reliable. No error was
committed in the particulars mentioned.
7. It is insisted that the court erred in admitting in evidence the testimony of the witnesses
Russell and Browning, in that their testimony is not properly in rebuttal, and should have
been given in the main case, and, furthermore, that the incident testified to by the witness
Russell is an incident too remote. The defendant testified in his own behalf, and among other
things testified that he had never had serious difficulty with his wife, and had never struck
her. Miss Russell testified that she was a sister of the deceased, and that, while she was
visiting the defendant's family about eight years prior thereto, she had seen defendant strike
her. When the state was presenting its case in chief the theory of the defense had not been
outlined, and it was impossible for the state to know what his defense would be. It did not
develop until he went upon the stand and gave his testimony, wherein he swore that the
deceased and he had lived on amicable terms, and that he had never struck her, and that she
shot herself. Under the circumstances, we are satisfied that the testimony was admissible.
Though the incident testified to was somewhat remote, it did tend to rebut the testimony
given by the defendant, and the jury had the right to consider it for what it was worth.
8. The testimony of the witness Browning flatly contradicted that of the defendant upon
one point, and tends to contradict him upon another. The defendant testified that after the
shooting he returned to the house, and that Browning followed him, and that he entered and
left the door unlocked. Browning, in rebuttal, testified that he found the door locked, and the
he knocked and stood at the door some time before the defendant admitted him.
47 Nev. 233, 244 (1923) State v. Holt
knocked and stood at the door some time before the defendant admitted him. It is contended
that this testimony should have been presented by the state in making out its case in chief, and
that it is not properly rebuttal evidence. It certainly would have been competent evidence in
chief in establishing a circumstance proper for the consideration of the jury in arriving at a
determination of the guilt of the defendant, and had he not given the testimony which he did,
it might have been an abuse of discretion on the part of the court to permit the introduction of
such evidence on the part of the state to establish a case, but, where the defendant took the
stand and testified to certain facts which were not alluded to by any of the state's witnesses, it
would be going too far to say that his testimony could not be contradicted merely because
such contradictory evidence tends to prove a circumstance which might have been competent
as evidence in chief.
9. Finally, it is contended that the verdict is contrary to the evidence. It is said that the
deceased at the time of the tragedy was momentarily insane, and that she shot the defendant
and herself. It is clearly shown that the deceased was subject to fits of great despondency, and
that shortly before the tragedy she said she was going to Lovelock and kill her husband, their
boy, and herself. On the other hand, there is a letter in the record written by her to a friend in
San Francisco the day before the homicide in which she said she would return to that city.
This indicates that if she ever had such an intention she had abandoned it. The jury heard all
the evidence, and, under instructions not complained of, returned a verdict of guilty. From the
evidence, as interpreted by counsel for the appellant upon the oral argument, we do not see
how the jury could have done differently. In presenting the theory of the defense he said the
defendant got the gun about an hour or a little over from a friend; that he took it home in his
overcoat pocket, and when he got there placed his overcoat upon the bed, and that his wife,
while looking through his pockets for letters, found the gun, and in a moment of insanity
shot him, from which he fell, then shot herself; that as he arose she was reeling about the
room with the pistol dangling from the fingers; that he rushed to her to prevent her
shooting herself again, and in a struggle she was accidentally shot through the neck from
the back, the bullet entering about an inch to the right of the median line.
47 Nev. 233, 245 (1923) State v. Holt
gun, and in a moment of insanity shot him, from which he fell, then shot herself; that as he
arose she was reeling about the room with the pistol dangling from the fingers; that he rushed
to her to prevent her shooting herself again, and in a struggle she was accidentally shot
through the neck from the back, the bullet entering about an inch to the right of the median
line. The gun having been borrowed by the defendant, he had to account for the use of it. The
defendant was confronted with the necessity of explaining the wound which the deceased
received by the entry of the bullet in the back of the neck. He no doubt did so to the best of
his ability, but the explanation was so unreasonable that it bordered on the ridiculous. In the
first place, how a story of a woman so weak as to have relaxed her grasp upon the pistol as to
let it dangle, reeling about the room as contended, could impress any one with the necessity
of preventing her inflicting further injuries upon herself is beyond human credibility. Besides,
how in her admitted weakened condition there could have been such a struggle, as claimed, is
beyond comprehension. In any event, the jury heard the evidence, and, it being competent and
sufficient to justify the verdict, we are bound by it.
No prejudicial error appearing, there is no alternative but to affirm the judgment.
It is so ordered.
____________
47 Nev. 246, 246 (1923) Nelson v. Reinhart
No. 2595
NELSON v. REINHART
November 1, 1923. 219 Pac. 554.
1. BrokersIn absence of Custom or Agreement for Compensation, Law Implies Promise to
Pay Reasonable Worth of Services.
Where there is no agreement as to the rate of compensation to be allowed a broker for services to be
rendered, and no usual or customary rate prevails at the time and place from which to determine the value
of the services, the law implies a promise to pay what his services were reasonably worth.
2. EvidenceTestimony of Other Transactions Offered to Show Reasonable Worth of
Services of Broker Held Irrelevant.
Where, in an action against a broker, setting up a counterclaim for reasonable compensation for
services performed in effecting a sale of plaintiff's land, testimony of witnesses employed by others at the
time defendant's services were rendered, to effect sales of certain properties similar to plaintiff's, that they
were to receive under their contracts a commission of 5 per cent of the selling price, was not offered to
show custom or as opinion evidence, but merely to show reasonable worth of defendant's services, such
testimony was irrelevant, since 5 per cent might have been much above or below a quantum meruit.
3. BrokersIssue a Value of Services Usually Question of Fact for Jury.
The issue of value of services performed by a broker is usually a question of fact for the jury.
4. Appeal and ErrorAdmission of Irrelevant Testimony as to Value of Services of Broker
Held Not Prejudicial to Principal.
In an action against a broker, in which he set up a counterclaim for reasonable value of services
rendered in effecting sale of plaintiff's property, admission of irrelevant testimony as to the reasonable
value of such services held not prejudicial to plaintiff, where, under the other undisputed testimony, the
jury could not legally have found a verdict against defendant on that issue, but might have returned a
verdict for defendant for a larger sum.
5. Appeal and ErrorAppellate Court Will Not Disturb Verdict or Judgment for Errors Not
Prejudicial.
Appellate court will not disturb a verdict or a judgment of an inferior court for errors which could not
have prejudiced the appellant.
6. BrokersRule for Measuring Broker's Compensation, where No Contract or Usage as to
Rate Exists, Stated.
The amount of compensation of a real-estate broker, where no contract or usage, fixing the rate of
compensation, exists, is not determined solely by the labor expended, but from the nature of the
undertaking, the value of the property, and the results accomplished.
7. BrokersServices of Unlicensed Broker Held Worth as Much as if He Had License.
Conceding that defendant was not a licensed broker or employed as such, his services were worth as
much as if he had been one.
8. BrokersVerdict for Reasonable Value of Services Rendered by Broker Held Not
Excessive.
A verdict of $7,589.93 for defendant broker, on his counterclaim for the reasonable value of services
rendered, in addition to making an allowance to plaintiff of approximately $2,522.50, held not excessive,
where the services consisted of a sale of 27,500 acres of farm, pasture, and range land, and personal
property consisting of 32, 650 head of live stock, principally sheep, and all equipage used in the
operation of plaintiff's farming and livestock business, and the total selling price of the property was
$215,000.
Appeal from Sixth Judicial District Court, Humboldt County; E. J. L. Taber, Judge.
Action by Thomas Nelson against Edward Reinhart, in which defendant asserted a
counterclaim. From a judgment for defendant, and from an order denying motion for new
trial, plaintiff appeals. Affirmed. Rehearing denied.
John L. McNab and Thos. A. Brandon, for Appellant:
No evidence can be introduced as to collateral contracts between third persons, but should
be excluded under rule, res inter alios acta. 22 C. J. 741; McVey v. Coates, 130 Pac. 661.
The approved practice is to call experts to establish reasonable value of such services.
Jones, Evidence, secs. 140, 169; Moody v. Peirano, 84 Pac. 783.
Error is presumed from introduction under objection of irrelevant or immaterial testimony.
Lissak v. Crocker Estate Company, 119 Cal. 444; National Biscuit Company v. Nolan, 138
Fed. 9.
Campbell & Robins, for Respondent:
No custom being established as to reasonable value of services, next best guide is proof of
what others in that locality have done. Murray v. Ware's Admr., 4 Ky. (L. Bibb.) 325; Glover
v. Henderson, 25 S. W. 175.
Rule of res inter alios acta is not applicable in this case. If there had been agreement for
specific amount, it would have been inadmissible to prove other specific contracts.
it would have been inadmissible to prove other specific contracts.
The evidence of Reinhart, instead of being prejudicial to appellant was beneficial to him,
since it was more favorable to him than testimony of Tilden. If Tilden's testimony was
inadmissible appellant was not injured. 3 Cyc. 387.
No evidence having been offered by defendant to show what was reasonable value of
services, it is fair to assume he could not produce any. Nathan v. Brand, 47 N. E. 771.
This action was commenced by Thomas Nelson, herein termed plaintiff, against Edward
Reinhart, herein termed defendant, primarily to recover a money judgment for the sum of
$1,522.50, alleged to be the balance due upon an accommodation loan of $2,500, made to the
defendant in the year 1909, but, when the pleadings were settled, the case was tried before a
jury upon the general issue raised by plaintiff's reply or answer to defendant's counterclaim, in
which he admitted the indebtedness, and set up that in June, 1912, the defendant, at the
special instance and request of plaintiff, performed services for plaintiff as a broker in
procuring a purchaser for his lands, live stock, and other personal property, situated in
Humboldt and adjoining counties, and known as the Nelson ranches. Defendant claimed that
on account of his said services, so performed, there was due to him from plaintiff a
reasonable commission therefor, based upon the selling price of said real and personal
property, as a percentage of such selling price. He claimed that through his efforts and
services a purchaser was procured for said property within the time and at the price suggested
by plaintiff to the defendant, and that by and through his efforts and services plaintiff effected
a sale of said property in June, 1912, to the purchaser procured by the defendant, for the price
of $215,000, and that 10 per cent of said sum, to wit, $21,500, was a reasonable commission
to be paid the defendant for his services; no part of which had been paid except the sum of
$1,000 paid in September, 1913, wherefore the defendant demanded judgment against
plaintiff for the sum of $20,500.
of which had been paid except the sum of $1,000 paid in September, 1913, wherefore the
defendant demanded judgment against plaintiff for the sum of $20,500. The jury rendered a
verdict against plaintiff and in favor of defendant for $7,589.83, upon which verdict the court
entered judgment. The cause is now before us on appeal from the judgment and also from the
court's order denying and overruling plaintiff's motion for a new trial.
For the purposes of the point to be decided, the facts are as follows: It appears from the
evidence that there was no express agreement between the parties regarding the compensation
which should be paid to the defendant for his services in procuring a purchaser for the
plaintiff's property. It was the understanding of the defendant that he would be taken care of
in the event he found a purchaser at the price which plaintiff stated at that time he expected to
receive for his property, to wit, $200,000. On the other hand, it was plaintiff's understanding
that the defendant's endeavors to procure a purchaser were voluntary and gratuitous; that the
sum of $1,000, alleged to have been paid to the defendant in September, 1913, in part
payment of his services, was gratuitous.
The real property comprised about 27,500 acres of farm, pasture, and range land situated
in Humboldt and Elko Counties; the personal property consisted of about 32,650 head of live
stock, principally sheep, classified at different prices; the other personal property consisted of
the equipage used in the management, control, and operation of plaintiff's farming and
livestock business. The defendant was not a real-estate broker, but a merchant, banker,
farmer, and stockman. The plaintiff was a pioneer land-owner and stockman in northern
Nevada, who, because of his age, much desired to dispose of his property and retire from
active business. The pleasant business relations between the parties had extended over a
period of many years. It appears that an unsuccessful effort was made to arbitrate their
differences before trial.
The defendant, as a witness in his own behalf, after testifying at length as to his
employment and his endeavors to find a purchaser, and the purchaser ultimately found in the
person of E. P. Ellison, of the Ellison Ranching Company, a Utah corporation, was
interrogated as to whether a custom, such as is contemplated by law, prevailed in that vicinity
which fixed the rate of compensation in like cases. His answer was that no such custom
existed. The defendant was then interrogated as to what, in his opinion, would be a fair
percentage or compensation to be allowed him for his services, based upon commission. His
answer was 5 per cent on meadow land and 10 per cent on range or mountain land and live
stock.
The defendant then introduced two witnesses, R. E. Tilden and James G. Allen, residing at
Winnemucca in Humboldt County, for the purpose of proving the commission to be allowed
defendant as a reasonable compensation for his services, who, over the objection and against
the exceptions of plaintiff, were interrogated as to several distinct and independent
transactions involving the sale of farm, pasture, and range land and live stock, situated in
Humboldt County at variant distances from plaintiff's property, in which, by special
agreement, the witnesses, as real-estate agents, undertook and agreed, about the time the
defendant's services were performed, to effect sales of certain properties similar to plaintiff's
for an agreed commission of 5 per cent upon the selling price fixed by their agreements. We
shall not go very fully into their testimony, but for the purpose of the point to be decided, and
for illustration, we take one instance detailed by the witness Allen. He testified, in substance
and to the effect, that he was a real-estate agent, residing at Winnemucca from 1911 to 1914,
and that, as such, he undertook and agreed with a particular owner to effect a sale of 34,000
acres of land and 8,000 head of live stock, situated in Humboldt County, for an agreed
commission of 5 per cent on the selling price thereof, fixed at $750,000.
It appears from the lengthy examination of each witness that a large amount of judicial
acumen was spent in an endeavor to show the character, terms, conditions, and validity of
their contracts, the proximity and similarity of the property involved to that of plaintiff's and
the similarity of the services to be performed in each case to that undertaken by the defendant.
None of the special agreements appears to have culminated in a sale through their endeavors.
No further direct testimony was adduced by the defendant to prove the value of his services,
and none whatever was introduced by the plaintiff on that issue.
The case passed from the court into the hands of the jury under full instructions, the
keynote of which was that it was for the jury to decide upon all the evidence the value or
worth of the defendant's services, provided, of course, they believed from a preponderance of
the evidence that the defendant was employed, and that his services were the efficient cause
of the sale of plaintiff's property.
The forty-two reasons for this appeal are resolved by the briefs into the discussion of the
alleged error of the trial court in admitting in evidence, against the plaintiff's exceptions, the
testimony of the witnesses Tilden and Allen, for the purpose of proving the amount of
compensation to be allowed Mr. Reinhart for procuring a purchaser for Mr. Nelson's ranches
and live stock.
Counsel for Mr. Nelson contend that the error is fatal to the verdict, and there should for
this reason be a new trial. Counsel for Mr. Reinhart insist that the testimony was admissible
for the purpose for which it was offered, but, if it was error to admit it, it was error without
prejudice. Counsel for Mr. Nelson for reply insist that the amount of the verdict shows it to
have been calculated upon the basis of a 5 per cent commission on the sale price of the
property, to wit, $215,000, less credits, and from this it is argued that the illegal testimony not
only influenced, but controlled, the jury in its estimate of the value of Mr. Reinhart's services;
therefore, the admission of the testimony necessarily prejudiced Mr.
therefore, the admission of the testimony necessarily prejudiced Mr. Nelson.
1, 2. The question for decision in respect to the admission of the testimony refers to the
mode of ascertaining the value of Mr. Reinhart's services. It being conceded that no rate of
compensation was agreed upon between the parties, and no usual or customary rate prevailed
at the time and place from which to determine the value of the services, the law implied a
promise upon the part of Mr. Nelson to pay to Mr. Reinhart what his services were reasonably
worth. Mechem on Agency, 1526, 2425; 19 Cyc. 235. The question of what is a reasonable
compensation, in this, as in other cases, is to be determined from all the facts and
circumstances surrounding the case. Mechem, 1526. It being disclaimed of record that the
testimony objected to was offered to show custom, and it not appearing that it was to be taken
and considered as opinion evidence on the point in issue, we are impelled to conclude that the
testimony was both immaterial and irrelevant for the purpose for which it was offered. The
amount the witnesses charged or were agreed to be paid under their special contracts, in the
particular cases detailed by them, furnished no criterion to measure the value or worth of Mr.
Reinhart's services. What the witnesses agreed to accept in full for their services was not even
a legitimate circumstance tending to show the worth of Mr. Reinhart's services. Their services
were rendered, or were to be rendered, under special contracts as to the amount to be paid,
which would, of course, be determined by their contracts, and not by the value of their
services. The amount of 5 per cent on the selling price of other property similar to that of Mr.
Nelson's, agreed to be paid the witnesses for their services may have been much above, or
much below, a quantum meruit. It occurs to us that the testimony is objectionable for other
reasons. There may have been, in the particular cases, personal considerations or elements
which did not exist in the case of Mr.
of Mr. Reinhart. In principle, the following authorities are in point: Mechem on Agency,
1529; Robbins v. Harvey, 5 Conn. 341; Forey v. Western Stage Co., 19 Iowa, 537; French v.
Frazier's Adm., 7 J. J. Marsh. (Ky.) 429.
3-5. But counsel have failed to convince us that the admission of the testimony is fatal to
the verdict. The issue of value, upon all the evidence, is usually a question of fact for the jury.
Burdon v. Briquelet, 125 Wis. 341, 104 N. W. 83. If, then, excluding, as we must, the illegal
testimony, there was other undisputed evidence which supports the verdict, we cannot disturb
it, unless it can be said that the objectionable testimony was so harmful or prejudicial as to
deprive Mr. Nelson of a fair and impartial trial on the issue of value. We are of opinion that,
under the particular facts and circumstances surrounding the case, Mr. Nelson was benefited
rather than prejudiced by the admission of the testimony complained of. It is conceded, or
must be conceded, that the jury, under the undisputed testimony, could not legally have found
a verdict against Mr. Reinhart on the issue of value, all the evidence on the point being
uncontradicted. The amount of his compensation was to be determined from the nature of his
undertaking, the value of the property, and the result or end accomplished. In addition to
these elements the jury had Mr. Reinhart's own estimate of the value of his services,
indefinite and uncertain it is true, but, taken in connection with the other facts and
circumstances, it was sufficient to carry the case to the jury on the issue of value. Under the
admitted and undisputed testimony relative to that question, the jury might have returned a
verdict for a larger sum. The fact that illegal testimony was admitted on the same point
favorable to Mr. Nelson could not have prejudiced him. Clearly the error complained of is
more fanciful than real. If there had been no other testimony on the point than that
complained of, the case would be entirely different. In the present state of the record the case
is within the rule that this court will not disturb a verdict or the judgment of an inferior
court for errors which could not have prejudiced the appellant.
is within the rule that this court will not disturb a verdict or the judgment of an inferior court
for errors which could not have prejudiced the appellant. Gardner v. Gardner, 23 Nev. 213, 45
Pac. 139.
6-8. It is assigned as error that the verdict was excessive. There is no evidence tending to
show that it was, except what is to be inferred from Mr. Reinhart's cross-examination. He was
not a real-estate broker or employed as such, and in the course of his examination he testified
that he could have performed the services within a few hours, and that he took no part in
negotiating the sale of the property. The amount of compensation of a real-estate broker in a
case such as this, where there is no contract or usage fixing the rate, is measured by the
results attained or the end accomplished, and the time employed or the labor expended is not
the only thing to be considered. Mayhew v. Brislin, 13 Ariz. 102, 108 Pac. 253, and the cases
cited; Gracie v. Stevens, 56 App. Div. 203, 67 N. Y. Supp. 688. Conceding that Mr. Reinhart
was not a licensed broker or employed as such, his services were worth as much as if he had
been one. Hollis v. Weston, 156 Mass. 359, 31 N. E. 483. Though the amount of the verdict is
undoubtedly large, we cannot, in the present state of the record, say it is excessive.
The order and judgment of the district court are affirmed.
January 8, 1924. 221 Pac. 521.
1. Appeal and ErrorIf Objectionable Evidence Is Harmless, New Trial Will Not Be
Granted.
When objectionable evidence has been admitted, and it is impossible to say to what
extent it influenced the jury, a new trial should generally be granted, but not if
admission of such evidence was harmless.
2. EvidenceEvidence of Value of Services by One Who Is Not an Expert in such Matters,
Entitled to Consideration.
When one, though not an expert, testifies as to value of services, and such evidence
is uncontradicted, and no evidence is introduced to show him unworthy of belief, his
evidence is entitled to consideration.
3. Appeal and ErrorRehearings Are Not Granted as Matter of Right.
Rehearings are not granted as matter of right and should not be allowed for purpose
of reargument, unless error was made or important question was overlooked.
4. EvidenceThe Jury, Who Have Heard All Facts and Circumstances Regarding Services,
Are as Capable of Determining their Value as Witnesses.
The jury, upon the consideration of all the facts and circumstances under which
services were rendered, are as capable of determining their value as are witnesses
whose testimony was wholly immaterial and incompetent.
On petition for rehearing. Denied.
John L. McNab and Thos. A. Brandon, for Appellant:
The only question involved is whether the admission of erroneous testimony as to value of
services is prejudicial error. The court has held that it was error, and counsel make no serious
claim to the contrary.
Your honors remark that the jury might have returned a verdict for a larger sum,
seeming to lose sight of the fact that they might also have returned a verdict for a much
smaller sum.
It is impossible for us to speculate as to what the verdict might have been had the
erroneous evidence not been introduced. It may have been the improper evidence that turned
the scale and lost the case to the appellants. Rulofson v. Billings, 140 Cal. 460.
One cannot, after insisting upon the introduction of objectionable testimony, say the error
in admitting it is harmless. Smith v. Westerfield, 88 Cal. 383; Lissak v. Crocker Estate Co.,
119 Cal. 444.
The fact that the court admitted evidence after objection is the strongest indication that the
court deemed it material, and it is impossible for the appellate court to say the evidence had
no effect. Marsteller v. Leavitt, 130 Cal. 150.
There can be no reversal, even though error has been committed, unless the appellant has
been prejudiced thereby.
An examination of the authorities cited by counsel discloses fact that California recognizes
that the record must not only show error but that it was prejudicial. Coonan v. Loewenthal, 61
Pac. 940; Cement Co. v. Reinecke, 158 Pac. 1041; R. Co. v. Orchard Co., 147 Pac. 238.
Jury fixed amount at less than that given by Reinhart, whose was the only admitted and
undisputed testimony. Had the jury fixed a smaller amount, they would have had to do so
arbitrarily.
Reversals are not permitted simply because of error in admitting testimony upon incidental
matters. Smith v. Westerfield, 26 Pac. 206.
Counsel for appellant have presented a petition for a rehearing wherein it is said:
In the opinion filed by this court your honors remark upon this fact as follows: Under the
admitted and undisputed testimony relative to that question the jury might have returned a
verdict for a larger sum.' Your honors seem to lose sight of the fact that under the admitted
and undisputed testimony the jury might also have returned a verdict for a much smaller sum.
The jury may well have taken into consideration the fact that Mr. Reinhart's testimony as to
the value of his services was entitled to little weight, because he was not a real-estate broker
or employed as such, and for the further reason that he testified on cross-examination that he
could have performed the services within a few hours, and that he took no part in negotiating
the sale of the property.
In support of the contention that the court erred, our attention is again called to certain
decisions wherein it is held that, objectionable evidence having been admitted, and it being
impossible for the court to say to what extent such evidence had influenced the jury, a new
trial should be granted. In those cases, no doubt, the ruling of the court was correct; but we
are of the impression that this is not such a case. We think the erroneous ruling was
harmless.
the erroneous ruling was harmless. If the jury in the instant case had fixed the basis of
recovery at 5 per cent on the selling price of all of the property, less the amount sued for,
including interest, it would have been in a sum several hundred dollars in excess of what it
was. On the other hand, had the verdict of the jury been based on a commission of 10 per cent
on the proceeds of the personal property and the range land, it would have been for a very
much larger sum than that for which it was rendered.
It is said that Reinhart's evidence was entitled to but little consideration. I cannot agree
with this contention. It was uncontradicted, and no contention is made that he is unworthy of
belief. Furthermore, we think, under the circumstances, it comes with poor grace from Nelson
to say that Reinhart's evidence should not be accepted as a basis for a judgment, when he
offers none to aid the jury and court in the matter of the value of the services.
The petition is denied.
Ducker, C. J.: I concur in the order.
Sanders, J., concurring:
I concur in the order.
Rehearings are not granted as a matter of right, and should not be allowed for the purpose
of reargument, unless there is a reasonable probability that the court may have arrived at an
erroneous conclusion, or overlooked some important question, which was necessary to be
discussed in order to arrive at a full and proper understanding of the case. State v. Woodbury,
17 Nev. 337, 30 Pac. 1006; Twaddle v. Winters, 29 Nev. 108, 85 Pac. 280, 89 Pac. 289;
Pershing Co. v. Humboldt Co., 43 Nev. 78, 181 Pac. 960, 183 Pac. 314; Parks v. W. U. T.
Co., 45 Nev. 411, 197 Pac. 580, 204 Pac. 884. A fortiori, a response to a petition for
rehearing is not for the purpose of answering rearguments or criticisms of the decision sought
to be reviewed. In the instant case the point urged for rehearing was strongly pressed in the
briefs and oral argument of the petitioner on the former hearing; in fact, it was the
controlling question in the case from the petitioner's view-point.
the former hearing; in fact, it was the controlling question in the case from the petitioner's
view-point. The petition to reopen the case for reargument of the point fails to convince me
that the question is worthy of further consideration. The jury, upon the consideration of all the
facts and circumstances under which Reinhart's services were rendered, was as capable of
determining the issue of the reasonable value of his services as were the witnesses Tilden and
Allen, whose testimony was wholly incompetent, irrelevant, and immaterial. It is stated in the
opinion that:
Under the admitted and undisputed testimony relative to that question [value], the jury
might have returned a verdict for a larger sum.
Counsel seize upon this expression for an excuse to again argue that the testimony of
Tilden and Allen, admittedly illegal, was of itself sufficient to warrant a reversal in this case.
It is probable that, had the word could been used, instead of the word might, in this
sentence, there would have been no room for the argument now directed against the opinion. I
see no occasion for resorting to argument to support the opinion. It leads nowhere, and
neither strengthens nor detracts from the opinion.
____________
47 Nev. 259, 259 (1923) Warren v. Wilson
No. 2582
WARREN v. WILSON
December 1, 1923. 220 Pac. 242.
1. Appeal and ErrorAppeal from Findings of the Court Dismissed.
Under Rev. Laws, 5325, authorizing appeals from final judgment only, a notice of appeal, not
contemplating an appeal from the final judgment, but merely from findings of the court which are the
basis of the judgment, must be dismissed.
2. Appeal and ErrorAppeal Lies Only from a Final Judgment Adverse to Appellant.
Under Rev. Laws, 5327, contemplating appeals by aggrieved persons only, an appeal from a final
judgment, not adverse to appellant, and by which he is not aggrieved, must be dismissed.
3. Appeal and ErrorWhere There Is No Motion for New Trial, and Findings Are in Favor
of the Appellant, Judgment Affirmed.
A judgment must be affirmed on appeal, where the findings and conclusions of law are in favor of
appellant, and no motion for new trial appears in the record, since the court can look only to the judgment
roll, of which the findings are a part.
Appeal from Sixth Judicial District Court, Humboldt County; E. J. L. Taber, Judge.
Action by H. Warren against L. G. Wilson. From the judgment rendered, the plaintiff
appeals. Appeal dismissed.
Warren & Dignan and McCarran & Mashburn, for Appellant:
The statute makes provision for procedure as to bills of exceptions on appeals. The object
is to include in record so much of proceedings that it may be revealed whether or not
reversible error was committed. It is not possible to give any hard-and-fast definition of
sufficiency of bill of exceptions. If bill does not contain substance of all material evidence
relating to points involved, appellate court cannot intelligently pass upon them. The record on
this appeal contains evidence which was omitted from bills of exceptions, over objection of
contestant, and demonstrates error of trial court in overruling contestant's objections and
allowing and settling contestee's bills of exceptions without including therein evidence.
therein evidence. The court regretted that a portion of evidence was not before it. Had all
material evidence been presented, court could have decided case upon its merits without any
regrets.
We have cited no authorities for the reason that the statute alone controls. The question is
entirely one of fact, and not of law. The certificates attached to bills do not cure defects which
are so apparent upon face of bills themselves.
Appellant was prevailing party, not aggrieved party within meaning of statute. The
nomination sought was for office of district attorney, subject to vote at November election in
1922. The election has been held; no judgment can now be effective. Question presented is
now moot question.
Only aggrieved party may appeal. Rev. Laws, 5327.
Appellant appears to attempt to appeal from part of judgment. Statute provides for appeal
from judgment or order, not from fragment of judgment. Rev. Laws, 5325.
Motion for new trial is necessary in order to review errors at trial. Gill v. Goldfield Con. M.
Co., 43 Nev. 1.
Court can review only questions assigned by party appealing, and not those by respondent.
Dennis v. Caughlin, 22 Nev. 447.
This case is before us upon an attempted appeal. The notice of appeal speaks for itself. It
gives notice that appellant appeals
from that portion of the judgment rendered, given, made, and entered in said district court, *
* * where said court finds and adjudges that the contestant received 361 legal ballots, only,
instead of 364 ballots, and appeals from that portion of the judgment only, wherein said
district court finds and adjudges that three certain ballots, designated and marked as Exhibits
numbered 26, 27, and 162, were and each of said ballots was illegal and should not be
counted for said contestant.
was illegal and should not be counted for said contestant. And contestant hereby appeals to
said supreme court from that portion of said judgment of said district court wherein said court
found and adjudged that the said contestee, L. G. Wilson, received 359 legal votes, instead of
312 legal votes. And contestant appeals from that portion of the said judgment which finds
and adjudges that 47 certain ballots, designated and marked as Exhibits numbered 37, 38, 49,
103, 105, 127, 137, 145, 163, 171, 197, 198, 221, 255, 276, 294, 302, 344, 349, 368, 384,
403, 422, 423, 428, 435, 437, 441, 450, 455, 457, 465, 466, 470, 474, 475, 484, 489, 493,
512, 520, 522, 536, 555, 562, and 566 were, and each of them was, legal ballots and should
be counted for said contestee. And contestant hereby appeals to said court from the order of
said district court, duly given, made and entered herein on the 13th and 19th days of October,
1922, wherein the said district court denied and overruled contestant's objections to the
settlement and the certification by the court, of contestee's bills of exceptions, and each of
said bills of exceptions, without any corrections or amendments. And contestant hereby
appeals to said court from that portion of said judgment of said district court which found and
adjudged that the vote of A. Lillie, or Andrew Lillie, was a legal vote, and that said vote
should be counted for the contestee, L. G. Wilson.
Counsel for respondent moved to dismiss the appeal upon the ground that it is not taken
from a final judgment. This is the second appeal in the case; the former appeal having been
taken by Wilson. 46 Nev. 272, 210 Pac. 204, 997, 212 Pac. 497.
1. The motion to dismiss must be sustained. Our statute (Rev. Laws, 5325) authorizes
appeals from final judgments only, and not from findings of fact. The notice of appeal does
not contemplate an appeal from a final judgment, but merely from the findings of the court,
which are the basis of the judgment in the case.
A final judgment is one which disposes of the entire merits of a cause, reserving nothing
for future determination relative thereto. 15 R. C. L. p. 900; Perkins v. Sierra Nevada S. M.
Co., 10 Nev. 405.
It is evident that the lower court did not consider its findings, from which we have quoted, as
final, since its judgment was rendered and entered in a separate document wherein it recites.
The court having made and filed herein its findings and conclusions.
2. The appeal should be dismissed for another reason: The final judgment is in favor of
the appellant, and our statute contemplates appeals by aggrieved persons only. Rev. Laws,
5327. It is not contended that the final judgment is adverse to appellant, or that he is
aggrieved thereby.
3. We may say, too, that even if the motion to dismiss were denied, the judgment would
necessarily have to be affirmed, since we can look only to the judgment roll, of which the
findings are a part, when no motion for a new trial is made by the party appealing. There is no
such motion in the record, and the findings are in favor of the appellant, as well as are the
conclusions of law. The findings read:
That contestant, H. Warren, was duly and regularly nominated as the nominee of the
Democratic party for the office of district attorney, etc.
It is ordered that this appeal be, and the same is hereby, dismissed.
____________
47 Nev. 263, 263 (1923) State v. Russell
No. 2589
STATE v. RUSSELL
December 1, 1923. 220 Pac. 552.
1. Criminal LawOmission of Evidence from Bill of Exceptions and Lack of Exception
Held to Prevent Consideration of Denial of Change of Venue for First-Degree Murder Trial.
On appeal by one convicted of first-degree murder, the court could not consider sufficiency of the
evidence to warrant denial of change of venue applied for to secure a fair and impartial trial, where there
was no exception, and where the evidence in support thereof, though in the record, was not the bill of
exceptions.
2. JuryChallenge for Actual Bias against Mexican Accused of Murder Held Properly
Denied.
In a prosecution for first-degree murder, where, after both counsel had probed a talesman as to his
bias against Mexicans, he answered to questions propounded by the judge, that, though he did not like the
Mexican race, he was sure that fact would not prejudice him against defendant, defendant's challenge for
actual bias was properly denied.
3. Criminal LawAppointment of Interpreter for Indian Mother of Deceased Examined on
Stand without Answering Held Proper.
In a prosecution for first-degree murder, where the Indian mother of deceased was examined on the
stand for twenty minutes, and answered no questions, and the court's observation convinced the court that
an interpreter was necessary, appointment of one suggested by defendant's counsel, after overruling
objection thereto, was not an abuse of discretion, defendant being allowed another interpreter to check up
the first.
4. HomicideDefendant Could Not Cross-Examine Indian Mother of Deceased to Show
Remote Acts Showing Her Guilt and Defendant's Innocence.
Where accused attempted to show that deceased's Indian mother, who was standing near the body
with a stab in her right arm, had killed her daughter because of a previous quarrel over a $15 debt owing
from the daughter and defendant, who went together as man and wife, defendant could cross-question the
mother to show her animosity to defendant, but not to show remote acts not connected immediately with
the crime charged.
5. Criminal LawProof that Another Person Committed the Crime Charged Could Not Be
Shown by Acts Only Remotely Connected Thereto.
Defendant may show by any legal evidence that another person committed the crime with which he is
charged, but disconnected and remote acts outside of the crime itself cannot be separately proved for such
purpose.
6. Criminal LawState's Exhibition of Garment Worn by Deceased Held Not Prejudicial.
In a murder prosecution, the state's exhibition in evidence of the garment worn by deceased at the
time of the homicide, there being no question of her identity, though irrelevant and immaterial, was not
prejudicial, since a dishonorable purpose to influence the jury should not be impugned.
Thomas Russell was convicted of murder, and he appeals. Affirmed. Petition for a writ
of prohibition denied.
Chester D. French, for Appellant:
The necessity for appointment of interpreter lies within discretion of trial judge. When
witness can understand English, interpreter should not be appointed. Rev. Laws, 5430; People
v. Avila, 194 Pac. 758.
Clothing connected with crime cannot be shown to jury unless properly connected and
proved to be in same condition as at time of crime. 3 Jones, Evidence, 23; Walker v. Ontario,
95 N. W. 1086.
It is duty of examiner in examination in chief to establish time and place of happening of
certain act, in order that opposing counsel may have opportunity to deny or rebut such
testimony.
The right to impeach witness now extends to general reputation as to good or bad character
as well as veracity, and it is clearly relevant to examine witness as to past life as it might tend
to influence character for truth. It was proper for purpose of impeachment for appellant's
counsel to examine witness. 5 Jones, Evidence, 208. Witness may be impeached as to
credibility on collateral matters. Matters as remote as four to twelve years are subject to
review on cross-examination. 5 Jones, Evidence, 156; Territory v. Chavez, 45 Pac. 1107.
Witness may be impeached by showing bias. Sweet v. Shamway, 41 L. R. A. (N. S.) 877.
Conduct and bad character of accuser may be shown as affecting credibility. 28 R. C. L.
614, 628.
Talesman who is prejudiced against race of one of parties is not free from such bias or
prejudice as would prevent giving fair trial. 16 R. C. L. 270.
Court should resolve all doubt as to competency of witness in favor of defendant. 16 R. C.
L. 261, 262.
Respondent:
The court was well within its discretion in appointing interpreter for witness Mamie
Johnny, as casual reading of the record shows no progress could be made without interpreter.
40 Cyc. 2413, 2414.
It is not always possible to fix time and place of certain acts on examination in chief. If
they are afterwards fixed, by same or other witnesses, the rule is satisfied.
Absolute proof that clothing connected with crime is in same condition when exhibited to
jury as it was at time of crime is impossible. It is only necessary to prove any fact in criminal
case beyond reasonable doubt.
Defendant's theory was that the mother killed her daughter, and in his case in chief it
would have been admissible to show ill-feeling between them, but that was not to be made
out on cross-examination of state's witnesses. At the time, it was clearly irrelevant and
immaterial and not proper cross-examination. A party may not introduce a defense by
cross-examining his adversary's witnesses as to matters not germane to direct examination. 28
R. C. L. 605, note 13.
Evidence of bad character for chastity, when such character is collaterally, not directly, in
issue, is not admissible for purpose of impeaching credibility of witness. State v. Larkin, 11
Nev. 314; 40 Cyc. 2605. The examination was an attempt to impeach by insinuation, which is
not permissible. 40 Cyc. 2626.
Counsel attempted to impeach Mamie Johnny upon cross-examination of Guy Johnny.
Such evidence is clearly inadmissible. The matters were collateral. 28 R. C. L.
R. C. L. 613; 40 Cyc. 2569, 2570. One witness cannot be cross-examined merely for purpose
of impeaching another.
Where ill-feeling is shown, facts and circumstances causing it cannot be gone into further
than necessary to ascertain its extent and nature. 28 R. C. L. 616.
Where appeal is from judgment and order denying motion for new trial, and not direct
appeal from order refusing change of venue, that question cannot be considered. Rev. Laws,
4835, as amended Stats. 1913, p. 274.
The defendant, Thomas Russell, a Mexican, was accused by information of the murder of
one Mamie Johnny, an Indian woman, with a knife, on the 15th day of September, 1922, at
Elko, in the county of Elko.
The defendant prosecutes this appeal from a conviction of murder in the first degree, with
the death penalty assessed.
1. When the case was called for trial the defendant made application for a change of
venue, on the ground that he could not obtain a fair and impartial trial in Elko County. The
application was refused, but the defendant did not except to the order of refusal. While the
evidence in support of the application is contained in the record, it is not incorporated in the
bill of exceptions. We, therefore, are not authorized to consider or pass upon the sufficiency
of the evidence to support the order of refusal.
2. It is urged by counsel for the defendant that had there been no other serious error in the
case, that of the trial court in denying and overruling the defendant's challenge to the
talesman, Richard F. Wood, on the ground of actual bias, would of itself be sufficient to
warrant this court in remanding the case for new trial. The challenge is predicated upon the
talesman's bias against Mexicans. It appears that when both counsel for the defendant and the
state had probed the talesman as to his state of mind with respect to his bias and feeling
against Mexicans, the trial judge examined the juror with this result:
and feeling against Mexicans, the trial judge examined the juror with this result:
Court. You answered counsel for the defendant that you did not like Mexicans? A. I don't
like the Mexican race.
Court. As a race? A. No, sir.
Court. Now, I will ask you to consider carefully, and search your own mind, and answer
me this question: Do you think that that feeling against the race would in any manner
influence you for or against this defendant, unconsciously or otherwise, if you were chosen as
a juror? Do you think that would enter into your mind or enter into your opinion,
unconsciously or otherwise, and prejudice you against the individual on trial? A. No, sir; I
have no feeling against this individual.
Court. And your feeling against the race would not be carried as against the individual?
A. No, sir.
Court. And I will ask you this: Could you sit here and consider this case with the same
fair impartiality and with entire absence of prejudice, the same as if it were a white man or
any one else on trial in this case? A. Yes. sir.
Court. You are sure that you can do that? A. Yes, sir.
Court. And your feeling would not in any way prejudice you against this defendant? A.
No, sir.
Court. The challenge is denied.
Upon careful review and consideration of the entire examination, we find nothing which
leads to a just inference, in reference to the case, that the talesman would not act with entire
impartiality. Both on reason and on authority, if such prejudice or feeling by a talesman is not
sufficient to prevent him from trying a case to which a Mexican is a party according to the
law and the evidence, the talesman is competent. This principle was applied in a criminal case
where the defendant was an Italian, and a juror testified that that was a race he was not
particularly fond of, and did not think much of, judging from those we have here. Balbo v.
People, S0 N. Y. 49S.
80 N. Y. 498. The principle finds support in numerous criminal cases where the defendants
were of the Negro race. See annotated case of Johnson v. State, Ann. Cas. 1912b, 965.
3. The defendant complains that the trial court abused its discretion in appointing an
interpreter to interpret the testimony of the prosecuting witness, Mamie Johnny, the mother of
the deceased, and of other Indian witnesses. Counsel insists that the witnesses could speak
English, and that the court was therefore not authorized under the statute to appoint an
interpreter. In this connection the record discloses that the court, after the witness, Mamie
Johnny, had refused to answer questions propounded to her, stated:
Let the record show that the witness has been on the stand and examined for a period of
twenty minutes; that during that time all the questions that have been propounded no answers
have been elicited; and that it appears from the appearance of the witness on the stand and
from the observation of the court at this time of the witness that an interpreter is necessary in
this case, and the objection to the use of an interpreter is overruled.
The interpreter was used only to interpret for the witness, Mamie Johnny. The other
witness, Bessie Johnny, was examined without the aid of the interpreter, except as to a few
questions which she could not understand. The interpreter selected was one suggested by
counsel for defendant. It also appears that the defendant was allowed an interpreter to keep
check on the state's interpreter. The record clearly supports the position taken by the trial
court that an interpreter was necessary in the case in the interests of justice.
4. Many of the exceptions relate to adverse rulings upon questions propounded by counsel
for the defendant to the state's and his own witnesses to show motive and to affect the
credibility of the state's witnesses, particularly the witness, Mamie Johnny.
The homicide occurred between the hours of 9 and 10 o'clock on the night of September
15. The evidence shows that there were no eye-witnesses to the homicide other than the
mother of the deceased, Mamie Johnny, and her sister, Bessie Johnny.
and her sister, Bessie Johnny. The deceased expired from the effects of a stab wound in her
right breast before first aid could be had. Doctor Shaw, a physician and surgeon, testified that
in pursuance to a call he went to that portion of Elko adjacent to and west of the Nevada
Wholesale Company's warehouse, and found there lying on the ground near the road an
Indian woman, who had been stabbed to death, and standing near her another Indian woman,
who had been stabbed in the upper right arm. The woman referred to as standing near by was
Mamie Johnny.
5. The defense was that the mother, Mamie Johnny, inflicted the mortal wound, and that
the defendant in no way participated in the crime. The defendant, as a witness in his own
behalf, made it appear that Mamie Johnny was angered at the deceased and the defendant,
because they were indebted to her in the sum of $15, and in a quarrel between the parties she
drew a knife and struck the fatal blow. Counsel tried to elicit from Mamie Johnny on
cross-examination the unfriendly relations between her and the deceased and the defendant,
for the purpose of showing motive on the part of the mother for inflicting the wound. Counsel
complains that the refusal of the court to allow him to go fully into the animus, bias, and
prejudice of the complaining witness, Mamie Johnny, deprived the defendant of his right to
impeach her testimony and to establish his defense. In so far as the cross-examination of said
witness and the direct examination of any witness in the case went to show the ill-will,
animosity, or malice of Mamie Johnny toward the defendant, the court was quite liberal in its
rulings, but, when the purpose of the examination disclosed an attempt to prove the innocence
of the defendant through the guilt of Mamie Johnny, the court properly refused to permit such
questions. It is competent for the defendant to show by any legal evidence that another person
committed the crime with which he is charged, and that he is innocent of any participation in
it, but both on reason and on authority we are of opinion that remote acts, disconnected and
outside of the crime itself, cannot be separately proved for such a purpose. 8 Ruling Case
Law, sec.
sec. 178, p. 185. A fortiori, such acts and conduct cannot be inquired into or established by
cross-examination. One accused of crime may show his innocence by proof of the guilt of
another, but the evidence of such guilt must relate to the res gestae of the eventthe
perpetration of some deed entering into the crime itself. Levison v. The State, 54 Ala. 520;
Carlton v. People, 150 Ill. 181, 37 N. E. 244, 41 Am. St. Rep. 346.
Nothing elicited by the questions overruled afforded any reasonable presumption or
inference that Mamie Johnny, the mother of the deceased, struck the fatal blow. There is no
evidence whatever which even tends to show that the wound upon the upper right arm of
Mamie Johnny was inflicted by the deceased or was self-inflicted. The defendant left the
scene of the crime before the deceased had expired, and was arrested the next morning on
board a freight train rolling upon the Western Pacific railroad at Montello, in Elko County,
and brought back to Elko. He claimed he left the scene of the crime at the urgent request of
the deceased; that she did not want her mother prosecuted for the crime; that before he left
her she stated to him that she was not much hurt, and that he did not know that the deceased
had been mortally wounded until after his arrest. A more improbable defense can scarcely be
conceived of. Although the defendant was allowed, practically without interruption, to tell his
story and embellish it with all the unfriendly relations and ill-will of the complaining witness
toward him, and of his affectionate regard for the deceased, they having lived together as man
and wife for a period of more than six months prior to the homicide, the jury did not believe
his defense. To our minds the rulings of the court upon the objections to the questions
propounded to elicit motive on the part of the mother of the deceased for inflicting a mortal
wound upon her own child were proper and without prejudice to the defendant.
As to the question of impeaching testimony, the defense was allowed to show that Mamie
Johnnie was a woman of immoral and dissolute habits, and to introduce testimony of a third
party from which the jury might infer that Mamie Johnny, prior to the homicide, had once
attempted to poison the defendant.
might infer that Mamie Johnny, prior to the homicide, had once attempted to poison the
defendant. We are unable to agree with counsel that he was unduly restricted and thwarted in
his efforts to impeach the testimony of Mamie Johnny.
6. It is complained that the court erred to the great prejudice of the defendant in allowing
the state to exhibit in evidence the garment worn by the deceased at the time of the homicide.
The garment had since that date been in the continuous possession of the mother of the
deceased. We confess that we do not see the relevancy of the evidence, there being no dispute
as to the identity of the deceased, the nature or character of the mortal wound, or how it was
inflicted. It did not serve the purpose of honestly explaining the occurrence, and we cannot
bring ourselves to believe that the garment was designedly offered to prejudice the defendant.
We should dislike to impugn to any district attorney a dishonorable purpose in offering this
character of evidence to arouse and inflame the passion and prejudice of the jury. The
garment as evidence was entirely irrelevant and immaterial, and defendant was not prejudiced
by its admission in evidence.
We find no error in the instructions to the jury, and none in the refusal of the court to give
those requested by the defendant.
We have carefully examined all the evidence and maturely considered every proposition of
law, and reach the conclusion that there is no reversible error in the record. The judgment,
therefore, is affirmed.
On Petition for Writ of Prohibition
January 23, 1924.
1. Crimes and PunishmentsDeath Penalty.
Where the court gave an instruction to the effect that if the jury return a verdict
finding defendant guilty of murder in the first degree, the court would have to pass
sentence inflicting the death penalty, unless the jury also, by its verdict, fixed the
penalty at life imprisonment, or failed to agree in fixing a penalty, and the jury returned
a verdict of guilty of murder in the first degree but did not fix the penalty, the judgment
of the court fixing the penalty at death is valid.
Application for a writ of prohibition restraining trial court from issuing warrant of
execution. Denied.
McCarran & Mashburn, for Petitioner:
The jury rendered a verdict, We, the jury in the above-entitled action, find the defendant
guilty of murder in the first degree. Note the punctuation of the statute. It is for jury, not
court, to decide penalty. Stats. 1919, p. 468.
There is distinct segregation by punctuation in California statute. Cal. Penal Code, sec.
190.
The exercise of discretion applies only to the last alternative, confinement in the state
prison for life. People v. Welch, 49 Cal. 185; People v. French, 10 Pac. 378; People v.
Rollins, 197 Pac. 209.
Rules of punctuation take Nevada statute out of interpretation as placed upon it in People
v. Welch, supra. The court has nothing to do with matter except pronounce sentence of jury.
Weatherford v. State, 43 Ala. 320. The jury must determine both character and extent of
punishment. Edgar v. State, 43 Ala. 312; Owen v. State, 33 South. 718; Doran v. State, 7 Tex.
App. 386.
Some authority must have power to assess punishment where sliding scale of penalties is
provided. New Mexico v. Romaine, 2 N. M. 128.
In Jackson v. State, 161 Ind. 136, under statute very similar, court held that even though
defendant pleaded guilty to first-degree murder, jury were exclusive judges of case, and must
determine punishment. Warner v. State, 102 Ind. 51; Satterfield v. Commonwealth, 176 S. W.
980.
Prohibition is proper remedy to prevent executing void judgment. Mongolo v. District
Court, 46 Nev. 410; Havemeyer v. Superior Court, 10 L. R. A. 644.
Diskin & Powell, for Respondent:
In People v. Murback, 64 Cal. 369, the court said that the jury were directed if they found
defendant guilty of highest degree of murder they should determine at their discretion
whether he should suffer death or life imprisonment; that court could not interfere in this;
that they were entirely free to act if they saw fit to exercise discretion at all.
imprisonment; that court could not interfere in this; that they were entirely free to act if they
saw fit to exercise discretion at all.
If no punishment was mentioned, court should fix it at death. When jury render valid
verdict, but disagree as to penalty, defendant cannot escape. People v. French, 69 Cal. 169.
If verdict is silent as to penalty, court must sentence defendant to death. People v. Welch,
49 Cal. 185; People v. Rowlans, 179 Pac. 209.
The jury were instructed if they returned verdict of murder in first degree and did not fix
penalty, court could impose death. This is equivalent to jury's imposing death penalty. Bullen
v. State, 245 S. W. 493; State v. Rimerez, 203 Pac. 279.
Weatherford v. State, 43 Ala. 320, relied on by counsel, was decided under statute (Sec.
3661, Ala. Code) which provides that jury must exercise discretion; the word either is used
either with death or by life imprisonment.
Owen v. State, 82 Miss. 18, also cited by counsel, was quoted with approval in
Weatherford case.
These cases cannot be in point, as use of word either clearly shows jury must fix
punishment.
In quoting Smith v. State, 75 Miss. 558, counsel omitted following: Of course, the legal
effect of the verdict in this case in the words used is, by legal construction, death.
The Texas code makes it the duty of the jury to find punishment. Sec. 607.
Courts should not hesitate to repunctuate statute where it is necessary to arrive at true
legislative intent. State v. Brodigan, 34 Nev. 490.
Supreme Court of United States has decided that judgment rendered in murder case
upon verdict which did not even find degree of crime was not void, but merely erroneous, and
was not subject to collateral attack. Re Edward Eckert, 41 L. Ed. 1085; Ex Parte Edgington,
10 Nev. 215. Petitioner has plain, speedy, and adequate remedy at law.
Petitioner has plain, speedy, and adequate remedy at law. Prohibition is not, therefore,
authorized. Rev. Laws, 5709.
Governor may in some cases fix time of execution. It is ministerial and not judicial act.
Therefore prohibition will not lie. State v. Summers, 9 Nev. 270; Valentine v. Police Court,
75 Pac. 336.
We are of the opinion that the application should be denied.
The basis of the application is that the jury, though returning a verdict of guilty of murder
in the first degree in the case whereupon he was on trial, did not fix the death penalty, or any
penalty, and that the judgment of the court so fixing it is void, since there can be no such
penalty adjudged by the court until the jury has by its verdict fixed it at death.
During the trial of the case the court gave an instruction to the effect that if the jury return
a verdict finding the defendant guilty of murder in the first degree, it would follow as a matter
of law that the court would have to pass a sentence inflicting the death penalty, unless the jury
also, by its verdict, fixed the penalty at life imprisonment, or failed to agree in fixing a
penalty.
The authorities are divided upon the proposition presented, but in view of the fact that our
statute is identical with the California statute, from which it was probably taken, we are of
opinion that we should follow the interpretation placed upon the statute of that state long
before our statute was adopted, wherein it was held that a verdict identical with the one in this
case, under an instruction similar to the one complained of, was valid.
For this reason we deny the writ.
____________
47 Nev. 275, 275 (1923) Hardy v. Black Mammoth Mining Co.
No. 2600
HARDY v. BLACK MAMMOTH MINING COMPANY
December 3, 1923. 220 Pac. 241.
1. CorporationsSignatures of Officers on Note and Seal Presumptive Evidence of Due
Execution.
A note and mortgage of a corporation, signed by its president and secretary as its act, with its seal
affixed, are sufficient to raise presumption of due execution by the corporation.
2. CorporationsIntroduction of Note and Mortgage Made Prima-Facie Case against
Corporation.
In an action to foreclose a mortgage given to secure payment of a note and for recovery on the note,
the introduction of the note and mortgage, signed by officers as an act of the corporation, with seal
affixed, made a prima-facie case that the instruments were authorized.
Action by Alexander M. Hardy against the Black Mammoth Mining Company. From a
judgment for defendant, and an order denying a motion for a new trial, plaintiff appeals.
Reversed.
J. G. Thompson, For Appellant:
A corporate seal must be proved by competent testimony. 2 Thompson, Corporations (2d
ed.), sec. 1926. The corporate seal carries with it prima-facie evidence of assent of
corporation, when its authenticity is established. Idem, sec. 1927. When the signatures of
officers are proved the courts may resume such officers did not exceed their authority. Idem,
sec. 1928.
Corporation books and records may be introduced against the corporation as admissions.
Jones, Evidence (2d ed.), sec. 518.
This court has pointed out the importance of clear, unequivocal, specific findings of fact. A
trial court should be able to make its findings clear. Crumley v. Fabbi, 47 Nev. 14.
A. B. Ritchey, for Respondent:
A note and mortgage for a debt due from a corporation to directors will be closely
scrutinized and set aside if not entirely in good faith and the whole amount justified.
if not entirely in good faith and the whole amount justified. Graves v. Mono Lake Co., 81
Cal. 303.
A corporation note signed by its president and secretary, payable to the order of the
president, is presumptively unauthorized. An indorsee for value, without inquiry of officer's
authority, takes at his peril. Ankens v. Rouse, 26 Weekly Law Bulletin, 12 Am. Dig. 221.
Presumption of authenticity of properly signed and sealed corporate instrument is rebutted
where instrument is for benefit of executing officer. Thompson, Corporations, 1922, Cum.
Suppl. 1928.
Burden is on director to show good faith when it is questioned. Star Mills v. Bailey, 130 S.
W. 1077; 7 R. C. L. 470.
Identity of corporate books should be shown by oath of competent witness. 2 Thompson,
Corporations (2d ed.), 1852. Authority for affixing seal was not shown. Court should exercise
great caution in admitting such evidence. Richardson v. Green, 133 U. S. 30; Graves v. Mono
Lake Co., supra.
Salinger was custodian of seal, and its presence on any paper proves nothing.
This suit was brought to foreclose a mortgage alleged to have been executed by a
corporation to secure the payment of a promissory note in the sum of $2,500, and for the
recovery of the amount due on the note. In substance it is alleged in the complaint that the
corporation, defendant in the court below and respondent here, duly executed the note and
mortgage to I. Salinger; that ten months' interest had been paid, and that there still remained
unpaid said principal sum of $2,500, with interest thereon from July 1, 1921; that the plaintiff
is now the lawful owner and holder of said note and mortgage as the assignee of the
mortgagee. The corporation filed an answer which, with the exception of certain admissions,
contained general denials of the allegations of the complaint. The action was tried before the
court below without a jury, and judgment rendered in favor of the respondent.
before the court below without a jury, and judgment rendered in favor of the respondent.
From the judgment, and an order denying a motion for a new trial, this appeal is taken.
On the trial of the case, appellant introduced in evidence the note and mortgage in
question. Both the note and mortgage purport on their face to have been executed by the
corporation by having its corporate name signed thereto by its duly authorized officers, the
president and secretary, and its corporate seal affixed; said officers having been expressly and
specifically directed so to do by a resolution of the board of directors of said corporation, duly
adopted by a majority of the said board at a meeting thereof, duly called and held. The
signatures of the president and secretary of the corporation on the note and mortgage were
proved by a witness who knew their signatures, and the impression of the seal on the note was
proved to have been made by the seal of the corporation. Written assignments to appellant,
for value received, dated October 11, 1921, signed by the mortgagee, indorsed on the note
and mortgage, were introduced in evidence, and said signature proved to be his.
The appellant testified that he received the mortgage shortly after the date of the
assignment, and that no part of the note had been paid, except the interest payments indorsed
on the note. The respondent made no attempt to show that the instruments were not duly
executed by it, but rested its case without introducing any evidence. It also appeared that the
assignor of the note and mortgage was a director of the respondent corporation. Under this
state of facts the trial court found that appellant had wholly failed to establish the allegations
of the complaint, and in its conclusions of law, and judgment, declared that the note and
mortgage were null and void.
1. The only contention counsel for respondent makes in this court, as we glean from his
brief, as to why the evidence failed to sustain the allegations of the complaint, is that, because
the mortgagee was a director of respondent corporation, the mortgagor, the appellant, had
the burden of proving, not only the due execution of the note and mortgage, but that the
mortgagor received the benefits of the transaction.
respondent corporation, the mortgagor, the appellant, had the burden of proving, not only the
due execution of the note and mortgage, but that the mortgagor received the benefits of the
transaction. The answer to this that no such issue was made by the complaint and answer. In
the former it is alleged that the corporation duly executed the note and mortgage, and in the
answer this allegation was denied. The note and mortgage signed by the president and
secretary, as the act of the corporation, with its seal affixed, admitted in evidence, were
sufficient to raise the presumption that the instruments were duly executed by the corporation.
Clark Realty Co. v. Douglas, 46 Nev. 378, 212 Pac. 466, and cases cited; Thompson on
Corporations (2d ed.), Cumulative Supp. 1922, par. 1928; 1 Clark and Marshall, Private
Corporations, pp. 510, 511.
2. A prima-facie case was therefore made by the evidence of appellant, that the
instruments were authorized by the corporation, and the presumption was not rebutted by it.
No issue having been tendered by the respondent as to any defense it may have had against
the assignor of the note and mortgage, it was unnecessary under the pleadings for appellant to
adduce evidence as to the conditions under which the respondent executed its note and
mortgage to its director and secretary. In the case of Graves v. Mining Co., 81 Cal. 303, 22
Pac. 665, cited by respondent, which was an action brought to foreclose a mortgage of a
corporation by the assignees of the mortgagee, who were the directors of the corporation, the
answer, in addition to denying the execution of the note and mortgage, set up the fraud of the
directors in procuring the passage of the resolution authorizing the execution of the note and
mortgage in the suit and that there was no consideration therefor. The issue as to the validity
of the note and mortgage was consequently made in that case. In the instant case it appears
from the record that H. G. Clinton, vice-president of the respondent corporation, filed an
answer containing an affirmative defense, in which the fraud of the mortgagee, as secretary
and director of the corporation in procuring the note and mortgage in question to be
executed, is alleged, which was replied to by appellant, but no appearance was made at
the trial on this answer.
director of the corporation in procuring the note and mortgage in question to be executed, is
alleged, which was replied to by appellant, but no appearance was made at the trial on this
answer. The case was tried in the lower court on the pleadings of the appellant and
respondent.
The judgment is reversed.
____________
47 Nev. 279, 279 (1923) State v. Williams
No. 2599
STATE v. WILLIAMS
December 5, 1923. 220 Pac. 555.
1. Criminal LawGeneral Objection to Admission of Testimony, Not Wholly Incompetent,
Is Insufficient.
A general objection to the admission of testimony, unless it is wholly incompetent, is insufficient.
2. Criminal LawOverruling General Objection to Answer of Expert as to Whether Wound
Was Self-Inflicted, Not Error.
Where expert stated in response to a question calling for his opinion as to whether a wound was
self-inflicted that it could not have been, there was no error in overruling a general objection to such
answer.
3. Criminal LawOverruling General Objection to Admission of Photograph of Room where
Shooting Was Done Not Error.
In a murder prosecution, overruling of general objection to admission of a photograph of the room
where the shooting was done, showing bed, bedclothes, and a discoloring on a pillow, was not error,
especially were there was nothing therein to incite passion and prejudice.
4. Criminal LawInstruction as to Consideration of Defendant's Testimony Held, in View of
Incredibility Thereof, Not Prejudicial.
In a murder prosecution, where defendant's testimony that deceased shot himself while trying to kill
her was incredible, notwithstanding Rev. Laws, 7160, as amended by Stats. 1915, c. 157, which provides
that no special instruction shall be given relating exclusively to defendant's testimony, or directing the
jury's attention thereto, an instruction as to consideration of her testimony held not reversible error, in
view of section 7469, which provides that no judgment shall be set aside for misdirection of the jury
unless it has resulted in miscarriage of justice.
Appeal from Ninth Judicial District Court, White Pine County; C. J. McFadden, Judge.
Dawn Margaret Williams was convicted of manslaughter, and she appeals. Affirmed.
V. H. Vargas, for Appellant:
It is reversible error to single out defendant in criminal case and instruct especially on his
credibility. Rev. Laws, 7160, as amended Stats. 1915, p. 191; State v. Blaha, 39 Nev. 115;
State v. Rothrock, 45 Nev. 214.
Though circumstances create strong suspicions of guilt, if they are as consistent with
innocence as with guilt, there can be no conviction. State v. Cerfoglio, 46 Nev. 331, 336;
State v. Fronhofer, 38 Nev. 448.
Expert may not testify as to how wound was inflicted when that is precise fact in issue. 11 R.
C. L. 583; 2 Jones, Evidence, 906; Price v. U. S. 101 Pac. 1036; People v. Smith, 93 Cal. 445.
It is error to admit photographs of premises where crime occurred when only purpose is to
prejudice jury. 3 Jones, Evidence, 756, 789; 10 R. C. L. 1156; Guhl v. Whitcomb, 85 N. W.
142.
H. W. Edwards, District Attorney, for Respondent:
Though the instruction probably should not have been given, in view of the 1915
amendment, still there should be showing of substantial injury to warrant reversal. In State v.
Blaha, 39 Nev. 115, the court merely said that, while instruction was approved by some
earlier decisions, it had been recently criticized.
No judgment shall be set aside for misdirection of jury unless defendant has been
prejudiced thereby. Rev. Laws, 7469; State v. McCarty, 179 Pac. 309; 14 R. C. L. 815.
Technical errors are disregarded. Rev. Laws, 7302.
Experts may testify as to their belief in given state of facts, and may also testify positively.
The jury determine weight to be given their evidence. State v. Kuhl, 42 Nev. 185.
The purpose of photographs was to make the oral testimony more clear. Their admission was
proper. Underhill, Crim. Ev. 87; State v. Roberts, 28 Nev. 376. To quote language of
Attorney-General Beatty in State v. Hartley, 22 Nev. 349
To quote language of Attorney-General Beatty in State v. Hartley, 22 Nev. 349, The
defendant is not corroborated in her story by any one, nor by any circumstance. On the
contrary, her story is so utterly improbable as to destroy itself. This court will not disturb
verdict, after motion for new trial was denied, where evidence is conflictingmuch less will
it do so where evidence is consistent only with guilt of the defendant.
Dawn Margaret Williams, referred to herein as the defendant, was charged in an
information filed by the district attorney with the murder of one Jess Coverley on the 12th day
of January, 1923. She was convicted of the crime of manslaughter, and has appealed from the
order denying her motion for a new trial and from the judgment.
1. 2. Three questions are presented for our determination, the first going to an alleged
error of the court in ruling upon an objection which was made after a witness called as an
expert had answered a question. The question and the answer thereto read:
Q. From your inspection and your examination, what would be your opinion as to the
wound being self-inflicted? A. It could not have been.
Mr. Vargas (attorney for defendant). I object to that, if the court please.
Without considering the timeliness of the objection, we are not able to say that the court
erred in overruling the objection. It is a general objection, and whether it went to the
competency of the witness to give the testimony or to the impropriety of that line of evidence
we are unable to tell. Certainly such testimony might be competent and proper under some
conditions. This court has held that a general objection to the admission of testimony, unless
it is wholly incompetent, is not sufficient. State v. Smith, 33 Nev. 438, 117 Pac. 19. In State
v. Jones, 7 Nev. 415, the court said:
In criminal as well as in civil cases, the objection should be so pointed that the attention
of the court below may be directed to the exact point, so that the objection may be then
obviated, if it be one of that character."
below may be directed to the exact point, so that the objection may be then obviated, if it be
one of that character.
In view of the record we do not think the court committed error in its ruling.
3. Error is assigned to the admission in evidence of a photograph of the room in which the
shooting was done, showing the bed and bedclothes, and a discoloring upon a pillow. All that
is said in the brief in support of the alleged error is
The only purpose of introducing the photograph was to appeal to the passion or prejudice
of the jury.
In view of the fact that only a general objection was made to the introduction of the
photograph, it not appearing to be wholly incompetent, we cannot say that the court erred.
Furthermore, nothing appears in the photograph itself to incite passion or prejudice.
4. We come now to the contention that the court committed prejudicial error in the giving
of instruction No. 18, which reads:
Gentlemen of the jury, the defendant has offered herself as a witness in her own behalf in
the trial, and, in considering the weight and effect to be given her evidence, in addition to
noticing her manner and the probability of her statements taken in connection with the
evidence in the cause, you should consider her relation and situation under which she gives
her testimony, the consequences to her relating from the result of this trial, and the
inducements and temptations which would ordinarily influence a person in her situation. You
should carefully determine the amount of credibility to which her evidence is entitled; if
convincing, and carrying with it a belief in its truth, act upon it; if not, you have a right to
reject it.
It is clear that the court erred in giving the instruction. Such an instruction received
judicial favor in this jurisdiction for many years (State v. Johnny, 29 Nev. 203, 87 Pac. 3), but
our legislature in 1915 (Stats. 1915, p.191) amended section 7160 of our Revised Laws so as
to provide that"No special instruction shall be given relating exclusively to the
testimony of the defendant, or particularly directing the attention of the jury to the
defendant's testimony."
No special instruction shall be given relating exclusively to the testimony of the
defendant, or particularly directing the attention of the jury to the defendant's testimony.
But, notwithstanding the error committed, it does not necessarily follow that the judgment
should be reversed, for it is expressly provided in section 7469 of the Revised Laws:
No judgment shall be set aside, or new trial granted, in any case on the ground of
misdirection of the jury * * * unless in the opinion of the court to which application is made,
after an examination of the entire case, it shall appear that the error complained of has
resulted in a miscarriage of justice, or has actually prejudiced the defendant, in respect to a
substantial right.
See State v. Willberg, 45 Nev. 183, 200 Pac. 475.
We cannot presume that the legislature by enacting the statute relied upon by appellant as a
ground for a reversal of the judgment meant to do more than change the long-existing rule in
this state to the effect that an instruction similar to the one in question is proper. It would
indeed be remarkable for the legislature to have intended, in the face of the general statute
providing that no judgment should be reversed for the misdirection of the jury which resulted
in no miscarriage of justice or actual prejudice to the defendant, that the giving of an
erroneous instruction in the particular in question should necessarily result in a reversal of the
judgment, regardless of whether the defendant was prejudiced or there was a miscarriage of
justice. Why should we presume that the legislature intended to place such an instruction in a
class all to itself? Why must we presume that the legislature intended to overthrow in one
particular the general policy of the law and the tendency of the age to ignore all error which
results in no actual prejudice? Must we not conclude that, if the legislature intended such a
result, it would have expressly provided for the reversal of a judgment where such an
instruction is given? Let us see what an absurd result might follow if we take the contrary
view: Suppose John Smith, a man in the possession of all his members and faculties, goes
into a hardware store and purchases a Colt's automatic and cartridges to fit, and as he
goes out he says to a half-dozen reputable men that he is going down the street to shoot
on sight John Doe, an armless and legless man, and immediately walks out of the store,
and within a half-block he sees Doe crawling from him along the sidewalk, and as he
comes within ten steps of him, in view of a dozen other reputable men, be begins to shoot
Doe in the back, and, continuing to advance, according to the testimony of the twelve
men, empties every bullet into the wriggling body of the cripple.
Suppose John Smith, a man in the possession of all his members and faculties, goes into a
hardware store and purchases a Colt's automatic and cartridges to fit, and as he goes out he
says to a half-dozen reputable men that he is going down the street to shoot on sight John
Doe, an armless and legless man, and immediately walks out of the store, and within a
half-block he sees Doe crawling from him along the sidewalk, and as he comes within ten
steps of him, in view of a dozen other reputable men, be begins to shoot Doe in the back, and,
continuing to advance, according to the testimony of the twelve men, empties every bullet
into the wriggling body of the cripple. He then coolly walks to the sheriff's office, surrenders
himself and his gun, and boasts in the presence of several persons of having shot Doe in the
back while he was crawling helplessly upon the sidewalk. While in jail he writes a dozen
letters to as many different people over a period of months complaining of an ancient grudge
against Doe, and in each letter boasts of his fiendish act. He is placed upon trial for his crime,
and for the first time sets up the plea of self-defense, offering himself alone as a witness in
support thereof in opposition to the letters he had written, the testimony of the men in the
store, and those who saw the shooting, as well as that of the sheriff and others who were
present when he surrendered himself, as to his boastful statements made at the time he
surrendered, and the evidence of the doctors that the deceased was shot in the back only. In
such circumstances should this court reverse a judgment for the sole reason that an instruction
was given similar to the one in the instant case? We think not.
The supposititious case which we have suggested borders, we know, upon the absurd, for
no man in his right senses is likely to plead in self-defense an attack by an armless and legless
man (though we have known some defenses about as ridiculous to be urged); but while this is
true, it is the extreme illustration which convinces the minds of some.
There is nothing in the case of State v. Blaha, 39 Nev. 115, 154 Pac. 78, justifying any
other view. It appears from the opinion in that case that the trial court refused to give at
the request of defendant an instruction violative of the 1915 amendment; hence there
was no occasion to consider the application of section 7160 of the Revised Laws as
amended.
appears from the opinion in that case that the trial court refused to give at the request of
defendant an instruction violative of the 1915 amendment; hence there was no occasion to
consider the application of section 7160 of the Revised Laws as amended. In the recent case
of State v. Cudney, 47 Nev. 224, 218 Pac. 736, the trial court gave an instruction similar to
the one given in the instant case. We decline to consider it upon the ground that the defendant
did not claim to have been prejudiced thereby, though the attorney-general directed our
attention to the error committed. Our position in this case is consistent with the one we took
in that one. Section 7160 of the Revised Laws is a general statute meant to apply to every
case in which the trial court misdirects the jury; hence the inquiry in the instant case is: Does
it appear that the error complained of resulted in a miscarriage of justice, or actually
prejudiced the defendant in respect to a substantial right? From a reading of this statute it
must not only appear that the trial court erred, but it must appear affirmatively that the error
resulted in a miscarriage of justice, or actually prejudiced the defendant. In other words, we
can indulge in no presumption favorable to the defendant. Such is the clear, unequivocal,
unambiguous provision of the statute.
Let us examine the evidence. It appears for the undisputed testimony that the deceased and
the defendant arrived in Ely, Nevada, on November 7, 1922, and continued to reside there as
Mr. and Mrs. Coverley up to the date of the tragedy; that the deceased was addicted to the use
of narcotics and intoxicating liquor, and was a worthless character. On the 7th of November
the defendant obtained work at a laundry, where she continued to work until about December
1. On Thanksgiving Day the defendant became acquainted with Mrs. Frank Buster, after
which they and the deceased were often together, indulging freely in the consumption of
intoxicating liquor. On the afternoon of January 12, 1923, the deceased and the defendant
went to the Buster home, where they remained until the time of the tragedy, which was
about 5:30 in the evening.
time of the tragedy, which was about 5:30 in the evening. The bullet which killed the
deceased entered the upper lip at a point one inch to the left of the middle line thereof, and
passed through the brain, lodging against the skull on the side opposite to that from which it
entered. The theory of the defense was that the deceased endeavored to shoot the defendant as
a result of a quarrel, and that while he was in the act of shooting she struck his hand,
knocking it up in such a manner that the bullet entered the lip of the deceased.
We will first take up the testimony of Sam Harlow. He testified that he was a miner in the
employ of the Nevada Consolidated Copper Company; that he went to the Buster home on
the afternoon of the shooting between 4 and 5 o'clock, finding Mrs. Buster, the deceased, and
the defendant there; that for about thirty minutes they talked among themselves, when the
defendant and the deceased went into the back room, and in about ten or twenty minutes the
shooting took place; that during all of the time the deceased and the defendant were in the
back room Mrs. Buster was lying on the bed in the adjoining room, with the door open
between the two rooms, and that he could hear what was said in the adjoining room, and, the
light being on, could have seen both parties had he looked. He testified that he thought
nothing of the talk going on between the defendant and the deceased, and that his attention
was not attracted until he heard the report of a pistol, and, looking immediately, saw the
defendant standing with the pistol in her hand; that he went in instantly and took it away from
her, and went right out for the doctor.
Mrs. Buster, after testifying as to certain preliminary matters, stated that at the time of the
shooting she was lying upon the bed in the room adjoining that in which the deceased was
killed; that when she heard the shot she sat up on the bed for a minute, and then started into
the room, and as she was going in she met Harlow coming out going for the doctor.
coming out going for the doctor. In response to an inquiry as to whether she then said
anything to the defendant, she testified:
Yes, sir; I caught hold of her arm, and said, My God, woman, what have you done?' She
leaned over me like this (indicating), and said, My God, I loved him, and I killed him!'
She also testified that a few evenings before this she heard the defendant say she would
kill the deceased. She gave testimony which is not denied that an effort was made in behalf of
defendant to induce her not to testify to the statement of the defendant to the effect she shot
the deceased.
Dr. Cook testified to going to the house shortly after the shooting, to being in the district
attorney's office with the defendant, Deputy Sheriff Jackson, and the district attorney about
twenty minutes later, and to holding the autopsy, and to the facts which came to his
knowledge as a result thereof. The doctor testified that he made some notes of the statements
made by the defendant while in the district attorney's office; that, in explaining how the
trouble started, soon after she and the deceased went into the bedroom she said to him, Are
you going home, honey? to which he replied, No; ___ ___ ___. I have had trouble enough;
that she then saw the gun in his hand pointed at her, when she struck his arm, and the gun
went off. He testified that the defendant made the statements while he was at the house and
again while in the district attorney's office that if she had had a gun she would have killed the
deceased Christmas night. This witness also testified that, when the defendant was asked if
she was sorry the deceased was dead, she replied, I am not, because he will not be with any
other woman. If God is my judge, I hope he is lying there stiff. Won't you let me go, and I
will kill her, too, damn her. He also testified that he counted nineteen powder-marks upon
the face of the deceased, those on the eyelids being about two and a half inches from the point
at which the bullet entered.
Deputy Sheriff Jackson testified to going to the home soon after the shooting, when he
asked the defendant, How did the quarrel start? How did you come to shoot him? She said,
Well, he wouldn't be a good, true pal, and I caught him kissing her. That she then went in
the next room, where she said, I didn't kill him. He testified that he then took the defendant
to the district attorney's office, where she made certain statements in reply to the questions
asked by the district attorney. Mr. Jackson testified:
Well, I went into the room and I says, Are you going home, honey? He says, No; ___
___ ___. I won't go home. I have had trouble enough. When he said that I saw the gun
pointed right at me in his hand, and I hit his hand and it went off.' And she went on: If I had
of had a gun I would have killed him Christmas night.' Then the question: Why did you want
to kill him Christmas night?' She mentioned, I am not going to tell why.' Then she had a
brief pause, and she says, He hadn't been a true husband.' And then she asked the district
attorney, Won't you let me go, and I'll kill her too, damn her?' Then the question from the
district attorney, Who do you want to kill if I let you go?' And she said, I'll not tell.' And she
paused and then she said, If God is my judge, I hope that he is lying there stiff.' How did
you say the trouble started' the question from the district attorney or row started
tonight?' And she says, Because I wouldn't be a good, true pal. I couldn't be, and the reason
was I was jealous. He kissed her once before.' The question from the district attorney: He
wasn't kissing her tonight, was he?' And she answered, No.'
It appears that the defendant was spasmodically hysterical during the time covered in the
making of her statements, but that she understood what she was talking about.
In behalf of the defense two witnesses were called, the defendant and Dr. Bennett. Dr.
Bennett testified as to the distance at which a pistol must be held from an object that there
may be powder-marks.
an object that there may be powder-marks. He testified that when a pistol loaded with black
powder is discharged at a distance of a foot from a person's face there would be no burning of
the face, but that there would be powder imbedded in the face. He also testified that where the
muzzle of the pistol is held six inches from the face the powder would spread over the surface
for one and a half inches; a little further back it would spread over a three-inch surface. He
testified on cross-examination that the hand of the deceased must have been in an unnatural
and cramped position for the bullet to have entered at the point it did and lodge where it was
discovered.
The defendant was called in her own behalf, and testified concerning several occasions
upon which she, the deceased, and Mrs. Buster consumed considerable liquor; of occasions
when the deceased neglected and mistreated her. Proceeding, she testified as follows:
Mr. Coverley had gone on into the other room and set on the side of the bed, and I went
in and talked to him, and wanted him to go home, and he kind of laid on the bed like this
(indicating), and I laid on the bed like this (indicating), this foot on the floor, and this arm
against him; and I was looking into his face, and was pleading for him to go home; and he
said, I will not go home. I be damned if I go home.' And I still insisted upon his going home,
and he said, I wouldn't walk across the street with you. I am going to stay right here. You
know the way home. I am going to stay right here. I'll not go.' And I said, Yes, sir; I know the
way home, and tomorrow morning I will wire home for a ticket to my children, and I will go
back home, as I am tired of this life, anyway.' And he threw his hand as if he was going to
strike me first, and then he said, You will not leave me, because I am going to kill you.' And
I saw the gun, and hit his hand that way (indicating), and as I hit his hand the gun went off,
and I could see the blood, and the last thing I can remember I put my hands over him, and I
raised him up, and I fell on my knees and I went into hysterics. I wanted him to talk to me.
She denied making any statement to the effect that she shot the deceased, and stated that if
she at any time made any statement whatever about shooting the deceased Christmas night it
was that she could have done so if she had wanted to.
Can we say from this evidence that the defendant was prejudiced, or that there was a
miscarriage of justice because of the giving of the erroneous instruction? Clearly not. On the
contrary, it affirmatively appears that the defendant was not prejudiced in the least degree.
The attempt to suppress a portion of Mrs. Buster's evidence is a circumstance to be
considered in determining the importance to be attached to it.
The suppression or the destruction of pertinent evidence,' it is remarked by Mr. Starkie,
is always a prejudicial circumstance of great weight, for, as no act of a rational being is
performed without a motive, it naturally leads to the inference that such evidence, if it were
adduced, would operate unfavorably to the party in whose power it is.' 2 Wharton's Crim.
Ev. (Hilton), sec. 748; 22 C. J. 111; 1 Jones, Ev., sec. 16; State v. Cerfoglio, 46 Nev. 332,
205 Pac. 791.
The testimony sought to be suppressed was that wherein Mrs. Buster testified that the
defendant stated to her soon after the shooting that she had killed the deceased. In addition to
Mrs. Buster's testimony there is the testimony of Dr. Cook and Deputy Sheriff Jackson of the
statements made by the defendant. These statements show the mental attitude, after the
killing, of the defendant toward the deceased. If she had not done the shooting she would and
could not have entertained the feeling toward him which is manifested thereby, assuming that
the testimony of those witnesses is to be believed. In addition to this testimony is the
testimony of Harlow, who, from his own evidence and the photographs, was, at the time of
the shooting, sitting where he could see the bed upon which was the deceased when shot; that
he looked into the room instantly after the shooting and saw the defendant standing beside the
bed with the pistol in her hand, and rushed in and took it from her.
and rushed in and took it from her. This testimony is not denied. If it is true, the testimony of
the defendant must be false. Harlow's testimony is not impeached in the least, nor was there
an effort made to impeach it.
But, if we put aside the above evidence, it is clear that the deceased could not have shot
himself, as claimed by the defendant. The uncontradicted expert testimony on the part of the
state is to that effect, and, while the testimony on the part of the defendant does not put it so
bluntly, it amounts to substantially the same thing. Dr. Bennett, the defendant's witness,
testified that, if the deceased was shot as testified to by the defendant, his hand must have
been in an unnatural and cramped position. In the light of this testimony, is not the testimony
of the defendant so highly improbable as to discredit itself? How could the hand of the
deceased have gotten in an unnatural position by a blow such as testified to by the defendant?
It was physically impossible.
Evidence, to be believed, said Vice-Chancellor Van Fleet, must not only proceed from
the mouth of a credible witness, but it must be credible in itselfsuch as the common
experience and observation of mankind can approve as probable under the circumstances. We
have no test of the truth of human testimony, except its conformity to our knowledge,
observation and experience. Whatever is repugnant to these belongs to the miraculous, and is
outside of judicial cognizance. Daggers v. Van Dyck, 37 N. J. Eq. 130.
That probability is the guide of life is an obvious truth. But the experience has been a
commonplace for more than a century and a half, and, though there has been abundant
discussion of the nature of probability, I do not think that more can well be said on this great
subject than that a statement is probable to whatever extent it generically resembles the
common course of human conduct and of physical nature. * * * Stevens, General View of
the Criminal Law of England, pp. 192, 193.
In a case of conviction for murdering a woman by cutting her throat with a razor, the
theory that the killing was the result of an accident, occasioned by the defendant supposing
that he was drawing the back of the razor across the throat of his victim, was so utterly
preposterous that there could be no rational expectation that any jury of sensible men would
give it the least consideration, said the Pennsylvania Supreme Court. Com. v. Von Horn, 188
Pa. 143, 41 Atl. 469.
We might multiply such quotations were it necessary.
In the light of these quotations, let us see if the defendant's testimony is worthy of
consideration; if it is credible in itself; if the result testified to resembles the common
course of * * * physical nature. In determining these propositions, let us inquire whether the
hand and arm of the deceased, if in the act of shooting the defendant, would have been limp
or rigid. There can be but one conclusion. It would naturally be rigid, otherwise the pistol
would dangle rather than be presented in any direction. If rigid, while a sudden blow under
the hand would knock it upward, there would be a natural resistance that would prevent the
arm doubling up into a position necessary to have inflicted the wound upon the lip of
deceased. Furthermore, under the undisputed testimony of Dr. Bennett, a witness for the
defendant, the muzzle of the pistol must have been at least six inches from the face of the
deceased to have enabled the powder to scatter over his face for one and a half inches, and a
little further back to have spread three inches. The undisputed evidence is that it spread two
and a half inches. Hence it follows that the muzzle of the pistol must have been more than six
inches from the face of the deceased when fired. Could the deceased have held the pistol and
gotten it in a position to inflict the wound in question and yet the muzzle have been more than
six inches from the face? The expert's uncontradicted testimony was correct. It was a physical
impossibility. It needs no illustration or demonstration to justify this statement. The testimony
of the defendant is incredible in itself.
The trial court, in denying the motion for a new trial, while apparently recognizing that an
error had been committed in giving the instruction complained of, observed that substantial
justice had been done.
No prejudicial error having been committed, it is ordered that the judgment be, and the
same is hereby, affirmed.
Under an information filed against her in the court below, Dawn Margaret Williams, a
citizen of this state, was convicted of the crime of manslaughter, and sentenced to
confinement in the penitentiary for the term of not less than one nor more than ten years. She
insists she was not tried according to law, in that the trial court, upon the request of the
district attorney, and over her objection and earnest protest, gave an instruction to the jury
which related solely to her testimony given as a witness in her own behalf, and particularly
directed the attention of the jury thereto in such language as to make it appear to them that in
the opinion of the court her testimony was unworthy of belief. It is conceded that the
instruction is in violation of the express prohibition contained in section 310 of the criminal
practice act as amended by the legislature of 1915. Both the statute as amended and the
instruction are set out in the opinion of Justice Coleman, to which reference is here made.
In the case of State v. Blaha, 39 Nev. 115, 154 Pac. 78, the court expressed its opinion as
to the purpose, object, and necessity which brought about the amendment, but it did not
decide what legal effect the refusal of the court to obey the statute would have upon a
judgment pronounced upon a verdict of guilty in a case otherwise without error.
In the case of State v. Cudney, 47 Nev. 224, 218 Pac. 736, we declined, of our own
motion, to examine a similar instruction, it not appearing that the defendant objected. In that
case the question whether the right afforded the defendant by the statute was a right that
could not be waived was considered.
afforded the defendant by the statute was a right that could not be waived was considered.
Upon examination of the authorities, I reached the conclusion that, while the statute
recognized the defendant's substantial right to have his or her testimony weighed under
instructions from the court the same as the testimony of any other witness, it was not such a
right or privilege that it could not be waived. Here the case is different. In the case at bar the
defendant contends that she was not tried according to the method which the law makes
essential in proceedings involving the deprivation of life and liberty. It is the birthright of
every citizen, when charged with crime, to be tried according to law. Such trial must be
conducted in due course, according to the prescribed forms and judicial procedure of the state
for the protection of the individual rights and liberties of its citizens.
The statute as amended is a legislative recognition that the testimony of the defendant is
entitled under the law to be considered and weighed by the jury under instructions from the
court the same as the testimony of any other witness, and it was the purpose of the
amendment to safeguard and protect the defendant's individual right by prohibiting trial
courts from giving a special instruction relating exclusively to testimony of the defendant, or
particularly directing the attention of the jury to the defendant's testimony. If it is one of the
functions of the judiciary to take from the defendant the individual right afforded and
guaranteed by statute, the court must find its power or authority so to do from some source
other than the law. In virtue of the statute, the defendant's testimony is placed upon the same
basis as that of other witnesses, but in this case the trial court arbitrarily ignored the law, and
this court condones its unauthorized act by a process of judicial interpretation which, to my
mind, results in the nullification of the law.
If I do not wholly misapprehend the scope and legal effect of the present decision, it
decides that the statute in question in no way affects section 619 of the criminal practice
act {Rev. Laws, 7469), which provides that no judgment shall be set aside, or new trial
granted, in any case on the ground of misdirection of the jury, unless, in the opinion of the
court, after an examination of the entire case, it shall appear that the error complained of
has resulted in a miscarriage of justice, or has actually prejudiced the defendant, in
respect to a substantial right.
in question in no way affects section 619 of the criminal practice act (Rev. Laws, 7469),
which provides that no judgment shall be set aside, or new trial granted, in any case on the
ground of misdirection of the jury, unless, in the opinion of the court, after an examination of
the entire case, it shall appear that the error complained of has resulted in a miscarriage of
justice, or has actually prejudiced the defendant, in respect to a substantial right. I am of the
opinion that section 619 does not stand in the way of this court in the performance of its duty
to correct a legal wrong done a defendant by the refusal of a trial court to conduct a trial in a
criminal action according to the prescribed forms and judicial procedure of the state for the
protection of the individual rights recognized and safeguarded by a prohibitive statute. This
court is constituted to enforce legal rights and redress legal wrongs. The amendment of 1915
and section 619 of the criminal practice act, with respect to instructions of the character of the
one under review, are in pari materia, and must be construed together. The statute, as
amended by the legislature of 1915 impliedly amends section 619 so as to prohibit courts
from calling the attention of the jury by an instruction to the credibility of a defendant in a
criminal action when he appears as a witness in his own behalf.
According to the reasoning of my associates, the instruction is a mere error of law which
did not result in a miscarriage of justice. It does not meet the point to say that the instruction
is erroneous, but did not result in a miscarriage of justice. The instruction is in no sense
erroneous, but it is an unauthorized instruction; one which is prohibited by law. The fact that
a legal wrong is perpetrated through an instruction is no less subject to correction that if it
were perpetrated in some other manner. The right recognized and afforded the defendant by
the statute is a substantial right. Section 619 expressly provides that, where the defendant is
actually prejudiced in respect to a substantial right, it is the duty of this court to correct the
wrong.
it is the duty of this court to correct the wrong. Defendant had the right to have her testimony
safeguarded and protected against the unauthorized attack made upon it by the trial court, and
to stand before the jury garbed in the innocence which the law throws about her, without an
instruction from the court to the jury that, in considering the weight and effect to be given her
evidence, in addition to noticing her manner and the probability of her statements taken in
connection with the evidence in the case, they should consider her relation and situation
under which she gave her testimony, the consequences to her relating from the result of the
trial, and the inducements and temptations which would ordinarily influence a person in her
situation. The instruction seems to leave an implication that it was incumbent upon the jury to
consider the defendant's testimony as false, and for that reason to reject it. The statute as
amended prohibits such methods of charging the jury, and in consequence of its violation the
defendant was not only prejudiced in respect to her substantial right, but was not tried
according to law.
I dissent from the opinion and the judgment of the court.
____________
47 Nev. 297, 297 (1923) In Re Foster's Estate
No. 2616
In Re FOSTER'S ESTATE
December 5, 1923. 220 Pac. 734.
1. DivorceExecutors and AdministratorsDaughter Held Member of Family, though
Divorce Decree Awarded Custody to Decedent's Wife.
A decree of divorce awarding custody of a daughter to wife does not affect daughter's status as a
member of her father's family within Rev. Laws, 5957, providing that the court may set apart for the
use of the family of the deceased all personal property exempt by law from execution, which by section
5288, subd. 14, as amended by Stats. 1920-1921, p. 24, includes proceeds from certain life insurance,
especially where she was actually living with him at the time of his death.
2. DivorceRight of Custody of Child May Be Waived.
Under a divorce decree giving the mother exclusive custody of a child, the right of custody was
merely a personal privilege, which the mother might at any time waive.
3. DivorceDivorced Parent's Right to Custody of Child Held Waived.
That the daughter of divorced parents, whose custody had been awarded to the mother, with her
mother's consent left her home with all her belongings two months prior to her father's death and went to
live with him, and was living with him at the time of his death, held to show a temporary waiver of the
mother's right to the exclusive custody of the daughter.
In the matter of the estate of Sidney Smith Foster, deceased. Petition by Ruth Virginia
Foster, by her mother as guardian, against Hazel Chapman Aubery, executrix of Sidney Smith
Foster, deceased, praying that insurance money collected by the executrix be declared exempt
and set apart to her use. From an order granting the petition and denying the motion for new
trial, executrix appeals. Affirmed.
Sardis Summerfield, for Appellant:
The daughter was member of mother's and not father's family, at time of his death, the
divorce court having awarded custody of daughter to mother. The state exercised its right of
parens patriae, which is superior to natural right of parents. Wadleigh v. Newhall, 136 Fed.
941; 29 Cyc. 1588, 1590; Schauler on Domestic Relations (5th ed.), secs. 246-248.
The decree in divorce case cannot be questioned in supreme court or elsewhere, until
reversed or altered by proper court in jurisdiction where given. Hertzen v. Hertzen, 208 Pac.
582.
The legal family status of Ruth Virginia Foster at the time of her father's death is civil
status fixed by state and is not a mere ambulatory shifting thing that can be changed to suit
parties. In Re Forney's Estate, 44 Nev. 279; 1 Nelson, Divorce and Separation, 64; Freeman,
Judgments (3d ed.), 661.
A family is collective body of persons who live in one house, under one head or manager.
The relations between them must be of permanent and domestic character; not those of
abiding temporarily together as strangers. Duncan v. Frank, 6 Mo. App. 286.
A person and his or her children permanently separated cannot constitute family. Rock v.
Haas, 110 Ill. 528.
The word family, in its broadest sense, will include all dwellers in house under control
of one person, and it is in this respect anonymous of household. Re Lambson, Fed. Cas. No.
8029.
The judgment decree of divorce in Foster v. Foster, until modified, is res adjudicata in
fixing civil family status of Ruth Foster. 2 Bishop, Marriage and Divorce (2d ed.), 1189;
Dubrois v. Johnson, 96 Ind. 6.
A judgment binds not only parties, but it is also res adjudicata as to all who are in legal
privity with parties or either of them. Ruth Foster was in legal privity in estate, in blood, and
in law with both her father and mother. State v. Moore, 46 Nev. 75; Ahlers v. Thomas, 24
Nev. 409.
S. R. Tippett and Wm. McKnight, for Respondent:
Ruth Foster, if a member of her father's family, is entitled to have insurance money set apart
for her benefit. It is admitted the premium did not exceed $500 per annum and that proper
application was made that insurance money be set apart for her use. Rev. Laws, 5288, subd.
14, as amended 1920-1921, pp. 22, 24; Rev. Laws, 5957; In Re Lavendol's Estate, 46 Nev.
181. The decreeing of custody of daughter to mother gave personal right which mother
might, and did, waive.
The decreeing of custody of daughter to mother gave personal right which mother might,
and did, waive. Sidney Foster did not cease to be head of family by reason of divorce, and his
child was still member of his family. Re Rhodes, 109 Fed. 17; Byers v. Byers, 21 Iowa, 268.
Ruth Foster resided on the premises with her father, which brings this case squarely
within rule announced in Holcomb v. Holcomb, 120 N. W. 547, though it would not be
necessary under our law that she so reside.
The husband does not cease to be head of family by reason of divorce. Byers v. Byers,
supra.
That wife is divorced and awarded custody of the children should not deprive them of all
interest in homestead property. Woods v. Lewis, 34 Iowa, 264.
Even though children live with divorced mother in another state, if father furnishes
support, he is head of the family and entitled to benefit of exemption laws. Roberts v.
Moudy, 46 N. W. 1013.
A divorce decree does not affect character of property as homestead. Decree did not
depose father as head of family nor extinguish his right to hold homestead exemption,
because he owed support to his children. Shook v. Shook, 145 S. W. 682.
1. On November 23, 1921, Jennie Foster, then the wife of Sidney Smith Foster, instituted
an action against him for the purpose of obtaining a decree of divorce, the exclusive custody
of the minor child of the issue of said marriage, and also for the purpose of requiring the
father by the judgment of the court, to pay to the mother for the care, maintenance, and
education of said minor child the sum of $50 monthly until the said child shall become of
age.
The husband answered the complaint, and a trial was had in the district court which
resulted in a decree of divorce for the wife, by the terms of which she was awarded the
exclusive custody of the minor child with the right of visitation by the father at all
reasonable times.
the right of visitation by the father at all reasonable times. It was also decreed that the
defendant pay to the plaintiff, for the care, maintenance, and education of said minor child,
the sum of $50 per month until she should become of age.
On February 18, 1922, Sidney Foster made his last will and testament, by the terms of
which he bequeathed all of his property, with the exception of his automobile, to Hazel
Chapman Aubery, with the provision and upon the express condition that she pay to his
daughter, Ruth Virginia Foster, $50 per month from the time of his death until the daughter
should become of age, in accordance with the divorce decree. He bequeathed his automobile
to his daughter with the condition that, should she or her guardian attempt to break the will,
she was to receive the sum of $5 only.
On June 15, 1922, Sidney Foster died; his will was duly admitted to probate, and Hazel
Chapman Aubery was duly appointed executrix. The executrix collected from the New York
Life Insurance Company the sum of $1,817, proceeds of an insurance policy upon the life of
Sidney Foster, the annual premium of which did not exceed $500. Thereafter, Ruth Virginia
Foster, by her mother as guardian, filed a petition praying that the sum of $1,817 insurance
money collected by the executrix, be declared exempt and set apart to the use of said minor
child, as her sole and separate property, upon the ground that Ruth Virginia Foster was a
member of the family of Sidney Smith Foster. The executrix filed an answer to the petition, to
which answer petitioner replied. Thereafter the matter was tried by the court and the petition
granted. A motion for a new trial was made and denied. From the order granted in the petition
and denying the motion for a new trial, the executrix has appealed. In addition to the
foregoing facts, it appears that at the time of Sidney Foster's death his daughter was living
with him at his home and had been living with him for about two months prior thereto. This
arrangement was at the father's request, and with the mother's consent.
The facts present but one question for decision: Was Ruth Virginia Foster a member of the
family of Sidney Smith Foster? Section 5957 of the Revised Laws provides in part:
Upon the return of the inventory or at any time thereafter during the administration, the
court or judge, of his own motion, or on application, may set apart for the use of the family of
the deceased all personal property which is exempt by law from execution. * * *
By subdivision 14 of section 5288 of the Revised Laws, as amended by Stats. 1920-1921,
p. 24, the following property is exempt from execution:
All moneys, benefits, privileges, or immunities accruing or in any manner growing out of
any life insurance, if the annual premium paid does not exceed five hundred dollars, and if
they exceed that sum a like exemption shall exist which shall bear the same proportion to the
moneys, benefits, privileges, and immunities so accruing or growing out of such insurance
that said five hundred dollars bears to the whole annual premium paid.
If Ruth Virginia Foster was a member of the family of the deceased, it was the duty of the
court on proper application, by force of the foregoing statutes, to set the insurance money
apart for her use. In Re Lavendol's Estate, 46 Nev. 181, 209 Pac. 237. She was his only child,
and by the effect of the divorce his former wife was no longer a member of his family.
It is urged by appellant that the decree of divorce, awarding the custody of the daughter to
the divorced wife, had the same effect as to the daughter; that it established her legal family
status separate and apart from the father. We think that the legal family status of the decree
was limited merely to custody, and deprived the father of the right to share therein. The
decree in this respect proceeded from the consideration that, of the parents, the mother, under
all of the circumstances, including age and sex, was the proper one to be intrusted with the
care and custody of the child. The father's paternal interest in his minor child was in no wise
affected, nor was his natural and legal obligation of support relieved by the decree.
was in no wise affected, nor was his natural and legal obligation of support relieved by the
decree. He was bound by it to such support, and was liable for the proper maintenance of his
child, notwithstanding the decree. The divorce dissolved the legal family relation between the
husband and wife, but under what legal or humane consideration could it be accorded the
force of destroying the natural family tie between father and child? In granting a divorce the
best interests of minor children are always of highest consideration, but in this case, if
appellant's contention was admitted to be of force, it would operate against the right of a
child, in no way responsible for the parents' differences. Its right to a beneficial interest in the
father's estate would be entirely cut off through no fault of its own. We can concede no such
force to the decree. The authorities are in accord with this contention.
In Biffle v. Pullam, 114 Mo. 50, 21 S. W. 450, the wife obtained a divorce from the
husband and was awarded the custody of the children, and alimony. The husband continued
to occupy the homestead. On the order allowing alimony, execution was issued and levied
upon the homestead, which was sold to plaintiff, who brought suit in ejectment. A judgment
for plaintiff was reversed by the supreme court, with directions to the lower court to enter
judgment for defendant. In reference to the effect of the divorce the court said:
The relation which theretofore existed between him and the members of his family was
indeed disturbed and broken up by the divorce, but his right to hold this property exempt
from sale under execution for the benefit of himself and family was not thereby lost or
destroyed, no more than if his wife had died or deserted him, and his children were absent
from him; in which case he would not have lost his homestead right.
Holding in accord with the same principle are Woods v. Davis, 34 Iowa, 264; Walker v.
Walker, 181 Ill. 260, 54 N. E. 956; Roberts v. Moudy, 30 Neb. 683, 46 N. W. 1013, 27 Am.
St. Rep. 426; Shook v. Shook (Tex. Civ. App.), 145 S. W. 682-685.
In Speer & Goodnight v. Sykes, 102 Tex. 451, 119 S. W. 86, 132 Am. St. Rep. 896, the
court said:
The fact that the court awarded the custody of the minor children to the wife did not
deprive Sykes of his paternal interest in them, nor did it discharge him from his legal and
moral obligation to care for and support them. They were still his offspring and a part of his
family [citing cases].
In Hall v. Field [81 Tex. 553, 17 S. W. 82] the object of the proceeding was to secure the
use of the father's homestead to the minor children after his death, he having been divorced
from their mother. The decree of divorce gave the custody of the minor children to the mother
and they actually lived with her, yet the supreme court held that the divorced husband
continued to be the head of a family and was entitled to a homestead under the constitution.
Although the children did not live with him, they constituted a part of his family. It could not
be that the children were entitled to the homestead unless the father was the head of a family
at his death. The facts in this case are more favorable to Sykes's claim of homestead than in
Hall v. Field. The facts which favorably distinguish this case from Hall v. Field are in this
case the children actually lived with the father and constituted a part of his family, while in
that case the children lived with the mother. Mrs. Sykes did not claim the benefit of the
decree which awarded to her the custody of the children, while in the case of Hall v. Field the
mother did avail herself of a similar order, took control of the children, and kept them with
her. The case cited has not been questioned, and clearly settles the law to be that, although a
man be divorced from his wife, and his children live separately and apart from him, his status
as the head of a family is not lost; therefore, his right to a homestead remains.
2, 3. While, under the view we take, it was not essential for the daughter to be living with
her father to constitute her a member of his family, yet such is the fact. And in this respect the
present case may be favorably distinguished from the case of Hall v. Field, discussed in the
foregoing opinion.
favorably distinguished from the case of Hall v. Field, discussed in the foregoing opinion. On
this point it is urged by counsel that the agreement of the parents that the daughter take up her
home with her father could not operate as a modification of the decree giving the mother the
exclusive custody of the child, and, further, that the consent of the mother, at the most, was
only conditioned upon the father continuing to pay to her the amount adjudged by the court
for the support of the daughter. As to the last phase of the contention, we are satisfied that the
facts show at least a temporary waiver of the mother's right to the exclusive custody of the
daughter. As to the first part of the contention, the mother's right of custody was merely a
personal privilege, which she might at any time waive, and actually did waive. For, with her
consent, whether conditional or absolute, the daughter had left her home, with all her
belongings, two months prior to the father's death, and went to live with him, and was
actually living in his home at the time of his death. Under such circumstances, to say that she
was not a member of his family would be wholly contrary to the legal effect of the facts.
On the effect of a decree of divorce awarding the exclusive custody of children to the
mother, and as to her privilege of waiving the right of such custody in favor of the divorced
husband, the court in Sykes v. Speer (Tex. Civ. App.), 112 S. W. 422-426, said:
When the decree of the court awarded her the custody of the children it was merely a
judicial determination that she, as between herself and Sykes, should have the preference
legal right to the exclusive custody, and to that extent alone deprived Sykes of his natural
right to share equally with her in the custody and support of the children. The right thus
conferred upon Mrs. Sykes was a personal one, and one which she might waive in favor of
her divorced husband should she see fit to do so.
We have given careful consideration to the authorities collected and analyzed in the able
brief presented by appellant's counsel, but we do not consider them to be in point.
appellant's counsel, but we do not consider them to be in point. Some of these authorities
relate to the meaning of the word family. As said in Jones v. Golick, 46 Nev. 10, 206 Pac.
679, the word is one of great flexibility, and the definitions given by legal authorities vary
considerably. The facts of each case must govern as to its actual scope. In Jones v. Golick,
supra, quoting approvingly from the case of Sheehy v. Scott, 128 Iowa, 551, 104 N. W. 1139,
4 L. R. A. (N. S.) 365, we adopted the following rule as applicable to the facts of the former
case:
To constitute one or more persons, with another, living together in the same house, a
family, it must appear that they are being supported by that other in whole or in part, and are
dependent on him therefor, and, further, that he is under a natural or moral obligation to
render such support.
Clearly, the minor child in the instant case comes within the scope of this rule.
Sanders, J.: I concur.
I concur in the order of affirmance and in that portion of the opinion of the learned chief
justice which holds that under the testimony showing that Ruth Virginia Foster was actually
residing with her father at the time of his death, and had been so residing for some months
prior thereto, the lower court was justified in holding that she was a member of his family.
This finding being sufficient, in my opinion, to justify an affirmance of the judgment and
order appealed from, I do not deem it necessary to consider the other question discussed.
____________
47 Nev. 306, 306 (1923) Coles v. Somerville
No. 2609
COLES v. SOMERVILLE
December 5, 1923. 220 Pac. 550.
1. SalesDetermination of Legal Effect of Written Contract is for Court.
Where a contract is in writing, the determination of the legal effect of the writing or the facts in
creating an agency or sale is for the court.
2. SalesContract Construed as a Whole to Determine its Character.
To determine the character of a contract, whether creating an agency or sale, it should be construed as
a whole, weighing its terms and provisions in connection with the reasonable and natural results of its
performance, to gain a definite conception of intention of the parties.
3. SalesSale of Stock of Merchandise Held Not to Create Agency in Vendee.
Contract for sale of business and stock of merchandise held one of sale, and not of agency.
Action by W. L. Coles against W. T. Somerville and another. Judgment for plaintiff, and
defendants appeal. Reversed and remanded, with directions.
Wm. Forman and W. J. Forman, for Appellants:
This is conditional sale contract.
It does not show authority in Offerman to buy goods as agent of defendants, but only
right to sell and deal with them in usual course of retail trade. An allegation that he had
authority to buy as agent of defendant is necessary to establish cause of action.
Estoppel to assert title by owner who places property in hands of another who assumes
apparent possession does not arise as against innocent purchaser without notice in absence of
intention of owner that purchaser shall act upon apparent ownership. Lockwood Bros. v.
Frisco Lumber Co., 97 Pac. 562; Hill v. Van Sandt, 40 Pac. 676.
Reservation of title in seller is valid against levying creditor and even bona-fide purchaser
for value without notice, in absence of statute to contrary. 24 R. C. L. 455.
Account books, if in existence, are best evidence of their contents. 10 R. C. L. 906.
Clawson & Elsmore, Frank T. Dunn, and Ryland G. Taylor, for Respondent:
The questions involved in this appeal are:
(1) Was Offerman agent of appellants at time of ordering goods, and if so,
(2) Was he acting in scope of employment?
That stock remained property of Somervilles is unquestioned. Offerman was put in charge,
empowered to transfer title to third persons. This is agency. 1 Mechem, Agency (2d ed.), sec.
26; 21 R. C. L. 817; 2 C. J. 419.
Authority of manager in charge will be presumed to be coextensive with business to be
performed. Mechem, sec. 980. He may conduct it in former usual customary way. Duncan v.
Hartman, 145 Pa. St. 595.
Principal will be bound by acts of agent necessary to keep business a going concern. 2 C.
J. 643.
The contract was an option to purchase with delegation of authority to manage business in
meantime. A somewhat similar contract was held to be a bailment in Norris v. Boston Music
Co., 151 N. W. 971.
An allegation of purchase by plaintiff, then and there acting as agents for defendant is
only another form of declaring they had purchased for defendant. Cochran v. Goodman, 3
Cal. 244.
Even if our allegations were ambiguous, as no objection was made, it was waived. Rev.
Laws, 5045.
In McKenna v. Stayman court held supposed agent was independent contractor. Slevin v.
Reppy and Wells v. Ry. Co. do not bear out harsh rule that act of agent must be alleged as act
of principal. 2 C. J. 904.
Witness Coles was not testifying as to what books contained, but to facts he knew
independently. This is permissible. 10 R. C. L. 903.
Prior to the 11th day of November, 1920, W. T. Somerville and Sarah Somerville had been
engaged in the general merchandise business at Tonopah, Nye County, Nevada. The business
was carried on in a building known as the Somerville Paint Store. On said date the
Somervilles contracted to sell said business and their stock of merchandise then on hand,
in bulk, to one H. C. Offerman of Tonopah, for the agreed price of $2,575, $775 of which
was paid in cash, and the balance in installments of $175, payable on the first day of each
and every month, beginning on the 1st day of December, 1920.
said date the Somervilles contracted to sell said business and their stock of merchandise then
on hand, in bulk, to one H. C. Offerman of Tonopah, for the agreed price of $2,575, $775 of
which was paid in cash, and the balance in installments of $175, payable on the first day of
each and every month, beginning on the 1st day of December, 1920. Offerman entered into
the possession of said premises and continued to conduct therein a general merchandise
business, and paid to the Somervilles all but $225 of the purchase price, when he defaulted
and the Somervilles retook possession of the merchandise then on hand, in accordance with
the terms and conditions of the sale agreement. While Offerman was in possession of the
store and in the course of carrying on the business therein, he ordered several bills of goods,
consisting of wall paper and other merchandise, from the White House Drapery and Furniture
Company, a Utah corporation, doing business at Salt Lake City. The orders covered the
period from the month of October, 1920, to February, 1921, and totaled in the aggregate the
sum of $1,153.96. Offerman agreed to pay for the merchandise so ordered upon demand, and
on April 1, 1921, the said company made demand upon Offerman, but no part of the amount
due was paid, except the sum of $236.39. Thereafter the said company assigned its
indebtedness, less the credit, to W. L. Coles, its secretary, who thereafter made demand upon
said Somervilles for the payment of the balance due, to wit, the sum of $917.57. The
Somervilles declined and refused to pay said sum, or any part thereof. Thereupon W. L.
Coles, as assignee, sued the Somervilles in the district court of Nye County to recover
judgment for said sum of $917.57. The case was tried before the court without a jury. The
court made special findings of facts and conclusions of law, and rendered judgment in favor
of said Coles and against said Somervilles for the full sum of $917.57, from which judgment,
and also from an order denying their motion for a new trial, the Somervilles have appealed.
Counsel for the respondent, W. L. Coles, say in their reply brief: "The questions involved
in this appeal are: {1) Was Offerman the agent of appellants at the time of ordering the
goods from the respondent? and if so {2) Was he acting in the scope of his employment in
so purchasing?
The questions involved in this appeal are: (1) Was Offerman the agent of appellants at the
time of ordering the goods from the respondent? and if so (2) Was he acting in the scope of
his employment in so purchasing? If both of these questions are answered in the affirmative,
then this appeal must fail.
These are questions of law, and refer for their solution to the contract entered into on the
11th day of November, 1920, wherein the said Somervilles were parties of the first part, and
said Offerman was the party of the second part. Omitting the formal parts of said contract, it
reads as follows:
Sale Contract. * * * Witnesseth, that the said parties of the first part, for and in
consideration of the sum of $775 lawful money of the United States in hand paid, receipt of
which is hereby acknowledged, do hereby agree to sell, assign, and forever release unto the
party of the second part, his heirs and assigns, all of that certain stock of goods and
merchandise now contained in the building known as the Somerville Paint Store,' situated on
Main Street, Tonopah, Nevada, which stock of goods is more particularly described as and
includes all wall paper, paint, glass, picture frames, one Ford automobile, delivery type, serial
1243274, and all goods of whatever nature, kind, or class that may be contained in the said
building, or that may pertain to the said business of said W. T. Somerville; Provided, that the
said party of the second part shall pay to the parties of the first part the further sum of $1,800
as follows: $175 per month on the first day of each and every month, beginning on the 1st day
of December, 1920, and thereafter, until the full sum of $1,800 shall have been paid in full:
Provided, that if the party of the second part shall be unable to make any payment on the 1st
day of the month as herein specified, then and in that event the said parties of the first part
will, upon the request of the second part, allow said party of the second part thirty (30) days'
additional time to make such payments; but such extension shall not serve to extend the time
of subsequent payments.
In the event of the failure of the said second party to make the said monthly payments
above specified or any of them when the same shall become due, or within the 30-day
extension period as above provided for, then and in that event this agreement shall become
null and void, and the said first parties may thereupon take and resume the possession of all
of the said stock of merchandise above described, together with all additions made thereto by
the second party in the conducting of said business. It is understood and agreed between the
parties hereto that the said second party may sell and deal with the said stock of merchandise
in the usual course of retail trade. The party of the second part shall pay all taxes upon the
said goods and merchandise during the life of this agreement and commencing with taxes for
the year 1921; and the second party further agrees to keep the said property insured for not
less than $1,500, and in the event of his failure to do so, the first parties may insure the same
and the amount of premium shall be added to the final payment under this agreement.
It is further agreed by the parties of the first part that they, upon the faithful performance
of this agreement by the second party, and each and both of them, will refrain for a period of
five years from the date hereof from engaging in the wall paper and paint business, or a
business similar to that now carried on by the said W. T. Somerville, or to aid or assist any
other person to establish any such business anywhere within the county of Nye, State of
Nevada. This agreement is not intended to restrain the said parties of the first part from
establishing and carrying on any business whatsoever at any place without Nye County.
[Signed and acknowledged in due form.]
1. The question for decision is: Is the agreement a contract of sale, or is it a contract of
agency? It is well settled that, where the contract is in writing, the determination of the legal
effect of the writing or the facts in creating agency or sale is a matter for the court. Mechem
on Agency (2d ed.), sec. 50. Mr. Mechem (vol. 1, sec.
sec. 48) thus distinguishes a sale from agency to sell in these words:
The essence of sale is the transfer of the title to the goods for a price paid or to be paid.
Such a transfer puts the transferee, who has obtained the goods to sell again, in the attitude of
one who is selling his own goods, and makes him liable to the person from whom he received
them as a debtor for the price to be paid, and not liable as an agent for the proceeds of the
resale. The essence of agency to sell is the delivery of the goods to a person who is to sell
them, not as his own property, but as the property of the principal, who remains the owner of
the goods, and who therefore has the right to control the sale, to fix the price and terms, to
recall the goods, and to demand and receive their proceeds when sold, less the agent's
commission, but who has no right to a price for them before sale, or unless sold by the
agent.
2. To determine the character of the contract under consideration, we must, of course,
construe it as a whole, weighing all its terms and provisions in connection with the reasonable
and natural results of its performance, in order to gain a definite conception of the intention of
the parties in this regard. Mishawaka Woolen Mfg. Co. v. Westveer, 191 Fed. 465, 112 C. C.
A. 109. Since the actual results of the contract control in its construction, the real question is
as to the relation established between the parties by the contract, and this question is usually
one of law to be determined from all its provisions.
3. The intent of the parties in this instance is readily perceivable. What, then, is their
relation and the true meaning of their agreement? There is nothing in it to indicate that
Offerman took the goods upon consignment as a factor, or as an agent of any kind, with
power to transmit title to any article of merchandise of the vendors to subpurchasers; but,
construing the contract as a whole, it is obvious that Offerman contracted for the purchase of
the goods to sell upon his own account. The very use of its language and the conditions
prescribed to acquire title seem to expressly negative all idea of agency.
idea of agency. This conclusion is strengthened by the express provisions of the agreement,
which contains every element of a conditional sales contract and transmission of ownership
on performance. The decision and opinion of the trial court are incorporated in and made a
part of the findings of fact, and are included in the bill of exceptions. We find in the opinion
of the trial judge this pertinent clause to the point to be decided:
The case has proceeded upon the theory that the Somervilles were undisclosed principals
of Offermanthat they constituted Offerman their agent, and are responsible for debts that he
contracted. From my consideration of the case, I cannot reach this conclusion, unless the deal
shows a departure from what the courts require of the seller under conditional sales
contracts.
We are unable to find any fact or circumstance in evidence consistent with the theory of
counsel for the respondent, that the resale of the merchandise was to be made by Offerman as
agent of the Somervilles. The court in its findings of fact adheres closely to the terms and
conditions of the agreement of sale, and characterizes it as a conditional sales contract, but
concludes as a matter of law that the Somervilles, in placing Offerman in sole possession and
control of the said business, constituted and appointed Offerman to act as their agent to
manage the said business. We are of opinion that this conclusion is clearly erroneous.
Having answered the question propounded by counsel for respondent, Was Offerman the
agent of appellants at the time of ordering the goods from the respondent? in the negative, it
follows that the judgment must be reversed, and the cause remanded, with directions to the
lower court to render and enter judgment for the appellants, with costs of this appeal.
It is so ordered.
____________
47 Nev. 313, 313 (1923) Pedroli v. Scott
No. 2572
In Re PEDROLI'S ESTATE
PEDROLI v. SCOTT
December 5, 1923. 221 Pac. 241.
1. Executors and AdministratorsRemoved Administrator without Right of Possession
Pending Appeal which Was Ineffective Ab Initio.
Where an administrator appealed from an order removing him and appointing deceased's wife in his
place, and the wife qualified, but the appeal was dismissed as ineffective ab initio, for lack of right to
appeal, he had no right of possession of estate assets pending outcome of the appeal and after the time for
appeal was over.
2. Executors and administratorsExecutor De Son Tort at Common Law Defined.
At common law one who intermeddled with the goods of a deceased person was an executor de son
tort.
3. Executors and AdministratorsBeneficial Expenditures by Administrator Acting
Wrongfully Held Properly Approved.
Where an administrator, who appealed from a court order removing him and appointing the wife of
deceased, wrongfully refused to turn over the assets to the wife, the court nevertheless properly allowed
expenses incurred by him, whether paid or not, where they were necessary to protect the estate.
4. Executors and AdministratorsAdministrator Refusing to Surrender Possession Held
Protected in All Acts Rightful Executor Might Have Done.
An administrator refusing to surrender possession after removal is liable for all the assets of the estate
which came into his own hands and should be protected in all his acts, not for his own benefit, which a
rightful executor might have done.
Application of Joseph Scott, former administrator of the estate of Charles Pedroli,
deceased, for allowance of accounts. From an order approving and allowing certain
obligations and expenditures, and from an order denying a new trial, Louise Pedroli,
administratrix, appeals. Affirmed. Petition for rehearing denied.
Warren & Hawkins, for Appellant:
When administrator is removed his control of estate ends. In Re Pedroli's Estate, 44 Nev.
258.
Scott had no authority to use funds of estate for any purpose after he was removed, and
should be made to repay all sums so used.
repay all sums so used. Edney v. Baum, 73 N. W. 454; More v. More, 59 Pac. 823. A
removed executor is as completely severed from estate as if he were dead. Taylor v. Savage,
11 How. 282.
At time of appeal Scott had ceased to exist as administrator, no longer represented the
estate in any capacity, and estate had no interest in judgment from which he, as administrator,
appealed. In Re Pedroli's Estate, supra.
Nevada has no statute requiring appointment of special administrator when letters of
former administrator have been revoked. The court must appoint wife, if she is competent,
and revoke letters of administrator, upon her petition. Rev. Laws, 5907, 5908. Even where
circumstances require appointment of special administrator, judge need not appoint one. Rev.
Laws, 5932. We have no such mandatory provision as has California. In Re Moore, 24 Pac.
846, does not apply.
No person who legally comes into possession of assets of estate can be held to be executor
de son tort. 24 C. J. 1213. Coyle's Estate, 43 Pa. Co. 290; 11 R. C. L. 456. But even if he
could, he would not be entitled to bind estate by contract subsequent to removal. 11 R. C. L.
463; Linderink v. Sawyer, 92 Neb. 587.
True representative is bound by acts of executor de son tort which are lawful and which
true representative would be bound to perform in due course of administration. 24 C. J. 1218;
Buckley v. Barber, 6 Exch. (Eng.) 164; Burke v. Huff, 30 S. E. 546.
Payment of debts of decedent, if made by executor de son tort, is only act binding on true
representative. Note 31, A. & E. Ann. Cas. 264.
Pending Scott's appeal from order revoking his letters, proceedings were stayed, and
Louise Pedroli's rights were suspended. A special administrator should then have been
appointed. In Re Moore, 24 Pac. 846; In Re Chadbourne's Estate, 112 Pac. 472; More v.
More, 59 Pac. 823.
Pending attempted appeal, Scott was in position analogous to executor de son tort. Such
officer, under our practice, is not recognized. Pryor v. Downey, 50 Cal. 400. But principles of
law applicable to him are same whether he be treated as executor de son tort or not, though
we do not admit, even if common law were applicable, he is executor de son tort. One taking
under color of title in good faith is not executor of his own wrong, even though his claim
might not be substantiated. 3 Alexander on Wills, 1260.
The only question to be decided is: Should Scott receive credit for money he expended to
preserve the estate? The lower court found expenditures necessary and allowed and approved
them because they were beneficial to estate. Stat. 43 Eliz., c. 8.
An executor de son tort may prove, in mitigation of damages, payments made by him in
rightful course of administration, as they were not prejudicial to administrator de jure. Slate v.
Henkle, 78 Pac. 325, quoting Woerner on Administration (2d ed.), 125; 3 Alexander on
Wills, pars. 1273-1275.
The facts of this matter are these: On January 12, 1919, one Charles Pedroli, a resident of
Humboldt County, died intestate, leaving real and personal estate in said county. Joseph
Scott, the respondent, applied to the district court for letters of administration and in due time
was appointed administrator, whereupon he took possession of the assets of the estate.
Thereafter Louise Pedroli, claiming to be the common-law wife of the deceased, made
application for the removal of Scott as administrator and that she be appointed in his place to
administer upon the estate. On March 30, 1920, after full hearing upon such application, the
court made an order removing Joseph Scott as administrator and appointing Louise Pedroli
administratrix thereof. Scott, as administrator, undertook to appeal from said order of
removal to this court, giving the proper notice thereof and an undertaking on appeal.
However, no stay pending the disposition of the matter on appeal was obtained.
stay pending the disposition of the matter on appeal was obtained. Louise Pedroli qualified as
administratrix and made a motion to dismiss the appeal taken by Scott, which was sustained.
In Re Pedroli's Estate, 44 Nev. 258, 193 Pac. 852. Upon the qualification of Mrs. Pedroli as
administratrix she demanded of Scott the possession of all the assets of the estate, which he
refused to deliver to her. On June 8, 1920, Scott filed what he designated as his First
Account as administrator, and on March 15, 1921, he filed what he designated as his
Second Account as such administrator. He contends that after his appeal was finally
disposed of he delivered to Louise Pedroli, on or about the 15th of March, 1921, all of the
property of the estate.
Upon the hearing upon said two accounts the court approved and allowed certain
obligations contracted and expenditures made by Scott as administrator after the entry of the
order removing him as administrator. Louise Pedroli, the administratrix, has appealed from
such order, and from an order denying a motion for a new trial.
The contention of counsel for appellant is stated in his brief as follows:
Scott acquired his representative capacity and right to administer the estate solely by
virtue of the letters issued to him as administrator; these letters were by the court revoked and
canceled, and when so revoked all rights and powers vested in Scott, by reason of the
issuance of the letters, ceased by reason of the judgment revoking the letters. When the letters
of administration were revoked, as they were in Scott's case, March 30, 1920, he ceased to
exist in his official capacity. On April 7 letters were issued to this appellant, and from that
time until the present she has been the only person authorized by law to spend any of the
assets of this estate or to contract any obligations for which it should pay.
Thus it will be seen that it is conceded that Scott originally acquired possession of the
estate legally and so held it until the entry of the order of removal. It is contended on behalf
of respondent that Louise Pedroli, as administratrix, was not entitled to the possession of
the property of the estate pending the appeal, and that respondent could not legally or
safely surrender possession to her, and that the only person who would be entitled
thereto pending such appeal would be a special administrator, and that none such was
appointed or qualified.
contended on behalf of respondent that Louise Pedroli, as administratrix, was not entitled to
the possession of the property of the estate pending the appeal, and that respondent could not
legally or safely surrender possession to her, and that the only person who would be entitled
thereto pending such appeal would be a special administrator, and that none such was
appointed or qualified. To sustain this contention our attention is directed to In Re Moore's
Estate, 86 Cal. 72, 24 Pac. 846; More v. More, 127 Cal. 460, 59 Pac. 823; Estate of
Chadbourne, 14 Cal. App. 481, 112 Pac. 472.
It is said on behalf of appellant that we have no such statute as that relied upon by the
court in the decisions just cited, and, furthermore, that in those cases an actual right of appeal
was availed of, whereas there was no right of appeal availed of in this estate, as was decided
In Re Pedroli's Estate, supra, and therefore the retention of the property by Scott was not
pursuant to lawful authority, and hence he can be credited with no obligation contracted
subsequent to the order of removal.
1. Having held on the former appeal that Scott had no right of appeal as administrator (In
Re Pedroli's Estate, supra), and none other having been taken, we are clearly of the opinion
that Scott wrongfully held possession of the estate after the time had expired within which an
appeal might rightfully have been taken. This conclusion cannot successfully be questioned,
for it is self-evident that one who has no right cannot invest himself with one by undertaking
to do that which he is not authorized to do, but which some one else may do. That was the
situation which presented itself by Scott's attempted appeal. We held that it was of no effect
ab initio. Such is clearly the correct rule. Edney v. Baum, 53 Neb. 116, 73 N. W. 454; Bank v.
Stanton, 116 Mass. 435; Taylor v. Savage, 1 How. 282, 11 L. Ed. 132; More v. More, 127
Cal. 460, 59 Pac. 823; Union Savings & Trust Co. v. Eddingfield, (Ind. App.) 134 N. E. 497.
Having reached the above conclusion, but one question remains: Can Scott be credited
with the obligations incurred and the expenditures made by him after the entry of the
order of removal and prior to the final disposition of the former appeal by this court?
incurred and the expenditures made by him after the entry of the order of removal and prior to
the final disposition of the former appeal by this court?
Counsel for respondent asserts that Scott, during the pendency of the appeal, occupied a
position analogous to that of an executor de son tort at common law. It was said in the oral
argument that there can be no such thing in Nevada as an executor de son tort. Both counsel
seem to have proceeded upon that theory, but no argument is made to support the statement.
Our attention is not called to any statute abolishing the common-law rule relative to the
liability of one as such, as had been done in some states, and we do not decide as to its
existence. We observe, however, that some courts have held that it is repugnant to the letter
and spirit of the law of the state. 2 Woerner, Law of Administration (3d ed.), sec. 198.
Proceeding upon the assumption that there can be no such thing under our practice as an
executor de son tort, it naturally follows that the respondent must be held liable as a
wrongdoer. This being true, the question is solely as to the measure of his liability, and
naturally we must look for a standard by which to measure it.
In considering the contention of appellant we must bear in mind the fact that the
respondent came into the possession of the estate in question as an officer of the court having
jurisdiction of the settlement of the estates of deceased persons. He contends that his action at
all times has been in good faith, and such must have been the conclusion of the lower court.
2. It is the general rule in actions at law that one may recover such damage resulting from
the tort of another as may compensate him for the damage sustained, and at common law one
who intermeddled with the goods of a deceased person was held to be an executor de son tort.
Mr. Schouler in his work on Executors and Administrators, at section 187, says:
The legal consequence of becoming what was styled an executor de son tort was to render
one's self liable, not only to an action by the rightful executor or administrator, but also so
as to be sued as executor by a creditor of the deceased, or by a legatee; for, as Lord
Cottenham observes, an executor de son tort has all the liabilities, though none of the
privileges, that belong to the character of executor."
administrator, but also so as to be sued as executor by a creditor of the deceased, or by a
legatee; for, as Lord Cottenham observes, an executor de son tort has all the liabilities, though
none of the privileges, that belong to the character of executor.
It is said in 1 Williams on Executors (6 Am. Ed.) at page 305:
When a man has so acted as to become in law an executor de son tort, he thereby renders
himself liable, not only to an action by the rightful executor or administrator, but also to be
sued as executor by a creditor of the deceased, or by a legatee; for an executor de son tort has
all the liabilities, though none of the privileges that belong to the character of executor.
Mr. Woerner in his American Law of Administration (2d ed.), sec. 194, says:
The liability of an executor de son tort does not, at common law, extend beyond the
goods which he has administered; for while he is not allowed, by his own wrongful act, to
acquire any benefit, yet he is protected, if he pleads properly, for all acts other than those for
his own advantage, which a rightful executor might do.
Such is the well-established rule. 11 Am. & Eng. Ency. Law (2d ed.), 1351; 11 R. C. L. p.
461; 24 C. J. sec. 2933. Such was the rule established by statute (43 Eliz. c. 8) 4 Bacon's Abr.
p. 28.
3, 4. We think the respondent should be liable for all of the assets of the estate which
came into his hands and that he should be protected in all of his acts (not for his own benefit)
which a rightful executor might have done. It is very evident that it was upon this theory that
the lower court proceeded. We think this rule is the correct one and that it is in consonance
with reason and justice and the common law, because by adopting it the estate is not made to
suffer, nor does the respondent profit as a result of his own wrong. If the respondent had
turned over to the appellant the estate upon her qualification, the estate would have been
liable for all necessary expenses incurred in its preservation and protection, plus her
commission.
and protection, plus her commission. Why should it not pay the expenses incurred by the
respondent in preserving it? In what way has it been damaged? Counsel says appellant might
have handled the estate at much greater savings than did the respondent. Perhaps she might;
but, on the other hand, she might have incurred much greater expense in handling it. But this
is pure speculation. The lower court found that the indebtedness so incurred was necessary
and proper for the protection of the estate, and, as appellant did not bring up the evidence, the
presumption is conclusive in favor of the findings so made.
Our attention is directed to the case of Slate v. Henkle, 45 Or. 430, 78 Pac. 325, as
sustaining the conclusion we have reached. It reviewed the authorities as to an executor de
son tort, and quotes approvingly as follows from Rutherford v. Thompson, 14 Or. 236, 12
Pac. 382:
The person who intermeddles with the goods of the deceased is now only responsible to
answer in an action to the rightful executor or administrator. And, whether we consider the
intermeddler as an executor de son tort, or as a wrongdoer, the liability to respond to the
rightful executor or administrator is the same, and unaffected, and the law unchanged. The
fiction of office may be gone, but the unauthorized act of intermeddling remains, to be dealt
with judicially, according to the principles of right and justice, as applied by the law in such
cases. Now, from the fact that the intermeddler with the goods of a deceased is only liable to
respond to the rightful executor or administrator for the value of the goods, etc., it by no
means follows, if what he did was of benefit and not injury to the estate, as the payment of
funeral expenses, or debts of the deceased, or charges such as the rightful representative
might have been compelled to pay, he would not be allowed to show the same in mitigation
of damages in an action of trover, instituted by such executor or administrator. In thus
compelling him to account with only the rightful representative, the statute does not purport
or undertake to deprive him of any proper or legitimate defense.
deprive him of any proper or legitimate defense. The title of executor de son tort may be
repudiated, but the justice of the law will remain, to distinguish between acts which are
beneficial and those which are injurious to an estate.
But it is said that the lower court gave credit for certain items of expense incurred by the
respondent which he had not paid and hence should not have been allowed. It is said that not
an authority can be found holding that such items should be allowed. It can as well be said
that not one has been cited holding the contrary. We think, however, the case of Slate v.
Henkle, supra, is contrary to appellant's contention. It was there held that the item of $100
claimed by Slate should have been allowed if the services were rendered in preserving or
caring for the property of the estate. In any event the estate got the benefit of the articles
enumerated and should pay for them. There is no more reason for allowing credit for things
actually paid for and which benefited the estate than for those which were not paid for, if they
benefited the estate.
Another suggestion is made by counsel for appellant, but it goes rather to a matter of
policy than to a question of law, and we decline to consider it.
Perceiving no prejudicial error, the order and judgment are affirmed.
April 14, 1924.
A lengthy petition for a rehearing has been filed. It urges the granting of a rehearing upon
several grounds. So far as the argument advanced which goes to support the contention that
we erred in our ruling upon the matters presented and considered originally, we wish simply
to say that we are entirely satisfied with our former disposition of them.
We may observe that the petition urges two additional theories why we should grant a
rehearing, one of which is antagonistic to that urged in the original brief. We could dispose of
both of them upon the ground that a point urged for the first time in a petition for a
rehearing will not be considered.
could dispose of both of them upon the ground that a point urged for the first time in a
petition for a rehearing will not be considered. Nelson v. Smith, 42 Nev. 302, 178 Pac. 625.
As to the ground which is antagonistic to the original theory, it may be said it is a
well-established rule that when a case has been tried upon one theory a party will not be
permitted to shift his position and urge a theory diametrically opposed to the one originally
relied upon.
The petition for rehearing is denied.
____________
No. 2605
In Re PEDROLI'S ESTATE
PEDROLI v. SCOTT
December 5, 1923. 221 Pac. 244.
1. Executors and AdministratorsAdministrator Turning Cattle Loose on Ranch held
Chargeable with Value of Those Not Found by Successor.
Under Rev. Laws, 6036, relieving administrators from loss by decrease or destruction of any part of
the estate without their fault, an administrator who turned out cattle in December and paid them no
further attention, thus compelling his successor to employ a foreman to search for the cattle, held
properly charged with the value of those not found.
2. Executors and AdministratorsAdministrator Acting in Good Faith and Ordinary Prudence
Held Not Liable for Loss.
Under Rev. Laws, 6036, relieving administrators from loss by decrease or destruction of any part of
the estate without their fault, an administrator is not liable for losses when he acts in good faith and
exercises ordinary prudence.
3. EvidenceCourt Held Not to Judicially Notice a Custom of Ranchmen in Caring for Cattle.
In an administrator's action against a former administrator for failure to deliver cattle of the estate, the
court could not judicially notice a custom of ranchmen to care for cattle by merely turning them loose.
Proceedings on final report of Joseph Scott, administrator of Charles Pedroli, deceased.
From a judgment against the administrator for certain cattle which he failed to turn over, and
from an order denying a new trial, he appeals. Affirmed. Petition for rehearing denied.
The administrator shall not make profit by increase nor suffer loss by decrease of any part
of estate without his fault. Rev. Laws, 6036.
We believe it can be judicially noticed that it is custom throughout state for cattlemen to
allow stock to run at large on range. When Scott was appointed, all cattle were on range. He
did not herd them in, but left them in usual place, looking them over occasionally. Manual
delivery was impossible. He is not liable for loss in absence of bad faith or negligence. Ring's
Estate, 109 N. W. 710; Hill v. Evans, 91 S. W. 1022; 11 R. C. L. 134.
L. O. Hawkins, for Respondent:
Instead of record showing Scott was without fault, it shows that he was negligent. He
never made any effort to find the missing cattle or to turn over assets of estate to his
successor. It was his duty to turn over all property, or account for his failure to do so.
We have no issue with counsel's authorities, but rely on the fact that Scott has failed to
excuse himself for his failure to deliver the forty head of cattle he was charged with. It is true
that cattle stray and become lost from range, consequently greater care is required than if they
were kept in field. Instead of taking greater precautions, Scott took less. When seeking to
escape liability, administrator must show he is without fault. 5 Ency. Ev. 432; Conser's
Estate, 66 Pac. 607; Roach's Estate, 92 Pac. 119, 18 Cyc. 1181; 24 C. J. 1018.
Scott has not shown he was free from fault, nor brought himself within exception of Rev.
Laws, 6036.
This is a companion case to that of In Re Estate of Pedroli (No. 2572) [immediately
preceding], 221 Pac. 241, the opinion in which is filed herewith, and grows out of the same
matters, but is an appeal by Joseph Scott from the order entered upon the settlement of his
final report, wherein the court adjudged him to be liable for certain cattle which came into his
possession as administrator. The court found that Scott turned over and accounted to the
administratrix for forty head of cattle less than he received, of the value of $1,612, and
entered judgment therefor, from which and an order denying a motion for a new trial an
appeal has been taken.
over and accounted to the administratrix for forty head of cattle less than he received, of the
value of $1,612, and entered judgment therefor, from which and an order denying a motion
for a new trial an appeal has been taken. Scott has brought up by bill of exception the
evidence upon the point in question.
1. He testified that in the fall he turned out upon the range the cattle, which were in good
condition; that he kept some of the cattle at the ranch and took a number of others to the Lay
ranch in the month of December; that he purchased a stack of hay from Mr. Lay, which he
was to feed to the cattle that were taken to his ranch. He testified that the last he knew of the
cattle taken to that ranch they were still there. There is no showing that appellant gave the
cattle turned out any further attention, except a few that strayed into the ranch.
On March 3, 1921, the final order in the matter of the appeal by Scott was made. On the
15th of the month he filed his Second Account. He contends that on or about that day he
delivered all of the property of the estate to Louise Pedroli, administratrix. He does not
contend that the cattle were rounded up and actually turned over to her.
As we read the record in this case, appellant made no actual delivery of the assets of the
estate except an automobile and two pigs, after it was finally determined that he had no right
to appeal and was no longer the administrator. He seemed to have been content to assume the
attitude of relinquishing his administratorship and of leaving it to his successor to find the
assets thereof as best she could. After his relinquishment Mrs. pedroli employed a Mr.
Springer as foreman, who, as observed by counsel for appellant in their brief, immediately
started in to gather the cattle. After about two weeks search, he found all but forty head.
Appellant contends that he is not liable for any loss not due to his fault, citing in support of
the contention section 6036 of the Revised Laws. This section, referring to the extent of
liability of executor or administrator upon making an accounting, reads: "He shall not make
profit by the increase nor suffer loss by the decrease or destruction of any part of the
estate without his fault.
He shall not make profit by the increase nor suffer loss by the decrease or destruction of
any part of the estate without his fault. He shall account for the excess when he shall sell any
part of the estate for more than the appraisement, and if any be sold for less than the
appraisement he shall not be responsible for the loss if the sale has been justly made.
2. Speaking broadly, it was held in Estate of Millenovich, 5 Nev. 161, that an
administrator is not liable for losses when he acts in good faith and exercises ordinary
prudence. We think this a safe rule. We must assume that the lower court, in reaching its
conclusion, was guided by the law of this state.
3. This brings us to the one question in the case, namely: Was the lower court, from the
evidence before it, justified in reaching the conclusion which it did? Counsel for appellant
contend that a custom prevails in this state of handling cattle just as appellant is shown to
have done, of which we must take judicial notice, and hence it appears that he exercised good
faith and ordinary prudence, and therefore is not liable. Just why we should take judicial
notice of such a custom is not pointed out, and we can conceive of no theory upon which we
can adopt the suggestion. If there be such a custom, proof thereof should have been made if
reliance thereon was desired. On the contrary, what evidence there is in the record is to the
effect that there was no uniform custom. The testimony on this point, it is true, is very slight,
but it is such as to refute the contention made. It was a matter for the consideration of the trial
court, and we cannot say that it erred.
Judgment and order appealed from are affirmed.
April 14, 1924.
Per Curiam:
Rehearing denied.
____________
47 Nev. 326, 326 (1923) Mentaberry v. Mentaberry
No. 2587
MENTABERRY v. MENTABERRY
December 5, 1923. 220 Pac. 548.
1. PartnershipIn Suit for Accounting between Surviving Partner and Administratrix of
Deceased Partner, Equity Alone Is Competent to Administer Relief.
In a suit for an accounting by a surviving partner against the administratrix of a deceased partner, a court
of equity alone is competent to administer full relief to the survivor, the administrator, and partnership
creditors.
2. PartnershipDecree Ordering Partnership Assets in hands of Administratrix Paid Directly to
Creditors, instead of to Surviving Partner, Held Proper.
Where, in a suit for an accounting by a surviving partner against the administratrix of deceased
partner, it developed that the partnership estate and the decedent's estate were insolvent, the court
properly ordered partnership assets paid directly to the partnership creditors, whose claims had been filed
and allowed, in preference to turning them over to the plaintiff.
3. EstoppelSurviving Partner Held Barred by His Conduct from Complaining of Judgment
Permitting Payment by Administratrix to Creditors.
Where a surviving partner stood by an allowed the administratrix of a deceased partner to reduce the
partnership assets to her possession and distribute them under the court's orders without objection, and
made no effort to take control of the property from the administratrix, he cannot, in an action for an
accounting, complain of decree directing administratrix to apply moneys still in her hands to payment of
firm debts, instead of delivering them to the surviving partner; he being given judgment for all sums not
so expended.
Suit by Baptiste Mentaberry against Victoriana Mentaberry, individually and as
administratrix of the estate of Juan Mentaberry, deceased. From the decree rendered, plaintiff
appeals. Affirmed. Petition for rehearing denied.
The surviving partner is entitled to possession of all partnership effects. Rev. Laws, 6025;
Reese v. Kinkead, 17 Nev. 447.
It is surviving partner's right and duty to settle partnership affairs. He may be able to satisfy
every creditor, thereby relieving himself of further obligation, but administratrix is now
ordered to pay preferred creditors certain parts of their claims without regard to
plaintiff's rights.
creditor, thereby relieving himself of further obligation, but administratrix is now ordered to
pay preferred creditors certain parts of their claims without regard to plaintiff's rights. She is
using plaintiff's money to pay his debts as she sees fit.
While representatives of deceased partner cannot be joined with survivor as a rule in
action at law, estate is everywhere liable for firm obligations. 30 Cyc. 644.
Neither laches nor estoppel was established.
Thomas E. Powell, for Respondent:
There is no evidence that there are creditors other than those named. The court ordered
respondent to apply all partnership funds to payment of partnership creditors. Appellant
cannot be prejudiced by judgment.
Neither respondent, as administratrix or in individual capacity, nor creditors can be placed
in statu quo; they have been prejudiced by appellant's laches, and equity will deny relief
demanded.
This is a suit between Baptiste Mentaberry and Victoriana Mentaberry, individually and as
administratrix of the estate of Juan Mentaberry, deceased. It appears from the complaint that
plaintiff and Juan Mentaberry were, during the lifetime of the latter, partners, engaged in the
livestock business, or more particularly in buying, selling, and herding sheep. Juan
Mentaberry died intestate in Humboldt County in November, 1918, and in January, 1919,
letters of administration upon his estate issued to his widow, Victoriana Mentaberry. It is
alleged that as such administratrix she caused to be inventoried as the property of the
deceased all the property, both real and personal, of the copartnership, and in the course of
her administration expended all the partnership assets under the orders of the probate court,
except the sum of $4,864.06. The prayer of the complaint is that an account be taken of all
and singular the partnership property, and that the defendant be directed to deliver to plaintiff,
as surviving partner, all partnership property of whatsoever character in her hands.
character in her hands. The defendant, in her own right and as administratrix, contested the
plaintiff's right to an accounting, upon the ground that no partnership existed between
plaintiff and the deceased, and that the latter died seised and possessed of all the property
inventoried as the property of his estate. The issue was decided adversely to the defendant,
and she was ordered to render and file a full account of all and singular the partnership
property and of her transactions in connection therewith. This she did, and, upon the
settlement of exceptions filed to her account, the court made special findings of fact and
conclusions of law, and upon these findings and conclusions rendered judgment favorable in
all respects to plaintiff and the creditors of the partnership whose claims had been filed,
allowed, and approved against the estate of the deceased.
Plaintiff, however, appeals from the judgment, with the view of having this court modify
so much thereof as is predicated upon the conclusion of law that the defendant should apply
all of said moneys now held by her, to wit, $4,864.06, to the payment, pro rata, of the
partnership claims, which were presented, allowed, and approved as claims against the estate
of Juan Mentaberry, deceased, as shown by the defendant's account of her administration.
Appellant asks that the judgment be modified, by directing the trial court to order the
defendant to pay said sum of $4,864.06 to plaintiff, for the reason that, both on principle and
on authority of the statute, upon the dissolution of a partnership by death, the legal title to the
firm assets vests in the surviving partners, who are given exclusive right to the possession and
control of the partnership assets, for the purpose of paying the partnership debts and
disposing of the partnership effects for the benefit of the survivor and the estate of the
deceased.
1, 2. In an action between a surviving partner and the administrator of a deceased partner,
a court of equity alone is competent to administer proper and full relief to the survivor, the
administrator, and the creditors of the partnership, where the action is one for an
accounting.
to the survivor, the administrator, and the creditors of the partnership, where the action is one
for an accounting. In the case at bar, as we interpret the finding of facts, the court's judgment
simply directs that the sum of $4,864.06, held by the defendant, be applied directly to the
payment of the firm debts which had been presented, allowed, and approved as claims against
the estate of the deceased.
It is held in numerous cases that, even when an action at law will not lie, the surviving
partner may be entitled to maintain a suit in equity for an accounting and decree against the
deceased partner's representatives. 30 Cyc. 649. Upon the showing made on the accounting in
this case, the court treated the fund of $4,864.06 as a partnership asset, to be appropriated to
the payment of the partnership debts in preference to the claim of plaintiff as a member of the
partnership. It developed from the accounting that both the partnership and the estate of the
deceased was insolvent. The court, under the circumstances, could not have done otherwise,
in justice to the creditors or the administratrix, than to order the money in the latter's hands
paid directly to the firm creditors. The creditors had a primary and preferable claim, and the
administratrix had the right to insist upon the due application of the money directly to those
shown to be entitled to participate in its distribution.
3. Furthermore, under the findings, we do not appreciate that appellant has shown himself
to be entitled to the modification of the judgment. It is inferable from the findings that he is
alone responsible for the position in which he finds himself. It seems that he stood by and
allowed the defendant to reduce the partnership assets to her possession as administratrix and
distribute them under the orders of the court without objection, and made no effort to take
control of the property from the administratrix. The plaintiff was given judgment for all sums
of money belonging to the partnership, which had not been expended by the administratrix in
payment of the partnership debts. The court by its decree and judgment was careful to
safeguard and protect the creditors of the partnership in a manner in keeping with
common sense and justice.
court by its decree and judgment was careful to safeguard and protect the creditors of the
partnership in a manner in keeping with common sense and justice.
I concur in the order of affirmance. The theory of appellant is that, being a partner, the
privilege of closing up the affairs of the partnership vested in him. Unquestionably this
general rule is well recognized and has been incorporated into our statutory law (Rev. Laws,
6025; Yturriaga v. Cobeaga, 47 Nev. 59, 214 Pac. 27), but the question naturally arises in this
connection if that right is not a mere privilege, which may be renounced or waived.
Let us look at the facts of this case: At the time of the death of Juan Mentaberry, the
plaintiff was, and for eight years theretofore had been, a resident of France. He did not arrive
in the United States for four months thereafter, and upon his arrival he found that the
respondent had qualified as administratrix of the estate of Juan Mentaberry, and as such had
taken possession of all of the assets of the partnership, and was administering them as the
assets of the estate of the deceased. Notice having been given only to the creditors of Juan
Mentaberry, the creditors of the partnership filed their claims, which were approved and
allowed by the court as claims against the estate of Juan Mentaberry. It may be well to
observe that there is no finding of the court as to whether the business was run under a firm
name or in the name of Juan Mentaberry. It appears from the findings of the court that there is
now due to the creditors of the partnership upon the claims allowed by the court over
$15,000, and that there is in the hands of the respondent the sum of $4,864.06 with which to
pay such claims, and which the court has ordered the respondent to apply thereto. It is from
this order that the appeal is taken.
As we have pointed out, it is the privilege of a surviving partner to close up the affairs of a
partnership; but, when such surviving partner is not at hand to take charge of the partnership
affairs, the court, upon proper application, will appoint a receiver to do so, rather than permit
the assets of the partnership to be wasted. No receiver was appointed in this matter, but the
property was taken charge of and preserved under the supervision of the court, and the
plaintiff stood by for over two years after the death of Juan Mentaberry without invoking the
aid of a court to enable him to exercise the right of survivorship conferred upon him by the
statute. While the partnership estate has been administered as a probate proceeding, the
identical results have been accomplished which might and would have been attained, so far as
the money in question is concerned, in a receivership proceeding. The creditors of the
partnership and the plaintiff have been fully protected.
In the circumstances, no benefit would result to any one by a reversal of the judgment, and
we cannot say that the lower court erred; but, if it did, since section 5066, Rev. Laws,
provides that no judgment shall be reversed when the substantial rights of the parties are not
invaded, the judgment should be affirmed.
April 5, 1924.
Per Curiam:
Rehearing denied.
____________
47 Nev. 332, 332 (1924) Giannotti v. De Bock
No. 2608
GIANNOTTI v. DE BOCK
January 5, 1924. 221 Pac. 520.
1. Appeal and ErrorMotion for New Trial Necessary to Secure Consideration of Evidence.
The necessity for making a motion for a new trial, when a consideration of the evidence is desired, as
provided in Rev. Laws, 5328, is not dispensed with by a contention that the undisputed evidence does not
in law justify the findings and the judgment.
Appeal from Second Judicial District Court, Washoe County; C. J. McFadden, Judge of
Ninth Judicial District, presiding.
Action by Assunta Giannotti against Gus De Bock. Judgment for defendant, and plaintiff
appeals. Affirmed.
Frame & Raffetto, for Appellant:
Only purpose of motion for new trial is to call court's attention to errors of law occurring at
trial. If errors complained of were errors occurring at trial, respondent's position would be
correct, but sufficiency of evidence to support decision can be reviewed without motion for
new trial, as same is not error of law occurring at trial. The evidence offered below being
before this court, contained in proper statement, embodied in in record, appellant is entitled to
have question of sufficiency examined.
There is no legal or competent evidence to support findings and judgment. Incompetent
evidence is not sufficient to raise such conflict of evidence as to preclude this court from
examining its sufficiency upon appeal and reversing judgment, where evidence fails to
support judgment. McCloud v. Miller & Lux, 40 Nev. 447.
Sardis Summerfield, for Respondent:
Transcript on appeal contains what is designated as Statement on Appeal and which
does contain summary of material evidence. Respondent's counsel signed it with express
reservation to move for its suppression and to object to its consideration by this court on
ground it is unauthorized by law and does not comply with provisions providing mode in
which evidence in trial court may be incorporated in transcript on appeal.
with provisions providing mode in which evidence in trial court may be incorporated in
transcript on appeal.
Pursuant to such reservation, respondent now moves to suppress statement, and that this
court refuse to consider it.
No motion for new trial was made. Such motion is necessary when alleged errors
respecting evidence are relied upon. Gill v. Goldfield Con. M. Co., 43 Nev. 1.
If respondent's motion be sustained, nothing remains to consider except judgment roll. No
error being disclosed there, judgment should be affirmed as matter of course.
This is an appeal from the judgment. No motion for a new trial was made in the action.
Counsel for respondent contends that we cannot consider the evidence in the case, since no
motion for a new trial was made. In this contention he is clearly right, as we have repeatedly
held. Section 386 of our civil code (Rev. Laws, 5328) reads:
Where the appeal is based upon the ground that the evidence is insufficient to justify the
verdict or decision of the court, or to support the findings, * * * a motion for a new trial must
be made and determined before the appeal is taken. * * *
It is appellant's contention that there is no legal or competent evidence in the record to
support the findings and judgment. In other words, that the undisputed evidence does not in
the law justify the findings and judgment. Upon this it is said that no motion for a new trial
was necessary.
As we understand the theory and reason for requiring that a motion for a new trial be made
and passed upon before this court can consider the evidence, it is 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. 2 R. C. L. p. 98, sec. 72.
Speaking of statutes such as ours, it is said in 3 C. J. 963:
Where a motion for a new trial is required, it cannot be waived or dispensed with by
stipulation of the parties.
The provision of the statute quoted is clear and unambiguous, and has, in the past, been
construed according to its clear import. It is not our prerogative or desire to nullify statutes by
strained construction.
We held in Gill v. Goldfield Consolidated Mining Co., 43 Nev. 1, 176 Pac. 784, 184 Pac.
309, that a motion for a new trial must be made when a consideration of the evidence is
desired by the court.
No error appearing upon the judgment roll proper, it is ordered that the judgment appealed
from be affirmed.
____________
47 Nev. 334, 334 (1924) Harwood v. Carter
No. 2597
HARWOOD v. CARTER, Et Al.,
and
SEEDS, Et Al., v. SAME
January 5, 1924. 222 Pac. 280.
1. Limitation of ActionsAmendment Held Not to State New Cause of Action.
An amendment to a complaint, seeking relief upon a written agreement, which consisted of a new
count upon an implied contract for the same services, did not state a new and distinct cause of action and
could not be resisted on the ground that the cause of action for value of plaintiff's services was barred by
the statute of limitations; both counts being for the same cause of action.
2. Work and LaborAttorney May Recover Reasonable Value of Services, though Contract
Void.
Though contract to pay attorneys was void because attorneys failed and neglected to give their client
full information and explanation of the facts and the law, the attorneys could recover the reasonable value
of their services if the contract was not inherently malum in se or malum prohibitum.
3. Champerty and MaintenanceContract for Fee in Divorce Case Held Not against Public
Policy.
The fact that attorneys entered into contract upon a contingent fee basis in divorce case was void as
against public policy did not render invalid a second contract for a fee in such case, where the first
contract was canceled by indorsement.
4. Husband and WifeAttorney May Recover for Services Rendered Married Woman in
Divorce Case.
An attorney is not precluded from recovering compensation on a quantum meruit from a woman for
services rendered her in a divorce action, even though a contract with her as a married woman was void;
such contract not being inherently malum in se or malum prohibitum.
5. Attorney and ClientAllowance of $2,000 Held Not Excessive.
In an action by attorneys to recover on quantum meruit for services rendered defendant in a divorce
action, a judgment for $2,000 held not excessive, though the court in the divorce action refused to require
husband to pay counsel fees to enable defendant to carry on or defend the action, under Rev. Laws, 5843.
6. DivorceCounsel Fees Allowed to Wife, and Not Attorney.
Counsel fees in a divorce action under Rev. Laws, 5843, are allowed to the wife, and not to her attorney.
7. DivorceWife Not Entitled to Counsel Fees Absolutely.
Right of wife to counsel fees in divorce action is not an absolute right, but is a matter to be
determined by the wise discretion of the court.
Actions by C. L. Harwood, and by William P. Seeds and H. H. Howard, the last two
composing the firm of Seeds & Howard, respectively, against Mary E. Carter, formerly Mary
E. Summerfield, and another, consolidated. Judgment for plaintiffs, and defendants appeal.
Affirmed. Rehearing denied.
James Glynn and Hoyt, Norcross, Thatcher, Woodburn & Henley, for Appellant:
No valid judgment could be entered upon either contract, because a contract for contingent
fee in divorce case is against public policy. Newman v. Frietas, 61 Pac. 907; Nelson,
Marriage and Divorce, sec. 881.
Married woman cannot make valid contract except in relation to her separate property,
owned at time of contract. Stewart, Husband and Wife, secs. 372, 373; Beckman v. Stanley, 8
Nev. 257. Her intention to charge separate property must be declared. Miller v. Newton, 23
Cal. 354. Divorce proceedings are no exception. Drais v. Hogan, 50 Cal. 121.
Attorney must show client contracted freely and with full knowledge of her rights and
effect of instrument.
full knowledge of her rights and effect of instrument. 2 R. C. L. 1037; Moore v. Rochester
Weaver M. Co., 42 Nev. 164.
The subject-matter of action, i. e., attorney's fee, could have been disposed of in the divorce
action. Hence no cause of action was stated. Goldman v. Clark, 1 Nev. 609; Stewart, Husband
and Wife, secs. 357, 379.
If injury to client results from lack of skill, knowledge, or care of attorney, he is
responsible in damages, even if acting gratuitously. 5 C. J. 696; Board v. Rankin, 134 S. W.
157.
Second amended complaint was barred, though it stated cause of action, since filing
defective original complaint did not stop running of statute. Action is barred if good pleading
is not filed in time. M. T. & K. Ry. Co. v. Bagley, 3 L. R. A. (N. S.) 273.
Original complaint was based on express contract only. Complaint on implied contract
was filed more than four years after services were rendered.
Cooke, French & Stoddard, for Respondent:
Married woman, not shown to have separate property, living apart from husband, may
make legal agreement with attorneys to defend divorce action where husband sets up claim to
homestead property adverse to wife. Wife may sue and be sued alone when living separate.
Rev. Laws, 2179, 4989, 4995, 4996, as amended Stats. 1913, p. 28; Leonard v. Townsend, 26
Cal. 435. She may contract with attorney to defend such suit though she has no property, and
such contract may be enforced against property subsequently acquired. Harrington v. Lowe,
84 Pac. 570.
Rev. Laws, 2173, completely removes common-law disabilities. Colonial Mortgage Co. v.
Stevens, 55 N. W. 578; Bank v. Flourney, 171 Pac. 793.
The services were valuable, even if not entirely successful. Had husband succeeded, wife
would have been left without anything.
Original and amended complaints stated cause of action. Allegation that plaintiffs' services
actually saved property was not necessary.
saved property was not necessary. Rev. Laws, 2173, and cases cited, supra.
The action was commenced on filing of complaint. All amendments related back. Running
of statute was arrested. 17 R. C. L. 814, 815. An amendment which states no new cause of
action, but merely new grounds germane to charge, relates back to original complaint and
may be upheld without regard to statute of limitations. 17 R. C. L. 821; Hagenauer v. Detroit
Copper Co. 124 Pac. 803. Statute is arrested if amendment contains even part of original
pleading. T. & N. R. R. Co. v. Clippinger, 106 S. W. 156.
Defendant was fully advised of her right to apply for order for attorneys' fee, but said she
knew the judge would not make any additional allowance. Hence agreement was made that
she pay what services were reasonably worth.
Burden is not on attorney to disprove negligence unless some fraud is involved, but
plaintiff must show valid claim lost or impaired thereby. Priest v. Dodsworth, 14 Am. & Eng.
Ann. Cas. 340.
Alleged negligence is not now available, since it is complete departure from theory on
which case was tried. Bralis v. Flanges, 45 Nev. 178; 3 C. J. 704, et seq.
Agreement for compensation of attorneys is not restrained by law. Rev. Laws, 5376. The
only restriction is that transaction must be fair.
Attorney may make new contract abrogating old contract. Moran v. Simpson, 173 S. W.
769.
Ordinarily client is bound, unless he can show abuse of confidence by attorney. Kirchoff v.
Bernstein, 181 Pac. 756.
These cases were consolidated and tried as one case in the court below, and upon the
calling of the cases for trial it was agreed in open court that the decision or judgment in either
case should be conclusive and binding on the parties in the other. The two appeals involve
the same subject-matter.
the same subject-matter. They are briefed and submitted together so as to be considered in
one opinion.
For present purposes the facts and the proceedings may be stated to be as follows:
On January 10, 1908, Mary E. Carter, then the wife of Sardis Summerfield, employed
plaintiffs as her attorneys to represent her in all the difficulties then existing between her and
her husband, Sardis Summerfield. On that date she promised and agreed in writing to pay
plaintiffs for their services the sum of $5,000, contingent upon the settlement of her marital
differences by divorce proceedings or otherwise; it being understood and agreed that any
allowances made by the court for attorneys' fees in the divorce proceedings should be credited
on said sum of $5,000. Before any formal steps had been taken by her said attorneys, the
husband sued his wife for a divorce. He prayed decree, and also that the community property
of the marriage, alleged to be of the valued of approximately $75,000, be awarded to him.
The defendant answered the complaint, and in her answer by way of cross-complaint prayed a
divorce, upon the ground of extreme cruelty, and also prayed that the community property, of
the alleged value of about $100,000, be equally divided between the parties. Thereafter the
defendant made formal application to the court for an order requiring her husband to pay to
her or into court a sum necessary to enable her to defend the suit and carry on her
cross-action. Pending the hearing, her attorneys apparently became apprehensive that her
application for attorneys' fees would be denied. Before the court had ruled upon her
application, the defendant met with her attorneys in the office of one of plaintiffs and entered
into an agreement in writing, whereby the defendant promised and agreed to pay plaintiffs the
sum of $5,000 for their services in the case of Summerfield v. Summerfield, with the
understanding that any allowance made by the court in the cause for attorneys' fees would be
credited upon the said sum of $5,000. Contemporaneously with the making of this agreement,
to wit, on January 29, 1908, the parties canceled their agreement of January 10, 190S, by
an indorsement written thereon.
canceled their agreement of January 10, 1908, by an indorsement written thereon. The court
ultimately denied defendant's application for attorneys' fees, apparently for the reason that a
necessity existed therefor; it affirmatively appearing that the defendant had entered into an
agreement with her attorneys with respect to their compensation.
The divorce suit of Summerfield v. Summerfield came on for trial before a jury. About
twelve days were consumed in the trial of the bitterly contested issues, and the jury decided
that neither party was entitled to a divorce, and the court so adjudged and dismissed the
proceedings at the cost of the husband. Thereafter the wife, without knowledge of her
attorneys, made a settlement with her husband of her right and interest in and to the
community property of their marriage. Thereafter the husband again sued for divorce,
alleging as grounds therefor abandonment and desertion, and also alleged in his complaint
that the parties had amicably settled their rights in and to the community property of the
marriage. The defendant did not apprise her said attorneys of this action, made no appearance
therein, and upon her default for her failure to appear and answer her husband was granted a
divorce. In the decree the court expressly recognized and confirmed the amicable settlement
made by the parties with respect to the community property.
Thereafter, upon demand of plaintiffs, Mrs. Summerfield declined and refused to pay
plaintiffs for their services, disclaimed owing them any sum for their services, and repudiated
her obligation of January 29, 1908. Thereafter, in January, 1912, plaintiffs sued to recover
both on the written contract of January 29, 1908, and on quantum meruit for the sum of
$5,000. Subsequently the defendant intermarried with Jennings William Carter, and in 1914
plaintiffs amended their complaint to conform to that fact and made her husband a party pro
forma. Thereafter, in 1921, plaintiffs filed their second amended complaint, stating therein, as
in the original complaint, two causes of action; one upon the contract of January 29, 190S,
and the other to recover the reasonable value of their services.
contract of January 29, 1908, and the other to recover the reasonable value of their services.
Upon the overruling of the demurrer to the second amended complaint, defendant, in addition
to the denials contained in her answer, set up several separate and distinct defenses of a legal
nature, to which the plaintiffs made reply. The case was tried to the court without a jury. The
court found the facts to be as stated in plaintiffs' second cause of action based upon a
quantum meruit, and concluded as a matter of law that plaintiffs were entitled to have and
recover judgment for the reasonable value of the services rendered the defendant in said
divorce action of Summerfield v. Summerfield, assessed at $2,000, and thereupon the court
rendered judgment for that sum, with direction that the amount be divided equally between
plaintiffs. Thereafter the defendant moved for a new trial, which motion was ordered
overruled. The defendant thereupon offered proposed findings of fact and conclusions of law
in conformity to her separate and distinct defenses, which the court refused to adopt. The
defendant appeals from the judgment and said order.
It is conceded that when the defendant employed plaintiffs she had no separate property,
as that term is defined by our so-called married woman's act (Rev. Laws, 2155, et seq.). The
principal, if not the only material, conflict in the evidence is that relating to the facts and
circumstances surrounding the cancelation of the defendant's first agreement of employment,
bearing date of January 10, 1908, and the making of the agreement of January 29, 1908.
According to the testimony of the defendant, plaintiffs failed and neglected to explain to her
the reason or the necessity for the cancelation of her original agreement to employ plaintiffs
on a contingent fee basis, and failed and neglected to advise her of the legal effect of the
contract sued upon and of the law with respect to the allowance of counsel fees in divorce
actions. According to plaintiffs' testimony, the defendant was fully informed and advised of
the facts and the law and signed the contract sued upon knowingly and willingly.
The court's judgment is based solely on a quantum meruit.
The plaintiffs and the defendant in both actions, being dissatisfied with the court's findings
and conclusions and the judgment thereon, gave separate notices of appeal to this court from
the judgment and orders denying their motions for a new trial. The plaintiffs and appellants,
C. L. Harwood and Seeds & Howard, voluntarily dismissed their appeals, leaving the two
appeals of Mary E. Carter to be considered in one opinion. The double appeals account for
the confused entitlement of the cause herein and the unduly prolix statement of the case.
Counsel for the defendant make five points of law upon which they claim reversal of the
judgment: First, that the contract sued upon is void as against public policy. Second, that the
contract sued upon, having been entered into when the relationship of attorney and client
existed, and plaintiffs having failed, through ignorance or negligence, to inform the defendant
of the legal effect of the contract exacted of her, or to inform her of the law with respect to
the allowance of counsel fees, is void. Third, coverture. Fourth, the statute of limitations.
Fifth, res adjudicata.
1. Counsel for defendant argue that, conceding the contract sued upon to be in all respects
valid and legal, the original complaint having been filed in the year 1912, and the second
amended complaint having been filed in the year 1921, by which amendment plaintiffs for the
first time seek to recover the reasonable value of their services, the count on quantum meruit
as amended is barred by the statute of limitations. This contention is manifestly due to a
misapprehension of the facts. The amendment states no new and distinct cause of action. It is
simply a new count for the same cause, the first count being based upon a written agreement,
while the second count is upon an implied contract for the same services. Both counts are,
therefore, for the same cause of action; hence the amended complaint cannot be resisted on
the ground that the cause of action for the value of plaintiffs' services is barred by the
statute of limitations.
for the value of plaintiffs' services is barred by the statute of limitations. Tucker v. Virginia
City, 4 Nev. 20; 17 R. C. L. sec. 180, p. 815.
2. It is argued on behalf of the defendant that the contract sued upon, having been entered
into when the relationship of attorney and client existed, and it appearing from the evidence
that plaintiffs wholly failed and neglected to give to the defendant full information and
explanation both of the facts and of her legal rights in respect to the allowance of counsel fees
as provided by law in divorce actions, is void. Conceding, for the sake of the argument
advanced by counsel, that plaintiffs failed and neglected to give to their client full
information and explanation of the facts and the law relative to the allowance of counsel fees,
still it is well established that if the contract is not inherently malum in se or malum
prohibitum the attorney may recover for the reasonable value of his services. Thornton on
Attorneys at Law, sec. 438; 2 R. C. L. sec. 128, p. 1046.
3. Counsel for the defendant claim reversal upon the ground that the contract sued upon is
void as against public policy, in that the plaintiff's compensation, though for a fixed sum, was
in fact dependent on success and contingent upon the division of the community property of
the marriage. We are in entire accord with the contention that the first contract entered into
upon a contingent fee basis was void as against public policy, but this contract was canceled.
If the second contract, the one sued upon, is valid, it will not be abrogated because an attempt
is made to merge it in the void contract. Culley v. Badgley, 196 Mich. 414, 163 N. W. 33, L.
R. A. 1917f, 362.
4. Plaintiffs base their right to recover on both the express and implied agreement of the
defendant to pay them for legal services rendered her in an action brought against her by her
husband for a divorce. One of her defenses was that of her coverture. By reason of this
defense we are urged to decide whether or not a married woman without separate property
may make a valid and binding contract to compensate her attorneys in a suit for divorce,
whether she be plaintiff or defendant.
a valid and binding contract to compensate her attorneys in a suit for divorce, whether she be
plaintiff or defendant. In this jurisdiction, which bears the unenviable reputation of
encouraging divorce actions by reason of its legislative policy of allowing short-term
decrees, the question at once becomes interesting as well as important; but in the view we
take of the record we are not required to pass directly upon it. The controlling point arising on
the facts as found is whether a judgment for the reasonable value of plaintiffs' services on a
quantum meruit is sustainable. We are of opinion that it is. The general rule, says Mr.
Thornton, in his work on Attorneys at Law, undoubtedly is that an attorney is not precluded
from recovering compensation for valuable services by the mere fact that such services were
rendered under a void or voidable contract. There can, of course, be no recovery on the
contract; but where it is not inherently malum in se or malum prohibitum the attorney may
recover the reasonable value of his services on a quantum meruit. Volume 2, sec. 438.
The services performed by plaintiffs were in no sense illegal, either intrinsically or by
reason of the circumstances under which they were rendered or under the divorce law of this
state. Hence we conclude that the judgment for the reasonable value of plaintiffs' services on
a quantum meruit is sustainable. 2 R. C. L. sec. 128, p. 1046. See annotator's notes, 2 L. R. A.
(N. S.) 261; 38 L. R. A. (N. S.) 1202.
5. It is true the jury decided in the divorce proceedings that neither party was entitled to a
divorce, and the court so adjudged; but, nevertheless, it was through the efforts of plaintiffs
that the husband's action for divorce was successfully resisted. It was for the services
performed for the defendant in that action that the trial judge rendered judgment in favor of
the plaintiffs for the sum of $2,000. It is undisputed that, shortly after the trial and the
rendition of the judgment of dismissal of the divorce proceedings, the defendant herein made
an amicable adjustment with her husband of her right in and to the community property of
their marriage.
husband of her right in and to the community property of their marriage. It appears
affirmatively from the record that the settlement, whatever its terms and conditions, was
ratified and confirmed in the subsequent decree divorcing the husband from the defendant.
The plaintiffs herein did not participate directly or indirectly in the settlement or in the
husband's subsequent action, but as a result of the services performed by them in the prior
action the defendant was left in position to thereafter deal with her husband upon equal terms,
both with respect to their existing marital difficulties and to their property rights. It is thus
apparent that the defendant was actually benefited by plaintiffs' services, and no reason
appears why the judgment in their favor for the reasonable value thereof should not be
affirmed.
6, 7. It is argued on behalf of the defendant that the refusal of the court in the divorce
action of Summerfield v. Summerfield to require the husband to pay counsel fees to enable
the wife to carry on or defend the action precluded plaintiffs from maintaining this action on
the principle of res adjudicata. We fail to appreciate the force of counsel's reasoning on this
proposition. Section 5843 of the Revised Laws provides that in any suit for divorce the court
or judge may, at any time after the filing of the complaint, require the husband to pay such
sums as may be necessary to enable the wife to carry on or defend such suit. * * * This
provision has been repeatedly construed and applied in numerous cases in this court. In Lake
v. Lake, 16 Nev. 363, 367, 17 Nev. 230, 30 Pac. 878, it is held that the statute is only
affirmatory of the common law to enable a destitute wife to defray the expenses of her action.
It is apparent that counsel fees are allowed to the wife and not to her attorney. 2 Am. & Eng.
Ency. Law, p. 113. Her right to such fees is not an absolute right and is a matter to be
determined by the wise discretion of the court or judge. In fixing the allowance the court is
controlled by considerations other than the interest of the wife's attorney. In the case at bar,
the court, in the exercise of its discretion, refused the defendant's application for counsel
fees, apparently for the reason that she had made an agreement with her attorneys for a
fixed sum of money and the necessity for calling upon the husband for money therefor
was removed.
application for counsel fees, apparently for the reason that she had made an agreement with
her attorneys for a fixed sum of money and the necessity for calling upon the husband for
money therefor was removed. Mudd v. Mudd, 98 Cal. 320, 33 Pac. 114.
The court did not pass upon, nor undertake to pass upon, the defendant's liability to
plaintiffs by reason of her contract. The question here involved is one arising solely between
the defendant and her counsel, which apparently did not concern the court in ruling upon the
defendant's application for counsel fees under Rev. Laws, 5843.
It is argued on behalf of the defendant that the plaintiffs, supposedly learned in the law,
exacted of their client a contract for their own advantage and to her detriment, and, in
furtherance of justice, plaintiffs should not be allowed to recover upon a quantum meruit. We
are not in accord with this contention. Regardless of any infirmity in the agreement between
the parties, if any there be, and ignoring the entanglements of the common law, if such exist
in a case of this kind, the fact remains that the services performed were not illegal. The
defendant was free to accept the services; they were not gratuitous; and, the defendant having
profited by the services, we see no reason why she should not be liable for the reasonable
value thereof.
The judgment of the district court is clearly right and is affirmed.
April 10, 1924.
Per Curiam:
Rehearing denied.
____________
47 Nev. 346, 346 (1924) Black v. Black
No. 2621
BLACK v. BLACK
January 5, 1924. 221 Pac. 239.
1. DivorceCourt Authorized to Order Payment of Attorney Fees on Appeal.
The right of the supreme court, in an action of divorce, to make an order directing the payment of
attorney fees upon appeal, is well established.
2. DivorceAllowance of Attorney Fees to Wife on Appeal Held Not Authorized.
Where the wife was able to prosecute her action on the financial assistance received from her father,
and he was still able and willing to aid her, and where, after payment of the alimony decreed, the husband
would have only sufficient funds to meet his ordinary living expenses, an allowance of attorney's fees on
appeal will not be granted.
Action by Lillian Fahey Black against Edwin Gregory Black. From judgment for plaintiff,
defendant appeals. On motion by plaintiff for allowance of attorney fees. Motion denied.
James D. Finch, for Appellant:
Suit money is in fact specific part of temporary alimony and is granted under same
conditions. Nelson, Divorce, sec. 875.
If parties have been living apart for years and wife has supported herself, no alimony
should be allotted. Nelson, sec. 855.
If wife has been able to pay expenses with means derived from her own separate estate, or
upon her credit, there is no necessity for allowance, but constitutes best evidence she is able
to carry on suit without assistance. Nelson, sec. 855; Mudd v. Mudd, 98 Cal. 322. Husband's
poverty, amounting to absolute inability to pay alimony, is defense if wife is plaintiff. Nelson,
sec. 856a.
Where husband's means are less than wife's, it is excess of discretionary power to award
temporary alimony. Turner v. Turner, 22 Pac. 72.
47 Nev. 346, 347 (1924) Black v. Black
To justify order for temporary alimony, it must appear wife is destitute of means to support
herself and carry on suit. Stillman v. Stillman, 39 Am. Rep. 21.
Ayres & Gardiner, for Respondent.
Respondent obtained a decree of divorce from the appellant in the district court of Washoe
County and an appeal has been taken to this court. The matter is now before this court on a
motion filed and presented by respondent, the wife, for an allowance of $250 as counsel fee
for her attorneys for her defense on this appeal.
1, 2. The right of this court to make an order directing the payment of attorney fees upon
an appeal is well established (Lake v. Lake, 17 Nev. 238, 30 Pac. 878; Buehler v. Buehler, 38
Nev. 500, 151 Pac. 44), and is not questioned by counsel for appellant; but they insist that the
facts do not present a proper case for such allowance. In support of her motion, respondent
filed in this court an affidavit in which it is averred that she has no means of support
whatsoever, but is dependant for support upon her father, who is a man of limited means, and
that she is without the means or money with which to defend this case in this court on appeal,
or to pay the fees of her attorneys; that Ayres & Gardiner, a firm of attorneys who represented
her in the district court, have been employed to further represent her upon this appeal, and
have informed her that the sum of $250 will be their charge for representing her on appeal,
and that the same is a reasonable charge; that unless this court makes an order for the
defendant to pay such counsel fee she will be without the means of compensating said
attorneys and will be left without counsel; that said counsel are familiar with the case, and it
would be prejudicial to her interest should she be deprived of their services; that the appellant
earns a substantial salary of about $3,000 a year and is able to pay such attorney fee.
47 Nev. 346, 348 (1924) Black v. Black
Appellant filed a counter affidavit, and in addition introduced in evidence excerpts from
the testimony taken on the trial of the case in the court below. In view of all the circumstances
which appear from the affidavits and from the evidence as to the comparative financial
condition of the parties, we are of the opinion that our discretion ought to be exercised against
the application for attorney fees. We are convinced that the wife will, notwithstanding the
refusal of the order, be able to properly defend her case in this court. On the other hand, the
granting of the order might compel the husband to abandon his appeal, and therefore cause an
injustice. It appears that he has no property and his only source of income is his salary as
investigator in the Anti-Trust Division in the Department of Justice, assigned to the United
States attorney's office at New York City, N. Y., which is $225 per month. From this, in
addition to current expenses, he pays to the wife $50 per month for the support and
maintenance of the two minor children of appellant and respondent. A list of his monthly
personal expenses is set out in this affidavit, and it appears therefrom that all of his salary
which he receives monthly is required to meet them, and that all of such expenses are
necessary. It appears that he has borrowed all that he can on his life insurance policy to
defend this suit.
On the other hand, it appears that respondent, ever since her separation from appellant in
1917, has been living at the home of her father in Washington, D. C., and has been
self-supporting; that since the death of the latter's wife she has been receiving the sum of
$100 per month from her father as his housekeeper. His ability and willingness to help her
financially in her divorce action has been demonstrated. With her father's assistance she was
able to come from Washington, D. C., with her two children to Reno, and remain for six
months prior to the divorce proceedings, and during the pendency thereof, and to return with
her children to here father's home in Washington, after obtaining the decree; to employ
counsel to prosecute her suit and pay all expenses incident thereto. No order was asked for
by her concerning costs, and, in response to an inquiry of the court in that regard, her
counsel stated that they considered it useless to ask for any such order.
47 Nev. 346, 349 (1924) Black v. Black
order was asked for by her concerning costs, and, in response to an inquiry of the court in that
regard, her counsel stated that they considered it useless to ask for any such order. The father
owns a home in Washington which he values at $20,000, and which, during his stay in Reno
with his daughter and grandchildren, during the period above mentioned, he was able to rent
for $170 per month. He is on the retired list of the Southern Pacific Company getting an
annual pension which he receives monthly. He states that he has no use for money and has
given his daughter money, as he would today. The respondent, in her affidavit, states that her
father is a man of limited means, and it would be a great hardship and injustice upon him to
compel him to advance the sums necessary for the payment of the fees of her attorneys. This
is merely a conclusion. It is nowhere stated in her affidavit that he is now unable or unwilling
to aid her to that extent, and from all the circumstances it is fair to assume that he is both able
and willing to help her.
Mr. Nelson, in his work on Divorce and Separation (vol. 11, p. 803), states the following
rule:
Temporary alimony should be refused if it appear that the wife has sufficient income to
support herself during the trial, to employ counsel, and to advance the necessary costs and
expenses. It is immaterial how she derives this maintenance, if she is able to prosecute the
suit, or to make a defense. The courts sometimes refuse to assist her where friends or relatives
are doing so. If the parties have been living apart for years, and the wife has supported
herself, no alimony should be allotted.
The rule requiring the husband to pay the wife sufficient to enable her to maintain herself
and meet the expenses of her suit or defense is based on necessity to prevent a failure of
justice, and will not be required unless it appears that the wife is destitute of the means to be
employed for such purposes.
The fact that she has been able to pay her expenses, says Mr. Nelson, or to obtain
money on her own credit, is the best evidence of her ability to carry on the suit without
assistance."
47 Nev. 346, 350 (1924) Black v. Black
is the best evidence of her ability to carry on the suit without assistance. Nelson, supra, 805.
This statement is quite pertinent to the facts of this case. The respondent has been able to
prosecute her suit successfully to this point without assistance from appellant, and it does not
appear to us from the showing made that she will be unable to present her case on appeal
without assistance from him.
The motion should be denied.
It is so ordered.
____________
47 Nev. 350, 350 (1924) Wing v. Wiltsee
No. 2586
WING v. WILTSEE
March 5, 1924. 223 Pac. 334.
1. Limitation of ActionsCause of Action Barred in California where It Could Have Been
Prosecuted Was Barred in Nevada.
Where an action could have been prosecuted by plaintiff in the State of California, but was barred in
that state by statute at the time the action was commenced in Nevada, the cause of action was also barred
in Nevada under Rev. Laws, 4947, notwithstanding the cause of action was not barred in New York
where the money sued for was payable.
Action by Thomas E. Wing, as substituted trustee under a certain trust agreement made
between George W. McElhiney and Ernest A. Wiltsee, and Guardian Trust Company of New
York, under date of March 2, 1908, against Ernest A. Wiltsee. From a judgment for
defendant, and from an order denying a motion for new trial, plaintiff appeals. Affirmed.
Pending on petition for rehearing.
Wing & Russell; Cheney, Prince, Hawkins & Lunsford; Cheney & Lunsford, and Joseph J.
Hutchinson, for Appellant:
Lewis v. Hyams, 26 Nev. 68, holds that cause of action arises in jurisdiction where
defendant may be found when his obligation matures, and, if barred there, is barred in
Nevada. In instant case, when defendant's obligation matured he was not in California, the bar
of whose statute he claims. Did the cause of action rearise in California when defendant
came there long after his obligation matured, having arisen, according to the Lewis case,
in some other jurisdiction at the time of maturity?
in California when defendant came there long after his obligation matured, having arisen,
according to the Lewis case, in some other jurisdiction at the time of maturity?
The rule in Lewis case is distinguished from rule in California, New York, etc., that cause
of action arises in jurisdiction where obligation is to be performed, regardless of where
defendant is present.
The Supreme Court of the United States, several other federal courts, and courts of last
resort of at least nineteen states, look solely to bar of jurisdiction where cause initially arose.
Unless that bar has fallen, action is not barred in forum.
Twenty-six states are without comity statutes or have dissimilar ones. Only three
statesIllinois, Minnesota and Nebraskasay it may rearise in as many jurisdictions as
defendant enters. But Illinois and Nebraska statutes are markedly dissimilar, and in
Minnesota the precise point was not up for decision, and ruling is pure dicta. It is upon
decisions of these three states that defendant relies.
The Nevada and the New York-California schools of judicial thought are at one on the
point that unless cause is barred where it arose, it cannot be barred in this jurisdiction under
Rev. Laws, 4947.
In West v. Theis, 15 Idaho, 167, 96 Pac. 932, obligation was made and to be performed in
Kansas. Plaintiff's decedent and defendant maker were residents of and present in Kansas at
time of execution. At maturity of some of obligations defendant was still present in Kansas,
but moved to Washington before maturity of others, and continued there until bar of that state
had fallen. Action was not barred in Kansas. On suit in Idaho he pleaded Washington bar
under Idaho comity statute. Trial court held plea good, but supreme court reversed decision.
Rev. Laws, 4947, clearly contemplates that cause of action has arisen elsewhere and that it
has been barred elsewhere.
Contract expressly provided rights should be determined by laws of New York. Reliance
upon statutes other than those of New York, where action was not barred, was violation of
contract which cannot be permitted here.
other than those of New York, where action was not barred, was violation of contract which
cannot be permitted here. State Loan and Trust Co. v. Cochran, 130 Cal. 252; 2 Wharton,
Conflict of Laws, 1433, 1434.
Cause of action cannot arise in any jurisdiction other than that in which contract is made
and is to be performed. McKee v. Dodd, 93 Pac. 854.
Defendant says that you must look to terms of law of foreign jurisdiction to determine
whether this action is barred there, but you may not look to it to determine whether it arose
there.
In Wing v. Smith, 121 N. E. 899 (1919), the Court of Appeals of New York, the court of
last resort of that state, affirmed, per curiam and without dissent, decision of appellate
division of supreme court, in turn affirming decision of trial division of supreme court, in
favor of the there plaintiff, the plaintiff-appellant in instant case, upon a complaint in terms
almost word for word the same as that before this court and with, appended to it, precisely the
same contracts. This is precisely same case as Wing v. Smith, 159 N. Y. Supp. 454, and Wing
v. Smith, 150 N. Y. Supp. 447. Thus New York's highest court upheld action of intermediary
appellate tribunals in all respects.
Hoyt, Norcross, Thatcher, Woodburn & Henley, and J. P. O'Brien, for Respondent:
The Lewis v. Hyams decision, notwithstanding counsel's criticism, has been consecrated
by time and the rule of stare decisis, is the law of this state, and has been approved by courts
of other jurisdictions. It held that a cause of action arises when jurisdiction exists in the
courts of the state to adjudicate between the parties upon the particular cause of action * * *
without regard to the place where the cause of action had its origin. On rehearing, following
the rule in Hyman v. McVeigh, 10 Chi. L. N. 157; Hyman v. Bayne, 83 Ill. 256; Wooley v.
Yarnell, 142 Ill. 449.
Appellant's conclusion of what Lewis case holds is very antithesis of conclusion of Illinois
supreme court in Davis v. Munie, S5 N. E. 943.
in Davis v. Munie, 85 N. E. 943. Strong v. Lewis, 68 N. E. 556, is a case in all respects
identical with instant case.
Except in Hayes Land and Investment Co. v. Bassett (Kan.) the question at bar has never
been presented squarely to any court of last resort excepting those of Illinois and Minnesota.
Michigan has no comity statute, and, excepting the Kansas decision above quoted, causes
cited by counsel are all of states which have adopted the California rule. Nevada and other
states have adopted a different rule.
This case was tried on theoryand we frankly admit it was our theorythat place of
defendant's residence on date of maturity was of no particular moment, in so far as
respondent's right to prevail on the statute-of-limitation defense was concerned.
California court's construction of its statute in McKee v. Dodd is not binding upon Nevada
court in construction of its own statute, and differs from that of Nevada in Lewis case. As
Judge Callahan pointed out, The fault in the argument of plaintiff lies in this, that it does not
recognize the rule that the forum looks to its own laws to determine where the cause of action
arose; that it uses the California definition of the word arisen' instead of the Nevada
definition.
Obviously the reason plaintiff did not commence this action in California was that he
knew the action was barred by the California statute in January, 1917, when it was
commenced in Nevada.
Findings necessary to support the judgment are presumed where findings are not made or
requested. Murray v. Osborne, 33 Nev. 267.
The far-fetched implication that by right was meant remedy should not be engrafted upon
language of contract. Remedies are governed by laws of country where suit is brought. 17 R.
C. L. 666, 697.
This action was commenced in the district court for Washoe County to recover judgment
upon a contract executed in New York State, and by its terms payable there.
executed in New York State, and by its terms payable there. Several defenses were pleaded in
the answer, among them the statute of limitations. The trial court found that this defense was
established, and accordingly rendered judgment in favor of the defendant. This appeal is from
the judgment and an order denying a motion for a new trial. We will refer to the parties as
plaintiff and defendant, as in the trial court.
The undisputed facts are these:
The defendant was born, raised, and educated in the State of New York, and in early
manhood migrated to Colorado in November, 1886, where he held two or three positions.
Leaving Colorado in 1888 he went to Grass Valley, Calif., where he accepted employment,
established his residence, and become a voter. Later he accepted a position in the mining
bureau of the state government. In December, 1892, he left California and went to South
Africa, accepting a position as manager of mining property for Barnato. Having made a
fortune of several hundred thousand dollars, in December, 1895, he severed his connections
in South Africa and returned to California and opened an office in San Francisco. Ever since
1896 he has been interested in mining and other enterprises in California, having invested
large sums of money there. He was married in October, 1905, after which he spent much time
abroad until 1915.
The contract which is the basis of this action was executed in 1908 and the payment for
which recovery is sought fell due March 1, 1909. It does not appear from the record where the
defendant was on March 1, 1909, but plaintiff proceeds upon the theory that he was in Paris.
In the spring of 1914 the defendant cabled his attorney in San Francisco, from Paris, directing
him to telegraph Wing & Russell, of New York, that he had irrevocable authority to appear
for him in a suit brought in the State of California upon the claim now in question. The
attorney did so, and Wing & Russell replied, declining to sue in California. The defendant
was never a resident of Nevada, and summons in this case was served upon him on the train
as he was passing through the state.
served upon him on the train as he was passing through the state.
Such other facts will be mentioned in the opinion as may be necessary to a complete
understanding of the question presented.
There is but one question for us to decide, and that is whether or not the conclusion of the
trial court to the effect that this action is barred by our statute of limitations is correct. If the
court was right in its conclusion, the judgment should be affirmed; otherwise it must be
reversed.
In its formal findings the court reached the conclusion that the contract in question was
executed in New York City, and that the payment falling due thereunder became payable in
that city on March 1, 1909; that the defendant was actually and physically present in the State
of California for two years prior to January 24, 1917, the date of the commencement of this
action; that suit on the contract was barred in the State of California, in which the defendant
was residing at the time this action was instituted.
Our statute applying to the case in hand is section 4947 of the Revised Laws, which reads:
When a cause of action has arisen in another state, or in a foreign country, and by the
laws thereof an action thereon cannot there be maintained against a person by reason of the
lapse of time, an action thereon shall not be maintained against him in this state, except in
favor of a citizen thereof who has held the cause of action from the time it accrued.
The theory of the defendant is that, though this action is not barred in the State of New
York, it was barred by the statute of California, and hence there can be no recovery in this
state pursuant to the statute just quoted. The trial court adopted this view and rendered
judgment accordingly. The statute quoted has been in force in this state for many years, and
was applied by this court in the case of Lewis v. Hyams, 26 Nev. 68, 63 Pac. 126, 99 Am. St.
Rep. 677, 64 Pac. 817.
Counsel for appellant have made a very thorough presentation of their views, both in oral
argument and in briefs, wherein it is urged: (1) That the Lewis case is not controlling for the
reason that the facts in this case do not bring it within that one; and (2) should we hold that it
is, the law of that case is not sound, and is contrary to the great weight of authority, and hence
it should be reversed.
Let us consider the first contention: The suit of Lewis v. Hyams was upon a promissory
note executed in behalf of the firm of Hyams Bros., in San Francisco, by one member of the
firm who was a resident of that city, the other member being a resident of New York, and
who was never in California. Both of the members of the firm were sued in Nevada. The
statute here invoked was pleaded in that case. The note being clearly barred under the
California law as to the defendant resident of that state, the trial court rendered judgment in
his favor, but rendered judgment against the resident of New York who was a member of the
firm. The defendant against whom the judgment was rendered appealed to this court, and the
judgment was reversed. As we understand the theory of the respondent in that case, it was
that a cause of action had not arisen upon the note in New York, where he resided, because
the note was payable in California.
In other words, determination of the case turned upon the proposition as to where the
cause of action arose, and, as we understand the contention of counsel, upon the
determination of that question the decision of the instant case depends. It is clear that the
court in reaching its conclusion in the Lewis case first determined the question as to whether
the cause of action arose in New York. The court, after referring to several authorities and
making several observations, said:
We are of opinion that * * * the cause of action thereon against the appellant arose or
accrued in the State of New York; that in such case as this the cause of action accrues in any
state against defendant where he may be found.
But counsel for appellant in the instant case seek to show that, since there is no definite
finding of the court to the effect that the defendant was actually residing in California on
March 1, 1909, the date the note fell due, it does not come within the Lewis case.
Counsel for respondent rely upon the well-settled rule that, where there is no formal
finding upon a point, one will be presumed to sustain a judgment, and that we must presume
that the trial court found that the defendant was in California on March 1, 1909. As to this it
is said by counsel for appellant that there was a request for a finding on that point, and the
court refused to make a finding. We think counsel are in error. After the court had made
formal findings plaintiff requested an addition to Finding No. 13, reading as follows:
Since March 1, 1909, defendant has never been a resident of the State of California. * *
*
It will be seen that the requested finding did not refer to the date the note fell due, namely,
March 1, 1909, but since that date. Furthermore, to have granted the request the court
would have made a finding in conflict with its finding that the respondent was actually and
physically present in the State of California for more than two years prior to January 24,
1917. Reading as it does, it is questionable what the purpose of the requested addition to
Finding No. 13 was. In any event the contention of counsel for appellant is not well taken.
However, we do not wish to base our judgment upon the presumption suggested, if it be
conceded that there is such a presumption in this case.
Reverting to the contention that the instant case is not controlled by the Lewis case
because there is no finding that the defendant was in California on March 1, 1909, we may
say that in our opinion, conceding that he was not there, nevertheless the Lewis case controls.
In deciding that case the court had but one question to determine, namely: What is meant by
the phrase where the cause of action arises in another state? That was a question of law. If
its conclusion as to the law was sound it must govern here, whether or not the defendant was
in California on March 1, 1909. In deciding that case the court nowhere alluded to the fact
of the appellant's residence on a given date, nor made that matter a factor in the case.
that case the court nowhere alluded to the fact of the appellant's residence on a given date, nor
made that matter a factor in the case. The questions the court asked and answered show that
proposition was not considered. It is clear that the holding of the court was based upon the
question as to whether jurisdiction could be obtained over the defendant so as to enable the
prosecution of the action with effect, after the note became due, regardless of the time and
place when and where such jurisdiction could be obtained. That was the point the court
decided, and none other, and the case is squarely in point under the finding of the court in the
instant case. An action could have been prosecuted by the plaintiff in this case, with effect, in
the State of California, under the finding of the trial court, but, the bar of the statute of that
state having arisen at the time this action was commenced, it was barred in Nevada under the
holding in the Lewis case.
This brings us to the contention that the Lewis case is not sound and is contrary to the
weight of authority, in support of which we are asked to consider the case of West v. Theis,
15 Idaho, 167, 96 Pac. 932, 17 L. R. A. (N. S.) 472, 128 Am. St. Rep. 58, and the authorities
there cited. Our attention is also directed to some other cases which, while not disposing of
the point, are, it is said, worthy of consideration. We think the conclusion reached in the
Lewis case and in the cases referred to in the opinion denying a rehearing therein are based
upon sound reasoning. We have not deemed it necessary to take up the cases supporting the
two views suggested and analyze them, contenting ourselves with merely adhering to the
conclusion in the Lewis case and the reasoning therein advanced.
Though the fact that the plaintiff followed the defendant into this state, while he was
passing through on his way to another state, for the purpose of instituting his suit here is not a
matter which can influence us in determining the question in hand, it certainly would not,
were the question a doubtful one, incline us to reverse a former ruling of this court.
reverse a former ruling of this court. We can conceive of no good reason why we should thus
encourage non-residents to come into this state to litigate questions that might have been
litigated elsewhere, thereby burdening the state with expense and contributing to the
congestion of our courts.
____________
47 Nev. 359, 359 (1924) Ex Rel Wolf v. Justice of the Peace
No. 2603
Ex Rel. WOLF v. JUSTICE OF THE PEACE
March 5, 1924. 223 Pac. 821.
1. CostsFailure to File Cost Bill Precludes Judgment for Same by Justice of the Peace.
Failure to file a cost bill, showing necessary disbursements as required by practice act, sec. 836, as
amended by Stats. 1913, c. 240, precludes a justice of the peace from rendering judgment for any costs
except his own fees, which under that statute may be included in the judgment though not included in the
memorandum.
2. CostsStatutory Mode of Recovery Must Be Strictly Pursued.
Recovery of costs being regulated exclusively by statute, the mode provided for must be strictly pursued.
Appeal from Sixth Judicial District Court, Pershing County; James A. Callahan, Judge.
Certiorari by the State, on the relation of P. H. Wolf, to review in the district court
proceedings before a Justice of the Peace of Lake Township, Pershing County. From a
judgment of the district court dismissing the writ, relator appeals. Judgment reversed.
Booth B. Goodman, for Appellant:
Entry of judgment for costs by justice of the peace without service of cost bill was entirely
in excess of jurisdiction. Where more than thirty days have elapsed since such entry and there
is no remedy by appeal, certiorari will lie to annul judgment.
Party claiming costs must file and serve memorandum within two days after verdict or
notice of decision. Rev. Laws, 5778, as amended Stats. 1913, p. 365.
47 Nev. 359, 360 (1924) Ex Rel. Wolf v. Justice of the Peace
Plaintiff had notice of verdict when it was rendered, being present, and his time to appeal
began to run immediately. After it expired, no right of appeal existed. If there is any remedy,
it is certiorari. Hunter v. Sutton, 45 Nev. 427.
Justice courts are of special and limited jurisdiction. They are creatures of statute, can take
nothing by intendment, and must proceed as required by statute, else their acts are void. Paul
v. Armstrong, 1 Nev. 82.
H. J. Murrish, for Respondent:
As no appeal was taken, it is fair to assume that defendant was satisfied with verdict and
judgment.
Imposition of costs, their amount, and what items should be taxed were subjects proper to
be considered in county court. Incorrect determination was not excess of jurisdiction and
therefore could not be reached by writ of certiorari. Petty v. County Court, 45 Cal. 245.
Inquiry on writ of certiorari could not be extended further than necessary to determine
whether inferior court exceeded jurisdiction. A court cannot in such inquiry correct errors of
law or fact not jurisdictional. Phillips v. Welsh, 12 Nev. 158. Writ of certiorari can be issued
only when inferior court exceeds jurisdiction. In Re Burke, 13 Nev. 256. If court erred in
allowing any costs that were not taxable against relator, it was not excess of jurisdiction, and
its action therein cannot be reviewed on certiorari. Ex Rel. Thompson v. District Court, 23
Nev. 243, 45 Pac. 467.
Petitioner instituted a civil action for damages in the justice's court against the city of
Lovelock. The action was tried before a jury, which, on the 15th day of January, 1921,
returned a verdict in favor of defendant. Costs were taxed against the petitioner, but no
memorandum of the items of the defendant's necessary costs and disbursements was filed in
the case or served upon petitioner or his attorney. On the 30th day of December, 1922, an
execution was issued out of said justice's court, directing the constable to levy and collect the
costs of said action from petitioner.
costs of said action from petitioner. On application of petitioner, a writ of certiorari staying
all proceedings in said action issued from the district court. The writ was thereafter
dismissed. From the judgment of the district court dismissing the writ this appeal is taken.
1. It is claimed that the justice of the peace was without jurisdiction to tax any costs
against petitioner for the reason that no cost bill was filed or served in said action. The
contention must be sustained, except as to the justice's fees, which, by the terms of the statute,
may be taxed and included in the judgment without being embodied in the memorandum of
costs required to be filed and served by the prevailing party. The recovery of costs in a
justice's court in this state is governed exclusively by section 836 of the practice act, as
amended by the statute of 1913, p. 365. The section as amended reads:
The justice must tax and include in the judgment the costs allowed by law to the
prevailing party. The party in whose favor judgment is rendered and who claims his costs
must deliver to the justice, and serve a copy upon the adverse party, within two days after the
verdict or notice of the decision of the justice, or such further time as may be granted, a
memorandum of the items of his costs and necessary disbursements in the action, which
memorandum must be verified by the oath of the party or his attorney or agent, or by the clerk
of his attorney, stating that to the best of his knowledge and belief the items are correct and
that the disbursements have been necessarily incurred in the action. He shall be entitled to
recover the witness fees, although at the time he may not have actually paid them. It shall not
be necessary to embody in the memorandum the fees of the justice, but the justice shall add
the same according to his fees fixed by statute. Within two days after service of a copy of the
memorandum, the adverse party may move the court, upon two days' notice, to relax and
settle the costs, a copy of which notice of motion shall be filed and served upon the prevailing
party claiming costs, and thereupon the justice shall settle the costs.
shall settle the costs. If the judgment is entered by default it shall not be necessary to make
service of a copy of the cost bill.
2. Originally there was no provision in the section requiring a memorandum of costs and
disbursements to be delivered to the justice or served upon the adverse party, but the
legislature of 1913 amended it so as to require such delivery and service. The effect of this
amendment is to make these steps indispensable before the matter of costs can be considered
by the justice or included in the judgment, except as to those fees specially excepted by the
statute. The recovery of costs is a matter regulated exclusively by statute, and the mode
pointed out for that purpose must be strictly pursued. Chapin v. Broder, 16 Cal. 403-419. The
California appellate court, commenting on the effect of the failure of a party to serve a cost
bill within the time required by the provisions of section 1033 of the code of civil procedure
of that state, said:
The manifest purpose of the section is to limit the time, after verdict or judgment, within
which the question of costs, if it arises, may be definitely determined, so that, when
ascertained and taxed, the costs may be included in the judgment, to the end that the party
entitled thereto may secure his rights as speedily as practicable. The section cannot, therefore,
be held to mean anything less than what its language plainly expresses. In other words, the
terms of said section are mandatory, and a substantially strict compliance therewith is
required, not alone of the party claiming costs, but also of the party dissatisfied with the costs
claimed. Indeed, section 1033, as to the subject to which it applies, is a statute of limitation,
and to it, no less than to statutes prescribing and limiting the time within which actions may
be brought, is applicable the maxim, vigilantibus et non dormienitbus servat lex. No one
would, for a moment, undertake to maintain that the time limit prescribed for the bringing of
actions is not a vital and mandatory requirement of the statute.
It follows that if the one party fails, within the time prescribed, to file and serve his
memorandum of costs, then he is to be conclusively deemed to have waived the costs, if
any, accruing in his favor."
then he is to be conclusively deemed to have waived the costs, if any, accruing in his favor.
Griffith v. Welbanks & Co., 26 Cal. App. 477, 480, 147 Pac. 986, 988.
While applicable only to actions tried in the superior courts, section 1033 of the California
code of civil procedure, in respect to requiring the filing and service of a memorandum of
costs, except as to time, is substantially the same as section 836 of our practice act. Under the
former section, a judgment of costs entered by the clerk in the absence of filing or service of a
memorandum of costs on the opposite party, was held to be void in Riddell v. Harrell, 71 Cal.
254, 12 Pac. 67. The same ruling was made in Chapin v. Broder, supra, under a former
section of the California practice act, substantially the same as section 1033. The court said:
The party entitled to costs was required to claim them in a particular manner, and the
consequence attached to a failure was that they should be considered waived. When properly
claimed, it was the duty of the clerk to include them in the judgment; but, until they were
claimed, he was vested with no authority for that purpose. There was no general right of
recovery, and the provisions in relation to the delivery of a memorandum were not intended
to be directory. No right was created, apart from the remedy provided for its enforcement, and
in respect to this remedy there is no room for construction. It was expressly declared that a
failure to deliver the memorandum within the time specified should operate as a waiver of the
costs. Such a failure not only extinguished the remedy, but forfeited the right itself. It is
contended that an objection of this nature is not available in a collateral proceeding; but this
view, we think, is incorrect. The objection goes to the legality of the judgment, and the
ground upon which it proceeds is that the judgment pro tanto is a nullity.
True, it is not expressly declared in section 836 that a failure to deliver and serve the
memorandum shall operate as a waiver of costs, but that it is intended that such result shall
follow is clearly discernible from the statute.
statute. In this regard, the court in Riddell v. Harrell, supra, said:
The omission from section 1033 of the code of civil procedure of the clause in section
510 of the practice act, which provided that a failure by the prevailing party to file his
memorandum of costs within the time limited should be deemed a waiver of his costs, is not a
material circumstance. The code contemplates that such shall be the result, since the only
costs which the clerk is authorized to insert are those claimed, and taxed or ascertained,' in
the manner provided.
So, in the instant case, the defendant, not having claimed its costs in the manner provided
by the statute, the justice was without authority to tax or include them in the judgment. His
acts in this regard, being contrary to the express limitation of the statute, were in excess of
jurisdiction, and the judgment is so far void.
Counsel for respondent relies upon the case of State ex rel. Quinn v. District Court, 16
Nev. 76, wherein it was held that if the court erred in allowing any costs that were not taxable
against the relator, it was not an excess of jurisdiction, and its action in this respect could not
be reviewed upon certiorari. Relator claimed that the court exceeded its jurisdiction in
rendering judgment for the costs, because no cost bill was regularly made out and filed, and
a large proportion of the amount adjudged as costs was for fees not allowed by law. We do
not regard the case as being in point. It was a criminal case, and the court was vested with
authority by the statute to tax the costs of the prosecution to the defendant. There was no
provision of law requiring the prosecution to make out and serve a cost bill. The state having
a general right to recover costs without being limited to any prescribed manner of claiming
the same, it is plain that any error which the court may have committed in taxing the costs
could not amount to an excess of jurisdiction. The same may be said of Petty v. County
Court, 45 Cal. 245, cited by counsel.
The case of State v. District Court, 23 Nev. 243, 45 Pac. 467, also referred to, was decided
under a special statute by virtue of which the court apportioned the costs between the
parties.
statute by virtue of which the court apportioned the costs between the parties. It was held that
the statute conferred jurisdiction of the question of costs on the court, and that, if the court
erred in taxing illegal costs against the relator, such action was not in excess of jurisdiction. It
does not appear that any question was raised concerning a failure to file or serve a
memorandum of costs. The case is therefore of no help to the petitioner.
The judgment must be reversed, and it is so ordered.
____________
47 Nev. 365, 365 (1924) Isola v. Sorani
No. 2614
ISOLA v. SORANI
February 5, 1924. 222 Pac. 796.
1. PaymentPlea of Payment to a Complaint Alleging Nonpayment in Effect a General
Denial.
Where, in an action on a note, the complaint alleges nonpayment, and the answer avers payment, no
reply is necessary, as the plea of payment is in effect a general denial.
2. EvidenceNo Unfavorable Inference Drawn from Promisee's Failure to Deny Receipt for
Payment Not Put in Evidence, but Such an Inference Attaches Defendant's Failure to Produce It.
Where in action on a note, defendant maker testified that he had paid it and taken a receipt, but failed
to put the receipt in evidence, no unfavorable inference was to be drawn from the failure of plaintiff
payee to deny or to explain the receipt, but on the contrary and unfavorable inference attached to the
defendant's failure to produce the receipt.
Appeal from Eighth Judicial District Court, Lyon County; T. C. Hart, Judge.
Action by Giuseppe Isola against Marsilio Sorani. Judgment for plaintiff, and defendant
appeals. Affirmed.
Chartz & Chartz, for Appellant:
Presumption in favor of receipt will prevail until replaced by direct proof or strong
circumstances. Harden v. Gordon, 2 Mason (U. S.) 541. Burden is on party disputing receipt.
23 Am. & Eng. Ency. Laws, 986. Oral evidence cannot be substituted for any writing,
existence of which is disputed and which is material as to issues or credibility, and is not
merely memorandum of some other fact.
issues or credibility, and is not merely memorandum of some other fact. Jones, Evidence, sec.
200.
Possession of uncanceled note is prima-facie evidence of nonpayment, but can be rebutted
by superior evidence. When payment of money is made in discharge of written claim, the fact
of payment is usually separate from terms of writing thus discharged, and latter's production
is not necessary. Wigmore, sec. 1245.
Receipt of all demands, if unexplained or uncontradicted, will defeat any action upon a
promissory note. Cunningham v. Batchelder, 32 Me. 316.
W. E. Baldy, for Respondent:
Having produced note, plaintiff established prima-facie case and was entitled to benefit of
presumption that note was unpaid, and it then devolved on defendant to defeat this by strong
and convincing proof and preponderance of evidence. This he did not do. Mullally v.
Dingman, 62 Neb. 702; 8 Cyc. 245.
While parol evidence of payment is admissible without production of receipt, yet where it
is sought to prove that person executed and delivered receipt for certain amount, or to show
by whom or in what manner receipt was signed, or to prove facts which it recites, parol
evidence is then not admissible without accounting for absence of receipt. 17 Cyc. 495.
This action was instituted by Giuseppe Isola in the lower court on May 16, 1922, to
recover a personal judgment against Marsilio Sorani on a promissory note originally written
in Italian, which, translated into English, reads as follows:
Dayton, Nevada, January 22, 1921.
I, the undersigned, owe to Giuseppe Isola the sum of eight hundred dollars in the United
States coin with interest at 6 per cent per annum payable on the 22d day of January, 1922, in
full amount.
Marsilio Sorani.
Isola alleges in his complaint that he is the lawful owner and holder of said note, that no
part of the principal or interest thereon has been paid, and that on January 25, 1922, said
note was presented to Sorani for payment and payment refused.
January 25, 1922, said note was presented to Sorani for payment and payment refused.
Sorani filed an answer in four paragraphs. In the first he admits the execution and delivery
of the note. In the second he denies that Isola is the lawful owner and holder of the note, and
avers that he paid the note in full and obtained a receipt therefor. In the third he denies that no
part of the principal or interest on said note had been paid, and avers that he paid the note in
full on February 5, 1921. In the fourth he admits the demand of payment, and avers that he
received a letter from Isola's attorney, dated December 30, 1921, asking the payment of said
note and of another note for $400, and avers that upon receipt of said letter he called upon
said attorney and exhibited to him Isola's receipt for the payment of the note sued upon. He
denies owing plaintiff any sum of money whatsoever, and prays to be dismissed and allowed
his costs.
Isola made no reply to the answer.
Upon the issues joined the case came on for trial on January 23, 1923, before the court
without a jury, and after hearing the evidence the court made a general finding that the
allegations of the complaint were true, and followed this with specific findings confirming
each of the averments of the complaint, and concluded as a matter of law that the plaintiff
was entitled to recover judgment. Thereupon the court rendered judgment in favor of Isola
and against Sorani for the sum of $800, with interest, and for costs and disbursements
incurred in the action, amounting to the sum of $55.40.
Sorani moved for a new trial, upon the grounds of the insufficiency of the evidence to
justify the judgment, and that the judgment is against the evidence and the law. The court
ordered the motion overruled, and Sorani gave notice of appeal from said judgment and order.
1. Counsel for Sorani urge but one point upon which they claim reversal, which is that
Sorani, having denied as a witness in his own behalf that Isola was the lawful owner and
holder of the note, and having testified that he paid the note and obtained a receipt
therefor, the law balanced the evidence upon the issue of payment in Sorani's favor, and
therefore the court erred in its findings.
he paid the note and obtained a receipt therefor, the law balanced the evidence upon the issue
of payment in Sorani's favor, and therefore the court erred in its findings. We do not so
interpret the pleading or the evidence. A complete issue was made by the averment in the
complaint of the nonpayment of the note and the allegation of payment in the answer. Where
(as here) the complaint alleges nonpayment, and the answer avers payment, no reply is
necessary, as the plea of payment is in effect a general denial. 30 Cyc. 1258. That counsel so
regarded the pleadings is inferable from the fact that they make no mention of Isola's failure
to reply to the allegation of payment as being new matter.
2. Sorani testified that he paid the note, and that he took a receipt for the money because
Isola claimed he had lost the note. If Sorani had put the receipt in evidence, there is no doubt
the trial court would have given the receipt, if unexplained on the part of Isola, its prima-facie
effect, and balanced the evidence in Sorani's favor. As was said by this court in the case of
Devencenzi v. Cassinelli, 28 Nev. 232, 273, 81 Pac. 41, 449, if the testimony of the plaintiff
and the defendant was of equal weight with the jury, then undoubtedly the receipt should
have controlled. In the case before us the receipt was not put in evidence, hence no
unfavorable inference is to be drawn from the failure of Isola to deny or to explain it. On the
contrary, an unfavorable inference attaches to the failure of Sorani to produce the receipt, the
burden being upon him to prove payment by a preponderance of the evidence.
The judgment and the order denying a new trial are affirmed.
April 10, 1924.
Per Curiam:
Rehearing denied.
____________
47 Nev. 369, 369 (1924) In Re Hegarty's Estate
No. 2623
In Re HEGARTY'S ESTATE
February 4, 1924. 222 Pac. 793.
1. Executors and AdministratorsPrior Notice Not Necessary to Allowance of Attorney's
Fees.
That a petition for approval of the final report of the executrix and a distribution of the estate prayed
for no allowance of an attorney's fee, and that the notice of the hearing of the petition did not notify
executrix that court would hear an application for such allowance, was immaterial, in view of Rev. Laws,
6126, making the fee of attorneys for an estate a charge thereon to be allowed by the court.
2. Executors and AdministratorsCounsel Fees for Procuring Probate of Will Held Chargeable
against Estate.
On accounting by an executrix, the court did not err in allowing against the estate counsel fees for
opposing a contest of the will and procuring a probate thereof, in view of Rev. Laws, 5859, 5861, making
it the duty of the executor to probate the will or to file a renunciation thereof, and in view of the fact that
the person who employed the counsel to procure the probating of the will was the executrix and was the
sole beneficiary thereunder and prevailed in the contest.
3. Attorney and ClientAttorney Not Chargeable with Negligence of Court Clerk in Giving
Insufficient Notice of Probate of Will.
An attorney in absence of knowledge in the matter is not chargeable with the negligence of the clerk
of the court in giving an insufficient notice of the hearing of the application for the probate of a will, in
view of the plain requirements of Rev. Laws, 5866, that the clerk of the court shall give such notice.
4. Executors and AdministratorsNo Allowance for Attorney's Fees for Appeal Taken from
order Setting Aside order Admitting Will to Probate after Only Nine Days' Notice.
Where an order admitting a will to probate was made on nine days' notice although the statute
required ten days' notice and was therefore entered without jurisdiction, an appeal from an order setting
aside the order of probate was without excuse, and no allowance of attorney fees for services on such
appeal will be made.
5. StatutesConstruction Unnecessary where Meaning Clear.
Where the meaning of a statute is clear, there is no occasion for construction.
6. Attorney and ClientRule Stated as to Skill Required.
Generally, professional men are held liable only when they fail to exercise reasonable knowledge or
skill in the performance of professional duties.
In the matter of the estate of Denis Hegarty, deceased. Appeal by the executrix, Catherine
Coleman, from an order making an allowance to the attorneys for the estate, and from an
order denying her motion for a new trial. Remanded with instructions. Pending on petition
for rehearing. (See, also, 46 Nev. 321.)
A. Grant Miller, Nash P. Morgan, and Harry Swanson, for Appellant:
Attorney's fees for services which are not beneficial to estate cannot be paid out of estate.
Hite's Estate, 101 Pac. 448; Torreyson v. Bowman, 26 Nev. 369; Rev. Laws, 6126.
Fact that executrix is sole distributee does not change rule. If she is personally liable, her
attorneys have their remedy at law. Court has no jurisdiction of that question in this
proceeding.
Fees cannot be collected out of estate for services made necessary by error of attorneys in
attempt to probate will on nine days' notice. Fees are not to be paid when litigation is
unnecessary, improper, or groundless. Kruger's Estate, 55 Pac. 1056; Bullim's Estate, 31 L. R.
A. (N. S.) 350.
M. B. Moore and Wm. McKnight, for Respondent:
Attorney for estate or executrix is entitled to receive reasonable compensation to be paid
out of estate, to be allowed by court, and is not required to give notice of application therefor.
Rev. Laws, 6126; Torreyson v. Bowman, 26 Nev. 369.
Failure to give notice for ten days cannot be attributed to error or neglect of attorneys,
because statute provides such notice be given by clerk. Rev. Laws, 5866; Hegarty's Estate, 45
Nev. 145.
Before statute was construed by supreme court, there was no reason to suspect publication for
more than two issues in weekly paper was required. Attorney is not to lose fair recompense
for such error as cautious may or might fall into. Montrious v. Jefferys, 2 C. & P. 115; Morrill
v. Graham, 27 Tex. 646. Attorney is not liable for error if act is difficult or doubtful. Crosbie
v. Murphy, 8 Ir. C. L. 301.
Contest resulting in gain to successful claimant is sufficient consideration for allowance.
Hite's Estate, 101 Pac. 448.
What is reasonable compensation for attorney of executrix is in discretion of court. Rev.
Laws, 6126; Torreyson v. Bowman, supra. Supreme court will not interfere unless lower
court abuses discretion. Freese v. Pennie, 42 Pac. 978.
This is an appeal by the executrix, Catherine Coleman, from an order of the district court
making an allowance to the attorneys for the estate, and from an order denying her motion for
a new trial.
In January, 1920, Mrs. Coleman, a sister of the deceased, through her attorneys, Moore &
McIntosh, made application for the probating of the will of Denis Hegarty and for the
issuance of letters testamentary to herself, she being named in the will as sole legatee and as
executrix. The hearing on this petition was had February 9, 1920, when the court ordered that
the will be admitted to probate and that Mrs. Coleman be appointed executrix. Thereafter a
petition was presented to the court in behalf of certain other sisters of the deceased praying
the revocation of the letters testamentary theretofore issued. The court ordered the revocation
thereof upon the ground that the notice of the application therefor had been published for only
nine days instead of for ten days, as required by the statute and the order of the court. Mrs.
Coleman, through her said attorneys, appealed from said order to this court, which affirmed
the order appealed from. Thereafter a notice of a hearing upon the application of Mrs.
Coleman for the admission of the will to probate and for letters testamentary was duly
published. The sisters of the deceased, other than Mrs. Coleman, appeared in apt time and
entered appropriate objection to the granting of the prayer of the petition. A contest was had,
and, after the hearing, the court ordered the will admitted to probate and that letters
testamentary issue to Mrs. Coleman as prayed. An appeal was taken from said order to this
court by the contestants, where the order appealed from was affirmed.
from said order to this court by the contestants, where the order appealed from was affirmed.
Thereafter the estate was administered in accordance with the terms of the will. Upon the
hearing of the petition for a final settlement of the estate and for distribution thereof to Mrs.
Coleman, the court heard testimony as to the value of the services rendered the estate by the
attorneys who had represented Mrs. Coleman at all stages of the proceedings, and thereupon
it made an order fixing the fee of the attorneys. Mrs. Coleman, as executrix, being dissatisfied
with the order, obtained other counsel and made application for a modification of the order.
Upon the hearing of this application the court modified the allowance and determined by its
order that a certain amount of the sum allowed was for services rendered to Mrs. Coleman
prior to the entry of the final order admitting the will to probate and directing the issuing of
letters testamentary.
While counsel for appellant have assigned numerous errors as grounds for the reversal of
the order appealed from, they are all discussed under three heads, as follows: (1) Irregularities
in the proceedings; (2) allowance of fees for services not beneficial to the estate; (3)
allowance of fees for services due to the negligence of the attorneys.
1. We will consider the first contention. It is based upon the proposition that the petition
for approval of the final report of the executrix and for a distribution of the estate to Mrs.
Coleman prayed for no allowance of an attorney's fee and that the notice of such hearing did
not notify her that the court would hear an application for an allowance of attorneys' fees.
This contention is totally without merit. There was no necessity for embodying any allusion
to the attorney's fee in either the petition or the notice of the hearing thereof. Under our
statute (Rev. Laws, 6126) the fee of attorneys for an estate is a charge upon the estate to be
allowed by the court. All persons are chargeable with knowledge of this law and with notice
that the court will make such an allowance. It certainly had to be made before the estate was
closed, and, in the circumstances of the case, the time for the making thereof was when
the final report was approved and distribution ordered.
estate was closed, and, in the circumstances of the case, the time for the making thereof was
when the final report was approved and distribution ordered.
2. We come now to a consideration of the second proposition. This pertains to the
allowance by the court of a fee for the services rendered by counsel in opposing the contest
and in procuring the probate of the will in question. These services were rendered at the
request of Mrs. Coleman, who is named as the executrix in the will and is the sole beneficiary
thereunder. Our statute (Rev. Laws, 5859, 5861) makes it the duty of a person named as an
executor in a will, within fifteen days after obtaining knowledge thereof, to present the same
to the district court and to file a renunciation of the trust or to petition the probating of the
will, and making any person who fails to act without reasonable cause liable.
Counsel for appellant, in support of the contention that the court had no authority to make
an allowance of attorney's fees in opposing the contest and in procuring the probate of the
will, rely mainly upon the opinion in the matter of Higgins's Estate, 158 Cal. 355, 111 Pac. 8.
The reason why that case does not control is that in the instant case Mrs. Coleman, who
employed counsel to procure the probating of the will, was named as executrix therein, and
was the sole beneficiary thereunder, and prevailed in the contest. In the Higgins case the
testator left a widow and three children, Herbert, Albert, and Cornelia. Herbert was named in
the will as executor. By the terms of the will the testator gave the widow one-half of his
estate, and divided the other one-half as follows: One-sixth to Cornelia, two-sixths to Albert,
and three-sixths to Herbert. The effect of the will therefore, was simply to take from Cornelia
one-half the share to which she would have succeeded as heir if the deceased had died
intestate, and give the same to Herbert. When the will was offered for probate, Albert and
Cornelia filed a contest. Herbert employed counsel to fight the contest. The court, in refusing
to allow attorney's fees out of the estate to the attorneys employed by Herbert, said: "The
contest was practically nothing but a contest between the executor and Cornelia for
one-twelfth of the estate of the decedent.
The contest was practically nothing but a contest between the executor and Cornelia for
one-twelfth of the estate of the decedent. No one else was or could be beneficially interested,
and concluded that the executor should alone bear the expense of the contest. This clearly
shows the distinction between the two cases. But the Supreme Court of California recognized
the rule contended for by respondent in the matter of Hite's Estate, 155 Cal. 448, 101 Pac.
448, when it quotes approvingly from 2 Woerner on Administration (2d ed.), sec. 517, as
follows:
If, therefore, an administrator or executor incur expense at the request or in the interest of
a legatee or devisee, in the fruitless attempt to establish a will, the parties are liable therefor,
but not the estate. If the will is established, however, the costs and counsel fees, being
chargeable against those who are benefited by the litigation, may be charged against the
estate, if it go to the parties so benefited; otherwise, the executor's remedy is by action for
contribution.
This is the rule universally recognized as far as we are aware. Andrews v. Andrews's
Administrators, 7 Ohio St. 143; Meeker v. Meeker, 74 Iowa, 352, 37 N. W. 773, 7 Am. St.
Rep. 489; Mathis v. Pitman, 32 Neb. 191, 49 N. W. 182; Mesick v. Mesick, 7 Barb. (N. Y.)
120; Scott's Estate, 9 Watts & S. (Pa.) 98.
In the last-mentioned case it was said:
The executor liquidated, not for his own interest, but for the interest of the party who got
the whole estate by the litigation, and now refuses to reimburse him his expenses. Devisees
might just as reasonably object to allow him the costs of an ejectment for recovering their
land. The case is too plain for argument.
While the case of Wilson v. Wilson, 188 Ky. 53, 221 S. W. 874, 10 A. L. R. 780, is not in
point, however, if any inference may be drawn therefrom it must be favorable to the view
contended for by respondents. The same may be said of Re Hentges's Estate, 86 Neb. 75, 124
N. W. 929, 26 L. R. A. (N. S.) 757. It may not be out of place to add that the note found in 10
A. L. R. and 26 L. R. A. (N. S.), just mentioned, show a variety of situations in which the
question of the liability of an estate for expenses incurred by the proponents of wills was
considered.
of situations in which the question of the liability of an estate for expenses incurred by the
proponents of wills was considered. The instant case is different from each of the cases cited
for our consideration in that the contest in those cases was between heirs at law of the
deceased, whereas in the instant case the contest is between the sole beneficiary, who is also
the executrix under the terms of the will, and the attorneys whom she employed in procuring
the probate of the will.
There are authorities holding that where one who is named as executor in a will, if he has
no knowledge or reasonable grounds on which to predicate a well-founded suspicion of the
invalidity of the will, and acts in good faith, attorney's fees incurred in the contest should be
paid by the estate, but we do not deem it necessary to decide this point. Fillinger v. Conley,
163 Ind. 584, 72 N. E. 597.
The case of Torreyson v. Bowman, 26 Nev. 369, 68 Pac. 472, cited by appellant, was one
growing out of an administratorship. There was no will to be probated in that case. This case
turns upon a question not involved in that case.
The court did not err in the respect mentioned.
3-6. The next question presented is as to the negligence of the attorneys in connection
with the giving of the first notice of the hearing of the application for the probating of the
will; the statute requiring the giving of such notice provides that the clerk of the court shall
give it. Rev. Laws, 5866. There is no evidence in the record in this matter pertaining to the
giving of the notice indicating that the attorneys had anything to do with the giving of the
notice; hence we must presume that the notice which was given, and which was held
insufficient (In Re Hegarty's Estate, 45 Nev. 145, 199 Pac. 81), was given and controlled by
the clerk. The statute imposes no duty whatever upon the attorney for the proponent of the
will in connection with the giving of this notice. Our attention has been called to no case in
which the question here presented was considered, and we have found none throwing any
light upon the matter. However, we can perceive of no theory upon which an attorney should
be held liable for the failure of an officer to comply with a plain requirement of a statute.
which an attorney should be held liable for the failure of an officer to comply with a plain
requirement of a statute. There is nothing in the record before us to show that the attorney had
any reason to doubt that the notice had been properly given until the hearing upon the motion
to vacate the order admitting the will to probate. In this situation we cannot say that the
attorney was chargeable with negligence.
We are of the opinion, however, that so much of the allowance made by the lower court
for attorney's fees for services alleged to have been rendered in appealing from the order of
the court in vacating the original order admitting the will to probate, based upon the defective
notice, was without justification. The statute requires that the notice be given for ten days.
The undisputed evidence showed that it was given for only nine days; hence it necessarily
followed that the court had no jurisdiction to enter the order admitting the will to probate. In
Re Hegarty's Estate, supra. There was no excuse for putting the estate to the expense of an
appeal from that order. The statute is clear as to the length of time required for the giving of
the notice. There was no occasion for construction. It is admitted that the notice was given for
only nine days. The court simply held that the statutory notice had not been given, and that
the former order was prematurely entered. Generally speaking, it is the rule that professional
men are held liable only when they fail to exercise reasonable knowledge or skill in the
performance of professional duties. 6 C. J. 696. In the instant case we must assume that the
attorneys knew the statutory provision in question and that they could count. They had before
them the ruling of the court upon the statute. There was no room for doubt on the proposition.
They took the appeal with positive knowledge of the law and the fact.
It is ordered that the matter be and it is hereby remanded to the lower court with
instructions to modify the order in accordance herewith. Appellant to recover costs.
____________
47 Nev. 377, 377 (1924) Barber v. Barber
No. 2594
BARBER v. BARBER
January 29, 1924. 222 Pac. 284.
1. Attorney and ClientOn Collateral Attack on Decree, Attorney's Authority to Appear
Conclusively Presumed.
On a collateral attack on a separation decree the authority of an attorney to appear for the person
whom he assumes to represent as recited in the decree is conclusively presumed.
2. DivorceAttack on Separation Decree Held Collateral.
That an attack on a separation decree is directed to the jurisdiction of the court, and the decree was
pleaded in the answer in the present divorce action, and its validity denied by the reply, does not prevent
the attack from being collateral.
3. DivorceSeparation Decree of Supreme Court of District of Columbia Accorded Same
Effect as Decree of State Court.
The appearance of a wife in husband's separation action in the Supreme Court of the District of
Columbia gives that court complete jurisdiction to enter a decree, and it must be accorded the same effect
in matters res judicata as the decree or judgments of state courts.
4. DivorceSeparation Decree Held to Estop Wife from Acquiring Domicile for Divorce
Purposes.
A decree of separation in an action by the husband in the District of Columbia held to estop the wife
from acquiring a domicile in Nevada, giving a Nevada court jurisdiction of a divorce action.
5. DomicileGenerally Wife's Domicile Follows that of Husband.
Marriage creates a unity of the parties which generally gives them one domicile, and the husband has
the authority to determine where it shall be; the wife's domicile following his, and his not changing with
hers; but the wife under certain conditions may acquire a domicile apart from her husband.
6. DivorceDomicile within State Essential to Decree.
Domicile within Nevada of one of the parties is essential to empower the courts of that state to
dissolve the marital bond.
Appeal from Second Judicial District Court, Washoe County; Thos. F. Moran, Judge.
Divorce action by Veronica B. Barber against Herbert S. Barber. Judgment for plaintiff,
and defendant appeals. Reversed. Rehearing denied.
Hoyt, Norcross, Thatcher, Woodburn & Henley, and M. A. Diskin, for Appellant:
Decisions of Supreme Court of District of Columbia are entitled to same consideration in
matters of res adjudicata as those of courts of several states.
adjudicata as those of courts of several states. Embry v. Palmer, 107 U. S. 3.
Columbia court found all charges of cruelty had been sustained. Alleged cruelty continued
to about time respondent left there and came to Nevada. Same constitutes adjudication that
respondent was guilty of cruelty, and she was not justified in establishing different domicile,
and the Nevada court could not acquire jurisdiction. Haddock v. Haddock, 201 U. S. 562.
Sufficiency of affidavit for order of publication in District of Columbia should be tested by
decisions of courts there. In Thompson v. Thompson, 35 App. Cas. 14, such affidavit was
held sufficient. Ligare v. C. S. R. R. Co., 18 Pac. 777.
Res adjudicata is established. Thompson, supra; Atherton v. Atherton, 181 U. S. 151;
Harding v. Harding, 198 U. S. 317; Averbuch v. Averbuch, 141 Pac. 701.
Court permitted testimony by plaintiff over objection by defendant to establish fact that
attorney appeared in Columbia court without authority. This was error, being collateral attack
upon judgment there which could not be made in court of this state. Martin v. Kirby, 34 Nev.
206; 1 Freeman, Judgments, sec. 128.
Some cases hold testimony will not be received in attempt to show attorney's appearance
was unauthorized. Cigler v. Keinath, 167 Ill. App. 65; In Re Higgins, 124 N. Y. Supp. 1005;
Carpenter v. City of Oakland, 30 Cal. 440.
Connecticut court held New York decree a mensa et thoro against nonappearing husband
not enforceable in that state because New York was not matrimonial domicile. Piettis v.
Piettis, 101 Atl. 13, where, in note, is considered apparent conflict with Thompson case
which established that decree a mensa et thoro in matrimonial domicile upon constructive
service is entitled to full faith and credit and is bar to suit by wife in another state.
The question in all these cases is: Where is the matrimonial domicile? When parties are
married in certain state, have their matrimonial domicile there, and husband continues to
reside there, courts of that state have jurisdiction of suit by him, though wife had left and
could not be reached by formal process.
husband continues to reside there, courts of that state have jurisdiction of suit by him, though
wife had left and could not be reached by formal process. Thompson case, supra; Kelly v.
Kelly, 87 S. E. 567.
Suit for divorce was brought in France, for cause accruing there while both parties resided
there. Wife had theretofore sued in same court and was thereby estopped to deny that court's
jurisdiction on her husband's suit on ground that parties' domicile was in New York, such
ground being inconsistent with her former position. Gould v. Gould, 194 N. Y. S. 745;
Jennings v. U. S., 264 Fed. 399.
E. E. Roberts and Sardis Summerfield, for Respondent:
Decree mensa et thoro does not pretend to change status of parties as married persons, but
merely assumes to relieve husband of liabilities and duties. The decree is in personam and in
no sense in rem. 2 Nelson, Divorce and Separation, 980; 14 Cyc. 710, 711.
Federal decisions are practically uniform that judgment in personam does not bind
nonresident where he did not appear, and which is based on constructive service only.
Pennoyer v. Neff, 24 L. Ed. 565; D'Arcy v. Ketchum, 13 L. Ed. 648.
Where there is total lack of jurisdiction, entire proceeding is nullity, and subject to
collateral attack. Guaranty Co. v. Freen Co., 35 L. Ed. 116.
A void judgment can be collaterally attacked. Long v. Tighe, 36 Nev. 129.
Where validity of record is directly put in issue, attack is direct, not collateral. Walker v.
Goldsmith, 12 Pac. 537.
Matters pleaded as res adjudicata must have been actually litigated or opportunity to do so
have been presented. McLeod v. Lee, 17 Nev. 103.
Neither Thompson, Atherton, nor Harding case is favorable to appellant's contention. In
Harding case court held Illinois decree, being rendered by court having jurisdiction of parties
at matrimonial domicile, entitled to full faith and credit.
entitled to full faith and credit. In Atherton and Thompson cases previous decrees of divorce
prevailed against separate maintenance suits because in divorce actions marriage status is res
of litigation; in separate maintenance suits it is not. In Harding case previous maintenance
decree, based upon personal service, actual litigation, and consent of defendant therein,
prevailed against later divorce suit based upon identical matter litigated, because in
maintenance suit the res, i. e., the marriage status, was not involved, and court, having
acquired jurisdiction over defendant by personal service, had jurisdiction to render valid
personal judgment against him. In Haddock case separate maintenance decree based upon
personal service prevailed over previous divorce decree obtained upon constructive service in
another state because court of each is exclusive judge of policy of its own laws, and full faith
and credit clause of federal constitution does not apply in such cases.
Plea of res adjudicata should not be sustained because Columbia court acted without
obtaining jurisdiction of Mrs. Barber, making its pretended decree corem non judice and void.
Even if that court had jurisdiction, its decree is not res adjudicata of question of Mr. Barber's
cruelty. That issue could not be raised without her appearance. She had legal right to refuse to
appear, and was never required, under peril of waiver, to create opportunity to litigate it in
that court.
This is an action for divorce. For convenience the parties will hereafter be referred to as
husband and wife. The wife charged extreme cruelty in her complaint. The husband answered
denying some of the facts charged and admitting others. A prior decree of divorce a mensa et
thoro granted the husband by the Supreme Court of the District of Columbia was also pleaded
in the answer as a bar to the wife's alleged cause of action. She was granted a divorce. A
motion for a new trial was made and denied, from which this appeal is taken.
On the trial of the case an exemplified copy of the proceedings in the Supreme Court of
the District of Columbia was introduced in evidence. In rebuttal the wife introduced certain
testimony for the purpose of showing that the appearance of an attorney for her in the
proceedings in the court of the District of Columbia was without authority from her, which
was objected to by the husband, and its admission assigned as error, in that it constituted a
collateral attack upon the judgment of said court, and was therefore incompetent, irrelevant,
and immaterial. The trial court found that the husband's affirmative defense of res adjudicata
of the issue of the husband's extreme cruelty to the wife was not sustained by the evidence,
which is also assigned as error. The primary question presented is: Does the decree of the
Supreme Court of the District of Columbia granting the husband a legal separation from bed
and board under the laws of the District of Columbia constitute a bar to the wife's alleged
cause of action in this case?
1. A preliminary question must first be disposed of. The jurisdiction of the District of
Columbia court to render the decree, which it is claimed operates as an estoppel on the wife
in this divorce action, is challenged by her counsel. In this respect it is asserted that the decree
is not based on her default entered pursuant to the constructive service of summons, but on
her appearance by an attorney, which appearance it is claimed was unauthorized. Conceding
that the decree is based on such appearance, we are nevertheless of the opinion that the recital
thereof in the decree creates a presumption that the appearance was duly authorized, which
presumption cannot be overthrown by evidence aliunde. We are not prepared to say that the
evidence introduced for that purpose proves a want of authority in the attorney who appeared
for the respondent in the District of Columbia court proceedings, but its introduction
constituted error. In the face of a collateral attack, the authority of an attorney to appear for
the person whom he assumes to represent is conclusively presumed. Pressley v. Lamb, 105
Ind. 171, 4 N. E. 682; Corbitt v. Timmerman, 95 Mich.
Timmerman, 95 Mich. 581, 55 N. W. 437, 35 Am. St. Rep. 586; Cigler v. Keinath, 167 Ill.
App. 65. See, also, authorities collected in note 4, 1 Freeman on Judgments (4th ed.), pp. 227,
228. As pointed out by the author in the last work referred to in paragraph 128, there is a
conflict of authority as to the rule stated, but this court has heretofore held that the authority
of an attorney to appear cannot be questioned in a collateral attack. Deegan v. Deegan, 22
Nev. 185, 37 Pac. 360, 58 Am. St. Rep. 742. No good reason appears why a different rule
should be adopted.
2. We cannot agree with counsel for respondent that the attack made on the decree is
direct and not collateral, for the reasons assigned by him, namely: Because the decree is
pleaded in the answer, and its validity denied in the reply, and because the attack is directed
to the jurisdiction of the court. These conditions have no bearing upon the character of the
attack made upon the decree. The distinction between a direct and collateral attack is clearly
drawn. Van Fleet on Collateral Attack, sec. 3, says:
Any proceeding provided by law for the purpose of avoiding or correcting a judgment is a
direct attack which will be successful upon showing error; while an attempt to do the same
thing in any other proceeding is a collateral attack, which will be successful only upon
showing a want of power.
3. These definitions have been approved by this court in Martin & Co. v. Kirby, 34 Nev.
205, 215, 117 Pac. 2. Unquestionably, respondent's attempt to avoid the effect of the decree
of the District of Columbia court in the present action is a collateral attack. The appearance of
the wife gave the Supreme Court of the District of Columbia complete jurisdiction to enter
the decree, and it must be accorded the same effect in matters res adjudicata as the decree or
judgments of state courts. Embry v. Palmer, 107 U. S. 3, 2 Sup. Ct. 25, 27 L. Ed. 346.
4. We come now the final question, and a further statement of the facts is necessary to
elucidate our views in regard to it.
views in regard to it. It appears from the District of Columbia record that the parties were
married in the District of Columbia on the 19th day of March, 1913, and lived together as
man and wife in said district until November 16, 1920, except on several occasions between
their marriage and said date when the wife left their home, but continued to reside in the
district. On this last-mentioned date the wife left the home taking with her their two children,
and has never returned. On August 5, 1919, she left the home taking with her the two children
and did not return until March, 1920. During this period she brought a suit against the
husband in the Supreme Court of the District of Columbia, praying for a divorce a mensa et
thoro which was dismissed before it was reached for trial. Thereafter, on December 23, 1920,
she filed her petition in the Supreme Court of the District of Columbia for a divorce a mensa
et thoro. During the pendency of these proceedings she filed a praecipe in the office of the
clerk of said court directing the dismissal of the cause. On September 24, 1921, or
immediately thereafter, the wife left the District of Columbia, and took with her the two
children. On March 28, 1922, she filed her complaint in this action praying for a divorce, and
alleging that for more than six months last past and next immediately preceding the
commencement of this action she had been an actual bona-fide resident of the city of Reno,
county of Washoe, State of Nevada, and was granted a decree of divorce on January 16, 1923.
The acts alleged as cruelty upon which the divorce was granted were all committed in the
District of Columbia.
In the meantime, on the 28th day of October, 1921, the husband filed his action in the
Supreme Court of the District of Columbia seeking a legal separation from the bed and board
of the wife. The action was based on desertion and cruelty committed in the District of
Columbia. In this proceeding a decree was entered in the court of the District of Columbia on
the 9th day of May, 1922, granting the husband a legal separation from the bed and board of
the wife.
5. Upon this state of facts it becomes unnecessary to inquire as to whether the husband's
cruelty, as alleged in the complaint, was litigated and determined in the former proceeding
with resulting res adjudicata, for, under well-established rules of law, the decree of the
District of Columbia court, when given its legal effect, estops the wife from acquiring such
domicile in this state as would be essential to give the court which granted the decree of
divorce jurisdiction to entertain the action. The general rule as to the domicile of the wife is,
as stated by Mr. Bishop:
That marriage creates a unity of the parties which gives them one domicile, that the
husband has the authority to determine where it shall be, and that consequently the wife's
follows his, and his does not change with hers. 2 Bishop on Marriage and Divorce, par. 125.
The wife may, however, under certain conditions acquire a domicile apart from her
husband. The Supreme Court of the United States in the case of Cheever v. Wilson, 9 Wall.
108, 19 L. Ed. 604, said:
The rule is that she may acquire a separate domicile whenever it is necessary or proper
that she should do so. The right springs from the necessity for its exercise, and endures as
long as the necessity continues.
The same doctrine is upheld in Ditson v. Ditson, 4 R. I. 87; Hunt v. Hunt, 72 N. Y. 217, 28
Am. Rep. 129; Aspinwall v. Aspinwall, 40 Nev. 55, 184 Pac. 810.
Eminent authority, says this court in the last case cited, supports the proposition that
under modern law the wife may acquire a domicile separate and distinct from that of her
husband where the unity of the husband and wife is breached, as, for instance, where the
husband has given cause for divorceciting authorities.
The domicile of the wife is for general purposes determined to be that of the husband. By
leaving him, however, if for just cause, she may acquire a residence in another state, in which
she may maintain an action for divorce. 14 Cyc. 584.
6. The facts previously set forth show that during all of their married life, and until the
wife departed for Nevada, the domicile of the parties was in the District of Columbia, and, in
the light of the principles stated, the legal effect of the decree of the court of said district is to
estop her from acquiring a domicile in another state for divorce purposes. This being true, the
lower court, as previously stated, was without jurisdiction to try the action, for the proposition
that a domicile in this state of one of the parties is essential to empower its courts to dissolve
the marital bond is concluded by a previous decision of this court.
In applying the statute of this state relative to jurisdiction in divorce proceedings, as in
applying the statutes of any state, said this court in a recent decision, cited supra, the
matrimonial domicile of one or the other of the parties to the action, it must be borne in mind,
is essential to confer jurisdiction over the status of the marital relation. The complaint must
allege that one or the other of the parties has a domicile within the jurisdiction of the court in
addition to alleging any other facts necessary to comply with statutory requirements such as
residence or presence within the county where the suit is instituted. Statutes regulating
divorce are presumed to be enacted with reference to the general law relative to the marriage
relation and are to be construed with reference to that law. Marital status follows marital
domicile and is independent of the corporeal presence of either or both of the parties. It is for
this reason that the courts of one state are without power to annul a marital status which
exists in another state. Where neither party to the suit has a domicile within the state where
the action is instituted, the courts of that state are without jurisdiction of the subject-matter of
the action. A state may empower its courts to dissolve the marital relation where only one of
the parties has a domicile within the state, and its statutes may make it immaterial whether it
be the domicile of the plaintiff or the defendant. Such, we think, is the law of Nevada."
think, is the law of Nevada. Aspinwall v. Aspinwall, supra.
For the reasons given the judgment must be reversed.
It is so ordered.
April 18, 1924.
Per Curiam:
Rehearing denied.
____________
47 Nev. 386, 386 (1924) Page v. Walseer
No. 2546
PAGE v. WALSER
March 10, 1924. 223 Pac. 1079.
opinion on costs
1. CostsPractice of Awarding and Taxing Costs and Related Matters Are Regulated by
Statute.
The practice of awarding and taxing costs on appeal, the time within which the cost bill must be filed,
and items allowable are matters of statutory regulation amplified by court rules.
2. CostsBill Filed after Decision on Petition for Rehearing Filed in Time.
A cost bill, though filed after decision on petition for rehearing, was filed in time.
3. CostsReasonable Premiums on Appeal Bonds Properly Allowed as Appeal Costs.
Rev. Laws, 699, authorizes a reasonable sum for premium on appeal bond as an item on appeal cost,
and, in the absence of showing that the amount is unreasonable, the clerk's figures will stand.
4. CostsCosts for Reply to Rehearing Petition Are Proper Appeal Costs.
Under Supreme Court Rule 6, subd. 1, allowing costs of typewriting appeal papers, and Rev. Laws,
5381, making allowance of costs discretionary on appeals to modify a judgment, or from denial of a new
trial, costs for reply to a petition for rehearing of an appeal from denial of new trial and to modify a
judgment, the petition and reply being in the nature of briefs and part of the papers on appeal, are proper
appeal costs.
5. CostsPrevailing Party's Recovery for Typewriting on Appeal Not Limited to Portions of
Transcript Relating to Points Decided in His Favor.
Under Supreme Court Rule 6, subd. 1, allowing cost of typewriting appeal papers, the contention that
the prevailing party can recover the expense of typewriting only such portions of the transcripts and
briefs as relate to the point or points decided in his favor is without merit, since costs are not contingent
upon points won or lost in the appellate court, especially where the assignments of error rules upon were
necessarily incident to the main issues.
47 Nev. 386, 387 (1924) Page v. Walser386
6. CostsCounsel Should Compile Statement of Specifications and Point out Nonpertinent
Matters of Record for which Cost Should Be Disallowed.
In proceedings to review costs taxed by the clerk, counsel, out of regard for the labors of the court,
should compile from the record some sort of statement of specifications pointing out what portions
thereof relate to matters not pertinent and necessary to determination of the main issues decided.
7. CostsModification of Judgment with Respect to Costs without Order Carries Costs.
A request for an order for modification of the judgment with respect to costs on appeal comes within
Rev. Laws, 5381, making costs of appeal from an order granting a new trial or modifying a judgment
discretionary with the court, and the modification of the judgment without order carries costs
notwithstanding Supreme Court Rule 6, subd. 1, allowing expense of typewriting transcripts, affidavits,
etc.
8. CostsSurplus Matter Brought up on Appeal Chargeable to Party Responsible.
On appeal from denial of a new trial and to modify the judgment, though Stats. 1915, c. 142,
substituting bills of exceptions for statements on appeal, but making no provision for disallowance of
expenses of typewriting surplus matter in the bills of exception, repealed Rev. Laws, 5333, requiring
disallowance of such matter as costs, nevertheless unnecessary copies of pleadings, repetition of court
titles, verifications, etc., brought up or incorporated in briefs, will be charged to the party responsible, in
view of Rev. Laws, 5381, making allowance of costs discretionary on such appeals, and Supreme Court
Rule 6, allowing expense of typewriting transcripts, etc.
Action by R. S. Page and another against Mark Walser and another. Judgment for
plaintiffs, motion for new trial denied, defendants appealed, and the judgment was reversed in
part and affirmed in part. 46 Nev. 390, 213 Pac. 107. On appellants' appeal from rulings of
the clerk on the cost bill, rulings sustained as modified.
Price & Hawkins, for Appellants:
In Richards v. Vermilyea, 42 Nev. 294, 301, this court approved ruling of clerk taxing
costs on behalf of appellant, premium paid on undertaking on appeal, and, citing Rev. Laws,
699, said of that section that it expressly makes such items proper elements of cost to be
taxed by party who has been compelled to incur such liability.
The expense of printing or typewriting transcripts, affidavits, briefs, or other papers on
appeal in civil causes, shall be allowed as costs and taxed in bills of costs in usual mode."
47 Nev. 386, 388 (1924) Page v. Walser
causes, shall be allowed as costs and taxed in bills of costs in usual mode. Court Rule 6, sec.
1. Rule 13 requires briefs and points and authorities to be either printed or typewritten. Rule
15 provides for rehearing, and for serving copy of petition which with the reply thereto must
be typewritten or printed, and no other argument shall be heard thereon.
Costs for typewriting reply to petition for rehearing cannot be incorporated in cost bill
served and filed before service and filing of such reply, or until after decision on petition.
In Dixon v. S. P. Co., 42 Nev. 73, 91, the court said: As to costs on rehearing, since both
parties petition therefor, and neither obtained any relief therefrom, each party should pay his
own costs on rehearing.
Appellants here did not petition, but successfully resisted respondents' petition, and are
entitled to their costs upon such rehearing.
Respondents' objection that record is unnecessarily voluminous is not sustained by the
record, as no copies of pleadings are contained in the record except as they appear in
judgment roll, which must contain pleadings and all bills of exceptions. Rev. Laws, 5273.
There is no duplication of copies of pleadings, except as required by statute. 3 Rev. Laws,
p. 3342; Stats. 1915, p. 164, secs. 1, 2, 5, 6, 11.
Objections to cost bill of appellants were filed by respondents, but there is nothing in
record to show they were served as contemplated by section 3 of Rule 6.
Hoyt, Norcross, Thatcher, Woodburn & Henley, for Respondents:
Judgment was modified on appeal. In the matter of costs, the case comes within the
provisions of Rev. Laws, 5381. The matter is in discretion of court. The section provides if no
order is made, party obtaining any relief shall have his costs. As no order was made in
original decision or order denying petition for rehearing, appellants would be entitled to costs
unless some order in respect thereto is subsequently made.
47 Nev. 386, 389 (1924) Page v. Walser
Until remittitur goes down court still has jurisdiction to determine question of costs, both
by rule of court and under section referred to.
Irrespective of particular objections set forth in respondents' objections to appellants' cost
bill, proper exercise of discretion warrants order that parties to appeal pay their own costs,
though plaintiffs recovered finally only small part of total sum sued for. After years of
litigation plaintiffs are met with cost bill which absorbs nearly all of judgment allowed in
their favor. Case as whole is one in which allowance of costs to appellants would violate
principles of justice.
Though discretion should not be exercised to disallow costs to appellants upon general
principles, we nevertheless urge such discretion should be exercised in disallowing costs for
very large portion of transcript on appeal and of briefs devoted to questions upon which
appellants did not prevail upon appeal. It is not just we should be compelled to pay costs in
order for appellants to present questions determined not meritorious.
Statute does make bill of exceptions filed prior to judgment part of judgment roll, but we
contend where documents appear several times in judgment roll it is unnecessary to copy
them more than once, a reference being sufficient. The court should discourage needless
repetition, and not impose burden on losing party when opposing party occasions unnecessary
expense.
We reiterate our statement in our objections that appellants could have embodied in one
hundred pages of transcript and brief all matters upon which they prevailed.
We submit there is nothing in record to show original objections were not served in time.
There is no law or rule requiring proof of service except in particular cases, like a summons,
for example. Attorneys and officers are presumed to perform their duties.
This proceeding is one authorized by subdivision 3 of Supreme Court Rule 6 to review the
decision of the clerk of this court taxing appellants' costs herein at the sum of $7S2.30.
47 Nev. 386, 390 (1924) Page v. Walser
clerk of this court taxing appellants' costs herein at the sum of $782.30.
1. All concede or must concede that the practice of awarding and taxing costs on appeal,
the time within which the cost bill must be filed, and the items allowable are all matters of
statutory regulation, amplified by the rules of this court. For the clear understanding of our
reasons for holding that six of the seven objections to the cost bill are untenable, we shall
quote the statute and rules of court deemed relevant.
Section 439 of the civil practice act (Rev. Laws, 5381) provides:
In the following cases the costs of an appeal to the supreme court shall be in the
discretion of the court:
1. Where a new trial is ordered.
2. When a judgment is modified. In the event no order is made by the court relative to the
costs in the two instances mentioned in this section, the party obtaining any relief shall have
his costs.
Subdivision 1 of Rule 6 of the supreme court provides:
The expense of printing or typewriting transcripts, affidavits, briefs, or other papers on
appeal in civil cause, * * * required by these rules to be printed or typewritten, shall be
allowed as costs, and taxed in bills of costs in the usual mode; provided, that no greater
amount than 15 cents per folio of 100 words, and for one copy only, shall be taxed as costs
for either printing or typewriting; all other costs to be taxed by the clerk in accordance with
the fee bill.
Subdivision 2 of Rule 6 refers to the time for the filing of the cost bill with the clerk and
its service upon the opposite party.
Subdivision 3 of said rule provides:
If either party desires to object to the costs claimed by the opposite party, he shall, within
ten days after the service upon him of a copy of the cost bill, file with the clerk, and serve his
objections. Said objections shall be heard and settled, and the costs taxed by the clerk. An
appeal may be taken from the decision of the clerk, either by written notice of five days, or
orally and instanter, to the justices of this court, and the decision of such justices shall be
final.
47 Nev. 386, 391 (1924) Page v. Walser
either by written notice of five days, or orally and instanter, to the justices of this court, and
the decision of such justices shall be final. If there be no objections to the costs claimed by
the party entitled thereto, they shall be taxed as claimed in his cost bill.
Referring to the parties herein as they stood on the original appeal, it will be observed by
reference to the opinion and decision (46 Nev. 390, 213 Pac. 107) that the appellants
appealed from a judgment for the sum of $10,200, and also from an order denying their
motion for a new trial. The judgment was reduced by our decision from $10,200 to $833.33,
and the court made no order relative to costs. Respondents filed a petition for a rehearing, in
which it was urged that, since the court ruled against the contentions of appellants on most of
the questions raised upon the appeal, and the greater portion of the record and the greater
portion of appellants' briefs were directed to points upon which they did not prevail, the
judgment should be so modified as to deny the appellants their costs upon appeal. The
petition for rehearing was summarily denied without comment. Thereafter appellants filed an
amended cost bill by adding thereto the item of $12.60 for the expense of typewriting their
reply to the petition for rehearing. The respondents interposed objections to the amended bill,
and in order to cure certain alleged irregularities with respect to the original bill it was
stipulated between counsel that the clerk should proceed to hear and settle the objections to
the bill and tax the costs.
The items of cost taxed by the clerk are in words and figures following, to wit:
Clerk's
$25.00
Premium paid on undertaking on appeal.............................................................................. 10.00
Transcript of record on appeal, Vol. A, 991 folios at 15 cents ............................................
148.65
Transcript of record on appeal, Vol. B, 1121 folios at 15 cents ..........................................
168.15
Transcript of record on appeal, Vol. C, 1161 folios at 15 cents ..........................................
174.15
Transcript of record on appeal, Vol. D, 1021 folios at 15 cents ..........................................
153.15
Assignment of errors, 46 folios at 15 cents.......................................................................... 6.90
Brief and argument for appellants, 522 folios at 15 cents .................................................. 78.30
Reply brief, points, and authorities, 36 folios at 15 cents .................................................... 5.40
Reply to petition for rehearing, 84 folios at 15 cents .......................................................... 12.60

_______

Total costs allowed by clerk..................................................................................................
$782.30 We shall notice and dispose of the objections to the several items as nearly in the
order in which they are stated as convenient.
47 Nev. 386, 392 (1924) Page v. Walser
We shall notice and dispose of the objections to the several items as nearly in the order in
which they are stated as convenient.
2. 1. It is objected that the bill should be disregarded and treated as a fugitive paper, for
the reason that there is no provision of law for the filing of a cost bill after decision on
petition for rehearing. In this counsel are in error. Ramelli v. Sorgi, 40 Nev. 281, 161 Pac.
717.
3. 2. It is objected that the item premium paid on undertaking on appeal is not a lawful
charge; that the premium paid is excessive. The item is one authorized by statute. Rev. Laws,
699. In the absence of anything to show it to be an unreasonable charge, the item will be
allowed to stand. Richards v. Vermilyea, 42 Nev. 294, 175 Pac. 188, 180 Pac. 121.
4. 3. It is claimed that there is no provision of law permitting recovery of costs for reply
to a petition for rehearing. It is considered by the court that a petition for rehearing and reply
thereto are in the nature of briefs and a part of the papers on appeal. The item of $12.60 for
typewriting the reply to the petition for rehearing is therefore allowed.
5. 4. It is objected that the items of cost for transcript of record on appeal are excessive,
for the following reasons: (a) That the record contains three surplus copies of the voluminous
pleadings in the case. (b) That the record is incumbered by numerous bills of exception,
designed to present questions of law, all of which were decided against the contentions of
appellants. (c) That the record, in so far as it affects the point or points decided in favor of
appellants, does not exceed 100 pages or 300 folios. (d) The item designated assignment of
errors relates exclusively to alleged errors, none of which was sustained on appeal, excepting
one with respect to the value of certain shares of the capital stock of the Limerick
Consolidated Mines Company in controversy. (e) That the items designated brief and
argument for appellants and reply brief, points, and authorities are excessive, in that said
briefs are in the main devoted to arguments on questions of law and fact which were not
sustained by the decision of the court, with the exception of the point relative to the
insufficiency of the evidence to support the value of said stock.
47 Nev. 386, 393 (1924) Page v. Walser
are in the main devoted to arguments on questions of law and fact which were not sustained
by the decision of the court, with the exception of the point relative to the insufficiency of the
evidence to support the value of said stock. (f) The cost bill, as a whole, is unfair, excessive,
and unjust.
We have stated the foregoing objections collectively, because all relate to the one point
that a prevailing party on appeal is entitled to recover the expense of typewriting only such
portions of the transcript and briefs as relate to the point or points decided in his favor. The
point is totally without merit, yet, as it seems to be relief on in good faith, we will dispose of
it.
6. If there is any merit to the contention that the record, in so far as it affects the point or
points decided in favor of appellants, does not exceed 100 pages or 300 folios, it must not be
overlooked that the transcript contains 1,100 pages of typewritten matter. Counsel, at least out
of regard for the labors of this court, should have compiled from the record some sort of
statement of specifications pointing out what portions thereof relate to matters not pertinent
and necessary to the determination of the main issue decided. We know of no authority and
none is cited in support of the proposition that the prevailing party on appeal is entitled to
recover the expense of typewriting only the portions of a transcript which pertain to
assignments of error sustained on appeal. Certainly clients should not be penalized because
attorneys cannot with oracular certainty forecast a possible ruling upon all the points litigated.
Costs are not contingent upon the points won or lost in the appellate court. Furthermore, in
this particular case we are of opinion that the assignments of error discussed and ruled upon
adversely were necessarily incident to the main issues in the case, to wit, the legal sufficiency
of the pleadings, the validity of the judgment, the sufficiency of the evidence in its support,
and the right of respondents to recover any sum whatever.
7. Objections of this character are addressed to the court and not to its clerk. It is clear that
a request for an order calling for a modification of the judgment with respect to costs on
appeal comes within the meaning and purview of section 53S1 of the Revised Laws,
supra, and not Rule 6, supra.
47 Nev. 386, 394 (1924) Page v. Walser
an order calling for a modification of the judgment with respect to costs on appeal comes
within the meaning and purview of section 5381 of the Revised Laws, supra, and not Rule 6,
supra. Counsel for the respondents seem to have considered this to be the proper practice, as
they requested in their petition for rehearing that this court make an order modifying the
judgment with respect to costs. We are of opinion now, as we were then, that the modification
of the judgment without an order carries costs.
8. The objection (a) that the record contains three surplus copies of the pleadings is a
proper objection. Counsel for appellants would excuse the repetition of the pleadings because
they are incorporated in the bills of exception. One copy of the pleadings is all that is
necessary, regardless of the place they occupy in the transcript. In this case the original
complaint should have been omitted. The amended complaint, answer, and reply formed the
issues tried, and no question arose upon the very voluminous original complaint.
The objection to the repetition of the pleadings affords opportunity for the discussion of
other matters in the record which might have been advantageously omitted. It is declared in
numerous decisions that all matter in the transcript which does not tend in some degree to
illustrate the point or points litigated is an incumbrance and positively injurious. The
authorities seem to be unanimous in holding that, when unnecessary matter has been brought
up to the appellate court or incorporated in briefs, the cost of such matter will be charged to
the party responsible. 7 R. C. L. sec. 31, p. 803. Or, as expressed by other authorities, if the
appellant has made up an unnecessary voluminous transcript, the supreme court will allow
him cost of only such part thereof as constitutes a proper record for the appeal. Hayne, New
Trial and Appeal (Rev. Ed.), sec. 298, p. 1710. Prior to the statute of 1915, page 164, the rule
as to surplusage matter in records on appeal was amplified by statute. Rev. Laws, 5333,
provided:
If a party shall include in the statement any more of the testimony and proceedings than is
pertinent and necessary to fairly present the exceptions taken, he shall not be allowed
costs for the typewriting or printing of such surplusage."
47 Nev. 386, 395 (1924) Page v. Walser
necessary to fairly present the exceptions taken, he shall not be allowed costs for the
typewriting or printing of such surplusage.
The statute of 1915 repeals section 5333 of the Revised Laws. It does away with
statements on appeal and substitutes therefor bills of exception, but it makes no provision for
the disallowance of the expense of printing or typewriting surplusage matter contained in the
bills of exception. The basic idea of a bill of exception is that it shall not include any more of
the testimony and proceedings in any case than is pertinent and necessary to fairly present the
exception taken. The bills of exception in this case are nothing more than the indiscriminate
transcription of the entire proceedings in the court below without any regard whatever for
abbreviation or condensation. We appreciated this when the case was originally before us.
Though we were greatly assisted by the assignments of error and the elaborate briefs in
studying the record, nevertheless the utterly useless matter was present, and we were
compelled to labor with a vast number of pages that had no bearing whatever upon the point
or points to be decided. No inconsiderable portion of the transcript is taken up with the
repetition of the title of the court and cause, indorsements upon each paper filed, verifications
in full, verbatim copies of lengthy exhibits, arguments occurring upon the trial, the minutes in
full of directors' meetings, articles of incorporation, a transcript of a collateral suit, and
documents which might have been abstracted or condensed.
By observing these suggestions in making up bills of exception, attorneys will greatly
diminish the expense of transcripts, and thereby also facilitate the examination of the record
on the part of the court. Such, we think, was the leading purpose of the enactment of the law
of 1915. We are not called upon to point out to trial courts their duties in the premises when
an unnecessarily voluminous bill of exception is presented for approval and settlement. They
have their own rules, and this court has no supervisory power over them in the trial and
conduct of cases.
47 Nev. 386, 396 (1924) Page v. Walser
It is adjudged and ordered that the clerk of this court calculate the costs of typewriting the
surplus pleadings in the record, and deduct the amount from the total costs taxed, and as
reduced the cost bill stands affirmed.
____________
47 Nev. 396, 396 (1924) Humboldt Land & Cattle Co. v. District Court
No. 2622
HUMBOLDT LAND AND CATTLE COMPANY v.
SIXTH JUDICIAL DISTRICT COURT
March 26, 1924. 224 Pac. 612.
1. Constitutional LawEssentials of Due Process of Law.
Due process of law, of which no person shall be denied, means that no one shall be deprived of his
property without notice and a reasonable opportunity to be heard in his own behalf.
2. Constitutional LawRules for Determination of Rights within Legislative Province.
It is the province of the legislature to establish, within constitutional limits, the rules not only of
procedure, but for determination of rights, by which the courts shall be governed.
3. Constitutional LawRelative to Question of Law, Character of Proceeding Involved
Regarded.
In determining whether due process of law has been denied, regard must be had to the character of the
proceeding involved, and respect given to the cause and object of the taking.
4. Constitutional LawWater Law Held Not to Deny Due Process of Law with Respect to
Trial of Exceptions to State Engineer's Order of Determinations.
Water law, sec. 35 (Stats. 1913, c. 140; Stats 1915, c. 253; Stats. 1921, c. 106) held not to deny due
process of law with respect to the trial of exceptions taken and filed to the state engineer's order of
determination, defining the relative rights of the various claimants and appropriators to and of waters of a
stream, because not requiring copies of the exceptions to be served on each claimant personally; the
proceeding on reaching the district court not becoming a separable controversy between different
claimants.
5. Constitutional LawNotice Required by Water Law by Filing in Court of Exceptions to
State Engineer's Determination of Water Rights Sufficient for Due Process of Law.
The notice to other claimant by filing in court as required by water law, sec. 35 (Stats. 1913, c. 140;
Stats. 1915, c. 253; Stats. 1921, c. 106) five days before the day set for hearing, of exceptions to state
engineer's determination of relative rights of claimants and appropriators to and of waters of a stream,
held sufficient to constitute due process of law; the procedure in ordinary judicial proceedings not being
necessary.
6. Waters and WatercoursesStatute in Limiting Pleadings on Hearing of Exceptions to State
Engineer's Determination Held to Deprive No Claimant of Substantial Right.
Water law, sec. 35 (Stats. 1913, c. 140; Stats. 1915, c. 253; Stats. 1291, c. 106), in limiting the
pleadings on hearing of exceptions to the state engineer's order of determination of rights of claimants in
waters of a stream to such order, the statements or claims of claimants, and the exceptions deprives no
claimant of substantial right.
7. Constitutional LawWater Law Held Not to Confer Judicial Power on State Engineer.
Water law, secs. 29, 30, 32, as amended by Stats. 1921, c. 106, and section 31, merely requiring the
state engineer, when objections are taken to the findings, or any part of the preliminary order of
determination of relative rights of claimants to waters of a stream, to inquire into the existence of all the
facts and apply the law thereto in order to determine what his official conduct shall be, held not to confer
judicial power on such ministerial officer.
Original proceeding in prohibition by the Humboldt Land and Cattle Company and others
against the District Court of the Sixth Judicial District, and George A. Bartlett, Judge
presiding. Dismissed. Pending on petition for rehearing.
Samuel C. Wiel, Perry Evans, Albert C. Aiken, W. M. Kearney, T. P. Witschen, and Brown
& Belford, for Petitioners:
The main grounds presented in support of the petition are:
(1) Due process in district court is denied by section 35, which goes beyond statute of any
other state.
(2) Due process in district court is denied by section 88a, which also goes beyond statutes
of other states.
(3) The Nevada act invades the constitutional limits of the courts by sections 35, 36, 36a,
38 and 75 of the statute.
(4) Judicial power taken from the courts remains vested in the state engineer no less than
when Pitt v. Scrugham so decided.
(5) The judicial sections are separable. The case does not involve decision upon the
validity of the administrative section.
(6) Public policy requires that efficiency of the engineers subordinate itself to the
impartiality to which no one but the courts are sworn.
one but the courts are sworn. Administrative departments do not act with the cold
indifference of impartial judges. To avoid litigation is desirable, but when causes of litigation
do arise courts must not be closed to them.
Due process in district court is denied by section 35, which goes beyond statute of any
other state. Filing of exceptions in district court begins real proceeding in which adjudications
are made. As long ago as 1889 suit was brought to adjudicate Humboldt River. It ended by
reversal in supreme court for failure to follow due process in proceedings. Bliss v. Grayson,
24 Nev. 422. There trial court dismissed some of defendants, for which it was reversed in
supreme court's holding that proceeding must determine rights of every one to be of use to
any one.
The effort was renewed, with varying intervening legal history, until the statute now in
review. After state engineer's investigation and recommendation, matter is brought to court's
attention, which tries contests. This contest stage is state of proceedings to which Mr.
Justice Coleman refers as the real proceeding wherein the adjudication is made. Vineyard
Co. v. District Court, 42 Nev. 1.
The exceptions initiate contests for relative position. Every exception made for better priority
or for prescription is claim adverse to prior claimants over whom advance is sought. In Re
Chewaucan River (Or.), 171 Pac. 402; 175 Pac. 421.
State engineer sets up no title in himself or in state, and alleges no rights which have been
infringed. The proceeding is to promote public welfare by regulating use and preventing
waste. Bergman v. Kearney, 241 Fed. 906.
In contest that state has brought to light between individuals it is not itself a party. The
active parties in district court are exceptor as plaintiff, against all other users as defendants. It
devolves into ordinary private litigation. Scossa v. Church, 43 Nev. 407; Penn Mutual Life
Ins. Co. v. Union Trust Co. (Cal.), 83 Fed. 891.
State takes part in contests by being judge, but that is opposite to being party contestant.
Interest of state in water matters is always regulatory and not proprietary, except only
where it itself makes a use. In Re Delaware River (1909), 115 N. Y. Supp. 750. State has not
ownership, but sovereignty, control, and regulative power over appropriation and use. Moore
v. Smaw, 17 Cal. 218; Palmer v. R. R. Com. of Cal., 138 Pac. 999; Walbridge v. Robinson
(Idaho), 125 Pac. 814; Farm Investment Co. v. Carpenter (Wyo.), 61 Pac. 258.
Things possessed by no one, not even the state, the negative community, in their natural
condition, are not subject of property. Geer v. Connecticut, 161 U. S. 519. Ownership in such
things arises only when they are reduced to possession, and even this is limited.
Section 35 of statute prescribes judgment upon these contests without notice to defendants.
This is without parallel. The Oregon supreme court has established that jurisdiction fails
where notice of contest is not given to all users. In Re Chewaucan River, supra. This is only
decision we are aware of that has given attention to distribution of notice in court contests.
Section 35 further prescribes that judgment in contests be rendered without issue joined or
in any way reached. The order of determination of engineer, claims, and exceptions constitute
pleadings, and there shall be no other pleadings in the cause. Where, then, are the issues?
A determination of defendants' rights among themselves needs pleadings to an issue, as
much as between separate parties at outset. 3 Kinney, Irrigation, 2782. The court is confined
to issues raised in pleadings in proceeding under water code. Scossa v. Church, 46 Nev. 254.
By forbidding replies to exceptions, due process is denied.
Judge Bartlett recognizes that the statute is defective, and did what he could to cure it in
ordering copies of objections and exceptions to be mailed to all parties, with notice of
hearing, etc., but that was ineffective to heal defect in statute because, if authorized, it falls
short of enough; and, if unauthorized, is ineffective even to extent that it goes.
heal defect in statute because, if authorized, it falls short of enough; and, if unauthorized, is
ineffective even to extent that it goes. Absent party is entitled to personal service if possible.
Bear Lake Co. v. Budge (Idaho), 75 Pac. 614.
How did state engineer get jurisdiction upon his own complaint in first place, without
personal service where it could be had? Personal service is not dispensed with when entry is
made into court, unless it cannot be had. Follett v. Pacific Corp. (Cal. Supp.), 208 Pac. 298.
There must be legal return of service. 32 Cyc. 596-597. Judge Bartlett's order provided for
none. There was no provision for default. None is mentioned in his order. From where else is
it to come?
The order clashes with section 35 making it court's duty to proceed on notice to engineer
only, and that no other pleadings can be filed. The law itself must save the parties' rights,
and not leave them to the discretion of the courts as such. Coe v. Armour, 35 U. S. 629.
M. A. Diskin, Attorney-General, Thomas E. Powell, Deputy Attorney-General, and Geo. B.
Thatcher, for Respondents:
Bliss v. Grayson, cited by counsel, was instituted to have dams and obstructions
maintained by defendants abated as nuisances. The court held that all persons who maintained
dams between those of plaintiff and defendant were necessary parties, and the decision is not
in point here.
It cannot be said that exceptions initiate contests for relative position. Contest
contemplates presentation of issues between several users before engineer. Under sections 29,
30, and 31, as amended in 1921, there is no authority for contests between the several parties
as was authorized before. Now, any party dissatisfied with the final order filed may except,
and the court is to determine the issue thus made.
In the lower court petitioners moved to dismiss for lack of party plaintiff. They now urge
that exceptor is plaintiff.
plaintiff. It is evident their contentions are as shifting as desert sands.
Section 33 of Stats. 1913 declared that the order of determination shall have the effect of a
complaint. What logic is there in arguing that an exceptor who takes issue with the
determination is a party plaintiff?
In this kind of proceeding, is there any necessity of having a plaintiff or a defendant?
The state is an interested party. It is not a stakeholder; it is a trustee, and represents the
public in an effort to properly adjudicate the rights of all parties. The water belongs to the
public. Walbridge v. Robinson, 125 Pac. 812. Any discussion of the question would be
academic. Judge Farrington, in Bergman v. Kearney, 241 Fed. 884; 1 Wiel on Water Rights
(3d ed.) 11.
Due process does not require service of pleadings; notice of the proceedings is sufficient.
Water users are presumed to know the law. They are bound to follow the subsequent steps. In
Colorado summons is served before the complaint is filed, and it need not be served at all. In
the federal equity procedure of the Unites States the complaint is filed and subpena only is
served.
Even if failure to serve is error, it is to be corrected on appeal, not prohibition.
The order of determination has the same effect as a complaint which, with the exceptions,
constitutes the pleadings.
Suppose the attorney-general were given the duties now required of the state engineer,
would one say the state was not an interested party, or that the exceptors were parties
plaintiff, or that they must file their exceptions upon each other? V. L. & S. Co. v. District
Court, 42 Nev. 26.
A statutory proceeding differs from an ordinary suit in court. The usual adverse pleadings are
not involved. Several users may have diverse interests without conflict according to the
volume of water, etc. The proceeding is instituted by a representative of the public to
ascertain precise rights as an aid to adequate state control of the public waters. An award to
one does not ipso facto deprive others.
ipso facto deprive others. Farm Investment Co. v. Carpenter (Wyo.), 61 Pac. 258.
The issues may be joined by any party interested who has actual or constructive notice
with any kind of lawful process. Cullen v. Glendora Water Co., 39 Pac. 769.
The appeal in the Chewaucan River case cited by counsel was dismissed solely upon the
ground that notice of appeal was not served upon those whose interests might be modified,
not, as counsel state, when notice of contest is not distributed among all the water users.
Petitioners do not tell the court that the provision for notice to each exceptor was first
enacted in 1919, and that prior thereto the law, as quoted in the Chewaucan River case, was
never held unconstitutional.
How can issues be made in this case if the exceptions were not directed to the order of
determination? The court must have considered the final order the complaint.
Ample notice which gives opportunity for hearing is due process. V. L. & S. Co. v. District
Court, 42 Nev. 22-23. Publication and mailing have been held sufficient. Tyler v. Judges, 55
N. E. 815; Bergman v. Kearney, supra; Pacific Livestock Co. v. Lewis, 60 L. Ed. 1084; Farm
Investment Co. v. Carpenter, supra.
Garson v. Steamboat Canal Co., 43 Nev. 309, 310, decides adversely to petitioners upon
the point they urge that section 88a denies due process.
Section 88a provides for public inspection of the documents and affords opportunity for
objections to the same. In fact, it answers the test established by the United States Supreme
Court in Meeker v. Lehigh Valley R. Co., 236 U. S. 412, 430.
Prince A. Hawkins, Amicus Curiae:
This action comes too late, unless the court is going to retract the ruling in the Vineyard
case, where the decision was to the effect that, having passed the period of attacking the
power of the state engineer to hear these matters, it was immaterial so far as that case was
concerned, and the writ of prohibition was vacated because the question there was the
jurisdiction of the district court to proceed in the matter that had been submitted by the
engineer.
submitted by the engineer. In this case the engineer has made his determination just as he did
there, and the court there said it did not make any difference whether it was served and filed
or not; the writ of prohibition could not go against the court.
If they want to attack this amendment of 1921 as to the powers of the engineer, this suit
should have been brought before he made his final determination.
As to section 35 not providing due process, it is settled that no one will be heard to attack
or raise the insufficiency of an act unless he is in a position to be injured thereby. The court
had jurisdiction to proceed, whether the engineer could try the contest or not.
This is an original proceeding in prohibition. The proceeding involves purely legal
questions, and a statement of the undisputed facts may be omitted.
1. The petitioners insist that the procedure adopted in section 35 of the water law (chapter
140, Statutes of 1913; chapter 253, Statutes of 1915; chapter 106, Statutes of 1921) for the
final hearing and adjudication of the order of determination of the state engineer, which
defines the relative rights of the various claimants and appropriators to the waters of a stream
or stream-system, in this instance the waters of the Humboldt River stream-system and its
tributaries, is unconstitutional, in that it denies to the parties in interest due process of law;
which is that no person shall be deprived of his property without notice and a reasonable
opportunity to be heard in his own behalf. Garson v. Steamboat Canal Co., 43 Nev. 298, 185
Pac. 801, 1119.
2, 3. It must be conceded that it is the province of the legislature to establish within
constitutional limits the rules, not only of procedure, but for the determination of rights, by
which the courts shall be governed. Greenwood v. Butler, 52 Kan. 424, 34 Pac. 967, 22 L. R.
A. 466. It must also be conceded that in determining whether due process of law has been
denied regard must always be had to the character of the proceeding involved, and the respect
given to the cause and object of the taking.
object of the taking. Crane v. Hahlo, 258 U. S. 142, 42 Sup. Ct. 214, 66 L. Ed. 514; Davidson
v. New Orleans, 96 U. S. 97, 24 L. Ed. 616. Crane v. Hahlo decides that no one has a vested
right in any given mode of procedure, and, so long as a substantial and efficient remedy
remains or is provided, due process of law is not denied by a legislative change.
Applying these principles to the section under consideration, it is clear that the procedure
satisfies the constitutional requirement. In fact, the section was undoubtedly inserted in view
of the due-process-of-law clause of the organic law, and the best answer to the objection that
the section fails to provide for due process of law is the statute itself.
Section 35 reads as follows:
At least five days prior to the day set for hearing, all parties in interest who are aggrieved
or dissatisfied with the order of determination of the state engineer shall file with the clerk of
said court notice of exceptions to the order of determination of the state engineer, which
notice shall state briefly the exceptions taken, and the prayer for relief, and a copy thereof
shall be served upon or transmitted to the state engineer by registered mail. The order of
determination by the state engineer and the statements or claims of claimants and exceptions
made to the order of determination shall constitute the pleadings, and there shall be no other
pleadings in the cause. If no exceptions shall have been filed with the clerk of the court as
aforesaid, then on the day set for the hearing the court may take further testimony if deemed
proper, and shall then enter its findings of facts and judgment and decree. On the day set for
hearing, all parties in interest who have filed notices of exceptions as aforesaid shall appear in
person or by counsel, and it shall be the duty of the court to hear the same or set the time for
hearing, until such exceptions are disposed of, and all proceedings thereunder, including the
taking of testimony, shall be as nearly as may be in accordance with the rules governing civil
actions.
This legislative interpretation of the statute removes doubt as to its meaning, if any
existed. It is contended, however, that to constitute due process of law with respect to the
trial of exceptions taken and filed to the order of determination of the state engineer it is
essential that the section should require copies of the exceptions to be served upon each
claimant personally.
however, that to constitute due process of law with respect to the trial of exceptions taken and
filed to the order of determination of the state engineer it is essential that the section should
require copies of the exceptions to be served upon each claimant personally. In support of this
position it is contended that the omission from the section of a provision for the service of
copies of exceptions renders any judgment pronounced upon the trial of the issues raised by
exceptions absolutely void.
To demonstrate the fallacy of this contention we shall state in brief the argument advanced
in its support.
It is argued that when exceptions are filed with the clerk of the court a judicial contest
immediately arises, in which contest the exceptor is the plaintiff and all other water users
defendants, with the state or state engineer as neutral bystander. This construction involves a
fallacy made apparent by the mere statement of the proposition; for the power of the state to
enforce its own law is essentially inherent in the conception of law. If the taking of exceptions
to the order of determination of the engineer has the effect of forcing the state or its
representative out of the case as made by its own pleading it would not only defeat the
purpose, but would make the whole proceeding farcical. It would be marvelous, indeed, if the
legislature intended to abandon the law and leave its vindication and enforcement to the water
users of the stream or stream-system when the preliminary proceeding committed to the state
engineer has advanced to the point where it reaches the district court for final hearing and
adjudication.
The confusion of thought which seems to permeate the entire argument of the learned
counsel is based upon the false premise that when the proceeding reaches the district court it
becomes a separable controversy between different claimants. There is nothing in the context
or in the subject-matter to require such construction, but the entire scope of the legislation is
persuasively to the contrary. As said in one of the cases quoted from in Re Chewaucan River,
S9 Or.
quoted from in Re Chewaucan River, 89 Or. 659, 175 Pac. 427:
It is a case where divers and sundry parties are entitled to use so much of the waters of a
stream as they have put to beneficial use and the purpose is to ascertain their respective rights
by a simple, economical, effective, and comprehensive proceeding, and is not a separable
controversy between different claimants. In Re Silvies River (D. C.), 199 Fed. 495.
This holding accords with the opinion in Vineyard L. & S. Co. v. District Court, 42 Nev.
1, 171 Pac. 166, and also the opinion of Judge Farrington in Bergman v. Kearney (D. C.), 241
Fed. 884.
4, 5. The section discloses a fixed purpose to secure timely notice to all claimants of the
hearing, and of the time and place for the hearing of all parties in interest dissatisfied or
aggrieved with the order of determination of the engineer. It requires all those aggrieved or
dissatisfied to file notice of their exceptions with the clerk setting forth the grounds and
prayer for relief, thus affording all parties in interest who are satisfied with the order of
determination an opportunity to appear before the court and oppose any alteration or
modification of the order as proposed by those excepting. The statute is always presumed to
be known, and, in view of the character of the proceeding, hedged about, as it is, with notices
of every material step taken in the one comprehensive proceeding, the law presumes that each
water claimant will keep in touch with his water right defined by the order of determination
of the engineer and straightway inform himself if any peril threatens it by those excepting. No
further notice is required, and, since each claimant is a party to the proceeding, and has
notice, and a reasonable opportunity is afforded him to defend his claim, the procedure
satisfies the requirement of due process of law.
We do not accept the proposition that to constitute due process of law the procedure must
be measured by the standard essential to notice in ordinary judicial proceedings. The
proceeding is a special proceeding applicable to the specified subject-matter and suitable
to the end which the state seeks to accomplish, namely, to protect all the collective users
of water, secure a just distribution, and perpetuate water rights in a public record under
such safeguards for the protection of individual rights as the settled maxims of the law
permit and sanction.
applicable to the specified subject-matter and suitable to the end which the state seeks to
accomplish, namely, to protect all the collective users of water, secure a just distribution, and
perpetuate water rights in a public record under such safeguards for the protection of
individual rights as the settled maxims of the law permit and sanction.
6. The procedure is further criticized because it nominates and limits the pleadings. It is
essential to the due enforcement of a law which provides a system of state control of the
waters within its boundaries that it be accomplished in a comparatively summary way. The
limitation of the pleadings deprives the claimant of no substantial right; it does nothing more
than take way from him the opportunity to urge technical or formal objections which do not
affect the merits of the proceeding. The declaration that the order of determination, the
statements or claims of claimants, and exceptions made to the order of determination shall
constitute the only pleadings in the cause demonstrates that the procedure is not to be
measured by the standard of ordinary judicial proceedings.
The disposition on the part of petitioners to ignore the character of the proceeding and to
compare it to a judicial controversy between different claimants upon filing of exceptions
lends force to the suggestion that the argument is advanced to persuade this court to force a
construction on a statute in order to declare it unconstitutional, which is never permissible.
We are urged to issue the writ upon the ground that sections 35, 36, 36a, 38, and 75 of the
statute invade the constitutional limits of the courts. The disposition of this contention in the
earlier case, where the constitutionality of our water law is upheld, is a sufficient answer to
the proposition. Vineyard L. & S. Co. v. District Court, supra; In Re Waters of Barber Creek,
43 Nev. 407, 187 Pac. 1004; Bergman v. Kearney, supra.
7. It is charged that judicial power taken from the court remains vested in the engineer no
less than when Pitt v. Scrugham, 44 Nev. 418, 195 Pac. 1101, so decided.
In support of this proposition it is insisted that sections 29-32 of the water law, condemned in
Pitt v. Scrugham, as amended by the Statutes of 1921, are still vulnerable, in that they confer
judicial power upon the state engineer, a ministerial officer. In this we are unable to agree.
The sections as amended provide that, when objections are taken to the findings, or any part
or portion of the preliminary order of determination, the engineer is required to inquire into
the existence of all the facts and to apply the law thereto in order to determine what his
official conduct shall be. As amended the sections do not constitute an exercise of judicial
power as the phrase judicial power is used in the organic law. Under the sections as
amended the engineer's duties more nearly resemble those exercised by members of the
executive department, administration boards, commissions, etc.
Other questions are discussed in the able and elaborate briefs which do not go to the
question of jurisdiction and have no place in this proceeding.
Our conclusion is that the alternative writ was improvidently issued, and that the water law
of Nevada is in all respects constitutional.
The proceeding is dismissed.
____________
47 Nev. 409, 409 (1924) Geyman v. Boulware
No. 2550
GEYMAN v. BOULWARE
April 3, 1924. 224 Pac. 409.
1. Mines and MineralsValid, Subsisting Location Operates to Bar Second Location.
A valid, subsisting location of mineral lands, made and kept up in accordance with United States
statutes, has the effect of a grant by the United States of right to present exclusive possession, and
operates to bar a second location.
2. EvidenceStatements of Both Parties to an Alleged Contract to a Representative, Sent by
Plaintiff to Other Party, Held Admissible to Contradict Existence of Contract, and Not Hearsay.
In a suit to quiet title to mining claims, based on an alleged contract with another to locate the claims
in his own and plaintiff's names, testimony of plaintiff's agent sent to interview such contracting party as
to conversations with both parties was admissible against plaintiff to contradict existence of the contract,
and not hearsay; statements of the contracting party being in response to a claim presented by plaintiff
through her representative.
3. Mines and MineralsFailure to Perform Annual Labor Made Land Open for Location.
In a suit to quiet title to mining claims, proof that the annual labor was not performed for a year prior
to defendant's entry required judgment for defendant, since the ground was then open for location.
4. Mines and MineralsAnnual Labor Held Not to Inure to Benefit of Locations by Another.
Where, after S. had located mining claims which plaintiff claimed should have been located in the
names of herself and S., she located the same ground in the names of both, annual labor by her for the
claims located by her held not to inure to the benefit of the locations by S.
Appeal from Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
Action by Mrs. J. C. Geyman against J. W. Boulware and others. From a judgment for
defendant and an order denying a new trial, plaintiff appeals. Affirmed.
Harold Hale, for Appellant:
Appellant's paramount theory is she became legal locator with Spencer by reason of
agreement by which he was to perform location work for half-interest. Her subordinate theory
is she became real locator when she performed necessary work in pursuance of agreement
when she discovered he was attempting to avoid it. The evidence establishes the agreement.
Appellant was only person concerned who had first-hand knowledge of mineral on claims.
Such knowledge is necessary to initiate valid location. 18 R. C. L. 1120.
The law of location by agent needs no elaboration in this state, where grubstake
agreements are constantly upheld. 18 R. C. L. 1112.
Filing a defective, or failing to file any, certificate does not invalidate claim. Ford v.
Campbell, 29 Nev. 578; Gibson v. Hjul, 32 Nev. 360.
Mining ground is not open to relocation while valid location subsists. Lindley, sec. 363; Belk
v. Meagher, 104 U. S. 279.
James D. Finch, in pro. per. and for Respondent Boulware:
Appellant's locations, made subsequent to Spencer's and Lyon's, were void ab initio, as
ground was then covered by their valid, subsisting locations. Nash v. McNamara, 30 Nev.
114; Farrell v. Lockhart, 210 U. S. 142; Belk v. Meagher, 104 U. S. 279.
Appellant's proper and only remedy was by suit for specific performance on theory of
resulting trust, but on such meager showing even this could not be obtained. 39 Cyc. 84, 85;
Grand Prize M. M. Co. v. Boswell, 152 Pac. 1067.
Clear and convincing proof is required to establish resulting trust and to justify decree for
specific performance. Rice v. Rigley, 61 Pac. 290.
McCarran & Mashburn, for Respondent Tooley, adopt brief of Mr. Finch.
This is an action to quiet the title to the Badger No. 1 and Badger No. 2 lode mining
claims. The complaint is in the usual form. The answer denied ownership and possession of
the ground, or any right thereto, in the plaintiff, and affirmatively alleged ownership,
possession, and right of possession to the ground in defendants. The trial court rendered
judgment in favor of the defendants. The plaintiff appealed from the judgment and from the
order denying a motion for a new trial.
Prior to January 1, 1915, the ground in controversy had been located by parties who are
not interested in this action. They did not do the annual assessment work for the year 1914,
and therefore the ground became open to location on January 1, 1915, upon which day it was
located by Tom Spencer and Chas. G. Lyons as the Badger No. 1 and Badger No. 2 lode
mining claims.
Contending that the annual assessment work was not performed upon these claims during
the year 1916, the defendants Boulware and Tooley undertook to locate the ground. On
January 1, 1917, the defendant Tooley located in his own name as the Summit lode the
ground covered by the former location known as Badger No. 1 lode, and the defendant
Boulware, on January 19, 1917, located in his own name as the Starlight lode mining claim
the ground covered by the Badger No. 2 location. Both of the defendants aver that within the
time prescribed by law they performed all of the requirements to perfect such locations and
recorded location certificates thereof. The defendants Boulware and Tooley also plead
adverse possession.
The plaintiff bases her claim to the ground upon two theories designated her paramount
theory and her subordinate theory. In support of her paramount theory she undertook to
prove that on the night of December 31, 1914, she entered into an agreement with Tom
Spencer whereby he was to locate two mining claims on the following day in their joint
names, and that Spencer actually so located the claims, but thereafter erased her name from
the location notice and substituted the name of C. G. Lyons, and that by virtue of the
agreement so entered into and the location thus made she was the owner of an undivided
one-half interest in the property, and that Spencer held the same in trust for her. Her
subordinate theory is that subsequent to the location so made by Spencer, and before January
8, 1915, she located the ground in her name and that of Spencer, and thereafter performed all
of the acts required by law to perfect such locations, and subsequently complied with the law
as to annual labor, and that the ground was not, therefore, open to location on the dates
Boulware and Tooley undertook to locate it.
that the ground was not, therefore, open to location on the dates Boulware and Tooley
undertook to locate it.
Counsel for appellant, in his opening brief relative to the location of the Badger claims
located by Spencer, says:
In this connection let us call to the court's attention the fact that the Spencer location, so
far as sufficiency and correctness are concerned, is not questioned by either party, but is in
fact relied upon by both. We are therefore entitled to assume that Spencer's acts with regard to
the posting of notices, marking of boundaries, setting of stakes and performance of location
work, were entirely correct under the statute. If, therefore, appellant has established a privity
with him as she claims to have done, his acts were hers, and the initial location cannot be
questioned; the presence of the name of Lyons upon the notices of location being a surplusage
that the court will disregard as incepting no rights for that individual.
This position of respective parties greatly minimizes our labors.
The formal findings of facts made by the trial court are clear cut, and, if well founded, its
judgment in favor of the defendants inevitably followed. The court found:
(1) That the ground in question was located on January 1, 1915, by Tom Spencer and
Chas. G. Lyons jointly in their own names as the Badger No. 1 and Badger No. 2 lode mining
claims, and that they in due time performed every act necessary to perfect said location; that
said parties never abandoned said locations prior to January 1, 1917; that they failed to do and
perform the annual assessment upon said claims during and for the year 1916.
(2) That the plaintiff, some time between January 4 and 8, 1915, went upon said claims
and undertook to locate the same in her own name and that of Tom Spencer jointly, and
thereafter filed a location certificate of the same.
(3) That on January 1, 1917, W. E. Tooley entered upon the ground covered by the
location made by Spencer and Lyons, as the Badger No. 1, and located the same in his name
as the Summit lode, and thereafter did and performed all of the acts necessary to perfect
such location, and that on January 19, 1917, J. W. Boulware entered upon the ground
located by said Spencer and Lyons as the Badger No.
the same in his name as the Summit lode, and thereafter did and performed all of the acts
necessary to perfect such location, and that on January 19, 1917, J. W. Boulware entered
upon the ground located by said Spencer and Lyons as the Badger No. 2, and located the same
in his name as the Starlight lode, and thereafter performed all of the acts necessary to perfect
such location.
(4) That the locations made by the said Spencer and Lyons were valid locations, and that
the locations attempted to be made by the plaintiff were and are void.
(5) That the alleged agreement between the plaintiff and Spencer was not established by
the evidence.
1. In disposing of this appeal we will consider appellant's subordinate theory first. We
should have no great difficulty in satisfying the appellant even that no relief can be had on
this theory. As we have shown by quoting from appellant's opening brief, the two locations
made by Spencer on January 1, 1915, are conceded to have been valid and subsisting
locations, and that all of the legal requirements were complied with to perfect the same.
These locations having been perfected, it follows as a matter of law that the ground embraced
within them was no longer a part of the public domain of the United States. The law on this
point is so clearly settled that there is no room for discussion. This court, in Nash v.
McNamara, 30 Nev. 114, 93 Pac. 405, 16 L. R. A. (N. S.) 168, 133 Am. St. Rep. 694, quoted
from several decisions of the United States Supreme Court sustaining this rule. It quoted from
Gwillim v. Donnellan, 115 U. S. 49, 5 Sup. Ct. 1112, 29 L. Ed. 348, as follows:
A valid and subsisting location of mineral lands, made and kept up in accordance with the
provisions of the statutes of the United States, has the effect of a grant by the United States of
the right of present and exclusive possession of the lands located. If, when one enters on land
to make a location there is another location in full force, which entitled its owner to the
exclusive possession of the land, the first location operates as bar to the second.
This must dispose of the subordinate theory of the plaintiff.
2. Coming now to her paramount theory, we are compelled to reject it. In this first
place, plaintiff relies upon a contract alleged to have been entered into between Spencer and
herself to establish her right. The trial court found as a fact that she had not established the
existence of such alleged contract. The contention is made that the trial court based its finding
that the plaintiff had not established her alleged contract upon hearsay evidence. We do not
think this is the fact. The evidence in question is that given by one Macy. As soon as the
plaintiff learned that Spencer had located the ground in question in his and Lyons's names she
engaged Macy to see Spencer in her behalf and present to him her claim for an interest in the
ground. Macy's testimony purported to state the conversation had by him with both the
parties. He was the representative of the plaintiff. He was certainly qualified to testify as to
what she said to him, and the statements made by Spencer to him as plaintiff's representative
were admissible because they were made in response to a claim presented by the plaintiff
through her representative. We think the evidence was competent. The court had a right to
consider it, and, it not having been contradicted, though the plaintiff might have done so, we
cannot say that the court erred in its conclusion.
3, 4. But, if we were to hold that Macy's evidence was hearsay, and that the court was not
justified in concluding that the plaintiff had failed to establish the alleged contract, we would,
nevertheless, be compelled to affirm the judgment for the reason that the annual labor on the
claims located by Spencer on January 1, 1915, was not performed for the year 1916, and
hence the ground was open for location in January, 1917, when the defendants made their
location. It is true that the plaintiff showed that she did the annual labor for the claims located
by her between January 4 and 8, 1915, but that work could in no way inure to the benefit of
the Spencer locations.
The trial court having found as a fact that the Badger No. 1 and Badger No. 2 lode claims
were located in the joint names of Spencer and Lyons on January 1, 1915, the query arises if
the plaintiff can maintain an action to quiet title thereto, no matter if she had shown by an
overwhelming weight of the evidence an equitable interest in the property, pursuant to an
agreement with Spencer prior to his location of the claims. Frost v. Spitley, 121 U. S. 552, 7
Sup. Ct. 1129, 30 L. Ed. 1010; 32 Cyc. 1329.
Judgment affirmed.
____________
47 Nev. 415, 415 (1924) Carson City v. County Commissioners
No. 2625
Ex Rel. CITY OF CARSON v. COUNTY
COMMISSIONERS
April 3, 1924. 224 Pac. 615.
1. StatutesRepeals by Implication Not Favored; Both Laws Maintained, Unless it Is Perfectly
Manifest Former Law Was Intended To Be Abrogated.
Repeals by implication are not favored, and if it be not perfectly manifest, either by irreconcilable
repugnancy, or by some other means equally indicating the legislative intention to abrogate a former law,
both laws must be maintained.
2. StatutesRule for Construing Conflicting Statutes Stated.
Statutes in pari materia, or one purporting to revise the whole subject-matter of former statutes, must
be construed, if possible, to give effect to both statutes.
3. Municipal CorporationsBudget Law Held a Complete Financial Plan Impliedly
Repealing Repugnant Revenue Measures.
Stats. 1917, c. 149, as amended by Stats. 1921, c. 217, the budget law, provides a complete financial
plan for a definite period, and, though containing no repealing clause, necessarily impliedly repeals all
former repugnant revenue acts, including Rev. Laws, 842, requiring county commissioners to apportion
part of the general road tax funds to each incorporated city in their respective counties, especially in view
of section 10 of the budget law, as amended by Stats. 1921, c. 217, sec. 3, prohibiting any member or
officer of any city, town, municipality * * * to authorize, allow, or contract for any expenditure unless
the money for the payment thereof has been specially set aside for such payment by the budget, and
since both acts relate to raising revenue.
Original proceeding in mandamus by the State, on the relation of the City of Carson, and
others, as Trustees of the City, against E. S. Daugherty and others, as the Board of County
Commissioners of Ormsby County.
Writ discharged. Proceeding dismissed. (Sanders, J., dissenting.)
McCarran & Mashburn, for Relators:
Sections 767 to 876 of the Revised Laws, being the act providing for the incorporation,
etc., of cities, is general in its nature and applies to Carson City, notwithstanding its special
charter. Chartz v. Carson City, 39 Nev. 285.
Taxation is a matter of local concern, of home rule. 26 R. C. L. 72, 74; Cooley on Taxation
(3d ed.) 233.
The budget law (Stats. 1917, p. 249) does not repeal Rev. Laws, 842. If it be not manifest
that the legislature intended to abrogate a former law, both must be maintained. Repeal by
implication is not favored. If both the new and the old law can be supported, both laws must
be upheld, and the new law does not repeal, by implication, the old law. Thorpe v. Schooling,
7 Nev. 15; State v. Rogers, 10 Nev. 319. Repeals by implication are not favored and are held
to have occurred only in cases of irreconcilable repugnancy, and where the two acts cannot
stand together. Estate of Walley, 11 Nev. 260.
There is nothing in the budget law that relates even remotely to the incorporation,
classification, or government of cities.
The most that State v. Boyd, 27 Nev. 249, holds is that tax money raised in one district
cannot be used in an entirely distinct district. Cooley on Taxation (3d ed.) 229-233.
Section 842 is not unconstitutional, as it does not clearly appear to violate any
constitutional restriction. Ex Parte Sticknoth, 7 Nev. 233; Ex Parte Boyd, supra; Dayton M.
Co. v. Seawell, 11 Nev. 394; State v. Westerfield, 24 Nev. 29; Nash v. McNamara, 30 Nev.
114; State v. Ah Pah, 34 Nev. 283. The title is sufficient if it relates to the subject briefly.
State v. Ah Pah, supra.
John M. Chartz, District Attorney, for Respondents:
Section 842 of the Revised Laws is not applicable to Carson City, which was incorporated
under a special act.
Section 76 must be read in connection with the whole act and be limited to the object of
the act. Roney v. Buckland, 4 Nev. 45; Forsyth's Estate, 45 Nev. 394; Ex Parte Siebenhauer,
14 Nev. 365. Section 76, being general, cannot apply to Carson City.
Section 76 is repealed by the budget law, since its provisions are repugnant thereto. An
entirely different procedure is outlined. The whole matter was revised and former acts
inconsistent were repealed. Thorpe v. Schooling, 7 Nev. 15; State v. Rogers, 10 Nev. 319;
Estate of Walley, 11 Nev. 260.
Section 76 is void for uncertainty. It is also unconstitutional in that it seeks to take private
property for public use without just compensation. Sec. 8, art. 1.
Section 76 violates section 8, article 1, of the constitution in that it seeks to take private
property for public use without just compensation. State v. Boyd, 27 Nev. 249.
It does not conform to section 17, article 4, of the constitution in that the title is insufficient.
State v. Commissioners of Washoe Co., 22 Nev. 399; State v. Silver, 9 Nev. 227; State v.
Gibson, 30 Nev. 353; Wheeler v. State, 102 N. W. 773.
This is an original proceeding in mandamus.
The petition alleges that the city of Carson is a municipal corporation existing under and
by virtue of a special act of the legislature of the state entitled An act to incorporate Carson
City, as amended March 11, 1921 (Stats. 1921, p. 140); that the individual petitioners are the
duly elected, qualified, and acting trustees thereof; that the defendants are, and ever since the
first Monday in January, 1921, have been, the duly elected, qualified, and acting
commissioners of the county of Ormsby, State of Nevada, and ever since said last-mentioned
date have constituted the board of county commissioners of said county; that on or about the
5th day of April, 1922, the said board of county commissioners duly levied upon all of the
taxable property in said city of Carson, and upon all of the taxable property in said county
of Ormsby, in the manner provided by law, a tax of 40 cents on each $100 of the valuation
of said property for road and bridge purposes; and that the tax so levied and the money
derived therefrom constitutes the general road fund of said county of Ormsby for that
year.
said city of Carson, and upon all of the taxable property in said county of Ormsby, in the
manner provided by law, a tax of 40 cents on each $100 of the valuation of said property for
road and bridge purposes; and that the tax so levied and the money derived therefrom
constitutes the general road fund of said county of Ormsby for that year. It is further averred
that all of the taxable property in said county, inclusive of the property within said city, was
assessed for the year 1922 at the total valuation of $1,735,074, and that all of the taxable
property in said city was assessed for the year 1922 at the value of $1,034,021; that pursuant
to said levy and assessment there was assessed and levied upon all of the said property of
Ormsby County, inclusive of the property within the city of Carson, a total tax of $6,940.30
for road purposes in and for Ormsby County, and that there was assessed and levied against
the property within said city a total tax of $4,136.08 for road purposes and to constitute a part
of the general road fund of said county; that pursuant to said levy and assessment there was
collected by and for said county for road purposes the whole of the tax so assessed against
and levied upon all of the property in the whole of said county, inclusive of the property in
said city, the sum of $6,940.30, except the sum of $28.06; and that the sum so collected was
thereupon only credited to and became the whole of the general road fund of said Ormsby
County.
Section VII of the petition reads:
That section 842, Revised Laws of Nevada (1912), provides that the several boards of
county commissioners in this state shall, from time to time, upon request of the city council,
apportion to each incorporated city within the respective counties such proportion of the
general road fund of the county as the value of the whole property within the corporate limits
of such city, as shown by the assessment roll, shall bear to the whole property of the county,
inclusive of the property within incorporated cities, and all such moneys so apportioned shall
be expended upon the streets, alleys and public highways of such city under the direction
and control of the council.'
and public highways of such city under the direction and control of the council.'
That your petitioners and relators are informed and verily believe, and upon such
information and belief allege, that the above-mentioned section of law and the provisions
thereof are still in full force and effect, and apply to the said city of Carson; and that said city
of Carson is the only incorporated city within said county of Ormsby.
It is further averred that demand has been made upon the defendants that they apportion
and pay over to the city of Carson the amount due it pursuant to said section of the Revised
Laws; that said demand has not been complied with, and that the defendants refuse to comply
therewith.
Upon the filing and presentation of said petition, an alternative writ of mandamus was
issued. In due time the defendants appeared and demurred to the sufficiency of said petition
upon several grounds. We deem it necessary to consider but one of them.
It is urged in behalf of the respondents that section 842 (above quoted) was repealed by an
act entitled An act regulating the fiscal management of counties, cities, towns, school
districts, and other governmental agencies, approved March 22, 1917 (Stats. 1917, p. 249),
as amended Stats. 1921, p. 325, commonly called the Budget Law. Sections 1, 2, and 3 of
this act read:
Section 1 (1917): The business of every county in this state on and after the approval of
this act shall be transacted upon a cash basis and in accordance with the terms of this act.
Section 2 (1921): For the purpose of this act every county, city, town, municipality,
school district, county high school, or high-school district or educational district, and the
governing boards thereof, are deemed to be governmental agencies of the State of Nevada.
Section 3 (1917): The county commissioners of each county in this state shall, between
the first Monday of January and the first Monday of April of each year, prepare a budget of
the amount of money estimated to be necessary to pay the expenses of conducting the
public business of said county for the then current year.
be necessary to pay the expenses of conducting the public business of said county for the then
current year. Said budget shall be prepared in such detail as to the aggregate sums and the
items thereof as shall be prescribed by the Nevada tax commission and shall in any event
show the following detail:
(1) Estimated aggregate assessments upon which the tax rates are based.
(2) Real property.
(3) Personal property.
(4) Net proceeds of mines.
And shall show the estimated expenditures in detail, showing administrative expense,
indigent fund, roads and bridges, interest and redemption, common schools, high schools,
emergency.
The estimated receipts from all sources in the following detail: Taxation, inheritance tax,
licenses, fees, poll tax, interest on county moneys, rentals and sales of county property, forest
service, state's proportion of county officers' salaries, state school money.
Upon the preparation and completion of said budget the same shall be signed by the
commissioners of the county approving the same and by the county clerk, and the several
sums set forth in said budget under estimated expenditures shall be thereby appropriated for
the several purposes therein named for the then current fiscal year. Said budget shall be
forthwith filed in the office of the auditor and recorder, and a copy thereof shall then be
published for two publications, one week apart, in the official newspaper of the county, if
there be one, or if there be no official newspaper, then in a newspaper to be designated by the
board of county commissioners.
Section 4 of the budget law provides that it shall be unlawful for any commissioners or for
any board of county commissioners to contract any debt not included in the budget. Section 5
provides that in cases of great necessity or emergency the board of county commissioners
may borrow money and expend it to meet such emergency and necessity.
Section 9 of the act reads (Stats. 1921, p. 325):
It shall be the duty of the governing board of every city, municipality, town, school
district, county high school, or high-school district or educational district in this state between
the first Monday of January and the first Monday of April of each year to prepare a budget of
the amount of money estimated to be necessary to pay the expenses of conducting the public
business of such city, municipality, town, school district, county high school, or high-school
district or educational district, for the then current year. Such budget shall be prepared in such
detail as to the aggregate sums and the items thereof as shall be prescribed by the Nevada tax
commission. The budget of any town or city or municipality shall in any event show the
following detail:
TOWNS AND CITIES.
Estimated valuation:
........... ___
Improvements.......................................................................................................................... ___
............ ___

_____
Total ___
Requirements (estimated):
Salaries of officials.................................................................................................................. ___
Other administrative expense.................................................................................................. ___
Police department.................................................................................................................... ___
Fire .. ___
Streets and __
Bond interest and redemption.................................................................................................. ___
Miscellaneous (itemized)........................................................................................................ ___
Special (itemized).................................................................................................................... ___

_____
* * *
Section 10 reads (Stats. 1921, p. 327):
It shall be unlawful for any governing board or any member thereof or any officer of any
city, town, municipality, * * * to authorize, allow, or contract for any expenditure unless the
money for the payment thereof has been specially set aside for such payment by the budget.
Any member of any governing board or any officer violating the provisions of this section
shall be removed from office in a suit to be instituted by the city attorney in the case of cities,
and by the district attorney in cases of towns, school districts, * * *
wherein such officer or member of the governing board resides, upon the request of the
attorney-general or upon the complaint of any interested party.
By section 11 it is provided that in case of necessity or emergency the governing board of
any city may borrow money.
1. On behalf of the petitioners it is contended that, since the budget law does not expressly
repeal section 842 of the Revised Laws, it cannot be construed as impliedly repealing it, as it
does not clearly appear that the legislature intended such a result.
The law as to repeals by implication is clearly settled in this state. Counsel for the
petitioners and respondents agree as to the law on this point as expressed in Thorpe v.
Schooling, 7 Nev. 15, where it is said:
True, repeals by implication are not favored; and if it be not perfectly manifest, either by
irreconcilable repugnancy, or by some other means equally indicating the legislative intention
to abrogate a former law, both must be maintained. The intention, if perfectly clear, however,
must control, however it may be expressed or manifested. It is upon this principle, evidently,
that it is held that a statute revising the whole subject-matter of a former law repeals it.
This rule has often been recognized. Estate of Walley, 11 Nev. 260; State v. Ducker, 35
Nev. 214, 127 Pac. 990; State v. Eggers, 36 Nev. 372, 136 Pac. 101.
2, 3. Hence, the question for us to determine is whether there is such an irreconcilable
repugnance between the two statutes as results in a repeal of the former by the latter. In
approaching this task we recognize that it is a well-settled rule that in construing statutes in
pari materia, or one purporting to revise the whole subject-matter of former statutes, they
must be so construed as to give effect to both if possible.
In solving the question before us we must endeavor to ascertain the purpose of a budget
law. The budget system has long been in use in Europe, and there has been much agitation for
its adoption in this country for many years. The main argument in its favor has been that it
assures economy in the administration of a government, since by such a system a definite
amount of money is raised and appropriated for each branch of the government for each
year, beyond which no obligations can be incurred.
that it assures economy in the administration of a government, since by such a system a
definite amount of money is raised and appropriated for each branch of the government for
each year, beyond which no obligations can be incurred. The idea of a budget is expressed in
Budget Making (Buck), page 2, as follows:
The budget, in the strict sense of that term, is a complete financial plan for a definite
period, which is based upon careful estimates both of the expenditures, needs, and of the
probable income of the government. That is, the plan must present two sides, an expenditure
side, and an income, or revenue, side.
See, also, Budget Making in Democracy (Fitzpatrick); The Problem of a National
Budget (Willoughby). See, also, an article entitled Budget Making and the Work of
Government, by Henry Jones Ford, in volume 62, p. 1, of the Annals of the American
Academy of Political and Social Science.
If the idea, as above expressed, that the budget system is a complete financial plan for a
definite period, is the correct one, then it must inevitably follow that the adoption of the
budget law repeals section 842 of the Revised Laws, and all other provisions relating to the
raising and expenditure of revenue by the towns and cities of the state, for the reason that, if
such a law is a complete system, it must be held, as said in Thorpe v. Schooling, supra, to
revise the whole subject-matter of the former laws on the subject in hand. Let us see if the
budget law is a complete financial plan for the raising of revenue by municipalities in this
state.
Section 1 of the law provides that after its approval the business of every county shall be
transacted upon a cash basis, and in accordance with the terms of the act. This language is
significant. By providing that the business of the counties shall be transacted in accordance
with the terms of the act, it expressly prohibits the transaction of its business according to the
terms of any other act, or of any other section of any other act. Nothing can be clearer than
this. Any other statute or section which provides for the doing of county business in any other
manner than as provided by this act is repugnant to the budget law, and is made so by the
terms of that law itself; hence, any such act or statute is repealed by implication.
is repugnant to the budget law, and is made so by the terms of that law itself; hence, any such
act or statute is repealed by implication.
Section 3 as quoted provides that the county commissioners of each county shall, between
the first Monday in January and the first Monday in April of each year, prepare a budget of
the amount of money estimated to be necessary to pay the expenses of conducting the public
business of said county, for the then current year, and that it shall show the estimated
expenditures in detail, among other things, for road and bridges. This provision is clear and
concise. It cannot be misconstrued. It provides for what period and for what purposes the
county budget shall be made up. It is for the current year and for the public business of said
county. One of the items of said public business of said county specified is for roads and
bridges. This section expressly limiting the funds to be raised to the public business of said
county, it must follow that no portion of the $6,940.30 raised for road purposes pursuant to
assessment and levy, as charged in the petition, can go to the city, for on no theory can it be
said that money raised for the public business of said county can be transferred into the
treasury of the city of Carson.
Section 9 of the act provides that it shall be the duty of the governing board of every city
between the first Monday in January and the first Monday in April of each year to prepare a
budget of the amount of money estimated to be necessary to pay the expenses of conducting
the public business of such city for the then current year. Among the estimates required to be
made in such budget is one for streets and alleys.
By the act in question it is made unlawful for the governing board of any county or city to
contract for any expenditures unless the money for the payment thereof has been specially set
aside for such payment by the budget. The only exception to this is, in case of necessity or
emergency, such board may borrow money.
Section 9 shows a repugnance between the budget law and all other laws pertaining to the
raising of revenue by taxation for current expenses of a city government.
by taxation for current expenses of a city government. It specifies the items which shall be
included in the city budget, particularly designating streets and alleys. That the state
legislature intended the method provided in section 9 for raising money for city purposes to
be exclusive is clearly shown by the provision of section 10 of the act, wherein it is provided:
It shall be unlawful for any governing board or any member thereof or any officer of any
city, town, municipality, * * * to authorize, allow, or contract for any expenditure unless the
money for the payment thereof has been specially set aside for such payment by the budget.
If there were any doubt as to the intention of the legislature after a consideration of the
other sections of the law, the provision just quoted dissipates it. It shows that it was the
purpose of the legislature to limit the expenditure by the cities of the state to money raised
pursuant to the budget law. It would certainly be remarkable if the legislature contemplated
the raising of revenue in behalf of the cities of the state, and then denied them the privilege of
expending it for their benefit. It is clear that the legislature considered the budget law a
system complete in itself for the raising of revenue for county and city purposes. This being
true, it must be held repugnant to section 842 of the Revised Laws, and hence to repeal it.
It is said, however, that the act of which section 842 is a part relates to the incorporation of
cities and towns, while the title of the budget law shows it to be An act regulating the fiscal
management of counties, cities, towns, school districts, and other governmental agencies,
and hence it is clear that the purposes of the two acts are not repugnant. We do not deem it
necessary to consider this contention at length. It is clear that section 842 of the Revised
Laws, upon which petitioner relies, relates solely to the question of revenue. The budget law
is an act complete in itself, revising all of the statutes of the state as to the raising of revenue
for municipal purposes and, being repugnant to them, must control.
must control. State v. Cole, 38 Nev. 488, 151 Pac. 944; Thorpe v. Schooling, supra.
Our esteemed associate is of the opinion that the budget law does not repeal section 842 of
the Revised Laws. He refers to certain well-known propositions of law of which there can be
no doubt. Of course, the legislature has plenary power over the highways of the state, subject
to constitutional limitations. But what has that to do with it? The question is: What has the
legislature in fact done? We have pointed out to our own satisfaction that the budget law
repeals the former law. If it repeals it, the amendment to the statute of 1866, quoted by our
associate, being limited to a class of counties of which Ormsby is not one, certainly could not
affect that repeal. Counsel for petitioner does not urge that the amendment in question has
any bearing upon the problem presented, and we cannot see that it has.
It is ordered that the alternative writ heretofore issued be discharged and that these
proceedings be dismissed.
This is a controversy between the city of Carson and the board of commissioners of
Ormsby County over the apportionment of the general road fund of the county for the year
1923, created by the levy of a tax in 1922 by said board of 40 cents on the $100 of value upon
all the property in the county of Ormsby, inclusive of that within the city of Carson. The
amount in controversy is $4,136.08.
In July, 1923, the city made request or demand upon the board to apportion to it such
proportion of the general road fund of the county as the value of the whole property within
the city, as shown by the assessment roll, bears to the whole property of the county, inclusive
of the property within the city, to be expended upon its streets, alleys, and highways under the
direction and control of the city trustees. The board refused the request or demand for such
apportionment, and the city made application for and obtained a writ, commanding the
board to show cause before this court why it should not be compelled to comply with the
city's request, as provided by the statute set out in the petition for a writ of mandamus.
request or demand for such apportionment, and the city made application for and obtained a
writ, commanding the board to show cause before this court why it should not be compelled
to comply with the city's request, as provided by the statute set out in the petition for a writ of
mandamus. The board, instead of making return to the order to show cause, demurred to the
petition, and for grounds of demurer alleged that the law upon which the city relies is
unconstitutional and void; that the law upon which the city relies has no application to the
city of Carson chartered under a special act of the legislature; that the law upon which the city
relies was repealed by implication by an act entitled An act regulating the fiscal management
of counties, cities, towns, school districts, and other governmental agencies. Stats. 1917, p.
249.
That it is legitimate legislation to require the several boards of county commissioners in
this state, under our constitution and statutes, to apportion to each incorporated city within the
respective counties such proportion of the general road fund of the county as the value of the
whole property within the corporate limits of such city, as shown by the assessment roll, shall
bear to the whole property of the county, inclusive of the property within incorporated cities,
where the fund is created by the levy of a tax upon the whole property in the county, inclusive
of that within incorporated cities, is not debatable. In support of the validity and
constitutionality of such legislation, I cite the following cases: Pike County v. Troy, 173 Ala.
442, 56 South. 131, 274, Ann. Cas. 1914a, 771; Town of Fairplay v. Park County, 29 Colo.
57, 67 Pac. 152; Duval County v. Jacksonville, 36 Fla. 196, 18 South. 339, 29 L. R. A. 416;
Genesee v. Latah County, 4 Idaho, 141, 36 Pac. 701; Newton v. Jasper Co., 135 Iowa, 27, 112
N. W. 167, 124 Am. St. Rep. 256; Baird v. State, 83 Ill. 387; Lincoln County v. Brookhaven,
90 Miss. 5, 41 South. 449; Chadon v. Dawes County, 82 Neb. 614, 118 N. W. 469.
Looking to the statute relative to public highways, the Nevada legislature, in March, 1866,
approved an act, section 1 of which reads as follows: "All public roads, and the streets and
alleys in incorporated cities or towns in this state, now used or lawfully entitled to be
used as such, and all such roads, streets and alleys as the board of commissioners of the
county in which they are situated shall hereafter lawfully cause to be opened, are hereby
declared to be public highways.
All public roads, and the streets and alleys in incorporated cities or towns in this state,
now used or lawfully entitled to be used as such, and all such roads, streets and alleys as the
board of commissioners of the county in which they are situated shall hereafter lawfully cause
to be opened, are hereby declared to be public highways. * * * Stats. 1866, p. 252.
The legislature, in the exercise of its authority over highways, has universally delegated
the power to the boards of county commissioners to levy taxes for road purposes, but has at
all times retained its inherent power, authority, and control over the revenues raised for road
purposes. The fact that an incorporated city is vested with plenary control over the streets and
alleys and is given authority to levy a tax upon the property within the city for their
maintenance and improvement does not preclude the boards of commissioners of the several
counties from levying a tax upon the whole property of the county, including that within
incorporated cities situated therein, for county road purposes. This has been the legislative
policy with respect to public highways since the organization of the state.
My associates do not discuss the constitutional questions raised by the demurrer, but I
have given the same careful consideration, and reach the conclusion that both on principle
and upon the authorities above cited the law is not vulnerable as being defective in its title;
that it is not special legislation nor violative of due process or equal protection of the law.
The law upon which the city of Carson relies in this case to have the board of county
commissioners of Ormsby County apportion to it such proportion of the general road fund of
the county as the value of the whole property within the city bears to the whole property of
the county, inclusive of the property within the city, first made its appearance in the Statutes
of 1907, and is found in section 76 of an act providing for the incorporation of cities, their
classification and government. Stats. 1907, p. 241; Rev. Laws, 842.
I cannot concede the sufficiency of the reasons assigned for declaring that the law is
revealed by implication by the enactment and adoption of the so-called budget law of
1917 and the amendments thereto.
the enactment and adoption of the so-called budget law of 1917 and the amendments thereto.
The question is not so much whether the act regulating the finances of counties and cities
repeals the law upon which the city of Carson relies as whether by the adoption of the budget
system the legislature intended to prevent any part of the general road fund created by the
levy of a tax upon the whole property within the county, inclusive of the whole property
within a city situated therein, being apportioned to the latter to be expended upon the streets,
alleys, and highways therein. The general road fund of Ormsby County is created under the
budget law just as it was before its adoption. For the purpose of the budget law every county,
city, town, municipality, and the governing boards thereof are deemed to be governmental
agencies of the state just as before its enactment, and, in consequence, to effectually carry out
the object and purpose of the budget system, it is necessary that their fiscal management as
governmental agencies be kept separate and distinct; but in reference to the county road fund
the state's policy remains unchanged, the legislature having expressly said long prior to the
adoption of the budget law that all public roads and the streets and alleys in incorporated
cities are public highways, which are maintained by a tax levied by the commissioners upon
the whole property within the county, including that of incorporated cities and towns situate
within the territorial limits of the county.
In support of my position that the budget law and the law of 1907, upon which this
proceeding is based, may operate together with respect to the apportionment of the general
road fund, I direct attention to the amendment made to section 3 of the act of 1866 by the
legislature at its session in 1921, designated as Assembly Bill No. 132, Washoe County
Delegation. Stats. 1921, p. 365. The section is amended by the addition of the following
proviso:
Provided, however, that in counties containing incorporated cities with a population of
more than twenty-five hundred persons, the levy shall not be less than one-eighth of 1 per
cent, and one-half of such proportion of said general road tax or fund of said county as
the value of the whole property within the corporate limits of the said city or cities shall
bear to the whole property within the county, inclusive of the property within the city, or
cities, shall be apportioned and paid to the city treasurer of said city, and shall be placed
in the general fund of the city or cities."
than one-eighth of 1 per cent, and one-half of such proportion of said general road tax or fund
of said county as the value of the whole property within the corporate limits of the said city or
cities shall bear to the whole property within the county, inclusive of the property within the
city, or cities, shall be apportioned and paid to the city treasurer of said city, and shall be
placed in the general fund of the city or cities.
The amendment is not material here save as it indicates, in my opinion, an intent on the
part of the legislature to direct how the general road fund may be apportioned by the
commissioners in counties containing incorporated cities, notwithstanding the budget law.
The amendment shows upon its face that it is the outgrowth of the law of 1907, upon which
the city of Carson relies. It recognizes that streets in incorporated cities within a county are
not so distinctively and exclusively a municipal purpose as to render it impossible under the
budget system to authorize boards of county commissioners to devote revenues raised by
county taxation for public roads on the property situated within incorporated cities to the
maintenance and improvement of the streets, alleys, and highways therein. The county is in
legal effect one road district. If the legislature has authority to grant to a city of more than
2,500 population a portion of the general road fund of the county in which it is situated, I see
no reason why the same privilege should not be granted to a city of less population under the
law of 1907. The principle in both cases is the same. The legislature certainly did not intend
that the budget law should operate to discriminate in favor of cities having 2,500 population
or more against those cities having a less population.
I am not called upon to discuss either the wisdom or policy of the law. It may operate
unjustly, and result in higher taxes for road purposes, but this is a matter for the legislature.
I see no sufficient reason for holding that the legislature intended by the adoption of the
budget system for the better regulation of the finances of the subordinate agencies of the
state government to ignore the equitable considerations that moved the legislature to
enact the law of 1907, upon which this proceeding is founded.
agencies of the state government to ignore the equitable considerations that moved the
legislature to enact the law of 1907, upon which this proceeding is founded. My conclusion is
that the law upon which Carson City relies in this case is not repealed by implication by the
so-called general budget law regulating the finances of the governmental agencies of the State
of Nevada, and therefore the demurrer to the petition for the writ, for all of the reasons stated,
should be overruled.
____________
47 Nev. 431, 431 (1924) State v. Chin Gim
No. 2592
STATE v. CHIN GIM
April 4, 1924. 224 Pac. 798.
1. Criminal LawCompetent Evidence Admissible Irrespective of Method of Obtaining.
In prosecution for possession of drugs without order or prescription of a physician, etc., therefore, in
violation of Stats. 1920-1921, c. 36, drugs within the purview of the statute, dug up in a chicken yard
used by defendant, held admissible, irrespective of whether they were obtained by a method unauthorized
by law as being inhibited by Const. U. S. Amend. 4, or Const. Nev. art 1, sec. 18, forbidding
unreasonable searches and seizures.
2. CourtsState Court Not Controlled by United States Supreme Court Decisions on
Questions Involving Fourth and Fifth Amendments.
Since Const. U. S. Amends. 4 and 5 operate on the national government alone, in considering the
effect to be given Const. Nev. art. 1, secs. 8 and 18, which are like the former, the state courts are
not controlled by decisions of the United States Supreme Court.
3. PoisonsConviction of Possessing Prohibited Drugs Sustained.
In prosecution for possessing prohibited drugs, evidence of drugs found on defendant's premises held
sufficient to convict.
4. PoisonsLack of Knowledge of Possession of Prohibited Drugs Matter of Defense.
Where prohibited drugs were found in a chicken yard used by defendant, it was not incumbent on
state to prove defendant placed them there; the statute making possession unlawful, and defendant's lack
of knowledge of such possession being matter of defense.
Chin Gim was convicted of possessing cocaine and opium without written order or
prescription therefor, and he appeals. Affirmed.
E. P. Carville, for Appellant:
The searching officer must have a search-warrant unless the person is caught in the
criminal act. United States Constitution, art. 6; Nevada Constitution, art. 1, sec. 18.
No search-warrant shall be issued except upon probable cause. Rev. Laws, 7415-7434.
The demand for the return of the confiscated property and the objection to its use in
evidence, being made before the beginning of the trial, were timely. 10 R. C. L. 933, 934;
Weeks v. United States, 232 U. S. 383; People v. Marxhousen, 2 A. L. R. 1505; State v.
Peterson, 13 A. L. R. 1284; Youman v. Commonwealth, 13 A. L. R. 1303.
The search-warrant was illegal because it was issued upon an illegal affidavit, made on
information and belief; the officer did not make his return as required by law. While there is
conflict between the United States and some state decisions as to whether property taken on
an illegal warrant can be used in evidence, there is no question that its use would be illegal
under the federal rule, upon timely application, and the property should be returned or
destroyed and the evidence suppressed. Boyd v. U. S. and Weeks v. U. S., supra; Silverthorne
Lumber Co. v. United States, 251, 385; Amos v. United States, 255 U. S. 313; Gouled v.
United States, 255 U. S. 298. Florida, Indiana, Iowa, Kentucky, Michigan, Mississippi,
Oregon, South Carolina, Tennessee, Washington, and Wyoming courts have taken the view
that such evidence is not legal. The constitutions of the United States and the state are the
basis of government, and the people are entitled to the protection thereby assured. A person
should be secure from invasion of his home by unbridled legislation, executive or
administrative will. There is provision for lawful search and seizure; none other is
constitutional. Marxhousen Case, supra.
The United States Supreme Court has made it plain that all alike are to be secured by the
protection given by the constitution. State v. Laundy (Or.), 204 Pac. 958; State v. Gibbons
(Wash.), 203 Pac. 390; 2 R. C. L. 446, 448; 5 C. J. 395.
No person shall be compelled in any criminal case to give evidence against himself.
McKnight v. United States, 115 Fed. 972; State v. Jackson (Wash.), 145 Pac. 470.
An offense is committed in the presence of an officer when he sees it, or sees one or more
of a series of acts constituting the offense, and is aided by his other senses or by information
as to others. State v. Lutz, 101 S. E. 434; 2 R. C. L. 467; 3 Cyc. 880; State v. Gibbons, supra.
There is no proof that the defendant knew that any narcotics were on the premises. Such
knowledge is a necessary part of the offense, and the verdict of guilty should be reversed. 2 R.
C. L. sec. 167; State v. Ah Tom, 8 Nev. 213.
The information alleged, though the state failed to prove, that defendant had no written order
or prescription for the narcotics. It was as necessary to prove as to charge that fact. Stats.
1921, p. 67.
The great constitutional guaranties should be given a broad, not a narrow, construction. If
error is to be made, it had better be made on the side of liberty. State v. Wills (W. Va.), 24 A.
L. R. 1398.
H. U. Castle; W. T. Mathews, District Attorney; M. A. Diskin, Attorney-General, and Thos.
E. Powell, Deputy Attorney-General, for Respondent:
A majority of the state courts refuse to follow the decisions of the federal courts, and, even
if this court should follow them, this appellant has not brought himself within the provisions
of law in that no showing is made that the property was in defendant's possession when
seized; therefore there was no showing that he was compelled to testify against himself or his
rights against unlawful search and seizure were violated.
The motion for the return of the property should have been directed to the justice of the
peace. Rev. Laws, 7431, 7432. Defendant's failure to pursue this remedy constituted a waiver
thereof. Neither his person nor house was illegally searched. The affidavit for the
search-warrant recites the source of affiant's information and what information he received,
and is sufficient. Ex Parte Buncell, 25 Nev. 426.
Even though search-warrant were void, the judgment should be sustained, because the
provisions of the constitution, fourth and fifth amendments, apply only to federal agencies
and not those of the state. This court cannot review the action of the lower court in denying
the motion to return or suppress the evidence, or in admitting it in evidence.
Probable cause for arrest can be established upon information and belief. The protection of
property is no more sacred. Rosanski v. State (Ohio), 140 N. E. 372. The facts alleged need
not be by an eye-witness. Beavers v. Henkle, 48 L. Ed. 882.
Probable cause exists where the belief is founded on reasonable grounds. 32 Cyc. 402;
State v. Davis, 22 N. W. 411.
An officer may seize a person before he exhibits the warrant. No act of an officer could
invalidate a valid search-warrant. United States v. Rice, 27 Fed. Cas. No. 16,153; State v.
Townsend, 4 Del. 488; O'Halloran v. McQuirk, 167 Fed. 493.
In Lamb v. United States, 264 Fed. 660, the jury found the defendant guilty of having
possession of an illicit still close to, though not on, his premises, and the higher court refused
to disturb the verdict.
That there was no written order or prescription was matter of defense. Miller v. State, 63
South. 269. Recital of the fact in the information was surplusage.
Defendant denied the property was his or found in his possession. Before the seized
property may be returned or suppressed as evidence, the defendant must establish that it was
in his possession and unlawfully taken. United States v. Koplan, 286 Fed. 969; State v.
Laundy, 204 Pac. 976.
The inhibition in the constitution against unlawful searches and seizures applies only to
the person, house, papers, and effects, and does not include premises or lands. United States
v. McBride, 287 Fed. 215.
The fourth and fifth amendments of the constitution do not apply to the states. States v.
Tomm, 191 N. W. 530; People v. Laundy, supra; People v. Mayen, 205 Pac. 435; Comm. v.
Wilkins, 138 N. E. 11.
Illegality of the method of obtaining the evidence is collateral to main issue; all the
motions in the world cannot make it anything else. A collateral fact cannot be turned into a
main fact merely by making a formal motion. Wigmore in Annual Bar Association Journal,
August, 1922.
It is the invasion of one's premises and the taking of his goods that constitute the offense
prohibited by the constitution, irrespective of what was taken or what use was made of it. The
law having declared the articles admissible in evidence, notwithstanding the unlawful seizure,
how can the court's error in an independent proceeding for the return of the property add
anything to the violation of constitutional rights? People v. Mayen, supra; State v. Myers
(Idaho), 211 Pac. 440; State v. Kees, 114 S. E. 617.
Courts do not concern themselves with the adjustment of property rights between
wrongdoers, but leaves them as they find them. Duane v. Merchants' Legal Stamp Co.
(Mass.), 120 N. E. 370.
The constitution makers did not mean to be so solicitous for the interests of a person
accused of crime as to exclude from the jury not only the evidence of his guilt but the thing
the possession of which constitutes his crime. State v. Chuchola (Del.), 120 Atl. 212.
One who makes an unlawful seizure can and ought to be punished, but his act should not
prevent the use of the thing seized in evidence, and certainly not if its possession constitutes
the crime charged. State v. Chuchola, supra.
The application for the return of the property is collateral, wholly independent of the issue
involved. People v. Mayen, supra; Welchek v. State (Tex.), 247 S. W. 524.
Defendant has no right to the return of the property, since its possession is illegal, and he
did not and could not have any right of property in it.
Appellant was convicted in the district court of Elko County of violating a statute making
it a gross misdemeanor for any person to have in his possession cocaine and opium without
the written order or prescription of a physician, dentist, or veterinary surgeon, licensed to
practice in the State of Nevada. Stats. 1920-1921, p. 66. From the judgment of conviction and
order denying his motion for a new trial, this appeal is taken.
It appears from the record that a search-warrant commanding any peace officer of Elko
County to make search of premises used and occupied by appellant was issued by a justice of
the peace of that county, upon an affidavit made upon the information and belief of one J. A.
McFarlane. Armed with this search-warrant, officers went to a yard which was used by the
appellant as a chicken-yard, located a short distance from a room in which he was living, and
digging in the yard found a can containing a number of bindles of cocaine, and another can
containing a small amount of opium, and several opium lamps and lamp chimneys. After the
search-warrant had been served on appellant, he was taken to the yard in question, and a
further search revealed some opium buried in another part of the yard.
There is a conflict in the testimony as to what was said by the appellant concerning his
ownership of the premises on which the opium and cocaine were found; the officers testifying
in substance that he stated that he owned the yard and chickens, and the appellant testifying
that he owned the chickens but not the yard. Prior to the trial, appellant, by his counsel, made
a written demand of the court that it order the cocaine and opium seized by the officers under
and by virtue of the search-warrant, restored to the premises from which the same was taken,
or that it be disposed of as provided by law; and moved the court to suppress the same as
evidence.
evidence. The basis for this demand was that the search-warrant was illegal, for the reason,
among others assigned, that the affidavit upon which it was issued was made upon
information and belief, and was not therefore sufficient to establish probable cause for the
issuance of said warrant. The motion was denied by the court.
On the trial of the case the cocaine and opium seized by the officers was introduced in
evidence over the objection of the appellant. It is insisted that this evidence is illegal and
should have been suppressed on appellant's demand and motion; that its admission in
evidence is in violation of appellant's right as guaranteed by the fourth and fifth amendments
to the constitution of the United States, and by sections 8 and 18 of article 1 of the state
constitution, as there was no other evidence before the jury upon which it could legally find
the appellant guilty of the offense charged, the judgment should be reversed.
The contention here is, as was urged in the lower court, that the affidavit upon which the
search-warrant was issued is insufficient because made upon information and belief.
1. By reason of the conclusion we reach we deem it unnecessary to determine whether the
search-warrant was illegal on this account, or pass upon several points made by respondent
against appellant's contention, among which is the point that the chicken-house involved is
not within the scope of the constitutional provisions securing people in their persons and
houses against unreasonable searches and seizures. The exact inquiry to which we address
ourselves is: Was the evidence complained of admissible as tending to prove appellant's guilt
of the offense charged, despite the constitutional objections urged? It is a doctrine accepted
by many state courts that illegality in the mode of obtaining evidence does not affect its
admissibility if it tends to prove the issue. The rule is thus stated by an eminent authority on
the law of evidence: "Though papers and other subjects of evidence may have been
illegally taken from the possession of the party against whom they are offered, or
otherwise unlawfully obtained, this is no valid objection to their admissibility if they are
pertinent to the issue.
Though papers and other subjects of evidence may have been illegally taken from the
possession of the party against whom they are offered, or otherwise unlawfully obtained, this
is no valid objection to their admissibility if they are pertinent to the issue. The court will not
take notice how they are obtained, whether lawfully or unlawfully, nor will it form an issue to
determine that question. 1 Greenleaf on Evidence (16th ed.) 254a.
As pointed out by the editor of the edition, the principle stated in the foregoing section has
been regularly applied to incriminating materials, tools, liquor, documents, etc., obtained by
the unlawful search of premises, or by unlawful search of the person, or by other
unauthorized means. Shields v. State, 104 Ala. 35, 16 South. 85, 53 Am. St. Rep. 17; People
v. Le Doux, 155 Cal. 535, 102 Pac. 517; Gindrat v. People, 138 Ill. 103, 27 N. E. 1085; State
v. Miller, 63 Kan. 62, 64 Pac. 1033; State v. Burroughs, 72 Me. 479; Commonwealth v.
Dana, 2 Metc. (Mass.) 329; Commonwealth v. Wilkins, 243 Mass. 356, 138 N. E. 11; State v.
Pomeroy, 130 Mo. 489, 32 S. W. 1002; State v. Flynn, 36 N. H. 64; People v. Adams, 176 N.
Y. 351, 68 N. E. 636, 63 L. R. A. 406, 98 Am. St. Rep. 675, affirmed in Adams v. New York,
192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575; State v. Barr, 78 Vt. 97, 62 Atl. 43; State v.
Griswold, 67 Conn. 290, 34 Atl. 1046, 33 L. R. A. 227; Benson v. State, 149 Ark. 633, 233 S.
W. 758; Williams v. State, 100 Ga. 511, 28 S. E. 624, 39 L. R. A. 269; Welchek v. State, 93
Tex. Cr. R. 271, 247 S. W. 524; City of Sioux Falls v. Walser, 45 S. D. 417, 187 N. W. 821;
Commonwealth v. Courtney, 243 Mass. 363, 138 N. E. 16; State v. Myers, 36 Idaho, 396, 211
Pac. 440; State v. Hesse, 154 Minn. 89, 191 N. W. 267; People v. Mayen, 188 Cal. 237, 205
Pac. 435, 24 A. L. R. 1383; State v. Chuchola (Del. Gen. Sess.) 120 Atl. 212; State v. Tonn,
195 Iowa, 94, 191 N. W. 530; State v. Aime (Utah), 220 Pac. 704; Luchesi v.
Commonwealth, 122 Va. 872, 94 S. E. 925; Billings v. State (Neb.), 191 N. W. 721; Calhoun
v. State, 144 Ga. 679, 87 S. E. 893; Ex Parte Rankin, 45 Nev. 173, 199 Pac. 474.
This principle was applied by this court in Ex Parte Rankin, supra, recently decided. In that
case the petitioner had been informed against in the district court for a violation of the
initiative prohibition act (Stats. 1919, c. 1), and sought his discharge from imprisonment by
habeas corpus. The point was made that the evidence on which he was held to answer was
obtained by and through an illegal search-warrant. On this phase of the case we held that,
conceding the information to have been grounded on evidence illegally obtained, the fact was
not sufficient to warrant petitioner's discharge on habeas corpus.
In a majority of the cases cited supra the evidence complained of was obtained by an
unlawful search and seizure, and was held over constitutional objections to be admissible.
The reasons why such evidence is admissible are well stated in State v. Flynn, cited supra:
Its ground [of the objection] is, rather, that all the information obtained by means of a
search-warrant, in a case not authorized by the constitution, is not competent to be given in
evidence, because it has been obtained by compulsion from the defendant himself, in
violation of that clause of the constitution which provides that no person shall be compelled
to furnish evidence against himself. * * * It seems to us an unfounded idea that the
discoveries made by the officers and their assistants, in the execution of process, whether
legal or illegal, or where they intrude upon a man's privacy without any legal warrant, are of
the nature of admissions made under duress, or that it is evidence furnished by the party
himself upon compulsion. The information thus acquired is not the admission of the party,
nor evidence given by him, in any sense. The party has in his power certain mute witnesses,
as they may be called, which he endeavors to keep out of sight, so that they may not disclose
the facts which he is desirous to conceal. By force or fraud access is gained to them, and they
are examined to see what evidence they bear. That evidence is theirs, not their owners'. If a
party should have the power to keep out of sight, or out of reach, the persons who can give
evidence of facts he desires to suppress, and he attempts to do that, but is defeated by
force or cunning, the testimony given by such witnesses is not his testimony, nor evidence
which he has been compelled to furnish against himself.
out of sight, or out of reach, the persons who can give evidence of facts he desires to
suppress, and he attempts to do that, but is defeated by force or cunning, the testimony given
by such witnesses is not his testimony, nor evidence which he has been compelled to furnish
against himself. It is their own. It does not seem to us possible to establish a sound distinction
between that case, and the case of counterfeit bills, the forger's implements, the false keys, or
the like, which have been obtained by similar means. The evidence is in no sense his.
This distinction, says Mr. Wigmore in his treatise on Evidence, has received repeated
illustrations and almost universal acceptance, in a variety of applications to documents and
chattels obtained by search or seizure independent of testimonial process. 3 Wigmore on
Evidence, sec. 2264, and cases cited in note 2.
The mute witnesses in this case were the contraband cocaine and opium which the
appellant was endeavoring to keep out of sight. It established, or at least tended to establish,
his possession of the interdicted drugs, which constituted the crime charged, unless he had a
written order or prescription as provided by the statute. How could the possession of the
drugs in any sense compel the appellant to be a witness against himself in contravention of
the constitutional guaranty? It was evidence under his control to be sure, but it was entirely
independent of anything in the nature of testimonial compulsion. Conceding that the search
and seizure in this case was inhibited by section 18, article 1, of the state constitution, the
most that can be said is that the evidence showing appellant's possession of the interdicted
drugs was obtained through a method unauthorized by law. But this cannot affect their
pertinency or render them inadmissible as circumstances tending to prove guilt. If the only
evidence obtainable in a given case showing that one had committed a public offense has
been obtained through an unreasonable search and seizure, shall the criminal for that reason
go unpunished? If so, then in all such cases society is remediless, and the sanctity of the
castle is converted into a sanctity for crime.
and the sanctity of the castle is converted into a sanctity for crime. No principle of law is put
aside by the admission of the interdicted drugs in evidence, for the fourth amendment, and the
section corresponding thereto in our state constitution, have nothing to do with a rule of
evidence. Considered either from their terms or in the light of their historical origin, they
were not designed to exclude evidence. It is begging the question to say, as was said in
Youman v. Commonwealth, 189 Ky. 152, 224 S. W. 860, 13 A. L. R. 1303, cited by
appellant, that the reception of evidence obtained in violation of the search and seizure
provisions of the constitution is, in effect, encouragement lent by the court to officers to go
without a search-warrant and break open doors and search premises over the protest and in
the absence of the owner. There are laws against such things, and appropriate remedies. As
said in Shields v. State, supra:
The law appoints the remedy for the redress of the wrong, but the exclusion of the
evidence criminating the defendant, is not within the scope of the remedy, or the measure of
redress.
The only bearing which the fourth amendment can be conceived to have, says Mr.
Wigmore in his work on Evidence (vol. 3, sec. 2264), is that, in case of a seizure under a
warrant violating that rule, the seized articles come before the court as illegally obtained. But
his circumstance of itself cannot stand in the way of their use as evidence. If there was ever
any rule well settled (until the opinion in Boyd v. United States) it was this, that an illegality
in the mode of obtaining evidence cannot exclude it, but must be redressed or punished or
resisted by appropriate proceedings otherwise taken. There is, therefore, no respect whatever
in which the principle of the fourth amendment can be properly invoked in applying the
principle of the fifth amendment. For these reasons, judicial opinion, since Boyd v. United
States was decided, has generally refused to accept its pronouncement.
2. Counsel for appellant relies upon a line of decisions of the Supreme Court of the
United States, namely, Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746;
Weeks v. United States, 232 U. S. 3S3, 34 Sup. Ct. 341, 5S L. Ed. 652, L. R. A.
namely, Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; Weeks v.
United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915b, 834, Ann. Cas.
1915c, 1177; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L.
Ed. 319; Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654; Gouled v.
Unites States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647; and also some state decisions
which have accepted the doctrine which has been laid down by these and other federal cases
with reference to the question of the admissibility of evidence obtained by an unlawful
search, and the procedure for its suppression. The fourth and fifth amendments to the federal
constitution do not govern the several states and the courts thereof. They operate on the
national government alone. This is the settled law of this country. Eilenbecker v. District
Court, 134 U. S. 31, 10 Sup. Ct. 424, 33 L. Ed. 801; Lloyd v. Dollison, 194 U. S. 445, 24
Sup. Ct. 703, 48 L. Ed. 1062; Ensign v. Commonwealth of Pennsylvania, 227 U. S. 592, 33
Sup. Ct. 321, 57 L. Ed. 658. Consequently it follows that in considering the effect to be given
sections 8 and 18 of article 1 of our constitution, which are like the fourth and fifth
amendments, we are not controlled by the decisions of the Supreme Court of the United
States, as we would be if said amendments were controlling upon the several states and the
courts thereof.
We will not attempt to analyze or distinguish the federal cases cited; but, in so far as they
hold that evidence obtained by an officer in the course of an unlawful search is illegal, we
cannot accept their pronouncement. In this respect the overwhelming weight of state
authorities is against them. As said in State v. Tonn, 195 Iowa, 94, 106, 191 N. W. 530-535:
The due administration of the criminal law would be seriously hampered and in many
cases entirely subverted by a strict adherence to this rule. We would not detract one iota from
the full protection vouchsafed to the citizen by the constitutional provisions. A trespassing
officer is liable for all wrong done in an illegal search or seizure.
search or seizure. The constitutional provision is a sacred right, and one which the courts will
rigidly enforce, but that does not mean that the state, in the prosecution of crime, cannot use
any proper evidence available to it without stopping to conduct an independent inquiry in the
criminal proceeding as to how that evidence was obtained. Great public interests are involved
in the due and efficient prosecution of crime. The vital question is whether or not the
evidence is competent and relevant to the issue on trial.
In Commonwealth v. Wilkins, supra, after a review of the federal decisions, the court said:
We are unable to assent to the distinctions established by the federal decisions. The
presentation of evidence in court in prosecution of crime is by the district attorney, who for
that purpose is the representative of the government. He alone decides what evidence shall be
offered. It seems to us that whether physical property seized through an unreasonable search
should be received in evidence when presented by the government attorney, cannot soundly
depend upon the antecedent and disconnected fact that the unreasonable search by which it
was unlawfully obtained was made by a police officer without any warrant instead of by a
private individual acting on his own responsibility. The decisions of the United States courts
and all other courts appear to be unanimous in holding that in the latter instance property will
be admitted in evidence, if otherwise competent, against the owner on trial for a crime. We
prefer to adhere to our rule, which makes the competency of evidence depend upon its
inherent probative value rather than upon outside circumstances, and which leaves the redress
of grievances for invasion of constitutional rights to the usual and adequate provisions of the
civil and criminal law.
The case of the People v. Mayen, supra, is as well reasoned as any which have declined to
accept the federal rule. In that case certain incriminating articles of personal property had
been taken from the apartment of the defendant without his consent under the authority of an
illegal search-warrant.
authority of an illegal search-warrant. On the day of his trial, several hours before the work of
impaneling the jury was commenced, defendant presented to the trial court his motion for an
order requiring the district attorney to return to him the papers and other articles seized under
the warrant. This motion was made pursuant to a written petition substantially in the form
approved in the case of Weeks v. United States, supra, and upon the ground that the
search-warrant was invalid and ineffective, and that therefore the seizure was in violation of
the defendant's rights under the fourth and fifth amendments to the constitution of the United
States, and sections 13 and 19 of article 1 of the constitution of California. The court denied
the motion. Later, when certain of the seized papers were offered in evidence, defendant
objected to their reception on the grounds upon which he had made the motion; but the
objection was overruled, and various of the documents were admitted. The federal cases were
reviewed, and in the course of its opinion the court said:
It must be admitted, then, that the search and seizure was unreasonable and unlawful and
violated the rights of appellant as guaranteed by section 19 of article 1 of the constitution of
California.
Without at all minimizing the gravity of such offense, or the sacredness of the right of
every citizen to be secure in his person, home, and property from any unlawful invasion by
the state, it does not follow that the subsequent detention and introduction in evidence of the
property thus wrongfully taken constituted error on the trial of the appellant.
The trespass committed in the wrongful seizure of these personal effects by unauthorized
officers, and the subsequent use of the same in evidence on the part of the prosecution, were
in legal effect entirely distinct transactions with no necessary or inherent relation to each
other.
There was nothing in the character of the articles taken, or in the fact that they belonged
to the defendant, which affected their competency as evidence. * * *
But no authority, so far as we have been able to discover, has suggested that the
subsequent use of articles so taken as evidence is in itself any part of the unlawful invasion of
such constitutional guaranty. The search and seizure are complete when the goods are taken
and removed from the premises. Whether the trespasser converts them to his own use,
destroys them, or uses them as evidence, or voluntarily returns them to the possession of the
owner, he has already completed the offense against the constitution when he makes the
search and seizure, and it is this invasion of the rights of privacy and the sacredness of a
man's domicile with which the constitution is concerned.
The constitution and the laws of the land are not solicitous to aid persons charged with
crime in their efforts to conceal or sequester evidence of their iniquity. From the necessities
of the case the law countenances many devious methods of procuring evidence in criminal
cases. The whole system of espionage rests largely upon deceiving and trapping the
wrongdoer into some involuntary disclosure of his crime. It dissimulates a way into his
confidence; it listens at the keyhole and peers through the transom light. It is not nice, but it is
necessary in ferreting out the crimes against society which are always done in darkness and
concealment.
Thus it is that almost from time immemorial courts engaged in the trial of a criminal
prosecution have accepted competent and relevant evidence without question, and have
refused to collaterally investigate the source or manner of its procurement, leaving the parties
aggrieved to whatever direct remedies the law provides to punish the trespasser, or recover
the possession of goods wrongfully taken. The federal authorities relied upon by appellant do
not question the general acceptance of this doctrine by the courts, and only differentiate it, in
the cases cited, on the ground that persons from whom personal effects are unlawfully taken
are entitled to demand and recover possession of their property by application on motion, and
that when they have made such timely demand to the tribunal controlling the custody of such
property, there should not be an arbitrary refusal to grant the demand in order to hold the
ill-gotten articles as evidence, and the admission of such property thereafter as evidence
is held error.
be an arbitrary refusal to grant the demand in order to hold the ill-gotten articles as evidence,
and the admission of such property thereafter as evidence is held error.
The right of one whose goods have been unlawfully seized to recover their possession,
and that irrespective of its effect in depriving the state of their use in evidence, is not
disputed, but the contention, which we think is maintained by the great weight of authority, is
that the proceeding for such recovery is independent of the criminal proceeding in which it is
sought to use such articles as evidence. Even conceding the right to demand such recovery by
motion before the court in which such criminal action is pending, as is apparently the rule in
the federal courts and as recognized in some of the state decisions (People v. Kinney, 185 N.
Y. Supp. 645; State v. Peterson, 27 Wyo. 185, 13 A. L. R. 1284, 194 Pac. 342), upon what
theory can it be held that such proceeding is an incident of the trial, in such a sense that the
ruling thereon goes up on appeal as part of the record and subject to review by the appellate
court? It seems to us rather an independent proceeding to enforce a civil right in no way
involved in the criminal case. The right of the defendant is not to exclude the incriminating
documents from evidence, but to recover the possession of articles which were wrongfully
taken from him. That right exists entirely apart from any proposed use of the property by the
state or its agents.
Its determination involves the framing of separate issues of fact as to the rights of
possession of the goods and the method of seizure, by whom taken, and whether or not the
trespass was committed by an agent of the state. The court having tried such issue, and, as in
the case before us, denied the relief demanded, we question if under any procedure
recognized in the State of California such ruling can be collaterally attacked. As well might a
collateral attack upon a judgment roll received in evidence on a trial be maintained on appeal
therefrom on the ground that it was invalid because of some extrinsic fraud in its
procurement. Only matters incident to the cause of action on trial are subject to review on
appeal therefrom, and for this reason it is held that an objection on the trial to the
admission of evidence on the ground that it has been wrongfully seized does not lie, and
cannot be reviewed on appeal, but that any rights so involved must be raised in an
independent proceeding {10 R. C. L. p. 993; State v. District Court, 59 Mont.
on appeal therefrom, and for this reason it is held that an objection on the trial to the
admission of evidence on the ground that it has been wrongfully seized does not lie, and
cannot be reviewed on appeal, but that any rights so involved must be raised in an
independent proceeding (10 R. C. L. p. 993; State v. District Court, 59 Mont. 600, 198 Pac.
362), and such is the effect of the rule in Weeks v. United States and Gouled v. United States,
supra, as to the independent nature of the proceeding.
It is our conclusion that any rights determined under such independent proceeding cannot
be reviewed under our procedure on the record of appeal from the action in which such
evidence was used.
The fallacy of the doctrine contended for by the appellant is in assuming that the
constitutional rights of the defendant are violated by using his private papers as evidence
against him, whereas it was the invasion of his premises and the taking of his goods that
constituted the offense irrespective of what was taken or of what use was made of it; and the
law having declared that the articles taken are competent and admissible evidence,
notwithstanding the unlawful search and seizure, how can the circumstance that the court
erred in an independent proceeding for the return of the property of defendant's demand add
anything to or detract from the violation of defendant's constitutional rights in the unlawful
search and seizure?
We have quoted at length from the foregoing case, for it seems to us that the reasoning
employed is sound and unanswerable. It was quoted from with approval in Billings v. State,
supra, and accepted as the correct rule in State v. Myers, 36 Idaho, 396, 211 Pac. 440. It is, in
fact, a leading case holding to the principle that evidence which is relevant to the issue is
admissible, although it may have been obtained illegally and even in violation of the
constitutional inhibition against unreasonable searches and seizures.
In Shields v. State, supra, in 1893, it was held that evidence obtained by a search which
was illegal and unauthorized is admissible to fix the guilt of a criminal offense upon the
person searched, and the admission of such evidence so obtained is not violative of the
constitutional guaranty that a person accused shall not be compelled to give evidence
against himself, or of the further guaranty "that the people shall be secure in their
persons, houses, papers, and possessions from unreasonable seizures or searches."
unauthorized is admissible to fix the guilt of a criminal offense upon the person searched, and
the admission of such evidence so obtained is not violative of the constitutional guaranty that
a person accused shall not be compelled to give evidence against himself, or of the further
guaranty that the people shall be secure in their persons, houses, papers, and possessions
from unreasonable seizures or searches. The court said:
We adhere to the proposition to be extracted from the authorities to which we have
referred, that, however unfair or illegal may be the methods by which evidence may be
obtained in a criminal case, if relevant, it is admissible, if the accused is not compelled to do
any act which criminates himself, or a confession or admission is not extorted from him, or
drawn from him by appliances to is hopes or fears.
This case was followed by the cases of Pope v. State, 168 Ala. 33, 53 South. 292, and
Robertson v. City of Montgomery, 201 Ala. 198, 77 South. 724, and which case was also
followed by the court of appeals in the case of Bell v. State, 16 Ala. App. 36, 75 South. 181.
Later, in 1921, the court of appeals in Banks v. State, 18 Ala. App. 376, 93 South. 293, 24 A.
L. R. 1359, reached the conclusion that the ruling of the Shields case was repugnant to and
inconsistent with the prohibitions of the Alabama constitution against unreasonable searches
and seizures and self-incrimination, and should be overruled. The court of appeals in its
opinion called attention to and discussed the federal cases heretofore mentioned, and certified
the constitutional question to the supreme court. The supreme court, in a well-considered
opinion, upheld the Shields case, pointing out that the doctrine of that case was almost
universally supported by the courts of the other states of the Union.
The reasoning on which the rule rests, said the court, is said to be that the court, when
engaged in the trial of a criminal action, will not take notice of the manner in which a
witness has possessed himself of papers or other chattels, subjects of evidence, which are
material and properly offered in evidence.' * * * To pursue such inquiry would halt the
orderly progress of a cause in the consideration of an incidental question, which has
crossed the path of such litigation and 'wholly independent' thereof."
material and properly offered in evidence.' * * * To pursue such inquiry would halt the
orderly progress of a cause in the consideration of an incidental question, which has crossed
the path of such litigation and wholly independent' thereof. Banks v. State, 207 Ala. 179, 93
South. 293, 24 A. L. R. 1359.
It was observed by the Supreme Court of Illinois, in Gindrat v. People, supra:
Courts, in the administration of the criminal law, are not accustomed to be oversensitive
in regard to the sources from which evidence comes, and will avail themselves of all evidence
that is competent and pertinent and not subversive of some constitutional or legal right.
Mr. Wigmore says:
Necessity does not require, and the spirit of our law does forbid, the attempt to do justice
incidentally and to enforce penalties by indirect methods. An employer may perhaps suitably
interrupt the course of his business to deliver a homily to his office boy on the evils of
gambling or the rewards of industry. But a judge does not hold court in a street-car to do
summary justice upon a fellow passenger who fraudulently evades payment of his fare; and,
upon the same principle, he does not attempt, in the course of a specific litigation, to
investigate and punish all offenses which incidentally cross the path of that litigation. Such
practice might be * * * consistent with the primitive system of justice under an Arabian
sheik; but it does not comport with our system of law. It offends, in the first place, by trying a
violation of law without the due complaint and process which are indispensable for its correct
investigation. It offends, in the next place, by interrupting, delaying and confusing the
investigation in hand, for the sake of a matter which is not a part of it. It offends, further, in
that it does this unnecessarily and gratuitously; for since the persons injured by the supposed
offense have not chosen to seek redress or punishment directly and immediately, at the right
time and by the right process, there is clearly no call to attend to their complaint in this
indirect and tardy manner.
attend to their complaint in this indirect and tardy manner. The judicial rules of evidence were
never meant to be an indirect process of punishment. It is not only anomalous to distort them
to that end, but it is improper (in the absence of express statute) to enlarge the fixed penalty
of the law, that of fine or imprisonment, by adding to it the forfeiture of some civil right
through loss of the means of proving it. For these reasons, it has long been established that
the admissibility of evidence is not affected by the illegality of the means through which the
party has been enabled to obtain the evidence. The illegality is by no means condoned; it is
merely ignored. 3 Wigmore on Evidence, sec. 2183.
The purpose and scope of the constitutional inhibitions against unreasonable searches and
seizures is well stated by Lumpkin, P. J., in Williams v. State, 100 Ga. 511, 28 S. E. 624, 39
L. R. A. 269:
As we understand it, the main, if not the sole, purpose of our constitutional inhibitions
against unreasonable searches and seizures was to place a salutary restriction upon the powers
of government. That is to say, we believe the framers of the constitution of the United States
and of this and other states merely sought to provide against any attempt, by legislation or
otherwise, to authorize, justify, or declare lawful any unreasonable search or seizure. This
wise restriction was intended to operate upon legislative bodies, so as to render ineffectual
any effort to legalize by statute what the people expressly stipulated could in no event be
made lawful; upon executives, so that no law violative of this constitutional inhibition should
ever be enforced; and upon the judiciary, so as to render it the duty of the courts to denounce
as unlawful every unreasonable search and seizure, whether confessedly without any color of
authority, or sought to be justified under the guise of legislative sanction. For the misconduct
of private persons, acting upon their individual responsibility and of their own volition, surely
none of the three divisions of government is responsible. If an official, or a mere petty agent
of the state, exceeds or abuses the authority with which he is clothed, he is to be deemed
as acting, not for the state, but for himself only; and therefore he alone, and not the state,
should be held accountable for his acts.
state, exceeds or abuses the authority with which he is clothed, he is to be deemed as acting,
not for the state, but for himself only; and therefore he alone, and not the state, should be held
accountable for his acts. If the constitutional rights of a citizen are invaded by a mere
individual, the most that any branch of government can do is to afford the citizen such redress
as is possible, and bring the wrongdoer to account for his unlawful conduct. * * * Whether or
not prohibiting the courts from receiving evidence of this character would have any practical
and salutary effect in discouraging unreasonable searches and seizures, and thus tend towards
the preservation of the citizen's constitutional right to immunity therefrom, is a matter for
legislative determination.
We might multiply indefinitely the large list of authorities mentioned supporting the rule
that evidence is admissible, if pertinent to the issue, although obtained by an unreasonable, or
an unwarranted, or an unlawful, search and seizure, but it would serve no useful purpose.
For the reasons given and upon the great weight of authority, we are satisfied that the
motion was properly denied, and that objection to the admissibility of the evidence was
properly overruled.
3. The court did not err in refusing to grant appellant's motion to advise the jury to acquit
for the reason that the evidence was insufficient to warrant a conviction. The motion was
made upon the grounds, first, that it had not been proved the appellant was in possession of
the opium or cocaine introduced in evidence; secondly, that the state failed to prove that the
defendant did not have a prescription or written order of a physician, dentist, or veterinary
surgeon licensed to practice in this state; and thirdly, that the state had failed to prove that the
appellant had any knowledge of the articles introduced in evidence as having been on his
premises.
On the oral argument in this case, counsel for the appellant admitted that the second
ground urged on the motion was not well taken. This is true. If the appellant had a written
order or prescription as provided by the statute, it would be a matter of defense.
the statute, it would be a matter of defense. State v. Ah Chew, 16 Nev. 50, 40 Am. Rep. 488.
As said in that case:
These facts would be peculiarly within his knowledge, and could be established by him
without the least inconvenience, whereas if proof of the negative were required the
inconvenience would be very great.' 1 Greenleaf on Evidence, sec. 79.
The evidence is sufficient to justify the verdict of guilty. The interdicted drugs were found
on premises admittedly used and occupied by appellant as a place to keep his chickens and to
which he had constant access and which was in close proximity to the place where he lived.
4. According to one witness, he said that the yard where a number of cans of opium were
found was his yard. A number of bindles of cocaine, cans of opium, opium lamps, and lamp
chimneys were found concealed in the ground at different places on the premises. True, the
appellant at the time of the search and seizure and on the trial denied all knowledge of the
same, but his unlawful possession under these circumstances was a question for the jury. It
was not incumbent on the state to prove that appellant placed the interdicted drugs upon his
premises, or knew of their presence there. The statute makes the possession unlawful. Lack of
knowledge of such possession is a matter of defense. State v. Freeland, 106 S. C. 220, 91 S.
E. 3. See, also, Pate v. State, 16 Okl. Cr. 62, 180 Pac. 559.
____________
47 Nev. 453, 453 (1924) Schultz v. Mexican Dam and Ditch Co.
No. 2602
SCHULTZ v. MEXICAN DAM AND DITCH
COMPANY
April 5, 1924. 224 Pac. 804.
1. JudgmentAdjudging Matters Outside Issues Void.
A judgment adjudging matters outside the issues raised by the pleadings is so far void.
2. Appeal and ErrorSufficiency of Allegations of Damage Not Considered on Appeal from
Order Dissolving Injunction Staying Execution of Judgment.
On appeal from an order dissolving an injunction staying execution of a judgment, the court is not
concerned with the form or sufficiency of allegations of damages in the original case, as they may have
been appropriately tested therein.
3. PleadingError in Admitting Proof of Special Damages Waived by Failure to Object.
When proof of special damages not alleged is admitted without objection, defendant is deemed to
have waived such objection.
4. ExecutionJudgment Presumed Regular in Suit to Restrain Execution.
Every presumption must be indulged in favor of the regularity of a judgment in a suit to restrain
execution thereof.
5. ExecutionError in Awarding Special Damages Not Pleaded Cannot Be Corrected in Suit
to Restrain Execution.
Error in awarding special damages under general allegations of damage is error, within the court's
jurisdiction, which can be corrected only on new trial or appeal, and not in a suit to restrain execution of
the judgment.
6. DamagesPlaintiff May Recover Special Damages without Specific Demand, where
Complaint Alleges and Answer Denies General Damages.
Under civil practice act, sec. 299 (Rev. Laws, 5241), plaintiff may recover special damages without
special demand therefor, where the complaint contains allegations of general damages, which the answer
denies.
7. ExecutionExecution of Judgment Adjudging that Ditch and Banks Were Plaintiff's
Property Not Restrained Because of Inclusion of Part of Defendant's Land.
A judgment adjudging, in conformity with allegations of the complaint, that a ditch, its bed and banks,
were plaintiff's property, held not subject to attack, in a suit to restrain execution, because it gave plaintiff
fourteen feet of defendant's land as the necessary width of one bank to secure plaintiff in the reasonable
enjoyment of its easement over defendant's land, though the complaint did not allege that plaintiff was the
owner of any part thereof; the amount of land necessary for such purpose being for the court rendering
the judgment, and any error in awarding more than was necessary being an error within jurisdiction,
which cannot be inquired into in such a suit.
Appeal from First Judicial District Court, Ormsby County; Thomas F. Moran, Judge.
Suit by Joseph Schultz, Antone Schultz, and J. R. Schultz (doing business under the firm
name of Schultz Brothers) against Mexican Dam and Ditch Company. From an order
dissolving a restraining order and temporary injunction, plaintiffs appeal. Affirmed.
Wm. McKnight, for Appellants:
Jurisdiction is the right to adjudicate upon the subject-matter of a case. Black, Judgments
(2d ed.), sec. 242; 7 R. C. L. 1029.
The three essentials to jurisdiction are that the court has cognizance of the class of
litigation, proper parties, and that the points decided are within the issues. Black, supra;
Charles v. White, 214 Mo. 187.
A judgment outside the issues is to that extent void. Rev. Laws, 5241; Black, supra;
Marshall v. Golden Fleece M. Co., 16 Nev. 173.
The issues in a case can be determined only from the pleadings. Marshall v. Golden Fleece
M. Co., supra; Reynolds v. Stockton, 140 U. S. 254.
A judgment is void which grants relief not laid in the complaint nor demanded in the
prayer.
An easement exists on property of another; a man cannot have an easement on his own
lands. An easement is distinct from occupation and does not confer title to land. 19 C. J. 863;
Lachman v. Barnett, 18 Nev. 269.
The owner of a right of way for an irrigation ditch has no interest in the land over which the
ditch crosses. Fitzell v. Leaky, 72 Cal. 482. He has no right of entry upon the land except to
repair. Pico v. Colimas, 32 Cal. 578.
The bank does not include land outside the ditch itself. It does not extend beyond
high-water mark of stream. Sun Dial Ranch v. May Land Co., 119 Pac. 758; Gould on
Waters, 45.
The right of way is entirely distinct from ownership of land over which it passes. Uhl v.
Ohio River R. Co., 51 W. Va. 106.
There was no allegation in the complaint of any special damages and no prayer for any
damages. The damages allowed were all special damages naturally and proximately, but not
necessarily, resulting from the injuries complained of. 8 R. C. L. 612; Buckley v. Buckley, 12
Nev. 425; 17 C. J. 1017. They should have been specially alleged and proved. 8 R. C. L. 612.
Plaintiff can recover no more damages than are alleged and demanded. 15 Stand. Pr. 48; 17
C. J. 1021; Waldron v. Harvey, 54 W. Va. 608.
That a judgment rendered without jurisdiction is void may be shown by extrinsic evidence
as well as by the record itself. Larimer v. Knoyle, 43 Kan. 344; Jefferson v. Gallagher, 150
Pac. 1071.
A judgment for relief beyond the issues may be collaterally attacked. J. B. Watkins
Land-Mortgage Co. v. Mullen, 8 Kan. App. 705; Murray v. American Co., 70 Fed. 346.
However, the attack here is a direct one. Smith v. Morrill, 12 Colo. App. 233.
The doctrine of res adjudicata has no application, as the judgment herein was not a valid
one. 23 Cyc. 1215. Nor is a void judgment a bar. 23 Cyc. 1044.
The items of damage allowed did not result from any injuries complained of. Material
averments omitted from the pleadings cannot be supposed by evidence. Low v. Blackburn, 2
Nev. 73; 11 Pl. & Pr. 868, 872. A party must recover according to the complaint, or not at all.
Marshall v. Golden Fleece, supra.
The judgment must be secundum allegata et probata. 11 Pl. & Pr. 872.
Want of jurisdiction to render a particular judgment is ground for relief by bill in equity.
15 Stand. Pr. 294.
Equity will enjoin or vacate a void judgment. 15 Stand. Pr. 293; Dalton v. Libby and
Lamburth, 9 Nev. 192. Failure to file bill of exceptions, resulting in dismissal of appeal,
does not affect right to equitable relief.
Failure to file bill of exceptions, resulting in dismissal of appeal, does not affect right to
equitable relief. Oliver v. Pray, 4 Ohio, 175.
Affirmance of judgment on appeal does not affect right to impeach it by suit in equity. 15
Stand. Pr. 283; Pioneer Land Co. v. Maddux, 109 Cal. 633; Partridge v. Harrow, 27 Iowa, 96.
It is not necessary to appeal or take any steps against a void judgment. Its unworthiness
may be shown whenever it is brought up. Black (2d ed.), sec. 170; Follansbee v. Scottish-Am.
Mort. Co., 7 Ill. App. 486.
The injunction may be presented at any stage of the suit. Story, Eq. Jur., sec. 886.
An injunction should be granted to stay execution. Sec. 6, art 6, Constitution.
Having but one form of civil action, the court on sufficient showing will grant whatever
relief is proper. The reasons for any distinction of conditions upon which relief may be
granted have disappeared by the union of equitable and legal jurisdiction in one court. Magin
v. Lamb, 43 Minn. 80.
Legal or equitable relief will be granted, according to the cause stated. 1 Pomeroy (3d ed.),
sec. 358.
A bill in equity will lie against a void judgment that has been affirmed. High on
Injunctions (4th ed.), secs. 228, 230.
W. M. Kearney and W. E. Baldy, for Respondent:
The only matter before this court is an appeal from an order arising from a motion for an
injunction. The procedure is prescribed by Rev. Laws, 5356. There is an exception to the
appealed order, but it is not a bill of exceptions in the sense that it embodied the proceedings
had. There is nothing to show what proceedings, testimony, or records were used in support
of or against the motion. There is no suggestion in the clerk's certificate that the papers were
used or offered. Such papers must have been used in the court below and certified by the
clerk or the attorneys, otherwise the appeal will be dismissed.
The presumption is sufficient that the lower court had ample evidence to support its order,
in view of the fact that nothing contrary appears in the record, and this court may affirm the
order without proceeding further. Thompson v. Bank, 19 Nev. 293.
Appellants have taken random citations from Cyc., C. J., and the digests without reading the
cases cited at all.
An academic discussion of an easement is useless. We are concerned only with the
ownership of the ditch so far as it is necessary for its operation and maintenance.
Whenever there is an adequate remedy at law, one who neglects it will not be permitted
relief from a judgment by resorting to equity. Walker v. Robbins, 14 L. Ed. 552; Knox Co. v.
Parchman, 133 U. S. 152.
Mistake in a judgment can be corrected only on motion for a new trial or on an appeal.
Freeman on Judgments (4th ed.), 489.
Equity will set aside a judgment only for extrinsic or collateral fraud, not fraud in the
matter on which the decree was rendered. U. S. v. Throckmorton, 25 L. Ed. 96; Pico v. Cohn,
25 Pac. 970; 27 Pac. 537.
There must be an end to litigation, and the correctness of rulings within the jurisdiction of
the court are reveiwable only by the appellate tribunal. LeMesnager v. Variel, 77 Pac. 988.
Damages were a matter within the jurisdiction of the court. Equity cannot restrain the
judgment. Donovan v. Miller, 88 Pac. 82.
Awarding damages on a general allegation and general prayer cannot be anything more
than an error or irregularity, which can be reviewed only on motion for new trial or on appeal,
and positively not in equity.
If defendant makes no objections to proof of special damages, he is deemed to have
waived them. Mellor v. Railroad Co., 14 S. W. 758; 16 S. W. 849.
Such objection after verdict comes too late. Cosgriff Bros. v. Miller, 68 Pac. 206.
It is a well-established rule that a judgment of a court of competent jurisdiction cannot be
impeached for mere errors or irregularities.
errors or irregularities. Elliot v. Perisol, 7 L. Ed. 164; Marchand v. Frellsen, 105 U. S. 423;
Hughes v. Goodale, 66 Pac. 702.
Wheeler v. O'Brien, 40 Nev. 414, defines the Nevada law to be that the supreme court will
not reverse a judgment awarding special damages, even where no special damages are alleged
but where proof of such special damages was admitted without specific objection during the
trial. In other words, the error, if any, is waived.
A general allegation of damages will authorize proof of all damages necessarily resulting
from or which may be legally implied from the act complained of. Hunt v. Railroad Co., 52
N. W. 668; Henderson v. Coleman, 115 Pac. 439, 1136.
How ridiculous it would be to have a hillside ditch without a lower bank to protect it. A
ditch bank is the ridge of earth. It is synonymous with embankmenta ridge of earth of
sufficient height and width; an earthwork raised for any purpose. 20 C. J. 403.
This is a suit in equity instituted by the appellants to restrain the execution of a judgment
obtained against them in the court below by the respondent, plaintiff in that action.
Inter alia, the complaint sets out in full the pleadings, the decision, the opinion, findings,
conclusions of law, and the judgment complained of. It also sets out the facts that an appeal
was taken from said judgment and an order denying a motion for a new trial to this court,
which appeal was dismissed on motion, and a rehearing denied. 45 Nev. 260, 201 Pac. 548. A
demurrer to the complaint was overruled, and a restraining order and temporary injunction
staying execution of the judgment was dissolved by the order of the court. From the latter
order this appeal is taken.
In the original case respondent had brought an action against appellants to enjoin them
from in any manner interfering with a certain ditch known as the Mexican Ditch," the
property of the respondent, in which water from the Carson River was being conducted,
and for many years had been conducted, across the lands of appellants.
Ditch, the property of the respondent, in which water from the Carson River was being
conducted, and for many years had been conducted, across the lands of appellants. The court,
in its judgment, awarded the respondent damages against appellants in the sum of $1,238. As
to the ownership of the Mexican ditch, it is stated:
That the Mexican ditch, its bed and its banks, are the property of the plaintiff
[respondent], to the exclusion of the defendants [appellants], in all respects connected with or
appertaining to the use of said ditch for the carrying of water, and particularly its bed and its
banks extending through the property of defendants, including a width of fourteen feet from
the high-water mark of the right or easterly bank of said Mexican ditch, as the necessary bank
of said ditch, are the property of the plaintiff, to the exclusion of the defendants, in all
respects connected with or appertaining to the use of said ditch for the carrying of water; and
said Mexican Dam and Ditch Company also has what further ownership in said banks and the
vicinity of said ditch as is necessary for keeping the said ditch clean and in repair, and for
maintaining the same with the least possible damage to or interference with the ownership of
the land through which the said ditch runs.
1. It is claimed that in rendering judgment in these respects the court exceeded its
jurisdiction, because the relief so awarded was outside of any issue raised in the pleadings.
Hence it is urged that the lower court erred in not restraining the enforcement of the
judgment. A judgment which adjudges matters outside the issue raised by the pleadings is so
far void. As stated in Douglas Milling and Power Co. v. Rickey, 47 Nev. 148, 217 Pac. 590,
this rule is elementary. It is not to be invoked in this case, however. The matters mentioned
are within the issues made by the pleadings in the original case. In regard to the question of
damages it was alleged that the appellants have within four years last past unlawfully and
wrongfully entered upon and into the banks of said Mexican dam and ditch and constructed
along said bank, by cutting away a portion of said bank, a ditch approximately 1,160 feet
in length, giving its beginning, course and ending; that said bank of said Mexican ditch
has been unlawfully cut away by defendants to a depth of six feet in many places, thus
weakening and injuring the banks thereof and rendering the same unsafe for the
continued flowing of water in said ditch; defendant Joseph Schultz has by force of arms
threatened to prevent plaintiff and its employees from maintaining and repairing said
ditch; that by reason of said unlawful acts hereinabove complained of, plaintiff and its
stockholders have been deprived of the use of water flowing in said ditch, and plaintiff
has been injured and damaged by the cutting away and breaking of the banks of said
ditch by defendants, and in installing and changing boxes, and by the acts as herein
alleged, in the sum of $1,500.
constructed along said bank, by cutting away a portion of said bank, a ditch approximately
1,160 feet in length, giving its beginning, course and ending; that said bank of said Mexican
ditch has been unlawfully cut away by defendants to a depth of six feet in many places, thus
weakening and injuring the banks thereof and rendering the same unsafe for the continued
flowing of water in said ditch; defendant Joseph Schultz has by force of arms threatened to
prevent plaintiff and its employees from maintaining and repairing said ditch; that by reason
of said unlawful acts hereinabove complained of, plaintiff and its stockholders have been
deprived of the use of water flowing in said ditch, and plaintiff has been injured and damaged
by the cutting away and breaking of the banks of said ditch by defendants, and in installing
and changing boxes, and by the acts as herein alleged, in the sum of $1,500. And again,
defendants, and each of them, continue to interfere with and open the banks of said ditch and
to wrongfully and unlawfully divert said waters from said ditch by means of and through said
boxes so unlawfully installed and lowered and enlarged as herein alleged, all to the
irreparable injury and damage of the plaintiff. No damages are asked for in the prayer of the
complaint. In addition to the specific relief prayed for, the plaintiff prays for all such further
relief to which it may be entitled by reason of the matters and things herein alleged. All
allegations of damage are denied in the answer.
2, 3. In the case before us we are not concerned with the form or sufficiency of the
allegations of damage, as the same may have been tested in an appropriate way in the original
case. It is insisted that the damages alleged are general damages, while the damages found by
the court are special damages, and therefore outside the issue. Whether the admission of proof
of special damages, in the absence of an allegation thereof, could have been considered as
error in the original case, would have depended upon whether or not the adverse party made
timely objection. In Mellor v. Missouri Pac. Ry. Co. (Mo. Sup.), 14 S. W. 758, 105 Mo. 455,
16 S. W.
849, 10 L. R. A. 36, it was held that when proof of special damages is offered and admitted
without objection, the defendant is deemed to have waived any objection he may have had to
such proof.
In Cosgriff v. Miller, 10 Wyo. 190, 68 Pac. 206, 98 Am. St. Rep. 468, the court said:
It is, no doubt, the general rule that, to be proven, special damages must be alleged; but,
when evidence showing such damages has been admitted without objection, a complaint on
the ground that the allegations of the petition are insufficient to cover special damages comes
too late after verdict. Indeed, it is held that proof of special damage, if not objected to when
offered, cannot be ruled from the jury by an instruction after the evidence is closed, and
furnishes no ground for a new trial.
See, also, Lashus v. Chamberlain, 6 Utah, 385, 24 Pac. 188; Plunkett v. Railway Co., 79
Wis. 222, 48 N. W. 519.
4, 5. This is the rule as to error in regard to the admission of proof concerning special
damages, and, in the case before us, when every presumption must be indulged in favor of the
regularity of the judgment attacked, it is apparent that appellants' contention is without merit.
Even if the damages found are special damages, a question we need not determine, the court
had power to award damages under the general allegations in the complaint, and if it erred in
the particular kind of damages awarded, such error could be nothing more than error
committed within jurisdiction, and which could be corrected only on a new trial or an appeal.
6. Neither is there any merit to the contention that the judgment is void in so far as it
undertakes to award damages, for the reason that no damages are asked for in the prayer of
the complaint. Ordinarily, said the court in Johnson v. White Mountain Creamery Assn., 68
N. H. 437, 36 Atl. 13, 73 Am. St. Rep. 610, it is the duty of the court to render such
judgment as upon the whole record the law requires, without regard to any request or want of
request therefor.
In Bell v. Merrifield, 109 N. Y. 202-207, 16 N. E. 55, 56 (4 Am. St. Rep. 436), under a
statute identical with ours, the court declared:
An answer having been interposed in this case, the formal relief asked in the complaint is
not of much importance, and the court will grant the judgment which shall be consistent with
the case made by the complaint and embraced within the issues.
If the specific relief asked cannot be granted, said the court in Rollins v. Forbes and
Wife, 10 Cal. 299, such relief as the case stated in the bill authorizes, may be had under the
clause in the prayer for general relief, and even in the absence of such clause where an
answer is filed. (The italics are ours.)
In Buena Vista F. & V. Co. v. Tuohy, 107 Cal. 243, 40 Pac. 386, the court said:
In cases where an answer is filed the court may, under section 580 of the code of civil
procedure, grant any relief consistent with the case made by the complaint and embraced
within the issue.'
See, also, Mariner v. Milisich, 45 Nev. 193, 200 Pac. 478.
The code section cited in the California case last mentioned is identical with our statute on
the same subject-matter. Our statute, as pointed out in Mariner v. Milisich, supra, was
borrowed from California. The statute determines the question. Section 299 of the civil
practice act, Rev. Laws, 5241, reads:
The relief granted to the plaintiff, if there be no answer, shall not exceed that which he
shall have demanded in his complaint; but in any other case the court may grant him any
relief consistent with the case made by the complaint and embraced within the issue.
As we have seen, the complaint contained allegations of general damages which are denied
in the answer. Issue was thus joined thereon, and respondent was therefore entitled, under the
statutory rule, to be awarded damages, regardless of the absence of a specific demand therefor
in the complaint.
7. The judgment is not void as to that portion of it wherein it is adjudged that the Mexican
ditch, its bed and its banks, are the property of the respondent.
and its banks, are the property of the respondent. This part of the judgment is in conformity
with the allegations of the complaint. It is claimed that it is outside the issues for the reason
that it gave respondent fourteen feet of appellants' land, whereas it is not alleged in the
complaint that respondent was the owner of any part or portion of appellants' land. The
fourteen feet was awarded as the necessary width of the easterly bank of the ditch. The banks
of the ditch having been alleged as the property of the respondent, this portion of the
judgment was clearly within the issues. How much land was necessary for the banks of the
ditch to secure respondent in the reasonable and proper enjoyment of its easement over
appellants' lands was a question for the trial court in the original case to determine under the
evidence. If it erred in awarding more land than was necessary for the proper maintenance of
the ditch, it was an error within jurisdiction, which we cannot inquire into in this case. The
authorities cited by appellants defining what constitutes the bank of a river have no
application to the banks of a ditch.
The order of the lower court dissolving the restraining order and temporary injunction is
affirmed.
Coleman, J.: I concur.
I do not differ so much with the general principles announced in the opinion of the court as
in the application of the law. Here it is that our paths diverge. It is the settled rule in equity
that a party must recover according to the case made by his bill, or not at all. Hence, even
under a prayer for general relief, the court cannot go outside the case made by the pleadings,
and decree in favor of the plaintiff on grounds not stated in his complaint, or grant relief for
matters not charged. 1 Black on Judgments, sec. 141.
The original action of the Mexican Dam and Ditch Company v. Schultz Bros. was a suit to
quiet plaintiff's title to the Mexican ditch and to plaintiff's right to 216 cubic feet of water per
second appropriated from the Carson River and flowing in said ditch. The plaintiff alleged in
its complaint that the defendants within four years last past unlawfully and wrongfully
entered upon and into the banks of said Mexican ditch, and constructed along said bank,
by cutting away a portion of said bank, a ditch approximately 1, 160 feet in length; that
said bank of said Mexican ditch had been unlawfully cut away by defendants to a depth of
six feet in many places, thus weakening and injuring the banks thereof and rendering the
same unsafe for the continued flowing of water in said ditch; that defendant Joseph
Schultz had by force of arms threatened to prevent plaintiff and its employees from
maintaining and repairing said ditch; that, by reason of said unlawful acts, plaintiff and its
stockholders had been deprived of the use of water flowing in said ditch, and plaintiff had
been injured and damaged by the cutting away and breaking of the banks of said ditch by
defendants and in installing and changing boxes in the sum of $1,500.
alleged in its complaint that the defendants within four years last past unlawfully and
wrongfully entered upon and into the banks of said Mexican ditch, and constructed along said
bank, by cutting away a portion of said bank, a ditch approximately 1, 160 feet in length; that
said bank of said Mexican ditch had been unlawfully cut away by defendants to a depth of six
feet in many places, thus weakening and injuring the banks thereof and rendering the same
unsafe for the continued flowing of water in said ditch; that defendant Joseph Schultz had by
force of arms threatened to prevent plaintiff and its employees from maintaining and repairing
said ditch; that, by reason of said unlawful acts, plaintiff and its stockholders had been
deprived of the use of water flowing in said ditch, and plaintiff had been injured and damaged
by the cutting away and breaking of the banks of said ditch by defendants and in installing
and changing boxes in the sum of $1,500.
The finding of the court upon this allegation of the complaint reads as follows:
That, by reason of said unlawful acts hereinabove mentioned, plaintiff and its
stockholders have been deprived of the use of water flowing in said ditch, and plaintiff has
been injured and damaged by the said defendants installing and changing boxes, and cutting
open the banks of said Mexican ditch, in the sum of $1,238.
The trial judge in rendering his decision directed that formal findings should, by reference
thereto, adopt the opinion filed by the court in so far as the same passed upon the facts of the
case.
The bill of complaint in the present case exhibits the judgment roll in the original case and
by proper reference makes it a part of the complaint. Looking to the opinion of the court, it
will be observed that it uses this language:
I now reach the question of damages. * * * The other phase takes into account the
expense the ditch company had to bear on account of the conduct and attitude of Schultz
Bros. As I have the figures, this amounts to $1,192, being mostly services for watchmen,
but including one item of $46 for changing boxes back to their original position or taking
out a box, another for $15 for Engineer Miller, and one of $5 for Engineer Payne.
amounts to $1,192, being mostly services for watchmen, but including one item of $46 for
changing boxes back to their original position or taking out a box, another for $15 for
Engineer Miller, and one of $5 for Engineer Payne. * * * Damages are, therefore, allowed
against Schultz Bros. for $1,238. As said before, there is no prayer for damages, so this
amount is allowed as an essential element of the case under the general prayer.
The opinion of the trial judge is no part of the findings, and, when made a part of the
record on appeal, it can only be looked to to assist the court in a correct disposition of the
case. In the bill of complaint in the present action the opinion, decision, and findings of fact
in the original action convince me that the court exceeded its jurisdiction in awarding
damages for $1,238 for matters not charged in the complaint. The judgment, therefore, for
said amount of damages, is not supported by the pleadings.
Entertaining these views, I am compelled to dissent from the judgment of the court.
____________
No. 2567
KINGSBURY v. COPREN
April 14, 1924. 224 Pac. 797.
1. Appeal and ErrorMotion to Dismiss Appeal Not Taken in Time Should Be Sustained.
Where an appeal from an order denying a motion for new trial was not taken within sixty days from
entry thereof, as required by Rev. Laws, 5329, as amended by Stats. 1913, c. 91, a motion to dismiss the
appeal should be sustained.
2. Appeal and ErrorBill of Exceptions Not Settled and Allowed as Required by Law Should
Be Stricken on Motion.
A bill of exceptions not settled and allowed as required by law should be stricken on motion.
3. Appeal and ErrorSupreme Court Need Not Determine whether Judgment against
Defendant in Individual and Representative Capacities Was Right in either Capacity.
Where judgment was improperly rendered against an executor in both his individual and
representative capacities, the supreme court need not determine whether the judgment is right against
defendant in either capacity.
4. Appeal and ErrorSupreme Court Cannot Determine whether Judgment against Executor
Was Right in Either Capacity, in Absence of Bill of Exceptions Containing Evidence.
Where the bill of exceptions containing the evidence was stricken, because not settled and allowed as
required by law, the supreme court cannot determine whether a judgment improperly rendered against an
executor in both his representative and individual capacities was right against him in either capacity so as
to authorize affirmance.
On Petition for rehearing. Petition denied.
For former opinion, see 47 Nev. 167.
Mack & Green and Brown & Belford, for Petitioner:
The appeal was not taken within time allowed and hence should be dismissed. Rev. Laws,
5329, as amended Stats. 1913, p. 113; Winter v. Winter, 3 Nev. 129; Luke v. Coffee, 31 Nev.
165.
The purported bill of exceptions was not settled nor certified to as required by law. Stats.
1919, c. 237, p. 440; Capurro v. Christensen, 46 Nev. 249; Rickey v. Douglas M. & M. Co.,
45 Nev. 341.
There is an exception to general rule that person cannot hold possession of personal property
both as individual and administrator. Defendant made claim in representative capacity,
while evidence showed that in his individual capacity he had taken property out of state
and substituted inferior property instead.
in representative capacity, while evidence showed that in his individual capacity he had taken
property out of state and substituted inferior property instead. If we dismissed him in
representative capacity, we would dismiss only person who claimed property and thereby
would be out of court; if we dismissed him as individual, we would dismiss party actually in
possession, and thereby we would have been relegated to acceptance of inferior substituted
property.
While party in possession is necessary in replevin, others having claim of interest may be
joined. Rev. Laws, 4090; 34 Cyc. 1425; 23 R. C. L. 876.
Even if the defendant were not proper party in both capacities, the judgment should not be
reversed. Harmless error should be disregarded. Rev. Laws, 5066.
Defendant in individual capacity cannot object to his joinder in representative capacity.
Party cannot object to misjoinder of another. 6 Stand. Pr. 855. One must show he is not
proper party in capacity in which he is joined. 21 R. C. L. 312.
The court did not determine, and we are unable to determine from its two decisions, in
what capacity the appellant was misjoined.
Platt & Sanford, for Appellants:
It is idle to discuss question of appeal from order denying motion for new trial. The
opinion is manifestly founded on judgment roll, and has no bearing on evidence, errors, etc.
Appellants were content to rely on appeal from judgment roll. Certainly no bill of exceptions
is required in straight appeal from judgment. It would have availed respondent nothing if
court had dismissed appeal from order denying new trial. The appeal from the judgment was
still certainly intact. The court's correcting inadvertence would not affect final decision.
Amended complaint, which is part of judgment roll, shows defendant in two capacities.
Verdict and judgment were against both individual and estate. This is illegal and anomalous.
Amended complaint does violence to law of replevin, and is uncertain and inconsistent.
Specific property must be in possession of defendant at time replevin suit is brought.
Kingsbury v. Copren, 43 Nev. 453. Defendant could not hold in both capacities. Nelson v.
Smith, 42 Nev. 320.
It appears defendant was charged personally with taking away property, yet counsel contends
estate should be liable by suing defendant in representative capacity.
It is impossible to determine what an amended complaint really means.
The former decision in this case, however, does not need rehearing to clarify its
conclusions.
1. It appears from our opinion that the motions to dismiss the appeals from the order
denying the motion for a new trial and from the judgment were summarily denied. It also
appears that no mention is made in the opinion of the motion of respondent to strike the bill
of exceptions.
On petition for rehearing, our attention is directed to the fact that it was admitted in open
court that the appeal from said order was not taken within sixty days from the entry thereof,
as required by section 5329 of the Revised Laws, as amended by the statute of 1913 (Stats.
1913, p. 113). It is clear that the motion to dismiss the appeal from the order denying the
motion for a new trial should have been sustained, and we gladly correct the error and now
sustain the motion.
2. The motion to strike the bill of exceptions was based upon the ground that the same
was not settled and allowed as required by law. Upon further consideration of the record and
upon the authority of Capurro v. Christensen, 46 Nev. 249, 209 Pac. 1045, we are of opinion
that the motion to strike should have been sustained; and it is now adjudged and ordered that
upon motion of respondents the bill of exceptions, made a part of the judgment roll, be, and
the same is hereby, stricken as not having been properly settled and allowed.
3, 4. The petitioner seems to concede that the law of this case is that declared upon the
original appeal (43 Nev. 448, 187 Pac. 728, 189 Pac. 676), and while she is apparently
satisfied that judgment should not go against the defendant both in his individual and
representative capacities, yet she insists that, if the judgment is correct against the defendant
in either capacity, it is the duty of this court upon the evidence to affirm the same. While we
do not deem the suggestion that we should consider and determine if the judgment is right
against the defendant in either capacity well taken, yet if it were we could not do this in view
of the fact that the evidence is not before us; the purported bill of exceptions containing the
evidence having been stricken upon the motion of the defendant.
The petition for rehearing is denied.
____________
47 Nev. 469, 469 (1924) In Re French
No. 2640
In Re FRENCH
May 6, 1924. 225 Pac. 396.
1. Attorney and ClientAttorney Disbarred for Unexplained Failure to Pay to Client Money
Collected.
Attorney disbarred for failure, fully proved, and for which no reason was advanced, to pay over to his
client any part of $1,500, collected two years before, in settlement of claim.
Original proceeding. Disbarment proceeding against Chester D. French, attorney at law.
Attorney disbarred.
E. P. Carville, H. U. Castle, Morley Griswold, and J. Poujade, for Petitioners.
The application for the disbarment of Chester D. French was made by a number of
attorneys of Elko County, State of Nevada. Citation was issued on said application requiring
the accused to appear before this court on the 10th day of January, 1924, at the hour of 10
o'clock a. m., and show cause, if any he had, why the certificate and license to practice law in
the State of Nevada, heretofore granted to him by this court, should not be revoked, and
why he should not be disbarred and precluded from practicing law in all the courts of the
State of Nevada.
47 Nev. 469, 470 (1924) In Re French
of Nevada, heretofore granted to him by this court, should not be revoked, and why he should
not be disbarred and precluded from practicing law in all the courts of the State of Nevada.
The citation was personally served upon him in the county of Elko, State of Nevada, on the
13th day of December, 1923. Thereafter, at the request of said Chester D. French, a
continuance was granted, and the hearing of the application set for February 8, 1924, at 10
o'clock a. m.
At that time the matter came on for hearing before this court, the said Chester D. French in
no wise appearing. The informants were represented by the chairman of a committee of the
Nevada State Bar Association and by members of the Elko Bar Association. Evidence was
introduced in support of the allegations of the accusation, and the matter submitted for
consideration and decision.
During all of the time mentioned in the accusation Chester D. French was an attorney at
law, duly licensed by the Supreme Court of the State of Nevada to practice his profession in
all the courts of this state, and was engaged in the active practice of the law, with his office
and place of residence situate in the city of Elko, county of Elko, State of Nevada. It is
alleged in the allegation that, during the course of his practice as such attorney and counselor
at law, as aforesaid, he has been guilty of misconduct in office. There are five specific
allegations of misconduct in the accusation, the first of which reads as follows:
That on behalf of the board of trade of San Francisco, which said board of trade
represented in turn twenty-two creditors of that certain business in Elko, Nevada, known as
the Ellen J. Orr Shop, the said Chester D. French received for a sale of the assets of the said
Ellen J. Orr Shop on or about the 5th day of April, 1922, the sum of $1,500, which said sum
the said Chester D. French, on or about the said 5th day of April, 1922, appropriated to his
own use, and that he has not, to the date hereof, remitted any part thereof to the said board of
trade of San Francisco, or to the said creditors represented by said board of trade, or to any
person acting in behalf of either, or to any person legally entitled to said moneys."
47 Nev. 469, 471 (1924) In Re French
creditors represented by said board of trade, or to any person acting in behalf of either, or to
any person legally entitled to said moneys.
The first specific allegation of the accusation has been fully established. It appears from
the evidence and testimony that some time prior to March 21, 1922, Mrs. Ellen J. Orr was
running a millinery shop in the city of Elko in this state. She died, and her husband, W. E.
Orr, continued to conduct the business. The business finally resulted in failure, and claims of
creditors, amounting to about $3,000, were placed with the board of trade of San Francisco
for adjustment. Chester D. French was employed by the board as an attorney in the matter,
and later informed the board that he could obtain $1,500 in cash for the assets of the business,
if releases could be obtained from all of the San Francisco creditors. The board informed all
of the San Francisco creditors of the proposition. They accepted it, and the board wired
French to that effect, and instructed him to make the sale. There were two creditors which the
board could not readily get in touch with, but releases were afterwards obtained from them.
French effected a sale of the stock of goods for $1,500 to Mr. Dreeben and Mr. Sax, who
were conducting a clothing store in the city of Elko. In order to purchase the property
Dreeben and Sax borrowed $1,500 from the Henderson Banking Company of the city of
Elko. The money was placed to their credit in the bank, and on March 21, 1922, Dreeben and
Sax drew a check on the Henderson Banking Company for $1,500, payable to E. P. Carville.
The check was introduced in evidence, and bears the indorsement of E. P. Carville and
Chester D. French. Mr. Carville is an attorney at law residing at the city of Elko, and
represented Mr. Orr in the transaction. He is one of the informants against French, and
testified at the hearing of the disbarment proceedings in this court. He testified that the check
was given to him as he was representing Mr. Orr; that he held the check for a little while in
order for French to get a release from the creditors, or to get word from the San Francisco
board of trade that Orr would be released from all claims of creditors; that, after French
received the telegram from the board of trade, he turned the check over to him on or
about April 6, 1922.
47 Nev. 469, 472 (1924) In Re French
the San Francisco board of trade that Orr would be released from all claims of creditors; that,
after French received the telegram from the board of trade, he turned the check over to him on
or about April 6, 1922. The witness identified French's signature on the check, and testified
that the latter admitted to him that he got the money on the check, and deposited it in the First
National Bank of Elko. The check shows on its face that it was paid by the Henderson
Banking Company on April 6, 1922. The witness, Carville, further testified that he had
several conversations with French afterwards and tried to have him adjust the matter with the
board of trade, and that French promised that he would do so. A receipt dated Elko, Nevada,
April 5, 1922, signed by the board of trade of San Francisco, by Chester D. French, attorney,
containing a list of twenty-two creditors, and stating that $1,500 had been received from E. P.
Carville, as attorney for W. E. Orr, representing the Ellen J. Orr Shop at Elko, Nevada, in full
payment of all claims of every name, nature, and kind against said business by said creditors,
and releasing said W. E. Orr from any further liability on account of said named creditors,
was identified by the witness, and introduced in evidence.
Morley Griswold, an attorney at law residing at Elko, who represented one of the creditors,
the Henderson Banking Company, and George J. Miller, assistant secretary of the board of
trade, testified at the hearing, and it appears from their testimony that neither the board of
trade nor the creditors have received any part of the $1,500 from French. It appears from a
letter written by French to the board of trade of San Francisco, dated December 14, 1922, that
he promised to have the matter entirely settled and in their hands by January 1, 1923.
From the time the money came into French's hands in trust for the creditors to the time of
the hearing almost two years had elapsed. French made no appearance at the hearing, nor was
any defense made for him. No reason was advanced for his failure to pay over the money.
47 Nev. 469, 473 (1924) In Re French
money. His dereliction of duty as an attorney as charged in the first specific allegation has
been so fully proved and constitutes misconduct in office of such flagrant character as to call
for his disbarment. We therefore deem it unnecessary to pass upon the other charges in the
accusation.
It is hereby ordered that the name of Chester D. French be and the same is hereby stricken
from the roll of attorneys of this court; and it is further ordered that Chester D. French be and
he is hereby precluded and debarred from the right of practicing law as an attorney at law or
counselor in all the courts of this state.
____________
47 Nev. 473, 473 (1924) Carson City v. Red Arrow Garage
No. 2626
CARSON CITY v. RED ARROW GARAGE
May 6, 1924. 225 Pac. 487.
1. LicensesCannot Presume Legislature in Empowering City to Tax Businesses Intended to
Favor Particular Businesses.
The court, in construing Stats. 1921, p. 144, empowering the city of Carson to impose a license tax
upon numerous kinds of business, held bound to presume the legislature did not intend to favor any kind
or class of businesses.
2. LicensesAmended Charter of City of Carson Held to Authorize Levy of Tax by City of
Sale of Gasoline.
Charter of city of Carson as amended by Stats. 1921, p. 144, which, after enumerating many kinds of
business upon which the city is authorized to impose a license tax, authorizes it to fix and have collected
a license tax on all trades, professions, and classes of business not thereinbefore specified, held to
authorize the city to levy a tax on the sale of gasoline.
3. LicensesLevying of License Tax upon Dealer in Gasoline Who Is Also Licensed
Garage-Keeper Held Not Double TaxationGarage.
License tax by ordinance may be levied by city of Carson under its amended charter (Stats. 1921, p.
144) upon a dealer in gasoline who is also a licensed garage-keeper, the sale of gasoline not being
essentially a part of the garage business, as a garage is a station at which motor cars can be sheltered,
stored, repaired, cleaned, and made ready for use, or place for private storage of a motor car; a stable for
motor cars.
4. Municipal CorporationsRules of Construction Applicable to Ordinances.
The rules of construction applicable to statutes are also applicable to an ordinance.
5. Municipal CorporationsOrdinance Presumed to Accomplish Some End.
The court must presume that a city ordinance was adopted to accomplish some end, and not with a
view of going through a mere idle form.
6. Municipal corporationsOrdinances Construed to Give Them Effect.
Courts will construe ordinances so as to give effect to rather than to nullify them.
7. Municipal CorporationsIntent Governs Construction of Ordinance.
In construing an ordinance, the legislative intent governs, and the intent is to be gathered from a
consideration of the entire ordinance.
8. LicensesOrdinance Construed as Not Prohibiting Tax of Sales of Gasoline by One
Operating Garage Business under License.
An ordinance which imposed a license tax upon dealers in gasoline, and provided that such license
should be in lieu of all other licenses wherein the sale of gasoline may constitute a part thereof, and to
that part only, held not to prohibit the imposition of a tax on sales of gasoline by one operating a garage
business under a license; the sale of gasoline not being essentially a part of the garage business.
9. LicensesCourt Held Bound to Presume License Tax for Garage Business Was Paid
Independently of Sales of Gasoline in Absence of Facts to Contrary.
Where ordinance provided garage license tax to be paid quarterly in advance unless otherwise
provided for, court must presume, in absence of contrary showing, that city collected license in advance
for defendant's garage business, and that the tax sought to be recovered from defendant for the same
period of time under an ordinance imposing a license tax on sales of gasoline was no part of the amount
paid under the garage license.
10. Municipal CorporationsNumber Held Not to Show Later Adoption of Ordinance.
The mere fact that one ordinance bore the number 168 did not establish that it was adopted later than
one numbered 167, so as to repeal it.
Appeal from First Judicial District Court, Ormsby County; G. A. Ballard, Judge.
Action by Carson City against the Red Arrow Garage and Auto Company. From a
judgment for plaintiff, and from an order denying motion for new trial, defendant appeals.
Affirmed.
Platt & Sanford, for Appellant:
The so-called gas-tax ordinance, No. 167, exceeds provisions of charter and is therefore
void. Ordinance No.
No. 168 levies tax upon garage business, which business includes sale of gasoline. Ordinance
No. 167 is discriminatory and invalid as double taxation. It was also repealed by No. 168. The
power to tax business must be expressly conferred. 1 Dillon, Municipal Corporations, secs.
667, 2471.
The charter gives the right to tax garages. Stats. 1921, p. 144. Section 8 of Ordinance No.
168 imposes license upon garages or garage business. Words in a statute should be given their
ordinary meaning unless the contrary appears. Ex Parte Ming, 42 Nev. 472.
The stipulation of facts expressly states that garages in Nevada customarily sell gasoline as
part of garage business. The garage is modern substitute for ancient livery stable. Smith v.
O'Brien, 94 N. Y. Supp. 673; Diocese of Trenton v. Toman, 70 Atl. 606. The words
livery-stable keeper in old charter (Stats. 1907, p. 54) are succeeded by garage in present
charter, while the former are dropped, showing clear substitution.
A municipality cannot levy tax upon particular elements of one business. Stockwell v.
Hailey, 229 S. W. 382; Hotelling v. City of Chicago, 66 Ill. App. 289; Ex Parte Sims, 25
South. 280; Canova v. Williams, 27 South. 30; Tuscaloosa v. Holezstein, 32 South. 1007.
The ordinance admits selling gasoline is incident of garage business, and then attempts to
divide that business into parts and tax one of its elements. Charter power to tax cannot be
varied by ordinance. Dillon, sec. 2404.
Section 18 of charter provides all money collected must go into general fund. Ordinance
No. 167 provides all money received under it shall go into street fund, a plain violation of
charter.
John M. Chartz, City Attorney, for Respondent:
Ordinance No. 167 is special gasoline-license act. Ordinance No. 168 is general
merchandise-license act. The charter permits licensing of business not otherwise specified.
St. Louis v. Baskowitz, 201 S. W. 870.
Gasoline, being explosive, would be subject to regulation and license. Metropolis Theater
Co. v. Chicago, 246 Ill. 20.
The peculiar qualities of gasoline and illuminating oils seem a sufficient warrant for
putting them in a class by themselves for excise taxation. Texas v. Brown, 66 L. Ed. 228.
Where two or more distinct businesses are combined, each may be licensed. Ex Parte
Siebenhauer, 14 Nev. 265.
Selling gasoline is not now inseparable part of garage business. Nevada has seen fit to require
separate license for it.
Dealers in oleomargarine, butterine, and imitation cheese may be separately licensed, and,
if burden falls on all such dealers alike, no one is aggrieved. Proceeds of such sales should
not be included in general merchandise sales. State v. Hammond Packing Co., 123 Pac. 407.
This covers objection of double taxation.
Amos v. Gunn, 94 South. 615, holds tax on gasoline constitutional.
Continental Oil Co. v. Walker, 285 Fed. 729, holds state has power to impose license tax
on dealers in any commodity determinable on amount of business done.
Altitude Oil Co. v. People, 202 Pac. 180, holds gasoline tax is in no sense discriminatory
because it applies to all sales of its kind.
Askren v. Continental Oil Co., 252 U. S. 444, holds gasoline tax constitutional.
Appellant does not pay flat rate for running garage. It pays on amount of business done,
which does not include gasoline sales, and so does every other merchant handling gasoline.
There is no irreconcilable conflict between the two ordinances. Repeals by implication are not
favored. State v. Ducker, 35 Nev. 214.
City trustees not only have right to transfer funds from general to special funds, but budget
law (Stats. 1917, p. 249) requires them to do so. This question was not raised and is not
involved in instant case. If party's rights are not affected by statute or a part thereof, its
constitutionality will not be considered upon his application. Ex Parte Goddard, 44 Nev. 134.
This is an action to recover a judgment against the defendant, a corporation, in the sum of
$200 alleged to be due plaintiff pursuant to an ordinance adopted by the plaintiff city
imposing a license tax upon dealers in gasoline at the rate of 1 cent per gallon for each gallon
sold or delivered. The action was commenced in the justice's court, and after the answer was
filed was, pursuant to law, certified to the district court. It was tried to the court on an agreed
statement of facts. The court rendered a judgment in favor of the plaintiff. A motion for a new
trial having been denied, an appeal was taken from said order and the judgment.
It is agreed, inter alia, that both of the parties hereto are duly incorporated. It is also
stipulated:
That the city trustees did in March, 1922, pass two ordinances providing for license taxes
under its charter. That one of said ordinances was general in its nature, and the other applied
solely to the sale of gasoline.
It may be borne in mind that the special ordinance levying the gasoline tax is No. 167, and
the general ordinance is No. 168.
It is further stipulated that the special ordinance imposes a license tax of 1 cent per gallon
for each gallon of gasoline sold or delivered within the plaintiff city; that gasoline had been
sold by the defendant within said city since the adoption of said ordinance, and that it had
neglected and refused to pay a license tax, as provided for in Ordinance No. 167. It is also
stipulated that the defendant is engaged in the general public garage business, and as a part of
such business sold and disposed of gasoline in the plaintiff city for several years prior to the
adoption of Ordinance No. 167; that public garages in Nevada customarily sell and dispose of
gasoline as a part of the garage business, and that during the period for which it is sought to
recover the tax on the sale of gasoline the defendant had paid a license for conducting a
garage business.
The charter of the city of Carson as amended (Stats. 1921, p. 144) authorizes the city to
impose a license tax upon numerous kinds of businesses.
upon numerous kinds of businesses. After enumerating many kinds of businesses upon which
plaintiff city is authorized to impose a license tax, it provides:
And to fix and have collected a license tax on all trades, professions, and classes of
business carried on in said city and not hereinbefore specified.
We think that the foregoing statement is sufficiently comprehensive to clearly present the
points urged in behalf of the appellant.
1, 2. The first point made in behalf of the contention that the judgment is erroneous is that
no authorization can be found in the charter of the plaintiff city for the levying of a tax on the
sale of gasoline. In support of this contention appellant invokes the general rule stated in 1
Dillon, Municipal Corporations (5th ed.), p. 448, sec. 237, which reads:
It is a general and undisputed proposition of the law that a municipal corporation
possesses and can exercise the following powers, and no others:
First, those granted in express words.
Second, those necessarily or fairly implied in or incident to the powers expressly granted.
Third, those essential to the accomplishment of the declared objects and purposes of the
corporation, not simply convenient, but indispensable.
Any fair, reasonable, substantial doubt concerning the existence of power is resolved by
the courts against the corporation, and the power denied. Of every municipal corporation the
charter or statute by which it is created is its organic act. Neither the corporation nor its
officers can do any act, or make any contract, or incur any liability, not authorized thereby, or
by some legislative act applicable thereto. All acts beyond the scope of the powers granted are
void. Much less can any power be exercised, or any act done, which is forbidden by charter or
statute. These principles are of transcendent importance, and lie at the foundation of the law
of municipal corporations.
As we read the brief of counsel for respondent, it is conceded that the statements quoted
are sound in principle.
principle. Accepting these statements as being correct statements of the law, let us consider
the charter provision in question.
This provision, after enumerating a great number of kinds of businesses which shall be
subject to taxation, contains the following:
And to fix and have collected a license tax on all trades, professions, and classes of
business carried on in said city and not hereinbefore specified.
To the layman this provision would be clear and unequivocal, needing no interpretation,
elucidation, amplification, or consideration. Why not so in the realm of jurisprudence? To the
layman it no doubt appears at a glance that this general provision could have but one
meaning, purpose, or object, for the discovery of which no prolonged or profound search
should be necessary, namely, to make subject to a tax levy any business, trade or profession
which through oversight had been omitted from the list of businesses enumerated. In
construing statutes, constitutions, and ordinances it is a cardinal rule that, where the language
used is doubtful, the court must look to the intention of the provision to ascertain its meaning.
We do not think the provision in question in the least uncertain, nor can the intention of the
legislature be in doubt. The sole purpose of the legislature was to enable the city to bring all
kinds of business within its taxing power. This is clear from the language used. Indeed, it
would be quite remarkable if such were not the case. Why should we presume that the
legislature sought to favor any kind or class of business or profession? To presume such thing
would be to impute to the legislature improper motives. Not to impute such motives leads
irresistibly to the conclusion that it meant to authorize the levying of a tax indiscriminately.
We must presume the legislature did not intend to favor any kind or class of business. But our
attention is also directed to the following rule:
If the charter or statute enumerates the occupation or business which may be regulated
and licensed, the enumeration, if on the whole such appears to be the legislative intent, is
exclusive, and the municipality has no power to license or regulate occupations or
businesses not embraced in the enumeration." 2 Dillon, Municipal Corporations {5th ed.),
p.
enumeration, if on the whole such appears to be the legislative intent, is exclusive, and the
municipality has no power to license or regulate occupations or businesses not embraced in
the enumeration. 2 Dillon, Municipal Corporations (5th ed.), p. 448, sec. 237.
There is nothing in this section which justifies a different conclusion. It simply lays down
the rule that, where the charter enumerates the various lines of business which shall be
subject to taxation, such enumeration is exclusive, if on the whole such appears to be the
legislative intent.
But we are not left to our own inclinations and views in reaching this conclusion. The
identical point here presented was disposed of in City of St. Louis v. Bowler, 94 Mo. 630, 7
S. W. 434. The court in that case, in construing the phrase all occupations, professions, and
trades not heretofore enumerated, of whatever name or character, which followed the
enumeration of various kinds of businesses, as does the sentence in question in the instant
case, said:
This language is so very comprehensive that no necessity exists to invoke the rule of
ejusdem generis in the case at bar, if the language employed in the concluding words is to
have accorded to it its usual signification.
To the same effect is City of St. Louis v. Baskowitz, 273 Mo. 543, 201 S. W. 870.
3. The next point is that the sale of gasoline is incidental to and a part of the garage
business, and defendant, having paid a license tax for the privilege of conducting the garage
business, is not subject to the tax in question. We are clearly of the opinion that there is no
merit in this contention. We may say that counsel for appellant cite cases in support of the
contention that the sale of gasoline, in the circumstances, is a part of the garage business. We
do not think they sustain the contention. We shall not undertake to distinguish the cases relied
upon, as it would needlessly prolong this opinion, but come directly to a disposition of the
point in hand.
If the contention of the appellant be carried to its logical conclusion, it might follow that
there could be no such thing as imposing a license tax for the selling of any article
independently of a general business. For instance, grocery stores in some places sell not only
what are generally considered groceries, but articles of every character, including patent
medicines, gasoline, near beer, high explosives, farming implements, firearms, and an
innumerable list of wares. Yet the mere fact that a merchant who is conducting a grocery
store under a license to do so sells and disposes of coffins and furniture does not constitute
such articles groceries any more than would the selling of cigars and tobacco make such
articles groceries. We think our idea is clearly expressed in Hewin v. Atlanta, 121 Ga. 723, 49
S. E. 765, 67 L. R. A. 795, 2 Ann. Cas. 296, where it is said:
If an occupation is so made up as to include two or more separate and distinct classes of
business, each of which could be maintained as a separate business, that is, a business in the
sense in which that term is above used, then, under the power to classify subjects of business
for taxation, the municipal authorities might be empowered to impose a separate tax upon
each class of business embraced within this occupation. The department store is a familiar
illustration of different classes of business going to make up one occupation. So it is with the
hotel-keeper, who, in addition to furnishing lodging and meals, sells cigars, liquors,
newspapers, operates a barber-shop, etc.
The case of Hirsh v. Commonwealth, 21 Grat. (Va.) 785, also sustains our conclusion.
That was a case in which it was held that one paying a general merchandise tax would be
liable for a tax as a junk dealer where he accepted in payment for his goods wheat, corn, old
iron, rags, etc.
In Keely v. Atlanta, 69 Ga. 583, it was held:
The general business of merchandise may well be specified as millinery business, or hats,
shoe and boot business, or ordinary dry-goods business, and the ordinance is not ultra vires,
because one who pays an ad valorem tax is also required to pay a business tax of $25 on
each of these specific businesses.
ad valorem tax is also required to pay a business tax of $25 on each of these specific
businesses. So, too, the power classify business and arrange the various businesses * * * into
such classes of subjects for taxation as may be just and proper,' seems to us to be conclusive.
It was given on purpose to enable the city to avoid the injustice of allowing one person
engaged in trade or merchandise to pursue various trades and various branches of distinct
merchandise, which might be justly and properly subdivided into classes by the payment only
of one business tax, while his neighbor, who dealt only in one trade or in one branch of
merchandise, was compelled to pay the same tax. Suppose the complainant sold in one store
what is ordinarily called dry goods only, and in another store shoes, boots and hats, and in a
third store millinery, could it be held that the payment of one tax, as a specific business tax,
would allow him to engage in these three classes of merchandise? Certainly not. What
difference can it make if he spreads out one store so wide as to cover the three classes under
one roof in distinct parts of the same store?
It was held in New Orleans v. Metropolitan Bank, 31 La. Ann. 310, that the payment of a
tax to do a banking business did not exempt one from the payment of a tax as a pawnbroker.
It was said by the Supreme Court of the United States in Texas Co. v. Brown, 258 U. S.
466, 42 Sup. Ct. 375, 66 L. Ed. 721:
The peculiar qualities of illuminating oils and gasoline seem to us a sufficient warrant for
putting them in a class by themselves for excise taxation upon their sale or use.
If we accept this statement by the highest court of the land as being worthy of our
adoption, it must determine the point, and it seems to us that every consideration should
impel us to accept it. The sale of gasoline is no more a part of the garage business than it is of
the grocery business. It is sold in connection with both of the businesses mentioned.
It is said that the garage is the modern substitute for the livery stable. Smith v. O'Brien, 46
Misc. Rep. 325, 94 N. Y. Supp. 673; Diocese of Trenton v. Toman, 74 N. J. Eq. 702, 70 Atl.
606. It is true that a garage has some of the elements of the livery stable, but it certainly
cannot be said for the purpose of determining whether a license tax can be levied upon
dealers in gasoline that such a suggestion should control. The Century Dictionary defines a
garage as being a station at which motor cars can be sheltered, stored, repaired, cleaned, and
made ready for use; also a place for private storage of a motor car, a stable for motor cars.
White v. Home Ins. Assn., 189 Iowa, 1051, 179 N. W. 315. Garage is also defined as a
building for the storage of automobiles. New Standard Dictionary; Taylor v. State, 191 Ind.
200, 132 N. E. 294. We think these are correct definitions of garage. While repairing is one
of the prime essentials of a garage, such was not one of the purposes of a livery stable. If a
horse was to be shod or a buggy or wagon repaired, it was not taken to a livery stable but to a
blacksmith shop.
Other authorities supporting the conclusion that the levying of the license tax upon dealers
in gasoline who are also garage-keepers is not double taxation are Mayor v. Feeley, 66 Ga.
31; Wilder & Co. v. Mayor, 70 Ga. 760, 48 Am. Rep. 598; State v. Hammond Packing Co.,
45 Mont. 343, 123 Pac. 407; Lewis v. Mayor and Alderman of City of Savannah, 151 Ga.
489, 107 S. E. 588.
4, 8. It is next contended that the ordinance in question by its terms admits its invalidity.
This contention is based upon the following language in the ordinance:
Sec. 5. The license provided for in this ordinance shall be in lieu of all other licenses
wherein the sale of gasoline may constitute a part thereof and to that part only.
In support of the contention it is said that the ordinance admits that the sale of gasoline is
an incident of some other' business, and then attempts to divide or segregate the business
into parts and tax one of the elements."
of the elements. We cannot agree with the contention. In construing an ordinance we are
controlled by the same rules of construction applicable in the construction of statutes. It is
very evident that the ordinance was not adopted with the view of going through a mere idle
form, but for the purpose of accomplishing some end. We must so presume. It is a
well-recognized rule that courts will construe statutes and ordinances so as to give effect to
rather than nullify them. State v. Martin, 31 Nev. 493, 103 Pac. 840. It is also a cardinal rule
of construction that the legislative intent governs in construing a statute or ordinance. What,
then, was the clear intent prompting the adoption of the ordinance? This intent must be
gathered from a consideration of the entire ordinance, and not from one section thereof only.
From a reading of the entire ordinance it is clear that its purpose is to levy a license tax on the
sale of gasoline where the sale thereof is not essentially a part of the business taxed. It is clear
that section 5 was incorporated in the ordinance through abundance of precaution for the sole
purpose of preventing the collection of a double tax. Counsel for respondent has his theory as
to the interpretation to be placed upon section 5, and cites State v. Hammond Packing Co., 45
Mont. 343, 123 Pac. 407, to sustain him. We have held that the sale of gasoline is not
essentially a part of the garage business, and hence that the ordinance does not subject
defendant to a double tax. It is not incumbent upon us in this case to say in what
circumstances the section in question might be invoked, since it does not affect the defendant.
9. It is next asserted that the plaintiff is estopped from collecting the license tax sued for,
since under Ordinance No. 168 it has paid for the privilege of selling gasoline. The city of
Carson has two ordinances relating to license taxes, numbered, respectively, 167 and 168,
both of which were adopted in March, 1922. Ordinance No. 167 is the one fixing the license
tax of 1 cent per gallon for each gallon of gasoline sold. Ordinance No. 168 is a general
ordinance requiring a license tax to be taken out quarterly, payable in advance, unless
otherwise provided for.
to be taken out quarterly, payable in advance, unless otherwise provided for. This ordinance
covers the garage business and many others.
In the agreement of facts we find this:
That the defendant corporation applied for and paid a license tax to Carson City as a
garage' under and by virtue of general Ordinance No. 168, as above quoted.
Counsel for defendant say in their brief:
The sums realized from all sales, including that of gasoline, were therefore included in
the gross amount adopted and used by Carson City to fix, define, and establish the amount of
tax collected from the appellant herein for the quarter period ending June 30, 1922, under
provisions of section 8 of Ordinance No. 168, which is the same period that the respondent
attempts to collect the additional amount under Ordinance No. 167. With these admitted facts
and conditions, we submit that, whether the ordinance stands or falls, the respondent is
estopped by its own acts from collecting a license tax from the appellant for the particular
period of time when it has already collected a tax based upon such specific sales.
As we understand this contention, it is that plaintiff is estopped from recovering for the
reason that the defendant has in fact settled with the plaintiff upon a basis which includes the
sales of gasoline. There is nothing in the agreed statement to show that such is the fact. On
the contrary, we must conclusively presume that such is not the fact. Ordinance No. 168
expressly provides that the license tax for conducting the garage business must be paid
quarterly in advance unless otherwise provided for. There is nothing in the record to show
that it was otherwise provided for in this instance; hence we must presume that the license
was collected in advance for the garage business, and that the amount sought to be recovered
is no part of the amount paid under Ordinance No. 168. This, we think, disposes of the
estoppel theory.
10. It is next asserted that Ordinance No. 168 repealed Ordinance No. 167, and hence
there can be no recovery.
no recovery. There is nothing in the record to show that Ordinance No. 168 was adopted
subsequently to Ordinance No. 167. The mere fact that it bears a subsequent number does not
establish that it was adopted later.
Counsel for appellant suggest one other point in their brief, but, since it does not pertain to
a matter affecting the validity of the license tax nor the liability of the appellant, we decline to
consider it.
The judgment and order are affirmed.
____________

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